United States District Court, S.D. Georgia, Brunswick Division
T.A.N., an individual, and on behalf of all others similarly situated, Plaintiff,
PNI DIGITAL MEDIA, INC., Defendant.
Stan Baker Magistrate Judge.
ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT AND
CERTIFYING SETTLEMENT CLASS
HONORABLE LISA G. WOOD UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
on the foregoing, IT IS HEREBY ORDERED AND
ADJUDGED as follows:
used in this Order, capitalized terms shall have the
definitions and meanings accorded to them in the Settlement.
Court has jurisdiction over the subject matter and parties to
this proceeding pursuant to 28 U.S.C. § 1332.
Venue is proper in this District.
Class Certification and Appointment of Class
Representatives and Class Counsel
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).
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.
Specifically, the Court finds, for settlement purposes only,
that the Settlement Class satisfies the following factors of
Federal Rule of Civil Procedure 23:
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.
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.
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").
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.
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.
Court appoints the following person as Class Representative:
Tamara A. Nedlouf.
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
James B. Durham, Esq. HALL BOOTH SMITH, P.C. 3528 Darien
Highway, Suite 300 Brunswick, Georgia 31525 ...