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Brandon Lo, Individually and On Behalf of All Others Similarly Situated v. Oxnard European Motors

December 15, 2011


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is the parties' joint motion for preliminary approval of class action settlement agreement. (Mot. Prelim. Approval Class Settlement, ECF No. 23) Also before the Court are the "Settlement Agreement and Release," (Swigart Decl., Ex. A ("Settlement Agreement"), ECF No. 23-3), and the proposed notice to the class members of the proposed settlement, (Swigart Decl., Ex. 1 ("Proposed Notice"), ECF No. 23-4).

This case arises out of Defendant Oxnard European Motors's ("Defendant") allegedly negligent and willful violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., by sending advertising and other commercial text messages to Plaintiff's cellular telephone without first obtaining Plaintiff's "prior express consent." After several months of settlement discussions and negotiations, the parties reached a settlement and now seek an order conditionally certifying a settlement class, preliminarily approving the settlement agreement, and approving the proposed notice of class certification and settlement.


1. Proposed Settlement Agreement

The November 28, 2011, Settlement Agreement requires Defendant to pay $49,100.00 into a settlement fund, which will be allocated as follows: (1) an amount not to exceed one-third of the settlement fund (or $16,365.00) for attorneys' fees and costs, subject to Court approval;

(2) approximately $4,500.00 for costs of notice and claims administration, as estimated by the agreed-on claims administrator CPT Group, Inc.; (3) a maximum $1,500.00 incentive payment to the named Plaintiff, subject to Court approval; and (4) the balance of approximately $26,734.00 to be divided among class members on a pro-rata basis. (Mot. Prelim. Approval Class Settlement 4, ECF No. 23; Settlement Agreement ¶¶ 1.05, 7.01, 8.01, 19.01, ECF No. 23-3) In exchange, Plaintiff and the settlement class members release all of their claims, known and unknown.

The proposed settlement class consists of those persons who received text messages from Defendants between October 16, 2009, and July 9, 2011, and who responded to the text message by sending a message requesting to opt out of receiving further text messages from Defendant, and to whom Defendant sent a confirmatory text message acknowledging receipt of the opt out message. (Mot. Prelim. Approval Class Settlement 3--4, ECF No. 23); Settlement Agreement ¶ 2.01, ECF No. 23-3)

2. Settlement Class Certification

Before granting preliminary approval of a class action settlement agreement, the Court must first determine whether the proposed class can be certified. Amchem Prods. v. Windsor, 521 U.S. 591, 620 (1997) (indicating that a district court must apply "undiluted, even heightened, attention [to class certification] in the settlement context" in order to protect absentees).

Class actions are governed by Federal Rule of Civil Procedure 23. In order to certify a class, each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) must be met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule 23(a) allows a class to be certified only if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. Rule 23(a).

In addition to Rule 23(a)'s requirements, the proposed class must satisfy the requirements of one of the subdivisions of Rule 23(b). Here, the parties seek to certify the settlement class under Rule 23(b)(3), which permits certification if "questions of law or fact common to class members predominate over any questions affecting only individual class members," and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

A. Numerosity (Rule 23(a)(1))

To satisfy Rule 23(a)(1), the class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "[C]courts generally find that the numerosity factor is satisfied if the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer." Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007).

Here, the proposed class consists of approximately 203 class members. Joinder of all members is therefore impracticable for purposes of Rule 23(a)(1).

B. Commonality (Rule 23(a)(2))

Rule 23(a)(2) requires that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Commonality requires that "the class members 'have suffered the same injury.'" Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)) "The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

Here, the members of the proposed class allegedly each received two text messages: one initial text message that advertised Defendant's products or services, and a second confirmatory text message following the class member's opt-out text message. Thus, in addition to sharing "a common core of salient facts," the class members share one common legal issue: whether the confirmatory text messages sent by Defendant to the class members violated the TCPA. Rule 23(a)(2) is therefore satisfied.

C. Typicality (Rule 23(a)(3))

To satisfy Rule 23(a)(3), the named plaintiff's claims must be typical of the claims of the class. The typicality requirement is "permissive" and requires only that the named plaintiff's claims "are reasonably coextensive with those of absent class members." Hanlon, 150 F.3d at 1020. "The test of typicality 'is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.'" Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). "[C]lass certification should not be granted if 'there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.'" Id. (quoting Gary Plastic Packaging Corp. v. Merrill Lynch Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)).

Here, the claims of the representative plaintiff allegedly arise out of the same set of facts as those pertaining to the class members. Like the class members, Plaintiff sent to Defendant a text message requesting to opt out of receiving any further text messages from Defendant. And like the class members, Plaintiff later received from Defendant a confirmatory text message. Thus, Plaintiff and the class members assert the same violation of the TCPA arising from the confirmatory text messages sent by Defendant to Plaintiff and the class members. Accordingly, Plaintiff's claims are typical of the claims of the class members, satisfying Rule 23(a)(3).

D. Adequacy (Rule 23(a)(4))

Rule 23(a)(4) requires that the named representative fairly and adequately protect the interests of the class. "To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of judgment which binds them." Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32, 42--43 (1940)). To determine legal adequacy, the Court must resolve two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id.

Here, there is no reason to doubt that the named plaintiff and his counsel do not have any conflict of interest with the class members or that they have thus far vigorously investigated and litigated this case. Plaintiff's and the class members' interests are aligned. Moreover, Plaintiff's counsel are qualified in class action litigation, including extensive experience in TCPA class action lawsuits in particular. (See Swigart Decl. ¶¶ 19--24, ECF No. 23-2; Campion Decl. ¶¶ 12--16, ECF No. 23-7; Kazerounian Decl. ¶¶ 12--18, ECF No. 23-8) Thus, Plaintiff and his counsel adequately represent the class members and Rule 23(a)(4)'s adequacy requirement is met.

E. Predominance (Rule 23(b)(3))

"The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., 521 U.S. at 623. "In contrast to Rule 23(a)(2), Rule 23(b)(3) focuses on the relationship between the common and individual issues." Hanlon, 150 F.3d at 1022.

Here, a common issue predominates over any individual issue-namely, whether the transmission and content of confirmatory text messages allegedly sent by Defendant to all class members violates the TCPA. Additionally, each of the class members is eligible to receive an identical pro-rata share of the settlement fund, suggesting that there is no need for an individualized determination of the share each class member is entitled to. Cf. Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010) (indicating that "damage calculations alone cannot defeat certification"). Thus, the predominance requirement of Rule 23(b)(3) is satisfied.

F. Superiority (Rule 23(b)(3))

The final requirement for class certification is "that a class action [be] superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). The superiority inquiry requires the ...

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