Czarnionka v. The Epoch Times Association, Inc.

S.D. New York

Czarnionka v. The Epoch Times Association, Inc.

District Court, S.D. New York·Decided July 10, 2024·No. 1:22-cv-06348·Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

LAWRENCE CZARNIONKA, individually, and on behalf of all others similarly situated, Civil Action No.: 1:22-CV-06348-AKH Plaintiff,

THE EPOCH TIMES ASSOCIATION, INC,, Defendant.

PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT This matter is before the Court on the unopposed Motion for Final Approval of Class Action Settlement from Lawrence Czarnionka, (“Plaintiff”) and Plaintiff's Motion for Award of Attorney’s Fees, Expenses and Service Award (ECF No. 92). These related motions reference and

incorporate a proposed Amended Settlement Agreement (the “Settlement” or “Settlement Agreement”) (ECF No. 86) that sets forth the terms and conditions for the settlement of claims, on

a class-wide basis, against Defendant The Epoch Times Association, Inc. (“Epoch” or “Defendant,” and collectively with Plaintiff, the “Parties”).

Having carefully considered the motions and the Settlement, and all of the files, records, and proceedings herein, including arguments set forth at the Final Approval Hearing on the Settlement, and finding good cause, THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:

1. This Final Approval Order and Judgment (“Order”) incorporates by reference the

definitions in the Settlement Agreement, all terms defined therein shall have the same meaning

in this Order as set forth in the Settlement Agreement (ECF No. 86). Capitalized terms not

otherwise defined herein shall have the same meaning as set forth in the Settlement Agreement. 2. ‘The Court has jurisdiction over the subject matter of this action (“Action”) and

personal jurisdiction over all Parties and all members of the Settlement Class described below.

3. There were no objections to the Settlement Agreement, including the Notice

Program and Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Service Award. Certification of the Settlement Class

4, Under Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and solely

for purposes of judgment on the proposed Settlement Agreement, the Court certifies the following

injunctive relief-only Settlement Class': All individuals residing in the United States who were Facebook account holders and subscribers to Defendant’s digital services during the Class Period, and who requested or obtained any videos on any Epoch Times website while an active Facebook account holder during the Class Period. 5. Excluded from the Settlement Class are Defendant and its, parents, subsidiaries,

officers, and directors, as weil the judge and court staffto whom this Action is assigned. 6. The Court finds that the requirements of Rules 23(a) are satisfied for the following

reasons: (1) Numerosity: the Settlement Class is so numerous that joinder of all members is

impracticable; (2) Commonality: there are questions of law and fact common to members of the

Settlement Class that predominate over questions affecting only individual members (¢.g., whether Defendant unlawfully disclosed to third parties Plaintiff's and Settlement Class Members’

| Per the terms of the Settlement Agreement, Settlement Class Members do not release their claims for damages or other monetary relief.

personally identifiable information without consent in a manner that violated the VPPA, and

whether Plaintiff and the Settlement Class Members are entitled to uniform statutory damages

under the VPPA); (3) Typicality: Plaintiff's claims are typical of the claims of the Settlement

Class; and (4) Adequacy: Plaintiff and his counsel have and will continue to fairly and adequately

protect the interests of the Settlement Class. 7, The Court finds that the Settlement Class satisfies the requirements of Federal

Rule of Civil Procedure 23(b)(2), because “the party opposing the class has acted or refused to

act on grounds that apply generally to the class, so that final injunctive relief. . . 1s appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). This is because the injunctive relief set

forth in the Settlement Agreement would resolve the alleged violations and offer appropriate

relief to the entire Settlement Class. Final Approval of the Settlement Agreement and Notice Plan

8. The Court approves the Settlement as fair, reasonable, and adequate and in the best

interests of the Settlement Class Members. The Court has specifically considered the factors

relevant to class settlement approval pursuant to Fed. R. Civ. P. 23, including whether:

(A) The Class Representative and Class Counsel have adequately represented the Settlement Class; (B) The Settlement was negotiated at arm’s length, (C) The relief provided for the Settlement Class is adequate, taking into account (i) the costs, risks, and delay of trial and appeal; (ii) the terms of any proposed award of attorneys’ fees and costs, and Class Representative service award, including the timing of payment and any justification for the awatds; and (iii) any agreement required to be identified under Rule 23(e)(3); and (D) The Settlement treats Settlement Class Members equitably relative to each other.

9, The Court has also considered other factors relevant to class settlement approval

(see, e.g., Moses v. New York Times Co., 79 F.4th 235, 242 (2d Cir. 2023); City of Detroit v.

Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)), including each of the Grinnell factors: (1) the

complexity, expense and likely duration of the litigation; (2) the reaction of the Settlement Class

to the Settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the

risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the

class action through the trial; (7) the ability of Defendant to withstand a greater judgment; (8) the

range of reasonableness of the settlement fand in light of the best possible recovery, and (9) the

range of reasonableness of the settlement fund to a possible recovery in light of all the attendant

risks of litigation. 10. Having considered the terms of the Settlement and the record before it, the Court

finds that the Class Representative and Class Counsel have adequately represented the interests of

. Settlement Class Members; the settlement consideration provided under the Settlement constitutes

fair value given in exchange for the release of the Released Claims against the Released Parties;

the Settlement is the result of arm’s-length negotiations by experienced, well-qualified counsel

that included an all-day mediation conducted by qualified and experienced mediator, the

Honorable Frank Maas (Ret.); the Settlement provides meaningful non-monetary benefits to

Settlement Class Members and such benefits are not disproportionate to the attorneys’ fees and

expenses sought: by Class Counsel; the benefits provided treat Settlement Class Members

equitably; and the Settlement is reasonable and appropriate under the circumstances of this Action,

including the risks, complexity, expense and duration of the Action, Defendant’s financial

condition, and the reaction of the Settlement Class. The Court further finds that these facts, in

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