UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASON BENNETT, on behalf of himself 

and all others similarly situated, 

Plaintiff,

v.

BOYD BILOXI, LLC d/b/a IP Casino 

Resort and Spa, 

Defendant.

Civil Action No. 14-00330-WS-M

ORDER APPROVING CLASS ACTION SETTLEMENT

The Court having held a Final Approval Hearing on November 7, 2016, and 

having considered all matters submitted to it at the Final Approval Hearing and 

otherwise, and finding no just reason for delay in entry of this Order, and good cause 

appearing therefore,

It is hereby ORDERED AND DECREED as follows:

1. This Order incorporates by reference the definitions in the Amended 

Settlement Agreement, and all terms used herein shall have the same meanings as set 

forth in the Amended Settlement Agreement unless set forth differently in this Order. The 

terms of this Court's Preliminary Approval Order (Doc. 100) are also incorporated by 

reference in this Order.

2. On July 16, 2014 Plaintiff Jason Bennett filed a class action lawsuit 

alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 

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(“TCPA”). On October 7, 2014, Plaintiff filed a First Amended Complaint against Boyd 

Biloxi, LLC d/b/a IP Casino Resort and Spa (“Boyd Biloxi”) alleging that calls it made 

offering Plaintiff and his putative class free tickets to concerts or other special 

promotions violated the TCPA, as the call recipients had not given prior express written 

consent to Defendant to make such calls.

3. Class Conditionally Certified. The Settlement Class was conditionally 

certified for settlement purposes in this Court's Preliminary Approval Order:

All persons who, since October 16, 2013 through May 11, 2016, received a 

telephone call to a residential or cellular telephone number initiated by, on 

behalf of or at the direction of Boyd Biloxi which used an artificial and/or 

pre-recorded voice message or was placed by an automatic telephone 

dialing system. 

(Doc. 100). As stated below, the Court grants final certification of the Settlement 

Class. 

4. Pre-Notice Exclusions and Special Class Members. In its Preliminary 

Approval Order, the Court determined that 52 of the putative Class Members should be 

excluded from the class based on their appearance on self-exclusion lists maintained by 

state gaming regulatory boards. Also, the Court granted the parties’ request to include 35 

individuals who were identified as persons no longer allowed on Defendant’s premises.1 

The Court ordered that the special notice proposed by the parties be sent to those 35 

members. Based on the information provided to the Court regarding the mailing of the 

notice, the Court finds that special notice has been delivered consistent with its previous 

 1 Defendant initially identified 25 individuals no longer permitted on the premises but later requested to add an 

additional 10 and that request was granted. (See Doc.s 101 & 102)

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order. The Court further finds the 52 excluded members shall be excluded from the class 

addressed in this Final Approval Order.

5. Jurisdiction. The Court has jurisdiction over the subject matter of this 

Action and all Parties to the Action, including all Settlement Class Members, including, 

without limitation, jurisdiction to approve the proposed Settlement, grant final 

certification of the Settlement Class, and dismiss this Action with prejudice.

6. Final Certification of Settlement Class Pursuant to Rule 23. For the 

reasons set out in its Preliminary Approval Order, the Court finds that, for purposes of 

approving and effectuating the Settlement embodied in the Amended Settlement 

Agreement, and only for such purposes, the prerequisites for certifying this Action as a 

class action under Federal Rule of Civil Procedure 23(a) and (b)(3) have been met. 

Therefore, the Court hereby grants final certification of the class described herein. 

7. Delivery of Notice. Notice was mailed to a total of 68,300 class 

members. The Claims Administrator reports that, upon exhaustion of the its re-mailing 

procedures, as of November 3, 2016, 585 re-mailed notices were returned as 

undeliverable. This renders a presumed delivery rate to the class of 99.1%. The Claims 

Administrator is directed to maintain a list identifying the class members to whom notice 

was returned as undeliverable and provide that list to counsel. 

The Claims Administrator also established, on August 18, 2016, a stand-alone 

website to provide notice of the Settlement, located at www.bennettcpacase.net and 

established a toll-free call center on August 22, 2016.

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The Court finds that Class Notice was delivered in the manner required as 

set out in the Preliminary Approval Order. The Court further finds that delivery 

and attempted delivery of returned notices have been executed as required. 

Pursuant to Federal Rule of Civil Procedure 23(c)(2) and (e), the Class Notice provided 

to the Settlement Class constitutes the best and most practicable notice under the 

circumstances. The Class Notice and related Class Notice plan was designed to provide 

notice in the manner most likely to be received and read by Settlement Class Members. 

The Claims Administrator, through Defendant, has filed with the Court proof of 

compliance with the Class Notice plan in accordance with this Court's Preliminary 

Approval Order. The Settlement Class received valid, due, and sufficient notice that 

complied fully with Federal Rule of Civil Procedure 23 and the Constitutional 

requirements of due process.2 The Court hereby finds and concludes that the Class Notice 

provided by the Claims Administrator to the appropriate state and federal officials 

pursuant to 28 U.S.C. § 1715 fully satisfied the requirements of that statute. 

8. Requests for Exclusion. The deadline for submission of exclusion 

requests was October 4, 2016. Of the 68,300 notices mailed, only 33 class 

members submitted requests for exclusions. The Court finds that these individuals 

are properly excluded and Court hereby Orders that each of those individuals is 

 2 The Court makes no determination as to whether due process requirements have been met with respect to the 

individuals whose notices were returned as undeliverable. See, e.g., Juris v. Inamed Corp., 685 F.3d 1294, 1321 

(11th Cir. 2012) (“Where certain class members’ names and addresses cannot be determined with reasonable efforts, 

notice by publication is generally considered adequate.”). The parties did not provide for notice by publication. 

Nevertheless, as to all other class members, the Court is satisfied that the method of class notice delivery and remailing is reasonable and meets the requirements of Rule 23.

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excluded from the Settlement Class. The excluded individuals as identified in Exhibit A 

of the settlement administrator’s Fourth Report (Doc. 115). Those individuals will not be 

bound by the Agreement, and neither will they be entitled to any of its benefits. Those 

individuals will not be bound by this Order, any final judgment or the releases herein.

9. Claims for Class Benefits. The deadline for filing claims is 

December 6th. The Court has been informed that as of November 3, 2016, 9,513 

claims forms have been received, or 13.94 % of the class. The Court was further 

informed that a number of these forms were determined to be improperly 

completed and that the administrator is contacting these class members in an 

attempt to have the defects corrected. The corrective measures described by the 

Administrator are reasonable and the Court directs the Administrator to carry on 

those measures throughout the claims period. 

10. Class Representative. Plaintiff Jason Bennett was appointed Class 

Representative in this Court's Order Preliminarily Approving Class Action Settlement 

and has fairly and adequately represented the Settlement Class throughout the 

proceedings and is hereby finally confirmed and appointed as Class Representative. Mr. 

Bennett, through counsel, has submitted a request for a class representative award, to be 

paid by the Defendant and separate from the class benefits as provided in the Amended 

Settlement Agreement. (Doc. 111). The Court will issue a separate ruling on that request.

11. Class Counsel. Having considered the factors set forth in Federal Rule of 

Civil Procedure 23(g)(1), the Court finds that Class Counsel have fairly and adequately 

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represented the Settlement Class throughout the proceedings and for purposes of entering 

into and implementing the Settlement, and thus hereby reiterates the appointment of 

Class Counsel as Class Counsel to represent the Settlement Class. Plaintiff has submitted 

a request for an attorneys fee award and reimbursement of litigation costs, to be paid 

separate from the class benefits and by the Defendant as provided in the Amended 

Settlement Agreement. (Doc. 111). The Court will issue a separate ruling on that 

request.

12. Objections. The Court has received only two responses from class 

members, both pro se, which express any negative reaction to the notice. (Letter 

from Steve and Judy Streeter (“Streeter Letter”) (Doc. 105); and Letter from 

William Kirschner (“Kirschner Letter”) (Doc. 106)). Neither of these letters 

addresses, much less criticizes, any specific term of the settlement. Both are brief 

and contain generalized commentary, devoid of any specific objection or reason 

for why the settlement should not be approved. Rule 23 secures a class member’s 

right to “object to the [settlement] proposal.” F.R.Civ.Pro. 23(e)(5)(emphasis 

added). Therefore, class members have standing only to object to the terms of the 

settlement. Commentary which does not address the fairness of the settlement is 

not a proper objection. Ragsdale v. Turnock, 941 F.2d 501, 505 (7th Cir. 1991). 

The Court finds that that Streeter and Kirschner letters fail to properly object to 

any specific aspect of the proposed settlement. In any event, to the extent those 

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letters may constitute cognizable objections to the settlement, the Court finds that 

none of them is well founded and each is OVERRULED in its entirety.

13. Final Approval of Class Settlement. Pursuant to Federal Rule of Civil 

Procedure 23(e)(2), the Court finds, after a hearing and based upon all submissions of the 

Parties and interested Persons, that the Settlement proposed by the Parties is fair, 

reasonable, and adequate. The terms and provisions of the Agreement are the product of 

lengthy, arm's-length negotiations. Approval of the Settlement will result in substantial 

savings of time, money, and effort to the Court and the Parties, and will further the 

interests of justice. The Court hereby finally approves the Agreement, the exhibits, and 

the Settlement contemplated thereby, and directs its consummation pursuant to its terms 

and conditions. Payments to the Class Representative and attorneys' fees awarded shall be 

paid by Defendant within thirty (30) days after the Effective Date, in accordance with the 

Amended Settlement Agreement. 

14. Class Members Bound and Claims Released. All Settlement Class 

Members who have not been excluded above are bound by this Order, the accompanying 

Final Judgment, and by the terms and provisions of the Amended Settlement Agreement 

incorporated herein. 

The Plaintiff and each and every one of the Settlement Class Members 

unconditionally, fully, and finally release and forever discharge the Released Parties from 

the Released Claims as provided in the Amended Settlement Agreement. In addition, any 

rights of the Class Representative and each and every one of the Settlement Class 

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Members to the protections afforded under Section 1542 of the California Civil Code 

and/or any other similar, comparable, or equivalent laws, are terminated.

15. Dismissal. The Court hereby dismisses the Action, as defined in the 

Agreement, with prejudice, without costs to any party, except as awarded above.

16. Payment of Claims and Implementation of Settlement. The Parties and 

their counsel are hereby directed to implement the Amended Settlement Agreement 

according to its terms and provisions. The Court hereby directs the Claims Administrator 

to deliver class benefits to all members who have submitted timely and proper claims, as 

determined by the Claims Administrator pursuant to the Amended Settlement Agreement. 

Those benefits shall be delivered as soon as practicable following the claims deadline, but 

not later than January 31, 2017.

17. Miscellaneous. The Amended Settlement Agreement (including, without 

limitation, its exhibits), and any and all negotiations, documents, and discussions 

associated with it, this Order and the final judgment, or the fact of the Settlement shall 

not in any event be construed as, offered in evidence as, received in evidence as, and/or 

deemed to be, evidence of a presumption, concession or an admission of liability, fault or 

wrongdoing, or in any way referred to for any other reason, by any Class Representative, 

Settlement Class Member, Defendant, or Released Party in the Action or in any other 

civil, criminal, or administrative action or proceeding, except for purposes of enforcing 

the provisions of the Amended Settlement Agreement, this Order and the final judgment.

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The parties are directed to implement the Settlement and the Court reserves 

exclusive and continuing jurisdiction over the implementation of the Settlement, 

including enforcement and administration of the Amended Settlement Agreement.

There is no just reason for delay in the entry of this final Order and separately 

entered Judgment and immediate entry by the Clerk of Court is expressly directed. 

By attaching the Amended Settlement Agreement as an exhibit and incorporating 

its terms herein, the Court determines that this Order complies in all respects with Federal 

Rule of Civil Procedure 65(d)(1).

The Court will separately enter a final judgment in accordance with Federal Rule 

of Civil Procedure 58.

DONE and ORDERED this 8th day of November, 2016.

s/WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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