DeJolie et al v. T&R Market, Inc. et al

Filing 68

ORDER Granting Final Approval of Settlement Agreement by Magistrate Judge Kirtan Khalsa (KK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WILLIAM DEJOLIE and
SAMMIA DEJOLIE,
on their own behalf and
on behalf of all others similarly situated
Plaintiffs,
v.

Case No. 1:17-cv-00733-KK-SCY

T&R MARKET, INC.,
TANCORDE FINANCE, INC.,
T&R PAWN, LLC, and
T&R TAX SERVICE, INC.,
Defendants.

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT
THIS MATTER came before the Court upon the Plaintiffs’ Unopposed Motion for Final
Approval of Settlement Agreement. [Doc. 67] Defendants do not oppose the Motion. The Court
held a hearing on December 10, 2018, at which the parties were in attendance. The Court has
reviewed the record and considered the briefing submitted by Plaintiffs, and HEREBY FINDS AS
FOLLOWS:
1. This Court has jurisdiction over the parties and subject matter herein.
2. This lawsuit was filed in 2017, asserting, inter alia, violations of the Truth in Lending Act
(“TILA”) and the New Mexico Unfair Practices Act (“UPA”). Plaintiffs’ claims concern
Defendants’ issuance of tax refund anticipation loans. Plaintiffs allege that between November
1, 2014 and July 13, 2017, the date this lawsuit was filed, all of Defendants’ holiday loans and
instant cash loans understated the true finance charge and annual percentage rate (“APR”).

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This made the loans appear less expensive than they really were, and gave Defendants an unfair
competitive advantage against other lenders.
3. Defendants deny that they violated the law and raised legal and factual defenses to Plaintiffs’
claims.
4. The parties conducted discovery and extensive investigation of Plaintiffs’ claims.
5. The parties engaged in a settlement conference with the Honorable Kirtan Khalsa on May 11,
2018, at which they reached an agreement to settle this case.
6. The parties submitted a written settlement agreement for preliminary Court approval on July
30, 2018. [Doc. 55]
7. The Court granted preliminary approval to Plaintiffs’ settlement agreement and directed that
Court-approved notice be sent to class members, advising them of the proposed settlement, the
rights to opt out or object, and the final fairness hearing. [Doc. 62]
8. Plaintiffs sent notice to class members as ordered. The great majority of the nearly 15,000
class members were located, following extensive procedures by Plaintiffs to assure the
broadest possible notice. The Court finds that the notification process satisfied Fed.R.Civ.P
23 and the requirements of due process.
9. Only three class members excluded themselves. [Docs. 64-66]
10. One class member, Barney L. Willie, objected. [Doc. 63] However, his objection failed to
comply with the Court’s Order Granting Preliminary Approval, including failing to state any
grounds. [Doc. 62] The Court finds that Mr. Willie’s objection does not weigh against
granting final approval to the settlement agreement.

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11. The parties also complied with the Class Action Fairness Act, 28 U.S.C. §1715. [Doc. 56] No
responses have been received from any of the public officials notified. More than 90 days have
elapsed since the notice was mailed, and as such, the Court may enter a final order. Id.
12. The Court ratifies its earlier finding that this case is maintainable as a class action. [Doc. 62]
The class is so numerous that joinder of all members is impracticable. There are questions of
law and fact common to the class. The claims of Mr. and Mrs. DeJolie are typical of the claims
of the class members. Mr. and Mrs. DeJolie will fairly and adequately protect the interests of
the class, having retained counsel experienced in class actions and having no conflict with the
interests of the class. The common questions of law and fact predominate over questions
affecting individual class members, and a class action is a superior means of adjudication.
13. The class is defined as: All persons who entered into Holiday Loans or Instant Cash Loans or
both or who otherwise were charged any Credit Check Fees with any of the Defendants
between November 1, 2014 and July 13, 2017.
14. The Court finds that the settlement agreement resulted from extensive arms-length
negotiations, and was concluded after counsel for the parties had conducted adequate
investigation.
15. The Court finds that the settlement terms are fair, reasonable and adequate and in the best
interests of the class, considering possible benefits to the class that could be achieved by further
litigation, the length of time this action has been pending and is likely to continue, the expenses
of further litigation, the risk and costs of further delay, the complexity of this litigation, and
the risk to the class of achieving a less favorable outcome.
For these reasons, IT IS HEREBY ORDERED as follows:
A. The Court finds that the settlement agreement is fair, adequate, and reasonable and grants

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final approval to it.
B. The Court finds that payment to class counsel of $190,000 is appropriate and approves such
payment. No class members objected to this award of fees. This payment is well within the
standards established in the Tenth Circuit for payment according to the “percentage of the
fund” method. The Court has reviewed the factors set forth in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir.1974) and finds that they weigh in favor of this award of
attorney’s fees, as follows:
1. Plaintiffs’ counsel invested considerable time and labor in this case.
2. This case presented novel and difficult questions.
3. Plaintiffs’ counsel demonstrated considerable skill in litigating this case, including
addressing technical and specialized questions of law.
4. The time commitment required by this case precluded other employment by
Plaintiffs’ counsel.
5. The requested fee is commensurate with the customary fee for similar cases in the
Tenth Circuit.
6. Plaintiffs agreed to a contingency fee, and Plaintiffs’ counsel litigated this case
without remuneration and with the risk of nonpayment.
7. The complete resolution of this case a relatively short time reflects that it was
litigated in an expeditious manner.
8. Plaintiffs obtained an excellent result for the class.
9. Mr. Mattison has years of experience litigating consumer cases in New Mexico, and
has developed a reputation as a skilled and determined advocate.
10. This case was challenging and risky to litigate. It was not a “desirable” case to many

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in the legal community.
11. Plaintiffs’ counsel served throughout this litigation, creating a long-standing
professional relationship.
12. The award of attorney’s fees in this case is consistent with awards in similar cases in
the Tenth Circuit.
C. The Court finds that an award of costs of up to $35,000 is reasonable and appropriate, and
approves payment of such costs. Any unspent costs shall be distributed to class members if
economical and practicable, and to the cy pres recipients if not.
D. The Court finds that payment of a service award to named Plaintiffs William and Sammia
DeJolie in the amount of $5,000, $2,500 each, is reasonable. No class members objected to
the service award. Mr. and Mrs. DeJolie invested substantial effort in this class action, and
without their contributions, there would be no fund to distribute to class members. Mr. and
Mrs. DeJolie’s commitment was dramatically greater than it would have been had this case
been brought as an individual action.
E. Should there be any remaining settlement funds that cannot practicably and economically be
distributed to class members, the Court approves award of such funds to the following cy pres
recipients in equal shares: Equal Access to Justice, Inc., and Battered Family Services, Inc.

F. The parties are directed to implement the Settlement Agreement in accordance with its terms.
G. The release in this case is conditioned upon the payment by Defendants set forth in the
Settlement Agreement.
H. The Court retains jurisdiction over the interpretation, enforcement and implementation of
both the Settlement Agreement and this Order.
IT IS SO ORDERED.

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_________________________
Honorable Kirtan Khalsa
United States Magistrate Judge
Presiding by Consent
Submitted:
/s/Nicholas Mattison
Nicholas Mattison
Richard N. Feferman
Feferman, Warren & Mattison, attorneys for Plaintiffs
300 Central Ave., SW, Suite 2000 West
Albuquerque, NM 87102
[phone]
Approved:
Approved via email
Thomas Lynn Isaacson
Mason & Isaacson, P.A.
P.O. Box 1772
Gallup, NM 87305
[phone]
Counsel for Defendant Tancorde Finance, Inc.
Approved via email
Charles J. Vigil
Rodey, Dickason, Sloan, Akin & Robb, P.A.
P.O. Box 1888
Albuquerque, NM 87103
[phone]
Counsel for Defendant T&R Tax Service, Inc.
Approved via email
James J. Widland
Miller Stratvert P.A.
P.O. Box 25687
Albuquerque, NM 87125
[phone]
Counsel for Defendants T&R Market, Inc. and T&R Pawn, LLC

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