ELIZABETH D. LAPORTE, Magistrate Judge.
WHEREAS, the Plaintiffs moved, pursuant to Federal Rule of Civil Procedure 23(e), for an order (the "Preliminary Approval Order") to (i) certify a Settlement Class; (ii) preliminarily approve a Settlement, in accordance with the Amended Stipulation and Agreement of Settlement dated August 13, 2013 ("Amended Settlement Agreement"); (iii) approve notice for dissemination to the members of the Settlement Class; and (iv) set a schedule for determination of whether the proposed Settlement should be finally approved.
WHEREAS, this Preliminary Approval Order incorporates by reference the definitions in the Amended Settlement Agreement, and all capitalized terms contained in this Preliminary Approval Order shall have the same meanings as set forth in the Amended Settlement Agreement (in addition to those capitalized terms defined in this order); and
WHEREAS, the Court, having considered the papers filed in support of the Amended Agreed Motion for Preliminary Approval of Settlement, including without limitation the Amended Settlement Agreement, and having reviewed the evidence, including without limitation the declarations submitted, and having heard the arguments at the preliminary approval hearing:
NOW THEREFORE, IT IS HEREBY ORDERED:
1. The Court has subject matter jurisdiction over this action, including all matters necessary to effectuate the Settlement, pursuant to 28 U.S.C. §1332(d).
2. The Court preliminarily certifies, for settlement purposes only, the following Settlement Class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, as defined in this paragraph 3 (a)-(e).
a) The proposed Settlement Class means all consumers who are residents of the United States and who own homes or other residential dwellings in which at least one glass-fronted fireplace, manufactured and distributed by Miles Industries, Ltd. of North Vancouver, Canada between January 1, 2007, through December 31, 2012, was installed from January 1, 2007, through the date of the Preliminary Approval Order of Class Action Settlement. The Settlement Class will close as of the date of the Order of Preliminary Approval.
b) Excluded from this Class are: (1) the judge to whom this case is assigned and any member of the judge's immediate family; (2) the lawyers in this case and any member of their immediate families; (3) the Mediator (the Honorable Edward Infante) and any member of his immediate family; and (4) anyone who suffered personal injury related to the Defendant's fireplaces.
3. The Court appoints the following Plaintiffs to serve as representatives of the Settlement Class ("Class Representative"): Charlene Rotandi and Edhi Rotandi. The Court appoints the following lawyers to serve as counsel for the Settlement Class ("Class Counsel"): Kirk Wolden, Michael Ram, Jerome Tapley and Hirlye "Ryan" Lutz.
4. This Court further preliminary finds and concludes that:
a) joinder of all members of the Settlement Class in a single proceeding would be impracticable, if not impossible, because of their number and dispersion;
b) no conflict exists between the Class Representatives or Class Counsel and the Settlement Class;
c) the Class Representatives and Class Counsel are adequate representatives for the Settlement Class;
d) the Class Representatives' claims are typical of the Settlement Class;
e) the Class Representatives are members of the Settlement Class and have claims representative of the claims and defenses presented in this case;
f) commonality is satisfied in this case for settlement purposes as a number of common issues exist among members of the Settlement Class;
g) common issues predominate over individual issues in the context of settlement; and
h) certification of an agreed-upon Settlement Class is a superior mechanism for resolving these claims.
5. Subject to further consideration at the Settlement Approval Hearing described below, the Court preliminarily approves the Amended Settlement Agreement. The Parties entered into the Amended Settlement Agreement in good faith following arms-length negotiation by Counsel, including mediation sessions with the Honorable Edward Infante, retired Chief Magistrate Judge of the U.S. District Court, Northern District of California.
6. The Court appoints Matthew E. Pohl as the Notice Expert for the Settlement Class, who will administer the Notice Plan in accordance with the Amended Settlement Agreement.
7. The Court finds that the proposed long-form and summary notices attached as Exhibits "A-1" and "A-2 to this Preliminary Approval Order ("Notices")", and the Notice and Class Administration Plans attached respectively as Exhibits "A" and "B" to this Preliminary Approval Order fully satisfy Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process, and provide for the best notice practicable under the circumstances. The Court further gives its approval to the form, content and disseminating procedures for the Notices to the Settlement Class as set forth in the Notice Plan, which shall include the following, without limitation:
a) Not later than thirty days following entry of this Preliminary Approval
Order or as soon thereafter as practicable, the Notice Expert shall cause a copy of the long-form notice, substantially in the form annexed as Exhibit "A-1" to be delivered by first class mail to each person Defendant has identified on the list transmitted to Plaintiffs' Counsel on or before July 15, 2013;
b) Within fourteen days of the mailing of direct notice, the Notice Expert shall cause a copy of the summary notice, substantially in the form annexed as Exhibit "A-2" to this Preliminary Approval Order, to be published through paid media via publications targeting geographic regions where there is a significant concentration of Class-related fireplaces sold to unknown Class Members as detailed in the Notice Plan;
d) The Notices will contain information directing the readers to a website and toll-free telephone line that will provide information concerning the Settlement, including, if desired, copies of the Notices.
8. At least seventy-five (75) days before the Settlement Approval Hearing, Class Counsel will file with the Court any and all applications for the award of attorneys' fees and expenses.
9. At least seven (7) days before the Settlement Approval Hearing, the Notice Expert will file proof with the Court (by an appropriate declaration) providing the required notification to the Settlement Class.
10. Defendant has properly and timely notified the appropriate state and federal officials of the Settlement, as required by the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1715. The Court has reviewed the Defendant's CAFA notices and accompanying materials, and finds that they complied with the applicable requirements of CAFA. Defendant also provided a copy of these submissions to Class Counsel.
11. The Court appoints Class Action Administration, Inc., as the Settlement Administrator, who will administer the Claims Administration Plan in accordance with the Amended Settlement Agreement.
12. Any member of the Settlement Class shall have the right to opt out of the Settlement Class by sending a written request for exclusion from the Settlement Class to the address listed in the long form notice, postmarked no later than forty-five (45) days prior to the Settlement Approval Hearing. To be effective, the request for exclusion must (a) include the Person's statement indicating the desire to be excluded from the Settlement in Rotandi v. Miles Industries Ltd. and (b) fully comply with the requirements for exclusion set forth in the Claims Administration Plan. Within fourteen (14) days after the Court-ordered deadline for timely and properly opting out from the Settlement Class, but in no event later than seven (7) calendar days before the Settlement Approval Hearing, the Settlement Administrator shall provide to the Court and Parties' Counsel the names and addresses of the Persons who timely and properly opted out of the Settlement Class, as well as the total number of such Persons.
13. The Court will exclude from the Settlement Class those who timely and validly request exclusion in substantial compliance with the requirements of this Preliminary Approval Order and the Claims Administration Plan. If a timely and valid request for exclusion is made by a member of the Settlement Class, then that member will not be entitled to participate in the Settlement and cannot object to the Settlement. In the event the Settlement is finally approved, all members of the Settlement Class (whether or not he/she or it submits a valid Claim Form) who have not validly excluded themselves from the Settlement Class shall be bound by all determinations and judgments concerning the Amended Settlement Agreement and the Settlement contemplated thereby.
14. A Settlement Approval Hearing shall be held before this Court on December 10, 2013 at 9:00 a m. at 450 Golden Gate Avenue, Courtroom E, 15th Floor to determine whether the Settlement on the terms and conditions provided for in the Amended Settlement Agreement is fair, reasonable and adequate to the Settlement Class and should be finally approved by the Court; whether the Judgment and Order of Dismissal as provided for by terms of the Amended Settlement Agreement should be entered, and to determine the amount of fees and expenses that should be awarded to Class Counsel. The date and time of the Settlement Approval Hearing shall be set forth in the Notices attached hereto as Exhibits "A1"and "A2". A motion for Final Approval of Settlement shall be filed no later than November 5, 2013.
15. Any member of the Settlement Class may object to the Settlement if he/she or it has any reason why the Settlement should not be approved as fair, reasonable and adequate, or why the Judgment and Order of Dismissal should not be entered. Any member of the Settlement Class may also object if he/she or it has any reason why attorneys' fees and expenses should not be awarded to Class Counsel. In either event, however, unless otherwise ordered by the Court, any objector must, at least forty-five (45) days prior to the Settlement Approval Hearing, (a) prepare and file a written objection, including the basis therefore, and any supporting written or documentary materials and (b) fully comply with the requirements for objections set forth in the Claims Administration Plan. All of the required information and materials must be filed (by hand or first class mail) with the Clerk of the United States District Court of the Northern District of California, San Francisco Division, 450 Golden Gate Avenue, 16th Floor, San Francisco, California 94102 and served (by first class mail) on the Settlement Administrator of the Miles Industries Settlement at Miles Fireplace Settlement Administrator, c/o Class Action Administration, Inc., P.O. Box 6878, Broomfield, CO 80021. The Settlement Administrator shall promptly, and in any event within two business days after receipt, provide copies of such written objections and materials to the Parties' Counsel. Any member of the Settlement Class who does not make his, her or its objection in the manner provided in this Preliminary Approval Order and the Claims Administration Plan shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, reasonableness or adequacy of the Settlement as incorporated in the Amended Settlement Agreement and to the award of attorneys' fees and expenses to Class Counsel, but shall otherwise be bound by the Judgment and Order of Dismissal to be entered and the releases to be given.
16. If a member of the Settlement Class wishes to appear at the Settlement Approval Hearing either in person or through counsel, the Person must file with the Clerk of the Court and serve upon the Settlement Administrator (at the addresses in the paragraph above) a Notice of Intention to Appear, postmarked no later than fourteen (14) days before the Settlement Approval Hearing. The Notice of Intention to Appear must include copies of any papers, exhibits, or other evidence or information the member of the Settlement Class and/or his or her counsel will present to the Court at the Settlement Approval Hearing, along with all other information required by the Claims Administration Plan for Notices of Intention to Appear. Any member of the Settlement Class and/or his or her attorney who does not file a timely Notice of Intention to Appear in accordance with the Claims Administration Plan may be foreclosed from speaking at the Settlement Approval Hearing.
IT IS SO ORDERED.
A settlement has been reached in a class action lawsuit involving Valor glass front fireplaces manufactured and distributed by Miles Industries, Ltd. The lawsuit claims that Miles Industries, Ltd. ("Defendant") failed to adequately warn customers that the sealed glass front gas fireplace surfaces can reach very high temperatures that may cause serious burns to the skin. Defendant denies that it did not warn consumers and it denies it did anything wrong.
Those included in the settlement class will receive a barrier screen that significantly reduces the risk of burn injuries.
Your legal rights are affected whether you act or don't act. Read this notice carefully.
• These rights and options —
• The Court in charge of this case still has to decide whether to approve the Settlement. Barrier screens will be provided if the Court approves the settlement and after any appeals are resolved. Please be patient.
1. Why is there notice? 3
2. What is this lawsuit about? 3
3. Why is this a class action? 3
4. Why is there a settlement? 3
5. How do I know if I'm part of the settlement? 4
6. Where can I find the brand, manufacturer and serial number of my fireplace? 4
7. I'm still not sure if my fireplace makes me a member of the settlement class. 4
8. What does the settlement provide? 4
9. How do I file a claim for a barrier screen? 4
10. What am I giving up to stay in the settlement class? 4
11. How do I get out of the settlement? 5
12. If I don't exclude myself, can I sue the Defendant for the same thing later? 5
13. If I exclude myself from the settlement, can I still get benefits? 5
14. Do I have a lawyer in this case? 5
15. How will the lawyers be paid? 6
16. How do I tell the Court that I don't like the settlement? 6
17. What's the difference between objecting and excluding? 6
18. When and where will the Court decide whether to approve the settlement? 7
19. Do I have to come to the hearing? 7
20. May I speak at the hearing? 7
21. What happens if I do nothing at all? 7
22. How do I get more information? 8
23. Additional warning information. 8
You have a right to know about the proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the settlement.
The case was filed in the United States District Court for the Northern District of California. It is called
The lawsuit claims that the Defendant failed to make known that the sealed glass front of gas fireplaces can be dangerous and cause serious burns from contact with the glass. Plaintiffs claim that the Defendant concealed the fact that the sealed glass front surface of certain gas fireplaces can reach temperatures high enough to cause third degree burns to the skin. The Defendant denies that consumers are unaware of the risks associated with gas fireplaces and denies that it did anything wrong. The parties have agreed to resolve this case by settlement to avoid the time, expense and uncertainty associated with resolving the case by trial to a jury.
In a class action, one or more people, called class representatives, (in this case, Edhi Rotandi and Charlene Rotandi) sue on behalf of people who have similar claims. All of the people who have claims similar to the class representatives are a class or class members, except for those who exclude themselves from the class.
Both sides agree that the Defendant is not admitting that it did anything wrong, but both sides want to avoid the cost of further litigation. The Court has not decided in favor of the Plaintiffs or Defendant. The attorneys have investigated the facts and applicable law regarding the class representatives' claims and the Defendant's defenses. The parties have engaged in lengthy negotiations in reaching the settlement. Class representatives and their attorneys think the settlement is best for everyone who is affected.
To see if you are entitled to benefits from the settlement, you first have to determine if you are a member of the settlement class.
You are a member of the settlement class if you are an individual who:
You are
If you have a Valor brand fireplace, you can find the brand, manufacturer and serial number information from the Manufacturer's Rating Plate, which is attached with a wire or chain to the fireplace and is stored within the compartment adjacent to the gas control valve or mounted behind a hinged door of the trim.
If you are still not sure whether your fireplace makes you a member of the settlement class, you can call
The settlement provides class members the opportunity to receive a free barrier screen for the Valor brand fireplace that is installed in your home. The barrier screen is intended to reduce the risk of burns to the skin by preventing direct contact with the glass front.
To receive the barrier screen available under the settlement, you must fill out and submit a claim form. A claim form is available on the settlement website,
Members of the settlement class have until
No barrier screens will be provided to any class members until after the Court approves the settlement and any appeals are resolved (see Question 18.) It is always uncertain how any appeals may be resolved and how long it will take. Please be patient.
Unless you exclude yourself from this settlement, you can't sue the Defendant, continue to sue, or be part of any other lawsuit against the Defendant about the legal issues in this case. The issues in this case include all claims that could be asserted by a settlement class member relating to temperature of the glass surface of your fireplace, other than physical injury. Not excluding yourself from the settlement also means that all the decisions by the Court will bind you, regardless of whether you submit a claim form and regardless of whether any claim form you submit is ultimately approved. The "released claims" — the claims you are giving up — are described more fully in the settlement agreement which describes exactly the legal claims that you give up if you do not exclude yourself from the settlement. The settlement agreement is available at www.MilesFireplaceSettlement.com.
If you don't want benefits from the settlement, and you want to keep the right to sue or continue to sue the Defendant on your own about the legal issues in this case, then you must take steps to get out. This is called excluding yourself—or is sometimes referred to as opting out of the settlement class.
To exclude yourself from the settlement, you must send a letter that includes the following:
To find the brand, manufacturer and serial number of your fireplace, please follow the directions in Question 6 above.
If more than one person owns your home, then each of the owners must provide the information noted above, or you must state that you are authorized to act on behalf of all owners of the home with respect to the settlement. You must mail your exclusion request, postmarked no later than
No. Unless you exclude yourself, you give up the right to sue the Defendant for the claims that the settlement resolves. You give up these rights even if you don't submit a claim form and receive the benefits of the settlement. You must exclude yourself from this settlement class in order to try and maintain your own lawsuit.
No. You will not get any benefits if you exclude yourself from the settlement. If you exclude yourself from the settlement, do not send in a claim form asking for benefits.
The Court has appointed Michael F. Ram, Kirk Wolden, F. Jerome Tapley, and Hirlye R. "Ryan" Lutz in this case. Class counsel will represent you and other members of the settlement class. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
The Court will decide how much class counsel will be paid. Class counsel has not submitted a request for attorneys' fees or litigation expenses at this time; however, when class counsel seeks fees and costs they will not ask for more than $1,890,000 in fees and expenses. An award up to that amount will be paid by the Defendant.
The application for attorneys' fees will be filed with the Court by
You can tell the Court that you don't agree with the settlement or some part of it.
If you are a member of the settlement class, you can object to any part of the settlement, the settlement as a whole, and/or class counsel's request for fees and expenses. To object, you must submit a letter that includes the following:
To find the brand, manufacturer and serial number of your fireplace, please follow the directions in Question 6 above.
If more than one person owns your home, then each owner must provide the information noted above, or you must state that you are authorized to act on behalf of all of the owners of the home with respect to the settlement. You must submit your objection so it is
Objecting is simply telling the Court that you don't like something about the settlement. You can object to the settlement only if you do not exclude yourself from the settlement. Excluding yourself from the settlement is telling the Court that you do not want to be a part of the settlement. If you exclude yourself from the settlement, you have no basis to object to the settlement because it no longer affects you.
The Court will hold a hearing to decide whether to approve the settlement and any requests for fees and expenses. You may attend and you may ask to speak, but do not have to do so.
The Court will hold the settlement approval hearing at ________ AM/PM on ____________, 2013 at the United States District Court for the Northern District of California, San Francisco Division, located at 450 Golden Gate Avenue, San Francisco, CA 94102, in Courtroom E, 15th Floor. The hearing may be moved to a different date or time without additional notice. The latest information will be posted on the website (www.MilesFireplaceSettlement.com). At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. The Court will also consider any request by class counsel for attorneys' fees and expenses. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take.
No. Class counsel will answer questions the Court may have. But you may come at your own expense. If you send an objection, you do not have to come to court to talk about it. As long as you submit your written objection on time, to the proper address, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.
You may ask the Court for permission to speak at the settlement approval hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your notice of intention to appear must include the following:
You must submit your notice of intention to appear so it is received no later than ______________, 2013 to the
If you do nothing, you will not get a barrier screen from the settlement. Unless you exclude yourself, you will not be able to start a lawsuit, continue with the lawsuit, or be part of any other lawsuit against the Defendant about the legal issues in this case, ever again.
The notice summarizes the proposed settlement. More details are in the settlement agreement, which you can view at www.MilesFireplaceSettlement.com. You may also contact the Settlement Administrator appointed by the Court:
Please take the time to read the warning below and share it with everyone in your household, and anyone who may operate your fireplace, and explain it to children. This warning is important for you to review regardless of whether you decide to submit a claim form, object, exclude yourself, or do nothing at all. You should be aware that the surfaces on all glass front fireplaces reach extremely high temperatures and can cause severe burns if touched. These surfaces remain extremely hot even after the gas is turned off.
