The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court
FINAL JUDGMENT AND ORDER [Doc. Nos. 54 and 55]
On February 10, 2010, this Court entered an order granting preliminary approval (the "Preliminary Approval Order") of the Settlement Agreement and conditionally certified, for settlement purposes only, a Settlement Class.
On May 21, 2010, the Court held a fairness hearing (the "Final Approval Hearing"), for which members of the Settlement Class had been given appropriate notice. The Final Settlement Hearing was held in Courtroom A at the District Court for the Southern District of California in San Diego, 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 Approval Hearing, including the Motion for Final Approval of Class Action Settlement and Motions for Award of Attorneys' Fees and Reimbursement of Litigation Expenses and for Incentive Award, and statements made on the record and observing that no objections have been filed and served in connection with any of these Motions, THE COURT HEREBY FINDS AND ORDERS:
1. This Court has jurisdiction over plaintiff T. Peter Tague DC ("Plaintiff"), defendant HealthFusion, Inc. ("HF") and members of the Settlement Class, the claims asserted in this lawsuit, the claims made by Settlement Class members (including the determination of any disputes thereto), and the claims and causes of action released in paragraph 13 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 Agreement and finds that the settlement is in all respects fair, reasonable, adequate, and in the best interests of the Settlement Class. All members of the Settlement Class who have not validly requested exclusion from the Settlement Class (as identified on Exhibit "A" to the Supplemental Declaration of Rachel Christman) are bound by this Final Judgment and Order.
4. The Court finds and concludes, with respect to the Settlement Class, that it meets the requirements of F.R.Civ.P. 23 as follows: (a) the members of the proposed 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 proposed Settlement Class; (c) the claims of the proposed representative plaintiff are typical of the claims of the proposed Settlement Class; (d) the proposed representative plaintiff and proposed Settlement Class Counsel have and will fairly and adequately protect the interests of the proposed Settlement Class; (e) the prosecution of separate actions by individual class members could create a risk of inconsistent or varying adjudications or, as a practical matter, be dispositive of the interests of other class members not parties to the individual adjudications; (f) HF has acted on grounds the apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole; and (g) the questions of law and fact common to members of the proposed Settlement Class predominate over questions affecting only individual members; and (h) a class action is superior to other available methods of fairly and efficiently adjudicating the controversy.
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 of telephone facsimile numbers between February 12, 2008 and September 9, 2008, inclusive, to which one or more of the forms of facsimile templates attached as Exhibit "A" to the Settlement Agreement (the "Faxes") were successfully transmitted, according the transmission report of HealthFusion, Inc. ("Transmission Report").
6. The certification of the Settlement Class is non-precedential and without prejudice to HF's 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 paragraphs 3 and 20 of the Settlement Agreement.
7. In its Preliminary Approval Order, the Court designated T. Peter Tague DC as representative of the Settlement Class. The Court hereby affirms that designation.
8. In its Preliminary Approval Order, the Court appointed Scott Z. Zimmermann, Of Counsel, Connolly, Finkel & Gosselin LLP and Ann M. Caldwell of Caldwell Law Office LLC as Settlement Class ...