Opinion
CASE NO. 2:13-cv-216
06-12-2014
MARK MOTTER, Jr., et al., Plaintiffs, v. KEVIN J. O'BRIEN, et al., Defendants.
JUDGE SARGUS
MAGISTRATE JUDGE ABEL
ORDER
This matter comes before the Court upon the Joint Motion for Preliminary Approval of Settlement and Notice to Class ("Joint Motion"), pursuant to Fed. R. Civ. P. 23(e), seeking preliminary approval of a proposed settlement as set forth in the Class Action Settlement Agreement and Release (the "Agreement") attached to the Joint Motion as Exhibit 1, and seeking other orders related thereto. All parties, through their respective counsel, have consented to the referral of this case to the undersigned Magistrate Judge.
The Court finds that it has jurisdiction over this action and the parties to the proposed settlement pursuant to 28 U.S.C. §§ 1132(a) and 1332(d), and that the proposed settlement class satisfies the requirements of a settlement class because the class members are readily ascertainable and a well-defined community of interest exists in the questions of law and fact affecting the parties.
The Court recognizes that there are three steps which must be taken by the Court in order to approve a class action settlement: (1) the court must preliminarily approve the proposed settlement, (2) members of the class must be given notice of the proposed settlement, and (3) the court must give its final approval of the settlement. Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983); Enterprise Energy Corp., 137 F.R.D. at 245; In re Dun & Bradstreet Credit Services Customer Litigation, 130 F.R.D. 366, 369 (S.D. Ohio 1990). Before a district court approves a class action settlement, it must find that the settlement is "fair, reasonable, and adequate." UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007) (quoting Fed. R. Civ. P. 23(e)(1)(C).
The Court further recognizes that "the law favors settlement, particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation." 4 Alba Conte & Herbert Newberg, Newberg on Class Actions, § 11.41 (4th ed. 2002); accord Int 'l Union ,United Auto, Aer ospace,and Implement Workers of America v. General Motors Corp., 477 F.3d 615, 632 (6th Cir. 2007) (noting "the federal policy favoring settlement of class actions"); Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 249, 246 (S.D. 1991).
Now, upon the consent of the parties, after careful consideration of the Agreement and the exhibits thereto, and after due deliberation, the Court grants the Joint Motion. Accordingly, it is hereby:
ORDERED that:
1. Pursuant to Fed. R. Civ. P. 23, and for settlement purposes only, the following class ("Class"), subject to paragraph 2 hereof, is hereby conditionally certified for settlement purposes only because this Court finds that the requirements of Fed. R. Civ. P. 23(b)(3) have been met:
EVERY PERSON UPON WHOM, DURING THE PERIOD OF TIME ONE YEAR PRIOR TO THE DATE OF FILING THIS ACTION (MARCH 6, 2013) THROUGH THE DATE OF CLASS CERTIFICATION, THE DEFENDANTS SERVED AN OHIO STATE COURT COMPLAINT SEEKING A MONEY JUDGMENT ON A CONSUMER DEBT ARISING FROM THE RENDERING OF DENTAL SERVICES WHEREIN THE PRAYER OF THE COMPLAINT INCLUDES A DEMAND FOR THE RECOVERY OF "PLAINTIFF'S ATTORNEY'S FEES."
2. Excluded from the Class are the Defendants, and their agents and employees, the Judge and the Magistrate Judge to whom this action is assigned, and any member of such Judges' staffs and immediate families.
3. With respect to the Class and for settlement purposes only, the Court preliminarily finds that the prerequisites for a class action under Fed. R. Civ. P. 23(a) and (b)(3) have been met, including: (a) numerosity; (b) commonality; (c) typicality; (d) adequacy of the class representatives and Class Counsel; (e) predominance of common questions of fact and law among the Class for purposes of settlement; and (f) superiority.
4. Plaintiffs Mark Motter, Jr. and Lavanda Terrell are hereby appointed as class representatives for the Class.
5. Kendra L. Carpenter and Daniel R. Freytag are hereby appointed as class counsel for the Class.
6. The Agreement is hereby preliminarily approved for the purpose of giving notice to class members of the Agreement, because this Court has conducted a preliminary assessment of the fairness, reasonableness, and adequacy of the settlement set forth in the Agreement, and finds that the Agreement is within the range of fairness, reasonableness, and adequacy meriting a possible final approval, The Court is, further, satisfied that the terms and conditions of the settlement set forth in the Agreement were the result of hard-fought, good faith, arm's length negotiations between competent and experienced counsel for both Plaintiffs and Defendants, and are in the best interests of the Class.
7. Pursuant to Fed. R. Civ. P. 23(e), a hearing in this Court at 85 Marconi Boulevard, Columbus, Ohio 43215 shall be held on September 26, 2014 at 10:00 a.m. ("Hearing") in the Courtroom 220 to: (a) consider final certification of the Class for settlement only; (b) hear objections, if any, to the proposed settlement; (c) consider and determine the number and legitimacy of requests for exclusion filed by members of the Class; (d) consider and determine whether the proposed Agreement is fair, reasonable, and adequate and should be approved by the Court; (e) consider the agreed-upon award of attorneys' fees and costs as set forth in the Agreement; and (f) rule on such other matters as the Court may deem appropriate; (e) determine whether a final order and judgment should be entered, the proposed form of which shall be submitted to the Court by the parties no later than 30 days prior to the Hearing.
8. The Court reserves the right to postpone, continue, or adjourn the Hearing, or any adjournment thereof, without further notice other than oral announcement at the Hearing, or any adjournment thereof.
9. Subject to the terms and conditions set forth in the Agreement, the Court reserves the right to approve the Agreement with or without written modification (subject to all parties' written approval of any modification) and with or without further notice to the Class.
10. In accordance with the Agreement, First Class, Inc., 5410 West Roosevelt Road, Suite 222, Chicago, Illinois 60644, is hereby appointed as the Settlement Administrator. Within 30 days after entry of this Order, First Class, Inc. shall cause a written class notice in substantially the form attached to the Agreement as Exhibit B ("Notice") and an opt-out postcard in substantially the form attached to the Agreement as Exhibit C ("Postcard"), to be mailed to each class member at their last known address as shown on the class list (Agreement at Exhibit A), or any such more current address as may be located by the Class Administrator as set forth in the Agreement. Any such mailing returned to First Class, Inc. as undeliverable shall be handled as set forth in the Agreement. Within 30 days after entry of this Order, First Class, Inc. also shall cause the Notice (as may be modified as reasonably necessary for publication purposes) to be published as set forth in the Agreement.
11. The method of notice specified herein is the best notice practicable under the circumstances; constitutes due, sufficient, and valid notice to all persons entitled to receive notice of the matters set forth in the Notice; and fully complies with applicable law.
12. At or before the Hearing, plaintiffs shall file proof of the mailing and the publication of the Notice.
13. To be timely and valid, a Postcard must be completed as set forth in the Notice and returned with a postmark dated no later than August 27, 2014.
14. To be timely and valid, class member objections must comply with the requirements set forth in the Notice and must be filed and served no later than August 27, 2014.
15. As provided in the Notice, any Class members submitting a valid objection shall have the right to appear, present evidence, and speak at the Hearing themselves or through their counsel. Any other Class member may appear and speak at the Hearing themselves or through their counsel, provided that they file a notice of intention to appear not later than 14 days before the Hearing.
16. Any class member who fails to object in the manner and within the time set forth in the Notice shall be deemed to have waived all objections and shall be forever barred from raising any objections in this or any other action, or in any appeal thereof.
17. Defendants shall file proof of compliance with the notice requirements of the Class Action Fairness Act of 2005 (28 U.S.C. § 1715(b)) no later than 10 days after entry of this Order.
18. Pending final determination of whether the Agreement should be approved, no class member who has not timely returned a valid Postcard shall commence or continue any action asserting any claims which have been or could have been asserted in this action.
Mark R. Abel
United States Magistrate Judge