Whitehead v. Advance Stores Company Inc.

Filing 41

ORDER granting 40 Motion to Certify Class. A Final Approval Hearing is set for Monday, May 15, 2017, at 9:30 a.m., in Courtroom 4A of the George C. Young Courthouse, 401 West Central Boulevard, Orlando, Florida 32801. See Order for Details and Deadlines. Signed by Judge Roy B. Dalton, Jr. on 1/9/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JORDAN WHITEHEAD,
Plaintiff,
v.

Case No. 5:16-cv-250-Orl-37PRL

ADVANCE STORES COMPANY INC.,
Defendant.
ORDER
This cause is before the Court on the parties’ Joint Motion for Preliminary Approval
of Settlement Agreement and to Amend Caption to Add Janie Stapleton as a Named
Plaintiff (Doc. 40), filed December 16, 2016. 1
In light of the parties’ proposed agreement and in accordance with prevailing law,
it is hereby ORDERED AND ADJUDGED:
1.

The parties’ Joint Motion for Preliminary Approval of Settlement Agreement
and to Amend Caption to Add Janie Stapleton as a Named Plaintiff
(Doc. 40) is GRANTED.

2.

On or before, Monday, January 16, 2017, Plaintiff may amend his
Complaint (Doc. 1) to add Janie Stapleton as a named Plaintiff.

3.

For purposes of settlement only, the following settlement class is
provisionally certified under Federal Rule of Civil Procedure 23(b)(3): All
current and former Advance Stores Company, Inc. (“ASC”) employees

1

The Court adopts all defined terms as set forth in the parties’ proposed Settlement
Agreement. (Doc. 40-1.)

whose personal identification information was disclosed as a result of the
phishing attack ASC suffered on March 7, 2016 (“Settlement Class”).
4.

The named Plaintiff Jordan Whitehead and forthcoming named Plaintiff
Janie Stapleton shall be the Class Representatives of the Settlement Class.

5.

Based on the parties’ stipulations, and for settlement purposes only:
a.

The above-described Settlement Class is so numerous that joinder
of all members is impracticable;

b.

There are questions of law or fact common to the Settlement Class;

c.

The claims of the Class Representatives are typical of the claims of
the Settlement Class;

d.

The Class Representatives will fairly and adequately protect the
interests of the Settlement Class;

e.

The questions of fact or law common to the members of the
Settlement Class predominate over the questions affecting only
individual members; and

f.

Certification of the Settlement Class is superior to other available
methods of fair and efficient adjudication of the controversy.

6.

The Court APPOINTS the law firm of Whittel & Melton, LLC (“Whittel”) as
Settlement Class Counsel. The Court preliminarily finds that Whittel is
competent and capable of exercising all responsibilities as Class Counsel
and will fairly and adequately represent and protect the interests of the
absent Settlement Class Members.

7.

The Court PRELIMINARILY APPROVES the Settlement Agreement.

2

(Doc. 40-1.) The Court finds that the Settlement was of informed, good-faith,
arms’-length negotiations between the Parties, assisted by experienced
counsel and supervised by an experienced mediator. 2 The Court further
finds that the Settlement is within the range of reasonableness and possible
judicial approval, such that: (a) a presumption of fairness is appropriate for
the purposes of preliminary settlement approval; and (b) it merits notice of
the Settlement to the persons in the Settlement Class for their consideration
and a hearing on the final approval of the Settlement (“Final Approval
Hearing”). 3
8.

The Court APPROVES the form and content of the proposed notice
(“Notice”) attached to the Settlement Agreement (Doc. 40-3), and the notice
procedure explained in Section VII of the Settlement Agreement (Doc. 40-1,
pp. 8–10). The Court further finds that the Notice satisfies the requirements
of due process and Federal Rule of Civil Procedure 23.

9.

The Court finds that the proposed notice procedure, which includes
first-class mailing of the Notice (“Mail Notice Program”) and posting of the
Notice on a settlement website, will provide the best notice practicable

2

See In re Checking Account Overdraft Litig., 830 F. Supp. 2d. 1330, 1341
(S.D. Fla. 2011).
3 Preliminary approval requires a district court to determine whether the proposed
settlement terms are fair, reasonable, and adequate. See Smith v. Wm. Wrigley Jr. Co,
No. 09-60646-CIV, 2010 WL 2401149, at *2 (S.D. Fla. June 15, 2010). To assess the
fairness of a proposed settlement, courts examine: (1) the likelihood of success at trial;
(2) the range of possible recovery; (3) the point on or below the range of possible recovery
at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense,
duration of the litigation; (5) the substance and amount of opposition to the settlement;
and (6) the stage of proceedings at which the settlement was achieved. See
Bennet v. Behrina Corp., 737 F.2d 982, 986 (11th Cir. 1984).

3

under the circumstances and is reasonably calculated to inform the
Settlement Class of the pendency of the class action, the effect of the
proposed Settlement, motions for attorneys’ fees, costs, and expenses, and
Service Awards, and the right of Settlement Class Members to submit a
claim for and object to any aspect of the Settlement.
10.

The Court APPOINTS the Dahl Administration to serve as the Settlement
Administrator.

11.

ASC shall have fifteen (15) calendar days from the date of this Order to
securely transmit to the Settlement Administrator an electronic file that
identifies the names and last known mailing addresses of potential
members of the Settlement Class.

12.

The Settlement Administrator shall complete the Mail Notice Program no
later than sixty (60) calendar days after the entry of this Order (“Notice
Deadline”), excluding any Notices that must be either re-mailed or that are
returned as undeliverable. The Settlement Administrator shall make one
attempt to re-mail Notices returned as undeliverable with a forwarding
address. For Notices returned as undeliverable without a forwarding
address, the Settlement Administrator must use reasonable efforts to
identify updated mailing addresses and re-mail such Notice to any identified
addresses.

13.

The Settlement Administrator shall have seven (7) calendar days after the
Notice Deadline to provide Class Counsel and ASC with an affidavit
confirming the completion of: (1) the Mail Notice Program; and (2) posting

4

the Notice on the settlement website. Once received, Class Counsel shall
file such affidavit with the Court.
14.

A Final Approval Hearing will be held before the Undersigned on Monday,
May 15, 2017, at 9:30 a.m., in Courtroom 4A of the George C. Young
Courthouse, 401 West Central Boulevard, Orlando, Florida 32801 to
address: (a) whether to finally certify the Settlement class under Rule 23(a)
and 23(b)(3); (b) whether the proposed Settlement should be finally
approved as fair, reasonable, adequate, and in the best interest of the
Settlement Class; (c) whether any application for an award of attorneys’
fees, costs, and expenses should be approved; and (d) whether any
application of Service Awards to named Plaintiff Jordan Whitehead and
forthcoming named Plaintiff Janie Stapleton should be approved.

15.

Settlement Class Members shall have forty-five (45) calendar days after
the Notice Deadline to object to the proposed Settlement (“Objection
Deadline”).

16.

Papers in support of final approval of the Settlement Agreement and Class
Counsel’s forthcoming requests for attorneys’ fees, expenses, costs, and
Service Awards shall be filed no later than twenty-one (21) calendar days
before the Objection Deadline.

17.

Settlement Class Members who object to the Settlement as contemplated
by the Settlement Agreement shall have a right to appear and be heard at
the Final Approval Hearing, provided that such Settlement Class Members
file with the Court and deliver to Class Counsel and ASC’s Counsel a copy

5

of the written objection together with any papers and briefs in support of
their position, postmarked no later than forty-five (45) calendar days after
the Notice Deadline.
18.

For an objection to be considered by the Court, the objection must set forth:
(a) the name of this Action; (b) the objector’s full name, address, e-mail
address, and telephone number; (c) an explanation of the basis on which
the objector claims to be a member of the Settlement Class; (d) all grounds
for the objection, accompanied by any legal support for the objection; (e) the
identity of all counsel who represent the objector, including any former or
current counsel who may be entitled to compensation for any reason related
to the objection to the Settlement, Class Counsel fees, or Service Awards;
(f) the identity of all counsel representing the objector who will appear at the
Final Approval Hearing; (g) a list of all persons who will be called to testify
at the Final Approval Hearing in support of the objection; (h) a statement
confirming whether the objector intends to personally appear and whether
he intends to testify at the Final Approval Hearing; and (i) the objector’s
signature, even if represented by counsel.

19.

Any Settlement Class Member who does not file an objection by the
Objection Deadline or in the manner described shall be deemed to have
waived such objection.

20.

Class Counsel and ASC’s Counsel may respond to the objections, if any,
by means of a single memorandum of law no later than fourteen (14)
calendar days before the Final Approval Hearing. The memorandum may

6

not exceed ten (10) pages.
21.

All proceedings in this action are stayed until further Order of the Court,
except as may be necessary to implement the terms of the Settlement.

22.

In the event that a Judgment is not entered by the Court, the Effective Date
of the Settlement does not occur, or the Settlement Agreement otherwise
terminates according to its terms, this Order and all orders entered in
connection therewith shall become null and void, shall be of no further force
and effect, and shall not be used or referred to for any purpose whatsoever,
including without limitation for any evidentiary purpose (including but not
limited to class certification), in this Action, or any other Action. In such
event, the Settlement Agreement, exhibits, attachments, and all
negotiations and proceedings related thereto shall be deemed to be without
prejudice to the rights of any and all of the parties, who shall be restored to
their respective positions as of the date and time immediately preceding the
execution of the Settlement Agreement.

23.

The Court reserves the right to: (a) postpone, adjourn, or continue the Final
Approval Hearing without further notice to the Settlement Class; and
(b) approve the Settlement Agreement with modification and without further
notice to the Settlement Class. The parties retain their rights under the
Settlement Agreement to terminate the Settlement if the Court rejects,
materially modifies, or declines to finally approve the Settlement.

24.

Any Settlement Class Member who wishes to be excluded from the
Settlement Class must notify the Settlement Administrator in writing no later

7

than forty-five (45) calendar days after the Notice Deadline (“Opt-Out
Deadline”). The written notification must be signed and must include the
individual’s: (a) name; (b) address; and (c) a statement that the person
wishes to be excluded from the Settlement in this Action. All persons who
submit a valid and timely notification of exclusion shall have no rights under
the Settlement Agreement, shall not share in the forms of relief provided by
the Settlement, and shall not be bound by the Settlement Agreement, any
orders of the court, or any final judgment.
25.

Any person who would otherwise be a Settlement Class Member and who
does not notify the Settlement Administrator of his intent to exclude himself
by the Opt-Out Deadline shall be deemed to have waived his right to be
excluded from the Settlement Class.

26.

The Settlement Administrator shall provide weekly reports to Class Counsel
and ASC’s Counsel that summarize the number of opt-out notifications and
other pertinent information received that week (“Weekly Report”). The
Settlement Administrator shall also provide a final report to Class Counsel
and ASC, no later than ten (10) calendar days after the Opt-Out Deadline,
which summarizes the number of opt-out notifications received as of that
date (“Final Report”). Class Counsel shall move to file a composite exhibit
containing a copy of each Weekly Report and the Final Report under seal
no later than ten (10) calendar days before the Final Approval Hearing.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 9, 2017.

8

Copies:
Counsel of Record

9