United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Before the Court is Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. (Doc. 87.)
Plaintiff's amended complaint alleges that Defendants violated 47 U.S.C. § 227 of the Telephone Consumer Protection Act of 1991 (the "TCPA") by using an automated telephone dialing system ("ATDS") to call, without permission, her individual cellular telephone and the cellular telephones of putative class members (the "Lawsuit"). (Doc. 24.) Including the calls to Plaintiff, Defendants used an ATDS to make 30, 378 calls to the cellular phones of 9, 042 putative class members from January 1, 2012, to May 31, 2012. (Docs. 79, 87-1 at 42.) The parties have reached a settlement in which Defendants will set aside $2.3 million (the "Settlement Fund") for Plaintiff's attorneys fees, costs of administration, and for payments to Plaintiff and the putative class members. Plaintiff now requests the Court preliminarily certify the class for settlement purposes, preliminarily approve the class settlement agreement, approve the proposed notice plan, and set the final approval conference.
To certify a class action pursuant to Federal Rule of Civil Procedure 23(a), the named plaintiff must demonstrate that:
(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.
Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2548 (2011) (quoting Fed.R.Civ.P. 23(a)). Numerosity is routinely satisfied by hundreds of class members. E.g., Evon v. Law Offices of Sidney Mickell , 688 F.3d 1015, 1029 (9th Cir. 2012). Commonality exists "[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class." Id . (quoting Parra v. Bashas', Inc. , 536 F.3d 975, 978-79 (9th Cir. 2008)). "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.'" Id . at 1030 (quoting Hanon v. Dataproducts Corp. , 976 F.2d 497, 508 (9th Cir. 1992)). Adequacy rests on two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id . at 1031 (quoting Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1020 (9th Cir. 1998)).
Provided the elements of Rule 23(a) are met, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Dukes , 131 S.Ct. at 2548. The third such requirement provides that a class action may be maintained if "the court finds that the 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." Fed.R.Civ.P. 23(b)(3). "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623 (1997). The superiority inquiry requires consideration of four factors:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). In the context of a "settlement-only" certification, any difficulties in managing the action are ameliorated because the parties propose to avoid trial. Amchem Prods. , 521 U.S. at 620.
Once the class is certified, the class claims "may be settled... only with the court's approval." Fed.R.Civ.P. 23(e). "If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, ... adequate, " id. 23(e)(2), "and free from collusion, " Hanlon , 150 F.3d at 1027. Whether a settlement meets these standards in the context of an unopposed motion seeking both preliminary certification of the class and approval of the proposed settlement requires consideration of several factors, including: (1) "the strength of plaintiffs' case"; (2) "the risk, expense, complexity, and likely duration of further litigation"; (3) "the risk of maintaining class action status throughout the trial"; (4) "the amount offered in settlement"; (5) "the extent of discovery completed, and the stage of the proceedings"; and (6) "the experience and views of counsel." Id . at 1026. "The parties seeking approval must [also] file a statement identifying any agreement made in connection with the proposal." Fed.R.Civ.P. 23(e)(3).
"Adequate notice is critical to court approval of a class settlement under Rule 23(e)." Hanlon , 150 F.3d at 1025. "For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed.R.Civ.P. 23(c)(2)(B); see id. 23(e)(1) ("The court must direct notice in a reasonable manner to all class members who would be bound by the proposal."). Rule 23(c)(2)(B) enumerates seven elements that "[t]he notice must clearly and concisely state in plain, easily understood language." Id . 23(c)(2)(B).
I. Preliminary Class Certification for Purposes of Settlement
First, there are 9, 042 putative class members-joinder is clearly impracticable. Therefore, the numerosity requirement is satisfied. Second, the legal and factual circumstances of the putative class members' claims are identical: Defendants used ATDS to call cellular phones in violation of 47 U.S.C. § 227. The Court finds the commonality requirement satisfied. Third, since Plaintiff is a member of the class, she has the same interests and claims as the putative class members; Defendants' defenses would be the same as to Plaintiff as they would as against each putative class member. Thus, the typicality requirement is satisfied. Fourth, Plaintiff has no antagonistic or conflicting interests with the putative class members; rather they all share the same interest in monetary damages. Plaintiff testified that she understands her responsibility to look out for the best interests of the class and to ensure equal treatment of the class members (Doc. 79-3 at 3); she is so committed to certifying and representing the class that she declined more than one offer of judgment that would have been more than she could have possibly recovered at trial. Plaintiff has retained experienced class counsel that are determined to prosecute the action. The Court finds the adequacy requirement satisfied. For the foregoing reasons, the Court finds the strictures of Rule 23(a) have been met.
There is complete identity of common factual and legal issues: the central question is whether Defendants violated the TCPA by calling putative class members. The Court finds that the proposed class is "sufficiently cohesive to warrant adjudication by representation, " Amchem Prods. , 521 U.S. at 623, and that common questions predominate over individual questions. Thus, the predominance standard is met.
Shifting to the superiority inquiry, there is no discernable reason why any one class member would have an interest in individually controlling the prosecution of their claims. As mentioned above, the putative class members' allegations are homogenous and arise from standardized conduct. The only alternative to a nation-wide representative action would be for putative class members to bring identical suits individually or in smaller groups. Prudent judicial administration strongly militates against a method of adjudication that would result in thousands of identical law suits. Since there is no other pending litigation, and the parties are proposing to settle the action rather than litigate it, the class action is clearly superior to other methods of adjudication. Thus, the superiority standard is met, and the requirements of Rule 23(b)(3) are satisfied.
As both conditions for class certification have been satisfied, the Court preliminarily certifies the class.
II. Appointment of Class Counsel
"The choice of counsel has traditionally been left to the parties, whether they sue in their individual capacities or as class representatives." In re Cavanaugh , 306 F.3d 726, 734 (9th Cir. 2002). Plaintiff's counsel-and proposed class counsel-Greenwald Davidson PLLC has ample experience in litigating class actions and has demonstrated an understanding of applicable law. As mentioned above, Plaintiff's counsel is determined to tenaciously prosecute this action, ...