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Friske v. Bonnier Corp.

United States District Court, E.D. Michigan, Southern Division

June 25, 2019




         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.

         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 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 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 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 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 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)). ‚ÄúThese requirements are scrutinized more closely, not less, in cases involving a settlement class, ...

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