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Pine v. A Place For Mom, Inc.

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

December 5, 2019

KEVIN PINE, individually and on behalf of all others similarly situated, Plaintiff,
v.
A PLACE FOR MOM, INC., Defendant.

          ORDER

          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on plaintiff's unopposed motion for preliminary approval of class action settlement, docket no. 139. A previous motion, docket no. 134, was denied without prejudice. See Minute Order (docket no. 135). Since then, the parties have engaged in further negotiations in an effort to address the concerns raised by the Court. The nature of their proposed settlement, however, has not changed. The parties still seek approval of a plan to resolve the class claims through defendant's payment in three installments of $6, 000, 000, and the distribution of the net proceeds (i.e., the balance remaining after deducting attorney's fees, litigation expenses, administration costs, and incentive awards) to class members on a pro rata basis. Having considered all of the papers filed in support of the pending motion, including the Amended Settlement Agreement and Release, docket no. 139-1, the Court enters the following Order.

         Discussion

         A. Telephone Consumer Protection Act

         In this action, plaintiff Kevin Pine alleged on behalf of himself and all others similarly situated that defendant A Place for Mom, Inc. had violated the Telephone Consumer Protection Act (“TCPA”). See 2d Am. Compl. at ¶ 95-104 (docket no. 111). To establish a TCPA violation, a plaintiff must prove that a defendant called a cellular telephone number using an “automatic telephone dialing system” (“ATDS”). See Order at 4-5 (docket no. 123) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). If the plaintiff makes such showing, the burden shifts to the defendant to demonstrate that the plaintiff gave the requisite consent to the call. See id. at 5 (citing Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1044 & n.3 (9th Cir. 2017)).

         B. Previous Proposed Settlement

         In their initial attempt to obtain approval of a settlement in this matter, the parties proposed to define the class as including

all persons within the United States who, between August 7, 2013, and August 15, 2019, received a non-emergency Call from Defendant, or any party acting on its behalf, to a cellular telephone through the use of a dialing system characterized by the plaintiff as an automated telephone dialing system or an artificial or prerecorded voice.

See Settlement Agr. at ¶ 2.36 (docket no. 134-1). The parties further proposed to require each class member to make a “valid and timely claim” before receiving, at the class member's election, either a pro rata cash award or a donation to the Fisher Center for Alzheimer's Research Foundation. Id. at ¶¶ 4.3 & 4.4. The Court declined to define a class using a disputed term of art, namely an ATDS, or plaintiff's characterization of it. See Minute Order at ¶ 1(a) (docket no. 135). The Court also refused to approve any settlement in which class members must “opt in” or fill out a claim form to obtain their share of the settlement proceeds. Id. at ¶ 1(b).

         C. Current Proposed Settlement

         The parties now proffer the following class definition:

all persons within the United States who, between August 7, 2013, and August 15, 2019, received a non-emergency Call from Defendant, or any party acting on its behalf, to a cellular telephone.

Am. Settlement Agr. at ¶ 2.37 (docket no. 139-1). Although the parties have cured the deficiency outlined in the Court's earlier Minute Order by eliminating the reference to a source of disagreement among the parties, i.e., whether defendant used an ATDS to make the calls at issue, their proposed class definition remains problematic because it is not consistent with the terms of their settlement, as further explained below.

         In response to the Court's reluctance to approve an “opt in” system of distributing settlement proceeds, the parties propose to segregate the class into two groups, which are essentially subclasses, only one of which would be required to “opt in.” The parties have labeled the subsets as “Locate” and “Non-Locate.” The designations “Locate” and “Non-Locate” bear no correlation to the features of the subclasses, but rather correspond to the actions of the proposed settlement administrator. Defendant has the same information about all Locate and Non-Locate subclass members, i.e., names, cellular phone numbers, and email addresses. For Locate subclass members, the settlement administrator will be tasked with using its “best efforts” and the data provided by defendant to determine a mailing address or, in other words, to locate the individuals, and to send notices about ...


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