Kimber Baldwin Designs, LLC v. Silv Communications, Inc. et al
ORDER granting 36 Plaintiff's Motion for Final Settlement Approval. Class Counsel's motion for approval of attorneys' fees, expense reimbursement, and contribution awards 35 is GRANTED. This action and every Released Claim (including all individual claims and Class-wide claims presented thereby) is hereby DISMISSED on the merits and with prejudice, without fees or costs to any Party except as provided in the Settlement Agreement and adopted in this Order. This case is TERMINATED on the docket of this Court. Signed by Judge Timothy S. Black on 11/13/17. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
KIMBER BALDWIN DESIGNS, LLC,
Individually and on behalf of all others
Case No. 1:16-cv-448
Judge Timothy S. Black
SILV COMMUNICATIONS, INC.,
PLAINTIFF’S MOTION FOR FINAL SETTLEMENT APPROVAL (Doc. 36) AND
CLASS COUNSEL’S MOTION FOR APPROVAL OF ATTORNEYS’ FEES,
EXPENSE REIMBURSEMENT, AND CLASS REPRESENTATIVE AWARD
This civil action is before the Court on the motion of named Plaintiff Kimber
Baldwin Designs, LLC for final settlement approval (Doc. 36); Class Counsel’s motion
for attorneys’ fees, expense reimbursement, and class representative award (Doc. 35); and
the statements of counsel for both parties at the October 23, 2017 fairness hearing.
On April 4, 2016, the named Plaintiff, on behalf of itself and all others similarly
situated, commenced this civil action against Defendant Silv Communications, Inc.
Plaintiff alleges Defendant violated federal law and engaged in fraud by changing the
long-distance telephone services of various businesses without authorization.
Specifically, Plaintiff alleged Defendant engaged in an unlawful practice known as
“slamming” when it obtained recordings of employees of businesses answering “yes” to
questions related to the business name, addresses and telephone number, but then
manipulated those recordings to fabricate consent to switch to Defendant’s long-distance
telephone service. Premised on these allegations, the Complaint asserts claims for
violations of the Wire or Radio Communications Act, fraud, unjust enrichment, and Ohio
During the required Rule 26 conference, counsel for both parties agreed to request
a stay of this case to explore settlement. (Doc. 36 at 5). On January 19, 2017, the Court
granted the parties’ joint motion for a stay. The parties met three more times over the
next few months and exchanged settlement proposals by telephone and email. (Id.)
Plaintiff’s counsel requested, and received, documents from Defendant for the purpose of
evaluating liability and damages, including documents pertaining to Defendant’s
revenues, ownership structure, customers, complaints, refunds, and third-party vendors.
(Id.) The parties eventually reached an agreement, and a final version of their written
settlement agreement (“Settlement Agreement”) was executed on June 5, 2017.
The Settlement Agreement creates a $450,000 Settlement Fund for the benefit of
the Settlement Class, which is defined as:
All individuals and business in the United States that were switched to and
billed by Silv Communications, Inc. for unlimited long-distance telephone
service from January 1, 2012 to the date of the Order granting preliminary
approval of the Settlement (June 13, 2017).
(Doc. 33-1 at 3).
The Settlement Agreement is attached at Doc. 33-1 and incorporated herein by reference.
Defined terms in the Settlement Agreement have the same definitions when used in this Order.
The Settlement Fund will cover payments to Class Members, costs of notice to the
Class and administration of the settlement, reimbursement of Class Counsel’s reasonable
costs, expenses, and fees, as well as a contribution award for Plaintiff not to exceed
$5,000. (Doc. 33-1 at 3-4). Each Class Member submitting a valid claim shall receive an
equal settlement payment not to exceed $120. (Doc. 33-1 at 4). Any leftover money
shall revert to and belong to Defendant. (Id.)
On June 13, 2017, the Court granted Plaintiffs’ Unopposed Motion for Preliminary
Approval of Settlement Agreement and Order Scheduling Fairness Hearing (the
“Preliminary Approval Order”). (Doc. 34). The Preliminary Approval Order:
(1) approved of the parties’ settlement; (2) approved of the parties’ proposed settlement
notice; (3) approved of the parties’ proposed class action settlement procedure;
(4) appointed Plaintiff’s counsel as Class Counsel, and (5) scheduled a fairness hearing
for October 23, 2017 (after the close of the notice period).
Following the Court’s Preliminary Approval Order, on July 17, 2017, Defendant
provided the Settlement Administrator with a list containing the name and last known
address of each member of the Class as defined in the Settlement Agreement. (Doc. 36-2
at ¶ 6). After reviewing the list for completeness and accuracy, the Settlement
Administrator sent notice of the settlement to 24,131 class members. (Id. at ¶¶ 6-9). As
of October 4, 2017, the Settlement Administrator had received 6,428 undeliverable
notices. (Id. at ¶ 11). Of those, 50 were returned with a forwarding address, and the
Settlement Administrator remailed notices to the new address provided. (Id.) Of the
forwarded notices, only nine were returned as undeliverable. (Id.) As of October 4,
2017, the Settlement Administrator had only received three valid requests for exclusion
from the Class. (Id. at ¶ 15). As of October 4, 2017, the Settlement Administrator had
received 1,126 claim forms. (Id. at ¶ 16).
On August 22, 2017, Class Counsel filed a motion for attorneys’ fees, expense
reimbursement, and class representative contribution award. (Doc. 35). On October 9,
2017, Plaintiff filed a motion for final approval of settlement. (Doc. 36). On October 23,
2017, the Court held a fairness hearing. There were no objections at the fairness hearing.
A. The Settlement Class is appropriate for Rule 23 certification.
Plaintiff’s motion for final approval asks the Court to certify the Settlement Class
pursuant to Federal Rule of Civil Procedure 23. (Doc. 36 at 8-14). The benefits of a
settlement can be realized only through the final certification of a settlement class. Wess
v. Storey, 2011 U.S. Dist. LEXIS 41050, at * 17 (S.D. Ohio Apr. 14, 2011). The Court
maintains broad discretion in deciding whether to certify a class. Id. After consideration
of the Rule 23 factors, the Court finds it appropriate to certify the Settlement Class.
Rule 23(a)(1) requires a plaintiff to demonstrate that “the class is so numerous that
joinder of all members is impracticable.” While no specific number of class members is
required to maintain a class action, “[w]hen class size reaches substantial proportions . . .
the impracticability requirement is usually satisfied by the numbers alone.” In re Am.
Med. Sys. Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citation omitted). The Court finds the
substantial size of the Settlement Class in this case easily satisfies the numerosity
Rule 23(a)(2) requires “questions of law or fact common to the class.” This
requirement is interdependent with the impracticability of joinder requirement. In re Am.
Med. Sys., Inc., 75 F.3d at 1080. Together, these tests form the conceptual basis for class
actions. Id. The Sixth Circuit has explained:
The class-action was designed as an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties
only. Class relief is particularly appropriate when the issues involved are
common to the class as a whole and when they turn on questions of law
applicable in the same manner to each member of the class. In such cases,
the class-action device saves the resources of both the courts and the parties
by permitting an issue potentially affecting every class member to be
litigated in an economical fashion under Rule 23.
Id. at 1076 (quoting General Telephone v. Falcon, 457 U.S. 147, 155 (1982)).
Here, each Class Member’s claim raises questions of law or fact that are common
to the class, i.e. whether Defendant engaged in “slamming” and whether its conduct was
unlawful. Because questions of law and fact are common to the class, Rule 23(a)(2) is
Rule 23(a)(3) requires “the claims or defenses of the representative parties [shall
be] typical of the claims or defenses of the class.” The typicality element is designed to
assess “whether a sufficient relationship exists between the injury to the named plaintiff
and the conduct affecting the class, so that the court may properly attribute a collective
nature to the challenged conduct.” Sprague v. General Motors Corp., 133 F.3d 388, 399
(6th Cir. 1998). A plaintiff’s claim is typical if it arises from the same event or practice or
course of conduct that gives rise to the claims of other class members, and if the named
plaintiff’s claims are based on the same legal theory. In re Am. Med. Sys., Inc., 75 F.3d at
Here, the issue of whether Plaintiff was “slammed” is common to all Settlement
Class Members. By litigating this central liability issue, the Plaintiff can reasonably be
expected to advance the interests of all Class Members. Accordingly, the typicality
requirement of Rule 23(a)(3) is satisfied.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately
protect the interest of the class.” The Sixth Circuit has counseled there are two criteria
for determining this element: (1) the representatives must have common interests with the
unnamed class members, and (2) it must appear that the representatives will vigorously
prosecute the class action through qualified counsel. See Senter v. Gen. Motors Corp.,
532 F.2d 511, 524-25 (6th Cir. 1976) (citation omitted).
Here, Plaintiff and the Class Members are equally interested in obtaining
compensation from Defendant for its alleged “slamming” practices. Accordingly,
Plaintiff satisfies the first prong of the adequacy requirement. See Int’l Union, United
Auto., Aerospace & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615,
626 (6th Cir. 2007) (“Class representatives are adequate when it appears that they will
vigorously prosecute the interest of the class through qualified counsel . . . which usually
will be the case if the representatives are part of the class and possess the same interest
and suffer the same injury as the class members.”).
Further, Plaintiff is represented by qualified counsel with experience prosecuting
class actions. (See Docs. 35-2, 35-3). Accordingly, the second prong of the adequacy
requirement is met. See Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000) (noting
the second prong of Rule 23(a)(4) looks “to determine whether class counsel are
qualified, experienced and generally able to conduct the litigation.”)
5. Rule 23(b).
Not only must the four prerequisites of Rule 23(a) be met before a class can be
certified, but “the party seeking certification must also demonstrate that it falls within at
least one of the subcategories of Rule 23(b). In re Am. Med. Sys., 75 F.3d at 1079.
Plaintiff argues that it falls within Rule 23(b)(3), which states a class action may be
[T]he court finds that the questions of law or fact common to the members
of the class predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy. The matters pertinent to
these findings include:
(A) the class members’ interest in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already commenced by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
Here, common questions predominate over questions affecting only individual
members, and given the difficulties that would be inherent in managing a class as large as
the Settlement Class, the Court finds that certification is the most efficient, and the
superior, means to adjudicate the claims at issue.
For the foregoing reasons, the Court GRANTS Plaintiff’s request for final
certification of the Settlement Class.
B. The Parties’ Settlement is Fair and Reasonable.
Before a district court approves a settlement, the Court must find that the
settlement is “fair, reasonable, and adequate.” Johnson v. Midwest Logistics Sys., Ltd.,
No. 2:11-cv-1061, 2013 U.S. Dist. LEXIS 74201, at * 9 (S.D. Ohio May 24, 2013)
(citation omitted). In the Sixth Circuit, district courts consider seven factors in
determining whether a class settlement is fair, reasonable, and adequate: (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 v. Gen. Motors Corp., 497 F.3d
615, 631 (6th Cir. 2007). As set forth below, each of these factors weighs in favor of
approving the parties’ settlement.
1. The Risk of Fraud or Collusion.
The evidence before the Court is that the parties’ settlement was the result of
arm’s-length negotiations, free of collusion or fraud, conducted by experienced counsel
on both sides, and achieved over the course of several months of negotiations. (Doc. 36
at 5). Nothing before the Court suggests that the parties’ settlement is the result of fraud
2. The Complexity, Expense, and Likely Duration of the Litigation.
This factor strongly favors approval because, absent settlement, continued
litigation would entail additional discovery, including written discovery and depositions,
class certification briefing, dispositive motion briefing, and perhaps trial and appellate
proceedings. At the fairness hearing, Class Counsel stated they were particularly
concerned about the volume of digital discovery that proceeding would entail. On the
other hand, the parties’ settlement confers a tangible and immediate benefit upon the
Plaintiff and Class Members and eliminates the risk and expense associated with
continuing to prosecute claims Defendant categorically denies.
3. The Amount of Discovery Engaged in By the Parties.
Given the nature of Plaintiff’s claims, Plaintiff argues that the time and expense
required to complete discovery would be enormous. (Doc. 36 at 8). The parties
recognized that, absent an early settlement, this case would likely have consumed the
resources of all involved, potentially eliminating a recovery for Class Members. (Id.)
While this case settled relatively early, Plaintiff had sufficient time throughout several
months of negotiations to review documents produced by Defendant and assess the merits
of its case. (Doc. 36 at 5). The Court finds this factor weighs in favor of approval.
4. The Likelihood of Success on the Merits.
This factor weighs in favor of approval because Defendant categorically denies
Plaintiff’s claims. Defendant contends that Plaintiff has not suffered a cognizable harm,
and every customer who switched to its service did so voluntarily. If this case were to
continue, Plaintiff and the Class Members may not recover anything at all. By agreeing
to settlement, that risk is eliminated and participating Class Members are guaranteed to
recovery now, rather than possibly receiving recovery years from now, or not receiving
any recovery at all.
5. The Opinions of Class Counsel and Class Representatives.
Class Counsel believes that this settlement is fair, adequate and reasonable. (Doc.
33-1 at ¶ 6). Plaintiff, the Class Representative, approved of the Settlement Agreement
by signing it. (Doc. 33-1 at 15). This factor weighs in favor of approval.
6. The Reaction of Absent Class Members.
The reaction of the class strongly supports approval. The Settlement
Administrator mailed more than 24,000 notices to Class Members, but only 3 members
opted out, and no one objected to the settlement. (Doc. 36-2 at ¶¶ 9, 15; Doc. 36-3 at
For these reasons, the Court GRANTS Plaintiff’s request for final settlement
C. Fees, Expenses, and Contribution Award.
1. Class Counsel are entitled to their requested fee.
Class Counsel has requested an order approving the payment of $150,000 for
attorneys’ fees, such award representing one-third of the $450,000 Settlement Fund.
District courts may award reasonable attorneys’ fees and expenses from the
settlement of a class action upon a motion under Rules 54(d)(2) and 23(h). See Lowther
v. AK Steel Corp., No. 1:11-cv-877, 2012 U.S. Dist. LEXIS 181476, at * 2 (S.D. Ohio
Dec. 21, 2012). When assessing the reasonableness of a fee petition, district courts
engage in a two-part analysis. See In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d
752, 760 (S.D. Ohio 2007). First, the district court determines the method for calculating
fees: either the percentage of the fund approach or the lodestar approach. Id. (citation
omitted). Second, the court must analyze the six factors set forth by the Sixth Circuit in
Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974). Id.
a. The Court Adopts the Percentage Approach.
In the Sixth Circuit, district courts have the discretion to determine the appropriate
method for calculating attorneys’ fees in light of the unique characteristics of class
actions in general, and the particular circumstances of the actual cases pending before the
Court using either the percentage or lodestar approach. In re Cardinal Health Inc. Sec.
Listgs., 528 F. Supp. 2d at 761. In the Southern District of Ohio, the preferred method is
“to award a reasonable percentage of the fund, with reference to the lodestar and the
resulting multiplier.” Connectivity Sys. Inc. v. Nat’l City Bank, No. 2:08-cv-1119, 2011
U.S. Dist. LEXIS 7829, at * 34 (S.D. Ohio Jan. 26, 2011) (citation omitted).
Accordingly, the Court agrees with Defendant’s method of calculating its requested fee
as a percentage of the Settlement Fund.
b. The Ramey factors.
In reviewing the reasonableness of the requested award, the Sixth Circuit requires
district courts to consider six factors, known as the Ramey factors: (1) the value of the
benefits rendered to the class; (2) society’s stake in rewarding attorneys who produce
such benefits in order to maintain an incentive to others; (3) whether the services were
undertaken on a contingent fee basis; (4) the value of the services on an hourly basis (the
lodestar cross-check); (5) the complexity of the litigation; and (6) the professional skill
and standing of counsel on both sides. Ramey, 508 F.2d at 1196.
Here, each of these factors weighs in favor of granting the requested fee. First,
Class Counsel’s work resulted in a significant benefit, a Settlement Fund of $450,000.
The Settlement Fund exists to provide early relief to Class Members and eliminates
additional risk and expense the parties would otherwise incur if this litigation were to
Second, there is a benefit to society in ensuring that small claimants may pool
their claims and resources, and attorneys who take on class action cases enable this. See
Moore v. Aerotek, Inc., Case No. 2:15-cv-2701, 2:15-cv-1066, 2017 U.S. Dist. LEXIS
102621, at * 26 (S.D. Ohio June 30, 2017) (citation omitted). In this case, Class
Counsel’s effort resulted in a tangible reward for the Class Members. Many of the Class
Members would not have been able or willing to pursue their claim individually, and
many would likely not even be aware they had a claim against Defendant. Id. Society
has a stake in rewarding attorneys who achieve a result that the individual class members
probably could not obtain on their own. Id. (citation omitted).
Third, despite the risks associated with prosecuting this case, Class Counsel took
this case solely on a contingency fee basis and were prepared to make an investment with
the very real possibility of an unsuccessful outcome and no fee at all. (Doc. 35-2 at ¶ 8).
Further, Class Counsel have advanced all costs incurred in this case, and have not
received any compensation for the work they have performed thus far. (Id.) This factor
weighs in favor of granting the requested fee. See Gentrup v. Renovo Servs., Case No.
1:07-cv-430, 2011 U.S. Dist. LEXIS 67887, at * 14 (S.D. Ohio June 24, 2011) (finding
the fact that plaintiffs’ counsel had made “significant investments of time and [had]
advanced costs but [had] received no compensation in this matter” weighed in favor of
granting the requested fee).
Fourth, a lodestar cross-check, while unnecessary, also supports Class Counsel’s
fee request. Under the lodestsar calculation, the Court multiplies the number of hours
reasonably expended on the litigation by a reasonable hourly rate. See Gascho v. Global
Fitness Holdings, LLC, 822 F.3d 269, 279 (6th Cir. 2015) (citation omitted). The Court
then has the discretion to enhance the lodestar with a separate multiplier than can serve as
a means to account for the risk an attorney assumes in undertaking a case, the quality of
the attorney’s work product, and the public benefit achieved. Id. at 279, 280. Here, as of
August 15, 2017, Class Counsel had expended 476.5 hours prosecuting this action,
which, at their customary billing rates, provides a cumulative lodestar of $206,757,
significantly more than the requested fee. Dividing the amount they seek ($150,000) by
the lodestar results in a negative multiplier (-.73), which demonstrates that the fee sought
is reasonable. See Walls v. JP Morgan Chase Bank, N.A., Case No. 3:11-cv-673-DJH,
2016 U.S. Dist. LEXIS 142325, at * 8 (W.D. Ky. Oct. 13, 2016).
Fifth, this case involves numerous complex factual questions pertaining to
Plaintiff’s “slamming” allegations, as well as nuanced legal issues. Class Counsel
already successfully defeated Defendant’s motion to dismiss, which involved significant
legal argument. This factor weighs in favor of granting the requested fee.
Sixth, and finally, Plaintiff and Defendant are represented by highly experienced
counsel. All counsel are highly qualified, and they all have substantial experience in
federal courts and class action litigation. (See Doc. 33-1 at 20, 24).
For these reasons, the Court determines Class Counsel’s requested fee is
reasonable, and GRANTS Class Counsel’s request for a fee of $150,000.
2. Class Counsel are entitled to reimbursement of expenses.
Under the common fund doctrine, Class Counsel is entitled to reimbursement of
all reasonable out-of-pocket litigation expenses and costs in the prosecution of claims and
in obtaining settlement. See In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 535
(E.D. Mich. 2003). Expense awards are customary when litigants have created a
common settlement fund for the benefit of a class. Id. (quotation omitted).
Here, Class Counsel seek $1,527.77 in out-of-pocket litigation expenses. (Doc.
35-1 at 16-17). There are no objections to Class Counsel’s request. Upon review, all of
Class Counsel’s expenses were reasonable and necessary in connection with litigating
and resolving this case and are therefore reimbursable. (See Docs. 35-2, 35-3).
Accordingly, the Court GRANTS Class Counsel’s request for $1,527.77 for expense
3. Plaintiff is entitled to a Contribution Award.
Pursuant to the terms of the Settlement Agreement, Plaintiff requests a class
representative contribution award of $5,000 for services rendered on behalf of the Class,
including providing continuing assistance to Class Counsel. Courts typically authorize
contribution awards (or “incentive” awards) to class representatives for their often
extensive involvement with a lawsuit. See Estep v. Blackwell, Case No. 1:06-cv-106,
2006 U.S. Dist. LEXIS 89360, at * 15 (S.D. Ohio Nov. 29, 2006) (citations omitted).
Such compensation to the named plaintiff is typically justified where the named plaintiffs
expend time and effort beyond that of the other class members in assisting class counsel
with the litigation, such as by actively reviewing the case and advising counsel in the
prosecution of the case. In re S. Ohio Corr. Facility, 175 F.R.D. 270, 273 (S.D. Ohio
Here, Plaintiff met with Class Counsel prior to the filing of the case, carefully
reviewed the Complaint and Amended Complaint, met with Class Counsel to discuss the
ongoing litigation, and reviewed (and ultimately approved) settlement terms. (Doc. 35-4
at ¶¶ 6-9). At the fairness hearing, Class Counsel represented that Plaintiff also produced
relevant documents and interviewed employees related to this action. The Court finds
Plaintiff has spent time and effort beyond that of other class members, and GRANTS
Plaintiff’s request for a $5,000 contribution award.
For the foregoing reasons:
1. Plaintiff’s motion for final settlement approval (Doc. 36) is GRANTED.
2. Class Counsel’s motion for approval of attorneys’ fees, expense
reimbursement, and contribution awards (Doc. 35) is GRANTED.
3. The Court certifies the following Settlement Class: All individuals and
businesses in the United States that were switched to and billed by Silv
Communications, Inc. for unlimited long-distance service from January 1,
2012 to the date of the Order [June 13, 2017] granting preliminary approval of
the Settlement. Excluded from the Settlement Class are Defendant, any
directors, officers or employees of Defendant and the Judge(s) to whom this
case is assigned or any other judicial officer having responsibility for this case.
4. Each and every member of the Class except for Excluded Class Members
(defined herein as: those members of the Class who validly and timely
excluded themselves from the Settlement) is and shall be forever bound by the
Settlement Agreement. The Settlement Agreement shall be preclusive in all
pending and future lawsuits or other proceedings. It shall be binding as to all
the Released Claims in accordance with Section 8 of the Settlement Agreement
which provides as follows:
8. Release by Plaintiff and the Settlement Classes. Upon
Finality of Judgment in accordance with section 18 of this
Agreement, Plaintiff, the Class Members, and their related
individuals and entities, including but not limited to
Plaintiff’s and Class Members’ past and present officers, past
and present directors, past and present trustees, past and
present shareholders, past and present employees, spouses
and former spouses, and their present, former, and future
respective administrators, agents, assigns, trustees, attorneys,
executors, heirs, partners, predecessors-in-interest, successors
and any person or entity claiming now or in the future by,
through or on behalf of any Class Member (collectively, the
“Releasing Parties”), shall be deemed to have fully, finally,
and forever completely and unconditionally released, waived,
discharged, and relinquished all claims, rights, actions and
causes of action of any kind whatsoever, whether based on
common law or any federal or state statute, rule, regulation,
debts, accounts, promises, warranties, liens, damages
including but not limited to compensatory and punitive
damages, agreements, costs, expenses, claims or demands
whatsoever, in law or equity or other law or right of action,
foreseen or unforeseen, matured or unmatured, asserted or
unasserted, known or unknown, accrued or not accrued,
suspected or unsuspected, fixed or contingent, and whether or
not concealed or hidden that said Member of the Classes
have, had, or may have individually, representatively, or
derivatively or in any other capacity arising out of or related
to, directly or indirectly, the facts, circumstances, events or
claims alleged in the Amended Complaint or that could have
been alleged in the Amended Complaint against any of the
Released Parties and shall have covenanted not to sue any
such Released Party with respect to any such claims, and shall
be permanently barred and enjoined from instituting,
commencing, or prosecuting any such claims against any of
the following Released Parties:
Silv Communications, Inc., its subsidiaries and parent
companies, and any past and present officer, any past and
present director, any past and present trustee, any past and
present shareholder, and any past and present employee of
Silv Communications, Inc.
Billing Services Group, 7411 John Smith Drive, Suite
1500, San Antonio, TX 78229; Fortune InfoTech, R-5 Nehru
Enclave, Aliganj Lucknow, India; and Seone Network,
2A/329 Shree Tower, Flat No 402, Azad Nagar Kanpur
5. The Parties and their counsel shall further implement and consummate the
Settlement Agreement, the terms and provisions of which are incorporated by
reference into this Order. No later than thirty (30) days after the Effective
Date, i.e., when Finality is achieved, Defendant shall transfer $110,000 (the
remaining amount due to fully fund the settlement) by wire to the Settlement
Administrator. The Settlement Administrator shall then issue payment to the
Members of the Class who submitted timely claims, the Contribution Award
and the Attorneys’ Fees and Costs. The Settlement Administrator shall also
pay the cost of Settlement Administration.
6. Within thirty (30) days of the payment of the above monies, the Settlement
Administrator shall submit to Class Counsel and to Defense Counsel a final
general accounting of all expenditures paid from the Settlement Fund, which
Class Counsel shall then provide to the Court. The Settlement Administrator
shall then return any remaining balance of the Settlement Fund to Defendant,
by issuing a check for the same to Defendant’s counsel within thirty (30) days
of submission of the final general accounting to the Court.
7. The Release and Covenant Not to Sue are incorporated into this Order and
shall become effective when Finality is achieved. Accordingly, each and every
Member of the Class except Excluded Class Members hereby compromises,
settles, and releases each and every Released Claim against the Releasees, as
set forth in the Release.
8. This action and every Released Claim (including all individual claims and
Class-wide claims presented thereby) is hereby DISMISSED on the merits and
with prejudice, without fees or costs to any Party except as provided in the
Settlement Agreement and adopted in this Order.
9. Without affecting the finality of this Order for purposes of appeal, the Court
retains jurisdiction as to all matters relating to the administration,
implementation, consummation, enforcement, and interpretation of this
Settlement Agreement and this Order, and for any other necessary purpose.
10. Class Counsel and the Settlement Administrator shall return any un-cashed
settlement payments to Defendant by issuing a check for same to Defendant’s
11. This Order adjudicates all of the claims, rights and liabilities of the Parties to
the Settlement, and is intended to be final and immediately appealable.
12. The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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