Briana Wright v. P Southern New Hampshire University

2021 DNH 149

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Briana Wright

v. Civil No. 20-cv-609-LM Opinion No. 2021 DNH 149 P Southern New Hampshire University

FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND MOTION FOR ATTORNEYS’ FEES AND INCENTIVE AWARD

Plaintiff Briana Wright brought this 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. On or around January

25, 2021, following intensive, non-collusive, arm’s-length negotiations and

substantial exchange of information, the parties reached an agreement to settle

their dispute, subject to the court’s approval.

On March 3, 2021, plaintiff Wright filed a Motion for Preliminary Approval of

Class Action Settlement. On March 12, 2021, the parties served the Class Action

Fairness Act (“CAFA”) notice required by 28 U.S.C. § 1715.

On April 26, 2021, the court issued an order (the “Preliminary Approval

Order”) granting the Motion for Preliminary Approval of Class Action Settlement.

In that order, doc. no. 31, the court conducted a rigorous and searching analysis of whether it would likely be able to certify the class for the purposes of settlement and

find that the proposed settlement is fair, reasonable, and adequate. The court

preliminarily certified the proposed class for settlement purposes, provisionally

appointed Wright as the class representative and her counsel of record, Bursor &

Fisher, P.A., as class counsel, and preliminarily approved the proposed settlement.

On May 17, 2021, the Settlement Administrator sent the Notice of Proposed

Settlement of Class Action (the “Notice”) to the settlement class members as

ordered.

On July 29, 2021, the court held a fairness hearing regarding the parties’

proposed class action settlement. At the court’s invitation, on August 12, 2021, class

counsel filed a supplemental memorandum in support of the settlement class’s

motion for award of attorney fees.

The court now finds and rules as follows:

1. Having considered the settlement class’s Motion for Final Approval of

the Class Settlement and the statements made at the fairness hearing, the court

now grants final approval of the parties’ proposed settlement agreement. The court

has not reviewed or heard any information that would change the court’s view

expressed in the Preliminary Approval Order that the class can be certified for

settlement purposes and that the proposed settlement is fair, reasonable, and

adequate. The court approves the parties’ settlement agreement for all the reasons

stated in its Preliminary Approval Order, doc. no. 31, and the reasons outlined in

the settlement class’s final approval pleadings.

2 2. To the extent this Order employs any term with initial capitalization

that is expressly defined in the parties’ settlement agreement but not expressly

defined in this Order, the definition provided in the parties’ settlement agreement is

incorporated by reference into this Order.

3. The court confirms that it has jurisdiction over this matter and the

parties to it.

4. The court now affirms the findings made in its Preliminary Approval

Order. Specifically, the court now finds that, for purposes of settlement only, the

prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of

Civil Procedure have been satisfied in that: (a) the number of settlement class

members is so numerous that joinder thereof is impracticable; (b) there are

questions of law and fact common to the settlement class; (c) the claims of the class

representative are typical of the claims of the settlement class members; (d) the

class representative and class counsel have and will fairly and adequately represent

the interests of the settlement class members; (e) the questions of law and fact

common to the settlement class members predominate over any questions

affectingly only individual settlement class members; and (f) a class action is

superior to other available methods for the fair and efficient adjudication of the

parties’ dispute.

5. At the fairness hearing, the court expressed concern regarding the

settlement class’s request for attorney fees. In particular, the court expressed

concern with the size of the requested award relative to both the individual class

3 members’ recovery and to the lodestar amount that would be awarded if class

counsel’s fees were calculated on an hourly basis. In addition, the court expressed

concern over whether the complexity of this action warranted such a large attorney

fee award. Finally, the court observed that class counsel’s hourly rates were far out

of line with the hourly rates charged by New Hampshire practitioners of comparable

experience, increasing the differential between the requested award and a

reasonable lodestar calculation. However, the court acknowledges that the so-called

“common fund” doctrine permits fee awards to class counsel calculated as a

percentage of the fund created by a settlement for the benefit of the class. Boeing

Co. v. VanGemert, 444 U.S. 472, 478 (1980). The court further acknowledges that

“use of the [percentage of fund] method in common fund cases is the prevailing

praxis” in the First Circuit due to its relative efficiency. In re Thirteen Appeals

Arising out of the San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 307 (1st

Cir. 1995). The court agrees with class counsel that, in a matter such as this,

reliance on the percentage of fund method tends to promote early and efficient

settlement of claims. The court further agrees that, as a matter of economic reality,

the individual class members would have been effectively unable to pursue their

claims against SNHU through individually retained attorneys absent the potential

for a class-based fee award. Accordingly, the court grants the settlement class’s

Motion for Attorneys’ Fees, Costs, Expenses, and Incentive Award, doc. no. 32, for

the reasons stated in the memorandum in support of that motion.

4 6. For purposes of settlement only, pursuant to Rule 23(a) and (b)(3) of

the Federal Rules of Civil Procedure the court further certifies this action as a class

action, composed of the following individuals:

All students and former students [of defendant SNHU] 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.

Excluded from the settlement 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.

7. The court finally approves the terms of the parties’ settlement

agreement and the plan of allocation, the material terms of which include, but are

not limited to, the following:

A. Defendant will pay $1,250,000 into a “Settlement Fund” to be

held in escrow pending disbursement to class members;

B. Class counsel will receive attorneys’ fees of $416,666.66 from the

Settlement Fund;

C. Settlement administration costs incurred by the Settlement

Administrator, JND Legal Administration LLC, will be deducted from the

Settlement Fund;

5 D. Plaintiff Wright will receive an incentive award in the amount of

$5,000 for her contributions to the litigation and services to the settlement

class, including incurring the risks and burdens of litigation on behalf of the

class members;

E. Class members who do not elect to exclude themselves from the

settlement will automatically receive a pro rata cash payment from the

remaining 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, as set forth in the parties’ settlement

agreement;

F. The settlement class members who did not exclude themselves

are bound by the terms of the parties’ settlement agreement, including all

releases therein, and their claims are dismissed with prejudice.

8. The court finds that the Notice and the distribution thereof constituted

a reasonable manner of providing notice to those parties who would be bound by the

terms of the proposed settlement agreement, and thus satisfied the requirements of

due process and Federal Rule of Civil Procedure 23(e). The court further finds that

the Notice was the best practicable under the circumstances, and that it constituted

due and sufficient notice to the settlement class members and provided them with

sufficient information to enable them to make informed decisions as to the proposed

settlement and their right to object to or opt out of it.

6 9. The court further finds that the parties’ settlement, on the terms and

conditions set forth in their agreement, is in all respects fundamentally fair,

reasonable, adequate, and in the best interests of the settlement class members.

10. The court finds that the settlement class members were given a fair

and reasonable opportunity to object to the settlement. No settlement class

members objected to the settlement. No settlement class members requested

exclusion.

11. This Order is binding on all settlement class members other than

those, if any, who either validly and timely excluded themselves from the settlement

class and the settlement agreement, or whose late exclusion was or shall be agreed

to by the parties.

12. This action is dismissed with prejudice as to all other issues and as to

all parties and claims.

13. As of the date ten days after this Order issues, the Released Parties, as

defined in the next paragraph, shall be released and forever discharged by all

settlement class members (except those individuals, if any, who validly excluded

themselves or shall exclude themselves from the settlement class and the settlement

agreement) from any and all causes of action, judgments, liens, indebtedness, costs,

damages, penalties, expenses, obligations, attorneys’ fees, losses, claims, liabilities

and demands of whatever kind or character (each a “Claim”), known or unknown,

arising out of any facts, transactions, events, matters, occurrences, acts, disclosures,

statements, representations, omissions or failures to act regarding SNHU’s actions

7 or decisions in respect to the Spring 2020 academic term, including ceasing in-

person education and transitioning to a remote format for the Spring 2020 academic

term, including but not limited to all claims that were brought or could have been

brought in this action.

14. Released Parties means Southern New Hampshire University, as well

as any and all of its respective present or past heirs, executors, estates,

administrators, predecessors, successors, assigns, parent companies, subsidiaries,

licensors, licensees, associates, affiliates, employers, agents, consultants,

independent contractors, insurers, including without limitation employees of the

foregoing, directors, trustees, board members, managing directors, officers,

partners, principals, members, attorneys, accountants, financial and other advisors,

underwriters, shareholders, lenders, auditors, investment advisors, legal

representatives, successors in interest, assigns and companies, firms, trusts,

corporations, and all third party service providers or entities identified as SNHU’s

agents and/or independent contractors in this action.

15. This Order does not and is not intended to constitute, nor shall it be

deemed to constitute, an admission by any party as to the merits, validity, or

accuracy of any of the allegations, claims, or defenses of any other party in this case.

The court has made no findings and expresses no opinion concerning the merits,

validity, or accuracy of any of the allegations, claims, or defenses in this case.

16. The settlement class members, including anyone who acts or purports

to act on their behalf, shall not bring, assert, or prosecute any claims, actions, or

8 causes of action that assert any of the released Claims against any of the Released

Parties.

17. The court retains continuing and exclusive jurisdiction over the parties

and the administration of the settlement agreement only with respect to the

distribution of the Settlement Fund.

In conclusion, the court grants the settlement class’s Motion for Final

Approval of the Class Action Settlement (doc. no. 33) and the settlement class’s

Motion for Attorneys’ Fees, Costs, Expenses, and Incentive Award (doc. no. 32). All

pending motions, if any, are denied as moot. The clerk’s office is directed to enter

judgment and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

September 22, 2021

cc: Counsel of Record