Beneli v. Bca Fin. Servs., Inc.

DAVID BENELI, individually and on behalf of all others similarly situated, Plaintiff, v. BCA FINANCIAL SERVICES, INC., Defendant.

Civ. Act. No. 16-2737

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

February 6, 2018

**NOT FOR PUBLICATION**

OPINION

WOLFSON, United States District Judge:

Before the Court are (i) the Joint Motion for Final Approval of Class Settlement Agreement and Release, filed by Plaintiff David Beneli ("Plaintiff") and Defendant BCA Financial Services, Inc. ("Defendant"), and (ii) the Motion for an Award of Attorney Fees and Reimbursement of Expenses filed by Plaintiff, through counsel Marcus Zelman LLC. This settlement will resolve all claims asserted against Defendant BCA Financial Services, Inc. For the reasons set forth below and on the record at the hearing held on January 12, 2018, the parties' joint motion for final approval of settlement is granted, the Court certifies the proposed settlement class, the Court designates Plaintiff's counsel as class counsel, and the Court approves the final settlement fund of $10,000.00 as well as an award of $1,500 to Plaintiff. Plaintiff's motion for an award of attorney fees and reimbursement of expenses is also granted, and Class Counsel, Marcus Zelman LLC is awarded a combined $15,000 in fees and expenses, to be paid by Defendant BCA separate and apart from the settlement fund.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On May 13, 2016, Plaintiff, individually and on behalf of a class, filed the above-captioned class action lawsuit, which alleges that BCA violated the Fair Debt Collection Practices Act, 15 U.S.C. §§1692, et seq. ("FDCPA"), by, inter alia, sending consumers written collection communications that contained the consumer's account number visible through the glassine window in the envelope in which the communication was mailed. On June 9, 2016, BCA filed its Answer and affirmative defenses denying any wrongdoing.

The initial conference in this matter was held on August 19, 2016. Shortly after, the parties began engaging in settlement discussions. In the October 19, 2016 Pretrial Scheduling Order, Magistrate Judge Lois H. Goodman stayed formal discovery to enable the parties to explore settlement. The parties exchanged informal, exploratory discovery, and were able to reach a settlement in principal. A dispute as to the net worth of the Defendant remained, so the Plaintiff conducted confirmatory discovery which included deposing a corporate representative of BCA. After which time, the parties were able to reach an agreement to settle the claims of the Plaintiff and Settlement Class, which Agreement has been filed with the Court.

The Court preliminarily approved the Agreement on June 5, 2017, and approved an amendment to the Agreement on August 3, 2017. The Court preliminarily certified a settlement class of 2,612 members, consisting of:

All New Jersey consumers who were sent a collection letter from BCA, during the time period of May 13, 2015 to May 13, 2016, in an envelope with a glassine window, in which the consumer's reference number assigned by BCA was visible through the glassine window of the enclosing envelope.

The Court also preliminarily approved Ari Marcus and Yitzchak Zelman of Marcus & Zelman LLC as class counsel.

Notice of the settlement of this action was mailed by first class U.S. Mail to Settlement Class members on or before July 5, 2017. Twenty-nine (29) envelopes were returned by the United States Postal Service, of which nine (9) were returned by the United States Postal Service with a forwarding address, and were subsequently re-mailed. Pursuant to the Agreement, class members had forty-five (45) days after the mailing of the notice to exclude themselves from or object to the proposed settlement. No settlement class members have opted out or objected to the proposed settlement.

III. TERMS OF SETTLEMENT

The Court previously considered the terms of the Agreement in entering the Preliminary Approval Order, which are as follows:

(a) BCA will create a class settlement fund of $10,000.00 ("Class Recovery"), which the Class Administrator, First Class, Inc. will distribute pro rata among those Settlement Class Members who do not exclude themselves ("Claimants"). Claimants will receive a pro rata share of the Class Recovery by check. The shares of any of the Settlement Class Members who cannot be located because the Notice has been returned as "undeliverable" will be donated as described in paragraph (c) below. Checks issued to Claimants will be void sixty (60) days fromthe date of issuance. If any portion of the Settlement Class Recovery remains after the void date on the Claimants' checks, these remaining funds will be distributed pursuant to paragraph (c) below.

(b) BCA shall pay $1,000.00 to Plaintiff for his statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(B)(i), plus $500.00 in recognition for his services to the Settlement Class.

(c) The shares of any of the Settlement Class Members who cannot be located and any checks that have not been cashed by the void date will be donated as a cy pres award to a charitable organization. The Parties propose that the cy pres award be donated to Legal Services of New Jersey, and that the award will be expressly earmarked for the benefit of New Jersey consumers. The Parties' selection of the forgoing cy pres recipient is subject to the Court's approval at the time of the final fairness hearing.

Agreement, ¶ 12 [ECF No. 19-1]. Of the 2,612 Settlement Class members who were sent notice, none have objected to or asked to be excluded from the Settlement. Accordingly, each Settlement Class member will receive three dollars and eighty-two cents ($3.82), which represents their share of the monetary benefits under the Agreement, and any monies set aside for those class members who the administrator was unable to locate, will be donated as a cy pres award to Legal Services of New Jersey.

The Agreement also provides in relevant part that:

BCA agrees to pay Plaintiff's reasonable attorneys' fees and costs as provided under 15 U.S.C. § 1692k in accordance with a fee petition to be submitted by Settlement Counsel to the Court . . . . The award of fees, costs, and expenses to Class Counsel shall be in addition and shall not in any way reduce the settlement amounts to be provided to the Settlement Class Members. Upon payment of the costs and fees awarded by the Court to Class Counsel, BCA shall have no further obligation with respect to Class Counsels' fees, costs, and expenses . . . .

Agreement, ¶ 13 [ECF No. 19-1].

IV. JURISDICTION

This Court has subject-matter jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1331, 15 U.S.C. § 1692 et seq., and 28 U.S.C. § 2201. The Court has personal jurisdiction over defendants, plaintiffs, and all other Class Members. "In the class action context, the district court obtains personal jurisdiction over the absentee class members by providing proper notice of the impending class action and providing the absentees with the opportunity to be heard or the opportunity to exclude themselves from the class." In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 306 (3d Cir. 1998).

V. CLASS CERTIFICATION

In order to approve a class settlement agreement, "a district court must determine that the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b) are met and must determine that the settlement is fair to the class under Federal Rule of Civil Procedure 23(e)." In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241, 257-58 (3d Cir. 2009); In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 341 (3d Cir. 2010). ("a district court first must determine that the requirements for class certification under Rule 23(a) and (b) are met."). The Third Circuit has consistently observed that "Rule 23 is designed to assure that courts will identify the common interests of class members and evaluate the named plaintiffs' and counsel's ability to fairly and adequately protect class interests." In re Comm. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 799 (3d Cir. 1995) (alterations omitted). "The requirements of[Rule 23] (a) and (b) are designed to insure that a proposed class has 'sufficient unity so that absent class members can fairly be bound by decisions of class representatives.'" In re Prudential Ins. Co., 148 F.3d at 309 (quoting Amchem, 521 U.S. at 621). Under Rule 23(a), the prerequisites to class certification are:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class

Fed. R. Civ. P. 23(a); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). "Upon finding each of these prerequisites satisfied, a district court must then determine that the proposed class fits within one of the categories of class actions enumerated in Rule 23(b)." Sullivan v. DB Investments, Inc., 667 F.3d 273, 296 (3d Cir. 2011).

Certification pursuant to Rule 23(b)(3), applicable in cases like the one presently before the Court in which Plaintiffs seek monetary compensation, is permitted where

(1) "questions of law or fact common to class members predominate over any questions affecting only individual members," and

(2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."

Fed. R. Civ. P. 23(b)(3); see Collins v. E.I. DuPont de Nemours & Co., 34 F.3d 172, 180 (3d Cir. 1994); Amchem, 521 U.S. at 618 ("Among current applications of Rule 23(b)(3), the 'settlement only' class has become a stock device"). The "factual determinations necessary to make Rule 23 findings must be made by a preponderance...