UNITED STATES DISTRICT COURT FOR THE SOUTHERN … · See David R. Hodas, Enforcement of Environmental Law in A Triangular Federal System: Can Three Not Be A Crowd When Enforcement

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

SHERRYL MEDINA, DANNY ALLEN, and JOHN CARTER WILLIAMS, on behalf of themselves, and all others similarly situated, Plaintiffs, v. ENHANCED RECOVERY COMPANY, LLC dba ERC, a Delaware limited liability company,

Defendant.

Case No. 2:15-CV-14342-JEM/MAYNARD

PLAINTIFFS’ UNOPPOSED MOTION AND INCORPORATED MEMORANDUM

OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS SETTLEMENT

KAZEROUNI LAW GROUP, APC KOMLOSSY LAW, P.A.

Abbas Kazerounian (pro hac vice) Emily C. Komlossy, Esq. (FBN 7714)

[email protected] [email protected]

Mona Amini (pro hac vice) 4700 Sheridan Street, Suite J

[email protected] Hollywood, FL 33021

245 Fischer Ave., Unit D1 Telephone: (954) 842-2021

Costa Mesa, CA 92626 Facsimile: (954) 416-6223

Tel: (800) 400-6808

Fax: (800) 520-5523

LAW OFFICES OF LAW OFFICES OF

RONALD A. MARRON TODD M. FRIEDMAN, P.C.

Ronald A. Marron (pro hac vice) Todd M. Friedman (pro hac vice)

[email protected] [email protected]

Alexis M. Wood (pro hac vice) 21550 Oxnard Street, #780

[email protected] Woodland Hills, CA 91367

Kas L. Gallucci (pro hac vice) Tel: (877) 206-4741

[email protected] Fax: (866) 633-0228

651 Arroyo Drive

San Diego, CA 92103

Tel: (619) 696-9006

Fax: (619) 564-6665

Class Counsel and Attorneys for Plaintiffs

Case 2:15-cv-14342-JEM Document 125 Entered on FLSD Docket 05/22/2019 Page 1 of 21

mailto:[email protected]





Table of Contents

I. INTRODUCTION ............................................................................................................................ 1

II. BACKGROUND ............................................................................................................................. 2

A. Procedural History ....................................................................................................................... 2

B. The Settlement Class ................................................................................................................... 4

1. The Settlement Class ................................................................................................................ 4

2. Class Membership Determination ............................................................................................ 4

C. Settlement Payment ..................................................................................................................... 4

D. Monetary Benefit to Settlement Class Members And Class Notice............................................ 4

III. ACTIVITY IN THE CASE AFTER PRELIMINARY APPROVAL ............................................ 5

A. CAFA Notice ............................................................................................................................... 5

B. Direct Mail Notice Provided ........................................................................................................ 5

C. Formal Notice Posted On The Settlement Website ..................................................................... 6

D. Objections, Opt Outs, and Settlement Payouts ............................................................................ 7

1. Settlement Checks and Credits ................................................................................................. 7

2. Class Representative’s Incentive Payment ............................................................................... 7

3. Attorneys’ Fees and Costs ........................................................................................................ 8

4. Administrator’s Expenses For Notice and Administration ...................................................... 8

IV. ARGUMENT ................................................................................................................................. 8

A. Final Approval of The Proposed Settlement Is Warranted. ........................................................ 8

1. The Strength of The Lawsuit And The Risk, Expense, Complexity, And Likely Duration of

Further Litigation ....................................................................................................................... 10

2. The Amount Offered In Settlement ........................................................................................ 11

3. Class Members were provided with the best notice possible, which afforded them an

opportunity to choose whether to participate in the Settlement ................................................. 14

4. The Extent of Discovery Completed ...................................................................................... 14

5. The Experience And Views of Class Counsel........................................................................ 15

6. The Reaction of Class Members To The Settlement .............................................................. 15

V. CONCLUSION ............................................................................................................................. 16


ii

Table of Authorities

Cases

Access Now, Inc. v. Claires Stores, Inc., 2002 WL 1162422 (S.D. Fla. May 7, 2002)........................ 9

Adams v. S. Farm Bureau Life Ins. Co., 417 F.Supp.2d 1373 (M.D.Ga.2006), aff'd, 493 F.3d 1276

(11th Cir.2007) ................................................................................................................................. 6

Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla. 2006) .................................. 8

Ass’n for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002) ................... 9

Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D. Fla. 1988) .......................................... 14

Burrows v. Purchasing Power, LLC, No. No. 1:12-CV-22800, 2013 U.S. Dist. LEXIS 189397 (S.D.

Fla. Oct. 4, 2013) .............................................................................................................................. 9

Camden I Condo. Ass’n. v. Dunkle, 946 F.2d 768 (11th Cir. 1991) .................................................... 8

Carter v. Forjas Taurus S.A., No. 1:13-CV-24583-PAS, 2016 WL 3982489 (S.D. Fla. July 22,

2016), aff'd, 701 F. App'x 759 (11th Cir. 2017) ............................................................................... 6

In re Art Materials Antitrust Litig., 100 F.R.D. 367 (N.D.Ohio 1983) .............................................. 16

In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) ...................... 15, 16

In re Domestic Air Transport., 148 F.R.D. 297 (N.D. Ga. 1993) ........................................................ 9

In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436 (E.D. Pa. 2000) ................................ 12

In re Mego Fin’l Corp. Sec. Litig., 213 F. 3d 454 (9th Cir. 2000) ..................................................... 12

In re Omnivision Tech., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. Jan. 9, 2008) ................................... 12

In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323 (S.D. Fla. 2001) ...................................................... 8

In re U.S. Oil & Gas Litig., 967 F.2d 489 (11th Cir. 1992) ................................................................. 9

Juris v. Inamed Corp., 685 F.3d 1294 (11th Cir. 2012) ....................................................................... 6

Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005) ..................................... 10, 14, 15

Mangone v. First USA Bank, 206 F.R.D. 222 (S.D.Ill.2001) ............................................................. 16

Mashburn v. Nat'l Healthcare, Inc., 684 F.Supp. 660 (M.D.Ala.1988)............................................. 15

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) .................................................. 14

National Rural Tele. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ............................ 12

Perez v. Asurion Corp., 501 F. Supp. 2d 1360 (S.D. Fla. 2007) ........................................................ 10

Stallworth v. Monsanto Co., No. PCA 73-45. 198) U.S. Dist. LEXIS 12858 (N.D. Fla. June 26,

1980) ................................................................................................................................................. 8

Underwood v. Manfre, 2014 WL 67644 (M.D. Fla. Jan. 8, 2014) ....................................................... 9

Walco Investments, Inc. v. Thenen, 168 F.R.D. 315 (S.D. Fla. 1996).................................................. 9

Warren v. City of Tampa, 693 F. Supp. 1051 (M.D. Fla. 1998), aff’d, 893 F. 2d 347 (11th Cir. 1998)

.............................................................................................................................................. 9, 10, 15

Wolff v. Cash 4 Titles, No. 03-22778- CIV, 2012 WL 5290155 (S.D. Fla. Sept. 26, 2012) ................ 8

Statutes

Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et. seq. ........................................... 1, 2, 9, 10

Other Authorities

David R. Hodas, Enforcement of Environmental Law in A Triangular Federal System: Can Three

Not Be A Crowd When Enforcement Authority Is Shared by the United States, the States, and

Their Citizens?, 54 Md. L. Rev. 1552, 1657 (1995) ........................................................................ 1

Rules

Fed. R. Civ. P. 23 ........................................................................................................................... 7, 13


1

I. INTRODUCTION

Plaintiffs Sherryl Medina, Danny Allen and John Carter Williams (the “Plaintiffs”), individually

and on behalf of the “Settlement Class” (as defined below) hereby submit their Motion for Final

approval of the proposed settlement (the “Settlement”) of this action (the “Action”). Defendant

Enhanced Recovery Company, LLC’s (“Defendant” or “ERC”) does not oppose Plaintiffs’ Motion.

This Settlement provides for significant monetary relief for Settlement Class Members allegedly

harmed by Defendant’s alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. §§

227 et. seq. (“TCPA”), which Settlement merits final approval by the Court. The settlement agreement

(“Settlement Agreement” and/or “Agreement” and/or “Agr.”) provides for a considerable financial

benefit of $1,450,000 (“Settlement Fund”) to the approximately 156,769 Settlement Class Members.

The Settlement Fund to be paid by Defendant is an all-in, non-reversionary payment. Under

the Settlement, each Settlement Class Member who submits a Qualified Claim will receive a pro rata

award from the Settlement Fund. Settlement Class Members were required to submit a claim form

in order to receive payment, and receive a pro rata share of the settlement based on the number of

claims filed. The Settlement Class Members were informed of the Settlement by Direct Mail notice,

the Long Form Notice posted on the Settlement Website, and publication notice in the USA Today on

two occasions.

Due to the economics of individually suing for minimal statutory damages of $500-$1,500,

few of the Settlement Class Members would likely be able to obtain such recovery on their own.

Currently, after subtracting the contemplated attorneys’ fees and costs, the incentive awards to the

Class Representatives, and the administrative costs from the Settlement Fund, if approved by the

Court, each of the Class Members who submitted a valid claim form is entitled to a Settlement

Payment, in the amount of approximately $146.60. See Declaration of H. Jacob Hack (“Hack Decl.”)

¶¶ 10-11; Declaration of Todd M. Friedman (“Friedman Decl.”) ¶¶ 28-33.

This Settlement also creates an incentive for Defendant and other similar businesses to comply

with the TCPA, which benefits the Class Members, consumers in general, as well as compliant

competitive businesses. See David R. Hodas, Enforcement of Environmental Law in A Triangular

Federal System: Can Three Not Be A Crowd When Enforcement Authority Is Shared by the United

States, the States, and Their Citizens?, 54 Md. L. Rev. 1552, 1657 (1995) (“[A]llowing a violator to

benefit from noncompliance punishes those who have complied by placing them at a competitive

disadvantage. This creates a disincentive for compliance.”).


2

Under the proposed Settlement, reached with the guidance of Judge Gandhi, and which was

already granted preliminary approval by this Honorable Court, Defendant will contribute $1,450,000

towards a common fund, which will be comprised of cash distributions to Settlement Class Members,

Settlement Costs, and Incentive Awards. Settlement Class Members were required to submit a claim

form to participate in the Settlement. Defendant was in possession of information relating to Class

Member phone numbers, and has provided this information to Kurtzman Carson Consultants, LLC,

the claims administrator that was selected after a bidding process(“KCC” and/or the “Claims

Administrator”).

The Settlement that has been negotiated by Class Counsel is an outstanding result for the

Class, given that Class Members who made claims will be getting approximately $146.60 and

maximum damages per person under the TCPA are $500-$1,500. This represents a significant

recovery for Settlement Class Members. The strength of this Settlement is further evidenced by the

fact that KCC received only two valid opt outs and zero objections to the Settlement (and Plaintiffs’

request for reimbursement of reasonable attorneys fees and costs for their counsel while prosecuting

this Action), while reaching 67.3% of Class Members with Direct Mail Notice, in addition to

Publication Notice and Website Notice. This is an outstanding settlement that should be given final

approval.

II. BACKGROUND

A. Procedural History

On September 3, 2015, Plaintiff Sherryl Medina filed a putative class action complaint against

ERC in the United States District Court for the Southern District of California entitled Sherryl

Medina, on behalf of herself and all others similarly situated vs. Enhanced Recovery Company LLC

dba ERC, a Delaware limited liability company, which was assigned Case No. 3:15-cv-01966-LAB-

KSC. Dkt. 1. The complaint alleges that ERC violated the Telephone Consumer Protection Act, 47

U.S.C. §§ 227, et seq. (the "TCPA") by using an automatic telephone dialing system or an artificial

or prerecorded voice to call cellular phones without the prior express consent of Plaintiff and the class

members. On September 29, 2015, Plaintiff Medina’s case was transferred to the United States

District Court for the Southern District of Florida and was assigned Case No. 2:15-cv-14342-JEM.

On August 29, 2016, Plaintiff Medina filed a First Amended Complaint adding Danny Allen

and John Carter Williams as named Plaintiffs. Dkt. 44. Defendant filed a Motion to Dismiss which

Plaintiffs successfully opposed. Dkt. Nos. 46, 48, 49.


3

On September 7, 2017, ERC filed an Answer to Plaintiffs’ First Amended Complaint. Dkt.

60. The Parties conducted discovery, including Plaintiffs’ multiple motions to compel further

responses to their requests for production and interrogatories. Dkt. Nos. 62, 64, 69, 76, 98, 108, 109.

Plaintiffs also moved for Class Certification and the Motion was fully briefed. Dkt Nos. 81, 83, 91,

99, 100, 101, 105, 107, 110.

This Agreement resulted from good faith, arm's length settlement negotiations over many

months, including a day-long mediation session, before the Hon. Jay C. Gandhi, (Ret.), of JAMS on

April 27, 2018 which the Parties engaged in at the direction of the Court. Friedman Decl. at ¶ 8. Prior

to the mediation, ERC provided Plaintiffs with extensive information concerning their claims,

including data regarding telephone calls placed to putative class members. The Parties also

participated in direct discussions about a possible resolution of this litigation, including numerous

telephonic meetings. ERC produced confirmatory discovery following the Preliminary Approval

Order which confirmed the phone numbers of approximately 156,769 Class Members. Friedman

Decl. at ¶ 18.

ERC has denied, and continues to deny, all material allegations of the First Amended

Complaint. ERC specifically denies that it called Plaintiffs or putative class members without their

consent, that it violated the TCPA, or that Plaintiffs and putative class members are entitled to any

relief from ERC. ERC further contends that the Action would not be amenable to class certification.

Nevertheless, taking into account the uncertainty and risks inherent in any litigation, ERC has

concluded that further defense of the Action would be protracted, burdensome, and expensive, and

that it is desirable and beneficial to fully and finally settle and terminate the Action in the manner and

upon the terms and conditions set forth in this Settlement Agreement, subject to Court approval.

Based on their investigation and the negotiations described in the Settlement Agreement and

the Declaration of Todd Friedman submitted contemporaneously herewith, Class Counsel have

concluded, taking into account the sharply contested issues involved, the risks, uncertainty and cost

of further prosecution of this litigation, and the substantial benefits to be received by class members

pursuant to the Settlement, that a settlement with ERC on the terms set forth herein is fair, reasonable,

adequate and in the best interests of the Settlement Class Members. Friedman Decl. at ¶ 15.

On December 12, 2018, this Honorable Court, after reviewing the Motion for Preliminary

Approval, granted Preliminary Approval and set the Fairness Hearing for June 19, 2019. Dkt. No.

124.


4

B. The Settlement Class

1. The Settlement Class: All persons in the United States who (1) were called

one or more times by ERC, (2) on a Sprint, PayPal or AT&T account (3)

through LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party

Connect, (4) on his or her cellular telephone(s), (5) with that number was

designated as a wrong number or bad number, (6) from August 7, 2014

through August 29, 2016, and (7) whose telephone numbers are identified in

the Class List. Settlement Agreement at 2.27.

2. Class Membership Determination

Based on data produced in confirmatory discovery by ERC and its counsel, the number of

unique cell phone numbers is approximately 156,769. Hack Decl. at ¶ 2.

C. Settlement Payment

Under the Settlement Agreement, ERC agreed to pay $1,450,000.00 to settle the Action and

obtain a full release from the Releasing Parties of all Released Claims. The Settlement Fund

established by ERC will be used to pay Approved Claims and any and all Settlement Costs.

Settlement Class Members will be eligible for a cash payment, the amount of which is dependent

upon the number of Approved Claims. Settlement Agreement at 5.01. Settlement Costs included

Administration Expenses and payment of notice to not exceed $235,000 (and presently estimated to

be $205,625.11); Attorneys’ fees to Class Counsel, as approved by the Court, up to $478,500; an

Incentive/Service Award to each Representative Plaintiff in an amount up to $7,500 per Plaintiff; and,

payment of reasonable and appropriate costs (presently estimated at $50,072.94). See Friedman Decl.

at ¶ 28. Any funds remaining after payment of all Settlement Costs and Payments to the Settlement

Class, including a second distribution if practicable, will be reported to the relevant states as

unclaimed funds. Settlement Agreement § 11.02.

D. Monetary Benefit to Settlement Class Members And Class Notice

The Settlement Agreement provides for $1,450,000 in cash benefits (minus Settlement

Costs) to Class Members on a pro rata basis after the claims period. There are approximately

156,768 Settlement Class Members with unique cell phone numbers that received calls as defined

by the Settlement Class. Pursuant to the Agreement, the Claims Administrator provided notice first

via First Class U.S. Mail within 30 days of the Preliminary Approval Order. (Agreement § 9.01, p.

7.); Hack Decl. at ¶ 5. Claims Forms were also made available on the Settlement Website, which


5

contained the Long Form Notice. See Hack Decl. at ¶ 3. KCC also gave notice by Publication

Notice in the January 9, 2019 and January 16, 2019 editions of USA Today. See Hack Decl. at ¶ 6.

KCC also maintains a toll-free number which members of the public and Class can utilize for

questions. See Hack Decl. at ¶ 4.

The Claims Period ended April 11, 2019, which is 90 days after the Postcard Notice was

issued. (Agreement § 2.07). The opt out and objection deadline was set, under the Court’s

Preliminary Approval order, for April 21, 2019. (Agreement §§ 2.18-.19). To date, there have been

4,729 Claims made, which equates to approximately a 3% take rate for the Settlement Class.1

Friedman Decl. ¶ 20. KCC’s Preliminary review of the submitted Claims confirms 4,078 Approved

Claims were submitted. See Hack Decl. at ¶ 10. For the remaining 651 Claims that did not contain

phone numbers that were on the Class List, those submissions will be sent deficiency letters with an

opportunity to provide a corrected cellular telephone number. Id. The Settlement Class Members

who filed a Claims Form and do not opt out and/or object will each receive a pro rata share. After

fees, costs and administration expenses, it is estimated there will be approximately $693,301.95 in

available funds in the Net Settlement Fund to be distributed to the Settlement Class, such that each

Settlement Class member who submitted a valid claim will receive approximately $146.60.

Friedman Decl. ¶ 32.

III. ACTIVITY IN THE CASE AFTER PRELIMINARY APPROVAL

The Claims Administrator’s compliance is described below.

A. CAFA Notice

Pursuant to § 9.07 of the Settlement Agreement, ERC is responsible for timely compliance

with the Class Action Fairness Act (CAFA), 28 U.S.C. §1715, and is to provide proof of such

compliance by filing a confirming declaration with the Court within 10 court days of completion.

B. Direct Mail Notice Provided

KCC complied with the notice procedure set forth in the Preliminary Approval Order. Dkt.

No. 124. As required by the Preliminary Approval Order, KCC mailed individual postcard notices

by direct mail to the Settlement Class Members that included a summary of the Settlement’s terms.

See Hack Decl., ¶¶ 1-2. 5, Ex A. The direct mail notice also informed the Class Members of the

Settlement Website address: (http://www.MedinaTCPAClassAction.com) and the Claims

1 This is calculated by dividing the 4,729 claims made against the total number of unique cellphone

numbers, 156,769.


6

Administrator’s toll-free telephone, where Class Members could obtain further information about

the Settlement and also make a claim. Id. at ¶¶ 3-5.

Defendant provided the Class List to KCC containing the dates of calls and unique cellular

telephone numbers of individuals who were called one or more times by ERC on a Sprint, PayPal or

AT&T account through LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party Connect,

on his or her cellular telephone(s) and that number was designated as a wrong number or bad number

from August 7, 2014 through August 29, 2016. This data contained information that was used by

KCC to send out 122,728 mail notice postcards. See Hack Decl. at ¶ 2. As of today, 17,101 of these

Notice and Claim Forms remain undelivered, which equates to approximately 67.3% reach of the

Potential Class Members by direct mail. See Hack Decl., ¶¶ 2, 5, & 7; Friedman Decl. at ¶ 18.

Notice was also given by way of publication in USA Today on January 8, 2019 and January 16, 2019.

See Hack Decl. at ¶ 6, Ex. B. “Courts have consistently recognized that, even in Rule 23(b)(3) class

actions, due process does not require that class members actually receive notice.” Juris v. Inamed

Corp., 685 F.3d 1294, 1321 (11th Cir. 2012). See also Adams v. S. Farm Bureau Life Ins. Co., 417

F.Supp.2d 1373, 1380 n. 6 (M.D. Ga. 2006) (“The analysis for purposes of due process is on the

notice plan itself, and actual receipt of notice by each individual class member is not required.”),

aff'd, 493 F.3d 1276 (11th Cir.2007). “Neither due process nor Rule 23 requires that class members

receive actual notice, and publication notice is appropriate where class members' names and

addresses cannot be determined with reasonable efforts.” See Carter v. Forjas Taurus S.A., No. 1:13-

CV-24583-PAS, 2016 WL 3982489, at *6 (S.D. Fla. July 22, 2016), aff'd, 701 F. App'x 759 (11th

Cir. 2017) (citing Juris v. Inamed Corp., 685 F.3d 1294, 1321 (11th Cir. 2012)). Despite this,

Plaintiffs were still able to give direct mail notice to 67.3% prior to the additional reach of publication

notice in the USA Today, which both satisfies due process and also follows the “best notice

practicable” that was approved by the Court at preliminary approval.

C. Formal Notice Posted On The Settlement Website

In compliance with the Preliminary Approval Order, KCC posted on the Settlement Website

the detailed and full notice in a question and answer format, the Complaint, the settlement agreement,

the long form notice, the claim form and the Preliminary Approval Order. See Hack Decl. ¶ 3. The

Settlement Website provided notice of the proposed Settlement to the Settlement Class Members, in

addition to the Direct Mail Notice.


7

D. Objections, Opt Outs, and Settlement Payouts

Settlement Class Members were provided no less than 90 days to review the Settlement,

make timely opt outs and objections. After this time period had lapsed, KCC has reported that, to

date, there were two opt outs and zero objectors to the Settlement. See Hack Decl. ¶ 8; Friedman

Decl. ¶ 23. The deadline to submit a Request for Exclusion or Object was April 22, 2019. Friedman

Decl. ¶ 24. The fact that there were not only zero objections, but only two opt outs, out of 156,769

Settlement Class Members highly supports the adequacy of the proposed Settlement. See In re

Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1343 (S.D. Fla. 2011) (“small number of

objectors from a plaintiff class of many thousands is strong evidence of a settlement's fairness and

reasonableness.”)

1. Settlement Checks and Credits

The net Settlement Fund, assuming this Court provides all the requested relief sought by

Plaintiffs and their Counsel, available to pay Class Members is $693,301.95, which was determined

by subtracting the anticipated Class Representatives’ incentive awards of $7,500.00 each, Class

Counsels’ requested fees of $478,500, Class Counsels’ litigation expenses of $50,072.94, and the

Settlement Administration costs (estimated to be approximately $205,625.11, but in no event will

exceed $235,000 after completion) from the Settlement Fund of $1,450,000. See Friedman Decl. ¶¶

28-33. This sum was divided by the number of Approved Claims submitted by Class Members

(4,729). Based on the available net Settlement Fund, this equates to each Claimant receiving

approximately $146.60. See Friedman Decl. ¶ 33.

2. Class Representative’s Incentive Payment

Pursuant to the Agreement and the Preliminary Approval Order, and subject to Court’s final

approval, Defendant has agreed that the Plaintiffs may seek to be paid from the Settlement Fund an

incentive award of up to $7,500 each, in recognition of Plaintiffs’ services as the Class

Representatives. Agr. § 6.02. The Court should approve the $7,500 incentive payments to

“compensate named plaintiffs for the services they provided and the risks they incurred during the

course of the class action litigation.” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185,

1218 (S.D. Fla. 2006). See also Stallworth v. Monsanto Co., No. PCA 73-45. 198) U.S. Dist. LEXIS

12858, at *20-21 (N.D. Fla. June 26, 1980) (approving service awards ranging from $10,000 to

$20,000 to four named plaintiffs, “each of whom devoted substantial time to the prosecution of th[e]

lawsuit”). Plaintiffs’ efforts in this litigation are outlined in Plaintiffs’ declarations, which were filed


8

in support of their Motion for Preliminary Approval. See Dkt. Nos. 121-8, 9, 10.

3. Attorneys’ Fees and Costs

As more fully briefed in Plaintiffs’ Motion and Incorporated Memorandum of Law in

Support of an Award of Attorneys’ Fees, Costs, and Incentive Awards (“Plaintiffs’ Fee Brief”), “[a]

litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his

client is entitled to a reasonable attorney’s fee from the fund as whole.” In re Sunbeam Sec. Litig.,

176 F. Supp. 2d 1323, 1333 (S.D. Fla. 2001). “There is no hard and fast rule mandating a certain

percentage of a common fund which may be awarded as a fee because the amount of any fee must be

determined upon the facts of each case.” Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I Condo.

Ass’n. v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991)). The Agreement permits Class Counsel to file

an application for attorneys’ fees, not to exceed 33% of the Settlement Fund as well as reasonable

litigation costs to be paid from the Settlement Fund,. Agr. § 6. “The average percentage award in

the Eleventh Circuit mirrors that of awards nationwide—roughly one-third.” Wolff v. Cash 4 Titles,

No. 03-22778- CIV, 2012 WL 5290155, at *5-6 (S.D. Fla. Sept. 26, 2012) (citing Circuit case law

and listing Southern and Middle District of Florida attorneys’ fees awards). That amount of

Attorneys’ fees requests ($478,500) and litigation costs ($50,072.94) to date by Class Counsel is

explained in more detail in Plaintiffs’ Fee Brief filed contemporaneously herewith The Court should

approve the award of the requested attorneys’ fees and costs to compensate Class Counsel for their

time and efforts in litigating this case on behalf of the Settlement Class and the named Plaintiffs,

having obtained good results for the Settlement Class.

4. Administrator’s Expenses For Notice and Administration

Defendant has agreed to pay all costs of notice and claims administration from the Settlement

Fund up to an amount of $235,000. KCC has provided an estimate of its costs as $205,625.11. See

Hack Decl. at ¶ 11; Friedman Decl. at ¶ 27.

IV. ARGUMENT

A. Final Approval of The Proposed Settlement Is Warranted

The Court has already preliminarily found the requirements of Fed. R. Civ. P. 23 are satisfied.

See generally Preliminary Approval Order, Dkt. No. 125. The relevant factors demonstrate that the

proposed Settlement should be finally approved as fair, reasonable and adequate. Since Preliminary

Approval, Plaintiffs have continued to serve as adequate Class Representatives by reviewing


9

documents and submitting declarations in support of motions, including the present motion; and

Plaintiffs support final approval of the Settlement. Moreover, Class Counsel have also continued to

adequately represent the interests of the Class Members and the named Plaintiffs, having, among

other things, timely disseminating Class Notice, filing the Fee Brief, and assisting with settlement

administration.

District courts are given broad discretion to determine whether certification of a class action

lawsuit is appropriate. Walco Investments, Inc. v. Thenen, 168 F.R.D. 315, 323 (S.D. Fla. 1996).

Under Rule 23(e), “the Court will approve a class action settlement if it is ‘fair, reasonable, and

adequate.’” Burrows v. Purchasing Power, LLC, No. No. 1:12-CV-22800, 2013 U.S. Dist. LEXIS

189397, at *13 (S.D. Fla. Oct. 4, 2013) (quoting Fed. R. Civ. P. 23(e)(2)). Underwood v. Manfre,

2014 WL 67644, at *21-22 (M.D. Fla. Jan. 8, 2014). ("If the preliminary evaluation of the proposed

settlement does not disclose grounds to doubt its fairness or other obvious deficiencies...the court

should direct that notice under Rule 23(e) be given to the class members of a formal fairness hearing,

at which arguments and evidence may be presented in support of and in opposition to the

settlement.") (quoting William B. Rubenstein, Newberg on Class Actions § 11:25 (4th ed.) (citing

The Manual for Complex Litigation § 30.41 (3d ed.)).

There is a strong judicial and public policy favoring the voluntary conciliation and settlement

of complex class action litigation. In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992)

(“Public policy strongly favors the pretrial settlement of class action lawsuits”); Warren v. City of

Tampa, 693 F. Supp. 1051, 154 (M.D. Fla. 1998), aff’d, 893 F. 2d 347 (11th Cir. 1998); Access Now,

Inc. v. Claires Stores, Inc., No. 00-cv-14017, 2002 WL 1162422, at *4 (S.D. Fla. May 7, 2002). This

is because class action settlements ensure class members a benefit, as opposed to the “mere possibility

of recovery at some indefinite time in the future.” In re Domestic Air Transport., 148 F.R.D. 297,

306 (N.D. Ga. 1993); see also, e.g., Ass’n for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D.

457, 466 (S.D. Fla. 2002) (finding that the policy favoring settlement is especially relevant in class

actions and other complex matters, where the inherent costs, delays and risks of continued litigation

might otherwise overwhelm any potential benefit the class could hope to obtain). Thus, while district

courts have discretion in deciding whether to approve a proposed settlement, deference should be

given to the consensual decision of the parties. Warren, 693 F. Supp. at 1054 (“affording great weight

to the recommendations of counsel for both parties, given their considerable experience in this type

of litigation”).


10

Application of the relevant factors here confirms that the proposed settlement should be

finally approved because it is fair, adequate, and reasonable. Notably, this Settlement was reached

with the assistance of experienced mediator Hon. Jay Gandhi (Ret.), which shows a lack of collusion

between the Parties. See Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 1384 (S.D. Fla. 2007)

(concluding that class settlement was not collusive in part because it was overseen by “an

experienced and well-respected mediator”); Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1318-

19 (S.D. Fla. 2005) (approving class settlement where the “benefits conferred upon the Class are

substantial, and are the result of informed, arms-length negotiations by experienced Class Counsel”).

Based on the facts of this case, Class Counsel and the named Plaintiffs agree that this settlement is

fair and reasonable; among other things, the settlement will avoid costly and time-consuming

additional litigation and the need for trial. See Friedman Decl., ¶ 14-16.

1. The Strength of The Lawsuit And The Risk, Expense, Complexity, And

Likely Duration of Further Litigation

Defendant has vigorously contested the claims asserted by Plaintiffs in this Action. Although

Plaintiffs feel strongly about the merits of their case, there are risks to continuing the Action. Class

Counsel understands, despite its confidence in its positions, that there are uncertainties associated

with complex class action litigation and that no one can predict the outcome of the case.

This case is about Defendant’s alleged practice of placing calls to the cell phones of Class

Members without their prior express consent, as evidenced by the “wrong number” designation in

Defendant’s files. Plaintiffs allege that the “wrong number” designation is sufficient to demonstrate

a lack of consent and a violation of the TCPA. Defendant has strong defenses to certification as well

as on the merits.

In considering the Settlement, Plaintiffs and Class Counsel carefully balanced the risks of

continuing to engage in protracted and contentious litigation against the benefits to the Class

including the significant benefit and the deterrent effects it would have. See Friedman Decl. ¶ 15.

As a result, Class Counsel supports the Settlement and seeks its Final Approval. Id. Similarly,

Defendant believes that it has strong and meritorious defenses to the action as a whole, as well as to

class certification and the amount of damages sought. The negotiated Settlement is a compromise

avoiding the risk that the class might not recover and presents a fair and reasonable alternative to

continuing to pursue the Action as a class action for alleged violations of the TCPA. What is more,

Judge Gandhi, who is intimately familiar with the instant litigation as well as the current climate of


11

TCPA litigation as a whole, agrees with the Parties.

2. The Amount Offered In Settlement

As set forth above, Defendant has agreed to a common fund settlement in the amount of

$1,450,000. Settlement Class Members will collectively receive at least $663,927.06 of these

available funds after administration costs, proposed attorney’s fees, costs of suit, and the proposed

incentive awards. The amount of the check shall be calculated by the Claims Administrator on a

pro-rata basis, which currently equates to approximate recoveries of $146.60 per Settlement Class

Member who submitted a valid Claim. See Friedman Decl. ¶ 32.

Class Member data provided to the Claims Administrator in the course of disseminating

Notice verifies that the Class is comprised of 156,768 unique individuals. The net recovery, after

fees and costs, to each Class Member will be approximately $146.60 for each Settlement Class

Member who submits a valid claim form. This is a highly favorable per-person recovery for the

Settlement Class. Moreover, this outstanding result was achieved without having to subject

Settlement Class members to the substantial risks ahead in litigation, which include having to

achieve class certification, and surviving a motion for summary judgment premised on Defendant’s

arguments, among other risks.

The settlement award that each Class Member will receive is fair, appropriate, and reasonable

given the purposes of the TCPA, the limitations of class-wide liability, and in light of the anticipated

risk, expense, and uncertainty of continued litigation. Although it is well-settled that a proposed

settlement may be acceptable even though it amounts to only a small percentage of the potential

recovery that might be available to the class members at trial, here, the Settlement provides

significant and meaningful relief that is comparable to what the Settlement Class Members would

receive if Plaintiffs were able to prevail on class certification, took the case to trial and obtained a

judgment.2 Moreover, Class Members were able to avoid the time, expense and risk associated with

bringing their own individual TCPA action, where they would be anticipated to receive a sum on the

2 National Rural Tele. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 527 (C.D. Cal. 2004) (“well settled

law that a proposed settlement may be acceptable even though it amounts to only a fraction of the

potential recovery”); In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436, 460 (E.D. Pa.

2000) (“the fact that a proposed settlement constitutes a relatively small percentage of the most

optimistic estimate does not, in itself, weigh against the settlement; rather, the percentage should be

considered in light of strength of the claims”); In re Omnivision Tech., Inc., 559 F. Supp. 2d 1036

(N.D. Cal. Jan. 9, 2008) (court-approved settlement amount that was just over 9% of the maximum

potential recovery); In re Mego Fin’l Corp. Sec. Litig., 213 F. 3d 454, 459 (9th Cir. 2000).


12

lower end of the $500-$1,500 in statutory damages awardable under the TCPA.

The relief afforded to the Settlement Class Members here is in line with the relief given in

other similar TCPA class settlements. Below is a chart of eleven (11) similar TCPA class action

settlements which have received approval, including the value to each proposed class member for

the respective case.

Case and No. Size of Class Settlement Amount Value per Class

Member

Robles v. Lucky

Brand Dungarees,

Inc.

Case No. 3:10-cv-

04846 (NDCA)

216,000 $9.9 Million $100 maximum

Adams v.

AllianceOne, Inc.

Case No. 08-cv-0248

(SDCA)

5.63 Million $9 Million $40 maximum

Hartman v. Comcast

Business

Communications

2:10-cv-00413-RSL

(WDWA)

148,843 $3.8 Million $25.53 maximum

Hovila v. Tween

Brands, Inc.

09-cv-00491-RSL

(WDWA)

100,000 $5.33 Million Max $20 Cash; or

$45 Gift Certificate

Clark v. Payless

Shoesource, Inc.

09-cv-00915-JCC

(WDWA)

8 Million $6.25 Million $25 Gift Certificate


13

Case and No. Size of Class Settlement Amount Value per Class

Member

Cubbage v. The

Talbots, Inc.

09-cv-00911-BHS

(WDWA)

18,000 $1.44 Million $80 Gift Certificate

($40 Cash Value)

In Re Jiffy Lube

3:11-md-02261

2.3 Million $47 Million $17.29 Gift

Certificate

($12.97 Cash

Redemption)

Bellows v. NCO

Financial

07-cv-1413-W(AJB)

(SDCA)

Unknown, but in the

thousands

$950,000 $70

Lemieux v. Global

Credit & Collection

08-cv-1012-

IEG(POR)

(SDCA)

27,844 $505,000 $70

Gutierrez v. Barclays

Group

10-cv-1012

(SDCA)

66,100 $100

Arthur v. Sallie Mae,

Inc.

10-cv-0198,

(WDWA)

$24.15 Million Between $20 and $40


14

3. Class Members were provided with the best notice possible, which

afforded them an opportunity to choose whether to participate in the

Settlement

Rule 23(c)(2)(B) provides that, in any case certified under Rule 23(b)(3), the court must direct

to class members the “best notice practicable” under the circumstances. The best practicable notice

is that which is “reasonably calculated, under all the circumstances, to apprise interested parties of

the pendency of the action and afford them an opportunity to present their objections.” Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Final approval of the Settlement should

be granted when considering the terrific notice provided to the Class Members, i.e., 67.3% of the

Settlement Class Members were reached by direct mail and additional notice was given by way of

publication in USA Today twice. See Hack Decl., ¶¶ 2, 5-7; Friedman Decl. at ¶ 18.

It is also noteworthy that the settlement received positive responses from Class Members, as

illustrated by the claims rate of 3% with only two opt-outs and no objections. Moreover, it is well-

settled that a proposed settlement may be accepted where the recovery represents a fraction of the

maximum potential recovery. “A settlement can be satisfying even if it amounts to a hundredth or

even a thousandth of a single percent of the potential recovery.” Behrens v. Wometco Enterprises,

Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988), aff'd sub nom. Behrens v. Wometco Enterprises, 899 F.2d

21 (11th Cir. 1990). “[T]he existence of strong defenses to the claims presented makes the possibility

of a low recovery quite reasonable.” Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1323 (S.D.

Fla. 2005). Again, despite this general acceptance, the settlement at issue here results in the Class

receiving comparable relief to what they would potentially be able to receive in a judgment. It is an

outstanding settlement in every respect.

The Claims Administrator sent postcard notice to 122,728 potential Class Members, identified

by Defendant’s records (explained above). Of these, 17,101 were unable to be reached un

subsequent re-mailing and re-lookup, but Plaintiffs were still able to provide direct notice to 67.3%

of the Settlement Class Members. See Friedman Decl. at ¶ 18. This was excellent notice and the

best notice practicable for the Class Members.

4. The Extent of Discovery Completed

The proposed Settlement is the result of intensive arms-length negotiations, which included

several months of discovery into the nature of the practices, and the size of the Class affected by

them. The Parties also engaged in a full-day mediation session before Hon. Judge Gandhi. Prior to


15

the mediation, the Parties engaged in both formal and informal discovery surrounding Plaintiffs’

claims and Defendant’s defenses. The Parties also participated in direct discussions about possible

resolution of this litigation, including numerous telephonic conferences, which ultimately resulted

in a general understanding of the Settlement terms.

The important information needed in these cases is primarily how many Class Members’

were subjected to the practices at issue. This information was obtained through both formal and

informal discovery. The litigation had reached the stage where “Counsel developed ample

information and performed extensive analyses from which to determine the probability of their

success on the merits, the possible range of recovery, and the likely expense and duration of the

litigation.’” In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1349 (S.D. Fla. 2011)

(citing Mashburn v. Nat'l Healthcare, Inc., 684 F.Supp. 660, 669 (M.D.Ala.1988)).

5. The Experience And Views of Class Counsel

Deference should be given to the consensual decision of the Parties and their experienced

counsel in reaching settlement. Warren, 693 F. Supp. at 1054 (“affording great weight to the

recommendations of counsel for both parties, given their considerable experience in this type of

litigation”). The fact that settlement is reached after the arms-length negotiations by experienced

Class Counsel should be given weight in determining fairness. See Lipuma v. Am. Express Co., 406

F. Supp. 2d 1298, 1318-19 (S.D. Fla. 2005) (approving class settlement where the “benefits

conferred upon the Class are substantial, and are the result of informed, arms-length negotiations by

experienced Class Counsel”).

Here, it is the considered judgment of experienced counsel that this settlement is a fair,

reasonable and an adequate settlement of the litigation. See Friedman Decl., ¶ 15. Class Counsel are

experienced consumer class action lawyers. See Dkt. Nos. 121-1, 6, 7. This Settlement was

negotiated at arms’ length by experienced and capable Class Counsel who now recommend its

approval. See Friedman Decl. ¶¶ 8, 15. Moreover, the Settlement was reached after the assistance

of Judge Gandhi (Ret.). Given their experience and expertise, Class Counsel are well-qualified to

not only assess the prospects of a case, but also to negotiate a favorable resolution for the class. See

Friedman Decl., ¶¶ 15. Class Counsel have achieved such a result here in this TCPA class action,

and unequivocally assert that the proposed Settlement should receive final approval. Id..

6. The Reaction of Class Members To The Settlement

The fact that there are zero objections, only two valid opt outs from the approximately 156,769


16

Class Members, should say all that needs to be said about the outstanding settlement that was reached

here for the Class. See In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1343 (S.D.

Fla. 2011) (“small number of objectors from a plaintiff class of many thousands is strong evidence

of a settlement's fairness and reasonableness.”). The near “unanimous approval of the proposed

settlements by the class members is entitled to nearly dispositive weight in this court's evaluation of

the proposed settlements.” Id. (citing In re Art Materials Antitrust Litig., 100 F.R.D. 367, 372 (N.D.

Ohio 1983)). See also Mangone v. First USA Bank, 206 F.R.D. 222, 227 (S.D.Ill.2001) (“In

evaluating the fairness of a class action settlement, such overwhelming support by class members is

strong circumstantial evidence supporting the fairness of the Settlement.”). There has absolutely

zero resistance to the Settlement. See Hack Decl. ¶ 8; Friedman Decl. ¶¶ 23-24.

V. CONCLUSION

In sum, the Parties have reached this Settlement following extensive arms’ length

negotiations, including with the assistance of Hon. Jay C. Gandhi (Ret.). The Settlement is fair and

reasonable to the Class Members who were afforded notice that complies with due process. For the

foregoing reasons, Plaintiff respectfully requests that the Court:

• Grant final approval of the proposed Settlement;

• Order payment from the settlement proceeds in compliance with the Court’s Preliminary

Approval Order and the Settlement Agreement;

• Grant Plaintiffs’ request for Incentive Awards to each of the Plaintiffs;

• Grant Plaintiffs’ request for Attorney’s Fees and the reimbursement of reasonable costs

incurred in the prosecution of the Action;

• Enter the proposed Final Judgment and Order of Dismissal With Prejudice submitted

herewith; and,

• Retain continuing jurisdiction over the implementation, interpretation, administration, and

consummation of the Settlement.

Date: May 22, 2019 Respectfully submitted,

KOMLOSSY LAW, P.A.

By: /s/ Emily C. Komlossy

Emily C. Komlossy, Esq. (FBN 7714)


17

[email protected]

4700 Sheridan Street, Suite J

Hollywood, FL 33021

Telephone: (954) 842-2021

Facsimile: (954) 416-6223

LAW OFFICES OF RONALD A. MARRON

Ronald A. Marron (pro hac vice)

[email protected]

Alexis M. Wood (pro hac vice)

[email protected]

Kas L. Gallucci (pro hac vice)

[email protected]

651 Arroyo Drive

San Diego, CA 92103

Tel: (619) 696-9006

Fax: (619) 564-6665

KAZEROUNI LAW GROUP, APC

Abbas Kazerounian (pro hac vice)

[email protected]

Mona Amini (pro hac vice)

[email protected]

245 Fischer Avenue, Unit D1

Costa Mesa, CA 92626

Tel: 800-400-6808

Fax: 800-520-5523

LAW OFFICES OF TODD M. FRIEDMAN, P.C.

Todd M. Friedman (pro hac vice)

[email protected]

21550 Oxnard Street, #780

Woodland Hills, CA 91367

Tel: 877-206-4741

Fax: 866-633-0228

Class Counsel and Attorneys for Plaintiffs


CERTIFICATE OF SERVICE

I hereby certify that on May 22, 2019, I electronically filed the foregoing document with

the Clerk of Court using CM/ECF pursuant to the Local Rules and Order of the Court. I also

certify that the foregoing document is being served this day on all counsel of record identified

below via electronic mail to the email addresses noted below.

Scott Stephen Gallagher

[email protected]

Richard Dean Rivera

[email protected]

SMITH, GAMBRELL AND RUSSELL

50 N. Laura St., Ste. 2600

Jacksonville, FL 32202

/s/ Emily C. Komlossy

Emily C. Komlossy


1





Defendant.

Case No. 2:15-CV-14342-JEM/MAYNARD

DECLARATION OF TODD M. FRIEDMAN IN SUPPORT OF

UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

I, TODD M. FRIEDMAN, declare:

1. I am one of the attorneys for the plaintiffs Sherryl Medina, Danny Allen, and John

Carter Williams (“Plaintiffs”) in this action. I am an attorney licensed to practice law in

the State of California since 2001, the State of Illinois since 2002, and the State of

Pennsylvania since 2011. I have been continuously licensed in California since 2001,

Illinois since 2002, and Pennsylvania since 2011, and am in good standing with the

California State Bar, Illinois State Bar, and Pennsylvania State Bar. I have litigated cases

in both state and federal courts in California and Illinois. I am also admitted in every

Federal district in California and have handled federal litigation in the federal districts of

California. I am admitted to practice before this Court pro hac vice.

2. The declaration is based upon my personal knowledge, except where expressly noted

otherwise.

3. I submit this declaration in support of the Plaintiffs’ Motion for Final Approval of Class

Action Settlement Class in the action against Defendant, Enhanced Recovery Company,

LLC (“ERC” or “Defendant”).1

1 Plaintiffs and Defendant are collectively referred to as “Parties”. All capitalized terms have the

same meaning as set forth in the Parties’ Settlement Agreement, annexed hereto as Exhibit A.

Case 2:15-cv-14342-JEM Document 125-1 Entered on FLSD Docket 05/22/2019 Page 1 of 42

2

SUMMARY OF CASE HISTORY AND SETTLEMENT

4. This action was commenced on September 3, 2015, in the U.S. District Court for the

Southern District of Florida (the “Court”) in an action entitled Medina v. Enhanced

Recovery Company, LLC, Case No. 2:15-cv-14342-JEM (the “Litigation”), alleging

putative class claims under the Telephone Consumer Protection Act (“TCPA”) turning

on ERC’s alleged practices of calling individuals without their consent.

5. ERC filed an Answer shortly thereafter.

6. The parties engaged in discovery and motion practice until a stay was issued in this case

pending a decision by the Multi-District Litigation Panel as to whether this matter

should be consolidated with two actions pending in the Central District of California and

an action in the Eastern District of California. The Multi-District Litigation Panel denied

consolidation.

7. After the stay was lifted, Plaintiffs filed a First Amended Complaint in this Action. The

parties then continued to engage in further discovery and motion practice. The matter

was then referred by the Court to mediation.

8. The Parties attended an all day mediation with the Honorable Jay C. Gandhi (Ret.) as the

mediator, who was able to procure a fair and reasonable settlement between the parties

and for the Class.

9. Subsequently, the Parties reduced the terms of the Settlement Agreement into writing

after multiple rounds of negotiations and revisions on the terms, as well as soliciting

bids for Class Administration.

10. The Parties agreed to settle on the terms in the Settlement Agreement as set forth

therein, on behalf of a Settlement Class of approximately 156,679 persons in the United

States who (1) were called one or more times by ERC, (2) on a Sprint, PayPal or AT&T

account (3) through LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party

Connect, (4) on his or her cellular telephone(s), (5) when that number was designated as

a wrong number or bad number, (6) from August 7, 2014 through December 31, 2017,

and (7) whose telephone numbers are identified in the Class List. Plaintiffs’ counsel are

satisfied the information provided about the number of persons in the Settlement Class is

correct, and received confirmatory discovery confirming such pursuant to § 15.01 of the

Settlement Agreement.


3

11. Pursuant to the Agreement, those persons in the Settlement Class will receive a pro rata

distribution from the Total Settlement Amount after payment of administration costs,

attorneys’ fees, costs of litigation, and any incentive payments.

12. Available Total Settlement Amounts will be apportioned in an equal manner to each

Class Member. The Net Settlement Amount shall equal the Settlement Amount minus

all payments of the Class Counsel Award, the class representatives Incentive Awards,

and the Settlement Administrator Expenses. (Settlement Agreement, at § 6.01-6.03,

19.03). The Net Settlement Amount will be distributed among the Settlement Class

Members who do not timely opt out. Each Class Member’s Individual Settlement

Payment will be in an equal amount, made on a pro rata basis to each Settlement Class

Members during the Class Period, as determined from the Class Information provided to

the Settlement Administrator by Defendant. The dollar value of each Individual

Settlement Amount shall be determined by dividing the Net Settlement Amount by the

total number of Participating Class Members. Settlement Agreement at § 5.02.

13. As part of that Agreement, Defendant will make a Payment of $1,450,000 as the

settlement benefits (the “Total Settlement Amount”) for all approved claims. Defendant

will also pay all attorneys’ fees and expenses, incentive awards, and costs of notice and

claims administration from the Total Settlement Amount.

14. It is my opinion that the Class, as defined, satisfies the requirements of Federal Rules of

Civil Procedure 23 because all persons in the Settlement Class received the same calls

alleged to be in violation of the TCPA during the Class Period.

15. Plaintiffs and their counsel believe that the claims asserted in the Action have merit.

However, taking into account the risks of continued litigation, as well as the delays and

uncertainties common in class action litigation, Class Counsel believe that it is desirable

that the Action be fully and finally compromised, settled and terminated now with

prejudice, and forever barred pursuant to the terms and conditions set forth in this

Agreement. Class Counsel have concluded that the terms and conditions of this

Agreement are fair, reasonable and adequate to the proposed class, and that it is in the

best interests of the proposed class to settle the Action. I believe that the Settlement

should be given final approval by this Court.


4

NOTICE GIVEN

16. For the details involved in giving the notice, and administering the claims procedure,

and the claims received, see H. Jacob Hack Declaration, filed concurrently.

17. Defendant produced the Class List as part of the mandatory confirmatory discovery,

which contained approximately 156,769 potential Class Members and was provided to

the Claims Administrator, Kurtzman Carson Consultants, LLC (“KCC”). KCC

successfully notified or “reached” 105,627 of the Class Members, by way of Direct Mail

Notices, which equates to approximately 67.3% of the Potential Class Members. KCC

sent Direct Mail Notice to 122,728 Settlement Class Members on or about June 11,

2019. 19,949 of these notices were returned undeliverable, and after conducting reverse

lookups for new addresses, 2,848 were re-mailed. Ultimately the total number of

returned undeliverable notices was 19,949, and the total which were re-mailed was

2,848, meaning that the difference in these figures (17,101) represents the total number

of Class Member notices which were ultimately undeliverable by mail.

18. This notice summarized the Settlement, advised the Settlement Class Members on how

to participate in the Settlement. The summary notice instructed all persons how to opt

out or object to the Settlement, and also directed Settlement Class Members to the

Settlement Website to obtain complete information regarding the case and class

settlement. The Settlement Website contained answers to frequently asked questions,

important case documents including the settlement agreement, preliminary approval

order, notice, and claim form. The notice was approved by the Court at preliminary

approval.

19. Additional notice was given by publication in USA Today on January 9, 2019 and

January 16, 2019, as well as through website notice.

PAYMENT TO BE MADE

20. 4,729 timely claims were submitted for Settlement Class Members who will receive

payment from the Settlement, representing a 3% take rate. This number was arrived at

by dividing the total number of timely claims (4,729) by the number of Unique Numbers

(156,769).

21. Upon final approval, it is my understanding that Defendant will issue payment by

funding the Common Fund within 5 business days (the Funding Date) of the Effective


5

Date, i.e., the date when the Judgment has become final as provided in Section 17.01 of

the Agreement. KCC will then issue compensation in the form of the Settlement Checks

to the Settlement Class Members who submitted Approved Claims within 30 days of the

Funding Date, as provided in Section 8.04 of the Agreement. If any Settlement checks

are returned, the Claims Administrator shall attempt to obtain a new mailing address for

that Settlement Class Member by taking the steps described in Section 11.02 of the

Agreement; if, after a second mailing, the Settlement check is again returned, no further

efforts need be taken by the Claims Administrator to resend the check. Each Settlement

check will be negotiable for 180 days after it is issued.

OPT OUTS AND OBJECTIONS

22. Class Members were permitted to opt-out or to file an objection. See, Settlement

Agreement at. §§ 12.01 and 12.02. KCC has received only two opt outs and zero

objections.

23. The deadline to submit a Request for Exclusion or Object was April 22, 2019.

24. I believe that the lack of any opt outs or objections from the approximately 156,769

Class Members, highly supports the adequacy of the proposed Settlement. Therefore, I

believe that, overall, the Settlement Class Members have responded very favorably to

the Settlement.

ADEQUACY OF SETTLEMENT

25. Defendant shall provide class benefits of $1,450,000 in cash. The Settlement Class

Members stand to receive a cash payment from the Settlement Fund in the form of a

check per each Approved Claim, on a pro rata basis after deducting Settlement Costs.

26. Costs of litigation, notice, claims administration and attorneys’ fees are being paid from

the Settlement Fund.

27. Any incentive payment awarded to the Representative Plaintiffs, Ms. Medina, Mr. Allen,

and Mr. Carter Williams, any attorneys’ fees and costs awarded to Class Counsel and

certain expenses including Claims Administration Costs by this Court if the Settlement is

approved, are to be paid from the Settlement Fund by Defendant as follows:

a. Administration Expenses and payment of notice, estimated by KCC shall to not

exceed $205,625.11 (a true and correct accounting of actual expenses is set forth in

the Hack Declaration);


6

b. Attorneys’ fees and costs to Class Counsel, as approved by the Court, up to $478,500;

c. Incentive/Service Award to each Representative Plaintiff in an amount up to $7,500;

and,

d. Payment of reasonable and appropriate costs of litigation, which total $50,072.94.

28. The costs of notice by mail and claims administration will be paid as part of the

Settlement Fund.

29. The proposed Settlement contemplates that Class Counsel will request an incentive award

in the amount of $7,500 each to Ms. Medina, Mr. Allen, and Mr. Carter Williams, as

proposed by Class Counsel, subject to Court approval. Defendant has agreed not to

oppose a request for such incentive award in the agreed-upon amount.

30. I can attest that Ms. Medina, Mr. Allen, and Mr. Carter Williams have each honorably

and diligently served their role as class representative, by responding promptly to Class

Counsel’s requests for information about their claims, by assisting in responding to

discovery, by making themselves available by phone or in person to discuss the facts of

the case, by being available during settlement discussions to assist in making settlement

decisions for the Class, and by assisting in preparing declarations in support of approval

of the Class Settlement. The $7,500 requested is a modest incentive award based on my

experience in litigating such cases, and I believe it well-deserved for Ms. Medina, Mr.

Allen, and Mr. Carter Williams’s efforts.

31. The proposed Settlement contemplates that Class Counsel shall be entitled to apply to the

Court for an award of attorneys’ fees, costs, and expenses to be paid from within the

Settlement Fund. Defendant has agreed not to oppose an application by Class Counsel for

an award of attorneys’ fees up to $478,500 from the Settlement Fund, which represents

33% of $1,450,000. I believe the excellent results of this Settlement warrant attorneys

fees in this amount. Class Counsel further intend to also ask for costs of litigation to be

paid from the Settlement Benefit. My office has separately moved for an award of

attorney’s fees and costs.

32. If the full amount of attorneys’ fees and costs, settlement Administration Expenses, and

incentive awards are awarded, there remains a pool of $663,927.06. Based on the

available net Settlement Fund, after dividing this number by the number of Approved


7

Claims submitted by Class Members (4,729), each Settlement Class Member who has

submitted an Approved Claim will receive a pro rata share of approximately $146.60.

33. I am unaware of any conflict of interest between Plaintiffs and any putative Class

Member or between Plaintiffs and Plaintiffs’ attorneys.

CLASS COUNSEL’S EXPERIENCE

34. I have outlined my experience in the Declaration of Todd M. Friedman in Support of

Motion for Preliminary Approval (Dkt. No. 121-1) and in the Declaration of Todd M.

Friedman in Support of Attorney’s Fees, contemporaneously submitted with this

Motion. My co-counsel’s experience is outlined in the Declaration of Abbas

Kazerounian in Support of Motion for Preliminary Approval (Dkt. No. 121-6), the

Declaration of Ronald A. Marron in Support of Motion for Preliminary Approval (Dkt.

No. 12-7) and the Declarations of Abbas Kazerounian and Ronald A. Marron in Support

of Attorney’s Fees. I will not be repeating it here for sake of brevity.

I declare under penalty of perjury under the laws of the State of Florida and the United

States of America that the foregoing is true and correct. Executed this 22nd day of May, 2019 in

the State of California, County of Los Angeles.

By:/s/ Todd M. Friedman

Todd M. Friedman, Esq.


EXHIBIT A


1 of 31

Medina v. Enhanced Recovery Company, LLC (S.D. Fla. Case No. 2:15-cv-14342-JEM)

CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (“Agreement”) is entered into by Plaintiff Sherryl

Medina, Plaintiff Danny Allen and Plaintiff John Carter Williams (collectively, the “Plaintiffs”),

for themselves individually and on behalf of the Settlement Class (as defined below), and by

Defendant Enhanced Recovery Company, LLC (“ERC” or “Defendant”). Plaintiffs and ERC are

referred to collectively in this Agreement as the “Parties.”

RECITALS

1.01. On September 3, 2015, Plaintiff Sherryl Medina filed a putative class action

complaint against ERC in the United States District Court for the Southern District of California

entitled Sherryl Medina, on behalf of herself and all others similarly situated vs. Enhanced

Recovery Company, LLC dba ERC, a Delaware limited liability company, which was assigned

Case No. 3:15-cv-01966-LAB-KSC. The complaint alleges that ERC violated the Telephone

Consumer Protection Act, 47 U.S.C. § 227, et seq. (the "TCPA") by using an automatic telephone

dialing system or an artificial or prerecorded voice to call cellular phones without the prior express

consent of Plaintiff and the putative class members.

1.02. On September 28, 2015, the Honorable Larry Alan Burns transferred the case from

the United States District Court for the Southern District of California to the United States District

Court for the Southern District of Florida, and the case was assigned Case No. 2:15-cv-14342-

JEM (the “Action”).

1.03. On October 9, 2015, ERC filed an Answer to the Complaint.

1.04. On August 28, 2016, Plaintiff Medina filed a First Amended Complaint adding

Plaintiff Danny Allen and Plaintiff John Carter Williams as named Plaintiffs.

1.05. On September 7, 2017, ERC filed an Answer to Plaintiffs’ First Amended

Complaint.

1.06. ERC has denied, and continues to deny, all material allegations of the First

Amended Complaint. ERC specifically denies that it called Plaintiffs or putative class members

without their consent, denies that it violated the TCPA, and denies that Plaintiffs and putative class

members are entitled to any relief from ERC. ERC further contends that the Action would not be

amenable to class certification. Nevertheless, taking into account the uncertainty and risks inherent

in any litigation, ERC has concluded that further defense of the Action would be protracted,


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burdensome, and expensive, and that it is desirable and beneficial to fully and finally settle and

terminate the Action in the manner and upon the terms and conditions set forth in this Agreement,

subject to Court approval.

1.07. This Agreement resulted from good faith, arm's length settlement negotiations over

many months, including a day-long mediation session, before the Hon. Jay C. Gandhi, (Ret.), of

JAMS on April 27, 2018. Prior to that mediation, ERC provided Plaintiffs with extensive

information concerning their claims, including data regarding telephone calls placed to putative

class members. The Parties also participated in direct discussions about a possible resolution of

this litigation, including numerous telephonic meetings. Certain information provided by ERC is

subject to confirmatory discovery by Plaintiffs as a condition of this Agreement.

1.08. Based on their investigation and the negotiations described in this Agreement, Class

Counsel have concluded, taking into account the sharply contested issues involved, the risks,

uncertainty and cost of further prosecution of this litigation, and the substantial benefits to be

received by class members pursuant to this Agreement, that a settlement with ERC on the terms

set forth herein is fair, reasonable, adequate and in the best interests of the Settlement Class

Members.

1.09. Plaintiffs’ Motion for Preliminary Approval will include a request for leave from

the Court to modify the class definition to comport with the definition agreed-upon in the

mediation and will mirror the definition set forth in Section 2.27 below. Assuming the Court grants

the Motion for Final Approval of the Agreement, the Action will be dismissed with prejudice.

1.10. The Parties understand, acknowledge and agree that the execution of this

Agreement constitutes the settlement and compromise of disputed claims. This Agreement is

inadmissible as evidence against any party except to enforce the terms of the Agreement and is not

an admission of wrongdoing or liability on the part of any party to this Agreement. It is the Parties'

desire and intention to effect a full, complete and final settlement and resolution of all existing

disputes and claims as set forth herein.

1.11. The settlement contemplated by this Agreement is subject to preliminary and final

approval by the Court, as set forth herein. This Agreement is intended by the Parties to fully,

finally and forever resolve, discharge and settle the Released Claims, upon and subject to the terms

and conditions hereof.


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DEFINITIONS

2.01. “Action” means the Action captioned Sherryl Medina, Danny Allen, John Carter

Williams, on behalf of themselves, and all others similarly situated vs. Enhanced Recovery

Company, LLC dba ERC which was assigned Case No. 2:15-cv-14342.

2.02. “Agreement” means this Settlement Agreement and Release.

2.03. “Approved Claim” means a claim submitted by a Settlement Class Member that is

submitted timely and in accordance with the directions required for submitting a claim pursuant to

Sections 10.02 and 10.03 of the Agreement.

2.04. “CAFA Notice” means the notice required by 28 U.S.C. Section 1715(b).

2.05. “Claim Form” means the document on the Settlement Website that can be

downloaded by a Settlement Class Member if she or he wants to submit a claim by mail.

2.06. “Claims Administrator” shall mean Kurtzman Carson Consultants, LLC (“KCC”).

2.07. “Claims Deadline” means 90 days from mailing of the Postcard Notice.

2.08. “Class Counsel” means Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of

The Law Offices of Ronald A. Marron, Abbas Kazerounian and Mona Amini of Kazerouni Law

Group, APC, Joshua B. Swigart of Hyde & Swigart, APC, and Todd Friedman of The Law Offices

of Todd M. Friedman, PC.

2.09. “Class List” means the list of cellular phone numbers called in which calls were

placed as identified from records maintained by ERC, consistent with the definition of the

Settlement Class. In order to be a Settlement Class Member, the cellular telephone number of the

claimant must be on the Class List.

2.10. “Class Period” means August 7, 2014 through December 31, 2017, inclusive.

2.11. “Court” means the United States District Court for the Southern District of Florida,

and the U.S. District Judge Jose E. Martinez to which the Action is assigned.

2.12. “ERC” means Enhanced Recovery Company LLC, including any of its divisions.

2.13. “Effective Date” means the first business day after which all of the events and

conditions specified in Section 17.01 have been met and have occurred.

2.14. “Final Approval Hearing” means the hearing held by the Court to determine

whether to finally approve the settlement of this Action as set forth in this Agreement as fair,

reasonable and adequate.


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2.15. “Final Judgment” means the Court's order and final judgment affirming its prior

certification of the Settlement Class and providing final approval of the Agreement as fair,

reasonable and adequate, and such other relief as jointly requested by the Parties and granted by

the Court.

2.16. “Funding Date” means the date, which shall be no later than five (5) business days

after the Effective Date, on which ERC shall make the payments of the Settlement Fund due

pursuant to Section 8.04.

2.17. “Notice” means the notices to be provided to Settlement Class Members as set forth

in Section 9, including, without limitation, the Postcard Notice and the Website Notice to be posted

on the Settlement Website, as described in Sections 9.01 through 9.07. The forms of the Postcard

Notice and the Website Notice will comply with notice requirements of Rule 23 of the Federal

Rules of Civil Procedure.

2.18. “Objection Deadline” means ten (10) days after the Claims Deadline.

2.19. “Opt-Out Deadline” means ten (10) days after the Claims Deadline.

2.20. “Person” shall mean, without limitation, any individual and his or her spouse, heirs,

successors, representatives, and assigns.

2.21. “Plaintiffs” means Sherryl Medina, Danny Allen and John Carter Williams, for

purposes of this settlement only.

2.22. “Postcard Notice” means the notice of settlement sent in a postcard format

summarizing the terms of the settlement and advising Settlement Class Members of their options

in submitting a claim, excluding themselves, or objecting to the settlement.

2.23. “Preliminary Approval Order” means the Court's Order entered in connection with

the Preliminary Approval Hearing.

2.24. “Released Claims” means those claims released in Section 16.

2.25. “Released Parties” means Enhanced Recovery Company, LLC and its predecessors,

successors, assigns, parents, subsidiaries, divisions, departments, vendors, clients, principals, and

agents, and any and all past, present, and future officers, directors, employees, stockholders,

successors, attorneys, insurers, reinsurers, claim service managers, and subrogees of any of the

foregoing, relative to the Released Claims. For the avoidance of any doubt, the term Released

Parties includes, without limitation, the persons, entities, creditors and clients on whose behalf

ERC initiated the telephone calls at issue in this Action.


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2.26. “Releasing Parties” means Plaintiffs, all Settlement Class Members, and their

respective present or past estates, heirs, assigns, successors, agents, attorneys, executors, and any

other representatives of any of these Persons and entities, regardless of whether that Person

submitted a Claim Form. “Releasing Parties” includes, without limitation, any person who submits

a Claim Form and receives a payment under the Agreement, regardless of whether that Person

otherwise satisfies the requirements of a Settlement Class Member. For the avoidance of any

doubt, Releasing Parties includes, without limitation, the subscriber to, and any customary user of,

the subject telephone number identified in the Class List.

2.27. “Settlement Class” refers to the following: All persons in the United States who (1)

were called one or more times by ERC, (2) on a Sprint, PayPal or AT&T account (3) through

LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party Connect, (4) on his or her cellular

telephone(s), (5) and that number was designated as a wrong number or bad number, (6) from

August 7, 2014 through December 31, 2017, and (7) whose telephone numbers are identified in

the Class List.

Excluded from the Settlement Class are ERC, its parent companies, affiliates or

subsidiaries, or any entities in which such companies have a controlling interest; and any

employees thereof; the judge or magistrate judge to whom the Action is assigned and any member

of those judges' staffs and immediate families, and any persons who timely and validly request

exclusion from the Settlement Class. ERC represents that there are approximately 156,769 persons

in the Settlement Class. This number will be verified through confirmatory discovery.

2.28. “Settlement Class Member” means a Person who falls within the definition of the

Settlement Class as set forth in Section 2.27 above and who has not submitted a valid request for

exclusion.

2.29. “Settlement Costs” means all costs incurred in the litigation by the Plaintiffs, the

Class and their attorneys, including but not limited to attorneys' fees incurred representing the

Plaintiffs and the Class, their costs of suit, cost of litigation, cost of notice and claims

administration, and all other costs incurred in this Action by or on behalf of the Class.

2.30. “Settlement Fund” means the sum of one million four hundred and fifty thousand

dollars ($1,450,000.00) that ERC agrees to pay to settle this Action in full. The Settlement Fund

shall be used for Settlement Costs and all amounts to be paid to Settlement Class Members and

Class Counsel under this Agreement, including any incentive award to the Class Representatives,


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and any fee award to Class Counsel. Under no circumstances shall ERC be required to pay any

amount in excess of the $1,450,000.00 Settlement Fund to resolve the Action. The Settlement

Fund shall be maintained in an interest-bearing account if possible, at a bank chosen by the Claims

Administrator which is insured by the Federal Deposit Insurance Corporation and that has total

assets of at least five-hundred million dollars ($500,000,000) and a short-term deposit rating of at

least P-1 (Moody’s) or A-1 (Standard & Poor’s).

2.31. “Settlement Website” means the Internet website operated by the Claims

Administrator as described in Section 9.04.

2.32. “TCPA” means the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.,

and any regulations or rulings promulgated under it.

2.33. “Website Notice” means the long-form of Notice describing the terms of this

Agreement in a question and answer format, which will be made available on the Settlement

Website as described in Section 9.03, informing the Settlement Class Members in detail of their

rights and obligations related to this Settlement, and advise them how to file a claim, to exclude

themselves from the settlement, or to object.

BOTH SIDES RECOMMEND APPROVAL OF THE SETTLEMENT

3.01. ERC’s Position on the Conditional Certification of Settlement Class. ERC disputes

that a class could be properly certified to litigate the claims asserted in this Action. However,

solely for purposes of avoiding the expense and inconvenience of further litigation, ERC does not

oppose and agrees to certification of the Class defined in Section 2.27, for settlement purposes

only, pursuant to Fed. R. Civ. P. 23(b)(3). Preliminary certification of the Class for settlement

purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor

would ERC be precluded from challenging class certification in further proceedings in the Action

or in any other action if the Settlement is not finalized or finally approved. If the Settlement is not

ultimately finally approved by the Court, the certification of the Class will be void, and no doctrine

of waiver, estoppel or preclusion will be asserted in any proceedings involving ERC. No

agreements made by or entered into by ERC in connection with the Agreement may be used by

Plaintiffs, any Person in the Class or any other Person, to establish any of the elements of class

certification in any litigated certification proceedings, whether in this Action or any other judicial

proceeding, or otherwise.

3.02. Plaintiffs’ Belief in the Merits of Case. Plaintiffs believe that the claims asserted


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in the Action have merit and that the evidence developed to date supports those claims. This

Agreement shall in no event be construed or deemed to be evidence of or an admission or

concession on the part of Plaintiffs that there is any infirmity in the claims asserted by Plaintiffs,

or that there is any merit whatsoever to any of the contentions and defenses that ERC has asserted.

3.03. Plaintiffs Recognize the Benefits of Settlement. Plaintiffs recognize and

acknowledge the expense and amount of time that would be required to continue to pursue the

Action against ERC, as well as the uncertainty, risk and difficulties of proof inherent in prosecuting

such claims on behalf of the Class. Plaintiffs have concluded that it is desirable that the Action

and any Released Claims be fully and finally settled and released as set forth in this Agreement.

Plaintiffs and Class Counsel believe that this Agreement confers substantial benefits upon the

Class and is in the best interests of individual Settlement Class Members.

CLASS COUNSEL AND CLASS REPRESENTATIVE

4.01. Class Representatives and Class Counsel Appointment. For settlement

purposes, and subject to Court approval, Sherryl Medina, Danny Allen and John Carter Williams

are appointed as the Class Representatives for the Class. The law firms appointed as Class Counsel

for the Settlement Class are as follows: The Law Offices of Ronald A. Marron, Kazerouni Law

Group, APC, Hyde & Swigart, APC, and The Law Offices of Todd Friedman, PC.

SETTLEMENT TERMS AND BENEFITS TO THE SETTLEMENT CLASS

5.01. Total Payment. ERC shall pay $1,450,000.00 to settle the Action and obtain a full

release from the Releasing Parties of all Released Claims. The Settlement Fund established by

ERC will be used to pay Approved Claims and any and all Settlement Costs. Settlement Class

Members will be eligible for a cash payment, the amount of which is dependent upon the number

of Approved Claims.

5.02. Amount Paid per Claim. The amount paid per Approved Claim shall be divided

among the approved claimants on a pro rata basis from the amount remaining in the Settlement

Fund after payment of all Settlement Costs from the Settlement Fund.

5.03. Qualifying for Payment. Settlement Class Members shall be entitled to submit a

claim if their cellular phone number is on the Class List as a phone number that received a

telephone call during the Class Period. Only one claim for each phone number called shall be

permitted.

5.04. Account Changes to Block Automatic Dialing of Cellular Telephone Numbers and


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Systemically Code Borrower's Consent. As an additional benefit to all Settlement Class Members,

ERC has developed significant enhancements to its existing policies and procedures, as necessary,

(1) to block identifiable cellular telephone numbers from being contacted via LiveVox Blast,

LiveVox Quick Connect or LiveVox Right Party Connect , and (2) to require that if any person

revokes his or her consent by any commercially reasonable means, that person shall not receive

any further calls from ERC on his or her cellular telephone via an automatic telephone dialing

system and/or an artificial or prerecorded voice. These procedures were developed and

implemented during the Class Period, at least in part, because of this Action.

ATTORNEYS' FEES, COSTS, AND PAYMENT TO CLASS REPRESENTATIVES

6.01. Attorneys’ Fees and Costs. Class Counsel shall move the Court for an award of

attorneys' fees and expenses to be paid from the Settlement Fund. Class Counsel has agreed, with

no consideration from ERC, to limit their request for fees to no more 33% of the Settlement Fund.

Payment of any award of attorneys’ fees and costs shall be made from the Settlement Fund, and

not in addition thereto. Should the Court award less than the amount sought by Class Counsel, the

difference in the amount sought and the amount ultimately awarded pursuant to this Section shall

remain in the Settlement Fund to be distributed to Settlement Class Members with Approved

Claims. Upon appropriate Court order so providing, any attorneys’ fees and costs awarded to

Class Counsel by the Court shall be paid by the Claims Administrator from the Settlement Fund

no later than five (5) business days after the Funding Date.

6.02. Incentive Award. The Class Representatives shall be paid an incentive award for

the time and effort they have personally invested in this Action, upon approval by the Court. ERC

shall not object to such incentive award to be paid to each Plaintiff from the Settlement Fund,

provided the incentive award to each Plaintiff does not exceed $7,500, subject to Court approval.

Within five (5) business days after the Funding Date, the Claims Administrator shall pay to Class

Counsel the amount of incentive payment awarded by the Court, and Class Counsel shall disburse

such funds to Plaintiffs.

6.03 Settlement Independent of Award of Fees, Costs and Incentive Payments. The

payment of Class Counsel’s attorneys’ fees, costs and the incentive payment set forth above in

Sections 6.01 and 6.02 are subject to and dependent upon the Court’s approval of the Agreement

as fair, reasonable, adequate, and in the best interests of Settlement Class Members. However,

this Agreement is not dependent upon the Court’s approval of Plaintiffs’ or Class Counsel’s


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requests for such payments or awarding the particular amounts sought by Plaintiffs or Class

Counsel. In the event the Court declines Plaintiffs’ or Class Counsel’s requests for attorneys’ fees

and costs or incentive awards, or awards less than the amounts sought by Plaintiffs or Class

Counsel, this Agreement and Release shall continue to be effective and enforceable by the Parties.

PRELIMINARY APPROVAL

7.01. Order of Preliminary Approval. As soon as practicable after the execution of this

Agreement, Plaintiffs shall move the Court for entry of the Preliminary Approval Order. Pursuant

to the motion for preliminary approval, the Plaintiffs will request that:

(a) the Court conditionally certify the Settlement Class for settlement purposes

only and appoint Plaintiffs as class representatives and Class Counsel as counsel for the Settlement

Class for settlement purposes only;

(b) the Court preliminarily approve the settlement and this Agreement as fair,

adequate, and reasonable, and within the reasonable range of possible final approval;

(c) the Court approve the forms of Notice and find that the notice program set

forth herein constitutes the best notice practicable under the circumstances, and satisfies due

process and Rule 23 of the Federal Rules of Civil Procedure;

(d) the Court set the date and time for the Final Approval Hearing, which may

be continued by the Court from time to time without the necessity of further notice; and,

(e) the Court set the Claims Deadline, the Objection Deadline, and the Opt-Out

Deadline.

ADMINISTRATION AND NOTIFICATION PROCESS

8.01. Third-Party Claims Administrator. The Claims Administrator shall be responsible

for all matters relating to the administration of this settlement, as set forth herein. Those

responsibilities include, but are not limited to, obtaining names and addresses for Settlement Class

Members whose addresses are not provided by ERC, including reverse telephone look up,

providing notice to Settlement Class Members, obtaining new addresses for returned mail, setting

up and maintaining the settlement website and toll-free telephone number, fielding inquiries about

the settlement, processing claims, acting as a liaison between Class Members and the Parties

regarding claims and settlement information, approving claims, rejecting any claim form where


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there is evidence of fraud, keeping record of any valid exclusions or objections to the settlement,

directing the mailing of settlement payments to Settlement Class Members, maintaining

reasonably detailed records of exclusion requests and objections, and any other tasks reasonably

required to effectuate the administration of this Agreement. The Claims Administrator will

provide, at minimum, bi-monthly updates on the claims status to counsel for all Parties, and will

respond to the Parties’ questions about the status of the case or other related matters in a timely

manner.

8.02. Class List. To facilitate the notice and claims administration process, ERC and its

counsel will provide to the Claims Administrator and to Class Counsel, in an electronically

searchable and readable format, a Class List that includes the cellular telephone number for each

Settlement Class Member at the time that such call was made and the date of the call. ERC

represents for settlement purposes that there are 156,769 Persons in the Settlement Class

representing that number of unique cellular phone numbers in the Class List. Any personal

information relating to Settlement Class Members provided to the Claims Administrator or Class

Counsel pursuant to this Settlement shall be provided solely for the purpose of providing notice as

provided in this Agreement and allowing Settlement Class Members to recover under this

settlement. Such information shall be kept in strict confidence and subject to the Agreed

Confidentiality Order; shall not be disclosed to any third party other than Plaintiff’s consultant

working with the data; and shall not be used for any other purpose. If the Claims Administrator

obtains any updated contact information from the Settlement Class Members, in the claims process

or otherwise, none of that updated contact information shall be provided to ERC but shall be

maintained solely by the Claims Administrator. However, such information may be provided to

Class Counsel if necessary to facilitate communication between the Settlement Class Member or

claimant about filing claims or other information to assist the Settlement Class Member or

claimant, and to counsel for ERC for the limited purpose of providing additional or supplemental

CAFA Notice as described in Section 9.07.

8.03. Payment of Notice and Claims Administration Costs. All settlement administration

costs, including the Claims Administrator fees, shall be paid directly from the Settlement Fund,

once created. If this Agreement is terminated or fails to become effective as described in Section

17, Plaintiffs and ERC shall be equally responsible for payment to the Claims Administrator of

any claims administration costs necessarily incurred by the Claims Administrator except that, in


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the event this Agreement is terminated at the election of either Plaintiffs or ERC, over the objection

of the other, the party electing termination shall be responsible for such costs.

8.04 Distribution of the Settlement Fund. The Claims Administrator shall distribute the

funds in the Settlement Fund in the following order and within the time period set forth with respect

to each such payment:

(a) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay taxes and tax-related expenses, if any, or, at the

Claims Administrator’s discretion, it shall reserve an amount of the

Settlement Fund sufficient to pay taxes and tax-related expenses as

described in Section 19;

(b) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay to the Class Representatives any incentive award

ordered by the Court, as described in Section 6.02.;

(c) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay to Class Counsel any award of attorneys’ fees,

costs, or expenses ordered by the Court, as described in Section 6.01;

(d) no later than twenty (20) days after the Funding Date, the Claims

Administrator shall be paid for any unreimbursed costs of administration;

(e) no later than thirty (30) days after the Funding Date, the Claims

Administrator shall pay the Settlement Awards to Settlement Class

Members who submitted Approved Claims pursuant to Section 10;

(f) no later than 210 days after the Funding Date, to the extent administratively

feasible, the Claims Administrator shall make a supplemental distribution

to Settlement Class Members who submitted Approved Claims pursuant to

Section 10; and

(g) on the final distribution date, which is the earlier of (i) the date as of which

all the checks for Settlement Awards have been cashed; or (ii) 210 days

after the date on which the last check for a Settlement Award was issued,

the Claims Administrator shall report such checks to the relevant states as

unclaimed funds.


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NOTICES

9.01. Mailing of Postcard Notice. The Claims Administrator shall send the Postcard

Notice to each Settlement Class Member via first class mail within thirty (30) days after entry of

the Preliminary Approval Order, or as soon as practicable thereafter. If sent after the thirty (30)

day period, the ninety (90) day Claims Period shall remain intact. The Claims Administrator shall

use the Class List to obtain each Settlement Class Member's cellular telephone number at the time

when the subject call was made and will do what it believes is reasonable and necessary to obtain

the names and current addresses of the subscribers of the cellular phone numbers prior to mailing

the notice. If and to the extent deemed necessary by the Claims Administrator, the last known

address of Settlement Class Members will be subject to confirmation or updating as follows: (a)

the Claims Administrator may conduct a reasonable search to locate an updated address for any

Class Member whose settlement Notice is returned as undeliverable; (b) the Claims Administrator

shall update addresses based on any forwarding information received from the United States Post

Office; and (c) the Claims Administrator shall update addresses based on information it receives

and through any requests received from Settlement Class Members.

9.02. Re-Mailing of Returned Postcard Notices. Any Postcard Notices that are returned

as non-deliverable with a forwarding address or with an updated address shall promptly be re-

mailed by the Claims Administrator to such forwarding address.

9.03. Website Notice. In addition to the Postcard Notice, the Claims Administrator shall

post on the website a long form of the Notice in a Question and Answer format which sets forth

the details of the settlement, and the rights of Settlement Class Members to participate in the

Settlement, to exclude themselves, or to object to the settlement.

9.04. Settlement Website. Within 30 days of the entry of the Preliminary Approval

Order, the Claims Administrator shall maintain and administer a dedicated settlement website

containing class information and related documents, along with information necessary to file a

claim. At a minimum, such documents shall include this Agreement and exhibits thereto, if any,

the Notice, a Question & Answer Form Notice, the Preliminary Approval Order, a downloadable

Claim Form which may be printed and mailed to the Claims Administrator, an electronic version

of the Claim Form which may be completed and submitted electronically, the operative Complaint,

and when filed, the application for attorneys’ fees and costs and the Final Judgment.


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9.05. Toll Free Telephone Number. Within thirty (30) days after entry of the Preliminary

Approval Order, the Claims Administrator shall set up a toll-free telephone number for submitting

claims and responding to inquiries about the settlement. That telephone number shall be

maintained until the Claims Deadline. After that time, and through the date the Final Judgment is

entered, a recording will advise any caller to the toll-free telephone number that the Claims

Deadline has passed and the details regarding the settlement may be reviewed on the Settlement

Website.

9.06. Publication Notice. The Class Administrator shall cause the publication of the

notice in the print edition of the USA Today on two occasions, both on business days and at least

one week apart, publication to be completed within thirty (30) days after entry of the Preliminary

Approval Order, or as soon as practicable thereafter.

9.07. CAFA Notice. ERC shall be responsible for timely compliance with the Class

Action Fairness Act ("CAFA"), 28 U.S.C. § 1715. ERC shall provide proof of such compliance by

filing a confirming declaration with the Court within 10 court days of completion.

CLAIMS PROCESS

10.01. Potential Claimants. Each Settlement Class Member who does not timely and

validly request exclusion from the Settlement as required in this Agreement shall be entitled to

make a claim. Each Settlement Class Member shall be entitled to make only one claim per cellular

telephone number called, regardless of the number of calls made to that Settlement Class Member's

cellular phone number(s).

10.02. How to Make a Claim. In order to make a claim, a Settlement Class Member must

follow one of the following methods: (a) submit a claim telephonically via the toll-free number;

(b) submit a claim online through the Settlement Website; or (c) submit by first-class mail or

otherwise the completed Claim Form downloaded from the Settlement Website to the Claims

Administrator. All claims must be submitted by the Claims Deadline as set forth in the Postcard

Notice and Website Notice. Any Claim Form postmarked after the Claims Deadline shall be

deemed untimely and an invalid claim.

10.03. How a Claim is Approved. To submit a claim, Settlement Class Members

receiving a Postcard Notice may provide his or her name, a Claim Identification number assigned

to each Postcard Notice, his or her cellular telephone number, and a current address to which the

payment may be sent. If the claimant’s Claim Identification number matches the Claim


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Identification number assigned by the Claims Administrator, that claim will be approved, subject

to the limitation that no more than one claim will be paid for each cellular telephone number

belonging to each Settlement Class Member. Alternatively, if the claimant has no Claim

Identification number, but the claimant’s cellular telephone number is confirmed on the Class list,

the claim will be approved. The Claims Administrator shall configure the claims process to accept

multiple claims submitted under a single cellular telephone number. However, the Claims

Administrator shall implement procedures to identify instances in which more than three claims

are submitted under the same cellular phone number and report such instances to the Parties to

determine proper handling. ERC may take reasonable steps to verify that the claimant was called

at the cellular phone number at issue during the Class Period.

A Settlement Class Member who did not receive a Postcard Notice or does not have a

Claim Identification Number available may submit a claim by providing his or her name, mailing

address, and cellular telephone number(s) that she or he believes may have been called by ERC

during the Class Period. A Settlement Class Member may submit more than one cellular phone

number in connection with a claim until all numbers she or he believes may have been called have

been checked against the Class List, limited to no more than six cellular phone numbers in each

online or telephone submission session. If the submission is by a Claim Form that is mailed in, all

such cellular phone numbers believed to have been called may be included in the Claim Form. The

Claims Administrator shall check those submitted cellular phone numbers against the phone

numbers in the Class List, immediately and electronically, if possible, at the time of the inquiry. If

the claimant’s cellular telephone number matches a cellular telephone number in the Class List,

that claim will be approved, subject to the limitation that no more than one claim will be paid to

the same person for each cellular telephone number called. The provision of any telephone

number during the claims process shall not be used as a means to contact said person in an attempt

to collect on any alleged debts owed, and is solely being provided to confirm (or deny) valid

claims.

A Settlement Class Member can submit more than one claim only if that Settlement Class

Member has more than one cellular telephone number on the Class List. No more than one claim

per Settlement Class Member will be permitted for each cellular telephone number on the Class

List. Except as necessary to resolve issues relating to denied claims pursuant to Section 11.01, or

to evaluate requests for exclusion and/or respond to objections, or for the limited purpose of


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providing additional or supplemental CAFA Notice as described in Section 9.07, the Claims

Administrator shall not provide to ERC, its counsel or any of its agents any identifying

information, including any updated contact information, obtained from the Settlement Class

Members for purposes of facilitating the Class Notice, Settlement Awards, or claims

administration.

CLAIM REVIEW PROCESS

11.01. Review of Approved or Denied Claims. Each Settlement Class Member who does

not exclude himself or herself from the class and who makes a timely claim shall have their claim

reviewed by the Claims Administrator. The Claims Administrator shall review the claims and

advise the Parties, at a minimum, on a bi-monthly basis of the claims that are approved and denied.

Class Counsel shall be entitled to contest the denial of any claims, first through conferring with

the Claims Administrator, and if they are unable to resolve such issues, they may seek assistance

of the Court to resolve the issues at the earliest possible date, and to attempt to have a resolution

before any fairness hearing. However, if those issues are unresolved at the time of the fairness

hearing, that will not prevent the fairness hearing from going forward, with the issues to be

resolved at a later date but within sixty (60) days of the entry of any order regarding the fairness

hearing, including any order for final approval of the settlement.

11.02. Mailing of Settlement Check. The Claims Administrator shall send Settlement

checks to Settlement Class Members who submitted Approved Claims via U.S. mail no later than

thirty (30) days after the Funding Date. If any settlement checks are returned, the Claims

Administrator shall attempt to obtain a new mailing address for that Settlement Class Member by

taking the steps described in Sections 9.01. If, after a second mailing, the settlement check is again

returned, no further efforts need be taken by the Claims Administrator to resend the check. The

Claims Administrator shall advise Class Counsel and counsel for ERC of the names of the

claimants whose checks are returned by the postal service as soon as practicable. Each settlement

check will be negotiable for one hundred and eighty (180) days after it is issued. Any funds not

paid out as the result of uncashed settlement checks shall, to the extent administratively feasible,

be distributed pro rata to Settlement Class Members who submitted Approved Claims via U.S.

mail no later than two hundred and ten (210) days after the Funding Date. Any funds not paid out

as the result of uncashed settlement checks after the first and second distribution, to the extent

applicable, shall be reported to the relevant states as unclaimed funds by the Claims Administrator.


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OPT-OUTS AND OBJECTIONS

12.01. Opting Out of the Settlement. A Settlement Class Member may request to be

excluded from the Settlement Class by sending a complete written request to the Claims

Administrator postmarked on or before the Opt-Out Deadline to be excluded from the Settlement

Class. The complete written request shall include the member’s name, his or her address, the name

of the Action (i.e., Medina v. Enhanced Recovery Company, LLC,), a statement that he or she

wishes to be excluded from the Settlement Class, and either: (1) the Claim Identification Number

on the Postcard Notice, or (2) the cellular telephone number on which he or she received a

telephone call. A request to be excluded that does not include all of the foregoing information,

that is sent to an address other than that designated in the Notice, or that is not postmarked within

the time specified, shall be invalid, and the Person(s) serving such a request shall be deemed to

remain members of the Settlement Class and shall be bound as Settlement Class Members by this

Agreement, if approved. Any member of the Settlement Class who is recognized by the Parties or

the Court as validly excluded from the Settlement Class shall not: (1) be bound by the Final

Judgment; (2) be entitled to relief under this Agreement; (3) gain any rights by virtue of this

Agreement; nor (4) be entitled to object to any aspect of this Agreement. “Mass” or “class”

requests for exclusion shall not be allowed. If more than 250 Persons submit valid requests for

exclusion, ERC has the option of voiding this settlement and proceeding with the litigation, as

provided in Sections 17.02 to 17.05 below.

12.02. Objections. Any Settlement Class Member who intends to object to the fairness of

this settlement must file a written objection with the Court, and provide a copy of the objection to

the Claims Administrator, Class Counsel and counsel for ERC no later than the Objection Deadline

as set forth below:

(a) In the written objection, the Settlement Class Member must state his or her

full name, address, the reasons for his or her objection, and to ensure

membership in the Settlement Class, either: (1) the Claim Identification

Number on the Postcard Notice; or (2) the cellular telephone number(s) on

which he or she received a Telephone Call. Any supporting documents,

evidence, and citations must also be attached to the Objection.

(b) Any Settlement Class Member who objects may appear at the Final

Approval Hearing, either in person or through an attorney hired at the


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Settlement Class Member's own expense, to object to the fairness,

reasonableness, or adequacy of this Agreement or the settlement. A

Settlement Class Member or his or her attorney intending to make an

appearance at the Final Approval Hearing: (a) file a notice of appearance

with the Court no later than ten (10) days prior to the Fairness Hearing, or

as the Court may otherwise direct; and (b) serve a copy of such notice of

appearance on all counsel for all Parties. For any attorney representing an

objector, the attorney shall file a declaration listing all objections previously

filed for anyone, the case name, court, and case number, and how much, if

any amount, was paid in connection with the objection. Any Settlement

Class Member who fails to timely file a written objection with the Court

and notice of his or her intent to appear at the Final Approval Hearing in

accordance with the terms of this Section and as detailed in the Notice, and

at the same time provide copies to designated counsel for the Parties, shall

not be permitted to object to this Agreement at the Final Approval Hearing,

shall be foreclosed from seeking any review of this Agreement by appeal or

other means, and shall be deemed to have waived his or her objections and

be forever barred from making any such objections in the Action or any

other action or proceeding.

FINAL APPROVAL AND JUDGMENT ORDER

13.01. No later than fourteen (14) calendar days prior to the Final Approval Hearing, the

Claims Administrator shall file with the Court and serve on counsel for all Parties a declaration

stating that the Notice required by the Agreement has been completed in accordance with the terms

of the Preliminary Approval Order.

13.02. If the Settlement is approved preliminarily by the Court, and all other conditions

precedent to the settlement have been satisfied, no later than fourteen (14) calendar days prior to

Final Approval Hearing:

(a) The Parties shall jointly request, individually or collectively, that the Court

enter a Final Judgment, with Class Counsel filing a memorandum of points

and authorities in support of the motion; and,


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(b) Counsel for the Class and ERC may file a memorandum addressing any

objections submitted to the Settlement.

13.03. At the Final Approval Hearing, the Court will consider and determine whether the

provisions of this Agreement should be approved, whether the Agreement should be finally

approved as fair, reasonable, and adequate, whether any objections to the Agreement should be

overruled, whether the fee award and incentive payments to the Class Representative should be

approved, and whether a judgment finally approving the Agreement should be entered.

13.04. This Agreement is subject to and conditioned upon the issuance by the Court of a

Final Judgment which grants final approval of this Agreement and:

(a) finds that the Notice provided satisfies the requirements of due process and

Fed. R. Civ. P. 23(e)(1);

(b) finds that Settlement Class Members have been adequately represented by

the Class Representatives and Class Counsel;

(c) finds that the Agreement is fair, reasonable and adequate to the Settlement

Class, that each Settlement Class Member shall be bound by this

Agreement, including the releases in 16.01, and the covenant not to sue in

Section 16.02, and that this Agreement should be and is approved;

(d) dismisses on the merits and with prejudice all claims of the Settlement Class

Members asserted against ERC in the Action;

(e) permanently enjoins each and every Settlement Class Member from

bringing, joining, prosecuting, or continuing to prosecute any Released

Claims against ERC or the Released Parties; and,

(f) retains jurisdiction of all matters relating to the interpretation,

administration, implementation, effectuation and enforcement of this

Settlement.

FINAL JUDGMENT

14.01 The Judgment entered at the Final Approval Hearing approving the Agreement and

determining the fee award and incentive award shall be deemed final one business day following

the latest of the following events: (i) the date upon which the time expires for filing or noticing

any appeal of the Court’s Final Judgment approving this Agreement; (ii) if there is an appeal or

appeals, other than an appeal or appeals solely with respect to the Fee Award and/or incentive


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award, the date of completion, in a manner that finally affirms and leaves in place the Final

Judgment without any material modification, of all proceedings arising out of the appeal or appeals

(including, but not limited to, the expiration of all deadlines for motions for reconsideration or

petitions for review and/or certiorari, all proceedings ordered on remand, and all proceedings

arising out of any subsequent appeal or appeals following decisions on remand); or (iii) the date

of final dismissal of any appeal or the final dismissal of any proceeding on certiorari.

CONFIRMATORY DISCOVERY

15.01. Subject to the Agreed Confidentiality Order, Class Counsel may conduct discovery

to confirm the accuracy of the information provided to them during the course of the litigation and

the Parties’ settlement negotiations. The purpose of that discovery is to confirm (a) the total

number of Settlement Class Members, i.e., cellular telephone numbers to which ERC placed a call

on a Sprint, PayPal or AT&T account, through LiveVox Blast, LiveVox Quick Connect or

LiveVox Right Party Connect, and which numbers were listed as wrong numbers or bad numbers

on the account in which calls were placed, during the Class Period, as identified in the Class List,

(b) how those numbers on the Class List were determined, (c) the process used to determine the

cellular telephone numbers on the Class List, and (d) summary regarding the changes in ERC’s

procedures affecting TCPA compliance as referenced in Paragraph 5.04. This discovery shall all

be subject to the Agreed Confidentiality Order and is to be used solely for purposes of finalizing

this Settlement and, consistent with Section 17 below, may not be used for any other purpose in

the event this Agreement is terminated or is otherwise not fully and finally approved by the Court.

RELEASE OF CLAIMS

16.01. Released Claims. The Releasing Parties hereby release, resolve, relinquish and

discharge each and all of the Released Parties from each of the Released Claims (as defined below).

The Releasing Parties further agree that they will not institute any action or cause of action (in law,

in equity or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent,

which they may have or claim to have, in state or federal court, in arbitration, or with any state,

federal or local government agency or with any administrative or advisory body, arising from or

reasonably related to the Released Claims. The release does not apply to Persons who timely opt-

out of the Settlement.


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(a) “Released Claims” means any and all claims, causes of action, suits,

obligations, debts, demands, agreements, promises, liabilities, damages,

losses, controversies, costs, expenses, and attorneys' fees of any nature

whatsoever, whether based on any federal law, state law, common law,

territorial law, foreign law, 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 Judgment Order, that arise out of or relate in any way to

the Telephone Calls, including but not limited to any claims relative to the

telephone calls under the TCPA and any relevant regulatory or

administrative promulgations, case law, or Federal Communications

Commission regulations or orders implementing or interpreting the TCPA.

The Parties acknowledge and agree that the Released Claims set forth

herein does not release any claims held by the States or other governmental

entities or any claims for TCPA violations for any other telephone calls

placed by entities other than ERC.

16.02. Covenant Not To Sue. The Releasing Parties agree and covenant not to sue any

Released Party with respect to any of the Released Claims, or otherwise to assist others in doing

so, and agree to be forever barred from doing so, in any court of law or equity, or any other forum.

CONDITIONS OF SETTLEMENT, EFFECT OF

DISAPPROVAL, CANCELLATION OR

TERMINATION OF AGREEMENT

17.01. The Effective Date of this Agreement shall not occur unless and until each and

every one of the following events occurs, and shall be the date upon which the last (in time) of the

following events occurs:

(a) This Agreement has been signed by the Parties, Class Counsel and ERC’s

Counsel;


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(b) The Court has entered an order granting Preliminary Approval of the

Agreement;

(c) The Court has entered Final Judgment finally approving the Settlement

Agreement, following notice to the Settlement Class and a Final Approval

Hearing, as provided in the Federal Rules of Civil Procedure, and has

entered the Final Judgment, or a judgment substantially consistent with this

Agreement;

(d) The Final Judgment has become final, by satisfaction of the conditions set

forth in Section 14.01 above; and

(e) The time provided for termination of this Agreement by any Party has

expired with no party having exercised the option of termination.

17.02 If some or all of the conditions specified in Section 17.01 are not met, or in the

event that this Agreement is not approved by the Court, or the settlement set forth in this

Agreement is terminated or fails to become effective in accordance with its terms, then this

Agreement shall be cancelled and terminated subject to Section 17.03, unless Class Counsel and

ERC’s Counsel mutually agree in writing to proceed with this Agreement. Notwithstanding

anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to

Class Counsel set forth above or the incentive award to the Class Representatives, regardless of

the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be

grounds for termination of the Agreement.

17.03 Either Side May Terminate the Agreement. Plaintiffs and ERC shall each have the

right to unilaterally terminate this Agreement by providing written notice of her, their or its election

to do so ("Termination Notice") to all other Parties hereto within ten (10) calendar days of any of

the following occurrences:

(a) the Court rejects, materially modifies, materially amends or changes, or

declines to preliminarily or finally approve the Agreement;

(b) an appellate court reverses the Final Judgment, and the Agreement is not

reinstated without material change by the Court on remand;

(c) any court incorporates into, or deletes or strikes from, or modifies, amends,

or changes, the Preliminary Approval Order, Final Judgment, or the Agreement in a way that


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Plaintiffs or ERC reasonably consider material, unless such modification or amendment is

accepted in writing by all Parties;

(d) the Effective Date does not occur; or

(e) any other ground for termination provided for elsewhere in this Agreement

occurs.

17.04. Termination if Large Number of Opt–Outs. If, at the conclusion of Opt-Out

Deadline, more than 250 Persons have submitted valid requests for exclusion from the Settlement,

ERC shall have, in its sole and absolute discretion, the option to terminate this Agreement within

ten (10) calendar days after the Opt-Out Deadline.

17.05. Revert to Status Quo. If either Plaintiffs or ERC terminate this Agreement as

provided herein, the Agreement shall be of no force and effect and the Parties' rights and defenses

shall be restored, without prejudice, to their respective positions as if this Agreement had never

been executed, any orders entered by the Court in connection with this Agreement shall be vacated,

and this Agreement shall not be used for any purpose whatsoever against any of the Parties.

However, any payments made to the Claims Administrator for services rendered to the date of

termination shall not be refunded.

NO ADMISSION OF LIABILITY

18.01. ERC denies any liability or wrongdoing of any kind associated with the alleged

claims in the operative complaints. ERC has denied and continues to deny each and every material

factual allegation and all claims asserted against them in the Action. Nothing herein shall

constitute an admission by ERC of wrongdoing or liability, or of the truth of any allegations in the

Action. Nothing herein shall constitute an admission by ERC that the Action is properly brought

on a class or representative basis, or that classes may be certified in this Action, other than for

settlement purposes. To this end, the settlement of the Action, the negotiation and execution of

this Agreement, and all acts performed or documents executed pursuant to or in furtherance of the

Settlement: (i) are not and shall not be deemed to be, and may not be used as, an admission or

evidence of any wrongdoing or liability on the part of ERC or of the truth of any of the allegations

in the Action; (ii) are not and shall not be deemed to be, and may not be used as, an admission or

evidence of any fault or omission on the part of ERC in any civil, criminal or administrative

proceeding in any court, arbitration forum, administrative agency or other tribunal; and, (iii) are


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not and shall not be deemed to be and may not be used as an admission of the appropriateness of

these or similar claims for class certification.

18.02. Pursuant to Federal Rules of Evidence Rule 408 and any similar provisions under

the laws of other states, neither this Agreement nor any related documents filed or created in

connection with this Agreement shall be admissible in evidence in any proceeding, except as

necessary to approve, interpret or enforce this Agreement.

TAXES

19.01. Qualified Settlement Fund. The Parties agree that the account into which the

Settlement Fund is deposited is intended to be and will at all times constitute a “qualified settlement

fund” within the meaning of Treas. Reg. §1.468B 1

19.02. Claims Administrator is “Administrator”. For the purpose of §1.468B of the Code

and the Treasury regulations thereunder, the approved Claims Administrator shall be designated

as the “administrator” of the Settlement Fund. The Claims Administrator shall cause to be timely

and properly filed all informational and other tax returns necessary or advisable with respect to the

Settlement Fund (including, without limitation, the returns described in Treas. Reg. §1.468B 2(k)).

Such returns on the income earned by the Settlement Fund shall be first used to pay the expenses

of the Settlement Fund, including without limitation any fees or costs of the Claims Administrator,

with any remaining returns to be paid out of the Settlement Fund as provided in Section 13.3

19.03. Expenses Paid from Fund. Any expenses reasonably incurred by the Claims

Administrator in carrying out the duties described in this Agreement, including fees of tax

attorneys and/or accountants, shall be paid by the Claims Administrator from the Settlement Fund

pursuant to its estimates and invoice for services rendered, in accordance with Section 8.04.

Settlement Fund expenses shall be first paid from any available returns on the income of the

Settlement Fund, and then from the corpus of the Settlement Fund as necessary. Expenses must be

submitted to and approved by Class Counsel prior to withdrawal by the Claims Administrator.

19.04. Responsibility for Taxes on Distribution. Any person or entity that receives a

distribution from the Settlement Fund pursuant to Section 8.04 shall be solely responsible for any

taxes or tax-related expenses owed or incurred by that person or entity by reason of that

distribution. Such taxes and tax-related expenses shall not be paid from the Settlement Fund.

19.05. ERC is Not Responsible. Plaintiffs and Class Counsel shall fully bear all the tax

consequences of any and all benefits received by the Settlement Class Members from ERC in


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connection with this Agreement. Plaintiffs acknowledge that ERC and its attorneys provided no

tax advice related to this Agreement and that ERC may be required to file certain Form 1099 or

other information reports with the United States Internal Revenue Service. Plaintiffs have been

advised to consult with tax counsel of Plaintiffs’ own choice to seek legal and tax advice regarding

the taxability or non-taxability of consideration provided herein. In no event shall ERC or any of

the other Released Parties have any responsibility or liability for taxes or tax-related expenses

arising in connection with the payment or distribution of the Settlement Fund to Plaintiffs, Class

Counsel or any other person or entity, and the Settlement Fund shall indemnify and hold ERC and

the other Released Parties harmless for all such taxes and tax-related expenses (including, without

limitation, taxes and tax-related expenses payable by reason of any such indemnification).

MISCELLANEOUS

20.01. Entire Agreement. This Agreement and any exhibits set forth the entire agreement

and understanding of the Parties with respect to the matters set forth herein, and supersede all prior

negotiations, agreements, arrangements and undertakings with respect to the matters set forth

herein. No representations, warranties or inducements have been made to any party concerning

this Agreement or its exhibits other than the representations, warranties and covenants contained

and memorialized in such documents.

20.02. Governing Law. This Agreement shall be governed by the laws of the State of

Florida.

20.03. Non-Waiver Of Debts/Obligations Owing By Settlement Class Members. The

Parties understand and agree that this Agreement and any terms herein shall not affect in any regard

any debt or obligation owed by any Plaintiffs, Settlement Class Members, or other Persons to ERC

and/or its clients, principals and their related or affiliated entities. This Agreement does not

operate to waive, extinguish, terminate, reduce or affect any debt or obligation owed by Plaintiffs,

Settlement Class Members, or other Persons and shall not impair or limit any right or cause of

action or right to enforce or otherwise collect any underlying debt or amount owed to ERC and its

clients, principals and their related or affiliated entities.

20.04. Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the

Parties to this Agreement, including the Plaintiffs and all Settlement Class Members, for purposes

of the administration and enforcement of this Agreement and the Final Judgment.


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20.05. No Construction Against Drafter. This Agreement was drafted jointly by the

Parties and, in construing and interpreting this Agreement, no provision of this Agreement shall

be construed or interpreted against any Party based upon the contention that this Agreement or a

portion of it was purportedly drafted or prepared by that Party.

20.06. Resolution of Disputes. The Parties shall cooperate in good faith in the

administration of this Settlement. Any unresolved dispute regarding the administration of this

Agreement shall be decided by the Court, or by a mediator upon agreement of the Parties.

20.07. Counterparts. This Agreement may be signed in counterparts and the separate

signature pages executed by the Parties and their counsel may be combined to create a document

binding on all of the Parties and together shall constitute one and the same instrument. Signature

by digital, facsimile, or in PDF format will constitute sufficient execution of this Agreement. A

complete set of original executed counterparts shall be filed with the Court if the Court so requests.

20.08. Time Periods. The time periods and dates described herein are subject to Court

approval and may be modified upon order of the Court or written stipulation of the Parties.

20.09. Authority. Each person executing this Agreement on behalf of any of the Parties

hereto represents that such person has the authority to so execute this Agreement.

20.10. No Oral Modifications. This Agreement may not be amended, modified, altered or

otherwise changed in any manner, except by a writing signed by a duly authorized agent of ERC

and Plaintiff, and approved by the Court.

20.11. Advice of Counsel. The Parties have relied upon the advice and representation of

counsel, selected by them, concerning the claims hereby released. The Parties have read and

understand fully this Agreement and have been fully advised as to the legal effect hereof by counsel

of their own selection and intend to be legally bound by the same.

20.12 Effect of Agreement. Whether the Effective Date occurs or this Agreement is

terminated, neither this Agreement nor the settlement contained herein, nor any act performed or

document executed pursuant to or in furtherance of this Agreement or the settlement:

(a) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them as an admission, concession or evidence of,

the validity of any Released Claims, the truth of any fact alleged by

Plaintiffs, the deficiency of any defense that has been or could have been

asserted in the Action, the violation of any law or statute, the reasonableness


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of the settlement amount or the Fee Award, or of any alleged wrongdoing,

liability, negligence, or fault of the Released Parties, or any of them;

(b) is, may be deemed, or shall be used, offered or received against ERC as, an

admission, concession or evidence of any fault, misrepresentation or

omission with respect to any statement or written document approved or

made by the Released Parties, or any of them;

(c) is, may be deemed, or shall be used, offered or received against Plaintiffs or

the Settlement Class, or each or any of them as an admission, concession or

evidence of, the infirmity or strength of any claims asserted in the Action,

the truth or falsity of any fact alleged by ERC, or the availability or lack of

availability of meritorious defenses to the claims raised in the Action;

(d) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them as an admission or concession with respect

to any liability, negligence, fault or wrongdoing as against any Released

Parties, in any civil, criminal or administrative proceeding in any court,

administrative agency or other tribunal. However, the settlement, this

Agreement, and any acts performed and/or documents executed in

furtherance of or pursuant to this Agreement and/or settlement may be used

in any proceedings as may be necessary to effectuate the provisions of this

Agreement. Moreover, if this Agreement is approved by the Court, any

party or any of the Released Parties may file this Agreement and/or the Final

Judgment in any action that may be brought against such party or Parties 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;

(e) is, may be deemed, or shall be construed against Plaintiffs, or each or any

of them, or against the Released Parties, or each or any of them, as an

admission or concession that the consideration to be given hereunder

represents an amount equal to, less than or greater than that amount that

could have or would have been recovered after trial; and


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(f) is, may be deemed, or shall be construed as or received in evidence as an

admission or concession against Plaintiffs and the Settlement Class, or each

and any of them, or against the Released Parties, or each or any of them,

that any of Plaintiff’s claims are with or without merit or that damages

recoverable in the Action would have exceeded or would have been less

than any particular amount.

20.13 No Waiver. The waiver by one Party of any breach of this Agreement by any other

Party shall not be deemed as a waiver of any other prior or subsequent breaches of this Agreement.

20.14 Force of Terms. The breach of one or more provisions of this Agreement by one

party shall not be sufficient to void any other terms of this Agreement, which shall remain in force.

However, the non-breaching party shall retain all of his, her or its rights under applicable law to

obtain a remedy for such breach.

20.15 Exhibits. If there are any exhibits attached to this Agreement, all of the exhibits

are material and integral parts hereof and are fully incorporated herein by reference. The Parties

understand portions of those exhibits may be modified as deemed necessary by the Parties and the

Court, and so long as there is no material change in the terms, the Parties shall not refuse to accept

such modifications.

20.16 Amendment. This Agreement may be amended or modified only by a written

instrument signed by or on behalf of all Parties or their respective successors-in-interest.

20.17 Fees and Costs. Except as otherwise provided herein, each Party shall bear its own

attorneys’ fees and costs incurred in any way related to the Action.

20.18 Warranty. Plaintiffs represent and warrant that they have not assigned any claim

or right or interest relating to any of the Released Claims against the Released Parties to any other

Person or party and that they are fully entitled to release the same. ERC warrants that the person

signing this Agreement on its behalf has full authority to do so.

20.19. Notices. Unless otherwise stated herein, any notice required or provided for under

this Agreement shall be in writing and may be sent by electronic mail, fax or hand delivery, postage

prepaid, as follows:

If to Class Counsel:

Ronald A. Marron

Alexis M. Wood


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Kas L. Gallucci

LAW OFFICES OF RONALD A. MARRON

651 Arroyo Drive

San Diego, CA 92103

Telephone: 619-696-9006

[email protected]

[email protected]

[email protected]

Abbas Kazerounian

Mona Amini

KAZEROUNI LAW GROUP, APC

245 Fischer Avenue, Unit D1

Costa Mesa, CA 92626

Telephone: 800-400-6808

[email protected]

[email protected]

Joshua B. Swigart

HYDE & SWIGART, APC

2221 Camino Del Rio South, Suite 101

San Diego, CA 92108

Telephone: 619-233-7770

[email protected]

Todd Friedman

LAW OFFICES OF TODD FRIEDMAN, PC

21550 Oxnard Street, #780

Woodland Hills, CA 91367

Telephone: 877-206-4741

[email protected]

If to counsel for Defendant Enhanced Recovery Company, LLC

Scott Gallagher

Richard Rivera

SMITH GAMBRELL & RUSSELL LLP

50 N. Laura Street, Suite 2600

Jacksonville, Florida 32202

Telephone: 904-598-6111

[email protected]

[email protected]






APPROVED AS TO FORM:

�� I

Ronald A. Marron LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: 619-696-9006

245 Fischer Avenue, Unit Dl Costa Mesa, CA 92626 Telephone: 800-400-6808

Joshua B. Swigart HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego CA 92108 Telephone: 619-233-7770

Todd Friedman LAW OFFICES OF TODD FRIEDMAN PC 21550 Oxnard Street, #780 Woodland Hills, CA 91367 Telephone: 877-206-4741

Attorneys for Plaintiffs Medina, Allen and Williams, and the Settlement Class

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Scott S. Gallagher SMITH, GAMBRELL & RUSSELL, LLP 50 N. Laura Street, Suite 2600 Jacksonville, Florida 32202 Telephone: 904-598-6111

For Enhanced Recovery Company, LLC.




UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA



Defendant.

Case No. 15-CV-14342-MARTINEZ-MAYNARD

DECLARATION OF H. JACOB HACK ON BEHALF OF SETTLEMENT ADMINISTRATOR REGARDING NOTICE

DECLARATION OF H. JACOB HACKON BEHALF OF SETTLEMENT

ADMINISTRATOR REGARDING NOTICE

I, H. Jacob Hack, declare:

1. I am employed as a senior project manager by Kurtzman Carson Consultants

(“KCC”), a nationally-recognized notice and claims administration firm located at 462 South

4th Street, Louisville, KY 40202. KCC was retained as the Settlement Administrator in this

case, and as the project manager, I oversee all aspects of the administrative services provided.

I submit this declaration regarding the Medina v. Enhanced Recovery Company LLC dba ERC,

Notice Program.

2. On or about December 19, 2018, defendant provided KCC with Settlement

Class Data consisting of an excel file that contained the cell phone carrier, phone number, and

date dialed totaling 156,769 records. KCC performed a reverse phone lookup to obtain a name

and mailing address. After running the reverse phone lookup, 33,920 records remained

without a mailing address. Additionally, 121 records were identified as duplicate mailing


2

addresses and discarded for purpose of notice. There remained 122,728 records with a valid

mailing address for mailing notice.

3. On January 11, 2019, KCC established a website for this settlement at

www.MedinaTCPAClassAction.com (“Settlement Website”). On the Settlement Website,

visitors can view answers to frequently asked questions, download important case documents

including the settlement agreement, preliminary approval order, notice, and claim form.

Visitors could also submit claims online.

4. On January 11, 2019, KCC established a toll free telephone number that

Settlement Class Members could call and listen to answers to frequently asked questions and

request a Claim Form be sent to them.

5. On January 11, 2019, KCC mailed notice in the form of a single postcard notice

(“Postcard Notice”) to 122,728 Settlement Class Members whose physical address was

available. A true and correct copy of the Postcard Notice is attached as Exhibit A.

6. KCC caused Indirect Notice in the form of a quarter page legal notice published

in USA Today on January 9 and January 16, 2019 (“Publication Notice”). A tear sheet of the

“Publication Notice” is attached as Exhibit B.

7. To date, KCC has received a total of 19,949 Postcard Notices returned by the U.S.

Postal Service without forwarding address information. KCC ran a search for an updated

address for Class Members whose Postcard Notice was returned as undeliverable, and updated

and re-mailed the Postcard Notice to 2,848 Settlement Class Members.

8. The deadline to submit a request for exclusion (“opt-out”) was April 22, 2019.

To date, KCC has received 2 timely opt-outs and 0 late opt-outs. A list of opt-outs is attached

as Exhibit C.


3

9. The deadline to submit an objection to the settlement was April 22, 2019. To

date, KCC has received 0 objections.

10. The deadline to submit a Claim Form was April 11, 2019. To date, KCC has

received 4,729 timely and 0 late Claims. Of those, 3,922 claims were submitted online and 807

claims were submitted via postal mail. The claims have been reviewed and a total of 4,078

claims are valid. The 651 records that did not provide a match back to the data provided by

defendant, and will be sent a deficiency letter.

11. The cost of administration in total is estimated to be up to $205,625.11. This will

include all costs incurred by KCC to date, as well as estimated costs involved in completing the

settlement administration.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on May 22nd, 2019.

_________________________

H. Jacob Hack


EXHIBIT A


Medina v. Enhanced Recovery Company, LLC Claims Administratorc/o KCC Class Action ServicesP.O. Box 404000Louisville, KY 40233-4000

Medina v. Enhanced Recovery Company Telephone Consumer Protection Act Litigation

United States District Court for the Southern District of Florida, Case No. 2:15-cv-14342 (the “Court”).

If you were called on your cellphone by Enhanced Recovery Company (“ERC”) on a Sprint, PayPal or AT&T account, from August 7, 2014 through December 31, 2017, your rights could be affected by a class action settlement. A settlement has been

proposed in the above named lawsuit.

See reverse for details.

For complete information, visit www.MedinaTCPAClassAction.com

or call 1-866-447-6215.

LEGAL NOTICE

ECM

��Postal Service: Please Do Not Mark Barcode

ECM-<<Claim8>>-<<CkDig>>

Claim ID: <<Claim8>> PIN Code: <<PinCode>>

«FirstNAME» «LastNAME»«ADDR1» «ADDR2»«CITY», «STATE» «ZIP»«FCOUNTRY»

2D


A Settlement has been reached in a class action lawsuit, Medina v. Enhanced Recovery Company, LLC., U.S. District Court for the Southern District of Florida, Case No. 2:15-cv-14342 (the “Lawsuit”). Plaintiffs allege ERC (“Defendant”) violated the Telephone Consumer Protection Act by calling consumers on their cellular phones without their prior express consent using an automatic telephone dialing system or using DUWL¿FLDO�RU�SUHUHFRUGHG�YRLFH�PHVVDJHV��RQ�6SULQW��3D\3DO�RU�$77�DFFRXQWV��'HIHQGDQW�GHQLHV�DQ\�ZURQJGRLQJ��GHQLHV�WKDW�LW�YLRODWHG�DQ\�laws, and maintains that its calls were made with consent. For complete information visit: www.MedinaTCPAClassAction.com.

Who is included?��5HFRUGV�KDYH�DOUHDG\�LGHQWL¿HG�\RX�DV�D�PHPEHU�RI�WKH�6HWWOHPHQW�&ODVV��ZKLFK�HQWLWOHV�\RX�WR�PDNH�D�FODLP�DQG�SDUWLFLSDWH�in this Settlement. The “Settlement Class” includes anyone who received a call from ERC on their cell phone, made on a certain type of SKRQH�GLDOHU�V\VWHP�RU�IHDWXULQJ�D�SUHUHFRUGHG�RU�DUWL¿FLDO�YRLFH��ZKRVH�QXPEHUV�ZHUH�GHVLJQDWHG�DV�D�ZURQJ�QXPEHU�RU�EDG�QXPEHU�IURP� August 7, 2014 through December 31, 2017.

What does the Settlement provide? If approved by the Court, Defendant will provide a $1,450,000 Settlement Fund. After deducting attorneys’ fees (up to 33% of the Settlement Fund or $478,500) and litigation costs ($25,000), a $7,500 incentive payment to each Class Representative, and the costs of notice and claims administration (not to exceed $235,000), the Settlement Fund will be divided equally among all Settlement Class Members that submit valid claims.

How do I get a payment? Submit a claim online at www.MedinaTCPAClassAction.com, by calling 1-866-447-6215, or by mail by downloading a Claim Form from the website and mailing it to the address on the form postmarked by April 11, 2019. On the front of this SRVWFDUG� LV� D�&ODLP� ,GHQWL¿FDWLRQ�QXPEHU��6LPSO\� LQFOXGH� WKDW� QXPEHU� DQG�\RXU� FXUUHQW� DGGUHVV�� LI� QHHGHG��ZKHQ�¿OLQJ�\RXU� FODLP��7KH�information you provide to the Claims Administrator will not be provided to Defendant.

What are my options? You can submit a claim for a Settlement payment as explained above. But if you do not want to be legally bound by this Settlement, you must exclude yourself by April 22, 2019. Unless you exclude yourself, you will not be able to sue Defendant for any claim made in this lawsuit or released by the Settlement Agreement. Another option if you do not exclude yourself is that you may object to the Settlement and notify the Court that you or your lawyer, at your own expense, intends to appear at the Court’s fairness hearing. Objections are due by April 22, 2019��6SHFL¿F�LQVWUXFWLRQV�DERXW�KRZ�WR�REMHFW�RU�H[FOXGH�\RXUVHOI��DQG�D�FRS\�RI�WKH�6HWWOHPHQW�$JUHHPHQW�DUH�DYDLODEOH�at www.MedinaTCPAClassAction.com.

The Fairness Hearing. The U.S. District Court for the Southern District of Florida, located at 400 North Miami Avenue, Miami, Florida 33128, will conduct a fairness hearing on June 19, 2019 at 1:30 p.m., in Courtroom 10-1. At this hearing, the Court will decide whether to approve: the Settlement; Class Counsel’s request for attorneys’ fees and litigation costs; the costs of notice and claims administration; and the incentive payments to the Class Representatives.

Want More Information? Go to www.MedinaTCPAClassAction.com, call 1-866-447-6215, or write to Medina v. Enhanced Recovery Company, LLC Claims Administrator, c/o KCC Class Action Services, P.O. Box 404000, Louisville, KY 40233-4000.


EXHIBIT %


4C ❚ WEDNESDAY, JANUARY 9, 2019 ❚ USA TODAY SPORTS

NOTICE

LEGAL NOTICE

LEGAL NOTICE

If you were called on a cellular telephone about a Sprint,PayPal or AT&T account by Enhanced Recovery Company

(“ERC”), you may be entitled to receive a payment. Yourrights may be affected by this class action settlement.

A Settlement has been reached in a class action lawsuit, Medina v. EnhancedRecovery Company, LLC, U.S. District Court for the S.D. of Florida, Case No. 2:15-cv-14342 (the “Lawsuit”). Plaintiffs allege that ERC (“Defendant”) violated theTelephone Consumer Protection Act by calling cellular phone numbers using anautomatic telephone dialing system or an artificial or prerecorded voice. The Courtdid not decide in favor of Plaintiffs or Defendant. Defendant denies any wrongdoing,violation, or liability.

WHO IS INCLUDED? The “Settlement Class” includes all persons in the UnitedStates who received a call on their cellular telephones from ERC, on a Sprint, PayPalor AT&T account, through LiveVox Blast, LiveVox Quick Connect or LiveVox RightParty Connect, and that number was designated as a wrong number or bad number,from August 7, 2014 through December 31, 2017 (the “Class Period”), inclusive, asidentified in the Class List. If you received a postcard in the mail, you are includedin the Settlement Class. If you did not receive a postcard, go to the website or call1-866-447-6215 to determine whether you are included in the Settlement Class.

WHAT DOES THE SETTLEMENT PROVIDE? Defendant will provide a$1,450,000 Settlement Fund. After deducting attorneys’ fees and litigation costs,and the costs of notice and claims administration, that Settlement Fund will bedivided equally among all Settlement Class Members that filed approved claims.

WHAT ARE MY OPTIONS? File a claim online at www.medinatcpaclassaction.com or by calling 1-866-447-6215 by April 12, 2019. If you do not want to belegally bound by this Settlement, you must exclude yourself by April 22, 2019.Unless you exclude yourself, you will not be able to sue the Defendant for any claimmade in this lawsuit or released by the Settlement Agreement. If you do not excludeyourself, you may object and notify the Court that you or your lawyer, at your ownexpense, intends to appear at the Court’s fairness hearing. Objections are due April22, 2019. For more information, including “FAQs” and the Settlement Agreement,go to www.medinatcpaclassaction.com.

THE COURT’S FAIRNESS HEARING. The Court has scheduled a FairnessHearing for June 19, 2019 at 1:30 p.m., at the U.S. District Court, Southern Districtof Florida, in Courtroom 10-1, 400 North Miami Avenue, Miami, Florida 33128,to decide whether to approve: (1) the Settlement; (2) Class Counsel’s request forattorneys’ fees of up to 33% of the Settlement Fund ($478,500) and litigation costsnot to exceed $25,000; (3) costs of notice and claims administration estimated tobe $235,000; and (4) an incentive payment to each Class Representative not toexceed $7,500. Upon final approval, the action will be dismissed with prejudiceand Settlement Class Members who do not request exclusion will have releasedDefendant and related entities as detailed in the Settlement Agreement (available atwww.medinatcpaclassaction.com).

For more information: www.medinatcpaclassaction.com or call 1-866-447-6215.

ERC Claims Administrator, P.O. Box 404000, Louisville, KY 40233-4000

SANTA CLARA, Calif. – Way back inOctober, when Alabama was rolling overopponent after opponent and everyonewas marveling at the Crimson Tide’snew offensive approach, and especiallythe fantastic results, Nick Saban issueda warning.

“Everybody sees the pretty converti-ble or the pretty girls driving it,” he said.“But nobody sees the oil leaking or thebald tires.”

Monday night, the machine malfunc-tioned. After Clemson’s 44-16 victory inthe College Football Playoff nationalchampionship game, all of those issueshe’d worried about were suddenly evi-dent. And so was this:

In the debate whether this was Sa-ban’s best team, we missed that it wasinstead one of his most flawed. Buriedbeneath all of that offense, all year long,was a defense that, by Alabama’s loftystandards, at least was pedestrian.

It didn’t matter for most of the sea-son, as Tua Tagovailoa and all of thoseother talented playmakers routinelyshredded opponents. But Monday,against an offense at least as powerfulas ’Bama’s and a quarterback in TrevorLawrence who is at least as good as Tua,a glaring deficiency was exposed.

Lawrence threw for 347 yards andthree touchdowns. Clemson piled up atotal of 482 yards. Alabama allowed sixplays of at least 20 yards, including TDpasses of 62 and 74 yards. With a four-man rush from a highly regarded line,Lawrence was rarely pressured.

Afterward, the Alabama locker roomwas a mixture of shock and defiance.During postgame interviews, player af-ter player parroted similar lines: Theyjust needed to execute better. Defensiveend Raekwon Davis, as one example,

started with this: “We just gotwhupped.” But then he continued:

“Nobody did their job. The pass rush,the run stop, it wasn’t there. … Weweren’t prepared. It was just us. Itwasn’t anything they were doing. Wekilled ourselves.”

Davis probably didn’t intend to slightLawrence or his teammates. And Daviswasn’t necessarily wrong. Alabama’sdefense did not execute. But it’s be-cause against the best offenses it faced,this season’s unit was not capable of thekind of execution required.

The statistics did not necessarily re-flect it for most of the season. But afterMonday’s loss, Alabama finished theseason ranked 16th in total defense, al-lowing an average of 319.5 yards. In themore telling stat, the Tide allowed al-most 5 yards per play (4.89, 24th).Clemson averaged 7.7.

It was a sharp departure from whatwe’ve seen throughout the Tide’s reign.A very young secondary did not mea-sure up. While Quinnen Williamsemerged as a monster at nose guard, the

defensive front was shy on depth.And attrition on the coaching staff

might have been as important. Amongthe fascinating things about Alabamaduring Saban’s tenure has been how as-sistant coaches change but the Tidekeep rolling along, but we might finallybe seeing the effect of all the departures.

In the last three years, Alabama haslost defensive coordinators Kirby Smartand Jeremy Pruitt to head coaching jobs.So Saban elevated Tosh Lupoi, who hadnever called formations.

“There’s still the old fundamentalthat good pitching beats good hitting,”Saban told USA TODAY in October.“You’ve got to keep from getting beatsometimes before you win.”

That had always been Alabama’s for-mula: defense-first, and the offense willeventually score points. This season,everything got turned upside down.

And for most of the season, thoseleaks weren’t easily seen. It didn’t seemto matter.

But no matter the formula, that’s al-most always been true during Saban’s

tenure. The perception is the SECschedule is a tough gantlet; the reality isAlabama routinely rolls through almostall of it.

The Tide’s defensive issues weren’tcritical until the playoff. Go back a fewdays to that Orange Bowl semifinalagainst Oklahoma. The Crimson Tidegrabbed a 28-0 first-half lead, and it wasover. But in retrospect, the defense wasexposed, even in the win. It took KylerMurray and the Sooners too long tocrank up, and Oklahoma’s defense wastoo terrible for it to matter anyway.

But Saban seemed obviously relievedafter winning the semifinal — did yousee him, almost giddy, tossing orangesto people from that stage during thepostgame trophy presentation? It mighthave been a clue. He was very con-cerned about Oklahoma’s potential todamage the Tide and what might havehappened in a full-on shootout.

Monday, we saw why. Clemson’s de-fense rattled Tagovailoa — and itseemed, Alabama’s coaches, too — intomistakes. When Alabama’s offensecould not keep up, it was over.

When he met Saban at midfield afterthe game, Swinney told his rival, “Seeyou next year,” and he’s probably right.Tagovailoa returns. The offense figuresto be highly potent again. But even withall of those weapons, there will be soul-searching in Tuscaloosa during the off-season, and perhaps some retrofitting,too.

With the bulk of the defense return-ing, as well as the annual infusion ofnew talent, no one should be shocked ifthe Tide are much improved in 2019. Butstaff changes would not be a surprise,either. Nor would at least a slight adjust-ment to the offensive approach. Could’Bama revert to more ball control in or-der to help out the defense?

Monday brought a jarring revelationof what Saban already knew: When aleaky defense finally burst, it left a fab-ulous machine in a smoking heap.

Playoff exposed Alabama’s weaknessClemson’s offense took advantages of deficiencies in Crimson Tide’s defense

George SchroederColumnist

USA TODAY

Receiver Justyn Ross accounted for 153 of Clemson’s 482 yards of offenseagainst Alabama’s defense on Monday night. KYLE TERADA/USA TODAY SPORTS

makes will be a reminder thatwhile the adults in the NCAAsystem are getting rich, the kidswho make it possible are not.

Even those who recoil at theidea of paying college athletesare going to be very uncomfort-able at the idea of Swinney get-ting $6 million-plus a yearwhile his telegenic quarterbackcan’t even get royalties fromthe No. 19 jerseys that will be-come a staple in the wardrobeof every Tigers fan.

This isn’t an argument forthe NFL to open its doors to un-derclassmen. That’s a non-starter, and the courts haveshown no inclination to forcethe NFL to change its rule.

Besides, unlike the NBA orMajor League Baseball, thereare physiological reasons forplayers to stay in collegethrough their junior year. Most,Lawrence included, simplyaren’t big or strong enough yetto contend with the day in, dayout physicality of the NFL.

But that’s not an excuse forthe NCAA and its member in-stitutions to take advantage ofthe “student-athletes.” Whichis exactly what they are doing.

Swinney got a $250,000 bo-nus for winning Mondaynight’s title game, bringing histotal for the season to at least$875,000. In the past threeyears alone, he has earned $2.9 million in bonuses. Hisplayers have gotten souvenir T-shirts and bowl swag that, ifthey’re lucky, includes somegift cards and electronics.

The Alabama players did getpersonalized bobbleheads atthe Orange Bowl, according toSportsBusiness Daily. But godforbid any of them put theirs onEbay to try to make a couple ofbucks.

The inequity in the currentNCAA system has always beenglaring, but Lawrence is goingto make it impossible to ignore.Whether he wants to leave

Clemson early or not is irrele-vant. As the quarterback, he’sboth the force and the face ofthe Tigers, and there must be away to reflect that worth finan-cially.

This isn’t hard to do, either.Allow players to profit off theirnames, images and likenesses.Give players an annuity, basedon the number of years theyplay, and allow them to collectit when they’re, say, 30. Maketheir scholarships open-endedand transferable so they can goto graduate school, or get a de-gree they might actually use,even after their eligibility hasbeen exhausted.

These are just a few of theideas that have been thrownout, and roundly rejected by theNCAA. But either it gets withthe times or some judge is goingto do it for them.

The so-called purists willhowl about amateurism anddestroying the wholesome en-vironment of college athletics.Please. Those days went outthe window when bowl gamesbegan selling naming rightsand schools started buildingathletic facilities that rival theTaj Mahal.

College athletics is a busi-ness, and a big one at that. It’stime the players get a piece ofthe pie.

ArmourContinued from Page 1C

Trevor Lawrence won’t getroyalties from the sales ofNo. 19 Clemson jerseys.MATTHEW EMMONS/USA TODAY

COLLEGE FOOTBALL


EXHIBIT &


ClaimID First Name Last NameECM-100018831 JACQUELIN NORTHECM-100537766 PATRICIA WALTERS





SHERRYL MEDINA, DANNY ALLEN, JOHN

CARTER WILLIAMS, on behalf of themselves,

and all others similarly situated,

Plaintiffs,

vs.

ENHANCED RECOVERY COMPANY, LLC

dba ERC, a Delaware limited liability company,

Defendant.

NO. 2:15-cv-14342-JEM/MAYNARD

[PROPOSED] ORDER GRANTING

FINAL APPROVAL OF CLASS

ACTION SETTLEMENT AND

DISMISSING CLASS PLAINTIFFS’

CLAIMS AND GRANTING

PLAINTIFFS’ INCENTIVE

AWARDS AND REIMBURSEMENT

OF FEES AND EXPENSES TO

CLASS COUNSEL

This Court, having held a Final Approval Hearing on June 19, 2019 at 1:30 p.m., having

provided notice of the hearing in accordance with the Preliminary Approval Order, and having

considered all matters submitted to it in connection with the Final Approval Hearing and otherwise,

and finding no just reason for delay in entry of this Order Granting Final Approval of Class Action

Settlement and Dismissing Class Plaintiffs’ Claims and Granting Plaintiffs’ Incentive Awards and

Reimbursement of Fees and Expenses to Class Counsel (the “Final Judgment” or this “Order”)

and good cause appearing therefore,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Unless otherwise defined, all capitalized terms in this Final Judgment shall have

the same meaning as they do in the Settlement Agreement (Dkt. 121-1).

2. The Court has jurisdiction over the subject matter of the Action and over the Parties,

including all Settlement Class Members with respect to the Settlement Class previously as follows:

“All persons in the United States who (1) were called one or more

times by ERC, (2) on a Sprint, PayPal or AT&T account (3) through

LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party

Connect, (4) on his or her cellular telephone(s), (5) and that number


2

was designed as a wrong number or bad number, (6) from August 7,

2014 through August 29, 2016, and (7) whose telephone numbers

are identified in the Class List.”

3. The Court finds that the Settlement Agreement was negotiated at arm’s-length by

experienced counsel who were fully informed of the facts and circumstances of the Action and of

the strengths and weaknesses of their respective positions. Further, settlement occurred only after

the parties negotiated over a period of many months, with the assistance of an experienced

mediator. Counsel for the Parties were therefore well positioned to evaluate the benefits of the

Settlement Agreement, taking into account the expense, risk, and uncertainty of protracted

litigation with respect to numerous difficult questions of fact and law.

4. The Court finally certifies the Settlement Class for settlement purposes and finds,

for settlement purposes, that the Consolidated Litigation satisfies all the requirements of Rule 23

of the Federal Rules of Civil Procedure. Specifically: (a) the number of Settlement Class Members

is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law

and fact common to the Settlement Class; (c) the claims of the Plaintiffs are typical of the claims

of the Settlement Class they seek to represent; (d) Plaintiffs have and will continue to fairly and

adequately represent the interests of the Settlement Class for purposes of entering into the

Settlement Agreement; (e) the questions of law and fact common to the Settlement Class Members

predominate over any questions affecting any individual Settlement Class Member; (f) the

Settlement Class is ascertainable; and (g) a class action settlement is superior to the other available

methods for the fair and efficient adjudication of the controversy.

5. The Court finally appoints Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci

of The Law Offices of Ronald A. Marron, Abbas Kazerounian and Mona Amini of Kazerouni Law


3

Group, APC, Joshua B. Swigart of Hyde & Swigart, APC, and Todd Friedman of The Law Offices

of Todd M. Friedman, PC, as Class Counsel for the Settlement Class.

6. The Court finally confirms and designates Plaintiffs SHERRYL MEDINA,

DANNY ALLEN, and JOHN CARTER WILLIAMS as the Class Representatives.

7. The Court makes the following findings and conclusions regarding notice to the

Settlement Class:

a. The Class Notice was disseminated to persons in the Settlement Class in

accordance with the terms of the Settlement Agreement and the Class Notice and its dissemination

were in compliance with the Court’s Preliminary Approval Order;

b. The Class Notice: (i) constituted the best practicable notice under the

circumstances to potential Settlement Class Members, (ii) constituted notice that was reasonably

calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the

Action, their right to object or to exclude themselves from the proposed Settlement, and their right

to appear at the Final Approval Hearing, (iii) was reasonable and constituted due, adequate, and

sufficient individual notice to all persons entitled to be provided with notice, and (iv) complied

fully with the requirements of Fed. R. Civ. P. 23, the United States Constitution, the Rules of this

Court, and any other applicable law.

c. The Court finds that Defendant has complied with its notice obligations

under the Class Action Fairness Act, 28 U.S.C. § 1715, in connection with the proposed

Settlement.

8. The Court finally approves the Settlement Agreement as fair, reasonable and

adequate pursuant to Fed. R. Civ. P. 23(e). The terms and provisions of the Settlement Agreement,

including all exhibits thereto, have been entered into in good faith and are hereby fully and finally


4

approved as fair, reasonable, and adequate as to, and in the best interests of, each of the Parties

and the Settlement Class Members.

9. The Court approves the plan of distribution for the Settlement Fund as set forth in

the Settlement Agreement. The Settlement Administrator is ordered to comply with the terms of

the Agreement with respect to distribution of Settlement Relief, including a second payment, if

feasible. Any funds not paid out as a result of uncashed settlement checks after the first and second

distribution, to the extent applicable, shall be reported to the relevant states unclaimed funds by

the Claims Administrator.

10. By incorporating the Agreement and its terms herein, this Court determines that

this Final Approval Order complies in all respects with Federal Rule of Civil Procedure 65(d)(1).

11. Class Counsel have moved pursuant to Fed. R. Civ. P. 23(h) and 52(a) for an award

of attorneys’ fees and reimbursement of reasonable expenses. Pursuant to Rules 23(h)(3) and 52(a)

this Court makes the following findings of fact and conclusions of law:

a. that the Settlement confers substantial benefits on the Settlement Class

Members;

b. that the value conferred on the Settlement Class is immediate and readily

quantifiable;

c. that within 60 days after the Funding Date, Settlement Class Members who

have submitted valid Claim Forms will receive cash payments that represent a significant portion

of the damages that would be available to them were they to prevail in an individual action under

the TCPA;

d. that Class Counsel vigorously and effectively pursued the Settlement Class

Members’ claims before this Court in this complex case;


5

e. that the Class Settlement was obtained as a direct result of Class Counsel’s

advocacy;

f. that the Class Settlement was reached following extensive negotiation

between Class Counsel and Counsel for Defendants, and was negotiated in good faith and in the

absence of collusion;

g. that counsel who recover a common benefit for persons other than himself

or his client is entitled to reasonable attorneys’ fee from the Settlement Fund as a whole. See,

e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Blum v. Stenson, 465 U.S. 866, 900

n.16 (1984).

12. Accordingly, Class Counsel are hereby awarded $________________ for

attorneys’ fees and $_____________ in litigation expenses from the Settlement Fund, which this

Court finds to be fair and reasonable, and which amount shall be paid to Class Counsel from the

Settlement Fund in accordance with the terms of the Settlement Agreement. Class Counsel shall

be responsible for allocating and shall allocate this award of attorneys’ fees, costs, and expenses

that are awarded amongst and between Class Counsel.

13. The Class Representatives, as identified in the Preliminary Approval Order, are

each hereby each granted an Incentive Award in the amount of $_______________________ for

their respective efforts in this case on behalf, and for the benefit, of the Settlement Class.

14. The terms of the Settlement Agreement and of this Final Approval Order, including

all exhibits thereto, shall be forever binding in all pending and future lawsuits maintained by the

Plaintiffs and all other Class Members, and anyone claiming through them such as heirs,

administrators, successors, and assigns.


6

15. The Releases, which are set forth in Section 16 of the Settlement Agreement and

which are also set forth below, are expressly incorporated herein in all respects and are effective

as of the date of this Order; and the Released Persons are fully, conclusively, irrevocably, forever,

and finally released, relinquished, and discharged by the Releasing Persons from all Released

Claims.

a. The Settlement Agreement and the Releases therein do not affect the

rights of Settlement Class Members who timely and properly submit a Request for Exclusion

from the Settlement in accordance with the requirements in Section 12 of this Settlement

Agreement.

b. The administration and consummation of the Settlement as embodied in this

Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction

to protect, preserve, and implement the Settlement Agreement, including, but not limited to,

enforcement of the Releases contained in the Agreement. The Court shall retain jurisdiction in

order to enter such further orders as may be necessary or appropriate in administering and

implementing the terms and provisions of the Settlement Agreement.

Upon entry of the Final Approval Order and the Judgment: (i) the Settlement Agreement

shall be the exclusive remedy for any and all Settlement Class Members, except those who have

properly requested exclusion (opted out) in accordance with the terms and provisions of the

Settlement Agreement; (ii) the Released Persons shall not be subject to liability or expense for any

of the Released Claims to any Settlement Class Member(s) except as set forth in the Settlement

Agreement; and (iii) Settlement Class Members who have not opted out shall be permanently

barred from filing, commencing, prosecuting, intervening in, or participating in (as class members

or otherwise) any action in any jurisdiction based on the Released Claims.


7

c. Upon Final Approval, each member of the Settlement Class, including the

Plaintiffs shall, by operation of the Judgment, be deemed to have fully, conclusively, irrevocably,

forever and finally released, relinquished, and discharged the Released Persons from all Released

Claims.

d. Nothing in the Settlement Agreement shall preclude any action to enforce

the terms of the Settlement Agreement, including participation in any of the processes detailed

therein. The Releases set forth therein are not intended to include the release of any rights or

duties of the Settling Parties arising out of the Settlement Agreement, including the express

warranties and covenants contained therein.

16. The Court dismisses all Released Claims, with prejudice, without costs to any Party,

except as expressly provided for in the Settlement Agreement.

17. This Order, the Judgment to be entered pursuant to this Order, and the Settlement

Agreement (including the Exhibits thereto) may be filed in any action against or by any Released

Person to support a defense of res judicata, collateral estoppel, release, good faith settlement,

judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense

or counterclaim.

18. Without further order of the Court, the Settling Parties may agree to reasonably

necessary extensions of time to carry out any of the provisions of the Settlement Agreement.

19. This Order and the Judgment to be entered pursuant to this Order shall be effective

upon entry. In the event that this Order and/or the Judgment to be entered pursuant to this Order

are reversed or vacated pursuant to a direct appeal in the Action or the Settlement Agreement is

terminated pursuant to its terms, all orders entered and releases delivered in connection herewith

shall be null and void.


8

IT IS SO ORDERED.

Dated: _____ __, 2019 ____________________________

Honorable Jose E. Martinez

United States District Judge





SHERRYL MEDINA, DANNY ALLEN, JOHN

CARTER WILLIAMS, on behalf of themselves,

and all others similarly situated,

Plaintiffs,

vs.

ENHANCED RECOVERY COMPANY, LLC

dba ERC, a Delaware limited liability company,

Defendant.

NO. 2:15-cv-14342-JEM/MAYNARD

JUDGMENT

Pursuant to the Court’s Order Granting Final Approval of Class Action Settlement and

Dismissing Class Plaintiffs’ Claims and Granting Plaintiffs’ Incentive Awards and Reimbursement

of Fees and Expenses to Class Counsel ( (the “Final Approval Order”), filed contemporaneously

with the filing of this Judgment, IT IS ADJUDGED that:

1. Payments shall be made to Settlement Class Members who submitted valid claims,

in accordance with the terms of the Settlement Agreement.

2. A service award of $ shall be paid to each Class Representative

Plaintiff, in accordance with the terms of the Settlement Agreement.

3. Class Counsel attorneys’ fees in the amount of $ , and costs in the

amount of $ , shall be paid in accordance with the terms of the Settlement Agreement.

4. The Claims Administrator, Kurtzman Carson Consultants, LLC, shall be paid for

its fees and expenses in connection with the administration of the Settlement Agreement, in

accordance with the terms of the Settlement Agreement.


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5. Except as to any Settlement Class Members who have validly and timely requested

exclusion, this action is dismissed with prejudice, with all parties to bear their own fees and costs

except as set forth herein and in the prior orders of the Court.

IT IS SO ORDERED.

Dated: _____ __, 2019 ____________________________

Honorable Jose E. Martinez

United States District Judge


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