Harkey v. General Electric Company

Filing 390

ORDER. Plaintiffs' 368 and 370 motions are hereby GRANTED for the reasons set forth in the attached ruling.Signed by Judge Michael P. Shea on 7/27/2020. (Super, John)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GLEN GRAYSON, DOREEN MAZZANTI,
DANIEL LEVY, DAVID MEQUET and
LAUREN HARRIS, individually and on
behalf of themselves and all others similarly
situated,

No. 3:13-cv-01799-MPS
(Consolidated Docket No.)

Plaintiffs,
v.
GENERAL ELECTRIC COMPANY,
Defendant.

ORDER AND FINAL JUDGMENT
On July 16, 2020, a hearing (the “Final Approval Hearing”) was held on Plaintiffs’
Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement
(ECF No. 368) (the “Final Approval Motion”) and Plaintiffs’ Motion for Award of Attorneys’
Fees and Expenses and for Lead Plaintiff Service Awards (ECF No. 370) (the “Fee and Expense
Motion”) (collectively, the “Motions”). The settlement was preliminarily approved by this Court
in its order dated January 15, 2020 (ECF No. 364) (the “Preliminary Approval Order”).
Having considered the Motions and the supporting materials filed therewith, the
Settlement Agreement (ECF No. 358-1), the response of the class members to the Settlement, and
the argument received by the Court at the Final Approval Hearing, the Court grants final approval
to the Settlement and hereby finds and orders as follows:
1.

This Order incorporates by reference the definitions in the Settlement Agreement,

and all terms defined herein shall have the same meaning in this Order as set forth in the
Settlement Agreement.
2.

Pursuant to 28 U.S.C. § 1332(d), this Court has jurisdiction over the subject matter
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of this litigation and all related matters and all claims raised in this action and released in the
Settlement Agreement. The Court also has personal jurisdiction over all parties and Class
Members.
3.

Pursuant to the Preliminary Approval Order, the Settlement Notice was mailed, e-

mailed and disseminated by the other means described in the Settlement Agreement to the Class
Members. This Court finds that this notice procedure was (i) the best practicable notice; (ii)
reasonably calculated, under the circumstances, to apprise the Class Members of the pendency of
the Civil Action and of their right to object to or exclude themselves from the proposed
Settlement; and (iii) reasonable and constitutes due, adequate, and sufficient notice to all entities
and persons entitled to receive notice.
4.

The Court overrules the single objection of Edward W. Orr (ECF No. 375)

challenging the adequacy of the Settlement Notice because the Court finds that the Settlement
website was sufficiently accessible to individuals with disabilities such that the Class Members
received the best practicable notice. In his objection, Mr. Orr alleged that (1) the Settlement
website is not compliant with the requirements under the Americans with Disabilities Act
(“ADA”); and (2) he could not submit a claim without the aid of non-disabled persons. Id. at 2, 3.
Mr. Orr sought injunctive relief “on behalf of himself and any and all other class members who
might be affected.” Id. at 1 n.1 (“Orr wants nothing more than constructive action, and is
advocating for the handicapped and/or other adversely affected class members to receive proper
relief, and to be treated equitably - thus the filing of this Objection.”). Mr. Orr participated in the
Final Approval Hearing, during which he sought to have his own claim processed as a class
member and alleged that the claims administrator had not responded to his submissions. He did
not press any of the other claims alleged in his Objection, including his request for injunctive

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relief. I directed plaintiff’s counsel to assist Mr. Orr in processing his claim, and ordered the
Settlement website administrator to file a declaration responding to Mr. Orr’s assertions. ECF No.
385. On July 21 and 22, 2020, Zachary Lebovits, a Senior Project Manager employed by Epiq
Class Action & Claims Solutions, Inc. (the claims administrator, “Epiq”), filed such a declaration.
ECF No. 387, 388. After conducting a thorough search, Mr. Lebovits declared that Epiq only had
records of Mr. Orr’s July 15, 2020 submissions. ECF No. 387 at 2. Further, Mr. Lebovits
provided information demonstrating Epiq’s efforts to ensure the functionality and accessibility of
the Settlement website. ECF No. 387; see also ECF No. 377-1 (Declaration of Lebovits
describing Epiq’s efforts to ensure accessibility of its Settlement website). Th us, without deciding
whether the ADA applies to class settlement websites, the Court finds that Epiq’s efforts to ensure
the functionality and accessibility of the Settlement website were reasonable. See Wal-Mart
Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 113-14 (2d Cir. 2005) (“the standard for the
adequacy of a settlement notice in a class action under either the Due Process Clause or the
Federal Rules is measured by reasonableness”); Reed v. 1-800-Flowers.com, 327 F. Supp. 3d 539,
544 (E.D.N.Y. 2018) (observing that the ADA requires covered public accommodations to
provide “reasonable modifications” or “auxiliary aids and services” to disabled individuals)
(internal quotations and citations omitted).
5.

The Court finds that the Class Action Fairness Act Notice provided by the

Settlement Administrator on behalf of GE pursuant to the Settlement Agreement, as verified in
the Declaration of Stephanie J. Fiereck (ECF No. 361), was in compliance with 28 U.S.C. §
1715(b), and that the Class Action Fairness Act Notice was given more than 90 days prior to any
order of final approval, in accordance with 28 U.S.C. § 1715(d).
6.

The Court finds that the requirements for class certification under Fed. R. Civ. P.

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23(a) and 23(b)(3) are satisfied for settlement purposes only with respect to the following Class:
All persons (other than retailers, resellers, wholesalers, the presiding judge, chambers
staff, or members of the families of the presiding judge or chambers staff) residing in the
United States of America who purchased or owned a microwave oven bearing the GE
Profile or GE Monogram brand, and bearing a model number beginning with JEB1090,
JEB1095, ZMC1090, or ZMC 1095, at any time during the period from January 1, 1995
through January 15, 2020.
The Court finds that the proposed Class is so numerous that the joinder of all members is
impracticable, given that approximately 68,000 microwave ovens of the type described above
were manufactured. The Court also finds that the claims of the Plaintiffs are typical of the cla ims
of the Class, because, although different class members may have incurred differing amounts of
harm depending on whether the glass in their ovens broke, the named Plaintiffs, all of whom
claimed to have suffered glass breakage to their microwave ovens, have incentives to seek to
maximize an award of damages under all damages theories – including benefit-of-the-bargain
damages, which would apply to all class members – should Plaintiffs and the Class prove their
common claims of defect and concealment. This circumstance, in addition to the experience of
Settlement Class Counsel, persuades the Court that the Plaintiffs and Settlement Class Counsel
have fairly and adequately protected the interests of the Class.
7.

The Court finds that there are questions of law or fact common to the Class –

including the question of defect and the question of concealment – and that those questions
predominate over any questions affecting only individual Class Members. On this point, the Court
adopts and incorporates herein the reasoning of the late Judge Eginton, to whom this case was
previously assigned, as set forth in Docket No. 257 at 12-13. Further, although Judge Eginton’s
ruling certified a narrower class and only as to certain liability issues, and properly raised
concerns about the individualized nature of damages issues, those concerns do not constitute
grounds to withhold certification of this broader proposed class for settlement purposes. That is so
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because, under the proposed Settlement, there will be no need to prove damages on an
individualized basis, except through a simplified claims procedure, which will seek only to
distinguish between valid and invalid claims and to place valid claims in one of two damages
categories, i.e., those who suffered glass breakage and thus are entitled to a $300 award and those
who did not and are thus entitled only to a $5 award, either in the form of a check or a rebate on a
future purchase (in both cases, upon submission of adequate proof). Thus, non -uniformity among
class members as to harm actually incurred is not an obstacle to certifying this class for settlement
purposes. In addition, although differences in state law earlier shaped the proposed classes the
Plaintiffs sought to certify before Judge Eginton, several courts have found such differences to be
irrelevant when the Court is faced with whether to certify a proposed class for settlement
purposes, because a settlement contemplates that there will be no trial and thus no need to craft
jury instructions reflecting the varying elements in different states’ laws. See, e.g., Sullivan v. DB
Investments, Inc., 667 F.3d 273, 303-04 (3d Cir. 2011); see also Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only class
certification, a district court need not inquire whether the case, if tried, would present intractable
management problems, for the proposal is that there be no trial.”) (internal citation omitted).
8.

The Court finds that the individuals listed on Attachment 1 to the Declaration of

Cameron R. Azari, Esq. filed on June 22, 2020 (ECF No. 376) have properly opted out of the
Class and are not bound by the judgment or release in this action.
9.

The Court confirms as final the appointment of Glen Grayson, Doreen Mazzanti,

Daniel Levy, David Maquet, and Lauren Harris as Settlement Class Representatives for
settlement purposes only.
10.

The Court confirms as final the appointment of Epiq Class Action & Claim

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Solutions, Inc., an experienced class action settlement administration firm, as the Settlement
Administrator, responsible for performing the obligations of the Settlement Administrator under
the Settlement Agreement.
11.

The Court confirms as final the appointment of Hassan A. Zavareei, Esq. and Anna

Haac, Esq. of Tycko & Zavareei LLP and Robert A. Izard, Jr., Esq., Seth R. Klein, Esq., and
Mark P. Kindall, Esq. of Izard Kindall & Raabe LLP as Settlement Class Counsel for settlement
purposes only.
12.

The Court confirms as final the appointment of Hon. Antonio C. Robaina (retired

Judge of the Connecticut Superior Court) of McElroy, Deutsch, Mulvaney & Carpenter LLP,
Hartford, Connecticut as the Neutral Evaluator.
13.

The Court finds that the Settlement Agreement is fair and reasonable, taking into

account the strengths and weaknesses of Plaintiffs’ claims, and the risk, expense, complexity, and
duration of further litigation. The Class claims would face substantial obstacles if tried on the
merits, including establishing a class-wide design defect and proving damages given GE’s
position that the useful life of the vast majority of the microwave ovens was reached without any
manifestation of the claimed defect. The Court also finds that the Settlement Agreement is the
result of arms’ length negotiations between experienced counsel representing the in terests of the
Class and Defendant, after thorough factual and legal investigation, years of contentious
litigation, and mediation with an experienced and impartial mediator. The Court further finds that
the Settlement Agreement is not the product of fraud or overreaching by, or collusion between,
the negotiating parties. The Court also finds that the response of the Class to the Settlement
Agreement supports settlement approval. The Court notes that only one objection was filed by
any Class Member, and none of the numerous federal and state officials to whom notice was

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given under the Class Action Fairness Act has objected to the Settlement Agreement.
Furthermore, the one objection from a Class Member did not challenge the fairness of the terms
of the Settlement to the Class. Accordingly, pursuant to Rule 23(e), the Court finds that the terms
of the Settlement Agreement are fair, reasonable, and adequate to the Class and to each Class
Member.
14.

The Court grants final approval to the Settlement Agreement, and orders the parties

to implement, and comply with, its terms.
15.

Class Members who have not submitted a valid and timely opt-out request are

hereby fully and finally bound by all determinations of the Court, the Settlement Agreement
(including but not limited to the Releases therein) and this Final Approval Order and Judgment.
All Releasors other than the individuals listed on Attachment 1 to the Declaration of Cameron R.
Azari, Esq. filed on June 22, 2020 and their representatives shall be conclusively deemed to have
fully and finally released all of the Released Persons from any and all Released Claims.
16.

Nothing in this Final Approval Order will preclude any action to enforce the parties’

obligations under the Settlement Agreement or under this Order.
17.

The Settlement Agreement is not a concession or admission, and shall not be used

against GE or any of the Released Entities as an admission or indication with respect to any claim
of any fault or omission by GE or any of the Released Entities. Neither the Settlement Agreement,
nor any document, statement, proceeding or conduct related to the Settlement Agreement, nor any
reports or accounts thereof, shall in any event be deemed or construed to be an admission or
evidence of any violation of any statute or law, of any liability or wrongdoing by GE or any of the
Released Entities or of the truth of any of the claims or allegations contained in Complaint; and
evidence thereof shall not be discoverable or used directly or indirectly by the Class or any third

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party, in any way for any purpose, except that the provisions of the Agreement may be used by
the Parties to enforce its terms, whether in this action or in any other action or proceeding.
18.

Upon consideration of Class Counsel’s Fee and Expense Motion for an award of

attorneys’ fees and expenses, and given Class Counsel’s significant efforts and expenditure of
time and resources throughout the pendency of this litigation, Class Counsel’s motion for an
award of attorneys’ fees and expenses is GRANTED. Consistent with the terms of the Settlement
Agreement, Defendant shall pay Class Counsel $927,066.13 in attorneys’ fees and $397,933.87 in
reimbursement of expenses. Per the Settlement Agreement, this award shall be paid separate and
apart from the amounts received by Claimants.
19.

Upon consideration of Class Counsel’s request in the Fee and Expense Motion for

Service Awards to each of the five named Plaintiffs, and given the named Plaintiffs’ significant
efforts and expenditure of time throughout the pendency of this litigation (including sitting for
depositions), the request is GRANTED. Consistent with the terms of the Settlement Agreement,
Defendant shall pay each of Plaintiffs Grayson, Mazzanti, Levy, Mequet and Harris the amount of
$5,000. Per the Settlement Agreement, this Service Award shall be paid separate and apart from
the amounts received by Claimants.
20.

Without affecting the finality of the Court’s judgment in any way, the Court retains

jurisdiction over this matter for the purposes of implementation and enforcement of the
Settlement Agreement.
IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
July 27, 2020
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