Arthur v. Sallie Mae, Inc.

JAMES L. ROBART

THIS MATTER came before the Court for final approval of the proposed amended class settlement. The Court has considered all papers filed and proceedings in this matter and held a hearing on September 14, 2012, 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 proposed Amended Settlement. Based on the papers filed with the Court and presentations made to the Court at the healing, it is hereby ORDERED, ADJUDGED, AND DECREED as follows;

1. The definitions and provisions of the Amended Settlement Agreement ("Amended Agreement") are hereby incorporated as though fully set forth herein. For purposes of this Settlement Order and Final Judgment, all capitalized terms used hereafter shall have the meaning ascribed to them in the Amended Agreement, unless otherwise noted.

2. The Court has jurisdiction over the subject matter of the Amended Agreement with respect to and over all parties to the Amended Agreement, including all Settlement Class Members.

3. The Court hereby approves the Amended Settlement, including the plans for implementation and distribution of the settlement relief, and finds that the Amended Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class Members, within the authority of the parties and the result of extensive arm's length negotiations.

4. The Court has considered and balanced: (1) the strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of class members to the proposed settlement. Churchill Village LLC v. General Electric, 361 F.3d 566, 575 (9th Cir. 2004). As an initial matter, there is no evidence before the Court of fraud or collusion underlying the settlement. The settlement was achieved after extensive arm's length negotiations and multiple in-person mediations before Judge Infante. Additionally, the relevant Churchill factors weigh in favor of approving the Amended Settlement. The parties are well-informed about the strengths and weaknesses of each others' claims and defenses, and Plaintiffs recognize that there is significant risk in continuing with the litigation, in part because of the novelty of central issues. Continued litigation undoubtedly would have involved additional discovery and motions practice, trial, the related expenses for all parties, and an appeal on the part of Sallie Mae if it lost at trial. Courts have split on class certification in TCPA cases, increasing the risk of maintaining the class action through trial. The amount of the Fund is the largest TCPA recovery to Class Counsel's knowledge, and Class Members who timely submitted claim forms will receive over $100 each. The Parties have conducted formal and informal discovery and a thorough evaluation of Plaintiffs' legal claims. Class Counsel are experienced in class litigation and view the Amended Settlement as fair, reasonable, and adequate. The response to the Amended Settlement has been generally positive and only a tiny fraction of the Class objected or opted-out.

5. The Court has considered all objections to the Settlement and Amended Settlement, including the Objections of Thomas L. Cox Jr., filed on behalf of Class members Sara Sibley and Judith Brown on December 13, 2010, and July 19, 2012; the Objection of Franklin L. Dejulius, filed on December 13, 2010; the Objection of Paula Newman, filed on December 13, 2010; the Objection of Maureen R. Smith, filed on December 13, 2010; the Objection of Donna Judkins, filed on October 29, 2010; the Objection of Melissa Felt, filed on October 28, 2010; the Objection of Julia Nuth, filed on November 29, 2010; the Objection of Mohieldin M. Suliman, filed on November 2, 2010; the Objection of James William Harrison, filed on December 7, 2010; the Objection of Veronica Best dated October 8, 2010; the Objection of Leonyer Marie Richardson, dated October 20, 2010; the Objections of Patrick Sweeney and Sasha McBeam, filed on December 13, 2010; the Objection of Carlos Sherrod, dated October 8, 2010; the Objection of Gabriela Heath, filed on December 14, 2010; the Objection of Kevin Porter, filed on April 28, 2011; the Objection of Azikiwe Daniels, filed on April 29, 2011; the Objection of Walter Price, filed on May 4, 2011; the Objection of Nicolasa Velez, filed on My 9, 2012; the Objection of Christopher Hutchins, filed on July 9, 2012; the Objection of Brian Morgan, filed on July 5, 2012; the Objection of Rebecca Ann Keiser, filed on October 29, 2010; the Objection of Daniel Palos, filed on June 27, 2012; the Objection of Brenda Gordon, filed on July 5, 2012; and the Objections filed by attorney Donald A. Yarbrough on December 16, 2010, and July 9, 2012, on behalf of Joseph Fostano, Khalilah Mendez, Mauva Thompson, Nicole Berg, James Fiano, Lawrence Sclafani, Kenyatta Thomas, Lysenia Muir, and Adalys Ayarsa. After careful consideration, the Court finds that these objections are meritless and they are hereby overruled.

6. Pursuant to Federal Rule of Civil Procedure 23(c), the Court certifies, for settlement purposes only, the following Amended Settlement Class:

All persons to whom, on or after October 27, 2005 and through September 14, 2010, Sallie Mae, Inc. or any other affiliate or subsidiary of SLM Corporation placed a non-emergency telephone Call to a cellular telephone through the use of an automated dialing system and/or an artificial or prerecorded voice. Excluded from the Amended Settlement Class are SLM Corporation, Sallie Mae, Inc. and any other affiliate or subsidiary of SLM Corporation, and any entities in which any such companies has a controlling interest, the Judge to whom the Action is assigned and any member of the Judge's staff and immediate family, as well as all persons who validly request exclusion from the Settlement Class.

7. This Settlement Order and Final Judgment does not constitute an expression by the Court of any opinion, position or determination as to the merit or lack of merit of any of the claims or defenses of Plaintiffs, the Settlement Class Members or Defendant Sallie Mae, Inc. Neither the Amended Agreement, nor any act performed or document executed pursuant to or in furtherance of the Amended Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of the Released Parties; (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of the Released Parties in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal; or (c) is or may be deemed to be a waiver of Sallie Mae's right to seek to enforce any arbitration provision in other cases or against persons in the Settlement Class who opt out of the Amended Settlement. In addition, neither the fact of, nor any documents relating to, Sallie Mae's withdrawal from the Amended Settlement, any failure of the Court to approve the Amended Settlement and/or any objections or interventions may be used as evidence for any purpose whatsoever. The Released Parties may file the Amended Agreement and/or this Judgment in any action or proceeding that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.

8. This Court hereby dismisses this action with prejudice as to all Settlement Class Members except those who have timely and properly excluded themselves from the Settlement Class. Exhibit A, attached hereto, sets forth the names of those individuals who have timely and properly excluded themselves from the Settlement Class.

9. Upon the date this Judgment becomes final, Plaintiffs and each Settlement Class Member, their respective heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors-in-interest and assigns will be deemed to have fully released and forever discharged Sallie Mae, Inc., its parent company SLM Corporation, and each and all of their respective present, former and :mture direct and indirect parent companies, affiliates, subsidiaries, agents, successors, and predecessors-in-interest (including Asset Performance Group, LLC; General Revenue Corporation; Pioneer Credit Recovery, Inc.; Sallie Mae, Inc.; SLM DE Corporation; SLM Financial Corporation; Student Assistance Corporation; Academic Management Services Corp.; Academic Management Services, Inc.; AFS US, Inc.; AFS-HOV LLC; AMS Education Loan Trust; Arrow Financial Services, LLC; Arrow Financial International, LLC; Arrow Global, LLC; Asset Performance Group, Inc.; GRP/AG Holdings, LLC; GRP Financial Services Corp.; Nellie Mae Corporation; Nellie Mae Holding LLC; Noel- Levitz, Inc.; Pioneer Mortgage Inc.; Sallie Mae Bank; Sallie Mae - Canada Financial Corporation; Sallie Mae Education Trust; Sallie Mae Home Loans, Inc.; SLM Corporation; SLM Education Credit Finance Corporation; SLM Education Loan Corp.; SLM Mortgage Corporation; Southwest Student Services Corporation; Student Loan Finance Association, Inc.; Student Loan Funding Resources LLC; TrueCareers, Inc.; Upromise, Inc.; Upromise Investments, Inc.; and USA Group Loan Services, LLC) and all of the aforementioneds' prior, current and future respective officers, directors, employees, attorneys, shareholders, agents, independent contractors, vendors, and assigns (the "Released Parties") from any and all rights, duties, obligations, claims, actions, causes of action or liabilities, whether arising under local, state or federal law, whether by Constitution, statute, contract, rule, regulation, any regulatory promulgation (including, but not limited to, any opinion or declaratory ruling), common law or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, punitive or compensatory as of the date of the Final Approval Order: (a) that arise out of or are related in any way to the use of an "automatic telephone dialing system" or an "artificial or prerecorded voice" to contact a cellular telephone (to the fullest extent that those terms are used, defined or interpreted by the Telephone Consumer Protection Act, 47 U.S.C. § 227, etseq., relevant regulatory or administrative promulgations and case law) used by any of the Released Parties in connection with efforts to contact or attempt to contact Settlement Class Members including, but not limited to, claims under or for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., Washington's Automatic Dialing and Announcing Device statute, Wash. Rev. Code § 80.36.400, et seq. and any other statutory or common law claim arising from the use of automatic telephone dialing systems or an artificial or prerecorded voice, including any claim under or for violation of federal or state unfair and deceptive practices statutes, violations of any federal or state debt collection practices acts (including but not limited to, the Fair Debt Collection Practices Act, 15U.S.C. § 1692 et seq.), invasion of privacy, conversion, breach of contract, unjust enrichment, specific performance and/or promissory estoppel; or (b) that arise out of or relate in any way to the administration of the Amended Settlement.

10. Without limiting the foregoing, the Released Claims specifically extend to claims that Settlement Class Members do not know or suspect to exist in their favor at the time that the Amended Settlement, and the releases contained therein, becomes effective. The Court finds that Plaintiffs have, and the Settlement Class Members are deemed to have, knowingly waived California Civil Code section 1542 and any other applicable federal or state statute, case law, rule or regulation relating to limitations on releases.

11. In aid to this Court's jurisdiction to implement and enforce the Amended Settlement, Plaintiffs and all Settlement Class Members and all persons purporting to act on behalf of Settlement Class Members are enjoined, directly, on a representative basis or in any other capacity, from asserting, commencing, prosecuting or continuing any of the Released Claims against Sallie Mae or any of the other Released Parties in any action, arbitration or proceeding in any court, arbitral forum or tribunal.

12. The Court finds that the program of Class Notice set forth in the Amended Agreement and preliminarily approved by the Court was the best practicable notice under the circumstances. The Class Notice provided due and adequate notice of these proceedings and of the matters set forth therein, including the Amended Agreement, to all parties entitled to such notice and satisfied the requirements of Federal Rule of Civil Procedure 23, the requirements of constitutional due process, and the requirements set forth in In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010).

13. Without affecting the finality of this Settlement Order and Final Judgment in any way, the Court retains continuing jurisdiction over: (a) implementation of the Amended Agreement and distribution of the settlement relief contemplated by the Amended Agreement, until all acts agreed to be performed pursuant to the Agreement have been performed; and (b) all parties to this action and Settlement Class Members for the purpose of enforcing and administering the Amended Agreement.

14. Neither this Settlement Order and Final Judgment nor the Amended Agreement constitutes an admission or concession by any of the Released Parties of any fault, omission, liability or wrongdoing. This Settlement Order and Final Judgment is not a finding of the validity or invalidity of any claims in this action or a determination of any wrongdoing by the defendant. The final approval of the Amended Agreement does not constitute any opinion, position or determination of this Court, one way or the other, as to the merits of the claims and defenses of Plaintiffs, Sallie Mae or the Settlement Class Members.

15. In the event that the Amended Agreement does not become effective in accordance with its terms, then this Settlement Order and Final Judgment shall be vacated, the Settlement Class shall be decertified and the Amended Agreement and all orders entered in connection therewith shall become null and void and of no further force and effect.

IT IS SO ORDERED.

_______________

UNITED STATES DISTRICT JUDGE
Presented by: TERRELL MARSHALL DAUDT & WILLIE PLLC By: _______________

Beth E. Terrell, WSBA #26759

Jonathan D. Selbin, Admitted Pro Hac Vice

Alison Stocking, Admitted Pro Hac Vice

LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

Daniel M. Hutchinson, Admitted Pro Hac Vice

LIEFF, CABRASER, HEIMANN

& BERNSTEIN, LLP

David P. Meyer, Admitted Pro Hac Vice

Matthew R. Wilson, Admitted Pro Hac Vice

MEYER WILSON CO LPA

Joshua Swigart, Admitted Pro Hac Vice

Robert L. Hyde

David C. Leimbach

HYDE & SWIGART

Douglas J Campion, Admitted Pro Hac Vice

LAW OFFICES OF DOUGLAS J. CAMPION

Abbas Kazerounian, Admitted Pro Hac Vice

KAZEROUNIAN LAW GROUP
Attorneys for Plaintiffs