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Toering v. EAN Holdings LLC

United States District Court, W.D. Washington, Seattle

March 22, 2017

BRUCE TOERING, Plaintiff,
v.
EAN HOLDINGS LLC, Defendant.

          ORDER

          HONORABLE JOHN C. COUGHENOUR JUDGE

         This matter comes before the Court on Plaintiff's unopposed motion for preliminary approval of class action settlement and petition for attorney fees (Dkt. No. 64). Having thoroughly considered Plaintiff's briefing and the relevant record, the Court DETERMINES and ORDERS as follows:

A. Counsel have advised the Court that the Parties have agreed, subject to final approval by this Court following notice to the previously-certified Class and a hearing, to settle this Action on the terms and conditions set forth in the Settlement Agreement and Release of Claims (the “Agreement”) (Dkt. No. 65-1).
B. The Court has reviewed the Agreement, as well as the files, records, and proceedings to date in this matter. The terms of the Agreement are hereby incorporated as though fully set forth in this Order. Capitalized terms shall have the meanings attributed to them in the Agreement.
C. Based upon preliminary examination, it appears to the Court that the Agreement is sufficiently fair, reasonable, and adequate to warrant notice to the Class and that the Court should hold a hearing after notice to the Class to determine whether to enter a Settlement Order and Final Judgment in this action, based upon that Agreement.

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

         1. Settlement Administrator. The Court appoints Analytics, LLC as the Settlement Administrator, which shall fulfill the Settlement Administration functions, duties, and responsibilities of the Settlement Administrator as set forth in the Agreement and this Order.

         2. Settlement Hearing. A final approval hearing (the “Settlement Hearing”) shall be held before this Court on August 1, 2017, at 9 a.m., as set forth in the Class Notice (described in Paragraph 3 below), to determine whether the Agreement is fair, reasonable, and adequate and should be given final approval. Papers in support of final approval of the Agreement and Class Counsel's application for an award of attorney fees and costs, and for a Service Award to the Representative Plaintiff (the “Fee and Cost Application”) shall be filed with the Court according to the schedule set forth in Paragraph 9, below. The Court may postpone, adjourn, or continue the Settlement Hearing without further notice to the Class. After the Settlement Hearing, the Court may enter a Settlement Order and Final Judgment in accordance with the Agreement (the “Final Judgment”), which will adjudicate the rights of the Class with respect to the claims being settled.

         3. Class Notice. The Court approves the form and content of the notices substantially in the forms attached as Exhibits C, D1, and D2 to the Agreement. The Settlement Administrator shall comply with the notice requirements of Paragraph 3.03 of the Agreement. In compliance with that Paragraph, beginning no later than thirty (30) days after entry of this Order, the Settlement Administrator shall cause notice to be delivered in the manner set forth in the Agreement to all Class Members who can be identified with reasonable effort. Class Notices sent by U.S. Mail shall be substantially in the forms attached as Exhibits C, D1, and D2 to the Agreement.

         4. Filing of CAFA Notice. Before the Settlement Hearing, EAN shall file with the Court proof of compliance with the notice provisions of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715.

         5. Findings Concerning Class Notice. The Court finds that the Class Notice and the manner of its dissemination described in Paragraph 3 above and Paragraph 3.03 of the Agreement constitutes the best practicable notice under the circumstances and is reasonably calculated, under all the circumstances, to apprise Class Members of the pendency of this action, the terms of the Agreement, and their right to object to or exclude themselves from the Class. The Court finds that the notice is reasonable, that it constitutes due, adequate and sufficient notice to all persons entitled to receive notice, and that it meets the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and any other applicable laws.

         6. Exclusion from Settlement Class. Each Class Member who wishes to exclude himself or herself from the Class and follows the procedures set forth in this Paragraph shall be excluded. Any member of the Class may mail a written request for exclusion, in the form specified in the Class Notice, to the Settlement Administrator at the address set forth in the Class Notice. All such written requests must be postmarked by forty-five (45) days after the Settlement Administrator's initial mailing of the Class Notices. All persons who properly request exclusion from the Class shall not be Settlement Class Members and shall have no rights with respect to, nor be bound by, the Agreement, should it be finally approved. The names of all such excluded individuals shall be attached as an exhibit to any Final Judgment.

         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. Objections ...


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