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Brinker v. Normandin's

United States District Court, N.D. California, San Jose Division

November 16, 2017

ALAN BRINKER, et al., Plaintiffs,
NORMANDIN'S, et al., Defendants.



         In this putative class action, Plaintiffs allege that Defendants Normandin's and OneCommand, Inc. placed automated phone calls in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b). Before the Court is Plaintiffs' unopposed motion for preliminary approval of the parties' class action settlement. Plaintiffs' motion will be granted.


         Plaintiffs allege that Normandin's and OneCommand violated the TCPA by placing automated calls to Plaintiffs' phones. Second Am. Class Action Compl. (“SAC”) ¶¶ 69-76, Dkt. No. 127. Plaintiff Alan Brinker received one call, which went to voicemail; he listened to the message, called to confirm that Normandin's left the message, and hung up. Id. ¶¶ 27-28; Dkt. No 130 at 3. Plaintiffs Austin Rugg and Ana Sanders each received “approximately five or six” calls; it is unclear whether they answered the calls or listened to voicemail messages. Id. ¶¶ 38-40, 51- 53; Dkt. No. 132 at 2.

         OneCommand moved to dismiss Plaintiffs' complaint for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Dkt. No. 130. This Court granted OneCommand's motion on the basis that Plaintiffs lacked standing because they failed to allege a concrete injury. Dkt. No. 141. However, Plaintiffs filed a subsequent motion for reconsideration based on new Ninth Circuit authority holding that any violation of the TCPA is a concrete, de facto injury that is sufficient to confer Article III standing. Dkt. No. 145. This Court granted Plaintiffs' motion for reconsideration. Dkt. No. 155.

         The parties filed a notice of settlement on July 21, 2017. Dkt. No. 161. Plaintiffs now move for preliminary approval of the class action settlement. Pls.' Mot. for Preliminary Approval of Class Action Settlement (“Mot.”), Dkt. No. 165. Defendants do not oppose the motion.


         A class action may not be settled without court approval. Fed.R.Civ.P. 23(e). When the parties to a putative class action reach a settlement agreement before class certification, “courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). At the preliminary stage, the court must first assess whether a class exists. Id. (citing Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Second, the court must determine whether the proposed settlement “is fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). After the court grants preliminary approval and after notice is given to class members, the court then determines whether final approval is warranted. Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004).


         A. Class Certification

         A class may be certified if the following four requirements present in Fed.R.Civ.P. 23(a) are met: “(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.” In addition, the class action must satisfy the provisions of Fed.R.Civ.P. 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

         i. Rule 23(a)

         Rule 23(a)(1) provides that a class action may be maintained only if “the class is so numerous that joinder of all parties is impracticable.” Fed.R.Civ.P. 23(a)(1). While numerosity is not dependent on a specific number of proposed class members, courts generally find that it is satisfied when the class contains at least forty members. Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007).

         Here, the parties state that the class consists of 8, 313 members. Mot. 21. This size far exceeds the forty person class size generally deemed sufficient for numerosity purposes. As such, the court finds ...

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