Gergetz v. TeleNav, Inc., No. 5:2016cv04261 - Document 70 (N.D. Cal. 2018)

Court Description: ORDER GRANTING 65 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. Signed by Judge Beth Labson Freeman on 4/30/2018.(blflc1S, COURT STAFF) (Filed on 4/30/2018)
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Gergetz v. TeleNav, Inc. Doc. 70 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 12 NATHAN GERGETZ, individually and on behalf of all others similarly situated, 13 14 15 16 Plaintiffs, v. TELENAV, INC., a Delaware corporation Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 5:16-cv-4261-BLF [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 18 19 20 21 22 23 24 25 26 27 WHEREAS, an alleged class action is pending before the Court entitled Gergetz v. Telenav, Inc., Case No. 5:16-cv-4261-BLF; and WHEREAS, Plaintiff Nathan Gergetz (“Plaintiff” or “Gergetz”) and Defendant Telenav, Inc., (“Defendant” or “Telenav”) have entered into a Settlement Agreement, which, together with the exhibits attached thereto, sets forth the terms and conditions for a proposed settlement and dismissal of the Action with prejudice as to Telenav for the claims of the Settlement Class upon the terms and conditions as set forth in the Settlement Agreement, and WHEREAS, the Court has read and considered the Settlement Agreement and exhibits attached thereto, this matter coming before the Court upon the Plaintiff’s Unopposed Motion for 28 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 5:16-cv-4261-BLF Dockets.Justia.com 1 Preliminary Approval of Class Action Settlement (Dkt. No. 65), good cause being shown, and 2 the Court being fully advised in the premises, 3 IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS: 4 5 6 1. Terms and phrases in this Order shall have the same meaning as ascribed to them in the Parties’ Settlement Agreement (Dkt. No. 65 Ex. A). 2. Plaintiff, through Settlement Class Counsel, has moved the Court for an order 7 approving the settlement of the Action in accordance with the Settlement Agreement, which, 8 together with the documents incorporated therein, sets forth the terms and conditions for a 9 proposed settlement and dismissal of the Action with prejudice against Telenav, and the Court 10 having read and considered the Settlement Agreement and being fully advised in the premises, 11 hereby preliminarily approves the Settlement Agreement in its entirety subject to the Final 12 Approval Hearing referred to in Paragraph 17 of this Order. 13 3. Based on its preliminary evaluation, the Court finds that it has jurisdiction over 14 the subject matter of this action and over all Parties to the Action, including all members of the 15 Settlement Class (“Settlement Class Members”), which is certified solely for the purposes of 16 settlement, as defined as any person belonging to either Subclass below: 17 18 The “No Consent Subclass”: All persons in the United States who during the Class Period received at least one Download the Scout App Text Message; and/or 20 The “Stop Subclass”: All persons in the United States who during the Class Period received at least one additional message other than a message confirming an opt out request, after replying STOP, QUIT, END, CANCEL or UNSUBSCRIBE to any text message received from any Telenav Number. 21 4. 19 Based on its preliminary evaluation, the Court finds that, subject to the Final 22 Approval Hearing, the Settlement Agreement is fair, reasonable, adequate, and in the best 23 interests of the Class Members as to their claims against Telenav. The Court further finds that the 24 Settlement Agreement substantially fulfills the purposes and objectives of the class action against 25 Telenav and provides beneficial relief to the Class. 26 5. The Court also finds that the Settlement Agreement (a) is the result of arms’ 27 length negotiations involving experienced class action attorneys and overseen by an experienced 28 third-party mediator; (b) is sufficient to warrant notice of the settlement and the Final Approval PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -2- CASE NO. 5:16-cv-4261-BLF 1 hearing to the Class; (c) meets all applicable requirements of law, including Federal Rule of Civil 2 Procedure 23, and the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715; and (d) is not a 3 finding or admission of liability by Telenav. 4 5 Notice and Administration 6. Epiq Systems is hereby appointed as Settlement Administrator and shall be 6 required to perform all the duties of the Settlement Administrator as set forth in the Agreement 7 and this Order. 8 9 7. The Court finds that the Notice Plan (and all forms of Notice to the Class as set forth in the Settlement Agreement and the Exhibits thereto) is approved as its form, method, and 10 content, complies with the requirements of Rule 23 and due process, and constitutes the best 11 notice practicable under the circumstances. The Court further finds that the Notice is reasonably 12 calculated to, under all circumstances, apprise the members of the Class of the pendency of this 13 action, the certification of the Class, the terms of the Settlement Agreement, and the right of 14 members to object to the settlement and to exclude themselves from the Class. The Parties, by 15 agreement, and the Settlement Administrator shall have discretion to format the Notice in a 16 reasonable manner to minimize mailing or administrative costs. 17 18 8. The Settlement Administrator shall implement the Notice Plan as set forth in the Settlement Agreement. 19 9. Claims Deadline: Class Members may file claims no later than August 28, 2018. 20 10. To aid in the efficient submission of claims, the Settlement Agreement allows 21 claimants to submit claims online without the need for a manual signature. Claimants who 22 submit an electronic claim shall be bound to the same extent as if they had used a manual 23 signature. 24 25 Exclusion 11. Settlement Class Members who wish to exclude themselves from the Class for 26 purposes of this Settlement may do so by complying with the exclusion procedures set forth 27 below. Any member of the Class who timely requests exclusion consistent with those procedures 28 shall not be bound by the terms of the Settlement Agreement. PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -3- CASE NO. 5:16-cv-4261-BLF 1 12. To request exclusion, the Class Member must complete, sign, and mail to the 2 Settlement Administrator a request for exclusion, on or before August 16, 2018. The request for 3 exclusion must comply with the exclusion procedures set forth in the Settlement Agreement and 4 Notice. A request for exclusion must be personally signed by the member of the Class requesting 5 exclusion and may not request exclusion of more than one member of the Class. 6 13. Class Members who opt out of the Settlement Agreement shall not (i) be bound 7 by any orders of the Final Order; (ii) be entitled to relief under this Settlement Agreement; (iii) 8 gain any rights by virtue of this Agreement; or (iv) be entitled to object to any aspect of this 9 Agreement. However, Class Members who fail to submit a valid and timely request for exclusion 10 shall be bound by all terms of the Settlement Agreement and the order of Final Approval, 11 regardless of whether they have requested exclusion from the Settlement Agreement. 12 13 Objections 14. Any Class Member who has not timely filed a request for exclusion may 14 comment in support of, or in opposition to the fairness, reasonableness, or adequacy of the 15 Settlement Agreement or to Final Approval being entered and dismissing the Action with 16 prejudice as to Telenav in accordance with the terms of the Settlement Agreement. Class 17 Members may comment and/or object on their own or may do so through separate counsel at 18 their own expense. 19 15. To comment and/or object, a Class member must sign and file a written objection 20 no later than the Objection Deadline, August 16, 2018. Each Objection must: (i) set forth the 21 Settlement Class Member’s full name, current address, and telephone number; (ii) identify the 22 cellular telephone number of the Settlement Class Member at which the Settlement Class 23 Member claims text messages subject to the Settlement were received; (iii) contain the 24 Settlement Class Member’s original signature or the signature of counsel for the Settlement 25 Class Member; (iv) state that the Settlement Class Member objects to the Settlement, in whole or 26 in part; (v) set forth the complete legal and factual bases for the Objection, including citations to 27 relevant authorizes; (vi) provide copies of any documents that the Settlement Class Member 28 wishes to submit in support of his/her position; and (vii) state whether the objecting Settlement PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -4- CASE NO. 5:16-cv-4261-BLF 1 Class Member intends on appearing at the Final Approval Hearing either pro se or through 2 counsel and whether the objecting Settlement Class Member plans on offering testimony at the 3 Final Approval Hearing. All Objections must be mailed or hand-delivered to the Court before the 4 Objection Deadline. 5 16. Any Settlement Class Member who fails to timely file a written objection with the 6 Court and notice of his or her intent (if any) to appear at the Final Approval Hearing in 7 accordance with the terms of Paragraph 15 above and as detailed in the Notice will not be 8 permitted to object to this Settlement at the Final Approval Hearing, will be deemed to have 9 waived his or her objections and be forever barred from making any such objections in the 10 Action or in any other action or proceeding, and will be foreclosed from seeking any review of 11 this Settlement Agreement by appeal or other means. 12 13 Final Approval Hearing 17. The Final Approval Hearing shall be held before this Court on September 6, 14 2018 at 1:30 P.M. at the Robert F. Peckham Federal Building & Courthouse, Courtroom 3 – 5th 15 Floor, 280 South 1st Street, San Jose, CA 95113, to determine whether the proposed Settlement 16 Agreement with Telenav is fair, reasonable and adequate and should be given final approval by 17 the Court. The Court may adjourn the Final Approval Hearing or conduct it by telephone without 18 further notice to Class Members. Further Matters 19 20 18. To protect its jurisdiction to consider the fairness of this Settlement Agreement 21 and to enter a Final Order and Judgment having binding effect on all Settlement Class Members, 22 the Court hereby enjoins all Settlement Class Members, and anyone who acts or purports to act 23 on their behalf, from pursuing all other proceedings in any state or federal court that seeks to 24 address any parties’ or Settlement Class Members’ rights or claims relating to, or arising out of, 25 any of the Released Claims as set forth in the Settlement Agreement. 26 19. Settlement Class Members shall be bound by all determinations and judgments in 27 the Action concerning the Action and/or Settlement Agreement, whether favorable or 28 unfavorable. PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -5- CASE NO. 5:16-cv-4261-BLF 1 20. The Settlement Agreement and the proceedings and statements made pursuant to 2 the Settlement Agreement or papers filed relating to the Settlement Agreement and this Order are 3 not and shall not in any event be construed, deemed, used, offered or received as evidence of an 4 admission, concession, or evidence of any kind by any person or entity with respect to: (i) the 5 truth of any fact alleged or the validity of any claim or defense that has been, could have been, or 6 in the future might be asserted in the Action or in any other civil, criminal, or administrative 7 proceeding in any court, administrative agency, or other tribunal; or (ii) any liability, 8 responsibility, fault, wrongdoing, or otherwise of the Parties. Telenav has denied and continues 9 to deny the claims asserted by Plaintiff. Notwithstanding, nothing contained herein shall be 10 construed to prevent a Party from offering the Settlement Agreement into evidence for purpose 11 of enforcing the Settlement Agreement. 12 13 21. For settlement purposes only, the Court hereby approves the appointment of Plaintiff Nathan Gergetz as Settlement Class Representative. 14 22. The Court appoints, for settlement purposes only, Steven Woodrow and Patrick 15 Peluso of Woodrow & Peluso, LLC and Stefan Coleman from the Law Office of Stefan 16 Coleman, P.A. as Class Counsel. Class Counsel shall move for an award of reasonable attorneys' 17 fees to be paid as set forth in the Settlement Agreement and cause such motion to be posted on 18 the Settlement Website no later than August 2, 2018. Class Counsel shall move for Final 19 Approval of the Settlement Agreement and respond to any objections no later than August 23, 20 2018. 21 23. The certification of the Settlement Class shall be binding only with respect to the 22 Settlement of the Action. In the event that the Settlement Agreement fails to become effective, is 23 overturned on appeal, or does not become Final for any reason, the Parties shall be restored to 24 their respective positions in the Action as of the date of the signing of the Agreement, and no 25 reference to the Settlement Class, the Settlement Agreement, or any documents, 26 communications, or negotiations related in any way thereto shall be made for any purpose. 27 28 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -6- CASE NO. 5:16-cv-4261-BLF 1 IT IS SO ORDERED. 2 3 Dated this _______ day of __________, 2018 4 5 6 ________________________________ HONORABLE BETH L. FREEMAN UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -7- CASE NO. 5:16-cv-4261-BLF