ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
THOMAS S. ZILLY, District Judge.
THIS MATTER comes before the Court on the parties' renewed joint motion for preliminary approval of class action settlement, docket no. 45, which is GRANTED as follows. On December 12, 2018, Plaintiff James Jantos, on behalf of himself and the Settlement Class, as defined below, and Defendants DIRECTV, DIRECTV, LLC, and QWEST CORPORATION d/b/a CENTURYLINK QC ("Defendants") (collectively, "the Parties"), executed an Amended Class Action Settlement Agreement and Release of All Claims ("Settlement Agreement" or "Agreement"), docket no. 45-1. For purposes of this Order, all of the definitions for the terms set forth in Section I of the Parties' Settlement Agreement shall apply. Having reviewed the Settlement Agreement and considered the Parties' original and renewed submissions in support of preliminary approval of the Settlement, the Court now FINDS, CONCLUDES, AND ORDERS as follows:
I. CERTIFICATION OF THE SETTLEMENT CLASS
The Agreement settles all Released Claims, as defined therein, that have been or could have been brought in this putative class action. The Agreement provides for a nationwide class settlement of the Released Claims concerning the alleged online accessibility by others of certain information of Plaintiff and other Settlement Class Members found in their CenturyLink bills, which is the subject of this litigation (the "Federal Action") and in a corresponding lawsuit, Case No. 17-2-12346-3, brought by Plaintiff in King County Superior Court for the State of Washington (the "State Action"). The nationwide Settlement Class includes one subclass; namely, the DIRECTV Subclass.
A. The Court hereby finds as follows:
1. CenturyLink has identified 855 of its current and former customers in the United States and its territories as customers whose bills were potentially accessible online by others, at a World Wide Web Uniform Resource Locator ("URL") beginning with "repsweb.centurylink.com," between March 5, 2017, and May 18, 2017. Of those 855 CenturyLink customers, 311 also subscribed to DIRECTV services, information about which was contained in their CenturyLink bills that were accessible online by others, at a URL beginning with "repsweb.centurylink.com," between March 5, 2017, and May 18, 2017. These numbers satisfy the numerosity requirement for class certification.
2. There are questions of law and fact common to all members of the Settlement Class based on the online accessibility of their CenturyLink bills by others, including:
a. Whether each Defendant qualified as a telecommunications or satellite carrier;
b. Whether the information on the bills potentially accessible by others online qualified as customer proprietary network information or personally identifiable information concerning a subscriber;
c. Whether Defendants violated federal law in connection with the online accessibility by others of the Settlement Class Members' CenturyLink bills, some of which included information about DIRECTV services; and
d. Whether class members are entitled to statutory damages for that alleged violation.
3. The Class Representative's claims are typical of the Settlement Class and the DIRECTV Subclass. The Class Representative is a member of the Settlement Class and the DIRECTV Subclass and alleges he has been damaged by the same conduct of Defendants that he alleges has damaged other members of the Settlement Class, including the DIRECTV Subclass. The Class Representative's claims are not in conflict with or antagonistic to the claims of the Settlement Class as a whole or the claims of the DIRECTV Subclass. The claims of the Class Representative and other members of the Settlement Class and DIRECTV Subclass are based upon corresponding theories.
4. The Settlement Class is ascertainable. The unnamed members of the Settlement Class have in common that they each were identified by CenturyLink as someone whose CenturyLink bill(s) were potentially accessible online by others, at a URL beginning with "repsweb.centurylink.com," between March 5, 2017, and May 18, 2017.
5. The Class Representative can fairly, fully, and adequately protect the interests of the Settlement Class and the DIRECTV Subclass. Plaintiff's counsel is experienced in prosecuting complex class-action litigation, and the Class Representative and Class Counsel have no interest that conflicts with, or is adverse to, the interests of the Settlement Class or the DIRECTV Subclass.
6. Questions of law and fact common to all members of the Settlement Class predominate over any questions affecting only individual members for settlement purposes.
7. A nationwide class action with one subclass for settlement purposes is superior to other available methods for the fair and efficient adjudication of this controversy.
B. The Court hereby CERTIFIES the following Settlement Class and DIRECTV Subclass for settlement purposes only:
The "Settlement Class" shall consist of all 855 current and former customers of CenturyLink in the United States and its territories who were identified by CenturyLink as customers whose CenturyLink bills were potentially accessible online by others, at a URL beginning "repsweb.centurylink.com," between March 5, 2017, and May 18, 2017.
The "DIRECTV Subclass" shall consist of Settlement Class Members whose CenturyLink bills were potentially accessible online by others, at a URL beginning "repsweb.centurylink.com," between March 5, 2017, and May 18, 2017, and included information about their DIRECTV services.
C. The Court appoints Plaintiff James Jantos as the Class Representative of the Settlement Class and the DIRECTV Subclass. The Court appoints the law firms of Sirianni Youtz Spoonemore Hamburger, and Myers & Company, PLLC as Class Counsel for the Settlement Class and the DIRECTV Subclass.
D. If for any reason the Settlement Agreement ultimately does not become effective, the parties may request that this Order certifying a nationwide class and subclass be vacated and that the Parties be returned to their respective positions in this lawsuit as those positions existed immediately before the Parties executed the Settlement Agreement. Nothing stated in the Settlement Agreement or in this Order shall be deemed an admission or waiver of any kind by any of the Parties or used as evidence against, or over the objection of, any of the Parties for any purpose in this action or in any other action or proceeding of any kind.
II. PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT
A. Defendants have at all times disputed, and continue to dispute, Plaintiff's allegations in this lawsuit, deny any liability for any of the claims that have or could have been alleged by Plaintiff or other members of the Settlement Class, and maintain that no customers suffered any actual damages as a result of the online availability of their CenturyLink bill.
B. The Settlement requires Defendants to provide specified benefits to each Participating Settlement Class Member, as defined and set forth in the Settlement Agreement.
1. All Settlement Class Members that have not excluded themselves from the Settlement will receive an activation code for one year of three-bureau credit monitoring service and $1 million in identity theft insurance, which has an approximate retail value of $180.
2. All DIRECTV Subclass members that have not excluded themselves from the Settlement will receive, in addition to the ability to activate credit monitoring service and identity theft insurance, $520 in the form of a credit to their CenturyLink bill if they are a Current CenturyLink Customer. Current CenturyLink Customers may seek distribution of any credit balance on their account in accordance with the usual policies and procedures of CenturyLink for refunding credit balances. The initial determination of who qualifies as a Current CenturyLink Customer will be based upon CenturyLink's records as of the date of this Order.
3. All DIRECTV Subclass members that have not excluded themselves from the Settlement and who are no longer Current CenturyLink Customers as of the date that the class benefit is provided to Settlement Class Members will receive, in addition to the ability to activate credit monitoring service and identity theft insurance, $520 payable by check.
C. Defendants have already identified all Settlement Class Members and all DIRECTV Subclass members and, therefore, no Settlement Class Member or DIRECTV Subclass member will be required to prove their eligibility to receive the benefits stated herein.
D. On a preliminary basis, therefore, taking into account (1) the defenses asserted by Defendants, (2) the risks to the Settlement Class Members that Defendants would successfully defend against claims arising out of the facts and legal theories pleaded and asserted in this case, whether litigated by members of the Settlement Class themselves or on their behalf in a class action, (3) the statutory damages provision in the Satellite Home Viewer Extension and Reauthorization Act, the violation of which is alleged by the DIRECTV Subclass only, and the non-availability of statutory damages under the Telecommunications Act, the violation of which is alleged by all Settlement Class Members, and (4) the length of time that would be required for members of the Settlement Class, or any group of members of the Settlement Class, to obtain final judgment through one or more trials and appeals, the Settlement appears fair, reasonable, and adequate. Moreover, the Parties have reached the Settlement after litigating the claims and defenses raised in this case and corresponding State Action, both formal and informal discovery conducted by the Plaintiff, Class Counsel, and Defendants, and an arm's-length negotiation that included a full-day mediation session and subsequent negotiations. Further, according to the Parties, they reached the terms of the Settlement Agreement without agreeing on the reasonable amount of attorneys' fees and litigation expenses to be awarded to Class Counsel, which further suggests that the Settlement is the product of an arm's-length negotiation process. For all these reasons, the Settlement falls within the appropriate range of possible approval and does not appear in any way to be the product of collusion.
E. Accordingly, it is ORDERED and ADJUDGED that the Settlement Agreement and corresponding Settlement are hereby preliminarily approved.
III. APPROVAL OF THE CLASS NOTICE, PLANS FOR ITS DISTRIBUTION TO SETTLEMENT CLASS MEMBERS, AND RESPONSIBILITIES OF THE SETTLEMENT ADMINISTRATOR AND THE PARTIES
A. As provided for in the Settlement Agreement, the Parties have submitted (i) a form of Class Notice, including a Request for Exclusion form, and Frequently Asked Questions and Answers ("FAQ"), to be mailed and emailed to Settlement Class Members; (ii) a plan for distributing the Class Notice; (iii) a plan for establishing a Settlement Website, which will include the FAQ and other information and documents that the Parties jointly agree to post concerning the nature of the case and the status of the Settlement, including a copy of the Class Notice, a copy of the FAQ, information relating to relevant deadlines, a copy of Class Counsel's Fee Application, a complete copy of the Settlement Agreement, and relevant orders of the Court.
B. The proposed plan for distributing and publishing the Class Notice, FAQ, and Settlement Website appears reasonably likely to notify members of the Settlement Class of the Settlement. The proposed plan for publishing the Class Notice on the Settlement Website and for mailing and emailing (if Defendants can reasonably verify an email address) the Class Notice to Settlement Class Members is fair and reasonable. The proposed plan satisfies the notice requirements of Federal Rule of Civil Procedure 23(e) and all applicable federal laws.
C. The Class Notice, FAQ, and Settlement Website will fairly, accurately, and reasonably inform members of the Settlement Class of (1) appropriate information about the nature of this litigation and the essential terms of the Settlement Agreement; (2) appropriate information about how to obtain additional information regarding this matter and the Settlement Agreement; and (3) appropriate information about, and means for, objecting to or excluding themselves from, the Settlement, if they wish to do so. The Class Notice and Settlement Website also fairly and adequately inform members of the Settlement Class that if they do not comply with the specified procedures and deadline for excluding themselves from the Settlement, they will be bound by the Settlement and lose any opportunity to bring any of the Released Claims against the Released Parties.
D. The Court, having reviewed the proposed Class Notice, the proposed FAQ, and the proposed plan for distributing and disseminating each of them, finds and concludes that the proposed plan for distributing and disseminating each of them will provide the best notice practicable under the circumstances and satisfies all requirements of federal and Washington laws and due process. According, the Court hereby ORDERS as follows:
1. The form and content of the proposed Class Notice and FAQ are hereby approved with the following modifications:
a. In Paragraphs 10 and 12 of the proposed Class Notice, and Paragraph 17 of the FAQ, the Parties have included language suggesting that the Final Approval Hearing might occur on a date different from the one set forth in the Class Notice and that the Final Approval Hearing could be rescheduled without notice to the Settlement Class Members. These passages should be deleted because they do not reflect the Court's views. If the Final Approval Hearing must be continued for any reason, the Court will require that notice be sent to all Settlement Class Members.
b. In the last sentence of Paragraph 13 of the proposed Class Notice, the Parties suggest that Settlement Class Members will receive settlement benefits if the Court approves the Settlement, but they have not mentioned the possibility of an appeal or appellate decision affecting the Settlement, and the statement is therefore inaccurate and potentially misleading, and it must be revised.
2. Promptly following the entry of this Order, the Parties and Settlement Administrator shall prepare final versions of (i) the Class Notice, and (ii) FAQ, incorporating into each of them the Court's amendments, the Final Approval Hearing date, and the dates and deadlines set forth in Paragraphs III(D) and IV of this Order.
3. By March 14, 2019, Defendants will file with the Court the Settlement Administrator's declaration of compliance with this plan of notice, including a statement regarding the number of persons to whom the Class Notice was mailed and/or emailed.
4. By May 23, 2019, the Parties shall file any motion for final approval of class action settlement, and shall note such motion for June 7, 2019. The Parties shall file with such motion the Settlement Administrator's declaration summarizing and attaching the list of all Settlement Class Members who submitted Requests for Exclusion and any objections received by the Settlement Administrator from Settlement Class Members. Any response to such motion shall be filed by June 3, 2019. Any reply shall be filed by 8:00 a.m. on June 7, 2019.
5. The Settlement Administrator shall perform the following functions in accordance with the Settlement Agreement, this Order, and subsequent orders that might be entered by this Court in this case:
a. Establish, on or before February 21, 2019, a Settlement Website that enables Settlement Class Members to: (a) Read the Class Notice, FAQ, Class Counsel's Fee Application, Settlement Agreement, relevant pleadings related to the Settlement, and relevant orders of the Court; and (b) complete, review, and submit a Request for Exclusion online.
b. Send or cause to be sent, by first-class United States Mail, on or before February 28, 2019, the Class Notice to every Settlement Class Member. CenturyLink will obtain or cause to be obtained address updates utilizing a National Change of Address database ("Updated Addresses"). The Settlement Administrator will use any Updated Addresses thus obtained. The Settlement Administrator will forward Settlement Notices that are returned by the U.S. Postal Service with a forwarding address.
c. Send or cause to be sent, via electronic mail, on or before February 28, 2019, a copy of the Class Notice to every Settlement Class Member whose email address Defendants can reasonably identify.
d. Process requests for exclusion from the Settlement.
e. Process objections to the Settlement.
f. At least three (3) days before the deadline set forth in Paragraph III(D)(3), provide to Defendants' Counsel a declaration of compliance with paragraphs III(D)(5)(a)-(c).
g. By May 10, 2019, provide to all counsel a list of all Settlement Class Members who submitted Requests for Exclusion, any objections received by the Settlement Administrator from Settlement Class Members, a list of Settlement Class Members to whom notice was not delivered, and a declaration summarizing the exclusions, objections, and notification failures.
IV. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT
A. Final Approval Hearing
The Court hereby schedules for June 7, 2019, at 11:00 a.m., a Final Approval Hearing at the United States Courthouse, 700 Stewart Street, Courtroom 15206, Seattle Washington, 98101, to determine whether the Settlement should receive final approval. At that time, the Court will also consider any motion that might be made by Class Counsel for an award of attorneys' fees and reimbursement of litigation expenses, and any request for a service award to Plaintiff, all in accordance with the terms of the Settlement Agreement.
B. Deadline for Members of the Settlement Class to Request Exclusion from the Settlement
Members of the Settlement Class who wish to be excluded from the Settlement must mail, email, or submit online their requests for exclusion no later than April 30, 2019. Any exclusion that is sent via first-class United States Mail must be postmarked by April 30, 2019.
C. Procedure for Objecting to Matters to Be Heard at the Final Approval Hearing
Any objections to certification of the Settlement Class, the designation of Plaintiff as class representative, the service award requested by Plaintiff, the appointment of Class Counsel, the Settlement, the Settlement Agreement, or the amount of fees and expenses that Class Counsel might request at the Final Approval Hearing, may be made in writing and submitted to the Settlement Administrator by April 30, 2019.
Any member of the Settlement Class or his or her counsel may appear at the Final Approval Hearing and present an Objection to the certification of the Settlement Class, the designation of the Class Representative, the appointment of Class Counsel, the Settlement, the Settlement Agreement, or the amount of attorney's fees, expenses, and/or service awards requested, and/or present any other remarks, without submitting written objections or providing advance notice of an intent to appear or request to be heard at the Final Approval Hearing. The Court will consider all written and oral Objections submitted by any Settlement Class Members.
D. Deadline for Filing Proposed Final Approval Order
In conjunction with any motion for final approval of class action settlement, see Paragraph III(D)(4), the parties shall file a proposed Final Approval Order, and shall attach a Word compatible file containing such proposed Final Approval Order to an email sent to ZillyOrders@wawd.uscourts.gov.
V. CLASS COUNSEL'S APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS
On or before March 14, 2019, Class Counsel shall file any motion for attorneys' fees and reimbursement of litigation expenses, and shall note such motion for June 7, 2019. Any response shall be filed by June 3, 2019, and any reply shall be filed by 8:00 a.m. on June 7, 2019.
VI. ABSENCE OF ANY ADMISSION; DENIAL OF ANY WRONGFUL ACT OR OMISSION AND OF ANY LIABILITY
The Parties entered into the Settlement Agreement solely for the purpose of compromising and settling disputed claims. Defendants have at all times denied, and continue to deny, any wrongful act or omission alleged by Plaintiff in the State and Federal Actions, and any liability of any sort to Plaintiff or any member of the Settlement Class. Nothing contained in the Settlement Agreement, in the documents relating to the Settlement Agreement, or in this Order shall be construed, deemed, or offered as an admission by the Parties, or by any member of the Settlement Class, for any purpose in any judicial or administrative action or proceeding, whether in law or in equity.
IT IS SO ORDERED.
