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KANG v. COLDATA

United States District Court, Northern District of California


August 18, 2003

TEJUNE KANG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
COLDATA, INC., A CORPORATION, DEFENDANT

The opinion of the court was delivered by: William Haskell Alsup, District Judge

FINAL JUDGMENT AND ORDER

AND NOW, this 14th day of August, 2003, upon consideration as to whether the proposed settlement of the above-referenced litigation (the "Litigation") should be finally approved, the parties having presented their Agreement of Settlement to the Court and the Court having held a hearing on the fairness of the proposed settlement of the Litigation, at which objectors to the settlement could appear, and the Court being fully advised, the Court finds that:

A. Notice of the proposed settlement has been duly sent to: All persons in California who, in February or March 2001, were sent one or both of the letters substantially in the form of the two letters sent to the Plaintiff, copies of which are attached to Plaintiffs Complaint as Exhibits A and B, who have been identified by defendant Coldata, Inc. in the list of 23,948 accounts provided to plaintiff in February 2003 and to whom plaintiff mailed a copy of the Notice of Class Action on March 24, 2003, which notice was not confirmed as undeliverable, and who did not exclude themselves from the Class. The Court finds that the Notice provided constitutes the best notice practicable under the circumstances and fully satisfies the requirements of Rule 23(c) of the Federal Rules of Civil Procedure.

B. The total number of Class members who timely requested exclusion from the Class is seventeen (17). Those members are listed on Schedule A attached hereto and they are not bound by this Final Judgment and Order.

C. The issues as to liability and remedies, if any, in the Litigation are issues as to which there are substantial grounds for difference of opinion, and the proposed settlement of the Litigation constitutes a resolution of those issues that is fair, reasonable and adequate to the members of the Class certified herein.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:

1. The Agreement of Settlement submitted herein is approved as fair, reasonable, and adequate pursuant to Rule 23 of the Federal Rules of Civil Procedure and the parties are directed to consummate the Agreement in accordance with its terms. All terms defined in the Agreement of Settlement have the same meanings when used herein.

2. A permanent injunction is hereby entered with respect to the use of the form collection letters substantially similar to the letters attached to the Complaint as Exhibits A and B. As of the Effective Date of this settlement, and continuing through perpetuity, Coldata, Inc. shall not use in any manner in the State of California form collection letters substantially similar to the letters attached to the Complaint as Exhibits A and B in connection with collecting, or attempting to collect, debts incurred primarily for personal, family or household purposes.

3. Coldata, Inc., and the Releasing Parties, are hereby enjoined and barred from bringing any claim, action, or cause of action against the Representative Plaintiff, or any of his attorneys herein, administrators, successors, or assigns that have been released under the Agreement of Settlement.

4. The Litigation is hereby dismissed, with prejudice and without costs, and all Class Members who did not timely request exclusion (as reflected on Schedule A attached hereto) (the "Releasing Parties") shall be barred and enjoined from bringing any and all claims, actions and causes of action, known or unknown, from the beginning of time until the date of this Final Judgment and Order, in law or in equity, that: (a) arise out of or relate in any way to the claims asserted in the Litigation by the Class Representative; or (b) relate to or arise from the initiation, litigation or settlement of the Litigation or the administration of the settlement, against Coldata, Inc. or any of its parents, affiliates or subsidiaries, or any of their respective past, present or future officers, directors, stockholders, representatives, employees, attorneys, consultants, accountants, investment or commercial banks, advisors, insurers, reinsurers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates, administrators, predecessors, successors and assigns, the Representative Plaintiff, his agents, employees, successors and assigns (collectively the "Released Parties").

5. The release extends to claims that the Releasing Parties do not know or suspect to exist at the time of the release, which if known, might have affected the Releasing Parties' decision regarding the release contained in the Settlement.

6. The Releasing Parties acknowledge that they may discover facts in addition to or different from those that they now know or believe to be true with respect to the subject matter of this release, but that it is their intention to fully, finally and forever settle and release any and all claims released hereby, as described in paragraph 4 herein, whether known or unknown, suspected or unsuspected, which now exist, or heretofore existed, prior to the date of the entry of this Order, and without regard to the subsequent discovery or existence of such additional or different facts.

7. The Court determines that Plaintiff is the prevailing party and is entitled to an award of attorney's fees and reimbursement of litigation expenses. A separate order shall issue CONCERNING final determination the amount due. These amounts shall be paid from funds separate and apart from the Settlement Fund created for the benefit of the Class, and payment of these amounts to Class Counsel will not reduce the amount available for payment to the Class.

8. The Representative Plaintiff, Tejune Kang, is awarded the sum of One Thousand Dollars ($1,000.00) Dollars statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(B)(i) as compensation for his individual claim. Within five (5) business days following the Effective Date of the Settlement as defined in the Agreement of Settlement, Tejune Kang shall be paid the total sum of $1,000 in accordance with the terms of the Agreement of Settlement from monies separate and apart from the Settlement Fund created for the benefit of the Class, and payment of these amounts to the Representative Plaintiff will not reduce the amount available for payment to the Class.

9. By no later than September 2, 2003, the Claims Administrator shall provide Class Counsel and Defendant with a report which will be filed with the Court on the number of claiming Class Members by name, address and telephone number, if provided. Within fourteen (14) days after the report is filed with the Court and served upon Class Counsel and Defendant, and in accordance with the terms of the Agreement of Settlement, Coldata, Inc. or its designee shall mail checks to each Class Member who returned Claim Forms and who did not exclude themselves from the settlement, for each Class Member's pro rata share of the Settlement Fund, for a total payment not to exceed One Hundred ($100.00) Dollars per claim and no more than Sixty-Six Thousand Five Hundred ($66,500.00) Dollars in the aggregate. The settlement checks shall be dated as of the date of mailing and shall be marked "VOID IF NOT CASHED WITHIN 90 DAYS."

10. To the extent that Class Members' checks are returned or remain uncashed for a period of ninety (90) days after mailing, or each claiming Class Member receives the maximum share of One Hundred ($100.00) Dollars and there still remains a portion of the Settlement Fund undistributed, the remainder of all undistributed funds in the Settlement Fund, plus accrued interest, will be distributed to Class Counsel in accordance with the terms of the Agreement of Settlement, who will distribute the funds to California Consumer Action.

11. Consummation of the Settlement shall proceed as described in the Agreement of Settlement and the Court hereby retains jurisdiction of this matter in order to resolve any disputes which may arise in the implementation of the Agreement of Settlement or the implementation of this Final Judgment and Order. The Court retains continuing jurisdiction for purposes of supervising the implementation of the Agreement of Settlement and supervising the distribution and allocation of the Settlement Fund and the Net Settlement Fund.

12. This Final Judgment and Order, and the Agreement of Settlement and all papers related to it, are not, and shall not be construed to be, a concession or admission, and shall not be used against Coldata, Inc. or any of the Released Persons, as an admission or indication with respect to any claim of any fault or omission by any of them. Neither this Final Judgment and Order, the Agreement of Settlement, nor any document, statement or proceeding related to this Final Judgment and Order or the Agreement of Settlement, nor any reports or accounts thereof, shall in any event be:

a. Construed as, offered in evidence as, received in evidence as, and/ or deemed to be, evidence of a presumption, concession, indication or admission by Coldata, Inc. or any of the Released Persons, of the truth of any fact alleged or the validity of any claim which has been, could have been, or in the future might be asserted in any litigation, or of the deficiency of any defense which has been, could have been, or in the future might be asserted in any litigation, or of any liability, fault or wrongdoing whatsoever; or

b. Construed as, offered in evidence as, received in evidence as, and/ or deemed to be, evidence of a presumption, concession, indication or an admission of any

fault, breach of duty, wrongful act, or misrepresentation or omission in any statement or written document approved or made by Coldata, Inc. or any of the Released Persons, or the approval or making of which was participated in by Coldata, Inc. or any of the Released Persons; or

c. Construed by anyone for any purpose whatsoever as evidence of a presumption, concession, indication or any admission of any liability, fault, wrongdoing or otherwise on the part of Coldata, Inc. or any of the Released Persons; or

d. Construed as, offered in evidence as, received as, and/or deemed to be, evidence of a presumption, concession or an admission that the Representative Plaintiff, the Settlement Class or any of them has in fact suffered any damage, or that Coldata, Inc. or any of the Released Persons, are liable to the Representative Plaintiff, any Class Members, or any other person; or

e. Referred to or offered or received in evidence in any other civil, criminal or administrative action or proceeding against Coldata, Inc. or any of the Released Persons, except to enforce the terms of the Agreement.

Kang v. Coldata, Inc. — Opt Out Report 5/22/2003

Class Member Acct No. Class Member Name

28T1932864 TRAN, HUNG 28T684976 VIOLANTE, LEONARD J 28T706852 ALGEE, ROGER W 28T738267 WALKER, MARGIE 28T739333 GUSTAFSON, ROBERT V 28T777072 SIMAS, JUDITH L 28T782094 OBAUGH, CARL W 28T826861 MILLIGAN, CAROL A 28T836600 VINCENT, MELVIN E 28T850486 SPOSATON, ANTHONY 28T857956 HOUGLAND, ROBERT 28T915178 ILLINGWORTH, LARRY 28T952853 MARKOU, STERGIOS 28T955995 PHELPS, RON 28T973489 TILKENS, MIKE C 34T1881721 CLARK, JULIE A 34T1963603 SALMERON, ESTER M
20030818

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