The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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EDWARD KOELLER and KEVIN CHEEK,
individually and on behalf of all others
similarly situated,
Plaintiffs,
-v- 1:22-cv-675
NUMRICH GUN PARTS
CORPORATION,
Defendant.
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DAVID N. HURD
United States District Judge
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT AND DIRECTING CLASS NOTICE
On October 6, 2021, named plaintiffs Edward Koller and Kevin Cheek
(“plaintiffs”) filed this putative class action against defendant Numrich Gun
Parts Corporation (“Numrich” or “defendant”) alleging that defendant failed
to properly protect their sensitive information from disclosure arising from a
data breach. Dkt. No. 1.
On December 16, 2022, Numrich moved to dismiss plaintiffs’ complaint.
Dkt. No. 26. The motion was granted in part and denied in part. Koeller v.
Numrich Gun Parts Corp., --F. Supp. 3d--, 2023 WL 3591176 (N.D.N.Y. May
23, 2023). Thereafter, the parties notified the Court that they had reached a
settlement agreement. Dkt. No. 35.
On November 22, 2023, plaintiffs moved under Federal Rule of Civil
Procedure (“Rule”) 23 for: (1) preliminary approval of the proposed class
action settlement; (2) preliminary approval of plaintiffs as class
representatives and their counsel as class counsel; (3) preliminary approval of
the proposed class notice; and (4) an Order scheduling a Final Approval
Hearing. Dkt. No. 37. The motion is unopposed. See id.
Upon consideration of plaintiffs’ memorandum of law and the supporting
documentation in light of the governing law, it is
ORDERED that
1. Plaintiffs’ unopposed motion for preliminary approval of the class
action settlement is GRANTED;
2. Preliminary approval of the Settlement Agreement is GRANTED;
3. For settlement purposes only, the following Settlement Class is
CERTIFIED pursuant to the Settlement Agreement and Rule 23(e):
All persons who were sent written notification by
Defendant that their Private Information was
potentially compromised as a result of the Data
Incident discovered by Defendant in or around April
2022.
4. Specifically excluded from the Settlement Class are:
(i) Defendant, the Related Entities, and their officers
and directors; (ii) all Settlement Class Members who
timely and validly request exclusion from the
Settlement Class; (iii) any judges assigned to this case
and their staff and family; and (iv) any other Person
found by a court of competent jurisdiction to be guilty
under criminal law of initiating, causing, aiding or
abetting the criminal activity occurrence of the Data
Incident or who pleads nolo contendere to any such
charge.
5. Pursuant to Rule 23(e)(1), the Court FINDS that giving notice is
justified;
6. The Court FINDS that it will likely be able to approve the proposed
Settlement as fair, reasonable, and adequate;
7. The Court FINDS that it will likely be able to certify the Settlement
Class for purposes of judgment on the Settlement because it meets all of the
requirements of Rule 23(a) and the requirements of Rule 23(b)(3);
8. The Court FINDS for settlement purposes that: (a) the Settlement
Class is so numerous that joinder of all Settlement Class Members would be
impracticable; (b) there are issues of law and fact that are common to the
Settlement Class; (c) the claims of the Class Representatives are typical of
and arise from the same operative facts and the Class Representatives seek
similar relief as the claims of the Settlement Class Members; (d) the Class
Representatives will fairly and adequately protect the interests of the
Settlement Class as the Class Representatives have no interests antagonistic
to or in conflict with the Settlement Class and has retained experienced and
competent counsel to prosecute this Litigation on behalf of the Settlement
Class; (e) questions of law or fact common to Settlement Class Members
predominate over any questions affecting only individual members; and (f) a
class action and class settlement is superior to other methods available for a
fair and efficient resolution of this Litigation;
9. The Court FINDS that Plaintiffs will likely satisfy the requirements of
Rule 23(e)(2)(A) and should be APPOINTED as Class Representatives;
10. The Court FINDS that Raina Borrelli and Alex Phillips of the law
firm Turke & Strauss LLP will likely satisfy the requirements of Rule
23(e)(2)(A) and should be APPOINTED as Class Counsel pursuant to Rule
23(g)(1);
11. Upon preliminary review, the Court FINDS that the Settlement is
fair, reasonable, and adequate to warrant providing notice of the Settlement
to the Settlement Class and accordingly is preliminarily APPROVED. In
making this determination, the Court has considered the monetary and non-
monetary benefits provided to the Settlement Class through the Settlement,
the specific risks faced by the Settlement Class in prevailing on their claims,
the good faith, arms’ length negotiations between the Parties and absence of
any collusion in the Settlement, the effectiveness of the proposed method for
distributing relief to the Settlement Class, the proposed manner of allocating
benefits to Settlement Class Members, the Settlement treats the Settlement
Class Members equitably, and all of the other factors required by Rule 23 and
relevant case law;
12. The Court has subject matter jurisdiction pursuant to 28 U.S.C.§
1332(d)(2) and personal jurisdiction over the parties before it. Additionally,
venue is proper in this District pursuant to 28 U.S.C. § 1391(b);
13. A Final Approval Hearing shall be held on May 30, 2024, in Utica,
New York, where the Court will determine, among other things, whether: (a)
this Litigation should be finally certified as a class action for settlement
purposes pursuant to Rule 23(a) and (b)(3); (b) the Settlement should be
approved as fair, reasonable, and adequate, and finally approved pursuant to
Rule 23(e); (c) this Litigation should be dismissed with prejudice pursuant to
the terms of the Settlement Agreement; (d) Settlement Class Members (who
have not timely and validly excluded themselves from the Settlement) should
be bound by the releases set forth in the Settlement Agreement; (e) the
application of Class Counsel for an award of Attorneys’ Fees, Costs, and
Expenses should be approved pursuant to Rule 23(h); and (f) the application
of the Class Representatives for Service Awards should be approved;
14. The Court APPOINTS Angeion Group as the Claims Administrator,
with responsibility for class notice and settlement administration. The
Claims Administrator is DIRECTED to perform all tasks the Settlement
Agreement requires. The Claims Administrator’s fees will be paid pursuant
to the terms of the Settlement Agreement;
15. The proposed notice program set forth in the Settlement Agreement
and the Notices and Claim Form attached to the Settlement Agreement as
Exhibits A, B, and C are hereby APPROVED. Non-material modifications to
these Exhibits may be made by the Claims Administrator in consultation and
agreement with the Parties, but without further order of the Court;
16. The Court FINDS that the proposed form, content, and method of
giving Notice to the Settlement Class as described in the Notice program and
the Settlement Agreement and its exhibits: (a) will constitute the best
practicable notice to the Settlement Class; (b) are reasonably calculated,
under the circumstances, to apprise Settlement Class Members of the
pendency of the Litigation, the terms of the proposed Settlement, and their
rights under the proposed Settlement, including, but not limited to, their
rights to object to or exclude themselves from the proposed Settlement and
other rights under the terms of the Settlement Agreement; (c) are reasonable
and constitute due, adequate, and sufficient notice to all Settlement Class
Members and other persons entitled to receive notice; (d) meet all applicable
requirements of law, including Rule 23(c); and (e) and meet the requirements
of the Due Process Clause(s) of the United States and New York
Constitutions;
17. The Court FINDS that the Notice provided for in the Settlement
Agreement is written in plain language, uses simple terminology, and is
designed to be readily understandable by Settlement Class Members;
18. The Claims Administrator is DIRECTED to carry out the Notice
program in conformance with the Settlement Agreement;
19. Within ten (10) days after the filing of this Settlement Agreement
with the Court, the Claims Administrator acting on behalf of Defendant shall
have served or caused to be served a notice of the proposed Settlement on
appropriate officials in accordance with the requirements under the Class
Action Fairness Act (“CAFA”), 28 U.S.C. § 1715(b);
20. Any Settlement Class Member who wishes to be excluded from the
Settlement Class must individually sign and timely submit written notice of
such intent to the designated Post Office box established by the Claims
Administrator in the manner provided in the Notice. The written notice must
clearly manifest a Person’s intent to be excluded from the Settlement Class.
To be effective, such requests for exclusion must be postmarked no later than
the Opt-Out Date, which is no later than sixty (60) days from the date on
which notice program commences pursuant to ¶ 3.2(d) in the Settlement
Agreement, and as stated in the Notice. If Defendant voids the Settlement
Agreement according to its terms, Defendant will be obligated to pay all
settlement expenses already incurred, excluding any attorneys’ fees, costs,
and expenses of Class Counsel and the Service Award to the Class
Representatives and shall not, at any time, seek recovery of same from any
other party to the Litigation or from counsel to any other party to the
Litigation. Within seven (7) days after the Opt-Out Date, the Claims
Administrator shall furnish to Class Counsel and to Defendant’s counsel a
complete list of all timely and valid requests for exclusion (the “Opt-Out
List”). If a Final Order and Judgment is entered, all Persons falling within
the definition of the Settlement Class who do not request to be excluded from
the Settlement Class shall be bound by the terms of this Settlement
Agreement and the Final Order and Judgment. All Persons who submit valid
and timely notices of their intent to be excluded from the Settlement Class
shall not receive any cash benefits of and/or be bound by the terms of the
Settlement Agreement;
21. A Settlement Class Member (who does not submit a timely written
request for exclusion) desiring to object to the Settlement Agreement may
submit a timely written notice of his or her objection by the Objection Date
and as stated in the Notice. The Long Notice shall instruct Settlement Class
Members who wish to object to the Settlement Agreement to file their
objections with the Court and to mail copies to Class Counsel and
Defendant’s counsel. The Notice shall advise Settlement Class Members of
the deadline for submission of any objections—the “Objection Date.” Any
such notices of an intent to object to the Settlement Agreement must be
written and must include all of the following: (i) the objector’s full name,
address, telephone number, and e-mail address (if any); (ii) information
identifying the objector as a Settlement Class Member, including proof that
the objector is a member of the Settlement Class (e.g., copy of notice, copy of
original notice of the Data Incident); (iii) a written statement of all grounds
for the objection, accompanied by any legal support for the objection the
objector believes applicable; (iv) the identity of any and all counsel
representing the objector in connection with the objection; (v) a statement as
to whether the objector and/or his or her counsel will appear at the Final
Fairness Hearing; (vi) the objector’s signature and the signature of the
objector’s duly authorized attorney or other duly authorized representative
(along with documentation setting forth such representation); and (vii) a list,
by case name, court, and docket number, of all other cases in which the
objector and/or the objector’s counsel has filed an objection to any proposed
class action settlement within the last three (3) years. To be timely, written
notice of an objection in the appropriate form must contain the case name
and docket number and must be filed with the Clerk of Court by the
Objection Date, which is no later than sixty (60) days from the date on which
notice program commences pursuant to ¶ 3.2(d) in the Settlement
Agreement, and served concurrently therewith upon Class Counsel and
Defendant’s Counsel, postmarked by the Objection Date, established by this
Preliminary Approval Order and as stated in the Notice. Any Settlement
Class Member who fails to comply with the requirements for objecting shall
waive and forfeit any and all rights he or she may have to appear separately
and/or to object to the Settlement Agreement, and shall be bound by all the
terms of the Settlement Agreement and by all proceedings, orders, and
judgments in the Litigation. The provisions stated in ¶ 5.1 of the Settlement
Agreement be the exclusive means for any challenge to the Settlement
Agreement. Any challenge to the Settlement Agreement, the final order
approving this Settlement Agreement, or the Final Order and Judgment to be
entered upon final approval shall be pursuant to appeal under the Federal
Rules of Appellate Procedure and not through a collateral attack;
22. Settlement Class Counsel and Defendant have created a process for
Settlement Class Members to claim benefits under the Settlement. The
Court preliminarily APPROVES this process and DIRECTS the Claims
Administrator to make the Claim Form or its substantial equivalent
available to Settlement Class Members in the manner specified in the Notice.
The Claims Administrator will be responsible for effectuating the claims
process. Settlement Class Members who qualify for and wish to submit a
Claim Form shall do so in accordance with the requirement and procedures
specified in the Notice and the Claim Form. If the Final Order and Judgment
is entered, all Settlement Class Members who qualify for any benefit under
the Settlement but fail to submit a claim in accordance with the
requirements and procedures specified in the Notice and the Claim Form
shall be forever barred from receiving any such benefit, but will in all other
respects be subject to and bound by the provisions in the Final Order and
Judgment, including the releases contained therein;
23. This Preliminary Approval Order shall become null and void and shall
be without prejudice to the rights of the Parties, all of whom shall be restored
to their respective positions existing before the Court entered this
Preliminary Approval Order and before they entered the Settlement
Agreement, if: (a) the Court does not enter this Preliminary Approval Order;
(b) Settlement is not finally approved by the Court or is terminated in
accordance with the Settlement Agreement; or (c) there is no Effective Date.
In such event, (i) the Parties shall be restored to their respective positions in
the Litigation and shall jointly request that all scheduled Litigation
deadlines be reasonably extended by the Court so as to avoid prejudice to any
Party or Party’s counsel; (ii) the terms and provisions of the Settlement
Agreement shall have no further force and effect with respect to the Parties
and shall not be used in the Litigation or in any other proceeding for any
purpose, and (iii) any judgment or order entered by the Court in accordance
with the terms of the Settlement Agreement shall be treated as vacated, nunc
pro tunc;
24. This Preliminary Approval Order shall be of no force or effect if the
Final Order and Judgment is not entered or there is no Effective Date and
shall not be construed or used as an admission, concession, or declaration by
or against Defendant of any fault, wrongdoing, breach, or liability. Nor shall
this Preliminary Approval Order be construed or used as an admission,
concession, or declaration by or against the Class Representatives or any
other Settlement Class Member that his or her claims lack merit or that the
relief requested is inappropriate, improper, unavailable, or as a waiver by
any Party of any defense or claims they may have in this Litigation or in any
other lawsuit;
25. The Court reserves the right to adjourn or continue the Final Fairness
Hearing and related deadlines without further written notice to the
Settlement Class. If the Court alters any of those dates or times, the revised
dates and times shall be posted on the Settlement Website maintained by the
Claims Administrator. The Court may approve the Settlement, with such
modifications as may be agreed upon by the Parties, if appropriate, without
further notice to the Settlement Class;
26. All proceedings in the Litigation, other than those related to approval
of the Settlement Agreement, are hereby STAYED. Further, any actions
brought by Settlement Class Members concerning the Released Claims are
hereby ENJOINED and STAYED pending Final Approval of the Settlement
Agreement; and
27. The Court ORDERS the following schedule of dates for the specified
actions/further proceedings:
Event Deadline
Defendant Will Serve or Cause to Be No Later Than 10 Days After Settlement
Served CAFA Notice, Per 28 U.S.C. § Agreement Is Filed with Court
1715(b)
Defendant Provides Class Member Within 14 Days of Entry of Preliminary
Information to Claims Administrator Approval Order
Deadline For Claims Administrator to Within Forty-Five (45) Days of Entry of
Begin Sending Short Form Notice (By Preliminary Approval Order (the “Notice
First Class USPS Mail) Commencement Date”)
Motion for Attorneys’ Fees, Costs,
At Least 14 Days Prior To Opt-Out/
Expenses, and Service Award to Be Filed by
Objection Dates
Settlement Class Counsel
Opt-Out/Objection Date Deadlines 60 Days After Notice Commencement Date
Claims Administrator Provides
7 Days After Opt-Out Dates
Parties With List of Timely, Valid
Opt-Outs
Claims Deadline 90 Days After Notice Commencement Date
Motion For Final Approval to Be Filed At Least 14 Days Prior To Final Approval
By Class Counsel Hearing
May 30, 2024
Final Approval Hearing
No Earlier Than 160 Days After Entry
Of Preliminary Approval Order
IT IS SO ORDERED.
Dated: December 20, 2023 David N/Hurd
Utica, New York. U.S. Disfrict Judge
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