Buckeye Tree Lodge and Sequoia Village Inn, LLC v. Expedia, Inc.

Opinion

8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10

11 BUCKEYE TREE LODGE AND SEQUOIA Case No. 3:16-cv-04721-VC VILLAGE INN, LLC, a California limited 12 liability company, 2020 O STREET CORPORATION, INC, D/B/A THE MANSION CLASS ACTION 13 ON O STREET, PROSPECT HISTORIC HOTEL, and SHILOH MORNING INN, LLC, a AMENDED [PROPOSED] ORDER GRANTING 14 Oklahoma limited liability company, PLAINTIFFS’ UNOPPOSED MOTION FOR individually and on behalf of themselves and all APPROVAL OF CLASS ACTION 15 others similarly situated, SETTLEMENT, ATTORNEY’S FEES AND COSTS, AND INCENTIVE AWARDS 16 Plaintiffs, Date: March 25, 2021 17 Time: 2:00 p.m. vs. Courtroom: 4, 17th Floor 18 Judge: Hon. Vince Chhabria EXPEDIA, INC., a Washington corporation; 19 HOTELS.COM, L.P., a Texas limited partnership; HOTELS.COM GP, LLC, a Texas 20 limited liability company; ORBITZ, LLC, a Delaware limited liability company, 21

22 Defendants.

25 26 27 28 1 [PROPOSED] ORDER 2 Plaintiffs’ Unopposed Motion for Approval of Class Action Settlement came on for regularly 3 scheduled hearing before this Court as noticed. Having considered the Parties’ briefs, supporting 4 evidence, and other documents, and good cause having been shown, the Court hereby ORDERS as 5 follows: 6 1. The Court confirms its certification of the Rule 23(b)(2) class and its finding that the 7 requirements of numerosity, commonality, typicality, and adequacy had been established for a California 8 Rule 23(b)(2) class; that the California class was ascertainable; and that questions of law and fact common to 9 all Class Members predominated over questions affecting only individual members. 10 2. The Court confirms the appointment of the law firms Patterson Law Group, APC, Cuneo 11 Gilbert & LaDuca, LLP, Pratt & Associates, and Richa Law Group, P.C. as Class Counsel. 12 3. The Court confirms the appointment of David Pfau, Ted Spero, Dennis Villavicencio, and 13 Fred Wickman as Class Representatives. 14 4. The class action settlement is approved. It is fair, adequate, and reasonable, and it meets 15 the requirements of Rule 23(e)(2) and the standards set by the Ninth Circuit in Hanlon v. Chrysler Corp., 16 150 F.3d 1011, 1026 (9th Cir. 1998) and its progeny. Specifically, the Court finds that the following 17 relevant factors weigh in favor of approval: (1) the strength of the plaintiffs’ case; (2) the risk, expense, 18 complexity, and likely duration of further litigation; (3) the risk of maintaining class action status 19 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the 20 stage of the proceedings; and (6) the experience and views of counsel. 21 5. Notice is not required for this Rule 23(b)(2) class. The terms of the Settlement provide for 22 injunctive relief only and specifically preserve the Class Members’ rights to bring claims for monetary 23 damages of any kind. Class Members do not have the right to opt out. As a result, notice is not required. 24 Moreno v. San Francisco Bay Area Rapid Transit Dist., No. 17-cv-02911-JSC, 2019 U.S. Dist. LEXIS 25 13309, 2019 WL 343472, at *10 (N.D. Cal. Jan. 28, 2019); Stathakos v. Columbia Sportswear Co., No. 26 4:15-cv-04543-YGR, 2018 U.S. Dist. LEXIS 17138, at *9 (N.D. Cal. Jan. 25, 2018); Lilly v. Jamba 27 Juice Co., No. 13-CV-02998-JST, 2015 U.S. Dist. LEXIS 34498, 2015 WL 1248027, at *25-26 (N.D. 28 Cal. Mar. 18, 2015). And because notice is not required, neither is a preliminary approval hearing. See 1 Stathakos, 2018 U.S. Dist. LEXIS 17138, at *15; Lilly v. Jamba Juice Co., No. 13-CV-02998-JST, 2015 2 U.S. Dist. LEXIS 58451, at *11 (N.D. Cal. May 4, 2015); Kim v. Space Pencil, Inc., No. C 11-037996 3 LB, 2012 U.S. Dist. LEXIS 169922, 2012 WL 5948951, at *17 (“[T]he reaction of class members is not 4 relevant here because notice [is] not required under Federal Rule of Civil Procedure 23(e) and there is no 5 binding effect on the Class nor is there a release being provided.”). 6 6. The Court enters the injunction as defined in the Parties’ settlement agreement as follows: 7 a. Expedia shall implement, within thirty (30) days of the entry of this Approval 8 Order, the following injunctive relief: 9 i. Expedia shall use best efforts to ensure that properties with which Expedia 10 does not have a contract and that have no relationship with a third party provider to the 11 Websites (“class member properties”) do not appear in search results on the Websites with 12 unavailability messaging or on a property details page with unavailability messaging. 13 Recognizing that technology is evolving, best efforts may include steps currently taken by 14 Expedia and those that have been implemented since the filing of this Action, such as 15 contractually requiring third party providers to notify Expedia when a hotel terminates its 16 relationship with that third party and using technological controls to prevent hotels from 17 appearing in search results when third parties notify Expedia that a hotel has terminated its 6(a)(i) 18 relationship with that third party. Nothing in this Paragraph 4(a)(i) shall prevent Expedia 19 from taking different or additional steps to ensure that class member properties do not 20 appear in search results with unavailability messaging or on property details pages with 21 unavailability messaging. To the extent that Expedia becomes aware that a class member 22 property is appearing next to unavailability messaging, Expedia shall act promptly to 23 remove that property from its Websites. 24 ii. Expedia shall remove from the Websites any property that terminates its 25 contract with Expedia and that is not available to Expedia through a third party provider to 26 the Websites. 27 28 1 lil. Expedia shall use best efforts to ensure that search engine marketing 2 search engine optimization, and social media advertisements for the Websites do no 3 identify by name class member properties that are not in and of themselves attractions. 4 Iv. To the extent it has not already done so, Expedia will notify all third part 5 providers that when a hotel with which the third party has contracted terminates it 6 agreement with that third party, the third party must provide accurate availabilit 7 information to Expedia to allow it to remove the property from the Websites. 8 V. Every six months, Expedia will perform an audit to confirm that a sampl 9 of hotels appearing on its websites are affiliated with Expedia through direct contracts o 10 third party providers. 11 b. The terms of this injunction shall be in effect for three (3) years from the Approva 12 Date. 13 7. The Court approves the stipulated Attorney’s Fees and Costs award of $2,100,000. 14 8. The Court approves the stipulated Incentive Awards of $12,500 for each of the four Clas 15 || Representatives. 16 SS DISTR IC} 17 IT IS SO ORDERED. SS > oO 18 VED oN fo 19|| DATED: April 9, 2021 [appro

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