Perry v. AT&T Mobility LLC et al

Filing 96

ORDER by Judge GONZALEZ ROGERS granting 90 Motion for Preliminary Approval of Settlement (lrc, COURT STAFF) (Filed on 1/9/2013) (Additional attachment(s) added on 1/9/2013: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (lrc, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANDRA PERRY, ARMAKIA
MARINER-REED and PATRYCE
COUNTS, individuals, on behalf of
themselves, and on behalf of all
persons similarly situated; and JASON
HILTON, an individual,

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Plaintiffs,
v.
ARISE VIRTUAL SOLUTIONS INC.,
a Delaware Corporation,

Case No. C 11-01488 YGR
CLASS ACTION
[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT (AS MODIFIED
BY THE COURT)
Hearing Date:
Time:
Courtroom:
Judge:

Defendant.

December 11, 2012
2:00 p.m.
5, Second Floor
Hon. Yvonne Gonzalez
Rogers

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Plaintiffs’ Motion for an order granting preliminary approval of the settlement of

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the above-captioned action on a class basis, approving the manner and content of notices

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to the classes, and setting a final approval hearing, came on for hearing in Courtroom

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Five, Second Floor, of this Court on December 11, 2012.

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Having read the Joint Stipulation of Class Action Settlement and Release, [Doc.
No. 90] (the “Settlement Agreement”), the motion for preliminary approval, as well as the
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[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YRG

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points and authorities and declarations filed in support thereof, and having heard the

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parties’ argument, this Court finds that: the proposed settlement appears fair, reasonable,

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and adequate, and falls within the range of possible approval meriting submission to

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potential class members; notices of the proposed settlement should be sent to the

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settlement classes in the manner described herein; and a hearing should be held after said

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notices are issued to determine if the Settlement Agreement and settlement are fair,

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reasonable, and adequate, to the settlement classes and if an order granting final approval

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should be entered in this action based upon the terms of the Settlement Agreement.

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IT IS THEREFORE ORDERED THAT:
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Defined Terms. This Order incorporates by reference the parties’ Joint

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Stipulation of Class Action Settlement and Release, on file with this Court, and all defined

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terms herein shall have the same meaning as set forth in the Settlement Agreement.

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2.

Class Action. This action is provisionally certified for class treatment for

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settlement purposes only and pursuant to the parties’ Settlement Agreement, with the

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Settling Classes defined as the following:

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a)

All individuals who provided customer service or technical

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support services on applications for AT&T Mobility LLC

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accounts, while located in the State of California, pursuant to

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Statements of Work with Arise Virtual Solutions Inc. during the

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period March 28, 2007 through to August 31, 2012; and,

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b)

All individuals who provided customer service or technical

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support services on applications for Apple Inc. accounts, while

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located in the State of California, pursuant to Statements of

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Work with Arise Virtual Solutions Inc. during the period

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December 8, 2007 through to August 31, 2012.

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3.

Proposed Settlement. The Court grants preliminary approval to the

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terms set forth in the Settlement Agreement between the parties. The Court finds

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that the proposed settlement is the product of informed, non-collusive, and arm’s2
[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YGR

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length negotiations. The proposed settlement between the Settling Classes and

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Defendant appears, upon preliminary review, to be within the range of

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reasonableness and accordingly shall be submitted to the Class Members for their

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consideration and for a hearing to determine whether the settlement shall be finally

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approved by the Court.

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4.

Appointment of Class Counsel. Norman Blumenthal and Kyle

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Nordrehaug, of Blumenthal, Nordrehaug & Bhowmik LLP, are appointed Class

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Counsel for settlement purposes.

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5.

Approval of Class Representative. Named Plaintiffs Sandra Perry,

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Armakia Mariner-Reed, and Patryce Counts are approved as adequate

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representatives of the Settling Classes for purposes of settlement.

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6.

Notice and Claim Form. The Court finds that the mailing of the

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Notice and related materials substantially in the manner and form as set forth in the

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Settlement Agreement and this Order meet the requirements of due process, is the

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best notice practicable under the circumstances, and shall constitute due and

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sufficient notice to all persons entitled thereto. Accordingly, by no later than

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February 7, 2013 (20 business days after the date of this order), the parties,

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through the independent Claims Administrator, Gilardi & Co., LLC, shall provide

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notice of settlement (“Class Notice”), a claim form (“Claim Form”) and a request

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for exclusion form (“Request for Exclusion”) to all Class Members by first class

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mail to their last known address according to the information that will be provided

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to the Claims Administrator by Defendant pursuant to Paragraph 26 of the

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Settlement Agreement. The Class Notice shall be substantially in the form

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attached hereto as Exhibit #1. The Request for Exclusion shall be substantially in

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the form attached hereto as Exhibit #2. The Claim Form shall be substantially in

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the form attached hereto as Exhibit #3. The Claims Administrator shall make such

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further efforts as are possible and reasonable (if any), to provide an applicable

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Class Notice to each member of the Settling Classes whose original Class Notice is
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[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YGR

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returned as undeliverable. All Class Members who have not responded to the Class

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Notices shall be mailed a reminder notice on the fortieth (40th) day after the date of

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mailing of the Class Notices and claims forms.

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7.

Exclusions/“Opt Outs.” Class Members may exclude themselves

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from the Settlement Class by mailing the Claims Administrator a signed and dated

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Request for Exclusion. To be timely, all such requests for exclusion or opt-outs

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must be postmarked no later than forty-five (45) days from the date the Class

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Notices are first mailed. Arise shall have the right, but not the obligation, to revoke

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the settlement if more than ten percent (10%) of the Class Members, as measured

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on a headcount or Compensable Interval basis, exclude themselves from the

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settlement.

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8.

Claim Forms. Class Members who wish to be paid their allocation

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of the settlement fund must submit a signed Claim Form to the Claims

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Administrator, postmarked no later than sixty (60) days from the date of mailing of

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the Class Notices and Claim Forms. Class Members who do not file a Claim Form

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or Request for Exclusion shall not share in the distribution of the Net Settlement

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Value, but nevertheless shall be bound by the dismissal with prejudice and the

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release of claims set out in the Settlement Agreement, assuming the Court grants

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Final Approval.

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9.

Settlement Administration. The parties shall retain the services of

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Gilardi & Co., LLC for the administration of this settlement, and said entity is

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hereby appointed Claims Administrator. The Claims Administrator’s fees and

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costs shall be capped at twenty thousand dollars and no cents ($20,000.00).

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10.

Final Hearing. A final hearing shall be held on Tuesday, May 14,

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2013 at 2:00 p.m., in Courtroom 5 of the United States District Court, Northern

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District, before Honorable Yvonne Gonzalez Rogers to consider whether the Court

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should grant final approval of the settlement.

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a)

Objections to the proposed settlement by Class Members will
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[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YGR

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be considered by the Court if mailed to the Claims

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Administrator with a postmark of no later than forty-five (45)

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days from the date the Class Notices are first mailed.

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b)

Members of the Settling Classes will also be notified by the

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Class Notices that they may appear at the Court hearing

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scheduled for final approval of the Settlement to have

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objections heard by the Court. Objections not previously filed

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in writing in a timely manner will not be considered.

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c)

Counsel for the Settling Classes and counsel for Defendant

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should be prepared at the hearing to respond to any objections

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filed by the Class Members and to provide other information,

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as appropriate, bearing on whether or not the settlement

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should be approved.

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d)

Class Counsel’s application for fees and costs pursuant to

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Paragraph 45 of the Settlement Agreement, as well as Class

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Counsel’s application for enhancement awards pursuant to

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Paragraph 46 of the Settlement Agreement, shall be scheduled

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for determination at the Final Approval Hearing, but Class

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Counsel’s applications shall be filed and served before the

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Class Notices are mailed and shall be posted on Class

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Counsel’s website and the Claims Administrator’s website.

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Failure of Settlement. In the event the proposed settlement as

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provided in the Settlement Agreement is not approved by the Court, or for any

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reason the parties fail to obtain a final approval order as contemplated in the

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Settlement Agreement, or the Settlement Agreement is terminated or voided

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pursuant to its terms, the Settlement Agreement and all orders in connection

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therewith, shall become null and void and of no further force or effect, and shall

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not be used or referred to for any purpose whatsoever. In such event, the
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[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YGR

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Settlement Agreement, and all negotiations and proceedings relating thereto shall

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be withdrawn without prejudice as to the rights of any and all parties thereto.

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This Order terminates Dkt. No. 90.

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IT IS SO ORDERED.

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DATED: January 9, 2013
_____________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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[PROPOSED] ORDER GRANTING PRELIM. APPROVAL | CASE NO. C 11-01488 YGR