Whitehead v. Advance Stores Company Inc.

Filing 60

ORDER granting 51 Motion to Certify Class; granting 52 Motion for Attorney Fees. Signed by Judge Roy B. Dalton, Jr. on 5/23/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JORDAN WHITEHEAD; and JANIE
STAPLETON,
Plaintiffs,
v.

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

ADVANCE STORES COMPANY INC.,
Defendant.
ORDER
On September 28, 2016, the parties notified the Court that they had agreed to settle
this action on a nationwide class basis, pending preliminary and final approval by the
Court. (Doc. 37.) The Court preliminarily approved the settlement on January 9, 2017, and
held a final approval hearing on May 15, 2017 (“Final Approval Hearing”). (See Doc. 41.)
Having considered the record, and in accordance with its findings from the bench at the
Final Approval Hearing, it is hereby ORDERED AND ADJUDGED as follows:
1.

The parties’ Joint Unopposed Motion for Final Order Approving the
Settlement Agreement and Certifying the Class (Doc. 51) is GRANTED.

2.

The Court has personal jurisdiction over Plaintiffs Jordan Whitehead and
Janie Stapleton (“Named Plaintiffs”), Defendant Advance Stores Company
Inc. (“ASC”) (collectively, “Parties”) and the Settlement Class Members. 1

1 The Court adopts all defined terms as set forth in the Parties’ proposed Settlement

Agreement. (Doc. 40-1.)

The Court has subject matter jurisdiction to approve the Settlement
Agreement (Doc. 40-1), including all exhibits, and to enter this Order. In
addition, venue is proper in this District.
3.

The Court finds that the prerequisites for a class action under
Federal Rules of Civil Procedure 23(a) and 23(b) have been satisfied for
settlement purposes only in that: (a) the number of Settlement Class
Members is so numerous that joinder of all members is impracticable;
(b) there are questions of law and fact common to the Settlement Class; (c)
the claims of the Named Plaintiffs are typical of claims of the Settlement
Class they seek to represent; (d) Named Plaintiffs have and will continue to
fairly and adequately represent the interests of the Settlement Class for
purposes of entering into the Settlement Agreement; (e) the questions of
law and fact common to the Settlement Class predominate over any
questions affecting any individual Settlement Class Member; (f) the
Settlement Class is ascertainable; and (g) a class action is superior to the
other available methods for the fair and efficient adjudication of the
controversy.

4.

For purposes of settlement only, and pursuant to Rule 23(b)(3), the Court
FINALLY CERTIFIES the following Settlement Class:
All current and former ASC employees whose
personal identification information was
disclosed as a result of the ASC Phishing Attack.

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5.

Excluded from the Settlement Class are individuals who submitted a timely
request to be excluded from the Settlement Class pursuant to the
procedures set forth in the Class Notice (see Doc. 40-3).

6.

The Court finally designates Named Plaintiffs as Class Representatives.

7.

The Court finally appoints the law firm of Whittel & Melton, LLC
(“Whittel”) as Class Counsel. The Court finds that Whittel has acted
competently as Class Counsel and has fairly and adequately represented
and protected the interests of the absent Settlement Class Members.

8.

The Court finds that the Settlement Administrator implemented and
completed the Notice Program, which included the mailing of the Notice to
Settlement Class Members. (See Doc. 48.) The Court finds that the Notice
Program satisfies Rule 23, due process, and any other applicable law.

9.

The Parties have complied with their notice obligations under the
Class Action Fairness Act, 28 U.S.C. § 1715, in connection with the
Settlement. ASC timely sent notices of the proposed Settlement Agreement,
including materials required by the Act, to the appropriate state and federal
officials. (See Doc 43.)

10.

The Court FINALLY APPROVES the Settlement Agreement (Doc. 40-1),
including all exhibits, as fair, reasonable, and adequate under Rule 23(e). 2

In assessing whether the Settlement Agreement is “fair, reasonable, and
adequate,” the Court considered the following: (1) the likelihood of success at trial; (2) the
range of possible recovery; (3) the range of possible recovery at which a settlement is fair,
2

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The Court further finds that the terms of the Settlement Agreement have
been entered into in good faith, are in the best interests of the Settlement
Class Members, and are not a product of collusion. 3
11.

The Court OVERRULES the objections to the Settlement Agreement
(Docs. 46, 49, 50).

12.

The Parties and the Settlement Administrator are DIRECTED to implement
the Settlement Agreement in accordance with its terms and provisions,
including the processing of any Claims.

13.

As of the Effective Date, and by operation of this Order, the Released Parties
shall have been deemed to fully and irrevocably released and forever
discharged the Released Parties from all Released Claims, as set forth in
Section XI of the Settlement Agreement (Doc. 40-1, p. 14).

14.

As of the Effective Date, the Releasing Parties shall further be deemed to

adequate, and reasonable; (4) the anticipated complexity, expense, and duration of
litigation; (5) the opposition to the settlement; and (6) the stage of proceedings at which
the settlement was achieved. Fraught v. Am. Home Shield Corp., 668 F.3d 1233, 1240
(11th Cir. 2011).
3 See Bennet v. Behrina Corp., 737 F.2d 982, 986 (11th Cir. 1984). On this point, the
Court’s findings are supported by: (1) the use of experienced, well-qualified counsel with
the active involvement and assistance of a neutral, well-qualified mediator; (2) the
substantial benefits provided to Settlement Class Members, which are not
disproportionate to the attorney fees, costs, and expenses awarded to Class Counsel;
(3) the appropriateness of the benefits provided to the Settlement Class Members under
the circumstances giving rise to this action; and (4) the procedure of negotiating attorney
fees, costs, and expenses only after reaching an agreement in principle as to the
substantive elements of the Settlement Agreement.

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have waived and released any and all provisions, rights, and benefits
conferred by California Civil Code § 1542, or similar laws of any other state
or jurisdiction.
15.

After review of Plaintiffs’ motion and supporting materials, the Court finds
that the requested amount of attorney fees and costs is reasonable. 4 Hence
Plaintiffs’ Unopposed Motion for an Award of Attorneys’ Fees and
Expenses and [an] Incentive Award to Class Representatives and
Memorandum of Law (Doc. 52) is GRANTED. Within thirty days of entry
of this Order, ASC shall pay to Class Counsel: (a) $145,000 for
Court-approved attorney fees and costs; and (b) a total amount of $5,000 for
Service Awards to Named Plaintiffs. Class Counsel shall timely furnish to
ASC any required tax information or forms before payment is made.

16.

This action is DISMISSED WITH PREJUDICE.

17.

The Releasing Parties are hereby permanently barred and enjoined
(including during the pendency of any appeal taken from this Order) from
commencing, pursuing, maintaining, enforcing, or prosecuting, either

In assessing the reasonableness of the requested attorney fees, the Court
considered Class Counsel’s lodestar analysis (Doc. 52-3), which requires multiplying
hours reasonably worked by a reasonable hourly rate. See Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). In addition, the Court considered: (1) the novelty and
undesirability of the litigation; (2) the risk and financial burden on Class Counsel due to
the contingent nature of the fee; (3) the significant legal acumen required; and (4) the
results obtained. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1298, 1299–
1300 (11th Cir. 1988) (applying factors discussed in Johnson v. Ga. Highway Express Inc.,
488 F.2d 714 (5th Cir. 1974) in determining appropriate lodestar).
4

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directly or indirectly against the Released Parties, any Released Claims, as
set forth in Section XI of the Settlement Agreement (Doc. 40-1, p. 14), in any
judicial, administrative, arbitral, or other forum, against any of the Released
Parties.
18.

Nothing in this Order shall preclude any action to enforce the terms of this
Settlement Agreement.

19.

The Court retains jurisdiction over this action, the Parties, Class Counsel,
and Settlement Class Members for the purpose of awarding attorney fees
and service fees and administering, supervising, construing, and enforcing
this Order and the Settlement Agreement in accordance with its terms.

20.

Neither this Order, nor the Settlement Agreement (nor any other document
referred to herein, nor any action taken to carry out this Order) shall be
construed as or used as an admission or concession by or against ASC or
the Released Parties regarding the validity of any claim or defense or any
actual or potential fault, wrongdoing, or liability.

21.

Without further order of the Court, the Parties may agree to reasonably
necessary extensions of time to carry out any of the provisions of the
Settlement Agreement and to make other non-material modifications, in
implementing the Settlement Agreement, that are not inconsistent with this
Order.

22.

As Plaintiffs have filed a redacted version of S-Doc. 57 on the public docket

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(See Doc. 59), the Clerk is DIRECTED to REMOVE S-Doc. 57 from the
docket and return it to Counsel for Defendant Advance Stores Company,
Inc.
23.

The Clerk is DIRECTED to close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on May 23, 2017.

Copies:
Counsel of Record

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