Beth E. Terrell, Admitted Pro Hac Vice Email: bterrell@terrellmarshall.com Jennifer Rust Murray, OSB #100389 Email: jmurray@terrellmarshall.com Mary B. Reiten
Email: mreiten@terrellmarshall.com Blythe H. Chandler, Admitted Pro Hac Vice Email: bchandler@terrellmarshall.com Samuel J. Strauss, Admitted Pro Hac Vice Email: sstrauss@terrellmarshall.com
TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300
Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450
[Additional Counsel Appear on Signature Page] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION KELLY OTT, and BENJAMIN GESLER, on
behalf of themselves and all others similarly situated, NANCY LUEBBEN,
Plaintiffs, v.
MORTGAGE INVESTORS
CORPORATION OF OHIO, INC., an Ohio corporation, also doing business as
MORTGAGE INVESTORS
CORPORATION, AMERIGROUP MORTGAGE CORPORATION, VETERANS INFORMATION
DEPARTMENT and VETERANS HOME LOANS,
Defendant.
NO. 3:14-cv-00645-ST
FINAL ORDER OF JUDGMENT AND DISMISSAL WITH
PREJUDICE
CLASS ACTION
DEMAND FOR JURY TRIAL Magistrate Judge Janice M. Stewart
FINAL ORDER OF JUDGMENT & DISMISSAL WITH PREJUDICE
And now, on this _____ day of _______________ 201_, upon consideration of the unopposed Motion for Final Approval of the Settlement (“Motion”) filed by Plaintiffs Kelly Ott and Benjamin Gesler, and the relevant memoranda and submissions to this Court, it is HEREBY ORDERED that the Motion is GRANTED, the Settlement Class is certified, and the Settlement is approved.1
WHEREAS, on or about July 17, 2015, the Parties filed a Settlement Agreement (Docket No. 128-1) which sets for the terms and conditions of the Settlement and release of certain claims against defendant Mortgage Investors Corp. (“MIC” or “Defendant”) and the Released Parties;
WHEREAS, the Plaintiffs and Class Counsel have filed an unopposed Motion, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order finally approving the Settlement as set forth in the Settlement Agreement, which will dismiss this Action with prejudice;
WHEREAS, the Court preliminary approved the Settlement on July 20, 2015, and notice was given to all members of the Settlement Class pursuant to that Preliminary Approval Order;
WHEREAS, the Court has reviewed and considered all papers filed in support of and in opposition to the Settlement, and all exhibits thereto, and held a Final Approval Hearing on November 22, 2015, at which time the Parties and all interested persons were heard in support of and in opposition to the Settlement; and
WHEREAS, upon consideration of all of the above, the Court finds that the Settlement is fair, adequate, and reasonable.
1. For purposes of settlement only, this Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Parties and the Settlement Class.
2. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for the purposes of settlement only, the Settlement Class is certified as follows:
All persons or entities within the United States of America who, at any time from April 18, 2010 through the date of the execution of the Settlement Agreement, received one or more Calls. “Calls” means either (1) a call placed by MIC through the use of an automatic telephone dialing system to a cellular telephone number; or (2) telephone solicitation calls, initiated by MIC two or more times in a 12-month period to a cellular telephone line or residential telephone line; where the cellular or residential telephone line number appeared on the National Do-Not-Call Registry (“NDNCR”) more than thirty days before the calls; and (3) the telephone number was not listed in the database Mortgage Investors retained of individuals who inquired about or closed a mortgage with Mortgage Investors.
3. For purposes of settlement only, Plaintiffs Ott and Gesler are hereby appointed class representatives.
4. For purposes of settlement only, the attorneys at Terrell Marshall Law Group PLLC, Williamson & Williams, and Lindsay Hart, LLP are hereby appointed as Class Counsel.
5. For purposes of settlement only, the prerequisites for class certification under Rule 23(a) and (b)(3) have been satisfied as follows:
a. The number of members in the Settlement Class is so numerous that joinder of all members is impracticable;
b. There are common questions of law and fact to the Settlement Class; c. The claims of the Class Representatives are typical of the claims of the Settlement Class;
d. The Class Representatives and Class Counsel will fairly and adequately represent and protect the interests of the Settlement Class;
e. The questions of law and fact common to the members of the Settlement Class will predominate over individual questions of law and fact; and
f. A class action is superior to other methods of adjudication.
6. In the event that the Settlement terminates for any reason, the certification of the Settlement Class shall be automatically vacated, null and void, and this Action shall revert to its status immediately prior to the execution of the Settlement Agreement.
7. This Court finds that the notice given to members of the Settlement Class pursuant to the terms of the Settlement Agreement fully and accurately informed such members of all material elements of this Settlement and constituted valid, sufficient, and due notice to all such members. That notice fully complied with due process, Rule 23 of the Federal Rules of Civil Procedure, and with all other applicable law.
8. Members of the Settlement Class who timely submitted valid requests for exclusion are excluded from the Settlement Class and are not bound by this Order and Judgment. Attached hereto as Exhibit A is a list of every person timely submitted a valid request for exclusion and thus are not bound by this Order and Judgment.
9. The Court finally approves this Settlement, and finds that it is fair, reasonable, and adequate.
10. The Parties, their counsel, and the Claims Administrator shall fulfill their obligations and duties under the Settlement Agreement.
12. The Court adjudges that Plaintiffs and the Settlement Class Members are deemed to have fully, finally, completely, and forever released, relinquished, and discharged the Released Claims against the Released Parties.
13. Plaintiffs and the Settlement Class Members are permanently enjoined and barred from asserting, initiating, prosecuting, or continuing any of the Released Claims against the Released Parties.
14. The Court approves payment of attorneys’ fees in the amount of $1,870,900. In addition, the Court approves payment of out-of-pocket costs of $147,063. These amounts shall be paid from the Settlement Fund pursuant to the terms of the Settlement Agreement. The Court finds these amounts to be appropriate and reasonable in light of the work performed by Class Counsel and the benefits obtained by the Settlement Class Members. In addition, the Court finds that the Settlement Agreement was negotiated at arms’ length and without collusion.
15. The Court approves payment of service awards to Plaintiffs Ott and Gesler in the amount of $5,000 each ($10,000 total). This amount shall be paid from the Settlement Fund pursuant to the terms of the Settlement Agreement.
16. The Court finds that this Order and the Settlement are not admissions or concessions by MIC of any liability or wrongdoing. This Order is not a determination of liability or wrongdoing. This Order also does not constitute any opinion or position of this Court as to the merits of the claims and defenses related to this Action.
17. If the Effective Date does not occur, the parties shall be returned to the status quo ex ante, for all litigation purposes, as if no Settlement had been negotiated or entered into and thus this Order and all other findings or stipulations regarding the Settlement, including but not
limited to, certification of the Settlement Class shall be automatically void, vacated, and treated as if never filed.
18. This Court retains jurisdiction to consider all further matters arising out of or connected with the Settlement, including the implementation and enforcement of this Settlement.
19. There were no objections to the Settlement.
THEREFORE, the Clerk of the Court is HEREBY ORDERED to enter this Final Order of Judgment and Dismissal with Prejudice.
Dated: ______________________, 201_ ____________________________________
CERTIFICATE OF SERVICE
I, Jennifer Rust Murray, hereby certify that on November 10, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following:
Stellman Keehnel, OSB No. 116460 E-mail: stellman.keehnel@dlapiper.com Nicole M. Tadano, Admitted Pro Hac Vice E-mail: nicole.tadano@dlapiper.com DLA PIPER LLP (US)
701 Fifth Avenue, Suite 7000 Seattle, Washington 98104-7044 Telephone: (206) 839-4800 Facsimile: (206) 839-4801
Lesli Esposito, Admitted Pro Hac Vice Email: lesli.esposito@dlapiper.com John Huh, Admitted Pro Hac Vice Email: john.huh@dlapiper.com DLA PIPER US LLP (PA) One Liberty Place, Suite 4900 1650 Market Street
Philadelphia, Pennsylvania 19103 Telephone: (215) 656-3300 Facsimile: (215) 656-3301 Attorneys for Defendant
DATED this 10th day of November, 2015.
TERRELL MARSHALL LAW GROUP PLLC By: /s/ Jennifer Rust Murray, OSB #100389
Jennifer Rust Murray, OSB #100389 Email: jmurray@terrellmarshall.com 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 Attorneys for Plaintiffs
Judy Olsen Ronald Ferguson
James Butcher Susan Lemon
Betty Maze Cathleen Ritzo
Raymond Carlson Thomas Faust
Rosey Proffitt Rheta Hassison
Shannon Vo Nancy Proffitt
Harold Wolters Casey Stewart
Karl Bowman Beverly Starke
Jessica Swope Randy Osborne
Dustin Swope Julie Northrop
Ronald Mosby Cherly Cooper
Dorcas Rowe Jackson Vang
Michael Meloen Susie Quarsnell
Melvin Baum Kee Ka
Jacqueline Isherwood Chad Hughes
Ardis Tollefson Ellen Farinhault
Kay Hickle Caroline Seelinger
Diana Ward William Seelinger
George Demarest Patricia Ann Davis
Karen Demarest William Bloom
Craig Peters Alfredo Robles
Shirley Muse Charles Kelly
Aida Barila Elizabeth Kelly
Margaret Glenn Franklin Estebello
Carol Manro Veronika Kalteider
