Opinion
Case No. 1:20-cv-56-SPB
01-04-2021
ANTHONY HAMOND MURPHY, BLAIR DOUGLASS, Plaintiffs, v. CHARLES TYRWHITT, INC., Defendant.
cc: All counsel of record (via CM/ECF) The Honorable Richard A. Lanzillo (via CM/ECF)
MEMORANDUM ORDER
The within civil action was commenced on March 18, 2020 and referred to United States Magistrate Judge Richard A. Lanzillo for report and recommendation ("R&R") in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules for Magistrate Judges.
On November 25, 2020, Magistrate Judge Lanzillo issued an R&R, ECF No. [30], recommending that the Plaintiffs' unopposed Motion to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement pursuant to Fed. R. Civ. P. Rule 23(e), ECF No. [19], be granted. Objections to the R&R were due to be filed no later than December 9, 2020. As of this date, no objections have been received and, in fact, the parties have filed a joint waiver of objections to the R&R. ECF No. [31].
Accordingly, after de novo review of the Complaint and documents in the case, together with the Magistrate Judge's report and recommendation, the following order is entered:
NOW, this 4th day of January, 2021;
IT IS ORDERED that the Plaintiffs' unopposed Motion to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement pursuant to Fed. R. Civ. P. Rule 23(e), ECF No. [19], shall be, and hereby is, GRANTED. To that end:
1. This Order incorporates by reference the definitions in the parties' Settlement Agreement at ECF No. [19-1], and all terms defined therein have the same meaning in this Order as set forth in the Settlement Agreement.
2. It appears to the Court on a preliminary basis that the Settlement Agreement satisfies the elements of Federal Rule of Civil Procedure 23 and is fair, adequate, and reasonable.
3. The proposed Settlement Class is hereby preliminarily certified pursuant to Fed. R. Civ. P. 23(a) and (b)(2) for purposes of settlement. The Settlement Class is defined as:
All blind or visually disabled individuals who use screen reader auxiliary aids to navigate digital content and who have accessed, attempted to access, or been deterred from attempting to access, or who will access, attempt to access, or be deterred from accessing the Website from the United States.
4. The Court appoints and designates Plaintiffs Anthony Hammond Murphy and Blair Douglass as representatives of the Settlement Class.
5. The Court appoints and designates Kevin W. Tucker, Esq., Kevin J. Abramowicz, Esq., Lawrence H. Fisher, Esq., and the law firm of East End Trial Group LLC as Class Counsel for the Settlement Class.
6. The Court finds that the Notice and Notice Plan attached as Exhibits 3 and 4, ECF Nos. [19-3] and [19-4], to the Motion meet the requirements for due process, the requirements of Rules 23(c)(2) and 23(e) of the Federal Rules of Civil Procedure, and ensure Notice is well calculated to reach representative class members. Accordingly, the Notice and Notice Plan are hereby approved.
7. Within twenty-one (21) days of this Order ("Notice Deadline"), Defendant shall:
a. Cause the Notice to be published on a search-engine-optimized ("SEO") settlement website operated by a stipulated class action settlement administrator or similar entity;
b. Add invisible anchor text in the header of the Website's homepage which reads, "Click to view our ADA Class Action Settlement Notice" and which links to the
Notice published by the stipulated class action settlement administrator or similar entity;
c. Post a link to the Notice on its social media accounts, including https://www.facebook.com/CharlesTyrwhitt, https://www.instagram.com/charlestyrwhitt/, and https://twitter.com/ctshirts, which post shall also tag and direct questions about the Notice to Class Counsel at its accounts on each respective platform; and
d. Request that National Federation of the Blind and American Council of the Blind publish a link to the Notice in their respective electronic newsletters so that notice is sent out within sixty (60) days of the Preliminary Approval.
8. Within ten (10) days prior to the Fairness Hearing, defined below, Defendant or Defendant's counsel shall file a declaration evidencing compliance with the notice provisions of this Order.
9. Within ten (10) days prior to the Fairness Hearing, defined below, Class Counsel shall file its motion for attorneys' fees and costs.
10. A hearing (the "Fairness Hearing") shall be held before this Court on __________, 2021 at ___ EST in the United States District Court for the Western District of Pennsylvania, located at 17 South Park Row, Erie, PA 16501, to determine whether the Settlement Agreement shall be granted final approval, and to address any related matters.
11. The Fairness Hearing may, from time to time and without further notice to the Settlement Class members (except those who have filed timely objections or entered appearances), be continued or adjourned by order of the Court.
12. Any Settlement Class Member may object to the Settlement Agreement by filing, within sixty (60) days after the Notice Deadline set by the Court, written objections with the Clerk of the Court. Only such objecting Settlement Class Members shall have the right, and only if they expressly seek it in their objections, to present objections orally at the Fairness Hearing. Responses by Named Plaintiffs to any timely-filed objections shall be made no less than five (5) days before the Fairness Hearing.
13. Counsel for the parties are hereby authorized to utilize all reasonable procedures in connection with the administration of the Settlement Agreement which are not materially inconsistent with either this Order or the terms of the Settlement Agreement.
IT IS FURTHER ORDERED that the report and recommendation of Magistrate Judge Lanzillo, issued on November 25, 2020, ECF No. [30], shall be, and hereby is, adopted as the opinion of the court.
/s/_________
SUSAN PARADISE BAXTER
United States District Judge cc: All counsel of record (via CM/ECF)
The Honorable Richard A. Lanzillo (via CM/ECF)