United States District Court, M.D. Florida, Orlando Division
JIM YOUNGMAN and ROBERT ALLEN, individually and on behalf of a class of all persons and entities similarly situated, Plaintiffs,
A&B INSURANCE AND FINANCIAL, INC., Defendant.
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
PLAINTIFF'S UNOPPOSED SECOND RENEWED
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Doc. No.
February 14, 2018 THEREON it is
RECOMMENDED that the motion be
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
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.
tentatively defined the class in the Amended Complaint as the
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.
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.
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.
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,  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.”).
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.
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.
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.
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
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 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.
Class Certification Requirements
Plaintiffs' Motion is uncontested, the Court performs a
“rigorous analysis” to ensure that the movant
meets the Rule 23 requirements before certifying a ...