United States District Court, N.D. California
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND MOTION FOR COSTS Re: Dkt. No. 114,
HAYWOOD S. GILLIAM, JR. United States District Judge.
before the Court is the unopposed motion for final approval
of class action settlement filed by Plaintiff Jamie Mendez
(“Plaintiff”), individually and on behalf of the
settlement class as defined herein, Dkt. No. 115, as well as
Plaintiff's unopposed motion for an incentive award and
reimbursement of costs, Dkt. No. 114. Plaintiff filed suit
against Defendants C-Two Group, Inc. and C&L Associates,
Inc. (collectively, “Defendants”) for violating
the Telephone Consumer Protection Act, 47 U.S.C. § 227,
et seq. (“TCPA”) by allegedly sending
marketing text messages to Plaintiff and the putative class
using an automatic telephone dialing system
(“ATDS”). The parties have reached a settlement
regarding Plaintiff's claim and now seek required court
approval of the proposed class settlement. Having carefully
considered the arguments of the parties, the Court GRANTS
Plaintiff's motions for the reasons set forth below.
Factual Allegations and Procedural History
filed her initial complaint, on behalf of herself and others
similarly situated, in San Francisco Superior Court on
November 5, 2013. Dkt. No. 1 at 2. The defendants named in
that complaint jointly removed the action to this Court
shortly thereafter. Id. Plaintiff then filed a first
amended class action complaint, which, on motion, the Court
dismissed for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Dkt. Nos. 9, 23 & 36. With
leave of the Court, Dkt. No. 40, Plaintiff filed the
operative second amended class action complaint against
Defendants, alleging that they sent her unsolicited and
nonconsensual text messages that sought her patronage at a
nightclub in San Francisco called Infusion Lounge
(“Infusion Lounge”) for over two years. Dkt. No.
41 ¶¶ 13-14. Plaintiff argues that this conduct
violated Section 227 of the TCPA, which proscribes, in
relevant part, using an ATDS to contact someone in the United
States on their telephone without prior express consent.
Id. ¶¶ 27-28. On that basis, Plaintiff
sought compensatory and punitive damages, injunctive relief,
and attorneys' fees and costs. Id. at 7-8.
Defendants answered the complaint on August 5, 2014. Dkt. No.
March 13, 2015, Plaintiff moved for class certification. Dkt.
No. 64. Defendants jointly opposed, Dkt. No. 68, and
Plaintiff replied, Dkt. No. 72. On June 2, 2015, the Court
certified the following litigation class pursuant to FRCP
23(b)(3), Dkt. No. 75: “All individuals who entered
their contact information online through Infusion
Lounge's website and were sent a text message from SMS
Short Code 99158 that referenced the Infusion Lounge from
November 5, 2009 through October 15, 2013.” Dkt. No.
75. On December 10, 2015, the Court issued an accompanying
Order Certifying Class stating the Court's reasoning for
certifying the class in further detail. Dkt. No. 92.
filed a motion for preliminary approval of class action
settlement on August 26, 2016, see Dkt. No. 104,
which the Court granted on March 27, 2017, see Dkt.
No. 112. Plaintiff now seeks final approval of the
settlement. Dkt. No. 115.
Overview of the Proposed Settlement
parties executed a class action settlement agreement
detailing the provisions of the proposed settlement. Dkt. No.
104, Ex. A. Following the October 27, 2016 hearing, Plaintiff
filed an updated settlement agreement, which altered the
definition of the term “settlement certificates.”
See Dkt. No. 108-1, Ex. 3. On March 21, 2017, the
Court advised the parties of additional deficiencies in the
settlement agreement, Dkt. No. 110, and Plaintiff filed a
second revised settlement agreement on March 24, 2017, Dkt.
No. 111-2, Ex. A (“SA”). The key terms are as
Class: All individuals who entered their contact
information online through Infusion Lounge's website and
were sent a text message from SMS Short Code 99158 that
referenced the Infusion Lounge from November 5, 2009 through
October 15, 2013. SA ¶ 1.26.
Each class member will be directly issued a settlement
certificate valued at $10 that can be redeemed for one-time
free entry into the Infusion Lounge on any Wednesday,
Thursday, Friday, or Saturday on which the Infusion Lounge is
open to the public. SA ¶ 1.12. The certificates will be
freely transferrable, may not be redeemed for cash, may not
be used for anything other than entry into the club, are not
gift cards, may only be used once, may be declared void if a
valid code is not included on the certificate, and shall
expire 365 days after issuance. Id. Codes will be
directly disseminated to class members following final
approval. Mot. at 5. Class members will not need to submit a
claim form. Id.
Certification, Representative, and Counsel: The Court
previously certified the class identified here and granted
Plaintiffs request for appointment as class representative
and Plaintiffs attorneys as class counsel. See Dkt.
Fees and Costs: The agreement authorizes class counsel
to apply to the Court for an award of costs incurred in
litigating this case not to exceed $6, 500. SA
¶ 8.1. Class counsel shall not seek an award of
attorneys' fees. Id. Defendants agree not to
oppose a request for costs less than or equal to $6, 500.
Administration Costs: Defendants will pay the settlement
administrator for all costs associated with the settlement,
including providing notice, maintaining the settlement
website and arranging for the issuance of the settlement
certificates. Id. ¶ 2.2, 4.2. The parties
estimate that the cost of administering the settlement will
be $7, 000. Id. ¶ 2.2.
Award: The agreement authorizes the named Plaintiff to
seek a $500 incentive award for her participation in this
lawsuit, which Defendants do not oppose. SA ¶ 8.3-8.4.
Settlement Funds: The agreement provides that unclaimed
settlement certificates shall expire 365 days after issuance.
Id. ¶ 1.12.
Notice: A third-party settlement administrator will
establish a settlement website within 21 days and send class
notice via direct email within 30 days of the Court's
entry of an order granting the motion for preliminary
approval. Id. ¶ 4.2. The parties attached a
revised copy of their proposed class notice to their revised
settlement agreement. See Dkt. No. 111-2, Exs. 1, 2.
Procedure: Any putative class member who does not wish
to participate in the settlement may either (1) opt out via
the settlement website, or (2) mail back an opt-out form that
will be included in the class notice. SA ¶ 4.5.
Class members who do not opt out of ...