Sean Hartranft v. TVI Inc et al, No. 8:2015cv01081 - Document 101 (C.D. Cal. 2019)
Court Description: ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTIONSETTLEMENT [Dkt. 99] by Judge Cormac J. Carney. The Court finds and concludes as follows: A Final Approval Hearing shall be held before this Court on October 21, 2019 at 1:30 p.m., to determine whe ther the Agreement is fair, reasonable, and adequate and should be given final approval. Defendants shall bear all costs of notice to the Settlement Class of the pendency and settlement of the Action and other Claims Administration costs as provided in the Agreement. See document for specifics. Related to: Order on Motion 100 . (lom)
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Sean Hartranft v. TVI Inc et al Doc. 101 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 13 14 15 16 17 18 19 20 ) ) SEAN HARTRANFT, on behalf of ) himself and all others similarly situated, ) ) ) Plaintiff, ) ) ) v. ) ) TVI, INC., d/b/a SAVERS, INC., and ) ) APOGEE RETAIL, LLC, ) ) Defendants. ) ) Case No.: SACV 15-01081-CJC-DFM ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT [Dkt. 99] 21 22 23 24 25 26 27 28 -1Dockets.Justia.com 1 Plaintiff has filed a Motion for Preliminary Approval of Class Action Settlement 2 (“Motion”). Having reviewed the Motion and supporting materials, the Court determines 3 and orders as follows: 4 5 A. Counsel have advised the Court that the Parties have agreed, subject to final 6 approval by this Court following notice to the proposed Settlement Class and a hearing, 7 to settle this Action on the terms and conditions set forth in the Settlement Agreement 8 and Release (the “Agreement”). 9 B. The Court has reviewed the Agreement, as well as the files, records, and 10 proceedings to date in this matter. The terms of the Agreement are hereby incorporated 11 as though fully set forth in this Order. Capitalized terms shall have the meanings 12 attributed to them in the Agreement. 13 C. Based upon preliminary examination, it appears to the Court that the 14 Agreement is sufficiently fair, reasonable, and adequate to warrant notice to the proposed 15 Settlement Class; that the Settlement Class should be certified for settlement purposes; 16 and that the Court should hold a hearing after notice to the Settlement Class to determine 17 whether to enter a Final Approval Order in this action, based upon that Agreement. 18 19 Based upon the foregoing, the Court finds and concludes as follows: 20 21 1. Preliminary Approval of Proposed Settlement. The Agreement, including 22 all exhibits thereto, is preliminarily approved as fair, reasonable and adequate. The Court 23 finds that (a) the Agreement resulted from extensive arm’s-length negotiations with 24 participation of an experienced mediator, and (b) the Agreement is sufficient to warrant 25 notice thereof to members of the Settlement Class and the Final Approval Hearing 26 described below. 27 28 -2- 1 2 3 4 5 6 7 2. Class Certification for Settlement Purposes Only. (a) Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court, for settlement purposes only, conditionally certifies the following Settlement Class: All persons and entities to which, between and including July 1, 2011, to September 30, 2015, Apogee Retail, LLC made or attempted to make one or more telephone calls to their cellular telephones regarding donation solicitation on behalf of Epilepsy Foundation of America. 8 The Settlement Class does not include any persons who timely and validly request 9 exclusion from the Settlement Class. Defendants and any of their affiliates or 10 subsidiaries, and any entities in which any of such companies have a controlling 11 interest, the judges presiding in the Action, and Class Counsel are also excluded 12 from the Settlement Class. 13 14 15 (b) In connection with the certification, the Court makes the following preliminary findings: (1) The Settlement Class satisfies Fed. R. Civ. P. 23(a)(1) because 16 the Settlement Class appears to be so numerous that joinder of 17 all members is impracticable; 18 (2) The Settlement Class satisfies Fed. R. Civ. P. 23(a)(2) because 19 there appear to be questions of law or fact common to the 20 Settlement Class; 21 (3) The Settlement Class satisfies Fed. R. Civ. P. 23(a)(3) because 22 the claims of the Plaintiff named in the caption appear to be 23 typical of the claims being resolved through the proposed 24 settlement; 25 (4) The Settlement Class satisfies Fed. R. Civ. P. 23(a)(4) because 26 the Plaintiff appears to be capable of fairly and adequately 27 protecting the interests of the above-described Settlement Class 28 in connection with the proposed settlement and because counsel -3- 1 representing the Settlement Class are qualified, competent, and 2 capable of prosecuting this action on behalf of the Settlement 3 Class. (5) 4 The Settlement Class satisfies the requirements of Fed. R. Civ. 5 P. 23(b)(3) because, for purposes of settlement approval and 6 administration, common questions of law and fact appear to 7 predominate over questions affecting only individual 8 Settlement Class Members and because settlement with the 9 above-described Settlement Class appears to be superior to 10 other available methods for the fair and efficient resolution of 11 the claims of the Settlement Class. The Settlement Class 12 appears to be sufficiently cohesive to warrant settlement by 13 representation. (c) 14 15 In making the foregoing findings, the Court has exercised its discretion in conditionally certifying a settlement class. 16 17 3. Class Representative. For settlement purposes only, the Court hereby 18 appoints Plaintiff Sean Hartranft as Class Representative pursuant to Rule 23 of the 19 Federal Rules of Civil Procedure, and finds that, for settlement purposes only, Mr. 20 Hartranft has and will fairly and adequately protect the interests of the Settlement Class. 21 22 4. Class Counsel. For settlement purposes only, the Court appoints Law 23 Offices of Douglas J. Campion, APC; Bisnar | Chase LLP; and the Law Offices of 24 Michael P. Sousa, APC as counsel for the Settlement Class (“Class Counsel”). For 25 purposes of these settlement approval proceedings, the Court finds that Class Counsel are 26 competent and capable of exercising their responsibilities as Class Counsel. 27 28 -4- 1 5. Claims Administrator. The Court appoints CPT Group, Inc. as the Claims 2 Administrator, which shall fulfill the Claims Administration functions, duties, and 3 responsibilities of the Claims Administrator as set forth in the Agreement and this Order. 4 5 6. Final Approval Hearing. A Final Approval Hearing shall be held before 6 this Court on October 21, 2019 at 1:30 p.m., to determine whether the Agreement is fair, 7 reasonable, and adequate and should be given final approval. Papers in support of final 8 approval of the Agreement and Class Counsel’s application for an award of attorneys’ 9 fees and costs, and for an incentive award to the Class Representative (the “Fee, Expense, 10 and Incentive Payment Application”) shall be filed with the Court according to the 11 schedule set forth in Paragraphs 14 and 15, below. The Court may postpone, adjourn, or 12 continue the Final Approval Hearing without further notice to the Settlement Class. After 13 the Final Approval Hearing, the Court may enter a Final Approval Order in accordance 14 with the Agreement, which will adjudicate the rights of the Settlement Class Members 15 with respect to the claims being settled. 16 17 7. Class Notice. The Court approves the form and content of the notices 18 substantially in the forms attached as Exhibit C to the Agreement. The Parties shall 19 comply with the notice requirements of Section VIII of the Agreement. In compliance 20 with that Section, beginning thirty (30) days after entry of this Order, the Claims 21 Administrator shall cause notice to be delivered in the manner set forth in the Agreement, 22 shall implement the telephone procedure for providing notice, launch the Settlement 23 website and provide all notice and claims services as set forth in the Agreement. 24 25 8. Filing of CAFA Notice. In conjunction with the briefing on the Final 26 Approval Hearing, Defendants shall file or cause to be filed with the Court proof of 27 compliance with the notice provisions of the Class Action Fairness Act of 2005 28 (“CAFA”), 28 U.S.C. § 1715. -5- 1 9. Findings Concerning Class Notice. The Court finds that the Class Notice 2 and the manner of its dissemination described in Paragraph 7 above and Section VIII of 3 the Agreement constitutes the best practicable notice under the circumstances and is 4 reasonably calculated, under all the circumstances, to apprise Settlement Class Members 5 of the pendency of this action, the terms of the Agreement, and their right to object to or 6 exclude themselves from the Settlement Class. The Court finds that the notice is 7 reasonable, that it constitutes due, adequate and sufficient notice to all persons entitled to 8 receive notice, and that it meets the requirements of due process, Rule 23 of the Federal 9 Rules of Civil Procedure, and any other applicable laws. 10 11 10. Exclusion from Settlement Class. Settlement Class Members who wish to 12 exclude themselves from the Settlement Class and follow the procedures set forth in this 13 Paragraph shall be excluded. Any potential member of the Settlement Class may mail a 14 written request for exclusion, in the form specified in the Class Notice, to the Claims 15 Administrator at the address set forth in the Class Notice. In the written request for 16 exclusion, Settlement Class Members must include their full name, address, telephone 17 number, signature, case name (to allow the Claims Administrator to ensure the exclusion 18 request is for this and not another case administered by the same Claims Administrator), 19 and a statement that they wish to be excluded from the Settlement Class for purposes of 20 this settlement. A request to be excluded that does not include all of this information, or 21 that is sent to an address other than that designated in the Notice, or that is not 22 postmarked within the time specified, shall be invalid, and the individual who submitted 23 such a request shall be a member of the Settlement Class and shall be bound as a 24 Settlement Class Member by this Agreement. All such written requests must be 25 postmarked no later than sixty (60) days after the date established by the Court for the 26 Claims Administrator to provide Class Notice. All persons who properly request 27 exclusion from the Settlement Class shall not be Settlement Class Members and shall 28 have no rights with respect to, nor be bound by, the Agreement, should it be finally -6- 1 approved. The names of all such excluded individuals shall be attached as an exhibit to 2 any Final Approval Order. 3 11. 4 Right to Abrogate Agreement. In the event more than 100 Settlement Class 5 Members properly exclude themselves from the Settlement Class, Defendants shall have 6 the unilateral right to abrogate the Agreement by written notice of abrogation to Class 7 Counsel in accordance with the procedures set forth in the Agreement. If Defendants 8 exercise their right to abrogate the Agreement, then all aspects of the Agreement and the 9 settlement underlying it, including but not limited to the provisional certification of the 10 Settlement Class for settlement purposes only, shall be altogether null and void, and no 11 aspect of the Agreement, the settlement, or this Order shall serve as legal precedent or as 12 any basis for legal or factual argument in this or any other case. 13 12. 14 Claims Procedures. The Court approves the claims procedures set forth in 15 the Agreement. The Court approves the form and content of the Claim Form 16 substantially in the form attached as Exhibit A to the Agreement. A properly executed 17 Claim Form must be submitted as required in the Class Notice over the Internet or 18 postmarked no later than ninety (90) days after the date on which Class Notice is first 19 transmitted. Such deadline may be further extended by Court Order. Each Claim Form 20 shall be deemed to have been submitted when submitted over the Internet or postmarked 21 (if properly addressed and mailed by first-class mail, postage prepaid), provided such 22 Claim Form is actually received no less than thirty (30) days prior to the date for 23 distributing Settlement Certificates, if the 90-day claims filing deadline is extended for 24 some reason. Any Claim Form submitted in any other manner shall be deemed to have 25 been submitted when it was actually received at the address designated on the Claim 26 Form. 27 28 -7- 1 13. Costs of Class Notice and Claims Processing. Defendants shall bear all 2 costs of notice to the Settlement Class of the pendency and settlement of the Action and 3 other Claims Administration costs as provided in the Agreement. 4 5 14. Objections and Appearances. (a) 6 Written Objections. Any Settlement Class Member who has not 7 timely submitted a written request for exclusion from the Settlement Class, and thus is a 8 Settlement Class Member, may object to the fairness, reasonableness, or adequacy of the 9 Settlement, the Agreement or the Fee, Expense, and Incentive Payment Application. Any 10 Settlement Class Member who wishes to object to the Settlement, Agreement or the Fee, 11 Expense, and Incentive Award Application must file with the Court and deliver to Class 12 Counsel and Defendants’ counsel a written objection. The written objection, which the 13 objecting Settlement Class Member must personally sign, must state: (i) the objector’s 14 full name, address, and current telephone number; (ii) an explanation of the reason why 15 the objector claims to be a Settlement Class Member, including the cellular telephone 16 number(s) Defendants allegedly called; (iii) all grounds for the objection, including any 17 documents, evidence and citations all reasons for the objection; (iv) the name and contact 18 information of any and all attorneys representing, advising, or in any way assisting the 19 objector in connection with the preparation or submission of the objection or who may 20 profit or otherwise benefit from the pursuit of the objection; and (v) whether the objector 21 intends to appear at the Final Approval Hearing on her or his own behalf or through 22 counsel. Any documents that the objector wants the Parties and the Court to consider 23 must also be attached to the written objection. The written objection and any supporting 24 papers must be filed with the Court and mailed to Class Counsel and Defendants’ counsel 25 postmarked no later than sixty (60) days after the date on which Class Notice is first 26 transmitted. Any objection not timely made in this manner shall be waived and forever 27 barred. 28 -8- (b) 1 Appearance at Final Approval Hearing. Objectors who timely and 2 fully comply with the requirements above may appear at the Final Approval Hearing, 3 either in person or through an attorney hired at their own expense, to object to the 4 fairness, reasonableness, or adequacy of this settlement. (c) 5 Fees and Cost Application. Class Counsel shall file their Fee, 6 Expense, and Incentive Payment Application, together with all supporting 7 documentation, by no later than sixty (60) days from entry of this Order, sufficiently in 8 advance of the expiration of the objection period that any Settlement Class Member will 9 have sufficient information to decide whether to object and, if applicable, to make an 10 informed objection. (d) 11 Motion for Final Approval and Responses to Objections. Class 12 Counsel shall file with the Court their motion for final approval of the Settlement and any 13 responses to any filed objections to the Fee, Expense, and Incentive Payment 14 Application, together with all supporting documentation, no later than fourteen (14) days 15 before the Final Approval Hearing. 16 17 18 15. follows: (a) 19 20 Dates of Performance. In summary, the dates of performance are as Defendants shall send the postcard Class Notice to potential Settlement Class Members on or before thirty (30) days after entry of this Order; (b) 21 Class Counsel’s Fee, Expense, and Incentive Payment Application, 22 and all supporting materials, shall be filed no later than sixty (60) days after entry of this 23 Order; 24 (c) Settlement Class Members who desire to be excluded shall mail 25 requests for exclusion postmarked no later than sixty (60) days after the date in 26 subsection (a) above; 27 28 -9- (d) 1 All objections to the Settlement, Agreement or the Fee, Expense, and 2 Incentive Payment Application shall be filed with the Court and mailed to the Parties’ 3 counsel postmarked no later than the same date as in subsection (c) above; (e) 4 Settlement Class Members who desire to submit Claim Forms shall do 5 so online or, if by mail, postmarked, no later than ninety (90) days after the date in 6 subsection (a) above. (f) 7 Class Representative’s final approval motion, any Parties’ responses 8 to objections, and all supporting materials, shall be filed by at least fourteen (14) days 9 before the date in subsection (g) below; (g) 10 If objections are received by the Parties’ counsel and/or filed with the 11 Court after the objection deadline, any Party may file a response at any time prior to the 12 Final Approval hearing; and 13 (h) 14 The Final Approval Hearing shall be held on October 21, 2019, at 1:30 p.m. 15 16 16. Effect of Failure to Approve the Agreement. In the event the Court does 17 not finally approve the Agreement, or for any reason the Parties fail to obtain a Final 18 Approval Order as contemplated in the Agreement, or the Agreement is terminated 19 pursuant to its terms for any reason, then the following shall apply: 20 (a) All orders and findings entered in connection with the Agreement 21 shall become null and void and have no further force and effect, shall not be used or 22 referred to for any purposes whatsoever, and shall not be admissible or discoverable in 23 any other proceeding; 24 (b) The conditional certification of the Settlement Class pursuant to this 25 Order shall be vacated automatically, and the case shall return to its status as it existed 26 before entry of this Order; 27 28 (c) Nothing contained in this Order is, or may be construed as, any admission or concession by or against Defendants or Class Representative on any point -10- 1 of fact or law, including, but not limited to, factual or legal matters relating to any effort 2 to certify this case as a class action for purposes of considering settlement approval; and (d) 3 Nothing in this Order or pertaining to the Agreement shall be used as 4 evidence in any further proceeding in this case, including, but not limited to, motions or 5 proceedings pertaining to treatment of this case as a class action. 6 7 17. Discretion of Counsel. Counsel are hereby authorized to take all reasonable 8 steps in connection with approval and administration of the Settlement not materially 9 inconsistent with this Order or the Agreement, including, without further approval of the 10 Court, making minor changes to the content of the Class Notice that they jointly deem 11 reasonable or necessary. 12 13 18. Stay of Proceedings Pending Approval of the Settlement. All proceedings 14 before the Court are stayed pending final approval of the settlement, except as may be 15 necessary to implement the settlement or comply with the terms of the Agreement. 16 17 19. Injunction Against Asserting Released Claims Pending Settlement 18 Approval. Pending final determination of whether the settlement should be approved, 19 Class Representative, all Settlement Class Members, and any person or entity allegedly 20 acting on behalf of Settlement Class Members, either directly, representatively or in any 21 other capacity, are preliminarily enjoined from commencing or prosecuting against the 22 Released Parties any action or proceeding in any court or tribunal asserting any of the 23 Released Claims, provided, however, that this injunction shall not apply to individual 24 claims of any Settlement Class Members who timely exclude themselves in a manner that 25 complies with this Order. This injunction is necessary to protect and effectuate the 26 settlement, this Order, and the Court’s flexibility and authority to effectuate this 27 settlement and to enter judgment when appropriate, and is ordered in aid of the Court’s 28 jurisdiction and to protect its judgments pursuant to 28 U.S.C. § 1651(a). -11- 1 20. Reservation of Rights and Retention of Jurisdiction. The Parties are 2 ordered to comply with and implement the terms of the Agreement, pending Final 3 Approval. The Court reserves the right to adjourn or continue the date of the Final 4 Approval Hearing without further notice to Settlement Class Members and retains 5 jurisdiction to consider all further applications arising out of or connected with the 6 settlement. The Court may approve or modify the settlement without further notice to 7 Settlement Class Members. 8 9 IT IS SO ORDERED. 10 11 12 13 DATED: April 18, 2019 __________________________________ CORMAC J. CARNEY 14 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-
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