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Vandervort v. Balboa Capital Corp.

United States District Court, C.D. California

March 27, 2014

MICHAEL A. VANDERVORT and U.S. SAMPLE SERVICES, INC., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
BALBOA CAPITAL CORPORATION, Defendant

Page 1201

For Michael A Vandervort, on behalf of themselves and all others similarly situated, U.S. Sample Services Inc, on behalf of themselves and all others similarly situated, Plaintiffs: Aytan Y Bellin, PRO HAC VICE, Bellin & Associates LLC, White Plains, NY; Joseph R Compoli, Jr, PRO HAC VICE, Law Office of Joseph Compoli, Cleveland, OH; Roger Furman, Roger Furman, Los Angeles, CA.

For Balboa Capital Corporation, Defendant: Carl N Marschall, Brewer and Brewer, Newport Beach, CA; Lance A Brewer, Brewer & Brewer, Newport Beach, CA; Nancy M Barnes, PRO HAC VICE, Thompson Hine LLP, Cleveland, OH.

For Matthew T Heartney, Arnold & Porter LLP, Mediator (ADR Panel): Matthew Thomas Heartney, Arnold and Porter LLP, Los Angeles, CA.

OPINION

Page 1202

ORDER GRANTING PLAINTIFFS' MOTION FOR FINAL SETTLEMENT APPROVAL

JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Before the Court is a Motion for Final Approval of Class Settlement filed by Plaintiffs Michael A. Vandervort and U.S. Sample Services, Inc. (Mot., Doc. 120.) Defendant Balboa Capital Corporation agreed not to oppose the Motion. ( Id. at 1-2.) Pursuant to this Court's Orders, Plaintiffs filed supplemental memoranda as to settlement administration and class member reactions to the settlement. (Suppl. Br., Doc. 121; Second Suppl. Br., Doc. 124.) Having reviewed the papers, held a fairness hearing, and taken the matter under submission, the Court GRANTS Plaintiffs' Motion.

II. BACKGROUND

A. Procedural History

Plaintiffs in this class action allege that during the period from October 12, 2007 through November 23, 2011, Defendant

Page 1203

sent them solicited and unsolicited fax advertisements in violation of state and federal law. On November 23, 2011, Plaintiffs filed a First Amended Complaint alleging causes of action for violation of the Telephone Consumer Protection Act (" TCPA" ) and California Business & Professions Code § 17538.43, and seeking damages and injunctive relief. (First Am. Compl. (" FAC" ), Doc. 18.)

On October 23, 2012, the Court granted in part and denied in part Plaintiffs' motion for class certification. (Class Cert. Order, Doc. 54.) The Court certified a Rule 23(b)(3) class under the TCPA, consisting of:

All persons in the United States from October 12, 2007 through November 23, 2011 to whom Defendant sent or caused to be sent a solicited or unsolicited facsimile advertisement that advertised the commercial availability or quality of any property, goods, or services, and contained an opt-out notice identical or substantially similar to that contained on the facsimile advertisement attached as Exhibit 1 to the First Amended Complaint.

( Id. at 17.) The Court denied Plaintiffs' request for certification of another class under the TCPA class and a class under California Business & Professions Code § 17538.43. ( Id. at 6-8.)

On April 5, 2013, the Court heard oral argument on the parties' cross motions for summary judgment. (Docs. 65, 66, 88.) At the hearing, the Court stated that it would delay issuing its rulings on the motions until after the parties attended a settlement conference before a magistrate judge. (Doc. 90 at 28.) On May 20, 2013, following a day-long settlement conference before the Honorable Jay Gandhi, the parties settled the case and signed a Memorandum of Understanding memorializing their agreement. ( See Preliminary Approval Order at 3, Doc 117.) On October 25, 2013, the parties signed a fully executed settlement agreement. (Aytan Y. Bellin Decl. Ex. A (" Settlement" ), Doc. 120-2.)

On August 16, 2013, Plaintiffs moved for preliminary approval of the Settlement and approval of the form and method of class notice. (Doc. 102.) The Court preliminarily approved the Settlement on November 20, 2013. (Preliminary Approval Order.) As part of the preliminary approval, the Court ordered the parties to modify the class notice and claims forms to remove an ambiguity regarding the deadline to submit claims, make other minor edits to the notices, and add a section to the notice on how lawyers and class representatives would be paid. ( Id. at 15.) The parties submitted revised versions of the proposed forms, which the Court approved. (Docs. 118, 119.)

B. Settlement

The Settlement applies to a class consisting of " all persons in the United States who, from October 12, 2007 through November 23, 2011, were sent or caused to be sent one or more facsimile advertisements by Defendant Balboa Capital Corporation, its employees, agents, vendors or contractors." (Settlement ¶ 2(c).)

Under the Settlement, Defendant shall make a total payment of no less than $2.3 million and no more than $3.3 million. ( Id. ¶ 2(a)-(b).) That amount will cover payments to class members, class representative incentive payments of $10,000 in total, and attorney's fees and costs. ( Id. ¶ ¶ 2(a)-(b), 10.) In return, class members agree to release claims that " are or could be based on, arise from or relate in any way to the claims asserted in this Litigation or to Defendant's alleged sending or transmission of fax advertisements to Plaintiffs

Page 1204

. . . from October 12, 2007 through November 23, 2011." ( Id. ¶ 11(a).)

If the sum of valid claims, the incentive award, and attorney's fees and costs (" Total Payment" ) is greater than or equal to $2.3 million but less than or equal to $3.3 million, then the payments to class members will be distributed as follows: Claimants who submit an affidavit or declaration under penalty of perjury stating that they received a fax or faxes will be eligible for a cash payment of between $175 and $275, depending on the number of faxes they declare they received. ( Id. ¶ ¶ 6(a), 8.) Claimants ...


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