The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
(1) ADOPTING SPECIAL MASTER'S REPORT AND RECOMMENDATION AND (2) GRANTING JOINT MOTION CERTIFYING CLASS AND PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT [Doc. Nos. 24, 28]
On April 12, 2012, at the Parties' request, the Court appointed Judge Herbert B. Hoffman (Ret.) to serve as a Special Master per Fed. R. Civ. P. 53. Judge Hoffman was appointed to assist with all settlement issues, including necessary reports and recommendations on proposed findings and orders in the case.
On April 6, 2012, after the extensive arms-length negotiations, and mediation before Special Master Hoffman, Plaintiff and Defendant (herein jointly referred to as the "Parties") entered into a Class Action Settlement Agreement (hereinafter referred to as the "Agreement"), which is subject to review under Fed. R. Civ. P. 23, for the monetary damages as set forth in the Agreement. Further, Defendant agreed to an 18 month Stipulation and Order for Injunction (hereinafter referred to as the "Stipulated Injunction").
Pursuant to their Joint Motion for Preliminary Approval of Class Action Settlement Agreement (hereinafter referred to as the "Preliminary Approval Motion"), the Parties now request preliminary certification of a Fed. R. Civ. P. 23(b)(2) and (b)(3) settlement class and preliminary approval of the proposed class action settlement.
Special Master Hoffman has issued a report and recommendation, recommending that the Court preliminarily certify this Lawsuit as a class action and preliminarily approves the proposed class action settlement.
The Court has read and considered the Agreement, Preliminary Approval Motion, Special Master Hoffman's Report and Recommendation and the record. All capitalized terms used herein have the meanings defined herein and/or in the Agreement.
NOW, THEREFORE IT IS HEREBY ORDERED: 1. JURISDICTION: The Court has jurisdiction over the subject matter of the Lawsuit and over all settling parties hereto.
2. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT:
The Court preliminarily finds that the settlement of the Lawsuit, on the terms and conditions set forth in the Agreement, and the Exhibits thereto, is in all respects fundamentally fair, reasonable, adequate, and in the best interests of the Settlement Class members, especially in light of the benefits to the Settlement Class members, the strength and weaknesses of the Plaintiffs case, the complexity, expense and probable duration of further litigation, the risk and delay inherent and possible appeals. The class list will also be provided to Class Counsel as per the Settlement Agreement. The Court also preliminarily approves the Stipulated Injunction attached to the Agreement as Exhibit 5. Provided that the Settlement is finally approved, the Court will enter the Stipulated Injunction upon entry of the Final Judgment and Order of Dismissal with Prejudice. The Court finds that the Agreement is sufficient to warrant notice of the Settlement to the persons in the Settlement Class and a full hearing on the approval of the Settlement.
In compliance with the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, and as set forth in the Agreement, Defendant shall be ultimately responsible for serving written notice of the proposed class action settlement on the U.S. attorney general and the attorney general of each state, with the parties agreeing such notices to be given by the Claims Administrator under the direction of the Defendant.
Pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3), the Lawsuit is hereby preliminarily certified, for settlement purposes only, as a class action on behalf of the "Settlement Class" shall mean all persons with unique cell phone numbers within the United States who were called by Defendant as identified in Defendant's records, between August 25, 2006, through August 25, 2010, on their paging service, cellular telephone service, mobile radio service, radio common carrier service, or other service for which they were charged for the call, through the use of any automatic telephone dialing system as set forth in 47 U.S.C. Section 227(b)(1)(A)(iii) or artificial or prerecorded voice , which resulted in a contact, i.e., a live connection or a prerecorded voice message, identified by Defendant from their records in discovery and confirmatory discovery as one of the approximately 600,000 unique cell phones they called, and as identified in Defendant's records to be provided to the Claims Administrator ...