Bulette v. Western Dental Services, Inc., No. 3:2019cv00612 - Document 78 (N.D. Cal. 2020)
Court Description: ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. Signed by Judge Maxine M. Chesney on March 13, 2020. (mmclc1, COURT STAFF) (Filed on 3/13/2020)
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Bulette v. Western Dental Services, Inc. Doc. 78 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 ) ) ) ) Plaintiff, ) ) v. ) ) WESTERN DENTAL SERVICES INC., et. ) al, ) ) Defendants. ) ) ) RACHEL BULETTE, individually and on behalf of all others similarly situated, Case Number: 3:19-cv-00612-MMC [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Plaintiff Rachel Bulette, on behalf of herself and a class of similarly situated persons, and Defendants Western Dental Services Inc. and RevSpring, Inc. have agreed to settle this Action pursuant to the terms and conditions set forth in an executed Amended Class Action Settlement 20 21 22 Agreement dated as of March 11, 2020 (“Settlement” or “Agreement”). The proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious 23 deficiencies, does not appear to improperly grant preferential treatment to class representatives or 24 segments of the class, and falls within the range of possible approval. Under the Settlement, 25 subject to the terms and conditions therein and subject to Court approval, Plaintiff and the other 26 Releasing Parties will fully, finally, and forever resolve, discharge, and release the Released 27 Claims against the Released Parties. 28 1 Dockets.Justia.com 1 The Settlement has been filed with the Court, and Plaintiff and Class Counsel have filed an 2 Unopposed Motion for Preliminary Approval of Class Settlement (“Motion”). Upon considering 3 the Motion, the Settlement and all exhibits thereto, the record in these proceedings, the 4 representations and recommendations of counsel, and the requirements of law, the Court finds that: 5 6 (1) this Court has jurisdiction over the subject matter and the Parties to this Action; (2) the proposed 7 Settlement Class meets the requirements of Federal Rule of Civil Procedure 23 and should be 8 certified for settlement purposes only; (3) the persons and entities identified below should be 9 appointed Class Representative and Class Counsel; (4) the Settlement appears to be the result of 10 11 informed, good-faith, arm’s-length negotiations between the Parties and their capable and experienced counsel, and not the result of collusion; (5) the Settlement is within the range of 12 13 14 reasonableness and should be preliminarily approved; (6) the proposed Notice Program and proposed forms of Notice satisfy Federal Rule of Civil Procedure 23 and constitutional due process 15 requirements, and are reasonably calculated under the circumstances to apprise the Settlement Class 16 of the pendency of the Action, class certification, terms of the Settlement, Class Counsel’s 17 application for an award of attorneys’ fees and expenses (“Fee Application”) and request for a 18 service award for Plaintiff, and their rights to opt-out of the Settlement Class or object to the 19 Settlement; (7) good cause exists to schedule and conduct a Final Approval Hearing, pursuant to 20 21 Federal Rule of Civil Procedure 23(e), to assist the Court in determining whether to grant Final 22 Approval of the Settlement and enter a Final Approval Order, and whether to grant Class Counsel’s 23 Fee Application and request for a service award for Plaintiff; and (8) the other related matters 24 pertinent to the Preliminary Approval of the Settlement should also be approved. 25 26 27 28 2 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED as follows: 2 1. As used in this Preliminary Approval Order, unless otherwise noted, capitalized terms 3 shall have the definitions and meanings accorded to them in the Settlement. 4 2. The Court has personal jurisdiction over all Settlement Class Members, and the Court 5 6 has subject-matter jurisdiction to approve the Agreement, including all exhibits thereto. 7 3. The Motion for Preliminary Approval of Class-Action Settlement is granted. For the 8 purpose of settlement only, the Court finds that certification of the Settlement Class is appropriate 9 because (a) the Class is ascertainable and sufficiently numerous; (b) there are questions of law and 10 11 fact that are common to the Class, and those questions predominate over any questions affecting individual Class Members; (c) Plaintiff’s claims are typical of the claims of the Class; (d) Plaintiff 12 13 14 and Class Counsel are adequate representatives of the Class; and (e) a class action is superior to other available methods for adjudicating the Action. 15 4. Furthermore, the Court finds that (a) the terms of the Settlement Agreement appear to be 16 fair and reasonable to the Class when balanced against the probable outcome of further litigation 17 relating to class certification, liability and damage issues, and potential appeals; (b) Class Counsel 18 are experienced in class-action litigation, including litigation under the Telephone Consumer 19 Protection Act; (c) significant investigation and discovery was undertaken, enabling Plaintiff and 20 21 Defendants to reasonably evaluate each other’s positions and financial capacity; (d) approving the 22 Settlement Agreement appears likely to avoid the substantial costs, delay, and risks that would be 23 presented by further litigation; and (e) the terms of the Settlement Agreement appear to be the result 24 of intensive, serious, and non-collusive negotiations between Plaintiff and Defendants, including a 25 full day mediation with JAMS mediator Bruce A. Friedman. Accordingly, the Court preliminarily 26 finds that the Settlement Agreement falls within the range of possible final approval and therefore 27 meets the requirements of preliminary approval. 28 3 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 5. The Court therefore provisionally certifies the following Settlement Class: all regular 2 users or subscribers to numbers assigned to wireless carriers to which a text message was attempted 3 using RevSpring’s TalkSoft platform, after RevSpring received a text message containing the word 4 “stop” from such number in response to a Western Dental text message, within four years of 5 6 February 4, 2019. Excluded from the Settlement Class are: (1) the Judge presiding over this action 7 (or the Judge or Magistrate presiding over the action through which this matter is presented for 8 settlement), and members of their families; (2) the Defendants, Defendants’ respective subsidiaries, 9 parent companies, successors, predecessors, and any entity in which the Defendants or their parents 10 11 have a controlling interest and its current or former officers and directors; (3) persons who properly execute and submit a timely request for exclusion from the class; and (4) the legal representatives, 12 13 successors or assigns of any such excluded person(s). 6. The Court appoints Plaintiff, Rachel Bulette, as Class Representative. 14 15 7. The Court appoints the following people and firms as Class Counsel: Avi R. Kaufman 16 and Rachel E. Kaufman of Kaufman P.A. and Stefan Coleman of Law Offices of Stefan Coleman 17 P.A. 18 8. The Court approves the form and content of the Claim Form, Long-Form Notice, and 19 Summary Notice, substantially in the forms attached as Exhibits A through C to the Settlement. 20 21 The Court further finds that the Notice Program described in the Settlement is the best practicable 22 under the circumstances. The Notice Program is reasonably calculated under the circumstances to 23 inform the Settlement Class of the pendency of the Action, certification of a Settlement Class, the 24 terms of the Settlement, Class Counsel’s Fee Application and the request for service award for 25 Plaintiff, the claim process, and their rights to opt-out of the Settlement Class or object to the 26 Settlement. The Notices and Notice Program constitute sufficient notice to all persons entitled to 27 notice. The Notices and Notice Program satisfy all applicable requirements of law, including, but 28 4 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 not limited to, Federal Rule of Civil Procedure 23 and the Constitutional requirement of due 2 process. 3 9. The Court appoints Epiq as the Settlement Administrator. All costs of administration 4 will be paid from the Settlement Fund as set forth in the Settlement Agreement. Pursuant to 15 5 6 U.S.C. Sec. 1681b(a)(1), the Administrator is permitted to obtain information governed by the Fair 7 Credit Reporting Act for the sole purpose and to the extent necessary of locating current addresses 8 of Settlement Class Members in order to fulfill the Notice obligations under this Order 9 10 11 10. The Settlement Administrator shall implement the Notice Plan, as set forth in the Settlement, and the Claims Process using the Claim Form and Notices substantially in the forms attached as Exhibits A through C to the Settlement and approved by this Preliminary Approval 12 13 14 15 16 Order. Notice shall be provided to the members of the Settlement Class pursuant to the Notice Plan, as specified in the Settlement and approved by this Preliminary Approval Order. 11. The Settlement Administrator shall send Notice within thirty (30) days after entry of this Preliminary Approval Order (the “Notice Date”). 17 18 Final Approval Hearing, Opt-Outs, and Objections 12. A Final Approval Hearing shall be held before this Court on July 17, 2020, at 9:00 a.m., 19 approximately 90 days after the entry of this Preliminary Approval Order, to determine whether to 20 21 grant Final Approval to the Settlement and to enter a Final Approval Order, and whether Class 22 Counsel’s Fee Application and request for a service award for the Class Representative should be 23 granted. 24 13. Any person within the Settlement Class who wishes to be excluded from the Settlement 25 may exercise their right to opt-out of the Settlement by following the opt-out procedures set forth 26 in the Settlement and in the Notice at any time prior to the Opt-Out Deadline. To be valid and 27 28 5 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 timely, opt-out requests must be received by the Settlement Administrator on or before the Opt-Out 2 Deadline, which is 60 days after the Notice Date, and mailed to the address indicated in the Notice. 3 14. Any Settlement Class member may object to the Settlement, including to any of its 4 terms or provisions, Class Counsel’s Fee Application, or the request for a service award for 5 6 Plaintiff, as set forth in the Settlement Agreement and Notice. Any objection must be in writing, 7 filed with the Clerk of Court, and postmarked no later than June 12, 2020. Settlement Class 8 Members may object either on their own or through an attorney hired at their own expense. Any 9 objection regarding or related to the Agreement shall contain a caption or title that identifies it as 10 11 “Objection to Class Settlement in Bulette v. Western Dental Services, Inc. and RevSpring, Inc., No. 3:19-cv-00612-MMC” and also shall contain the following information: (i) the objector’s name, 12 13 14 address, and telephone number; (ii) the name, address, and telephone number of any attorney for the objector with respect to the objection; (iii) the factual basis and legal grounds for the objection, 15 including any documents sufficient to establish the basis for his or her standing as a Settlement 16 Class Member, including the phone number(s) at which he or she received text(s) covered by this 17 Settlement; and (iv) identification of the case name, case number, and court for any prior class 18 action lawsuit in which the objector and the objector’s attorney (if applicable) has objected to a 19 proposed class action settlement. If an objecting party chooses to appear at the hearing, no later 20 21 than the Opt-Out Deadline, a notice of intention to appear, either in person or through an attorney, 22 must be filed with the Court and list the name, address, and telephone number of the person and 23 attorney, if any, who will appear. A Settlement Class Member who appears at the Final Approval 24 Hearing, either personally or through counsel, may be permitted to argue only those matters that 25 were set forth in the timely and validly submitted written objection filed by such Settlement Class 26 Member. No Settlement Class Member shall be permitted to raise matters at the Final Approval 27 Hearing that the Settlement Class Member could have raised in his/her written objection, but failed 28 6 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 to do so, and all objections to the Settlement Agreement that are not set forth in a timely and 2 validly submitted written objection will be deemed waived. If a Settlement Class Member wishes 3 to present witnesses or evidence at the Final Approval Hearing in support of a timely and validly 4 submitted objection, all witnesses must be identified in the objection, and true and correct copies 5 6 of all supporting evidence must be appended to, or filed and served with, the objection. Failure to 7 identify witnesses or provide copies of supporting evidence in this manner waives any right to 8 introduce such testimony or evidence at the Final Approval Hearing. 9 10 11 Further Papers in Support of Settlement and Attorney’s Fee Application 15. Plaintiff and Class Counsel shall file their Fee Application and request for a service award for Plaintiff no later than April 23, 2020, which is 50 days prior to the Opt Out Deadline. 12 13 14 Plaintiff and Class Counsel shall post their Fee Application and request for a service award on the Settlement Administrator's website no later than April 23, 2020. 15 16. Plaintiff and Class Counsel shall file their Motion for Final Approval of the Settlement 16 and their responses to timely filed objections to the Settlement, the Fee Application, and/or request 17 for a service award for Plaintiff, no later than July 2, 2020, which is 15 days before the Final 18 Approval Hearing. 19 Effect of Failure to Approve Settlement 20 21 17. If the Settlement is not finally approved by the Court, or for any reason the Parties fail 22 to obtain a Final Approval Order as contemplated in the Settlement, or the Settlement is terminated 23 pursuant to its terms for any reason, then the following shall apply: 24 (a) All orders and findings entered in connection with the Settlement shall become null and 25 void and have no further force and effect, shall not be used or referred to for any purpose 26 whatsoever, and shall not be admissible or discoverable in any other proceeding; 27 28 7 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 2 3 (b) Nothing in this Preliminary Approval Order is, or may be construed as, any admission or concession by or against Defendants or Plaintiff on any point of fact or law; and (c) Neither the Settlement terms nor any publicly disseminated information regarding the 4 Settlement, including, without limitation, the Class Notice, court filings, orders and public 5 6 statements, may be used as evidence. In addition, neither the fact of, nor any documents relating to, 7 any Party’s withdrawal from the Settlement, any failure of the Court to approve the Settlement 8 and/or any objections or interventions may be used as evidence. 9 Stay/Bar of Other Proceedings 10 11 18. All proceedings in this action are stayed until further order of the Court, except as may be necessary to implement the terms of the Settlement. Pending final determination of whether the 12 13 14 Settlement should be approved, Plaintiff, all persons in the Settlement Class, and persons purporting to act on their behalf are enjoined from commencing or prosecuting (either directly, representatively 15 or in any other capacity) against any of the Released Parties any action or proceeding in any court, 16 arbitration forum or tribunal asserting any of the Released Claims. 17 18 19. Based on the foregoing, the Court sets the following schedule for the Final Approval Hearing and the actions which must take place before it: 19 Date Event 20 21 Notice Date April 13, 2020 Deadline for filing and posting on Settlement April 23, 2020 22 website Class Counsel’s Fee application and 23 request for service award 24 Deadline to opt-out or to object June 12, 2020 Deadline to submit Claim Form June 12, 2020 Deadline to file Motion for Final Approval July 2, 2020 25 26 and responses to objections 27 Final Approval Hearing July 17, 2020, at 9:00 a.m. 28 8 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC 1 20. This Court reserves the right to adjourn or continue the date of the Final Approval 2 Hearing without further notice to the Settlement Class, and retains jurisdiction to consider all 3 further applications arising out of or connected with the Settlement. This Court may approve or 4 modify the Settlement without further notice to the Settlement Class. 5 6 IT IS SO ORDERED, this 13th day of March 2020. 7 8 9 _ ________ __ _______ ____ _______ ____ ____ ________________ ___________________________________ Maxi Ma x ne M. Chesney Maxine Unit itted e States District Judge United 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL CASE NO. 3:19-CV-00612-MMC
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