The opinion of the court was delivered by: Hon. Philip S. Gutierrez
[PROPOSED REVISED] FINAL JUDGMENT AND ORDER
On August 22, 2008, this Court entered an order granting preliminary approval (the "Preliminary Approval Order") of the Settlement Agreement and settlement of this action and conditionally certifying, for settlement purposes only, a Settlement Class.
On February 23, 2009, the Court held a fairness hearing (the "Final Settlement Hearing"), for which members of the Settlement Class had been given appropriate notice. The Final Settlement Hearing was held in Courtroom 290 at the District Court for the Central District of California in Los Angeles, California. An opportunity to be heard was given to all persons requesting to be heard in accordance with the Preliminary Approval Order.
Having considered all papers filed in connection with the Final Settlement Hearing, including the "Motion for Final Approval of Settlement," the "Motion for Fees" and the "Motion for Incentive Award," and statements made on the record,
THE COURT HEREBY FINDS AND ORDERS:
1. This Court has jurisdiction over Plaintiff Gibson & Company Insurance Brokers, Inc. ("Plaintiff"), Defendants QFA Royalties LLC, Quizno's Franchising II LLC, QIP Holder LLC, TQSC II LLC, QAFT, Inc., as Trustee and on behalf of the National Marketing Fund Trust and the Regional Advertising Program Trust, American Food Distributors LLC, The Quizno's Master LLC, QCE LLC, Quizno's Franchising LLC, Continental Lending Group LLC, Premiere Global Services, Inc., Xpedite Systems, LLC d/b/a/ Premiere Global Services, and Growth Partner LLC ("Defendants"), members of the Settlement Class, the Claims Administrator, the claims asserted in this lawsuit, the claims made by Settlement Class members (including the determination of any challenges thereto), and the claims and causes of action released in paragraphs 14B, 14C and 14E of the Settlement Agreement.
2. This Court finds that the Settlement Agreement has been entered into in good faith following arm's length negotiations and is non-collusive.
3. This Court grants final approval of the settlement and Settlement Agreement, including but not limited to the releases therein, and finds that the settlement and Settlement Agreement are in all respects fair, reasonable, adequate, and in the best interests of the Settlement Class. No Settlement Class member filed an objection to the Settlement Agreement or to any of the Motions pending before the Court. Therefore, all members of the Settlement Class who have not requested exclusion from the Settlement Class are bound by this Final Judgment and Order.
4. The Court finds and concludes, with respect to the Settlement Class, that (a) the members of the Settlement Class are so numerous that joinder of all Settlement Class members is impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of the proposed representative plaintiff are typical of the claims of the Settlement Class; (d) the proposed representative plaintiff and Settlement Class Counsel have and will fairly and adequately protect the interests of the Class; (e) the questions of law and fact common to members of the proposed Settlement Class predominate over questions affecting only individual members, and a class action is superior to other available methods of fairly and efficiently adjudicating the controversy. The Court finds that certification of the Settlement Class is appropriate under Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).
5. The provisionally certified Settlement Class is now finally certified, for purposes of effectuating the settlement, pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), as follows:
All subscribers, as of November 1, 2005, of any telephone facsimile number to which the form of facsimile attached as Exhibits 1 and 2 to the Third Amended Complaint (collectively the "Fax") was successfully transmitted, as reflected in the Premiere Defendants' transmission records produced in the Lawsuit.
6. The certification of the Settlement Class is non-precedential and without prejudice to Defendants' and Plaintiff's rights under the Settlement Agreement if the Settlement Agreement and this Final Judgment and Order do not become effective, as provided in paragraph 3 of the Settlement Agreement.
7. In its Preliminary Approval Order, the Court designated Gibson & Company Insurance Brokers, Inc. as representative of the Settlement Class. The ...