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Family Medicine Pharmacy, LLC v. Perfumania Holdings, Inc.

United States District Court, S.D. Alabama, Southern Division

June 30, 2017

FAMILY MEDICINE PHARMACY LLC, Plaintiff,
v.
PERFUMANIA HOLDINGS, INC., et al., Defendants.

          FINAL JUDGMENT AND ORDER APPROVING CLASS SETTLEMENT

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on plaintiff's Unopposed Motion for Final Approval of Class Action Settlement and Entry of Final Judgment (doc. 92) and plaintiff's Motion for Award of Attorneys' Fees, Expenses and Incentive Payments for Class Representatives (doc. 94). For the reasons set forth herein, both Motions are granted.

         On December 14, 2016, the undersigned entered an Order (doc. 86) granting preliminary approval (the “Preliminary Approval Order”) of the settlement reached between plaintiff, Family Medicine Pharmacy LLC (“Family Medicine”), on its own behalf and on behalf of the settlement class, and defendants, Perfumania Holdings, Inc., Perfumania, Inc., Quality King Fragrance, Inc., and Quality Fragrance Group. This settlement is memorialized in a 43-page Settlement Agreement and Release attached as Exhibit 1 to plaintiff's Motion for Final Approval of Class Action Settlement (doc. 92). Capitalized terms used herein shall have the same meanings ascribed to them in the Settlement Agreement.

         On June 29, 2017, the Court held a fairness hearing. Counsel for all parties participated in the hearing telephonically, with the Court's prior approval. (See doc. 95.) Members of the Settlement Class were given appropriate notice of the Fairness Hearing and were invited to attend in order to assert any objections to the terms of the Settlement Agreement or plaintiff's requests for approval/award of attorney's fees, class representative incentive payment and reimbursement of expenses. Pursuant to the Preliminary Approval Order and Rule 23(e), Fed.R.Civ.P., an opportunity to be heard was given to all such class members at the Fairness Hearing; however, no persons other than the parties and their counsel appeared at the Fairness Hearing, requested leave of court to address any aspect of the proposed settlement, or filed any notice, request or motion prior to the Fairness Hearing requesting an opportunity to be heard or articulating any objections to the settlement, the requested attorney's fee award, incentive payments or expense reimbursement.

         The Court having considered the Settlement Agreement, plaintiff's Memorandum Brief of Points and Authorities (doc. 93), the Motions and exhibits thereto, the Preliminary Approval Order, and the arguments and evidence presented at the Fairness Hearing, it is hereby ORDERED as follows:

         1. This Court has jurisdiction over Plaintiff, Defendants, members of the Settlement Class, the Escrow Account, and the claims asserted in this action.

         2. The Settlement Agreement was entered into in good faith following arm's length negotiations, including a mediation session before an experienced mediator.

         3. This Court grants final approval of the Settlement Agreement, including but not limited to the Releases set forth therein, and finds that the Settlement Agreement is in all respects fair, adequate and reasonable, is not the product of collusion between the parties, and is in the best interests of the Settlement Class.[1] All members of the Settlement Class that have not opted out are bound by this Order.

         CLASS CERTIFICATION

         4. The class that was conditionally certified in the Preliminary Approval Order is now finally certified, solely for purposes of this Settlement, pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, to-wit:

All Persons with fax numbers who, between January 1, 2011 through and including the date of entry of the Preliminary Approval Order, received any successful transmission of an unsolicited fax from Defendants advertising Defendants' products and/or services.

         5. The Court finds that certification of the Settlement Class solely for purposes of this settlement is appropriate for the reasons set forth in detail in the Preliminary Approval Order, including the following: (a) the Settlement Class is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the Settlement Class that predominate over those questions affecting only individual Settlement Class Members; (c) Family Medicine's claims are typical of the claims of the Settlement Class; (d) Family Medicine has adequately protected, and will adequately protect, the interests of the Settlement Class; (e) McFerrin Law Firm LLC and Zarzaur Mujumdar & Debrosse are adequate Settlement Class counsel; and (f) a class action is superior to other available methods for adjudicating the controversy.

         6. Family Medicine is designated as Class Representative of the Settlement Class.

         7. James H. McFerrin of McFerrin Law Firm LLC in Birmingham, Alabama, and Diandra S. Debrosse Zimmermann of Zarzaur Mujumdar & Debrosse in Birmingham, ...


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