United States District Court, S.D. California
BEE, DENNING, INC., individually and on behalf of all others similarly situated, Plaintiff,
CAPITAL ALLIANCE GROUP, et al., Defendant. DANIELA TORMAN, Plaintiff,
CAPITAL ALLIANCE GROUP, et al., Defendants.
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS
[ECF No. 71]
Cynthia Bashant, United States District Judge.
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.)
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.
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.) The Settlement Agreement applies to two
proposed Settlement Classes defined as follows:
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.)
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
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
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
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
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.)
Notice to Settlement Class Members
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.)
Right to Opt Out or Object and Release of Claims
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.
Attorneys’ Fees and Settlement Costs
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.)
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).
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.