Kramer v. Autobytel Inc et al, No. 4:2010cv02722 - Document 148 (N.D. Cal. 2012)
Court Description: FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge Claudia Wilken on 1/27/2012. (ndr, COURT STAFF) (Filed on 1/27/2012)
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Kramer v. Autobytel Inc et al Doc. 148 1 2 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 4 5 6 7 CHRISTOPHER KRAMER, individually and on behalf of all others similarly situated, 8 Plaintiff, 9 v. 10 11 12 13 14 AUTOBYTEL, INC., a Delaware corporation, and B2MOBILE, LLC, a California limited liability company, and LEADCLICK MEDIA, INC., a California corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 10-cv-02722-CW Honorable Claudia A. Wilken FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter came before the Court for the Final Approval Hearing set by the Court, as well as Plaintiff’s Motion for Final Approval of Class Action Settlement (dkt. 137), and Plaintiff’s Motion for Award of Attorneys’ Fees, Expenses, and Incentive Award (dkt. 127). The Court, having reviewed the papers filed in support of and in opposition to the motion, heard argument of counsel, and good cause appearing therein, Plaintiff’s Motions are hereby GRANTED and it is hereby ORDERED, ADJUDGED, and DECREED THAT: 1. Terms and phrases in this Order shall have the same meaning as ascribed to them in the Settlement Agreement. 2. This Court has jurisdiction over the subject matter of this action and over all Parties to the Action, including all B2Mobile Class Members and LeadClick Auto Class Members (hereinafter collectively referred to as “Settlement Class Members”). 3. On July 29, 2011, this Court granted Preliminary Approval of the Settlement Agreement and certified two settlement classes consisting of: [PROPOSED] ORDER Case No. 10-cv-02722-CW Dockets.Justia.com 1 2 3 4 5 6 7 “B2Mobile Class” consisting of all Persons in the United States and its territories who, from January 1, 2008 until the date of preliminary approval, received a text message from Short Code 77893 or a text message containing a B2Mobile Website that was transmitted by or on behalf of B2Mobile and was sent without such Person’s prior express consent. “LeadClick Auto Class” consisting of all persons in the United States and its territories who, from January 1, 2008 until the date of preliminary approval, received an automobile-related text message from Short Code 77893 or an automobile-related text message containing a B2Mobile Website that was transmitted by or on behalf of B2Mobile and was sent without such Person’s prior express consent. 4. Excluded from the B2Mobile Class are the following: the Defendants, LeadClick 8 Auto Class Members (as defined herein and to the extent they only received auto-related text 9 messages), the Settlement Administrator, the Mediator, and any respective parent, subsidiary, 10 affiliate or control person of the Defendants or their officers, directors, agents, servants, or 11 employees as of the date of filing of the Action, any judge presiding over the Action and the 12 immediate family members of any such Person(s). Excluded from the LeadClick Auto Class are 13 the following: the Defendants, the Settlement Administrator, the Mediator, and any respective 14 parent, subsidiary, affiliate or control person of the Defendants, as well as their officers, 15 directors, agents, servants, or employees, any judge presiding over the Action and the immediate 16 family members of any such Person(s). The B2Mobile Class and the LeadClick Auto Class are 17 hereinafter referred to as the “Settlement Classes.” 18 5. Further excluded from the Settlement Classes are those persons who have 19 submitted valid and timely requests for exclusion pursuant to the Preliminary Approval Order. 20 Annexed hereto as Appendix 1 is a schedule of all such persons excluded from the Settlement 21 Classes. 22 6. This Court now gives final approval to the settlement and finds that the 23 Settlement Agreement is fair, reasonable, adequate, and in the best interests of the Settlement 24 Classes. Specifically, the complex legal and factual posture of this case, and the fact that the 25 Settlement Agreement is the result of arms’ length negotiations presided over by a neutral 26 mediator support this finding. The Class Representative and Class Counsel adequately 27 represented the Settlement Classes for purposes of entering into and implementing the Settlement 28 Agreement. Accordingly, the Settlement Agreement is hereby finally approved in all respects, [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 and the Parties are hereby directed to perform its terms. The Settlement Agreement and every 2 term and provision thereof shall be deemed incorporated herein as if explicitly set forth, and shall 3 have the full force of an Order of this Court. 4 7. The Court approved Notice Plan to the Settlement Classes, as set forth in the 5 Preliminary Approval Order on July 29, 2011, was the best notice practicable under the 6 circumstances, including comprehensive nationwide newspaper and magazine publication, 7 website publication, and extensive online advertising. The Notice Plan has been successfully 8 implemented and satisfies the requirements of Federal Rule of Civil Procedure 23 and Due 9 Process. 10 8. The Court finds that the Defendants properly and timely notified the appropriate 11 state and federal officials of the Settlement Agreement, pursuant to the Class Action Fairness Act 12 of 2005 (“CAFA”), 28 U.S.C. § 1715. The Court has reviewed the substance of Defendants’ 13 notices and accompanying materials, and finds that they complied with all applicable 14 requirements of CAFA. 15 16 17 9. Subject to the terms and conditions of the Settlement Agreement, this Court hereby dismisses the action on the merits and with prejudice. 10. Upon the Effective Date of this settlement, the Plaintiff and each and every 18 B2Mobile Class Member and LeadClick Auto Class Member who did not opt out of the 19 Settlement (whether or not such members submit claims) and to the extent the LeadClick Auto 20 Class Member or B2Mobile Class Member is not an individual, all of its present, former, and 21 future direct and indirect parent companies, affiliates, subsidiaries, divisions, agents, franchisees, 22 successors, predecessors-in-interest, and all of the aforementioned’s present, former, and future 23 officers, directors, employees, shareholders, attorneys, agents, independent contractors; and, to 24 the extent the LeadClick Auto Class Member or B2Mobile Class Member is an individual, any 25 present, former, and future spouses, as well as the present, former, and future heirs, executors, 26 administrators, representatives, agents, attorneys, partners, successors, predecessors-in-interest, 27 and assigns of each of them, shall be deemed to have released Defendants B2Mobile, LLC, and 28 LeadClick Media, Inc., and any and all of their respective present or past heirs, executors, [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 estates, administrators, predecessors, successors, assigns, parents, subsidiaries, affiliates, 2 associates, employers, employees, agents, consultants, independent contractors, insurers, 3 directors, managing directors, officers, partners, principals, members, attorneys, accountants, 4 financial and other advisors, investment bankers, underwriters, shareholders, lenders, auditors, 5 investment advisors, legal representatives, successors in interest, assigns and companies, firms, 6 trusts, corporations, officers, directors, other individuals or entities in which any of the 7 Defendants have a controlling interest or which is affiliated with any of them, or any other 8 representatives of any of these Persons and entities, but specifically excluding all entities from 9 whom B2Mobile obtained cellular phone numbers, other than LeadClick and B2Mobile; entities 10 on whose behalf any text message was transmitted by or on behalf of B2Mobile, other than 11 LeadClick and B2Mobile; and entities who received consumer internet traffic or leads that were 12 linked or driven from a B2Mobile Website or text message that paid or otherwise compensated 13 B2Mobile or its agents to drive such traffic, other than LeadClick and B2Mobile, from any and 14 all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, 15 suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or 16 agreements, extracontractual claims, damages, punitive, exemplary or multiplied damages, 17 expenses, costs, attorneys’ fees and or obligations (including “Unknown Claims” as defined in 18 the Agreement), whether in law or in equity, accrued or unaccrued, direct, individual or 19 representative, of every nature and description whatsoever, whether based on the TCPA or other 20 federal, state, local, statutory or common law or any other law, rule or regulation, including the 21 law of any jurisdiction outside the United States arising out of the facts, transactions, events, 22 matters, occurrences, acts, disclosures, statements, misrepresentations, omissions or failures to 23 act regarding the alleged sending of any text message from Short Code 77893 or any text 24 message containing a B2Mobile Website, including any automobile-related text message from 25 Short Code 77893 or automobile-related text message containing a B2Mobile Website that was 26 transmitted by or on behalf of B2Mobile or LeadClick and allegedly received by the Plaintiffs, 27 including all claims that were brought or could have been brought in the Action relating to such 28 text messages. [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 11. Upon the Effective Date, any action or claim for indemnification, including but 2 not limited to actions or claims for breach of contract, contribution, or subrogation, that could be 3 or could have been brought by LeadClick or B2Mobile against the other related to the Action or 4 any of the facts, matters or agreements on which the claims in the Action were based are hereby 5 released and dismissed with prejudice on the merits. 6 12. Upon the Effective Date the above release of claims and the Settlement 7 Agreement will be binding on, and have res judicata and preclusive effect in all pending and 8 future lawsuits or other proceedings maintained by or on behalf of Plaintiff and all other 9 Settlement Class Members, Releasing Parties, and their heirs, executors and administrators, 10 successors and assigns. All Settlement Class Members who have not been properly excluded 11 from the Settlement Classes are hereby permanently barred and enjoined from filing, 12 commencing, prosecuting, intervening in, or participating (as class members or otherwise) in, 13 any lawsuit or other action in any jurisdiction based on or arising out of the Released Claims. 14 13. Pursuant to the terms of the Settlement Agreement, LeadClick has consented to 15 the entry of an injunction and is hereby enjoined, for a period of four (4) years following the 16 Effective Date, as follows: 17 a. to the extent its standard “Media Publisher Agreement” or any other 18 agreement it enters into utilizes text message advertising of any kind, LeadClick shall modify or 19 otherwise require such agreement to state that LeadClick and any entity with which it contracts 20 are prohibited from advertising any LeadClick website or LeadClick “offer” by using or 21 cooperating with others to use an ATDS to send SMS messages to cellular phones unless each 22 text-message recipient has given explicit prior written consent to receive such text messages; 23 b. to the extent its standard “Media Publisher Agreement” or any other 24 agreement it enters into utilizes text message advertising of any kind, LeadClick shall modify or 25 otherwise require such agreement to require LeadClick, its “publishers,” or other advertisers 26 obtaining consumer cell phone numbers to keep documented proof of all prior express consent 27 received for a period of four (4) years after said consent is obtained; 28 [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 c. to the extent its standard “Media Publisher Agreement” or any other 2 agreement it enters into utilizes text message advertising of any kind, LeadClick shall modify or 3 otherwise require such agreement to state that the requisite “prior express consent” can be 4 obtained “by oral or written means, including electronic methods” and require that if a cellular 5 phone number is obtained on a website, that any authorization must include an affirmative action 6 on the part of the consumer, such as checking a box or clicking on an “I Accept” “Submit,” 7 “Proceed,” or similar button, with disclosures informing that the affirmative action will result in 8 receiving text messages presented on the same page as the required affirmative action indicating 9 consent, with the text of such disclosures placed within a reasonable distance (for example 200 10 pixels on a 100 PPI screen) from the telephone number submit field and in text of sufficient size 11 and contrast to be clearly legible. 12 14. Pursuant to the terms of the Settlement Agreement, B2Mobile has consented to 13 the entry of an injunction and is hereby enjoined, for a period of four (4) years following the 14 Effective Date, as follows: 15 a. B2Mobile shall not make, or cooperate with others to make, SMS text 16 calls to cellular phones unless each text-message recipient has given explicit prior express 17 consent to receive such text messages (in a manner explained below); 18 b. B2Mobile shall modify its standard “B2Mobile List Management 19 Agreement,” or any other such contract it enters into for the purpose of obtaining consumer cell 20 phone numbers to transmit text messages, to require B2Mobile and each entity with whom it 21 contracts to obtain consumer cell phone numbers to keep documented proof of all prior express 22 consent received from the owners of said cell phone numbers for a period of four (4) years after 23 said consent is obtained; 24 c. B2Mobile shall modify its standard “B2Mobile List Management 25 Agreement,” or any other such contract it enters into for the purpose of obtaining consumer cell 26 phone numbers to transmit text messages, to state that the requisite “prior express consent” can 27 be obtained “by oral or written means, including electronic methods” and require that if a cellular 28 phone number is obtained on a website, that any authorization must include an affirmative action [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 on the part of the consumer, such as checking a box or clicking on an “I Accept,” “Submit,” 2 “Proceed,” or similar button with disclosures informing that the affirmative action will result in 3 receiving text messages, which are presented on the same page as the required affirmative action 4 indicating consent, with the text of such disclosers placed within a reasonable distance (for 5 example 200 pixels on a 100 PPI screen) from the telephone number field or submit button, and 6 in text of sufficient size and contrast to be clearly legible. 7 15. The Court approves the agreed-upon Fee Award to Class Counsel in the amount 8 of $3,050,000, which the Court finds to be fair and reasonable. The Court finds this amount to 9 be reasonable in that it represents 25% of the $12.2 million common fund established for the 10 benefit of the Classes. In this Circuit, a 25% fee is the accepted “benchmark” in common fund 11 cases, and reasonable in light of the relevant factors. Vizcaino v. Microsoft Corp., 290 F.3d 12 1043, 1048-50 (9th Cir. 2002). The Court additionally finds this amount fair and reasonable 13 based upon a lodestar cross check. Class Counsel provided the Court with documentation and 14 sworn declarations supporting a lodestar of $1,129,629. Specifically, Class Counsel expended 15 2741.7 hours in investigating, litigating, and resolving this case (including a reasonable 16 estimation of upcoming hours). Additionally, Class Counsel set forth the experience of each 17 attorney working on the case and his or her corresponding billable rate. The Court finds the rates 18 charged to be appropriate and reasonable in light of the experience of each attorney and that the 19 hourly rates are in line with comparable market rates. The Court finds the hours expended to be 20 reasonable when compared with the time and effort put forth by Class Counsel in investigating, 21 litigating, and resolving this case, as well as in light of the results achieved for the Settlement 22 Classes in terms of both monetary and injunctive relief. Accordingly, the overall lodestar of 23 $1,129,629, when enhanced by a reasonable multiplier of 2.69, provides a reasonable lodestar 24 cross-check in awarding Class Counsel’s Fee Award of $3,050,000. Class Counsel’s total Fee 25 Award is inclusive of $14,192 in costs, which is likewise reasonable based on the documentation 26 and sworn declarations submitted. 27 28 16. Defendants shall pay the Fee Award pursuant to and in the manner provided by the terms of the Settlement Agreement. [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 17. The Court approves the payment by Defendants of $10,000 to the Class 2 Representative Christopher Kramer as an incentive award for taking on the risks of litigation and 3 helping achieve the results to be made available to the Settlement Classes, including sitting for a 4 full day deposition. Such payment shall be made pursuant to and in the manner provided by the 5 terms of the Settlement Agreement. 6 7 8 9 18. The Parties shall bear their own costs and attorneys’ fees, except as otherwise provided in the Settlement Agreement and this Order. 19. This Court hereby directs the entry of this Final Judgment based upon the Court’s finding that there is no just reason for delay of enforcement or appeal of this Final Judgment 10 notwithstanding the Court’s retention of jurisdiction to oversee implementation and enforcement 11 of the Settlement Agreement. 12 20. This Final Judgment and order of dismissal with prejudice, the Settlement 13 Agreement, the settlement that it reflects, and any and all acts, statements, documents, or 14 proceedings relating to the Settlement Agreement are not, and shall not be construed as, or used 15 as an admission by or against Defendants of any fault, wrongdoing, or liability on any 16 Defendant’s part, or of the validity of any Claim or of the existence or amount of damages. 17 21. The Parties, without further approval from the Court, are hereby permitted to 18 agree to and adopt such amendments, modifications and expansions of the Settlement Agreement 19 and its implementing documents (including all exhibits to the Settlement Agreement) so long as 20 they are consistent in all material respects with the Final Judgment and do not limit the rights of 21 Settlement Class Members. 22 22. Without affecting the finality of this Final Judgment in any way, this Court hereby 23 retains continuing jurisdiction over, inter alia, (a) implementation, enforcement, and 24 administration of the Settlement Agreement, including any releases in connection therewith; (b) 25 resolution of any disputes concerning class membership or entitlement to benefits under the 26 terms of the Settlement Agreement; and (c) all Parties hereto, for the purpose of enforcing and 27 administering the Settlement Agreement and the Action until each and every act agreed to be 28 performed by the Parties has been performed pursuant to the Settlement Agreement. [PROPOSED] ORDER Case No. 10-cv-02722-CW 1 2 3 4 IT IS SO ORDERED 5 27th January DATED this _______ day of __________, 2012 6 7 HONORABLE CLAUDIA A. WILKEN UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER Case No. 10-cv-02722-CW
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