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Vuckovic v. KT Health Holdings, Inc.

United States District Court, D. Massachusetts

November 3, 2017

ALEXANDER VUCKOVIC, Individually and On Behalf of All Others Similarly Situated, Plaintiff,
v.
KT HEALTH HOLDINGS, LLC and KT HEALTH, LLC, Defendants.

          ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT, PRELIMINARILY CERTIFYING THE CLASS, DIRECTING NOTICE TO THE CLASS, AND SCHEDULING FAIRNESS HEARING

          HONORABLE GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

         The Parties have submitted a Joint Motion for Preliminary Approval of Proposed Settlement, Preliminary Class Certification, Approval of Form and Manner of Notice, and to set Fairness Hearing ("Preliminary Approval Motion"), pursuant to the terms of the May 24, 2017 Settlement Agreement reached by the parties and presented to the Court for approval ("Settlement Agreement"). After consideration of the Settlement Agreement and the exhibits annexed thereto, and after due deliberation and consideration of the totality of the circumstances and the record, and for good cause shown, it is hereby ORDERED, ADJUDGED, and DECREED as follows:

1. Defined Terms: This Court adopts the defined terms set forth in Section II. of the Settlement Agreement for purposes of this Order, unless otherwise specified herein.
2. Preliminary Approval of Settlement: The Court finds for the purposes of preliminary approval that the proposed settlement, as set forth in the Parties' Settlement Agreement, appears fair, reasonable, adequate, and potentially of benefit to the Class. The court further finds that the Settlement was entered into by experienced counsel negotiating at arms' length. The court therefore preliminarily approves the proposed Settlement.
3. Conditional Certification for Settlement Purposes: For purposes of Settlement, pursuant to Federal Rule of Civil Procedure 23, the Class is conditionally certified as follows:
All persons who purchased KT Tape in the United States during the period from October 30, 2011 through November 3, 2017. Excluded from the Class are a) KT's Board members or executive-level officers, including its attorneys; (b) persons or entities who purchased one or more packages of KT Tape primarily for the purpose of resale; (c) distributors or re-sellers of KT Tape; (d) the judge and magistrate judge and their immediate families presiding over the Action; and (e) persons or entities who or which timely and properly exclude themselves from the Class as provided in this Agreement.

         Alexander Vuckovic is conditionally certified as the representative of the Class defined above, and Pastor Law Office, LLP; Leonard Law Office, PC and Shepherd Finkelman Miller & Shah, LLP are appointed as Class Counsel. This conditional certification of the Class and Class Representative, and appointment of Class Counsel, are solely for purposes of effectuating the proposed Settlement. If the Settlement Agreement is terminated or is not consummated for any reason, the foregoing conditional certification of the Class and appointment of the Class Representative and Class Counsel shall be void and of no further effect, and the parties to the proposed Settlement shall be returned to the status each occupied before entry of this Order, without prejudice to any legal argument that any of the parties to the Settlement Agreement might have asserted but for the Settlement Agreement.

         Based on the Court's review of the Preliminary Approval Motion and supporting materials, the Court conditionally finds that the proposed Class satisfies Rule 23 of the Federal Rules of Civil Procedure in that:

a. The Class, which consists of thousands of individuals, is so numerous that joinder of all persons who fall within the Class definition is impracticable;
b. The commonality requirement is satisfied where members of the Class share at least one common legal or factual issue. Here, there are questions of law and fact common to the Class, including allegations concerning KT's statements and representations in connection with the sale of KT Tape;
c. The claims of the Class Representative are typical of the claims of the Class; and
d. The Class Representative will fairly and adequately represent and protect the interests of the Class and is represented by qualified counsel who are competent to represent the Class.

         The Court further conditionally finds that the proposed Class satisfies Rule 23(b)(3) of the Federal Rules of Civil Procedure, which requires that common issues predominate and that a class action is superior to other available methods for the fair and efficient resolution of this controversy. The Court notes that because the litigation is being settled, rather than litigated, it need not consider the manageability issues that would be presented by this litigation. Amchem Prods. Inc. v. Windsor, 117 S.Ct. 2231, 2240 (1997).

         4. Final Approval Hearing: A Final Approval Hearing shall take place before the undersigned, the Honorable George A. O'Toole, Jr., ...


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