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Cullan and Cullan LLC v. M-Qube Inc.

United States District Court, D. Nebraska

March 16, 2017

CULLAN AND CULLAN LLC, individually and on behalf of all others similarly situated; Plaintiff,
v.
M-QUBE, Inc. a Delaware corporation; MOBILE MESSENGER AMERICAS, Inc., a Delaware Corporation; CF ENTERPRISES PTY., Ltd., an Australian Company; and JOHN DOES 1-200, Defendants.

          ORDER OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court after a Fairness Hearing on March 9, 2017 on the Representative Plaintiff Cullan and Cullan LLC's (“Representative Plaintiff”) Motion for Final Approval of Class Action Settlements, Awards of Attorneys' Fees, Costs and Expenses, and Class Representative Service Awards (Filing No. 204). The Representative Plaintiff and defendants Post SMS. Co. Americas, Inc., formerly known as Mobile Messenger Americas, Inc., and Post SMS Co. Qube, Inc., formerly known as m-Qube, Inc. (collectively, “Mobile Messenger”) entered into a class action settlement agreement (the “Mobile Messenger Settlement”) filed on December 21, 2015. Filing No. 168-1, Mobile Messenger Settlement. Representative Plaintiff and defendant CF Enterprises Pty., Ltd. (“CFE”) also entered into a class action settlement agreement (the “CFE Settlement”) filed on December 21, 2015. Filing No. 166-1, CFE Settlement.

         I. LAW

         Federal Rule of Civil Procedure 23(e) requires judicial approval of class action settlements. In approving a class settlement, the district court must consider whether it is fair, reasonable, and adequate. DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1178 (8th Cir. 1995). Courts in this Circuit analyze the following factors to determine whether a settlement is fair, reasonable, and adequate: “the merits of the plaintiff's case, weighed against the terms of the settlement; the defendant's financial condition; the complexity and expense of further litigation; and the amount of opposition to the settlement.” Huyer v. Njema, 847 F.3d 934, 939 (8th Cir. 2017); Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988). “The most important consideration in the analysis requires balancing the strength of the [representative] plaintiffs' case against the value of the settlement terms to the class.” Marshall v. Nat'l Football League, 787 F.3d 502, 514 (8th Cir. 2015). A court may also consider procedural fairness to ensure the settlement is “not the product of fraud or collusion.” In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 934 (8th Cir. 2005). 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. See Deboer, 64 F.3d at 1178. A court may also consider the settlement's timing, including whether discovery proceeded to the point where all parties were fully aware of the merits, and whether class members were provided with adequate notice and an opportunity to argue their objections to district court. Id. at 1176.

         A thorough judicial review of fee applications is required in all class action settlements. In re Diet Drugs, 582 F.3d 524, 537-38 (3d Cir. 2009); Johnson v. Comerica Mortgage Corp., 83 F.3d 241, 246 (8th Cir. 1996) (noting that the district court bears the responsibility of scrutinizing attorney fee requests). The Eighth Circuit Court of Appeals has established factors that a court should examine in determining both the reasonableness of a lodestar award, and the use of a multiplier to enhance the award. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974);[1] see also Zoll v. E. Allamakee Cmty. Sch. Dist., 588 F.2d 246, 252 (8th Cir. 1978) (explaining that the Johnson factors apply to determining both upward adjustments and a reasonable hourly rate). Service awards to representative plaintiffs encourage members of a class to become class representatives and reward individual efforts taken on behalf of a class. Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (awarding incentive award of $25, 000).

         II. DISCUSSION

         A. The Settlements

         This court preliminarily approved the proposed Settlement Agreements as fair, reasonable, and adequate, subject to a hearing on final approval pursuant to Fed.R.Civ.P. 23(c), and (e), and approved the parties' notice of the settlement and fairness hearing thereon. Filing No. 189, Order of Preliminary Approval.

         The following settlement classes (hereinafter, collectively, “plaintiff classes”) have been preliminarily certified:

         The Mobile Messenger Settlement Class

[A]ll current and former Wireless Subscribers Nationwide, who at any time from January 1, 2010, to the Notice Date, incurred any charge, whether paid or not, associated with any of the billing descriptors, shortcodes, and program names set forth on Exhibit B [to the Mobile Messenger Settlement Agreements and posted on the Settlement Website]; or (b) at any time from January 1, 2010, to the Notice Date, received any message from a Premium Short Code registered at the CTIA to (i) any organization recognized as exempt from federal income taxation under I.R.C. § 501(c)(3) or I.R.C. § 501(c)(4), or (ii) federal political committees registered with the Federal Election Commission.

         The CFE Settlement Class

[A]ll current and former Wireless Subscribers Nationwide, who at any time from January 31, 2011, to the Notice Date, received a text message from any Message Claim Shortcode or relating to a Message Claim Program. “Message Claim Shortcode” means the following shortcodes: 25872, 29104, 33288, 44329, 49712, and 70451. “Message Claim Program” means the following programs: searchyourhoroscope.com; tuneztogo.com; hearmemobile.com; myringtonespot.com; cellsafari.com; tonezgalore.com; urzodiachoroscopes.com; and fonezoneportal.com.

         Filing No. 190, Order of Preliminary Approval at 1-2. The court also approved the form, content, and methods of disseminating the Notice of Settlements and directed that appropriate notice of the Settlements be provided to members of the Mobile Messenger and CFE Settlement Classes. Id.

         The Representative Plaintiff has shown that Notice of the Proposed Settlement Class Action & Fairness Hearing was provided to members of the class and the notice to the Mobile Messenger Settlement Class and the CFE Settlement Class ordered by the court in its Preliminary Approval Order has been provided, as attested to in the Declaration of Jeffrey D. Dahl (“Dahl Declaration”).[2] Filing No. 204-1. Also, the governmental notice required by the Class Action Fairness Act, 28 U.S.C. § 1715, has been provided. Filing No. 194, Certificate of Compliance.

         The Court finds the form, content, and methods of dissemination of the notice provided to the Mobile Messenger Settlement Class and the CFE Settlement Class were adequate, reasonable, and constituted the best notice practicable under the circumstances. The notice, as given, provided valid, due, and sufficient notice of the Settlements, the terms and conditions set forth therein, and these ...


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