Toering v. EAN Holdings LLC

Filing 66

ORDER by U.S. District Judge John C Coughenour granting preliminary approval of class action settlement and attorney fees 64 . The Court appoints Analytics, LLC as the Settlement Administrator. Settlement Hearing set for 8/1/2017 at 09:00 AM before U.S. District Judge John C Coughenour. (PM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BRUCE TOERING,

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Plaintiff,

ORDER

v.

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CASE NO. C15-2016-JCC

EAN HOLDINGS LLC,

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Defendant.

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This matter comes before the Court on Plaintiff’s unopposed motion for preliminary

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approval of class action settlement and petition for attorney fees (Dkt. No. 64). Having

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thoroughly considered Plaintiff’s briefing and the relevant record, the Court DETERMINES and

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ORDERS as follows:

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A.

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 previously-certified Class and a hearing, to settle

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this Action on the terms and conditions set forth in the Settlement Agreement and Release of

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Claims (the “Agreement”) (Dkt. No. 65-1).

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B.

The Court has reviewed the Agreement, as well as the files, records, and

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proceedings to date in this matter. The terms of the Agreement are hereby incorporated as though

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fully set forth in this Order. Capitalized terms shall have the meanings attributed to them in the

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Agreement.

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C.

Based upon preliminary examination, it appears to the Court that the Agreement

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is sufficiently fair, reasonable, and adequate to warrant notice to the Class and that the Court

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should hold a hearing after notice to the Class to determine whether to enter a Settlement Order

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and Final Judgment in this action, based upon that Agreement.

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Based upon the foregoing, the Court FINDS and CONCLUDES as follows:

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1.

Settlement Administrator. The Court appoints Analytics, LLC as the Settlement

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Administrator, which shall fulfill the Settlement Administration functions, duties, and

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responsibilities of the Settlement Administrator as set forth in the Agreement and this Order.

2.

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Settlement Hearing. A final approval hearing (the “Settlement Hearing”) shall be

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held before this Court on August 1, 2017, at 9 a.m., as set forth in the Class Notice (described in

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Paragraph 3 below), to determine whether the Agreement is fair, reasonable, and adequate and

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should be given final approval. Papers in support of final approval of the Agreement and Class

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Counsel’s application for an award of attorney fees and costs, and for a Service Award to the

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Representative Plaintiff (the “Fee and Cost Application”) shall be filed with the Court according

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to the schedule set forth in Paragraph 9, below. The Court may postpone, adjourn, or continue

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the Settlement Hearing without further notice to the Class. After the Settlement Hearing, the

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Court may enter a Settlement Order and Final Judgment in accordance with the Agreement (the

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“Final Judgment”), which will adjudicate the rights of the Class with respect to the claims being

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settled.

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3.

Class Notice. The Court approves the form and content of the notices

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substantially in the forms attached as Exhibits C, D1, and D2 to the Agreement. The Settlement

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Administrator shall comply with the notice requirements of Paragraph 3.03 of the Agreement. In

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compliance with that Paragraph, beginning no later than thirty (30) days after entry of this Order,

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the Settlement Administrator shall cause notice to be delivered in the manner set forth in the

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Agreement to all Class Members who can be identified with reasonable effort. Class Notices sent

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ORDER
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by U.S. Mail shall be substantially in the forms attached as Exhibits C, D1, and D2 to the

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Agreement.

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4.

Filing of CAFA Notice. Before the Settlement Hearing, EAN shall file with the

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Court proof of compliance with the notice provisions of the Class Action Fairness Act of 2005

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(“CAFA”), 28 U.S.C. § 1715.

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5.

Findings Concerning Class Notice. The Court finds that the Class Notice and the

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manner of its dissemination described in Paragraph 3 above and Paragraph 3.03 of the

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Agreement constitutes the best practicable notice under the circumstances and is reasonably

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calculated, under all the circumstances, to apprise Class Members of the pendency of this action,

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the terms of the Agreement, and their right to object to or exclude themselves from the Class.

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The Court finds that the notice is reasonable, that it constitutes due, adequate and sufficient

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notice to all persons entitled to receive notice, and that it meets the requirements of due process,

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Rule 23 of the Federal Rules of Civil Procedure, and any other applicable laws.

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6.

Exclusion from Settlement Class. Each Class Member who wishes to exclude

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himself or herself from the Class and follows the procedures set forth in this Paragraph shall be

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excluded. Any member of the Class may mail a written request for exclusion, in the form

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specified in the Class Notice, to the Settlement Administrator at the address set forth in the Class

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Notice. All such written requests must be postmarked by forty-five (45) days after the Settlement

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Administrator’s initial mailing of the Class Notices. All persons who properly request exclusion

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from the Class shall not be Settlement Class Members and shall have no rights with respect to,

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nor be bound by, the Agreement, should it be finally approved. The names of all such excluded

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individuals shall be attached as an exhibit to any Final Judgment.

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7.

Costs of Class Notice and Claims Processing. EAN shall bear all costs of notice

to the Class of the pendency and settlement of the Action.

8.

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Objections and Appearances.
(a)

ORDER
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Written Objections. Any Class Member who has not timely submitted a

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written request for exclusion from the Class, and thus is a Settlement Class Member, may object

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to the fairness, reasonableness, or adequacy of the Agreement, or the Fee and Expense

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Application. Any Settlement Class Member who wishes to object to the Settlement, must submit

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his or her objection in writing to Class Counsel, Attn: EAN Litigation, Adam Berger, Schroeter

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Goldmark & Bender, 810 3rd Ave., Suite 500, Seattle, WA 98104, postmarked no later than

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forty-five (45) days after the Settlement Administrator’s initial mailing of the Class Notices.

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Class Counsel will file copies with the Court via ECF. Objecting Settlement Class Members

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must include their name and address, the name and number of the case, and a statement of the

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reasons why they (i) believe the Court should find that the proposed settlement is not in the best

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interests of the Class, or (ii) object to the Fee and Expense Application. Any objection not timely

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made in this manner shall be waived and forever barred.

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(b)

Appearance at Settlement Hearing. Any objecting Settlement Class

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Member who wishes to address the Court at the Settlement Hearing must indicate his or her

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intent to do so in writing to Class Counsel at the same time that the Settlement Class Member

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submits the objection and must identify any witnesses and documents that he or she intends to

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use or submit at the Settlement Hearing. Class Counsel will inform the Court and EAN’s counsel

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accordingly. Any Settlement Class Member who does not timely deliver a written objection and

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notice of intention to appear by forty-five (45) days after the Settlement Administrator’s initial

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mailing of the Class Notice, in accordance with the requirements of this Order, shall not be

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permitted to object or appear at the Settlement Hearing, except for good cause shown, and shall

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be bound by all proceedings, orders and judgments of the Court.

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(c)

Fees and Cost Application. Class Counsel shall file their Fee and Cost

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Application, together with all supporting documentation, by no later than thirty (30) days from

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entry of this Order, sufficiently in advance of the expiration of the objection period that any

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Settlement Class Member will have sufficient information to decide whether to object and, if

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applicable, to make an informed objection.

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(d)

Motion for Final Approval and Responses to Objections. The Parties shall

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jointly file with the Court their motion for final approval of the Settlement and the Parties’

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responses to objections to the Agreement or the Fee and Cost Application, together with all

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supporting documentation, such that the motion is timely noted for August 1, 2017.

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9.

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(a)

The Settlement Administrator shall send the Class Notice to Class

Members on or before April 14, 2017, i.e., within thirty (30) days after entry of this Order;

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Dates of Performance. In summary, the dates of performance are as follows:

(b)

Representative Class Counsel’s Fee and Expense Application, and all

supporting materials, shall be filed no later than April 14, 2017, i.e., within thirty (30) days after

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entry of this Order;

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(c)

Class Members who desire to be excluded shall mail requests for

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exclusion postmarked within forty-five (45) days from the date of the Settlement Administrator’s

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initial mailing of the Class Notices.

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(d)

All objections to the Agreement or the Fee and Cost Application shall be

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filed and served by within forty-five (45) days from the date of the Settlement Administrator’s

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initial mailing of the Class Notices;

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(e)

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and all supporting materials, shall be filed by July 28, 2017;

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Representative Plaintiff’s final approval motion, responses to objections,

(f)

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The Settlement Hearing shall be held on August 1, 2017, at 9 a.m.; and

Effect of Failure to Approve the Agreement. In the event the Court does not

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finally approve the Agreement, or for any reason the Parties fail to obtain a Final Judgment as

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contemplated in the Agreement, or the Agreement is terminated pursuant to its terms for any

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reason, then the following shall apply:

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(a)

All orders and findings entered in connection with the Agreement shall

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become null and void and have no further force and effect, shall not be used or referred to for

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any purposes whatsoever, and shall not be admissible or discoverable in any other proceeding;

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(b)

Nothing contained in this Order is, or may be construed as, any admission

or concession by or against EAN, Plaintiff, or the Class on any point of fact or law; and

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(c)

Nothing in this Order or pertaining to the Agreement shall be used as

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evidence in any further proceeding in this case, including, but not limited to, motions or

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proceedings pertaining to treatment of this case as a class action.

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11.

Discretion of Counsel. Counsel are hereby authorized to take all reasonable steps

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in connection with approval and administration of the Settlement not materially inconsistent with

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this Order or the Agreement, including, without further approval of the Court, making minor

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changes to the content of the Class Notice that they jointly deem reasonable or necessary.

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12.

Stay of Proceedings Pending Approval of the Settlement. All proceedings before

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the Court are stayed pending final approval of the settlement, except as may be necessary to

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implement the settlement or comply with the terms of the Agreement.

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13.

Injunction Against Asserting Released Claims Pending Settlement Approval.

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Pending final determination of whether the settlement should be approved, Representative

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Plaintiff, all Class Members, and any person or entity allegedly acting on behalf of Class

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Members, either directly, representatively or in any other capacity, are preliminarily enjoined

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from commencing or prosecuting against the parties to be released in the Releases in Paragraphs

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5.01 and 5.02 of the Agreement any action or proceeding in any court or tribunal asserting any of

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the claims to be released in that paragraph, provided, however, that this injunction shall not apply

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to individual claims of any Class Members who timely exclude themselves in a manner that

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complies with this Order. This injunction is necessary to protect and effectuate the settlement,

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this Order, and the Court’s flexibility and authority to effectuate this settlement and to enter

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judgment when appropriate, and is ordered in aid of the Court’s jurisdiction and to protect its

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judgments pursuant to 28 U.S.C. § 1651(a).

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14.

Reservation of Rights and Retention of Jurisdiction. The Court reserves the right

to adjourn or continue the date of the Settlement Hearing without further notice to Class

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Members, and retains jurisdiction to consider all further applications arising out of or connected

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with the settlement. The Court may approve or modify the settlement without further notice to

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Settlement Class Members.

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DATED this 22nd day of March, 2017.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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