United States District Court, D. Nebraska
SHAUNNA BRILES, on behalf of herself and all others similarly situated; Plaintiff,
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
Smith Camp Chief United States District Judge.
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.
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).
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.
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).
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.
Findings of Fact
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.
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.
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.
Conclusions of Law Regarding Class Certification
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
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.
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.
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 ...