UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FALISCIA C. KNUCKLES, on behalf 

of herself and all others similarly situated, 

 Plaintiff, 

v. Civil Case No. 15-10175 

 Honorable Linda V. Parker 

MARY JANE ELLIOTT, PC, 

 Defendant. 

_________________________________/ 

OPINION AND ORDER GRANTING FINAL APPROVAL OF 

SETTLEMENT

Plaintiff Faliscia Knuckles filed this lawsuit on behalf of herself and all 

those similarly situated, alleging that a debt collection notice sent by Defendant 

Mary Jane M. Elliott P.C. (“Defendant”) violates the Fair Debt Collection Practice 

and Michigan’s Regulation of Collection Practices Act. The parties reached a 

class-wide settlement and this matter presently is before the Court for final 

approval of the settlement. The Court held a final approval hearing on May 17, 

2016. For the reasons that follow, the Court grants final approval of the class-wide 

settlement. 

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I. Background 

A. Generally

 Ms. Knuckles initiated this putative class action lawsuit against Defendant 

on January 16, 2015. In her Complaint, Ms. Knuckles claims she received a letter 

from Defendant on or around September 3, 2014, seeking to collect a consumer 

debt Ms. Knuckles incurred from Synchrony Bank. Ms. Knuckles contends that 

Defendant’s letter failed to inform her of her need to seek verification of the debt 

in writing within thirty (30) days, as required by the law. In other words, Ms. 

Knuckles claims that the debt collection letter, as written, encourages debtors to 

verbally contact Defendant regarding the debt. 

 Ms. Knuckles filed a motion for class certification shortly after filing her 

Complaint. (ECF No. 3.) Defendant filed an Answer to the Complaint on 

February 25, 2015. (ECF No. 9.) The Court thereafter entered a scheduling order 

establishing inter alia a discovery deadline of September 30, 2015, and a 

dispositive motion cut-off of October 30, 2015. (ECF No. 11.) On April 13, 2015, 

Ms. Knuckles filed an Amended Complaint adding no new claims. (ECF No. 13.) 

She filed a renewed motion for class certification on August 17, 2015. (ECF No. 

16.) 

 In her motion, Ms. Knuckles informed the Court that the parties engaged in 

discovery and agreed to engage in settlement discussions. She further indicated 

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that the parties thereafter reached a settlement agreement, which Ms. Knuckles 

signed on October 13, 2015.1

 (ECF No. 19, Ex. 1.) On October 16, 2015, Ms. 

Knuckles filed a motion seeking preliminary approval of the settlement, 

appointment of Ms. Knuckles as Class Representative and Brian Parker as Class 

Counsel, and certification of a Settlement Class. (ECF No. 19.) The Court entered 

an order granting Ms. Knuckles’ motion on December 9, 2015, scheduling a 

fairness hearing for April 20, 2016. The hearing subsequently was moved to May 

17, 2016. 

B. The Class, Class Representative, and Class Counsel 

 The parties’ settlement agreement (hereafter “Settlement”) certifies for 

settlement purposes only the following Class pursuant to Federal Rule of Civil 

Procedure 23(a) and (b)(3): 

All persons who, during the period of time from January 16, 2009, 

through the date of approval of the Settlement, received a letter from 

Defendant that was sent in an effort to collect a debt incurred 

primarily for personal, family or household purposes, which failed to 

notify the person that the he or she had thirty (30) days within which 

to dispute the debt in writing, as provided by 15 U.S.C. § 1692g(4). 

(ECF No. 19, Ex. 1 ¶ 1.) The Settlement provides that if more than twenty-five 

(25) members of the Class opt out of the Settlement, either party has an 

independent right (but not obligation) to withdraw from the Settlement. (Id. ¶ 8.) 

 

1 The copy of the agreement submitted to the Court by Ms. Knuckles does not 

include a signature by Defendant or Defendant’s counsel. (ECF No. 19, Ex. 1.) 

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 At the fairness hearing, the Court expressed concern about the Class 

definition, specifically whether the inclusion of individuals who received a letter 

from Defendant “through the date of approval of the Settlement,” meant the 

preliminary approval or final approval of the Settlement. If the latter were 

intended, individuals receiving a letter from Defendant after the preliminary 

approval order would not necessarily receive Notice of the lawsuit in a timely 

matter. In other words, as defined, an individual receiving a letter from Defendant 

on the day before the fairness hearing would be included in the Class; however, 

that individual would not have received notice nor the opportunity to object to the 

Settlement or to exclude him or herself from the Class. The parties informed the 

Court at the fairness hearing, however, that Defendant ceased sending the 

complained of letter in October 2015.

 The Settlement does not include an agreement with respect to the 

appointment of Ms. Knuckles as Class Representative or Brian Parker as Class 

Counsel. It does state, however, that Ms. Knuckles will move for such 

appointments when she seeks preliminary approval of the Settlement. (Id. ¶ 1.) 

Ms. Knuckles in fact did seek the appointments of Class Representative and Class 

Counsel when she sought preliminary approval of the Settlement, and the Court 

made the appointments in its December 9, 2015 order. (ECF No. 21 ¶ 4, 5.) 

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C. The Settlement

 The Settlement, as reached by the parties, requires Defendant to pay 

$7,910.00 (“Settlement Fund”) to the Class Administrator within ten days of final 

approval of the Settlement. (Id. ¶ 10.) The Claims Administrator then will 

distribute $14.00 to each Class member who timely returns a valid Proof of Claim 

form. (Id.) Any portion of the Settlement Fund that is unclaimed by Class 

members after ninety (90) days shall result in a cy pres distribution to the National 

Consumer Law Center.2

 (Id.) 

 Within ten days of final approval of the Settlement, Defendant shall send 

Ms. Knuckles’ counsel, Brian Parker, a check made payable to Ms. Knuckles for 

$2,500.00, representing payment of statutory damages and a class incentive award. 

(Id. ¶ 11.) Within the same time frame, Defendant is required to send a check to 

Brian Parker, as Class Counsel, representing payment of the approved attorneys’ 

fees and cost. (Id.) 

 

2 “Cy pres” is a term meaning “as near as possible” and in class action settlements 

refers to the parties’ plan for the “next best use” of the settlement funds that cannot 

be distributed to class members or remains unclaimed following the distribution.

Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011) (internal quotation 

marks and citations omitted). Cy pres payments like those proposed in this case 

can be approved when actual funds are “non-distributable,” or “ ‘where the proof 

of individual claims would be burdensome or distribution of damages costly.’ ” Id. 

(quoting Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1305 (9th 

Cir.1990)). In re Google Referrer Header Priv. Litig., 87 F. Supp. 3d 1122, 1132 

(N.D. Cal. 2015) 

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 In exchange for Defendant’s payments, the Class members release 

Defendant and any and all of its past or present officers, directors, shareholders, 

members, agents, employees, representatives, predecessors, successors, assigns, 

attorneys, and insurers from any and all claims, causes of action, and/or demands 

that exist as of the date of the final order of approval, including all claims that were 

or could have been raised in the litigation. (Id. ¶ 12.) 

D. Notice

 The preliminary approval order required Defendant or its designee, within 

thirty days of the order of preliminary approval, to mail the Class Notice to the 

Class members at the most current address reflected in Defendant’s records, with a 

notation on the envelopes requesting address correction. (Id. ¶ 6.) If any notice is 

returned with a new address, Defendant or its designee was required to re-mail the 

notice to the new address. (Id.) For any address returned as undeliverable, 

Defendant or its designee was required to take certain steps to identify a new 

address for the Class member. (Id.) The preliminary approval order excuses 

Defendant or it designee from re-sending a notice returned by the postal service 

less than seven days before the final approval hearing. (Id.) 

 Within ten days after the filing of the motion for preliminary approval, 

Defendant also was required to notify the appropriate Federal and State officials of 

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the Settlement in accordance with the Class Action Fairness Act, 28 U.S.C. § 1715. 

(Id. ¶ 7.) 

 On April 6, 2016, Defendant filed the affidavit of Bailey Hughes outlining 

Defendant’s compliance with the notice requirements. (ECF No. 26.) According 

to Hughes, Defendant appointed First Class, Inc. (“First Class”) as Class 

Settlement Administrator. (Id. ¶ 2.) Defendant, through its counsel, provided First 

Class with list of Class members, containing 565 records. (Id. ¶ 3.) Prior to 

mailing the Notice to the individuals on the list, First Class took steps to verify the 

correctness of the addresses provided by Defendant and to remove duplicate 

records. (Id. ¶¶ 4, 5.) Twelve duplicate records were found, resulting in First 

Class mailing Notices to 553 Class members on December 30, 2015. (Id. ¶ 6.) 

 As of April 4, 2016, thirty-three (33) Notices were returned as undeliverable 

with no forwarding address or further information from the postal service. (Id. 

¶ 8.) 

 Defendant’s counsel filed an affidavit on December 18, 2015, indicating that 

notice of the proposed settlement had been mailed to the United States Attorney 

General and Attorney General for the State of Michigan in accordance with the 

Class Action Fairness Act. (ECF No. 24.)

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E. Attorneys’ Fees

 The Settlement provides that Class Counsel may move for an award of 

attorneys’ fees and costs not to exceed $22,500. (Id. ¶ 13.) Defendant agreed not 

to object to Class Counsel’s fee and expense application not exceeding $22,500; in 

exchange, Class Counsel agreed not to seek an award exceeding that amount. (Id.) 

The parties otherwise agreed to bear their own fees, costs, and expenses incurred in 

connection with this litigation. (Id. ¶ 24.) 

 Class Counsel filed an “unopposed” motion for attorneys’ fees on March 9, 

2015, in which he sought an award of attorneys’ fees and costs totaling 

$20,350.000. (ECF No. 25.) The Court granted the motion at the fairness hearing. 

F. Objections, Exclusions & Claim Forms

 As of April 4, 2016, First Class had received no objections to the Settlement 

and no requests for exclusion. (ECF No. 26 ¶¶ 9, 10.) No objections or requests 

for exclusion have been received by the Court. At the fairness hearing, however, 

the parties informed the Court that one request for exclusion from the Class had 

since been received from Ms. Michele Gray. 

 As of April 4, 2016, First Class had received fifty-six (56) valid Proof of 

Claim forms postmarked on or before the cutoff date of March 30, 2016. (Id. 

¶ 11.) Two additional forms were received thereafter. This means that 494 Class 

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members have not responded to the Notice. Stated alternatively, only 

approximately ten percent (10%) of Class members responded. 

II. Final Approval of Settlement Agreement

A. Applicable Standard

 Rule 23(e) of the Federal Rules of Civil Procedure sets forth the procedures 

for the settlement of class actions. Pursuant to the rule, the court’s role is to 

determine whether the proposed settlement is “fair, reasonable, and adequate.” 

Fed. R. Civ. P. 23(e)(2). In making this determination, the court considers whether 

the interests of the class as a whole are better served if the litigation is settled 

rather than pursued.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 522 

(E.D. Mich. 2003). As one judge in this District has observed: 

“In assessing the settlement, the Court must determine ‘whether it 

falls within the range of reasonableness, not whether it is the most 

favorable possible result in the litigation.” ’ In re Domestic Air 

Transp. Antitrust Litig., 148 F.R.D. 297, 319 (N.D. Ga. 1993) 

(quoting Fisher Bros. v. Cambridge-Lee Indus., 630 F. Supp. 482, 489 

(E.D. Pa. 1985)). An appropriate range of reasonableness “recognizes 

the uncertainties of law and fact in any particular case and the 

concomitant risks and costs necessarily inherent in taking any 

litigation to completion.” Frank v. Eastman Kodak Co., 228 F.R.D. 

174, 186 (W.D.N.Y. 2005) (quoting Newman v. Stein, 464 F.2d 689, 

693 (2d Cir. 1972)). Under this standard, “[a] just result is often no 

more than an arbitrary point between competing notions of 

reasonableness.” In re Corrugated Container Antitrust Litig. (II), 659 

F.2d 1322, 1325 (5th Cir. 1981). 

Intl. Union v. Ford Motor Co., No. 05-74730, 2006 WL 1984363, at *21 (E.D. 

Mich. July 13, 2006), aff’d sub nom. UAW v. Gen. Motors Corp., 497 F.3d 615 

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(6th Cir. 2007). Class counsel bears the burden of persuading the Court that the 

proposed settlement is fair, reasonable, and adequate. Manual for Complex 

Litigation § 21.631 (4th ed.). 

 Courts in the Sixth Circuit find eight factors relevant in considering whether 

a class action settlement is fair, adequate, and reasonable: 

“(1) the risk of fraud or collusion; (2) the complexity, expense and 

likely duration of the litigation; (3) the amount of discovery engaged 

in by the parties; (4) the likelihood of success on the merits; (5) the 

opinions of class counsel and class representatives; (6) the reaction of 

absent class members; and (7) the public interest.” 

Moulton v. U.S. Steel Corp., 581 F.3d 344, 349 (6th Cir. 2009) (quoting UAW v. 

Gen. Motors Corp., 497 F.3d at 631). “The district court enjoys wide discretion in 

assessing the weight and applicability of these factors.” Granada Investments, Inc. 

v. DWG Corp., 962 F.2d 1203, 1205-06 (6th Cir. 1992); see also Ford Motor Co., 

2006 WL 891151, at *14 (“The court may choose to consider only those factors 

that are relevant to the settlement at hand and may weigh particular factors 

according to the demands of the case.”). 

 In accordance with Rule 23, notice to a class certified under Rule 23(b)(3) 

must be “the best notice that is practicable under the circumstances, including 

individual notice to all members who can be identified through reasonable effort.” 

Fed. R. Civ. P. 23(c)(2)(B). The notice must inform class members of the 

following: 

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(i) the nature of the action; (ii) the definition of the class certified; (iii) 

the class claims, issues, or defenses; (iv) that a class member may 

enter an appearance through an attorney if the member so desires; (v) 

that the court will exclude from the class any member who requests 

exclusion; (vi) the time and manner for requesting exclusion; and (vii) 

the binding effect of a class judgment on members under Rule 

23(c)(3). 

Fed. R. Civ. P. 23. 

B. Application 

 At the fairness hearing, the Court informed the parties that it was not 

inclined to grant final approval of the Settlement in light of the small award to 

Class Members when compared to the cy pres distribution. With fifty-eight (58) of 

the 553 Class members submitting valid Proof of Claim forms, only $812.00 of the 

$7,910.00 Settlement Fund would be paid to Class members. In other words, 

approximately only ten percent (10%) of the Settlement Fund (or $812.00) would 

be distributed to Class members and approximately ninety percent (90%) or 

$7,098.00 would be distributed as cy pres to a third party. Thus, the real winner in 

the Settlement-- aside from Ms. Knuckles and Class Counsel-- would be the 

National Consumer Law Center. While the National Consumer Law Center might 

provide valuable services to the public, the Court does not believe that it is the 

purpose of FDCPA class action litigation to financially support such institutions. 

 Moreover, courts have a duty to examine cy pres distributions to assure that 

they are the “next best” remedy to direct payments to class members. See 

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Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011). A district court 

should not approve a cy pres distribution “unless it bears a substantial nexus to the 

interests of the class members” in that it “account[s] for the nature of the plaintiffs’ 

lawsuit, the objectives of the underlying statutes, and the interests of the silent 

class members.” Lane v. Facebook, Inc., 696 F.3d 811, 821 (9th Cir. 2012) 

(quoting Nachshin, 663 F.3d at 1036). The Court suggested at the fairness hearing 

that an alternative pro rata distribution of the Settlement Fund would be fair, and 

the parties agreed on the record to such a distribution as an alternative to the $14 

per Class member payment. 

The Court concludes that due process does not require notice to all Class 

members of this modification to the Settlement. District courts considering the 

issue hold that notice of an amendment is required only where the amendment 

“ ‘would have a material adverse effect on the rights of class members.’ ” 

Keepseagle v. Vilsack, 102 F. Supp. 3d 306, 313 (D.D.C. 2015) (emphasis added) 

(quoting In re Diet Drugs Prods. Liability Litig., No. 99-20593, 2010 WL 

2735414, at *6 (E.D. Pa. July 2, 2015)); see also Harris v. Graddick, 615 F. Supp. 

239, 244 (M.D. Ala. 1985) (“Under these limited circumstances where the 

amendment is narrow and it is clearly apparent that the interests of the classes are 

not substantially impaired, the court is of the opinion that the notice already given 

is adequate and that additional notice is not required pursuant to Rule 23(e).”); 

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Manual for Complex Litigation § 21.61 (4th ed.) (“if the fairness hearing leads to 

substantial changes adversely affecting some members of the class, additional 

notice, followed by an opportunity to be heard, might be necessary.”). As the 

District Court for the District of Columbia further observed in Keepseagle, “where 

an amendment would merely ‘provide many additional benefits, including 

additional funding for research related to a medical condition connected to the 

class’s injury and a guarantee . . . regarding defendant’s continued payment 

obligations,’ no legal right was adversely affected and Rule 23(e) did not apply.” 

102 F. Supp. 3d at 313 (quoting In re Diet Drugs, 2010 WL 2745414, at *6) 

(brackets omitted). Additional courts have reached the same conclusion. Shaffer 

v. Cont’l Cas. Co., 362 F. App’x 627, 631 (9th Cir. 2010) (“Although changes 

were made to the release after potential class members received the notice, the 

changes did not render the notice inadequate they narrowed the scope of the 

release.”); In re Integra Realty Resources, Inc., 262 F.3d 1089, 1111 (10th Cir. 

2001) (supplement notice not required where a proposed amendment merely 

“expands the rights of class members”); In re Prudential Ins. Co. Sales Practices 

Litig., 962 F. Supp. 450, 473 n. 10 (D.N.J. 1997) (“class members need not be 

informed of the Final Enhancements to the settlement because the Proposed 

Settlement is only more valuable with these changes.”), aff’d 148 F.3d 283 (3d Cir. 

1998).; In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 

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351, 386 (E.D. Pa. 2015) (“Because these changes improved the deal for Class 

Members without providing any concessions to the NFL Parties, an additional 

round of notice for Class Member is unnecessary.”). 

The court’s decision in Keepseagle is particularly instructive because the 

modification in that case involved the settlement agreement’s provision for the cy 

pres funds. 102 F. Supp. 3d at 314. The court had to decide whether alternative 

procedures for distribution of those funds should be made, including a proposal by 

which the funds were paid directly to class members. Id. Citing several cases, the 

court concluded that no class member retained a live legal claim to those funds and 

thus the proposed modifications to the distribution of the funds did not alter the 

legal rights of class members. Id. at 314-15 (citations omitted). The court 

explained: 

Those who participated in the Settlement Agreement’s process 

assented to the extinction of their legal claims through their 

participation. Those who did not participate but failed to opt out 

similarly had their legal claims extinguished. . . . Accordingly, no 

member of the Class retains a live legal claim. 

Nor does any individual class member have a property interest in the 

unclaimed funds . . . 

Because all class members have settled their legal claims and retain 

no property interest in the unclaimed funds, a modification of the 

procedures for distributing unclaimed funds as cy pres would not alter 

the legal rights of any class member. The class members are affected 

to the extent that they would like the Settlement Agreement to be 

modified to permit additional payments directly to class members. 

But that is not a harm caused by the proposed modification; rather, it 

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stems from the plain language of the Settlement Agreement. The 

modifications to the cy pres distribution scheme therefore do not have 

a material impact on the legal rights of any class member, making 

Rule 23(e)’s procedural requirements inapplicable. 

Keepseagle, 102 F. Supp. 3d at 314-16 (italics removed). 

Similarly, in the present case, the modification involves changes to the 

agreed upon cy pres distribution and it improves the deal for Class members. As 

such, Class members who will receive a larger distribution and individuals who 

failed to opt-out or submit a Proof of Claim form-- and thus who have waived 

whatever rights they had in the Settlement Fund-- need not receive notice of the 

modification. However, the Court directed the parties to provide the one 

individual who chose to opt-out of the Class with notice of the modification and an 

opportunity to rejoin the Class.3

 See In re Nat’l Football League Players’ 

Concussion Injury Litig., 307 F.R.D. at 386 (providing notice of settlement 

agreement amendments which improved the deal for class members to class 

members who opted out, and allowing those individuals to rejoin the class, even 

though re-notice to remaining class members was unnecessary). 

 

3 On July 7, 2016, Defendant submitted the affidavit of one of its attorneys, Jason 

M. Renner, who states that he sent a letter to Michele Gray, the individual who 

opted-out of the Class. (ECF No. 30.) The letter, which is attached to Mr. 

Renner’s affidavit, informs Ms. Gray of the modification in the Settlement terms 

and her opportunity to rejoin the Class if she submits an enclosed Proof of Claim 

form before July 2, 2016. (Id., Ex. A.) In his affidavit, Mr. Renner provides that 

Ms. Gray did not return the Proof of Claim form or otherwise contact him as of 

July 7, 2016. (ECF No. 30 ¶¶ 4, 5.) 

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 At the fairness hearing, the Court conditionally granted final approval of the 

proposed class action settlement with the modification. As the Court stated on the 

record, applying the relevant factors, the modified settlement agreement is “fair, 

reasonable, and adequate.” The Court additionally granted final certification of the 

Settlement Class. 

 Accordingly, 

IT IS ORDERED that the Court GRANTS final approval of the Settlement. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: July 20, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, July 20, 2016, by electronic and/or U.S. 

First Class mail. 

 s/ Kelly Winslow for Richard Loury 

 Case Manager 

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