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

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

March 22, 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 SECOND RENEWED

         MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Doc. No. 61)

         FILED: February 14, 2018 THEREON it is RECOMMENDED that the motion be GRANTED.

         I. FACTUAL BACKGROUND

         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, 61. In the Amended Complaint, Plaintiffs Jim Youngman and Robert Allen allege that Defendant allegedly “uses telemarketing to attempt and obtain new clients.” Doc. No. 42 at ¶ 22. They allege that Defendant “placed multiple telemarketing calls to telephone numbers registered on the National Do Not Call Registry [(the “Registry”)] and made prerecorded calls placed via an Automatic Telephone Dialing System [(“ATDS”)] to cellular telephones, all in violation of the TCPA.” Id. at ¶ 2. Plaintiffs allege that Youngman received calls from Defendant on January 18 and 20, 2016, in addition to other dates, “from telemarketing representatives calling from” Defendant and that his telephone number was on the Registry. Id. at ¶¶ 20, 23. Plaintiffs also allege that “Defendant has received a number of complaints related to calling individuals who were on state or federal Do Not Call registries.” Id. at ¶ 28.

         Plaintiffs claim that Allen received “a prerecorded telephone call placed via an ATDS . . . on his cellular telephone promoting the goods and services of [Defendant] in December of 2015.” Id. at ¶ 32. Plaintiffs filed a one-count class action complaint against Defendant for allegedly violating the TCPA by making or hiring people to make the calls to Plaintiffs. Id. at 9-10. Plaintiffs allege, “Under the TCPA, a seller of a product or service may be vicariously liable for a third-party marketer's violations of Section 227(b), even if the seller did not physically dial the illegal call, and even if the seller did not directly control the marketer who did.” Id. at ¶ 33.

         Plaintiffs tentatively defined the class in the Amended Complaint as the following:

All persons within the United States whom Defendant, through a third party call center, initiated either: (a) more than one telemarketing call within any twelve-month period to phone numbers registered on the . . . Registry for at least 31 days; or (b) any telephone calls to cellular telephone numbers using an [ATDS] or an artificial or prerecorded voice between August 18, 2012 through April 26, 2017, as reflected in the records produced by the third party call centers. These individuals are identified in the February 21st, 2017 expert report of Anya Verkhovskaya.

Id. at ¶ 38. Plaintiffs excluded the following from the class: “Defendant, and any entities in which the Defendant [has] a controlling interest, the Defendant's agents and employees, any Judge to whom this action is assigned and any member of such Judge's staff and immediate family.” Id. at ¶ 39.

         Plaintiffs request injunctive relief; statutory damages of $500 and treble damages of up to $1, 500, per call; their attorney's fees and costs for them and the proposed class; and certification of this action as a proper class action under Federal Rule of Civil Procedure 23, establishing a class as the Court deems appropriate, finding that Plaintiffs are proper representatives of the class, and appointing Plaintiffs' counsel as class counsel. Id. at 9-10.

         In April 2017, the parties mediated this case and agreed to the parameters of a class action settlement. Doc. No. 61 at 8. On May 31, 2017, Plaintiff filed an Unopposed Motion for Preliminary Approval of Class Action Settlement. Doc. No. 46. On September 29, 2017, a Report and Recommendation was issued recommending that the motion be denied due to numerous deficiencies. Doc. No. 52. On October 6, 2017, the parties filed a Joint Notice of No. Objection to Report and Recommendation of the Magistrate Judge. Doc. No. 53. On November 7, 2017, the parties filed a renewed motion seeking preliminary approval of their settlement, in which they corrected the deficiencies noted in the Report and Recommendation. Doc. No. 57. On February 2, 2018, the undersigned issued a Report and Recommendation on the renewed motion, noting the correction of the previous deficiencies and the existence of new ones. Doc. No. 59. On February 14, 2018, the parties filed a Joint Notice of No. Objection to that Report and Recommendation. Doc. No. 60. Also on February 14, 2018, Plaintiffs filed their Unopposed Second Renewed Motion for Preliminary Approval of Class Action Settlement, which is now pending before the Court (the “Motion”). Doc. No. 61. In support of the Motion, Plaintiff includes: 1) the Second Amended Class Action Settlement Agreement (the “Agreement”), Doc. No. 62 at 2-28; 2) a proposed Final Approval Order and Judgment, id. at 30-37; 3) the Proposed Notice, id. at 39-49; 4) a proposed Preliminary Approval Order, id. at 51-61; 5) proposed Internet advertisements for the class action settlement, id. at 63-68; 6) the Data Analysis Report of Anya Verkhovskaya, Doc. No. 61-2, 7) the Declaration of Eric Robin Regarding Class List, Doc. No. 61-3; and 8) Plaintiffs' counsel's affidavits attesting to their qualifications and costs incurred in litigating this action, Doc. Nos. 61-4 through 61-7.

         II. APPLICABLE LAW

         Plaintiffs seek preliminary approval of the settlement of this proposed class action. Doc. No. 61 at 22. The Agreement contemplates preliminary approval of it, certification of a settlement class, [1] followed by notice to the settlement class, a period for claims to be submitted by the members of the settlement class, and ultimately, after a hearing, this Court's entry of a final order certifying the settlement class and approving the settlement. Doc. No. 62 at 7, 12, 15, 17-20. “A class may be certified ‘solely for purposes of settlement where a settlement is reached before a litigated determination of the class certification issue.'” Diakos v. HSS Sys., LLC, 137 F.Supp.3d 1300, 1306 (S.D. Fla. 2015). “Whether a class is certified for settlement or for trial, the Court must find that the prerequisites for class certification under Rule 23(a) and (b) of the Federal Rules of Civil Procedure are met.” Id. The Court is mindful that to grant final approval of a settlement class it must perform a “rigorous analysis” to ensure that the movant meets the Rule 23 requirements before certifying a class. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems . . . . But other specifications of [Rule 23] - those designed to protect absentees by blocking unwarranted or overbroad class definitions - demand undiluted, even heightened, attention in the settlement context.”).

         Although not explicitly stated in Rule 23, the Eleventh Circuit has also required that the class representative has standing to sue and the proposed class is adequately defined and clearly ascertainable. See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (“[P]rior to the certification of a class … the district court must determine that at least one named class representative has Article III standing to raise each class subclaim”); Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016). Rule 23(a) is satisfied when the movant shows: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).

         Should the movant attempt to certify a class under Rule 23(b)(3), after meeting the requirements of 23(a), two additional requirements must be satisfied. First, the movant must show that the questions of law or fact common to the class members predominate over any questions affecting individual members. Fed.R.Civ.P. 23(b)(3). Second, the movant must show that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Id.

         If a party attempts to certify a class under Rule 23(b)(3), then notice must be provided to all class members. Miles v. Am. Online, Inc., 202 F.R.D. 297, 305 (M.D. Fla. 2001). Federal Rule of Civil Procedure 23(c)(2) requires that the notice be as “best [as] practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Id. (citing Fed.R.Civ.P. 23(c)(2)(B)). When reviewing the settlement for preliminary approval, the Court must “review and approve the proposed form of notice to the class …” Family Med. Pharmacy, 2016 WL 7320885, at *5.

         The Court is required “to make a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms.” Fresco v. Auto Data Direct, Inc. No. 03-61063-CIV, 2007 WL 2330895, at *4 (S.D. Fla. May 14, 2007). When making such a determination, the Court decides whether the proposed settlement “is within the range of possible approval or, in other words, [if] there is probable cause to notify the class of the proposed settlement.” Id. (citations and quotations omitted). “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.” In re Checking Account Overdraft Litigation, 275 F.R.D. 654, 661 (S.D. Fla. 2011) (citations omitted). After determining the fairness of the settlement terms, the Court must “communicate the proposed settlement to the class, review and approve the proposed form of notice to the class, and … authorize the manner and form of dissemination of the notice.” Family Med. Pharmacy, LLC v. Perfumania Holdings, No. 15-0563-WS-C, 2016 WL 7320885, at *5 (S.D. Ala. Dec. 14, 2016) (citations omitted). Thus, to grant preliminary approval of the Agreement and the settlement class, the Court determines whether the requirements of Rule 23 are met and examines the fairness of the Agreement.

         III. ANALYSIS

         Plaintiffs propose a class consisting of the following:

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[2] 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 . . . Registry for at least 31 days; or (b) any telephone calls to a cellular telephone number using an [ATDS] or an artificial or prerecorded voice. Excluded from the Settlement Class are the Defendant, and any entities in which the Defendant has a controlling interest, the Defendant's agents and employees, any judge to whom this action is assigned and any member of such judge's staff and immediate family.

Doc. No. 61 at 9.

         A. Class Certification Requirements

         Although Plaintiffs' Motion is uncontested, the Court performs a “rigorous analysis” to ensure that the movant meets the Rule 23 requirements before certifying a ...


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