Kinder v. Bauer Publishing Co., LP

Filing 68

FINAL JUDGMENT and Order of Dismissal with Prejudice. Signed by District Judge George Caram Steeh (MBea)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
CINDY HALABURDA, individually
and on behalf of all others similarly
situated,
Plaintiff,
Case No. 2:12-cv-12831-GCS-RSW
v.
Hon. George C. Steeh
BAUER PUBLISHING CO., LP, a
Delaware Partnership,
Defendant.
FINAL JUDGMENT AND
ORDER OF DISMISSAL WITH PREJUDICE
WHEREAS, a class action is pending before the Court entitled Halaburda v.
Bauer Publishing Co., LP, Case No. 12-cv-12831; and
WHEREAS, Plaintiff Cindy Halaburda (“Plaintiff”), individually and as
Class Representative, and Defendant Bauer Publishing Co., LP (“Defendant”) have
entered into a Settlement Agreement (dkt. 62-1), which, together with the exhibits
attached thereto, sets forth the terms and conditions for a proposed settlement and
dismissal of the Action with prejudice; and
WHEREAS, on September 26, 2014, the Court granted Plaintiff’s Motion
for Preliminary Approval of Class Action Settlement, conditionally certifying a
Class pursuant to Fed. R. Civ. P. 23(b)(3) of “All Persons in the state of Michigan

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that subscribed to any Bauer Publication and subsequently had their Subscriber
Information disclosed by Bauer to a third party” (dkts. 62-1; 63); and
WHEREAS, Defendant notified the Michigan Attorney General’s Office
about the proposed Settlement Agreement pursuant to the Class Action Fairness
Act of 2005 (“CAFA”), 28 USC § 1715, and subsequently the Parties discussed the
terms of the Settlement Agreement with the Michigan Attorney General’s Office,
and pursuant to those discussions, the Parties agreed to make the following
modifications to the prospective relief provided in Paragraph 2.1, subject to Court
approval: (i) the second sentence of Paragraph 2.1(c) shall be deleted (“Defendant
shall use its commercially reasonable best efforts when negotiating, renegotiating,
extending, or renewing contracts with third party companies authorized to sell
Bauer Publications subscription(s) to require such companies to provide the notice
required under this Paragraph to the extent practicable.”); and (ii) Paragraph 2.1(e)
shall be replaced with the following sentence after the phrase “In lieu of
Paragraphs (a)-(d) above”: “Bauer agrees not to disclose any Michigan customers’
Subscriber Information for the four-year period provided for in the Class Action
Settlement Agreement”; and
WHEREAS, the Court has considered the Parties’ Class Action Settlement
Agreement (dkt. 62-1), as well as Plaintiff’s Motion for Final Approval of the
Settlement Agreement (dkt. 66), Plaintiff’s Motion for Approval of Attorneys’

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Fees, Expenses, and Incentive Award (dkt. 64), together with all exhibits thereto,
the arguments and authorities presented by the Parties and their counsel at the Final
Approval Hearing held on January 5, 2015, and the record in the Action, and good
cause appearing,
It is hereby ORDERED, ADJUDGED, and DECREED THAT:
1.

Terms and phrases in this Final Judgment shall have the same

meaning as ascribed to them in the Parties’ Class Action Settlement Agreement.
2.

This Court has jurisdiction over the subject matter of the Action and

over all Parties to the Action, including all Settlement Class members.
3.

The notice provided to the Settlement Class pursuant to the Settlement

Agreement (dkt. 62-1) and order granting Preliminary Approval (dkt. 63)––
including (i) direct notice to the Settlement Class via email and U.S. mail, based on
the comprehensive Settlement Class List provided by Defendant, and (ii) the
creation of the Settlement Website––fully complied with the requirements of Fed.
R. Civ. P. 23 and due process, constituted notice that was reasonably calculated,
under the circumstances, to apprise the Settlement Class of the pendency of the
Action, their right to object to or to exclude themselves from the Settlement
Agreement, and their right to appear at the Final Approval Hearing.
4.

No Class Member has objected to any of the terms of the Settlement

Agreement or submitted a request for exclusion.

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5.

The Court finds that Defendant properly and timely notified the

appropriate government officials of the Settlement Agreement, pursuant to the
Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715. The Court has
reviewed the substance of Defendant’s notice, and finds that it complied with all
applicable requirements of CAFA. Further, more than ninety (90) days have
elapsed since Defendant provided notice pursuant to CAFA and the Final Approval
Hearing.
6.

This Court now gives final approval to the Settlement Agreement, and

finds that the Settlement Agreement is fair, reasonable, adequate, and in the best
interests of the Settlement Class. The settlement consideration provided under the
Settlement Agreement constitutes fair value given in exchange for the release of
the Released Claims against the Released Parties. The Court finds that the
consideration to be paid to members of the Settlement Class is reasonable, and in
the best interests of the Settlement Class Members, considering the total value of
their claims compared to the disputed factual and legal circumstances of and
affirmative defenses asserted in the Action, and the potential risks and likelihood
of success of pursuing litigation on the merits. The complex legal and factual
posture of this case, the amount of discovery completed, and the fact that the
Settlement is the result of arm’s-length negotiations between the Parties support
this finding. The Court finds that these facts, in addition to the Court’s

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observations throughout the litigation, demonstrate that there was no collusion
present in the reaching of the Settlement Agreement, implicit or otherwise.
7.

The Court has specifically considered the factors relevant to class

action settlement approval, see, e.g., Int’l Union, United Auto., Aerospace, & Agr.
Implement Workers of Am., 497 F.3d 615, 631 (6th Cir. 2007), including, inter
alia, the likelihood of success on the merits, the public interest, and the reaction of
absent class members, and upon consideration of such factors finds that the
settlement is fair, reasonable, and adequate to all concerned. The Parties are
directed to consummate the Settlement Agreement in accordance with its terms.
8.

The Court finds that the Class Representative and Class Counsel

adequately represented the Settlement Class for the purposes of litigating this
matter and entering into and implementing the Settlement Agreement.
9.

Accordingly, the Settlement is hereby finally approved in all respects,

except that (i) the second sentence of Paragraph 2.1(c) shall be deleted (“Defendant
shall use its commercially reasonable best efforts when negotiating, renegotiating,
extending, or renewing contracts with third party companies authorized to sell
Bauer Publications subscription(s) to require such companies to provide the notice
required under this Paragraph to the extent practicable.”); and (ii) Paragraph 2.1(e)
shall be replaced with the following sentence after the phrase “In lieu of
Paragraphs (a)-(d) above”: “Bauer agrees not to disclose any Michigan customers’

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Subscriber Information for the four-year period provided for in the Class Action
Settlement Agreement.”
10.

The Parties are hereby directed to implement the Settlement

Agreement according to its terms and provisions. The Settlement Agreement is
hereby incorporated into this Final Judgment in full and shall have the full force of
an Order of this Court.
11.

This Court hereby dismisses the Action, as identified in the Settlement

Agreement, on the merits and with prejudice.
12.

Upon the Effective Date of this Final Judgment, Plaintiffs and each

and every Settlement Class Member who did not opt out of the Settlement Class
(whether or not such members submit claims) and to the extent the Settlement
Class Member all of its respective present or past heirs, executors, estates,
administrators, predecessors, successors, assigns, parent companies, subsidiaries,
associates, affiliates, employers, employees, agents, consultants, independent
contractors, insurers, directors, managing directors, officers, partners, principals,
members, attorneys, accountants, financial and other advisors, investment bankers,
underwriters, shareholders, lenders, auditors, investment advisors, legal
representatives, successors in interest, assigns and companies, firms, trusts, and
corporations shall be deemed to have released Defendant, as well as any and all of
its respective present or past heirs, executors, estates, administrators, predecessors,

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successors, assigns, parent companies, subsidiaries, associates, affiliates,
employers, employees, agents, consultants, independent contractors, insurers,
directors, managing directors, officers, partners, principals, members, attorneys,
accountants, financial and other advisors, investment bankers, underwriters,
shareholders, lenders, auditors, investment advisors, legal representatives,
successors in interest, assigns and companies, firms, trusts, and corporations from
any and all actual, potential, filed, known or unknown, fixed or contingent, claimed
or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes
of action, contracts or agreements, extracontractual claims, damages, punitive,
exemplary or multiplied damages, expenses, costs, attorneys’ fees and or
obligations (including “Unknown Claims,” as defined in the Settlement
Agreement), whether in law or in equity, accrued or unaccrued, direct, individual
or representative, of every nature and description whatsoever, whether based on the
VRPA or other federal, state, local, statutory or common law or any other law, rule
or regulation, against the Released Parties, or any of them, arising out of any facts,
transactions, events, matters, occurrences, acts, disclosures, statements,
misrepresentations, omissions or failures to act regarding the alleged disclosure of
the Settlement Class Members’ Subscription Information, including all claims that
were brought or could have been brought in the Action.
13.

Upon the Effective Date of this Final Judgment, the above release of

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claims and the Settlement Agreement will be binding on, and will have res
judicata and preclusive effect on, all pending and future lawsuits or other
proceedings maintained by or on behalf of Plaintiffs and all other Settlement Class
Members and Releasing Parties. All Settlement Class Members are hereby
permanently barred and enjoined from filing, commencing, prosecuting,
intervening in, or participating (as class members or otherwise) in any lawsuit or
other action in any jurisdiction based on or arising out of any of the Released
Claims.
14.

The Court has also considered Plaintiff’s Motion and supporting

declarations for attorneys’ fees to Class Counsel and adjudges that the payment of
$ 232,500.00 is reasonable in light of the multi-factor test used to evaluate fee
awards in the Sixth Circuit, using either a lodestar or percentage-of-the-fund
approach. See Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir.
1974); Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996).
15.

The Court has also considered Plaintiff’s Motion and supporting

declarations for an incentive award to the Class Representative, Cindy Halaburda.
The Court adjudges that the payment of an incentive award in the amount of
$5,000.00 to Ms. Halaburda, to compensate her for her efforts and commitment on
behalf of the Settlement Class, is fair, reasonable, and justified under the
circumstances of this case. Such payment shall be made pursuant to and in the

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manner provided by the terms of the Settlement Agreement.
16.

All payments made to Settlement Class Members pursuant to the

Settlement Agreement that are not cashed within ninety (90) days of issuance shall
revert to the Michigan Bar Association’s Access to Justice Fund, which the Court
approves as an appropriate cy pres recipient. Except as otherwise set forth in this
Order, the Parties shall bear their own costs and attorneys’ fees.
17.

The Parties, without further approval from the Court, are hereby

permitted to agree to and adopt such amendments, modifications and expansions of
the Settlement Agreement and its implementing documents (including all exhibits
to the Settlement Agreement) so long as they are consistent in all material respects
with this Final Judgment and do not limit the rights of Settlement Class Members.
18.

Without affecting the finality of this Final Judgment for purposes of

appeal, until the Effective Date the Court shall retain jurisdiction over all matters
relating to administration, consummation, enforcement, and interpretation of the
Settlement Agreement.
19.

This Court hereby directs entry of this Final Judgment pursuant to

Federal Rule of Civil Procedure 58 based upon the Court’s finding that there is no
just reason for delay of enforcement or appeal of this Final Judgment.

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IT IS SO ORDERED, this 6th day of January, 2015.

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

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