United States District Court, E.D. Michigan, Southern Division
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
M. LAWSON, UNITED STATES DISTRICT JUDGE
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.
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.
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'
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.
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.
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
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.
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.
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.
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.
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.
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
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.
parties now anticipate that the class would consist of
approximately 164, 509 Michigan residents.
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)).
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)).
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.
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
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.
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.
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)).
“These requirements are scrutinized more closely, not
less, in cases involving a settlement class, ...