The opinion of the court was delivered by: The Honorable Maxine M. Chesney
[PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, CERTIFYING SETTLEMENT CLASS, APPROVING PROCEDURE AND FORM OF NOTICE, AND SCHEDULING FINAL APPROVAL HEARING
WHEREAS, a class action is pending before the Court entitled Robles v. Lucky Brand Inc., Case No. 10-cv-04846-MMC; and
WHEREAS, Plaintiffs and Defendants Lucky Brand Dungarees, Inc. ("Lucky"), Kirshenbaum Bond Senecal & Partners LLC f/k/a Kirshenbaum Bond & Partners LLC d/b/a Lime Public Relations Promotion, and Kirshenbaum Bond & Partners West LLC (collectively "Lime"), Third-Party Defendant Merkle Inc. ("Merkle"), and Fourth-Party Defendant RGAR Holdings, LLC f/k/a Take 5 Solutions, LLC ("Take 5") (collectively, "Defendants"), 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 Defendants upon the terms and conditions set forth therein (the "Settlement Agreement"), and the Court having read and considered the Settlement Agreement and exhibits attached thereto;
This matter coming before the Court upon the agreement of the parties, good cause being shown, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:
1. Terms and phrases in this Order shall have the same meaning as ascribed to them in the Settlement Agreement.
2. The parties have moved the Court for an order approving the settlement of the Action in accordance with the Settlement Agreement, which, together with the documents incorporated therein, sets forth the terms and conditions for a proposed settlement and dismissal of the Action with prejudice, and the Court having read and considered the Settlement Agreement and having heard the parties and being fully advised in the premises, hereby preliminarily approves the Settlement Agreement in its entirety subject to the Final Approval Hearing referred to in paragraph 18 of this Order.
3. The Court finds that, subject to the Final Approval Hearing, the Settlement Agreement is fair, reasonable, adequate, and in the best interests of the class set forth below. The Court further finds that the Settlement Agreement substantially fulfills the purposes and objectives of the class action, and provides substantial relief to the class without the risks, burdens, costs, or 2 delay associated with continued litigation, trial, and/or appeal. The Court also finds that the 3 Settlement Agreement (a) is the result of arms' length negotiations between experienced class 4 action attorneys assisted by Magistrate Judge Howard Lloyd and the Hon. Nicholas H. Politan 5 Settlement Class; (c) meets all applicable requirements of law, including Federal Rule of Civil 7 Procedure 23, and the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1715; and (d) is not a 8 finding or admission of liability by the Defendants or any other parties. 9
4. For purposes of settlement only: (a) Jay Edelson, Myles McGuire, and Ryan D. Andrews of Edelson McGuire, LLC are appointed Class Counsel for the Settlement Class; and (b) 12
Plaintiffs Juvenal Robles and Abel Figueroa are named Class Representatives. The Court finds that 13 these attorneys are competent and capable of exercising the responsibilities of Class Counsel and 14 that Plaintiffs Robles and Figueroa will adequately protect the interest of the class defined below. 15
16 the Settlement Agreement: 17
Person's prior express consent from short code 88202 between August 24, 2008 and September 15, 2008, as part of the Back to School campaign:
(Ret.); (b) is sufficient to warrant notice of the settlement and the Final Approval Hearing to the 6
Settlement Class Certification
5. For purposes of settlement only, the Court certifies the following class as defined in
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11 below, that the Settlement Agreement is fundamentally fair, adequate, and reasonable, and, solely 12 within the context of and for the purposes of settlement only, thatthe Settlement Class satisfies the 13 requirements of Rule 23 of the Federal Rules of Civil Procedure, specifically, that the Settlement 14
Class of 216,711 Persons is so numerous that joinder of all members is impracticable; there are 15 questions of law and fact common to members of the Settlement Class including whether the 16 equipment used to send the Text Messages fell within the statutory definition of "Automatic 17
Telephone Dialing System" and whether Defendants properly obtained the prior express consent of 18 the Class Members to send the Text Messages; the claims of the Class Representativesunder the 19
Class members; the Class Representatives will fairly and adequately protect the interests of the 21
Settlement Class; common questions of law or fact identified above predominate over questions 22 affecting individual members; and a class action is a superior method for fairly and efficiently 23 adjudicating the Action. 24
25 approval be reversed on appeal, or should the Settlement Agreement otherwise fail to become 26 effective, the Court's grant of class certification shall be vacated, and the Class Representatives and 27 the Settlement Class would once ...