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Beth E. Terrell, WSBA #26759 Erika L. Nusser, WSBA #40854 Blythe H. Chandler, WSBA #43387 Attorneys for Plaintiffs TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected] Email: [email protected] Email: [email protected] [Additional Counsel Appear on Signature Page]
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
WODENA CAVNAR, ROSALINE TERRILL, LINDA PARKS, DAVID SCOTT, ANGELINA FREITAS, REBECCA LYON and MARESA KENDRICK, on their own behalf and on the behalf of all others similarly situated,
Plaintiffs,
v.
BOUNCEBACK, INC., a Missouri Corporation, CHECK CONNECTION, INC., a Kansas corporation, STONE FENCE HOLDINGS, INC., a Missouri corporation, and GALE KRIEG, Defendants.
NO. 2:14-cv-00235-RMP PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION
Note on Motion Calendar: 4/11/16 Without Oral Argument
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TABLE OF CONTENTS
Page No.
I. INTRODUCTION ......................................................................................... 1 II. STATEMENT OF FACTS ............................................................................ 2 A. Plaintiffs allege that Defendants engaged in unfair and
deceptive debt collection practices ...................................................... 2 B. The parties engaged in substantial discovery and motion
work ..................................................................................................... 3 C. The parties engaged in arm’s length settlement negotiations
with the assistance of an experienced mediator .................................. 5 D. The terms of the proposed settlement ................................................. 7 1. The proposed Settlement Class ................................................. 7 2. The settlement relief ................................................................. 8 a. Plaintiffs’ incentive and statutory damage awards ......... 8 b. Attorneys’ fees and litigation expenses .......................... 9 c. Administration costs ..................................................... 10 d. Settlement payments ..................................................... 10 3. The notice program ................................................................. 11 III. ARGUMENT AND AUTHORITY ............................................................ 12 A. The proposed settlement is reasonable .............................................. 12
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B. The criteria for preliminary approval of the settlement are satisfied .............................................................................................. 14
1. The Settlement Agreement is the product of serious, informed, and non-collusive negotiations ............................... 15
2. The settlement provides substantial relief to the
Settlement Class and treats all Settlement Class members fairly ........................................................................ 17
3. The Settlement Agreement is fair and reasonable in
light of the alleged claims and the Defendants’ financial condition .................................................................. 20
4. Continued litigation is likely to be complex, lengthy,
and expensive .......................................................................... 22 5. The stage of the proceedings and the amount of
discovery completed supports preliminary approval .............. 22 C. Plaintiffs’ counsel’s requested fees are reasonable ........................... 23 D. The requested incentive awards are reasonable ................................ 26 E. The proposed notice program is constitutionally sound ................... 27 F. Provisional certification of the class is appropriate .......................... 30 1. The Rule 23(a) factors are met ............................................... 31 a. Numerosity ................................................................... 31 b. Commonality ................................................................ 31 c. Typicality ...................................................................... 31 d. Adequacy ...................................................................... 32
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2. The Rule 23(b)(3) factors are satisfied ................................... 33 G. Scheduling a final approval hearing is appropriate ........................... 34 IV. CONCLUSION ........................................................................................... 36
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TABLE OF AUTHORITIES
Page No.
FEDERAL CASES
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................. 33, 34
Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589 (E.D. Cal. 1999) ................................................................. 34 Class Plaintiffs v. City of Seattle,
955 F.2d 1268 (9th Cir. 1992) ..................................................................... 13 Ellis v. Costco Wholesale Corp.,
657 F.3d 970 (9th Cir. 2011) ....................................................................... 32 Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998) ...................................... 13, 15, 16, 31, 32, 33 Hanon v. Dataprods. Corp.,
976 F.2d 497 (9th Cir. 1992) ....................................................................... 32 Hunt v. Check Recovery Sys., Inc.,
241 F.R.D. 505 (N.D. Cal. 2007) ................................................................ 34 In re Bluetooth Headset Prods. Liab. Litig.,
654 F.3d 935 (9th Cir. 2010) ................................................................. 16, 24 In re Mego Fin. Corp. Sec. Litig.,
213 F.3d 454 (9th Cir. 2001) ....................................................................... 18 In re Mercury Interactive Corp. Sec. Litig.,
618 F.3d 988 (9th Cir. 2010) ....................................................................... 24 In re Omnivision Tech., Inc.,
559 F. Supp. 2d 1036 (N.D. Cal. 2008) ....................................................... 19
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In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015) ..................................................... 15, 26, 27, 33
Keele v. Wexler,
149 F.3d 589 (7th Cir. 1998) ....................................................................... 34 Landfried v. Spokane Cnty.,
No. CV-09-360-EFS, 2011 WL 1584328 (E.D. Wash. Apr. 27, 2011) ...... 21 Officers for Justice v. Civil Serv. Comm’n,
688 F.2d 615 (9th Cir.1982) ........................................................................ 18 Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) .................................................................................... 29 Rinky Dink, Inc. v. World Bus. Lenders,
No. 2:14-cv-0268-JCC (W.D. Wash. Feb. 3, 2016) .................................... 19 Rodriguez v. W. Publ’g Corp.,
563 F.3d 948 (9th Cir. 2009) ................................................................. 18, 27 Six (6) Mexican Workers v. Arizona Citrus Growers,
904 F.2d 1301 (9th Cir. 1990) ............................................................... 24, 25 Suchanek v. Sturm Foods, Inc.,
764 F.3d 750 (7th Cir. 2014) ....................................................................... 31 Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) ..................................................................... 24 Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011) ................................................................................. 31
FEDERAL STATUTES
15 U.S.C. § 1692k(a)(1) ......................................................................................... 18 15 U.S.C. § 1692p .................................................................................................. 21
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STATE STATUTES
RCW 19.86.090 ..................................................................................................... 18
FEDERAL RULES
Fed. R. Civ. P. 23(a)(1) .......................................................................................... 31 Fed. R. Civ. P. 23(a)(4) .......................................................................................... 32 Fed. R. Civ. P. 23(e) ........................................................................................ 13, 27
OTHER AUTHORITIES
Manual for Complex Litigation (Fourth) §§ 21.632 – 21.634 (2014) ........................................................ 13, 14, 15, 27 William B. Rubenstein, Newberg on Class Actions § 13.1
(5th ed. updated 2015) ................................................................................. 13
William B. Rubenstein, Newberg on Class Actions § 13.13 (5th ed. updated 2015) ................................................................................. 14
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I. INTRODUCTION
After over a year and a half of hard-fought litigation, the parties have
reached a proposed class wide settlement of this case and a related action pending
in the Northern District of California.1 The proposed settlement creates a
common fund of $530,000, which was based on the combined available coverage
of the Defendants’ two insurance policies as more fully set forth at Paragraph 9 of
the Declaration of Sarah Crabtree supporting this motion. All Settlement Class
Members for whom the parties have a deliverable address will receive a cash
payment from the common fund. They do not need to submit a claim to receive
an award. The common fund also will be used to pay (1) all costs associated with
administration of the settlement, which are capped at $28,000, (2) individual
awards to the named Plaintiffs in the amount of $2,000 each as approved by the
Court, and (3) $243,185.97 in requested attorneys’ fees and litigation expenses as
approved by the Court. If the Court approves these requests, approximately
$244,813 will be used to make Settlement Awards to class members. Plaintiffs’
counsel estimate that each of the more than 11,000 Settlement Class members
will receive a cash award of between $5 and $270.
1 An executed copy of the Settlement Agreement is attached as Exhibit 1 to the
Declaration of Beth Terrell (hereinafter “Settlement Agreement”).
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The settlement fund is significantly smaller than the amount Plaintiffs
could have obtained had they successfully litigated the cases to judgment. Due to
the Defendants’ precarious financial condition, however, it would have been
almost impossible to collect on such judgments. Only after carefully examining
(1) documents produced by the Defendants showing their precarious financial
situation, and (2) the terms of Defendants’ applicable insurance policies did
Plaintiffs’ counsel agree to settle the case based on the combined available
coverage of the two insurance policies as more fully set forth at Paragraph 9 of
the Declaration of Sarah Crabtree. Declaration of Sarah Crabtree in support of
Preliminary and Final Reasonableness Hearing Approving Class Action
Settlement (“Crabtree Decl.”) ¶ 9. By doing so, Plaintiffs and their counsel have
ensured that members of the proposed class timely receive certain compensation
for the unauthorized fees Defendants demanded and collected.
Defendants do not oppose Plaintiffs’ request that the Court preliminarily
approve the Settlement and provisionally certify the proposed Settlement Class.
II. STATEMENT OF FACTS
A. Plaintiffs allege that Defendants engaged in unfair and deceptive debt collection practices.
On July 18, 2014, Plaintiffs Cavnar, Terrill, and Parks initiated this action
against Defendants BounceBack, Inc., Stone Fence Holdings, Inc., and Gale
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Krieg (ECF No. 1) (“Washington Action”). Plaintiffs allege that Defendants
contracted with county prosecutors to send letters on prosecutor letterhead
demanding payment of “restitution” for checks that were dishonored upon
presentment, plus significant fees. ECF No. 45 ¶¶ 1.1–1.6. Plaintiffs allege that
the letters are false and deceptive under both state and federal law, and the fees
Defendants demand and collect from check writers are not authorized by law. Id.
Plaintiffs filed a First Amended Complaint on May 29, 2015 (ECF No. 45) adding
Plaintiff Scott as a party.
On August 3, 2015, Angelina Freitas, Rebecca Lyon, and Maresa Kendrick
initiated a lawsuit captioned Freitas et al. v. BounceBack, Inc. et al., No.
15-CV-03560-RS (N.D. Cal.), against Defendants BounceBack, Inc., Stone Fence
Holdings, Inc., Check Connection, Inc., and Gale Krieg in the United States
District Court for the Northern District of California (“California Action”).
Plaintiffs filed their First Amended Complaint in the California Action on
October 23, 2015. The allegations in the California Action are nearly identical to
the allegations in the Washington Action.
B. The parties engaged in substantial discovery and motion work.
The parties engaged in extensive first party and third-party discovery
relevant to those claims. Declaration of Beth Terrell in Support of Plaintiffs’
Unopposed Motion for Preliminary Approval of Settlement (“Terrell Decl.”) ¶ 3.
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Plaintiffs’ counsel propounded public records requests to fourteen Washington
counties and nine California counties. Id. Defendants produced documents and
data, which Plaintiffs’ counsel diligently reviewed. Id. ¶ 4. The Defendants
produced more than 25,500 pages of documents responsive to Plaintiffs’
discovery requests in the two actions, including thousands of pages relevant to the
California action. Id. In addition, Plaintiffs pursued third party discovery from
seventeen different entities, including merchants who refer checks to the
Defendants and county prosecutors. Id. ¶ 5.
The parties also engaged in substantial motion work. The parties briefed
Defendants’ motion for partial summary judgment in the Washington Action,
which the Court denied (ECF No. 73). After determining that Defendants’ initial
discovery responses in the Washington Action were deficient, Plaintiffs prevailed
on a motion to compel discovery responses (ECF No. 74). Plaintiffs filed a
motion for class certification, which was fully briefed and pending at the time this
case settled. (ECF Nos. 55, 75, 78, 80, 99, 104, 108). Plaintiffs relied on key
portions of the significant evidentiary record in this matter in support of their
motion for class certification (see ECF Nos. 55, 80).
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C. The parties engaged in arm’s length settlement negotiations with the assistance of an experienced mediator.
The parties to both the Washington Action and the California Action
negotiated a global, class wide Settlement Agreement that resolves all claims in
both matters. As part of the Settlement Agreement, the parties agreed to file a
Second Amended Complaint in this Court that combines all parties and claims in
both the Washington Action and the California Action (collectively, the
“Action”). Settlement Agreement § I.5.
During settlement negotiations, the Defendants emphasized that they would
not be able to pay a judgment of the size Plaintiffs’ counsel believed they could
obtain on behalf of Plaintiffs and the proposed classes. Terrell Decl. ¶ 6.
Plaintiffs’ counsel were confident that they had strong claims on the merits and
would be able to certify a class. Id. However, they pragmatically considered
Defendants’ position and realistically considered the risk that the class would
receive nothing even if Plaintiffs prevailed on the merits. Id. Therefore,
Plaintiffs’ counsel insisted that they receive documents regarding Defendants’
insurance coverage and confirming Defendants’ financial insolvency, which
Defendants provided. Id.
First, Plaintiffs’ counsel carefully considered the terms of Defendants’
insurance policies. As set forth in the declaration prepared by Ms. Crabtree, there
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are two insurance policies available to potentially pay claims of the members of
the proposed classes. Crabtree Decl. ¶¶ 3–4. The two insurance policies limit
coverage for claims made as part of a class action lawsuit to $1,100,000. Id. In
addition, the policies provide wasting coverage, meaning that they have been
depleted by the costs of providing the Defendants with a defense in these actions.
Id. ¶¶ 3–4, 6–7. Finally, the policies specifically preclude coverage in the event
that any of the Defendants are found to be engaged in debt collection. Id.
¶¶ 3-58, 8. Plaintiffs’ counsel independently reviewed the insurance agreements
and reached the same conclusions as Ms. Crabtree regarding their coverage.
Terrell Decl. ¶ 7.
Second, Plaintiffs’ counsel scrutinized financial documents provided by
Defendants, showing the corporate defendants’ liabilities exceed their income and
that Mr. Krieg’s personal assets are limited as well. Terrell Decl. ¶ 8. For
example, BounceBack’s Profit and Loss sheet for 2014 reflects a $129,000 deficit
in net income. Id., Ex. B. Plaintiffs’ counsel also reviewed Mr. Krieg’s personal
tax returns for the years 2010–2014 and did independent research into his assets.
Terrell Decl. ¶ 9.
Plaintiffs’ counsel concluded that apart from limited insurance funds,
Defendants have no assets to satisfy a judgment. Terrell Decl. ¶ 10. If Plaintiffs
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continued to litigate this case to judgment Defendants almost certainly would
declare bankruptcy leaving no funds for the class. Id.
D. The terms of the proposed settlement.
1. The proposed Settlement Class.
The proposed Settlement Class is comprised of all persons who: (a) were
sent one or more Letters bearing the name, seal, or letterhead of any prosecuting
attorney in Washington, from July 18, 2013 to November 30, 2015; or (b) were
sent one or more Letters bearing the name, seal, or letterhead of any prosecuting
attorney in Washington, from July 18, 2010 to November 30, 2015 and who paid
any of Defendants’ Fees; or (c) were sent one or more Letters bearing the name,
seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San
Benito, Sutter, or Yuba County, California from August 3, 2014 to November 30,
2015; or (d) were sent one or more Letters bearing the name, seal, or letterhead of
any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba
County, California from August 3, 2011 to November 30, 2015 and who paid any
of Defendants’ Fees; and appear on the Settlement Class List. Settlement
Agreement § II.19.
Settlement Class Members include members of the Settlement Class that do
not opt-out from the action. Settlement Agreement § II.21. Defendants’ records
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confirm there are approximately 11,938 Settlement Class members. Terrell Decl.
¶ 11.
2. The settlement relief.
The Settlement Agreement requires Defendants to pay a total of $530,000
as consideration for the settlement. Settlement Agreement § IV.1. This payment
will create a “Settlement Fund” that will cover all of the following, as approved
by the Court: payments to Settlement Class members; payments to Plaintiffs’
counsel in the requested amounts of $230,071 in fees and $13,114.97 in costs;
payments to the class administrator for notice and settlement administration costs
in an amount capped at $28,000; and incentive and statutory damage awards to
Plaintiffs in the amount of $2,000 each. Id. §§ V.1–2. If any amounts remain in
the Settlement Fund as a result of uncashed checks, Plaintiffs’ counsel will ask
that the Court award those funds to Plaintiffs’ counsel as reasonable attorney’s
fees. Id. § V.3. Any funds not so disbursed will be disbursed “cy pres” to the
Northwest Consumer Law Center. Id. § V.4.
a. Plaintiffs’ incentive and statutory damage awards.
If approved by the Court, Plaintiffs will each receive a total incentive and
statutory damage award of $2,000. This award includes an incentive award of
$1,000 and a statutory damages award of $1,000 under 15 U.S.C. § 1692k(a)(2).
Settlement Agreement § V.1. These awards will compensate Plaintiffs for their
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time and effort serving as class representatives and for the risks they undertook in
prosecuting the case. See Declaration of Paul Arons in support of Motion for
Preliminary Approval of Class Action Settlement (“Arons Decl.”) ¶ 3. The
awards will be paid from the Settlement Fund.
b. Attorneys’ fees and litigation expenses.
The Settlement Agreement provides that in connection with obtaining
preliminary and final approval of the Settlement Agreement, Plaintiffs’ counsel
will request an award of attorneys’ fees to be paid from the Settlement Fund.
Plaintiffs’ counsel intend to request that the Court approve as reasonable the total
lodestar amount of their fees. However, Plaintiffs’ counsel will seek an initial
payment from the Settlement Fund of $230,071.45, which is less than half of their
total lodestar. Id. § V.2.; Terrell Decl. ¶ 15; Arons Decl. ¶ 7; see also Declaration
of Karl Olson in support of Plaintiffs’ Motion for Preliminary Approval of Class
Action Settlement (“Olsen Decl.”), Ex. A. Plaintiffs’ counsel will also seek
reimbursement of their out-of-pocket litigation expenses in the amount of
$13,114.97. Terrell Decl. ¶¶ 27–28.
Plaintiffs’ counsel will also request that the Court award them any
unclaimed funds that remain in the Settlement Fund after all Settlement Award
checks have been cashed or voided, provided that the award of unclaimed funds
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would not result in a total payment to Plaintiffs’ counsel that exceeds the lodestar
amount approved as reasonable by the Court. Settlement Agreement § V.3.
The enforceability of the settlement is not contingent on Court approval of
an award of attorneys’ fees and costs. Settlement Agreement § V.5.
c. Administration costs.
Plaintiffs’ counsel have retained experienced claims administrator
Kurtzman Carson Consultants (“KCC”) to administer the settlement. Terrell
Decl. ¶ 29. KCC estimates it will cost approximately $28,000 to issue notice,
establish and maintain a settlement website, administer the settlement, and issue
checks to all members of the Settlement Class who are eligible for a Settlement
Award. Id. KCC has agreed to cap class administration costs at $28,000.
d. Settlement payments.
The remainder of the Settlement Fund will be distributed to members of the
Settlement Class in accord with the distribution plan agreed to by the parties. See
Settlement Agreement §§ IV.2. The Settlement Class Members who received
letters from the Defendants within the one year statute of limitations for the
FDCPA but who did not pay any fees to Defendants will receive a statutory
damages award of $5. Id. § IV.2.a. The remainder of the Settlement Fund
allocated to class member payments will be distributed to Settlement Class
Members in pro rata amounts based on the total amount of Defendants’ Fees the
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Settlement Class Member paid. Id. § IV.2.b. Defendants’ Fees are payments to
the Defendants that exceed the amount of the check(s) that was allegedly written
by a Settlement Class member and dishonored upon presentment. Id. § II.4.
Plaintiffs’ counsel estimate that each Settlement Class Member who paid fees will
receive at least fourteen percent (14%) of those fees. Id. § IV.2.b. Assuming the
Court grants the requested attorneys’ fees, litigation expenses, and notice and
settlement administration fees, this will result in settlement payments ranging
from $5 to $270.2 Terrell Decl. ¶ 30. Settlement Class Members do not have to
submit a claim form to receive an award. If the settlement is approved, KCC will
simply mail a check to every Settlement Class Member with a deliverable mailing
address. Settlement Agreement § IV.2.d.
3. The notice program.
In conjunction with preliminary approval, Plaintiffs respectfully ask the
Court to approve a notice program, which KCC will administer by (1) correcting
Settlement Class address information provided by Defendants using the National
Change of Address database; (2) mailing the Postcard Notice to all members of
the Settlement Class (Settlement Agreement, Ex. C); (3) setting up and
2 Any Settlement Class Member whose award would otherwise be less than $5
will receive a check for $5. Settlement Agreement § IV.2.c.
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maintaining the settlement website (Settlement Agreement, Ex. E3); (4)
processing and tracking any opt-outs from Settlement Class members; and (5)
calculating and issuing Settlement Awards. Settlement Agreement §§ VII.1–3.
Settlement Class Members will have sixty days from the date of initial
mailing of the Postcard Notice to submit a written request to be excluded from the
Settlement Class. Settlement Agreement §§ II.10; IX.1. Settlement Class
Members will also have sixty days from the date of initial mailing to object to the
settlement. Id. §§ II.9; X.1.
The class administrator will calculate the settlement awards for Settlement
Class Members and issue checks within thirty days of the settlement’s “Effective
Date,” which is the date the Court has entered a final judgment order and all
appeals have been resolved. See id. §§ II.4; IV.2.d.
III. ARGUMENT AND AUTHORITY
A. The proposed settlement is reasonable.
As a matter of “express public policy,” federal courts strongly favor and
encourage settlements, particularly in class actions and other complex matters,
where the inherent costs, delays, and risks of continued litigation might otherwise
3 The content of the Settlement Website will be based on the Long Form Notice
agreed to by the parties.
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overwhelm any potential benefit the class could hope to obtain. See Class
Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (noting the
“strong judicial policy that favors settlements, particularly where complex class
action litigation is concerned”); see also William B. Rubenstein, Newberg on
Class Actions (“Newberg”) § 13.1 (5th ed. updated 2015) (citing cases). Federal
Rule of Civil Procedure Rule 23(e) governs the Court’s review of a proposed
class action settlement in order to ensure that it is fair, adequate, and reasonable.
Fed. R. Civ. P. 23(e); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.
1998).
The Manual for Complex Litigation describes a three-step procedure for
approval of class action settlements: (1) preliminary approval of the proposed
settlement; (2) dissemination of notice of the settlement to all affected class
members; and (3) a “fairness hearing” or “final approval hearing,” at which class
members may be heard regarding the settlement, and at which evidence and
argument concerning the fairness, adequacy, and reasonableness of the settlement
may be presented. Manual for Complex Litigation (Fourth) (“MCL 4th”)
§§ 21.632 – 21.634, at 432–34 (2014). This procedure safeguards class members’
due process rights and enables the court to fulfill its role as the guardian of class
interests. See Newberg § 13.1.
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With this motion, the parties request the Court take the first step in the
settlement approval process by granting preliminary approval of the Settlement
Agreement and directing notice to the Settlement Class. The purpose of
preliminary evaluation of proposed class action settlements is to determine
whether the settlement “is within the range of possible approval” and thus
whether notice to the class of the settlement’s terms and the scheduling of a
formal fairness hearing is worthwhile. Newberg § 13.13. The decision to
approve or reject a proposed settlement is committed to the Court’s sound
discretion. See City of Seattle, 955 F.2d at 1276.
The Court’s grant of preliminary approval will allow the Settlement Class
to receive direct notice of the proposed Settlement Agreement’s terms and the
date and time of the Final Approval Hearing, at which Settlement Class Members
may be heard regarding the Settlement Agreement, and at which time further
evidence and argument concerning the settlement’s fairness, adequacy, and
reasonableness may be presented. See MCL 4th § 21.634.
B. The criteria for preliminary approval of the settlement are satisfied.
Preliminary approval of a settlement is appropriate if the proposed
settlement appears to be the product of serious, informed, non-collusive
negotiations, has no obvious deficiencies, does not improperly grant preferential
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treatment to segments of the class, and falls within the range of possible approval.
See MCL 4th § 21.632. “To assess a settlement proposal, courts must balance the
strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration
of further litigation; the risk of maintaining class action status throughout the
trial; the amount offered in settlement; the extent of discovery completed and the
state of the proceedings; the experience and views of counsel; the presence of a
governmental participant; and the reaction of the class members to the proposed
settlement. In re Online DVD-Rental Antitrust Litig. (“In re Online DVD”), 779
F.3d 934, 944 (9th Cir. 2015).
Even at this preliminary stage, an analysis of these factors favors settlement
approval.
1. The Settlement Agreement is the product of serious, informed, and non-collusive negotiations.
The Court’s role is to ensure 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.”
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998) (internal quotes
and citations omitted); see also In re Online DVD, 779 F.3d at 944 (noting
settlements in class actions “present unique due process concerns for absent class
members,” including the risk that class counsel “may collude with the
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defendants”) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,
946 (9th Cir. 2010)).
The Settlement Agreement is the result of intensive, arm’s-length
negotiations between experienced attorneys for both parties who are highly
familiar with class action litigation in general and with the legal and factual issues
of this case in particular. Terrell Decl. ¶¶ 31–36; Arons Decl. ¶ 6; Olson Decl.
¶ 3; ECF Nos. 57, 58. Plaintiffs’ counsel are particularly experienced in the
litigation, certification, trial, and settlement of FDCPA cases similar to this case.
See generally id. The parties’ first step toward resolution of the case was a full
day in-person mediation with mediator Teresa Wakeen of Wakeen & Associates
Mediation Services. Terrell Decl. ¶ 35. Although the mediation was
unsuccessful, counsel for both parties continued to engage in discussions over a
period of months, which ultimately resulted in the Settlement Agreement. Id.
Counsel spent a considerable amount of time engaging in written discovery,
document review, data analysis, and analyzing legal issues related to the lawsuit’s
claims. See Hanlon, 150 F.3d at 1027 (no basis to disturb the settlement, in the
absence of any evidence suggesting that the settlement was negotiated in haste or
in the absence of information). Plaintiffs’ counsel only agreed to settle after
reviewing balance sheets, tax documents, and a declaration from Defendants’
insurance carrier. Terrell Decl. ¶ 36, Exs. 2–4; Declaration of Beth Terrell in
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support of Plaintiffs’ Motion to File Under Seal, Ex. A. Plaintiffs and their
counsel support the settlement as fair, reasonable, adequate and in the best
interests of the Settlement Class members. Terrell Decl. ¶ 37; Arons Decl. ¶ 2.
This factor favors granting preliminary approval.
2. The settlement provides substantial relief to the Settlement Class and treats all Settlement Class members fairly.
The Settlement Agreement requires Defendants to pay $530,000 into a
fund out of which Settlement Class members will receive a payment (“Settlement
Fund”). Settlement Agreement § IV.1. All members of the Settlement Class for
whom the parties have a deliverable mailing address (which will be determined
based on whether the postcard notice is delivered) and who have statutory
damages or paid Defendants’ Fees will receive a payment from the Settlement
Fund, unless they exclude themselves from the Settlement. Id. § IV.2. A
Settlement Class member does not have to submit a claim in order to receive a
Settlement Award. Id. The Settlement Fund also will be used to pay court-
approved class representative incentive and statutory damage awards, court-
approved attorneys’ fees to Plaintiffs’ counsel, and notice and settlement
administration costs. Id. § V. The Settlement Fund is non-reversionary, ensuring
that the monetary benefits will go to the Settlement Class—none of the
Settlement Fund will return to Defendants. Id. § V.3–5.
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Although the precise amount of each Settlement Class member’s award
cannot be determined until notice has been mailed and opt-outs have been
processed, Plaintiffs’ counsel estimate Settlement Class Members will receive a
cash payment of at least 14% of the amount Settlement Class members paid to
Defendants’ Fees.
Plaintiffs’ counsel acknowledge that $530,000 is less than the actual and
statutory damages potentially available to the Settlement Class Members. See,
e.g., 15 U.S.C. § 1692k(a)(1)(A) (permitting a successful FDCPA plaintiff to
recover either actual damages or up to $1,000 in statutory damages); 15 U.S.C.
§ 1692k(a)(1)(B) (capping statutory damages to a class at $500,000 or 1% of the
defendant’s net worth, whichever is less); RCW 19.86.090 (permitting trebling of
damages award up to $25,000). But “[i]t is well-settled law that a cash settlement
amounting to only a fraction of the potential recovery does not per se render the
settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,
458 (9th Cir. 2001) (quoting Officers for Justice v. Civil Serv. Comm’n, 688 F.2d
615, 628 (9th Cir.1982)) (approving a settlement estimated to be worth 16–50%
of the plaintiffs’ estimated loss). Indeed, approval would be appropriate even if
class members received a smaller percentage of their possible damages. See, e.g.,
Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (approving
settlement amounting to 30% of the damages estimated by the class expert; court
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noted that if the plaintiffs were entitled to treble damages that settlement would
be approximately 10 percent of the estimated damages); In re Omnivision Tech.,
Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal. 2008) (approving settlement
amounting to nine percent of estimated total damages). This is especially true
where, due to Defendants’ precarious financial situation, Plaintiffs and Settlement
Class Members very likely would recover nothing if they proceed to trial. In such
circumstances, the settlement is an excellent result for the class. See, e.g., Rinky
Dink, Inc. v. World Bus. Lenders, No. 2:14-cv-0268-JCC, Order Granting
Preliminary Approval of Class Settlement, ECF No. 84 at 7–8 (W.D. Wash. Feb.
3, 2016) (finding the defendant’s ability to pay is relevant to determining the
fairness of a proposed class action settlement and preliminarily approving
settlement where each class member would receive between 8% and 12% of their
possible damages).
The manner in which settlement funds will be allocated also is fair and
efficient. Settlement Class Members do not need to do anything to receive a
portion of the Settlement Fund. Settlement Agreement § IV. Instead, every
Settlement Class Member for whom the parties have a deliverable address and
who has statutory damages or paid the Defendants’ Fees will receive a Settlement
Award. Id. These awards provide cash compensation in a timely manner to
Settlement Class Members harmed by Defendants’ conduct.
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3. The Settlement Agreement is fair and reasonable in light of the alleged claims and the Defendants’ financial condition.
Entering into mediation, Plaintiffs and their counsel were confident in the
strength of their case. The Court had already denied Defendants’ motion for
summary judgment on one of their primary defenses (ECF No. 73). Moreover,
Plaintiffs’ Counsel were confident that the proposed classes would be certified,
for the reasons set forth in their briefing on class certification (ECF Nos. 55, 80).
However, Defendants’ financial situation presented a significant risk that
Plaintiffs would be unable to collect all or a significant portion of any judgment
entered against Defendants. The Defendants’ ability to pay a judgment beyond
the amount recovered in this settlement was highly uncertain. Throughout the
parties’ settlement discussions, Defendants insisted that they would not be able to
satisfy a larger class-wide judgment, providing evidence that Defendants’
business liabilities exceed their assets. Terrell Decl. ¶ 6; Declaration of Gale
Krieg in support of Preliminary and Final Reasonableness Hearing Approving
Class Action Settlement (“Krieg Decl.”) ¶¶ 2–3. Plaintiffs’ counsel refused to
settle until they were satisfied that Defendants’ assertions regarding their limited
assets were true. Terrell Decl. ¶¶ 6, 36. Careful review of Defendants’ financial
records convinced Plaintiffs’ counsel that Defendants simply do not have
anything to pay Settlement Class Members other than the proceeds of their
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wasting insurance policies. See Krieg Decl. ¶¶ 2–4. In addition, those insurance
policies include exclusions for any conduct by Defendants found to be
collections. Crabtree Decl. ¶¶ 3, 5. As a result, any victory by Plaintiffs on the
merits of their claims would also mean the loss of all insurance coverage.
Plaintiffs also were aware they risk losing on the merits. The FDCPA
contains an exemption for debt collection programs operated under contract with
a county prosecutor. 15 U.S.C. § 1692p. Although the Court denied Defendants’
motion for summary judgment (ECF No. 73), the Court did not conclusively
resolve whether the Defendants’ programs qualify for the exemption. In addition
there is a decision from this Court in a prior case granting summary judgment in
BounceBack’s favor on claims similar to those raised here. See Landfried v.
Spokane Cnty., No. CV-09-360-EFS, 2011 WL 1584328 (E.D. Wash. Apr. 27,
2011).
Another risk Plaintiffs faced going forward is that this Court would decline
to certify this case as a class action. When the parties settled, the parties in the
Washington Action had fully briefed class certification and presented oral
argument to the Court. The Defendants argued that Plaintiffs failed to establish
both commonality under Rule 23(a)(2) and predominance under Rule 23(b)(3),
specifically pointing to differences in the letters BounceBack sent to members of
the proposed classes in fourteen different Washington counties. Although
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Plaintiffs were confident that they would prevail on class certification, such facts
present a risk that they could not ignore.
Given the real risk that the class could receive nothing because of a loss on
the merits or because they could not collect a judgment, the settlement, which
provides certain cash payments, is an excellent result for the Settlement Class.
4. Continued litigation is likely to be complex, lengthy, and expensive.
Litigation would be lengthy and expensive if this action were to proceed.
Although the parties had completed substantial discovery at the time they reached
agreement, fact witness depositions, and extensive motion work, including
dispositive motions, remained. Terrell Decl. ¶ 39. The appeals process may have
further delayed any judgment in favor of Settlement Class Members. The
settlement avoids these risks and provides immediate and certain relief.
5. The stage of the proceedings and the amount of discovery completed supports preliminary approval.
Plaintiffs’ counsel have thoroughly analyzed the factual and legal issues
involved in this case. Terrell Decl. ¶¶ 3–5. Plaintiffs’ counsel’s investigation of
Defendants’ collection practices commenced over two years ago with Public
Records Act requests to fourteen Washington counties. Id. ¶ 3. Plaintiffs’
counsel also sought public records from nine California counties. Id. Defendants
in this Action produced documents and data, which Plaintiffs’ counsel diligently
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reviewed. Id. ¶ 4. In addition, Plaintiffs’ counsel pursued third party discovery
from seventeen different entities, including merchants and debt collectors who
refer checks to the Defendants and county prosecutors. Id. ¶ 5.
Although work remained, Plaintiffs’ counsel were well-informed about the
strengths and weaknesses of their case at the time they entered mediation and the
time they settled the case. Thus, this factor favors settlement.
C. Plaintiffs’ counsel’s requested fees are reasonable.
Plaintiffs’ counsel intend to request that the Court approve as reasonable
the total lodestar amount of their fees. However, Plaintiffs’ counsel will seek an
initial payment from the Settlement Fund of $230,071.45, which is less than half
of their total lodestar. Settlement Agreement § V.2.; Terrell Decl. ¶ 15; Arons
Decl. ¶ 7. Plaintiffs’ counsel will also seek reimbursement of their out-of-pocket
litigation expenses in the amount of $13,114.97. Terrell Decl. ¶¶ 27–28.
Plaintiffs’ counsel will also request that the Court award them any
unclaimed funds that remain in the Settlement Fund after all Settlement Award
checks have been cashed or voided, provided that the award of unclaimed funds
would not result in a total payment to Plaintiffs’ counsel that exceeds the lodestar
amount approved as reasonable by the Court. Settlement Agreement § V.3.
These funds would otherwise be distributed in cy pres.
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The attorneys’ fees and costs Plaintiffs’ counsel seek are reasonable under
the circumstances of this case. See In re Bluetooth, 654 F.3d at 941 (requiring
that any attorneys’ fee awarded be reasonable). This Court has discretion to use
either the percentage-of-the-fund or the lodestar method to calculate a reasonable
attorneys’ fee from a common fund established by a class action settlement.
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). Courts
generally use the lodestar method to award fees under statutes like the FDCPA
and Washington CPA, which provide for fee shifting. See, e.g., Six (6) Mexican
Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)
(explaining that “statutory awards of attorneys’ fees are subject to ‘lodestar’
calculation procedures’).
Here, Plaintiffs’ counsel seek an initial award that is less than half of their
reasonable lodestar amount. Plaintiffs’ counsel will prepare and file a
comprehensive motion for an award of attorneys’ fees supported by detailed time
entry records within thirty days after the Court enters a preliminary approval
order in this matter. The motion will be posted on the Settlement Website at least
30 days before the deadline for class members to opt-out of or object to the
settlement. Settlement Agreement § V.2; see also In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010).
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A preliminary assessment, however, shows Plaintiffs’ counsel’s lodestar is
reasonable. Plaintiffs’ counsel’s lodestar is based on reasonable hourly rates that
have been approved in other litigation. Terrell Decl. ¶ 23; Arons Decl. ¶ 7; Olson
Decl. ¶ 7. And the more than 1,800 hours Plaintiffs’ counsel dedicated to this
litigation are more than reasonable. Plaintiffs’ counsel investigated Plaintiffs’
claims through public records requests in both Washington and California, drafted
and filed the complaints, pursued discovery, including through a motion to
compel, and completed motions work, including responding to Defendants’
motion for summary judgment and affirmatively seeking class certification in the
Washington action. Terrell Decl. ¶ 15; Arons Decl. ¶ 7; Olson Decl., Ex. A. They
also negotiated the settlement, analyzed class member data, and developed an
equitable plan for distributing the settlement fund. Id.
The fact that Plaintiffs’ counsel request an initial payment of approximately
43% of the Settlement Fund does not alter this conclusion. The Ninth Circuit has
recognized that “the benchmark percentage should be adjusted, or replaced by a
lodestar calculation, when special circumstances indicate that the percentage
recovery would be either too small or too large in light of the hours devoted to the
case or other relevant factors.” Six (6) Mexican Workers, 904 F.2d at 1311.
Here, the settlement creates a non-reversionary Settlement Fund of $530,000,
nearly half of which will be paid to Plaintiffs and Settlement Class Members.
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The settlement amount is based on the combined available coverage of the two
insurance policies as more fully set forth at Paragraph 9 of the Declaration of
Sarah Crabtree. Crabtree Decl. ¶ 9.
In addition to the monetary compensation Settlement Class Members will
receive, Plaintiffs’ counsel’s efforts have reduced the prevalence of the
Defendants’ challenged conduct in both Washington and California. See Krieg
Decl. ¶ 5; Supplemental Declaration of Gale Krieg in support of Preliminary and
Final Reasonableness Hearing Approving Class Action Settlement (“Suppl. Krieg
Decl.”) ¶¶ 2–3. Defendants have ceased or will cease check enforcement
programs in eight of the fourteen Washington counties in which they previously
had programs. BounceBack no longer has contracts with Clallam, Clark, Grant,
Jefferson, Kittitas, Klickitat, Pierce, or Spokane County. Id. Defendants no
longer operate check enforcement programs in Lake or Plumas County, two of the
seven California counties in which they previously operated programs. Id. In
light of the results achieved for the class, the Defendants’ limited resources, and
the time invested in the case, Plaintiffs’ counsel’s request for attorneys’ fees and
costs is reasonable.
D. The requested incentive awards are reasonable.
“[I]ncentive awards that are intended to compensate class representatives
for work undertaken on behalf of a class ‘are fairly typical in class action cases.’”
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In re Online DVD, 779 F.3d at 943 (quoting Rodriguez v. West Publ’g Corp., 563
F.3d 948, 958 (9th Cir. 2009)). Where a settlement “provide[s] no guarantee that
the class representatives would receive incentive payments, leaving that decision
to later discretion of the district court,” an incentive award may be appropriate.”
In re Online DVD, 779 F.3d at 943 (approving $5,000 incentive award to class
representatives and distinguishing Radcliffe).
Here, Plaintiffs request an incentive award of $1,000 each and a statutory
damages award of $1,000 each—for a total of $2,000 to each class
representative—or an amount the Court deems appropriate. See Settlement
Agreement § V.1. Plaintiffs Cavnar, Terrill, Parks, and Scott assisted counsel in
investigating their claims, reviewed the factual allegations in the complaint, and
responded to Defendants written discovery requests. Arons Decl. ¶ 3. Plaintiffs
Freitas, Lyon, and Kendrick assisted counsel in investigating their claims and
reviewed the factual allegations in the complaint. Id. Such efforts on behalf of
the class warrant the modest incentive payments and statutory damage awards
requested here.
E. The proposed notice program is constitutionally sound.
Rule 23(e)(1) requires the Court to “direct notice in a reasonable manner to
all class members who would be bound by” a proposed settlement. Fed. R. Civ.
P. 23(e)(1); see also MCL 4th § 21.312. The best practicable notice is that which
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is “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.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). According to the Manual for Complex Litigation, a settlement notice
should do the following:
• Define the class;
• Describe clearly the options open to the class members and the
deadlines for taking action;
• Describe the essential terms of the proposed settlement;
• Disclose any special benefits provided to the class representatives;
• Indicate the time and place of the hearing to consider approval of the
settlement, and the method for objecting to or opting out of the
settlement;
• Explain the procedures for allocating and distributing settlement
funds, and, if the settlement provides different kinds of relief for
different categories of class members, clearly set out those
variations;
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• Provide information that will enable class members to calculate or at
least estimate their individual recoveries; and
• Prominently display the address and phone number of class counsel
and the procedures for making inquiries.
The proposed forms of notice, attached as Exhibits B and D4 to the
Settlement Agreement (“Notices”), satisfy all of the above criteria. The Notices
are clear, straightforward, and provide persons in the Settlement Class with
enough information to evaluate whether to participate in the settlement. Thus, the
Notices satisfy the requirements of Rule 23. Phillips Petroleum Co. v. Shutts, 472
U.S. 797, 808 (1985) (explaining a settlement notice must provide settlement
class members with an opportunity to present their objections to the settlement).
The Settlement Agreement provides for direct notice via U.S. Mail to the
Settlement Class and therefore satisfies due process.
4 Material in the notices highlighted in yellow will be added if the Court grants
preliminary approval or the Settlement based on dates set in the Court’s
preliminary approval order. The Settlement Website will provide the information
included in the long form notice.
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F. Provisional certification of the class is appropriate.
For settlement purposes only, Plaintiffs respectfully request that the Court
provisionally certify the Settlement Class defined as:
All persons who: (a) were sent one or more Letters bearing the name, seal,
or letterhead of any prosecuting attorney in Washington, from July 18, 2013 to
November 30, 2015; or (b) were sent one or more Letters bearing the name, seal,
or letterhead of any prosecuting attorney in Washington, from July 18, 2010 to
November 30, 2015 and who paid any of Defendants’ Fees; or (c) were sent one
or more Letters bearing the name, seal, or letterhead of any district attorney in
Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from
August 3, 2014 to November 30, 2015; or (d) were sent one or more Letters
bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino,
Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2011 to
November 30, 2015 and who paid any of Defendants’ Fees; and appear on the
Settlement Class List. Settlement Agreement §§ II.2, II.19.
As detailed below, and in Plaintiffs’ briefing on class certification (ECF
Nos. 55, 80), the Settlement Class satisfies all of the applicable certification
requirements.
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1. The Rule 23(a) factors are met.
a. Numerosity.
“The prerequisite of numerosity is discharged if ‘the class is so large that
joinder of all members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d
1011, 1019 (9th Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). Here, the
Settlement Class consists of 11,938 persons, rendering joinder impracticable.
Terrell Decl. ¶ 11.
b. Commonality.
The commonality requirement of Rule 23(a)(2) is satisfied because the
central questions in the case are whether Defendants’ practice of sending form
letters on prosecutor letterhead demanding payments on consumer debts violate
state or federal law. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
(2011); see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)
(“Where the same conduct or practice by the same defendant gives rise to the
same kind of claims from all class members, there is a common question.”).
Because persons in the Settlement Class here all suffered the same injury and are
generally subject to the same defenses, commonality is satisfied.
c. Typicality.
“[R]epresentative claims are typical if they are reasonably co-extensive
with those of absent class members; they need not be substantially identical.”
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Hanlon, 150 F.3d at 1020. “Typicality refers to the nature of the claim or defense
of the class representative, and not to the specific facts from which it arose or the
relief sought.” Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992).
Here, Plaintiffs’ claims are based on Defendants use of form letters to collect
debts. Plaintiffs Cavnar, Terrill, and Parks’ claims are the same as the claims of
class members who have damages under the Washington Consumer Protection
Act. Plaintiff Scott’s claims are the same as class members who have claims for
statutory damages under the FDCPA only. Plaintiffs Freitas, Lyon, and
Kendrick’s claims are the same as the claims of class members who have
damages under the California UCL. Because Plaintiffs’ claims arise from the
same course of conduct as class members’ claims, typicality is satisfied.
d. Adequacy.
Adequacy requires the representative of a class to provide fair and
adequate representation of the class. Fed. R. Civ. P. 23(a)(4). “To
determine whether named plaintiffs will adequately represent a class,
courts must resolve two questions: ‘(1) do the named plaintiffs and their
counsel have any conflicts of interest with other class members and (2) will
the named plaintiffs and their counsel prosecute the action vigorously on
behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985
(9th Cir. 2011) (quoting Hanlon, 150 F.3d at 1020). In the context of a
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class settlement, examination of potential conflicts of interest “is especially
critical.” In re Online DVD, 779 F.3d at 942 (internal marks and quotation
omitted). That said, courts will not deny class certification on the basis of
“speculative” or “trivial” conflicts. See id. (finding settlement class
representatives adequate and overruling objection that proposed $5,000
incentive award created a conflict of interest).
Here, Plaintiffs have no interests that are antagonistic to or in
conflict with persons in the Settlement Class they seek to represent and
have a substantial interest in the outcome of this action, since they all
received the same allegedly unlawful letters that persons in the Settlement
Class received. In addition, Plaintiffs’ counsel are active practitioners with
substantial experience in consumer law and class action litigation,
including cases very similar to this one. See Terrell Decl. ¶¶ 31–34; Arons
Decl. ¶¶ 4–6; Olson Decl. ¶¶ 3–7; ECF Nos. 57, 58.
2. The Rule 23(b)(3) factors are satisfied.
Rule 23(b)(3)’s predominance requirement tests whether proposed classes
are “sufficiently cohesive to warrant adjudication by representation.” Hanlon,
150 F.3d at 1022 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623
(1997)). In FDCPA actions, a common nucleus of operative fact exists where
“defendants have engaged in standardized conduct toward members of the
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proposed class by mailing to them allegedly illegal form letters or documents.”
Keele v. Wexler, 149 F.3d 589, 594–95 (7th Cir. 1998). The legal issues arising
from BounceBack’s form letters are the same for all class members. See Ballard
v. Equifax Check Servs., Inc., 186 F.R.D. 589, 595 (E.D. Cal. 1999); Hunt v.
Check Recovery Sys., Inc., 241 F.R.D. 505, 514 (N.D. Cal. 2007). There are no
individualized issues that undermine predominance. See ECF No. 80 at 13–14.
Because the claims are being certified for purposes of settlement, there are
no issues with manageability. Amchem, 521 U.S. 591, 620 (1997) (“Confronted
with a request for settlement-only certification, a district court need not inquire
whether the case, if tried, would present intractable management problems … for
the proposal is that there be no trial.”). Additionally, resolution of thousands of
claims in one action is far superior to individual lawsuits and promotes
consistency and efficiency of adjudication. See id. at 617 (noting the “policy at
the very core of the class action mechanism is to overcome the problem that small
recoveries do not provide the incentive for any individual to bring a solo action
prosecuting his or her rights”). Certification for purposes of settlement is
appropriate.
G. Scheduling a final approval hearing is appropriate.
The last step in the settlement approval process is a final approval hearing
at which the Court may hear all evidence and argument necessary to make its
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settlement evaluation. Proponents of the settlement may explain the terms and
conditions of the Settlement Agreement, and offer argument in support of final
approval. The Court will determine after the final approval hearing whether the
settlement should be approved, and whether to enter a final order and judgment
under Rule 23(e). Plaintiffs request that the Court set a date for a hearing on final
approval at the Court’s convenience, but no earlier than 120 days after entry of an
order preliminarily approving the settlement, and schedule further settlement
proceedings pursuant to the schedule set forth below:
ACTION DATE
Preliminary Approval Order Entered At the Court’s Discretion
CAFA Notice Deadline 10 days following entry of Preliminary Approval Order
Notice Deadline 30 days following entry of Preliminary Approval Order
Class Counsel’s Fee Motion Submitted
30 days following Notice Deadline
Exclusion/Objection Deadline 60 days after Notice Deadline
Final Approval Brief and Response to Objections Due
At least 14 days prior to the Final Approval Hearing
Final Approval Hearing / Noting Date
No earlier than 120 days following entry of Preliminary Approval Order
Final Approval Order Entered At the Court’s Discretion
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IV. CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully requests that the
Court: (1) grant preliminary approval of the settlement, including the fees and
costs payments to Plaintiffs’ counsel; (2) provisionally certify the proposed class;
(3) appoint as Class Counsel the law firms of Terrell Marshall Law Group PLLC,
Law Office of Paul Arons, Gupta Wessler PLLC, Kirk D. Miller, PS, and Ram,
Olson, Cereghino & Kopczynski; (4) appoint Woodena Cavnar, Linda Parks,
Rosaline Terrill, David Scott, Angelina Freitas, Rebecca Lyon, and Maresa
Kendrick as class representatives; (5) approve the proposed notice plan; (6)
appoint KCC to serve as the Class Administrator; and (7) schedule the final
fairness hearing at the Court’s convenience but no earlier than 120 days following
entry of the Preliminary Approval Order.
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RESPECTFULLY SUBMITTED AND DATED this 11th day of March,
2016.
TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, WSBA #26759
Beth E. Terrell, WSBA #26759 Erika L. Nusser, WSBA #40854 Blythe H. Chandler, WSBA #43387 Attorneys for Plaintiffs 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected] Email: [email protected] Email: [email protected] Deepak Gupta, Admitted Pro Hac Vice Attorneys for Plaintiff GUPTA WESSLER PLLC 1735 20th Street, NW Washington, DC 20009 Telephone: (202) 888-1741 Facsimile: (202) 888-7792 Email: [email protected] Paul Arons, WSBA #47599 Attorneys for Plaintiffs LAW OFFICE OF PAUL ARONS 685 Spring Street, Suite 104 Friday Harbor, Washington 98250 Telephone: (360) 378-6496 Facsimile: (360) 387-6498 Email: [email protected]
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Kirk D. Miller, WSBA #40025 Attorneys for Plaintiffs KIRK D. MILLER, P.S. 421 W. Riverside Avenue, Suite 704 Spokane, Washington 99201 Telephone: (509) 413-1494 Facsimile: (509) 413-1724 Email: [email protected] Michael F. Ram Karl Olson Susan S. Brown RAM, OLSON, CEREGHINO & KOPCZYNSKI 101 Montgomery Street, Suite 1800 San Francisco, California 94104 Telephone: (415) 433-4949 Facsimile: (415) 433-7311 Email: [email protected] Email: [email protected] Email: [email protected]
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CERTIFICATE OF SERVICE
I, Beth E. Terrell, hereby certify that on March 11, 2016, I electronically
filed the foregoing with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following:
Scott C. Cifrese, WSBA #25778 David L. Broom, WSBA #2096 Gregg R. Smith, WSBA #15553 Attorneys for Defendants PAINE HAMBLEN LLP 717 West Sprague Avenue, Suite 1200 Spokane, Washington 99201 Telephone: (509) 455-6000 Facsimile: (509) 838-0007 Email: [email protected] Email: [email protected] Email: [email protected]
DATED this 11th day of March, 2016.
TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, WSBA #26759
Beth E. Terrell, WSBA #26759 Attorneys for Plaintiffs 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected]
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