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McMullen v. Hunter Warfield of New England, Inc.

United States District Court, D. Nevada

September 8, 2017

JUSTINE MCMULLEN, an individual, on behalf of herself and those similarly situated; Plaintiffs,
v.
HUNTER WARFIELD OF NEW ENGLAND, INC., a Florida corporation, Defendant.

          PRELIMINARY APPROVAL ORDER

          JENNIFER A. DORSEY J.

         Plaintiff Justine McMullen (“Plaintiff”) and Defendant Hunter Warfield of New England, Inc. (“Defendant”) have filed a Joint Motion for Preliminary Approval of Class Action Settlement. The Court has read and considered the joint motion, the settlement agreement and its amendments thereto (“Agreement”), and the record. The Court grants the joint motion.

         IT IS ORDERED as follows:

         1. JURISDICTION: The Court has jurisdiction over the subject matter of the Lawsuit, and for purposes of settlement only, this Court has personal jurisdiction over Plaintiff, Defendant and all the Settlement Class members.

         2. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT: The Court preliminarily finds that the settlement of the Lawsuit (“Settlement”), on the terms and conditions set forth in the Agreement and the Exhibits thereto, is in all respects fundamentally fair, reasonable, adequate and in the best interests of the Class members, taking into consideration the benefits to Class members; the strength and weaknesses of Plaintiff's case; and Defendant's defenses, the complexity, expense and probable duration of further litigation; and the risk and delay inherent in possible appeals. The Court finds that notice of the Settlement should be given to persons in the Class and a full hearing should be held on approval of the Settlement.

         3. CAFA NOTICE: As set forth in the Agreement, Defendant through counsel will notify the appropriate state and federal officials in compliance with the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 and prepare a certificate of compliance with same.

         4. THE CLASS: On June 4, 2015, the Court preliminarily finds that the Lawsuit satisfies the applicable prerequisites for class action treatment under Federal Rule of Civil Procedure 23(a) and 23(b)(3), of the following class members:

all Nevada residents who (i) on or after July 13, 2015 through May 10, 2017 (ii) were sent a collection letter in the form of Exhibit 1, attached to the First Amended Complaint, from Defendant Hunter Warfield (iii) which was not returned as undeliverable by the U.S. Post Office (iv) in an attempt to recover an alleged obligation incurred for personal, family, or household purposes.

         Based on Defendant's records as of May 10, 2017, there are 557 persons in the Class. A copy of Exhibit “1” is attached hereto and is incorporated herein by reference.

         5. CLASS REPRESENTATIVE, CLASS COUNSEL AND SETTLEMENT ADMINISTRATOR APPOINTMENT: The Court preliminarily finds that Plaintiff Justine McMullen adequately represents the interests of the Class and appointed her as the Class Representative. The Court also finds that O. Randolph Bragg of Horwitz, Horwitz, & Associates Ltd. and Keren E. Gesund of Gesund and Pailet, LLC are adequate to act as counsel for the Class and appointed them as Class Counsel. For purposes of preliminary approval, the Court approves First Class, Inc. (“FCI”), to act as the Settlement Administrator and carry out the responsibilities assigned to it under the Agreement.

         6. NOTICE OF SETTLEMENT: The Court approves the form and method of notice set forth in the Agreement and finds that the form and method of notice set forth in the Agreement satisfies the requirements of Federal Rule of Civil Procedure 23(c)(2)(B) and due process, and constitutes the best practicable procedure under the circumstances. Defendant shall provide a class list, containing each settlement class members' last known address as reflected in Defendant's records, to FCI and to Class Counsel. Before sending the notice, FCI shall run the address of each person in the class list through the National Change of Address (NCOA) database/registry. Within forty-five (45) days following entry of this order, FCI shall send via first class U.S. mail the Notice of Settlement to each person in the class list, at their most recent known address, and will forward any notice that is returned with a forwarding address within fourteen (14) days of receiving the returned mail and will update the Class member address list with all forwarding addresses. At least ten (10) days before the Final Approval Hearing, the FCI shall file a declaration of compliance with the notice procedures set forth in the Agreement.

         7. SETTLEMENT AND CLAIMS PROCESS: The Court preliminarily approves the consideration of, $21, 000, which is at least the net worth of Defendant, approximately $37.70 to each member of the Class (provided there are no opt-outs; if there are opt-outs, this amount will be recalculated for a pro rata distribution), as fair, reasonable, and adequate.: The Court also preliminarily approves the payment of additional amounts for the costs of notice and administration, statutory damages of $, 1, 000.00 pursuant to 15 U.S.C. §1692k(a)(2), an incentive award of $3, 000.00 to the Class Representative, and any attorney's fees, costs or expenses that the Court may award to Class Counsel.

         8. EXCLUSIONS: Any Class member who desires to be excluded from the Settlement Class must send a written request for exclusion to FCI, with a postmark date no later than one-hundred five (105) days after the entry of this order. FCI's address shall be provided in the Notice of Settlement mailed to the Class Members. The Claims Administrator shall provide a list of those persons requesting exclusion to Class Counsel and to Defendant's counsel after the deadline for exclusions passes, but no later than ten (10) days before the Final Approval Hearing. A copy of that list will be filed with the Motion for Final Approval of the Class Action Settlement.

         To be valid, a request for exclusion must be personally signed by the member of the Class requesting exclusion and must include: (i) name, address and telephone number; (ii) a sentence stating that he or she is in Class; and (iii) the following statement: “I request to be excluded from the class settlement in McMullen vs. Hunter Warfield of New England, Inc., United ...


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