Friske v. Bonnier Corporation
Filing
66
ORDER Granting Unopposed 61 62 Motions for Conditional Certification of Settlement Class and to Approve Notice of Class Action Settlement Agreement, Setting Hearing Date, and Authorizing Notice to Class Members. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REBECCA FRISKE,
Plaintiff,
Case Number 16-12799
Honorable David M. Lawson
v.
BONNIER CORPORATION,
Defendant.
_______________________________________/
ORDER GRANTING UNOPPOSED MOTIONS FOR CONDITIONAL
CERTIFICATION OF SETTLEMENT CLASS AND TO APPROVE NOTICE OF
CLASS ACTION SETTLEMENT AGREEMENT, SETTING HEARING DATE,
AND AUTHORIZING NOTICE TO CLASS MEMBERS
The plaintiff filed a second motion to conditionally certify a settlement class and a motion
to preliminarily approve a class settlement agreement, appoint a settlement administrator,
authorize notice of a class action settlement, and set a date for a final fairness hearing. These
motions are unopposed.
The Court previously conditionally certified a class for settlement
purposes, but after the first motion to approve a proposed settlement on behalf of the class was
denied, the Court decertified the class. After a third party attempted unsuccessfully to intervene,
the parties returned to mediation and negotiated a revised settlement.
The Court heard the parties’ arguments on June 11, 2019. No one appeared in opposition.
The plaintiff has presented an adequate basis to recertify a settlement class, and she has shown that
the new settlement proposal merits approval. Therefore, the Court will recertify the settlement
class, grant preliminary approval of the proposed settlement, authorize the notice (with some minor
modifications), and set a date for a final hearing.
I. Background
The parties jointly seek preliminary approval of their revised version of a proposed class
settlement. The named plaintiff, Rebecca Friske, brought this action under Michigan’s Video
Rental Privacy Act (VRPA), Mich. Comp. Laws ' 445.1711 et seq., alleging that defendant
Bonnier Corporation, a Delaware corporation that sells subscriptions to magazines nationwide,
sold and disclosed customer data to third parties in violation of that state law. She seeks damages
and injunctive relief to prevent further disclosure of her and other similarly situated class members’
personal information.
After the complaint was amended once to correct a misnomer, the defendant filed a motion
to dismiss or alternatively to stay the proceedings, followed by a corrected motion five days later.
The Court entered a scheduling order on January 23, 2017, closing discovery on July 31, 2017,
with dispositive motions due by August 18, 2017. On April 19, 2017, the Court entered an order
referring the case to facilitative mediation. On July 18, 2017, the defendant withdrew its motion
to dismiss, and on August 22, 2017, the Court held a status conference where counsel for the parties
represented that they had reached a settlement.
On December 11, 2017, the Court held a hearing on the motion to certify a settlement class
and granted conditional certification of the class based on the parties’ representations. The Court
appointed attorneys Daniel Myers and Gary Lynch as counsel for the designated settlement class
and plaintiff Rebecca Friske as the class representative. The Court also directed the parties to file
a motion for preliminary approval of the proposed settlement agreement by December 18, 2017.
The parties timely complied.
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On January 16, 2018, the Court held a hearing on the parties’ joint motion for preliminary
approval of class action settlement. During the hearing, the Court expressed concern about the
proposed award to absent class members in light of the Sixth Circuit’s holding in In re Dry Max
Pampers Litigation, 724 F.3d 713 (6th Cir. 2013). Counsel for the parties were unfamiliar with
the case and asked the Court to grant them two weeks to supplement their presentations. On
January 29, they filed a joint motion for a sixty-day extension so that they could conduct additional
discovery to support their proposed settlement. On April 3, the parties submitted a status report
indicating that they had reached an agreement regarding the scope of the additional discovery and
that they intended to complete this discovery posthaste. On June 25, the parties filed a joint brief.
On July 26, 2018, the Court denied the parties’ motion for preliminary approval of the class
action settlement, finding that they did not carry their burden of showing that the proposed
settlement was “fair, reasonable, and adequate.”
On October 18, 2018, absent class member William LeTarte (“intervenor”) filed a motion
to intervene. The Court thereafter vacated conditional certification settlement class because the
parties failed to satisfy the condition on which certification was granted. The order indicated that
if the parties desire to pursue class-wide relief, they could revisit certification and file an
appropriate motion. The plaintiff filed a renewed motion in November 2018.
On January 9, 2019, the parties filed a motion for a status conference and to stay pending
motions and deadlines, indicating that the parties engaged in renewed settlement negotiations with
the assistance of a professional mediator, and that the parties had agreed to resolve the case on a
class-wide basis. The parties requested that the Court adjourn the hearing on the motion to
intervene by a putative class member, as well as stay the deadline by which the defendant must
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respond to the plaintiff’s renewed motion for class certification, which was set for a hearing on
February 20, 2019. The parties also requested that the Court schedule a status conference to
discuss scheduling and other matters based on the proposed settlement.
On January 11, 2019, the Court granted the parties’ request for a status conference and
stayed the deadlines relating to the plaintiff’s pending motion for class certification. However, the
request to adjourn the hearing on the motion to intervene was denied.
On January 14, 2019, the Court heard oral argument on the motion to intervene. At the
conclusion of the hearing, the Court announced from the bench its decision to deny without
prejudice the motion, finding that with regard to intervention as of right, a showing greater than
the one presented by the intervenor was needed to overcome the presumption that his interests are
adequately represented. The Court also declined to allow permissive intervention under the
circumstances. The intervenor, however, was permitted to renew his motion if warranted by the
terms of the parties’ recently negotiated proposed settlement. The intervenor did not renew his
motion.
That same day, the Court held a status conference and directed the parties to file renewed
motions to certify the settlement class and for preliminary approval of the settlement by January
31, 2019. On January 30, 2019, the parties filed a motion seeking to extend that deadline. The
parties stated that they needed an additional 45 days to verify the size and identities of the proposed
class before finalizing the settlement agreement. The parties indicated that to the extent that the
ultimate class size differed significantly from their understanding at mediation, they had agreed to
re-engage their professional mediator to oversee any additional negotiations concerning the
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settlement. The Court found the request reasonable under the circumstances and extended the
deadline to March 18, 2019.
On March 18, 2019, the plaintiff filed the instant, unopposed motions to conditionally
certify the settlement class and appoint class counsel and for preliminary approval of the class
action settlement. They propose a settlement class defined as:
All Michigan residents who subscribed to or received one or more subscriptions to
a magazine published by Bonnier between July 28, 2010 and the date of Preliminary
Approval of the Agreement, and who did not purchase such subscriptions through
a Third-Party Subscription Agent.
The parties now anticipate that the class would consist of approximately 164,509 Michigan
residents.
II. Conditional Certification
“The class action is a creature of the Federal Rules of Civil Procedure.” United States v.
Sanchez-Gomez, --- U.S. ---, 138 S. Ct. 1532, 1538 (2018). “It is an ‘exception to the usual rule
that litigation is conducted by and on behalf of the individual named parties only,’ and ‘provides
a procedure by which the court may exercise . . . jurisdiction over the various individual claims in
a single proceeding.’” Ibid. (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). “‘The
certification of a suit as a class action has important consequences for the unnamed members of
the class.’” Ibid. (Sosna v. Iowa, 419 U.S. 393, 399 n.8 (1975)).
“Any class certification must satisfy Rule 23(a)’s requirement of numerosity,
commonality, typicality, and adequate representation.”
Clemons v. Norton Healthcare Inc.
Retirement Plan, 890 F.3d 254, 278 (6th Cir. 2018). “Further, a class action must fit under at least
one of the categories identified in Rule 23(b).” Ibid. “The district court must conduct ‘a rigorous
analysis’ as to all the requirements of Rule 23.” Id. at 278-79 (quoting Pipefitters Local 636
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Insurance Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 630 (6th Cir. 2011)). “[T]he
party seeking class certification . . . bears the burden of ‘affirmatively demonstrat[ing]’
compliance with Rule 23.” Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc.,
863 F.3d 460, 466-67 (6th Cir. 2017) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011)).
The first prerequisite to class certification under Rule 23(a) is numerosity. Olden v.
LaFarge Corp., 203 F.R.D. 254, 268 (E.D. Mich. 2001), aff’d, 383 F.3d 495 (6th Cir. 2004). There
is no strict numerical test to determine when the class is large enough or too numerous to be joined
under the Federal Rules of Civil Procedure. Senter v. General Motors Corp., 532 F.2d 511, 523
n.24 (6th Cir. 1976). Here, the plaintiff alleges in her unopposed motion that the class will consist
of approximately 164,509 Michigan residents. As the Court found previously, that number
certainly is large enough, and not so large that claims administration would be unmanageable.
The second prerequisite for class certification, commonality, simply means that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This provision does not
demand that all questions of law and fact raised in the complaint are common. Olden, 203 F.R.D.
at 269. “The standard is not [that] demanding. ‘Rule 23(a) simply requires a common question of
law or fact.’” Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 583 (W.D. Mich. 2001) (quoting
Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997)). In this case, the claims of
the absent class members will be identical: that the defendant unlawfully disclosed personal
subscriber information in violation of Michigan law. According to the plaintiff, there is little room
for individualized factual analysis, since the defendant’s conduct takes the claims away from the
statute’s safe harbor provisions. The defendant takes no issue with that proposition. The
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commonality element is satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(requiring that the “determination of [the common contention’s] truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke”).
The requisite of typicality requires that a “sufficient relationship exist[ ] between the injury
to the named plaintiff and conduct affecting the class, so that the court may properly attribute a
collective nature to the challenged conduct.” Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir.
2000) (internal quotes omitted). Although the named plaintiff’s claims must fairly encompass the
class members’ claim, they need not always involve the same facts or law. See Sprague v. General
Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998); Senter, 532 F.2d at 525 n.31. Here, the named
plaintiff’s claim is identical to those of the absent class members.
The Supreme Court has explained that the commonality and typicality requirements “serve
as guideposts for determining whether under the particular circumstances maintenance of a class
action is economical and whether the named plaintiff[s]’ claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately protected in their
absence.” General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). “The test
for typicality, like commonality, is not demanding.” Rockey, 199 F.R.D. at 584. It is satisfied
here.
Under Rule 23(a)(4), the Court must “measure the adequacy of the class members’
representation based upon two factors: ‘1) the representatives must have common interests with
unnamed members of the class, and 2) it must appear that the representatives will vigorously
prosecute the interests of the class through qualified counsel.’” In re Dry Max Pampers Litig., 724
F.3d 713, 721 (6th Cir. 2013) (quoting Vassalle v. Midland Funding LLC, 708 F.3d 747, 757 (6th
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Cir. 2013)). “The Rule requires that ‘the class members have interests that are not antagonistic to
one another.’” Ibid. “Thus, ‘the linchpin of the adequacy requirement is the alignment of interests
and incentives between the representative plaintiffs and the rest of the class.’” Ibid. (quoting
Dewey v. Volkswagen AG, 681 F.3d 170, 183 (3d Cir. 2012)). “These requirements are scrutinized
more closely, not less, in cases involving a settlement class,” because “‘the need for the adequacy
of representation finding is particularly acute in settlement class situations.’” Ibid. (quoting In re
General Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 795 (1995)).
The plaintiff asserts that she adequately represents the interests of the class because she
shares their interest in recovery and in ensuring these disclosures do not continue. She says that
she has devoted significant time and energy to this case by participating in settlement negotiations
and sitting for a deposition in November 2018. The plaintiff also argues that her counsel are
competent and that their wealth of experience litigating these types of cases makes them qualified
to represent the class.
The plaintiff’s unopposed motion presents no new information on this point that warrants
disturbing the Court’s previous findings and decision to conditionally certify the class for
settlement purposes. An argument could be made that plaintiff’s attorneys should not be appointed
because of their failure to achieve a fair settlement previously. However, a better view is that
plaintiff’s counsel overcame that criticism by sticking with the case and negotiating another
settlement. In any event, despite an effort by an absent class member to intervene with a new
attorney who was spring-loaded to take over, there are no objections to the appointment of the
named plaintiff and current counsel presently before the Court. Their familiarity with the case
favors allowing them to proceed as class counsel.
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“Rule 23(b)(3) classes . . . must meet predominance and superiority requirements, that is,
‘questions of law or fact common to class members [must] predominate over any questions
affecting only individual members’ and class treatment must be ‘superior to other available
methods.’” Sandusky Wellness Center, 863 F.3d at 466. “In discerning whether a putative class
meets the predominance inquiry, courts are to assess ‘the legal or factual questions that qualify
each class member’s case as a genuine controversy,’ and assess whether those questions are
‘subject to generalized proof, and thus applicable to the class as a whole.’” Id. at 468 (quoting
Amchem, 521 U.S. at 594; Bridging Communities, Inc. v. Top Flite Fin., Inc., 843 F.3d 1119, 1124
(6th Cir. 2016)). “‘If the same evidence will suffice for each member to make a prima facie
showing, then it becomes a common question.’” Ibid. (quoting Sandusky Wellness Center, LLC v.
Medtox Scientific, Inc., 821 F.3d 992, 998 (8th Cir. 2016)). The plaintiff “need not prove that
every element can be established by classwide proof,” but “the key is to identify the substantive
issues that will control the outcome.” Ibid. (quotations omitted).
According to the plaintiff, the defendant was engaged in a common course of conduct such
that claims under Michigan’s Video Rental Privacy Act are susceptible to generalized class-wide
proof, and that pursuing relief in a single suit would be superior to any other form of claim
resolution as it would promote judicial economy and address claims of which some class members
may be unaware. The defendant disputes none of this.
“In addition, Rule 23(b)(3) classes must also meet an implied ascertainability requirement.”
Ibid. (citing Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016)). That is because, “unlike
(b)(1) and (b)(2) classes, (b)(3) class members are entitled to notice and are able to opt-out of the
class.” Cole, 839 F.3d at 541. “In the Rule 23(b)(3) context, ascertainability aids the inherent
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efficiencies of the class device by ensuring administrative feasibility, and . . . ascertainability is a
requirement tied almost exclusively to the practical need to notify absent class members and to
allow those members a chance to opt-out and avoid the potential collateral estoppel effects of a
final judgment.” Ibid. “[T]he ascertainability requirement . . . necessitate[s] ‘a class description
[that is] sufficiently definite so that it is administratively feasible for the court to determine whether
a particular individual is a member.’” Ibid. (quoting Young v. Nationwide Mutual Insurance Co.,
693 F.3d 532, 537-38 (6th Cir. 2012)).
It appears that the parties have identified class members through subscription records.
Indeed, it is those records that form the heart of the case. The plaintiff has satisfied this
requirement.
Because the plaintiff has fulfilled the requirements of Rule 23(a) and (b), the Court will
conditionally recertify the settlement class, appoint Rebecca Friske as the class representative, and
appoint her attorneys, Gary Lynch, Jamisen Etzel, and Daniel Myers, as class counsel.
III. Preliminary Approval
Federal Rule of Civil Procedure 23(e) imposes certain “rules for the settlement, dismissal,
or compromise of class claims.” Whitlock v. FSL Management, LLC, 843 F.3d 1084, 1093 (6th
Cir. 2016). “It requires that class-action claims ‘may be settled, voluntarily dismissed, or
compromised only with the court’s approval.’”
Ibid. (quoting Fed. R. Civ. P. 23(e)).
The
approval of a proposed settlement ordinarily involves a two-stage procedure. “First, counsel
submit the proposed terms of [the] settlement and the judge makes a preliminary fairness
evaluation. . . . Once the judge is satisfied as to the . . . results of the initial inquiry into the fairness,
reasonableness, and adequacy of the settlement, notice of a formal Rule 23(e) fairness hearing is
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given to the class members.” Manual for Complex Litigation (4th ed.) §§ 21.632-.633 (2004); see
also Tenn. Ass’n of Health Maint. Orgs., Inc. v. Grier, 262 F.3d 559, 565-66 (6th Cir. 2001).
“Approval is only warranted where the court determines, inter alia, that the proposed class
settlement would be ‘fair, reasonable, and adequate.’” Whitlock, 843 F.3d at 1093. “Factors that
guide this inquiry include: (1) the risk of fraud or collusion; (2) the complexity, expense and likely
duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood
of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction
of absent class members; and (7) the public interest.” Ibid. (quoting UAW v. GMC, 497 F.3d 615,
631 (6th Cir. 2007)).
The terms of the proposed settlement include the following features:
•
A non-reversionary settlement fund of $2,150,000 furnished by the defendant, to
be distributed as outlined below
•
Class members who submit a claim form will receive a pro rata cash payment that
plaintiff’s counsel estimates to be between $43 and $86 (based on claim-submission optin rates of 20% and 10%, respectively)
•
If a class member does not submit a claim form, he or she will receive a voucher or
purchase code for a free, one-year subscription to one of Bonnier’s magazines
•
Bonnier will retain disclosure language contained in all its publications and
undertake commercially reasonable measures to honor the request of any individual who
submits a request to opt out of the subscriber list occasionally made available to third
parties
•
Bonnier will undertake commercially reasonable measures to include disclosure
language in informational materials used to establish a new magazine subscription so that
disclosure is available to consumers before subscribing
•
Costs of administration will not exceed $100,000, but they will be paid from
settlement fund
•
The named plaintiff’s incentive award will be no more than $2,500, paid from
settlement fund
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•
Class counsel will seek attorney’s fees of no more than $625,000 or 29% of the
settlement fund
The revised settlement terms are fair, reasonable, and adequate. The Court believes that
the parties addressed and eliminated the “red flags” that counseled against approval the first time
around. The Court previously emphasized that the proposed cash distribution of either $16 or a
free magazine subscription was not commensurate with or higher than awards in other VRPA cases
and that the relief was a far cry from the upside an individual class member might realize if he or
she pursued an individual claim in light of statutory damages. The plaintiff presently estimates
that the proposed cash payment to class members will be between $43 and $86 based on a 20
percent and 10 percent claim-return rate, respectively. It is not clear from the briefing on what
basis, other than class counsel’s experience, the plaintiff formed her belief that the yield will fall
in that range. But an actual payout of between $43 and $86 amounts to a reasonable monetary
award when compared to the other cited VRPA cases from this district. See Halaburda v. Bauer
Publishing Company., LP, No. 12-12831 (Steeh, J.) (approximately $74 per claimant); CoulterOwens v. Rodale, Incorporated, No. 14-12688, 2016 WL 5476490 (E.D. Mich. Sept. 29, 2016)
(Cleland, J.) (approximately $44 per claimant); Kinder v. Meredith Corporation, No. 14-11284
(Ludington, J.) (approximately $50 per claimant). These amounts are significant and support a
finding that the settlement is not a product of collusion (or obstruction) between the parties.
Although the case has been pending for several months, it is not close to a resolution on a
contested basis. In the absence of an agreement, the parties would have pursued costly motion
practice, which would have extended the proceedings. The prospect of interlocutory appeals on
the class certification question also would have prolonged the litigation.
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The parties represent that they engaged in some discovery before reaching a revised
agreement. The plaintiff says that she took two Rule 30(b)(6) depositions of the defendant, served
document requests, and received both formal and informal responses and documents from the
defendant. She also indicates that after the second mediation, class counsel conducted further
discovery, including serving three third-party subpoenas and receiving additional information
from the defendant and third parties, to ensure that the class size was accurate. It is reasonable to
conclude that the parties did their due diligence this time.
The plaintiff’s success on her claim was far from certain. The defendant maintained that it
did not sell its magazines “at retail” and placed opt-out notices on its publications. Those contested
facts would have provided the defendant with a liability defense. And the defendant likely would
have advocated for a reduction of damages on due process grounds.
The plaintiff’s attorneys are reputable and experienced in complex class action litigation
and have adequately assessed the strengths of the plaintiff’s claims and defenses; there presently
are no class members from which to measure a reaction. They have expressed their opinion that
this second try at a settlement is in the best interest of the absent class members.
And, of course, settlements of consumer protection litigation on favorable terms promotes
the public interest. The settlement will prevent protracted litigation and further the aims of the
VRPA by ensuring that the defendant’s customers are given the opportunity to opt out of the
defendant’s disclosure practice before becoming subscribers.
The fee award is substantially less than the first proposed award in absolute terms, but is
only one percent less than what previously was requested. The plaintiff has not submitted any
information as to class counsel’s hourly rate and services rendered. It is not unfathomable that
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over the course of three years plaintiff’s counsel has accumulated six figures in fees, especially
when considering the additional efforts undertaken to properly prosecute this case after the first
motion for preliminary approval was denied. And the fee award will be subject to further scrutiny
when class counsel moves for approval under Rule 23(h) and Rule 54(d)(2).
Also, the incentive award to the named plaintiff is half of what previously was proposed,
mitigating any lingering concern that the plaintiff will enjoy a windfall at her fellow class
members’ expense.
The proposed settlement does not contain those provisions that allowed the defendant to
recoup some of the settlement fund as a “credit” if a claimant elected the free magazine instead of
a cash payment and that afforded either party the right to rescind if more than 20 percent of class
members opted for a cash payment. The absence of such a provision suggests that the parties have
learned from their previous unsuccessful attempt at a class settlement.
The proposed notice appears to be appropriate and in line with notices the Court previously
has authorized. The notice promises an award between $43 and $86. Although the notice includes
some language that the exact amount is unknown at this time, the notice should more clearly
explain how those amounts were calculated and based on what assumptions. The notice should be
proofread for grammar, spelling and punctuation errors. With those minor modifications, the
notice will be approved.
IV. Notice
The Court also finds reasonable the plan for notifying absent class members proposed by
the parties. The parties propose the appointment of Angeion Group as the settlement administrator,
which would implement a plan for providing notice and receiving claims from class members
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including: (1) post card notices mailed directly to class members via U.S. mail and (2) creation of
a settlement website that will include information about the settlement and an online claim
submission feature that will allow class members to submit a claim. Rule 23 states that “the court
may direct appropriate notice to the class,” Fed. R. Civ. P. 23(c)(2)(A), and “[t]he court must direct
notice in a reasonable manner to all class members who would be bound by the proposal,” Fed. R.
Civ. P. 23(e)(1). The Court has reviewed the contents of the proposed notice to absent class
members, which plaintiff’s counsel has provided to the Court. The notice is reasonably clear and
otherwise conforms to the requirements of Rule 23(c)(2)(A) and 23(e). The proposed notice must
be amended, however, to include the deadlines prescribed by this order.
Finally, Angeion Group appears to be a capable settlement administrator, having
competently administered multiple class settlements over the years.
V. Conclusion
Accordingly, it is ORDERED that the plaintiff’s unopposed motions to certify a settlement
class and for preliminary approval of the proposed settlement agreement and procedure for
providing class notice (ECF No. 61, 62) are GRANTED. The proposed settlement agreement is
PRELIMINARILY APPROVED, subject to objections by absent class members and except for
the determination of the attorney’s fees and costs.
It is further ORDERED that, pursuant to Federal Rule of Civil Procedure 23(b)(3), the
following settlement class is conditionally certified in this case:
All Michigan residents who subscribed to or received one or more subscriptions to
a magazine published by Bonnier between July 28, 2010 and the date of Preliminary
Approval of the Agreement, and who did not purchase such subscriptions through
a Third-Party Subscription Agent.
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It is further ORDERED that counsel of record for the named plaintiff, namely attorneys
Gary Lynch, Jamisen Etzel, and Daniel Myers, are appointed as counsel for the designated
settlement class. Plaintiff Rebecca Friske is appointed as the class representative.
It is further ORDERED that Angeion Group is APPROVED as the claims administrator
for the settlement. The Court further APPROVES the deposit within 30 days of the settlement
funds into an escrow account to be held pending final disposition of all settlement claims, or until
further order of the Court, and the Court orders the defendant’s compliance with this term.
It is further ORDERED that on or before July 10, 2019, the defendant shall provide notice
of this proposed class settlement to the appropriate state and federal authorities. The defendant
must file proof that it has provided the required notice with the Court, in compliance with the Class
Action Fairness Act, 28 U.S.C. § 1715(b).
It is further ORDERED that plaintiff’s counsel or their designated representative shall
cause notice of the proposed settlement to be given to class members in the following manner:
(a) On or before July 10, 2019, a copy of the Notice of Class Action Settlement
Agreement, substantially in the form attached as ECF No. 62-1, Page.ID 751-763
to the plaintiff’s unopposed motion for preliminary approval of class settlement and
notice, and modified as directed herein, must be mailed by first-class mail, with
postage prepaid, to each class member. The class administrator shall ensure that
the creation of a claims website is accomplished by that same date.
(b) The notice to class members must explain that objections to, and requests to be
excluded from, the class settlement must be filed with the Court and the parties’
counsel on or before August 26, 2019.
(c) In lieu of the notice described in subparagraph (a), above, an abbreviated notice,
substantially in the form attached as ECF No. 62-1, Page.ID 765, may be mailed by
first-class mail, with postage prepaid, to each class member for whom plaintiff’s
counsel or his designated representative can confirm has an active email account
with access to the Internet.
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It is further ORDERED that plaintiff’s counsel shall file proof of mailing of the class
notice in conformity with this order on or before July 17, 2019.
It is further ORDERED that the expenses of printing and mailing and publishing all notices
required hereby shall be paid as described in the settlement agreement.
It is further ORDERED that the notice of class settlement must inform the absent class
members that Proofs of Claim and supporting documentation must be submitted on or before
August 23, 2019. Proofs of Claim sent by mail shall be deemed submitted when postmarked if
mailed by first class, registered or certified mail, postage prepaid, addressed in accordance with
the instructions in the Proof of Claim. All other Proofs of Claim shall be deemed submitted at the
time of actual receipt.
It is further ORDERED that, on or before September 3, 2019, plaintiff’s counsel must
file a motion for final approval of the settlement identifying absent class members who opt out or
object. The defendant’s response, if the motion is opposed, must be filed on or before September
10, 2019, and the plaintiff’s reply, if any, must be filed on or before September 17, 2019.
It is further ORDERED that a hearing shall be held at 1:00 p.m. on Thursday, September
23, 2019 in Room 767 of the Theodore Levin United States Courthouse, 231 West Lafayette Blvd.,
Detroit, Michigan 48226, to consider any objections to the settlement agreement and to determine
whether the settlement agreement should be finally approved as having been negotiated in good
faith and as being fair, reasonable, and in the best interest of the class members.
It is further ORDERED that any class member may appear at the settlement hearing and
be heard to the extent allowed by this Court, either in support of or in opposition to the good faith,
fairness, reasonableness, and adequacy of the proposed settlement or the plaintiff’s counsel’s
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application for an award of attorney’s fees, reimbursement of expenses, and an incentive award to
the representative plaintiff. However, no class member shall be entitled to be heard or entitled to
contest the approval of the terms and conditions of the proposed settlement or the judgment to be
entered pursuant thereto approving the same, or the plaintiff’s counsel’s fee, expense and incentive
award application, unless, on or before August 23, 2019, such person: (a) has filed with the Clerk
of Court a notice of such person’s intention to appear, together with a statement that indicates the
basis for such opposition along with any supporting documentation, and (b) has served copies of
such notice, statement, and documentation, together with copies of any other pleadings that such
person has filed with the Clerk of the Court and each parties’ counsel at the following addresses:
Clerk of the Court
United States District Court
231 Lafayette Boulevard
Detroit, MI 48226
Re: Rebecca Friske v. Bonnier Corporation
Case Number 16-12799
Counsel for the Plaintiff
Gary Lynch and Jamisen A. Etzel
Carlson Lynch Sweet & Kilpela, LLP
36 N. Jefferson St.
P.O. Box 7635
New Castle, PA 16107
724-656-1555
Fax: 724-656-1556
Daniel Myers
The Law Offices of Daniel O. Myers
4020 Copper View Ste. 225
Suite 225
Traverse City, MI 49684
231-943-1135
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Counsel for the Defendant
Daniel T. Stabile and Francis A. Zacherl
Shutts & Bowen LLP
200 South Biscayne Blvd
Suite 4100
Miami, FL 33131
305-415-9063
Fax: 305-347-7714
John J. Gillooly
Garan Lucow
1155 Brewery Park Blvd., Suite 200
Detroit, MI 48207-2641
313-446-5501
Any class member who does not serve and file an objection to the proposed settlement of
the litigation or the fee, expense and incentive award application, in the manner provided for
herein, shall be deemed to have waived the right to object, including the right to appeal, and shall
be forever foreclosed from making any objection to the settlement, the fee, expense and incentive
award application, or to any order or judgment filed or entered thereon, as applicable. Counsel for
the plaintiff must notify all absent class members of this requirement.
It is further ORDERED that applications for incentive awards, attorney’s fees, or
reimbursable expenses under Rule 23(h) must be filed on or before September 3, 2019. Counsel
must provide notice to class members in accordance with Fed. R. Civ. P. 23(h)(1).
It is further ORDERED that class counsel shall be responsible for maintaining a file of all
responses to the notice of settlement and any and all other written communications received from
the class members. Class counsel immediately shall provide copies of such responses and
communications to defendant’s counsel.
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It is further ORDERED that the Court reserves the right to adjourn the settlement hearing
from time to time without further notice and to approve the settlement agreement at or after the
settlement hearing.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: June 25, 2019
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first-class U.S. mail on June 25, 2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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