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Bassett v. Credit Management Services, Inc.

United States District Court, D. Nebraska

August 6, 2019

KELLY M. BASSETT, individually and as heir and Personal Representative of the Estate of James M. Bassett, on behalf of herself and all others similarly situated; Plaintiff,
v.
CREDIT MANAGEMENT SERVICES, INC., and JASON MORLEDGE, Defendants.

          FINDINGS AND RECOMMENDATION

          MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the parties' Joint Motion for Final Approval of Class Settlement (Filing No. 117) and Plaintiff's Unopposed Motion for Approval of Plaintiff's Incentive Award, Damages and Plaintiff's Attorneys' Fees and Costs (Filing No. 112). For the reasons explained below, the undersigned magistrate judge will recommend that the motions be granted.

         BACKGROUND

         Following a settlement conference conducted by the undersigned magistrate judge on October 4, 2018, Plaintiff and Defendants reached a settlement of this class action. On November 16, 2018, the parties filed the Class Action Settlement Agreement (Filing No. 106-1) and a joint motion (Filing No. 104) requesting that the Court approve the settlement agreement. On April 9, 2019, the Honorable Joseph F. Bataillon, Senior United States District Court Judge, granted the parties' joint motion and entered an Order of Preliminary Approval of the parties' settlement agreement. (Filing No. 107).

         Pursuant to the Order of Preliminary Approval, the Court: (1) preliminarily approved the Agreement; (2) ordered Credit Management Services (“CMS”) to serve a Class Action Fairness Act (“CAFA”) notice pursuant to 28 U.S.C. § 1715(b) and to file a certificate of compliance with the Court; (3) certified for settlement purposes the class previously certified in its prior Order (Filing No. 85); (4) approved the parties' proposed notice to the class (Filing No. 106-3); (5) notified the class members regarding how to be excluded from the settlement class; and (6) set a date and time for the final settlement fairness hearing and notified class members of the right to object to the settlement. (Filing No. 107). CMS complied with the Court's Order. (Filing No. 111).

         On May 22, 2019, First Class, Inc., the Court-appointed Settlement Administrator, mailed notices to 3, 729 class members and set a July 22, 2019, deadline for objections and requests for exclusion. As of July 20, 2019, 464 notices were returned undeliverable with no forwarding address and 121 notices were forwarded to a new address. The class administrator received no objections or requests for exclusion. (Filing No. 118-1).

         On July 10, 2019, the plaintiff filed an Unopposed Motion for Approval of Plaintiff's Incentive Award, Damages and Plaintiff's Attorneys' Fees and Costs (Filing No. 112) accompanied by a brief (Filing No. 113) and Index of Evidence (Filing No. 114) containing time records for the fees incurred by Plaintiff's counsel in connection with this lawsuit. Plaintiff requests $135, 000 in fees and costs and $7, 500 as an incentive award for the class representative, as negotiated during the settlement conference.

         On July 22, 2019, the parties filed their Joint Motion for Final Approval of Class Action Settlement. (Filing No. 117). On August 5, 2019, the parties appeared for the final fairness hearing before the undersigned magistrate judge pursuant to Fed.R.Civ.P. 23 to determine:

(a) whether the Proposed Settlement set forth in the Agreement should be approved as fair, reasonable, adequate, and in the best interests of the Settlement Class; (b) whether a final judgment should be entered dismissing the claims of Plaintiffs and the class members with prejudice and on the merits, as required by the Agreement; (c) whether to approve the cy pres award requested by the parties and (d) whether to approve the Plaintiff's attorneys' fees and costs and awards to the named Plaintiff.

(Filing No. 107 at p. 8). The Court took judicial notice of the evidence in the record and all the pleadings and filings in this case. No. class members appeared at the hearing and no class members objected to the settlement.

         DISCUSSION

         I. Final Approval of Class Settlement

         A court may approve a class action settlement after a hearing and upon a finding that the settlement is fair, reasonable, and adequate considering whether:

(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of ...

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