Opinion
7:21-cv-00074-D
01-12-2023
JO ANNE SILVA, Individually and on behalf of all others similarly situated Plaintiff, v. CONNECTED INVESTORS, INC. Defendants.
ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND CERTIFYING THE SETTLEMENT CLASS
JAMES C. DEVER, III UNITED STATES DISTRICT JUDGE
Plaintiff Jo Anna Silva (“Plaintiff') and Connected Investors, LLC (“Connected Investors” or “Defendant”) (Plaintiff and Defendant collectively referred to as, the “Parties”) have agreed to settle this Action pursuant to the terms and conditions set forth in an executed Settlement Agreement and Release (“Settlement”). The Parties reached the Settlement through extensive negotiations. Under the Settlement, subject to the terms and conditions therein and subject to Court approval, Plaintiff and the proposed Settlement Class will fully, finally, and forever resolve, discharge, and release their claims.
The Settlement has been filed with the Court, and Plaintiff and Class Counsel have filed an Unopposed Motion for Preliminary Approval of Class Settlement (“Motion”). [ECF No.] Upon considering the Motion, the Settlement and all exhibits thereto, the record in these proceedings, the representations and recommendations of counsel, and the requirements of law, the Court finds that: (1) this Court has jurisdiction over the subject matter and the Parties to this Action; (2) the proposed Settlement Class meets the requirements of Federal Rule of Civil Procedure 23 and should be certified for settlement purposes only; (3) the persons and entities, identified below should be appointed Class Representative and Class Counsel; (4) the Settlement is the result of informed, good-faith, negotiations between the Parties and their capable and experienced counsel, and is not the result of collusion; (5) the Settlement is within the range of reasonableness and should be preliminarily approved; (6) the proposed Notice program and proposed forms of Notice satisfy Federal Rule of Civil Procedure 23 and constitutional due process requirements, and are reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, class certification, the terms of the Settlement, Class Counsel's application for an award of attorneys' fees and expenses (“Fee Application”) and request for a Service Award for Plaintiff, and their rights to opt-out of the Settlement Class or object to the Settlement, Class Counsel's Fee Application, and/or the request for a Service Award for Plaintiff; (7) good cause exists to schedule and conduct a Final Approval Hearing, pursuant to Federal Rule of Civil Procedure 23(e), to assist the Court in determining whether to grant Final Approval of the Settlement and enter the Final Approval Order, and whether to grant Class Counsel's Fee Application and request for a Service Award for Plaintiff; and (8) the other related matters pertinent to the Preliminary Approval of the Settlement should also be approved.
Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED as follows:
1. As used in this Preliminary Approval Order, unless otherwise noted, capitalized terms shall have the definitions and meanings accorded to them in the Settlement.
2. The Court has jurisdiction over the subject matter and Parties to this proceeding pursuant to 28 U.S.C. §§ 1331, 1332.
3. Venue is proper in this District.
I. Provisional Class Certification and Appointment of Class Representative and Class Counsel
4. It is well established that “[a] class may be certified solely, for purposes of. . . settlement [if] a settlement is reached before a litigated determination of the class certification issue.” Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006) (internal quotation marks omitted). In deciding whether to provisionally certify a settlement class, a court must consider the same factors that it would consider in connection with a proposed litigation class - i.e., all Rule 23(a) factors and at least one subsection of Rule 23(b) must be satisfied - except that the Court need not consider the manageability of a potential trial, since the settlement, if approved, would obviate the need for a trial. Id.; Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).
5. The Court finds, for settlement purposes, that the Federal Rule of Civil Procedure 23 factors are present and that certification of the proposed Settlement Class is appropriate under Rule 23. The Court therefore provisionally certifies the following Settlement Class.
All persons within the United States who (1) were sent one or more prerecorded voice messages; (2) between April 28, 2017 and September 26, 2022; (3) regarding Defendant's goods and/or services.Excluded from the Settlement Class are: (1) anyone who only received non-telemarketing messages that they agreed to receive or were otherwise permissible under the law; (2) the trial judge and magistrate judge presiding over this case; (3) Defendant, as well as any parent, subsidiary, affiliate, and the officers, directors, agents, members, managers, servants, or employees of Defendant; (4) any of the Released Parties; (5) the immediate family of any such person(s); and (6) Plaintiffs Counsel, their employees, and their immediate family.
6. Specifically, the Court finds, for settlement purposes and conditioned on final certification of the proposed class and on the entry of the Final Approval Order, that the Settlement Class satisfies the following factors of Federal Rule of Civil Procedure 23:
(a) Numerosity: In the Action, approximately 68,714 individuals received a
prerecorded voice message call sent by Defendant. Individuals who received at least one prerecorded voice message call are members of the proposed Settlement Class. The proposed Settlement Class is thus so numerous that joinder of all members is impracticable.
(b) Commonality: “[C]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,'” and the plaintiffs common contention “must be of such a nature that it is capable of class wide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (citation omitted). Here, the commonality requirement is satisfied. Multiple questions of law and fact centering on Defendant's class-wide practices are common to the Plaintiff and the Settlement Class, are alleged to have injured all members of the Settlement Class in the same way, and would generate common answers central to the viability of the claims were this case to proceed to trial.
(c) Typicality: The Plaintiffs claims are typical of the Settlement Class because they concern the same alleged Defendants practices, arise from the same legal theories, and allege the same types of harm and entitlement to relief. Rule 23(a)(3) is therefore satisfied. See Clark v. Duke Univ., No. 1:16-CV-1044, 2018 WL 1801946, at *5 (M.D. N.C. Apr. 13, 2018) (“The typicality requirement is met where the claims asserted by the named plaintiffs arise from the same course of conduct and are based on the same legal theories as the claims of the unnamed class members.”) (quoting Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59, 65 (M.D. N.C. 2008); see also Craighead v. Full Citizenship of Maryland, Inc., No. 17-595, 2018 WL 3608743, at *3 (D. Md. July 27,2018) (citing Fed.R.Civ.P. 23(a)(3) (“The typicality requirement concerns whether the named plaintiffs' claims are aligned and consistent with those of the class.”).
(d) Adequacy: Adequacy under Rule 23(a)(4) relates to: (1) whether the
proposed class representatives have interests antagonistic to the class; and (2) whether the proposed class counsel has the competence to undertake the litigation at issue. See Fabricant v. Sears Roebuck, 202 F.R.D. 310, 314 (S.D. Fla. 2001). Here, Rule 23(a)(4) is satisfied because there are no conflicts of interest between the Plaintiff and the Settlement Class, and Plaintiff has retained competent counsel to represent her and the Settlement Class. Class Counsel regularly engage in consumer class litigation, complex litigation, and other litigation similar to this Action, and have dedicated substantial resources to the prosecution of the Action. Representation is adequate if‘“(1) the named plaintiffs' interests are not opposed to those of other class members, and (2) the plaintiffs' attorneys are qualified, experienced and able to conduct the litigation.'” Chado v. Nat'l Auto Inspections, LLC, No. 17-2945, 2018 WL 3420018, at *7 (D. Md. July 13, 2018)(quoting Cuthie v. Fleet Reserve Ass'n, 743 F.Supp.2d 486, 499 (D. Md. 2010).
(e) Predominance and Superiority: “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591 623 (1997). “This balancing test of common and individual issues is qualitative, not quantitative.” Ealy v. Pinkerton Gov't Servs. Inc., 514 Fed.Appx. 299, 305 (4th Cir. 2013). Rule 23(b)(3) is satisfied because the common legal and alleged factual issues here predominate over individualized issues, and resolution of the common issues for the members of the Settlement Class in a single, coordinated proceeding is superior to thousands of individual lawsuits addressing the same legal and factual issues. In the case at hand, the common questions are all subject to class-wide proof. See Mohamed v. Off Lease Only, Inc., 320 F.R.D. 301, 316 (S.D. Fla. 2017) (“The resolution of each issue will directly impact the resolution of the claims of the modified class and whether each can establish liability against [the defendant]
under the TCPA.”). Further, individualized issues do not predominate over common questions. Thus, the questions here will be resolved using common class wide evidence applicable to all of the claims and will not involve undue individualized questions. Krakauer v. Dish Network, L.L.C., 925 F.3d 659, 658-69 (4th Cir. 2019 (explaining why predominance was satisfied in similar TCPA class action). “At bottom, the advantages of class resolution follow directly from the [TCPA] statute. The statute creates a simple scheme for determining if a violation occurred, whether a defense is available, and what the damages ought to be.” Id. at 659.
7. The Court appoints Plaintiff, Jo Anne Silva, as Class Representative.
8. The Court appoints the following people and firms as Class Counsel: Manuel S. Hiraldo of Hiraldo P.A; Ignacio J. Hiraldo of IJH Law; and Michael Eisenband of Eisenband Law, P.A.
9. The Court recognizes that Defendant reserves all of its defenses and objections against and rights to oppose any request for class certification in the event that the proposed Settlement does not become Final for any reason. Defendant also reserves its defenses to the merits of the claims asserted in the event the Settlement does not become Final for any reason.
IL Preliminary Approval of the Settlement
10. At the preliminary approval stage, the Court's task is to evaluate whether the Settlement is within the “range of reasonableness.” 4 Newberg on Class Actions § 11.26. “Preliminary approval is appropriate where the proposed settlement is the result of the parties' good faith negotiations, there are no obvious deficiencies and the settlement falls within the range of reason.” Smith v. Wm. Wrigley Jr. Co., 2010 WL 2401149, at *2 (S.D. Fla. Jun. 15, 2010). Settlement negotiations that involve arm's length, informed bargaining with the aid of experienced counsel support a preliminary finding of fairness. See Manual for Complex Litigation, Third, § 30.42 (West 1995) (“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between' experienced, capable counsel after meaningful discovery.”) (internal quotation marks omitted).
11. The Court preliminarily approves the Settlement, together with all exhibits thereto, as fair, reasonable, and adequate. The Court finds that the Settlement was reached in the absence of collusion, is the product of informed, good-faith, arm's-length negotiations between the Parties and their capable and experienced counsel. The Court further finds that the Settlement, including the exhibits thereto, is within the range of reasonableness and possible judicial approval, such that: (a) a presumption of fairness is appropriate for the purposes of preliminary settlement approval; and (b) it is appropriate to effectuate notice to the Settlement Class, as set forth below and in the Settlement, and schedule a Final Approval Hearing to assist the Court in determining whether to grant Final Approval to the Settlement and enter a Final Approval Order.
III. Approval of Class Notice and the Claims Process
12. The Court approves the form and content of the Class notices, substantially in the forms attached to the Settlement, as well as the Claim Form attached thereto. The Court further finds that the Class Notice program described in the Settlement is the best practicable under the circumstances. The Class Notice program is reasonably calculated under the circumstances to inform the Settlement Class of the pendency of the Action, certification of a Settlement Class, the terms of the Settlement, Class Counsel's attorney's fees application and the request for Service Award for Plaintiff, and their rights to opt-out of the Settlement Class or object to the Settlement. The Class notices and Class Notice program constitute sufficient notice to all persons entitled to notice. The Class notices and Class Notice program satisfy all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the Constitutional requirement of Due Process.r'
13. Epiq Class Action and Claims Solutions, Inc. shall serve as the Administrator.
14. The Administrator shall implement the Class Notice program, as set forth below and in the Settlement, using the Class notices substantially in the forms attached to the Settlement and approved by this Preliminary Approval Order. Notice shall be provided to the members of the Settlement Class pursuant to the Class Notice program, as specified in the Settlement and approved by this Preliminary Approval Order. The Class Notice program shall include, to the extent necessary, E-Mail Notice, Mail Notice, and Long-Form Notice, as set forth in the Settlement and below. '
Mail Notice
15. The Administrator shall administer Mail Notice as set forth in the Settlement. Mail Notice shall be completed no later than 60 days after the entry of this order.
Email Notice
16. The Administrator shall administer Email Notice as set forth in the Settlement. Email Notice shall be completed no later than 60 days after the entry of this order.
Settlement Website
17. The Administrator shall establish a Settlement Website as a means for Settlement Class members to obtain notice of, and information about, the Settlement. The Settlement Website shall be established as soon as practicable following Preliminary Approval, but no later than before commencement of the Class Notice program. The Settlement Website shall include to the Settlement, the Long-Form Notice, the Preliminary Approval Order, and other such documents as Class Counsel and counsel for Defendant agree to include. These documents shall remain on the Settlement Website until at least sixty (60) days following the Claim Deadline.
18. The Administrator is directed to perform all substantive responsibilities with respect to effectuating the Class Notice program, as set forth in the Settlement., IV. Final Approval Hearing, Opt-Outs, and Objections
19. A Final Approval Hearing shall be held before this Court via Zoom or other teleconferencing equipment on, June 2023 at 1.00 pm. to determine whether to grant Final Approval to the Settlement and to enter a Final Approval Order, and whether Class Counsel's Fee Application and request for a Service Award for the Class Representative should be granted.
20. Any person within the Settlement Class who wishes to be excluded from the Settlement Class may exercise their right to opt-out of the Settlement Class by following the optout procedures set forth in the Settlement and in the Notices at any time during the Opt-Out Period. To be valid and timely, opt-out requests must be received by all those listed in the Long-Form Notice on or before the last day of the Opt-out Period, which is 30 days before the Final Approval, Hearing (“Opt-Out Deadline”), and mailed to the addresses indicated in the Long Form Notice.
21. Any Settlement Class Member may object to the Settlement, Class Counsel's Fee Application, or the request for a Service Award for Plaintiff. Any such objections must be mailed to the Clerk of the Court, Class Counsel, and Defendant's Counsel, at the addresses indicated in the Long-Form Notice. For an objection to be considered by the Courts the objection must be postmarked no later than 30 days before the Final Approval Hearing, as set forth in the Notice. To be valid, an objection must include the following information:
a. the name of the Action;
b. the objector's full name, address, and telephone number;
c. an explanation of the basis upon which the objector claims to be a Settlement' Class Member.
d. all grounds for the objection, accompanied by any legal support for the objection known to the objector or his counsel;
e. the number of times in which the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such an objection, and a copy of any orders related to or ruling upon the objector's prior such objections that were issued by the trial and appellate courts in each listed case;
f. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or Fee Application;
g. a copy of any orders related to or ruling upon counsel's or the counsel's law firm's prior objections made by individuals or organizations represented by that were issued by the trial and appellate courts in each listed case in which the objector's counsel and/or counsel's law firm have objected to a class action settlement within the preceding 5 years the objector's counsel;
h. any and all agreements that relate to the objection or the process of objecting- whether written or oral-between objector or objector's counsel and any other person or entity;
i. the identity of all counsel (if any) representing the objector who will appear at the Final Approval Hearing;
j. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing;
k. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; and
1. the objector's signature (an attorney's signature is not sufficient).
V. Further Papers in Support of Settlement and Attorney's Fee Application
22. Plaintiff and Class Counsel shall file their Motion for Final Approval of the Settlement, Fee Application and request for a Service Award for Plaintiff, no later 30 days before the Final Approval Hearing.
23. Plaintiff and Class Counsel shall file their responses to timely filed objections to the Motion for Final Approval of the Settlement, the Fee Application and/or request a Service Award for Plaintiff no later than 15 days before the Final Approval Hearing.
VI. Effect of Failure to Approve Settlement
24. If the Settlement is not finally approved by the Court, or for any reason the Parties fail to obtain a Final Approval Order as contemplated in the Settlement, or the Settlement is terminated pursuant to its terms for any reason, then the following shall apply:
(a) All orders and findings entered in connection with the Settlement shall become null and void and have no further force and effect, shall not be used or referred to for any purpose whatsoever, and shall not be admissible or discoverable in any other proceeding;
(b) Nothing in this Preliminary Approval Order is, or may be construed as, any admission or concession by or against Defendants or Plaintiff on any point of fact or law; and
(c) Neither the Settlement terms nor any publicly disseminated information regarding the Settlement, including, without limitation, the Class Notice, court filings, orders and
public statements, may be used as evidence. In addition, neither the fact of, nor any documents relating to, either Party's withdrawal from the Settlement, any failure of the Court to approve the" Settlement and/or any objections or interventions may be used as evidence.
VII. Stay/Bar of Other Proceedings
25. All proceedings in the Action are stayed until further order of the Court, except as may be necessary to implement the terms of the Settlement. Pending final determination of whether the Settlement should be approved, Plaintiff, all persons in the Settlement Class, and persons purporting to act on their behalf are enjoined from commencing or prosecuting (either directly, representatively or in any other capacity) against any of the Released Parties any action or proceeding in any court, arbitration forum or tribunal asserting any of the Released Claims.
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26. Based on the foregoing, the Court sets the following schedule for the Final Approval Hearing and the actions which must take place before and after it:
| Event | Date | Timeline |
| Deadline for Completion of Notice | 45 days after entry of the Preliminary Approval Order | |
| Deadline for filing Motion for Final Approval of the Settlement Class Counsel's Fee Application and expenses, and for a Service Award; | 80 days after entry of the Preliminary Approval Order | |
| Deadline for opting-out of the Settlement and for submission of Objections | 30 days before the Final Approval Hearing | |
| Deadline for Responses to Objections | 15 days before the Final Approval Hearing | |
| Final Approval Hearing | June 2, 2023 | |
| Last day Class Claimants submit a Claim Form may | 15 days after the Final Approval Hearing |
SO ORDERED.