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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., 

 Defendant.

 

Case No. 2:14-cv-12688

ORDER GRANTING PRELIMINARY APPROVAL 

OF CLASS ACTION SETTLEMENT AGREEMENT, CONDITIONALLY 

CERTIFYING SETTLEMENT CLASS, APPOINTING CLASS 

REPRESENTATIVE, APPOINTING CLASS COUNSEL, AND 

APPROVING NOTICE PLAN 

Pending before the court is a proposed class action settlement. (Dkt. 

# 42.) The attached Class Action Settlement Agreement, together with the 

related exhibits, sets forth the terms and conditions for the proposed 

settlement and dismissal of the action with prejudice as to Defendant. The 

court has considered the proposed settlement, preliminarily approves of it, 

and conditionally certifies the settlement class, appoints a class 

representative and class counsel, and approves the notice plan with some 

modifications, 

Accordingly, IT IS ORDERED: 

1. Terms and phrases in this Order shall have the same meaning 

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as ascribed to them in the Settlement Agreement. 

2. The Parties have moved the court for an order approving the 

settlement of the Action in accordance with the Settlement Agreement, 

which, together with the documents incorporated therein, sets forth the 

terms and conditions for a proposed settlement and dismissal of the Action 

with prejudice, and the court having read and considered the Settlement 

Agreement, hereby preliminarily approves the Settlement Agreement 

subject to the various modifications explained in this Order and subject to 

the Final Approval and Fairness Hearing. 

3. This court finds that it has jurisdiction over the subject matter of 

this action and over all Parties to the Action. 

4. The court finds that, notwithstanding the concerns highlighted 

below, and subject to the Final Approval Hearing, the Settlement 

Agreement is fair, reasonable, and adequate, within the range of possible 

approval, and in the best interests of the Settlement Class set forth below. 

The court further finds that the Settlement Agreement substantially fulfills 

the purposes and objectives of the class action, and provides substantial 

relief to the Settlement Class without the risks, burdens, costs, or delay 

associated with continued litigation, trial, and/or appeal. The court also 

finds that the Settlement Agreement (a) is the result of arm’s-length 

negotiations between experienced class action attorneys; (b) is sufficient to 

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warrant notice of the settlement and the Final Approval Hearing to be 

disseminated to the Settlement Class; (c) meets all applicable requirements 

of law, including Federal Rule of Civil Procedure 23 and the Class Action 

Fairness Act (“CAFA”), 28 U.S.C. § 1715; and (d) is not a finding or 

admission of liability by the Defendant or any other parties. 

Certification of the Settlement Class 

5. For purposes of settlement only: (a) Jay Edelson, Ari J. Scharg, 

and Benjamin S. Thomassen of Edelson PC are appointed Class Counsel 

for the Settlement Class; and (b) Rose Coulter-Owens is named Class 

Representative. The court finds that these attorneys are competent and 

capable of exercising the responsibilities of Class Counsel and that Plaintiff 

Coulter-Owens will adequately protect the interests of the Settlement Class 

defined below. 

6. For purposes of settlement only, the court conditionally certifies 

the following Settlement Class as defined in the Settlement Agreement: 

All persons with Michigan street addresses who, between 

July 1, 2009 and the date of Preliminary Approval, 

purchased a subscription to a Rodale Publication. 

Final certification of the class will occur after the Final Approval 

Hearing, when the court enters a final judgment in this case. 

7. The court finds, notwithstanding the concerns highlighted 

below, and subject to the Final Approval Hearing, that the Settlement 

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Agreement is fundamentally fair, adequate, and reasonable, and that the 

Settlement Class satisfies the requirements of Rule 23 of the Federal Rules 

of Civil Procedure, specifically, that: the Settlement Class is so numerous 

that joinder of all members is impracticable; there are questions of fact and 

law common to the Settlement Class (e.g., whether Defendant obtained 

consent before disclosing to third parties Plaintiff’s and the Settlement 

Class’s Subscriber Information, whether Defendant’s disclosure of 

Plaintiff’s and the Settlement Class Members’ Magazine Subscriber 

Information violated the Michigan Video Rental Privacy Act, M.C.L. §§ 

445.1712, et al. (“VRPA”), and whether Plaintiff and the Settlement Class 

members are entitled to uniform statutory damages under the VRPA); the 

claims of the Class Representative are typical of the claims of the members 

of the Settlement Class; the Class Representative and Class Counsel will 

fairly and adequately protect the interests of the members of the Settlement 

Class; common questions of law or fact predominate over questions 

affecting individual members; and a class action is a superior method for 

fairly and efficiently adjudicating the Action. 

8. The court takes this opportunity to raise, for proponents of 

settlement and certification, certain concerns with the proposed class and 

settlement, which the court expects to address at the Final Approval 

Hearing. 

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a. The proposed settlement contemplates a $5,000 incentive 

award for the named plaintiff in this action; this payment 

raises serious concerns about the adequacy of the named 

plaintiff as a representative of the class. The Sixth Circuit 

has held that adequacy of a class member’s representation 

is based on two factors: “1) the representatives must have 

common interests with the unnamed members of the class, 

and 2) it must appear that the representatives will vigorously 

prosecute the interests of the class through qualified 

counsel.” In re Dry Max Pampers Litigation, 724 F.3d 713, 

721 (6th Cir. 2013) (quoting Vassalle v. Midland Funding 

LLC, 708 F.3d 747, 755 (6th Cir. 2013)). “[T]he linchpin of 

the adequacy requirement is the alignment of interests and 

incentives between the representative plaintiffs and the rest 

of the class.” Id. (quoting Dewey v. Volkswagen 

Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012)). The 

Sixth Circuit has also expressed the “sensibl[e] fear that 

incentive awards may lead named plaintiffs . . . to 

compromise the interest of the class for personal gain.” Id.at 

722 (quoting Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 

2003)). This fear is at its height when the incentive award 

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makes the class representative whole or more than whole, 

as is the case here, because in such cases the class 

representative has no reason to care whether the award to 

class members provides adequate relief. Id. However, an 

incentive award may be appropriate where it is tailored to 

compensate a class representative for her actions, time, and 

effort in prosecuting the action. See Enterprise Energy Corp. 

v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 

(S.D. Ohio 1991). Class counsel and proponents of the class 

should be prepared to justify, with specific facts, the 

incentive payment proposed here as compensation for work 

done. Otherwise, such an award risks rendering the 

proposed class representative inadequate under Rule 23. 

b. Plaintiff indicates that the proposed settlement will result in 

an estimated $100 award to each class member. The Motion 

in support of preliminary settlement approval, however, 

provides inadequate evidence that such an estimate has any 

basis in fact or is a truly considered estimate. Footnote three 

to the motion states merely, “[t]his estimation is based upon 

typical participation rates in consumer class action 

settlements.” (Pl.’s Mot. 2 n.3.) The court has a duty to 

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evaluate the settlement’s fairness by weighing the plaintiff’s 

likelihood of success on the merits against the amount and 

form of relief offered in the settlement.” Int’l Union, United 

Auto.. Aerospace & Agr. Implement Workers of Am. v. Gen. 

Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007). Without 

sound justification for the estimated payment to each class 

member, the court cannot say whether class members are 

likely to receive a fair deal. The court expects such 

justification to be offered at the Fairness Hearing. 

9. Should the Settlement Agreement not receive the court’s final 

approval, should final approval be reversed on appeal, or should the 

Settlement Agreement otherwise fail to become effective, the proposed 

Class Representative would once again bear the burden of establishing the 

propriety of class certification. In such case, neither the certification of the 

Settlement Class for settlement purposes, nor any other act relating to the 

negotiation or execution of the Settlement Agreement shall be considered 

as a factor in connection with any class certification issue(s). 

Notice and Administration 

10. The court approves, subject to the few notations below, the 

form, content, and distribution, the Claim Form attached to the Settlement 

Agreement as Exhibit A, the Notice Plan and all forms of Notice to the 

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Settlement Class as set forth in the Settlement Agreement and Exhibits B, 

C, and D thereto, and finds that such Notice is the best notice practicable 

under the circumstances, and that the Notice complies fully with the 

requirements of the Federal Rules of Civil Procedure. However, Class 

Counsel should be sure to take note of and amend notice as to the 

following issues: 

a. As proposed, the current notice lists this court’s former 

address and courtroom number. The Final Approval and 

Fairness Hearing will be held at the United States District 

Court in the Federal Building, 526 Water Street, Port Huron, 

MI 48060. Notice should be amended to reflect the proper 

address. 

b. Notice should make explicit that class members are not to 

contact the court with questions, but should direct all 

inquiries to class counsel, instead. 

11. The court also finds that the Notice, with the above corrections, 

constitutes valid, due and sufficient notice to all persons entitled thereto, 

and meets the requirements of Due Process. The court further finds that 

the Notice is reasonably calculated to, under all circumstances, reasonably 

apprise members of the Settlement Class of the pendency of this action, 

the terms of the Settlement Agreement, and the right to object to the 

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settlement and to exclude themselves from the Settlement Class. In 

addition, the court finds that no notice other than that specifically identified 

in the Settlement Agreement is necessary in this Action. The parties, by 

agreement, may revise the Notice and Claim Form in ways that are not 

material, or in ways that are appropriate to update those documents for 

purposes of accuracy or formatting for publication. 

12. The court approves the request for the appointment of Epiq 

Systems, Inc. as Settlement Administrator of the Settlement Agreement. 

13. Pursuant to paragraph 4.1 of the Settlement Agreement, the 

Settlement Administrator is directed to publish the Notice and Claim Form 

on the Settlement Website and to send direct notice via U.S. Mail and email 

in accordance with the Notice Plan called for by the Settlement Agreement. 

The Settlement Administrator shall also maintain the Settlement Website to 

provide full information about the Settlement and allow for the filing of 

claims online. 

14. Not less than fourteen (14) days prior to the Final Approval 

Hearing, counsel for Defendants and Class Counsel shall jointly file with 

the court an affidavit from a representative of the Settlement Administrator 

confirming that the plan for disseminating Notice has been accomplished in 

accordance with this Order and the Settlement Agreement. The affidavit 

should state how many class members were identified on the “Class List,” 

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how many class members were notified by email, and how many class 

members were notified by U.S. mail. 

Exclusion

15. Members of the Class who wish to receive benefits under the 

Settlement Agreement must complete and submit their Claim Form(s) in 

accordance with the instructions contained therein. All Claim Forms must 

be postmarked or received by the Settlement Administrator within forty-five 

(45) days after the date of the entry of the Final Judgment. 

16. Members of the Settlement Class who wish to exclude 

themselves from the Class may do so if, on or before the 

Objection/Exclusion Deadline of seventy-seven (77) days after entry of this 

order they comply with the exclusion procedures set forth in the Settlement 

Agreement and Notice. Any members of the Class so excluded shall 

neither be bound by the terms of the Settlement Agreement nor entitled to 

any of its benefits. 

17. Any members of the Settlement Class who elect to exclude 

themselves or “opt out” of the Settlement Agreement must file a written 

request with the Settlement Administrator, received or postmarked no later 

than the Objection/Exclusion Deadline. The request for exclusion must 

comply with the exclusion procedures set forth in the Settlement 

Agreement and Notice and include the Settlement Class member’s name 

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and address, the name of the Rodale publication to which he or she is a 

subscriber, a signature, the name and number of the case, and a statement 

that he or she wishes to be excluded from the Settlement Class for the 

purposes of this Settlement. So called “mass” or “class” opt-outs shall not 

be allowed. 

18. Members of the Settlement Class who opt out of the Settlement 

Agreement will relinquish their rights to benefits under the Settlement 

Agreement and will not release their claims. However, members of the 

Settlement Class who fail to submit a valid and timely request for exclusion 

shall be bound by all terms of the Settlement Agreement and the Final 

Judgment, regardless of whether they have requested exclusion from the 

Settlement Agreement. 

Objections

19. Any members of the Settlement Class who have not timely filed 

a request for exclusion may object to the fairness, reasonableness, or 

adequacy of the Settlement Agreement or to a Final Judgment being 

entered dismissing the Action with prejudice in accordance with the terms 

of the Settlement Agreement, or to the attorneys’ fees and expense 

reimbursement sought by Class Counsel in the amounts specified in the 

Notice, or to the award to the Class Representative as set forth in the 

Notice and Settlement Agreement. At least fourteen (14) days prior to the 

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Objection/Exclusion Deadline, papers supporting the Fee Award shall be 

filed with the court and posted to the settlement website. Members of the 

Class may object on their own, or may do so through separate counsel at 

their own expense. 

20. To object, members of the Class must sign and file a written 

objection no later than on or before the Objection/Exclusion Deadline of 

seventy-seven (77) days after entry of this Order. To be valid, the objection 

must comply with the objection procedures set forth in the Settlement 

Agreement and Notice, and include his or her name and address; an 

explanation of the basis upon which he or she claims to be a Settlement 

Class Member, including the Rodale publication to which he or she is or 

was a subscriber; a signature; all grounds for the objection, including all 

citations to legal authority and evidence supporting the objection; the name 

and contact information of any and all attorneys representing, advising, or 

in any way assisting him or her in connection with the preparation or 

submission of the objection or who may profit from the pursuit of the 

objection (the “Objecting Attorneys”); and a statement indicating whether 

he or she intends to appear at the Final Approval Hearing (either personally 

or through counsel who files an appearance with the court in accordance 

with Eastern District of Michigan Local Rules). If a Settlement Class 

Member or any of the Objecting Attorneys has objected to any class action 

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settlement where the objector or the Objecting Attorneys asked for or 

received any payment in exchange for dismissal of the objection, or any 

related appeal, without any modification to the settlement, then the 

objection must include a statement identifying each such case by full case 

caption. 

21. Members of the Class who fail to file and serve timely written 

objections in compliance with the requirements of this paragraph and the 

Settlement Agreement shall be deemed to have waived any objections and 

shall be foreclosed from making any objections (whether by appeal or 

otherwise) to the Settlement Agreement or to any of the subjects listed in 

paragraph 23, below. 

22. To be valid, objections must be filed with the court and sent to 

Class Counsel: Ari J. Scharg of Edelson PC, 350 North LaSalle, Suite 

1300, Chicago, IL 60654, and to Defendant’s Counsel: Natalie Spears of 

Dentons US LLP, 233 South Wacker Drive, Suite 5900, Chicago, IL 60606-

631. In addition, any objections made by a Class member represented by 

counsel must be filed through the court’s CM/ECF system. 

Final Approval Hearing 

23. The Final Approval Hearing shall be held before this court on 

September 7, 2016 at 10 a.m. at the United States District Courthouse 

at 526 Water Street, Port Huron, MI 48060 to determine (a) whether the 

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proposed settlement of the Action on the terms and conditions provided for 

in the Settlement Agreement is fair, reasonable, and adequate and should 

be given final approval by the court; (b) whether a judgment and order of 

dismissal with prejudice should be entered; (c) whether to approve the 

payment of attorneys’ fees and expenses to Class Counsel; and (d) 

whether to approve the payment of an incentive award to the Class 

Representative. The court may adjourn the Final Approval Hearing without 

further notice to members of the Settlement Class. 

24. Class Counsel shall file papers in support of their Fee Award 

and Class Representative’s Incentive Award (collectively, the “Fee 

Petition”) with the court on or before sixty-three (63) days after entry of this 

Order, (i.e., 14 days before the Objection/Exclusion Deadline). 

25. Papers in support of final approval of the Settlement Agreement 

and any supplementation to the Fee Petition shall be filed with the court on 

or before 14 days before the Final Approval Hearing. 

Further Matters

26. All further proceedings in the Action are ordered stayed until 

Final Judgment or termination of the Settlement Agreement, whichever 

occurs earlier, except for those matters necessary to obtain and/or 

effectuate final approval of the Settlement Agreement. 

27. Members of the Settlement Class shall be bound by all 

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determinations and judgments in the Action concerning the Action and/or 

Settlement Agreement, whether favorable or unfavorable. 

28. If the Settlement Agreement is not approved by the court in 

complete accordance with its terms, each party will have the option of 

having the Action revert to its status as if the Settlement Agreement had 

not been negotiated, made, or filed with the court. In such event, the parties 

will retain all rights as if the Settlement Agreement was never agreed upon. 

29. In the event that the Settlement Agreement is terminated 

pursuant to the provisions of the Settlement Agreement or for any reason 

whatsoever the approval of it does not become Final then (i) the Settlement 

Agreement shall be null and void, including any provision related to the 

award of attorneys’ fees, and shall have no further force and effect with 

respect to any party in this Action, and shall not be used in this Action or in 

any other proceeding for any purpose; (ii) all negotiations, proceedings, 

documents prepared, and statements made in connection therewith shall 

be without prejudice to any person or party hereto, shall not be deemed or 

construed to be an admission by any party of any act, matter, or 

proposition, and shall not be used in any manner or for any purpose in any 

subsequent proceeding in this Action or in any other action in any court or 

other proceeding, provided, however, that the termination of the Settlement 

Agreement shall not shield from subsequent discovery any factual 

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information provided in connection with the negotiation of this Settlement 

Agreement that would ordinarily be discoverable but for the attempted 

settlement; (iii) other than as expressly preserved by the Settlement 

Agreement in the event of its termination, the Settlement Agreement shall 

have no further force and effect with respect to any party and shall not be 

used in the Action or any other proceeding for any purpose; and (iv) any 

party may elect to move the court pursuant to the provisions of this 

paragraph, and none of the non-moving parties (or their counsel) shall 

oppose any such motion. 

IT IS SO ORDERED, this 3rd day of May, 2016. 

 S/Robert H. Cleland 

 ROBERT H. CLELAND 

 UNITED STATES DISTRICT JUDGE 

Dated: May 3, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

and/or pro se parties on this date, May 3, 2016, by electronic and/or ordinary mail. 

 S/Lisa Wagner 

 Case Manager and Deputy Clerk 

 (313) 234-5522 

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