Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Briles v. Tiburon Financial, LLC

United States District Court, D. Nebraska

August 1, 2016

SHAUNNA BRILES, on behalf of herself and all others similarly situated; Plaintiff,
v.
TIBURON FINANCIAL, LLC, a Nebraska Limited Liability Company; SIGNATURE PERFORMANCE TIBURON, LLC, a Nebraska Limited Liability Company; JACADA, P.C., LLO, AND a Nebraska Limited Liability Organization; and JAMES A. CADA, an individual; Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Joint Motion for Preliminary Approval of Class Action Settlement (Filing No. 71) filed by Plaintiff Shaunna Briles, on behalf of herself and all others similarly situated (“Plaintiff”), and Defendants, seeking an Order certifying a settlement class and preliminarily approving the terms of the proposed Class Action settlement between the parties. The Court has reviewed the record, including the pleadings and other submissions of the Parties. The Court concludes that the Parties’ Joint Motion should be granted and the settlement should be preliminarily approved.

         DISCUSSION

         To certify a class action for settlement purposes, a court must first determine that all the requirements for class certification set forth in Federal Rule of Civil Procedure 23(a) and at least one of the requirements of subdivision of Rule 23(b), are satisfied. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620-20 (1997) (explaining that a settlement class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation, as well as predominance and superiority).

         Once the Settlement Class is determined to meet the requirements for class certification pursuant to Rule 23, the Court’s analysis turns to the terms of the proposed settlement. See Manual for Complex Litigation, Third, § 30.41, at 236-37 (1995). The approval of a class action settlement as fair, adequate, and reasonable is a two-step process. Id. First, the Court must determine whether the proposed settlement terms fall within the range of reasonableness such that preliminary approval is warranted. Second, after notice is given to the class, the Court must evaluate whether final approval is warranted. Id.

         Courts may not approve class action settlements in reverse, by first determining that the settlement is fair, and thereby finding that certification is proper. Amchem, 521 U.S. at 622. Accordingly, in granting preliminary approval, courts typically first certify the class for settlement purposes, and then consider the fairness of the settlement at the final hearing. A court must conduct a “rigorous analysis” to determine whether the elements of class action requirements have been met when the parties seek certification of the class and approval of their settlements simultaneously. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982).

         The Court has considered the Joint Motion for Preliminary Approval of Class Action Settlement (“Joint Motion”) (Filing No. 71), Plaintiff’s Motion for Class Certification (Filing No. 18), Plaintiff’s Memorandum of Law in Support of Joint Motion for Preliminary Approval of Class Action Settlement (Filing No. 72) and the Class Action Settlement Agreement between the Parties (“Settlement Agreement”) (Filing No. 71-1), as attached as Exhibit 1 to the Joint Motion. Based on the evidence in the record and the Parties’ representations, the Court hereby sets forth the following, preliminary findings of fact and conclusions of law upon which this Order is based.

         I. Findings of Fact

         This class action involves a standardized, debt collection communication known as a “Stipulation.” Plaintiff alleged that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692a, et seq., and the Nebraska Consumer Protection Act (“NCPA”), Neb. Rev. Stat. § 59-1601 et seq., based on their efforts to collect consumer debts by unlawfully simulating legal process, falsely representing the character or legal status of the debt, and circumventing the protections given to consumers. Plaintiff alleged that the Defendants intentionally deceived consumers by sending collection communications (the “Stipulations”) designed to give consumers the impression that legal process was underway. Plaintiff alleged that consumers took actions to their detriment, waived legal rights without just cause, paid money to debt collectors that rightfully may have been due and owing on other debts with priority, and suffered other harms. Defendants deny Plaintiff’s allegations; dispute that that they violated the FDCPA or the NCPA; and deny that they deceived consumers by sending the Stipulation.

         By example, Plaintiff alleges the Stipulations included language such as: “In the County Court of Douglas County, Nebraska, ” “Tiburon Financial, L.L.C. - Plaintiff, ” “Case No., ” and “The Defendant(s) herein submit themselves to the jurisdiction of this court, ” all of which simulate legal process and falsely represent the character or legal status of the alleged debts. Although the Defendants deny the Stipulations violated the FDCPA or the NCPA, and dispute Plaintiff’s characterization of the Stipulations, the Parties agree that the class settlement provides a fair resolution to avoid protracted litigation and significant cost.

         After Plaintiff filed her Motion for Class Certification and supporting evidence, but before this Court could rule on the Motion, the Parties voluntarily undertook arms-length settlement negotiations and reached the proposed class action Settlement that is now before this Court.

         II. Conclusions of Law Regarding Class Certification

         Plaintiff filed her Motion for Class Certification on August 11, 2015 (Filing No. 18). For Settlement Purposes only, Defendants do not oppose certification. Accordingly, based upon the reasoning set forth below, the Court hereby certifies the following Settlement Class:

All consumers located in the State of Nebraska, who received a Stipulation from Defendants in connection with an attempt to collect any consumer debt, where the Stipulation was substantially similar or materially identical to the Stipulation delivered to Plaintiff, i.e., a “Stipulation” sent by JACADA/CADA (or any of its employees) on behalf of TIBURON (attached as Exhibit A to the Amended Complaint), during the four year period prior to the filing of the Complaint in this matter, through the date of class certification.

         A. Numerosity

         The first prerequisite for class certification under Rule 1.220(a) is numerosity, which requires that members of the class be so numerous that “joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The Class is so numerous that joinder of all members is impractical. Id.

         “[A]s few as 40 class members should raise a presumption that joinder is impracticable.” Caroline C. v. Johnson, 174 F.R.D. 452, 456 (D. Neb. 1996) (citing Newberg on Class Actions § 3.05). In this case, the size of the Proposed Class is 225. Thus, the numerosity requirement is satisfied on the record because joinder of approximately 225 recipients of the collection communication in question would be impracticable.

         B. Commonality

         The Court finds that the commonality requirement is satisfied, for purposes of approving the Settlement Agreement and certifying the Settlement Class, in that all members of the Settlement Class received the same debt collection Stipulation from ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.