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CAUSE NO. 2016-48429
CHIMA OCHIAGHA, § IN THE DISTRICT COURT OF
for himself and all
others similarly situated,
Plaintiff,
V. § HARRIS COUNTY, TEXAS
PASSCO ALANZA BROOK, LP, §
Defendants § 113 JUDICIAL DISTRICT
PLAINTIFF’S UNOPPOSEDMOTION FOR FINAL APPROVAL
CLASS ACTIONSETTLEMENT
Britton Monts Martin Weber, Jr.
THEMONTS FIRM Richard Norman
FrostBuilding CROWLEY NORMAN LLP
401 Congress Avenue,Suite ThreeRiverway, Suite 1775
Austin, Texas Houston, Texas
Telephone: 512-474-6092 Telephone: 713-651-1771
Facsimile: 512-692-2981 Facsimile: 713-651-1775
bmonts@themontsfirm.com rnorman@crowleynorman.com
mweber@crowleynorman.com
Jason Snell
THESNELL LAWFIRM, PLLC
ChaseTower
Street, Suite 900
Austin, Texas
Telephone: 512-477-5291
Facsimile: 512-477-5294
firm@snellfirm.com
Counsel for Plaintiff and the Class
ABLE ONTENTS
INTRODUCTION
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Procedural history
Claims asserted
SUMMARY OF SETTLEMENT TERMS
The Settlement Class
Monetary Consideration to the Class
Class Representative Enhancement
Attorneys’ Fees and Litigation Expenses
Costs of Administration
The Release of Claims
The Class Notice
IV. THE SETTLEMENT MERITS FINAL APPROVAL
The Prerequisites for Class Certification Have Been Met
Class Definition
Numerosity
Commonality
Typicality
Adequacy
Predominance
Superiority
Manageability
The Settlement is Fair, Adequate and Reasonable
The Settlement Should be Approved as it is Not the Product of
Fraud or Collusion
Further Pursuit of This Case Would be Complex, Expensive,
and Time Consuming
The Settlement Should be Approved Because Class Counsel has
Adequate Discovery and Other Information to Realistically
Value the Claims
The Settlement Should be Approved Because Ultimate Success
on the Merits is Uncertain for the Claims for Additional
Monetary Relief
The Stipulation of Settlement Should be Approved Because the
Settlement Agreement is Fair in Light of the Possible Range of
Recovery and Certainty of Damages
The Settlement Should be Approved Because Class Counsel and
Plaintiff Support the Settlement
The Settlement has No Obvious Deficiencies
The Scope of Release is Tailored to the Claims Raised in this
Case
The Attorneys’ Fees Requested are Reasonable
Class Notice
NO OBJECTIONS AND NO OPT OUTS
DEFENDANTS DO NOT OPPOSE THE RELIEF REQUESTED IN THIS
MOTION
CONCLUSION AND PRAYER
ABLE UTHORITIES
Cases
Adams v. Reagan
791 S.W.2d 284 (Tex. App.Fort Worth 1990, no writ)
Adams v. S. FarmBureau Life Ins. Co.
417 F. Supp.2d 1373 (M.D.Ga.2006)aff'd 493 F.3d 1276 (11th Cir.2007)
Amchem Products, Inc. v. Windsor
521 U.S. 591 (1997)
Austin v. Penn. Dept. of Corrections
876 F. Supp. 1437 (E.D. Pa. 1995)
Ayers v. Thompson
358 F.3d 356 (5th Cir. 2004)
Ball v. Farm & Home Sav. Ass’n
747 S.W.2d 420 (Tex. App.Fort Worth 1988, writ denied)
Beattie v. CenturyTel, Inc.
511 F.3d 554 (6th Cir. 2007)
Butler v. Sears, Roebuck & Co.
727 F.3d 796 (7th Cir. 2013)
Carlough v. Amchem. Prod., Inc.
158 F.R.D. 314 (E.D.Pa.1993)
Central Power & Light Co. v. City of San Juan
962 S.W.2d 602 (Tex. App.Corpus Christi 1998, pet. dism'd w.o.j.)
Chambers v. Whirlpool Corp.
2016 WL 5922456 (C.D. Cal. 2016)
Citizens Ins. Co. of America v. Daccach
217 S.W.3d 430 (Tex.2007)
Citizens Insurance Co. of America v. Hakim Daccach
105 S.W.3d 712 (Tex. App.Austin 2003, pet. filed)
Cotton v. Hinton
559 F.2d 1326 (5th Cir. 1977)
De La Fuente v. Stokely Van Camp, Inc.
713 F.2d 225 (7th Cir.1983)
DeHoyos v. Allstate Corp.
240 F.R.D. 269 (W.D. Tex. 2007)
Dresser Indus., Inc. v. Snell
847 S.W.2d 367 (Tex. App.El Paso 1993, no writ)
E & V Slack, Inc. v. Shell Oil Co.
969 S.W.2d 565 (Tex. App.Austin 1998, no pet.)
Employers Cas. Co.v. Texas Association Of School Boards Workers' Compensation
SelfInsurance Fund,
886 S.W.2d
Fontana v. Elrod
826 F.2d 729 (7th Cir.1987)
Forsyth v. Lake LBJ Inv. Corp.
903 S.W.2d 146 (Tex. App.Austin 1995, writ dism'd w.o.j.)
Fowler v. Birmingham News Co.
608 F.2d 1055 (5th Cir.1979)
Gen. Motors Corp. v. Bloyed
916 S.W.2d
Graebel/Houston Movers, Inc. v. Chastain
26 S.W.3d 24 (Tex. App.Houston [1st Dist.] 2000, pet. dism'd w.o.j.)
Hall v. Pedernales Elec. Co op., Inc.
278 S.W.3d 536 (Tex. App.Austin 2009, no pet.)
Henry Schein, Inc. v. Stromboe
102 S.W.3d 675 (Tex. 2002)
In re Catfish Antitrust Litig.
939 F. Supp. 493 (N.D. Miss. 1996)
In re Combustion, Inc.
968 F. Supp. 1116 (W.D. La. 1997)
In re Deepwater Horizon
739 F.3d 790 (5th Cir. 2014)
In re General Motors Corp.
55 F.3d 768 (3d Cir. 1995)
In re Heartland Payment Systems, Inc. Customer Data Sec. Breach Litigation
2012 WL 948365 (S.D. Tex. 2012)
In re Linerboard Antitrust Litigation
2004 WL 1221350 (E.D. Pa. June 02, 2004)
In re Nat'l Life Ins. Co.
247 F.Supp.2d 486 (D.Vt.2002)
In re Nexium Antitrust Litig.
777 F.3d 9 (1st Cir. 2015)
In re Prudential Sec. Inc. Ltd. P'ships Litig.
164 F.R.D. 362 (S.D.N.Y.1996)aff'd 107 F.3d 3 (2d Cir.1996)
In re VMS Ltd. P'ship Secs. Litig.
No. 90 2412, 1995 WL 355722 (N.D.Ill. June 12, 1995)
In re Whirlpool Corp. Front Loading Washer Prods. Liab. Litig.
722 F.3d 838 (6th Cir.2 013)
Jenkins v.Raymark Indus., Inc.
782 F.2d 468 (5th Cir.1986)
Juris v. Inamed Corp.
685 F.3d 1294 (11th Cir. 2012)
King Drug Co. v. Cephalon, Inc.
No. 2:06 1797, 2015 WL 4522855 (E.D. Pa. July 27, 2015)
Klein v. O'Neal, Inc.
705 F. Supp. 2d 632 (N.D. Tex. 2010)
Leyva v. Medline Indus. Inc.
716 F.3d 510 (9th Cir.2013)
Life Partners, Inc. v. McDermott
No. 05 CV, 2014 WL 2810472 (Tex. App.Dallas June 23, 2014, no pet.)
Mangone v. First USA Bank
206 F.R.D. 222 (S.D. Ill. 2001)
McClain v. Lufkin Industries Inc.
2010 WL 455351 (E.D. Tex. 2010)
Microsoft Corp. v. Manning
914 S.W.2d 602 (Tex. App.Texarkana 1995, writ dism'd)
Mullane v. Cent. Hanover Bank & Trust Co.
339 U.S. 306 (1950)
Mullen v. Treasure Chest Casino, L.L.C.
186 F.3d 620 (5th Cir. 1999)
Nat'l Ass'n of Chain Drug Stores v. New England Carpenters Health Benefits Fund
582 F.3d 30 (1st Cir. 2009)
National Rural Telecommunications Coop. v. DIRECTV, Inc.
221 F.R.D. 523 (C.D. Cal. 2004)
Neale v. Volvo Cars of N. Am., LLC
2015 WL 4466919 (3d Cir. July 22, 2015)
Newby v. Enron Corp.
394 F.3d 296 (5th Cir. 2004)
Officers for Justice v. Civil Service Com'n of City and County of San Francisco
688 F.2d 615 (9th Cir. 1982)
Peters v.Nat'l R.R. Passenger Corp.
966 F.2d 1483 (D.C.Cir.1992)
Phillips Petroleum Co. v. Bowden
108 S.W.3d 385 (Tex. App.Houston [14th Dist.] 2003, no pet.)
Riemer v. State
392 S.W.3d 635 (Tex. 2012)
Rio Grande Valley Gas Co.v. City of Pharr,
962 S.W.2d631 (Tex. App. 1997)
Shaw v. Toshiba Am. Info. Sys., Inc.
91 F.Supp.2d 942 (E.D.Tex.2000)
Silber v. Mabon
18 F.3d 1449 (9th Cir.1994)
Slipchenko v. Brunel Energy, Inc.
2013 WL 4677918 (S.D. Tex. August 30, 2013)
Southwestern Bell Telephone Co. v. Marketing on Hold Inc.
308 S.W.3d 909 (Tex. 2010)
Stott v. Capital Financial Services, Inc.
277 F.R.D. 316 (N.D. Tex. 2011)
Sun Coast ResourcesInc. v. Cooper
967 S.W.2d
Sw. Ref. Co. v. Bernal
22 S.W.3d 425 (Tex. 2000)
TCI Cablevision of Dallas, Inc. v. Owens
8 S.W.3d 837 (Tex. App Beaumont 2000, pet. dism'd by agr.)
Tex. S. RentalsInc. v. Gomez
267 S.W.3d 228 (Tex. App. Corpus Christi 2008, no pet.)
Trist v. First Fed. Sav. & Loan Ass'n of Chester
89 F.R.D. 1 (E.D.Pa.1980)
Union Pac. Res. Group, Inc. v. Hankins
111 S.W.3d 69 (Tex. 2003)
WalMart Stores, Inc. v. Visa U.S.A., Inc.
396 F.3d 96 (2d Cir. 2005)
Weatherly v. Deloitte & Touche
905 S.W.2d 642 (Tex. App.Houston [14th Dist.] 1995, writ dism'd w.o.j.)
Statutes
Section 92.019(a)(1) (3)
Tex. Prop. Code § 92.019
Rules
Federal Rule of Civil Procedure 23
Rule 42 (a)(1)
Rule 42(a)
Rule 42(a)(2)
Rule 42(b)
rule 42(b)(3)
Rule 42(c)(2)(B)(v)
Tex. R. Civ. P. 42
Tex. R. Civ. P. 42(a)(3)
Tex. R. Civ. P. 42(a)(4)
vii
Tex. R. Civ. P. 42(c)(1)(D)(v)
Tex. R. Civ. P. 42(e)(1)(B)
Tex. R. Civ. P.42(e)
Other Authorities
4 Newberg on Class Actions §§ 11.22
4 Newberg § 11.24
4 William B. Rubenstein et al., Newberg on Class Actions § 11:53 (4th ed. 2011)
7AA Charles Alan Wright et al., Federal Practice & Procedure § 1789.1 (3d ed. 2005)
H.B. 3101
MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.632 (2004)
Manual for Complex Litigation, Third § 30.42 (1995)
viii
Plaintiff Chima Ochiagha (“Plaintiff” or “Class Representative”) for self and all others
similarly situated (Plaintiff and the Class members are collectively referred to as the “Class”) file
this Unopposed Motion for Final Approval of Proposed Class Settlement as follows pursuant
IV Solely for purposes of settlement, Defendant Passco Alanza Brook H, LP
(improperly named in the Original Petition as Passco Alanza Brook LP) (“Defendant”) do not
oppose this motionor the relief requested
I. INTRODUCTION
After substantial pleadings review of supporting documentation and discovery
numerous discussions between counsel, with the substantial involvement of the Plaintiff, and the
assistance of a skilled and experienced mediator, the Parties reached a settlement (attached as
Exhibit 1 , which, if approved by the Court, will end this litigation brought pursuant to ROP
ODE hereafter “Section 92.019”
The Settlement provides sufficient monetary consideration that each Household, on
average, will receive The total Settlement amount is (the “Settlement Amount”),
from which the ourt approved attorney fees, administration costs, Incentive Award to Ochiagha
as Class Representative, and settlement payments to the individual Class Members will be made
The Settlement will result in financial benefit to all class members, and is fair, adequate and
reasonable given the defenses raised to the recovery of damages and the scope of the potential
damages.
An initial summary notice was mailed to each Class Member, and a website was
established to provide additional details and to host the Long Form Notice. Class Counsel and
Class Representative timely filed their application for attorney fees and expenses, and the deadline
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r exercising the right to object or opt out has passed. No objections have been filed, and no
requests for exclusion have been filed.
Plaintiffs now move for final approval of the Settlement pursuant to IV
42(e), and requests that the Court enter an order substantially in the form submitted by the
Parties in order to provide final approval to this Settlement, to make an award of attorney fees and
expenses to Class Counsel, and to make an award of an enhancement to the Class Representative.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Procedural history
On July 21, 2016, Plaintiff filed an Original Petition in this Court on behalf of
self and a putative class alleging that Defendant committed violations of Section 92.109
On September 14, 2016 Defendant filed an answer denying all claims and
allegations contained in the Original Petition and it continues to deny such claims and allegations.
Plaintiff then served discovery on Defendant. Subsequently, the parties worked to
collect informal discovery to ascertain the number of potential class members and amounts of class
members' potential statutory damages. After both sides reviewed and analyzed the data, they
agreed to mediate the case usinga well respected mediator,Tommy Proctor as the neutral.
After months of analysis and negotiations, and taking into account the burdens and
expense of litigation, including the risks and uncertainties associated with protracted trials and
appeals, the Parties concluded and agree that the substantial benefits provided in the Settlement
are in the best interests of Plaintiff, the Class Members, and Defendant.
The Parties intend to resolve the Action and settle all claims asserted or that could
have been asserted in the Action in accordance with the terms and conditions set forth in the
Settlement
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Plaintiff filed his Unopposed Motion for Preliminary Approval on March 29
an oral hearing was held on March 31, 2017 and the Court entered its Preliminary Approval Order
May 2, 2017
Plaintiff and Class Counsel timely filed their Unopposed Motion for Award of
Attorney Fees, Costs and Expenses, and Incentive Award to Class Representative, on June 23,
(“Motion for Fees”)
Claim asserted
The Texas Legislature enacted and later amended Section 92.109 to specify how
“apartment house owners” are allowed to charge late fees to their tenants.
Plaintiff alleged that he Texas Property Code places limits on late fees a landlord
can assess tenants, detailing that under Section 92.019 a landlord may not charge a tenant a late fee
for failing to pay rent unless:
notice of the fee is included in a written lease;
the fee is a reasonable estimate of uncertain damages to the landlord
that are incapable of precise calculation and result from late payment
of rent; and
the rent has remained unpaid one full day after the date the rent was
originally due.
Plaintiff sought to recover statutory remedies for himself and the Class for
unreasonable and excessive rent late fees assessed during the Class Period under Section
which was enacted by the Legislature for the stated purpose of protecting residential tenants like
those in the Classfrom “ excessive fees and unwarranted penalties.
Section 92.019(a)(1) (3) (emphasis added).
The legislative history of H.B. 3101 says: “Hardworking Texans deserve affordable housing without landlords ...
charging excessive fees,or imposing unwarranted penalties that could take money needed for food, education,
healthcare, and retirement....http://www.lrl.state.tx.us/scanned/hroBillAnalyses/80 HB3101.PDF
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The statute provides that [a] landlord who violates this section is liable to the
tenant for an amount equal to the sum of $100, three times the amount of the late fee
charged in violation of this section, and the tenant's reasonable attorney's fees.
In the present case, Plaintiff alleged that Defendan charged an initial fee and a
daily fee that exceeded a “reasonable estimation” of Defendant’s damages
The Settlement, if app oved, provides ecovery of approximately of the
isputedrent late f ees afterdeduction of all fees and expenses)
The Settlement also contemplates that attorney fees to Class Counsel and the costs
of prosecuting the case incurred by Class Counsel will be paid out of the Settlement Amount. The
Settlement also provides for an incentive award to the Class Representative and costs of
administration of the Settlement to be paid out of the Settlement Amount.
III. SUMMARY OF SETTLEMENT TERMS
The proposed Class Action Settlement Agreement signed by the Parties (the
“Settlement”) is attached to this motion as Exhibit 1, and the Declaration of Class Counsel Britton
D. Monts (“Monts Decl.”) (originally submitted in connection with the motion for preliminary
approval) is attached as Exhibit 2 A declaration from the Third Party Administrator is attached as
Exhibit 3Plaintiff also incorporates the exhibits submitted in support of the Motion for Fees filed
on June 23, 2017
The Settlement Class
he proposed Classfor settlement purposes is defined as:
ll persons, who, during the Class Period, (i) wereresidential tenants of
Alanza Brook Apartments under written leases where Defendantserved as
an owner or landlord and (ii) were assessed late fees on past due rent.
Id. at (c) (emphasis added).
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(Ex. 1, Settlement, at 6 7, ¶ 4) The Class Members are listed and identified by account number on
to the Settlement. Id. The Class Period is def ined as July 21, 2012 and continuing hrough
September 2, 2015Id.
The following are excluded from the Settlement Class:
(i) the judge(s) assigned to this case and his or her staff;
(ii) governmental entities;
(iii) Defendant and the Released Parties;
(iv) persons adjudged to be bankrupt; and
(v) persons who have previously released Defendant of the claims raised by
this case.
Id.Defendants have identified Households (“Household” is defined at p. of the Settlement)
that were billed a total amount of disputed rent late fees of approximately $ Settlement,
at , ¶ 1
B. Monetary Consideration to the Class
Pursuant to the Settlement, each Participating Class Member, without the need to
submit a claim form, will be mailed a check for their proportionate share of the Net Settlement
Amountlculated as follows:
(A/B) x C = D
Amount of rent late fees paid by the Class Member as
reflected on Exhibit Eto the Settlement
Sum of alleged excess rent late fees paid by all Class Members
Net Settlement Amount.
Class Member Settlement Payment.
(Settlement, at , ¶ 1
“Net Settlement Amount” means the Settlement Amount of $ after
reduction for (i) Attorney fees and costs up to $1 Settlement, ¶ ); (ii) the Enhancement
Award to Plaintiff of up to $10,000 Settlement, ) and (iii) all administration costs and
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associated expenses required for the Third Party Administrator (“TPA to administer the
settlement set forth herein, capped at $15,000The Parties anticipate that the Net Settlement
Amount should afford each Household an average payment of $683See Ex. 2, Monts Decl.
No claim forms are required for Class members to receive their settlement checks.
Checks will be automatically mailed once the Settlement has received final approval and has
become effective.Id. at 10.
Class Representative Enhancement
he Defendants have agreed to pay the Plaintiff/Class Representative an
enhancement award of $10,000, subject to Court approval, for his extensive time and effort pl
into prosecuting this case, as well as the personal risk associated with pursuing the claims.
(Settlement, ).
Attorneys’ Fees and Litigation Expenses
Class Counsel incurred significant time and expense prosecuting this matter over
the last twelve months. Defendants have agreed to pay Class Counsel up to $100,000 out of the
Settlement Amount for attorney fees and reasonable litigation expenses and costs incurred in
prosecuting the action(Settlement, ¶ 1 ), subject to Court approval.
Class Counsel filed an application for attorney fees and expenses, and an
enhancement award for Plaintiff as the Class Representatives. The application was posted by the
TPA on the website, where i was accessible to all Class Members in advance of the op out and
For Participating Class Members in Households with more than one current or former tenant who
is or was a named party to the lease (excluding persons merely listed as occupants), the settlement
payment, as calculated above in Paragraph 18, shall be divided equally based on the number of
current or former tenants who are or were a named party to the lease in the Household.
(Settlement, at 10 11, ¶ 11).
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objection deadline. Both the Postcard Notice and the Long Form Notice also informed Class
Members of the timing of the filing and informed Class Members that the motion would be
available on the website.
Costs of Administration
Finally, in addition to all relief obtained, Defendants have agreed to pay aTPA for
distributing notice and for administering the payments made pursuant to the Settlement, and
maintaining the Settlement website. (Settlement,at 4, definition of “TPA” ).
The Release of Claims
In exchange for the monetary relief being provided by Defendants, the Named
Plaintiff Class Representative will provide a General Release. (Settlement, ¶ 1).
Class Members will provide a tailoredrelease. The claims to be released are
any and all claims, obligations, causes of action, actions, demands, rights, and
liabilities of every kind, nature and description, including penalties, liquidated
damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution,
and equitable relief under any state statute, federal statute or common law theory,
whether known or unknown, contingent or non contingent, whether anticipated or
unanticipated, arising prior to the Final Approval Date, which were pled in the
Action or could have been pled in the Action that relate to rent late fees, including,
without limitation, all claims under TEX. PROP. CODE § 92.019.
(Settlementat 12 ,¶1
e Class Notice
Class Members were given direct mailed Postcard Notice of the terms of the
proposed Settlement. The Postcard Notice directed Class Members to the Settlement Website,
where the Long Form Notice was available.
The Postcard Notice was not a true “postcard;” it was a summary notice wit h the content as
approved by the Court. The format is attached as an exhbit to the Declaration of haffer
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IV. THE SETTLEMENT MERITS FINAL APPROVAL
The law favors settlement. Court approval of class action settlements is guided by
“the strong judicial policy favoring the resolution of disputes through settlement.” Hall v.
Pedernales Elec. Co op., Inc., 278 S.W.3d 536, 549 (Tex. App.Austin 2009, no pet.);
RUBENSTEIN, NEWBERG ON CLASS ACTIONS (FIFTH) (“NEWBERG”) § 13:44 (2014)
(“The law favors settlement, particularly in class actions and other complex cases where
substantial resources can be conserved by avoiding lengthy trials and appeals.”).
Rule42 establishes the prerequisites to class certification. See Tex. R. Civ. P. 42.
“Because Rule 42 is patterned after Federal Rule of Civil Procedure 23, federal decisions and
authorities interpreting current federal class action requirements are instructive.” Riemer v. State
392 S.W.3d 635, 639 (Tex. 2012), citing Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 433 (Tex. 2000).
here are defined procedures and specific criteria for settlement approval in class
action settlements. The settlement approval procedure describes three distinct steps involving two
distinct hearings
(i) Preliminary approval of the proposed settlement upon submission to the Court of a
written motion for preliminary approval;
(ii) Dissemination of mailedand/or published notice of settlement to all affected Class
members; and
(iii) A formal fairness hearing, or final settlement approval hearing, at which class
members may be heard regarding the settlement, and at which evidence and
argument concerning the fairness, adequacy and reasonableness of the settlement is
presented.
See EDERAL UDICIAL ENTER ANUAL FOR OMPLEX ITIGATION OURTH
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The first step and second steps have occurred. Those steps are critical in ensuring
the class members’ procedural due process rights and enables the Court to fulfill its role as the
guardian of class interests. 4 Newberg on Class Actions §§ 11.22 et seq
he last step of the approval process the final approval or “fairness” hearing, is the
point where “the trial court is charged with the responsibility of determining that the settlement is
fair, adequate, and reasonable,” which falls “within the sound discretion of the trial court.”Gen.
Motors Corp. v. Bloyed, 916 S.W.2d at 955. As discussed below, that determination is guided by
consideration of the six factors set forth by the Texas Supreme Court in Bloyed id., which remains
the standard for settlement fairness review in Texas today. See, e.g.Hall , 278 S.W.3d at 548 549
(citing Bloyed, 916 S.W.2d at 955) (“The Texas Supreme Court has provided six factors that a trial
court must take into account when determining whether a proposed class settlement is fair,
adequate, and reasonable.”).
A. The Prerequisites for Class Certification Have Been Met
A rigorous analysis of the pleadings, documents, and other materials before the
Court establishes that all the prerequisites for class certification under Rule have been met.
For certification, a class action must meet the four requirements stated in Rule
42(a): (1) numerositythe class is so numerous that joinder of all members is impracticable;
(2)commonality there are questions of law or fact common to the class; (3) typicality the
claims or defenses of the representative parties are typical of the claims or defenses of the class;
and (4) adequacy of representationthe representative parties will fairly and adequately protect
the interests of the class. Citizens Ins. Co. of America v. Daccach, 217 S.W.3d 430, 438
(Tex.2007) (citing Tex.R. Civ. P. 42(a)).
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A class action must also satisfy at least one requirement of Rule 42(b). Here, the
class action satisfies rule 42(b)(3), which requires that “questions of law or fact common to the
members of the class predominate over any questions affecting only individual members” and that
class treatment is “superior to other available methods for the fair and efficient adjudication of the
controversy.” See Daccach, 217 S.W.3d at 43839 (citing Tex. R. Civ. P. 42(b)(3)).
Rule 42 contains a list of non exhaustive factors to aid a court in determining if
(b)(3) certification is appropriate: (A) the interest of members of the class in individually
controlling the prosecution or defense of separate actions; (B) the extent and nature of any
litigation concerning the controversy already commenced by or against members of the class; (C)
the desirability or undesirability of concentrating the litigation of the claims in the particular
forum; (D) the difficulties likely to be encountered in the management of a class action.” . at 439
(citing Tex. R. Civ. P. 42(b)(3)).
Because a settlement class action obviates a trial, a trial court faced with a request
to certify a settlement class action “need not inquire whether the case, if tried, would present
intractable management problems See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620
(1997)(discussing the analogous federal Rule 23)
Class Definition
The plain language of the definition of the class establishes that the class members
are presently ascertainable by reference to objective criteria (i.e., the Class has not been defined by
criteria that are subjective or that require an analysis of the merits of the case). The language of the
class definition clearly identifies the persons and entities affected by the litigation. The definition
unambiguously determines who is entitled to individual notice, and who is entitled to opt out of the
Class should they choose to do so. The Class members are also ascertainable, and the Defendants
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have already identified the Households, and the members of those Households, who comprise the
Class.SeeEx. E to Settlement.
Numerosity
The class representative must show that “the class is so numerous that joinder of all
members is impracticable” under Rule (a)(1). In this case there are approximately 300
Households (with each Household being comprised of each person bound under the lease for that
apartment unit (Settlement, ¶ 11, and Ex. E to Settlement). For numerosity, “[t]he test is
whether joinder of all members is practicable in view of the size of the class and such factors as
judicial economy, the nature of the action, geographical location of class members, and the
likelihood that class members would be unable to prosecute individual lawsuits.”
Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 32 (Tex. App.Houston [1st Dist.]
2000, pet. dism'd w.o.j.). Here, there ar e at least 300 Households, with each Household having at
least one Class Member Given the large size of the present proposed class, the other factors are
given far less weight. See, e.g., Durrett v. John Deere Co., 150 F.R.D. 555, 557 (N.D. Tex. 1993)
“Because the estimate of potential class members ranges as high as 14,000, the Court has no
difficulty concluding that a class certified in this cause would satisfy the numerosity
requirement.”).The numerosity prerequisite has been satisfied
Commonality
The class representative must show “there are questions of law or fact common to
the class” under Rule 42(a)(2). “The threshold for commonality is not high.” Union Pac. Res.
Group, Inc. v. Hankins, 111 S.W.3d 69, 74 (Tex. 2003) (quoting Phillips Petroleum Co. v.
Bowden, 108 S.W.3d 385 (Tex. App.Houston [14th Dist.] 2003, no pet.)). The threshold is met
when at least one issue's resolution would affect the claims of all or a significant number of class
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members. See Tex. S. Rentals, Inc. v. Gomez, 267 S.W.3d 228, 250 (Tex. App. Corpus Christi
2008, no pet.), citing Sun Coast Resources, 967 S.W.2d at 532 (quoting Jenkins v. Raymark Indus.,
Inc., 782 F.2d 468, 472 (5th Cir.1986)); see, also, Mullen v. Treasure Chest Casino, L.L.C., 186
F.3d 620, 625 (5th Cir. 1999) (the commonality requirement “is not demanding”). “In fact, a single
common issue of fact or law can be sufficient to meet the commonality requirement.” Tex. S.
Rentals, 267 S.W.3d at 250, citing Microsoft Corp. v. Manning, 914 S.W.2d 602, 611 (Tex.
App.Texarkana 1995, wri t dism'd), and Rio Grande Valley Gas Co., 962 S.W.2d at 641.
common issue must also be applicable to the class as a whole and besubject to generalized proof.
The questions of fact and law affecting the Class as a whole in this case, include,
but are not limited to, (i) whether Defendants were entitled to charge the rent late fee; (ii) whether
the fee charged was a reasonable estimate of uncertain damages to the landlord; (iii) whether the
uncertain damages were incapable of precise calculation and result from late payment of rent;
(iv)whether each member of the Class is entitled to a refund of the fees; and (v) whether each
member of the Class is entitled to recover a penalty. There are questions of law or fact common to
the class. The commonality prerequisite has been satisfied
Typicality
Rule 42 requires that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” IV . 42(a)(3). “A claim is typical if it
arises from the same event or practice or course of conduct that gives rise to the claims of other
class members, and if his or her claims are based on the same legal theory.” Southwestern Bell
Telephone Co. v. Marketing on Hold Inc., 308 S.W.3d 909, 920 (Tex. 2010), quoting Beattie v.
CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007). Courts evaluate whether there is a nexus
between the injuries alleged by the class representatives and those of absent class members. See
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Employers Cas. Co., 886 S.W.2d at 475. Although the representatives' injuries do not have to be
identical to the injuries of the class, the presented claims must be based on the same legal theories
and must originate from the same course of conduct or event. Weatherly v. Deloitte & Touche
S.W.2d 642, 653 (Tex. App.Houston [14th Dist.] 1995, writ dism'd w.o.j.).
When the claims of both “arise from the same event or practice or course of conduct
... [and] are based on the same legal theory, ... [the typicality requirement] may be satisfied even if
there are factual distinctions between the claims of the named plaintiffs and those of other Class
members.” Texas South Rentals, 267 S.W.3d at 252, quoting De La Fuente v. Stokely Van Camp,
Inc., 713 F.2d 225,