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Story v. Mammoth Mountain SKI Area, LLC

United States District Court, E.D. California

November 7, 2017

PAUL STORY, individually and on behalf of all others similarly situated, Plaintiff
v.
MAMMOTH MOUNTAIN SKI AREA, LLC, a Delaware limited-liability company, Defendant.

          [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS-ACTION SETTLEMENT

          John A. Mendez, U.S. District Judge

         Plaintiff Paul Story's "Motion for Preliminary Approval of Class-Action Settlement" came on for hearing in courtroom 6 of the above-captioned Court on November 7, 2017.[1] Mark Greenstone and David Zelenski, of Glancy Prongay & Murray LLP and the Jaurigue Law Group, respectively, appeared on behalf of Plaintiff; Jeffrey Willian and Jordan Heinz, of Kirkland & Ellis LLP, appeared on behalf of Defendant Mammoth Mountain Ski Area, LLC.

         Having read the Motion for Preliminary Approval of Class-Action Settlement and all of the papers filed in connection therewith, and having heard the arguments of counsel, the Court finds that the proposed Settlement appears to be fair, reasonable, and adequate; and that a Final Fairness Hearing should be held after the Class Notice is disseminated to finally determine whether the Settlement is fair, reasonable, and adequate.

         IT THEREFORE IS ORDERED AS FOLLOWS:

         1. The Motion for Preliminary Approval of Class-Action Settlement is granted. For the purpose of settlement only, the Court finds that certification of the Class is appropriate because (a) the Class is ascertainable and sufficiently numerous; (b) there are questions of law and fact that are common to the Class, and those questions predominate over any questions affecting individual Class Members; (c) Plaintiffs claims are typical of the claims of the Class; (d) Plaintiff and Class Counsel are adequate representatives of the Class; and (e) a class action is superior to other available methods for adjudicating the Action. Furthermore, the Court finds that (a) the terms of the Settlement Agreement appear to be fair and reasonable to the Class when balanced against the probable outcome of further litigation relating to class certification, liability and damage issues, and potential appeals; (b) Class Counsel is experienced in class-action litigation, including litigation under the Telephone Consumer Protection Act; (c) significant investigation was undertaken, and significant information was exchanged, enabling Plaintiff and Defendant to reasonably evaluate one another's positions; (d) approving the Settlement Agreement will avoid the substantial costs, delay, and risks that would be presented by further litigation; and (e) the terms of the Settlement Agreement were the result of intensive, serious, and non-collusive negotiations between Plaintiff and Defendant, including two days of private mediation. Accordingly, the Court preliminarily finds that the Settlement Agreement falls within the range of possible final approval and therefore meets the requirements of preliminary approval.

         2. The Court conditionally certifies the following Class for the purpose of settlement only: all persons throughout the United States who, during the period of time from January 1, 2013, through December 31, 2014, received at least one prerecorded- or artificial-voice telephone call on their respective cellular or landline telephones from Defendant, or from any person or entity acting on behalf of Defendant, made for a marketing or advertising purpose.

         3. The Court conditionally appoints Glancy Prongay & Murray LLP and the Jaurigue Law Group as Class Counsel.

         4. The Court conditionally appoints Paul Story as the Class Representative.

         5. The Court conditionally appoints Postlethwaite & Netterville (P&N) as the Settlement Administrator.

         6. The Court conditionally approves, as to form and content, the Long-Form Notice, the Postcard Notice, and the E-Mail Notice contemplated by the Settlement Agreement. The Court finds that the Class Notice contemplated by the Settlement Agreement, including the manner for disseminating the Class Notice, constitutes the best notice practicable under the circumstances and is in full compliance with the laws of the United States and the requirements of due process. The Court further finds that the Class Notice appears to fully and accurately inform Class Members of all material terms of the Settlement Agreement, including the manner in which Individual Settlement Payments will be calculated; the right to submit, and procedure for submitting, Requests for Exclusion from the Settlement Class; and the right to object, and procedure for objecting, to the Settlement Agreement.

         7. Because the Settlement Agreement is within the range of possible final approval, the Court adopts and incorporates the provisions of the Settlement Agreement, including, but not limited to, the following:

a. No later than ten (10) business days after the date of this Preliminary Approval Order, Defendant shall provide the Settlement Administrator with the Class Data for purposes of preparing and disseminating the Class Notice to Class Members.
b. No later than twenty-eight (28) calendar days after the date that Defendant provides the Class Data to the Settlement Administrator, the Settlement Administrator shall mail the Postcard Notice (which consists of the Summary Notice and Claim Form contemplated by the Settlement Agreement) to the Class. At the same time that the Postcard Notice is initially mailed to the Class, the Settlement Administrator shall e-mail the E-Mail Notice (which consists of the Summary Notice and Claim Form contemplated by the Settlement Agreement) to the Class. Also at the same time that the Postcard Notice is initially mailed to the Class, the Settlement Administrator shall establish the Settlement Website (at which the online Claim Form contemplated by the Settlement Agreement will be made available).
c. Class Members shall have until ninety (90) calendar days after the Settlement Administrator first mails the Postcard Notice to the Class to submit Claim Forms to the Settlement Administrator, and shall have until sixty (60) calendar days after the Settlement Administrator first mails the Postcard Notice to the Class to submit Requests for ...

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