United States District Court, S.D. California
WADE GRANT, on behalf of himself, all other persons similarly situated and the general public, Plaintiff,
CAPITAL MANAGEMENT SERVICES, L.P., Defendant.
WILLIAM Q. HAYES, District Judge.
The matters before the Court are the Joint Motion for Final Approval of Class Action Settlement ("Final Approval Motion") (ECF No. 118) and the unopposed Motion for Approval of an Award of Attorneys' Fees and Costs to Class Counsel and an Incentive Award to the Class Representative Plaintiff ("Motion for Attorneys' Fees") (ECF No. 119) filed by Plaintiff Wade Grant.
On September 17, 2010, Plaintiff initiated this action by filing a complaint in the Superior Court of California for the County of San Diego. (ECF No. 1 at 1). Plaintiff brings the complaint on behalf of himself and "all other similarly situated [individuals] defined as all persons within California who received any telephone call from Defendant to said person's cellular telephone through the use of any automated telephone dialing system or an artificial or prerecorded voice, within the four years prior to filing of this Complaint." Id. at 8. The complaint asserts three claims: (1) negligent violations of the Telephone Consumer Protection Act ("TCPA"); (2) knowing and/or willful violations of the TCPA; and (3) unlawful, fraudulent, and unfair business acts and practices in violation of California Business & Professions Code. Id. at 6-8.
On November 20, 2012, Plaintiff filed a motion for class certification. (ECF No. 71). Subsequently, the parties agreed to stay the case and participate in mediation in an attempt to resolve the case. On June 11, 2013, the parties participated in mediation with the Hon. Howard Wiener (Ret.). During the mediation, the parties reached a settlement agreement.
On August 15, 2013, the parties filed the Joint Motion for Approval of Class Action Settlement ("Preliminary Approval Motion"). (ECF No. 111). On December 5, 2013, the Court held a hearing on the Preliminary Approval Motion in open court. (ECF No. 116). On December 11, 2013, the Court issued an Order that (1) preliminarily approved the settlement agreement; (2) provisionally certified the class; (3) conditionally certified Plaintiff Wade Grant as Class Representative; and (4) appointed Frantz Law Group, APLC, Adler Law Group, APLC, and Keegan & Baker, LLP as class counsel. (ECF No. 117).
On January 20, 2014, the Final Approval Motion was filed by the parties. (ECF No. 118).
On January 20, the unopposed Motion for Attorneys' Fees was filed by Plaintiff. (ECF No. 119). On January 23, 2014, Plaintiff filed a supplemental document in support of the Motion for Attorneys' Fees. (ECF No. 120).
On January 27, 2014, a Declaration of Andrew M. Steinheimer in Support of the Final Approval of Class Action Settlement was filed by Defendant. (ECF No. 121).
TERMS OF THE PROPOSED SETTLEMENT
The proposed settlement class consists of "[a]ll persons within California who received any telephone call from Defendant to said person's cellular telephone through the use of any automatic dialing system or an artificial or prerecorded voice, within the four years prior to the filing of this Complaint." (ECF No. 111-3 at 2).
Defendant agrees to a stipulated injunction for a period of 3 years. The terms of the injunction are:
A. Defendant shall employ a cell phone identification program or service containing a wireless block identifier (i.e., database of numbers assigned to wireless devices) to enable Defendant to identify cell phone numbers to distinguish them from land [lines].
B. Defendant agrees to refrain from placing calls using pre-recorded and/or artificial messages to numbers identified as cell phones, unless Defendant has a good faith belief that it possesses prior express consent to call the cell phone number from its client or direct consent from the debtor.
(ECF No. 111-3 at 3 (citing Exh. A, Settlement Agreement, §§ 2(A)-2(B))). During the injunction period, Defendant also agrees to provide a declaration under the penalty of perjury to Class Counsel on a bi-yearly basis (every six months) confirming that Defendant is complying with the injunction. (ECF No. 111-3 at 3 (citing Exh. A, Settlement Agreement, § 2(C))).
"As the class settlement provides for injunctive relief only and requires no release of rights by any class member, the Parties agree that no notice will be sent to any class member." Id. at 2 (citing Exh. A, Settlement Agreement, §1).
Attorneys' Fees and Costs
Defendant agrees to pay "Plaintiff's attorneys' fees and costs, in the amount of $475, 000." Id. at 3 (citing Exh. A, Settlement Agreement, §3).
Incentive Award to Class Representative
Defendant agrees to pay an "incentive payment and/or damages to plaintiff Wade Grant, in the amount of $5, 000." Id. (citing ...