The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER PRELIMINARILY APPROVING This filing relates to: ALL CASES. CLASS ACTION SETTLEMENT AND PROVIDING FOR NOTICE
WHEREAS, this action is pending before this court as a class action, Case No. 3:11-MD-2261-JM (JMA) (the "Action"); and
WHEREAS, the plaintiff has moved this court for an order preliminarily approving the settlement of the Action in accordance with the Class Action Settlement Agreement ("Settlement"), which, together with the attached exhibits, set forth the terms and conditions for the proposed settlement of the Action; and
WHEREAS, the court, having read and considered the Settlement and attached exhibits; NOW, THEREFORE, IT IS HEREBY ORDERED:
1. Based upon the court's review of the Settlement, the supporting briefs and declarations, and the entire record, Plaintiffs' Motion for Preliminary Approval of Settlement is GRANTED with modifications.
2. This order incorporates by reference the definitions in the Settlement, and all terms defined therein shall have the same meaning in this order as set forth in the Settlement.
3. The court hereby conditionally certifies the following class for settlement purposes only (the "Settling Class"):
All persons or entities in the United States and its Territories who in April 2011 were sent a text message from short codes 72345 or 41411 promoting Jiffy Lube containing language similar to the following: JIFFY LUBE CUSTOMERS 1 TIME OFFER: REPLY Y TO JOIN OUR ECLUB FOR 45% OFF A SIGNATURE SERVICE OIL CHANGE! STOP TO UNSUB MSG&DATA RATES MAY APPLY T&C: JIFFYTOS.COM.
4. Based upon the court's review of the Settlement, the supporting briefs and declarations, and the entire record, the Action presents common issues of law and fact, plaintiffs Joseph Crowl, Lawrence Cushnie, Tramy Duong, Rene Heuscher, Edward Koeller, Dawn Souder, and Jacob Barr are found to be an adequate representative of the Class, and their claims are found to be typical of the other members of the Settling Class ("Class Members"). The following attorneys are hereby appointed and designated as counsel for the Plaintiff and the Class ("Class Counsel"):
JAY EDELSON, Lead Class Counsel Edelson McGuire, LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 MICHAEL J. MCMORROW, Lead Class Counsel Smith & McMorrow, P.C. 53 West Jackson Boulevard, Suite 1018 Chicago, IL 60604 Telephone: (312) 546-6139 Facsimile: (888) 664-8172 DOUGLAS J. CAMPION, Liaison Counsel Law Offices of Douglas J. Campion 409 Camino Del Rio South, Suite 303 San Diego, CA 92108 Telephone: (619) 299-2091 Facsimile: (619) 858-0034
5. Class Counsel is authorized to act on behalf of Class Members with respect to all acts or consents required by, or which may be given under the Settlement, and such other acts reasonably necessary to consummate the Settlement. Any Class Member may enter an appearance through counsel of such Class Member's own choosing and at such Class Member's own expense. Any Class Member who does not enter an appearance or appear on his or her own will be represented by Class Counsel.
6. The court preliminarily approves the Settlement,*fn1
including Injunctive Relief, the Certificates, Class Counsel
Fees and Expenses Payment, and the Class Representative Incentive
Award. The court finds that, on a preliminary basis, the Total
Goods/Services Value, as defined in the Settlement, appears to be
within the range of reasonableness of a settlement that could
ultimately be given final approval by this court. The court has
reviewed the recovery that is being provided as part of the Settlement
and recognizes the significant value to the Class of that recovery.
The court has reviewed the relevant facts and law, including, but not
limited to, all previous pleadings filed in this Action and the papers
and declarations submitted by the Parties in support of preliminary
approval. It appears to the court on a preliminary basis that the
Total Goods/Services Value, as defined in the Settlement, is fair,
adequate, and reasonable as to all potential Class Members when
balanced against the cost and uncertainty associated with further
litigation of liability and damages issues. It further appears that
extensive investigation and research have been conducted such that
counsel for the Parties at this time are able to reasonably evaluate
their respective positions. Moreover, it appears to the court that
settlement of this Action at this time will avoid substantial
additional costs by all Parties, as well as the delay and risks that
would be presented by the further prosecution of the Action. It also
appears that the Settlement has been reached as the result of
intensive, serious, and non-collusive arms-length
7. A hearing (the "Final Approval Hearing") shall be held before this court on Monday, February 4, 2013, at 10:00 a.m. at the United States District Court for the Southern District of California, 940 Front Street, San Diego, CA 92101, in Courtroom 16 to determine all necessary matters concerning the Settlement, including: whether the proposed Settlement of the Action on the terms and conditions provided for in the Settlement is fair, adequate, and reasonable and should be finally approved by the court; whether a Judgment, as provided in the Settlement, should be entered herein; whether the proposed allocation and distribution of the Total Goods/Services Value contained in the Settlement should be approved as fair, adequate and reasonable to the Class Members; and to finally approve the Class Counsel Fees and Expenses Payment and the Class Representative Payment.
8. The court approves, as to form and content, the Notice Plan and all forms of Notice to the Settlement Class as set forth in the Settlement and Exhibits B, C, and D thereto, including the updated direct mail notice filed with the Court on October 4, 2012 [Dkt. No. 81, Exhibit B], with the following modifications. Consistent with paragraphs 2.2 through 2.4 of the Settlement, within twenty-one (21) days of Preliminary Approval, the Settlement Administrator shall cause to be sent via U.S. Mail the Mailed Notice substantially in the form of Exhibit B to the Settlement to each address appearing on the Settlement Class List. Defendants shall also comply with the requirements of 28 U.S.C. § 1715. The court finds that the distribution of the Notice and Claim Form substantially with the requirements of the Federal Rules of Civil Procedure in the ...