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Youngman v. A&B Insurance and Financial, Inc.

United States District Court, M.D. Florida, Orlando Division

February 2, 2018

JIM YOUNGMAN and ROBERT ALLEN, individually and on behalf of a class of all persons and entities similarly situated, Plaintiffs,
v.
A&B INSURANCE AND FINANCIAL, INC., Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration without oral argument on the following motion:

MOTION: PLAINTIFF'S UNOPPOSED RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Doc. No. 57)
FILED: November 7, 2017
THEREON it is RECOMMENDED that the motion be DENIED.
MOTION: PLAINTIFF'S UNOPPOSED MOTION TO SUBMIT THE CLASS LIST UNDER PERMANENT SEAL (Doc. No. 58)
FILED:November 7, 2017
THEREON it is RECOMMENDED that the motion be DENIED AS MOOT.

         The matter before the Court is a proposed class action settlement under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Doc. Nos. 42, 57. On May 31, 2017, Plaintiffs filed an Unopposed Motion for Preliminary Approval of Class Action Settlement (the “Original Motion”). Doc. No. 46. On September 29, 2017, the undersigned entered a Report and Recommendation identifying issues in the Original Motion and accompanying documents that precluded granting the Original Motion. Doc. No. 52. On October 6, 2017, the parties filed a “Joint Notice of No. Objection to Report and Recommendation of the Magistrate Judge” (the “Joint Notice”). Doc. No. 53. The parties represented that they believed that the issues identified in the Report and Recommendation could be addressed with a revised settlement agreement and a renewed motion for preliminary approval. Id. On November 7, 2017, Plaintiffs filed an Unopposed Renewed Motion for Preliminary Approval of Class Action Settlement (the “Renewed Motion”). Doc. No. 57. Also on November 7, 2017, Plaintiffs filed an Unopposed Motion to Submit the Class List Under Permanent Seal (the “Motion to Seal”). Doc. No. 58.

         I. THE RENEWED MOTION.

         Accompanying the Renewed Motion for preliminary approval of the class action settlement are the Amended Class Action Settlement Agreement (the “Amended Agreement”), the proposed notice to potential members of the class (“Proposed Notice”), a proposed Preliminary Approval Order (“Preliminary Order”), a proposed Final Approval Order and Judgment (“Final Order”), and various affidavits. Doc. Nos. 57-1 through 57-8. After a careful review of the Renewed Motion and accompanying documents, the parties remedied the issues precluding approval identified in the Report and Recommendation. New issues precluding approval exist, however.

         A. Remedied Deficiencies

         One of the main issues precluding granting the Original Motion were the inconsistent definitions of Settlement Class, Releasing Parties, and Released Claims throughout the Amended Complaint, the Settlement Agreement, the proposed orders, and the proposed notice. Doc. No. 52 at 8, 10, 14-18, 19, 23. The parties rectified this issue, and the Settlement Class, Releasing Parties, and Released Claims all consistently refer to the following throughout the documents supporting the Renewed Motion:

all individuals and entities within the United States to whom, between August 18, 2012, and April 26, 2017, on the telephone numbers identified in the class list dated November 6, 2017, provided by KCC[1] to the Parties, Defendant, through a third party call center, initiated either: (a) more than one telemarketing call within any twelve-month period to a telephone number registered on the Do Not Call Registry for at least 31 days; or (b) any telephone calls to a cellular telephone number using an automatic telephone dialing system or an artificial or prerecorded voice. Excluded from the Settlement Class are the Defendant, and any entities in which the Defendant has a ...

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