Case :-cv-000-jah-wmc Document Filed 0// Page of 0 0 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. ( RACHEL L. JENSEN ( THOMAS R. MERRICK ( PHONG L. TRAN (0 West Broadway, Suite 00 San Diego, CA 0 Telephone: /-0 /- (fax johns@rgrdlaw.com rachelj@rgrdlaw.com tmerrick@rgrdlaw.com ptran@rgrdlaw.com CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO (0 0 Avenue of the Stars, nd Floor Los Angeles, CA 00 Telephone: 0/-0 0/- (fax scuneo@cuneolaw.com Attorneys for Plaintiff and the Proposed Class [Additional counsel appear on signature page.] LINDA LOW, on Behalf of Herself and All Others Similarly Situated, vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiff, SAN DIEGO UNION-TRIBUNE, LLC, d/b/a SIGNON SAN DIEGO, et al., Defendants. No. :-cv-000-jah-wmc CLASS ACTION NOTICE OF MOTION AND UNOPPOSED MOTION FOR CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS AND APPOINTMENT OF CLASS REPRESENTATIVE AND CLASS COUNSEL Judge: Hon. John A. Houston Courtroom: _
Case :-cv-000-jah-wmc Document Filed 0// Page of 0 Plaintiff Linda Low on behalf of herself and on behalf of each of the Settlement Class Members hereby moves for an order:. Granting conditional certification of the Settlement Class, comprised of all Persons in the state of California who purchased or acquired a Daily Deal Voucher between April, 00 and May, 0, pursuant to Rules (a and (b( of the Federal Rules of Civil Procedure;. Appointing Plaintiff to serve as the Class Representative of the Settlement Class; and. Appointing the firms of Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP to serve as Class Counsel, pursuant to Rule (g of the Federal Rules of Civil Procedure. This motion is brought pursuant to Rule of the Federal Rules of Civil Procedure and is based on this motion; the Memorandum of Points and Authorities in Support of Unopposed Motion for Conditional Certification of the Settlement Class and Appointment of Class Representative and Class Counsel, submitted herewith; the Stipulation of Class Action Settlement and Exhibits thereto ( Settlement Agreement ; the Notice of Motion and Joint Motion for Preliminary Approval of Class Action Settlement, filed concurrently herewith; the complete file and record in this Action; the argument of counsel; and such other and further evidence and argument as the Court may choose to entertain. 0 DATED: October, 0 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. RACHEL L. JENSEN THOMAS R. MERRICK PHONG L. TRAN s/ John J. Stoia, Jr. JOHN J. STOIA, JR. West Broadway, Suite 00 San Diego, CA 0 Telephone: /-0 /- (fax _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document Filed 0// Page of 0 0 CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO 0 Avenue of the Stars, nd Floor Los Angeles, CA 00 Telephone: 0/-0 0/- (fax CUNEO GILBERT & LADUCA, LLP CHARLES H. LADUCA WILLIAM H. ANDERSON 0 C Street, N.E. Washington, DC 000 Telephone: 0/-0 0/- (fax AUDET & PARTNERS, LLP MICHAEL A. McSHANE Main Street, Suite 0 San Francisco, CA 0 Telephone: /- /- (fax LEVIN, FISHBEIN, SEDRAN & BERMAN CHARLES E. SCHAFFER 0 Walnut Street, Suite 00 Philadelphia, PA 0 Telephone: /-00 /- (fax BAILLON THOME JOZWIAK & WANTA LLP SHAWN J. WANTA South Ninth Street, Suite Minneapolis, MN 0 Telephone: /-0 /- (fax Attorneys for Plaintiff and the Proposed Class _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document Filed 0// Page of 0 CERTIFICATE OF SERVICE I hereby certify that on October, 0, I authorized the electronic filing of the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I caused to be mailed the foregoing document or paper via the United States Postal Service to the non- CM/ECF participants indicated on the attached Manual Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on October, 0. s/ John J. Stoia, Jr. JOHN J. STOIA, JR. ROBBINS GELLER RUDMAN & DOWD LLP West Broadway, Suite 00 San Diego, CA 0-0 Telephone: /-0 /- (fax E-mail:johns@rgrdlaw.com 0 _ :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. ( RACHEL L. JENSEN ( THOMAS R. MERRICK ( PHONG L. TRAN (0 West Broadway, Suite 00 San Diego, CA 0 Telephone: /-0 /- (fax johns@rgrdlaw.com rachelj@rgrdlaw.com tmerrick@rgrdlaw.com ptran@rgrdlaw.com CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO (0 0 Avenue of the Stars, nd Floor Los Angeles, CA 00 Telephone: 0/-0 0/- (fax scuneo@cuneolaw.com Attorneys for Plaintiff and the Proposed Class [Additional counsel appear on signature page.] LINDA LOW, on Behalf of Herself and All Others Similarly Situated, vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiff, SAN DIEGO UNION-TRIBUNE, LLC, d/b/a SIGNON SAN DIEGO, et al., Defendants. No. :-cv-000-jah-wmc CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS AND APPOINTMENT OF CLASS REPRESENTATIVE AND CLASS COUNSEL Judge: Hon. John A. Houston Courtroom: _
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 TABLE OF CONTENTS Page I. INTRODUCTION... II. III. IV. THE SETTLEMENT CLASS SHOULD BE CONDITIONALLY CERTIFIED... A. The Requirements of Rule (a Are Met.... Numerosity.... Commonality.... Typicality.... Adequacy... B. The Requirements of Rule (b( Are Met.... Common Questions of Law and Fact Predominate.... A Class Action Is Superior to Individual Actions... PLAINTIFF SHOULD BE APPOINTED AS CLASS REPRESENTATIVE AND HER COUNSEL SHOULD BE APPOINTED TO SERVE AS CLASS COUNSEL... CONCLUSION... 0 _ - i - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of CASES TABLE OF AUTHORITIES Page 0 0 Amchem Prods., Inc. v. Windsor, U.S. (..., Blackie v. Barrack, F.d (th Cir.... Collins v. Cargill Meat Solutions Corp. F.R.D. (E.D. Cal. 0... Ellis v. Costco Wholesale Corp., F.d 0 (th Cir. 0..., Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir.... Hartless v. Clorox Co., F.R.D. 0 (S.D. Cal. 0..., In re Adobe Sys., Inc. Sec. Litig., F.R.D. 0 (N.D. Cal.... In re Emulex Corp. Sec. Litig., 0 F.R.D. (C.D. Cal. 00..., In re Rubber Chems. Antitrust Litig., F.R.D. (N.D. Cal. 00... Kayes v. Pac. Lumber Co., F.d (th Cir.... Local Joint Exec. Bd. Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., F.d, (th Cir. 00... McPhail v. First Command Fin. Planning, Inc., F.R.D. (S.D. Cal. 00... Staton v. Boeing, F.d (th Cir. 00... Valentino v. Carter-Wallace, Inc., F.d (th Cir.... Wright v. Linkus Enterps., Inc., F.R.D. (E.D. Cal. 00..., _ - ii - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 Page Zhu v. Fujitsu Group 0(K Plan, No. C-0-RMW, 00 WL (N.D. Cal. Mar., 00... RULES Federal Rules of Civil Procedure Rule...,, Rule (a...,, Rule (a(... Rule (a(... Rule (a(..., Rule (b... Rule (b(...,, Rule (b((a... Rule (b((b... Rule (g... Rule (g(... 0 _ - iii - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of I. INTRODUCTION In conjunction with the parties Joint Motion for Preliminary Approval of Settlement ( Joint Motion, filed concurrently herewith, Plaintiff Linda Low respectfully requests the conditional certification of the Settlement Class, comprised of all persons in the State of California who purchased or acquired a Daily Deal Voucher between April, 00 and May, 0 ( Settlement Class. See Stipulation of Class Action Settlement ( Settlement Agreement, submitted as 0 0 Exhibit A to the Declaration of Christopher Young in Support of Joint Motion, A.. As set forth below, the Settlement Class satisfies all the requirements of Rules (a and (b( of the Federal Rules of Civil Procedure. This motion is uncontested, as Defendant does not oppose the conditional certification of the Settlement Class for settlement purposes. See Settlement Agreement, C.. Plaintiff also requests that the Court appoint her to serve as the Class Representative of the Settlement Class and her counsel, Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP, to serve as Class Counsel, pursuant to Rule (g. II. THE SETTLEMENT CLASS SHOULD BE CONDITIONALLY CERTIFIED When presented with a proposed class action settlement, the court must determine whether the proposed settlement class satisfies the prerequisites for class certification under Rule (a and at least one of the requirements of Rule (b. Importantly, in assessing the class certification requirements under Rule, the court need not consider the manageability of the class action, as settlement will eliminate any need for trial. Wright v. Linkus Enterps., Inc., F.R.D., (E.D. Cal. 00 (citing Amchem Prods., Inc. v. Windsor, U.S., 0 ( ( Confronted with a request for settlement-only class certification, a district court need not inquire whether the Excluded from the Settlement Class are Defendant, Participating Merchants, their parent companies, subsidiaries, affiliates, officers and directors, any entity in which SOSD has a controlling interest, SOSD employees, and all judges assigned to hear any aspect of this litigation, as well as their immediate family members of all the preceding referenced individuals. Id. All capitalized terms herein shall have the same meaning as in the Settlement Agreement. _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 case, if tried, would present intractable management problems... for the proposal is that there be no trial.. Here, the conditional certification of the Settlement Class is appropriate for purposes of settlement because all the requirements of Rule have been met. A. The Requirements of Rule (a Are Met As a threshold matter, the Settlement Class satisfies the prerequisites of numerosity, commonality, typicality and adequacy under Rule (a.. Numerosity Rule (a( requires that the class be sufficiently numerous such that joinder of all members is impracticable. Fed. R. Civ. P. (a(. See also Zhu v. Fujitsu Group 0(K Plan, No. C-0-RMW, 00 WL, at * (N.D. Cal. Mar., 00 (class of approximately members sufficient to meet numerosity requirement; In re Emulex Corp. Sec. Litig., 0 F.R.D., (C.D. Cal. 00; In re Adobe Sys., Inc. Sec. Litig., F.R.D. 0, n. (N.D. Cal. (numerosity requirement clearly satisfied by allegation that hundreds if not thousands of class members traded Adobe securities during class period. Sign On San Diego concedes that the Settlement Class satisfies the numerosity requirement of Rule (a(. See Declaration of Christopher M. Young, submitted in support of Joint Motion,.. Commonality Commonality is met if there are questions of law or fact common to the class. Fed. R. Civ. P. (a(. Commonality has been construed permissively and does not require all questions of fact and law to be common. Ellis v. Costco Wholesale Corp., F.d 0, 0 (th Cir. 0 (quoting Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir.. Commonality is present here because Plaintiff s claims are based on a common course of conduct by Defendant to market and sell Daily Deal Vouchers with expiration dates, allegedly in violation of federal and California gift certificate laws. Specifically, Plaintiff alleges that the federal Credit Card Accountability Responsibility and Disclosure Act ( CARD Act is applicable to all Groupon Vouchers sold during the Class Period and that the Card Act prohibits the sale of gift certificates with expiration periods of less than five years. See Settlement Agreement at. Plaintiff _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 also alleges that the expiration dates on Daily Deal Vouchers violate a number of California consumer protection laws. See id. The imposition of illegal expiration terms on Daily Deal Vouchers is uniform across the Class and serves as the factual and legal bases for the underlying class claims. Commonality is therefore satisfied. See, e.g., McPhail v. First Command Fin. Planning, Inc., F.R.D., 0 (S.D. Cal. 00 (commonality satisfied where defendants engaged in a common course of conduct (quoting Blackie v. Barrack, F.d, 0-0 (th Cir. ; see Collins v. Cargill Meat Solutions Corp. F.R.D., 00-0 (E.D. Cal. 0 (common questions of law or fact shared by prospective class members are sufficient to satisfy commonality requirement.. Typicality Typicality is readily met because the claims of Plaintiff Low and the members of the proposed Settlement Class are based on the same core facts and underlying legal theory: Defendant s marketing and sale of Daily Deal Vouchers with allegedly illegal expiration terms. See id. at 0 (citing Kayes v. Pac. Lumber Co., F.d, (th Cir. (typicality is satisfied if the plaintiffs claims arise from same course of conduct as the class claims and are based on same legal theory.. Adequacy Rule (a( requires that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. (a(. In the Ninth Circuit, Rule (a( is satisfied where: (i counsel for the class is qualified and competent to vigorously prosecute the action; and (ii the interests of the proposed class representatives are not antagonistic to the interests of the Class. See, e.g., Staton v. Boeing, F.d, (th Cir. 00. The requirements of Rule (a( are plainly satisfied in this case. First, Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP, are eminently qualified and experienced in class action litigation and have performed extensive work to date in identifying and investigating potential claims in this action, preparing a detailed class action complaint, and successfully negotiating the proposed Settlement. See Emulex Corp., 0 F.R.D. at 0 (court evaluating adequacy of counsel s representation may examine the attorneys _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 professional qualifications, skill, experience, and resources.... [and] the attorneys demonstrated performance in the suit itself. The firms have vigorously prosecuted this action to achieve a very fair and reasonable settlement and will continue to represent the best interests of the Settlement Class in implementing and overseeing the settlement. Second, there is no conflict between Plaintiff s interests and the interests of the Settlement Class Members. Plaintiff and the members of the Settlement Class assert the same legal claims based on Defendant s imposition of expiration terms on Groupon Vouchers, and their alleged losses arise out of the same course of conduct by Defendant during the Settlement Class Period. As such, adequacy is satisfied. B. The Requirements of Rule (b( Are Met Once the requirements of Rule (a are met, the court may certify a class if it also determines that: ( questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and ( a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. (b(.. Common Questions of Law and Fact Predominate The requirement of predominance tests whether the proposed Class is cohesive enough to warrant representative adjudication. See Hartless v. Clorox Co., F.R.D. 0, (S.D. Cal. 0 (citing Amchem, U.S. at. Predominance is met when the alleged fraudulent conduct is perpetrated on multiples persons through similar representations, even though class members may have suffered individualized damages. See Hartless, F.R.D. at (citing Fed. R. Civ. P. Advisory Committee Notes (. As the Supreme Court has observed, the predominance test is readily met in certain cases alleging consumer... fraud. Amchem, U.S. at. Here, the same set of operative facts and legal issues uniformly apply to the Settlement Class comprised of consumers across the country. That is, each Class Member purchased a Daily Deal Voucher with expiration terms that Plaintiff contends are illegal. Accordingly, the question of liability is the same for all Class Members, as the Court must determine whether Defendant s marketing and sale of Daily Deal Vouchers with expiration terms is prohibited under federal and California gift certificate laws. Common questions _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 of law and fact therefore predominate in this case. See Hartless, F.R.D. at - (predominance established where all class members were exposed to the same alleged misrepresentations.. A Class Action Is Superior to Individual Actions Superiority is demonstrated where classwide litigation of common issues will reduce litigation costs and promote greater efficiency. Valentino v. Carter-Wallace, Inc., F.d, (th Cir.. Given the relatively small size of each Class Member s potential claim (based on the face value of each Daily Deal Voucher purchased, and the common elements among the legal claims of Class Members, this class action is the most efficient and cost-effective way to address the legality of Groupon s Vouchers. See Wright, F.R.D. (citing Local Joint Exec. Bd. Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., F.d, (th Cir. 00 (recognizing that class action is a plaintiff s only realistic method for recovery if there are multiple claims against the same defendant for relatively small sums. Moreover, the factors cited in Rule (b( as relevant to the requirement of superiority weigh in favor of certification. Individual Class Members have little interest in prosecuting a multitude of separate, individual actions against The San Diego Union Tribune for violations of the gift certificate laws. See Fed. R. Civ. P. (b((a. Indeed, individual actions would impose a greater burden on the judicial system and the parties, reduce resources, and would not increase the prospect for recovery. Additionally, Plaintiff is unaware of any separate individual actions concerning the marketing and sale of Daily Deal Vouchers. See Fed. R. Civ. P. (b((b. Accordingly, the proposed Settlement of the Action on a class-wide basis is a fair and efficient method to resolve the claims of all putative Class Members without burdening the judiciary system with a multiplicity of duplicative lawsuits. III. PLAINTIFF SHOULD BE APPOINTED AS CLASS REPRESENTATIVE AND HER COUNSEL SHOULD BE APPOINTED TO SERVE AS CLASS COUNSEL Plaintiff also requests that the Court designate her as Class Representative of the Settlement Class. As discussed above, Plaintiff will fairly and adequately protect the interests of the Settlement Class. Defendant has agreed that the named Plaintiff should be appointed as Class Representative. _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page 0 of See Settlement Agreement at A.. Thus, Plaintiff respectfully requests that the Court appoint her to serve as Class Representative for the Settlement Class. Additionally, Rule (g( requires the Court to appoint counsel to represent the interests of the Class. See In re Rubber Chems. Antitrust Litig., F.R.D., (N.D. Cal. 00. For the reasons stated above, in connection with the adequacy requirements of Rule (a(, and as has been demonstrated thus far in this litigation, Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP are experienced and well equipped to vigorously, competently and efficiently represent the proposed Settlement Class. Notably, 0 Defendant has also agreed to Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP s appointment as Class Counsel. See Settlement Agreement at A.. The Court should accordingly appoint the firms as Class Counsel for the Settlement Class. IV. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests the Court to conditionally certify the Settlement Class, appoint Plaintiff to serve as Class Representative of the Settlement Class, and appoint Robbins Geller Rudman & Dowd LLP, Cuneo Gilbert & LaDuca, LLP, and Baillon Thome Jozwiak & Wanta LLP to serve as Class Counsel for the Settlement Class. 0 DATED: October, 0 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. RACHEL L. JENSEN THOMAS R. MERRICK PHONG L. TRAN s/ John J. Stoia, Jr. JOHN J. STOIA, JR. West Broadway, Suite 00 San Diego, CA 0 Telephone: /-0 /- (fax _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 0 CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO 0 Avenue of the Stars, nd Floor Los Angeles, CA 00 Telephone: 0/-0 0/- (fax CUNEO GILBERT & LADUCA, LLP CHARLES H. LADUCA WILLIAM H. ANDERSON 0 C Street, N.E. Washington, DC 000 Telephone: 0/-0 0/- (fax AUDET & PARTNERS, LLP MICHAEL A. McSHANE Main Street, Suite 0 San Francisco, CA 0 Telephone: /- /- (fax LEVIN, FISHBEIN, SEDRAN & BERMAN CHARLES E. SCHAFFER 0 Walnut Street, Suite 00 Philadelphia, PA 0 Telephone: /-00 /- (fax BAILLON THOME JOZWIAK &WANTA LLP SHAWN J. WANTA South Ninth Street, Suite Minneapolis, MN 0 Telephone: /-0 /- (fax Attorneys for Plaintiff and the Proposed Class _ - - :-cv-000-jah-wmc
Case :-cv-000-jah-wmc Document - Filed 0// Page of 0 CERTIFICATE OF SERVICE I hereby certify that on October, 0, I authorized the electronic filing of the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I caused to be mailed the foregoing document or paper via the United States Postal Service to the non- CM/ECF participants indicated on the attached Manual Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on October, 0. s/ John J. Stoia, Jr. JOHN J. STOIA, JR. ROBBINS GELLER RUDMAN & DOWD LLP West Broadway, Suite 00 San Diego, CA 0-0 Telephone: /-0 /- (fax E-mail:johns@rgrdlaw.com 0 _ :-cv-000-jah-wmc