Kinder v. Bauer Publishing Co., LP

Filing 63

ORDER Granting 62 (Unopposed) MOTION for Preliminary Approval of Class Action Settlement Agreement, Certifying Settlement Class, Appointing Class Representative, Appointing Class Counsel, and Approving Notice Plan. Final Approval Hearing set for 1/5/2015 11:00 AM before District Judge George Caram Steeh Signed by District Judge George Caram Steeh. (MBea)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
CINDY HALABURDA, individually,
and on behalf of all others similarly
situated,

Case No. 2:12-cv-12831-GCS-RSW
[Hon. George C. Steeh]

Plaintiff,
[Magistrate Judge R. Steven Whalen]
v.
BAUER PUBLISHING CO., LP, a
Delaware Partnership,
Defendant.
ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS ACTION SETTLEMENT AGREEMENT, CERTIFYING
SETTLEMENT CLASS, APPOINTING CLASS REPRESENTATIVE,
APPOINTING CLASS COUNSEL, AND APPROVING NOTICE PLAN
WHEREAS, a putative class action is pending before the Court captioned
Halaburda v. Bauer Publishing Co., LP, No. 12-cv-12831-GCS-RSW; and
WHEREAS, Plaintiff Cindy Halaburda (“Plaintiff”) and Defendant Bauer
Publishing Co., LP (“Defendant”) (collectively, the “Parties”), have entered into a
Settlement Agreement which sets forth the terms and conditions for a proposed
settlement and dismissal of the Action with prejudice, and the Court having read
and considered the Settlement Agreement and exhibits attached thereto;
This matter coming before the Court upon the agreement of the Parties and
the motion of Plaintiff seeking preliminary approval of the Settlement Agreement,
good cause being shown, and the Court being fully advised in the premises,
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IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:
1.

Terms and phrases in this Order shall have the same meaning as

ascribed to them in the Settlement Agreement.
2.

The Parties have moved the Court for an order approving the

settlement of the Action in accordance with the Settlement Agreement, which,
together with the documents incorporated therein, sets forth the terms and
conditions for a proposed settlement and dismissal of the Action with prejudice,
and the Court having read and considered the Settlement Agreement and having
heard the parties and being fully advised in the premises, hereby preliminarily
approves the Settlement Agreement in its entirety subject to the Final Approval
Hearing referred to in paragraph 20 of this Order.
3.

This Court finds that it has jurisdiction over the subject matter of this

action and over all Parties to the Action.
4.

The Court finds that, subject to the Final Approval Hearing, the

Settlement Agreement is fair, reasonable, and adequate, within the range of
possible approval, and in the best interests of the Settlement Class set forth below.
The Court further finds that the Settlement Agreement substantially fulfills the
purposes and objectives of the class action, and provides substantial relief to the
Settlement Class without the risks, burdens, costs, or delay associated with
continued litigation, trial, and/or appeal. The Court also finds that the Settlement

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Agreement (a) is the result of arm’s-length negotiations between experienced class
action attorneys; (b) is sufficient to warrant notice of the settlement and the Final
Approval Hearing to be disseminated to the Settlement Class; (c) meets all
applicable requirements of law, including Federal Rule of Civil Procedure 23 and
the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715; and (d) is not a
finding or admission of liability by the Defendant or any other parties.
Certification of the Settlement Class
5.

The Court hereby appoints (a) Jay Edelson, Rafey S. Balabanian, Ari

J. Scharg, and J. Dominick Larry of Edelson PC as Class Counsel for the
Settlement Class; and (b) Cindy Halaburda as Class Representative. The Court
finds that these attorneys are competent and capable of exercising the
responsibilities of Class Counsel and that Plaintiff Halaburda will adequately
protect the interests of the Settlement Class defined below.
6.

For purposes of settlement only, the Court conditionally certifies the

following Settlement Class as defined in the Settlement Agreement:
All Persons in the state of Michigan that subscribed to any
Bauer Publication and subsequently had their Subscriber
Information disclosed by Bauer to a third party.
7.

The Court finds, subject to the Final Approval Hearing referred to in

Paragraph 20 below, that the Settlement Agreement is fundamentally fair,
adequate, and reasonable, and, solely within the context of and for the purposes of

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settlement only, that the Settlement Class satisfies the requirements of Rule 23 of
the Federal Rules of Civil Procedure, specifically, that: the Settlement Class is
comprised of approximately 23,000 individuals, and thus, is so numerous that
joinder of all members is impracticable; there are questions of fact and law
common to the Settlement Class (i.e., whether Defendant obtained consent before
disclosing Plaintiff’s and the Settlement Class’s magazine subscription information
to third parties, whether Defendant notified Plaintiff and the Settlement Class
Members that such information would be disclosed, whether Defendant’s
disclosure of Plaintiff’s and the Settlement Class Members’ magazine subscription
information violated the Michigan Video Rental Privacy Act [“VRPA”], M.C.L. §
445.1712, and whether Plaintiff and the Settlement Class Members are entitled to
statutory damages under the VRPA); the claims of the Class Representative are
typical of the claims of the members of the Settlement Class; the Class
Representative and Class Counsel will fairly and adequately protect the interests of
the members of the Settlement Class; common questions of law or fact
predominate over questions affecting individual members; and a class action is a
superior method for fairly and efficiently adjudicating the Action.
8.

Should the Settlement Agreement not receive the Court’s final

approval, should final approval be reversed on appeal, or should the Settlement
Agreement otherwise fail to become effective, the Court’s grant of class

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certification shall be vacated, and the Class Representative and the Settlement
Class would once again bear the burden of establishing the propriety of class
certification. In such case, neither the certification of the Settlement Class for
settlement purposes, nor any other act relating to the negotiation or execution of
the Settlement Agreement shall be considered as a factor in connection with any
class certification issues.
Notice and Administration
9.

The Court approves, as to form, content, and distribution, the Claim

Form attached to the Settlement Agreement as Exhibit A, the Notice Plan and all
forms of Notice to the Settlement Class as set forth in the Settlement Agreement
and Exhibits B, C, and D thereto, and finds that such Notice is the best notice
practicable under the circumstances, and that the Notice complies fully with the
requirements of the Federal Rules of Civil Procedure. The Court also finds that the
Notice constitutes valid, due, and sufficient notice to all persons entitled thereto,
and meets the requirements of Due Process. The Court further finds that the Notice
is reasonably calculated to, under all circumstances, reasonably apprise members
of the Settlement Class of the pendency of this action, the terms of the Settlement
Agreement, and the right to object to the settlement and to exclude themselves
from the Settlement Class. In addition, the Court finds that no notice other than
that specifically identified in the Settlement Agreement is necessary in this Action.

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The Parties, by agreement, may revise the Notice and Claim Form in ways that are
not material, or in ways that are appropriate to update those documents for
purposes of accuracy or formatting for publication.
10.

The Court approves the request for the appointment of Epiq Systems,

Inc. as Settlement Administrator of the Settlement Agreement.
11.

Pursuant to paragraph 4.2 of the Settlement Agreement, the

Settlement Administrator is directed to publish the Notice and Claim Form on the
Settlement Website within ten (10) days following the entry of this Order and to
send direct notice via U.S. Mail and email in accordance with the Notice Plan
called for by the Settlement Agreement no later than the Notice Date of Monday,
October 13, 2014. The Settlement Administrator shall also maintain the Settlement
Website to provide full information about the Settlement and allow for the filing of
claims online.
Exclusion
12.

Members of the Class who wish to receive benefits under the

Settlement Agreement must complete and submit their Claim Form(s) in
accordance with the instructions contained therein. All Claim Forms must be
postmarked or received by the Settlement Administrator within forty-five (45) days
after the date of the entry of the Final Judgment.
13.

Members of the Settlement Class who wish to exclude themselves

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from the Class may do so if, on or before the Objection/Exclusion Deadline of
Monday, December 1, 2014 they comply with the exclusion procedures set forth in
the Settlement Agreement and Notice. Any members of the Class so excluded
shall neither be bound by the terms of the Settlement Agreement nor entitled to any
of its benefits.
14.

Any members of the Settlement Class who elect to exclude

themselves or “opt out” of the Settlement Agreement must file a written request
with the Settlement Administrator, received or postmarked no later than the
Objection/Exclusion Deadline. The request for exclusion must comply with the
exclusion procedures set forth in the Settlement Agreement and Notice and include
the Settlement Class member’s name and address, the name of the Bauer
Publication to which he or she is a subscriber, a signature, the name and number of
the case, and a statement that he or she wishes to be excluded from the Settlement
Class for the purposes of this Settlement. So called “mass” or “class” opt-outs shall
not be allowed.
15.

Members of the Settlement Class who opt out of the Settlement

Agreement will relinquish their rights to benefits under the Settlement Agreement
and will not release their claims. However, members of the Settlement Class who
fail to submit a valid and timely request for exclusion shall be bound by all terms
of the Settlement Agreement and the Final Judgment, regardless of whether they

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have requested exclusion from the Settlement Agreement.
Objections
16.

Any members of the Settlement Class who have not timely filed a

request for exclusion may object to the fairness, reasonableness, or adequacy of the
Settlement Agreement or to a Final Judgment being entered dismissing the Action
with prejudice in accordance with the terms of the Settlement Agreement, or to the
attorneys’ fees and expense reimbursement sought by Class Counsel in the
amounts specified in the Notice, or to the award to the Class Representative as set
forth in the Notice and Settlement Agreement. At least fourteen (14) days prior to
the Objection/Exclusion Deadline, papers supporting the Fee Award shall be filed
with the court and posted to the settlement website. Members of the Class may
object on their own, or may do so through separate counsel at their own expense.
17.

To object, members of the Class must sign and file a written objection

no later than on or before the Objection/Exclusion Deadline of Monday, December
1, 2014. To be valid, the objection must comply with the objection procedures set
forth in the Settlement Agreement and Notice, and include his or her name and
address, an explanation of the basis upon which he or she claims to be a Settlement
Class Member, including the Bauer Publication to which he or she is or was a
subscriber, a signature, all grounds for the objection, including all citations to legal
authority and evidence supporting the objection, the name and contact information

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of any and all attorneys representing, advising, or in any way assisting him or her
in connection with the preparation or submission of the objection or who may
profit from the pursuit of the objection (the “Objecting Attorneys”), and a
statement indicating whether he or she intends to appear at the Final Approval
Hearing (either personally or through counsel who files an appearance with the
Court in accordance with Eastern District of Michigan Local Rules). If a
Settlement Class Member or any of the Objecting Attorneys has objected to any
class action settlement where the objector or the Objecting Attorneys asked for or
received any payment in exchange for dismissal of the objection, or any related
appeal, without any modification to the settlement, then the objection must include
a statement identifying each such case by full case caption.
18.

Members of the Class who fail to file and serve timely written

objections in compliance with the requirements of this paragraph and the
Settlement Agreement shall be deemed to have waived any objections and shall be
foreclosed from making any objections (whether by appeal or otherwise) to the
Settlement Agreement or to any of the subjects listed in paragraph 20, below.
19.

To be valid, objections must be filed with the Court and sent to both

Class Counsel: Ari J. Scharg of Edelson PC, 350 North LaSalle, Suite 1300,
Chicago, Illinois 60654; and to Defendant’s Counsel: Sharon J. Schneier of Davis
Wright Tremaine LLP, 1633 Broadway, 27th Floor, New York, New York 10019.

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In addition, any objections made by a Class member represented by counsel must
be filed through the Court’s CM/ECF system.
Final Approval Hearing
20.

The Final Approval Hearing shall be held before this Court on

Monday, January 5, 2015 at 11:00 a.m. in Courtroom 236 at the Theodore Levin
United States Courthouse, 231 West Lafayette Boulevard, Detroit, Michigan 48226
to determine (a) whether the proposed settlement of the Action on the terms and
conditions provided for in the Settlement Agreement is fair, reasonable, and
adequate and should be given final approval by the Court; (b) whether a judgment
and order of dismissal with prejudice should be entered; (c) whether to approve the
payment of attorneys’ fees and expenses to Class Counsel; and (d) whether to
approve the payment of an incentive award to the Class Representative. The Court
may adjourn the Final Approval Hearing without further notice to members of the
Settlement Class.
21.

Class Counsel shall file papers in support of their Fee Award and

Class Representative’s Incentive Award (the “Fee Petition”) with the Court on or
before Monday, November 17, 2014. Defendant may, but are not required to, file a
response to Class Counsel’s Fee Petition with the Court on or before Monday,
December 15, 2014. Class Counsel may file a reply in support of their Fee Petition
with the Court on or before Monday, December 29, 2014.

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22.

Papers in support of final approval of the Settlement Agreement, the

incentive award, and any supplementation to the request for the Fee Award, shall
be filed with the Court on or before December 22, 2014.
Further Matters
23.

All further proceedings in the Action are ordered stayed until Final

Judgment or termination of the Settlement Agreement, whichever occurs earlier,
except for those matters necessary to obtain and/or effectuate final approval of the
Settlement Agreement.
24.

Members of the Settlement Class shall be bound by all determinations

and judgments in the Action concerning the Action and/or Settlement Agreement,
whether favorable or unfavorable.
25.

If the Settlement Agreement is not approved by the Court in complete

accordance with its terms, each party will have the option of having the Action
revert to its status as if the Settlement Agreement had not been negotiated, made,
or filed with the Court. In such event, the parties will retain all rights as if the
Settlement Agreement was never agreed upon.
26.

In the event that the Settlement Agreement is terminated pursuant to

the provisions of the Settlement Agreement or for any reason whatsoever the
approval of it does not become Final then (i) the Settlement Agreement shall be
null and void, including any provision related to the award of attorneys’ fees, and

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shall have no further force and effect with respect to any party in this Action, and
shall not be used in this Action or in any other proceeding for any purpose; (ii) all
negotiations, proceedings, documents prepared, and statements made in connection
therewith shall be without prejudice to any person or party hereto, shall not be
deemed or construed to be an admission by any party of any act, matter, or
proposition, and shall not be used in any manner or for any purpose in any
subsequent proceeding in this Action or in any other action in any court or other
proceeding, provided, however, that the termination of the Settlement Agreement
shall not shield from subsequent discovery any factual information provided in
connection with the negotiation of this Settlement Agreement that would ordinarily
be discoverable but for the attempted settlement; (iii) other than as expressly
preserved by the Settlement Agreement in the event of its termination, the
Settlement Agreement shall have no further force and effect with respect to any
party and shall not be used in the Action or any other proceeding for any purpose;
and (iv) any party may elect to move the Court pursuant to the provisions of this
paragraph, and none of the non-moving parties (or their counsel) shall oppose any
such motion.
IT IS SO ORDERED, this 26th day of September, 2014.

s/George Caram Steeh
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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