United States District Court, D. Nebraska
CULLAN AND CULLAN LLC, individually and on behalf of all others similarly situated; Plaintiff,
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
F. Bataillon Senior United States District Judge.
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.
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.
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); 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).
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
following settlement classes (hereinafter, collectively,
“plaintiff classes”) have been preliminarily
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.
[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.
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.
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”). 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.
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 ...