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Gregory v. Preferred Financial Solutions

United States District Court, M.D. Georgia, Macon Division

March 21, 2019

TINA M. GREGORY f/k/a Tina Adams Green; individually and as Class Representative for all others similarly situated, Plaintiffs,
v.
PREFERRED FINANCIAL SOLUTIONS; CREDIT CARD RELIEF; THOMAS P. DAKICH, d/b/a DAKICH & ASSOCIATES; JEFFREY BROOKS; RHONDA ROELL-TAYLOR; LARRY D. WILSON; ROD MILLER; DANIEL YUSKA; STEVE MLYNSKI; JEFF WHITEHEAD; and LAQUETTA PEARSON, Defendants.

          FINAL ORDER OF JUDGMENT AND DISMISSAL

          MARC T. TREADWELL, JUDGE.

         This matter coming to be heard on Plaintiff's Unopposed Request for Final Approval of Class Action Settlement (“Request”), due and adequate notice having been given to the Settlement Class, [1] and the Court having considered all papers filed and proceedings in this matter, it is HEREBY ORDERED, ADJUDGED and DECREED as follows:

         1. This Court has jurisdiction over the subject matter of the Action and personal jurisdiction over all parties to the Action, including all Class Members.

         2. The Court preliminarily approved the Settlement Agreement by Preliminary Approval Order dated August 24, 2018, Doc. 143, and notice was given to all members of the Class under the terms of the Preliminary Approval Order.

         3. The Court has read and considered the papers filed in support of the Request, including the Settlement Agreement and the exhibits thereto, memoranda and arguments submitted on behalf of the Class and the defendants, and supporting declarations. The Court has been informed by the Class Settlement Administrator that no members of the class sought exclusion from the class or have objected to the Settlement of this action. The Court held a hearing on March 5, 2019, at which time the Parties and all other interested persons were afforded the opportunity to be heard in support of and in opposition to the Settlement. The Court has received no objections from any person regarding this Settlement.

         4. Based on the papers filed with the Court and the presentations made to the Court by the Parties and other interested persons at the hearing, the Court now gives final approval to the Settlement and finds that the Settlement is fair, adequate, reasonable, and in the best interests of the Class.

         In weighing final approval of a class settlement, the Court's role is to determine whether the settlement, taken as a whole, is “fair, adequate and reasonable and . . . not the product of collusion between the parties.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (internal quotation marks and citations omitted); Leverso v. SouthTrust Bank of Ala., N.A., 18 F.3d 1527, 1530 (11th Cir. 1994). To aid in this determination, courts in this Circuit consider the following factors: (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and duration of litigation; (3) the stage of the proceedings at which the settlement was achieved and the amount of discovery completed; (4) the probability of the plaintiff's success on the merits; (5) the range of possible recoveries; and (6) the opinions of class counsel, class representatives, and the substance and amount of opposition to the settlement. See Leverso, 18 F.3d at 1530 n.6; Bennett, 737 F.2d at 986. “In assessing these factors, the Court ‘should be hesitant to substitute . . . [its] own judgment for that of counsel.'” Lipuma v. Am. Express Co., 406 F.Supp.2d 1298, 1315 (S.D. Fla. 2005) (quoting In re Smith, 926 F.2d 1027, 1028 (11th Cir. 1991)); In re Motorsports Merchandise Antitrust Litig., 112 F.Supp.2d 1329, 1333 (N.D.Ga. 2000) (same). Application of these factors in this case supports final approval of the Settlement:

         The Court must consider whether a proposed settlement is “the product of collusion between the parties.” Bennett, 737 F.2d at 986 (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). “There is a presumption of good faith in the negotiation process. . . . Where the parties have negotiated at arm's length, the Court should find that the settlement is not the product of collusion. . . . Further, where the case proceeds adversarially, this counsels against a finding of collusion.” Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 692 (S.D. Fla. 2014) (citations omitted); Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D.Ga. 2001). Here, there is no claim of fraud or collusion. The fact that the Settlement is the result of arms' length negotiations supports this finding. Also, the parties conducted extensive discovery. See Doc. 81 (representing that “the parties have exchanged written discovery and conducted numerous depositions”); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir. 1981) (“[T]he trial court may legitimately presume that counsel's judgment ‘that they had achieved the desired quantum of information necessary to achieve a settlement,' . . . is reliable.”) (citations omitted). Accordingly, this factor weighs in favor of final approval of the Settlement.

         “In most situations, unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results.” 4 Newberg on Class Actions § 11:50 at 155 (4th ed. 2002). In this case, recovery by any means other than settlement would requires additional litigation. The case has been pending since 2011, and several Defendants have filed for bankruptcy, which limits the range of possible recovery. Doc. 136 at 2. Furthermore, the action has been pending since 2011 and is factually and legally complex, which supports the findings that continued litigation would be expensive and that settlement is in the best interests of the class.

         Additionally, in considering a proposed class settlement, the Court “may rely upon the judgment of experienced counsel for the parties. . . . Absent fraud, collusion, or the like, the district court ‘should be hesitant to substitute its own judgment for that of counsel.'” Nelson v. Mead Johnson & Johnson Co., 484 Fed.Appx. 429, 434 (11th Cir. 2012) (quoting Cotton, 559 F.2d at 1330); Greco v. Ginn Dev. Co., LLC, 635 Fed.Appx. 628, 632 (11th Cir. 2015) (same); In re Domestic Air, 148 F.R.D. at 312-13 (same). In addition, “the reaction of the class is an important factor.” Lipuma, 406 F.Supp.2d at 1324; see Saccoccio, 297 F.R.D. at 694 (“[A] low number of objections suggests that the settlement is reasonable”); In re Motorsports Merchandise Antitrust Litig., 112 F.Supp.2d at 1338 (“The lack of objection . . . suggests the terms are satisfactory. . . .”). Here, no class members have objected or opted out. The Court thus finds that the positive response from the Class Members here evidences the fairness, reasonableness, and adequacy of the Settlement.

         5. On August 24, 2018, Doc. 143, the Court approved the following class definition for settlement purposes:

All persons who, while residing in the State of Georgia, received Debt Settlement and/or Debt Adjusting services from the Defendants from July 1, 2003 through and including March 7, 2014, and from whom the Defendants accepted, either directly or indirectly, any charge, fee, contribution, or combination thereof.

         6. The Court is informed that there are 796 unique persons described above during this period.

         7. Plaintiff Tina Gregory has been appointed Class Representative and James W. Hurt, Jr. of Hurt Stolz, P.C. and Richard G. DiGiorgio of Cory ...


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