United States District Court, S.D. Ohio, Western Division
KIMBER BALDWIN DESIGNS, LLC, Individually and on behalf of all others Similarly situated, Plaintiff,
SILV COMMUNICATIONS, INC., Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR FINAL
SETTLEMENT APPROVAL (DOC. 36) AND CLASS COUNSEL'S MOTION
FOR APPROVAL OF ATTORNEYS' FEES, EXPENSE REIMBURSEMENT,
AND CLASS REPRESENTATIVE AWARD (DOC. 35)
Timothy S. Black, Judge.
civil action is before the Court on the motion of named
Plaintiff Kimber Baldwin Designs, LLC for final settlement
approval (Doc. 36); Class Counsel's motion for
attorneys' fees, expense reimbursement, and class
representative award (Doc. 35); and the statements of counsel
for both parties at the October 23, 2017 fairness hearing.
April 4, 2016, the named Plaintiff, on behalf of itself and
all others similarly situated, commenced this civil action
against Defendant Silv Communications, Inc. Plaintiff alleges
Defendant violated federal law and engaged in fraud by
changing the long-distance telephone services of various
businesses without authorization. Specifically, Plaintiff
alleged Defendant engaged in an unlawful practice known as
“slamming” when it obtained recordings of
employees of businesses answering “yes” to
questions related to the business name, addresses and
telephone number, but then manipulated those recordings to
fabricate consent to switch to Defendant's long-distance
telephone service. Premised on these allegations, the
Complaint asserts claims for violations of the Wire or Radio
Communications Act, fraud, unjust enrichment, and Ohio
the required Rule 26 conference, counsel for both parties
agreed to request a stay of this case to explore settlement.
(Doc. 36 at 5). On January 19, 2017, the Court granted the
parties' joint motion for a stay. The parties met three
more times over the next few months and exchanged settlement
proposals by telephone and email. (Id.)
Plaintiff's counsel requested, and received, documents
from Defendant for the purpose of evaluating liability and
damages, including documents pertaining to Defendant's
revenues, ownership structure, customers, complaints,
refunds, and third-party vendors. (Id.) The parties
eventually reached an agreement, and a final version of their
written settlement agreement (“Settlement
Agreement”) was executed on June 5, 2017.
Settlement Agreement creates a $450, 000 Settlement Fund for
the benefit of the Settlement Class, which is defined as:
All individuals and business in the United States that were
switched to and billed by Silv Communications, Inc. for
unlimited long-distance telephone service from January 1,
2012 to the date of the Order granting preliminary approval
of the Settlement (June 13, 2017).
(Doc. 33-1 at 3).
Settlement Fund will cover payments to Class Members, costs
of notice to the Class and administration of the settlement,
reimbursement of Class Counsel's reasonable costs,
expenses, and fees, as well as a contribution award for
Plaintiff not to exceed $5, 000. (Doc. 33-1 at 3-4). Each
Class Member submitting a valid claim shall receive an equal
settlement payment not to exceed $120. (Doc. 33-1 at 4). Any
leftover money shall revert to and belong to Defendant.
13, 2017, the Court granted Plaintiffs' Unopposed Motion
for Preliminary Approval of Settlement Agreement and Order
Scheduling Fairness Hearing (the “Preliminary Approval
Order”). (Doc. 34). The Preliminary Approval Order: (1)
approved of the parties' settlement; (2) approved of the
parties' proposed settlement notice; (3) approved of the
parties' proposed class action settlement procedure; (4)
appointed Plaintiff's counsel as Class Counsel, and (5)
scheduled a fairness hearing for October 23, 2017 (after the
close of the notice period).
the Court's Preliminary Approval Order, on July 17, 2017,
Defendant provided the Settlement Administrator with a list
containing the name and last known address of each member of
the Class as defined in the Settlement Agreement. (Doc. 36-2
at ¶ 6). After reviewing the list for completeness and
accuracy, the Settlement Administrator sent notice of the
settlement to 24, 131 class members. (Id. at
¶¶ 6-9). As of October 4, 2017, the Settlement
Administrator had received 6, 428 undeliverable notices.
(Id. at ¶ 11). Of those, 50 were returned with
a forwarding address, and the Settlement Administrator
remailed notices to the new address provided. (Id.)
Of the forwarded notices, only nine were returned as
undeliverable. (Id.) As of October 4, 2017, the
Settlement Administrator had only received three valid
requests for exclusion from the Class. (Id. at
¶ 15). As of October 4, 2017, the Settlement
Administrator had received 1, 126 claim forms. (Id.
at ¶ 16).
August 22, 2017, Class Counsel filed a motion for
attorneys' fees, expense reimbursement, and class
representative contribution award. (Doc. 35). On October 9,
2017, Plaintiff filed a motion for final approval of
settlement. (Doc. 36). On October 23, 2017, the Court held a
fairness hearing. There were no objections at the fairness
The Settlement Class is appropriate for Rule 23
motion for final approval asks the Court to certify the
Settlement Class pursuant to Federal Rule of Civil Procedure
23. (Doc. 36 at 8-14). The benefits of a settlement can be
realized only through the final certification of a settlement
class. Wess v. Storey, 2011 U.S. Dist. LEXIS 41050,
at * 17 (S.D. Ohio Apr. 14, 2011). The Court maintains broad
discretion in deciding whether to certify a class.
Id. After consideration of the Rule 23 factors, the
Court finds it appropriate to certify the Settlement Class.
23(a)(1) requires a plaintiff to demonstrate that “the
class is so numerous that joinder of all members is
impracticable.” While no specific number of class
members is required to maintain a class action, “[w]hen
class size reaches substantial proportions . . . the
impracticability requirement is usually satisfied by the
numbers alone.” In re Am. Med. Sys. Inc., 75
F.3d 1069, 1079 (6th Cir. 1996) (citation
omitted). The Court finds the substantial size of the
Settlement Class in this case easily satisfies the numerosity
23(a)(2) requires “questions of law or fact common to
the class.” This requirement is interdependent with the
impracticability of joinder requirement. In re Am. Med.
Sys., Inc., 75 F.3d at 1080. Together, these
tests form the conceptual basis for class actions.
Id. The Sixth Circuit has explained:
The class-action was designed as an exception to the usual
rule that litigation is conducted by and on behalf of the
individual named parties only. Class relief is particularly
appropriate when the issues involved are common to the class
as a whole and when they turn on questions of law applicable
in the same manner to each member of the class. In such
cases, the class-action device saves the resources of both
the courts and the parties by permitting an issue potentially
affecting every class member to be litigated in an economical
fashion under Rule 23.
Id. at 1076 (quoting General Telephone v.
Falcon, 457 U.S. 147, 155 (1982)).
each Class Member's claim raises questions of law or fact
that are common to the class, i.e. whether Defendant
engaged in “slamming” and whether its conduct was
unlawful. Because questions of law and fact are common to the
class, Rule 23(a)(2) is satisfied.
23(a)(3) requires “the claims or defenses of the
representative parties [shall be] typical of the claims or
defenses of the class.” The typicality element is
designed to assess “whether a sufficient relationship
exists between the injury to the named plaintiff and the
conduct affecting the class, so that the court may properly
attribute a collective nature to the challenged
conduct.” Sprague v. General Motors Corp., 133
F.3d 388, 399 (6th Cir. 1998). A plaintiff's
claim is typical if it arises from the same event or practice
or course of conduct that gives rise to the claims of other
class members, and if the named plaintiff's claims are
based on the same legal theory. In re Am. Med. Sys.,
Inc., 75 F.3d at 1082.
the issue of whether Plaintiff was “slammed” is
common to all Settlement Class Members. By litigating this
central liability issue, the Plaintiff can reasonably be
expected to advance the interests of all Class Members.
Accordingly, the typicality requirement of Rule 23(a)(3) is
23(a)(4) requires that “the representative parties will
fairly and adequately protect the interest of the
class.” The Sixth Circuit has counseled there are two
criteria for determining this element: (1) the
representatives must have common interests with the unnamed
class members, and (2) it must appear that the
representatives will vigorously prosecute the class action
through qualified counsel. See Senter v. Gen. Motors
Corp., 532 F.2d 511, 524-25 (6th Cir. 1976)
Plaintiff and the Class Members are equally interested in
obtaining compensation from Defendant for its alleged
“slamming” practices. Accordingly, Plaintiff
satisfies the first prong of the adequacy requirement.
See Int'l Union, United Auto., Aerospace & Agr.
Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d
615, 626 (6th Cir. 2007) (“Class
representatives are adequate when it appears that they will
vigorously prosecute the interest of the class through
qualified counsel . . . which usually will be the case if the
representatives are part of the class and possess the same
interest and suffer the same injury as the class
Plaintiff is represented by qualified counsel with experience
prosecuting class actions. (See Docs. 35-2, 35-3).
Accordingly, the second prong of the adequacy requirement is
met. See Stout v. J.D. Byrider, 228 F.3d 709, 717
(6th Cir. 2000) (noting the second prong of Rule
23(a)(4) looks “to determine whether ...