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Jenkins v. Pech

United States District Court, D. Nebraska

November 4, 2015

LEE A. JENKINS, on behalf of himself and all others similarly situated; Plaintiff,
v.
CHRISTOPHER E. PECH, AND PECH, HUGHES, & MCDONALD, P.C., d/b/a Litow & Pech, P.C., A Fictitious Name; Defendants.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge.

This matter is before the court on the parties' Joint Motion for Settlement. Filing No. 154. This is an action for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), and the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1601, et seq. (“NCPA”).

I. Certification

This case was earlier certified to proceed as a class action. See Filing No. 135, Memorandum and Order; Jenkins v. Pech, No. 8:14CV41, 2015 WL 3658261 (D. Neb. June 12, 2015). In the order certifying the class, this court found the prerequisites of Fed.R.Civ.P. 23 (a) and (b) were satisfied. Id. at 7-11.

For purposes of settlement only, the parties now seek certification of the following settlement class:

(a) All persons residing in Nebraska (b) to whom Defendants Christopher E. Pech and/or Pech, Hughes & McDonald, P.C. sent, or caused to be sent, a letter in the form of Exhibit A (attached to the First Amended Complaint), (c) in an attempt to collect a purported obligation which, as shown by the nature of the alleged obligation, Defendants’ records, or the records of the original creditors, was primarily for personal, family, or household purposes.

Filing No. 154-1, Ex. A1, Class Action Settlement Agreement at 3. Excluded from the settlement class are any persons already subject to an existing release; deceased persons and any person who has filed for bankruptcy protection under Title 11 of the United States Code; and any Class Members who timely mail a request for exclusion. Id. The earlier certified class differs from the proposed settlement class only with respect to the persons excluded.

For the reasons stated in the court's earlier order, the court finds the proposed settlement class meets the requirements of Fed. R. Civ. P. 23. The parties have shown that the requirements of numerosity, commonality, typicality, and adequacy are satisfied, as well as establishing that there are questions of law and fact common class that predominate over the questions affecting only individual class members. Further, the parties have shown that a class action is the superior method for fair and efficient adjudication of the dispute under Fed.R.Civ.P. 23(b)(3)(a)-(D). William L. Reinbrecht and Pamela A. Car of the law firm Car & Reinbrecht, P.C., L.L.O., and attorney O. Randolph Bragg of the law firm Horwitz, Horwitz & Associates, LTD, were appointed class counsel.

For settlement purposes only, the court preliminarily finds that the action satisfies the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23, namely: The class members are so numerous that joinder of all of them in the action is impracticable; there are questions of law and fact common to the class members that predominate over any individual questions; the claims of the plaintiff class representative, Lee A. Jenkins, are typical of the claims of the class members; the plaintiff and class counsel have fairly and adequately represented and protected the interest of all of the class members; and class treatment of these claims will be efficient and manageable, thereby achieving an appreciable measure of judicial economy, and a class action is superior to other available methods for a fair and efficient adjudication of this controversy.

II. Preliminary Approval

In considering preliminary approval, the court makes a preliminary evaluation of the fairness of the settlement, prior to notice. Manual of Complex Litigation (Fourth) § 21.632 (2010); see also Fed. R. Civ. P. 23(e). First, the court must make a preliminary determination of the fairness, reasonableness and adequacy of the settlement terms and must direct the preparation of notice of the proposed settlement and the date of the fairness hearing. Id. After an agreement is preliminarily approved, the second step of the process ensues: notice is given to the class members of a hearing, at which time class members and the settling parties may be heard with respect to final court approval. Id.

A "district court may only approve a class action settlement if it is 'fair, reasonable, and adequate.'" Marshall v. Nat'l Football League, 787 F.3d 502, 508 (8th Cir. 2015) (quoting Fed.R.Civ.P. 23(e)(2)). "To make the determination, the district court must consider four factors: '(1) the merits of the plaintiff's case weighed against the terms of the settlement, (2) the defendant's financial condition, (3) the complexity and expense of further litigation, and (4) the amount of opposition to the settlement.'" Marshall, 787 F.3d at 508 (quoting In re Uponor, Inc., F1807 Plumbing Fittings Products Liab. Litig., 716 F.3d 1057, 1063 (8th Cir. 2013)). The single most important factor in determining whether a settlement is fair, reasonable, and adequate is a balancing of the strength of the plaintiff's case against the terms of the settlement. Marshall, 787 F.3d at 508 (quoting Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988)). Van Horn, 840 F.2d at 607.

A settlement agreement is “presumptively valid.” Uponor, 715 F.3d at 1063 (quoting Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 921 F.2d 1371, 1391 (8th Cir. 1990). The courts' "guiding principle" is that '"a class action settlement is a private contract negotiated between the parties.'" Marshall, 787 F.3d at 508 (quoting In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 934 (8th Cir. 2005)). The court's role in reviewing a negotiated class settlement is to ensure that the agreement is not the product of fraud or collusion and that, taken as a whole, it is fair, adequate, and reasonable to all concerned. Id.

A court may also consider procedural fairness to ensure the settlement is "not the product of fraud or collusion." In re Wireless, 396 F.3d at 934. The experience and opinion of counsel on both sides may be considered, as well as whether a settlement resulted from arm's length negotiations, and whether a skilled mediator was involved. SeeDeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1178 (8th Cir. 1995). A court may also consider the settlement's timing, including whether discovery proceeded to the point where all ...


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