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Thornburg v. Open Dealer Exchange, LLC

United States District Court, W.D. Missouri, St. Joseph Division

July 22, 2019

JOHN THORNBURG, Plaintiff,
v.
OPEN DEALER EXCHANGE, LLC, d/b/a 700Credit, Defendant/Third-Party Plaintiff/ Counter-Defendant,
v.
TRANS UNION, LLC, Third-Party Defendant/ Counter-Plaintiff.

          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

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pending 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.

         On 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 Approval Hearing.

         On June 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.

         The 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:

         (1) The definitions set forth in the Agreement are incorporated by reference in this Order.

         (2) The Court has jurisdiction over the subject matter of this lawsuit and personal jurisdiction over all parties in this matter.

         (3) 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.

         (4) The 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.

         (5) The 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.”).

         (6) The 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.

         (7) Any 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.

         (8) With regard to the settlement in this matter, the Court finds the following:

a. The putative members of the Settlement Class are so numerous that joinder of all ...

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