UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Briana Wright
v. Civil No. 20-cv-609-LM Opinion No. 2021 DNH 078 P Southern New Hampshire University
ORDER
Plaintiff Briana Wright brings this putative class action on her own behalf
and on behalf of a proposed class of students and former students of defendant
Southern New Hampshire University (“SNHU”) who paid tuition and fees for in-
person educational services during SNHU’s spring 2020 semester. Wright alleges
that in spring 2020 the per-semester cost in tuition and fees for in-person
educational services at SNHU (the “campus experience” option) was approximately
$17,500, whereas the per-semester cost to students who elected to attend SNHU
classes remotely (the “online experience” option) was $960 per course, or $4,800 for a
full load of five courses. It is undisputed that, because of the global COVID-19
pandemic, SNHU canceled all of its in-person classes from March 11, 2020, through
the end of its spring 2020 semester, without refunding or abating the tuition or fees
paid by students who chose the campus experience option. Plaintiff alleges that
students who contracted and paid for SNHU’s campus experience received
educational services during approximately half of the spring 2020 semester that
were identical to those received by students who paid lesser amounts for SNHU’s online experience. Plaintiff asserts claims for breach of contract, unjust enrichment,
and conversion under New Hampshire common law.
The parties report that they have reached a negotiated settlement of their
dispute. Now before the court is plaintiff’s assented-to motion (doc. no. 30) for
preliminary approval of the parties’ proposed class action settlement. The court has
carefully reviewed the parties’ proposed Class Action Settlement Agreement (the
“Agreement”) and its supporting exhibits. For the following reasons, the court:
(1) grants plaintiff’s motion, (2) preliminarily certifies the proposed class for
settlement purposes, (3) provisionally appoints plaintiff’s counsel of record as
settlement class counsel and plaintiff as settlement class representative,
(4) preliminarily approves the proposed settlement agreement, (5) directs class
counsel to cause the appointed settlement administrator to provide notice to all
class members in accordance with the notice provisions of the Agreement, and
(6) sets a briefing schedule and date for a fairness hearing at which class members
may appear to support or object to the proposed settlement before the court
considers whether to grant final approval of the parties’ agreement.
DISCUSSION
I. Court Approval of Class Action Settlements
“The claims, issues, or defenses of a certified class—or a class proposed to be
certified for purposes of settlement—may be settled, voluntarily dismissed, or
compromised only with the court’s approval.” Fed. R. Civ. P. 23(e). Court approval
2 of a proposed class action settlement proceeds in two stages. See Rapuano v. Trs. of
Dartmouth Coll., 334 F.R.D. 637, 642 (D.N.H. Jan. 29, 2020); see also 4 William B.
Rubenstein, Newberg on Class Actions § 13.10 (5th ed. 2019). At the first stage, the
court must determine whether it “will likely be able to” both: (1) certify the class for
settlement purposes and (2) find that the settlement is fair, reasonable, and
adequate. Fed. R. Civ. P. 23(e)(1)(B).
Rule 23(e) was amended in 2018 to provide guidance regarding the standard
governing preliminary approval of proposed class action settlements. See Rapuano,
334 F.R.D. at 642-643. The court recently analyzed the impact of the 2018
amendment in connection with preliminary approval of a proposed class action
settlement resolving the Title IX hostile education environment claims of a putative
class of female students against the Trustees of Dartmouth College. See id. There,
the court determined that, in the interests of judicial efficiency and to avoid
providing notice to class members regarding a potentially unfair, flawed or
inadequate settlement proposal, the court must conduct a “searching,” “careful,” and
“rigorous” inquiry at the preliminary approval stage. Id. at 643; see also Fed. R.
Civ. P. Rule 23(e), Adv. Commt. Notes, 2018 Amend. (“The decision to give notice of
a proposed settlement to the class is an important event. It should be based on a
solid record supporting the conclusion that the proposed settlement will likely earn
final approval after notice and an opportunity to object.”). The court’s
determination is nevertheless “preliminary in the sense that it is subject to
modification based on additional information—including further factual
3 development or objections by class members—that may come to light prior to or
during the fairness hearing.” Rapuano, 334 F.R.D. at 643 (citing Cotter v. Lyft, Inc.,
193 F. Supp. 3d 1030, 1036 (N.D. Cal. 2016); Rubenstein, supra, § 13.18).
If the court is satisfied as to both inquiries, it directs the parties to provide
notice of the proposed settlement agreement “to all class members who would be
bound” by it. Fed. R. Civ. P. 23(e)(1)(B). After notice to the class, the court holds a
fairness hearing at which class members may appear to support or object to the
proposed settlement. See Rubenstein, supra, § 13.10.
At the second stage of the inquiry, the court must decide whether to grant
final approval of the proposed settlement. See id. Under Rule 23(e)(2), the court
may grant final approval of a class action settlement if it can certify the proposed
class, see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997), and if it finds
that the proposed agreement is “fair, reasonable, and adequate.” Fed. R. Civ. P.
23(e)(2). The First Circuit has recognized as an “important concern” the policy to
encourage and facilitate class action settlements where appropriate under Rule
23(e). Howe v. Townsend, 588 F.3d 24, 36 (1st Cir. 2009) (citing Durrett v. Hous.
Auth., 896 F.2d 600, 604 (1st Cir. 1990)).
This case is at the preliminary approval stage of the Rule 23(e) inquiry.
II. Preliminary Certification of the Proposed Class for Settlement Purposes and Preliminary Appointment of Class Counsel and Class Representative
To obtain certification of a class—whether for settlement or litigation
purposes—the court must find that all four prerequisites set forth at Federal Rule of
4 Civil Procedure 23(a) are met. See Amchem, 521 U.S. at 620-621. These are:
(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. See Fed. R. Civ. P.
23(a); Amchem, 521 U.S. at 613. In addition to those threshold requirements, a
party seeking certification must also show that the action falls into one of the
categories outlined in Rule 23(b). See id. at 614. Here, plaintiff seeks certification
under Rule 23(b)(3). To qualify for certification under Rule 23(b)(3), the party
seeking certification must show that common questions of law or fact “predominate
over any questions affecting only individual members” and that class resolution is
“superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3); see also Amchem, 521 U.S. at 615.
Although these requirements apply to both settlement and litigation class
certifications, courts apply them differently depending on the purpose of
certification. See Amchem, 521 U.S. at 619-21; see also In re Hyundai & Kia Fuel
Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019); Fed. R. Civ. P. 23(e)(1), Adv. Commt.
Notes, 2018 Amend. Specifically, when considering whether to certify a class for the
sole purpose of settlement, the court “need not inquire whether the case, if tried,
would present intractable management problems.” Amchem, 521 U.S. at 620; see
also Rapuano, 334 F.R.D. at 643-644. However, other Rule 23 requirements—for
example, those preventing overbroad class definitions—deserve “undiluted, even
heightened attention” in the settlement context. Amchem, 521 U.S. at 620. Thus, a
district court should apply some Rule 23 requirements more leniently and others
5 more vigorously when it is certifying a class for the purposes of settlement only. See
id. at 619-621; see also In re Hyundai, 926 F.3d at 556-557.
Here, plaintiff seeks preliminary certification of the following class for
purposes of settlement:
All students and former students [of defendant Southern New Hampshire University] who paid, or on whose behalf payment was made to [defendant in connection with its] Spring 2020 Semester for tuition and fees for in-person educational services, and whose tuition and fees have not been refunded.
Agreement (doc. no. 30-3), ¶ 1.29. Expressly excluded from the proposed class are:
(1) any Judge or Magistrate presiding over this Action and members of their families; (2) the Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and their current or former officers, directors, agents, attorneys, and employees; (3) persons who properly execute and file a timely request for exclusion from the class; and (4) the legal representatives, successors or assigns of any such excluded persons.
Id.1
The court addresses the Rule 23(a) and 23(b)(3) requirements below.
1 The court is not aware that any judge or magistrate judge who currently presides or has previously presided over this action has any family member falling within the proposed class definition. Moreover, in the event any presiding judge or such a judge’s family member were a member or potential member of the class, the court notes that the appropriate remedy would be that judge’s recusal rather than exclusion of the class member.
6 A. The Rule 23(a) Threshold Requirements
1. Numerosity
Rule 23(a)(1) requires that the putative class be “so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No minimum number of
plaintiffs is required to maintain a suit as a class action, but generally if the named
plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first
prong of Rule 23(a) has been met.” Clough v. Revenue Frontier, LLC, No. 17-CV-
411-PB, 2019 WL 2527300, at *3 (D.N.H. June 19, 2019) (quoting Garcia-Rubiera v.
Calderon, 570 F.3d 443, 460 (1st Cir. 2009)). Here, the record establishes that the
settlement class consists of more than 2,800 current and former SNHU students.
See doc. no. 30-2, ¶ 9. The size of the proposed class is more than sufficient to
satisfy the numerosity requirement.
2. Commonality
Rule 23(a)(2) requires the existence of “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). Commonality is a “low bar,” and complete
commonality of questions among the putative class members is not required. In re
New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 19 (1st Cir. 2008).
Courts generally afford Rule 23(a)(2) a “permissive application.” Id. (quoting 7A
Charles A. Wright et al., Federal Practice and Procedure § 1763 (3d ed. 2005)). To
establish commonality, a plaintiff must show that all putative class members “have
suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
7 (citation, internal quotation marks omitted).2 This means that the putative class
members’ “claims must depend upon a common contention . . . 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.” Id.
The “low bar” of commonality is easily cleared here. There is no dispute that
SNHU canceled its in-person spring 2020 semester classes for all class members,
and neither refunded nor abated any class members’ tuition or fees. Moreover,
pursuant to the Agreement, each class member’s share of the settlement proceeds
will be calculated according to the same formula. See Agreement (doc. no. 30-3), ¶
2.1. These common issues, if not disputed before final approval of the parties’
proposed agreement, will be sufficient to satisfy the requirements of Rule 23(a)(2).
3. Typicality
The third threshold requirement of Rule 23(a)—typicality—requires the class
representative to show that her claims are typical of the absent class members’
claims. Fed. R. Civ. P. 23(a)(3). To be typical, the representative’s claims must
“arise from the same event or practice or course of conduct that gives rise to the
claims of other class members, and [be] based on the same legal theory.” Garcia-
2 This “same injury” test “can be satisfied by an instance of the defendant’s injurious conduct, even when the resulting injurious effects—the damages—are diverse.” In re Deepwater Horizon, 739 F.3d 790, 810-11 (5th Cir. 2014); see also Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014).
8 Rubiera, 570 F.3d at 460 (internal quotation marks, brackets, and ellipsis omitted);
see also Gen. Tel. Co. of the SW. v. Falcon, 457 U.S. 147, 156 (1982) (observing that
“a class representative must be part of the class and possess the same interest and
suffer the same injury as the class members”) (citation, internal quotation marks
omitted). The representative plaintiff’s claims and those of absent class members
need not be identical; they need only “share the same essential characteristics.”
Rapuano, 334 F.R.D. at 648 (quoting Ouadani v. Dynamex Operations E., LLC, 405
F. Supp. 3d 149, 162 (D. Mass. 2019)).
Plaintiff Wright’s experience is likely typical of the putative class in its
essential characteristics. According to the allegations of the Amended Complaint,
plaintiff (like the absent class members) elected to pay a substantial premium for
SNHU’s campus experience rather than pay a lower rate for its online experience.
See doc. no. 13, ¶¶ 5-8. SNHU canceled its campus experience for plaintiff and the
absent class members alike, without refund or abatement of tuition or fees. See id.,
¶¶ 12-17, 47. Nothing in the record suggests that plaintiff’s experience is different
in any material respect from that of the putative class members in general. The
court will likely be able to find that plaintiff meets the typicality requirement.
4. Adequacy
The last of the Rule 23(a) threshold requirements is adequacy, which requires
that the class representative will “fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a)(4). To satisfy the adequacy requirement, petitioner
9 must show “first that the interests of the representative party will not conflict with
the interests of any of the class members, and second, that counsel chosen by the
representative party is qualified, experienced, and able to vigorously conduct the
proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.
1985).
Nothing in the record before the court suggests any conflict of interest
between plaintiff and the absent class members. Plaintiff has spent significant time
assisting her attorneys in litigating this matter, “providing information regarding
SNHU’s policies and practices, providing pertinent documents, and assisting in
settlement negotiations.” Doc. no. 30-2, ¶ 16. Similarly, nothing in the record calls
into question her attorneys’ qualifications, experience, or capacity to implement the
proposed settlement. To the contrary, plaintiff’s counsel has frequently served as
class counsel in cases of comparable complexity. See id., ¶ 11. The court will likely
be able to find that plaintiff and her chosen counsel meet the adequacy
requirements of Rule 23(a)(4).
B. Rule 23(b)(3)
As noted, plaintiff seeks certification of the proposed class under Rule
23(b)(3). A class may be certified under Rule 23(b)(3) if the party seeking
certification can demonstrate both the predominance of common issues over
individual issues and the superiority of resolving the dispute via a class action. See
10 Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) sets forth a non-exhaustive list of factors the
court should consider in making its “predominance” and “superiority” assessments:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Because the court is considering certification for the
purposes of settlement only, it need not consider the final factor (the
“manageability” of the class action). Amchem, 521 U.S. at 620.
1. Predominance
The predominance inquiry requires the court to examine “the relation
between common and individual questions in a case.” Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 453 (2016). An individual question is one requiring
“members of a proposed class . . . to present evidence that varies from member to
member.” Id. (citation and internal quotation marks omitted). By contrast, a
common question is one where “the same evidence will suffice for each member to
make a prima facie showing or [where] the issue is susceptible to generalized, class-
wide proof.” Id. (citation, internal quotation marks, and brackets omitted). “When
one or more of the central issues in the action are common to the class and can be
said to predominate,” the action may be certified under Rule 23(b)(3),
11 notwithstanding that other important matters, such as damages, may require
individual determination. Id. (citation and internal quotation marks omitted). On
the other hand, if individualized questions appear to outweigh common questions,
certification is not appropriate. See In re Nexium Antitrust Litig., 777 F.3d 9, 21
(1st Cir. 2015). Although Rule 23(b)(3) requires common issues to predominate, it
“does not require a plaintiff seeking class certification to prove that each element of
her claim is susceptible of classwide proof.” Id. (quoting Amgen Inc. v. Conn. Ret.
Plans and Tr. Funds, 568 U.S. 455, 469 (2013)).
To assess whether common questions predominate, the court begins by
examining the elements of plaintiff’s claims. See Erica P. John Fund, Inc. v.
Halliburton Co., 563 U.S. 804, 809 (2011). Plaintiff brings claims for breach of
contract, unjust enrichment, and conversion. To state a claim for breach of contract
under New Hampshire law, a plaintiff must show the existence of an enforceable
contract, see Behrens v. S.P. Constr. Co., 153 N.H. 498, 501 (2006), and the
defendant’s failure to perform one or more of its obligations under the contract
without legal excuse for its failure, see Audette v. Cummings, 165 N.H. 763, 767
(2013). A claim for unjust enrichment will lie only in the alternative to a breach of
contract and requires that the defendant receive a benefit from the plaintiff which,
notwithstanding the absence of a contractual agreement between the parties, would
be unconscionable for the defendant to retain. See Clapp v. Goffstown Sch. Dist.,
159 N.H. 206, 210 (2009). “Conversion is an intentional exercise of dominion or
control over a chattel which so seriously interferes with the right of another to
12 control it that the actor may justly be required to pay the other the full value of the
chattel.” Muzzy v. Rockingham Cnty. Tr. Co., 113 N.H. 520, 523 (1973). Here,
plaintiff’s theory of conversion appears to be that SNHU so interfered with class
members’ ownership interest in the campus experience—the requisite chattel—as to
owe class members a duty to pay them the value of those services. See doc. no. 13,
¶¶ 76-81.
The elements of plaintiff’s claims are all likely susceptible of classwide proof.
All class members are, by definition, current or former students at SNHU who paid
tuition and other fees in the expectation of receiving in-person educational services.
Due to class members’ common status as current or former SNHU students, it is
likely that all of them were parties to substantially similar contracts with SNHU (or
in the alternative to circumstances giving rise to quasi-contractual obligations as
alleged in the amended complaint). All class members either performed their
obligations under their contract with SNHU or otherwise conferred a benefit on
SNHU by paying their tuition and fees, and SNHU either breached its contracts
with all class members, improperly retained the benefit of their tuition and fee
payments, or interfered with their ownership interest in the “campus experience” by
canceling in-person classes for all class members during the spring 2020 semester.
Common issues thus predominate in connection with the central issues of all three
of the claims. The court therefore will likely be able to find that the Rule 23(b)(3)
predominance requirement is satisfied.
13 2. Superiority
Under Rule 23(b)(3), the court must next consider whether class action is a
“superior” method of resolving class members’ dispute with the defendant, taking
into account the several factors outlined above. Fed. R. Civ. P. 23(b)(3). The
superiority requirement “ensures that litigation by class action will achieve
economies of time, effort, and expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural fairness or bringing about
other undesirable results.” In re Solodyn (Minocycline Hydrochloride) Antitrust
Litig., Case No. CV 14-MD-02503, 2017 WL 4621777, at *21 (D. Mass. Oct. 16, 2017)
(citation, internal quotation marks, and ellipsis omitted). Typically, in considering
superiority, the court compares the prospect of class resolution against the
alternative of class members pursuing individual suits against the defendant. See
Rapuano, 334 F.R.D. at 653.
In light of the issues common to all class members discussed above, the
proposed classwide settlement would achieve an efficient resolution of the class
members’ claims while avoiding unnecessary and duplicative litigation for all
parties and the judicial system. See id. Moreover, plaintiff’s lead counsel has
represented that he is unaware of any pending individual actions by class members,
see doc. no. 30-2, ¶ 17, so class action treatment would not undermine any ongoing
individual suits. For these reasons, the court will likely be able to find that class
action treatment is superior to the available alternatives.
14 C. Appointment of Class Counsel Under Rule 23(g)
In connection with class certification, the court must address appointment of
class counsel under Federal Rule of Civil Procedure 23(g). The court considers the
work plaintiff’s chosen counsel has done so far in identifying and investigating class
claims, counsel’s class action and complex litigation experience, counsel’s knowledge
of the applicable law, and counsel’s available resources for pursuing the litigation.
See Fed. R. Civ. P. 23(g)(1)(A). In addition, counsel “must fairly and adequately
represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
Here, counsel appears to have ably identified and investigated the potential
claims at issue and has successfully negotiated resolution of the parties’ dispute.
Moreover, counsel has significant experience in litigating class actions and other
complex matters and is familiar with the legal issues raised here. See doc. no. 30-2,
¶¶ 11, 18. The court expects that counsel will continue to devote appropriate
resources to notifying absent class members of the proposed settlement and to
fulfilling the class’s obligations under the Agreement, and that counsel will continue
to represent the class fairly and adequately. Accordingly, the court finds that
plaintiff’s counsel of record may properly serve as class counsel in this matter under
Rule 23(g).
D. Preliminary Certification of the Proposed Class and Appointment of Class Representative and Class Counsel
For the reasons discussed above, the court preliminarily certifies the proposed
class for settlement purposes. The court provisionally appoints plaintiff Wright as
15 the settlement class representative, and her chosen counsel, Philip L. Fraietta of
Bursor & Fisher, P.A., as settlement class counsel in this matter. In the event the
court ultimately denies final approval of the parties’ proposed settlement
agreement, the court’s preliminary certification of the class and provisional
appointments of class counsel and class representative shall be vacated. See
Rapuano, 334 F.R.D. at 643.
III. Preliminary Approval of the Proposed Settlement
At this preliminary stage of the approval process, the court must determine
whether it will “likely” be able to find that the proposed class action settlement is
“fair, adequate, and reasonable.” Fed. R. Civ. P. 23(e)(2); see also Rapuano, 334
F.R.D. at 654; City P’ship Co. v. Atl. Acquisition Ltd. P’ship, 100 F.3d 1041, 1043
(1st Cir. 1996). In effect, the role of the court is to serve as a fiduciary for the absent
class members, and to protect them from an unjust or unfair settlement. See In re
Lupron(R) Mktg. & Sales Pracs. Litig., 228 F.R.D. 75, 93 (D. Mass. 2005); see also
Amchem, 521 U.S. at 623. There is a presumption that a negotiated settlement is
within the range of reasonableness “[w]hen sufficient discovery has been provided
and the parties have bargained at arms-length.” City P’ship, 100 F.3d at 1043.
The court notes, first, that the presumption of reasonableness applies here.
The record establishes that counsel for the parties negotiated the Agreement at
arm’s length, at times with the assistance of an experienced and neutral mediator,
following a thorough investigation and mutual exchange of evidence. See doc. no.
16 30-2, ¶¶ 4-8.
Moreover, review of the parties’ Agreement establishes that the court will
likely be able to make a final determination that its terms are fair, adequate, and
reasonable. Pursuant to the proposed settlement agreement, SNHU will pay
$1,250,000 into a “Settlement Fund” to be held in escrow pending disbursement to
class members. According to the parties’ representations, this amount represents
approximately one third of the maximum possible damages class members may
have suffered on plaintiff’s view of the case, and a significantly larger proportion of
maximum damages from SNHU’s position. Class members who do not elect to
exclude themselves from the settlement will automatically receive a pro rata cash
payment from the Settlement Fund as a percentage of the total amount of tuition
and fees they paid to SNHU in connection with its spring 2020 semester, without
needing to submit a claim form. Such payment will equal each class member’s pro
rata share of the Settlement Fund, based on the total amount of tuition and fees
paid by each class member. Class members may select alternative means for
receiving their payment from the Settlement Fund, but the default method will be a
check mailed to their last known addresses. As discussed in greater detail below,
class members may exclude themselves from the settlement by sending a written
request for exclusion to the person administering the settlement by a specified
deadline.
The proposed payments to class members constitute provision of substantial
relief to the settlement class without requiring class members to incur the risks,
17 burdens, costs, or delay associated with continued litigation, trial, and possible
appeal. Thus, the settlement proposal appears fair, adequate, and reasonable at
this preliminary stage of approval proceedings. The court therefore preliminarily
approves the parties’ proposed settlement, pending final approval following a
fairness hearing as discussed below.
III. Notice and Settlement Administration
A. Appointment of a Settlement Administrator
The parties’ Agreement provides that certain administrative duties
(including providing notice to absent class members, serving as an escrow agent for
the Settlement Fund, disbursement of payments to class members, and other such
matters) will be performed by a “Settlement Administrator.” See Agreement (doc.
no. 30-3), ¶ 1.28. Subject to the court’s approval, the Agreement names JND Legal
Administration as the parties’ proposed Settlement Administrator. The court
approves the appointment of JND Legal Administration as Settlement
Administrator.
B. Notice to the Settlement Class Members
The Agreement contains a “Notice Plan.” See Agreement (doc. no. 30-3),
¶¶ 4.1-4.2. Under the Notice Plan, the Settlement Administrator shall provide
notice of the proposed settlement and its terms to the class members via email (in
the form attached as Exhibit A to the Agreement) and First Class U.S. Mail (in the
18 form attached as Exhibit B to the Agreement). The Settlement Administrator shall
provide such notice by email not later than 21 days and by postal mail not later
than 28 days after the court preliminarily approves the proposed settlement. In
addition, the Settlement Administrator shall, within 10 days after the court
preliminarily approves the proposed settlement, post notice of the proposed
settlement and its terms in the form attached as Exhibit C to the Agreement to an
appropriately titled website.3 Such notice advises the class members of their rights
under the proposed settlement agreement, including the right to be excluded from,
comment upon, or object to the Agreement or any of its terms and the right to seek
to quash disclosure of the amounts of their tuition and fee payments to the
Settlement Administrator.
The court finds that the Notice Plan constitutes a reasonable manner of
providing notice to those parties who would be bound by the terms of the proposed
settlement agreement. The Notice Plan thus satisfies the notice requirements of
23(e). See Fed. R. Civ. P. 23(e)(1). Accordingly, the court directs class counsel to
cause the Settlement Administrator to provide notice to the class members in
substantially the forms attached as Exhibits A, B, and C to the Agreement and to
3 According to the parties’ representations, at this time the Settlement Administrator has served the Attorney General of the United States, the Attorneys General of each U.S. State in which class members reside, and other government officials, with notice of the proposed settlement as required under the Class Action Fairness Act, 28 U.S.C. § 1715.
19 develop and maintain the settlement website as required under the Agreement’s
Notice Plan.4
C. Voluntary Exclusion of Potential Class Members from the Settlement Class
The parties’ Agreement provides that any persons falling within the
definition of the settlement class may, upon request, voluntarily exclude themselves
or “opt out” from the class. See Agreement (doc. no. 30-3), ¶ 4.5. To be effective,
such a request must: (1) be made in writing; (2) include the person’s name, address,
and signature; (3) state the name and number of this case; (4) include a statement
that the person wishes to be excluded from the settlement class for purposes of the
proposed settlement; (5) be postmarked on or before the “Voluntary Exclusion
Deadline” set forth below; and (6) be sent to the Settlement Administrator at the
address provided in the notice sent to class members. Any person falling within the
definition of the settlement class who submits such a request shall not be bound by
the parties’ Agreement, shall receive no benefit from the Settlement Fund or
otherwise from the parties’ settlement, and shall not be bound by this court’s orders
or final judgment resolving the claims raised in this case.
4 The parties may, by mutual agreement, revise the Notice Forms attached as Exhibits A, B, and C to the Agreement to correct clerical errors or otherwise to update them for purposes of accuracy or formatting.
20 IV. Final Approval Briefing Schedule and Fairness Hearing
A. Fairness Hearing
The court will hold a fairness hearing on July 29, 2021, at 2:00 p.m. to assist
the court in determining whether to grant final approval of the proposed class action
settlement. At the hearing, the court will consider whether the proposed settlement
is fair, reasonable, adequate, and otherwise compliant with the requirements of
Rule 23(e). The court will also consider class counsel’s petition for attorney’s fees
and the class representative’s petition for an incentive award.
B. Voluntary Exclusion from the Class.
By not later than June 3, 2021 (the “Voluntary Exclusion Deadline”), persons
falling within the definition of the settlement class who wish to be excluded from the
class for purposes of the proposed settlement must send their written requests for
exclusion to the Settlement Administrator as discussed above.
C. Attorney’s Fees and Incentive Award Briefing Schedule
Class counsel shall file briefing in support of their petition for attorney’s fees
and costs and the class representative’s petition for an incentive award by not later
than June 17, 2021. SNHU’s optional responses to such petitions, if any are filed,
shall be filed by not later than July 8, 2021. Class counsel’s optional replies to any
such responses, if any are filed, shall be filed by not later than July 15, 2021.
21 D. Briefing in Support of Final Approval
The parties may file briefing in support of final approval of the proposed
settlement agreement by not later than July 1, 2021.
E. Appearances by Class Members.
Class members who have not voluntarily excluded themselves from the
settlement class will be represented by class counsel unless they elect to make an
appearance in this action, either individually or through counsel of their choosing,
at their own expense. Any such appearance by class members who do not wish to be
represented by class counsel shall be made by not later July 8, 2021.
F. Objections to Proposed Settlement
Class members who have not voluntarily excluded themselves from the
settlement class may object to the fairness, reasonableness, or adequacy of the
proposed settlement agreement, to final judgment dismissing this action, or to the
amount of any award of fees or costs to class counsel or any incentive award to the
class representative. Such objecting class members may offer their objections either
on their own behalf or through counsel, at their own expense.
To be considered by the court, the court must receive such objections by not
later than July 15, 2021. Objections shall be mailed directly to the court addressed
to “Jennifer Sackos, Case Manager for Chief Judge McCafferty, 55 Pleasant Street,
Concord, New Hampshire 03301” with copies also sent to “Class Counsel Philip L.
Fraietta of Bursor & Fisher, P.A., 888 Seventh Avenue, New York, NY 10019 and
22 Benjamin T. King, Douglas Leonard & Garvey PC, 14 South Street, Ste 5, Concord,
NH 03301” and to “Defendant’s Counsel Christopher Cole and John-Mart Turner of
Sheehan Phinney Bass & Green PA, 1000 Elm Street, 17th Floor, Manchester, NH
03101, and Robert J. Burns, Holland & Knight, 195 Broadway, New York, NY
10007.”
In either event, any such objection must: (1) be made in writing; (2) contain a
caption or title that identifies it as “Objection to Class Settlement in Wright v.
Southern New Hampshire University;” (3) include contact and address information
for the objecting class member; (4) include documentation sufficient to establish the
objecting person’s standing as a settlement class member (such as, for example, the
objecting person’s tuition invoice for SNHU’s spring 2020 semester); (5) state the
facts and any legal grounds supporting the objection; (6) include the name and
contact information of any attorneys representing, advising, or assisting the
objecting person in connection with preparing the objection; (7) include a statement
indicating whether the objecting person intends to appear at the fairness hearing
(either personally or through counsel); and (8) otherwise comply in all respects with
the objection procedures set forth in the notice provided to class members. In the
event any such objection is offered, counsel for the parties may petition the court for
leave to conduct discovery to determine whether the objecting person is a member of
the settlement class. Any class member who fails to offer such a written objection,
compliant in all respects with the objection procedures set forth in the notice
provided to class members, shall be deemed to have waived any objections.
23 V. Further Matters
This Order is a “judicial order” within the meaning of the Family Educational
Rights and Privacy Act, 20 U.S.C. § 1232g and 34 C.F.R. § 99.31(a)(9), and shall
constitute a sufficient basis to permit SNHU to provide the Settlement
Administrator with information regarding the tuition and fees paid by class
members to SNHU in connection with its spring 2020 semester (with a copy of such
information to class counsel, as provided in Section 4.1(a) of the Agreement).
Class members shall be bound by this court’s orders and final judgment in
this case.
CONCLUSION
For all the reasons discussed above, plaintiff’s assented-to motion (doc. no. 30)
for preliminary approval of the parties’ proposed class action settlement is granted.
Accordingly, the court preliminarily certifies the proposed class for settlement
purposes and provisionally appoints plaintiff Wright as the settlement class
representative and Bursor & Fisher, P.A., as class counsel, as discussed above. In
addition, the court preliminarily approves the parties’ proposed settlement
agreement and directs class counsel to cause the Settlement Administrator to
provide notice to all class members in accordance with the notice provisions of the
Agreement.
24 The court will hold a fairness hearing on July 29, 2021 at 2:00 p.m. In
addition, the court has set deadlines for briefing and other matters leading up to the
fairness hearing as discussed above.
In light of the court’s preliminary approval of the parties’ proposed
settlement, all pending motions are denied as moot, with leave to refile in the event
the court denies final approval of the proposed settlement.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 26, 2021
cc: Counsel of Record.