Lumos v. Southwest Airlines Co. et al

Filing 32

ORDER granting 29 NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT] filed by Jamie Lumos, 27 MOTION for Attorney Fees [NOTICE OF MOTION AND MOTION FOR AWARD OF R EASONABLE ATTORNEYS' FEES AND COSTS, CLASS REPRESENTATIVE ENHANCEMENTS AND CLAIM ADMINISTRATOR'S FEES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT] filed by Jamie Lumos. JUDGMENT/JUDGMENT on Attorney Fees. Signed by Judge Charles R. Breyer on 3/21/2014. (beS, COURT STAFF) (Filed on 3/21/2014)

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KELLER GROVER LLP

1965 Market Street, San Francisco, CA 94103
Tel. [phone] | Fax. [phone]

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ERIC A. GROVER (SBN 136080)
[e-mail]
KELLER GROVER LLP
1965 Market Street
San Francisco, California 94103
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Plaintiff
ROBERT MILLER on behalf of himself and
others similarly situated
TODD D. CARPENTER (SBN 234464)
[e-mail]
CARPENTER LAW GROUP
432 West Broadway, 29th Floor
San Diego, CA 92101
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Plaintiff
JAMIE LUMOS on behalf of herself and
others similarly situated

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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ROBERT MILLER, on behalf of himself and
all others similarly situated,

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Plaintiff,
vs.

Defendants.

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JAMIE LUMOS, on behalf of herself and
all others similarly situated,
Plaintiff,

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CLASS ACTIONS
CONSOLIDATED FOR DISCOVERY PURPOSES ONLY

SOUTHWEST AIRLINES CO., a Texas
Corporation; and DOES 1 through 20,
inclusive,

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Case No. C-12-5978-CRB
Case No. C-13-1429-CRB

vs.

ORDER GRANTING MOTION FOR FINAL
APPROVAL AND AWARD OF
ATTORNEYS’ FEES AND COSTS, CLASS
REPRESENTATIVES’ ENHANCEMENTS
AND CLAIMS ADMINISTRATOR’S FEES
Date:
Time:
Ctrm:
Judge:

March 14, 2013
10:00 a.m.
6, 17th Floor
The Hon. Charles R. Breyer

SOUTHWEST AIRLINES CO., a Texas
corporation; and DOES 1 through 20, inclusive,
Defendants.

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[PROPOSED] ORDER GRANTING
FINAL APPROVAL

CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB

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On September 17, 2013, Plaintiffs, ROBERT MILLER and JAMIE LUMOS (“Plaintiffs”

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or “Class Representatives”), individually and on behalf of others similarly situated (“Plaintiffs”)

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filed a Motion for Preliminary Approval of Class Settlement (“Motion”) upon the terms and

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conditions set forth in the Stipulation of Settlement and Release Between Plaintiffs and

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Defendant (“Stipulation of Settlement”), a true and correct copy of which was attached to the

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Declaration of Eric A. Grover in support of the Motion as Exhibit ‘C.”

proposed class action Settlement and approved manner and content of notice to be given to the

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KELLER GROVER LLP

On October 18, 2013, the Court entered an Order granting preliminary approval of the

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1965 Market Street, San Francisco, CA 94103
Tel. [phone] | Fax. [phone]

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members of the Settlement Class. Docket No. 40.

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On January 29, 2014, Plaintiffs filed a Motion For Attorneys’ Fees and Costs, Class

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Representatives’ Enhancement Awards, and Claims Administrator’s Fees and, on February 21,

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2014, filed a Motion for Final Approval of Settlement of Class Action Settlement. Those motions

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are hereinafter collectively referred to as “The Final Approval Motions.” Filed concurrently with

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The Final Approval Motions were the Declaration and Supplemental Declaration of April Hyduk

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submitted on behalf of Rust Consulting, Inc., the Settlement Administrator, which set forth the

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efforts made by the Settlement Administrator to administer the Settlement and the results of those

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efforts.

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Having duly considered all submissions and arguments presented, IT IS HEREBY
ORDERED, DECREED AND ADJUDGED AS FOLLOWS:
1.

The Court, for purposes of this order (“Order”), adopts all defined terms as set

forth in the Stipulation of Settlement.
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The Court hereby GRANTS final approval of the Settlement upon the terms and

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conditions set forth in the Stipulation of Settlement and approved by this Court’s order of

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October 18, 2013. The Court finds that the terms of the Settlement are fair, reasonable, and

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adequate and comply with Rule 23(e) of the Federal Rules of Civil Procedure (“FRCP”).

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3.

The Court finds that, for purposes of approving the Settlement, the proposed

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Settlement Class meets all of the requirements for certification under FRCP Rule 23: (a) the

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proposed Settlement Class is ascertainable and so numerous that joinder of all members is
[PROPOSED] ORDER GRANTING
FINAL APPROVAL

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CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB

and there is a well-defined community of interest among members of the proposed Settlement

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Class with respect to the subject matter of the litigation; (c) the claims of the representatives of

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the Settlement Class, Robert Miller and Jamie Lumos, and potential defenses thereto, are typical

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of the claims and defenses thereto of the members of the proposed Settlement Class; (d) the

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representatives of the Settlement Class, Robert Miller and

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adequately protect the interests of the Settlement Class; (e) the counsel of record for the

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representatives of the Settlement Class are qualified to serve as counsel for Robert Miller and

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KELLER GROVER LLP

impracticable; (b) there are questions of law and fact common to the proposed Settlement Class

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1965 Market Street, San Francisco, CA 94103
Tel. [phone]; Fax. [phone]

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Jamie Lumos in their own capacity as well as in their representative capacity for the Settlement

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Class and have no conflicts of interests with any Settlement Class member; (f) common issues of

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fact and law predominate over individual issues; and (g) a class action is superior to other

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available methods for an efficient adjudication of this controversy.

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4.

Jamie Lumos, will fairly and

For purposes of this Order, the Court hereby certifies the following class for

settlement purposes (“Settlement Class”):

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All individuals who used a credit card or debit card to complete
a purchase or transaction at a Southwest airport ticket counter
or cargo counter resulting in an electronically printed receipt
between October 17, 2007 and January 25, 2013.

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5.

The Court appoints Robert Miller and Jamie Lumos as the Class Representatives.

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6.

The Court appoints Eric A. Grover, Daniel F. Gaines and Todd D. Carpenter as

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Class Counsel. Class Counsel is authorized to act on behalf of Settlement Class members with

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respect to all acts or consents required by, or which may be given pursuant to, the Settlement, and

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such other acts reasonably necessary to consummate the Settlement.

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7.

The Court finds the Stipulation of Settlement was the product of serious, informed,

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non-collusive negotiations conducted at arm’s length by the Parties in the presence of the

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Honorable Leo S. Papas, United States Magistrate Judge (Ret.). In making these findings, the

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Court considered, among other factors, the total potential statutory damages claimed in this

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Action on behalf of Plaintiffs and members of the Settlement Class, Defendant Southwest

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Airlines Co.’s (“Defendant”) potential liability, the risks of continued litigation, the equitable
[PROPOSED] ORDER GRANTING
FINAL APPROVAL

2

CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB

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relief provided by the Settlement, the substantial cash benefits available to Settlement Class

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members as part of the Settlement, and the fact that the proposed Settlement represents a

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compromise of the Parties’ respective positions rather than the result of a finding of liability at

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trial. The Court further finds that the terms of the Stipulation of Settlement have no obvious

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deficiencies and do not improperly grant preferential treatment to any individual member of the

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Settlement Class. The Court also finds that settlement at this time results in substantial benefits to

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the Settlement Class and will avoid additional substantial costs, as well as avoid the delay and

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risks that would be presented by the further prosecution of this Action.

KELLER GROVER LLP

1965 Market Street, San Francisco, CA 94103
Tel. [phone]; Fax. [phone]

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8.

Notice of the Settlement directed to the Settlement Class members has been

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completed in conformity with the Court’s preliminary approval order of October 18, 2013.

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Distribution of notice of the Settlement by the means dictated in the Court’s October 18, 2013

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order was the best notice practicable under the circumstances and was in full compliance with the

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United States Constitution and the requirements of due process. The Court further finds that said

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notice program fully and accurately informed Settlement Class members of all material elements

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of the proposed class action Settlement, of each member’s right to be excluded from the

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Settlement Class, and each member’s right and opportunity to object to the proposed class action

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Settlement.

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9.

Three Settlement Class members, Zachary Engle, Julie K. Moen and Keri Altig,

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have timely requested exclusion from the Settlement Class. No Settlement Class member has

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objected to the Settlement.

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10.

Except for the three Settlement Class Members that timely excluded themselves

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from the Settlement, all Settlement Class members shall be bound by the releases set forth in the

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Stipulation of Settlement.

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11.

To the extent permitted by law, all Settlement Class members who have not timely

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excluded themselves from the Settlement Class are permanently barred and enjoined from

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asserting against the Defendant any claims released in the Stipulation of Settlement.

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12.

Based upon the agreement of the Parties and as hereby ordered by the Court:

Southwest Airlines Co. shall continue to abide by the truncation requirements of FACTA.
[PROPOSED] ORDER GRANTING
FINAL APPROVAL

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CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB

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13.

The Court hereby awards Class Counsel reasonable attorneys’ fees and costs in the

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aggregate amount of $463,243.36, representing $450,000 in attorneys’ fees and $13,243.36 in

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costs, to be paid from the Settlement Fund.

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14.

The Court hereby awards each of the Class Representatives, Robert Miller and

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Jamie Lumos, an enhancement fee in the amount of $5,000 for their services as representatives

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for the Settlement Class, to be paid to each of them from the Settlement Fund.

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fees and costs in the amount of $180,635.29, which is to be paid from the Settlement Fund.

KELLER GROVER LLP

1965 Market Street, San Francisco, CA 94103
Tel. [phone]; Fax. [phone]

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The Court hereby approves the Settlement Administrator Rust Consulting, Inc.’s

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The Court hereby directs the Parties and the Settlement Administrator, Rust

Consulting, Inc., to effectuate all terms of the Settlement.

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17.

The Court hereby dismisses both the Miller Action (Case No. C-12-5978 CRB)

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and the Lumos Action (Case No. C-13-1429 CRB) with prejudice pursuant to the terms set forth

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in the Stipulation of Settlement. Each of the Parties is to bear their own costs except as expressly

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provided herein, in the Stipulation of Settlement and/or in this Court’s order of October 18, 2013.

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Without affecting the finality of the Judgments in any way, this Court hereby retains continuing

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jurisdiction over the interpretation, implementation and enforcement of the Settlement and all

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orders and judgments entered in connection therewith.

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18.

Under FRCP Rule 58, the Court, in the interests of justice, there being no just

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reason for delay, expressly directs the Clerk of the Court to enter this Order as a Judgment, and

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hereby decrees, that upon entry, it be deemed as a final judgment.

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IT IS SO ORDERED.

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Dated: March 21, 2014
THE HONORABLE CHARLES BREYER
United States Court District Judge

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[PROPOSED] ORDER GRANTING
FINAL APPROVAL

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CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB

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Dated: January 29, 2014

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Respectfully Submitted,
KELLER GROVER LLP

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By:

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/s/Eric A. Grover
ERIC A. GROVER

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Attorneys for Plaintiff
ROBERT MILLER and the Class

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KELLER GROVER LLP

1965 Market Street, San Francisco, CA 94103
Tel. [phone]; Fax. [phone]

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Dated: January 29, 2014

CARPENTER LAW GROUP

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By:

/s/Todd D. Carpenter

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TODD D. CARPENTER

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Attorneys for Plaintiff
JAMIE LUMOS and the Class

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[PROPOSED] ORDER GRANTING
FINAL APPROVAL

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CASE NO. C-12-5978-CRB
CASE NO. C-13-1429-CRB