Sean Skuro v. BMW of North America, LLC et al

Filing 50

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT by Judge George H Wu (pj)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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SEAN SKURO, on behalf of himself
and all others similarly situated, and on
behalf of the general public,
Plaintiffs,

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CASE NO.: CV 10-8672-GW(FFMx)
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

v.

DATE: March 8, 2012
TIME: 8:30 A.M.
BMW OF NORTH AMERICA, LLC, a COURTROOM: 10
Delaware limited liability company,
ATX Group, Inc., a Texas corporation, JUDGE: Hon. George H. Wu
and DOES 1 through 50, inclusive,
Defendants.

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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

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On February 23, 2012 and March 8, 2012, the Court, the Honorable George

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H. Wu presiding, conducted hearings regarding the motion brought by Plaintiff

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Sean Skuro (“Class Representative”) for Preliminary Approval of Class Action

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Settlement. The parties appeared by and through their respective counsel of record.

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After considering the papers and the arguments of counsel, including the

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amended class notice, the declaration submitted by the proposed settlement

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administrator Gilardi & Co., LLC, and the Supplemental Declaration of Daniel F.

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Gaines, and good cause appearing, IT IS HEREBY ORDERED, ADJUDGED

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AND DECREED THAT:

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1.

For purposes of this Order, the Court adopts and incorporates all

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definitions set forth in the Settlement Agreement and Release (“Settlement

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Agreement”) unless a different definition is set forth in this Order.

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2.

The Court finds that the requirements of Rule 23 of the Federal Rules

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of Civil Procedure and other laws and rules applicable to preliminary settlement

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approval of class actions have been satisfied, and the Court preliminarily approves

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the settlement of this Action as memorialized in the Settlement Agreement, which

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is incorporated herein by this reference, as being fair, just, reasonable and adequate

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to the settlement Class and its members, subject to further consideration at the Final

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Fairness and Approval Hearing described below, and thus hereby:

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(a) conditionally certifies for purposes of implementing the Settlement

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Agreement only the Class consisting of all individuals who connected to BMW

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Assist between October 13, 2009 and February 1, 2011 through BMW Assist

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subscription accounts with California billing addresses, but excluding (1) BMW

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NA and ATX, their subsidiaries and affiliates, officers, directors, and employees,

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(2) all persons and/or entities claiming to be subrogated to the rights of Class

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Members, (3) individuals and/or entities who validly and timely opt-out of the

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Settlement, (4) Class Members who previously have released their claims against

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BMW NA or ATX with respect to the issues raised in the Litigation, (5) individuals
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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

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or entities that have purchased and/or leased Class Vehicles as “fleet” vehicles (i.e.

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authorized BMW Centers, rental companies, or entities that purchased BMW

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vehicles as company vehicles), and (6) the Judge(s) and/or attorneys to whom the

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Litigation is or will be assigned;

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(b) appoints Plaintiff Sean Skuro as the representative of the Class; and

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(c) appoints Kenneth S. Gaines, Daniel F. Gaines, and Alex P.

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Katofsky of Gaines & Gaines, APLC as attorneys for the Class for purposes of

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settlement and finds for the purposes of settlement that these attorneys are qualified

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to represent the Class.

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3.

A hearing (the “Final Fairness and Approval Hearing”) shall be held

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on August 27, 2012, at 8:30 a.m. before the Honorable George H. Wu, in

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Courtroom 10 of the United States District Court for the Central District of

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California, located at 312 N. Spring Street, Los Angeles, California 90012. At that

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time, the Court shall determine: (a) whether the proposed settlement of the Action

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on the terms and conditions provided for in the Settlement Agreement is fair, just,

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reasonable and adequate and should be finally approved; (b) whether judgment as

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provided in the Settlement Agreement should be entered herein; and (c) whether to

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approve Class Counsel’s application for an award of attorneys’ fees and costs and

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Plaintiff’s application for a service payment. The Court may continue or adjourn

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the Final Fairness and Approval Hearing without further notice to members of the

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Class.

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4.

The Court approves, as to form and content, the amended Class Notice

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attached hereto as Exhibit 1, the Claim Form attached to the Settlement Agreement

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as Exhibit 2, and the amended Reminder Notice attached hereto as Exhibit 2. The

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Court finds that distribution of the Class Notice in the manner set forth in this Order

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and the Settlement Agreement constitutes the best notice practicable under the

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circumstances, and constitutes valid, due and sufficient notice to all members of the

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Class, complying fully with the requirements of Rule 23 of the Federal Rules of
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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

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Civil Procedure, the Constitution of the United States, and any other applicable

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laws. The Class Notice set forth herein and in the Settlement Agreement provides a

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means of notice reasonably calculated to apprise the Class Members of the

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pendency of the action and the proposed settlement, and thereby meets the

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requirements of Rule 23(c)(2) of the Federal Rules of Civil Procedure, as well as

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due process under the United States Constitution and any other applicable law, and

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shall constitute due and sufficient notice to all Class Members entitled thereto.

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5.

The Court approves the selection of Gilardi & Co., LLC to be the

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Claims Administrator. The Claims Administrator will administer the applicable

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provisions of the Settlement Agreement, including, but not limited to, distributing

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and providing the Class Notice, receiving and examining claims, calculating claims

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against the Non-Reversionary Fund, preparing and issuing all disbursements to

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Class

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Addendums.

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Members,

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and

accepting

and processing

Subscription

Agreement

No later than sixty (60) days after the date of this Order, the Claims

Administrator shall mail the Class Notice to Class Members.
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Any person may request to be excluded from the Class by mailing a

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letter, by first class mail, return receipt requested, to the Claims Administrator as

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provided in the Class Notice. Any such request will be timely only if postmarked

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no later than sixty (60) days after the Class Notice is initially mailed to Class

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Members

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8.

In order to make a claim from the Non-Reversionary Fund, Class

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Members must submit a Claim Form to the Claims Administrator, such that it is

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postmarked or submitted online no later than sixty (60) days after the Class Notice

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is initially mailed to Class Members.

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9.

In order to obtain a service benefit, Class Members must submit a

Subscription Agreement Addendum to the Claims Administrator, such that it is

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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

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postmarked or submitted online no later than sixty (60) days after the Class Notice

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is initially mailed to Class Members.

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10.

Class Counsel shall file a motion for final approval of settlement no

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later than one hundred thirty-four (134) days after the date of this Order. Any

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request by Class Counsel for an award of attorneys’ fees or reimbursement of

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expenses, or for a service payment to the Class Representative, shall be filed

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concurrently, and those requests shall be accompanied by supporting evidence.

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Any Class Members may object to the approval of the Settlement or

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the award of attorneys’ fees and reimbursement of expenses to Class Counsel and

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the service payment to be paid to the Class Representative. Any such objection will

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be timely only if filed with the Court and served upon Class Counsel, Defense

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Counsel, and the Claims Administrator, as provided in the Class Notice and the

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Settlement Agreement, no later than one hundred forty-eight (148) days after the

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date of this Order.

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12.

Any Class Member who has filed and served such written objections

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may, but is not required to, appear himself or herself, or through counsel, at the

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Final Fairness and Approval Hearing and object to the approval of the Settlement or

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the award of attorneys’ fees and reimbursement of expenses to Class Counsel or the

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award of a service payment to the Class Representative. No Class Member, or any

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other person, shall be heard or entitled to contest the approval of the proposed

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Settlement, the judgment to be entered approving the same, the award of attorneys’

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fees and reimbursement of expenses to Class Counsel, or the service payment to the

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Class Representative, unless that Class Member has filed and served written

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objections in the manner set forth in the Class Notice. The Parties may file any

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response to the objections submitted by objecting Class Members, if any, no later

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than ten (10) days after deadline to submit objections.

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13.

Any settlement Class Member who does not make his or her

objection(s) in the manner so provided herein and in the Class Notice shall be
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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

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deemed to have waived such objection(s) and shall forever be foreclosed from

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making any objection(s) to the fairness or adequacy of the proposed Settlement as

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incorporated in the Settlement Agreement, the award of attorneys’ fees and

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reimbursement of expenses to counsel, and the service payment to the Class

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Representative, and the right to appeal any orders that are entered relating thereto,

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unless otherwise ordered by the Court.

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objection which the Court subsequently overrules shall have ten (10) days from the

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date of entry of the Order overruling the objection to submit a request for exclusion

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from the settlement.

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14.

Any Class Member who submits an

The Court reserves the right to adjourn the date of the Final Fairness

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and Approval Hearing and any adjournment thereof without further notice to the

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members of the Class, and retains jurisdiction to consider all further applications

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arising out of or connected with the settlement.

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settlement, with such modifications as may be agreed to by the parties to the

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settlement, if appropriate, without further notice to the Class.

The Court may approve the

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IT IS SO ORDERED.

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Dated: March 12, 2012
GEORGE H. WU, U.S. District Judge

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ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT