United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT RE: DKT. NO. 165
J. DAVILA UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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.”
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.
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 ...