Hernandez v. J. C. Penney Corporation, Inc.

Background

Janimary Hernandez asserted claims under the Telephone Consumer Protection Act. She alleged that J.C. Penney Company, Inc. sent multiple commercial text messages to her and other similarly situated people without the prior express consent required by law. She sought statutory or treble damages for each violation, an order prohibiting further violations, and attorneys’ fees and costs. J.C. Penney disputed the allegations and denied liability for the claims asserted or that could have been asserted.

After a private mediation, the parties negotiated a proposed settlement. Hernandez asked the court to conditionally certify a class for settlement purposes, preliminarily approve the settlement and its allocation plan, approve the proposed notice, and schedule a final approval hearing.

Settlement Class Certification

For purposes of evaluating the settlement, the court found that Hernandez met the requirements for class certification under Federal Rule of Civil Procedure 23(a) and Rule 23(b)(3). The court found sufficient numbers of class members, common issues, typical claims, and adequate representation by Hernandez and her attorneys. It also found that common issues predominated over individual issues and that a class action was superior to other ways of resolving the dispute. Because certification was sought only for settlement, the court did not consider trial-management issues.

The court conditionally certified the class for settlement, notice, and award-distribution purposes only. If the settlement did not receive final approval, was overturned on appeal, or otherwise was not completed, the certification would be dissolved, and the parties would return to their prior positions. J.C. Penney would retain the right to oppose class certification and contest the merits of the claims.

The court appointed Hernandez as class representative and C.K. Lee of Lee Litigation Group, PLLC as class counsel. The parties intended to retain either RUST Consulting or Epiq as claims administrator.

Preliminary Settlement Approval and Notice

The court found that the proposed settlement was within the possible range for approval, that it was negotiated at arm’s length and was not collusive, and that class counsel understood the strengths and weaknesses of the class’s claims. The court also found that the proposed allocation plan was rationally related to the relative strengths and weaknesses of the claims and within the possible range for approval.

The court therefore granted preliminary approval to the Settlement Agreement and Plan of Allocation. It also approved the proposed class notices and the method of distributing them, finding that the notices were the best practical form under the circumstances and satisfied the notice and due-process requirements. The order required the claims administrator to prepare final notices, use class members’ last known email addresses, and take reasonable steps to provide notice when delivery failed, including a later first-class mailing attempt.

Final Approval Hearing and Ruling

The court scheduled a final approval hearing to consider final certification of the settlement class and final approval of the Settlement Agreement and Plan of Allocation. The hearing would also address any petitions for attorneys’ fees, costs and expenses, and service payments to Hernandez. The opinion does not state a legible hearing date or time in the supplied text, and it does not grant final approval.

Judge Robert W. Lehrburger’s order conditionally certified the settlement class, granted preliminary approval to the settlement and allocation plan, approved the notice procedures, appointed the class representative and counsel, and scheduled the final approval process. It did not decide whether J.C. Penney violated the Telephone Consumer Protection Act.