Drazen v. GoDaddy.com, LLC

• Decision Date: 23 December 2020
• Docket Number: CIVIL ACTION: 1:19-00563-KD-B
• Parties: SUSAN DRAZEN, on behalf of herself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant. JASON BENNETT, on behalf of himself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant.
• Court: U.S. District Court — Southern District of Alabama

SUSAN DRAZEN, on behalf of herself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant.

JASON BENNETT, on behalf of himself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant.

CIVIL ACTION: 1:19-00563-KD-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

December 23, 2020

FINAL JUDGMENT AND ORDER APPROVING CLASS SETTLEMENT

This matter is before the Court on Plaintiffs' Motion for Final Approval of Class Action Settlement and Memorandum in Support (Doc. 69), supporting exhibits (Docs. 69-1, 69-2, 69-3), and Plaintiffs' motion for Attorneys' Fees, Costs, Expenses, and Service Awards. (Doc. 50). Also before the Court is Objector Juan Pinto's Objection to Settlement and Amount of Attorneys' Fees (Doc. 53); Plaintiffs' Response to Pinto's Objection (Doc. 61); Defendant GoDaddy.com, LLC's Notice of Partial Joinder of Plaintiffs' Response (Doc. 62); and Pinto's Reply (Doc. 63).

Upon consideration of the Motions, briefs, supporting evidentiary submissions, the parties' and objector's respective positions at the evidentiary hearing held December 14, 2020, and for the reasons set forth herein, the Plaintiffs' Motion for Final Approval of the Settlement Agreement is GRANTED. Plaintiffs' Motion for attorneys' fees, costs, and expenses is GRANTED in part and DENIED in part. Class member Pinto's objections are overruled, except to the extent the Court has reconsidered attorney fees. Accordingly, the Court enters this Final Judgment and Order Approving Class Settlement.

I. Background

On January 10, 2020, Plaintiff Susan Drazen file an unopposed motion for Preliminary Approval of Class Action Settlement. (Doc. 20). Thereafter, on February 19, 2020, this Court accepted transfer of the Bennett Matter from the District of Arizona. (Case No. 2:16-cv-3908 (D. Ariz. 2016)). On February 21, 2020, the Court consolidated the Bennett Matter with Drazen v. GoDaddy.com, LLC, Civil Action No. 19-00563-KD-B (S.D. Ala. 2019). (Doc. 29). A third related action, Herrick v. GoDaddy.com, LLC (No. 2:16-cv-00254 (D. Ariz. 2016), appeal pending 18-16048 (9th Cir. 2018)) "is incorporated into and resolved by the Parties' settlement." (Doc. 39 at 2, n.1).

Plaintiffs¹ bring this class action complaint alleging Defendant GoDaddy.com, LLC (GoDaddy) violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. Specifically, Plaintiffs allege GoDaddy violated the Act by sending text messages and placing phone calls to Plaintiffs' cellular telephones, marketing its products and services. Plaintiffs alleged these calls and text messages were placed/sent using an "automatic telephone dialing system" (ATDS), as defined by 47 U.S.C. § 227(a)(1) and prohibited by 47 U.S.C. § 227(b)(1)(A). Additionally, Plaintiffs contend GoDaddy's contacts were not made for emergency purposes; Plaintiffs allege the contacts were made using an autodialing system that did not require humanintervention. And, Plaintiffs allege GoDaddy did not have their prior express written consent to place the phone calls or to send the text messages.

The TCPA makes it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice" "to any telephone number assigned to a paging service, cellular telephone service..." 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)(A)(iii).

On February 6, 2020, the Court held a hearing on Plaintiffs unopposed motion for preliminary approval. (Doc. 20). At the hearing, the Court requested the parties submit a modified class definition because the proposed class definition appeared to be over-inclusive. Then, on February 21, 2020, the Court sua sponte ordered the parties to file briefs explaining how this case was distinguishable from Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019) (holding recipients of a single text have not suffered an injury in fact and do not have standing to sue under the TCPA) and for clarification regarding whether the proposed class definition encompassed individuals who received a single text message. (Doc. 30). The parties also filed responsive briefs regarding the impact of Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019) on this case. On April 27, 2020, the parties filed a joint statement modifying the class definition in the amended class action settlement agreement in accordance with the Court's direction at the February 6, 2020 hearing. (Doc. 41 at 3).

The modified class definition amended the parties Motion for Preliminary Approval of Class Action Settlement and Certification of the Settlement Class (Doc. 20). The modified definition provided:

(a) All persons within the United States to whom, from November 4, 2014 through December 31, 2016, Defendant placed a voice or text message call to their cellular telephone pursuant to an outbound campaign facilitated by the web-based software application used by 3Seventy, Inc., or the software programs and platforms that comprise the Cisco Unified Communications Manager.

(b) Excluded from the term "Settlement Class" are (1) the trial judges presiding over the Actions; (2) Defendant, as well as any parent, subsidiary, affiliate or control person of Defendant, and the officers, directors, agents, servants or employees of Defendant; (3) the immediate family of any such person(s); (4) any Settlement Class Member who timely and properly opts out of the settlement; and (5) Class Counsel, their employees, and their immediate family.

(Doc. 41 at 4). And see (Doc. 45-1 at 11 (incorporating the amended definition into the operative Settlement Agreement)). The "Class Period" is defined as "the period from November 4, 2014 through December 31, 2016." (Doc. 20-1 at 6).

Among other terms and conditions, the parties agreed to a creation of a Settlement Fund of $35,000,000.00 for payment of the Administrative Expenses ("reasonable costs and expenses associated with the Settlement Administrator"), attorney's fees not to exceed 30% of the Total Settlement amount plus costs and expenses, service awards for each Plaintiff in the amount of $5,000 each, and the Settlement Class Members choice of either a Cash Award ($35) or a Voucher award ($150). (Doc. 45-1). The parties also agreed that should the total dollar amount of Approved Claims plus Settlement Costs exceed the Total Settlement amount, each individual Settlement Award to the Class Members would be subject to a pro rata reduction. (Id. at 24).

Upon consideration of the parties briefs, relevant law, and the parties positions at the hearing on the Motion for Preliminary Approval, the Court granted the Motion to preliminarily certify the Settlement Class, conditioned on the parties submitting an amended settlement agreement removing John Herrick as a Class Representative in light of Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). (Doc. 44). In response, the Plaintiffs submitted a Second Amended Class Action Settlement Agreement (Settlement Agreement) removing John Herrick as a Class Representative. The Court then preliminarily approved the Settlement Agreement. (Doc. 49). TheCourt also designated JRC Legal, McGuire Law, P.C., Underwood and Riemer, PC, Bock, Hatch, Lewis & Oppenheim, LLC, Mark K. Wasvary, P.C., Kent Law Offices, and McMorrow Law, P.C., as Class Counsel. (Doc. 49 at 3). The Court granted the parties unopposed motion to mutually select and supervise the Settlement Administrator. (Id. at 4). The Court designated Susan Drazen and Jason Bennett as Class Representatives. (Id. at 3).

Pursuant to the Court's order, GoDaddy provided a list containing name and address information for Class Members to the Settlement Administrator as set forth in the Declaration of Kari Grabowski (Grabowski), Project Manager for the Settlement Administrator Epiq Class Action & Claims Solutions (Epiq). (Doc. 69-3 at 1, 5). Notice was provided as discussed herein in Section IV. As of October 22, 2020, Epiq received 11 timely opt-out requests, two objections,² and 24,059 claims. (Id. at 10).

On December 14, 2020, the Court held the Final Approval Hearing and heard the parties' positions on the Plaintiffs' Motion for Final Approval of the Settlement Agreement and Final Certification of the Settlement Class (Doc. 69), Class Counsel's Motion for Attorneys' Fees, Costs and Expenses (Doc. 50), and Objector Juan Pinto's Objection. (Doc. 53). The Plaintiffs and GoDaddy represented that the Settlement Agreement was fair, reasonable, and due to be approved. The Plaintiffs similarly argued their motion for attorneys' fees, expenses and costs were reasonable and due to be approved.

Objector Pinto, appearing through counsel, reiterated his arguments set forth in his objection (Doc. 53). He argued in part that this is a coupon settlement under the Class Action Fairness Act and that the requested attorneys' fees are too high and disproportionately benefitClass Counsel instead of the Class. Pinto asked that the settlement either be amended to assuage his expressed concerns, or in the alternative be disapproved.

II. Premature Order on Fees

At the outset, the Court acknowledges its order granting in part and denying in part Plaintiffs' request for attorneys' fees was premature, as it preceded the objection deadline of August 31, 2020. (Doc. 51). The Court subsequently entered an order September 1, 2020, amending its premature order, carrying the Plaintiffs' motion to the Final Approval Hearing. (Doc. 55). Accordingly, the Court reconsiders Plaintiffs' motion for attorneys' fees and costs. And while Pinto (the objector) argues that other class members likely felt it would be futile to object to the attorney fees due to the Court's order, the Court believes that such objections have been adequately voiced by Pinto.

Moreover, complete review of the settlement and attorney fees is warranted in that the landscape for TCPA cases is constantly...