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Briles v. Tiburon Financial, LLC

United States District Court, D. Nebraska

December 6, 2016

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.


          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Joint Motion, ECF No. 78, filed by Plaintiff, Shaunna Briles, on behalf of herself and all others similarly situated (“Briles” or “Plaintiff”) and Tiburon Financial, LLC, Signature Performance Tiburon, LLC, Jacada, PC, LLO and James A. Cada (collectively “Defendants”), seeking an order finally approving the class action Settlement Agreement between the parties. The Court has reviewed the filings of the parties in support of final approval, considered the discussion of counsel, and is otherwise advised in the premises. The Court will discuss the process involved and make the following findings of the facts and conclusions of law regarding Final Approval of this proposed class action Settlement Agreement:


         This class action involves a standardized, debt collection communication titled as a “Stipulation.” Plaintiff alleges 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 represent the character or legal status of the debt, and circumventing the protections given to consumers under state and federal law. Plaintiff alleged that the Defendants intentionally deceived consumers by sending collection communications (i.e., “Stipulation(s)”) that were designed to give consumers the impression that legal process was already underway and that consumers took actions to their own detriment, waived legal rights without just cause, paid money to the debt collectors that rightfully might have been due and owing on other debts that had priority, and suffered other harms.

         Plaintiff asserts that the Stipulations at issue violate both the FDCPA and NCPA because they include language that are designed to give consumers the impression that legal process was already underway, thereby forcing consumers to take actions to their own detriment. For example, the Stipulations include 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.

         Defendants on the other hand, deny Plaintiffs' allegations and contend that the Stipulation does not violate either the FDCPA or the NCPA and was appropriate and lawful.

         Notice was issued to all members of the Settlement Class pursuant to this Court's Preliminary Approval Order, ECF No. 73, as stated in the Affidavit of the Settlement Administrator filed with Plaintiff's Memorandum of Law. See ECF No. 80, Page ID 411-13. As of the deadline for filing objections and opt outs as set forth in the Settlement Agreement, no class members have opted out of the Settlement and no class members have objected to the terms of the Settlement. No class members appeared at the fairness hearing before the Court on December 5, 2016, and no objections have been made to the settlement or to class certification.


         Federal Rule of Civil Procedure 23(e) requires judicial approval for the compromise of claims brought on a class basis. Approval of a class action settlement under Rule 23(e) involves a two-step process: first, a “preliminary approval” order; and second, after notice of the proposed settlement has been provided to the class and a hearing has been held to consider the fairness, reasonableness and adequacy of the proposed settlement, a “final approval” order or judgment. See Manual for Complex Litigation § 13.14 (4th ed. 2004). Because preliminary approval has already been granted, this Court should now turn its attention to final approval.

         The Eighth Circuit has established four factors for determining whether a proposed class action settlement is “fair, reasonable, and adequate: (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.” In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005); see also Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988). Here, all of these factors weigh in favor of granting final approval.

         In determining the adequacy of the proposed Settlement, the Court need not and does not decide the merits of the case. This Court has considered the submissions of the parties, which demonstrate a degree of uncertainty as to whether the Representative Plaintiff would recover on her claims. The Settlement provides a significant benefit to all Class Members. Given the statutory limitation on damages and Defendants' assertions regarding low or negative net worth, this Court finds that there are factual and legal obstacles standing in the way of a substantially higher recovery if this case were litigated to a conclusion. Furthermore, the perils of maintaining an action through a final judgment or appeal would be complex, lengthy, and expensive. The Settlement eliminates a substantial risk that the Class Members would walk away empty handed after trial. Further, the Defendants have denied liability and have indicated that they would continue to do so, absent settlement. Because of resulting motion practice, discovery, trial, and appeals, it could be a lengthy period before the Class Members would see any recovery even if they were to prevail on the merits, which would not necessarily produce a better recovery than they may have achieved in the Settlement.

         The parties negotiated the Settlement after a thorough review and analysis of the legal issues involved. The facts and representations of counsel demonstrate that the Representative Plaintiff was sufficiently informed to negotiate, execute, and recommend approval of the Settlement on behalf of the class. See, e.g., Davies v. Continental Bk., 122 F.R.D. 475, 479-80 (E.D. Pa.1996).

         This Court may also consider the opinions of the participants, including Class Counsel. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1984), cert. denied, 459 U.S. 828 (1985). Class Counsel has adequate experience in the prosecution of large and complex consumer class actions. Counsel for the Defendants is likewise adequately experienced. This Court gives credence to the opinion of counsel, amply supported by the Court's independent review, that the Settlement is a beneficial resolution of the class action claims.

         In addition to finding that the terms of the proposed Settlement are fair, reasonable, and adequate, the Court must also determine there is no fraud or collusion between the parties or their counsel negotiating the settlement terms. See e.g., Miller v. Republic National Life Ins. Co., 559 F.2d 426, 428-29 (5th ...

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