Mendez v. C-Two Group, Inc.

Filing 98

ORDER by Judge Haywood S. Gilliam, Jr. Granting 97 Stipulation Re 95 Order on Stipulation PARTIES' AMENDED STIPULATION AND PROPOSED ORDER REGARDING NOTICE OF CLASS CERTIFICATION. (ndrS, COURT STAFF) (Filed on 1/14/2016)

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Thomas A. Kearney, State Bar No. 90045
[e-mail]
Prescott W. Littlefield, State Bar No. 259049
[e-mail]
KEARNEY LITTLEFIELD LLP
3436 N. Verdugo Rd., Ste 230
Glendale, CA 92108
Telephone [phone]
Facsimile [phone]

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Gene J. Stonebarger, State Bar No. 209461
[e-mail]
Richard D. Lambert, State Bar No. 251148
[e-mail]
STONEBARGER LAW
A Professional Corporation
75 Iron Point Circle, Suite 145
Folsom, CA 95630
Telephone [phone]
Facsimile [phone]

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Attorneys for Plaintiff Mendez and the Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMIE MENDEZ, an individual, on behalf
of herself and all others similarly situated

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Plaintiff,

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v.

Case No.3:13-cv-05914-HSG
PARTIES’ AMENDED STIPULATION
AND PROPOSED ORDER REGARDING
NOTICE OF CLASS CERTIFICATION
Hon. Haywood S. Gilliam

C-TWO GROUP, INC.; MOBILESTORM,
INC.; and DOES 1-50, inclusive,
Defendants.

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PARTIES’ AMENDED STIPULATION AND PROPOSED ORDER
REGARDING NOTICE OF CLASS CERTIFICATION

1 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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Pursuant to this Court’s Order Certifying Class (Docket No. 92), and the Court’s

3 subsequent Order Denying Stipulation Regarding Proposed Class Notice Plan and Directing an
4 Amended Stipulation [Docket No. 95], Plaintiff Jamie Mendez and Defendants C-Two Group,
5 Inc., (“C-Two”) and C & L Associates, Inc. (“C&L” and together with C-Two “Defendants”), by
6 and through their respective counsel of record, having met and conferred regarding the below
7 proposals, jointly submit the following proposed class notice program that comports with the
8 requirements of Rule 23(c):
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WHEREAS, the parties have met and conferred and have agreed to the form of notice

10 and notice procedure described as follows:
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1.

Exhibit A, attached hereto should be given to the Class as notice;

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2.

That notice should be given via email to the Class members, due to the fact that

13 Defendants’ records have an email address for all Class Members;
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3.

That Plaintiff shall bear the costs of notice;

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4.

That Phoenix Class Action Administration Solutions, 4590 MacArthur, Suite 500,

16 Newport Beach, CA 92660 is hereby appointed as the Notice Administrator;
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5.

That the parties have agreed that the notice process shall be administered as

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a.

Within ten (10) days of receiving notice of an Order pursuant to this

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Stipulation ordering that notice be provided, Defendants shall provide to the Notice

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Administrator the last known contact information including all known email addresses in

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a manner acceptable to the Notice Administrator;

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b.

The Parties shall jointly supplement last known contact information as,

and/or if, it becomes available;
c.

Thereafter, within fourteen (14) days of receiving the last known contact

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information for Class members from Defendants, the Notice Administrator shall deliver

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the notice attached hereto as Exhibit A to each class member via email to those Class

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members;
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PARTIES’ AMENDED STIPULATION AND PROPOSED ORDER
REGARDING NOTICE OF CLASS CERTIFICATION

d.

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The subject line of the email should read “Mendez v. C-Two Group, Inc.,

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USDC, Northern District of California, Case No. 13-cv-05914-HSG Class Action

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Notice”;
e.

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The deadline for post-marking requests for exclusion shall be inserted in

the text of the notice and shall be 30 days after the date of the sending of the notices;
f.

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The requests for exclusions shall be addressed to the Notice Administrator

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at: Phoenix Class Action Administration Solutions, 4590 MacArthur, Suite 500, Newport

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Beach, CA 92660, and shall be made on the opt-out card supplied in the notice email;
g.

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The Notice Administrator shall provide a report to counsel for both

Plaintiff and Defendants at the conclusion of the opt-out period reporting who opted-out;
h.

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Until further order of the Court or until expiration of three (3) years from

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the date of this Order, whichever occurs first, the Notice Administrator shall maintain the

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list of Class Members provided by Defendants and the information for those Class

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members who excluded themselves from the case, and make this information available to

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the Court and the Parties;

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6.

That a Class Member’s request for exclusion must be made on the opt-out card

17 supplied in the notice email;
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7.

That requests for exclusion must be postmarked no later than 30 days from the

19 date Notice was emailed;
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8.

That a Class member who does not request to be excluded within 30 days from

21 the date Notice was emailed shall be continue to be a member of the Class in this case;
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That, in the event that the email sent to the Class member’s email address

23 “bounces back” to the Notice Administrator, the Notice Administrator is to conduct a “skip
24 trace” to obtain the Class member’s last known physical address. The Notice Administrator is
25 then to mail a hard copy of the Notice and opt-out form to each Class member whose email
26 bounces back. The opt-out date for these individuals is to be filled in as 30 days from the date of
27 the physical mailing of the Notices;
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PARTIES’ AMENDED STIPULATION AND PROPOSED ORDER
REGARDING NOTICE OF CLASS CERTIFICATION

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10.

That a Class Member’s request for exclusion must be made on the opt-out card

2 supplied in the mailed notice;
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That requests for exclusion must be postmarked no later than 30 days from the

4 date notice was mailed; and
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That a Class member who does not request to be excluded within 30 days from

6 the date Notice was mailed shall be continue to be a member of the Class in this case.
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Dated: January 14, 2016

KEARNEY LITTLEFIELD, LLP
STONEBARGER LAW, APC

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By: /s/ Richard D. Lambert
Richard D. Lambert
Attorneys for Plaintiff Jamie Mendez

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13 Dated: January 14, 2016

WALSWORTH, FRANKLIN, BEVINS
& McCALL, LLP

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By: /s/ Laurie Sherwood
Laurie Sherwood
Attorneys for C-Two Group, Inc.

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18 Dated: January 14, 2016

AKAWIE & LAPIETRA

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By: /s/ Gregory Nerland
Gregory Nerland
Attorneys for C&L Associates, Inc.

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I, Prescott W. Littlefield, hereby attest that pursuant to LR 5-1(i) I have on file concurrence

23 for any signatures indicated by a “conformed” signature (/s/) within this e-filed document.
/s/ Prescott W. Littlefield
Prescott W. Littlefield

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PARTIES’ AMENDED STIPULATION AND PROPOSED ORDER
REGARDING NOTICE OF CLASS CERTIFICATION

[PROPOSED] ORDER

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2 PURSUANT TO STIPULATION, IT IS SO ORDERED.
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Dated:_________________
1/14/2016

_________________________________
Hon. Haywood S. Gilliam, Jr.
United States District Court Judge
Northern District of California

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PARTIES’ AMENDED STIPULATION AND PROPOSED ORDER
REGARDING NOTICE OF CLASS CERTIFICATION

Exhibit A

United States District Court, Northern District of California

If you received a text message from the Infusion
Lounge between November 5, 2009 through October
15, 2013, a class action lawsuit may affect your rights.
A Court authorized this notice. This is not a solicitation from a lawyer.
What is
this?

YOUR LEGAL RIGHTS AND OPTIONS
The Court has certified this lawsuit as a class action. The lawsuit challenges
the Infusion Lounge’s practice of sending text messages to its customers.

Do
Nothing

Stay in the lawsuit. Await the outcome. Give up your ability to sue
Defendants individually. If you do nothing and stay in the lawsuit, you may
receive money or benefits that may come after trial or settlement. But, you
give up any rights to sue Defendants separately concerning the same legal
claims as this lawsuit.

Exclude
Yourself

Get out of this lawsuit. Get no benefits from this lawsuit. Keep your right to
sue Defendants separately. If you exclude yourself, you will no longer be
part of this lawsuit. If money or benefits are later awarded, you will receive
none. But, you keep any rights to sue Defendants separately concerning the
same legal claims.
BASIC INFORMATION

1) What is this lawsuit about?
This lawsuit is about text messages sent
by the Infusion Lounge to its customers
who entered their contact information
through the Infusion Lounge’s website and
were sent a text message from SMS Short
Code 99158 that referenced the Infusion
Lounge. The Class Representative claims
that the text messages violated the
Telephone Consumer Protection Act of
1991 (the “TCPA”). Based upon this claim,
the Class Representative is asking for
damages according to the TCPA.
Defendants deny these allegations and
contend no violation of the TCPA occured.
The Court has not decided whether the
Class Representative or Defendants is
correct. Lawyers must prove the claims
against Defendants at trial.
2) Who is included in the Class?
The Class is defined in this case as: All
individuals who entered their contact
information online through Infusion
Lounge’s website and were sent a text
message from SMS Short Code 99158
that referenced the Infusion Lounge from
November 5, 2009 through October 15,
2013.
YOUR RIGHTS AND OPTIONS
You have to decide whether to stay in the
Class or ask to be excluded and you have
to decide this now.
3) What happens if I do nothing?
You don’t have to do anything now if you
want to keep the possibility of getting
money or benefits from this lawsuit. By
doing nothing, you are staying in the

Class. If you stay in and the Class is
awarded money or benefits, either as a
result of a judgment or settlement, you will
be notified about how to apply for a share.
Keep in mind that if you do nothing now,
regardless of whether the Class
Representative wins or loses, you will not
be able to separately sue, or continue to
sue Defendants about the same legal
claims that are the subject of this lawsuit.
You will also be legally bound by all of the
Orders the Court issues and judgments the
Court makes in this class action.
4) Why would I exclude myself?
If you exclude yourself from the Class –
which is sometimes called “opting-out” of
the Class – you won’t get any money or
benefits from this lawsuit. However, you
may then be able to separately sue or
continue to sue Defendants for the legal
claims that are the subject of this lawsuit. If
you exclude yourself, you will not be
legally bound by the Court’s judgments in
this class action. If you start your own
lawsuit against Defendants after you
exclude yourself, you’ll have to hire and
pay your own lawyer for that lawsuit, and
you’ll have to prove your claims. If you do
exclude yourself so you can start or
continue your own lawsuit against
Defendants, you should talk to your own
lawyer soon, because your claims may be
subject to a statute of limitations.
5) How do I exclude myself?
To exclude yourself from the Class, you
must notify the Claims Administrator at the
address identified below in writing no later
than [OPT-OUT DATE].
Your request for exclusion must be on the
form included herewith, which requests: (1)

PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.

your full name; (2) current address; and (3)
your signature. Requests for exclusion
must be postmarked no later than [OPTOUT DATE] and sent to:
Phoenix Class Action Administration Solutions

4590 MacArthur, Suite 500
Newport Beach, CA 92660
Do not send requests to opt-out to the
Court.
6) Do I have a lawyer in this case?
The Court decided that the law firms of
Kearney Littlefield LLP and Stonebarger
Law APC are qualified to represent you
and all Class Members. These law firms
are experienced in handling class actions.
More information about Class Counsel is
available at: www.kearneylittlfield.com and
www.stonebargerlaw.com.
7) Should I get my own lawyer?
If you want to remain a member of the
Class, but you do not wish to be
represented by the appointed Class
counsel, you may enter an appearance
through your own attorney at your own
expense. To do so, you must file an Entry
of Appearance with the Clerk of the Court.
You will remain a Class Member with
representation by your own attorney and
you will be responsible for the fees and
costs of your attorney.
8) How will the lawyers be paid?
If Class Counsel get money or benefits for
the Class, they may ask the Court for fees
and expenses. You won’t have to pay
these fees and expenses. If the Court
grants Class counsel’s request, the fees
and expenses would be either deducted
from any money obtained for the Class or
paid separately by Defendants.

11) Will I get money after the trial?
If the Class obtains money or benefits as a
result of a judgment or a settlement, you
will be notified about how to participate.
We do not know how long this will take.
12) Additional Information
Complete copies of the pleadings, orders
and other documents filed in this litigation
may be examined and downloaded at any
time through the Federal Pacer System.
For more information, please visit
www.pacer.gov. This case is titled
Mendez v. C-Two Group, Inc., et al., Case
No. 13-cv-05914-HSG in the Northern
District of California, which is located in the
Ninth Circuit.
If you have any questions concerning any
matter raised in this notice, or wish to
provide us with your current name or
address or write to Class counsel at:
KEARNEY LITTLEFIELD, LLC
Prescott Littlefield, Esq.
3436 N. Verdugo Rd., Suite 230
Glendale, CA 91208
E-mail: [e-mail]
or
STONEBARGER LAW, APC
Richard D. Lambert, Esq.
75 Iron Point Circle, Suite 145
Folsom, CA 95630
E-mail: [e-mail]
DATED: [MAILING DATE]
BY ORDER OF THE UNITED STATES
DISTRICT COURT, NORTHERN
DISTRICT OF CALIFORNIA

9) How and when will the Court decide
who is right?
As long as the case isn’t resolved by a
settlement, the parties will have to seek a
judgment at trial or by summary judgment
motion. Any proceeding will be in the
United States District Court for the
Northern District of California. As of the
date of this notice, the Court has not yet
set a trial date. If you want to attend any
hearing, please call Class Counsel to
confirm the date, department, and time.
10) Do I have to come to the trial?
You do not need to attend the trial. Class
counsel will present the case for the Class
Members, and Defendants will present the
defenses. You are welcome to come at
your own expense. If you wish to
participate in the trial, you should contact
Class Counsel.
PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.

OPT-OUT FORM
Mendez v. C-Two Group, Inc., et al., Case No. 13-cv-05914-HSG

Name:
(First, Middle Initial)

(Last)

(Street)

(Apt. #)

(City)

(State, Zip)

Address:

I wish to be excluded from the Class.
(Signature)

To complete opt-out, please mail this form, no later than [OPT-OUT DATE] to:
Phoenix Class Action Administration Solutions
4590 MacArthur, Suite 500
Newport Beach, CA 92660

PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.