UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROSE COULTER-OWENS, 

individually, and on behalf of all others 

similarly situated,

Plaintiff,

v.

RODALE INC., a Pennsylvania 

Corporation, 

Defendant.

Case No. 2:14-cv-12688

Honorable Robert H. Cleland

PLAINTIFF’S UNOPPOSED MOTION FOR 

AND MEMORANDUM IN SUPPORT OF 

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Respectfully submitted by:

Ari J. Scharg

ascharg@edelson.com

Benjamin S. Thomassen

bthomassen@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Henry M. Scharg

hmsattyatlaw@aol.com

LAW OFFICE OF HENRY M. SCHARG

718 Ford Building 

Detroit, Michigan 48226

Tel: 248.596.1111

Proposed Class Counsel

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STATEMENT OF ISSUES PRESENTED

1. Does the proposed Settlement Class meet Rule 23’s requirements for 

class certification for settlement purposes? 

Plaintiff’s Answer: Yes.

2. Should Plaintiff’s Counsel be appointed as Class Counsel?

Plaintiff’s Answer: Yes.

3. Based on an initial evaluation, is the proposed Settlement fair, 

adequate, and reasonable, sufficient to warrant notice to the proposed settlement 

class?

Plaintiff’s Answer: Yes.

4. Does the Notice Plan satisfy the requirements of Rule 23 and Due 

Process?

Plaintiff’s Answer: Yes.

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CONTROLLING AND MOST APPROPRITE AUTHORITIES

Fed. R. Civ. P. 23

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 

(2013)

Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007)

Coulter-Owens v. Time Inc., 2015 WL 4527822 (E.D. Mich. July 27, 2015)

Gilkey v. Central Clearing Co., 202 F.R.D. 515 (E.D. Mich. 2001)

Halaburda v. Bauer Publishing Co, LP, 2:12-cv-12831, Dkt. 68 (E.D. Mich. 

January 6, 2015)

In re Cardizem CD Antitrust Litig., 200 F.R.D. 326 (E.D. Mich. 2001)

In re Packaged Ice Antitrust Litig., 2010 WL 3070161 (E.D. Mich. Aug. 2, 2010)

McDonald v. Asset Acceptance LLC, 296 F.R.D. 513 (E.D. Mich. 2013)

Merenda v. VHS of Mich., Inc., 296 F.R.D. 528 (E.D. Mich. 2013)

Vassalle v. Midland Funding LLC, 708 F.3d 747 (6th Cir. 2013)

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)

2:14-cv-12688-RHC-RSW Doc # 42 Filed 12/23/15 Pg 3 of 42 Pg ID 349
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TABLE OF CONTENTS

I. INTRODUCTION.......................................................................................... 1

II. BACKGROUND............................................................................................ 4

A. Michigan’s Video Rental Privacy Act ................................................. 4

B. Plaintiff’s Allegations .......................................................................... 4

C. The Litigation History and Settlement Discussions............................. 6

III. TERMS OF THE SETTLEMENT................................................................. 7

A. Class Definition.................................................................................... 7

B. Monetary Relief ................................................................................... 8

C. Prospective Relief ................................................................................ 8

D. Release ................................................................................................. 9

E. Notice and Administration Expenses................................................... 9

F. Incentive Award ................................................................................... 9

G. Attorneys’ Fees and Expenses ............................................................. 9

IV. THE PROPOSED CLASS IS APPROPRIATE FOR CERTIFICATION 

FOR SETTLEMENT PURPOSES............................................................... 10

A. The Numerosity Requirement is Satisfied ......................................... 11

B. The Commonality Requirement is Satisfied ...................................... 12

C. The Typicality Requirement is Satisfied............................................ 14

D. The Adequacy Requirement is Satisfied ............................................ 15

E. The Proposed Settlement Class Meets the Requirements of Rule 

23(b)(3) .............................................................................................. 18

1. Common Questions of Law and Fact Predominate ................. 19

2. A Class Action is a Superior Method for Adjudicating 

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this Action ................................................................................ 20

V. PLAINTIFF’S COUNSEL SHOULD BE APPOINTED AS CLASS 

COUNSEL.................................................................................................... 22

VI. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY 

APPROVAL................................................................................................. 23

VII. THE NOTICE PLAN SHOULD BE APPROVED IN FORM AND 

SUBSTANCE............................................................................................... 29

VIII. CONCLUSION ............................................................................................ 31

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TABLE OF AUTHORITIES

United States Supreme Court Cases

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) ......................................................................... 10, 18, 21

Amgen Inc. v. Conn. Retirement Plans and Trust Funds, 

133 S. Ct. 1184 (2013) ........................................................................... 10, 20

BMW of N. Am., Inc. v. Gore, 

517 U.S. 559 (1996) ..................................................................................... 27

Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 

523 U.S. 424 (2001) ..................................................................................... 27

Eisen v. Carlisle & Jacquelin, 

417 U.S. 156 (1974) ..................................................................................... 29

Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 2541 (2011) ..................................................................... 12, 13, 18

United States Circuit Court of Appeals Cases

Beattie v. CenturyTel, Inc.,

511 F.3d 554 (6th Cir. 2007)........................................................................ 16

In re Am. Med. Sys., Inc., 

75 F.3d 1069 (6th Cir. 1996).................................................................. 11, 14

In re Whirlpool Corp. Front-Loading Washing Products Liability Litig., 

722 F.3d 838 (6th Cir. 2013)............................................................ 10, 12, 20

Lane v. Facebook, Inc., 

696 F.3d 811 (9th Cir. 2012).................................................................... 3, 27

Parker v. Time Warner Entm’t Co., 

331 F.3d 13 (2d Cir. 2003)........................................................................... 26

Powers v. Hamilton County Public Defender Com’n, 

501 F.3d 592 (6th Cir. 2007)............................................................ 18, 19, 21

UAW v. Gen. Motors Corp., 

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vii

497 F.3d 615 (6th Cir. 2007)............................................................................

Senter v. Gen. Motors Corp., 

532 F.2d 511 (6th Cir. 1976)........................................................................ 16

Vassalle v. Midland Funding LLC, 

708 F.3d 747 (6th Cir. 2013)........................................................................ 16

Young v. Nationwide Mut. Ins. Co., 

693 F.3d 532 (6th Cir. 2010).................................................................. 21, 22

United States District Court Cases

Calloway v. Caraco Pharm. Labs., Ltd., 

287 F.R.D. 402 (E.D. Mich. 2012)............................................................... 22

Coulter-Owens v. Time Inc., 

2015 WL 4527822 (E.D. Mich. July 27, 2015)..................................... passim

Curry v. SBC Comm’ns, Inc., 

250 F.R.D 301 (E.D. Mich. 2008)................................................................ 11

Date v. Sony Electronics, Inc., 

2013 WL 3945981 (E.D. Mich. July 31, 2013)............................................ 15

Davis v. Bank of Am.,

No. 05-cv-80806, Dkt. 46 (S.D. Fla. June 21, 2006)............................... 3, 29

Fraley v. Facebook, Inc., 

966 F. Supp. 2d 939 (N.D. Cal. 2013)...................................................... 3, 27

Gilkey v. Central Clearing Co., 

202 F.R.D. 515 (E.D. Mich. 2001)............................................................... 14

Halaburda v. Bauer Publ’g Co., 

No. 12-cv-12831, Dkt. 63 (E.D. Mich. Sept. 26, 2014) ......................... 11, 18

Halaburda v. Bauer Publishing Co, LP,

No. 12-cv-12831, Dkt. 68 (E.D. Mich. January 6, 2015)......................... 2, 27

Harris v. comScore, Inc., 

292 F.R.D. 579 (N.D. Ill. 2013) ................................................................... 17

In re Cardizem CD Antitrust Litig., 

2:14-cv-12688-RHC-RSW Doc # 42 Filed 12/23/15 Pg 7 of 42 Pg ID 353
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200 F.R.D. 326 (E.D. Mich. 2001)......................................................... 19, 21

In re Facebook Privacy Litig.,

10-cv-02389, Dkt. 69 (N.D. Cal. 2010)........................................................ 17

In re Google Buzz Privacy Litig., 

2011 WL 7460099 (N.D. Cal. June 2, 2011)............................................ 3, 27

In re Netflix Privacy Litig., 

No. 11-cv-00379, Dkt. 59 (N.D. Cal. Aug. 12, 2011).................................. 16

In re Netflix Privacy Litig., 

2013 WL 1120801 (N.D. Cal. March 18, 2013) ...................................... 3, 27

In re Packaged Ice Antitrust Litig.,

2010 WL 3070161 (E.D. Mich. Aug. 2, 2010)....................................... 23, 24

Int’l Union v. Ford Motor Co., 

2006 WL 1984363, (E.D. Mich. July 13, 2006)..................................... 16, 24

IUE-CWA v. Gen. Motors Corp.,

238 F.R.D. 583 (E.D. Mich. 2006) .............................................................. 25

Landwehr v. AOL, 

No. 11-cv-1014, Dkt. 133 (E.D. Va. May 24, 2013)................................ 3, 29

Leonhardt v. ArvinMeritor, Inc., 

581 F. Supp. 2d 818 (E.D. Mich. 2008) ....................................................... 27

Little Caesar Enters., Inc. v. Smith, 

172 F.R.D. 236 (E.D. Mich. 1997)............................................................... 15

Machesney v. Lar-Bev of Howell, Inc.,

292 F.R.D. 412 (E.D. Mich. 2013)............................................................... 18

McDonald v. Asset Acceptance LLC, 

296 F.R.D. 513 (E.D. Mich. 2013)............................................................... 11

Merenda v. VHS of Mich., Inc.,

296 F.R.D. 528 (E.D. Mich. 2013)......................................................... 12, 18

Olden v. LaFarge Corp., 

472 F. Supp. 2d 922 (E.D. Mich. 2007) ....................................................... 27

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Reese v. CNH America, LLC,

227 F.R.D. 483 (E.D. Mich. 2005)............................................................... 14

Sheick v. Auto. Component Carrier, LLC, 

2010 WL 3070130 (E.D. Mich. Aug. 2, 2010)....................................... 24, 25

Supnick v. Amazon.com, Inc., 

2000 WL 1603820 (W.D. Wash. May 18, 2000)......................................... 13

UAW v. Gen. Motors Corp., 

2006 WL 891151 (E.D. Mich. Mar. 31, 2006)....................................... 24, 26

Statutes and Rules

28 U.S.C. § 1715.........................................................................................................

Fed. R. Civ. P. 23............................................................................................. passim

M.C.L. § 445.1712.............................................................................................. 4, 13

M.C.L. § 445.1715.................................................................................................... 4

Miscellaneous

Conte & Newberg, 4 Newberg on Class Actions, (4th Ed. 2002) .................... 23, 30

Daniel R. LeCours, Note, Steering Clear of the “Road to Nowhere”: Why the 

BMW Guideposts Should Not be Used to Review Statutory Penalty Awards,

63 Rutgers L. Rev. 327 (2010)..................................................................... 26

Kinder v. Meredith Corporation, 

1:14-cv-11284, Dkt. 72 (E.D. Mich. Oct. 5, 2015) ........................................ 2

Manual for Complex Litigation § 21.632 (4th ed. 2004)........................................ 24

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I. INTRODUCTION

Plaintiff Rose Coulter-Owens (“Plaintiff”) respectfully requests that the 

Court grant preliminary approval of the Parties’ proposed Class Action Settlement 

Agreement (the “Settlement”).1 If approved, the Settlement will resolve the claim 

that Defendant Rodale Inc. (“Rodale”) violated the Michigan Preservation of 

Personal Privacy Act—which is popularly referred to as the Video Rental Privacy 

Act (“VRPA”)—by allegedly disclosing its customers’ magazine subscription 

histories to third party companies without consent. As discussed herein, the 

Settlement—which was reached with the assistance of the former Chief Judge of 

the Northern District of Illinois, the Honorable James F. Holderman (ret.), and only 

after completing full class and merits discovery—is an excellent result for the 

proposed Settlement Class.2

Under the terms of the Settlement, Defendant has agreed to establish a $4.5 

million non-reversionary Settlement Fund, which will be used to pay all approved 

claims by class members, notice and administration expenses, an incentive award 

to Plaintiff Coulter-Owens, and attorneys’ fees to proposed Class Counsel as 

awarded by the Court. In terms of the monetary relief to class members, those who 

submit a short and simple one-page claim form will receive a pro rata cash award, 

 1

 The proposed Settlement Agreement is attached hereto as Exhibit 1.

2

 Except as otherwise indicated, all defined terms used herein shall have the same 

meanings ascribed to them in the Parties’ proposed Settlement Agreement.

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estimated at $100.

3 And just as importantly, the proposed Settlement also provides 

meaningful prospective relief aimed at the challenged conduct by (i) prohibiting 

Defendant from disclosing its Michigan customers’ protected information to any 

third-party marketing companies without first obtaining their written consent, and 

(ii) requiring Defendant to increase the transparency of its third party data-sharing 

practices—including those regarding the transfer of customer information.

It’s also helpful to note that the Court need not review the settlement in a 

vacuum. That is, the proposed Settlement and relief provided therein follows the 

example of, and therefore is consistent with, settlements reached and approved in 

other similar VRPA class actions. In Halaburda v. Bauer Publishing Co, LP, 2:12-

cv-12831, Dkt. 68 (E.D. Mich. January 6, 2015), the court granted final approval to 

a similar settlement, which (on behalf of a smaller class) created a $775,000 cash 

fund. There, as of final approval, claiming class members were expected to receive 

approximately $75, or roughly one quarter less than what class members should get 

in the instant settlement. And in Kinder v. Meredith Corporation, 1:14-cv-11284, 

Dkt. 72 (E.D. Mich. Oct. 5, 2015), the parties have moved for preliminary approval 

of a settlement (on behalf of a much larger class), which would establish a $7.5 

million cash fund, and provide class members with a similarly estimated $100 per 

 3

 This estimation is based upon typical participation rates in consumer class action 

settlements.

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approved claim, as well as similar injunctive relief to the class.

Further, the proposed Settlement also stacks up to or even exceeds privacy 

settlements reached in litigation involving similar statutes that have been approved 

throughout the country, many of which have provided only payments to cy pres or 

de minimus amounts to class members. See, e.g., Fraley v. Facebook, Inc., 966 F. 

Supp. 2d 939 (N.D. Cal. 2013) (approving privacy settlement providing claimants 

with a cash payment of $15); Lane v. Facebook, Inc., 696 F.3d 811, 820-22 (9th 

Cir. 2012) cert. denied, 134 S. Ct. 8 (2013) (approving a $9.5 million settlement 

payment to cy pres as the sole form of monetary relief to class of more than 3 

million individuals in case involving VPPA claims); In re Netflix Privacy Litig., 

2013 WL 1120801 (N.D. Cal. March 18, 2013), appeal dismissed (Dec. 19, 2013), 

appeal dismissed (Mar. 26, 2014), appeal dismissed (May 2, 2014), appeal 

dismissed (June 23, 2014) (approving $9 million settlement payment to cy pres as 

the sole form of monetary relief to class of more than 60 million individuals in case 

involving VPPA claims); In re Google Buzz Privacy Litig., 2011 WL 7460099, at 

*3 (N.D. Cal. June 2, 2011) (approving $8.5 million cy pres settlement); Landwehr

v. AOL, 11-cv-1014, Dkt. 133 (E.D. Va. May 24, 2013) (approving privacy 

settlement providing claimants with a cash payment of up to $100); Davis v. Bank 

of Am., 05-cv-80806, Dkt. 46 (S.D. Fla. June 21, 2006) (approving privacy 

settlement providing claimants with a cash payment up to $150).

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Ultimately, the relief attained for the proposed Settlement Class is 

exceptional and more than sufficient for the Court to preliminarily approve the 

Settlement. That’s especially true given the risks and uncertainties inherent in 

complex litigation, this case no exception. Thus, Plaintiff respectfully requests that 

the Court grant her motion for preliminary approval in its entirety, direct that 

notice be disseminated to the Settlement Class, and set a final fairness hearing.

II. BACKGROUND

A. Michigan’s Video Rental Privacy Act

A brief summary of the VRPA will give context to the proposed Settlement. 

The Michigan legislature passed the VRPA “to preserve personal privacy with 

respect to the purchase, rental, or borrowing of written materials, sound recordings,

and video recordings.” M.C.L. § 445.1712. As such, the VRPA provides that:

a person, or an employee or agent of the person, engaged in the 

business of selling at retail . . . books or other written materials . . . 

shall not disclose to any person, other than the customer, a record or 

information concerning the purchase . . . of those materials by a 

customer that indicates the identity of the customer.

M.C.L. § 445.1712. To enforce the statute, the VRPA authorizes civil actions and 

provides for the recovery of statutory damages in the amount of $5,000, plus costs 

and reasonable attorney fees. M.C.L. § 445.1715.

B. Plaintiff’s Allegations

Rodale is a company that publishes some of the most widely circulated 

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magazines in the United States. (See Plaintiff’s Class Action Complaint, Dkt. 1 

[“Compl.”], ¶ 1.) Plaintiff alleges that aside from selling magazine subscriptions, 

Rodale also sells its subscribers’ personal information—including their full names, 

titles of magazines subscribed to, and home addresses (collectively “Personal 

Reading Information”), as well as other personal, lifestyle, and demographic 

information such as gender, age, ethnicity, income, net worth, religion, parental 

status, number of children in the household, charitable donations, and even health 

conditions—to data miners and other third parties. (Id. ¶¶ 2, 4, 40.) Plaintiff alleges 

that this information includes both data that Rodale collects from its own magazine 

subscribers and information obtained from data mining companies, like Acxiom 

Corporation. (Id. ¶ 39.)

Plaintiff further alleges that no matter how consumers subscribe (i.e., via 

postcard, over the phone, on its website, or through a subscription agent’s website), 

they are never asked to provide Rodale with consent to disclose information related 

to their magazine subscriptions to third parties. (Compl. ¶¶ 43, 44.) This is because 

Rodale’s customers are allegedly never presented with, or required to consent to,

any terms or policies during the subscription process informing them of Rodale’s 

disclosure practices. (Id. at ¶ 43.) Likewise, even after subscribing, Rodale

allegedly fails to notify its customers that it will disclose any information to third 

parties, including their protected reading information. (Id.) Nonetheless, Plaintiff 

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alleges that Rodale discloses all of its customers’ protected reading information to 

various third parties, including, inter alia, to Acxiom Corporation (“Acxiom”) and 

Merkle Inc. (“Merkle”), without their consent or prior notice.

C. The Litigation History and Settlement Discussions

Plaintiff filed her class action lawsuit on July 9, 2014 in the United States 

District Court for the Eastern District of Michigan. (Dkt. 1.) On September 18, 

2014, Defendant moved to dismiss Plaintiff’s claims under Rules 12(b)(1) and 

(b)(6), arguing that she lacked both Article III and statutory standing because she 

did not suffer actual damages from the alleged disclosures. (Dkt. 14.) On February 

11, 2015, after full briefing, the Court denied Defendant’s motion to dismiss the 

VRPA claims. (Dkt. 27.) Defendant thereafter filed its Answer on February 25, 

2015, which denied the allegations generally and raised 16 affirmative defenses. 

(Dkt. 21.) The Parties then exchanged initial disclosures and served written 

discovery on each other and third parties. (The Declaration of Ari J. Scharg 

[“Scharg Decl.”] ¶ 3, a copy of which is attached hereto as Exhibit 2.)

Over the next eight months, the Parties engaged in substantial class- and 

merits-related discovery. (Id. ¶ 4.) During that time, Plaintiff reviewed and 

analyzed documents produced by Defendant and various third parties. (Id.) 

Plaintiff also took the depositions of a corporate representative that Defendant 

designated under Rule 30(b)(6), a corporate representative that was similarly 

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designated by Acxiom, and noticed the deposition of a corporate representative of 

Merkle. (Id.) For its part, Defendant conducted substantial written discovery on 

Plaintiff Coulter-Owens, and also took her deposition. (Id.)

On November 4, 2015—and with class certification briefing on the 

horizon—the Parties participated in a private mediation with the former Chief 

Judge of the Northern District of Illinois, the Honorable James F. Holderman (Ret.)

at JAMS in Chicago, Illinois. (Scharg Decl. ¶ 5.) Despite a full day of mediation 

and numerous rounds of arm’s-length negotiations, the Parties were unable to 

reach agreement on the terms of a class settlement and, as such, re-focused their 

efforts on the litigation (including, inter alia, rounding out certain issues relating to 

third party discovery). (Id. ¶ 6.) Nevertheless, the Parties continued to discuss the 

possibility of settlement, and on December 2, 2015, the Parties returned to JAMS 

for a second mediation. (Id. ¶ 7.) Finally, with the continued assistance of Judge 

Holderman, they ultimately reached an agreement on the principal terms of the

Settlement which is now before the Court. (Id.)

III. TERMS OF THE SETTLEMENT

The key terms of the Settlement Agreement (which is attached as Exhibit 1), 

and are briefly summarized as follows:

A. Class Definition

The “Settlement Class” is defined as:

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All persons with Michigan street addresses who, between July 1, 2009 and 

the date of Preliminary Approval, purchased a subscription to a Rodale 

Publication.

4

(Agreement ¶ 1.30.) 

B. Monetary Relief

Defendant shall establish a $4.5 million non-reversionary Settlement Fund, 

from which each Settlement Class Member who submits a valid claim shall be 

entitled to a pro rata portion, after payment of notice and administrative expenses, 

attorneys’ fees, and an incentive award. (Agreement ¶¶ 1.32, 2.1.) No portion of 

the Settlement Fund will revert back to Defendant. (Id. ¶ 2.1.)

C. Prospective Relief

For a period of four (4) years from the date of entry of the Preliminary 

Approval Order, Rodale agrees to not disclose any of its Michigan subscribers’ 

Personal Reading Information to any third-party companies without prior written 

consent. (Agreement ¶ 2.2.) In addition, Rodale agrees to add language to its 

privacy policy to clarify that it may disclose Personal Reading Information to 

certain companies for the purpose of performing internal business functions (Id.)

 4

 Excluded from the Settlement are (1) any Judge or Magistrate Judge presiding 

over this Action and members of their families, (2) the Defendant, Defendant’s 

subsidiaries, parent companies, successors, predecessors, and any entity in which 

the Defendant or its parents have a controlling interest and their current or former 

officers, directors, agents, attorneys, and employees, (3) persons who property 

execute and file a timely request for exclusion from the class, and (4) the legal 

representatives, successors, or assigns of any such excluded persons. (Id.)

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D. Release

In exchange for the relief described above, Defendant and each of its related 

and affiliated entities (the “Released Parties” defined in ¶ 1.25 of the Settlement) 

will receive a full release of all claims arising out of or related to Defendant’s 

disclosure of its Michigan customers’ magazine subscription information. (See

Agreement ¶¶ 1.24-1.26 for full release language.)

E. Notice and Administration Expenses

The Settlement Fund will be used to pay the cost of sending the Notice set 

forth in the Agreement and any other notice as required by the Court, as well as all 

costs of administration of the Settlement. (Agreement ¶¶ 1.28, 1.32.)

F. Incentive Award

In recognition of her efforts on behalf of the Settlement Class, Defendant has 

agreed that Plaintiff Coulter-Owens is entitled to receive, subject to Court 

approval, an incentive award of $5,000 from the Settlement Fund as appropriate 

compensation for her time and effort serving as class representative and party to 

the Action. Defendant will not oppose any request limited to this amount. 

(Agreement ¶ 8.3.)

G. Attorneys’ Fees and Expenses

Defendant has agreed that the Settlement Fund may be used to pay Class 

Counsel reasonable attorneys’ fees and to reimburse expenses in this Action, in an 

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amount to be approved by the Court. (Agreement ¶¶ 1.32, 8.1.) Class Counsel have 

agreed to petition the Court for no more than 40% of the Settlement Fund, and 

Defendant has agreed not to oppose any request limited to this amount. (Id. ¶ 8.1.) 

IV. THE PROPOSED CLASS IS APPROPRIATE FOR CERTIFICATION 

FOR SETTLEMENT PURPOSES

Before granting preliminary approval of the proposed Settlement, the Court 

must determine that the proposed settlement class is appropriate for certification. 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Class certification is 

proper if the proposed class satisfies the numerosity, commonality, typicality, and 

adequacy of representation requirements of Rule 23(a). Fed. R. Civ. P. 23(a); see 

Amgen Inc. v. Conn. Retirement Plans and Trust Funds, 133 S. Ct. 1184, 1191 

(2013). Additionally, because Plaintiff seeks certification under Rule 23(b)(3), she 

must also demonstrate that common questions of law or fact predominate over 

individual issues and that a class action is superior to other methods of adjudicating 

the claims. Amchem, 521 U.S. at 615-16. District courts are given broad discretion 

to determine whether certification of a class action lawsuit is appropriate. In re 

Whirlpool Corp. Front-Loading Washing Products Liability Litig., 722 F.3d 838, 

850 (6th Cir. 2013). As explained below, the proposed Settlement Class satisfies 

all of the Rule 23(a) and 23(b)(3) prerequisites, and thus, should be certified. 

Recently, in a detailed opinion performing the “rigorous analysis” required 

by Rule 23, the Honorable George C. Steeh certified a class of purchasers of 

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magazines published by Time, Inc. alleging that Time disclosed their protected 

information to Acxiom and third party Wiland Direct. Coulter-Owens v. Time Inc., 

2015 WL 4527822 (E.D. Mich. July 27, 2015). Likewise, a similar class of 

magazine purchasers was certified last fall in the Bauer action. Halaburda v. Bauer 

Publ’g Co., 2:12-cv-12831, Dkt. 63 (E.D. Mich. Sept. 26, 2014). Like the classes 

in those cases, the proposed Settlement Class here should be certified.

A. The Numerosity Requirement is Satisfied

The numerosity requirement is met when joining such a large number of 

plaintiffs in a single suit would be impracticable. Fed. R. Civ. P. 23(a)(1); In re 

Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Although there is no fixed 

numerical threshold for determining impracticability of joinder, a “substantial

amount of members will suffice.” McDonald v. Asset Acceptance LLC, 296 F.R.D. 

513, 520 (E.D. Mich. 2013). Only a reasonable estimate or some evidence of the 

number of members in the purported class is required. Id.; see also Curry v. SBC

Comm’ns, Inc., 250 F.R.D 301, 310 (E.D. Mich. 2008) (noting that 40 class 

members is sufficient to satisfy the numerosity requirement).

Here, the proposed Settlement Class easily satisfies Rule 23’s numerosity 

requirement. According to Rodale’s records, the proposed Settlement Class is 

comprised of approximately 580,000 Michigan residents who purchased a Rodale

magazine subscription between July 1, 2009 and the time of this filing. (Scharg 

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Decl. ¶ 15.) Thus, there is no question that joinder of all members of the Settlement 

Class would be impractical, and numerosity is therefore satisfied. 

B. The Commonality Requirement is Satisfied

The second requirement for certification mandates that “there are questions 

of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is 

satisfied when the claims depend on a common contention, the resolution of which 

will bring a class-wide resolution of the claims. Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 2541, 2551 (2011). The threshold for demonstrating the commonality 

requirement is not high, as “complete identity of issues is not required,” Merenda 

v. VHS of Mich., Inc., 296 F.R.D. 528, 536 (E.D. Mich. 2013), and is satisfied 

when there is one question common to the class, the resolution of which will 

advance the litigation. Whirlpool Litig., 722 F.3d at 582-83. 

Here, the common contention on which the claims of all class members 

depend is that Rodale disclosed each of its customers’ protected information to 

third parties—here, Acxiom and Merkle—in violation of the VRPA. Determination 

of the truth or falsity of this contention will resolve an issue—the issue—central to 

each class member’s claims at once.

Determining the truth or falsity of this common contention raises numerous 

common questions that track the elements of a VRPA claim, including: (1) whether 

Rodale is “engaged in the business of selling at retail . . . written materials,” (2) 

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whether Rodale disclosed “information concerning the purchase . . . of those 

materials by a customer” to Acxiom and Merkle, (3) whether the disclosed records 

or information indicated the customers’ identities, (4) whether Rodale obtained 

written permission prior the disclosures, (5) whether all the disclosures were made 

“for the exclusive purpose of marketing goods and services directly to the 

consumer,” and if so, (6) whether Rodale accurately informed its subscribers that 

they could remove their names at any time from the disclosed subscriber lists.

M.C.L. § 445.1712. As such, it is a common question whether Plaintiff and the 

members of the proposed Settlement Class all suffered the same injuries that entitle 

them to resulting damages. Dukes, 131 S. Ct. at 2551. Each of these legal questions 

can be determined on a class-wide basis using the same evidence regarding 

Rodale’s practices. See Coulter-Owens, 2015 WL 4527822, at *7-9 (finding the 

litigation was “driven by issues that are common to the entire putative class.”).

Numerous federal courts have similarly held that cases like this one—in 

which defendants are accused of uniformly disclosing information protected by a 

privacy statute—raise common issues of fact or law. See, e.g., id. at *7 (finding 

that, in case alleging magazine publisher’s alleged violation of the VRPA, “the 

litigation is driven by issues that are common to the entire putative class”); Supnick 

v. Amazon.com, Inc., 2000 WL 1603820, at *1 (W.D. Wash. May 18, 2000) 

(finding commonality established where the defendants engaged in common course 

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14

of conduct toward every member of proposed class: disclosing their personal 

information without their consent).

Given that there are multiple questions of law and fact common to members 

the Settlement Class, the commonality requirement is satisfied.

C. The Typicality Requirement is Satisfied

The next prerequisite—typicality—requires that class representative has 

claims that are typical of those of the putative class members. Fed. R. Civ. P. 

23(a)(3). “Typicality determines whether a sufficient relationship exists between 

the injury to the named plaintiff and the conduct affecting the class, so that the 

court may properly attribute a collective nature to the challenged conduct.” In re 

Am. Med. Sys., Inc., 75 F.3d at 1082. The test for typicality is not demanding and 

does not require the interests and claims of the plaintiffs to be identical. Reese v. 

CNH America, LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005). “Typicality may be 

presumed when the plaintiff’s claim arises from the same event or practice or 

course of conduct that gives rise to the claims of other class members.” Gilkey v. 

Central Clearing Co., 202 F.R.D. 515, 524 (E.D. Mich. 2001). In other words, 

when the basis of the suit is the defendant’s systematic business practices towards 

the named plaintiff and the members of the proposed class, typicality is satisfied. 

Here, Plaintiff alleges that Rodale discloses all of the Settlement Class 

Members’ subscription information to third parties (including Acxiom and Merkle)

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without consent in the exact same manner and for the exact same purpose as a 

matter of policy and practice. Plaintiff alleges that such conduct violates the 

VRPA, which provides identical statutory damages to all members of the 

Settlement Class. Plaintiff’s representation of the Settlement Class is, therefore, 

appropriate because they were all subjected to the same alleged unlawful conduct 

(i.e., Rodale’s allegedly unlawful disclosures), and as a result, are entitled to 

identical statutory damages. Accordingly, by pursuing her own claims in this 

matter, Plaintiff will necessarily advance the interests of the Settlement Class, and

thus, typicality is satisfied. See, e.g., Coulter-Owens, 2015 WL 4527822, at *10 

(finding “the typicality factor favors class certification”); Date v. Sony Electronics, 

Inc., 2013 WL 3945981, at *3 (E.D. Mich. July 31, 2013) (“Because all Class 

Members’ claims arise from the same course of conduct . . . their claims are based 

on the same legal theory and the typicality requirement, which is not onerous, is 

met.”); Little Caesar Enters., Inc. v. Smith, 172 F.R.D. 236, 243 (E.D. Mich. 1997) 

(finding typicality met where “the class representatives’ claims arose from the 

same events, legal documents, and consequences and legal theories affecting all 

class members).

D. The Adequacy Requirement is Satisfied

The final Rule 23(a) prerequisite requires that the class representative has 

and will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 

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23(a)(4). “The two criteria for determining whether class representatives are 

adequate are (1) the representatives must have common interests with unnamed 

members of the class, and (2) it must appear that the representatives will 

vigorously prosecute the interests of the class through qualified counsel.” Int’l 

Union v. Ford Motor Co., 2006 WL 1984363, at *19 (E.D. Mich. July 13, 2006) 

(quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)); Vassalle 

v. Midland Funding LLC, 708 F.3d 747, 757 (6th Cir. 2013). Adequacy exists 

when the named plaintiff is a part of the class, possesses the same interest, suffered 

the same injury, and thus, seeks the same type of relief as the other class members.

Beattie v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007).

In this case, Plaintiff Coulter-Owens—like each and every one of the 

Settlement Class Members—is a Michigan customer that purchased a magazine 

subscription from Rodale and then allegedly had their subscription information 

disclosed to third parties, including Acxiom and Merkle, without consent. Thus, 

Plaintiff and the Settlement Class Members have the exact same interest in 

recovering the statutory damages to which they are entitled under the VRPA and 

ensuring that such allegedly unlawful disclosures do not continue in the future. As 

such, Plaintiff Coulter-Owens does not have any interests antagonistic to those of 

the proposed Settlement Class and her pursuit of this litigation should be clear 

evidence of that.

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Likewise, proposed Class Counsel—Jay Edelson, Ari J. Scharg, and 

Benjamin S. Thomassen of Edelson PC—have extensive experience in litigating 

class actions of similar size, scope, and complexity to the instant action. (Scharg 

Decl. ¶ 8.) They regularly engage in major complex litigation involving consumer 

privacy issues, have the resources necessary to conduct litigation of this nature, 

and have frequently been appointed lead class counsel by courts throughout the 

country. (Id.); see also Firm Resume of Edelson PC, attached hereto as Exhibit 2-

A); In re Netflix Privacy Litig., 11-cv-00379, Dkt. 59 (N.D. Cal. Aug. 12, 2011) 

(appointed Interim Class Counsel in adversarial leadership dispute, during which 

the court noted that the Edelson firm “specializes in class actions relating to 

consumer technology and privacy issues” and that the “firm’s significant and 

particularly specialized expertise in electronic privacy litigation and class actions, 

renders them superior to represent the putative class”); In re Facebook Privacy 

Litig., 10-cv-02389, Dkt. 69 (N.D. Cal. 2010) (noting that the attorneys at Edelson 

are “pioneers in the electronic privacy class action field, having litigated some of 

the largest consumer class actions in the country on this issue”); Harris v. 

comScore, Inc., 292 F.R.D. 579, 581 (N.D. Ill. 2013) (achieved adversarial 

certification in the largest-ever privacy class action and appointed class counsel); 

Coulter-Owens, 2015 WL 4527822, at *12 (achieved adversarial certification in a 

similar VRPA class action against a magazine publisher and appointed class 

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counsel); Halaburda, 2:12-cv-12831, Dkt. 63 (appointed class counsel in a similar 

VRPA class action that settled on favorable terms). 

Further, proposed Class Counsel have devoted substantial resources to the 

prosecution of this action, including by investigating Plaintiff’s claims and that of 

the Settlement Class, aggressively pursuing those claims through hard fought 

litigation, engaging in contentious motion practice, completing extensive class and 

merits discovery, participating in two private mediations with Hon. James F. 

Holderman (Ret.) of JAMS in Chicago, Illinois, and ultimately, negotiating a 

favorable resolution. (Scharg Decl. ¶¶ 9-14.) In short, proposed Class Counsel have 

vigorously prosecuted this action and will continue to do so throughout its 

pendency. (Id.) 

Accordingly, since Plaintiff and proposed Class Counsel have demonstrated 

their commitment to representing the Settlement Class and neither have interests 

antagonistic to them, the adequacy requirement is satisfied.

E. The Proposed Settlement Class Meets the Requirements of Rule 

23(b)(3)

After meeting the prerequisites of Rule 23(a), a plaintiff seeking class 

certification must also show that the action qualifies under at least one of the 

categories outlined in Rule 23(b). Fed. R. Civ. P. 23(b); Merenda, 296 F.R.D. at 

535. Here, Plaintiff seeks certification under Rule 23(b)(3), which requires that (i) 

common questions of law and fact predominate over individualized ones, and that 

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(ii) a class action is superior to the other available methods for the fair an efficient 

adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). As explained below, the 

proposed Settlement Class meets these requirements.

1. Common Questions of Law and Fact Predominate

Rule 23(b)(3)’s predominance requirement focuses on whether the

defendant’s liability is common enough to be resolved on a class basis, Dukes, 131 

S. Ct. at 2551-57, and whether the proposed class is “sufficiently cohesive to 

warrant adjudication by representation.” Amchem, 251 U.S. at 623. The Rule 

23(b)(3) predominance requirement is akin to the commonality requirement of

Rule 23(a) in that both require the existence of common questions of law and 

fact—however, Rule 23(b) imposes the more stringent requirement that common 

issues predominate over individual issues. Machesney v. Lar-Bev of Howell, Inc.,

292 F.R.D. 412, 423 (E.D. Mich. 2013). In other words, where as commonality is 

satisfied when there is a single factual or legal question common to the class, the 

“predominance requirement is met if this common question is at the heart of the 

litigation.” Powers v. Hamilton County Public Defender Com’n, 501 F.3d 592, 619 

(6th Cir. 2007). Common issues are at the heart of a case when there is generalized 

evidence that would prove or disprove an element of the action on a class-wide 

basis. In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 339 (E.D. Mich. 2001); 

see also Powers, 501 F.3d at 619 (noting that “cases alleging a single course of 

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wrongful conduct are particularly well-suited to class certification.”). 

In this case, there are several common factual and legal questions that are at 

the center of this action: (1) whether Rodale is “engaged in the business of selling 

at retail . . . written materials,” (2) whether Rodale disclosed “information 

concerning the purchase . . . of those materials” to Acxiom and Merkle, (3) 

whether the disclosed records or information indicated the customers’ identities, 

(4) whether Rodale obtained written permission prior the disclosures, (5) whether 

all the disclosures were made “for the exclusive purpose of marketing goods and 

services directly to the consumer,” and if so, (6) whether Rodale properly informed 

its subscribers that they could remove their names at any time from the disclosed 

subscriber lists. These questions predominate over any issues affecting individual 

members (to the extent there are any) and are subject to common proof (i.e., 

examination of Rodale’s uniform conduct). 

Since Rodale engaged in a single course of conduct with respect to all 

members of the Settlement Class, their claims “will prevail or fail in unison,” and 

as such, predominance is met. Whirlpool, 722 F.3d at 859 (quoting Amgen, 133 S. 

Ct. at 1191).

2. A Class Action is a Superior Method for Adjudicating this 

Action

A class action is a superior means of adjudicating the controversy when it 

would “achieve economies of time, effort and expense and promote . . . uniformity 

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of decision as to persons similarly situated.” Amchem, 521 U.S. at 615. Class 

actions are preferred over small, individual suits for damages because they provide 

a mechanism through which individuals who, under other circumstances, would 

not have the opportunity to seek redress from the defendant through litigation, can 

do so. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 545 (6th Cir. 2010); see 

also Amchem, 521 U.S. at 617. Actions alleging a standard course of wrongful 

conduct are particularly well-suited for class certification because they facilitate 

efficiency and uniformity. Young, 693 F.3d at 545; Powers, 501 F.3d at 619 

(“cases alleging a single course of wrongful conduct are particularly well-suited to 

class certification”). As Judge Steeh held in Coulter-Owens, “given the 

commonalities, it makes sense to proceed as a class action and address the issues 

one time rather than [in] potentially hundreds of separate cases.” 2015 WL 

4527822, at *12. And in the context of certifying a class for settlement purposes, 

“a district court need not inquire whether the case, if tried, would present 

intractable management problems, for the proposal is that there be no trial.”

Amchem, 521 U.S. at 620. 

Here, all questions necessary to determine whether Rodale violated the 

VRPA are common to all Settlement Class Members. As such, a class action is a 

much more efficient use of judicial and party resources than multiple actions. In re 

Cardizem CD Antitrust Litig., 200 F.R.D. at 326. Further, absent a class action, 

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members of the Settlement Class would almost certainly find the cost of 

individually litigating their claims to be prohibitive. Indeed, no other member of 

the proposed Settlement Class has brought any VRPA claims against Defendant, 

and thus, “there is no indication that any class member wants to individually 

control his or her own separate action.” Calloway v. Caraco Pharm. Labs., Ltd., 

287 F.R.D. 402, 408 (E.D. Mich. 2012). 

In addition, many members of the proposed Settlement Class may not even 

be aware that Rodale is allegedly disclosing their protected information to third

parties. Where consumers are unlikely to discover (and vindicate) their injuries 

absent certification of a class, class treatment is superior to the alternatives. Young, 

693 F.3d at 545-46.

In the end, because common questions predominate and a class action is the 

superior method for adjudicating the controversy, maintenance of this action as a 

class action is appropriate.

V. PLAINTIFF’S COUNSEL SHOULD BE APPOINTED AS CLASS 

COUNSEL

Under Rule 23, “a court that certifies a class must appoint counsel . . . [who] 

must fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 

23(g)(1)(B). In making this determination, the Court considers proposed class 

counsel’s: (1) work in identifying or investigating the potential claim, (2) 

experience in handling class actions, other complex litigation, and the types of 

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claims asserted in the action, (3) knowledge of the applicable law, and (4) 

resources that it will commit to representing the class. Fed. R. Civ. P. 

23(g)(1)(A)(i)-(iv).

As discussed above, proposed Class Counsel have extensive experience in 

prosecuting consumer privacy class actions. (See Scharg Decl. ¶ 8; see also Firm 

Resume of Edelson PC, attached to the Scharg Decl. at Ex. 2-A.) And as a result of 

their zealous efforts in this case, proposed Class Counsel have secured a settlement 

that provides substantial monetary relief, as well as the prospective relief necessary 

to protect the Settlement Class Members’ privacy going forward. Thus, the Court 

should appoint Jay Edelson, Ari J. Scharg, and Benjamin S. Thomassen of Edelson 

PC as Class Counsel.

VI. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY 

APPROVAL

The procedure for review of a proposed class action settlement is a wellestablished two-step process. Conte & Newberg, 4 Newberg on Class Actions, 

§ 11.25, at 38-39 (4th Ed. 2002). The first step is a “preliminary, pre-notification 

hearing to determine whether the proposed settlement is within the range of 

possible approval.” In re Packaged Ice Antitrust Litig., 2010 WL 3070161, at *4 

(E.D. Mich. Aug. 2, 2010). The Manual for Complex Litigation characterizes the 

preliminary approval stage as an “initial evaluation” of the fairness of the proposed 

settlement made by a court on the basis of written submissions and informal 

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presentations from the settling parties. Manual for Complex Litigation § 21.632 

(4th ed. 2004).

While the Sixth Circuit has expressed a strong judicial policy favoring the 

voluntary conciliation and settlement of complex class action litigation, UAW v. 

Gen. Motors Corp., 497 F.3d 615, 632 (6th Cir. 2007), it has not specified a 

particular standard for granting preliminary settlement approval. Nevertheless, 

courts in this district generally look to two factors in making this determination. 

That is, preliminary approval should be given where the proposed settlement (1) 

does not disclose grounds to doubt its fairness, and (2) falls within the range of 

possible approval. In re Packaged Ice Antitrust Litig., 2010 WL 3070161, at *4; 

Sheick v. Auto. Component Carrier, LLC, 2010 WL 3070130, at *8 (E.D. Mich. 

Aug. 2, 2010). See also Ford Motor Co., 2006 WL 1984363, at *4 (“The Court 

finds that the proposed settlement falls within the range of possible approval, does 

not disclose grounds to doubt its fairness, and includes no obvious deficiencies”). 

The proposed Settlement in this case—which achieves both monetary payments for 

the Settlement Class and strong prospective relief—easily satisfies both factors.

First, there are no grounds upon which to doubt the Settlement’s fairness. 

The proposed Settlement was reached only after a year and half of hard-fought 

litigation, which included Rule 12(b)(1) and 12(b)(6) motion practice, the 

completion of full class and merits discovery, the production and review of 

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documents, the deposition of Defendant’s corporate representative, the deposition 

of Acxiom’s corporate representative, the deposition of Plaintiff Coulter-Owens, 

and two private mediations. (Scharg Decl. ¶ 4.) It was only then—with the 

assistance of Hon. James F. Holderman (Ret.) of JAMS and after numerous rounds 

of arm’s-length negotiations over two separate sessions—that the Parties were able 

to agree on the terms of a class-wide settlement. (Id. ¶¶ 5-7.) As such, the Parties 

had sufficient information to make knowledgeable decisions about settlement 

throughout the negotiations, and there are certainly no grounds from which to 

doubt the fairness of the Settlement. See Sheick, 2010 WL 3070130, at *13 

(“negotiations of the Settlement Agreement were conducted at arm’s-length by 

adversarial parties and experienced counsel, which itself is indicative of fairness, 

reasonableness, and adequacy”); see also IUE-CWA v. Gen. Motors Corp., 238 

F.R.D. 583, 597–98 (E.D. Mich. 2006) (finding that courts presume an absence of 

fraud or collusion absent evidence to the contrary).

Second, the strength of Plaintiff’s case compared to the settlement offer 

demonstrates that the proposed Settlement is fair, reasonable, and adequate, and 

well within the range of possible approval. Here, while Plaintiff and proposed 

Class Counsel are confident in Plaintiff’s claims, they are cognizant of the risks 

that would accompany further litigation. (Scharg Decl. ¶¶ 11-14.) Indeed, Rodale

has made clear that absent a settlement, it would continue its vigorous defense of 

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26

this case. (Id. ¶¶ 12-13.) And of course, without a settlement, there would be the 

uncertainty and expense of trial, and the risks and delay of inevitable appeals. See 

UAW v. Gen. Motors Corp., 2006 WL 891151, at *17 (E.D. Mich. Mar. 31, 2006) 

(“The obvious costs and uncertainty of such lengthy and complex litigation weigh 

in favor of settlement.”). 

More specifically, Plaintiff is aware that Rodale would continue to assert a 

number of defenses on the merits, including that the VRPA neither prohibits the 

disclosure of the magazine subscription information at issue (because, according to 

Rodale, Acxiom and Merkle are its agents), nor applies to Rodale at all because it 

is not engaged in the business of selling magazines “at retail,” as is required to 

come under the scope of the statute. (Scharg Decl. ¶ 12.) Further, Rodale has made 

clear that it would continue to challenge the constitutionality of the VRPA, as well 

as its applicability to magazines in particular and the magazine publishing industry 

in general. (Id.) Looking beyond trial, Plaintiff is also keenly aware of the fact that 

Rodale would appeal the merits of any adverse decision, and that in light of the 

massive aggregate statutory damages in play, it would attempt to argue—in both 

the trial and appellate courts—for a reduction of damages based on due process 

concerns.5 (Id. ¶ 13); see, e.g., Parker v. Time Warner Entm’t Co., 331 F.3d 13, 22 

 5

 Though Plaintiff maintains that the sheer size of a class-wide statutory damages 

award cannot render it unconstitutional—see Daniel R. LeCours, Note, Steering 

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27

(2d Cir. 2003) (“the potential for a devastatingly large damages award, out of all 

reasonable proportion to the actual harm suffered by members of the plaintiff class, 

may raise due process issues.”).

Given these concerns, Plaintiff and Class Counsel view the creation of the 

non-reversionary $4.5 million Settlement Fund—with its estimated $100 per 

claimant payment—as well as the required injunctive and prospective relief, to be 

an extraordinary result for the class. This is especially true considering the “all or 

nothing” nature of Plaintiff’s statutory claims: if she were to lose any aspect of this 

case, the class would get nothing. See Leonhardt v. ArvinMeritor, Inc., 581 F. 

Supp. 2d 818, 833 (E.D. Mich. 2008) (“The parties recognize, and the Court 

concurs, that continued litigation would be a high stakes “zero sum” undertaking, 

in which one party is likely to achieve complete victory while the opposing party 

experiences complete defeat because the parties’ core positions . . . are 

irreconcilable.”); see also Olden v. LaFarge Corp., 472 F. Supp. 2d 922, 933 (E.D. 

Mich. 2007) (“The fact that the settlement amount may equal but a fraction of 

 

Clear of the “Road to Nowhere”: Why the BMW Guideposts Should Not be Used 

to Review Statutory Penalty Awards, 63 Rutgers L. Rev. 327 (2010); cf. Cooper 

Indus., Inc. v. Leatherman Tool Group, Inc., 523 U.S. 424, 443 (2001) (“I continue 

to believe that the Constitution does not constrain the size of punitive damages 

awards.”) (Thomas, J. concurring) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 

559, 599 (1996) (Scalia, J., joined by Thomas, J., dissenting))—she acknowledges 

that if she obtained a judgment on the merits and was awarded statutory damages, 

the $3 billion damages award would likely be reduced. 

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potential recovery does not render the settlement inadequate. Dollar amounts are 

judged not in comparison with the possible recovery in the best of all possible 

worlds, but rather in light of the strengths and weaknesses of plaintiffs’ case.”).

Further, in terms of monetary relief, the Settlement’s projected $100 perclaim payment exceeds the Halaburda v. Bauer settlement—which is, to date, the 

only other VRPA case to settle and achieve final approval. See, e.g., Halaburda, 

2:12-cv-12831 (granting final approval to a settlement that provided claimants with 

an estimated $75 and similar injunctive relief). The relief also meets, and in many 

cases exceeds, the relief provided to class members in other privacy settlements 

involving similar statutes that have been approved throughout the country, many of 

which have provided only payments to cy pres or de minimus amounts to class 

members. See, e.g., Fraley, 966 F. Supp. 2d at 948 (approved settlement providing 

claimants with a cash payment of $15 in right to publicity case with potential 

statutory damages of $750); Lane, 696 F.3d at 820-22 (approving a $9.5 million 

settlement payment to cy pres as the sole form of monetary relief to class of more 

than 3 million individuals in case involving VPPA claims); In re Netflix Privacy 

Litig., 5:11-cv-00379, Dkt. 256 (approving $9 million settlement payment to cy 

pres as the sole form of monetary relief to class of more than 60 million 

individuals in case involving VPPA claims); In re Google Buzz Privacy Litig., 

2011 WL 7460099, at *3 (approving $8.5 million payment to cy pres as the sole 

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29

form of monetary relief in ECPA case with potential statutory damages of 

$10,000); Landwehr, 11-cv-1014, Dkt. 133 (approving settlement providing 

claimants with a payment of up to $100 in Electronic Communications Protection 

Act [“ECPA”] case with potential statutory damages of $10,000); Davis, 05-cv80806, Dkt. 46 (approving settlement providing claimants with a payment of up to 

$150 in Driver’s Privacy Protection Act case with potential statutory damages of 

$5,000). Thus, the proposed Settlement is eminently fair, reasonable, and in line 

with the results achieved by other statutory privacy class actions that have received 

final approval from courts in this District and across the country.

For these reasons, Plaintiff and proposed Class Counsel firmly believe that 

the monetary and prospective relief provided by the Settlement weighs heavily in 

favor of a finding that that the Settlement is fair, reasonable, and adequate, and 

well within the range of possible approval. (Scharg Decl. ¶ 14.) Accordingly, the 

Court should grant preliminary approval.

VII. THE NOTICE PLAN SHOULD BE APPROVED IN FORM AND 

SUBSTANCE

Rule 23 and Due Process require that “[f]or any class certified under Rule 

23(b)(3), the court must direct to class members the best notice practicable under 

the circumstances, including individual notice to all members who can be 

identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); Eisen v. Carlisle 

& Jacquelin, 417 U.S. 156, 173 (1974). Rule 23(e)(1) similarly provides that “[t]he 

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court must direct notice in a reasonable manner to all class members who would be 

bound by a proposed settlement, voluntary dismissal, or compromise.” Fed. R. Civ. 

P. 23(e)(1). The substance of the notice to the settlement class must describe in 

plain language the nature of the action, the definition of the class to be certified, 

the class claims and defenses at issue, that class members may enter an appearance 

through counsel if so desired, that class members may request to be excluded from 

the settlement class, and that the effect of a class judgment shall be binding on all 

class members. See Fed. R. Civ. P. 23 (c)(2)(B). Notice is “adequate if it may be 

understood by the average class member.” Newberg, § 11:53 at 167.

Here, the Parties have agreed upon a multi-part notice plan that easily 

satisfies the requirements of both Rule 23 and due process. First, the Settlement 

Administrator will send direct notice by email to all Settlement Class Members for 

whom a valid email address is identified in Rodale’s records. (Agreement ¶ 4.1(b);

Exhibit 1-B.) The email will contain an electronic link to the online claim form. 

(Id.) Next, the Settlement Administrator will send direct notice by First Class U.S. 

Mail, along with a postcard claim form with prepaid return postage, to all

Settlement Class Members who did not receive an email. (Agreement ¶ 4.1(c); Ex. 

1-C.) Further, the Settlement Administrator will establish a Settlement Website 

that shall contain the “long form notice” (Ex. 1-D), as well as access to important 

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Court documents, upcoming deadlines, and the ability to file claim forms online.6

(Id. ¶ 4.1(d).) The Settlement Administrator will also provide notice of the 

Settlement to the appropriate state and federal officials as required by the Class 

Action Fairness Act, 28 U.S.C. § 1715. (Id. ¶ 4.1(e).)

In sum, the proposed methods for providing notice to the Class comports 

with both Rule 23 and Due Process, and thus, should be approved by the Court.

VIII. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court enter 

an Order (i) granting preliminary approval of the Parties’ proposed Class Action 

Settlement Agreement, (ii) certifying the proposed Settlement Class for settlement 

purposes, (iii) approving the form and content of the notice to the members of the 

Settlement Class, (iv) appointing Plaintiff Coulter-Owens as Class Representative, 

(v) appointing Jay Edelson, Ari J. Scharg, and Benjamin S. Thomassen of Edelson 

PC as Class Counsel, (vi) scheduling a Final Fairness Hearing in this matter, and 

(vii) providing such other and further relief as the Court deems reasonable and 

just.7

 6

 The Settlement Website URL is www.MichiganMagazineSettlement.net. 7

 A [Proposed] Preliminary Approval Order is attached hereto as Exhibit 3.

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32

Respectfully submitted,

ROSE COULTER-OWENS, individually 

and on behalf of a class of similarly situated 

individuals

Dated: December 23, 2015 By: /s/ Ari J. Scharg

One of her attorneys

Jay Edelson

jedelson@edelson.com

Ari J. Scharg

ascharg@edelson.com

Benjamin S. Thomassen

bthomassen@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Henry M. Scharg

hmsattyatlaw@aol.com

LAW OFFICE OF HENRY M. SCHARG

718 Ford Building 

Detroit, Michigan 48226

Tel: 248.596.1111

Fax: 248.671.0335

Proposed Class Counsel

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CERTIFICATE OF SERVICE

I, Ari J. Scharg, an attorney, hereby certify that on December 23, 2015, I 

served the above and foregoing Plaintiff’s Unopposed for Preliminary Approval 

of Class Action Settlement on all counsel of record by filing it electronically with 

the Clerk of the Court using the CM/ECF system on this, the 23rd day of 

December 2015.

/s/ Ari J. Scharg

2:14-cv-12688-RHC-RSW Doc # 42 Filed 12/23/15 Pg 42 of 42 Pg ID 388