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Hutchins v. Dallas Basketball LimitedHutchins v. Dallas Basketball Limited
The following order sets forth the terms and conditions of an October 21, 2002, Texas District Court Order settling a junk fax class action lawsuit in which the Dallas Mavericks agreed to pay $650,000. The order was provided to KEYTLaw.com by Dean Malone, one of the attorneys involved in representing the plaintiff class. Dean's firm is the Law Offices of Dean Malone, P.C., which handles consumer class actions, significant personal injury cases, and commercial litigation.
NO. 01-10644-A
| TRACEY HUTCHINS, INDIVIDUALLY, D/B/A THE TOOL FACTORY, AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff v. DALLAS BASKETBALL LIMITED D/B/A THE DALLAS MAVERICKS, ITS GENERAL PARTNER RADICAL MAVERICKS MANAGEMENT, LLC, ALL NATURAL PERSONS AND LEGAL ENTITIES D/B/A DALLAS MAVERICKS, and AMERICAN BLAST FAX INC., Defendants, v. RELLIM-88, INC. D/B/A PHASE INDUSTRIES AND THOMAS A. NAGLER, Intervenors. |
THE DISTRICT COURT OF DALLAS COUNTY 14TH JUDICIAL DISTRICT |
ORDER FINALLY APPROVING PROPOSED (1) SETTLEMENT CLASS AND (2) SETTLEMENT
The Court heard on the date subscribed to this order Plaintiffs Motion for Final Approval of Proposed (1) Settlement Class and (2) Settlement (hereinafter the "Motion") and Class Counsel's respective motions for approval of attorneys' fees and costs (hereinafter collectively the "Fee Motions"). After considering (1) the Motion, (2) the Fee Motions, (3) the pleadings and any other papers on file, (4) the argument of counsel, and ( 5 ) any evidence presented at the hearing, the court finds that the Motion and Fee Motions should be and are in all things granted.
Settlement of Claims
THE COURT FURTHER FINDS AND ORDERS that the class action settlement effected hereby forever settles claims against only Defendants Dallas Basketball Limited d/b/a The Dallas Mavericks, its general partner Radical Mavericks Management, LLC, and their parent entities, subsidiary entities, partners, partnerships, predecessor and successor entities or other legal entities, and any officers, directors, partners, agents, dealers, employees, or other representatives of such entities, excluding American Blast Fax, Inc. (hereinafter collectively the "Mavericks"), such claims being described by the Class Action Settlement Agreement Between Defendants Dallas Basketball Limited, Its General Partner Radical Mavericks Management, LLC, and Plaintiff Tracey Hutchins and Supplement to Class Action Settlement Agreement Between Defendants Dallas Basketball Limited, Its General Partner Radical Mavericks Management, LLC, and Plaintiff Tracey Hutchins
Class Certification
THE COURT FURTHER FINDS that the proposed class action settlement satisfies the requirements of Rule 42(a) of numerosity, commonality, typicality and adequacy of representation. The Court further finds that the class action settlement satisfies the requirements of Rule 42(b), in that the class action settlement is a superior way of resolving the class claims in this case and that common issues predominate over individual issues. The Court further finds that the class action settlement is fair, adequate, and reasonable and thereby meets the Rule 42(e) requirements.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the claims against the Mavericks be finally certified as a class action for settlement purposes only pursuant to Texas Rule Of Civil Procedure 42(b)(4) on behalf of the following class of persons:
All natural or legal persons who or which received one or more facsimile advertisements sent by American Blast Fax, Inc., on behalf of, or in the name of the Mavericks.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following persons and courts shall be excluded from the above-described class definition:
Judge Mary Murphy of the 14" District Court in Dallas County, Texas;
All State District Courts in Dallas County, Texas;
The Fifth Court of Appeals in Dallas County, Texas; and
The Texas Supreme Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this class action is finally certified for Settlement purposes to fully and finally resolve the claims against the Mavericks described in the settlement agreement and supplement to same filed in this case.
Class Representatives
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Plaintiff, Tracey Hutchins, individually and d/b/a The Tool Factory, and Intervenors, Rellim-88, Inc. d/b/a Phase Industries and Thomas A. Nagler, shall serve as representative parties on behalf of all members of the settlement class.
Class Counsel
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following person shall continue to serve as Lead Class Counsel for all settlement class members and as Class Administrator:
T. Dean Malone
State Bar No. 24003265
Law Offices of Dean Malone, P.C.
Founder's Square
900 Jackson Street, Suite 730
Dallas, Texas 75202
Telephone: (214) 670-9989
Telefax: (2 14) 670-9904
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following persons shall also serve as Class Counsel for all settlement class members:
Steve McConnico
Ray Donley
Scott, Douglas & McConnico, L.L.P.
600 Congress Avenue, Suite 1500
Austin, Texas 78701-2589
Telephone: (512) 495-6300
Telefax: (5 12) 474-073 1
Opt-Outs and Objections
THE COURT FURTHER FINDS that no class members either opted out of or objected to the class action settlement.
IT IS THEREFORE ORDERED that all persons who are members of the Class shall be bound by the class action settlement and orders entered in this case.
Reasonableness of Settlement
THE COURT FURTHER FINDS, ORDERS, ADJUDGES, AND DECREES that the Class Action Settlement Agreement Between Tracey Hutchins and Dallas Basketball, Ltd. d/b/a The Dallas Mavericks and radical Mavericks Management, LLC (hereinafter the "Agreement") and the Supplement to Class Action Settlement Agreement Between Defendants Dallas Basketball Limited, Its General Partner Radical Mavericks Management, LLC, and Plaintiff Tracey Hutchins (hereinafter "Supplemental Agreement") outline a fair, adequate, and reasonable settlement.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Agreement and Supplemental Agreement are incorporated herein by reference for all purposes and the Parties are ordered to comply with each paragraph of them without exception. Where, if at all, this order and the Agreement or Supplemental Agreement conflict, this order shall control.
Notice to the Class
THE COURT FURTHER FINDS that the Class Administrator caused to be given notice both by publication in the Dallas Morning News and via facsimile, in the manner and within the time period specified by prior orders of this court in this case.
THE COURT FURTHER FINDS that the notice given to the class in this case pursuant to the court's prior orders was sufficient constitutional notice and comported with the notice requirements of Texas Rule of Civil Procedure 42(c)(2) & (e).
Distribution of the Settlement
THIS COURT FINDS that Class Counsel conferred at least the following benefits upon the settlement class:
a. the formation of a $650,000.00 settlement fund;
b. cessation or diminution of unsolicited facsimile ads and;
c. pursuit of this lawsuit.
THE COURT FURTHER FINDS AND ORDERS that Class Counsels' fee applications totaling $230,000.00 ($180,000.00 to Scott, Douglas, & McConnico, L.L.P. and $50,000.00 to Law Offices of Dean Malone, P.C.), or approximately thirty-five percent (35%) of the common fund, should be and are hereby granted.
THE COURT FURTHER FINDS AND ORDERS that the requests for expenses for providing notice to the class and administering the common fund be and are hereby granted.
THE COURT FURTHER FINDS that the Class Administrator properly received, handled, and processed proofs of claims and communications from class members.
THE COURT FURTHER FINDS that the information contained in the Motion regarding proofs of claim received by the Class Administrator is a true and accurate accounting of all proofs of claims made or attempted to be made by class members and which were received by the Class Administrator on or before October 15,2002.
IT IS THEREFORE ORDERED that the following payments shall be made from the $650,000.00 common fund:
-
Total Class notice costs of $19,981.62 (already paid to Dallas Morning News and Captaris Medialinq;
-
Payments to qualifying class members filing proofs of claim of $500.00 for each facsimile claimed to have been received and confirmed on facsimile confirmation logs (totaling $109,500.00);
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Payment to the three class representatives of $5,000.00 each;
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Payment of $50,000.00 to the Law Offices of Dean Malone, P.C. as attorneys' fees;
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Payment to the Law Offices of Dean Malone, P.C. of $3,813.50 for costs incurred prosecuting the litigation and administering the settlement
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Payment of $180,000.00 to Scott, Douglass, & McConnico, L.L.P. for attorneys' fees;
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Payment to Scott, Douglass, & McConnico, L.L.P. of $50,000.00 for costs incurred prosecuting unsolicited facsimile claims against the Mavericks;
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A refund of $125,000 to the Mavericks; and
- Payment to the Dallas Mavericks Foundation of $96,704.88 to be distributed within 120 days of this Order to charities, and solely for charitable purposes, in accordance with the mission and general policies of the Dallas Mavericks Foundation.
IT IS FURTHER ORDERED that all persons filing proofs of claim with the Class Administrator and, whose claim after comparison to the facsimile log (as indicated in the Motion), indicated that no facsimiles were actually received by that person, shall not be paid any monies whatsoever from the common settlement fund or otherwise.
Final Order
All relief not expressly granted herein is hereby denied. This order disposes of all issues and parties in this case and is final for purposes of appeal. The court shall and does hereby retain only that jurisdiction reasonably necessary to resolve any issues regarding administering the common fund and/or fulfilling the purposes of this order.
Signed on the 21 day of October, 2002
Mary Murphy
Judge Presiding
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