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13-172 - Cullan and Cullan LLC v. M-Qube et al


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13-172 - Cullan and Cullan LLC v. M-Qube et al
October 29, 2013
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ORDER - This matter is before the court after a hearing on various motions on October 29, 2013. IT IS ORDERED: The parties and petitioning intervenors shall file additional briefing on or before November 5, 2013. Any responses to the briefing shall be filed on or before November 12, 2013, at which time the motions to intervene will be considered submitted. Ordered by Judge Joseph F. Bataillon. (TCL )
January 30, 2014
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MEMORANDUM AND ORDER - IT IS ORDERED: Richard Geier's motion to intervene (Filing No. 38) is granted. David Hanson and Kristian Kunders motion to intervene ( Filing No. 32) is denied as moot. Intervenor Richard Geier's objections to the proposed settlement agreement are sustained. Plaintiff Cullan and Cullan's motion for preliminary approval of class action settlement (Filing No. 29) is denied without prejudice. The stay of briefing (Filing No. 48) on the pending motions to dismiss or compel arbitration (Filing No. 17 and Filing No. 20) is lifted. The plaintiff shall respond to pending motions within two weeks of the date of this order. A telephonic status hearing is scheduled for February 6, 2014, at 11:00 a.m. (CST). Please email chambers at [email protected] indicating whether you will be participating in the status hearing and, if so, the phone number where you can be reached. The parties shall also brief the issue of whether this action should be transferred to the District of Washington under the first-filed rule within two weeks of the date of this order; Intervenor Geier may respond thereto within one week thereafter. Ordered by Judge Joseph F. Bataillon. (TCL) Modified on 1/30/2014 to change restriction (TCL ).
February 7, 2014
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ORDER - IT IS ORDERED: The plaintiff's oral motion to submit a Motion for Preliminary Approval of Settlement is granted. The plaintiffs shall file a motion for preliminary approval on or before February 21, 2014. Responses to the motion shall be filed within two weeks thereafter, at which time the matter will be considered submitted. Briefing on motions to dismiss or compel arbitration (Filing Nos. 17 and 20) and on the issue of transfer of venue (Filing No. 74) is stayed until further order of the court. Ordered by Judge Joseph F. Bataillon. (TCL )
March 28, 2014
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ORDER - IT IS ORDERED that defendants' motions to dismiss and/or to compel arbitration (Filing Nos. 17 and 20) are hereby denied without prejudice to reassertion. Ordered by Judge Joseph F. Bataillon. (TCL )
January 9, 2015
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PROTECTIVE ORDER - Ordered by Magistrate Judge Thomas D. Thalken. (SLP)
May 5, 2015
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ORDER granting 145 Motion to Extend. Evidentiary Hearing set for 10/29/2015 at 9:30 AM in Courtroom 7, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Magistrate Judge Thomas D. Thalken. Planning Conference set for 10/29/2015 at 10:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Ordered by Magistrate Judge Thomas D. Thalken. (MBM)
May 6, 2015
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ORDER that, on or before May 20, 2015, the plaintiff shall comply with Fed. R. Civ. P. 7.1 or show cause by written affidavit why the plaintiff cannot comply with the rules of the court. Ordered by Magistrate Judge Thomas D. Thalken. (SLP)
August 12, 2015
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ORDER regarding 149 Uncontested Motion for Matters to be Held in Abeyance. Upon consideration, the motion is granted. The deadline for the plaintiff to file a class certification motion is terminated and the October 29, 2015, class certification hearing is cancelled. Telephone Conference set for 9/14/2015 at 10:00 AM by Telephone before Magistrate Judge Thomas D. Thalken to discuss the status of this case. Plaintiff's counsel shall initiate the telephone conference with the undersigned magistrate judge and participating counsel. Ordered by Magistrate Judge Thomas D. Thalken. (SLP)
November 6, 2015
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ORDER - The parties shall have until noon on December 14, 2015, to file a motion to approve a class settlement in this matter. Any party shall have ten business days after the motion is filed to file any objections to such motion. Ordered by Magistrate Judge Thomas D. Thalken. (KLF)
May 5, 2016
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ORDER - The parties shall have until June 1, 2016, to indicate whether the parties consent to disposition of the case by a magistrate judge. The parties may indicate their consent by filing a completed Consent to Exercise Jurisdiction form, which is posted on the court's website, www.ned.uscourts.gov/forms/. If no such form is timely filed, the case will be reassigned to a district judge, and the magistrate judge will handle all nondispositive pretrial matters. Ordered by Magistrate Judge Thomas D. Thalken. (KLF)
September 27, 2016
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parties' motions for preliminary approval of settlements (Filing Nos. 165 and 167) are granted. An Order of Preliminary Approval will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (TCL)MEMORANDUM AND ORDER - IT IS ORDERED: Intervenor Richard Geier's motion to withdraw as intervenor (Filing No. 187) is granted. Intervenor Richard Geier's objections to the proposed settlement (Filing No. 169) are denied as moot. The
September 27, 2016
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ORDER OF PRELIMINARY APPROVAL - Pursuant to the Memorandum and Order 189 entered this date, IT IS ORDERED: The proposed settlements as set forth in the Class Settlement Agreements (Filing No. 166-1, Memorandum, Ex. 1; Filing No. 168-1, Memorandum, Ex. 1) are incorporated herein and are preliminarily approved as within the range of reasonableness for a settlement that is fair, reasonable, and adequate, subject to a hearing for final approval pursuant to Fed. R. Civ. P. 23(c) and (e). For purposes of the proposed settlements, the following settlement classes are certified: The CF Enterprises Settlement Class is defined as: [A]ll current and former Wireless Subscribers Nationwide, who at any time from January 31, 2011, to the Notice Date, received a text message from any Message Claim Shortcode or relating to a Message Claim Program. "Message Claim Shortcode" means the following shortcodes: 25872, 29104, 33288, 44329, 49712, and 70451. Message Claim Program means the following programs: searchyourhoroscope.com; tuneztogo.com; hearmemobile.com; myringtonespot.com; cellsafari.com; tonezgalore.com; urzodiachoroscopes.com; and fonezoneportal.com. The Mobile Messenger Settlement Class is defined as: [A]ll current and former Wireless Subscribers Nationwide, who (a) at any time from January 1, 2010, to the Notice Date, incurred any charge, whether paid or not, associated with any of the billing descriptors, shortcodes, and program names set forth on Exhibit B [to the Mobile Messenger Settlement Agreement and posted on the Settlement Website]; or (b) at any time from January 1, 2010, to the Notice Date, received any message from a Premium Short Code registered at the CTIA to (i) any organization recognized as exempt from federal income taxation under I.R.C. § 501(c)(3) or I.R.C. § 501(c) (4), or (ii) federal political committees registered with the Federal Election Commission. Cullan and Cullan LLC is appointed Class Representative; Ben Barnow and Ralph K. Phalen are appointed as Co-Lead Settlement Class Counsel. Dahl Administration, LLC, is appointed Notice Specialist and Claims Administrator; The parties' proposed notices and plan for notice of proposed class action settlement (Filing No. 166-3, Ex. C; Filing No. 168-3, Ex. C) are hereby approved as to form and substance. The proposed Claim Forms attached as Exhibit A to the Settlements (Filing No. 166-1, Ex. A; Filing No. 168-1, Ex. A) are approved as to form and substance. A Final Fairness Hearing is hereby set for March 2, 2017 at 9:00 a.m., in Courtroom No. 3, Roman Hruska United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska 68102, to determine whether (i) the settlement set out in the Class Settlement Agreement should be finally approved as fair, reasonable, adequate, and in the best interests of the Settlement Class. Within ten (10) days of the date of this order, defendants shall notify the appropriate federal and state officials of this proposed class settlement pursuant to 28 U.S.C. § 1715. Defendants shall file a certificate of compliance with respect to the CAFA Notice within 10 days thereafter. Ordered by Senior Judge Joseph F. Bataillon. (TCL)
March 3, 2017
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r Judge Joseph F. Bataillon. (ADB)ORDER that defendants PostSMS Qube Co, Inc.'s (formerly M-Qube, Inc.) and PostSMS Americas Co, Inc.'s (formerly Mobile Messenger Americas, Inc.) motion to reschedule the final fairness hearing (Filing No. 203) is denied. Ordered by Senio
March 16, 2017
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ORDER OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT - IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: The Representative Plaintiff's Motion for Final Approval of Class Action Settlements, and Awards of Attorneys' Fees, Costs, and Expenses, and Class Representative Service Awards (Filing No. 204) is granted. This action is certified as a class action under Fed. R. Civ. P. 23(b)(3) composed of:The Mobile Messenger Settlement Class: [A]ll current and former Wireless Subscribers Nationwide, who at any time from January 1, 2010, to the Notice Date, incurred any charge, whether paid or not, associated with any of the billing descriptors, shortcodes, and program names set forth on Exhibit B [to the Mobile Messenger Settlement Agreement and posted on the Settlement Website]; or (b) at any time from January 1, 2010, to the Notice Date, received any message from a Premium Short Code registered at the CTIA to (i) any organization recognized as exempt from federal income taxation under I.R.C. § 501(c)(3) or I.R.C. § 501(c)(4), or (ii) federal political committees registered with the Federal Election Commission. The CFE Settlement Class: [A]ll current and former Wireless Subscribers Nationwide, who at any time from January 31, 2011, to the Notice Date, received a text message from any Message Claim Shortcode or relating to a Message Claim Program.The following Persons are excluded from the Mobile Messenger Settlement and CFE Settlement Classes: Defendants, the Claims Administrator, and any of aforementioned respective parent, subsidiary, affiliate and control persons of Defendants, as well as the officers, directors, agents, servants, and employees of Defendants, any trial judge presiding over this case, and the immediate family members of any such Person(s). The Settlements (Filing No. 166-1 and 168-1) are hereby granted final approval and incorporated herein as if fully set forth. Representative Plaintiff and Defendants shall consummate the Settlements according to the terms thereof. All the claims alleged in the Action are hereby dismissed with prejudice, each party to bear his own costs, except as may be expressly provided in the Settlements. The terms "Action," "Approved Claim," "Released Party," and "Settled Claims," from the Mobile Messenger Settlement and CFE Settlement are incorporated herein by reference with respect to Paragraphs 7 through 10 of this Memorandum and Order. Mobile Messenger Settlement Class members shall be deemed to and hereby have fully, finally, and forever released any and all right to file or participate in a class action or mass action for the claims made or which could have been made in the Action against any Released Party. Representative Plaintiff and all Mobile Messenger Settlement Class members who have filed and been paid their Approved Claims under the Mobile Messenger Settlement shall be deemed to and have, fully, finally, and forever expressly waived and relinquished with respect to Settled Claims, to the fullest extent permitted by law, any and all provisions, rights, and benefits of section 1542 of the California Civil Code and any similar provisions, rights, and benefits conferred by any law of any state or territory of the United States or principle of common law that is similar, comparable, or equivalent to section 1542 of the California Civil Code, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Without in any way limiting the terms as defined in the Mobile Messenger Settlement, Darcy Wedd, Erdolo Eromo, Michael Pajaczkowski and Fraser Thompson, who have been named in governmental actions based on or related to the facts and circumstances underlying the Action, are not Released Parties under the Mobile Messenger Settlement. CFE Settlement Class members shall be deemed to and hereby have fully, finally, and forever released any and all rights to file or participate in a class action or mass action for the claims made or which could have been made in the Action against any Released Party and the claims made or which could have been made against Mobile Messenger and its past and present officers, directors, employees, attorneys, representatives, agents and stockholders (except for Darcy Wedd, Erdolo Eromo, Michael Pajaczkowski and Fraser Thompson who have been named in governmental actions based on or related to the facts and circumstances underlying this Action) relating to the transmission of text messages to CFE Settlement Class members' mobile devices. Representative Plaintiff and all CFE Settlement Class members who have filed and been paid their Approved Claims under the CFE Settlement shall be deemed to and have, fully, finally, and forever expressly waived and relinquished with respect to Settled Claims, to the fullest extent permitted by law, any and all provisions, rights, and benefits of section 1542 of the California Civil Code and any and all similar provisions, rights, and benefits conferred by any law of any state or territory of the United States or principle of common law that is similar, comparable, or equivalent to section 1542 of the California Civil Code, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Additionally, CFE Settlement Class members who have filed and been paid their Approved Claims as provided for under the CFE Settlement shall be deemed to have and shall have, fully, finally, and forever expressly waived and relinquished any right to bring claims against Mobile Messenger relating to the transmission of text messages to CFE Settlement Class members' mobile devices including, but not limited to, claims under the Telephone Consumer Protection Act. Settlement Class Counsel is awarded attorneys' fees, costs, and expenses from defendant Mobile Messenger in the amount of $485,000 and attorneys' fees, costs, and expenses from defendant CFE in the amount of $125,000. Payments shall be made by defendants to Class Counsel in accordance with the terms of the Settlements. The Representative Plaintiff is awarded $2,500 from defendant Mobile Messenger and $2,500 from defendant CFE for service in connection with the Settlements. Payments shall be made by Mobile Messenger and CFE to the Representative Plaintiff in accordance with the terms of the Settlements. Without affecting the finality of this Memorandum and Order in any way, the court retains continuing jurisdiction over Representative Plaintiff, Mobile Messenger, CFE, the Mobile Messenger Settlement Class, and the CFE Settlement Class for the administration, consummation, and enforcement of the terms of the Settlements. A judgment for attorney fees, costs and representative payments will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (TCL)
September 8, 2017
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ORDER that Frederick Banks's motions to intervene (Filing No. 212 in 8:13cv172; Filing No. 169 in 8:16cv200) are denied. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (ADB)