United States District Court, S.D. Florida
DESIREE MARENGO, Individually and on behalf of all Others similarly situated, Plaintiff,
MIAMI RESEARCH ASSOCIATES, LLC, d/b/a QPS MIAMI RESEARCH ASSOCIATES, a Florida corporation, Defendant.
ORDER DENYING FINAL APPROVAL TO CLASS ACTION
SETTLEMENT AND MOTION FOR ATTORNEYS' FEES WITHOUT
LAWRENCE KING UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court upon Plaintiffs
Unopposed Motion for Approval of Settlement, Attorney Fees,
and Expenses (DE 48) filed March 2, 2018.
April 26, 2018, the Court held a duly noticed final approval
hearing to consider: (1) Whether the terms and conditions of
the Settlement Agreement are reasonable and adequate; (2)
whether a judgment should be entered dismissing Plaintiffs
Complaint on the merits and with prejudice in favor of
Defendant, Miami Research Associates ("MRA"); and
(3) whether and in what amount to award counsel for the
settlement class attorneys' fees and expenses and whether
and in what amount to award an incentive payment to
Plaintiff. No objections were filed as to the terms of the
Settlement Agreement and the Defendant is in full agreement
with the settlement, including the $390, 000 award of
attorney's fees that the Plaintiff has requested. For the
following reasons, the Court denies approval to the
parties' final Settlement Agreement and motion for
attorneys' fees and costs.
February 5, 2017, Plaintiff filed a class action complaint
against Defendant MRA alleging that MRA violated the
Telephone Consumer Protection Act ("TCPA"). The
TCPA is a federal privacy statute which affords consumers a
private right of action. The Plaintiff alleges that in
January 2017 she received three automated text message
advertisements on her cellular telephone from MRA (DE 1,
¶ 25). On March 22, 2017, the Defendant filed its answer
and affirmative defenses in response to Plaintiffs Complaint
(DE 10). On March 24, 2017, the Court entered its Scheduling
Order (DE 14) and discovery commenced thereafter.
February to December 2017, the parties engaged in limited
discovery. On July 27, Plaintiff moved to compel discovery
(DE 25). Defendant's Response objecting to Plaintiffs
Motion to compel (DE 32) was filed on September 1, 2017 and
denied on January 18, 2018 (DE 45) as moot. Other than this
motion, no other motions were filed. On October 25, 2017, the
parties participated in a one-day court-ordered mediation
that resulted in a settlement (DE 39). On December 18, 2017,
the Court granted preliminary approval to the proposed class
settlement, provisionally certified the class, approved the
procedure for giving class notice to the settlement class
members, and set fairness hearing (DE 44) for April 26, 2018
Settlement Agreement provides for a settlement fund requiring
Defendant to pay $130 for each text message submitted by
class members. The claims are subject to verification. The
settlement requires Defendant to make available up to $1,
236, 300 to pay timely and valid claim submissions, including
$390, 000 for attorneys' fees and costs associated with
the notice program and settlement administration.
Fairness Hearing, Plaintiff Class Counsel presented legal
argument in support of the Plaintiffs Motion for Final
Approval of the Settlement Agreement and presented the Court
with the final results of the settlement administration
process. Plaintiff counsel stated that of the apprxomiately
9, 500 consumers who received text message advertisements
from Defendant, 8, 263 individuals were mailed notices. Out
of the 8, 263 notices that were mailed out, a total of 3, 159
claims were submitted for verification. Ultimately, only 211
claims were validated. This resulted in a total cash benefit
potentially available to the Plaintiff class of $27, 430. At
the fairness hearing, no objections were raised and the
Defendant voiced that they were in full agreement with the
terms of the settlement. No witnesses were called or any
exhibits or documents offered by either counsel.
being questioned by the Court about plaintiffs theory of
calculation of his attorneys fee the transcript reflects:
4 THE COURT: So let me get this straight.
5 You set up a fund of close to one-and-a-quarter million
6 dollars. Out of that fund you're going to pay $27, 000,
7 you're going to walk away with $390, 000; is that what
you're 8 telling me?
9 MR. LEHRMAN: Your Honor, that is the settlement that 10 the
parties have reached.
11 That is accurate, what Your Honor has recited.
12 THE COURT: But my obligation is to make a 13 determination
whether that is ...