Greenley v. Mayflower Transit, LLC, No. 3:2021cv00339 - Document 42 (S.D. Cal. 2022)
Court Description: ORDER granting 41 Motion for Preliminary Approval of Settlement; denying as moot without prejudice to refile 32 Motion to Certify Class. Signed by District Judge William Q. Hayes on 2/10/2022. (axc)
Download PDF
<![CDATA[
Greenley v. Mayflower Transit, LLC Doc. 42 Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1804 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DAVID GREENLEY, individually and on behalf of all others similarly situated, 13 14 15 18 19 20 21 22 23 24 25 26 27 28 ORDER Plaintiff, v. MAYFLOWER TRANSIT, LLC, 16 17 Case No.: 21-cv-339-WQH-MDD Defendant. HAYES, Judge: The matter before the Court is the Motion for Preliminary Approval of Settlement (ECF No. 41) filed by Plaintiff David Greenley. The Court has considered the Parties’ Settlement Agreement, along with Plaintiff’s unopposed Motion for Preliminary Approval of the Settlement Agreement (ECF No. 41) and the Memorandum of Points and Authorities, Declaration of Joshua B. Swigart, Declaration of Peter F. Barry, Declaration of David Greenley, and other documents filed in support thereof, and finds good cause for issuing an Order Preliminarily Approving the Parties’ Settlement. /// /// 1 21-cv-339-WQH-MDD Dockets.Justia.com Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1805 Page 2 of 7 1 IT IS HEREBY ORDERED: 2 1. The Court GRANTS the request for Preliminary Approval of the Class Action 3 Settlement. All defined terms contained herein shall have the same meanings as set forth 4 in the Settlement. 5 2. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court 6 GRANTS the Parties’ request for certification of the following Rule 23 Settlement Class 7 for the sole and limited purpose of implementing the terms of the Settlement Agreement, 8 subject to this Court’s final approval: A. The Confidential Communication Class for Violation of Penal Code 9 § 632, consisting of: 10 11 All persons in California who booked a move online through the 12 Mayflower Gemini program and whose conversations were 13 recorded without their consent, by Defendant, and or its agents, 14 within the one year prior to the filing of the Complaint. 15 B. The Cellular Phone Communication Sub-Class for Violation of Penal Code §632.7, consisting of: 16 17 All persons in California who booked a move online through the 18 Mayflower Gemini program and whose cellular telephone 19 conversations were recorded without their consent, by Defendant, 20 and or its agents, within the one year prior to the filing of the 21 Complaint. 22 3. The Court recognizes that certification under this Order is for settlement 23 purposes only and shall not constitute or be construed as an admission by Defendant that 24 this action is appropriate for class treatment for litigation purposes. Entry of this Order is 25 without prejudice to the rights of Defendant to oppose certification of a class in this action 26 should the proposed Settlement not be granted final approval. 27 28 4. The Court appoints and designates: (a) Plaintiff David Greenley as the Class Representative and (b) the firms of Swigart Law Group, APC and The Barry Law Office, 2 21-cv-339-WQH-MDD Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1806 Page 3 of 7 1 Ltd as Class Counsel for the Class. Class Counsel is authorized to act on behalf of the Class 2 with respect to all acts or consents required by, or which may be given, pursuant to the 3 Settlement, and such other acts necessary to finalize the Settlement Agreement and its 4 terms. 5 5. Any Settlement Class Member may opt out of the Settlement and enter an 6 appearance through his or his own counsel at such Class Member’s own expense. Any 7 Settlement Class Member who does not opt out will be represented by Class Counsel. The 8 Court hereby preliminarily approves the terms provided for in the Settlement, finding them 9 to be fair, adequate, and reasonable and in the best interests of the Settlement Class 10 11 Members. 6. The Court hereby preliminarily approves the Settlement in the Maximum 12 Settlement Amount of $1,450,000.00, with the Net Settlement Amount being calculated by 13 subtracting the following from the Maximum Settlement Amount: (1) Class Counsel’s 14 attorneys’ fees (not to exceed 25% of the Maximum Settlement Amount or $362,500.00); 15 (2) Class Counsel’s Costs (not to exceed $50,000.00); (3) Class Representative Service 16 Award to be paid to Representative David Greenley not to exceed $10,000; and (4) the 17 Claims Administration Costs to the Claims Administrator, CPT Group, Inc. The Net 18 Settlement Amount remaining for paying Individual Settlement Payments to the 19 Participating Class Members is anticipated to be approximately $1,010,000.00. The Court 20 further preliminarily approves the formulas provided in the Settlement for calculating 21 Individual Settlement Payments, the Opt-Out Deadline, the Objection Deadline, and the 22 claim submission deadline. 23 7. The Court finds on a preliminary basis that the Settlement, including the Class 24 Representative Service Award, Class Counsel Fees and Costs, the Claims Administration 25 Costs and the proposed allocation of Individual Settlement Payments to Participating Class 26 Members, appears to be within the range of reasonableness of a settlement that could 27 ultimately be given final approval by this Court. 28 3 21-cv-339-WQH-MDD Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1807 Page 4 of 7 1 8. It appears to the Court on a preliminary basis that the Settlement is fair, 2 adequate and reasonable as to all potential Settlement Class Members when balanced 3 against the probable outcome of further litigation relating to certification, liability and 4 damages issues. It also appears that extensive investigation, research and Court 5 proceedings have been conducted so that counsels for the Parties have been able to 6 reasonably evaluate their respective positions. It appears to the Court that settlement at this 7 time will avoid substantial additional costs by all Parties, as well as avoid the delay and 8 risks that would be presented by the further prosecution of this Action. It also appears that 9 settlement has been reached because of intensive, serious, and non-collusive arms-length 10 11 negotiations, including a full-day mediation with a third-party neutral. 9. A final approval hearing shall be held before this Court on August 4, 2022, in 12 Courtroom 14B of the United States District Court, Southern District of California, at 10:30 13 a.m. to determine all necessary matters concerning the Settlement, including whether the 14 proposed Settlement of the Action on the terms and conditions provided for in the 15 Settlement are fair, adequate and reasonable and should be finally approved by the Court 16 and whether a Judgment should be entered herein. At that time, a hearing on Class 17 Counsel’s Motion for Attorneys’ Fees and Costs and the Class Representative’s Service 18 Award shall also be held. 19 10. The Court hereby approves, as to form and content, the Notice of Class Action 20 Settlement (“Notice Packet”) to be sent to Settlement Class Members, which is attached as 21 Exhibits 2 and 3 to the Declaration of Joshua B. Swigart (ECF Nos. 41-6–41-7). The Court 22 finds that distribution of the Notice Packets to the Settlement Class Members substantially 23 in the manner and form set forth in the Settlement is the best notice practicable under the 24 circumstances and meets the requirements of due process and shall constitute due and 25 sufficient notice to all parties entitled thereto. The documents to be sent to all Settlement 26 Class Members in the Notice Packet are deemed sufficient to inform Settlement Class 27 Members of the terms of the Settlement, their rights under the Settlement, their rights to 28 object to or comment on the settlement, their right to receive an Individual Settlement 4 21-cv-339-WQH-MDD Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1808 Page 5 of 7 1 Payment without having to take any action, their right to exclude themselves and not 2 participate in the Settlement, and the processes for doing so, and the date and location of 3 the Final Approval Hearing, and the Notice Packet documents, and are therefore approved. 4 11. The Court appoints and designates CPT Group, Inc., as the third-party Claims 5 Administrator. The Court hereby directs the Claims Administrator to provide the approved 6 Notice Packet documents to Settlement Class Members and administer the Settlement in 7 accordance with the procedures set forth in the Settlement herein, including in conformance 8 with the schedule set forth below. 9 12. Any Settlement Class Member may choose to opt out of and be excluded from 10 the Settlement as provided in the Settlement and Notice of Class Action Settlement and by 11 following the instructions for requesting exclusion. Any person who timely and properly 12 excludes themselves from the Settlement will not be bound by it or have any right to object, 13 appeal or comment thereon. Any Request for Exclusion must be signed by each such 14 Settlement Class Member and comply with the requirements for exclusion set forth in the 15 Settlement. 16 13. Settlement Class Members who have not timely submitted a Request for 17 Exclusion shall be bound by all determinations of the Court, the Settlement and the 18 Judgment. If both an opt-out and an objection are received from the same Settlement Class 19 Member, the Class Member will be deemed to have opted out. 20 14. Pursuant to Federal Rule of Civil Procedure 23(e)(5), members of the 21 Settlement Class may object to the terms of the settlement. Settlement Class Members who 22 object to the proposed Settlement may appear and present such objections at the Final 23 Approval Hearing in person or by counsel, provided that any objecting Settlement Class 24 Member submit a written statement containing the basis of that person’s objections, 25 together with a notice of the intention to appear, if appropriate, which must be sent to the 26 Class Counsel and Defendant’s Counsel and postmarked no later than the date set by the 27 schedule of dates below. 28 5 21-cv-339-WQH-MDD Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1809 Page 6 of 7 1 15. No person shall be heard at the Final Approval Hearing, and no briefs or 2 papers shall be received or considered, unless the foregoing documents have been filed and 3 served as provided in this Order, except as this Court may permit for good cause shown. 4 16. The motion for final approval of the Settlement and Awarding Administration 5 Costs shall be filed according to the schedule of dates below. Class Counsel shall also file 6 its Motion for Attorneys’ Fees and Costs and Class Representative Service Award 7 according to the schedule of dates below, to be heard concurrently with the Final Approval 8 Hearing. 9 17. Upon Final Approval and completion of the Claims Administration process, 10 all Class Members who have not submitted timely Requests for Exclusion and the Class 11 Representatives will be deemed to have forever released and discharged the Released 12 Claims applicable to them and waived their rights under California Civil Code § 1542 for 13 the applicable Released Claims, as set forth and defined in the preliminarily approved 14 Settlement Agreement. 15 18. The Court reserves the right to change or otherwise continue or advance the 16 date of the Final Approval Hearing and all dates provided for in the Settlement without 17 further notice to the Class. 18 19. The Court orders the following schedule of dates and administration 19 milestones for the specified actions and further proceedings in this matter as agreed under 20 the terms of the Settlement: 21 Date 22 14 23 Preliminary Approval 24 30 25 Preliminary Approval 26 60 27 Preliminary Approval Event days days days from from from date date date of Last day for Defendant to provide Claims Administrator the Class List of Notice: Last day for Claims Administrator to mail the Notice Packet to Class Members of Last day for Settlement Class to submit a timely signed Request for Exclusion 28 6 21-cv-339-WQH-MDD Case 3:21-cv-00339-WQH-MDD Document 42 Filed 02/10/22 PageID.1810 Page 7 of 7 1 60 2 Preliminary Approval 3 30 4 Approval Hearing 5 30 6 Approval Hearing days days days from date before before 7 Objections Final Last day to file Motion for Final Approval of Class Action Settlement Final Last day to file Motion for Approval of Class Counsel’s Attorneys’ Fees and Costs, and Class Representative Service Award 8 15 9 Approval Hearing 10 of Last day for Settlement Class to timely submit days before Final Last Day to file a Reply to any objections to the Settlement August 4, 2022 at 10:30 a.m. Final Approval Hearing 11 12 IT IS FURTHER ORDERED that Plaintiff’s Motion to Certify Class (ECF No. 32) is 13 denied as moot, without prejudice to refile if the proposed Settlement is not granted final 14 approval. 15 Dated: February 10, 2022 16 17 18 19 20 21 22 23 24 25 26 27 28 7 21-cv-339-WQH-MDD
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
