Monty J. Booth, Attorney at Law, P.S. v. AppStack, Inc., No. 2:2013cv01533 - Document 164 (W.D. Wash. 2017)
Court Description: FINAL APPROVAL ORDER AND FINAL JUDGMENT by Judge James L. Robart. (PM)
Monty J. Booth, Attorney at Law, P.S. v. AppStack, Inc. Case 2:13-cv-01533-JLR Doc. 164 Document 160-1 Filed 12/28/16 Page 1of6 THE HONORABLE JAMES L. ROBART 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON MONTY J. BOOTH, ATTORNEY AT LAW, P.S., a Washington corporation, RICARDO T. MASCARENAS, a Washington resident, and CHRISTOPHER GREGORY, a Washington resident, individually and on behalf of all others similarly situated, 15 16 17 ·[PROPOSED) FINAL APPROVAL ORDER AND FINAL JUDGMENT Plaintiffs, 13 14 NO. 2:13-cv-01533-JLR vs. APPSTACK, INC., a Delaware corporation; STEVE ESPINOSA, individually; and JOHN ZDANOWSKI, individually, Defendants. 18 19 20 'WHEREAS, on August 29, 2016, the Court entered an order ("Preliminary Approval 21 Order") preliminarily approving the proposed Settlement Agreement and Release 22 ("Agreement") and directed that notice be given to the Settlement Class (Dkt. No. 153); 23 WHEREAS, pursuant to the notice requirements set forth in the Agreement and 24 Prelimina1y Approval Order, the Settlement Class was notified of the terms of the proposed 25 Agreement, of the right of members of the Settlement Class to opt-out, and of the right of 26 members of the Settlement Class to object and be heard at a Final Approval Hearing to TERREL L MARS HALL [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT- I CAS ENO. 2: 11-CV-0 I025-MJP LA\\' GRO UP PLLC 938 North 34th Street. Suite 400 SeatUe, Washington 98103-8869 TEL. 206.816.8603 • FAX 208.350.3528 www.tmdwlaw.com Dockets.Justia.com Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 2 of 6 determine whether the terms and conditions of the Agreement are fair, reasonable and adequate 2 for the release of the claims contemplated by the Agreement; and w hether judgment should be 3 entered dismissing this Action with prejudice; 4 WHEREAS, a Final Approval Hearing was held on Wednesday, January 11, 2017 at 5 2:00 pm. Prior to the Final Approval Hearing, all memoranda and declarations in suppo11 of 6 the Agreement, which include proof of compliance with the provisions of the Agreement and 7 Preliminary Approval Order relating to notice, were filed with the Com1 as prescribed in the 8 Preliminary Approval Order. Settlement Class Members were therefore notified of their right 9 to appear at the Final Approval Hearing in suppo11 of or in opposition to the proposed 10 settlement, the award of attorneys' fees and costs to Class Counsel, and the payment of the 11 service awards to Class Representatives. 12 NOW, THEREFORE, the Cou11 having heard the presentation of Class Counsel and 13 counsel for Appstack, Inc., Steve Espinosa, and John Zdanowski, having reviewed all of the 14 submissions presented with respect to the proposed Settlement, having determined that the 15 settlement is fair, adequate and reasonable, having considered Class Counsel ' s motion for 16 awards of attorneys' fees and costs and service (also called "incentive") awards for the Class 17 Representatives, and having reviewed the materials in suppo11 thereof, and good cause 18 appeanng; 19 THIS COURT FINDS AND CONCLUDES AS FOLLO\VS: 20 1. 21 22 23 24 The capitalized terms used in this Final Approval Order and Judgment shall have the same meaning as defined in the Agreement, except as may otherwise be ordered. 2. The Co mt has jurisdiction over the subject matter of this Action and over all claims raised therein and all Parties thereto, including the Settlement Class. 3. The Cow1 hereby approves the Agreement, including the plans for 25 implementation and distribution of the settlement relief, and finds that the Agreement is, in all 26 respects, fair, reasonable and adequate to the Settlement Class Members, within the authority of TERR ELL MARSHA LL LA\\' GRO UP PLLC [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT-2 C ASE NO. 2:1 l-CV-01025-MJP 936 North 34th Street. Suite 400 Seattle, Washington 98103-8869 TEL. 206.816.6603 • FAX 206.350. 3528 l;l.nvWl.tmdw1 aw.com Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 3 of 6 the paities and the result of extensive a1m's length negotiations. The Pai1ies shall effectuate the 2 Agreement in accordance with its te1ms. The Agreement and every tenn and provision thereof 3 shall be deemed incorporated herein as if explicitly set fo11h and shall have the full force of an 4 Order of this Court. 5 4. Only two Settlement Class members, Oscar Riestra and Trevelyan Fugere d/b/a 6 PDR Paintless Dent Removal, opted out of the Settlement Class. No Settlement Class members 7 filed objections. 8 5. 9 10 II 12 Judgment, shall include members of the Settlement Class who did not submit timely and valid requests to be excluded. 6. All persons or entities in the United States who, on or after four years before the filing of this action to July 21, 2016, received a call to their cellular telephone line with a pre-recorded message, made by or on behalf of Defendants. 14 15 17 For purposes of the Agreement and this Final Approval Order and Judgment, the Com1 hereby certifies the following Settlement Class: 13 16 The Settlement Class, which will be bound by this Final Approval Order and The Settlement Class does not include any persons who validly request exclusion. 7. The Com1 finds that the plan for Settlement Notice, set forth in A11icle VII of 18 the Agreement and effectuated pursuant to the Preliminary Approval Order, was the best notice 19 practicable under the circumstances and provided due and sufficient notice to the Settlement 20 Class of the pendency of the Action, ce1tification of the Settlement Class for settlement 21 purposes only, the existence and tenns of the Agreement, and the Final Approval Hearing, and 22 satisfies the Federal Rules of Civil Procedure, the United States Constitution, the requirements 23 set fo11h in In Re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 20 l 0), and 24 any other applicable law. 25 26 8. The Agreement, is in all respects fair, reasonable, and adequate, is in the best interests of the Settlement Class, and is therefore approved. TERRELL MARSllALL [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT-3 C ASE NO. 2:1 l-CV-01025-MJP LA\\' GRO UP PLLC 936 North 34th Street, Suite 400 Seattle, Washington 98103-8869 TEL. 206.816.6603 • FAX 206.350.3528 www.tmdwlaw.com Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 4 of 6 9. All persons who have not made their objections to the settlement in the manner 2 provided in the Agreement are deemed to have waived any objections by appeal, collateral 3 attack, or otherwise. 4 IO. Within the time period set forth in Article VIII of the Agreement, settlement 5 payments shall be issued to each Settlement Class Member who submitted timely and valid 6 claim forms, under the te1ms and conditions of the Agreement. 7 11. Upon the Effective Date, members of the Settlement Class who did not validly 8 and timely opt-out shall have, by operation of this Final Approval Order and Judgment, forever 9 released, resolved, relinquished, and discharged the Released Parties from any claims that calls 10 placed on Defendants' behalf before the date the Final Approval Order is entered violated the 11 cell phone provisions of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(l)(A). 12 12. This Final Approval Order and Judgment, the Agreement, the settlement which 13 it reflects, and any and all acts, statements, documents or proceedings relating to the settlement 14 are not, and shall not be construed as, or used as an admission by or against Defendants of any 15 fault, wrongdoing, or liability on their part or of the existence or amount of any damages. 16 13. The payments ordered herein shall be made in the manner and at the times set 17 forth in the Agreement. Any amounts remaining in the Settlement Fund after the deadline to 18 cash checks has expired shall be disbursed to the Legal Foundation of Washington. 19 14. The Com1 hereby grants Class 20 attorneys' fees in the amount 21 Cou11 fm1her grants Class Counsel's application for an Incentive Award for Class 22 Representatives Ricardo T. Mascarenas and Christopher Gregory in the amount of $2,500 each 23 ($5,000 total). 24 15. l's request for an award of reasonable lc, c . co , - and liti ation costs in the amount of $133,003 . The The above-captioned Action is hereby dismissed in its entirety with prejudice. 25 Except as otherwise provided in this Final Approval Order and Judgment, the pai1ies shall bear 26 their own costs and attorneys' fees. Without affecting the finality of the Judgment hereby TERRELL [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT-4 C ASE N O. 2:1 l-CV-01025-MJP LAW GRO UP PLLC 936 North 341 Slreet. Suite 400 h Seattle, Washington 98103-8869 TEL. 206.816.6603 • FAX 206.350.3528 www.tmdwlaw.com Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28116 Page 5 of 6 entered, the Coutt reserves jmisdiction over the implementation of the Agreement, including 2 enforcement and administration of the Agreement. 3 IT IS SO ORDERED. 4 Dated day of 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TrnRELL MARSllALL [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT-5 C ASE N O. 2:1 l-CV-01025-MJP LA\\' Gnou r PLLC 936 North 34th Street. Suite 400 Seattle. Washington 98103·8869 TEL. 206.816.6603 • FAX 206.350 3528 www.tmdwlaw.com Case 2:13-cv-01533-JLR Document 160-1 Filed 12/28/16 Page 6 of 6 CERTIFICATE OF SERVICE 2 3 I, Jennifer Rust Mtmay, hereby ce1tify that on December 28, 20 16, l electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send 4 notification of such filing to the following: 5 6 7 8 9 10 11 12 Anne Cohen, WSBA #41183 Email: email@example.com Joseph A. Rohner IV, WSBA#4 7117 Email: jrohner@ smithfreed.com Legal Assistant: Sandra Reust Email: firstname.lastname@example.org Legal Assistant: Kimberly Harmon Email: email@example.com SMITH FREED & EBERHARD, P .C. 111 SW 5th Avenue, Suite 4300 Po1tland, Oregon 97204 Telephone: (5 03) 227-2424 Facsimile: (503) 227-2535 13 14 15 16 Attorneys for D efendants DATED this 28th day of December, 2016. TERRELL MARSHALL LAW GROUP PLLC 17 By: 18 19 20 21 22 /s/ Jennifer Rust MuITay. WSBA #36983 Jennifer Rust MmTay, WSBA #36983 Email: jmuITay@teITellmarshall.com 936 N01t h 34th Street, Su ite 300 Seattle, Washington 98103 Telephone: (2 06) 8 16-6603 Facsimile: (206) 319-5450 Attorney for Plaintiffs 23 24 25 26 TERRELL MARSHALL LA\\" GRO UP PLLC [PROPOSED] FINAL APPROVAL ORDER AND FINAL JUDGMENT-6 CASE NO. 2: 11-CV-0 I 025-MJP 936 North 341h Street. Suite 400 Seattle. Washington 98103-8869 TEL. 206.816.6603 • FAX 206.350.3528 www.tmdwtaw.com
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