Rogers v. Lumina Solar, Inc.

DARRELL ROGERS, individually, and on behalf of all others similarly situated, Plaintiff, v. LUMINA SOLAR, INC., Defendant.

No. 18-cv-2128 (KBJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 19, 2020

MEMORANDUM OPINION

Plaintiff Darrell Rogers has sued defendant Lumina Solar, Inc. on behalf of himself and similarly situated individuals, alleging that Lumina Solar violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by using an automated dialing system to send to him certain text-message advertising without obtaining his prior express consent. (See Compl., ECF No. 1, ¶¶ 6, 15, 18.) After engaging in a period of discovery, the parties reached a settlement of this putative class action; before this Court at present is the parties' joint motion seeking final approval of that settlement under Federal Rule of Civil Procedure 23. (See Joint Motion for Final Approval of Class Action Settlement ("Final Appr. Mot."), ECF No. 18.) In their filing, the parties represent that the proposed settlement is "fair, reasonable, and adequate . . . and in the best interests of the Settlement Class in light of the factual, legal, practical, and procedural considerations presented in this case[.]" (Id. at 2.) Accordingly, the parties request that this Court certify the settlement class, finally approve their settlement, and dismiss this legal action. (See id. at 1.)¹

For the reasons explained below, and upon consideration of the parties' submissions, the arguments and representations made at the final fairness hearing, and the relevant statutes, case law, and the entire record, this Court agrees with the parties that the requirements of Rule 23 are satisfied, and it will therefore GRANT the joint motion for final approval and dismiss this case. A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Alleged Facts And Procedural History²

Rogers filed a complaint on September 13, 2018, asserting that Lumina Solar sent him a text message advertisement on September 4, 2018, by means of an automatic telephone dialing system. According to Rogers's complaint, the text message stated: "DARRELL HOMEOWNERS Reply YES If You Want MORE INFO On HOME SOLAR In Your Area Plus Get The Details On The Tax Savings In Your State Stop to Quit." (Compl. ¶ 7.) Rogers alleges that, because he had not provided his prior written consent to Lumina Solar to receive text message advertisements, the transmission of this message violated the TCPA. (See id. ¶ 27.) Lumina Solar answered Rogers's complaint on November 9, 2018, and the Court (Collyer, J.) held an initial scheduling conference on January 16, 2019, after which the parties engaged in a period ofdiscovery. (See Def.'s Answer and Affirm. Defenses, ECF No. 5; Min. Entry of Jan. 16, 2019.)³ On July 3, 2019, the parties notified the Court that they had reached a class settlement (see Notice of Settlement, ECF No. 14), and submitted a joint motion seeking preliminary approval of that settlement on August 23, 2019 (see Joint Motion for Prelim. Approval of Class Action Settlement ("Prelim. Appr. Mot."), ECF No. 16).

On September 11, 2019, the Court issued an order preliminarily certifying a settlement class consisting of all individuals to whom Lumina Solar sent text message advertisements between July 2, 2018, and September 20, 2018, which, based on information disclosed during discovery, pertained to 2,488 individuals. (See Order Preliminarily Approving Settlement, Certifying Settlement Class, & Authorizing Notice to the Settlement Class ("Prelim. Appr. Order"), ECF No. 17, at 2.) The Court's order also approved the notice that would be sent to the class members advising them of the settlement. (See id. at 2-4; Settlement Agreement, Ex. 1 to Prelim. Appr. Mot., ECF No. 16-1, at 2.)

B. Notice To The Class And Terms Of The Settlement Agreement

Following the preliminary approval of the settlement, the Settlement Administrator—Class-Settlement.com—sent an email to the 2,488 identified class members containing the Class Notice and Claim Form that the Court had approved. (See Decl. of Dorothy Sue Merryman ("Merryman Decl."), Ex. 2 to Final Appr. Mot., ECF No. 18-2, ¶¶ 10-12.) Of these email messages, 1,868 did not bounce back; therefore, the Settlement Administrator presumes that this many were received by theintended recipient. (See id. ¶ 12.) For the 619 emails that bounced back, the Settlement Administrator located a U.S. Mail address for each class member, using both the class list Lumina Solar provided and internet searches. (See id. ¶ 14.) The Settlement Administrator then mailed those individuals a copy of the Class Notice and Claim Form. (See id. ¶¶ 15-16.) The Settlement Administrator also set up a website, which contained the Class Notice, Claim Form, and Settlement Agreement, as well as details regarding deadlines for submitting claims and opting out of, or objecting to, the settlement; the date of the Final Approval Hearing; and contact information for Class Counsel. (See id. ¶ 16.) Class members were also invited to submit claims through the website, or by using U.S. Mail or facsimile. (See id. ¶¶ 16-17.)

Under the Settlement Agreement, Lumina Solar is required to establish a $248,800 settlement fund. (See Settlement Agreement ¶ 6.) This fund amount will be used to make several types of payments: settlement payments to the class members, attorney's fees in the amount of $39,808 (which represents 16% of the fund), a $5,000 incentive payment to Rogers, and the fees and costs of the Settlement Administrator. (See id. ¶¶ 4, 6, 13.) Class members who submit valid claims for payment are entitled to a pro rata share of the settlement fund that remains after the deduction of attorney's fees, the incentive payment to Rogers, and administration costs—up to $100—and any part of the settlement fund that is not paid out reverts to Lumina Solar. (See id. ¶¶ 6, 9.) The Settlement Agreement further provides that class members who do not opt out of the settlement have released all claims of any kind "that arise out of or relate to the sending of the 2,488 text messages." (Id. ¶ 15.)

C. Joint Motion For Final Approval And Fairness Hearing

On January 16, 2020, the parties filed a joint motion seeking final approval of the settlement. (See Final Appr. Mot.) This Court held a fairness hearing on April 30, 2020, as Rule 23(e) of the Federal Rules of Civil Procedure requires.⁴ At that hearing, class counsel represented that the notices to the potential class members had been issued and delivered successfully (as described above); that no class members had opted out of the settlement; and that no objections to the settlement had been lodged. (See Hr'g Tr., Apr. 30, 2020, at 10:4-12; 17:14-15.) Counsel for Lumina Solar further represented that all members of the class were residents of the District of Columbia, and that Lumina Solar had provided notice to the U.S. Attorney General and the Attorney General of District of Columbia, pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715. (See id. at 22:1-23:2.) No objectors appeared at the fairness hearing.

II. LEGAL STANDARDS

In the Preliminary Approval Order issued on September 11, 2019, the Court preliminarily certified the settlement class and approved the form and content of the notice to be provided to class members. (See Prelim. Appr. Order at 2-4.) The Court also determined that, upon preliminary examination, the terms of the settlement were fair, reasonable, and adequate. (See id. at 1.) This opinion addresses both final certification of the class for settlement purposes and approval of the settlement itself.

A. Class Certification

Generally speaking, a class that is certified for settlement purposes must satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. See Alvarez v. Keystone Plus Constr. Corp., 303 F.R.D. 152, 159 (D.D.C. 2014).⁵ There are two different aspects of the Rule 23 certification standard. First, Rule 23(a) establishes the four familiar prerequisite characteristics of numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a) (requiring the court to evaluate whether "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class"). In addition, a proposed class must also satisfy at least one set of circumstances described in Rule 23(b). See Fed. R. Civ. P. 23(b)(1-3) (allowing a class action to be maintained where separate lawsuits create the risk of inconsistent decisions, where class-wide declaratory or injunctive relief is appropriate, or where common questions predominate and class treatment is superior to individual actions).

In the instant case, the parties seek certification under Rule 23(b)(3), which applies when the plaintiff is seeking monetary damages, and requires that "the court find[] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ.P. 23(b)(3). These requirements are known as predominance and superiority. See Ceccone v. Equifax Info. Servs. LLC, No. 13-cv-1314, 2016 WL 5107202, at *3 (D.D.C. Aug. 29, 2016).

Given that the putative class action at issue here is proceeding under Rule 23(b)(3), there are additional requirements for provision of notice to the class, which are found in Rule 23(c)(2). See Fed. R. Civ. P. 23(c)(2). Under that rule, the notice must be "the best . . . practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). Fu...