Monty J. Booth, Attorney at Law, P.S. v. AppStack, Inc.

Filing 164

FINAL APPROVAL ORDER AND FINAL JUDGMENT by Judge James L. Robart. (PM)

Case 2:13-cv-01533-JLR

Document 160-1 Filed 12/28/16 Page 1of6

THE HONORABLE JAMES L. ROBART
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON
MONTY J. BOOTH, ATTORNEY AT LAW,
P.S., a Washington corporation, RICARDO T.
MASCARENAS, a Washington resident, and
CHRISTOPHER GREGORY, a Washington
resident, individually and on behalf of all others
similarly situated,

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·[PROPOSED) FINAL APPROVAL
ORDER AND FINAL JUDGMENT

Plaintiffs,

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NO. 2:13-cv-01533-JLR

vs.
APPSTACK, INC., a Delaware corporation;
STEVE ESPINOSA, individually; and JOHN
ZDANOWSKI, individually,
Defendants.

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'WHEREAS, on August 29, 2016, the Court entered an order ("Preliminary Approval

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Order") preliminarily approving the proposed Settlement Agreement and Release

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("Agreement") and directed that notice be given to the Settlement Class (Dkt. No. 153);

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WHEREAS, pursuant to the notice requirements set forth in the Agreement and

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Prelimina1y Approval Order, the Settlement Class was notified of the terms of the proposed

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Agreement, of the right of members of the Settlement Class to opt-out, and of the right of

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members of the Settlement Class to object and be heard at a Final Approval Hearing to

TERREL L MARS HALL

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT- I
CAS ENO. 2: 11-CV-0 I025-MJP

LA\\' GRO UP PLLC

938 North 34th Street. Suite 400
SeatUe, Washington 98103-8869
TEL. [phone] • FAX [phone]

www.tmdwlaw.com

Case 2:13-cv-01533-JLR

Document 160-1 Filed 12/28/16 Page 2 of 6

determine whether the terms and conditions of the Agreement are fair, reasonable and adequate

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for the release of the claims contemplated by the Agreement; and w hether judgment should be

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entered dismissing this Action with prejudice;

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WHEREAS, a Final Approval Hearing was held on Wednesday, January 11, 2017 at

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2:00 pm. Prior to the Final Approval Hearing, all memoranda and declarations in suppo11 of

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the Agreement, which include proof of compliance with the provisions of the Agreement and

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Preliminary Approval Order relating to notice, were filed with the Com1 as prescribed in the

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Preliminary Approval Order. Settlement Class Members were therefore notified of their right

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to appear at the Final Approval Hearing in suppo11 of or in opposition to the proposed

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settlement, the award of attorneys' fees and costs to Class Counsel, and the payment of the

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service awards to Class Representatives.

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NOW, THEREFORE, the Cou11 having heard the presentation of Class Counsel and

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counsel for Appstack, Inc., Steve Espinosa, and John Zdanowski, having reviewed all of the

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submissions presented with respect to the proposed Settlement, having determined that the

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settlement is fair, adequate and reasonable, having considered Class Counsel ' s motion for

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awards of attorneys' fees and costs and service (also called "incentive") awards for the Class

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Representatives, and having reviewed the materials in suppo11 thereof, and good cause

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appeanng;

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THIS COURT FINDS AND CONCLUDES AS FOLLO\VS:

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1.

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The capitalized terms used in this Final Approval Order and Judgment shall

have the same meaning as defined in the Agreement, except as may otherwise be ordered.

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The Co mt has jurisdiction over the subject matter of this Action and over all

claims raised therein and all Parties thereto, including the Settlement Class.
3.

The Cow1 hereby approves the Agreement, including the plans for

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implementation and distribution of the settlement relief, and finds that the Agreement is, in all

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respects, fair, reasonable and adequate to the Settlement Class Members, within the authority of

TERR ELL MARSHA LL LA\\' GRO UP PLLC

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT-2
C ASE NO. 2:1 l-CV-01025-MJP

936 North 34th Street. Suite 400
Seattle, Washington 98103-8869
TEL. [phone] • FAX [phone]
l;l.nvWl.tmdw1
aw.com

Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 3 of 6

the paities and the result of extensive a1m's length negotiations. The Pai1ies shall effectuate the
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Agreement in accordance with its te1ms. The Agreement and every tenn and provision thereof

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shall be deemed incorporated herein as if explicitly set fo11h and shall have the full force of an

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Order of this Court.

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4.

Only two Settlement Class members, Oscar Riestra and Trevelyan Fugere d/b/a

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PDR Paintless Dent Removal, opted out of the Settlement Class. No Settlement Class members

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filed objections.

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5.

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Judgment, shall include members of the Settlement Class who did not submit timely and valid
requests to be excluded.
6.

All persons or entities in the United States who, on or after four
years before the filing of this action to July 21, 2016, received a
call to their cellular telephone line with a pre-recorded message,
made by or on behalf of Defendants.

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For purposes of the Agreement and this Final Approval Order and Judgment, the

Com1 hereby certifies the following Settlement Class:

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The Settlement Class, which will be bound by this Final Approval Order and

The Settlement Class does not include any persons who validly request exclusion.

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The Com1 finds that the plan for Settlement Notice, set forth in A11icle VII of

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the Agreement and effectuated pursuant to the Preliminary Approval Order, was the best notice

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practicable under the circumstances and provided due and sufficient notice to the Settlement

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Class of the pendency of the Action, ce1tification of the Settlement Class for settlement

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purposes only, the existence and tenns of the Agreement, and the Final Approval Hearing, and

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satisfies the Federal Rules of Civil Procedure, the United States Constitution, the requirements

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set fo11h in In Re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 20 l 0), and

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any other applicable law.

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8.

The Agreement, is in all respects fair, reasonable, and adequate, is in the best

interests of the Settlement Class, and is therefore approved.

TERRELL MARSllALL

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT-3
C ASE NO. 2:1 l-CV-01025-MJP

LA\\' GRO UP PLLC

936 North 34th Street, Suite 400
Seattle, Washington 98103-8869
TEL. [phone] • FAX [phone]

www.tmdwlaw.com

Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 4 of 6

9.

All persons who have not made their objections to the settlement in the manner

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provided in the Agreement are deemed to have waived any objections by appeal, collateral

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attack, or otherwise.

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Within the time period set forth in Article VIII of the Agreement, settlement

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payments shall be issued to each Settlement Class Member who submitted timely and valid

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claim forms, under the te1ms and conditions of the Agreement.

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Upon the Effective Date, members of the Settlement Class who did not validly

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and timely opt-out shall have, by operation of this Final Approval Order and Judgment, forever

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released, resolved, relinquished, and discharged the Released Parties from any claims that calls

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placed on Defendants' behalf before the date the Final Approval Order is entered violated the

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cell phone provisions of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(l)(A).

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12.

This Final Approval Order and Judgment, the Agreement, the settlement which

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it reflects, and any and all acts, statements, documents or proceedings relating to the settlement

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are not, and shall not be construed as, or used as an admission by or against Defendants of any

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fault, wrongdoing, or liability on their part or of the existence or amount of any damages.

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13.

The payments ordered herein shall be made in the manner and at the times set

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forth in the Agreement. Any amounts remaining in the Settlement Fund after the deadline to

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cash checks has expired shall be disbursed to the Legal Foundation of Washington.

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14.

The Com1 hereby grants Class
S l.Ll~ . lc, c . co
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l's request for an award of reasonable
,

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attorneys' fees in the amount of£;~73 ,750 and liti ation costs in the amount of $133,003 . The

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Cou11 fm1her grants Class Counsel's application for an Incentive Award for Class

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Representatives Ricardo T. Mascarenas and Christopher Gregory in the amount of $2,500 each

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($5,000 total).

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15.

The above-captioned Action is hereby dismissed in its entirety with prejudice.

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Except as otherwise provided in this Final Approval Order and Judgment, the pai1ies shall bear

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their own costs and attorneys' fees. Without affecting the finality of the Judgment hereby

TERRELL MAl~SHALL LAW GRO UP PLLC

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT-4
C ASE N O. 2:1 l-CV-01025-MJP

936 North 341 Slreet. Suite 400
h
Seattle, Washington 98103-8869
TEL. [phone] • FAX [phone]

www.tmdwlaw.com

Case 2:13-cv-01533-JLR

Document 160-1 Filed 12/28116 Page 5 of 6

entered, the Coutt reserves jmisdiction over the implementation of the Agreement, including

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enforcement and administration of the Agreement.

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IT IS SO ORDERED.

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Dated this ~ day of _:....L!~.IL:::!~,---~:=...1

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TrnRELL MARSllALL

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT-5
C ASE N O. 2:1 l-CV-01025-MJP

LA\\' Gnou r PLLC

936 North 34th Street. Suite 400
Seattle. Washington 98103·8869
TEL. [phone] • FAX [phone]

www.tmdwlaw.com

Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 6 of 6

CERTIFICATE OF SERVICE

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I, Jennifer Rust Mtmay, hereby ce1tify that on December 28, 20 16, l electronically filed
the foregoing with the Clerk of the Court using the CM/ECF system which will send

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notification of such filing to the following:

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Anne Cohen, WSBA #41183
Email: [e-mail]
Joseph A. Rohner IV, WSBA#4 7117
Email: jrohner@ smithfreed.com
Legal Assistant: Sandra Reust
Email: [e-mail]
Legal Assistant: Kimberly Harmon
Email: [e-mail]
SMITH FREED & EBERHARD, P .C.
111 SW 5th Avenue, Suite 4300
Po1tland, Oregon 97204
Telephone: [phone]
Facsimile: [phone]

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Attorneys for D efendants
DATED this 28th day of December, 2016.
TERRELL MARSHALL LAW GROUP PLLC

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By:
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/s/ Jennifer Rust MuITay. WSBA #36983
Jennifer Rust MmTay, WSBA #36983
Email: [e-mail]
936 N01t h 34th Street, Su ite 300
Seattle, Washington 98103
Telephone: [phone]
Facsimile: [phone]

Attorney for Plaintiffs

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TERRELL MARSHALL LA\\" GRO UP PLLC

[PROPOSED] FINAL APPROVAL ORDER AND FINAL
JUDGMENT-6
CASE NO. 2: 11-CV-0 I 025-MJP

936 North 341h Street. Suite 400
Seattle. Washington 98103-8869
TEL. [phone] • FAX [phone]

www.tmdwtaw.com