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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 1

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

The Honorable Robert S. Lasnik 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

KAVU, INC., on behalf of itself and all others 

similarly situated, 

 Plaintiff, 

 v. 

OMNIPAK CORPORATION, 

 Defendant. 

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No. C06-0109 RSL 

PLAINTIFF’S MOTION 

FOR PRELIMINARY APPROVAL 

OF SETTLEMENT AGREEMENT 

AND PROPOSED NOTICE 

NOTE ON MOTION CALENDAR: 

FRIDAY, JUNE 29, 2007 

Plaintiff respectfully submits this Motion seeking preliminary approval of the Settlement 

Agreement between the parties and approval of the Notice Of Class Action And Settlement 

Hearing (“Class Notice”) attached as Exhibit B to the Agreement submitted with this motion. 

I. INTRODUCTION

The parties have reached a Settlement Agreement, subject to Court approval, which 

provides for the payment of $432,000 to create a Settlement Fund. This Fund will pay attorney’s 

fees and costs (including costs of administration of the Settlement), a $5,000 payment to the Class 

Representative, and $500 to each Class Member who makes a valid claim. Any funds remaining 

after payment of valid claims will be distributed as a cy pres payment to the Legal Aid for 

Washington Fund (“LAW Fund”). If valid claims exceed the amount available, Class Members 

who make valid claims will be paid pro rata after payments for attorney’s fees, costs, and the 

Case 2:06-cv-00109-RSL Document 71 Filed 06/12/07 Page 1 of 7
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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 2

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

Class Representative. Defendant’s insurer is funding the Settlement. A copy of the Settlement 

Agreement is attached to the Declaration of Mark A. Griffin in Support of Plaintiff’s Motion for 

Preliminary Approval of Settlement Agreement and Proposed Notice (“Griffin Decl.”). 

II. FACTUAL BACKGROUND

Kavu operates an outdoor clothing and accessories business in Seattle. On August 13, 

2005, Kavu received an unsolicited advertisement by facsimile from Omnipak. Declaration of 

Joe Pinsoneault (Dkt. # 26), ¶ 2 and Ex. A. Kavu had never done business with Omnipak, had 

never responded to any letter from Omnipak, and had in no other way given permission to 

Omnipak to send faxes. Id. at ¶ 6. 

During 2005, Omnipak learned of a company, Manufacturers’ News, that gathered 

information on companies that might be interested in Omnipak’s products. Omnipak further 

learned from reviewing Manufacturers’ News’ website that it gathered fax numbers from 

companies in its database and confirmed the accuracy of the fax numbers both in phone calls and 

by sending periodic faxes to the companies. Omnipak assumed that by giving their fax numbers 

to Manufacturers’ News the companies were giving permission for faxes to be sent to them. 

Declaration of James Johnson (“Johnson Decl.”) (Dkt. #34), ¶ 5. 

 In the summer of 2005, Omnipak purchased a database from Manufacturers’ News for 

companies in Washington, Oregon, Idaho and Montana. In August, Omnipak sent the fax in 

question to “many” of the numbers, hoping to generate business. Prior to sending the fax, 

Defendant deleted from the database any companies that had previously requested that 

Defendant refrain from sending them faxes. Defendant may have added or deleted its current 

customers from the database before sending the fax. Review of telephone records after the 

faxing demonstrated that Defendant had attempted to fax “close to” 100 of its current customers. 

Id. at ¶ 6. Prior to sending facsimiles in late July through mid-August, 2005, Omnipak had never 

before sent a broadcast facsimile, and it has not done so since. 

 Since sending the fax, Omnipak has lost the records of the companies to which it sent the 

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 3

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

broadcast fax in question and has misplaced the disks from Manufacturers’ News for 

Washington and Oregon. Id. at ¶ 7. It has also not saved a report generated by its software 

which indicated to which numbers the fax transmission was completed and to which it was not. 

Prior to “not saving” the report, Defendant reviewed it and determined that the faxes went 

through to at least half but less than 90% of the companies to which it was sent. Id. at ¶ 8. 

Kavu claims that as a result of receiving the facsimile, it and members of the Class 

experienced damages due to the loss of its paper and toner, the temporary loss of use of its 

facsimile machine, the potential loss of business while its facsimile machine was in use, and a 

violation of its right to privacy. Kavu alleges violations of the Telephone Consumer Protection 

Act of 1991 (“TCPA”), 47 U.S.C. § 227. Kavu also alleges that Omnipak violated the 

Washington Unsolicited Facsimile Act (“WUTA”), RCW 80.36.540, and the Washington 

Consumer Protection Act (“CPA”), RCW 19.86 et seq. The TCPA and the WUTA provide for a 

$500 penalty for sending an unsolicited facsimile. 47 U.S.C. § 227(b)(3)(B); RCW 

80.36.540(2). The TCPA provides for trebling the penalty if the sender “willfully or knowingly” 

violated the Act. 47 U.S.C § 227(b)(3). A violation of the WUTA is also a violation of the 

CPA. The CPA provides for attorney’s fees and the discretionary trebling of actual damages up 

to $10,000. 

A. Litigation History.

The Class Action Complaint was filed on December 14, 2005 in King County Superior 

Court. On January 20, 2006, Defendant removed the action to this Court based on the Class 

Action Fairness Act of 2005 (“CAFA”). The Class Action Complaint was amended to include 

all facsimile transmissions made by Defendant during the four year period immediately 

preceding the filing of the Complaint. Plaintiff moved for class certification, and on January 23, 

2007, the Court certified a class comprised of: 

All persons, excluding those with whom Omnipak had an established 

business relationship, who received an unsolicited advertisement 

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 4

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

promoting “Omnipak’s Summer Bag Special is here” via facsimile from 

Defendant during the period of time defined by the applicable statute of 

limitations. 

(Dkt. # 44). Defendant moved for reconsideration of this Order, but the Court denied that 

motion on March 5, 2007 (Dkt. # 62). On March 15, 2007, Defendant filed a Petition for 

Permission to Appeal from Orders Granting Class Certification and Denying Reconsideration 

with the Court of Appeals for the Ninth Circuit. That Petition has been fully briefed. Defendant 

notified the appellate court of the pending settlement negotiations asking that the court refrain 

from ruling on the Petition. The Ninth Circuit has issued an Order instructing Defendant to file a 

written status report on or before June 28, 2007. Declaration of Mary Montgomery in Support of 

Plaintiff’s Motion for Preliminary Approval of Settlement Agreement and Proposed Notice 

(“Montgomery Decl.”), Ex. A. 

On February 27, 2007, Defendant’s insurer, Truck Insurance Exchange (“Truck 

Insurance”), filed a Complaint for Declaratory Relief in the Superior Court of the State of 

California for the County of Ventura, naming Omnipak and Kavu as defendants and seeking a 

declaration that it has no duty to defend or indemnify Omnipak in the action pending before this 

Court. Montgomery Decl., Ex. B. 

On May 13, 2007, the Court approved the form of class notice proposed by Plaintiff and 

ordered Defendant to provide Class Counsel with a list of Class Members (Dkt. # 66). As a 

result of this Order, Defendant produced a list of 7,264 entities that were sent the unsolicited 

advertisement at issue in this case. Montgomery Decl., ¶ 4. 

On February 22, 2007, the Plaintiff and the Class filed a motion for summary judgment 

(Dkt. #55). That motion was fully briefed when the parties reached a settlement in this case. 

On April 3, 2007, the parties mediated their claims before Judge Larry Jordan, Ret., of 

Judicial Dispute Resolutions and reached a settlement agreement based on that mediation and 

subsequent negotiation that occurred over the course of several weeks. On April 27, 2007, Judge 

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 5

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

Jordan filed a Report notifying the Court of this settlement (Dkt. #69). Defendant signed the 

Settlement Agreement yesterday. Griffin Decl. 

B. Summary of the Terms of the Settlement.

The parties have reached a Settlement Agreement that provides for the payment of 

$432,000 to create a Settlement Fund in exchange for a release from liability relating to three 

facsimile transmissions sent in late July through mid-August, 2005, advertising Omnipak’s 

services and products. It is proposed, subject to Court approval, that the Settlement Fund be used 

to pay attorney’s fees and costs (including costs of administration of the Settlement), a $5,000 

incentive payment to the Class Representative, and $500 to each Class Member who makes a 

valid claim. Any funds remaining after payment of valid claims will be distributed as a cy pres

payment to the LAW Fund to support civil legal aid programs in Washington State. Founded in 

1991, the LAW Fund was administratively merged with the Legal Foundation of Washington, the 

organization that administers IOLTA distributions, in 2004 to more efficiently and effectively 

fund legal aid programs statewide (http://www.legalaidforwafund.org/lawfund.htm). If valid 

claims exceed the amount available, Class Members who make valid claims will be paid pro rata 

after payments for attorney’s fees, costs, and the Class Representative. 

III. LEGAL DISCUSSION

Before a class action may be finally dismissed or compromised, court approval must be 

obtained, and notice of the proposed dismissal or compromise must be provided in the manner 

the court directs. Fed. R. Civ. P. 23(e). The Manual for Complex Litigation (Fourth) (2007), at 

§ 13.14, sets forth the procedures for preliminary approval of a settlement and notice to the class: 

First, the judge reviews the proposal preliminarily to determine whether it 

is sufficient to warrant public notice and a hearing. If so, the final 

decision on approval is made after the hearing. 

If the Court’s preliminary evaluation discloses no unfairness or deficiencies in the settlement, 

and if the settlement appears to fall within the range of possible approval, the court should direct 

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 6

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

that notice issue to the class members advising them of a formal fairness hearing on the 

settlement. Id. The following factors are relevant to final approval: (1) the strength of the 

Plaintiffs’ case; (2) the risk, expense, complexity and likely duration of further litigation; (3) the 

risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; 

(5) the extent of discovery completed and the stage of the proceedings; (6) the experience and 

views of counsel; (7) the presence of a government participant; and (8) the reaction of the class 

members to the proposed settlement. Hanlon v. Chrysler Corp., 150 F. 3d 1011, 1026 (9th Cir. 

1998); Officers for Justice v. Civil Service Comm’n of the City and County of San Francisco, 688 

F. 2d 615, 625 (9th Cir. 1982). These factors also support preliminary approval here. 

A. The Settlement Agreement Resulted From Arms’ Length Negotiations And Was Not The 

Product Of Collusion. 

The requirement that the settlement be fair is designed to protect against collusion among 

the parties. In re Mid-Atlantic Toyota Antitrust Litig., 564 F.Supp. 1379, 1383 (D.Md. 1983). 

There is usually an initial presumption of fairness when a proposed settlement is recommended 

by class counsel after arms’ length bargaining. 4 Newberg on Class Actions , § 11.41 at 118 (4th 

ed. 2002). Here, the settlement was the result of such arms’ length negotiations by experienced 

lawyers.1 The negotiations occurred over the course of several weeks and after a day-long 

mediation before Judge Larry Jordan, Ret. 

B. The Value Of This Agreement Outweighs The Mere Possibility Of Future Relief After 

Protracted Litigation Justifying Preliminary Approval. 

 The settlement agreement falls within the range of possible approval and warrants notice 

to Class Members. Kavu previously represented to the Court that the Class will stipulate to a 

damages cap commensurate to Omnipak’s insurance coverage. Defendant produced a list of 

7,264 entities that were sent the unsolicited advertisement at issue in this case. Montgomery 

Decl., ¶ 4. At $500 per facsimile, the statutory damages could be $3,632,000. However, 

 

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 The experience and qualifications of Class Counsel are set forth in the Declaration of Mark A. 

Griffin (Dkt. #24) and the Declaration of Rob Williamson (Dkt. #25). 

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT 

Case No. CV02-1032P; Page 7

LAW OFFICES OF 

KELLER ROHRBACK L.L.P. 

1201 THIRD AVENUE, SUITE 3200 

SEATTLE, WASHINGTON 98101-3052 

TELEPHONE: (206) 623-1900 

FACSIMILE: (206) 623-3384

Defendant estimates that at least half but less than 90% of the companies to which the facsimile 

was sent actually received the fax. Johnson Decl. (Dkt. #34), ¶ 8. Thus, a judgment in the 

amount of at least $1,816,000 seems likely. Pursuant to the Settlement Agreement, $432,000 

will be paid to create a Settlement Fund. Given the fact that Omnipak has a Petition for 

Permission to Appeal from Orders Granting Class Certification and Denying Reconsideration 

pending with the Ninth Circuit, Montgomery Decl., Ex. A, and Truck Insurance filed a lawsuit in 

California state court seeking a declaration that it has no duty to defend or indemnify Omnipak 

under its policies, Id. at Ex. B, this settlement amount appears to be reasonable. 

C. The Proposed Notice of Settlement Agreement is Adequate and Should Be Approved. 

“The standard for settlement notice under Rule 23(e) is that it must ‘fairly apprise’ the 

class members of the terms of the proposed settlement and of their options.” See Gottlieb v. 

Wiles, 11 F.3d at 1001, 1012-13 (10th Cir. 1993). The proposed notice meets this standard. The 

parties have agreed to the content of the proposed Class Notice attached as Exhibit B to the 

Settlement Agreement. Griffin Decl. This notice is modeled after the class notice previously 

approved by the Court (Dkt. #66). 

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that their motion be granted and 

that this Court issue an order in the form of the proposed Order (1) preliminarily approving the 

settlement agreement between the parties; (2) approving the proposed form of Class Notice 

attached as Exhibit B to the Settlement Agreement; (3) directing Defendant to file a statement of 

whether it has complied with 28 U.S.C. § 1715 of CAFA; and (4) establishing a schedule and 

timetable for a hearing on final approval of the Settlement Agreement. 

Respectfully submitted this 12th day of June, 2007. 

KELLER ROHRBACK L.L.P. 

By:/s/ Mark A. Griffin_____________ 

 Mark A. Griffin, WSBA #16296 

Attorneys for Plaintiff Class 

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