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Valdivieso v. Cushman & Wakefield Inc.

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

May 11, 2018




         Luis Valdivieso sues (Doc. 14) Cushman & Wakefield for violating COBRA's notice requirements. According to Valdivieso, the notice mailed to former employees fails to specify the day on which COBRA coverage ends and fails to include the address to which a person who elects COBRA coverage must remit the COBRA insurance premium. The parties move (Doc. 88) for certification of a settlement-only class, for preliminary approval of the settlement, for appointment of class counsel, and for approval of the class notice. Under the settlement, Cushman & Wakefield will establish a $390, 000 “settlement fund.” After accounting for an attorney's fee, reasonable expenses, and an incentive award for Valdivieso, each class member likely will receive about $100.


         1. Class certification

         The parties propose a class comprising:

All persons who were sent a COBRA Notice or should have been sent a COBRA notice by or on behalf of C&W at any time from February 1, 2015 through December 31, 2016, excluding any individuals who timely file a valid written notice of intent to opt out of the Settlement.

         (Doc. 88 at 6) The proposed class satisfies the requirements of Rule 23(a), Federal Rules of Civil Procedure. The class includes at least 2, 300 people, and each proposed class member received or should have received the notice over which Valdivieso sues. Valdivieso's claims in this action appear typical of the claims of other class members, and nothing in the record suggests that Valdivieso will not fairly and adequately protect the interests of the class members.

         Also, common questions of law and fact predominate over individualized questions. Cushman & Wakefield or its agent sent the same notice to every class member, and each notice suffers from the same alleged defects. In this instance, a class action preempts hundreds (or thousands) of trials over the same legal and factual questions. The settlement-only class satisfies Rule 23(b)(3) and avoids the prospect of “intractable management problems.” See Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).

         2. Preliminary approval

         If fair, adequate, and reasonable, a class-action settlement merits preliminary approval. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (identifying considerations pertinent to the fairness of a proposed settlement). Also, the settlement must not result from collusion between the parties or the counsel. Bennett, 737 F.2d at 986. Brett Preston, a mediator certified in the Middle District of Florida, mediated this action twice, and the record shows no evidence of collusion.

         Under the settlement, each class member likely will receive about $100. In an action over an allegedly defective COBRA notice, a plaintiff often receives a nominal sum. If the defect in a COBRA notice is merely “technical, ” a plaintiff might recover no damages. (Doc. 88 at 14-15, which collects decisions) Also, Cushman & Wakefield asserts as a defense that each class member received notice of both the termination date for COBRA coverage and the address to which a class member could remit a COBRA payment. Cushman & Wakefield's success on that defense would result in class members' recovering no money. The product of more than eight months of discovery (including several depositions by the plaintiff's counsel), the settlement will avoid protracted litigation. The parties agree that, “even if [Valdivieso] had won certification of a class and litigated the class claims to a successful conclusion, it is likely that [Cushman & Wakefield] would have appealed any judgment entered against it, resulting in further delay and expensive.” (Doc. 88 at 17) In this circumstance, the settlement appears to resolve this action fairly, adequately, and reasonably.

         Additionally, the parties request the appointment of Luis A. Cabassa, Brandon J. Hill, and Chad A. Justice, each of whom has served as class counsel in other actions, to represent the class in this action. Because the counsel appear capable of adequately protecting the class, the request warrants granting. Cabassa, Hill, and Justice are appointed class counsel. Also, American Legal Claim Services, LLC, is appointed the class administrator.

         3. Class notice

         The parties propose mailing a “short form” notice (Doc. 88-1 at 57-58) to each class member. The notice describes the action (including the claims and defenses), defines the class, and explains that a class member may appear through ...

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