Busch v. Bluestem Brands, Inc.

Background

The court considered Elizabeth Busch’s unopposed motions for final approval of a class-action settlement and for approval of attorneys’ fees, litigation costs, and an incentive award. The settlement concerned people in the United States who, during the period from March 14, 2012, through October 15, 2018, received a text message sent to a cellular telephone from or on behalf of Bluestem Brands, doing business as Fingerhut, when Bluestem had coded the telephone number as a “wrong party” number on an outbound call.

The court held a final approval hearing on October 8, 2019. It found that the parties negotiated at arm’s length over many months through experienced counsel who understood the facts, legal issues, risks, and uncertainties of continued litigation.

Class certification and notice

The court finally certified the settlement class for settlement purposes under Rule 23 of the Federal Rules of Civil Procedure. It found that the class was sufficiently numerous, had common legal and factual questions, had claims typical of the class, and was adequately represented by Busch. The court also found that common questions predominated, that the class was ascertainable, and that a class action settlement was the superior method for fairly and efficiently resolving the dispute.

The court appointed the listed attorneys as class counsel and confirmed Busch as the class representative. It found that notice to the class was the best practicable notice under the circumstances, adequately informed class members about the case and their rights, and complied with Rule 23, the Constitution, and other applicable law. The court also found that Bluestem complied with notice requirements under the Class Action Fairness Act. No one objected to the settlement.

Settlement approval and payments

The court approved the settlement agreement as fair, reasonable, and adequate under Rule 23(e), and as being in the best interests of the parties and settlement class members. It approved the plan for distributing the settlement fund, including a possible second payment if feasible. Any remaining money after the specified distribution was to go to the Minnesota Federal Court Pro Se Project and the Minnesota Volunteer Lawyers Network as cy pres recipients.

The court found that the settlement provided substantial, immediate, and readily measurable benefits. It stated that valid claimants would receive cash payments representing a significant portion of the damages that would have been available in an individual action under the Telephone Consumer Protection Act, a federal law governing certain telephone communications.

The court awarded class counsel $1,750,000 in attorneys’ fees and $11,174.79 in litigation costs from the settlement fund. It also awarded Busch a $7,500 incentive award for her efforts on behalf of and for the benefit of the settlement class.

Releases, dismissal, and retained jurisdiction

The court incorporated the settlement agreement and its releases into the order. Members who timely and properly requested exclusion were not bound by those releases. For members who did not opt out, the settlement became their exclusive remedy for the released claims, and they were barred from bringing or participating in another action based on those claims. The court dismissed all released claims with prejudice, except as provided in the settlement agreement.

The court retained jurisdiction over the interpretation, administration, implementation, and enforcement of the settlement. Except for class members who validly and timely requested exclusion, the action was dismissed with prejudice, with each party bearing its own fees and costs except as provided in the order and prior orders. The clerk was directed to enter final judgment. The order and judgment would become effective upon entry, subject to the stated consequences if they were reversed or vacated on direct appeal or if the settlement were terminated under its terms.