United States District Court, D. Nevada
JUSTINE MCMULLEN, an individual, on behalf of herself and those similarly situated; Plaintiffs,
HUNTER WARFIELD OF NEW ENGLAND, INC., a Florida corporation, Defendant.
PRELIMINARY APPROVAL ORDER
JENNIFER A. DORSEY J.
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.
ORDERED as follows:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...