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Ashack v. Caliber Home Loans, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

June 16, 2017

Rebecca Ashack, individually and on behalf of all others similarly situated, Plaintiff,
v.
Caliber Home Loans, Inc., Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff Rebecca Ashack, individually and on behalf of all others similarly situated, asserts claims in this action against Defendant Caliber Home Loans, Inc. (“Caliber”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Specifically, Ms. Ashack alleges that Caliber placed telephone calls to her cellular telephone, and the cellular telephones of class members, using an automatic telephone system, or autodialer. On January 24, 2017, after the parties had conducted discovery and participated in a private mediation, the Court granted the parties' Motion for Preliminary Approval of Settlement Class, and certified the following settlement class:

All persons or entities in the United States who, on or after July 9, 2011 to the date this action is finally approved, received a call to their cellular telephone line through the use of an automatic telephone dialing system or an artificial or prerecorded voice made by or on behalf of Defendant.

[Filing No. 85 at 2.] The Court preliminarily found the settlement to be “fundamentally fair, adequate, and reasonable, ” and found that the settlement class met the requirements of Fed. R. Civ. P. 23. [Filing No. 85 at 2-3.] The Court approved the form of notice proposed by the parties, and the procedure by which notice would be given. [Filing No. 85 at 3-8.]

         After administering the settlement, Ms. Ashack filed a Motion for Attorneys' Fees, Costs and Service Awards, [Filing No. 86], and an Unopposed Motion for Final Approval of Class Settlement and Response to Objection, [Filing No. 93]. The Court held a hearing on the motions on May 31, 2017, [see Filing No. 95], and also heard argument regarding an Objection to the settlement filed by David Tharp, [Filing No. 93-5]. The motions and the Objection are now ripe for the Court's decision.

         I. Objection

         On March 6, 2017, David Tharp sent an Objection to the settlement to the Claims Administrator in which he stated:

As I understand the terms of the settlement, [Caliber] violated Federal Law, caused a severe amount of damage to my family and I, as a result they pay out $2, 895, 000. Attorney Fees are $900, 000, a few other fees and administrator costs, and I can expect a check for somewhere between $70 and $100. For anyone to believe that this is a fair and equitable settlement arrangement is to live in an alternative reality.
On 17 May, 2016 I sent the President of [Caliber] a registered letter demanding they cease and desist with these harassing phone calls. Most of the time, the calls were generated because the company failed to properly apply paid funds. At a rate of 3 per day, 6 days a week for 10 months. Federal guidelines and precedent cases estimate damages of $1, 500 per call - that is $1, 404, 000 due and payable to me. Yet I should expect a check for between $70 and $100 then call it a day.
To be sure, please accept the letter as the strongest objection possible to the terms and conditions of the settlement agreement….

[Filing No. 93-5.]

         Mr. Tharp testified at the May 31, 2017 hearing, and described the telephone calls he received from Caliber. Through his testimony, it became apparent that many, but not all, of the calls at issue that Caliber placed were to Mr. Tharp's home telephone, and not his cellular phone.[1] Because this litigation raises only TCPA claims, which necessarily involve telephone calls to cellular telephones and not to home telephones, the Court suspected that Mr. Tharp's issues with Caliber were not addressed by the proposed settlement. In a June 1, 2017 Order, the Court noted this, quoted language from the Settlement Agreement that defines “Released Claims, ” and stated “[t]he Court construes the definition of ‘Released Claims' in the Settlement Agreement as not covering potential claims by Mr. Tharp related to calls Caliber made to his home telephone, rather than his cellular telephone.” [Filing No. 96 at 2.] The Court ordered that, to the extent any party disagreed with the Court's analysis of the definition of “Released Claims” in the Settlement Agreement, they were to file a Report setting forth their position by June 7, 2017, and that if a Report was not filed by that date, the Court would assume that the parties agree with the Court's analysis. [Filing No. 96 at 2.] No party has filed a Report to date, and so the Court assumes that the parties agree that “Released Claims” would not cover claims Mr. Tharp may have against Caliber related to telephone calls made to his home telephone - since those claims are not a part of this litigation. Accordingly, Mr. Tharp's objection is OVERRULED AS MOOT, and he may raise any claims related to calls Caliber made to his home telephone in a separate lawsuit, subject to applicable law.

         II. Settlement Agreement, Attorneys' Fees and Costs, and Service Award

         Settlement of class claims brought under Fed.R.Civ.P. 23 may be approved if the Court finds the settlement to be “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). The Seventh Circuit Court of Appeals has characterized the Court's role as that of a fiduciary to the class members in considering whether a settlement ...


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