Opinion
Case No. 8:09-cv-2321-T-33AEP.
June 3, 2011
ORDER
This cause comes before the Court pursuant to Final Fairness Hearing conducted by the undersigned on May 20, 2011, in this Fair Debt Collections Practices Act case. For the reasons stated herein and at the hearing, the Court approves the class action settlement in a manner consistent with the following analysis.
To the extent not otherwise defined herein, all capitalized terms shall have the same meaning as used in the parties' Settlement Agreement. (Doc. # 52-1).
I. Background
This case was initiated by Raymond D. Arlozynski, on behalf of himself and all others similarly situated, against Rubin Debski, PA, Arthur D. Rubin, and Michael T. Debski on November 13, 2009. (Doc. # 1). Plaintiffs allege that Defendants are debt collectors, that Defendants regularly use the mails and the telephone in a business the principal purpose of which is to collect debts, and that Defendants failed to inform the consumers that the purpose of the telephone calls in question was to collect a debt or that the calls were from a debt collector in violation of the Fair Debt Collection Practices Act. 15 U.S.C. § 1692, et seq.
On May 17, 2010, the parties jointly moved to certify the action as a class action. (Doc. # 25). After considering the motion (Doc. # 25), the detailed memorandum (Doc. # 26), and the declarations on file (Doc. # 27-29), the Court granted the unopposed motion to certify the action as a class action. (Doc. # 34).
On December 14, 2010, Plaintiffs filed a notice of settlement (Doc. # 49), and on January 28, 2011, the parties filed a Joint Motion for Court Approval of the Class Action Settlement. (Doc. # 52). On February 3, 2011, this Court entered an Order that, among other things, preliminarily approved the settlement and scheduled the fairness hearing. (Doc. # 53).
The settlement class is: "(i) all Florida residents to whom Defendants left a telephone message (ii) in which Defendants failed to state it is from a debt collector, and/or that it was an attempt to collect a debt (iii) in an attempt to collect a debt incurred for personal, family, or household purposes allegedly due to Target National Bank/Target Visa (iv) during the one year period prior to the filing of the complaint in this matter through the date of class certification." (Doc. # 52-1 at 3). Donald A. Yarbrough, Esq. and O. Randolph Braggs, Esq. are Class Counsel. The Class Representative is Raymond D. Arlozynski.
Any member of the class who did not wish to be bound by the settlement agreement was required to opt out of the settlement by April 12, 2011. (Doc. # 53 at 2). According to the affidavit of the claims administrator, only one person opted out of the settlement. (Doc. # 57).
The Court set the deadline of April 12, 2011, to file an objection to the settlement and there were no objections to the settlement. No one filed an objection to the settlement, and no one appeared at the final fairness hearing to state an objection to the settlement.
II. Final Fairness Hearing
A district court's adoption of a class action settlement is governed by Federal Rule of Civil Procedure 23(e). That rule requires that the settlement be "fair, reasonable and adequate." During the final fairness hearing, the Court considered the factors enumerated by the Eleventh Circuit in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) and required counsel to address the following questions as framed by the Bennett court:
(1) What is the likelihood of success at trial?
(2) What is the range of possible recovery?
(3) What is the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable?
(4) What is the level of complexity, expense, and duration of the litigation?
(5) Is there any opposition to the settlement?
(6) At what stage of the proceedings was the settlement reached?
In addition to the aforementioned questions, the Court required counsel to address the questions listed in the Manual for Complex Litigation, Fourth, § 21.62, including, but not limited to:
(1) What are the advantages of the proposed settlement versus the probable outcome of a trial on the merits of liability and damages as to the claims, issues, or defenses of the class and individual class members?
(2) What is the probable time, duration, and cost of trial?
(3) What is the extent of participation in the settlement negotiations by class members or the class representative, and by the Court?
(4) What effect will this settlement have on other pending actions?
(5) Please describe the reasonableness of the provisions for attorney fees, including agreements on the division of fees among the attorneys and the terms of any agreements affecting the fees to be charged for representing individual claimants or objectors.
(6) Is the named Plaintiff receiving an inappropriately different remedy than the other class members?
(7) Is the settlement amount much less than the estimated damages incurred by members of the class as indicated by preliminary discovery or other objective measures, including settlement or verdicts in individual cases?
(8) Was the settlement completed at an early stage of the litigation without discovery and with uncertainties remaining?
(9) Does the defendant have an incentive to restrict payment of claims because the defendants may reclaim residual funds?
(10) Are attorney's fees so high in relation to the actual class recovery that the fees suggest a possibility of collusion?
(11) Should this case be dismissed with prejudice pursuant to the terms of the Settlement or should this Court retain jurisdiction?
Counsel provided thorough and complete answers to each of the Court's above-described inquiries. Counsels' responses provide the Court with a firm basis for approving the settlement as fair, reasonable, and adequate. In addition, the fact that not a single objection was raised lends support to the fairness of the settlement.
After hearing from both sides on the issues noted above during the final fairness hearing, and after conducting an independent review of each item in the record, the Court finds that it is appropriate to approve the settlement. In addition, the Court makes the following findings and issues the following directives concerning this class action settlement:
The Court declines to retain jurisdiction over this matter. However, Class Counsel may file a motion for attorneys' fees and costs within 60 days of the date of this Order regardless of whether, at the time Class Counsel submit the motion, this case has been closed by the Clerk.
ORDERED, ADJUDGED, and DECREED: GRANTS CLOSE THE CASE.
1. The Court Final Approval of the Class Action Settlement as specified above. 2. This case is hereby dismissed. 3. The Clerk is directed to DONE and ORDERED in Chambers, in Tampa, Florida.