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Sistrunk v. Titlemax, Inc.

United States District Court, W.D. Texas, San Antonio Division

February 22, 2018

DEXTER SISTRUNK, individually and on behalf of a class of similarly situated individuals, Plaintiff,
TITLEMAX, INC., et al., Defendants.



         Before the Court are the parties' Joint Motion for Final Approval, (Dkt. 330), and Plaintiff's Unopposed Motion for Attorney's Fees and Costs and Class Representative Service Award, (Dkt. 328). The parties seek final approval of a Settlement Agreement (“Settlement”) that sets forth the terms and conditions of a proposed settlement and dismissal of this action with prejudice, with the Court retaining jurisdiction to enforce the Settlement.

         Having read the motions and supporting evidence and considered the parties' arguments and relevant legal authority, the Court finds as follows:

         1. Unless otherwise defined, all capitalized terms in this order shall have the respective meanings ascribed to the same terms in the Settlement. (Dkt. 320-1).

         2. This Court has jurisdiction over the subject matter of this action and over all parties to the action, including all Class Members.

         3. On October 25, 2017, the Court preliminarily approved the Settlement. (Dkt. 319). In that order, the Court noted that the class definition set forth in the Settlement is the same as the class previously certified as meeting the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). The Court appointed Plaintiff Dexter Sistrunk as representative of the Class, and his counsel, Cory Fein, Class Counsel.

         4. Notice to the Class has been provided in accordance with the Court's preliminary approval order. (See Order, Dkt. 319). The Settlement Administrator declares that notice was initially mailed to 4, 288 class members, that the mailing list was updated and refined based on emails or telephone calls from class members and on returns from the United States Postal Service, and that hundreds of additional notice packets were mailed to new addresses. (Rust Consulting Affidavit, Dkt. 331, at 3-4). Ultimately, 4, 563 notice packets were delivered, accounting for over 90 percent of the identified class members.[1] (Id. at 4). The Settlement Administrator maintains a website,, that contains thorough information about the case and the settlement, as well as contact information for the Settlement Administrator and Class Counsel. (Id.). The Settlement Administrator had responded to over 1, 300 email inquiries as of the date of the final approval hearing. (Id.).

         5. Notice to the Class fully complied with the requirements of the Federal Rules of Civil Procedure and the United States Constitution, the rules of this Court, and any other applicable law. The notice provided was the best notice practicable under the circumstances to apprise class members of the Settlement and their rights to object to or exclude themselves from the Settlement and to appear at the final approval hearing held on February 16, 2018.

         6. No Settlement Class Member objected to any of the terms of the Settlement. No. Class Members excluded themselves from the Settlement. No. Class Members appeared or testified at the final approval hearing.

         7. Defendants properly and timely notified the appropriate government officials of the Settlement pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715. The Court has reviewed the substance of Defendants' notice and finds that it complied with all applicable CAFA requirements. Further, Defendants' CAFA notice preceded the final approval hearing by more than 90 days.

         8. The Settlement was the result of arm's-length negotiations conducted in good faith by experienced attorneys familiar with the legal and factual issues of this case and with the assistance of the Honorable Susan Soussan (ret.) and Gary McGowan. Specifically, Plaintiff and Class Counsel litigated this case for over three years, producing an extensive record, before obtaining a judgment in excess of $12 million. (See Final Judgment, Dkt. 304). After Defendants signaled their intention to appeal the Court's judgment, the parties participated in multiple mediation sessions to reach an agreement. (See Fein Decl., Dkt. 328-1, at 13, 24 (describing the parties' settlement negotiations)).

         9. The Settlement is fair, reasonable, adequate, and in the best interests of the Class Members. In making that finding, the Court has considered the factors relevant to class settlement approval. See Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (directing district courts to consider: “(1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiffs' success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and absent class members”). The Court finds no evidence of fraud or collusion given that the settlement was reached after protracted litigation resulting in a judgment in the class's favor. An appeal of this case would have presented novel and complex legal issues. Because the range of the class's recovery includes the possibility that they would receive nothing and because an appeal would have presented a case of first impression for the Fifth Circuit, the Court cannot say that the Settlement is an unreasonable approximation of the case's value. Class Counsel and the Class Representative favor the settlement, and after notice to thousands of class members, none opted out or asked to be excluded. In sum, all six Reed factors counsel in favor of approving the settlement.

         10. The Class Representatives and Class Counsel adequately represented the Settlement Class for purposes of entering into and implementing the Settlement.

         11. Plaintiff's requested award of $1, 557, 675.00 in attorney's fees, which is to be paid separately from compensation to the Settlement Class, is reasonable. In considering the reasonability of the requested fee award, the Court considers both (a) how the fee award compares to the total recovery obtained in favor of the class (the “percentage method”) and (b) the reasonableness of the award under the twelve factors set out in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974). See Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 643 (5th Cir. 2012) (“[D]istrict courts in this Circuit regularly use the percentage method blended with a Johnson reasonableness check.”).

a. The percentage method counsels in favor of approving the requested fee award. Class Counsel obtained a settlement of $1, 500 per Class Member, which carries a total potential value of $7, 417, 500 for the 4, 945 Class Members who could make claims. Plaintiff's requested fee award is 21 percent of the Settlement's maximum cash value to the class as a whole. 21 percent is well within the range approved by the Fifth Circuit. See Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir. 2001) (affirming a fee award valued at 30 percent of the total recovery for the class); Union Asset Mgmt. Holding, 669 F.3d at 644 (affirming a fee award worth 18 percent of the total recovery); Klein v. O'Neal, Inc., 705 F.Supp.2d 632, 675 (N.D. Tex. 2010) (“[A]ttorney['s] fees awarded under the percentage method are often between 25% and 30% of the fund.”). This Court has previously approved fee awards consistent with the Fifth Circuit's ...

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