United States District Court, S.D. California
BEE, DENNING, INC., individually and on behalf of all others similarly situated, Plaintiff,
v.
CAPITAL ALLIANCE GROUP, et al., Defendant. DANIELA TORMAN, Plaintiff,
v.
CAPITAL ALLIANCE GROUP, et al., Defendants.
Bee,
Denning, Inc., Plaintiff, represented by Beth Ellen Terrell,
Terrell Marshall Law Group PLLC, Mary B. Reiten, Terrell
Marshall Daudt and Willie PLLC & Whitney B. Stark, Mechanic
Law Office.
Gregory Chick, Plaintiff, represented by Mary B. Reiten,
Terrell Marshall Daudt and Willie PLLC & Beth Ellen Terrell,
Terrell Marshall Law Group PLLC.
Daniela Torman, Plaintiff, represented by Candice E. Renka,
Marquis Aurbach Coffing, Esfand Y. Nafisi, Whitfield Bryson &
Mason LLP, Gary Edward Mason, Whitfield Bryson & Mason LLP,
pro hac vice, Jason Rathod, Whitfield Bryson & Mason LLP &
Scott A. Marquis, Marquis Aurbach Coffing.
Capital Alliance Group, Defendant, represented by Gene S.
Stone, Homan & Stone.
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS
[ECF No. 71]
CYNTHIA BASHANT, 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 ...