Summerton, Jan v. Goldco Direct LLC

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
JAN SUMMERTON,
individually and on behalf of all
others similarly situated, CLASS ACTION
Plaintiff,
v. CASE NO: 23-cv-238-wmc
GOLDCO DIRECT LLC.,
Defendant.
_________________________________________________________________________________
ORDER PRELIMINARILY APPROVING CLASS ACTION
SETTLEMENT AND CERTIFYING THE SETTLEMENT CLASS
Plaintiff Jan Summerton (“Plaintiff”) and Defendant Goldco Direct LLC
(“Defendant”) (Plaintiff and Defendant collectively referred to as, the “Parties”) have
agreed to settle this Action pursuant to the terms and conditions set forth in an executed
Settlement Agreement and Release (“Settlement”). The Parties reached the Settlement
through extensive negotiations. Under the Settlement, subject to the terms and conditions
therein and subject to Court approval, Plaintiff and the proposed Settlement Class will
fully, finally, and forever resolve, discharge, and release their claims.
The Settlement has been filed with the Court, and Plaintiff and Class Counsel have
filed an Unopposed Motion for Preliminary Approval of Class Settlement (“Motion”).
(Dkt. #54.) Upon considering the Motion, the Settlement and all exhibits thereto, the
record in these proceedings, the representations and recommendations of counsel, and the
requirements of law, the Court shall preliminarily approve the settlement subject to the
following modification to the Settlement’s “Claim Review Process,” on page 25 of the
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Settlement. Specifically, the sentence beginning “Any Settlement Class Member’s failure
to provide any of the required affirmations or information . . .” shall be modified to read:
Any Settlement Class Member’s failure to provide any of the required
affirmations or information shall result in the Claim being deemed invalid,
and the Administrator shall not have any further obligation to process or
make any Claim Settlement Payment on such invalid Claim, except that
technical noncompliance of a Settlement Class Claimant’s obligations shall
not be grounds to reject a Claim, unless the Settlement Class Claimant is
given an opportunity to correct the Claim Form.1
Subject to this modification, the Court finds that: (1) this Court has jurisdiction
over the subject matter and the Parties to this Action; (2) the proposed Settlement Class
meets the requirements of Federal Rule of Civil Procedure 23 and should be certified for
settlement purposes only; (3) the persons and entities identified below should be appointed
Class Representative and Class Counsel; (4) the Settlement is the result of informed, good-
faith, negotiations between the Parties and their capable and experienced counsel, and is
not the result of collusion; (5) the Settlement is within the range of reasonableness and
should be preliminarily approved; (6) the proposed Notice program and proposed forms of
Notice satisfy Federal Rule of Civil Procedure 23 and constitutional due process
requirements, and are reasonably calculated under the circumstances to apprise the
Settlement Class of the pendency of the Action, class certification, the terms of the
Settlement, Class Counsel’s application for an award of attorneys’ fees and expenses (“Fee
Application”) and request for a Service Award for Plaintiff, and their rights to opt-out of
the Settlement Class or object to the Settlement, Class Counsel’s Fee Application, and/or
the request for a Service Award for Plaintiff; (7) good cause exists to schedule and conduct
1 If the Parties cannot accept this modification, they should contact the court promptly.
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a Final Approval Hearing, pursuant to Federal Rule of Civil Procedure 23(e), to assist the
Court in determining whether to grant Final Approval of the Settlement and enter the
Final Approval Order, and whether to grant Class Counsel’s Fee Application and request
for a Service Award for Plaintiff; and (8) the other related matters pertinent to the
Preliminary Approval of the Settlement should also be approved.
Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED as follows:
1. As used in this Preliminary Approval Order, unless otherwise noted,
capitalized terms shall have the definitions and meanings accorded to them in the
Settlement.
2. The Court has jurisdiction over the subject matter and Parties to this
proceeding pursuant to 28 U.S.C. §§ 1331, 1332.
3. Venue is proper in this District.
I. Provisional Class Certification and Appointment of Class Representative and
Class Counsel
4. It is well established that “[a] class may be certified solely for purposes of
settlement [if] a settlement is reached before a litigated determination of the class
certification issue.” Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006) (internal
quotation marks omitted). In deciding whether to provisionally certify a settlement class,
a court must consider the same factors that it would consider in connection with a proposed
litigation class – i.e., all Rule 23(a) factors and at least one subsection of Rule 23(b) must
be satisfied – except that the Court need not consider the manageability of a potential trial,
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since the settlement, if approved, would obviate the need for a trial. Id.; Amchem Products,
Inc. v. Windsor, 521 U.S. 591, 620 (1997).
5. The Court finds, for settlement purposes, that the Federal Rule of Civil
Procedure 23 factors are present and that certification of the proposed Settlement Class is
appropriate under Rule 23. The Court therefore provisionally certifies the following
Settlement Class:
All persons in the United States who, during the four
years prior to the filing of this case (1) received more than
one text message from Defendant or anyone on
Defendant’s behalf during any 12-month period; (2) after
requesting to not receive text messages from Defendant
by responding with a “stop” or “unsubscribe” request; (3)
whose number was listed on the National Do-Not-Call
Registry when the messages were received; and (4) who
did not re-opt in to receive text messages prior to receipt
of the text messages.
Excluded from the Settlement Class are: (1) the trial judge and magistrate judge presiding
over this case; (2) Defendant, as well as any parent, subsidiary, affiliate, or control person
of Defendant, and the officers, directors, agents, members, managers, servants, or
employees of Defendant; (3) any of the Released Parties; (4) the immediate family of any
such person(s); and (5) Plaintiff’s Counsel, their employees, and their immediate family.
6. Specifically, the Court finds, for settlement purposes and conditioned on
final certification of the proposed class and on the entry of the Final Approval Order, that
the Settlement Class satisfies the following factors of Federal Rule of Civil Procedure 23:
(a) Numerosity: In the Action, approximately 19,280 persons received
violative text messages from Defendant. The proposed Settlement Class is thus so
numerous that joinder of all members is impracticable.
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(b) Commonality: “[C]ommonality requires the plaintiff to demonstrate
that the class members ‘have suffered the same injury,’” and the plaintiff’s common
contention “must be of such a nature that it is capable of classwide resolution – which
means that determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541, 2551 (2011) (citation omitted). Here, the commonality requirement is satisfied.
Multiple questions of law and fact centering on Defendant’s class-wide practices are
common to the Plaintiff and the Settlement Class, are alleged to have injured all members
of the Settlement Class in the same way, and would generate common answers central to
the viability of the claims were this case to proceed to trial.
(c) Typicality: The Plaintiff’s claims are typical of the Settlement Class
because they concern the same alleged Defendants practices, arise from the same legal
theories, and allege the same types of harm and entitlement to relief. Rule 23(a)(3) is
therefore satisfied. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir. 1984) (typicality satisfied where claims “arise from the same event or pattern or
practice and are based on the same legal theory”); Murray v. Auslander, 244 F.3d 807, 811
(11th Cir. 2001) (named plaintiffs are typical of the class where they “possess the same
interest and suffer the same injury as the class members”).
(d) Adequacy: Adequacy under Rule 23(a)(4) relates to: (1) whether
the proposed class representatives have interests antagonistic to the class; and (2)
whether the proposed class counsel has the competence to undertake the litigation at
issue. See Fabricant v. Sears Roebuck, 202 F.R.D. 310, 314 (S.D. Fla. 2001). Here, Rule
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23(a)(4) is satisfied because there are no conflicts of interest between the Plaintiff and
the Settlement Class, and Plaintiff has retained competent counsel to represent her and
the Settlement Class. Class Counsel regularly engage in consumer class litigation,
complex litigation, and other litigation similar to this Action, and have dedicated
substantial resources to the prosecution of the Action. Moreover, the Plaintiff and Class
Counsel have vigorously and competently represented the Settlement Class in the
Action. See Lyons v. Georgia-Pacific Corp. Salaried Employees Rel. Plan, 221 F.3d 1235,
1253 (11th Cir. 2000).
(e) Predominance and Superiority: Rule 23(b)(3) is satisfied because
the common legal and alleged factual issues here predominate over individualized issues,
and resolution of the common issues for the members of the Settlement Class in a single,
coordinated proceeding is superior to thousands of individual lawsuits addressing the
same legal and factual issues. With respect to predominance, Rule 23(b)(3) requires that
“[c]ommon issues of fact and law . . . ha[ve] a direct impact on every class member’s
effort to establish liability that is more substantial than the impact of individualized
issues in resolving the claim or claims of each class member.” Sacred Heart Health Sys.,
Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010)
(internal quotation marks omitted). Here, common questions present a significant
aspect of the case and can be resolved for all members of the Settlement Class in a single
adjudication. In a liability determination, those common issues would predominate over
any issues that are unique to individual members of the Settlement Class. Moreover,
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each member of the Settlement Class has claims that arise from the same or similar
alleged Defendant’s practices as well as the same legal theories.
7. The Court appoints Plaintiff, Jan Summerton, as Class Representative.
8. The Court appoints the following people and firms as Class Counsel: Manuel
S. Hiraldo of Hiraldo P.A; and Michael Eisenband of Eisenband Law, P.A.
9. The Court recognizes that Defendant reserves all of its defenses and
objections against and rights to oppose any request for class certification in the event that
the proposed Settlement does not become Final for any reason. Defendant also reserves its
defenses to the merits of the claims asserted in the event the Settlement does not become
Final for any reason.
II. Preliminary Approval of the Settlement
10. At the preliminary approval stage, the Court’s task is to evaluate whether
the Settlement is within the “range of reasonableness.” 4 Newberg on Class Actions § 11.26.
“Preliminary approval is appropriate where the proposed settlement is the result of the
parties’ good faith negotiations, there are no obvious deficiencies and the settlement falls
within the range of reason.” Smith v. Wm. Wrigley Jr. Co., 2010 WL 2401149, at *2 (S.D.
Fla. Jun. 15, 2010). Settlement negotiations that involve arm’s length, informed
bargaining with the aid of experienced counsel support a preliminary finding of fairness.
See Manual for Complex Litigation, Third, § 30.42 (West 1995) (“A presumption of fairness,
adequacy, and reasonableness may attach to a class settlement reached in arm's-length
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negotiations between experienced, capable counsel after meaningful discovery.”) (internal
quotation marks omitted).
11. The Court preliminarily approves the Settlement, together with all exhibits
thereto, as fair, reasonable, and adequate. The Court finds that the Settlement was
reached in the absence of collusion, is the product of informed, good-faith, arm’s-length
negotiations between the Parties and their capable and experienced counsel. The Court
further finds that the Settlement, including the exhibits thereto, is within the range of
reasonableness and possible judicial approval, such that: (a) a presumption of fairness is
appropriate for the purposes of preliminary settlement approval; and (b) it is appropriate
to effectuate notice to the Settlement Class, as set forth below and in the Settlement,
and schedule a Final Approval Hearing to assist the Court in determining whether to
grant Final Approval to the Settlement and enter a Final Approval Order.
III. Approval of Class Notice and the Claims Process
12. The Court approves the form and content of the Class notices, substantially
in the forms attached to the Settlement, as well as the Claim Form attached thereto. The
Court further finds that the Class Notice program described in the Settlement is the best
practicable under the circumstances. The Class Notice program is reasonably calculated
under the circumstances to inform the Settlement Class of the pendency of the Action,
certification of a Settlement Class, the terms of the Settlement, Class Counsel’s attorney’s
fees application and the request for Service Award for Plaintiff, and their rights to opt-
out of the Settlement Class or object to the Settlement. The Class notices and Class
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Notice program constitute sufficient notice to all persons entitled to notice. The Class
notices and Class Notice program satisfy all applicable requirements of law, including,
but not limited to, Federal Rule of Civil Procedure 23 and the Constitutional requirement
of Due Process.
13. Simpluris shall serve as the Administrator.
14. The Administrator shall implement the Class Notice program, as set forth
below and in the Settlement, using the Class notices substantially in the forms attached
to the Settlement and approved by this Preliminary Approval Order. Notice shall be
provided to the members of the Settlement Class pursuant to the Class Notice program,
as specified in the Settlement and approved by this Preliminary Approval Order. The
Class Notice program shall include, to the extent necessary, E-Mail Notice, Mail Notice,
and Long-Form Notice, as set forth in the Settlement and below.
Mail Notice
15. The Administrator shall administer Mail Notice as set forth in the
Settlement. Mail Notice shall be completed no later than 45 days after the entry of this
order.
Email Notice
16. The Administrator shall administer Email Notice as set forth in the
Settlement. Email Notice shall be completed no later than 45 days after the entry of this
order.
Settlement Website
17. The Administrator shall establish a Settlement Website as a means for
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Settlement Class members to obtain notice of, and information about, the Settlement. The
Settlement Website shall be established as soon as practicable following Preliminary
Approval, but no later than before commencement of the Class Notice program. The
Settlement Website shall include to the Settlement, the Long-Form Notice, the Preliminary
Approval Order, and other such documents as Class Counsel and counsel for Defendant
agree to include. These documents shall remain on the Settlement Website until at least
sixty (60) days following the Claim Deadline.
18. The Administrator is directed to perform all substantive responsibilities with
respect to effectuating the Class Notice program, as set forth in the Settlement.
IV. Final Approval Hearing, Opt-Outs, and Objections
19. A Final Approval Hearing shall be held before this Court on March 26,
2026, at 11:00 a.m. to determine whether to grant Final Approval to the Settlement and
to enter a Final Approval Order, and whether Class Counsel’s Fee Application and request
for a Service Award for the Class Representative should be granted.
20. Any person within the Settlement Class who wishes to be excluded from the
Settlement Class may exercise their right to opt-out of the Settlement Class by following
the opt-out procedures set forth in the Settlement and in the Notices at any time during
the Opt-Out Period. To be valid and timely, opt-out requests must be received by all those
listed in the Long-Form Notice on or before the last day of the Opt-out Period, which is
seventy-five (75) days after Preliminary Approval (“Opt-Out Deadline”), and mailed to the
addresses indicated in the Long Form Notice.
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21. Any Settlement Class Member may object to the Settlement, Class Counsel’s
Fee Application, or the request for a Service Award for Plaintiff. Any such objections must
be mailed to the Clerk of the Court, Class Counsel, and Defendant’s Counsel, at the
addresses indicated in the Long-Form Notice. For an objection to be considered by the
Court, the objection must be postmarked no later than seventy-five (75) days after
Preliminary Approval, as set forth in the Notice. To be valid, an objection must include
the following information:
a. the name of the Action;
b. the objector’s full name, address, and telephone number;
c. an explanation of the basis upon which the objector claims to be a Settlement
Class Member;
d. all grounds for the objection, accompanied by any legal support for the objection
known to the objector or his counsel;
e. the number of times in which the objector has objected to a class action
settlement within the five years preceding the date that the objector files the
objection, the caption of each case in which the objector has made such an
objection, and a copy of any orders related to or ruling upon the objector’s prior
such objections that were issued by the trial and appellate courts in each listed
case;
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f. the identity of all counsel who represent the objector, including any former or
current counsel who may be entitled to compensation for any reason related to
the objection to the Settlement or Fee Application;
g. a copy of any orders related to or ruling upon counsel’s or the counsel’s law
firm’s prior objections made by individuals or organizations represented by that
were issued by the trial and appellate courts in each listed case in which the
objector’s counsel and/or counsel’s law firm have objected to a class action
settlement within the preceding 5 years the objector’s counsel;
h. any and all agreements that relate to the objection or the process of objecting—
whether written or oral—between objector or objector’s counsel and any other
person or entity;
i. the identity of all counsel (if any) representing the objector who will appear at
the Final Approval Hearing;
j. a statement confirming whether the objector intends to personally appear and/or
testify at the Final Approval Hearing;
k. a list of all persons who will be called to testify at the Final Approval Hearing in
support of the objection;
l. true and correct copies of all supporting evidence must be appended to, or filed
and served with, the objection; and
m. the objector’s signature (an attorney’s signature is not sufficient).
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V. Further Papers in Support of Settlement and Attorney’s Fee Application
22. Plaintiff and Class Counsel shall file their Motion for Final Approval of the
Settlement, Fee Application, costs and request for a Service Award for Plaintiff, no later
than sixty (60) days after Preliminary Approval.
23. Plaintiff and Class Counsel shall file their responses to timely filed objections
to the Motion for Final Approval of the Settlement, the Fee Application and/or request a
Service Award for Plaintiff no later than than ninety (90) days after Preliminary Approval.
VI. Effect of Failure to Approve Settlement
24. If the Settlement is not finally approved by the Court, or for any reason the
Parties fail to obtain a Final Approval Order as contemplated in the Settlement, or the
Settlement is terminated pursuant to its terms for any reason, then the following shall
apply:
(a) All orders and findings entered in connection with the Settlement
shall become null and void and have no further force and effect, shall not be used or referred
to for any purpose whatsoever, and shall not be admissible or discoverable in any other
proceeding;
(b) Nothing in this Preliminary Approval Order is, or may be construed
as, any admission or concession by or against Defendants or Plaintiff on any point of fact
or law;
(c) Neither the Settlement terms nor any publicly disseminated
information regarding the Settlement, including, without limitation, the Class Notice,
court filings, orders and public statements, may be used as evidence. In addition, neither
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the fact of, nor any documents relating to, either Party’s withdrawal from the Settlement,
any failure of the Court to approve the Settlement and/or any objections or interventions
may be used as evidence; and
(d) Any portion of the Gross Settlement Fund remaining, shall be
returned to Defendant.
Stay/Bar of Other Proceedings
25. All proceedings in the Action are stayed until further order of the Court,
except as may be necessary to implement the terms of the Settlement. Pending final
determination of whether the Settlement should be approved, Plaintiff, all persons in the
Settlement Class, and persons purporting to act on their behalf are enjoined from
commencing or prosecuting (either directly, representatively or in any other capacity)
against any of the Released Parties any action or proceeding in any court, arbitration forum
or tribunal asserting any of the Released Claims.
26. Based on the foregoing, the Court sets the following schedule for the Final
Approval Hearing and the actions which must take place before and after it:
Event Date Timeline
Deadline for Completion of
Notice
45 days after entry of the
Preliminary Approval Order
Deadline for filing Motion
for Final Approval of the
Settlement and Class
Counsel’s Fee Application
and expenses, and for a
Service Award
60 days after entry of the
Preliminary Approval Order
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Deadline for opting-out of
the Settlement and for
submission of Objections
75 days after entry of the
Preliminary Approval Order
Deadline for Responses to
Objections
90 days after entry of the
Preliminary Approval Order
Final Approval Hearing
Via Zoom video
conference on
March 26, 2026,
at 11:00 a.m.
Approximately 100 days after
entry of Preliminary Approval
Order
Last day Class Claimants
may submit a Claim Form
15 days after the Final
Approval Hearing
DONE and ORDERED in Madison, Wisconsin, this 11th day of December, 2025.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Copies furnished to: Counsel of Record
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