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Kerr v. Zacks Investment Research, Inc.

United States District Court, S.D. California

November 17, 2017

JOHN KERR, EDWARD LI, TIM BARNARD, and KENNETH CURTIS, individually and on behalf of all others similarly situated, Plaintiffs,
v.
ZACKS INVESTMENT RESEARCH, INC., an Illinois corporation, NATIONAL MARKETING RESOURCES, LLC, a Missouri limited liability company; PARADIGM DIRECT LLC, a Delaware limited liability company; RESPONSE NORTH, LLC, a Utah limited liability company; ZACKS INVESTMENT MANAGEMENT, INC. an Illinois corporation; and DOES 6-50, inclusive, Defendants.

          ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE [DKT. NO. 108]

          Hon. Gonzalo P. Curiel United States District Judge.

         Pending before the Court is Plaintiffs' Unopposed Motion for Preliminary Approval of Settlement (“Motion”) relating to the settlement between plaintiffs John Kerr (“Kerr”), Edward Li (“Li”), Tim Barnard (“Barnard”), Kenneth Curtis (“Curtis”), (collectively, “Plaintiffs”) and defendants Zacks Investment Management, Inc. (“ZIM”) and Zacks Investment Research, Inc. (“ZIR”) (together, “Zacks”); Response North, LLC (“Response North”); National Marketing Resources, LLC (“NMR”); and Paradigm Direct LLC (“Paradigm”) (collectively, “Defendants”).[1] Dkt. No. 108. A hearing was held as to this matter on November 9, 2017, where the Court ordered the parties to submit supplemental briefing. Dkt. No. 113. On November 15, 2017, plaintiffs filed a supplemental brief and revised Class Notices. Dkt. No. 115.

         Having read and considered the moving papers, including the Settlement Agreement, and finding good cause, the Court finds and orders as follows:

         1. Based upon the Court's review of the Settlement Agreement, the Motion (Dkt. No. 108), the supporting memorandum, the supporting declaration and attached exhibits, Plaintiffs' Supplemental Briefing and the attached exhibits (Dkt. No. 115), and the entire record, Plaintiffs' Unopposed Motion for Preliminary Approval of Settlement is GRANTED.

         2. The Court hereby conditionally certifies the following classes for settlement purposes only (the “Classes”):

         The “Zacks Class” is defined as follows:

“All natural persons nationwide who, between and including May 6, 2012 and June 30, 2017, received a telephone call that was (1) made to their cellular telephone and (2) initiated by or on behalf of ZIR or ZIM using an automatic telephone dialing system. Excluded from the Zacks Class are all employees of defendants, all employees of defendants' counsel, all employees of plaintiffs' counsel, and judicial officers, their family members, and court staff assigned to the Lawsuit.”

         The “Response North TCPA Class” is defined as follows:[2]

“All natural persons nationwide who received from Response North a telephone call reflected in contact databases produced by Response North, which (1) was placed as part of the Zacks Book Campaign and/or the Options Trading Campaign and (2) was received on a cellular telephone. Excluded from the Response North TCPA Class are all employees of Response North, all employees of Response North's counsel, all employees of plaintiffs' counsel, and judicial officers, their family members, and court staff assigned to the Lawsuit.”

         The “Response North Privacy Class” is defined as follows:

“All California residents who received from Response North a telephone call reflected in contact databases produced by Response North, which (1) was made on a telephone line that was subject to recording by Response North and (2) was received by the recipient in the State of California. Excluded from the Response North Privacy Class are all employees of Response North, all employees of Response North's counsel, all employees of plaintiffs' counsel, and judicial officers, their family members, and court staff assigned to the Lawsuit.”

         3. The Court finds, for settlement purposes only, that the Classes meet the requirements for certification under Fed.R.Civ.P. 23(a) and 23(b)(3) in that: (i) the Classes are so numerous that joinder is impracticable; (ii) there are questions of law and fact that are common to all Class Members, which predominate over individual issues; (iii) regarding typicality: (a) Kerr's claims are typical of the claims of the Response North TCPA Class and the Response North Privacy Class and (b) the claims of Li, Barnard, Curtis, Cares, Johnson, and Abjanic are typical of the claims of the Zacks Class; (iv) Kerr, Li, Barnard, Curtis, Cares, Johnson, Abjanic, and Class Counsel will fairly and adequately protect the interests of the Classes; and (v) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The Court appoints Kerr as the representative of the Response North TCPA Class and the Response North Privacy Class; Li, Barnard, Curtis, Cares, Johnson, and Abjanic as the representatives of the Zacks Class; Dostart Hannink & Coveney, LLP as Class Counsel; and CPT Group, Inc. as the Settlement Administrator.

         4. The Court preliminarily approves the Settlement, including the monetary relief, procedure for payment of Class Counsel's attorneys' fees and litigation expenses to the extent ultimately awarded by the Court, and procedure for payment of class representative incentive awards to the extent ultimately awarded by the Court. The Court has reviewed the monetary relief that has been provided as part of the Settlement and recognizes its significant value to the Classes. It appears to the Court on a preliminary basis that the Settlement is fair, adequate, and reasonable as to all potential Class Members when balanced against the cost and uncertainty associated with further litigation of liability and damages issues. It further appears that settlement of the Litigation at this time will avoid substantial additional costs by all Parties, as well as the delay and risks that would be presented by the further prosecution of the Litigation. It also appears that the Settlement has been reached as a result of intensive, serious, and non-collusive arm's-length negotiations.

         5. The Court approves the Amended Summary Class Notices, the Amended Publication Notice, and the Amended Long Form Class Notice, which are attached as Exhibits 1-7 to the Supplemental Brief in Support of Plaintiffs' Unopposed Motion for Preliminary Approval (“Supplemental Brief”) (ECF No. 115). The Settlement Administrator shall use for all purposes the Amended Notices (Exhibits 1-7 of the Supplemental Brief), rather than the original notices (Exhibits A-F of the Settlement Agreement). The Court approves the Claim Forms (Exhibits G and H to the Settlement Agreement). The Court also approves the Parties' revised agreement, as set forth in the Supplemental Brief, to publish the Amended Publication Notice three times in the Wall Street Journal. Along with the foregoing, the notice procedure described in the Settlement meets the requirements of Fed.R.Civ.P. 23 and due process and constitutes the best practicable notice under the circumstances. The Settlement Administrator is directed to distribute the Amended Summary Class Notices via email or mail no later than thirty (30) days after entry of this Order, and to take all steps necessary to establish a settlement website. The date on which the Amended Summary Class Notices are emailed or mailed by the ...


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