United States District Court, S.D. California
ASAL SALLY MANOUCHEHRI, on behalf of herself and all others similarly situated, Plaintiff,
STYLES FOR LESS, INC., a California corporation, and DOES 1 through 20, Defendant.
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION [DKT. NO.
Nita L. Stormes, United States Magistrate Judge
Asal Manouchehri and Pooneh Mehrazar-Arzani filed this
putative class action seeking recovery on behalf of
themselves and other customers of defendant Styles for Less,
Inc. for violation of the Telephone Consumer Protection Act
(TCPA). Plaintiffs now seek an order: (1) preliminarily
approving the parties’ proposed Settlement Agreement;
(2) provisionally certifying the Class for settlement
purposes only; (3) appointing Asal Sally Manouchehri and
Pooneh Mehrazar-Arzani as Class Representatives; (4)
appointing James R. Patterson of Patterson Law Group, APC and
Evan M. Meyers of McGuire Law, P.C. as Class Counsel; (5)
approving the form and dissemination of notice to Class
Members; and (6) scheduling a final approval hearing. Pl.
Mem. 2:1-6. The parties also jointly move for leave to file
an amended complaint, adding Pooneh Mehrazar-Arzani as a
plaintiff to this action. For the following reasons, this
Court GRANTS Plaintiffs’ motion for preliminary
approval, and GRANTS the joint motion for leave to file an
Leave to File Amended Complaint
October 22, 2014, plaintiff Manouchehri filed a class action
in the U.S. District Court for the Southern District of
California, alleging violations of the TCPA by Styles for
Less. Pl. Mem. 3:4-5. On August 4, 2015, plaintiff
Mehrazar-Arzani filed a class action in the U.S District
Court for the Central District of California, alleging
similar violations of the TCPA by Styles for Less.
Id. at 3:7-8. In this motion, the parties jointly
request leave to file an amended complaint adding plaintiff
Pooney Mehrazer-Arzani to this action. Id. at 1,
n.2. For good cause shown, the Court GRANTS this joint motion
and ORDERS Plaintiffs to file Exhibit 2 of the James R.
Patterson declaration as the first amended class action
complaint by June 27, 2016.
allege that defendant Styles for Less, a retailor, obtained
phone numbers from its customers through its website and in
its stores, then repeatedly and intentionally sent marketing
and advertising text messages to its customers’ cell
phones. Compl. 1:27- 28-2:6-10. Plaintiffs assert that
Defendant sent them advertising and marketing text messages
using an automatic telephone dialing system without their
granting of prior consent to receiving these messages, in
violation of the TCPA and 47 C.F.R. § 64.1200. Id. at
4:23-28. Plaintiffs filed a class action on behalf of
themselves “and all others similarly situated pursuant
to Federal Rules of Civil Procedure 23(a) and (b)(3), ”
All consumers who received a text message from styles for
less from October 16, 2013, to December 15, 2015, which text
message was not made for emergency purposes, was not made by
a tax-exempt nonprofit organization, did not deliver a health
care message, or was not made with the recipient’s
prior express written consent.
Compl. 12:1-6. In approaching the deadline to complete class
discovery, the parties consented to participating in a full
day mediation session presided over by former federal
Magistrate Judge Edward Infante, Ret., of JAMS-San Francisco
on September 14, 2015. Pl’s Mem. 3:18-20. Judge Infante
then “made a mediator’s proposal for a class-wide
settlement, which was ultimately accepted by all
Parties.” Pl’s Mem. 3:22-24. Plaintiffs
subsequently filed this unopposed motion for preliminary
approval of the class action Settlement.
the terms of the Settlement, defendant agrees to pay a $3,
600, 000 Settlement Fund to satisfy awards to class members,
class representative payments, class counsel fees and
litigation expenses, and settlement administrative costs.
Patterson Decl. Ex. 1, at 6. Class members have the option of
receiving a pro-rated Cash Award of up to $10 cash, or a $15
Voucher Award that is fully transferable, does not expire,
and is as good as cash toward merchandise at Styles for Less
retail stores. Id; Pl. Mem. 11:16-18. Known class
members-those members for whom Defendant has a name and home
or email address on file-will receive the Voucher Award that
may be used immediately upon receipt, along with a Claim Form
and Summary Notice. Patterson Decl. Ex. 1, at 4, 6. If these
known class members select the Cash Award rather than the
Voucher Award, they must return the Voucher Award and the
Claim Form indicating their selection. Id. at 11.
Each known class member who fails to timely submit a Claim
Form will be deemed to have elected the $15 Voucher Award.
Id. Those unknown class members for whom defendant
cannot reasonably obtain a home or email address may submit a
timely Claim Form indicating whether they choose to receive
the Cash Award or the Voucher Award. Id. at 5. If an
unknown class member fails to elect either the Cash Award or
the Voucher Award on an otherwise valid and timely Claim
Form, Defendant will issue that class member a Voucher Award.
Id. However, unknown class members who fail to
submit a valid and timely Claim Form will not be entitled to
a Cash Award or Voucher Award. Id.
addition to receipt of a cash or voucher award, “the
Settlement provides for entry of a permanent injunction
against [defendant], prohibiting text message marketing
without obtaining the prior express written consent of the
text message recipients.” Pl. Mem. 5:12-15 (citing
Settlement Agreement, § III(F)). Also, Defendant will
pay each Plaintiff an incentive award of up to $7, 500 for
pursuing this litigation on behalf of the class, and will pay
attorney fees of up to $900, 000 to Class Counsel, subject to
the Court’s approval. Patterson Decl. Ex. 1, at 7. The
parties have selected a Claims Administrator and determined a
procedure for notice to class members of their options to
receive settlement benefits, opt out of the Settlement, or
object to the Settlement. Pl. Mem. 6:22-24.
Preliminary Approval of Class Action
Federal Rule of Civil Procedure 23(e), a class action
settlement must be approved by the court. Review of a class
action settlement generally consists of a preliminary
approval hearing and a fairness hearing. True v. Am.
Honda Motor Co., 749 F.Supp. 2d. 1052, 1062 (C.D. Cal.
2010). “At the preliminary approval stage, a court
determines whether a proposed settlement is ‘within the
range of possible approval.’” Id.
(citing In re Corrugated Container Antitrust Litig.,
643 F.2d 195, 205 (5th Cir. 1981)). The judge must determine
whether the proposed class satisfies the requirements of
Federal Rule of Civil Procedure 23(a) and at least one
subsection of Rule 23(b). Manual for Complex Litigation,
§ 21.632 (4th ed. 2004). A settlement can then be
accepted if the judge approves the form and manner of notice
and makes “a preliminary determination on the fairness,
reasonableness, and adequacy of the settlement terms”
pursuant to Federal Rule of Civil Procedure 23(e)(2).
Conditional Class Certification
obtain a Conditional Class Certification from the Court, the
Class Action must comply with the rigorous standards set
forth by Federal Rule of Civil Procedure 23(a) and 23(b)(1),
(2), or (3). Anchem Products, Inc., v. Windsor, 521
U.S. 591, 614 (1997); Wal-Mart Stores Inc. v. Dukes,
564 U.S. 338, 345 (2011).
Compliance with Federal Rule of Civil Procedure
class certification in a class action lawsuit, a class must
meet the prerequisites of numerosity, commonality,
typicality, and adequate representation under Rule 23(a) as
Rule 23. Class Actions
(a) Prerequisites. One or more members of a class may sue or
be sued as representative parties on behalf of all members
(1) the class is so numerous that joinder of all members is
(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.
23(a)(1) requires that the class be “so numerous that
joinder of all members is impracticable” in order to
qualify as a class action. Styles for Less records show that
it transmitted text messages to approximately 300, 000
consumers throughout the country during the Class Period. Pl.
Mem. 15:27-28-16:1 (citing Patterson Decl. ¶ 6). The
large estimated number of class members, combined with the
fact that it is a national class with members dispersed
throughout the country, renders joinder of all members
impracticable. Pl. Mem. 16:1-3; See Braun v. Safeco Ins.
Co. of Am., 2014 U.S. Dist. LEXIS 184123 (finding that
149 class members meets the numerosity requirement);
Parsons v. Ryan, 784 F.3d 571, 574 (9th Cir. 2015)
(holding that 33, 000 class members satisfied the numerosity
requirement). The numerosity requirement is thus satisfied
23(a)(2), there must be “questions of law or fact
common to the class” in order to satisfy class action
requirements. Courts must apply a “rigorous
standard” to this requirement, and must find “a
single significant question of law or fact.”
Stockwell v. City & County of San Francisco, 749
F.3d 1107, 1116 (9th Cir. 2014). Claims will satisfy the
commonality requirement when the claims “depend upon a
common contention . . . of such a nature that it is capable
of classwide resolution-which means that determination of its
truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 342
action at bar involves only those consumers who received
unsolicited text messages from Styles for Less “not
made for emergency purposes . . . not made by a tax-exempt
nonprofit organization, [which] did not deliver a health care
message, or was not made with the recipient’s prior
express written consent.” Patterson Decl. Ex. A, at 1.
This action thus contains questions of law or fact common to
the entire class, including “(1) whether Styles for
Less obtained prior express written consent to send text
messages to its customers; (2) whether the text messages were
sent by an automatic telephone dialing system; and (3)
whether Styles for Less acted willfully in sending the
texts.” Pl. Mem. 16:18-23. All asserted claims concern
the same underlying conduct by Defendant and will result in
the precise resolution that will pertain to the entire class,
satisfying commonality under Rule 23(a).
satisfy Class Action requirements, “the claims or
defenses of the representative parties [must be] typical of
the claims or defenses of the class.” Fed.R.Civ.P.
23(a)(3). "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.'" Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011)
(quoting Hanon v. Dataproducts Corp., 976 F.2d 497,
508 (9th Cir. 1992)). Because Plaintiffs’ injury of
receiving unsolicited text messages from the Defendant is the
precise injury suffered by all members of the class involved,
and arose from the same course of conduct and legal theory,
the typicality requirement under Rule 23(a)(3) is satisfied.
See Ellis, 657 F.3d at 984.