1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CORY LARSON, on behalf of himself and No. 1:16-cv-00219-DAD-SKO all others similarly situated, 12 Plaintiff, 13 ORDER GRANTING FINAL APPROVAL OF v. CLASS ACTION SETTLEMENT AND 14 AWARDING ATTORNEYS’ FEES AND HARMAN-MANAGEMENT COSTS AND AN INCENTIVE PAYMENT 15 CORPORATION, (Doc. Nos. 202, 206) 16 Defendant. 17 18 This matter came before the court on June 15, 2020 for hearing on plaintiff’s unopposed 19 motions for final approval of a class action settlement and for attorneys’ fees and costs and an 20 incentive payment. (Doc. Nos. 202, 206.) Attorney Stephen Taylor appeared telephonically on 21 behalf of plaintiff. Attorneys David Bird and Martin Jaszczuk appeared telephonically on behalf 22 of defendant Harman-Management Corporation (“Harman”). 23 In this action, plaintiff alleges that Harman1 sent unauthorized, automated text messages 24 to putative class members’ cellular phones in violation of the Telephone Consumer Protection
25 1 Initially, plaintiff had named an additional entity, 3Seventy, Inc., as a defendant in this action. On June 12, 2019, plaintiff and 3Seventy, Inc. stipulated to dismissing 3Seventy, Inc. from this 26 action without prejudice. (See Doc. Nos. 194, 195.) That stipulated dismissal will convert to a 27 dismissal with prejudice upon entry of this final order approving this class settlement between the settlement class and defendant Harman. (Doc. No. 194 at 2.) The settlement agreement states 28 that 3Seventy, Inc. is a released party. (Doc. No. 207 at 5.) 1 Act, 47 U.S.C. § 227 et seq. (the “TCPA”). (Doc. No. 22.) The court previously granted 2 preliminary approval of the class action settlement in this action on December 20, 2019. (Doc. 3 No. 199.) Pertinent factual details may be found in that order. On March 20, 2020, plaintiff filed 4 the pending unopposed motion for attorneys’ fees, and on May 20, 2020, plaintiff filed the 5 pending unopposed motion for final approval of the class action settlement. (Doc. Nos. 202, 6 206.) For the reasons that follow, the court will grant final approval of the class action settlement 7 and will award attorneys’ fees and costs and an incentive payment as requested. 8 FINAL CERTIFICATION OF SETTLMENT CLASS 9 The court evaluated the standards for class certification in its prior order granting 10 preliminary approval of the settlement and found preliminary certification warranted. (Doc. No. 11 199 at 13–18.) Since no additional issues concerning class certification have been raised, the 12 court will not repeat its prior analysis here, and finds that final class certification in this case is 13 appropriate. The following class is therefore certified: All individuals and entities who were sent 14 text messages from, or related to, the A&W Text Club between February 17, 2012 and the date of 15 entry of the Preliminary Approval Order. (Doc. Nos. 207 at 4; 199 at 13.) 16 FINAL APPROVAL OF CLASS ACTION SETTLEMENT 17 Class actions require the approval of the district court prior to settlement. Fed. R. Civ. P. 18 23(e) (“The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, 19 or compromised only with the court’s approval.”). This requires that: (i) notice be sent to all 20 class members; (ii) the court hold a hearing and make a finding that the settlement is fair, 21 reasonable, and adequate; (iii) the parties seeking approval file a statement identifying the 22 settlement agreement; and (iv) class members be given an opportunity to object. Fed. R. Civ. P. 23 23(e)(1)–(5). The settlement agreement in this action was previously filed on the court docket 24 (see Doc. No. 193-1, Ex. A), and class members have been given an opportunity to object thereto 25 (see Doc. No. 199 at 19). The court now turns to the adequacy of notice and its review of the 26 settlement following the final fairness hearing. 27 ///// 28 ///// 1 A. Notice 2 “Adequate notice is critical to court approval of a class settlement under Rule 23(e).” 3 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998), overruled on other grounds by 4 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). “Notice is satisfactory if it ‘generally 5 describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to 6 investigate and to come forward and be heard.’” Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 7 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th 8 Cir. 1980)). Any notice of the settlement sent to the class should alert class members of “the 9 opportunity to opt-out and individually pursue any state law remedies that might provide a better 10 opportunity for recovery.” Hanlon, 150 F.3d at 1025. It is important for class notice to include 11 information concerning the attorneys’ fees to be awarded from the settlement, because it serves as 12 “adequate notice of class counsel’s interest in the settlement.” Staton v. Boeing Co., 327 F.3d 13 938, 963 n.15 (9th Cir. 2003) (quoting Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th 14 Cir. 1993)) (noting that where the notice references attorneys’ fees only indirectly, “the courts 15 must be all the more vigilant in protecting the interests of class members with regard to the fee 16 award”). 17 The court previously reviewed the postcard notice and the longform notice of settlement 18 in this case at the preliminary approval stage and found both to be satisfactory. (Doc. No. 199 at 19 18–20.) Following the grant of preliminary approval, the settlement administrator mailed the 20 postcard notice to putative class members. (Doc. No. 207 at 6.) Although the putative class 21 consists of 233,026 total class members (as represented by the unique cellphone numbers in the 22 text message dataset), the settlement administrator mailed the postcard notices to the 197,816 23 class members “whose addresses could be identified after three reverse look up searches.” (Id.) 24 Of those 197,816 mailings, 1,484 were returned with forwarding addresses, to which the 25 settlement administrator re-mailed the notices. (Id.) Of the 197,816 initial mailings, 31,898 were 26 returned as undeliverable. (Id.) The administrator performed address searches for those mailings 27 that were returned as undeliverable and was able to find updated addresses for 5,645 putative 28 class members, to which the settlement administrator re-mailed the notices. (Id.) Accordingly, of 1 the 233,026 total class members, 171,563 putative class members, or 74%, received actual notice 2 of the settlement. (Id.) The longform notice was also made available to putative class members 3 via a settlement website that the settlement administrator established, which had received 19,308 4 visits as of the time the pending motion for final approval was filed. (Id. at 7.) 5 Given the above, the court concludes adequate notice was provided to the class here. See 6 Silber v. Mabon, 18 F.3d 1449, 1453–54 (9th Cir. 1994) (noting that court need not ensure all 7 class members receive actual notice, only that “best practicable notice” is given); Winans v. 8 Emeritus Corp., No. 13-cv-03962-HSG, 2016 WL 107574, at *3 (N.D. Cal. Jan. 11, 2016) 9 (“While Rule 23 requires that ‘reasonable effort’ be made to reach all class members, it does not 10 require that each individual actually receive notice.”). The court accepts the reports of the 11 settlement administrator and finds sufficient notice has been provided, thereby satisfying Federal 12 Rule of Civil Procedure 23(e)(1). 13 B. Final Fairness Hearing 14 On June 15, 2020, the court held a final fairness hearing, at which class counsel and 15 defense counsel appeared. No class members, objectors, or counsel representing the same 16 appeared at the hearing. For the reasons explained below, the court now determines that the 17 settlement reached in this case is fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). 18 At the final approval stage, the primary inquiry is whether the proposed settlement “is 19 fundamentally fair, adequate, and reasonable.” Lane v. Facebook, Inc., 696 F.3d 811, 818 (9th 20 Cir. 2012); Hanlon, 150 F.3d at 1026. “It is the settlement taken as a whole, rather than the 21 individual component parts, that must be examined for overall fairness.” Hanlon, 150 F.3d at 22 1026 (citing Officers for Justice v. Civil Serv. Comm’n of S.F., 688 F.2d 615, 628 (9th Cir. 23 1982)); see also Lane, 696 F.3d at 818–19. Having already completed a preliminary examination 24 of the agreement, the court reviews it again, mindful that the law favors the compromise and 25 settlement of class action suits. See, e.g., In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th 26 Cir. 2008); Churchill Village, LLC. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); Class 27 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Officers for Justice, 688 F.2d at 28 625. Ultimately, “the decision to approve or reject a settlement is committed to the sound 1 discretion of the trial judge because he [or she] is exposed to the litigants and their strategies, 2 positions, and proof.” Staton, 327 F.3d at 953 (quoting Hanlon, 150 F.3d at 1026). 3 In assessing the fairness of a class action settlement, courts balance the following factors: 4 (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of 5 maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the 6 stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction 7 of the class members to the proposed settlement. 8 Churchill Vill., L.L.C., 361 F.3d at 575; see also In re Online DVD-Rental Antitrust Litig., 779 9 F.3d 934, 944 (9th Cir. 2015); Rodriguez v. West Publ’g Corp., 563 F.3d 948, 964–67 (9th Cir. 10 2009). These settlement factors are non-exclusive, and each need not be discussed if they are 11 irrelevant to a particular case. Churchill Vill., L.L.C., 361 F.3d at 576 n.7. Where the parties 12 have reached a settlement agreement prior to class certification, the court has an independent duty 13 on behalf of absent class members to be vigilant for any sign of collusion among the negotiating 14 parties. See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) 15 (noting “settlement class actions present unique due process concerns for absent class members” 16 because the “inherent risk is that class counsel may collude with the defendants, tacitly reducing 17 the overall settlement in return for a higher attorney’s fee”) (internal quotations and citations 18 omitted). 19 In particular, where a class action settlement agreement is reached prior to a class being 20 certified by the court, “consideration of these eight Churchill factors alone is not enough to 21 survive appellate review.” Id. at 946–47. District courts must be watchful “not only for explicit 22 collusion, but also for more subtle signs that class counsel have allowed pursuit of their own self- 23 interests and that of certain class members to infect the negotiations.” Id. at 947. These more 24 subtle signs include: (i) “when counsel receive a disproportionate distribution of the settlement, 25 or when the class receives no monetary distribution but class counsel are amply rewarded”; 26 (ii) the existence of a “clear sailing” arrangement, which provides “for the payment of attorneys’ 27 fees separate and apart from class funds,” and therefore carries “the potential of enabling a 28 defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an 1 unfair settlement on behalf of the class”; and (iii) “when the parties arrange for fees not awarded 2 to revert to defendants rather than be added to the class fund.” Id. (internal citations and 3 quotations omitted). The Ninth Circuit has also recognized that a version of a “clear sailing” 4 arrangement exists when a defendant expressly agrees not to oppose an award of attorneys’ fees 5 up to an agreed upon amount. Lane v. Facebook, Inc., 696 F.3d 811, 832 (9th Cir. 2012); In re 6 Bluetooth, 654 F.3d at 947; In re Toys R Us-Delaware, Inc.–Fair and Accurate Credit 7 Transactions Act (FACTA) Litig., 295 F.R.D. 438, 458 (C.D. Cal. 2014) (“In general, a clear 8 sailing agreement is one where the party paying the fee agrees not to contest the amount to be 9 awarded by the fee-setting court so long as the award falls beneath a negotiated ceiling.”) 10 (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir. 1991)). 11 While this court has wide latitude to determine whether a settlement is substantively fair, 12 it is held to a higher procedural standard and “must show it has explored comprehensively all 13 factors, and must give a reasoned response to all non-frivolous objections.” Allen v. Bedolla, 787 14 F.3d 1218, 1223–24 (9th Cir. 2015) (quoting Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 15 2012)). Thus, while the court should examine any relevant Churchill factors, the failure to review 16 a pre-class certification settlement for those subtle signs of collusion identified above may 17 constitute error. Id. at 1224–25. 18 1. Strength of Plaintiff’s Case and the Risk of Maintaining Class Action Status 19 Throughout the Trial 20 When assessing the strength of a plaintiff’s case, the court does not reach “any ultimate 21 conclusions regarding the contested issues of fact and law that underlie the merits of this 22 litigation” because evidence has not been fully presented. In re Wash. Pub. Power Supply Sys. 23 Sec. Litig., 720 F. Supp. 1379, 1388 (D. Ariz. 1989). Instead, the court is to “evaluate objectively 24 the strengths and weaknesses inherent in the litigation and the impact of those considerations on 25 the parties’ decisions to reach these agreements.” Id. 26 Here, plaintiff represents that recovery on the merits in this case is uncertain. (Doc. No. 27 207 at 9.) Specifically, plaintiff identifies the following contested issues: 28 ///// 1 (1) whether Plaintiff can maintain the action as a class action; (2) whether the system used to send the text messages qualifies as an 2 automatic telephone dialing system under the TCPA; (3) whether the Plaintiff’s theories of individual and vicarious liability can succeed; 3 and (4) whether there was prior express consent to the allegedly unlawful text messages. 4 5 (Id.) Although plaintiff believes that a trier of fact could conclude that Harman engaged in the 6 violations alleged by the class, he acknowledges that Harman “raised substantial arguments 7 against class certification and on the merits of the case as reflected in the briefing.” (Id.) Indeed, 8 as noted in the court’s prior order granting preliminary approval, the parties engaged in extensive 9 motion practice, including three motions for summary judgment (Doc. Nos. 101, 128, 174) and a 10 motion for class certification (Doc. No. 98), each of which the court administratively terminated 11 after learning that the parties had reached a class-wide settlement. (Doc. No. 199 at 2; see also 12 Doc. Nos. 188, 190.) The briefing on these motions reveal, amongst other disputed issues, that 13 Harman contested and continues to contest whether it used an automatic telephone dialing 14 system, as defined by the TCPA, and whether plaintiff could certify the class because of issues 15 relating to whether members consented to receiving the messages that they did. (See, e.g., Doc. 16 Nos. 128 at 8–15; 134 at 7; 174 at 19–23.) 17 Therefore, it appears that while plaintiff has potentially meritorious claims, it is far from 18 certain that he would have prevailed on those claims. The court finds that consideration of the 19 first and third Churchill factors weigh in favor of granting final approval of the settlement in this 20 action. 21 2. Risk, Expense, Complexity, and Likely Duration of Further Litigation 22 “[T]here is a strong judicial policy that favors settlements, particularly where complex 23 class action litigation is concerned.” In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 24 2008) (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)). As a result, 25 “[a]pproval of settlement is preferable to lengthy and expensive litigation with uncertain results.” 26 Johnson v. Shaffer, No. 2:12-cv-1059-KJM-AC, 2016 WL 3027744, at *4 (E.D. Cal. May 27, 27 2016) (citing Morales v. Stevco, Inc., No. 1:09-cv-00704-AWI-JLT, 2011 WL 5511767, at *10 28 (E.D. Cal. Nov. 10, 2011)). 1 Here, plaintiff has expressed his concerns regarding the potential expense and duration of 2 further litigation in this action. (Doc. No. 207 at 9–10.) As discussed, class certification remains 3 contested between the parties, as well as the issues raised in the three summary judgment motions 4 that were administratively terminated by the court. Moreover, and as discussed in the court’s 5 prior order granting preliminary approval of the parties’ class action settlement, Harman’s total 6 exposure in this action is in the billions of dollars, given that 13.5 million text messages were sent 7 and given that the TCPA provides for statutory damages of $500.00 for each violation (which can 8 be tripled to $1500 for violations that are found to be willful). (Doc. No. 199 at 11.) As plaintiff 9 points out, some courts have found TCPA recoveries in the billions of dollars to violate the Due 10 Process Clause, see, e.g., Golan v. FreeEats.com, Inc., 930 F.3d 950, 962–63 (8th Cir. 2019), and 11 there is a potential that even if such a large recovery was found not to violate the Due Process 12 Clause, that such an amount might not be recoverable as it would likely bankrupt Harman. (Doc. 13 No. 207 at 9–10.) 14 Accordingly, although the parties have been litigating this case for over four years, that 15 timeline would be extended even further by litigating this case to a final resolution through a jury 16 trial. The parties’ expenses would increase as litigation costs continue to accrue, and any 17 recovery of a monetary judgment, which is not guaranteed, would be prolonged. By contrast, the 18 settlement in this action provides compensation that is available now, without the additional time 19 and risk of decisions that would likely be subject to lengthy appeals processes. Thus, 20 consideration of this factor also weighs in favor of granting final approval. 21 3. The Amount Offered in Settlement 22 To evaluate the fairness of the settlement award, the court should “compare the terms of 23 the compromise with the likely rewards of litigation.” See Protective Comm. for Indep. 24 Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424–25 (1968). “It is well- 25 settled law that a cash settlement amounting to only a fraction of the potential recovery does not 26 per se render the settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 27 454, 459 (9th Cir. 2000). To determine whether a settlement “falls within the range of possible 28 approval” a court must focus on “substantive fairness and adequacy,” and “consider plaintiffs’ 1 expected recovery balanced against the value of the settlement offer.” In re Tableware Antitrust 2 Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). 3 As discussed above, Harman’s total exposure in this action were the case to proceed to 4 trial and were the class to prevail on every claim is in the billions of dollars. The settlement is for 5 a non-reversionary common fund of $4,000,000.00. (Doc. No. 207 at 4, 11.) The common fund 6 provides for: (1) $10,000.00 enhancement award to the representative plaintiff, plaintiff Larson; 7 (2) payment of attorneys’ fees to class counsel in the amount of 25% of the common fund, or 8 $1,000,000.00; (3) class counsel’s costs and expenses of approximately $42,987.39; and 9 (4) settlement administration fees in the amount of $210,000.00 to KCC Class Action Services, 10 LLC. (Id. at 3 n.3.) 11 After deducting the costs of administering the settlement, the fees and costs of class 12 counsel, and the incentive payment to plaintiff, “[e]ach Settlement Class Member who submitted 13 a simple claim form2 will receive a pro rata share of the net fund, $2,737,012.61.” (Id. at 11.) Of 14 the 171,563 putative class members who received actual notice, 17,795 timely submitted claim 15 forms postmarked or filed on or before April 20, 2020 and 102 submitted untimely claim forms. 16 (Id. at 7.) “Owing to the Covid-19 restraints on normal activities, the Parties advised [the 17 settlement administrator] to treat the 102 [untimely] claim forms . . . as timely.” (Id.) A total of 18 17,897 claim forms have therefore been received. Of those, 17,439 “are complete and valid claim 19 forms.” (Id.) Accordingly, the claims rate is approximately 7.5% of all putative settlement class 20 ///// 21 ///// 22 ///// 23 ///// 24 2 As approved of by the court in its order granting preliminary approval of the parties’ class 25 action settlement, the notices in this action required putative class members to submit a claim form to recover their pro rata share of the settlement fund. (Doc. No. 199 at 19) (noting that (1) 26 in this TCPA class action a claim form would serve as a useful check to prevent fraud and to 27 ensure that the settlement fund is distributed to class members who deserve to recover from it, and (2) other district courts have approved the requirement that putative class members submit 28 claim forms in TCPA class actions like this one). 1 members. The 17,439 class members who submitted complete and valid claim forms will receive 2 $156.95 each.3 (Id. at 3 n.3.) 3 At the preliminary approval stage, the court previously found such a claim rate and the 4 individual amount offered in settlement of this action to be consistent with those obtained in other 5 TCPA settlements. (See Doc. No. 199 at 12) (collecting cases). Since no additional issues 6 concerning the claim rate or the amount offered in settlement have been raised, the court will not 7 repeat its prior analysis here and finds both to be consistent with recoveries obtained in other 8 TCPA class action settlements. 9 4. Extent of Discovery Completed 10 The court must also consider whether the process by which the parties arrived at their 11 settlement is truly the product of arm’s length bargaining, rather than collusion or fraud. Millan 12 v. Cascade Water Servs., Inc., 310 F.R.D. 593, 613 (E.D. Cal. 2015). A settlement is presumed 13 fair if it “follow[s] sufficient discovery and genuine arms-length negotiation.” Adoma v. Univ. of 14 Phx., Inc., 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (quoting Nat’l Rural Telecomms. Coop. v. 15 DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004)). Thus, approval of a class action 16 settlement “is proper as long as discovery allowed the parties to form a clear view of the strength 17 and weaknesses of their case.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. 18 Cal. 2013). 19 Here, the parties engaged in significant and comprehensive discovery and data exchange, 20 including the production of over 46,000 pages of documents and several expert reports and 21 depositions, including the deposition of plaintiff Larson. (Doc. Nos. 199 at 6; 203 at 16.) 22 Moreover, plaintiff Larson surrendered two of his cellular phones to a third party-forensic 23 examiner who imaged the phones. (Doc. No. 203 at 17.) Based on the discovery, the parties 24 engaged in mediation before the Honorable Morton Denlow (Ret.). (Doc. No. 199 at 6.)
25 3 Ninety-six claims forms were deficient for lack of a signature, and the settlement administrator is contacting those claimants and providing them with an opportunity to cure the deficiency. 26 (Doc. No. 207 at 3 n.2.) Thus, the class may increase by a small number prior to final 27 disbursement of the settlement fund, but such an increase does not affect the analysis undertaken in this order, given that, if all ninety-six deficient claim forms were cured, the claim rate would 28 still be approximately 7.5% and each class member would receive $156.09. 1 Although that mediation session concluded without a settlement being reached, the parties 2 continued to engage in negotiations and eventually arrived at the settlement agreement. (Id.) 3 Based upon this history, the court is convinced that the parties’ negotiations were extensive, 4 involved, and non-collusive, lending credence to the fairness of the settlement. 5 Accordingly, the court concludes that consideration of this factor also weighs in favor of 6 granting final approval. 7 5. Experience and Views of Counsel 8 Class counsel, Sergei Lemberg and Stephen Taylor of Lemberg Law, LLC, filed 9 declarations in support of plaintiff’s motion for preliminary approval, detailing their extensive 10 experience in litigating class actions and, specifically, TCPA class actions. (Doc. Nos. 193-2; 11 193-3.) Based on their experience and qualifications, investigation of the disputed factual and 12 legal issues involved in this case, and evaluation of the risks of continued litigation, both 13 attorneys concluded that this settlement is fair and reasonable. (Id.) Consideration of class 14 counsel’s experience and expressed opinions in this regard also weighs in favor of final approval 15 of the settlement. 16 6. Reaction of the Class to Proposed Settlement 17 According to the declaration of Lana Lucchesi, director at KCC Class Action Services, 18 LLC, no member of the class has filed an objection to the settlement pending before the court for 19 final approval, and only four individuals have requested to opt-out of the settlement, and those 20 individuals will be excluded from the settlement. (Doc. No. 207-1 at 4–5 and Ex. C.) Similarly, 21 no class members appeared at the final fairness hearing to raise any objections to the settlement. 22 The absence of objections to a proposed class action settlement in this case strongly 23 supports the conclusion that the settlement is fair, reasonable, and adequate. See Nat’l Rural 24 Telecomms. Coop., 221 F.R.D. at 529 (“The absence of a single objection to the Proposed 25 Settlement provides further support for final approval of the Proposed Settlement.”) (citing 26 cases); Barcia v. Contain-A-Way, Inc., No. 07cv938-IEG-JMA, 2009 WL 587844, at *4 (S.D. 27 Cal. Mar. 6, 2009). Accordingly, consideration of this factor weighs significantly in favor of 28 granting final approval. 1 7. Subtle Signs of Collusion 2 The court now turns to a review of whether any of the “more subtle signs” of collusion 3 recognized by the Ninth Circuit are present here. See In re Bluetooth, 654 F.3d at 947. The 4 award of attorneys’ fees sought here—one-fourth of the common fund—is a percentage typically 5 awarded in the Ninth Circuit. See id. (setting a 25% benchmark); Staton, 327 F.3d at 952 (same); 6 Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (same); 7 see also Morales v. Stevco, Inc., No. 1:09-cv-00704-AWI-JLT, 2011 WL 5511767, at *12 (E.D. 8 Cal. Nov. 10, 2011) (“The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% 9 to 33 1/3% of the total settlement value, with 25% considered the benchmark.”) (quoting Powers 10 v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000)). Moreover, the proposed attorneys’ fees award in 11 this case is not disproportionate to the monetary distribution that the class will receive, and there 12 is notably no reversionary clause in the settlement agreement.4 Finally, the court notes that at the 13 preliminary approval stage, class counsel requested one-third, or 33%, of the common fund in 14 attorneys’ fees, a percentage that is often approved in such cases. Now, class counsel is merely 15 seeking 25% of the common fund, which is not only in line with Ninth Circuit precedent as 16 discussed above, but the decision to so reduce the amount sought in attorneys’ fees results in an 17 additional $290,345.94 in the net fund to the class. (See Doc. No 207 at 5 n.5.) The court is 18 satisfied that the settlement is not the product of collusion. 19 In sum, the count finds, after considering all of the relevant factors, that this settlement is 20 fair, reasonable, and adequate. See Fed. R. Civ. P. 23(e). 21 ///// 22 ///// 23 ///// 24 4 The settlement agreement provides that, if money remains in the settlement fund from uncashed 25 checks, the settlement administrator shall make a second distribution to those who did claim their checks, if feasible. (Doc. No. 207 at 4.) If that is not feasible, the uncashed amounts will go to a 26 cy pres recipient. (Id.) In the pending motion, plaintiff asks this court to approve the parties’ cy 27 pres nominee, the Privacy Rights Clearinghouse (“PRC”). (Id. at 14.) The court finds that there is a “driving nexus between the plaintiff class and [PRC],” Dennis, 697 F.3d at 865, and will 28 therefore approve PRC as the parties’ cy pres beneficiary. 1 ATTORNEYS’ FEES AND COSTS AND INCENTIVE PAYMENT 2 A. Attorneys’ Fees 3 This court has an “independent obligation to ensure that the award [of attorneys’ fees], 4 like the settlement itself, is reasonable, even if the parties have already agreed to an amount.” In 5 re Bluetooth, 654 F.3d at 941. This is because, when fees are to be paid from a common fund, the 6 relationship between the class members and class counsel “turns adversarial.” In re Mercury 7 Interactive Corp. Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010); In re Wash. Pub. Power Supply 8 Sys. Secs. Litig., 19 F.3d 1291, 1302 (9th Cir. 1994). As such, the district court assumes a 9 fiduciary role for the class members in evaluating a request for an award of attorneys’ fees from 10 the common fund. In re Mercury, 618 F.3d at 994; see also Rodriguez v. Disner, 688 F.3d 645, 11 655 (9th Cir. 2012); West Publ’g Corp., 563 F.3d at 968. 12 The Ninth Circuit has approved two methods for determining attorneys’ fees in such cases 13 where the attorneys’ fees award is taken from the common fund set aside for the entire settlement: 14 the “percentage of the fund” method and the “lodestar” method. Vizcaino v. Microsoft Corp., 290 15 F.3d 1043, 1047 (9th Cir. 2002) (citation omitted). The district court retains discretion in 16 common fund cases to choose either method. Id.; Vu v. Fashion Inst. of Design & Merch., No. cv 17 14-08822 SJO (EX), 2016 WL 6211308, at *5 (C.D. Cal. Mar. 22, 2016). Under either approach, 18 “[r]easonableness is the goal, and mechanical or formulaic application of method, where it yields 19 an unreasonable result, can be an abuse of discretion.” Fischel v. Equitable Life Assurance Soc’y 20 of U.S., 307 F.3d 997, 1007 (9th Cir. 2002). As noted, the Ninth Circuit has generally set a 25% 21 benchmark for the award of attorneys’ fees in common fund cases. Id. at 1047–48; see also In re 22 Bluetooth, 654 F.3d at 942 (“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for 23 a reasonable fee award, providing adequate explanation in the record of any ‘special 24 circumstances’ justifying a departure.”). Reasons to vary the benchmark award may be found 25 when counsel achieves exceptional results for the class, undertakes “extremely risky” litigation, 26 generates benefits for the class beyond simply the cash settlement fund, or handles the case on a 27 contingency basis. Vizcaino, 290 F.3d at 1048–50; see also In re Online DVD-Rental, 779 F.3d 28 at 954–55. Ultimately, however, “[s]election of the benchmark or any other rate must be 1 supported by findings that take into account all of the circumstances of the case.” Vizcaino, 290 2 F.3d at 1048. The Ninth Circuit has approved the use of lodestar cross-checks as a way of 3 determining the reasonableness of a particular percentage recovery of a common fund. Id. at 4 1050 (“Where such investment is minimal, as in the case of an early settlement, the lodestar 5 calculation may convince a court that a lower percentage is reasonable. Similarly, the lodestar 6 calculation can be helpful in suggesting a higher percentage when litigation has been 7 protracted.”); see also In re Online DVD-Rental, 779 F.3d at 955. 8 Here, the court preliminarily approved plaintiff’s initial request for attorneys’ fees in the 9 amount of $1,333,333.33, or 33% of the settlement fund. (Doc. No. 199.) The court noted then 10 that that amount was “above the Ninth Circuit benchmark amount” in common fund cases. (Id.) 11 As discussed above, in the pending motion for attorneys’ fees, class counsel now seeks only 12 $1,000,000.00, or 25% of the settlement fund, in attorneys’ fees. (Doc. No. 203.) In addition to 13 being in line with the Ninth Circuit’s benchmark rate, numerous factors support this requested 14 attorneys’ fees award. This litigation was pursued purely on a contingency-fee basis, with class 15 counsel undertaking representation at their own expense for over four years. (Id. at 11.) Class 16 counsel asserts that they risked not only a great deal of time, but also a great deal of expense in 17 pursuing this litigation. (Id.); see also Vizcaino, 290 F.3d at 1048 (“Risk is a relevant 18 circumstance.”). Class counsel spent approximately 1,798 attorney and professional staff hours 19 working on this matter. (Id. at 15.) Absent successful resolution, none of this attorney time 20 would have been compensated. Class counsel incurred $42,987.39 in out-of-pocket expenses 21 litigating the case over a four-year period. (Id. at 16.) Further, class counsel are experienced 22 litigators of TCPA class actions. Consideration of each of these factors supports an award of the 23 benchmark rate of 25% for attorneys’ fees here. 24 The absence of any objections to the settlement or requests for exclusions also supports 25 the award of the attorneys’ fees sought in this case. The class notices specifically advised class 26 members that class counsel would seek attorneys’ fees, as well as reimbursement for litigation 27 costs, from the settlement fund. (Doc. No. 198-2 at 2, 6–7.) Therefore, plaintiff’s request for 28 attorneys’ fees appears to have the support of the class. 1 The court next turns to the lodestar amount, in order to cross-check the reasonableness of 2 the requested attorneys’ fee award. Where a lodestar is merely being used as a cross-check, the 3 court “may use a ‘rough calculation of the lodestar.’” Bond v. Ferguson Enters., Inc., No. 1:09- 4 cv-1662 OWW MJS, 2011 WL 2648879, at *12 (E.D. Cal. June 30, 2011) (quoting Fernandez v. 5 Victoria Secret Stores, LLC, No. CV 06-04149 MMM (SHx), 2008 WL 8150856 (C.D. Cal. July 6 21, 2008)). Moreover, beyond simply the multiplication of a reasonable hourly rate by the 7 number of hours worked, a lodestar multiplier is often applied. “Multipliers in the 3–4 range are 8 common in lodestar awards for lengthy and complex class action litigation.” Van Vranken v. Atl. 9 Richfield Co., 901 F. Supp. 294, 298 (N.D. Cal. 1995) (citing Behrens v. Wometco Enters., Inc., 10 118 F.R.D. 534, 549 (S.D. Fla. 1988)); see also 4 NEWBERG ON CLASS ACTIONS § 14.7 (stating 11 courts typically approve percentage awards based on lodestar cross-checks of 1.9 to 5.1 or even 12 higher, and “the multiplier of 1.9 is comparable to multipliers used by the courts”); In re 13 Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 341 (3d Cir. 1998) 14 (“[M]ultiples ranging from one to four are frequently awarded in common fund cases when the 15 lodestar method is applied.”) (quoting NEWBERG). 16 Here, class counsel have submitted declarations indicating that five different attorneys 17 from their firm have worked on this case for time totaling 1,798 hours. (Doc. No. 203-2 at 6; see 18 also Doc. No. 203 at 15.) These attorneys billed at rates of $300 for associates and between $400 19 and $650 for of counsel and partners. (Doc. No. 203-2 at 6–8.) The undersigned has previously 20 accepted as reasonable for lodestar purposes hourly rates of between $370 and $495 for 21 associates, and $545 and $695 for senior counsel and partners. See Emmons v. Quest Diagnostics 22 Clinical Labs., Inc., 1:13-cv-00474-DAD-BAM, at *8 (E.D. Cal. Feb. 27, 2017). Applying class 23 counsel’s hourly rates results in a lodestar fee of $839,275.00. (Doc. No. 203-2 at 6.) 24 Application of a modest 1.19 multiplier to this sum would cause the lodestar to exceed the 25 $1,000,000.00 plaintiff requests in attorneys’ fees. 26 Accordingly, the lodestar cross-check supports the requested award of $1,000,000.00 in 27 attorneys’ fees, an amount equal to 25% of the total fund in this case. 28 ///// 1 B. Expenses of Class Counsel 2 Additionally, class counsel seek to recover the costs expended on this litigation. Expense 3 awards “should be limited to typical out-of-pocket expenses that are charged to a fee paying client 4 and should be reasonable and necessary.” In re Immune Response Secs. Litig., 497 F. Supp. 2d 5 1166, 1177 (S.D. Cal. 2007). These can include reimbursements for: “(1) meals, hotels, and 6 transportation; (2) photocopies; (3) postage, telephone, and fax; (4) filing fees; (5) messenger and 7 overnight delivery; (6) online legal research; (7) class action notices; (8) experts, consultants, and 8 investigators; and (9) mediation fees.” Id. 9 Here, class counsel request reimbursement of their expenses in the amount of $42,987.39. 10 (Doc. No. 203 at 16; see also Doc. No. 203-2 at 8–9, Exs. A, B.) The court has reviewed class 11 counsel’s declarations and the attached expense reports, finds all the expenses incurred to be 12 reasonable, and will approve their reimbursement in the amount requested. 13 C. Incentive Award 14 While incentive awards are “fairly typical in class action cases,” they are discretionary 15 sums awarded by the court “to compensate class representatives for work done on behalf of the 16 class, to make up for financial or reputational risk undertaken in bringing the action, and, 17 sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez, 563 18 F.3d at 958–59; Staton, 327 F.3d at 977 (“[N]amed plaintiffs . . . are eligible for reasonable 19 incentive payments.”). Such payments are to be evaluated individually, and in considering the 20 amount of such awards the court should look to factors such as “the actions the plaintiff has taken 21 to protect the interests of the class, the degree to which the class has benefitted from those 22 actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and 23 reasonabl[e] fear[s of] workplace retaliation.” Staton, 327 F.3d at 977 (quoting Cook v. Niedert, 24 142 F.3d 1004, 1016 (7th Cir. 1998)); see also Rodriguez, 563 F.3d at 958–59. 25 Here, plaintiff Larson seeks an incentive award of $10,000. (Doc. No. 203 at 16.) In its 26 order granting preliminary approval of this class action settlement, the court found the requested 27 amount to be reasonable and approved the incentive award on a preliminary basis, inviting 28 plaintiff to provide evidence that the requested award is warranted here in moving for final 1 approval. (Doc. No. 199 at 10.) In his declaration attached to the pending motion for attorneys’ 2 fees and cost and incentive award, attorney Stephen Taylor, one of the two attorneys who are 3 class counsel in this action, declares that plaintiff Larson has been “an exemplary class 4 representative for the past four years.” (Doc. No. 203-1 at 3; see also Doc. No. 203 at 16–17.) 5 For example, counsel explains, plaintiff Larson actively participated in the litigation, by 6 responding to discovery requests and sitting for his deposition; assisted counsel by providing 7 documents and various information in the investigation and discovery phases; and surrendered 8 two of his cellphones to a third-party examiner who imaged the phones in order to provide 9 documentation to Harman. (Doc. No. 203-1 at 3–4; Doc. No. 203 at 16–17.) On that last point, 10 attorney Taylor notes that, 11 I have never had a class representative need to surrender their smart phones in any other case. . .. [A]ctual surrender of a device to a third 12 party is very rare… . This was a significant contribution to the litigation and, in my opinion, undergirds the appropriateness of the 13 requested incentive award. 14 (Doc No. 203-1 at 4.) Moreover, as noted above, no member of the class has filed an objection to 15 the settlement, despite the notice informing the class that plaintiff Larson would seek a 16 $10,000.00 inventive payment from the common fund. Considering these factors, the court finds 17 that an incentive award of $10,000.00 for plaintiff Larson is appropriate under the circumstances 18 of this case. 19 D. Settlement Administrator Costs 20 The court previously approved the appointment of KCC Class Action Services, LLC to 21 serve as the settlement administrator. (Doc. No. 199 at 20.) The court then noted that the amount 22 KCC Class Action Services, LLC estimated for its expenses ($209,557.00) was comparable to 23 payments approved by this court in prior cases. (Id. at 21.) KCC Class Action Services, LLC has 24 filed a declaration with the court indicating its costs incurred-to-date, $170,366.91, as well as its 25 anticipated total costs for completion of the settlement administration, $210,000.00. (Doc. No. 26 207-1 at 5.) The court finds these costs reasonable and will direct payment in the requested 27 amount of $210,000.00. (Doc. No. 207 at 3 n.3.) 28 ///// QO 4.4 ELD MALE INNS MUU et PIR Ie AY AO AO
1 CONCLUSION 2 For the reasons stated above: 3 1. Plaintiff’s motion for final approval of this class action settlement (Doc. No. 206) 4 is granted, the settlement class is certified, and the court approves the settlement as 5 fair, reasonable, and adequate; 6 a. The Privacy Rights Clearinghouse is approved as the parties’ cy pres 7 beneficiary; 8 b. The four putative class members who opted out of the settlement and the 9 settlement class (see Doc. No. 207-1, Ex. C) are not bound by and are 10 excluded from the settlement; 11 C. The parties are directed to effectuate all terms of the settlement agreement 12 and any deadlines or procedures for distribution therein; 13 2. Plaintiff's motion for attorneys’ fees and costs and an incentive award (Doc. No. 14 202) is granted, and the court awards the following sums: 15 a. Class counsel shall receive $1,000,000.00 in attorneys’ fees and 16 $42,987.39 in expenses; 17 b. Plaintiff Larson shall receive $10,000.00 as an incentive payment; and 18 Cc. KCC Class Action Services, LLC shall receive at most $210,000.00 in 19 settlement administration costs and expenses, with any unspent funds 20 attributed to costs and expenses being returned to the common fund; 21 3. This action is dismissed with prejudice in accordance with the terms of the 22 settlement agreement, with the court specifically retaining jurisdiction over this 23 action for the purpose of enforcing the parties’ settlement agreement; and 24 4. The Clerk of the Court is directed to close this case. 25 | IT IS SO ORDERED. me □ 26 Li fa £5 Dated: _ June 18, 2020 eee Te — 27 UNITED STATES DISTRICT JUDGE 28 18