United States District Court, W.D. Missouri, St. Joseph Division
ORDER AND OPINION (1) GRANTING MOTION FOR FINAL
APPROVAL OF CLASS ACTION SETTLEMENT, (2) GRANTING MOTION FOR
INJUNCTIVE RELIEF, (3) GRANTING IN PART AND DENYING IN PART
MOTION FOR INCENTIVE AWARD AND ATTORNEYS' FEES AND COSTS,
AND (4) DISMISSING WITH PREJUDICE PLAINTIFF'S CLAIMS
AGAINST OPEN DEALER EXCHANGE
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
are Plaintiff's Motion for Final Approval of Class Action
Settlement (Doc. #136), Plaintiff's Unopposed Motion for
Injunctive Relief (Doc. #137), and Plaintiff's Unopposed
Motion for Incentive Award and Attorneys' Fees and Costs
(Doc. #138). For the following reasons, the Court grants
Plaintiff's Motion for Final Approval of Class Action
Settlement, grants Plaintiff's Unopposed Motion for
Injunctive Relief, and grants in part and denies in part
Plaintiff's Unopposed Motion for Incentive Award and
Attorneys' Fees and Costs.
February 6, 2019, the Court entered an order preliminarily
approving the class action settlement in this matter
(“Preliminary Approval Order”). Doc. #134. The
Preliminary Approval Order, inter alia, (i) found
the terms of the settlement agreement (“the
Agreement”) entered into by Plaintiff John Thornburg
and Defendant Open Dealer Exchange LLC (“Open
Dealer”) to be fair, reasonable, and adequate to the
Settlement Class, subject to further consideration at the
Final Approval Hearing; (ii) determined notice to the
Settlement Class was unnecessary; and (iii) scheduled a Final
27, 2019, the Court held the Final Approval Hearing. Counsel
for all parties appeared, and provided information and legal
arguments related to the pending motions. At the hearing, the
Court expressed concerns about Plaintiff's motion for
incentive award and attorneys' fees and costs, and asked
for supplemental briefing on the issues raised by the Court.
On July 11, 2019, Plaintiff supplemented his previously filed
motion. Doc. #146.
Court has considered the Agreement (Doc. #133-2) as well as
the parties' briefing, supplemental briefing, exhibits,
and oral arguments. Having done so, the Court finds and
orders as follows:
definitions set forth in the Agreement are incorporated by
reference in this Order.
Court has jurisdiction over the subject matter of this
lawsuit and personal jurisdiction over all parties in this
Plaintiff and Open Dealer entered into the Agreement to
settle and resolve Plaintiff's and class members'
claims against Open Dealer on a nationwide basis.
terms of the Agreement and the settlement provided therein
are finally approved as fair, reasonable, and adequate to the
Settlement. The consideration provided under the Agreement
constitutes reasonable and fair value given in exchange for
the release of claims against the Released Parties
considering the disputed issues, circumstances, defenses, and
the potential risks and likelihood of success of pursuing
litigation. The legal and factual posture of this case and
the fact that the Settlement was the result of arms'
length negotiations between the parties, including
negotiations presided over by Francis X. Neuner, Jr., support
these findings. The Court further finds that these facts,
combined with the lack of other indicators of collusion and
the Court's observation throughout the litigation,
demonstrate there was no collusion, implicit or otherwise,
present in reaching the Agreement.
Court finds final certification of the Settlement Class is
appropriate under Rule 23(b)(2) of the Federal Rules of Civil
Procedure. First, “the party opposing the class has
acted…on grounds that apply generally to the class, so
that final injunctive relief…is appropriate respecting
the class as a whole.” Fed. R. Civ.P. 23(b)(2). Second,
no monetary relief is sought by the Settlement Class, and the
remedy obtained by the Settlement Class is indivisible
because it accrues to all members of the Settlement Class.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360
(2011) (stating “Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide
relief to each member of the class.”).
Court finally certifies the Settlement Class, which is
defined as follows:
All consumers in the United States who were the subject of an
Open Dealer consumer report issued between April 4, 2015, and
the date this Court enters its Final Judgment and Order, and
which included the notation “Chg-Off or Repo.”
Excluded from the Settlement Class are (a) Open Dealer
Exchange, Trans Union LLC, and their employees; (b) the Judge
to whom the matter is assigned; and (c) any member of the
Judge's staff or immediate family.
person who previously settled or released all claims covered
by this settlement, or any person who previously was paid or
received awards through civil or administrative actions for
all claims covered by this settlement, or any person who
excludes him/herself from the class shall not be a member of
the Settlement Class.
With regard to the settlement in this matter, the Court finds
a. The putative members of the Settlement Class are so
numerous that joinder of all ...