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Manouchehri v. Styles For Less, Inc.

United States District Court, S.D. California

June 20, 2016

ASAL SALLY MANOUCHEHRI, on behalf of herself and all others similarly situated, Plaintiff,
v.
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. 63]

          Hon. Nita L. Stormes, United States Magistrate Judge

         Plaintiffs 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 amended complaint.

         I. Leave to File Amended Complaint

         On 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.

         II. Relevant Background

         A. Procedural Background

         Plaintiffs 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[1] and 47 C.F.R. § 64.1200[2]. 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), ” which includes:

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.

         B. Settlement Terms

         Under 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.

         In 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.

         III. Preliminary Approval of Class Action Settlement

         Under 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). Id.

         A. Conditional Class Certification

         To 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).

         1. Compliance with Federal Rule of Civil Procedure 23(a)

         For 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 follows:

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 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.

         a. Numerosity

         Rule 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 here.

         b. Commonality

         Under 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 (2011).

         The 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).

         c. Typicality

         To 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.

         d. Adequate ...


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