Bee, Denning, Inc. v. Capital Alliance Group

          ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS [ECF No. 71]

          Hon Cynthia Bashant, United States District Judge.

         On November 5, 2013, Plaintiff Bee, Denning, Inc., d/b/a Practice Performance Group (“Plaintiff Bee”) commenced this class action, individually and on behalf of others similarly situated, against Defendant Capital Alliance Group (“Capital Alliance”) seeking relief for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). (Compl. ¶¶ 1.1, 7.2–7.4, ECF No. 1.) One month later, Plaintiff Bee amended the complaint to add Narin Charanvattanakit (“Defendant Narin”) as a Defendant and Gregory Chick as a Plaintiff. (Am. Compl. ¶¶ 1.1, 2.2, 2.4–2.6, ECF No. 6.) On June 8, 2016, this Court granted a renewed motion to consolidate this action with a related case-Daniela Torman v. Capital Alliance Group, Case No. 14-cv-02915-BAS(WVG)-because of common questions of fact and law. (Order Grant. Renew. Mot. Consolidate 1:21–22, ECF No. 59.) Bee, Denning, Inc.; Gregory Chick; and Daniela Torman (collectively, “Plaintiffs”) move unopposed by Capital Alliance Group and Narin Charanvattanakit (collectively, “Defendants”) for preliminary approval of a settlement reached between the parties and certification of settlement classes. (Pls.’ Mot. Prelim. Approv. (“Pls.’ Mot.”), ECF No. 71.)

         The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS Plaintiff’s Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Classes.

         I. PROPOSED SETTLEMENT

         A. Settlement Class

         Following nearly three years of litigation, including extensive discovery, a mediation, and a settlement conference over which the Honorable Judge William V. Gallo presided, the parties have reached a proposed settlement of this matter. (Pls.’ Mot. 4:11–19, 5:10–12; Class Action Settlement Agreement (“Settlement Agreement”) Ex. 1, ECF No. 71-3.)^[1] The Settlement Agreement applies to two proposed Settlement Classes defined as follows:

         A. Junk Fax Class:

All persons or entities in the United States who, on or after November 5, 2009, were sent by or on behalf of Defendants one or more unsolicited advertisements by telephone facsimile machine that bear the business name Community, Community Business Funding, Fast Working Capital, Snap Business Funding, Zoom Capital, Nextday Business Loans, 3DayLoans, Bank Capital, FundQuik, Prompt, or Simple Business Funding.

B. Automated Call Class:

All persons or entities in the United States who, on or after November 5, 2009, received a call on their cellular telephone with a prerecorded voice message from the number 888-364-6330 that was made by or on behalf of Defendants.

(Settlement Agreement §§ 2.1.A, 2.1.B.) The Parties estimate the “Junk Fax Class” consists of an estimated 558, 022 Class Members. (Pls.’ Mot. 17:16–17.) The Parties estimate the “Automated Call Class” consists of an estimated 9, 424 Class Members. (Id. 17:17–18.) A Class Member is a person who is a member of one of the Settlement Classes stipulated in the Settlement Agreement. (Settlement Agreement § 1.2.) The Settlement Class is defined as one of the two Settlement Classes the Parties have consented to for purposes of the settlement only, as defined in section 2.1. (Id. § 1.13.) To represent the Settlement Classes, the Parties agree to seek appointment of Plaintiffs as Class Representatives and Plaintiffs’ counsel-Beth E. Terrell and Terrell Marshall Law Group, PLLC, Candice E. Renka and Marquis Aurbach Coffing, and Gary E. Mason, Whitfield Bryson & Mason, LLP-as Class Counsel. (Id. § 1.1.)

         B. Settlement Relief

         Defendants have insufficient resources to grant effective monetary relief to the Class Members. (Settlement Agreement § 2.2.A; Pls.’ Mot. 4:20–25.) Consequently, the Settlement Agreement provides only injunctive relief to the Settlement Classes (Settlement Agreement § 2.2; Pls.’ Mot. 5:1–6, 6:11–20.) Under the Settlement Agreement, the Parties agree that for a period of two years following the effective date, Defendants shall comply with the following:

1. Defendants and Defendants’ successors shall establish written procedures for TCPA compliance[;]

2. Defendants and Defendants’ successors shall conduct annual training sessions directed to TCPA compliance[;]

3. Defendants and Defendants’ successors shall maintain a list of telephone numbers of persons who request not to be contacted[;]

4. Defendants and Defendants’ successors shall subscribe to a version of the national do-not-call registry obtained no more than three months prior to the date any call is made (with records documenting such compliance) [;]

5. Defendants and Defendants’ successors shall establish internal processes to ensure that Defendants and Defendants’ successors do not sell, rent, lease, purchase, or use the do-not-call database in any manner except in compliance with TCPA regulations[;]

6. Defendants and Defendants’ successors shall scrub for cellular telephones before making autodialed calls or calls made with an artificial voice or [] prerecorded messages[;]

7. Defendants and Defendants’ successors shall not call cellular telephones prior to receipt of the express written permission of the intended recipient, including the intended recipient’s signature[;]

8. All prerecorded messages, whether delivered by automated dialing equipment or not, must identify Capital Alliance or any successor entity, and the specific “d/b/a” as the entity responsible for initiating the call, along with the telephone number that can be used during normal business hours to ask not to be called again[;]

9. All fax transmissions that include “unsolicited advertisements” as defined in 47 U.S.C. §[] 227(a)(4) must be preceded by the receipt of the express written permission of the intended recipient, including the intended recipient’s signature[;]

10. Defendants and Defendants’ successors must maintain records demonstrating that recipients have provided such express permission to send fax advertisements.

(Settlement Agreement §§ 2.2.B.1–2.2.B.10.) Under the Settlement Agreement, the Parties have also agreed to an injunction oversight and reporting procedure defined as follows:

Defendants shall make a bi-annual report to Class Counsel outlining their compliance with the TCPA injunction and any issues that may have arisen. Defendants agree to submit copies of any putative individual or class action lawsuits filed against them and asserting one or more claims pursuant to the TCPA during the reporting period to Class Counsel beginning 6 months from the date that this agreement is signed and every 6 months thereafter until expiration of the injunction. Reports from Defendants are due on November 18, 2016, May 18, 2017, November 18, 2017, and May 18, 2018.

(Id. § 2.2.C.)

         C. Notice to Settlement Class Members

         The Settlement Agreement requires Defendants to hire Heffler Claims Group (“Heffler”) to provide notice to Class Members. (Settlement Agreement § 2.7.) The Class Notice stipulated to in the Settlement Agreement requires Defendants to direct Heffler to provide three different forms of notice to the Class Members. (Id.) First, Defendants will direct Heffler to provide Class Notice via U.S. mail, in the form and substance set forth in Exhibit B, to States’ Attorneys’ General for dissemination to the public. (Id.) The Class Notice consists of, among other things, a summary of the terms of the Settlement Agreement, a description of the details of the injunctive relief, instructions to Class Members regarding their rights, an explanation of the date and time of the fairness hearing of the settlement, and directions for accessing more information about the settlement. (Settlement Agreement Ex. B.) Second, Defendants will direct Heffler to create and maintain a website that provides information, including court documents, regarding the settlement to the Settlement Class. (Settlement Agreement § 2.7.) Third, Defendants will direct Heffler to create and maintain a call center where the Settlement Class can obtain information. (Id.) Defendants shall be responsible for all costs of sending notice of the Class Members as set forth in section 2.7. (Id. § 2.6.)

         D. Right to Opt Out or Object and Release of Claims

         Only the named Plaintiffs have released all of their claims against Defendants. (Pls.’ Mot. 9:14–17.) All other Class Members do not release their rights to pursue individual or collective damages claims against Defendants. (Settlement Agreement Ex. B.) Consequently, no right to opt out or object and release of claims is necessary for Class Members other than the named Plaintiffs.

         E. Attorneys’ Fees and Settlement Costs

         To recover its expenses from litigation, Class Counsel will seek from the Court an award of litigation costs in the amount of twenty-two thousand ninety-six dollars ($22, 096). (Settlement Agreement § 2.4.) Class Counsel will also seek from the Court for each of the three Plaintiffs-Bee, Denning, Inc., Gregory Chick, and Daniela Torman-in the amount of $4, 819 (collectively, $14, 457) for his or her individual claim and as an incentive award for his or her services as Class Representative. (Id. § 2.3.)

         II. DISCUSSION

         The Ninth Circuit maintains a “strong judicial policy” that favors the settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). However, Federal Rule of Civil Procedure 23(e) first “require[s] the district court to determine whether a proposed settlement is fundamentally fair, adequate, and reasonable.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). Where the “parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement.” Stanton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). In these situations, settlement approval “‘requires a higher standard of fairness’ and ‘a more probing inquiry than may normally be required under Rule 23(e).’” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (quoting Hanlon, 150 F.3d at 1026).

         In this case, the Court previously amended the class definition of the “Automated Call Class” and certified the two Settlement Classes at issue here under Federal Rule of Civil Procedure 23(b)(3). See Bee, Denning, Inc. v. Capital All. Grp., 310 F.R.D. 614, 619 (S.D. Cal. 2015). The Parties in reaching this Settlement Agreement modified the “Automated Call Class” definition based on the Court’s amendment and now bring a motion to certify the two Settlement Classes under Rule 23(b)(2). (Settlement Agreement §§ 2.1.A, 2.1.B; Pls.’ Mot. 1:12–16.)

         A. Class ...