United States District Court, D. Nebraska
LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff,
THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants.
MEMORANDUM & ORDER
F. Bataillon Senior United States District Judge
matter is before the Court after a hearing on the
parties' joint motion for final approval of a proposed
class action settlement, Filing No. 37, on December 20, 2018.
This is a class action for violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§1692 et seq., and the Nebraska Consumer
Practices Act (“NCPA”), Neb. Rev. Stat. §
59-1601, et seq.
case has been certified as a class action for purposes of the
proposed settlement. Filing No. 31. This Court preliminarily
approved the proposed partial Settlement Agreement and
approved the notice of the settlement and fairness hearing
thereon. Id. The Notice of the Proposed Partial
Settlement of Class Action & Fairness Hearing was
provided to members of the class by first class U.S. mail.
Filing No. 39-1, Affidavit of Dorothy Sue Merryman
fairness hearing was held before the undersigned on December
20, 2018. Attorney Pamela Car appeared as lead counsel for
the lead plaintiff. John C. Ochoa, counsel for defendant The
Collection Analyst, Inc., appeared by telephone. Defendant
Judith D. Retelsdorf's counsel did not appear at the
hearing but conveyed through plaintiff's counsel that he
had no issues with the Settlement Agreement and had not
received any objections to the Settlement Agreement. No.
objections to the proposed partial settlement or notices of
intent to appear were filed, and no one appeared at the
hearing to object. The Court takes judicial notice of the
Settlement Agreement (Filing No. 27-1).
Settlement Agreement will settle the representative
plaintiff's and the classes' claims against
defendants in this action. The agreement provides for payment
totaling $30, 000 to two settlement classes. Id. at
11-12. It also provides that the defendants will change the
challenged business practices. Id. at 12. In
consideration of those actions, the plaintiff class agrees to
dismiss, with prejudice, the claims identified in this class
action against defendants and have agreed to a release and
covenant not to sue. Id. at 14-15. The Settlement
Agreement also provides that any undistributed funds will be
distributed as a cy pres distribution to Legal Aid
of Nebraska for use in consumer representation and/or
consumer education. Id. at 11-12. The Court finds
the goals of that organization correspond to the interests of
are 406 members of the class. Filing No. 39-1, Merryman Aff.
at 1. The defendants have shown that the notice required by
the Class Action Fairness Act (“CAFA”), 28 U.S.C.
1715(d), has been sent by United States mail to the
appropriate governmental entities. Filing No. 39-2, Affidavit
of John C. Ochoa. The record shows notice has been provided
to the class members. Filing No. 39-1 Merryman Aff. at 2-3.
plaintiffs have shown that the proposed partial settlement is
the product of arm's-length negotiations.
SeeFiling No. 26, Plaintiff's Brief at 24.
Plaintiff's counsel has investigated the defendants'
financial condition to ensure that the proposed settlement
maximizes recovery. Id. at 22-23; Filing No. 27-1,
Settlement Agreement at 4. The representative plaintiff has
shown that, because of the defendants' financial
condition and the FDCPA limitation on the putative class
members' recovery to the lesser of 1% of the net worth of
the debt collector or $500, 000.00, see 15 U.S.C.
§ 1692k(a)(2)(B)(ii), the proposed settlement is in the
best interests of the plaintiff class. Filing No. 26,
plaintiff's Brief at 3.
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). A district court is required to consider
four factors in determining whether a 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, 931
(8th Cir. 2005). “The most important consideration in
deciding whether a settlement is fair, reasonable, and
adequate is ‘the strength of the case for plaintiffs on
the merits, balanced against the amount offered in
settlement.'” Id. at 933 (quoting
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1150 (8th
Cir. 1999) (internal quotations omitted)).
may also consider procedural fairness to ensure the
settlement is “not the product of fraud or
collusion.” Id. at 934. 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. With respect to notice, due process is
satisfied where class members receive notice of a settlement
proposal and are able to argue their objections to district
court. Id. at 1176.
Court finds that the requirements of due process have been
met as to the method and content of the notice to the class
members. The Court has reviewed the notices and affidavits
and finds them satisfactory. The Court further finds that the
Settlement Agreement with the defendants is fair and
reasonable. Based on the Court's familiarity with the
case throughout the course of this litigation, the Court
concludes that the proposed partial settlement is within the
range of potential outcomes in this case. The strength of
plaintiffs' case is tempered by the prospect that if the
litigation were to continue, there is a risk the class
members could recover nothing. In addition to providing some
monetary compensation to class members, the proposed
settlement provides the important benefit of defendants
changing their business practices. Further, there are no
objections to the ...