Vassalle et al v. Midland Funding LLC et al
MEMORANDUM OPINION granting Joint Motion for order approving class-action settlement (Related Doc # 258 ); granting Class Counsel's Motion for attorney's fees (Related Doc # 259 ). Judge David A. Katz on 10/14/14.(G,C)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
MARTHA VASSALLE, et al.,
Case No. 3:11-cv-00096
Hon. David A. Katz
-vsMIDLAND FUNDING, LLC, et. al.,
On November 27, 2013, this Court granted preliminary approval to the revised
nationwide class settlement in three related cases: Midland Funding v. Brent (No. 3:08-cv1434), Franklin v. Midland Funding (No. 3:10-cv-00091), and Vassalle v. Midland Funding (No.
3:11-cv-00096). Case No. 3:11-cv-00096 (“Vassalle Dkt.”), Dkt. No. 229 at 2-3. As part of its
order preliminarily approving the settlement, the Court provisionally certified a nationwide class
of persons who had been sued by Defendants Midland Funding LLC, Midland Credit
Management, Inc., Encore Capital Group, Inc., and related entities (collectively, “Midland”)
between January 1, 2005 and March 11, 2011 in any debt-collection lawsuit in any court where
an affidavit attesting to facts about the underlying debt was used by Midland in connection with
the debt-collection lawsuit. Id. at 1. The Court appointed as Class Counsel the law firm of
Murray & Murray, counsel for Andrea Brent, Martha Vassalle, Jerome Johnson, and Hope
Franklin, the Named Plaintiffs in these suits, and approved the proposed form of notice to the
class. Id. at 2.
This matter is now before the Court on the joint motion of Named Plaintiffs and
Defendants for an order finally approving the class-action settlement they have reached
(Vassalle Dkt. No. 258), and Class Counsel’s motion for an award of attorney’s fees (Vassalle
Dkt. No. 259). The Court held a fairness hearing regarding the proposed revised settlement
pursuant to Federal Rule of Civil Procedure 23(e)(2) on May 15, 2014. Ian Lyngklip and
Thomas Domonoske, counsel for Objectors Elaine Pelzer, Guler Probst, Raul Osorio, Diane
Frederick, and Patricia Mitchell (collectively, the “Pelzer Objectors”), appeared and were heard.
No other objectors or amici appeared at the hearing.
This settlement has been the subject of voluminous briefing, including submissions on
the effect of the Sixth Circuit’s opinion rejecting the prior settlement and the value of class
members’ potential state-law claims, the parties’ motions for preliminary and final approval and
the objectors’ oppositions thereto, post-hearing briefing submitted by the parties and objectors,
the parties’ proposed findings of fact and conclusions of law, and the Pelzer Objectors’
objections thereto. The Court has carefully reviewed all of these memoranda, and, for the
following reasons, finds that the settlement satisfies the requirements of Federal Rule of Civil
Procedure 23 and that the objections to the settlement should be overruled. The motions should
be granted and the settlement should be approved.
FINDINGS OF FACT.
The Original Settlement And Sixth Circuit Opinion.
On March 11, 2011 this Court granted preliminary approval to the
nationwide class settlement in the above-designated related cases. Case No. 3:08cv-1434 (“Brent Dkt.”), Dkt. No. 111 (the “Original Settlement”). Among other
things, the Original Settlement required Midland to pay $5.2 million and stipulate
to injunctive relief that included revising its affidavit practices under the
supervision of a Court-appointed Special Master. After significant briefing and a
Fairness Hearing, the Court issued a Memorandum Opinion and Judgment on
August 12, 2011 approving the Original Settlement. Brent Dkt. No. 164 (the
“August 12, 2011 Opinion”).
Thereafter, the matter was appealed to the Sixth Circuit Court of
Appeals by three objectors (Robert Clawson, Kelli Gray, and Elaine Pelzer). In
an opinion issued February 26, 2013, the Sixth Circuit reversed this Court’s order
approving the settlement, vacated the judgment certifying the nationwide
settlement class and the award of attorney’s fees, and remanded the case to this
Court for further proceedings consistent with that opinion.
See Vassalle v.
Midland Funding, LLC, 708 F.3d 747 (6th Cir. 2013).
The Court of Appeals’ opinion, in short summary, found several
reasons to reverse this Court’s holding approving the original Settlement
Agreement. The opinion states that this Court “did not abuse its discretion” in
determining that the settlement satisfied all seven of the fairness factors under
International Union, United Automobile, Aerospace, and Agricultural Implement
Workers of America v. General Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007)
Vassalle, 708 F.3d at 755.
However, the panel found that the
settlement was nonetheless unfair because it “gives preferential treatment to the
named plaintiffs while only perfunctory relief to unnamed class members.” Id.
(internal quotation marks and citation omitted). In particular, the panel found the
original settlement to be unfair because the named plaintiffs received $8,000 to be
split among them, as well as debt relief, while the absent class members received
a monetary payment and were precluded from challenging Midland’s affidavits in
court, “virtually assuring that Midland will be able to collect on these debts.” Id.
at 755-56 & n.1.
In addition, although the Sixth Circuit found that the settlement
class satisfied four of the six requirements for certification under Rule 23, it held
that the class representatives were inadequate because the release of their debts
meant they did not share the “the unnamed class members’ most important
interest — the ability to use the false affidavits against Midland to contest their
debts in court.” Vassalle, 708 F.3d at 757. The panel also held that the class did
not satisfy Rule 23(b)(3)’s superiority requirement. Id. at 757-58. The panel
explained that evaluating superiority requires balancing various considerations,
and it held that the “majority” of considerations weighed in favor of superiority
— i.e., most class members had limited resources, the case was “far more
procedurally advanced” than the competing cases, and the threshold issue of
Midland’s liability was common to all class members. Id. at 758. However, the
panel found that two additional considerations “tilt the scales” in favor of finding
that a class action was not superior.
The first and most important
consideration was that a class action would deprive class members of their
“strongest interest,” which was their interest in “individually controlling the
defense of Midland’s state court judgments against them.” Id. The second factor
weighing against a class was that “class members could have collected damages
under state law claims that would exceed the value” of the settlement. Id.
The Sixth Circuit also found the class notice did not satisfy due
process because it did not inform class members that the release would bar them
from seeking to vacate judgments based on the faulty affidavits which, the Court
reiterated, was “[t]he unnamed class members’ greatest interest.” Vassalle, 708
F.3d at 759.
Proceedings In This Court During The Pendency Of The Appeal And Upon
The Implementation Of The Stipulated Injunction.
The Original Settlement included a stipulated injunction
mandating that Midland create and implement procedures for the generation and
use of affidavits in debt-collection lawsuits, which “shall be reasonably assured to
prevent the use of affidavits in debt collection lawsuits where the affiant does not
have personal knowledge of the facts set forth in the affidavit.” Brent Dkt. No.
107-1 at 9. It also provided that former federal judge Richard McQuade would
be appointed as Special Master to monitor Midland’s compliance with the
injunction and “make findings as to whether [Midland’s] Affidavit Procedures are
reasonably assured to prevent the use of affidavits in debt collection lawsuits
where the affiant does not have personal knowledge of the facts set forth in the
affidavit.” Id. at 9-10. The injunction was effected by an order of this Court
entered on August 12, 2011. Neither the settling parties nor the objectors sought
a stay of the injunction pending the Sixth Circuit appeal.
Accordingly, on October 6, 2011, this Court appointed Judge
McQuade as Special Master to “[c]onduct a review of the Defendants’ Affidavit
Procedures . . . , including making findings as to whether the Affidavit Procedures
are reasonably assured to prevent the use of affidavits in debt collection lawsuits
where the affiant does not have personal knowledge of the facts set forth in the
affidavit.” Vassalle Dkt. No. 173 at 2-3. In a subsequent order, the Court stated,
“Defendants shall advise the Special Master of the forms of the affidavits to be
employed by Defendants and the legal authority therefore; . . . . Thereafter the
Special Master shall make findings as to the sufficiency of the forms of the
affidavits.” Vassalle Dkt. No. 174.
On January 19, 2012, the Court issued an order requiring Midland
to file a motion seeking approval of its affidavit procedures, and setting a hearing
on the motion for April 17, 2012. Vassalle Dkt. No. 174. This order provided the
date, time and address of the hearing, and was received by all of the objectors and
amici through the Court’s electronic docket notifications. See id. None of the
objectors or amici appeared at the hearing or objected to the proceedings.
On April 25, 2012, Judge McQuade issued an order setting forth a
list of criteria that Midland’s affidavits would be required to satisfy. Vassalle
Dkt. No. 186 at 4-6. That order set a further hearing to occur on May 21, 2012.
Id. at 7. Again, no objectors or amici appeared at the hearing or indicated any
disagreement with Judge McQuade’s requirements.
At the two hearings, Judge McQuade and Class Counsel
questioned Midland’s executives and a legal specialist at length. See Vassalle
Dkt. No. 204 at 3-4. On July 5, 2012, Judge McQuade issued an order criticizing
the language in a number of Midland’s affidavits and ordered them to be revised.
Vassalle Dkt. No. 190. On August 3, 2012, the Special Master issued another
order criticizing Midland for resisting some of his changes to the affidavit
language. Vassalle Dkt. No. 193. Further briefing regarding affidavit language
occurred over the next month.
Class Counsel was a vigorous advocate for
consumers throughout the entire process, reviewing the affidavits and seeking
additional changes to ensure that consumers were not misled. E.g., Vassalle Dkt.
Nos. 199, 201. Charles Delbaum of the National Consumer Law Center, who
represents former objector Clawson as well as the plaintiffs in a competing class
action in California, filed objections to Midland’s proposed affidavit language as
well, which were considered by the Special Master. Vassalle Dkt. No. 200.
On October 2, 2012, Judge McQuade issued an order resolving the
parties’ disputes regarding certain language contained in Midland’s affidavits,
and ordered Midland to submit a set of revised affidavits for his review. Vassalle
Dkt. No. 203. Judge McQuade issued detailed findings of fact and conclusions of
law approving Midland’s affidavit processes and forms on November 16, 2012.
Vassalle Dkt. No. 204. No objections were filed.
Additional Proceedings Involving The Objectors.
After this case was remanded from the Sixth Circuit, Midland and
Class Counsel resumed negotiations in order to revise the settlement to comport
with the Sixth Circuit’s mandate.
The District Court held several status
conferences, which included Objectors’ counsel, for the purpose of discussing
whether the settlement agreement could be revised and, if so, what form the
revisions should take. See, e.g., Vassalle Dkt. Nos. 209-11, 213-15.
Objectors refused to identify any terms on which they would consider a
nationwide settlement acceptable. Because one issue that remained was whether
the class members’ potential individual state-law claims were so valuable as to
preclude class certification, the Court ordered the parties and objectors to submit
briefing as to the value of any such state-law claims. See Vassalle Dkt. Nos. 216,
220, 224-25. The Court has thoroughly reviewed and considered this briefing.
The Revised Settlement.
This matter is now before this Court on joint motions of the named
Plaintiffs and Defendants for approval of the Revised Class Action Settlement
Agreement (hereinafter the “Revised Agreement”).
This Court preliminarily approved the proposed Revised
Agreement as being within the range of fairness and reasonableness required in
such matters. Vassalle Dkt. No. 229. At the same time the Court certified the
All natural persons (a) sued in the name of Encore Capital Group, inc., Midland
Funding LLC, Midland Credit Management, Inc., or any other Encore and/or
Midland-related entity (collectively, “Midland”), (b) between January 1, 2005 and
March 11, 2011, (c) in any debt-collection lawsuit in any court (d) where an
affidavit attesting to facts about the underlying debt was used by Midland in
connection with the debt-collection lawsuit.
The Revised Settlement contains revisions that were designed to
address the Sixth Circuit’s concerns. Instead of $8,000 and debt relief, the class
representatives will receive $1,000 each pursuant to 15 U.S.C. § 1692k(a)(2)(B),
and their debts will not be released. In addition, the release has been modified
and now contains an express exemption allowing individual class members to
attempt to seek relief from a judgment in Midland’s favor on the ground that an
affidavit filed in the underlying debt-collection action was executed by a person
who lacked personal knowledge of the facts stated in the affidavit; provided,
however, that the action seeking such relief may not be a class action, may not
seek relief on behalf of two or more judgment-debtors, and may not seek any
relief other than vacatur of the judgment; however, if permissible under
applicable law return of any money paid on the judgment may be sought.
Settlement Agt., § V.D.
The Revised Settlement also contains a stipulated injunction
which, among other things, requires Midland to use affidavit procedures and
language consistent with Judge McQuade’s orders for a period of at least five (5)
years. Settlement Agt., § V.C.2
17. The class administrator, Class Action Administration (“CAA”), caused a copy of
the notice and claim form to be sent by first-class mail to the last known postal
address of each class member, as updated through the U.S. Postal Service change
of address service. A postage-paid Claim Form, included in the mailing, was
used to file a claim or opt out of the settlement. A copy of the Class Notice was
also published in USA Today on Wednesday, January 29, 2014, and Thursday,
January 30, 2014. The costs of this second-round notice and administration were
paid by Midland and did not reduce the class fund.
18. Among other things, the notice specifically advises Class Members that if the
Settlement is approved, they will give Midland a release, which “means you can’t
sue or be part of any other lawsuit against Defendants . . . about the claims or
issues in this lawsuit.” The notice goes on to explain: “The release in this case
prevents you from filing a lawsuit or counterclaim where you claim that
Defendants, Defendants’ affiliated companies, and/or Defendants’ agents or
attorneys, filed an affidavit in a debt-collection lawsuit where the affidavit was
executed by a person who lacked personal knowledge of the facts stated in the
19. The notice also advises class members: “If you exclude yourself from the class,
you may be able to bring a lawsuit under state or federal law that could entitle you
to more than the amount you will receive if you elect to receive your share of the
Settlement Fund. There is no guarantee that such a suit would be successful, or
that you would receive anything at all.” Additionally, the notice makes clear that
class members retain the right to seek to vacate Midland’s judgments against
them individually, and that they are not precluded from raising any defenses in
pending debt-collection litigation with Midland.
20. Of the approximately 1.4 million class members, more than 133,000 filed claims
as of the April 14, 2014 deadline.
Only 1,890 class members opted out,
representing approximately 0.1% of the class. A list of class members who
elected to opt out was submitted by the parties.
Vassalle Dkt. No. 273.
Additionally, only 13 class members objected to the settlement, which is less than
.001% of the class.
21. Two of the three objectors who opposed the original settlement – Kelli Gray and
Robert Clawson – have not objected to the revised settlement. Mr. Clawson’s
counsel, Charles Delbaum of National Consumer Law Center, filed an application
seeking $225,000 in fees for his contributions to the Revised Settlement. Vassalle
Dkt. No. 250.
22. Elaine Pelzer continues to object to the settlement, and has been joined in her
objections by Guler Probst, Raul Osorio, Diane Frederick, and Patricia Mitchell.
In written objections, the Pelzer Objectors argued, among other things, that Pelzer
and Probst should be added as class representatives, and that their counsel, Ian
Lyngklip, should replace Murray & Murray as counsel for the nationwide class.
Vassalle Dkt. No. 245. Pelzer’s counsel also filed an application seeking $35,000
in fees for his contributions to the Revised Settlement. Vassalle Dkt. No. 251.
23. The Court held a final approval hearing on May 15, 2014. See Vassalle Dkt. No.
266. Pelzer’s counsel appeared and was heard, as was his co-counsel. No other
objectors or amici appeared at the hearing.
CONCLUSIONS OF LAW.
The Class Settlement Is Fair, Reasonable, And Adequate.
It is axiomatic that the settlement of class-action litigation is favored. Robinson v. Shelby
Cnty. Bd. of Educ., 566 F.3d 642, 648 (6th Cir. 2009); see also Isby v. Bayh, 75 F.3d 1191, 1196
(7th Cir. 1996) (“Federal courts naturally favor the settlement of class action litigation.”);
ALBERT CONTE & HERBERT NEWBERG, NEWBERG
CLASS ACTIONS § 11.41 (4th ed. 2002)
(“NEWBERG”) (“By their very nature, because of the uncertainties of outcome, difficulties of
proof, length of litigation, class action suits lend themselves readily to compromise.”). In
evaluating settlements, such as this one, courts have recognized that complex litigation is
“notoriously difficult and unpredictable.” Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203,
1205 (6th Cir. 1992) (quoting Maher v. Zapata Corp., 714 F.2d 436, 455 (5th Cir. 1983)).
“Absent evidence of fraud or collusion, such settlements are not to be trifled with.” Granada,
962 F.2d at 1205.
A class-action settlement should be approved if the court determines that the settlement is
“fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); UAW, 497 F.3d at 631. Courts within
the Sixth Circuit must consider the following factors to determine whether this standard is met:
“(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of the
litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on
the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent
class members; and (7) the public interest.” UAW, 497 F.3d at 631; see also Vassalle, 708 F.3d
at 754. Additionally, a settlement can be rejected if it “gives preferential treatment to the named
plaintiffs while only perfunctory relief to unnamed class members.” Vassalle, 708 F.3d at 755
(internal quotation marks and citation omitted); In re Dry Max Pampers Litig., 724 F.3d 713,
718 (6th Cir. 2013).
Ultimately, “the court’s intrusion upon what is otherwise a private consensual agreement
negotiated between the parties to a [class-action] lawsuit must be limited to the extent necessary
to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by,
or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair,
reasonable and adequate to all concerned.” Officers for Justice v. Civil Serv. Comm’n, 688 F.2d
615, 625 (9th Cir. 1982). As the Sixth Circuit has held: “Our task is not to decide whether one
side is right or even whether one side has the better of these arguments. Otherwise, we would be
compelled to defeat the purpose of a settlement in order to approve a settlement. The question
rather is whether the parties are using settlement to resolve a legitimate legal and factual
disagreement.” UAW, 497 F.3d at 632. In making that determination, the trial court has “broad
discretion” and is not required to “conduct a full evidentiary hearing with live testimony and
cross-examination before approving a settlement.” Id. at 636; Officers for Justice, 688 F.2d at
625 (fairness hearing should not be turned into a trial on the merits).
In the August 12, 2011 Opinion approving the Original Settlement, this Court found that
all seven UAW factors favored approving the settlement – i.e., there was no fraud or collusion;
the likely complexity, expense, and duration of the litigation favored settlement; there was
substantial discovery; the class relief was fair in light of the class’s likelihood of success on the
merits; class counsel and the class representatives supported the settlement; the reaction of
absent class members favored approval; and the settlement is in the public interest. Brent Dkt.
No. 164 at 24-31. In its review of the order approving the Original Settlement, the Sixth Circuit
found no abuse of discretion in this Court’s analysis of the seven UAW factors. Vassalle, 708
F.3d at 755. Accordingly, the sections of the August 12, 2011 Opinion addressing the seven
UAW factors are incorporated herein by reference.
With respect to the “preferential treatment” factor, in reviewing the Revised Agreement,
this Court finds that it does not grant preferential treatment to the class representatives. Instead
of the class representatives receiving a total of $8,000, that amount has been reduced to $1,000
each pursuant to 15 U.S.C. § 1692k(a)(2)(B). The Pelzer Objectors do not object to this amount
as exorbitant or unfair. Moreover, the class representatives’ debts are no longer being released,
so they are on the same footing in this regard as the absent class members. Accordingly, this
factor now weighs in favor of approving the settlement.
To the extent that the Objectors contend that the settlement should not be approved
because the payment per class member of approximately $18.75 is “perfunctory,” they have
misunderstood the law. The “preferential treatment” test looks to the relationship between the
relief to the class representatives and the relief to the absent class members. Vassalle, 708 F.3d
at 755 (“such inequities in treatment make a settlement unfair”); see also In re Dry Max
Pampers Litig., 724 F.3d at 718 (citing Vassalle and explaining that the rule against “preferential
treatment” ensures that the settlement benefits are fairly allocated among the named plaintiffs,
the absent class members, and class counsel). It is not a bar on class settlements that yield a perclass member payment below a certain threshold. The Court has considered the question of
whether the settlement payment of $5.2 million here is fair in light of the class’s likelihood of
success on the merits and potential recovery, and has concluded that it is, irrespective of the fact
that the per-class member payment is not a windfall for the absent class members. See Brent
Dkt. No. 164 at 9.
Certification Of The Settlement Class.
Under Rule 23(a), a class must satisfy the requirements of numerosity, commonality,
typicality, and adequacy of representation. Fed. R. Civ. P. 23(a); Vassalle, 708 F.3d at 756.
Where, as here, certification is sought under Rule 23(b)(3), the class must satisfy the additional
requirements of superiority and predominance. Fed. R. Civ. P. 23(b)(3); Vassalle, 708 F.3d at
756. In its review of the Court’s Memorandum Opinion approving the original settlement, the
Sixth Circuit held that the requirements of numerosity, commonality, and typicality were
satisfied under Rule 23(a). See 708 F.3d at 756. The Sixth Circuit also held that the settlement
class satisfied the predominance requirement of Rule 23(b)(3). Id. Accordingly, the sections of
the August 12, 2011 Opinion addressing these requirements are incorporated by reference herein.
The remaining requirements are addressed below.
The final requirement of Rule 23(a) is that the proposed class representatives “will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit
applies a two-prong test to determine whether this requirement is met: (1) the representatives
must have common interests with the unnamed members of the class, and (2) it must appear that
the representatives will vigorously prosecute the interests of the class through qualified counsel.
Vassalle, 708 F.3d at 757. In addition, the Court reviews “whether class counsel are qualified,
experienced, and generally able to conduct the litigation,” and “consider[s] whether the class
members have interests that are not antagonistic to one another.” Id. (internal quotation marks
and citation omitted).
Here, all of the factors are satisfied. The class representatives share common interests
with the unnamed class members in that they all share a desire to obtain monetary and injunctive
relief from Midland. Vassalle, 708 F.3d at 757. The class representatives and class counsel
have vigorously pursued these interests by prosecuting this action and obtaining a settlement that
provides substantial monetary and injunctive relief. Settlement Agt., § V.D. Additionally, the
Sixth Circuit has held that the unnamed class members’ “most important interest” in this case is
“the ability to use the false affidavits against Midland to contest their debts in court.” Vassalle,
708 F.3d at 757. The class representatives have vigorously pursued this interest by obtaining an
exception to the class release permitting class members to use the defective affidavits to
challenge Midland’s judgments against them, and permitting class members to challenge the
defective affidavits in ongoing debt-collection litigation.
Settlement Agt., § V.D.
undisputed that class counsel here is “qualified, experienced, and generally able to conduct the
litigation.” Vassalle, 708 F.3d at 757 (internal quotation marks and citation omitted). Finally,
the class representatives have no interests that are antagonistic to the class because their debts
are not being released by the settlement, so the settlement leaves them in exactly the same
position as the absent class members. See id.
The Pelzer Objectors contend that the class representatives are inadequate because none
of them have an interest in having his or her judgment vacated. This contention is without merit.
Vassalle and Johnson both have judgments against them and therefore have an interest in having
those judgments vacated. See Vassalle Dkt. No. 1 ¶ 9. Moreover, Vassalle and Johnson actually
have a heightened interest in having their judgments vacated because they have paid money to
Midland to satisfy the judgments, and vacatur could potentially entitle them to the return of that
money. See id. ¶¶ 23, 28. In any event, the release the class representatives negotiated allows
class members to seek vacatur of the judgments against them, so they have preserved this option
for the class regardless of whether they themselves intend to, or need to, avail themselves of it.
In determining whether a class action satisfies the superiority requirement, the court may
look to the following factors: (1) the interest of members of the class in individually controlling
the prosecution or defense of separate actions; (2) the existence of pending litigation concerning
the same controversy; (3) the desirability of concentrating the litigation of claims in this forum;
and (4) the difficulties likely to be encountered in the management of a class action. Vassalle,
708 F.3d at 757-58. Additionally, “[w]here it is not economically feasible to obtain relief within
the traditional framework of a multiplicity of small individual suits for damages, aggrieved
persons may be without any effective redress unless they may employ the class-action device.”
Id. at 758 (alteration in original) (internal quotation marks and citations omitted). Moreover,
“[w]here many individual inquiries are necessary, a class action is not a superior form of
adjudication. However, where a threshold issue is common to all class members, class litigation
is greatly preferred.” Id. (alteration in original, internal quotation marks and citation omitted).
Finally, if class members are unaware of the violation and unlikely to elect to bring individual
lawsuits, this weighs in favor of finding a class action superior. Id.
The considerations here weigh in favor of superiority. First, there is a strong interest in
resolving these claims in a single class action because most class members have limited
resources. Vassalle, 708 F.3d at 758. Second, since the threshold issue of Midland’s liability is
common to all class members, a class action will not be difficult to manage. Id. Third, this case
is “far more procedurally advanced” than the other actions bringing similar claims. Id. Fourth,
the likelihood that class members will bring individual lawsuits is remote, as evidenced by the
fact that “class members here are surely aware of the judgments against them,” yet very few
class members have filed individual lawsuits. See id. Fifth, any class member who wishes to
pursue an individual recovery is free to opt out of the class. See In re Whirlpool Front-Loading
Washer Prods. Liab. Litig., 722 F.3d 838, 861 (6th Cir. 2013); Murray v. GMAC Mortg. Corp.,
434 F.3d 948, 953 (7th Cir. 2006) (“When a few class members’ injuries prove to be substantial,
they may opt out and litigate independently.”); Chakejian v. Equifax Info. Servs., LLC, 256
F.R.D. 492, 500 (E.D. Pa. 2009) (same).
Importantly, the issue that caused the Sixth Circuit to find that a class action was not
superior when it considered the Original Settlement is no longer present. The Sixth Circuit
found superiority lacking because “[t]he interest of the unnamed class members in individually
controlling the defense of Midland’s state court judgments against them is their strongest
interest.” Vassalle, 708 F.3d at 758. The Revised Settlement preserves the class members’
ability to “individually control” the defense of Midland’s state-court judgments by excluding
individual motions or actions to vacate judgments from the release, and by clarifying that the
release does not prevent class members from challenging Midland’s affidavits or raising any
defense in ongoing debt-collection litigation. Settlement Agt., § V.D.
In addition, the Court has thoroughly considered the briefing by the parties and Objectors
with respect to the state-law theories that the Objectors claim are applicable (Vassalle Dkt. Nos.
216, 220, 224-25), and concludes that the potential recoveries available to class members are not
so great as to render individual lawsuits superior to a class action. By way of example, the
Pelzer Objectors point to a Michigan statute that they claim would allow class members to
recover $50-$150 each in an action brought under state law. See Vassalle Dkt. No. 220 at 10. A
potential recovery of $50-$150 to a plaintiff who prevails on his claim is not sufficient to render
individual actions superior to a class action. Individual plaintiffs asserting FDCPA claims can
recover statutory damages of $1,000 each, yet the Sixth Circuit has held that FDCPA claims can
proceed as class actions even where use of the class device results in class members receiving
substantially less than $1,000 each. See Carroll v. United Compucred Collections, Inc., 399
F.3d 620, 625-26 (6th Cir. 2005).
Finally, class members who wish to assert state-law claims are free to opt out of the
class. See In re Whirlpool, 722 F.3d at 861. Indeed, the class notice expressly informs class
members that “if you exclude yourself from the Class, you may be able to bring a lawsuit under
state or federal law that could entitle you to more than the amount you will receive if you elect to
receive your share of the Settlement Fund. There is no guarantee that such a suit would be
successful, or that you would receive anything at all.”
For the foregoing reasons, the settlement class satisfies the requirements for class
certification under Rule 23(b)(3).
Notice To The Class
Due process requires the class notice to be “‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’” Vassalle, 708 F.3d at 759 (quoting UAW, 497 F.3d at
629)). Due process, however, “does not require the notice to set forth every ground on which
class members might object to the settlement.”
Id. (internal quotation marks and citation
omitted). Rather, “[a]ll that the notice must do is fairly apprise the prospective members of the
class of the terms of the proposed settlement so that class members may come to their own
conclusions about whether the settlement serves their interests.” Id. (alteration in original,
internal quotation marks and citation omitted).
Dissemination of the Notice
There is no statutory or due-process requirement that all class members receive actual
notice by mail or other means; rather, “individual notice must be provided to those class
members who are identifiable through reasonable effort.” Eisen v. Carlisle & Jacqueline, 417
U.S. 156, 175 (1974). Rule 23(e) gives the Court “virtually complete” discretion as to the
manner of service of settlement notice. See Franks v. Kroger Co., 649 F.2d 1216, 1222-23 (6th
Cir. 1981). Here, notice was disseminated via individual mailing to all Class Members identified
in the customer data files of Midland, and also by publication. This constitutes the best notice
practicable under the circumstances, and fully complies with and satisfies the notice
requirements of Rule 23. As the highest standard of notice, notice here easily satisfies the dueprocess requirement as well.
Contents of the Notice
A settlement notice is a summary, not a complete source of information. See, e.g.,
Vassalle, 708 F.3d at 759. The Class Notice reasonably apprises the Class Members of the
nature and pendency of the Class Action and the Class claims; of all the material elements of the
proposed settlement, including, but not limited to, the definition of the Class; the relief available
under the proposed settlement and steps necessary to obtain the relief; the right, time and manner
to exclude themselves from, or object to, the settlement; of the identity of Class Counsel and of
information necessary to communicate with Class Counsel; that additional information is
available from the Settlement Administrator, Class Action Administration; Class Counsel’s
intent to apply for a fee award in the amount of $1,500,000; and of the right to appear at the
Fairness Hearing, including through an attorney. The notice also informs class members they
can receive more information from the settlement website, www.BrentSettlement.com. On the
website, class members can view summary information about the Revised Settlement, and can
access the complete settlement agreement and other court documents, including the Sixth
Circuit’s opinion in Vassalle.
The notice specifically advises Class Members that if the Settlement is approved, they
will give Midland a release, which “means you can’t sue or be part of any other lawsuit against
Defendants . . . about the claims or issues in this lawsuit.” The notice goes on to explain: “The
release in this case prevents you from filing a lawsuit or counterclaim where you claim that
Defendants, Defendants’ affiliated companies, and/or Defendants’ agents or attorneys, filed an
affidavit in a debt-collection lawsuit where the affidavit was executed by a person who lacked
personal knowledge of the facts stated in the affidavit.”
The notice also specifically advises class members: “If you exclude yourself from the
class, you may be able to bring a lawsuit under state or federal law that could entitle you to more
than the amount you will receive if you elect to receive your share of the Settlement Fund.
There is no guarantee that such a suit would be successful, or that you would receive anything at
all.” Additionally, the notice makes clear that class members retain the right to seek to vacate
Midland’s judgments against them individually, and that they are not precluded from raising any
defenses in pending debt-collection litigation with Midland. The notice satisfies due process and
the requirements of Rule 23. In addition, the notice requirements of the Class Action Fairness
Act, 28 U.S.C. § 1715, have been met.
The attorneys’ fees for class counsel remain in the same amount of $1,500,000 and are
reasonable, particularly in light of the length and breadth of this matter. Motions for attorneys’
fees filed by Mr. Clawson’s counsel, Charles Delbaum of the National Consumer Law Center
(Vassalle Dkt. No. 250) and the Pelzer Objectors for their counsel, Ian Lyngklip (Vassalle Dkt.
No. 251), will be addressed separately by this Court. Should any fees be awarded, they will not
come from the common fund and will not reduce the amount to be distributed to Class Members.
The Court concludes that final approval of the settlement of this class-action litigation is
warranted as outlined hereinabove.
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?