Ponce v. Lenovo Inc. et al

Filing 38

ORDER re Plaintiff's MOTION for Preliminary Approval of Class Action Settlement 26 . The Final Approval Hearing is set for August 28, 2017, at 9:30 a.m. in Courtroom 12W (MPLS) before Judge Joan N. Ericksen. (Written Opinion) Signed by Judge Joan N. Ericksen on March 23, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Katherine Ponce, individually and on
behalf of all others similarly situated,
Plaintiff,
v.

Case No. 16-cv-1000 (JNE/JSM)

ORDER PRELIMINARILY APPROVING
SETTLEMENT CLASS
CERTIFICATION AND PROPOSED
CLASS ACTION SETTLEMENT

Lenovo (United States) Inc.,
Defendant.

This matter came before the Court on Plaintiff’s Motion for Preliminary Approval
of Class Action Settlement with Defendant Lenovo (United States) Inc. (“Lenovo”).
Defendant does not oppose the Motion.

Def. Br. 1, Dkt. No. 35.

The Court has

considered the Motion, the proposed Class Action Settlement Agreement (“Settlement
Agreement” or “Settlement”) (see Dkt. No. 29-1 Ex. 1), the proposed notices to be
distributed to the Settlement Class (the Class Notice, Substitute Notice, and Reminder
Notice) (see Exs. 2, 4, & 5 to Settlement Agreement at Dkt. No. 29-1), the proposed
Claim Form (see Ex. 1 to Settlement Agreement at Dkt. No. 29-1), the other papers
submitted in connection with the Motion, the parties’ arguments at the Motion hearing,
and the record in the above-captioned action (“Action”). Based on the files, records, and
proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1.

All defined terms contained herein shall have the same meaning as set forth

in the Settlement Agreement executed by the Parties and filed with the Court.

2.

The Court preliminarily approves the Settlement Agreement and the terms

set forth therein, subject to further consideration at the Final Approval Hearing after
members of the Settlement Class have had an opportunity to exclude themselves from the
Settlement or object to the Settlement.
3.

Pursuant to Federal Rule of Civil Procedure 23, the Court preliminarily

certifies, solely for the purpose of effectuating this Settlement, the following Settlement
Class:
All persons in the United States who purchased a Lenovo computer or
tablet, other than a “ThinkPad” branded product, through Lenovo’s website
on or after December 1, 2014 through December 31, 2015.
4.

For purposes of preliminarily approving the Settlement, and without

judging the merits of the Action, the Court finds that the Settlement Class meets the
criteria for certification under Federal Rule of Civil Procedure 23(a) and makes the
following findings. The number of class members is sufficiently numerous that joinder
of all class members is impractical. There are questions of law and fact common to the
class with respect to Lenovo’s alleged false reference pricing scheme, as described in the
Amended Complaint. Plaintiff’s claims are typical of the claims of the Settlement Class.
Finally, Plaintiff and her counsel have fairly and adequately represented the interests of
the Settlement Class.
5.

Similarly, for purposes of preliminary approval, the Court further finds that

the Settlement Class meets the criteria for certification under Federal Rule of Civil
Procedure 23(b)(3).

The aforementioned common issues predominate over any

individualized issues, the resolution and settlement of this Action as a class action is

superior to alternative methods of adjudicating the claims of the members of the
Settlement Class, and manageability of this Action as a class action will not present any
difficulties in the context of this Settlement. The Court has been informed that the parties
are unaware of any other pending litigation concerning the controversy that involves the
class members.
6.

The Court hereby preliminarily appoints Plaintiff’s counsel, Nichols Kaster,

PLLP, the University of Minnesota Law School Consumer Law Clinic, and Michael
Vanselow, Esq., as Class Counsel for the Settlement Class.
7.

The Court preliminarily appoints Plaintiff Katherine Ponce as Class

Representative for the Settlement Class.
8.

The Court makes the following findings on a preliminary basis: The terms

of the Settlement (including the monetary relief, prospective relief, and release of claims)
are within the range of possible approval as a fair, reasonable, and adequate settlement of
this Action. See Fed. R. Civ. P. 23(e). The Settlement Agreement appears to be the
result of arms-length negotiations conducted after Class Counsel had adequately
investigated the claims in the Action and became familiar with the strengths and
weaknesses of those claims. The assistance of a retired United States Magistrate Judge as
a mediator in the settlement process supports a conclusion that the Settlement is noncollusive and was fairly negotiated at arm’s length.

The Court therefore grants

preliminary approval of the Settlement.
9.

The Court finds and concludes that the procedure set forth in the Settlement

Agreement for providing notice of the Settlement to the Settlement Class will provide the

best notice practicable, satisfies the notice requirements of Rule 23, adequately advises
Settlement Class members of their rights under the Settlement, and meets the
requirements of due process. The proposed Class Notice will fairly, plainly, accurately,
and reasonably provide Settlement Class members with all required information,
including (among other things): (1) a summary of the lawsuit; (2) a clear definition of the
Settlement Class; (3) a description of the material terms of the Settlement; (4)
instructions for submitting a claim and the deadline for doing so; (5) a disclosure of the
release of claims should they choose to remain in the Settlement Class; (6) an explanation
of Settlement Class members’ opt-out rights, a date by which Settlement Class Members
must opt out, and information regarding how to do so; (7) instructions as to how to object
to the Settlement and a date by which Settlement Class members must object; (8) the
date, time, and location of the final approval hearing; (9) the internet address for the
Settlement Website and contact information for the Claims Administrator; and (10)
information regarding Class Counsel and the named Class Representative, and the
compensation that they may seek in connection with the Settlement. The proposed plan
for transmitting the Class Notice by email to members of the Settlement Class, along with
Substitute Notice via U.S. Mail where email transmission is unsuccessful, is an
appropriate method, reasonably designed to reach all individuals who would be bound by
the Settlement. In addition, a Reminder Notice will be sent to any Settlement Class
Member to whom the Class Notice was delivered via email, but that Class Member either
(i) did not read the email containing the Class Notice or (ii) read the email containing the
Class Notice but did not submit a claim. Further, Settlement Class Members will be able

to

obtain

additional

information

through

the

Settlement

Website

(www.lenovodiscountpricingsettlement.com) or by contacting the Claims Administrator,
which the Court finds to be a reasonable form of supplemental notice. Accordingly, the
Court approves the form and planned method of distributing notice of the Settlement to
Settlement Class members.
10.

The Court further preliminarily finds that the Claim Form set forth in the

Settlement Agreement is not unduly burdensome for Settlement Class Members to
complete, and that the claims process established by the Settlement is reasonable and
appropriate.
11.

Members of the Settlement Class who wish to exclude themselves from the

Settlement must submit a written statement to the Claims Administrator requesting
exclusion from the Settlement (“Opt-Out Request”), postmarked no later than sixty (60)
days after the Class Notice Date. The Opt-Out Request must contain the name and
address of the Settlement Class Member requesting exclusion, and be personally signed
by the Settlement Class Member who seeks to opt out. Any member of the Settlement
Class who requests exclusion from the Settlement will not be entitled to any Settlement
Payment and will not be bound by this Settlement or have any right to object, appeal or
comment thereon. Members of the Settlement Class who do not submit a valid and
timely Opt-Out Request shall be bound by all terms of the Settlement Agreement,
including the Class Release. No Opt-Out Request may be made on behalf of a group of
Settlement Class Members, and untimely requests to opt out will be deemed invalid and
ineffective.

12.

Any member of the Settlement Class who wishes to object to the Settlement

must mail a written statement of objection to the Claims Administrator postmarked no
later than sixty (60) days after the Class Notice Date. The Notice of Objection must: (a)
provide the name and address of the Settlement Class Member making the objection; (b)
state the basis for the objection; (c) indicate whether the Settlement Class Member
intends to appear at the Final Approval Hearing, either personally or through counsel; and
(d) be personally signed by the Settlement Class Member. Settlement Class Members
who fail to make timely and valid objections in the manner specified above shall be
deemed to have waived any objections to the Settlement and shall be foreclosed from
making any objection (whether by appeal or otherwise) to the Settlement.
13.

The Court will conduct a Final Approval Hearing on August 28, 2017, at

9:30 a.m., to determine whether the Settlement is fair, reasonable and adequate, whether
the notice provided to Settlement Class Members satisfies Rule 23 and due process,
whether any objections to the Settlement should be overruled, the amount of attorneys’
fees and expenses that should be granted to Class Counsel, and whether a class
representative service award to the named Class Representative should be approved (and
in what amount).
14.

Plaintiffs’ motion for attorneys’ fees, expenses, and a class representative

service award shall be filed at least twenty-eight (28) days prior to the Opt-Out Deadline.
15.

The Final Approval Motion shall be filed no later than fourteen (14) days

prior to the date of the Final Approval Hearing. In the Final Approval Motion, Class
Counsel shall address any timely-submitted objections to the Settlement. Class Counsel

shall, with the Final Approval Motion, file copies of any and all submitted objections
with the Court.
16.

Pending the Court’s final determination as to whether the Settlement should

be approved, all members of the Settlement Class and all persons acting on behalf of any
member of the Settlement Class are barred and enjoined from asserting any claim against
the Released Parties which falls within the definition of the Released Claims in the
Settlement Agreement, and shall not pursue any actions against the Released Parties
asserting the Released Claims.
17.

In the event the Settlement is not finally approved, or otherwise does not

become effective in accordance with the terms of the Settlement Agreement, this Order
shall be rendered null and void and shall be vacated, the Action shall continue, and
Plaintiff and Defendant shall revert to their respective positions before entering into the
Settlement Agreement.
IT IS SO ORDERED.
Dated: March 23, 2017

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge