TERRELL MARSHALL LAW GROUP PLLC

PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION CASE NO. 2:14-CV-00235-RMP

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Beth E. Terrell, WSBA #26759 Erika L. Nusser, WSBA #40854 Blythe H. Chandler, WSBA #43387 Attorneys for Plaintiffs TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected] Email: [email protected] Email: [email protected] [Additional Counsel Appear on Signature Page]

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

WODENA CAVNAR, ROSALINE TERRILL, LINDA PARKS, DAVID SCOTT, ANGELINA FREITAS, REBECCA LYON and MARESA KENDRICK, on their own behalf and on the behalf of all others similarly situated,

Plaintiffs,

v.

BOUNCEBACK, INC., a Missouri Corporation, CHECK CONNECTION, INC., a Kansas corporation, STONE FENCE HOLDINGS, INC., a Missouri corporation, and GALE KRIEG, Defendants.

NO. 2:14-cv-00235-RMP PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION

Note on Motion Calendar: 4/11/16 Without Oral Argument

Case 2:14-cv-00235-RMP Document 119 Filed 03/11/16

PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION - i CASE NO. 2:14-CV-00235-RMP

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TABLE OF CONTENTS

Page No.

I. INTRODUCTION ......................................................................................... 1 II. STATEMENT OF FACTS ............................................................................ 2 A. Plaintiffs allege that Defendants engaged in unfair and

deceptive debt collection practices ...................................................... 2 B. The parties engaged in substantial discovery and motion

work ..................................................................................................... 3 C. The parties engaged in arm’s length settlement negotiations

with the assistance of an experienced mediator .................................. 5 D. The terms of the proposed settlement ................................................. 7 1. The proposed Settlement Class ................................................. 7 2. The settlement relief ................................................................. 8 a. Plaintiffs’ incentive and statutory damage awards ......... 8 b. Attorneys’ fees and litigation expenses .......................... 9 c. Administration costs ..................................................... 10 d. Settlement payments ..................................................... 10 3. The notice program ................................................................. 11 III. ARGUMENT AND AUTHORITY ............................................................ 12 A. The proposed settlement is reasonable .............................................. 12


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B. The criteria for preliminary approval of the settlement are satisfied .............................................................................................. 14

1. The Settlement Agreement is the product of serious, informed, and non-collusive negotiations ............................... 15

2. The settlement provides substantial relief to the

Settlement Class and treats all Settlement Class members fairly ........................................................................ 17

3. The Settlement Agreement is fair and reasonable in

light of the alleged claims and the Defendants’ financial condition .................................................................. 20

4. Continued litigation is likely to be complex, lengthy,

and expensive .......................................................................... 22 5. The stage of the proceedings and the amount of

discovery completed supports preliminary approval .............. 22 C. Plaintiffs’ counsel’s requested fees are reasonable ........................... 23 D. The requested incentive awards are reasonable ................................ 26 E. The proposed notice program is constitutionally sound ................... 27 F. Provisional certification of the class is appropriate .......................... 30 1. The Rule 23(a) factors are met ............................................... 31 a. Numerosity ................................................................... 31 b. Commonality ................................................................ 31 c. Typicality ...................................................................... 31 d. Adequacy ...................................................................... 32


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2. The Rule 23(b)(3) factors are satisfied ................................... 33 G. Scheduling a final approval hearing is appropriate ........................... 34 IV. CONCLUSION ........................................................................................... 36


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TABLE OF AUTHORITIES

Page No.

FEDERAL CASES

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................. 33, 34

Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589 (E.D. Cal. 1999) ................................................................. 34 Class Plaintiffs v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992) ..................................................................... 13 Ellis v. Costco Wholesale Corp.,

657 F.3d 970 (9th Cir. 2011) ....................................................................... 32 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ...................................... 13, 15, 16, 31, 32, 33 Hanon v. Dataprods. Corp.,

976 F.2d 497 (9th Cir. 1992) ....................................................................... 32 Hunt v. Check Recovery Sys., Inc.,

241 F.R.D. 505 (N.D. Cal. 2007) ................................................................ 34 In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935 (9th Cir. 2010) ................................................................. 16, 24 In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454 (9th Cir. 2001) ....................................................................... 18 In re Mercury Interactive Corp. Sec. Litig.,

618 F.3d 988 (9th Cir. 2010) ....................................................................... 24 In re Omnivision Tech., Inc.,

559 F. Supp. 2d 1036 (N.D. Cal. 2008) ....................................................... 19


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In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015) ..................................................... 15, 26, 27, 33

Keele v. Wexler,

149 F.3d 589 (7th Cir. 1998) ....................................................................... 34 Landfried v. Spokane Cnty.,

No. CV-09-360-EFS, 2011 WL 1584328 (E.D. Wash. Apr. 27, 2011) ...... 21 Officers for Justice v. Civil Serv. Comm’n,

688 F.2d 615 (9th Cir.1982) ........................................................................ 18 Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) .................................................................................... 29 Rinky Dink, Inc. v. World Bus. Lenders,

No. 2:14-cv-0268-JCC (W.D. Wash. Feb. 3, 2016) .................................... 19 Rodriguez v. W. Publ’g Corp.,

563 F.3d 948 (9th Cir. 2009) ................................................................. 18, 27 Six (6) Mexican Workers v. Arizona Citrus Growers,

904 F.2d 1301 (9th Cir. 1990) ............................................................... 24, 25 Suchanek v. Sturm Foods, Inc.,

764 F.3d 750 (7th Cir. 2014) ....................................................................... 31 Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) ..................................................................... 24 Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011) ................................................................................. 31

FEDERAL STATUTES

15 U.S.C. § 1692k(a)(1) ......................................................................................... 18 15 U.S.C. § 1692p .................................................................................................. 21


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STATE STATUTES

RCW 19.86.090 ..................................................................................................... 18

FEDERAL RULES

Fed. R. Civ. P. 23(a)(1) .......................................................................................... 31 Fed. R. Civ. P. 23(a)(4) .......................................................................................... 32 Fed. R. Civ. P. 23(e) ........................................................................................ 13, 27

OTHER AUTHORITIES

Manual for Complex Litigation (Fourth) §§ 21.632 – 21.634 (2014) ........................................................ 13, 14, 15, 27 William B. Rubenstein, Newberg on Class Actions § 13.1

(5th ed. updated 2015) ................................................................................. 13

William B. Rubenstein, Newberg on Class Actions § 13.13 (5th ed. updated 2015) ................................................................................. 14


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I. INTRODUCTION

After over a year and a half of hard-fought litigation, the parties have

reached a proposed class wide settlement of this case and a related action pending

in the Northern District of California.1 The proposed settlement creates a

common fund of $530,000, which was based on the combined available coverage

of the Defendants’ two insurance policies as more fully set forth at Paragraph 9 of

the Declaration of Sarah Crabtree supporting this motion. All Settlement Class

Members for whom the parties have a deliverable address will receive a cash

payment from the common fund. They do not need to submit a claim to receive

an award. The common fund also will be used to pay (1) all costs associated with

administration of the settlement, which are capped at $28,000, (2) individual

awards to the named Plaintiffs in the amount of $2,000 each as approved by the

Court, and (3) $243,185.97 in requested attorneys’ fees and litigation expenses as

approved by the Court. If the Court approves these requests, approximately

$244,813 will be used to make Settlement Awards to class members. Plaintiffs’

counsel estimate that each of the more than 11,000 Settlement Class members

will receive a cash award of between $5 and $270.

1 An executed copy of the Settlement Agreement is attached as Exhibit 1 to the

Declaration of Beth Terrell (hereinafter “Settlement Agreement”).



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The settlement fund is significantly smaller than the amount Plaintiffs

could have obtained had they successfully litigated the cases to judgment. Due to

the Defendants’ precarious financial condition, however, it would have been

almost impossible to collect on such judgments. Only after carefully examining

(1) documents produced by the Defendants showing their precarious financial

situation, and (2) the terms of Defendants’ applicable insurance policies did

Plaintiffs’ counsel agree to settle the case based on the combined available

coverage of the two insurance policies as more fully set forth at Paragraph 9 of

the Declaration of Sarah Crabtree. Declaration of Sarah Crabtree in support of

Preliminary and Final Reasonableness Hearing Approving Class Action

Settlement (“Crabtree Decl.”) ¶ 9. By doing so, Plaintiffs and their counsel have

ensured that members of the proposed class timely receive certain compensation

for the unauthorized fees Defendants demanded and collected.

Defendants do not oppose Plaintiffs’ request that the Court preliminarily

approve the Settlement and provisionally certify the proposed Settlement Class.

II. STATEMENT OF FACTS

A. Plaintiffs allege that Defendants engaged in unfair and deceptive debt collection practices.

On July 18, 2014, Plaintiffs Cavnar, Terrill, and Parks initiated this action

against Defendants BounceBack, Inc., Stone Fence Holdings, Inc., and Gale



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Krieg (ECF No. 1) (“Washington Action”). Plaintiffs allege that Defendants

contracted with county prosecutors to send letters on prosecutor letterhead

demanding payment of “restitution” for checks that were dishonored upon

presentment, plus significant fees. ECF No. 45 ¶¶ 1.1–1.6. Plaintiffs allege that

the letters are false and deceptive under both state and federal law, and the fees

Defendants demand and collect from check writers are not authorized by law. Id.

Plaintiffs filed a First Amended Complaint on May 29, 2015 (ECF No. 45) adding

Plaintiff Scott as a party.

On August 3, 2015, Angelina Freitas, Rebecca Lyon, and Maresa Kendrick

initiated a lawsuit captioned Freitas et al. v. BounceBack, Inc. et al., No.

15-CV-03560-RS (N.D. Cal.), against Defendants BounceBack, Inc., Stone Fence

Holdings, Inc., Check Connection, Inc., and Gale Krieg in the United States

District Court for the Northern District of California (“California Action”).

Plaintiffs filed their First Amended Complaint in the California Action on

October 23, 2015. The allegations in the California Action are nearly identical to

the allegations in the Washington Action.

B. The parties engaged in substantial discovery and motion work.

The parties engaged in extensive first party and third-party discovery

relevant to those claims. Declaration of Beth Terrell in Support of Plaintiffs’

Unopposed Motion for Preliminary Approval of Settlement (“Terrell Decl.”) ¶ 3.



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Plaintiffs’ counsel propounded public records requests to fourteen Washington

counties and nine California counties. Id. Defendants produced documents and

data, which Plaintiffs’ counsel diligently reviewed. Id. ¶ 4. The Defendants

produced more than 25,500 pages of documents responsive to Plaintiffs’

discovery requests in the two actions, including thousands of pages relevant to the

California action. Id. In addition, Plaintiffs pursued third party discovery from

seventeen different entities, including merchants who refer checks to the

Defendants and county prosecutors. Id. ¶ 5.

The parties also engaged in substantial motion work. The parties briefed

Defendants’ motion for partial summary judgment in the Washington Action,

which the Court denied (ECF No. 73). After determining that Defendants’ initial

discovery responses in the Washington Action were deficient, Plaintiffs prevailed

on a motion to compel discovery responses (ECF No. 74). Plaintiffs filed a

motion for class certification, which was fully briefed and pending at the time this

case settled. (ECF Nos. 55, 75, 78, 80, 99, 104, 108). Plaintiffs relied on key

portions of the significant evidentiary record in this matter in support of their

motion for class certification (see ECF Nos. 55, 80).



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C. The parties engaged in arm’s length settlement negotiations with the assistance of an experienced mediator.

The parties to both the Washington Action and the California Action

negotiated a global, class wide Settlement Agreement that resolves all claims in

both matters. As part of the Settlement Agreement, the parties agreed to file a

Second Amended Complaint in this Court that combines all parties and claims in

both the Washington Action and the California Action (collectively, the

“Action”). Settlement Agreement § I.5.

During settlement negotiations, the Defendants emphasized that they would

not be able to pay a judgment of the size Plaintiffs’ counsel believed they could

obtain on behalf of Plaintiffs and the proposed classes. Terrell Decl. ¶ 6.

Plaintiffs’ counsel were confident that they had strong claims on the merits and

would be able to certify a class. Id. However, they pragmatically considered

Defendants’ position and realistically considered the risk that the class would

receive nothing even if Plaintiffs prevailed on the merits. Id. Therefore,

Plaintiffs’ counsel insisted that they receive documents regarding Defendants’

insurance coverage and confirming Defendants’ financial insolvency, which

Defendants provided. Id.

First, Plaintiffs’ counsel carefully considered the terms of Defendants’

insurance policies. As set forth in the declaration prepared by Ms. Crabtree, there



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are two insurance policies available to potentially pay claims of the members of

the proposed classes. Crabtree Decl. ¶¶ 3–4. The two insurance policies limit

coverage for claims made as part of a class action lawsuit to $1,100,000. Id. In

addition, the policies provide wasting coverage, meaning that they have been

depleted by the costs of providing the Defendants with a defense in these actions.

Id. ¶¶ 3–4, 6–7. Finally, the policies specifically preclude coverage in the event

that any of the Defendants are found to be engaged in debt collection. Id.

¶¶ 3-58, 8. Plaintiffs’ counsel independently reviewed the insurance agreements

and reached the same conclusions as Ms. Crabtree regarding their coverage.

Terrell Decl. ¶ 7.

Second, Plaintiffs’ counsel scrutinized financial documents provided by

Defendants, showing the corporate defendants’ liabilities exceed their income and

that Mr. Krieg’s personal assets are limited as well. Terrell Decl. ¶ 8. For

example, BounceBack’s Profit and Loss sheet for 2014 reflects a $129,000 deficit

in net income. Id., Ex. B. Plaintiffs’ counsel also reviewed Mr. Krieg’s personal

tax returns for the years 2010–2014 and did independent research into his assets.

Terrell Decl. ¶ 9.

Plaintiffs’ counsel concluded that apart from limited insurance funds,

Defendants have no assets to satisfy a judgment. Terrell Decl. ¶ 10. If Plaintiffs



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continued to litigate this case to judgment Defendants almost certainly would

declare bankruptcy leaving no funds for the class. Id.

D. The terms of the proposed settlement.

1. The proposed Settlement Class.

The proposed Settlement Class is comprised of all persons who: (a) were

sent one or more Letters bearing the name, seal, or letterhead of any prosecuting

attorney in Washington, from July 18, 2013 to November 30, 2015; or (b) were

sent one or more Letters bearing the name, seal, or letterhead of any prosecuting

attorney in Washington, from July 18, 2010 to November 30, 2015 and who paid

any of Defendants’ Fees; or (c) were sent one or more Letters bearing the name,

seal, or letterhead of any district attorney in Lake, Mendocino, Plumas, San

Benito, Sutter, or Yuba County, California from August 3, 2014 to November 30,

2015; or (d) were sent one or more Letters bearing the name, seal, or letterhead of

any district attorney in Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba

County, California from August 3, 2011 to November 30, 2015 and who paid any

of Defendants’ Fees; and appear on the Settlement Class List. Settlement

Agreement § II.19.

Settlement Class Members include members of the Settlement Class that do

not opt-out from the action. Settlement Agreement § II.21. Defendants’ records



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confirm there are approximately 11,938 Settlement Class members. Terrell Decl.

¶ 11.

2. The settlement relief.

The Settlement Agreement requires Defendants to pay a total of $530,000

as consideration for the settlement. Settlement Agreement § IV.1. This payment

will create a “Settlement Fund” that will cover all of the following, as approved

by the Court: payments to Settlement Class members; payments to Plaintiffs’

counsel in the requested amounts of $230,071 in fees and $13,114.97 in costs;

payments to the class administrator for notice and settlement administration costs

in an amount capped at $28,000; and incentive and statutory damage awards to

Plaintiffs in the amount of $2,000 each. Id. §§ V.1–2. If any amounts remain in

the Settlement Fund as a result of uncashed checks, Plaintiffs’ counsel will ask

that the Court award those funds to Plaintiffs’ counsel as reasonable attorney’s

fees. Id. § V.3. Any funds not so disbursed will be disbursed “cy pres” to the

Northwest Consumer Law Center. Id. § V.4.

a. Plaintiffs’ incentive and statutory damage awards.

If approved by the Court, Plaintiffs will each receive a total incentive and

statutory damage award of $2,000. This award includes an incentive award of

$1,000 and a statutory damages award of $1,000 under 15 U.S.C. § 1692k(a)(2).

Settlement Agreement § V.1. These awards will compensate Plaintiffs for their



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time and effort serving as class representatives and for the risks they undertook in

prosecuting the case. See Declaration of Paul Arons in support of Motion for

Preliminary Approval of Class Action Settlement (“Arons Decl.”) ¶ 3. The

awards will be paid from the Settlement Fund.

b. Attorneys’ fees and litigation expenses.

The Settlement Agreement provides that in connection with obtaining

preliminary and final approval of the Settlement Agreement, Plaintiffs’ counsel

will request an award of attorneys’ fees to be paid from the Settlement Fund.

Plaintiffs’ counsel intend to request that the Court approve as reasonable the total

lodestar amount of their fees. However, Plaintiffs’ counsel will seek an initial

payment from the Settlement Fund of $230,071.45, which is less than half of their

total lodestar. Id. § V.2.; Terrell Decl. ¶ 15; Arons Decl. ¶ 7; see also Declaration

of Karl Olson in support of Plaintiffs’ Motion for Preliminary Approval of Class

Action Settlement (“Olsen Decl.”), Ex. A. Plaintiffs’ counsel will also seek

reimbursement of their out-of-pocket litigation expenses in the amount of

$13,114.97. Terrell Decl. ¶¶ 27–28.

Plaintiffs’ counsel will also request that the Court award them any

unclaimed funds that remain in the Settlement Fund after all Settlement Award

checks have been cashed or voided, provided that the award of unclaimed funds



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would not result in a total payment to Plaintiffs’ counsel that exceeds the lodestar

amount approved as reasonable by the Court. Settlement Agreement § V.3.

The enforceability of the settlement is not contingent on Court approval of

an award of attorneys’ fees and costs. Settlement Agreement § V.5.

c. Administration costs.

Plaintiffs’ counsel have retained experienced claims administrator

Kurtzman Carson Consultants (“KCC”) to administer the settlement. Terrell

Decl. ¶ 29. KCC estimates it will cost approximately $28,000 to issue notice,

establish and maintain a settlement website, administer the settlement, and issue

checks to all members of the Settlement Class who are eligible for a Settlement

Award. Id. KCC has agreed to cap class administration costs at $28,000.

d. Settlement payments.

The remainder of the Settlement Fund will be distributed to members of the

Settlement Class in accord with the distribution plan agreed to by the parties. See

Settlement Agreement §§ IV.2. The Settlement Class Members who received

letters from the Defendants within the one year statute of limitations for the

FDCPA but who did not pay any fees to Defendants will receive a statutory

damages award of $5. Id. § IV.2.a. The remainder of the Settlement Fund

allocated to class member payments will be distributed to Settlement Class

Members in pro rata amounts based on the total amount of Defendants’ Fees the



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Settlement Class Member paid. Id. § IV.2.b. Defendants’ Fees are payments to

the Defendants that exceed the amount of the check(s) that was allegedly written

by a Settlement Class member and dishonored upon presentment. Id. § II.4.

Plaintiffs’ counsel estimate that each Settlement Class Member who paid fees will

receive at least fourteen percent (14%) of those fees. Id. § IV.2.b. Assuming the

Court grants the requested attorneys’ fees, litigation expenses, and notice and

settlement administration fees, this will result in settlement payments ranging

from $5 to $270.2 Terrell Decl. ¶ 30. Settlement Class Members do not have to

submit a claim form to receive an award. If the settlement is approved, KCC will

simply mail a check to every Settlement Class Member with a deliverable mailing

address. Settlement Agreement § IV.2.d.

3. The notice program.

In conjunction with preliminary approval, Plaintiffs respectfully ask the

Court to approve a notice program, which KCC will administer by (1) correcting

Settlement Class address information provided by Defendants using the National

Change of Address database; (2) mailing the Postcard Notice to all members of

the Settlement Class (Settlement Agreement, Ex. C); (3) setting up and

2 Any Settlement Class Member whose award would otherwise be less than $5

will receive a check for $5. Settlement Agreement § IV.2.c.



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maintaining the settlement website (Settlement Agreement, Ex. E3); (4)

processing and tracking any opt-outs from Settlement Class members; and (5)

calculating and issuing Settlement Awards. Settlement Agreement §§ VII.1–3.

Settlement Class Members will have sixty days from the date of initial

mailing of the Postcard Notice to submit a written request to be excluded from the

Settlement Class. Settlement Agreement §§ II.10; IX.1. Settlement Class

Members will also have sixty days from the date of initial mailing to object to the

settlement. Id. §§ II.9; X.1.

The class administrator will calculate the settlement awards for Settlement

Class Members and issue checks within thirty days of the settlement’s “Effective

Date,” which is the date the Court has entered a final judgment order and all

appeals have been resolved. See id. §§ II.4; IV.2.d.

III. ARGUMENT AND AUTHORITY

A. The proposed settlement is reasonable.

As a matter of “express public policy,” federal courts strongly favor and

encourage settlements, particularly in class actions and other complex matters,

where the inherent costs, delays, and risks of continued litigation might otherwise

3 The content of the Settlement Website will be based on the Long Form Notice

agreed to by the parties.



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overwhelm any potential benefit the class could hope to obtain. See Class

Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (noting the

“strong judicial policy that favors settlements, particularly where complex class

action litigation is concerned”); see also William B. Rubenstein, Newberg on

Class Actions (“Newberg”) § 13.1 (5th ed. updated 2015) (citing cases). Federal

Rule of Civil Procedure Rule 23(e) governs the Court’s review of a proposed

class action settlement in order to ensure that it is fair, adequate, and reasonable.

Fed. R. Civ. P. 23(e); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

1998).

The Manual for Complex Litigation describes a three-step procedure for

approval of class action settlements: (1) preliminary approval of the proposed

settlement; (2) dissemination of notice of the settlement to all affected class

members; and (3) a “fairness hearing” or “final approval hearing,” at which class

members may be heard regarding the settlement, and at which evidence and

argument concerning the fairness, adequacy, and reasonableness of the settlement

may be presented. Manual for Complex Litigation (Fourth) (“MCL 4th”)

§§ 21.632 – 21.634, at 432–34 (2014). This procedure safeguards class members’

due process rights and enables the court to fulfill its role as the guardian of class

interests. See Newberg § 13.1.



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With this motion, the parties request the Court take the first step in the

settlement approval process by granting preliminary approval of the Settlement

Agreement and directing notice to the Settlement Class. The purpose of

preliminary evaluation of proposed class action settlements is to determine

whether the settlement “is within the range of possible approval” and thus

whether notice to the class of the settlement’s terms and the scheduling of a

formal fairness hearing is worthwhile. Newberg § 13.13. The decision to

approve or reject a proposed settlement is committed to the Court’s sound

discretion. See City of Seattle, 955 F.2d at 1276.

The Court’s grant of preliminary approval will allow the Settlement Class

to receive direct notice of the proposed Settlement Agreement’s terms and the

date and time of the Final Approval Hearing, at which Settlement Class Members

may be heard regarding the Settlement Agreement, and at which time further

evidence and argument concerning the settlement’s fairness, adequacy, and

reasonableness may be presented. See MCL 4th § 21.634.

B. The criteria for preliminary approval of the settlement are satisfied.

Preliminary approval of a settlement is appropriate if the proposed

settlement appears to be the product of serious, informed, non-collusive

negotiations, has no obvious deficiencies, does not improperly grant preferential



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treatment to segments of the class, and falls within the range of possible approval.

See MCL 4th § 21.632. “To assess a settlement proposal, courts must balance the

strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration

of further litigation; the risk of maintaining class action status throughout the

trial; the amount offered in settlement; the extent of discovery completed and the

state of the proceedings; the experience and views of counsel; the presence of a

governmental participant; and the reaction of the class members to the proposed

settlement. In re Online DVD-Rental Antitrust Litig. (“In re Online DVD”), 779

F.3d 934, 944 (9th Cir. 2015).

Even at this preliminary stage, an analysis of these factors favors settlement

approval.

1. The Settlement Agreement is the product of serious, informed, and non-collusive negotiations.

The Court’s role is to ensure that “the agreement is not the product of fraud

or overreaching by, or collusion between, the negotiating parties, and that the

settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998) (internal quotes

and citations omitted); see also In re Online DVD, 779 F.3d at 944 (noting

settlements in class actions “present unique due process concerns for absent class

members,” including the risk that class counsel “may collude with the



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defendants”) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,

946 (9th Cir. 2010)).

The Settlement Agreement is the result of intensive, arm’s-length

negotiations between experienced attorneys for both parties who are highly

familiar with class action litigation in general and with the legal and factual issues

of this case in particular. Terrell Decl. ¶¶ 31–36; Arons Decl. ¶ 6; Olson Decl.

¶ 3; ECF Nos. 57, 58. Plaintiffs’ counsel are particularly experienced in the

litigation, certification, trial, and settlement of FDCPA cases similar to this case.

See generally id. The parties’ first step toward resolution of the case was a full

day in-person mediation with mediator Teresa Wakeen of Wakeen & Associates

Mediation Services. Terrell Decl. ¶ 35. Although the mediation was

unsuccessful, counsel for both parties continued to engage in discussions over a

period of months, which ultimately resulted in the Settlement Agreement. Id.

Counsel spent a considerable amount of time engaging in written discovery,

document review, data analysis, and analyzing legal issues related to the lawsuit’s

claims. See Hanlon, 150 F.3d at 1027 (no basis to disturb the settlement, in the

absence of any evidence suggesting that the settlement was negotiated in haste or

in the absence of information). Plaintiffs’ counsel only agreed to settle after

reviewing balance sheets, tax documents, and a declaration from Defendants’

insurance carrier. Terrell Decl. ¶ 36, Exs. 2–4; Declaration of Beth Terrell in



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support of Plaintiffs’ Motion to File Under Seal, Ex. A. Plaintiffs and their

counsel support the settlement as fair, reasonable, adequate and in the best

interests of the Settlement Class members. Terrell Decl. ¶ 37; Arons Decl. ¶ 2.

This factor favors granting preliminary approval.

2. The settlement provides substantial relief to the Settlement Class and treats all Settlement Class members fairly.

The Settlement Agreement requires Defendants to pay $530,000 into a

fund out of which Settlement Class members will receive a payment (“Settlement

Fund”). Settlement Agreement § IV.1. All members of the Settlement Class for

whom the parties have a deliverable mailing address (which will be determined

based on whether the postcard notice is delivered) and who have statutory

damages or paid Defendants’ Fees will receive a payment from the Settlement

Fund, unless they exclude themselves from the Settlement. Id. § IV.2. A

Settlement Class member does not have to submit a claim in order to receive a

Settlement Award. Id. The Settlement Fund also will be used to pay court-

approved class representative incentive and statutory damage awards, court-

approved attorneys’ fees to Plaintiffs’ counsel, and notice and settlement

administration costs. Id. § V. The Settlement Fund is non-reversionary, ensuring

that the monetary benefits will go to the Settlement Class—none of the

Settlement Fund will return to Defendants. Id. § V.3–5.



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Although the precise amount of each Settlement Class member’s award

cannot be determined until notice has been mailed and opt-outs have been

processed, Plaintiffs’ counsel estimate Settlement Class Members will receive a

cash payment of at least 14% of the amount Settlement Class members paid to

Defendants’ Fees.

Plaintiffs’ counsel acknowledge that $530,000 is less than the actual and

statutory damages potentially available to the Settlement Class Members. See,

e.g., 15 U.S.C. § 1692k(a)(1)(A) (permitting a successful FDCPA plaintiff to

recover either actual damages or up to $1,000 in statutory damages); 15 U.S.C.

§ 1692k(a)(1)(B) (capping statutory damages to a class at $500,000 or 1% of the

defendant’s net worth, whichever is less); RCW 19.86.090 (permitting trebling of

damages award up to $25,000). But “[i]t is well-settled law that a cash settlement

amounting to only a fraction of the potential recovery does not per se render the

settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,

458 (9th Cir. 2001) (quoting Officers for Justice v. Civil Serv. Comm’n, 688 F.2d

615, 628 (9th Cir.1982)) (approving a settlement estimated to be worth 16–50%

of the plaintiffs’ estimated loss). Indeed, approval would be appropriate even if

class members received a smaller percentage of their possible damages. See, e.g.,

Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (approving

settlement amounting to 30% of the damages estimated by the class expert; court



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noted that if the plaintiffs were entitled to treble damages that settlement would

be approximately 10 percent of the estimated damages); In re Omnivision Tech.,

Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal. 2008) (approving settlement

amounting to nine percent of estimated total damages). This is especially true

where, due to Defendants’ precarious financial situation, Plaintiffs and Settlement

Class Members very likely would recover nothing if they proceed to trial. In such

circumstances, the settlement is an excellent result for the class. See, e.g., Rinky

Dink, Inc. v. World Bus. Lenders, No. 2:14-cv-0268-JCC, Order Granting

Preliminary Approval of Class Settlement, ECF No. 84 at 7–8 (W.D. Wash. Feb.

3, 2016) (finding the defendant’s ability to pay is relevant to determining the

fairness of a proposed class action settlement and preliminarily approving

settlement where each class member would receive between 8% and 12% of their

possible damages).

The manner in which settlement funds will be allocated also is fair and

efficient. Settlement Class Members do not need to do anything to receive a

portion of the Settlement Fund. Settlement Agreement § IV. Instead, every

Settlement Class Member for whom the parties have a deliverable address and

who has statutory damages or paid the Defendants’ Fees will receive a Settlement

Award. Id. These awards provide cash compensation in a timely manner to

Settlement Class Members harmed by Defendants’ conduct.



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3. The Settlement Agreement is fair and reasonable in light of the alleged claims and the Defendants’ financial condition.

Entering into mediation, Plaintiffs and their counsel were confident in the

strength of their case. The Court had already denied Defendants’ motion for

summary judgment on one of their primary defenses (ECF No. 73). Moreover,

Plaintiffs’ Counsel were confident that the proposed classes would be certified,

for the reasons set forth in their briefing on class certification (ECF Nos. 55, 80).

However, Defendants’ financial situation presented a significant risk that

Plaintiffs would be unable to collect all or a significant portion of any judgment

entered against Defendants. The Defendants’ ability to pay a judgment beyond

the amount recovered in this settlement was highly uncertain. Throughout the

parties’ settlement discussions, Defendants insisted that they would not be able to

satisfy a larger class-wide judgment, providing evidence that Defendants’

business liabilities exceed their assets. Terrell Decl. ¶ 6; Declaration of Gale

Krieg in support of Preliminary and Final Reasonableness Hearing Approving

Class Action Settlement (“Krieg Decl.”) ¶¶ 2–3. Plaintiffs’ counsel refused to

settle until they were satisfied that Defendants’ assertions regarding their limited

assets were true. Terrell Decl. ¶¶ 6, 36. Careful review of Defendants’ financial

records convinced Plaintiffs’ counsel that Defendants simply do not have

anything to pay Settlement Class Members other than the proceeds of their



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wasting insurance policies. See Krieg Decl. ¶¶ 2–4. In addition, those insurance

policies include exclusions for any conduct by Defendants found to be

collections. Crabtree Decl. ¶¶ 3, 5. As a result, any victory by Plaintiffs on the

merits of their claims would also mean the loss of all insurance coverage.

Plaintiffs also were aware they risk losing on the merits. The FDCPA

contains an exemption for debt collection programs operated under contract with

a county prosecutor. 15 U.S.C. § 1692p. Although the Court denied Defendants’

motion for summary judgment (ECF No. 73), the Court did not conclusively

resolve whether the Defendants’ programs qualify for the exemption. In addition

there is a decision from this Court in a prior case granting summary judgment in

BounceBack’s favor on claims similar to those raised here. See Landfried v.

Spokane Cnty., No. CV-09-360-EFS, 2011 WL 1584328 (E.D. Wash. Apr. 27,

2011).

Another risk Plaintiffs faced going forward is that this Court would decline

to certify this case as a class action. When the parties settled, the parties in the

Washington Action had fully briefed class certification and presented oral

argument to the Court. The Defendants argued that Plaintiffs failed to establish

both commonality under Rule 23(a)(2) and predominance under Rule 23(b)(3),

specifically pointing to differences in the letters BounceBack sent to members of

the proposed classes in fourteen different Washington counties. Although



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Plaintiffs were confident that they would prevail on class certification, such facts

present a risk that they could not ignore.

Given the real risk that the class could receive nothing because of a loss on

the merits or because they could not collect a judgment, the settlement, which

provides certain cash payments, is an excellent result for the Settlement Class.

4. Continued litigation is likely to be complex, lengthy, and expensive.

Litigation would be lengthy and expensive if this action were to proceed.

Although the parties had completed substantial discovery at the time they reached

agreement, fact witness depositions, and extensive motion work, including

dispositive motions, remained. Terrell Decl. ¶ 39. The appeals process may have

further delayed any judgment in favor of Settlement Class Members. The

settlement avoids these risks and provides immediate and certain relief.

5. The stage of the proceedings and the amount of discovery completed supports preliminary approval.

Plaintiffs’ counsel have thoroughly analyzed the factual and legal issues

involved in this case. Terrell Decl. ¶¶ 3–5. Plaintiffs’ counsel’s investigation of

Defendants’ collection practices commenced over two years ago with Public

Records Act requests to fourteen Washington counties. Id. ¶ 3. Plaintiffs’

counsel also sought public records from nine California counties. Id. Defendants

in this Action produced documents and data, which Plaintiffs’ counsel diligently



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reviewed. Id. ¶ 4. In addition, Plaintiffs’ counsel pursued third party discovery

from seventeen different entities, including merchants and debt collectors who

refer checks to the Defendants and county prosecutors. Id. ¶ 5.

Although work remained, Plaintiffs’ counsel were well-informed about the

strengths and weaknesses of their case at the time they entered mediation and the

time they settled the case. Thus, this factor favors settlement.

C. Plaintiffs’ counsel’s requested fees are reasonable.

Plaintiffs’ counsel intend to request that the Court approve as reasonable

the total lodestar amount of their fees. However, Plaintiffs’ counsel will seek an

initial payment from the Settlement Fund of $230,071.45, which is less than half

of their total lodestar. Settlement Agreement § V.2.; Terrell Decl. ¶ 15; Arons

Decl. ¶ 7. Plaintiffs’ counsel will also seek reimbursement of their out-of-pocket

litigation expenses in the amount of $13,114.97. Terrell Decl. ¶¶ 27–28.

Plaintiffs’ counsel will also request that the Court award them any

unclaimed funds that remain in the Settlement Fund after all Settlement Award

checks have been cashed or voided, provided that the award of unclaimed funds

would not result in a total payment to Plaintiffs’ counsel that exceeds the lodestar

amount approved as reasonable by the Court. Settlement Agreement § V.3.

These funds would otherwise be distributed in cy pres.



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The attorneys’ fees and costs Plaintiffs’ counsel seek are reasonable under

the circumstances of this case. See In re Bluetooth, 654 F.3d at 941 (requiring

that any attorneys’ fee awarded be reasonable). This Court has discretion to use

either the percentage-of-the-fund or the lodestar method to calculate a reasonable

attorneys’ fee from a common fund established by a class action settlement.

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). Courts

generally use the lodestar method to award fees under statutes like the FDCPA

and Washington CPA, which provide for fee shifting. See, e.g., Six (6) Mexican

Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)

(explaining that “statutory awards of attorneys’ fees are subject to ‘lodestar’

calculation procedures’).

Here, Plaintiffs’ counsel seek an initial award that is less than half of their

reasonable lodestar amount. Plaintiffs’ counsel will prepare and file a

comprehensive motion for an award of attorneys’ fees supported by detailed time

entry records within thirty days after the Court enters a preliminary approval

order in this matter. The motion will be posted on the Settlement Website at least

30 days before the deadline for class members to opt-out of or object to the

settlement. Settlement Agreement § V.2; see also In re Mercury Interactive

Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010).



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A preliminary assessment, however, shows Plaintiffs’ counsel’s lodestar is

reasonable. Plaintiffs’ counsel’s lodestar is based on reasonable hourly rates that

have been approved in other litigation. Terrell Decl. ¶ 23; Arons Decl. ¶ 7; Olson

Decl. ¶ 7. And the more than 1,800 hours Plaintiffs’ counsel dedicated to this

litigation are more than reasonable. Plaintiffs’ counsel investigated Plaintiffs’

claims through public records requests in both Washington and California, drafted

and filed the complaints, pursued discovery, including through a motion to

compel, and completed motions work, including responding to Defendants’

motion for summary judgment and affirmatively seeking class certification in the

Washington action. Terrell Decl. ¶ 15; Arons Decl. ¶ 7; Olson Decl., Ex. A. They

also negotiated the settlement, analyzed class member data, and developed an

equitable plan for distributing the settlement fund. Id.

The fact that Plaintiffs’ counsel request an initial payment of approximately

43% of the Settlement Fund does not alter this conclusion. The Ninth Circuit has

recognized that “the benchmark percentage should be adjusted, or replaced by a

lodestar calculation, when special circumstances indicate that the percentage

recovery would be either too small or too large in light of the hours devoted to the

case or other relevant factors.” Six (6) Mexican Workers, 904 F.2d at 1311.

Here, the settlement creates a non-reversionary Settlement Fund of $530,000,

nearly half of which will be paid to Plaintiffs and Settlement Class Members.



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The settlement amount is based on the combined available coverage of the two

insurance policies as more fully set forth at Paragraph 9 of the Declaration of

Sarah Crabtree. Crabtree Decl. ¶ 9.

In addition to the monetary compensation Settlement Class Members will

receive, Plaintiffs’ counsel’s efforts have reduced the prevalence of the

Defendants’ challenged conduct in both Washington and California. See Krieg

Decl. ¶ 5; Supplemental Declaration of Gale Krieg in support of Preliminary and

Final Reasonableness Hearing Approving Class Action Settlement (“Suppl. Krieg

Decl.”) ¶¶ 2–3. Defendants have ceased or will cease check enforcement

programs in eight of the fourteen Washington counties in which they previously

had programs. BounceBack no longer has contracts with Clallam, Clark, Grant,

Jefferson, Kittitas, Klickitat, Pierce, or Spokane County. Id. Defendants no

longer operate check enforcement programs in Lake or Plumas County, two of the

seven California counties in which they previously operated programs. Id. In

light of the results achieved for the class, the Defendants’ limited resources, and

the time invested in the case, Plaintiffs’ counsel’s request for attorneys’ fees and

costs is reasonable.

D. The requested incentive awards are reasonable.

“[I]ncentive awards that are intended to compensate class representatives

for work undertaken on behalf of a class ‘are fairly typical in class action cases.’”



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In re Online DVD, 779 F.3d at 943 (quoting Rodriguez v. West Publ’g Corp., 563

F.3d 948, 958 (9th Cir. 2009)). Where a settlement “provide[s] no guarantee that

the class representatives would receive incentive payments, leaving that decision

to later discretion of the district court,” an incentive award may be appropriate.”

In re Online DVD, 779 F.3d at 943 (approving $5,000 incentive award to class

representatives and distinguishing Radcliffe).

Here, Plaintiffs request an incentive award of $1,000 each and a statutory

damages award of $1,000 each—for a total of $2,000 to each class

representative—or an amount the Court deems appropriate. See Settlement

Agreement § V.1. Plaintiffs Cavnar, Terrill, Parks, and Scott assisted counsel in

investigating their claims, reviewed the factual allegations in the complaint, and

responded to Defendants written discovery requests. Arons Decl. ¶ 3. Plaintiffs

Freitas, Lyon, and Kendrick assisted counsel in investigating their claims and

reviewed the factual allegations in the complaint. Id. Such efforts on behalf of

the class warrant the modest incentive payments and statutory damage awards

requested here.

E. The proposed notice program is constitutionally sound.

Rule 23(e)(1) requires the Court to “direct notice in a reasonable manner to

all class members who would be bound by” a proposed settlement. Fed. R. Civ.

P. 23(e)(1); see also MCL 4th § 21.312. The best practicable notice is that which



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is “reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their

objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950). According to the Manual for Complex Litigation, a settlement notice

should do the following:

• Define the class;

• Describe clearly the options open to the class members and the

deadlines for taking action;

• Describe the essential terms of the proposed settlement;

• Disclose any special benefits provided to the class representatives;

• Indicate the time and place of the hearing to consider approval of the

settlement, and the method for objecting to or opting out of the

settlement;

• Explain the procedures for allocating and distributing settlement

funds, and, if the settlement provides different kinds of relief for

different categories of class members, clearly set out those

variations;



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• Provide information that will enable class members to calculate or at

least estimate their individual recoveries; and

• Prominently display the address and phone number of class counsel

and the procedures for making inquiries.

The proposed forms of notice, attached as Exhibits B and D4 to the

Settlement Agreement (“Notices”), satisfy all of the above criteria. The Notices

are clear, straightforward, and provide persons in the Settlement Class with

enough information to evaluate whether to participate in the settlement. Thus, the

Notices satisfy the requirements of Rule 23. Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 808 (1985) (explaining a settlement notice must provide settlement

class members with an opportunity to present their objections to the settlement).

The Settlement Agreement provides for direct notice via U.S. Mail to the

Settlement Class and therefore satisfies due process.

4 Material in the notices highlighted in yellow will be added if the Court grants

preliminary approval or the Settlement based on dates set in the Court’s

preliminary approval order. The Settlement Website will provide the information

included in the long form notice.



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F. Provisional certification of the class is appropriate.

For settlement purposes only, Plaintiffs respectfully request that the Court

provisionally certify the Settlement Class defined as:

All persons who: (a) were sent one or more Letters bearing the name, seal,

or letterhead of any prosecuting attorney in Washington, from July 18, 2013 to

November 30, 2015; or (b) were sent one or more Letters bearing the name, seal,

or letterhead of any prosecuting attorney in Washington, from July 18, 2010 to

November 30, 2015 and who paid any of Defendants’ Fees; or (c) were sent one

or more Letters bearing the name, seal, or letterhead of any district attorney in

Lake, Mendocino, Plumas, San Benito, Sutter, or Yuba County, California from

August 3, 2014 to November 30, 2015; or (d) were sent one or more Letters

bearing the name, seal, or letterhead of any district attorney in Lake, Mendocino,

Plumas, San Benito, Sutter, or Yuba County, California from August 3, 2011 to

November 30, 2015 and who paid any of Defendants’ Fees; and appear on the

Settlement Class List. Settlement Agreement §§ II.2, II.19.

As detailed below, and in Plaintiffs’ briefing on class certification (ECF

Nos. 55, 80), the Settlement Class satisfies all of the applicable certification

requirements.



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1. The Rule 23(a) factors are met.

a. Numerosity.

“The prerequisite of numerosity is discharged if ‘the class is so large that

joinder of all members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d

1011, 1019 (9th Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). Here, the

Settlement Class consists of 11,938 persons, rendering joinder impracticable.

Terrell Decl. ¶ 11.

b. Commonality.

The commonality requirement of Rule 23(a)(2) is satisfied because the

central questions in the case are whether Defendants’ practice of sending form

letters on prosecutor letterhead demanding payments on consumer debts violate

state or federal law. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551

(2011); see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)

(“Where the same conduct or practice by the same defendant gives rise to the

same kind of claims from all class members, there is a common question.”).

Because persons in the Settlement Class here all suffered the same injury and are

generally subject to the same defenses, commonality is satisfied.

c. Typicality.

“[R]epresentative claims are typical if they are reasonably co-extensive

with those of absent class members; they need not be substantially identical.”



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Hanlon, 150 F.3d at 1020. “Typicality refers to the nature of the claim or defense

of the class representative, and not to the specific facts from which it arose or the

relief sought.” Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992).

Here, Plaintiffs’ claims are based on Defendants use of form letters to collect

debts. Plaintiffs Cavnar, Terrill, and Parks’ claims are the same as the claims of

class members who have damages under the Washington Consumer Protection

Act. Plaintiff Scott’s claims are the same as class members who have claims for

statutory damages under the FDCPA only. Plaintiffs Freitas, Lyon, and

Kendrick’s claims are the same as the claims of class members who have

damages under the California UCL. Because Plaintiffs’ claims arise from the

same course of conduct as class members’ claims, typicality is satisfied.

d. Adequacy.

Adequacy requires the representative of a class to provide fair and

adequate representation of the class. Fed. R. Civ. P. 23(a)(4). “To

determine whether named plaintiffs will adequately represent a class,

courts must resolve two questions: ‘(1) do the named plaintiffs and their

counsel have any conflicts of interest with other class members and (2) will

the named plaintiffs and their counsel prosecute the action vigorously on

behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985

(9th Cir. 2011) (quoting Hanlon, 150 F.3d at 1020). In the context of a



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class settlement, examination of potential conflicts of interest “is especially

critical.” In re Online DVD, 779 F.3d at 942 (internal marks and quotation

omitted). That said, courts will not deny class certification on the basis of

“speculative” or “trivial” conflicts. See id. (finding settlement class

representatives adequate and overruling objection that proposed $5,000

incentive award created a conflict of interest).

Here, Plaintiffs have no interests that are antagonistic to or in

conflict with persons in the Settlement Class they seek to represent and

have a substantial interest in the outcome of this action, since they all

received the same allegedly unlawful letters that persons in the Settlement

Class received. In addition, Plaintiffs’ counsel are active practitioners with

substantial experience in consumer law and class action litigation,

including cases very similar to this one. See Terrell Decl. ¶¶ 31–34; Arons

Decl. ¶¶ 4–6; Olson Decl. ¶¶ 3–7; ECF Nos. 57, 58.

2. The Rule 23(b)(3) factors are satisfied.

Rule 23(b)(3)’s predominance requirement tests whether proposed classes

are “sufficiently cohesive to warrant adjudication by representation.” Hanlon,

150 F.3d at 1022 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623

(1997)). In FDCPA actions, a common nucleus of operative fact exists where

“defendants have engaged in standardized conduct toward members of the



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proposed class by mailing to them allegedly illegal form letters or documents.”

Keele v. Wexler, 149 F.3d 589, 594–95 (7th Cir. 1998). The legal issues arising

from BounceBack’s form letters are the same for all class members. See Ballard

v. Equifax Check Servs., Inc., 186 F.R.D. 589, 595 (E.D. Cal. 1999); Hunt v.

Check Recovery Sys., Inc., 241 F.R.D. 505, 514 (N.D. Cal. 2007). There are no

individualized issues that undermine predominance. See ECF No. 80 at 13–14.

Because the claims are being certified for purposes of settlement, there are

no issues with manageability. Amchem, 521 U.S. 591, 620 (1997) (“Confronted

with a request for settlement-only certification, a district court need not inquire

whether the case, if tried, would present intractable management problems … for

the proposal is that there be no trial.”). Additionally, resolution of thousands of

claims in one action is far superior to individual lawsuits and promotes

consistency and efficiency of adjudication. See id. at 617 (noting the “policy at

the very core of the class action mechanism is to overcome the problem that small

recoveries do not provide the incentive for any individual to bring a solo action

prosecuting his or her rights”). Certification for purposes of settlement is

appropriate.

G. Scheduling a final approval hearing is appropriate.

The last step in the settlement approval process is a final approval hearing

at which the Court may hear all evidence and argument necessary to make its



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settlement evaluation. Proponents of the settlement may explain the terms and

conditions of the Settlement Agreement, and offer argument in support of final

approval. The Court will determine after the final approval hearing whether the

settlement should be approved, and whether to enter a final order and judgment

under Rule 23(e). Plaintiffs request that the Court set a date for a hearing on final

approval at the Court’s convenience, but no earlier than 120 days after entry of an

order preliminarily approving the settlement, and schedule further settlement

proceedings pursuant to the schedule set forth below:

ACTION DATE

Preliminary Approval Order Entered At the Court’s Discretion

CAFA Notice Deadline 10 days following entry of Preliminary Approval Order

Notice Deadline 30 days following entry of Preliminary Approval Order

Class Counsel’s Fee Motion Submitted

30 days following Notice Deadline

Exclusion/Objection Deadline 60 days after Notice Deadline

Final Approval Brief and Response to Objections Due

At least 14 days prior to the Final Approval Hearing

Final Approval Hearing / Noting Date

No earlier than 120 days following entry of Preliminary Approval Order

Final Approval Order Entered At the Court’s Discretion



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IV. CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully requests that the

Court: (1) grant preliminary approval of the settlement, including the fees and

costs payments to Plaintiffs’ counsel; (2) provisionally certify the proposed class;

(3) appoint as Class Counsel the law firms of Terrell Marshall Law Group PLLC,

Law Office of Paul Arons, Gupta Wessler PLLC, Kirk D. Miller, PS, and Ram,

Olson, Cereghino & Kopczynski; (4) appoint Woodena Cavnar, Linda Parks,

Rosaline Terrill, David Scott, Angelina Freitas, Rebecca Lyon, and Maresa

Kendrick as class representatives; (5) approve the proposed notice plan; (6)

appoint KCC to serve as the Class Administrator; and (7) schedule the final

fairness hearing at the Court’s convenience but no earlier than 120 days following

entry of the Preliminary Approval Order.



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RESPECTFULLY SUBMITTED AND DATED this 11th day of March,

2016.

TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, WSBA #26759

Beth E. Terrell, WSBA #26759 Erika L. Nusser, WSBA #40854 Blythe H. Chandler, WSBA #43387 Attorneys for Plaintiffs 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected] Email: [email protected] Email: [email protected] Deepak Gupta, Admitted Pro Hac Vice Attorneys for Plaintiff GUPTA WESSLER PLLC 1735 20th Street, NW Washington, DC 20009 Telephone: (202) 888-1741 Facsimile: (202) 888-7792 Email: [email protected] Paul Arons, WSBA #47599 Attorneys for Plaintiffs LAW OFFICE OF PAUL ARONS 685 Spring Street, Suite 104 Friday Harbor, Washington 98250 Telephone: (360) 378-6496 Facsimile: (360) 387-6498 Email: [email protected]



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Kirk D. Miller, WSBA #40025 Attorneys for Plaintiffs KIRK D. MILLER, P.S. 421 W. Riverside Avenue, Suite 704 Spokane, Washington 99201 Telephone: (509) 413-1494 Facsimile: (509) 413-1724 Email: [email protected] Michael F. Ram Karl Olson Susan S. Brown RAM, OLSON, CEREGHINO & KOPCZYNSKI 101 Montgomery Street, Suite 1800 San Francisco, California 94104 Telephone: (415) 433-4949 Facsimile: (415) 433-7311 Email: [email protected] Email: [email protected] Email: [email protected]



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CERTIFICATE OF SERVICE

I, Beth E. Terrell, hereby certify that on March 11, 2016, I electronically

filed the foregoing with the Clerk of the Court using the CM/ECF system which

will send notification of such filing to the following:

Scott C. Cifrese, WSBA #25778 David L. Broom, WSBA #2096 Gregg R. Smith, WSBA #15553 Attorneys for Defendants PAINE HAMBLEN LLP 717 West Sprague Avenue, Suite 1200 Spokane, Washington 99201 Telephone: (509) 455-6000 Facsimile: (509) 838-0007 Email: [email protected] Email: [email protected] Email: [email protected]

DATED this 11th day of March, 2016.

TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, WSBA #26759

Beth E. Terrell, WSBA #26759 Attorneys for Plaintiffs 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Email: [email protected]


TERRELL MARSHALL LAW GROUP PLLC

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