Spillman v. RPM Pizza, Inc. et al

Filing 227

ORDER of Preliminary Approval of Proposed Settlement and Notice of Certification Order as stated. FURTHER ORDERED that a Final Fairness Hearing set for 3/12/2013 at 10:00 AM in Courtroom 5 before Magistrate Judge Stephen C. Riedlinger. FURTHER ORDERED that any objection by class members due by midnight on 2/10/2013. Signed by Magistrate Judge Stephen C. Riedlinger on 11/9/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TONI SPILLMAN, Individually and
as representative of the Class
vs.
DOMINO=S PIZZA LLC and RPM
PIZZA, LLC

* CIVIL ACTION NO. 10-349-BAJ-SCR
*
*
* JUDGE BRIAN JACKSON
*
*
* MAGISTRATE JUDGE RIEDLINGER

**********************************************************************

ORDER OF PRELIMINARY APPROVAL OF
PROPOSED SETTLEMENT AND
NOTICE AND CERTIFICATION ORDER
This Court conducted a hearing on the 9th day of November, 2012, in consideration of
the plaintiff=s Motion for Preliminary Approval of Settlement Agreement, Form, Content, and
Manner of Notice Distribution and Publication, and Certification for Settlement Purposes
Only. After considering (i) the Motion for Preliminary Approval of Settlement Agreement,
Form, Content, and Manner of Notice Distribution and Publication, and Certification for
Settlement Purposes (the AMotion@), (ii) the memorandum in support of the Motion, (iii) the
SA and all related documents, (iv) the record of this proceeding, including the statements and
evidence adduced at the hearing, (v) the representations and argument of Class Counsel and
Counsel for RPM Pizza, LLC, Domino=s Pizza LLC, and Argonaut Great Central Insurance
Company (AArgonaut@) (vi) the relevant law, including, without limitation, Rule 23 of the
Federal Rules of Civil Procedure;
This Court hereby certifies, for settlement purposes only, a class of persons comprised
as follows:

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All recipients of prerecorded telephone messages on a cellular
telephone transmitted by or on behalf of RPM or one or more of
its Domino’s franchised stores between the dates of May 20,
2006 and May 20, 2010, and as further subdivided into the
following two sub-classes:
a.

Monetary Sub-Class: All recipients of prerecorded telephone messages
on a cellular telephone transmitted by or on behalf of RPM or one or
more of its Domino’s franchised stores between the dates of May 20,
2009 and May 20, 2010; and

b.

Merchandise Voucher Sub-Class: All recipients of prerecorded
telephone messages on a cellular telephone transmitted by or on behalf
of RPM or one or more of its Domino’s franchised stores between the
dates of May 20, 2006 and May 19, 2009.

In so holding, the Court finds that the requirements of Rule 23 of the Federal Rules of Civil
Procedure are satisfied and that the Class is properly certified for settlement purposes only.
Further, the Court finds for purposes of settlement that (a) the class members for the class are
so numerous that joinder of all members is impractical; (b) there are a number of questions of
law and fact common to the class which predominate over any individual questions affecting
only individual class members; (c) a class action is superior to other available methods for
the fair and efficient settlement of the controversy; (d) the claims and defenses of the class
representative are typical of the claims and defenses of the Class; (e) the class representative
has and will fairly and adequately protect the interest of the Class; (f) the Class is defined
objectively in terms of ascertainable criteria, such that the Court may determine the
constituency of the Class for the purposes of the conclusiveness of any judgment that may be
rendered in this matter; (g) the interests of the individual class members in controlling the
prosecution of separate actions is outweighed by the interest of the class as a whole in
bringing this matter to a successful conclusion via the proposed settlement; (h) there are no
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sizeable claims expected to be asserted by absent class members; (i) venue is proper in this
Court since the Class Representative resides in this District and loss was sustained in this
District; (j) a settlement class is the most judicially efficient vehicle to resolve this
controversy; and (k) all current parties to the Class Action have consented to the certification
of the Class for settlement purposes only.
Further, the Court has exercised its discretion in certifying the Class for settlement
purposes only and has not determined whether the Class Action could properly be maintained
on behalf of the Class for purposes of trial. RPM Pizza, LLC and Domino=s Pizza LLC and
the Related Parties have preserved all of their defenses and objections against the rights to
oppose certification of the Class for litigation purposes, if the proposed settlement does not
become Final in accordance with the SA and the SA is terminated for any reason.
In consideration of the Motion for Preliminary Approval of Settlement Agreement,
Form, Content, and Manner of Notice Distribution and Publication, and Certification for
Settlement Purposes Only, filed by the Plaintiff Class, as represented by Class Counsel, for
preliminary approval of the proposed settlement of the Class Action, the evidence submitted
to the Court by the parties in support of this Motion, the record of these proceedings, the
recommendation of counsel for the moving parties, and the requirements of law, the Court
finds that (1) this Court has jurisdiction over the subject matter and the parties to this
proceeding; (2) the proposed settlement is the result of arms length negotiations between the
parties; (3) it is not the result of collusion; (4) bears a probable, reasonable relationship to the
exposure and risks of the settling party; and (5) is within the range of possible results if the
case was litigated. Accordingly:
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IT IS ORDERED that the SA and the settlement set forth therein and all exhibits
attached thereto and/or to the Motion and/or submitted at the hearing for preliminary
approval, be preliminarily approved by the Court as being fair, reasonable and adequate,
entered into in good faith, free of collusion to the detriment of the Class, and within the range
of possible results if the case was litigated.
IT IS FURTHER ORDERED that Toni Spillman is an adequate class representative and

her nomination to serve in that capacity is hereby APPROVED.
IT IS FURTHER ORDERED that Philip Bohrer, Bohrer Law Firm, L.L.C. and John
P. Wolff, III and Christopher K. Jones of Keogh, Cox & Wilson, Ltd. are confirmed as CoLead and Class Counsel.
IT IS FURTHER ORDERED that Rust Consulting, Inc. is confirmed as Claims
Administrator;
IT IS FURTHER ORDERED that Shannon Wheatman and Kinsella Media, LLC is
confirmed as the Notice Expert;
IT IS FURTHER ORDERED that the form and content of the Claim Form and Notice
of the Proposed Settlement and Fairness Hearing and the manner and method of
dissemination of Notice as set forth in the Notice Plan are hereby APPROVED;
IT IS FURTHER ORDERED that a final Fairness Hearing on the SA and the
proposed settlement set forth therein, to consider comments/objections regarding the SA and
the proposed settlement, as well as attorney fees and costs, as set forth therein, and to
consider its fairness, reasonableness and adequacy under Rule 23 of the Federal Rule of Civil
Procedure shall be conducted at the courthouse at 777 Florida Street, Baton Rouge,
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Louisiana, 70801, Courtroom # 5, commencing on the 12th day of March, 2013, at 10:00 a.m
CST. Class Counsel and Counsel for RPM Pizza, LLC and Domino=s Pizza LLC shall be
prepared to respond to objections, if any, and to provide other information as appropriate,
bearing on whether the settlement, and all of the terms therein as provided in this SA and the
related documents, should be approved;
IT IS FURTHER ORDERED that any objection by class members to the fairness or
reasonableness of the proposed settlement, and all terms thereof as provided in the SA, as
well as Class Counsel=s application for fees and costs, will be considered if made in writing,
mailed to the Clerk of Court, at the address provided below, via United States Mail, postage
prepaid no later than midnight on February 10, 2013. Further, any objections must state the
specific reasons for the objection, include any supporting materials, papers or briefs that the
objector wishes the Court to consider, and must be served on all parties, and sent to:

COURT
Hon. Stephen Riedlinger
c/o Clerk of Court
United States District Courthouse
Middle District of Louisiana
777 Florida Street, Ste. 139
Baton Rouge, LA 70801

CLASS COUNSEL
Christopher K. Jones
Keogh, Cox & Wilson, Ltd.
701 Main Street
Baton Rouge, LA 70802

Attention: Toni Spillman v.
Domino=s Pizza LLC and RPM
Pizza, LLC, Case No. 10-349

DEFENSE COUNSEL
For RPM:
Shelton Dennis Blunt
Phelps Dunbar, LLP
II City Plaza
400 Convention Street, Suite
1100
Baton Rouge, LA 70802
For Domino’s:
Beth A. Levene
Williams & Connolly LLP
725 Twelfth Street, NW
Washington, DC 20005

Any class member who timely provides and serves a written objection may also appear at the
fairness hearing, either in person or through personal counsel hired at the objector=s expense,
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to object to the fairness, reasonableness or adequacy of the proposed settlement and/or
fairness or adequacy of representation and/or attorney fees and costs. Class members or their
attorneys intending to appear at the Fairness Hearing must mail their Notice of Intent to
Appear to the Clerk of Court for the United States District Courthouse for the Middle District
of Louisiana, at the address above, via United States Mail, postage prepaid no later than
March 4, 2013, and served on all parties through their counsel at the addresses above, setting
forth (i) the name of the case and case number-Spillman v. RPM, Case No. 10-349, (ii) the
name, address and telephone number of the party or class member and, if applicable, the
name, address and telephone number of the attorney of such party or class member, (iii) the
objection, including any supporting materials, papers or briefs that the objector wishes the
Court to consider, and (vi) the name and address of any witness to be presented at the
fairness hearing, together with a statement as to the matters on which they wish to testify and
a summary of the proposed testimony. Any class member who does not timely provide and
serve a written objection and a notice of intention to appear, and any witness not identified in
the notice of intention to appear, shall not be permitted to object or appear at the fairness
hearing, except for good cause shown, and shall be deemed to have waived and forfeited, and
shall be foreclosed from raising any objection to the proposed settlement made at the fairness
hearing, and shall be bound by all the terms of the SA and by all other proceedings, orders
and judgments by the Court.
IT IS FURTHER ORDERED that any class member may opt out of the Class Action
and the Settlement Class by mailing to the Claims Administrator, addressed to Pizza
Settlement, P.O. Box 2881, Faribault, Minnesota 55021-8681, on or before February 22, 2013

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a written request to opt out, such request to opt out to be in a manner and form set forth in the
Notice of the Proposed Settlement and to be filed no later than the 22nd day of February, 2013.
Such a timely and valid form to opt out of the Settlement Class shall preclude such class
member from participating in the proposed settlement, and such putative class member will be
unaffected by the SA. Any class member who does not timely submit such valid, written
request to opt out will be bound by the proposed settlement, if the proposed settlement is
finally approved by the Court and the proposed settlement becomes Final. Any class member
who does not submit a timely and valid, written request for exclusion shall be bound by all
subsequent proceedings, orders and judgments in this matter, regardless of whether such
putative class member is currently, or subsequently becomes, a plaintiff in any other lawsuit
against RPM Pizza, LLC, Domino=s Pizza LLC and the Related Parties, asserting any of the
Released Claims.
IT IS FURTHER ORDERED that all Claim Forms must be postmarked or submitted to
the Claims Administrator, Rust Consulting, Inc., either online using the claim form provided
on the settlement website or addressed to Pizza Settlement, P.O. Box 2881, Faribault,
Minnesota 55021-8681, on or before May 4, 2013;
IT IS FURTHER ORDERED that Class Counsel submit an application for fee and
costs to the Court on or before March 1, 2013.
IT IS FURTHER ORDERED that this Court shall maintain continuing jurisdiction over
the settlement proceedings to assure the effectuation thereof for the benefit of the Class,
including distribution of settlement benefits.

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IT IS FURTHER ORDERED that the RPM Class Action Qualified Settlement Fund
(the “Fund”) shall be established as a Qualified Settlement Fund within the meaning of
Treasury Reg. Sect. 1.468B-1 and pursuant to this Court’s continuing subject matter
jurisdiction under Treasury Reg. Section 1.4.68B-1(c)(1). The Fund shall be administered in
accordance with the Settlement Agreement.
Baton Rouge, Louisiana, November 9, 2012.

s

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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