O'Connor et al v. Jobfox, Inc.
Filing
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ORDER granting pltf's 26 Motion for preliminary approval of proposed class action settlement; Settlement Hearing set for 10/19/2012 at 09:30 AM by Judge Ricardo S Martinez.(RS)
The Honorable Ricardo S. Martinez
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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R.L. O’CONNOR & ASSOCIATES, INC., on
9 behalf of itself and all others similarly situated,
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Plaintiffs,
v.
12 JOBFOX, INC.,
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Defendant.
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Case No. C10-734 RSM
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS
SETTLEMENT, CONDITIONALLY
CERTIFYING SETTLEMENT CLASS,
AND APPROVING FORM AND
MANNER OF NOTICE
Plaintiff’s unopposed Motion for Preliminary Approval of Proposed Class Action
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Settlement has come before this Court. The Court determines and orders as follows:
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1.
Counsel have advised the Court that the parties have agreed, subject to final
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approval by this Court following notice to the Plaintiff Settlement Class (as described in
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Paragraph 5, below) and a hearing, to settle this action upon the terms and conditions set forth in
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the Settlement Agreement (the “Settlement Agreement”), which has been filed with the Court.
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2.
The Court has reviewed the Settlement Agreement, as well as the files, records,
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and proceedings to date in this matter. The terms of the Settlement Agreement are hereby
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incorporated as though fully set forth in this Order, and capitalized terms shall have the meanings
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attributed to them in the Settlement Agreement or as defined herein.
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3.
Based upon preliminary examination, it appears to the Court that the Settlement
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Agreement is fair, reasonable, and adequate, that the Plaintiff Settlement Class should be
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ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 1
1 certified for settlement purposes, subject to Paragraph 11, below, and that a hearing should be
2 held after notice to the Plaintiff Settlement Class to determine whether the Settlement Agreement
3 is fair, reasonable and adequate, and whether a settlement approval order and final judgment
4 should be entered in this action, based upon that Settlement Agreement.
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Based upon the foregoing, IT IS HEREBY ORDERED:
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1.
Preliminary Approval of Proposed Settlement. The Settlement Agreement,
7 including all exhibits thereto, is preliminarily approved as fair, reasonable and adequate. The
8 Court finds that (a) the Settlement Agreement resulted from extensive arm’s-length negotiations;
9 and (b) the Settlement Agreement is sufficient to warrant notice thereof to members of the
10 Plaintiff Settlement Class and the Settlement Hearing described below.
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2.
Class Certification for Settlement Purposes Only. Pursuant to FRCP 23(b)(3),
12 the Court, for settlement purposes only, conditionally certifies a class (the “Class”) consisting of
13 all persons and entities who received an unsolicited advertisement from or on behalf of JobFox.
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(a)
In connection with the certification, the Court makes the following
15 preliminary findings:
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(1)
FRCP 23(a)(1) is satisfied because the Class appears to be so
17 numerous that joinder of all members is impracticable;
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(2)
FRCP 23(a)(2) is satisfied because there appear to be questions of
19 law or fact common to the above-described Class;
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(3)
FRCP 23(a)(3) is satisfied because the claims of the named
21 plaintiffs appear to be typical of the claims being resolved through the proposed Settlement;
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(4)
FRCP 23(a)(4) is satisfied because Class Representative R.L.
23 O’Connor & Associates, Inc., appears to be capable of fairly and adequately protecting the
24 interests of the above-described Class in connection with the proposed Settlement and because
25 Counsel representing the Class, Kim Williams and Rob Williamson of Williamson & Williams,
26 are qualified, competent and capable of prosecuting this action on behalf of the Class. Adequacy
27 of representation therefore is satisfied.
ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 2
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(5)
For purposes of determining whether the Settlement is fair,
2 adequate and reasonable, the Court preliminarily finds the requirements of FRCP 23(b)(3) have
3 been satisfied because common questions of law and fact appear to predominate over questions
4 affecting only individual Class Members and because settlement with the above-described
5 Plaintiff Settlement Class appears to be superior to other available methods for the fair and
6 efficient resolution of the claims of the Class. Accordingly, the Class appears to be sufficiently
7 cohesive to warrant adjudication through settlement by representation.
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(b)
In making the foregoing findings, the Court has exercised its discretion in
9 conditionally certifying a settlement class.
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(c)
Named plaintiff R.L. O’Connor & Associates, Inc. is designated as
11 Representative Plaintiff.
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3.
Class Counsel. The Court appoints Kim Williams and Rob Williamson of
13 Williamson & Williams as counsel for the Class. For purposes of these settlement approval
14 proceedings, the Court finds that these counsel are competent and capable of exercising their
15 responsibilities as Class Counsel.
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4.
Settlement Hearing. A final approval hearing (the “Settlement Hearing”) shall be
17 held before this Court on October 19, 2012, at 9:30 a.m., as set forth in the Notice (described in
18 Paragraph 5 below), to determine whether the Settlement Agreement is fair, reasonable and
19 adequate and should be approved. Papers in support of final approval of the Settlement
20 Agreement shall be filed with the Court no later than September 26, 2012. Papers in support of
21 final approval of Class Counsel’s application for an award of attorneys’ fees, costs and expenses
22 (the “Fee Application”) shall be filed no later than August 17, 2012. The Settlement Hearing
23 may be postponed, adjourned, or continued by order of the Court without further notice to the
24 Class. After the Settlement Hearing, the Court may enter a Settlement Order and Final Judgment
25 in accordance with the Settlement Agreement (the “Final Judgment”) that will adjudicate the
26 rights of the Class Members with respect to the claims being settled.
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ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 3
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5.
Notice. JobFox shall comply with the notice requirements of Paragraph 3.03 of
2 the Settlement Agreement. In compliance with that Paragraph, within thirty (30) days of entry of
3 this Order, JobFox shall arrange for FaxVantage to generate the Class Notice List and for ProFax
4 to fax to the businesses on that list the Notice of Settlement in the form attached as Exhibit B to
5 the Settlement Agreement.
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6.
Findings Concerning Notice. The Court finds that the Notice and the manner of
7 its dissemination described in the previous Paragraph and in Paragraph 3.03 of the Settlement
8 Agreement is the best practicable notice under the circumstances and is reasonably calculated,
9 under all the circumstances, to apprise Class Members of the pendency of this action and their
10 right to object to or exclude themselves from the Class. The Court further finds that the notice is
11 reasonable, that it constitutes due, adequate and sufficient notice to all persons entitled to receive
12 notice, and that it meets the requirements of due process.
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7.
Exclusion from Class. Each Class Member who wishes to exclude himself or
14 herself from the Class and follows the procedures set forth in this Paragraph shall be excluded.
15 Any potential member of the Class may mail a written request for exclusion, in the form
16 specified in the Notice, to JobFox’s counsel at the address set forth in the Notice. All such
17 written requests must be postmarked by September 6, 2012. All persons who properly make
18 requests for exclusion from the Class shall not be Class Members and shall have no rights with
19 respect to, nor be bound by, the Settlement Agreement, should it be approved. The names of all
20 such excluded individuals shall be attached as an exhibit to any Final Judgment.
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8.
Objections and Appearances.
(a)
Written Objections. Any Class Member who has not timely submitted a
23 written request for exclusion from the Class, and thus is a Class Member, may object to the
24 fairness, reasonableness or adequacy of the Agreement, or the Fee Application. Any Class
25 Member who wishes to object to the Settlement, must submit his or her objection in writing to
26 Class Counsel, Attention: Kim Williams, Williamson & Williams, 17253 Agate Street NE,
27 Bainbridge Island, WA 98110, postmarked no later than September 6, 2012. Any Class
ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 4
1 Member who files an objection and wishes it to be considered, must also appear at the Settlement
2 Hearing.
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(b)
Class Members intending to appear at the Settlement Hearing must deliver
4 to Class Counsel no later than September 6, 2012, a notice of intention to appear, setting forth
5 (1) the name and address of the Class Member, (2) the name and number of the case, (3) the
6 objection, including any papers in support thereof, and (4) whether the objecting Class Member
7 wishes to address the Court at the Hearing. Upon receipt of any such notice, Class Counsel shall
8 immediately serve the notice on counsel for JobFox and file the notice with the Court.
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(c)
Any Class Member who does not timely deliver written objection and the
10 notice of intention to appear September 6, 2012, in accordance with the requirements of this
11 Order, shall not be permitted to object or appear at the Settlement Hearing, except for good cause
12 shown, and shall be bound by all proceedings, orders and judgments of the Court. Any objection
13 that is not timely and properly made shall be forever barred.
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(d)
Responses to Objections and Further Papers in Support of Fee Request.
15 Any responses to objections to the Settlement Agreement or the fee request, and any further
16 papers in support of the fee request, shall be filed with the Court no later than ten (10) days
17 before the Settlement Hearing.
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9.
Claims. To be eligible for a distribution pursuant to the Settlement Agreement, a
19 Class Member must submit a claim form postmarked no later September 6, 2012 in accordance
20 with the requirements of Paragraph 4.03 of the Settlement Agreement.
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10.
Dates of Performance. In summary, the dates of performance are as follows:
(a)
JobFox shall complete sending the Notice to potential Class Members on
23 or before July 8, 2012, as provided in Paragraph 3.03 of the Settlement Agreement;
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(b)
Class Members who desire to be excluded shall mail requests for
25 exclusion to JobFox’s counsel postmarked by September 6, 2012;
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(c)
All objections to the Settlement Agreement or Fee Application shall be
27 mailed to Class Counsel postmarked by September 6, 2012;
ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 5
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(d)
Papers in support of final approval of the Settlement Agreement shall be
2 filed with the Court no later than September 26, 2012 and the Fee Application shall be filed with
3 the Court no later than August 17, 2012.
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(e)
All responses to objections shall be filed with the Court no later than ten
5 (10) days before the Settlement Hearing;
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(f)
The Settlement Hearing shall be held October 19, 2012, at 9:30 a.m.; and
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(g)
Class Members who desire to receive a distribution from the Settlement
8 shall do so by submitting a Claim Form with all required information postmarked by September
9 6, 2012.
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11.
Effect of Failure to Approve the Settlement Agreement. In the event the
11 Settlement Agreement is not approved by the Court, or for any reason the parties fail to obtain a
12 Final Judgment as contemplated in the Settlement Agreement, or the Settlement Agreement is
13 terminated pursuant to its terms for any reason, then the following shall apply:
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(a)
All orders and findings entered in connection with the Settlement
15 Agreement shall become null and void and have no further force and effect, shall not be used or
16 referred to for any purposes whatsoever, and shall not be admissible or discoverable in any other
17 proceeding;
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(b)
The conditional certification of the Class pursuant to this Order shall be
19 vacated automatically, and the case shall return to its status as it existed prior to entry of this
20 Order;
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(c)
Nothing contained in this Order is, or may be construed as, any admission
22 or concession by or against the Defendant or Plaintiff on any point of fact or law, including, but
23 not limited to, factual or legal matters relating to any effort to certify this case as a class action;
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(d)
Nothing in this Order or pertaining to the Settlement Agreement shall be
26 used as evidence in any further proceeding in this case, including, but not limited to, motions or
27 proceedings pertaining to treatment of this case as a class action.
ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 6
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12.
Discretion of Counsel. Counsel are hereby authorized to use all reasonable
2 procedures in connection with approval and administration of the Settlement that are not
3 materially inconsistent with this Order or the Settlement Agreement, including without further
4 approval of the Court, making minor changes to the content of the Notice that they jointly deem
5 reasonable or necessary.
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DATED this 11 day of June 2012.
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A
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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ORDER GRANTING PRELIMINARY APPROVAL
OF CLASS SETTLEMENT
(No. C10-734 RSM) — 7
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