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T.A.N. v. PNI Digital Media, Inc.

United States District Court, S.D. Georgia, Brunswick Division

June 2, 2017

T.A.N., an individual, and on behalf of all others similarly situated, Plaintiff,

          R. Stan Baker Magistrate Judge.



         Plaintiff and PNI Digital Media, Inc. n/k/a PNI Digital Media, ULC ("PNI") have agreed to a settlement, the terms and conditions of which are set forth in an executed Settlement Agreement and Release (the "Settlement"). The parties reached the Settlement through arm's-length negotiations following mediation. Under the Settlement, subject to the terms and conditions therein and subject to Court approval, Settlement Class Members are eligible to receive reimbursement of up to $250 (in total) for the following categories of out-pocket expenses resulting from the Security Incident: (i) unreimbursed bank fees; (ii) unreimbursed card reissuance fees; (ii) unreimbursed overdraft fees; (iv) unreimbursed charges related to unavailability of funds; (v) unreimbursed late fees; (vi) unreimbursed over-limit fees; (vii) long distance telephone charges; (viii) cell minutes (if charged by minute); (ix) internet usage charges and text messages; (x) unreimbursed charges from banks or credit card companies; (xi) postage; (xii) interest on payday loans due to card cancelation or due to over-limit situation; (xiii) up to three hours of documented lost time (at $15 per hour) spent dealing with replacement card issues or in reversing fraudulent charges; (xiv) an additional $20 payment for each credit or debit card on which document fraudulent charges were incurred that were later reimbursed; (xv) costs of credit report(s); and (xvi) costs of credit monitoring and identity theft protection (up to $120).

         Class Members who had other extraordinary unreimbursed monetary losses because of information compromised as a result of the Security Incident are eligible to make a claim for reimbursement of up to $10, 000.

         In exchange for these considerations, Plaintiff and the proposed Settlement Class would fully, finally, and forever resolve, discharge, and release their claims against PNI related to the Security Incident, which resulted in unauthorized access to customer payment card data and other personally identifying information, without admission of liability by PNI. In addition, PNI has agreed to pay all fees and costs associated with providing notice to the Settlement Class and for administration of the Settlement. Subject to Court approval, PNI has also agreed to pay Class Counsel's attorneys' fees of $650, 000, plus reasonable costs and expenses and an incentive award of $3, 750 for the Representative Plaintiff. Such amounts will be paid separately by PNI and will not reduce the amount of payments to Class Members who submit valid claims.

         The Settlement has been filed with the Court, and Plaintiff and Class Counsel filed an Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of the Settlement Class (the "Motion"). Upon considering the Motion and exhibits thereto, the Settlement, the record in these proceedings, the representations and recommendations of Class Counsel, and the requirements of law, the Court finds that: (1) this Court has jurisdiction over the subject matter and parties to these proceedings; (2) for settlement purposes only, the proposed Settlement Class meets the requirements of Federal Rule of Civil Procedure 23 and should be certified; (3) the persons and entities identified below should be appointed Class Representative and Class Counsel; (4) the Settlement is the result of informed, good-faith, arm's-length negotiations between the parties and their capable and experienced counsel and is not the result of collusion; (5) the Settlement is within the range of reasonableness and should be preliminarily approved; (6) the proposed Notice Program and proposed forms of Notice satisfy Federal Rule of Civil Procedure 23 and constitutional due process requirements, and are reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, class certification, the terms of the Settlement, Class Counsel's application for an award of attorneys, fees and expenses ("Fee Application") and request for Service Award for Plaintiff, and their rights to opt-out of the Settlement Class and object to the Settlement, Class Counsel's Fee Application, and/or the request for Service Award for Plaintiff; (7) good cause exists to schedule and conduct a Final Approval Hearing, pursuant to Federal Rule of Civil Procedure 23(e), to assist the Court in determining whether to grant final approval of the Settlement and enter Final Judgment, and whether to grant Class Counsel's Fee Application and request for Service Award for Plaintiff; and (8) the other related matters pertinent to the preliminary approval of the Settlement should also be approved.

         Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED as follows:

         1. As used in this Order, capitalized terms shall have the definitions and meanings accorded to them in the Settlement.

         2. The Court has jurisdiction over the subject matter and parties to this proceeding pursuant to 28 U.S.C. § 1332.

         3. Venue is proper in this District.

         Provisional Class Certification and Appointment of Class Representatives and Class Counsel

         4. In deciding whether to provisionally certify a settlement class, a court must consider the same factors that it would consider in connection with a proposed litigation class - i.e., all Rule 23(a) factors and at least one subsection of Rule 23(b) must be satisfied - except that the Court need not consider the manageability of a potential trial, since the settlement, if approved, would obviate the need for a trial. See Amchem Products. Inc. v. Windsor, 521 U.S. 591, 620 (1997); Cotton v. Hinton. 559 F.2d 1326, 1331 (5th Cir. 1977); Columbus Drvwall & Insulation. Inc. v. Masco Corp.. 258 F.R.D. 545, 553-54 (N.D.Ga. 2007).

         5. The Court finds, for settlement purposes only, that the Federal Rule of Civil Procedure 23 factors are present and that certification of the proposed Settlement Class is appropriate under Rule 23. The Court, therefore, provisionally certifies the following Settlement Class:

All persons residing in the United States who made a payment to one or more Retailers using a credit, debit, or other payment card between June 2014 through and including July 2015, and whose payment card information was provided to PNI.

         6. Specifically, the Court finds, for settlement purposes only, that the Settlement Class satisfies the following factors of Federal Rule of Civil Procedure 23:

         (a) Numerositv: In the Action there are hundreds of thousands of Class members across the United States. Their joinder is impracticable. Thus, the Rule 23(a)(1) numerosity requirement is met. See Kilgo v. Bowman Transp.. Inc.. 789 F.2d 859, 878 (11th Cir. 1986); Columbus Drvwall & Insulation. 258 F.R.D. at 554.

         (b) Commonality: The bar for proving commonality is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members. See Williams v. Mohawk Industries. 568 F.3d 1350, 1355 (11th Cir. 2009). Here, the commonality requirement is satisfied for settlement purposes because there are many questions of law and fact common to the Settlement Class regarding PNFs Security Incident. See Fed.R.Civ.P. 23(a) (2). There are multiple questions of law and fact that center on whether PNI was culpable in failing to prevent the Security Incident, which are common to the Settlement Class.

         (c) Typicality: Plaintiff is typical of absent Settlement Class Members because she was subjected to the same PNI conduct, had her information placed at risk in the same manner as all Class members, and because she will also benefit from the relief provided by the Settlement. Rule 23(a)(3) is therefore satisfied. See Kornberg v. Carnival Cruise Lines. Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality satisfied where claims "arise from the same event or pattern or practice and are based on the same legal theory"); Murray v. Auslander. 244 F.3d 807, 811 (11th Cir. 2001) (named plaintiffs are typical of the class where they "possess the same interest and suffer the same injury as the class members").

         (d) Adequacy: Adequacy under Rule 23(a)(4) relates to: (1) whether the proposed class representative has interests antagonistic to the Settlement Class; and (2) whether the proposed class counsel has the competence to undertake the litigation at issue. See In re Piedmont Office Trust Inc. Sec. Litis.. 264 F.R.D. 693, 699 (N.D.Ga. 2010). Rule 23(a)(4) is satisfied here because there are no conflicts of interest between the Plaintiff and the Settlement Class, and Plaintiff has retained competent counsel to represent her and the Settlement Class. Class Counsel here regularly engages in consumer class litigation and other complex litigation similar to the present Action, and have dedicated substantial resources to prosecuting the Action. Moreover, the Plaintiff and Class Counsel have vigorously and competently represented the Settlement Class Members' interests in the Action.

         (e) Predominance and Superiority: Rule 23(b)(3) is satisfied for settlement purposes, as well, because the common legal and alleged factual issues here predominate over individualized issues, and resolution of the common issues for thousands of Settlement Class Members in a single, coordinated proceeding is superior to many individual lawsuits addressing the same legal and factual issues. With respect to predominance, Rule 23(b)(3) requires that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3); see Sacred Heart Health Svs., Inc. v. Humana Military Healthcare Servs.. Inc., 601 F.3d 1159, 1170 (11th Cir. 2010). Based on the record currently before the Court, the predominance requirement is satisfied here for settlement purposes because common questions present a significant aspect of the case and because class-wide relief can fairly be provided for all Settlement Class Members through a single common judgment.

         7. The Court appoints the following person as Class Representative: Tamara A. Nedlouf.

         8. The Court appoints the following persons and entities as Class Counsel who shall be responsible for handling all Settlement-related matters on behalf of Plaintiff and the Settlement Class:

James B. Durham, Esq. HALL BOOTH SMITH, P.C. 3528 Darien Highway, Suite 300 Brunswick, Georgia 31525 ...

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