Radosti v. Envision Emi, LLC

• Court: District Court, District of Columbia
• Decided: June 8, 2010
• Docket: Civil Action No. 2009-0887
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BINA RADOSTI, et al.,

Plaintiffs,

v. Civil Action No. 09-887 (CKK) ENVISION EMI, LLC,

Defendant.

MEMORANDUM OPINION (June 8, 2010)

This is a class action lawsuit arising out of a series of youth conferences sponsored by

Defendant Envision EMI, LLC (“Envision”) in and around Washington, D.C. surrounding the

inauguration of President Barack Obama in January 2009. Plaintiffs Bina Radosti, Joshua

Rottman, Sally Rife, Heather Kern, Zachary Johnson Burton, and Latiana Carter (collectively,

“Plaintiffs”) bring this action on behalf of themselves and all those similarly situated alleging

breach of contract, negligent misrepresentation, and violations of state consumer protection laws

by Envision. After a successful mediation, the parties reached a settlement, which they have

submitted to this Court for approval pursuant to Federal Rule of Civil Procedure 23(e). On

December 17, 2009, the Court preliminarily approved the settlement agreement, conditionally

certified the settlement class, and approved procedures to notify members of the settlement class

of their right to object to or opt out of the settlement. After objections and opt-out notices were

received, the parties filed their [24] Joint Motion for Final Approval of Class Action Settlement,

which is presently pending before the Court. Plaintiffs also filed a [25] Motion for Attorneys’

Fees, Expenses, and Class Representative Service Awards. The Attorneys General of twenty-two different states (including the District of Columbia) filed a [35] Brief Amicus Curiae Opposing

Final Approval of the Proposed Settlement Agreement, to which the parties filed a joint response.

On May 25, 2010, the Court held a Fairness Hearing to consider whether the proposed settlement

agreement is “fair, reasonable, and adequate.” The arguments and representations made on the

record during that Fairness Hearing are expressly incorporated and made a part of this

Memorandum Opinion.

Upon a searching review of the parties’ preliminary and final motions for approval of the

settlement agreement and certification of the settlement class, the filings submitted in connection

with the objections and opt-outs, the brief amicus curiae of the Attorneys General and the

response thereto, the arguments and representations made during the Fairness Hearing, the

relevant statutes and case law, and the entire record herein, the Court finds that the terms of the

settlement agreement, excluding the potential cy pres fund for later evaluation, are fair,

reasonable, and adequate and should be approved. As explained below, the Court makes the

following findings: the Court has jurisdiction over this action; the class may be certified for

settlement purposes; the settlement agreement was negotiated at arms-length by experienced

counsel with the assistance of an experienced mediator after an appropriate amount of

investigation and informal discovery, and it is the opinion of the experienced counsel and

mediator that the settlement is fair, adequate, and reasonable; the vouchers to be awarded under

the settlement agreement provide meaningful value to class members because of their high face

value, their transferability, and their seven-year duration; choice-of-law issues and Envision’s

financial condition significantly undermine Plaintiffs’ likelihood of obtaining meaningful class-

wide relief at trial; the settlement is supported by the class, as demonstrated by the low number of

2 objectors and opt-outs; and the cy pres fund established by the settlement agreement—if properly

administered—will ensure that Envision substantially disgorges the profits from its alleged

misconduct. Accordingly, the Court shall GRANT the parties’ [24] Joint Motion for Final

Approval of the Settlement Agreement, HOLD IN ABEYANCE approval of the proposed cy

pres fund, and HOLD IN ABEYANCE Plaintiffs’ [25] Motion for Attorneys’ Fees, Expenses,

and Class Representative Service Awards.

I. BACKGROUND

A. Factual and Procedural Background

Envision is a Virginia limited liability company1 that sponsors educational conferences

for youth. This lawsuit pertains to three student conferences sponsored by Envision in

connection with the inauguration of President Barack Obama in Washington, D.C. in January

2009. The three conferences were designated by age group: (1) the Junior Presidential Youth

Inaugural Conference, for students in the fifth through eighth grades at the time of the

inauguration; (2) the Presidential Youth Inaugural Conference, for high school students; and (3)

the University Presidential Inaugural Conference, for college students over the age of 18

(collectively, the “Conferences”). Envision began soliciting participation in the Conferences in

January 2008. Plaintiffs allege that Envision represented to potential participants that they would

be present for the inauguration of the President and Vice President, witness the inaugural parade,

and attend a black tie gala inaugural ball. See First Am. Compl. ¶ 41. Plaintiffs also allege that

Envision represented that participants would, among other things, have “private access” to the

1 Although Plaintiffs allege in the First Amended Complaint that Envision is headquartered in the District of Columbia, the parties agreed during the Fairness Hearing that Envision is based in Vienna, Virginia.

3 Smithsonian Institution on the National Mall, hear a keynote speech from famed cyclist Lance

Armstrong, and meet historians, political experts, leading decision makers, and White House

officials. See id. ¶¶ 41-42. Envision also allegedly informed invitees that they were among a

“few select students” invited to attend one of the Conferences. See id. ¶ 43. Approximately

15,000 students paid between $2380 and $2729 in tuition costs to attend the Conferences.

Plaintiffs allege that the many of the promises made by Envision were not delivered

during the Conferences. They claim that Envision “uniformly failed to provide access to witness

the inauguration and/or provide special access to the Mall for the inauguration and instead told

students they were ‘on their own.’” First Am. Compl. ¶ 53. They also claim that Envision failed

to provide tickets to the inaugural parade or to an official Black Tie Gala inaugural ball, deliver

many of the promised speakers, and provide adequate housing and transportation to the over

15,000 students who attended the Conferences. Id. ¶¶ 54-57. Envision also allegedly failed to

disclose material facts regarding the Conferences, including: that Envision had made no

arrangements to provide tickets so that Conference attendees could actually witness the

inauguration or the inaugural parade; that the “Black Tie Gala Inaugural Ball” had no affiliation

with any of the official inaugural balls held in Washington, D.C. and would be held in school

gymnasium-style facilities where no formal wear was required; and that the Conferences were

not “selective” or “exclusive.” Id. ¶ 60. Plaintiffs contend that if they had known these facts,

they would not have made the decision to pay Envision to attend the Conferences.

After many Conference attendees complained about their experiences, Envision

established an informal claims procedure. Envision sent a claim form to approximately 2000

individuals who had contacted Envision to express a concern about the Conferences. The claim

4 form allowed each attendee to indicate which events they had missed during the Conferences,

and Envision assigned a reimbursement value to each missed event. On average, each claimant

received about $400 in cash compensation. Each claimant also received a voucher worth $750

that could be applied toward tuition at future Envision programs.2 In addition, Envision paid

cash settlements (ranging from approximately $500 to full refunds) to about 150 individuals,

some of whom had filed lawsuits in small claims courts. Two individuals also received

settlements worth approximately $6000, one of whom allegedly suffered from physical injuries

and emotional trauma and the other of whom filed a lawsuit in New York Supreme Court.

Envision spent approximately $900,000 on all of these claims and settlements and issued

vouchers worth approximately $1,458,000.3 No determination as to liability has ever been made.

On March 19, 2009, several attendees at the Conferences brought a class action lawsuit in

the United States District Court for the Northern District of Illinois against Envision and

Congressional Youth Leadership Council (“CYLC”), an entity whose assets were purchased by

Envision in 2007, alleging breach of contract. See Complaint, Bowman v. Cong. Youth

Leadership Council, Civ. No. 09-1727 (N.D. Ill. filed Mar. 19, 2009). After Envision made

offers of judgment under Rule 68 to the named plaintiffs in that action, Envision and CYLC

moved to dismiss the class action as moot.4 The plaintiffs then filed an amended complaint

2 Alternatively, claimants could elect to forego their cash compensation and receive double the value of their settlement as a voucher. Roughly twenty percent of claimants opted for a voucher-only settlement. 3 The facts in this paragraph are derived from representations made by Envision’s counsel during the Fairness Hearing, as well as from information provided by the parties and the objectors. 4 Envision paid $5000 to each of the Bowman class representatives to settle their claims.

5 substituting four other class members as class representatives. Envision filed an answer to the

amended complaint, and the parties made Rule 26 initial disclosures and began discussing the

timing and logistics of discovery. In addition, the plaintiffs filed a motion for class certification,

which was opposed by Envision.

The instant action was brought separately by Bina Radosti, on her own behalf and as next

friend of Dash Radosti, and Joshua Rottman on May 13, 2009, against Envision and CYLC,

alleging three causes of action: (1) violations of the D.C. Consumer Protection Procedures Act

(“CPPA”), D.C. Code §§ 28-3901 et seq.; (2) negligent misrepresentation; and (3) breach of

contract. See Compl. ¶¶ 91-109. The Radosti plaintiffs filed a motion before the Judicial Panel

on Multidistrict Litigation seeking to transfer the Bowman case to this Court, and Envision filed a

separate motion to transfer the Bowman case to this Court for consolidated proceedings.

B. Settlement Negotiations

Shortly after this action was filed, the parties in both this case and the Bowman case

began to engage in formal and informal settlement negotiations. The parties held in-person

meetings in Washington, D.C. and Chicago, Illinois and participated in numerous telephone

conference calls. In addition, Envision provided informal discovery to Plaintiffs regarding its

insurance coverage, the number of complaints it had received and resolved, the nature of the

Conferences, and the current financial condition of the company.

On August 4, 2009, the parties conducted a formal mediation session before the

Honorable Daniel Weinstein (Ret.) of Judicial Arbitration and Mediation Services. See Joint

Mot. for Final Approval, Aff. of Hon. Daniel Weinstein ¶ 3. The mediation lasted for

approximately 14 hours, during which time the parties engaged in extensive and sometimes

6 contentious negotiations. See id. ¶ 6. Although the mediator believed at several times that no

settlement would be reached, the parties ultimately reached an agreement to compromise the

litigation. Id. The parties fully negotiated and agreed to the relief to be afforded the class

members prior to beginning any discussions about attorneys’ fees, costs, or class representative

incentive awards. Id. ¶ 8.

Following the mediation, the Bowman plaintiffs agreed to voluntarily dismiss their

pending case and consolidate their claims in this action. On August 13, 2009, the Bowman

action was dismissed without prejudice pursuant to the settlement agreement. On November 19,

2009, the Plaintiffs filed an Amended Complaint against Envision incorporating the remaining

class representatives from the Bowman action (Sally Rife, on her own behalf and as next friend

of Franchesca Rife, Heather Kern, Zachary Johnson Burton, and Latiana Carter). The parties

engaged in detailed negotiations and exchanged numerous drafts of the settlement agreement

before presenting it to this Court for preliminary approval on December 10, 2009.

C. The Terms of the Settlement Agreement

The settlement agreement provides relief to the settlement class in the form of vouchers

that can be used towards tuition at future Envision programs.5 The settlement class is defined as

all individuals who attended one of the Conferences (or, for those individuals under 18 years of

age, their parent or legal guardian) who have not, prior to the certification of the settlement class,

received from Envision any refund, voucher, or other compensation in settlement of a claim

arising out of the Conferences. See Joint Mot. for Prelim. Approval, Class Action Settlement

5 Although the parties use the term “tuition” in the settlement agreement, Envision has explained that for most of its programs, the tuition fee includes lodging and meals for program attendees.

7 Agreement (“Settlement Agreement”) at 3-4. The settlement agreement establishes a settlement

claims procedure in which class members may apply for a settlement payment consisting of two

vouchers worth $625 each (for a total value of $1250). The vouchers may be used within seven

years of the date of issuance toward payment of tuition for a future Envision conference or

program. The vouchers must be used one at a time unless tuition for a program is $3500 or

more, in which case both vouchers may be used together.6 The vouchers are fully assignable and

transferable to anyone, but they may only be redeemed by (a) a family member7 of a class

member or (b) any other student who has a 3.5 or higher grade point average or who receives a

teacher recommendation at the time of enrollment in the Envision conference or program.8 In a

First Amendment to the Settlement Agreement, Envision agreed to maintain a page on its

website that describes how to redeem the vouchers and further explains that vouchers are fully

transferable. See Joint Response to Br. Amicus Curiae, First Amendment to Class Action

Settlement Agreement (“Settlement Agreement Amendment”)9 at 2. As amended, the settlement

agreement also provides that at least ten percent of all attendees enrolling in any future Envision

6 The cost of tuition for Envision programs ranges from approximately $1400 to $5200, meaning that the discount value of the vouchers toward any particular program ranges from approximately 18% to 45%. 7 The Settlement Agreement does not define “family member,” although the parties explained at the Fairness Hearing that they intended the term to apply only to immediate family members, such as siblings or stepsiblings, and not to more distant relatives such as cousins. 8 Envision avers that this is a standard eligibility requirement for attendance at its programs. 9 The Settlement Agreement Amendment strikes paragraphs 10-14 of the original Settlement Agreement and substitutes new paragraphs 10-14. Except where otherwise noted, the Court’s discussion of the settlement incorporates the language of the Settlement Agreement Amendment.

8 conference or program may use such vouchers. Id. at 1.

In the original settlement agreement, a class member seeking to qualify for the vouchers

would have to complete and submit to Envision (within 90 days of the effective date of the

settlement agreement) a verification form indicating that the student who attended one of the

Conferences involuntarily missed one or more of the three key inaugural events (i.e., the

inauguration, the inaugural parade, and the black tie inaugural ball). As amended in response to

objections, the Settlement Agreement requires each class member to verify only that the student

who attended one of the Conferences was “unsatisfied” with his or her experience. See

Settlement Agreement Amendment at 2. Envision will provide monthly reports to class counsel

indicating the number of claims received, Envision’s determination on each claim, and the

reasons supporting each determination during the claims period; Envision will also provide a

final report within 30 days after the claims period. Id. at 3-4. In the event that a dispute arises as

to whether a class member properly submitted a verification, Envision shall indicate that

information in its monthly report, and Envision will attempt to resolve the dispute in good faith

with class counsel. Id. at 2. If the dispute cannot be resolved, class counsel may seek

intervention from this Court. Id.

The settlement agreement also provides that if Envision does not distribute at least $8

million worth of vouchers to class members, Envision shall establish a “Class Settlement

Scholarship Fund” (“CSSF”) in an amount equivalent to the difference between the voucher

payments and $8 million. In effect, this provision creates a potential cy pres10 fund and ensures

10 The cy pres doctrine, as used in the class action context, permits unclaimed funds to be distributed to the “next best” class, thus maximizing the number of individuals compensated. See Democratic Cent. Comm. v. Wash. Metro. Area Transit Comm’n, 84 F.3d 451, 455 (D.C. Cir.

9 that Envision will distribute at least $8 million in discounts off future programs. As amended,

the settlement agreement provides that Envision shall award partial or total scholarships from the

CSSF to an academically qualified applicant to attend an Envision program based on economic

or other considerations. Envision shall be required to distribute scholarships totaling at least

15% of the CSSF each year until the CSSF is depleted, which must occur within seven years of

its creation. In order to deplete the CSSF, the scholarships must not only be distributed but

actually redeemed by individuals attending Envision programs. Envision may, in its discretion,

distribute additional scholarships each year totaling up to 5% of the CSSF to independent,

nationally recognized organizations that focus on education and/or leadership skills such as the

National 4-H Council, Boy Scouts of America, and the Girl Scouts of the USA. Envision shall

include on all program websites information about how students may apply for scholarships, and

class members will be eligible for these scholarships. Envision shall administer the CSSF

separately from any other tuition assistance or scholarship program, and Envision will not be

required to include in or add to the CSSF any amounts for unused vouchers distributed to class

members. The settlement agreement calls for Envision to provide semiannual reports to class

counsel on the administration of the CSSF, including amounts awarded and redeemed and an

accounting of any balance remaining until the CSSF is depleted.

As part of the settlement agreement, class members agree to unconditionally release any

and all claims against Envision, whether known or unknown, arising out of the Conferences and

the allegations in the Radosti and Bowman complaints. Class members further agree that the

voucher payments are their exclusive remedy for their claims. The agreement provides that in

1996).

10 addition to the voucher payments, Envision agrees to provide $2500 to each of the six named

class representatives, subject to court approval. Envision also agrees to pay, subject to court

approval, a total award to class counsel11 of $1,455,000 for expenses and fees. The agreement

states that no portion of the settlement payments shall be reduced in any way to pay class

representatives or class counsel.

C. Form and Manner of Notice to the Class, Objections & Opt-Outs

On December 17, 2009, this Court granted preliminary approval of the settlement

agreement and conditionally certified the settlement class. Pursuant to the settlement agreement,

notice was provided to 13,415 class members by electronic mail and 343 class members by mail.

See Joint Mot. for Final Approval, Aff. of Jennifer M. Keough ¶ 3. Envision’s notice provider

also hosted a website with information regarding the settlement agreement that received 1125

hits through March 11, 2010. See id. Class members were informed of their opportunity to

request exclusion from the settlement class, i.e., opt out, or object to the terms of the settlement

agreement. Objections and opt-outs were due within 45 days after notice was sent.

Class counsel received 15 total objections, one of which was untimely.12 This represents

approximately one tenth of one percent of the settlement class. Many of the objectors indicated

that they were dissatisfied with their experience at the Conferences and would never attend

another Envision program. Several objectors indicated that it would be impossible or impractical

11 In its Order Preliminarily Approving Class Action Settlement Agreement, Conditionally Certifying Settlement Class and Approving Class Action Notice Plan, the Court appointed James Pizzirusso, Esq., and Robert Coleman, Esq., as class counsel to represent the settlement class. See Docket No. [19] ¶ 11. 12 The Court has considered all of the objections, but the Court notes that the untimely objection was substantially similar to the views expressed by timely objectors.

11 to attend a future Envision program, either because they would no longer be eligible students or

because international travel would be required in order to attend.13 These objectors generally

expressed a preference for a cash settlement in lieu of a voucher that they would be unlikely to

use. Several objectors also expressed concern that the vouchers would only cover a portion of

the tuition at future programs, so they would be required, by their calculations, to spend

hundreds, if not thousands, of additional dollars in order to take advantage of the vouchers.

Several objectors complained that even though the vouchers would be transferable to family

members or other qualified attendees, they did not have eligible family members and it would be

difficult or burdensome for them to locate other qualified individuals who might be interested in

purchasing a voucher. One objector expressed concern that named class representatives and

Class Counsel receive cash while class members only qualify for tuition vouchers. Several

objectors complained that the settlement agreement did not sufficiently punish Envision for its

misconduct and suggested that Envision be required to provide at least a partial refund.

Class counsel also received 25 total opt-outs.14 Several of the individuals seeking

exclusion from the settlement class indicated that they enjoyed their experience at the

Conferences and did not want to be a part of this litigation, while others gave no reason for

opting out. Only two of the opt-outs indicated that they were displeased with the settlement.

13 Some of the students attending the Conferences were from overseas, and two objections came from individuals in the United Kingdom. 14 The parties indicated that one of the opt-out notices was untimely filed; however, the parties confirmed at the Fairness Hearing that they will accept the untimely opt-out and exclude that individual from the settlement class.

12 D. Joint Motion for Final Approval and Fairness Hearing

On March 12, 2010, after the objections and opt-outs were received, the parties filed their

Joint Motion for Final Approval of the Class Action Settlement. On March 16, 2010, Plaintiffs

filed a Motion for Attorneys’ Fees, Expenses, and Class Representative Service Awards. On

April 14, 2010, the Attorneys General of twenty-two states (including the District of Columbia)

filed a Brief Amicus Curiae Opposing Final Approval of the Proposed Settlement Agreement.

The Attorneys General contend that the settlement agreement should be subjected to heightened

scrutiny as a coupon settlement pursuant to the Class Action Fairness Act of 2005, Pub. L. No.

109-2, 119 Stat. 4 (codified in scattered sections of title 28 of the United States Code) (“CAFA”).

The Attorneys General also argue that the voucher payments offer low value compared to

disproportionate attorney and incentive fees and do not represent a reasonable settlement in light

of the strength of Plaintiffs’ case. The Attorneys General also criticize the Class Settlement

Scholarship Fund because unlike a true cy pres fund, Envision retains control over the fund and

has nearly complete discretion over how to disperse the funds.

The Court ordered the parties to file a brief in response to the Attorneys General’s

opposition, which they filed on April 30, 2010. In their response brief, the parties noted that they

had amended the settlement agreement so as to provide that any class member who was

dissatisfied could obtain vouchers, whether or not he or she missed any of the three key inaugural

events. The amended settlement agreement also clarified some aspects of how the CSSF would

be administered to address some of the Attorneys General’s concerns. The response brief also

addressed other arguments raised by the Attorneys General, which shall be addressed below.

The Court held a Fairness Hearing on May 25, 2010, with counsel for the parties as well

13 as a legal representative of the Attorneys General present. None of the potential class members

sought permission to speak at the Fairness Hearing.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a

certified class may be settled . . . only with the court’s approval.” A class may be certified for

settlement purposes only, and such “settlement-only” classes have become increasingly

prominent. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 618 (1997). When certifying a

class for settlement purposes only, a court must consider whether the proposed class meets the

requirements of Federal Rule of Civil Procedure 23, although the court need not determine

whether the case, if tried, would present intractable management problems. Id. at 620; Thomas v.

Albright, 139 F.3d 227, 234 (D.C. Cir. 1998). As proponents of class certification, Plaintiffs

have the burden of establishing that each of the elements of Rule 23(a) are met and that the class

is maintainable pursuant to one of Rule 23(b)’s subdivisions. Amchem, 521 U.S. at 614; Fed. R.

Civ. P. 23; Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The four

prerequisites to a class action lawsuit under Rule 23(a) are: (1) the class is so numerous that

joinder of all members is impracticable; (2) there are questions of law or fact common to the

class; (3) the claims or defenses of the representative parties are typical of the claims and

defenses of the class; and (4) the representative parties will fairly and adequately protect the

interests of the class. See Fed. R. Civ. P. 23(a). These four requirements are referred to as

numerosity, commonality, typicality, and adequacy of representation. In addition, Plaintiffs must

demonstrate that the class is maintainable under Rule 23(b). In the instant case, Plaintiffs seek

certification under Rule 23(b)(3) and, as such, must show that “questions of law or fact common

14 to class members predominate over any questions only affecting individual members, and that a

class action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). These requirements are referred to as predominance and

superiority. Among the factors that may be considered are (a) the class members’ interest in

individually controlling the prosecution of separate actions; (b) the extent and nature of any

litigation already begun by class members; and (c) the desirability or undesirability of

concentrating the litigation of the claims in the particular forum. Id.

Approval of a proposed class action settlement lies within the discretion of the District

Court. In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 103 (D.D.C. 2004) (“Vitamins II”).

Pursuant to Federal Rule of Civil Procedure 23(e), a court may approve a settlement that would

bind class members “only after a hearing and on finding that it is fair, reasonable, and adequate.”

Fed. R. Civ. P. 23(e)(2). “In a proposed settlement under which class members would be

awarded coupons, the court may approve the proposed settlement only after a hearing to

determine whether, and making a written finding that, the settlement is fair, reasonable, and

adequate for class members.” 28 U.S.C. § 1712(e). In considering whether to approve a

proposed class action settlement, the court must strike a balance between a rubber stamp

approval and “the detailed and thorough investigation that it would undertake if it were actually

trying the case.” United States v. District of Columbia, 933 F. Supp. 42, 47 (D.D.C. 1996).

Furthermore, there is a long-standing judicial attitude favoring class action settlements, and the

court’s “discretion is constrained by the ‘principle of preference’ favoring and encouraging

settlement in appropriate cases.” Vitamins II, 305 F. Supp. 2d at 103 (quoting Pigford v.

Glickman, 185 F.R.D. 82, 103 (D.D.C. 1999).

15 III. DISCUSSION

The Court shall begin its analysis with the topic of class certification, since the settlement

class must comport with the requirements of Rule 23. The Court shall then address the

reasonableness of the Settlement Agreement, taking into consideration the objections filed by the

class members, the opposition of the Attorneys General as amici curiae, and the parties’ briefs in

support of final approval. It is undisputed that the Court has jurisdiction over this class action

under the diversity statute as amended by CAFA. See 28 U.S.C. § 1332(d).

A. Certification of the Settlement Class

This Court conditionally certified the settlement class in its preliminary approval order.

At the final approval stage, the Court now provides a more detailed analysis of the Rule 23

requirements for certification of a settlement class.

1. Rule 23(a) Requirements

a. Numerosity.

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). The numerosity requirement “imposes no absolute

limitations,” but rather “requires examination of the specific facts of each case.” Gen. Tele. Co.

of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). Courts in this District have generally found

that the numerosity requirement is satisfied and that joinder is impracticable where a proposed

class has at least forty members. Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C.

2003); Thomas v. Christopher, 169 F.R.D. 224, 237 (D.D.C. 1996), aff’d in part and rev’d in

part, 139 F.3d 227 (D.C. Cir. 1998). A plaintiff need not provide the exact number of potential

class members to satisfy the requirement, so long as there is a reasonable basis for the estimate

16 provided. Bynum, 214 F.R.D. at 32-33; Pigford, 182 F.R.D. at 347. Here, the parties agree that

the number of class members is approximately 13,500. The Court therefore easily finds that

joinder would be impracticable and that the numerosity requirement of Rule 23(a)(1) is satisfied.

b. Commonality

Rule 23(a)(2) requires that there be questions of law or fact common to the class. Fed. R.

Civ. P. 23(a)(2). “The commonality test is met when there is at least one issue, the resolution of

which will affect all or a significant number of the putative class members.” In re Lorazepam &

Clorazepate Antitrust Litig., 202 F.R.D. 12, 26 (D.D.C. 2001) (“Lorazepam I”) (quoting

Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997)); see also Garcia v. Johanns,

444 F.3d 625, 631 (D.C. Cir. 2006). Significantly, “factual variations among the class members

will not defeat the commonality requirement, so long as a single aspect or feature of the claim is

common to all proposed class members.” Bynum, 214 F.R.D. at 33. Here, there are many

common factual and legal issues among the class members. For example, all members of the

settlement class paid tuition to attend the Conferences, and Envision made the same or

substantially similar representations to all class members regarding the services that would be

provided at the Conferences. Common legal issues include whether Envision’s advertisements

or assertions were false and misleading and whether they were material, as well as whether

Envision breached its contracts with the class members by failing to provide the promised

services. The Court therefore concludes that the commonality requirement of Rule 23(a)(2) is

met.

c. Typicality.

Rule 23(a)(3) requires a finding that “the claims or defenses of the representative parties

17 are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality

requirement is “intended to assess whether the action can be efficiently maintained as a class and

whether the named plaintiffs have incentives that align with those of the absent class members so

as to assure that the absentees’ interests will be fairly represented.” Lorazepam I, 202 F.R.D. at

27 (citations omitted). The facts and claims of each class member do not have to be identical to

support a finding of typicality; rather, “[t]ypicality refers to the nature of the claims of the

representative, not the individual characteristics of the plaintiff,” In re Cardizem CD Antitrust

Litig., 200 F.R.D. 297, 304 (E.D. Mich. 2001). The typicality requirement is satisfied “if each

class member’s claim arises from the same course of events that led to the claims of the

representative parties and each class member makes similar legal arguments to prove the

defendant’s liability.” Lorazepam I, 202 F.R.D. at 27 (quoting Pigford, 182 F.R.D. at 349).

Here, the claims of the named plaintiffs and those of the absentee members of the settlement

class arise from the same events and involve the same legal theory and elements of proof.

Named plaintiffs and class members are individuals who attended the Conferences and who have

not previously settled their claims with Envision. There is at least one class representative who

attended each of the three Conferences, and therefore the three student groups (i.e., junior high,

high school, and college) are represented. As their claims can only be described as typical of the

Settlement Class, the Court finds that the typicality requirement is satisfied.

d. Adequacy of representation.

Rule 23(a)(4) requires a finding that “the representative parties will fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Two criteria for determining the

adequacy of representation are generally recognized: (1) the named representative must not have

18 antagonistic or competing interests with the unnamed members of the class, and (2) the

representative must appear able to vigorously prosecute the interests of the class through

qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir.

1997) (internal quotation omitted). The only evidence the Court has been presented with that

suggests that the named plaintiffs’ interests are in any way antagonistic to those of absentee

members of the settlement class is the fact that under the Settlement Agreement, the parties agree

that the class representatives should receive cash incentive awards in the amount of $2500 each.

However, the Court notes that it is within the Court’s discretion to grant the incentive awards,

and the class representatives had no assurance of receiving such awards during the pendency of

this litigation. Moreover, it appears that throughout this litigation, the named plaintiffs and the

absentee class members shared the identical objectives of establishing liability and obtaining

damages. The Court is satisfied that the named plaintiffs’ counsel have adequately prosecuted

the interests of the class. Plaintiffs’ attorneys have demonstrated experience handling class

action lawsuits and have undertaken a substantial investigation into the merits of claims that

could be asserted by the class and the financial condition of Envision to satisfy a judgment. See

generally Joint Mot. for Final Approval, Decl. of James J. Pizzirusso & Decl. of Robert F.

Coleman. Therefore, the Court finds that the adequacy requirement is satisfied.

2. Rule 23(b) Requirements

In order to certify the settlement class pursuant to Rule 23(b)(3), the Court must find that

questions of law or fact common to class members predominate over questions affecting only

individual members and that a class action is superior to other available methods for resolving

the controversy.

19 a. Predominance.

“There is no definitive test for determining whether common issues predominate,

however, in general, predominance is met when there exists generalized evidence which proves

or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need

to examine each class member’s individual position.” Cohen v. Warner Chilcott Public Ltd. Co.,

522 F. Supp. 2d 105, 116 (D.D.C. 2007) (quotation marks and citations omitted). Common

issues must predominate but need not be dispositive. Id. Here, Plaintiffs allege that Envision

made misleading or negligent misrepresentations in their advertising and promotional materials

for the Conferences, which every class member received and relied on in deciding to pay tuition

and attend the Conferences. Plaintiffs further allege that Envision breached its contract with

Plaintiffs by failing to deliver on specific promises about what would be provided at the

Conferences. All of these issues involve single acts or omissions by Envision that pertain to each

member of the class. Although there may be some individualized questions relating to damages

for the breach of contract claim, this does not defeat class certification under Rule 23(b)(3). See

Johnson v. District of Columbia, 248 F.R.D. 46, 57 (D.D.C. 2008) (“[T]he mere existence of

individual damages issues in a Rule 23(b)(3) class does not cause individual issues to

predominate over common issues on liability or causation.”) Because Plaintiffs’ claims pertain

largely to actions taken by Envision vis-a-vis the class, the Court finds that the predominance

requirement of Rule 23(b)(3) is satisfied.

b. Superiority.

“The superiority requirement ensures that resolution by class action will ‘achieve

economies of time, effort, and expense, and promote . . . uniformity of decision as to persons

20 similarly situated, without sacrificing procedural fairness or bringing about other undesirable

consequences.” Cohen, 522 F. Supp. 2d at 117 (quoting Amchem, 521 U.S. at 615). The

superiority requirement is easily met here. The number of members in the settlement class is

approximately 13,500, and this class action settlement would resolve the remaining claims of all

of the Conferences attendees. Because the amount of damages for each class member is

relatively small compared to the cost of litigating an individual claim, resolution by class action

provides a superior method of adjudication and ensures that class members will receive equal

treatment. Accordingly, the Court finds that the superiority requirement of Rule 23(b)(3) is

satisfied.

Because the class is being certified for purposes of settlement only, the Court need not

consider whether the case, if tried, would present intractable management problems. Amchem,

521 U.S. at 620. However, the Court has considered all of the other relevant factors under Rule

23(a) and Rule 23(b)(3). The Court notes that since the settlement class was conditionally

certified and the settlement was preliminarily approved, none of the objectors have argued that

class certification is improper.15 Accordingly, the Court is satisfied that the proposed settlement

class satisfied the requirements of Rule 23, and therefore the Court shall certify the settlement

class.

3. Class Counsel

Pursuant to Rule 23(g), the Court is required to appoint class counsel to represent the

settlement class. In doing so, the Court must consider the work counsel has done in identifying

15 Although the Attorneys General argue that heightened scrutiny should apply to the settlement, they do not argue that certification of the settlement class is improper.

21 or investigating potential claims in the action, counsel’s experience in handling class actions,

other complex litigation, and the types of claims asserted in this action, counsel’s knowledge of

the applicable law, and the resources that counsel will commit to representing the class. See Fed.

R. Civ. P. 23(g)(1)(A). The Court finds that Messrs. Pizzirusso and Coleman have adequately

represented the interests of class members and should be appointed class counsel.

B. The Fairness, Adequacy, and Reasonableness of the Settlement

Pursuant to Rule 23(e), the Court must determine whether the proposed settlement is

“fair, adequate and reasonable and is not the product of collusion between the parties.” Thomas

v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998) (citation omitted). There is no single test in this

Circuit for determining whether a proposed class action settlement should be approved under

Rule 23(e). Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 565 F. Supp. 2d 49, 55

(D.D.C. 2008); Pigford, 185 F.R.D. at 98. However, in making such a determination, courts in

this Circuit have considered the following factors, among others: (1) whether the settlement is

the result of arm’s-length negotiations; (2) the terms of the settlement in relation to the strength

of plaintiffs’ case; (3) the status of the litigation at the time of the settlement; (4) the reaction of

the class; and (5) the opinion of experienced counsel. Vitamins II, 305 F. Supp. 2d at 104 (citing

numerous cases); In re Baan Co. Secs. Litig., 284 F. Supp. 2d 62, 64-67 (D.D.C. 2003).

In their brief amicus curiae, the Attorneys General contend that the Class Action Fairness

Act (“CAFA”) mandates heightened scrutiny of so-called “coupon settlements.”16 CAFA

16 Although Congress did not define the term “coupon” in the statute, courts have generally considered a coupon settlement to be one that provides benefits to class members in the form of a discount towards the future purchase of a product or service offered by the defendant. See, e.g., Fleury v. Richemont N. Am., Inc., No. C-05-4525, 2008 WL 3287154, at *2 (N.D. Cal. Aug. 6, 2008) (“While CAFA does not expressly define what a coupon is, the legislative history

22 establishes the following standard for judicial scrutiny of coupon settlements:

In a proposed settlement under which class members would be awarded coupons, the court may approve the proposed settlement only after a hearing to determine whether, and making a written finding that, the settlement is fair, reasonable, and adequate for class members. The court, in its discretion, may also require that a proposed settlement agreement provide for the distribution of a portion of the value of unclaimed coupons to 1 or more charitable or governmental organizations, as agreed to by the parties. The distribution and redemption of any proceeds under this subsection shall not be used to calculate attorneys’ fees under this section.

28 U.S.C. § 1712(e). The “fair, reasonable, and adequate” standard imposed by CAFA is

identical to the language in Rule 23(e), and the only additional requirement explicit in the statute

is that the Court must hold a hearing and make a written finding that the settlement meets that

standard. CAFA also places other restrictions on coupon settlements, such as requiring that

attorneys’ fee awards attributable to the value of coupons be based on the value of the coupons

actually redeemed. See 28 U.S.C. § 1712(a).

The Attorneys General argue that based on the legislative history of CAFA, which

includes many statements critical of coupon settlements, Congress intended § 1712(e) to require

heightened scrutiny of proposed coupon settlements. In addition, the Attorneys General cite

three federal decisions purportedly recognizing this heightened scrutiny, relying most heavily on

Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1321 (S.D. Fla. 2007). In Figueroa, the

court held that “because the CAFA requirement in section 1712(e) applies only to coupon

settlements, and because it is codified to further Congress’ objectives and concerns regarding the

fairness vel non of coupon settlements in particular, the [court] interprets the statutory directive

suggests that a coupon is a discount on another product or service offered by the defendant in the lawsuit.”) The parties do not dispute that the vouchers for future Envision programs qualify as coupons for purposes of CAFA.

23 to imply the application of a greater level of scrutiny to the existing criteria than existed pre-

CAFA.” The Figueroa court also noted that the CAFA standard is identical to that of Rule 23

and that coupon settlements have been extensively criticized even before CAFA. Therefore, it is

unclear as to what degree of added scrutiny the Figueroa court “implied” from CAFA.

Defendants also cite Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 654

(7th Cir. 2006), a case that arose before CAFA in which the Seventh Circuit in dictum “note[d]

that in [CAFA] Congress required heightened judicial scrutiny of coupon-based settlements”; and

Kearns v. Ford Motor Co., No. CV 05-5644, 2005 WL 3967998, at *1 (N.D. Cal. Nov. 21,

2005), in which the court said that CAFA “put significant limits on so-called ‘coupon

settlements’ which produce hardly any tangible benefits for the members of the plaintiff class,

but generate huge fees for class attorneys.” Neither of these cases provides any meaningful

discussion of what “heightened scrutiny” under CAFA actually means.

This Court finds that the judicial scrutiny called for by § 1712(e) is indistinct from the

scrutiny required by Rule 23(e), with the understanding that coupon settlements pose a particular

risk of unfairness and unreasonableness because of the increased possibility that the benefits

afforded to class members will never be realized, since class members are provided with a future

discount on a product or service with which they were previously dissatisfied. See Figueroa, 517

F. Supp. 2d at 1302 (“[There are] three major problems with coupon settlements: they often do

not provide meaningful compensation to class members; they often fail to disgorge ill-gotten

gains from the defendant; and they often require class members to do future business with the

defendant in order to receive compensation.”) This is consistent with the finding of the court in

True v. American Honda Motor Co., No. EDCV 07-287, 2010 WL 707338, at *12 (C.D. Cal.

24 2010) (Feb. 26, 2010). In True, the court acknowledged the wide range of judicial and scholarly

criticism of coupon settlements and noted that the court’s role in evaluating coupon settlements

is to discern whether the value of a specific coupon settlement is reasonable in relation to the

value of the claims surrendered. With that standard in the mind, the Court shall review the

proposed settlement agreement in light of the factors enumerated above and the objections that

have been received.

1. Arm’s-Length Negotiation and the Opinion of Experienced Counsel

“A presumption of fairness, adequacy, and reasonableness may attach to a class

settlement reached in arm’s-length negotiations between experienced, capable counsel after

meaningful discovery.” Vitamins II, 305 F. Supp. 2d at 104. In this case, the parties reached a

settlement only after a lengthy mediation session that was presided over by an experienced

mediator. Although the mediation occurred before formal fact discovery began in this action,

Plaintiffs’ counsel had already conducted a substantial factual investigation into the experience

of many class members at the Conferences, conducting interviews with dozens of class members

and collecting various newspaper articles, internet weblogs, and other reports about the

Conferences. See Mem. in Supp. of Joint Mot. for Final Approval at 10. In addition, Envision

provided Plaintiffs’ Counsel with significant informal discovery relating to its financial

condition, insurance coverage, and resolution of previous complaints by attendees at the

Conferences. Therefore, it appears that the parties were well-positioned to mediate their claims,

and all the evidence before the Court indicates that this settlement is the product of arm’s-length

negotiation between experienced counsel.

The opinion of experienced counsel “should be afforded substantial consideration by a

25 court in evaluating the reasonableness of a proposed settlement.” Cohen, 522 F. Supp. 2d at 121

(citation omitted). In this case, Class Counsel has substantial experience litigating consumer

class actions and are of the opinion that the settlement is fair, reasonable, and in the best interests

of the settlement class. See Joint Mot. for Final Approval, Decl. of Robert Coleman ¶ 17 & Decl.

of James Pizzirusso ¶ 20. In addition, the mediator has opined that the settlement is fair and

reasonable, based on “the significant recovery that the settlement affords the members of the

settlement class, Envision’s current and foreseeable economic condition, the difficulties inherent

in prosecuting any class action of this size, Envision’s defenses to Plaintiffs’ claims, and the risks

and expenses to Envision to defend Plaintiffs’ claims.” See Joint Mot. for Final Approval, Decl.

of Hon. Daniel Weinstein ¶ 9. The opinion of the mediator and experienced Class Counsel

weigh in favor of approving the settlement agreement.

2. The Terms of the Settlement in Relation to the Strength of Plaintiffs’ Case

The Settlement Agreement provides a benefit to class members in the form of two $625

transferable vouchers for tuition at future Envision programs, and it requires Envision to

establish a scholarship fund if less than $8 million worth of vouchers are claimed. If every class

member claims vouchers, Envision will pay out approximately $17 million worth of vouchers.

Plaintiffs contend that this settlement represents a substantial recovery in light of the risks and

costs of continuing litigation.

a. The value of the settlement.

The value of the settlement to each class member can be quantified in terms of the values

of the vouchers, which is a total of $1250. These vouchers represent an average savings of about

18%-41% off tuition for future Envision programs and a 45%-54% refund of the tuition paid for

26 the Conferences. However, a number of courts have recognized that the actual value of a coupon

to a class member may be less than its face value. See, e.g., In re Mexico Money Transfer Litig.,

267 F.3d 743, 748 (7th Cir. 2001) (“[C]ompensation in kind is worth less than cash of the same

nominal value.”) Here, the parties have structured the settlement agreement in a manner that

seeks to maximize the value of the vouchers to class members. First, the vouchers are valid for a

period of seven years, during which time Envision plans to offer approximately 2450 conferences

attended by approximately 340,000 students. See Joint Response to Br. Amicus Curiae at 6.

Second, the vouchers are fully transferable to other qualifying students, as well as to

family members of the class member (whether or not they otherwise qualify for enrollment at an

Envision program). Therefore, if a class member is unable to attend another program, he or she

may give it to a younger sibling or attempt to sell it to another student who qualifies to attend an

Envision conference. The Attorneys General and some objectors argue that the secondary market

for these vouchers is not established and therefore class members may have difficulty finding a

buyer for unused vouchers. Plaintiffs acknowledged at the Fairness Hearing that no secondary

market yet exists for these vouchers and that it is difficult to predict the ease with which they

may be resold. Plaintiffs argue, however, that class members should be able to utilize the

internet to find interested buyers, and Envision will maintain a website that explains that

vouchers are transferable. The Court recognizes that class members seeking to sell their

vouchers to unknown third parties may encounter some difficulties, but the Court also notes that

most class members are students who have a natural network of classmates to whom vouchers

might be sold, and the large number of programs that are offered during the seven-year period

makes it more likely that buyers can be found. The relatively high value of the vouchers also

27 makes it more likely that class members will be willing to bear the comparatively minimal

transaction costs associated with selling them.

The Attorneys General also contend that the vouchers do not provide meaningful

compensation to the class members in light of the fact that a party seeking to utilize a voucher by

their calculation must also spend hundreds, if not thousands, of dollars on tuition (which

typically includes lodging and meals) and transportation to the location of the program. They

note that although 28 U.S.C. § 1712(d) permits the Court to hear expert testimony on the actual

value of coupons awarded, no expert testimony has been proffered by the parties. During the

Fairness Hearing, class counsel indicated that they asked their administrative notice provider to

give an estimate as to the redemption value of the vouchers but that the provider was unable to

give an estimate due to the variety of conferences provided by Envision. It is clear, however, that

the vouchers will provide meaningful value to those class members who do wish to attend future

Envision programs. Envision has noted that approximately 95% of the attendees at the

Conferences had attended a prior program, and Envision’s counsel represented at the Fairness

Hearing that about ten percent of students attending Envision conferences each year are program

alumni. Envision also noted that 20% of the vouchers issued to claimants who settled prior to

this lawsuit have already been redeemed, suggesting there is significant interest among the class

in attending future programs. Indeed, two of the putative class members sent an email to Class

Counsel expressing hope that their vouchers would be available in time for use with an Envision

program they would like to attend this summer. See Joint Response to Br. Amicus Curiae, Exs.

D-E. This suggests that the vouchers do provide meaningful value to the class members.

The value of these vouchers also compares favorably to other coupon settlements that

28 have come before the federal courts for approval. For example, in In re Western Union Money

Transfer Litigation, No. CV-01-0335, 2004 WL 3709932 (E.D.N.Y. Oct. 19, 2004), the court

approved a settlement that awarded coupons providing a 13%-40% discount on fees for money

transfers. The coupons were freely transferable, could be used at over 170,000 locations

worldwide, remained valid for 35 months, and could be combined with any other discount. Id. at

*12-13. Here, the vouchers represent an 18%-45% discount off tuition costs for future programs,

are freely transferable, remain valid for seven years, and can be used at thousands of future

programs.

It is also significant that under the terms of the settlement, Envision will have to offer at

least $8 million worth of discounts on future programs, representing a substantial disgorgement

of profits obtained from the Conferences. The parties agreed to the $8 million figure because this

was the net profit that Envision realized from the Conferences, according to its financial

statements. This completely addresses the Figueroa court’s concern that coupon settlements do

not force defendants to “disgorge ill-gotten gains.” 517 F. Supp. 2d at 1302. Thus, in addition to

the personal benefit received by class members through the vouchers, they will receive the

benefit of knowing that Envision will not have profited from any wrongdoing.

The Attorneys General note that if at least 6400 class members claim their vouchers, no

cy pres fund will be created, and it is therefore possible that Envision will end up paying less

than $8 million if a substantial number of the vouchers claimed by those class members are never

redeemed. Although there is no guarantee, the Court thinks this is unlikely, for two reasons.

First, class members with no interest in the vouchers are unlikely to claim them in the first place.

Second, the high face value of the vouchers makes it likely that class members who do claim

29 vouchers will either use them or be motivated enough to find a willing buyer who plans to attend

an Envision program. Therefore, the Court expects that most of the vouchers that are distributed

will be redeemed within the seven-year period. In any event, the heart of the settlement is the

value afforded to the class members, which could be as high as $17 million, rather than the $8

million “guaranteed” payment by Envision.17

b. Strength of Plaintiffs’ claims and likelihood of success at trial.

The value of the settlement must be balanced against the likelihood of obtaining a

substantial recovery at trial. Plaintiffs have asserted three claims in this action: (1) violations of

the D.C. Consumer Protection Procedures Act (“CPPA”); (2) negligent misrepresentation; and

(3) breach of contract. The Attorneys General contend that liability “appears likely to be

established” on Plaintiffs’ CPPA claims, and the CPPA allows private plaintiffs to recover, inter

alia, treble damages or $1500 per violation, whichever is greater, reasonable attorneys’ fees, and

punitive damages. See Br. Amicus Curiae at 14; D.C. Code § 28-3905(k)(1). Thus, the

Attorneys General argue that Plaintiffs are likely to obtain substantially greater relief at trial than

is provided by the vouchers. However, liability cannot be assumed when evaluating a proposed

settlement, and Envision has defenses to this action that it would continue to assert if the

settlement is rejected. Even setting aside the facts of the case, there are practical and procedural

obstacles that stand in the way of success at trial.

First, and perhaps most significantly, it is not clear that D.C. law would apply to

17 The Court also notes that it would not be practical to require Envision to add the value of unredeemed vouchers to the CSSF since this value would not be known until the end of the seven-year period, which is also when the CSSF must be depleted under the terms of the Settlement Agreement.

30 Plaintiffs’ claims. When exercising its diversity jurisdiction, the Court applies the choice-of-law

rules of the forum jurisdiction. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).

Under District of Columbia law, courts employ a “modified governmental interests analysis

which seeks to identify the jurisdiction with the most significant relationship to the dispute.”

Washkoviak v. Student Loan Marketing Ass’n, 900 A.2d 168, 180 (D.C. 2006) (quotation marks

and citation omitted). Under this analysis, the court evaluates the governmental policies

underlying the applicable laws and determines which jurisdiction’s policy would be most

advanced by the application of its law to the facts of the case, taking into consideration (1) the

place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3)

the domicile, residence, nationality, place of incorporation and place of business of the parties;

and (4) the place where the relationship is centered. Id. (quoting District of Columbia v.

Coleman, 667 A.2d 811, 816 (D.C. 1995)). These factors generally point to the application of

either the law of Virginia, where Envision is located and made the representations, or the law of

each class member’s home state, where he or she would have received the alleged

misrepresentations and paid for the Conferences. See id. at 180-82; see also Shaw v. Marriott

Int’l, Inc., 570 F. Supp. 2d 78, 86-88 (D.D.C. 2008) (discussing choice of law analysis in

misrepresentation cases), aff’d in part, rev’d in part, ___ F.3d ___, 2010 WL 2134277 (D.C. Cir.

May 28, 2010).18 Although the choice-of-law analysis for the breach of contract claims might

favor application of District of Columbia law because the place of performance was, in most

instances, the District of Columbia, see Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170

18 The parties have indicated that only 24 members of the class are District of Columbia residents.

31 F.3d 191, 198 (D.C. Cir. 1999), that conclusion is not certain. In any event, Plaintiffs’ breach of

contract claims are more individualized, since they are based not on the representations made to

all class members but the class members’ individual experiences at the Conferences, which

varied. Therefore, the breach of contract claims are less likely to lead to substantial class-wide

relief.

This uncertainty regarding the choice-of-law analysis significantly undermines the

strength of Plaintiffs’ claims against Envision and lowers the chance of a substantial recovery at

trial. If D.C. law cannot be uniformly applied to the class members’ claims, then Plaintiffs will

be unable to a large extent take advantage of the CPPA’s favorable provisions for consumers,

which include the possibility of treble and punitive damages. Of even greater concern is that

significant choice-of-law problems make it less likely that a class could be certified for trial

purposes. Before a global settlement was reached, the Bowman plaintiffs had filed a motion to

certify the class, and Envision vigorously opposed that motion, arguing that the requisite choice-

of-law analysis would require the court to apply the law of fifty different states to resolve the

case, making class certification impracticable. See Joint Response to Br. Amicus Curiae, Ex. C

(Defendants’ Opp’n to Mot. for Class Certification). Many courts have found that nationwide

class actions raise significant manageability problems when the law from multiple states must be

applied to determine liability. See, e.g., In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018-

19 (7th Cir. 2002); Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1986) (remanding

class certification question to district court to consider whether variations in state law prohibit a

finding of predomination for common questions of law). Although this Court need not consider

the manageability of a class action when certifying a class for settlement purposes, the Court

32 notes that choice-of-law questions may render the class action unmanageable such that no class-

wide recovery would be possible without a settlement. This factor weighs in favor of approving

the parties’ agreement.

Another factor to take into consideration is Envision’s ability to pay a judgment even if

Plaintiffs successfully prosecuted their claims at trial. The parties have indicated that, after

Envision already paid out approximately $1 million to settle prior claims arising out of the

Conferences, Envision would face severe financial difficulties if forced to provide cash refunds

to all the class members. Class counsel indicated at the Fairness Hearing that, based on the

financial discovery provided before the mediation, Envision was in default on its bank

obligations when negotiations began. According to the mediator, Envision’s financial condition

was “at the forefront of the settlement discussions,” and Envision’s Chief Financial Officer was

present at the mediation. See Joint Response to Br. Amicus Curiae, Ex. H (Aff. of Hon. Daniel

Weinstein) ¶ 12. Because Plaintiffs did not want to bankrupt the company through a lawsuit

(depriving themselves and others of the opportunity to partake in future educational programs as

well as potentially being unable to collect any judgment), they agreed to the voucher payment

system reflected in the settlement agreement, which allows Envision to pay over time. Plaintiffs’

desire to obtain immediate and certain relief weighs in favor of approving the settlement.19

19 The Attorneys General contend that “other federal courts have rejected . . . arguments that the defendant’s purported precarious financial condition should justify a coupon settlement,” citing Figueroa. See Br. Amicus Curiae at 15. However, the Figueroa court did not say that financial condition could not be considered as a factor in evaluating settlements, and many federal courts have explicitly considered this. See, e.g., In re Wireless Telephone Fed. Cost Recovery Fees Litig., 396 F.3d 922, 932-33 (8th Cir. 2005) (requiring district courts to consider a defendant’s financial condition when evaluating class action settlement agreements).

33 3. Reaction of the Class

There are fifteen objectors to the Settlement Agreement, representing approximately one-

tenth of one percent of the entire class. This relatively low rate of objection weighs in favor of

approval of the settlement. See Thomas v. Albright, 139 F.3d at 232 (“[A] settlement can be fair

even though a significant portion of the class and some of the named plaintiffs object to it.”)

Many of the objectors expressed concern that they could not or would not use the vouchers to

attend a future Envision program. However, that concern is addressed by the fact that the

vouchers are transferable to family members or to any other qualifying student and therefore have

a nonnegligible resale value. Other objectors expressed concern that the vouchers covered only

partial tuition, and many objectors generally expressed a preference for cash. The most

vociferous objectors demanded that Envision provide a full refund of the tuition paid for the

Conferences. These objections essentially amount to a complaint that the settlement does not

provide enough benefits. However, “[t]he court should not reject a settlement merely because

individual class members complain that they would have received more had they prevailed after a

trial.” Thomas, 139 F.3d at 231. Several objectors complained that the Settlement Agreement

did not sufficiently punish Envision for its misconduct and suggested that Envision be required to

provide at least a partial refund. As noted above, however, a cash settlement to all class

members would not have been feasible in light of Envision’s financial condition, and the

scholarship fund provision in the Settlement Agreement ensures that Envision will disgorge

substantially all of the profits that it earned from the Conferences.

One objector expressed concern that named class representatives and class counsel

receive cash while class members only qualify for tuition vouchers. However, that concern is

34 largely addressed by several facts about the negotiation of the settlement. First, the attorneys’ fee

and class representative incentive awards were negotiated separately by the parties after a

settlement was reached, and the Settlement Agreement expressly states that no portion of the

settlement payment shall be reduced to pay attorneys’ fees or incentive awards. Second, the

actual amounts awarded will be determined by the Court in ruling on the Plaintiffs’ Motion for

Attorneys’ Fees, Expenses, and Class Representative Service Awards, not by the parties. Third,

Envision’s insurers were willing to provide some compensation for class counsel’s fees because

they were already paying Envision’s outside counsel to defend this case under a reservation of

rights, and a settlement would avoid additional defense costs. See Joint Response to Br. Amicus

Curiae, Ex. H (Aff. of Hon. Daniel Weinstein) ¶ 13. Envision’s counsel represented at the

Fairness Hearing that its insurers would pay $935,000 for attorneys’ fees (roughly 65% of the

total), with Envision paying $535,000 (roughly 35%). Even if that $535,000 cash payment were

to be redistributed to class members as part of a cash settlement, each class member would

receive less than $40. It is doubtful that the class members would prefer such a small cash

settlement to the $1250 in transferable vouchers they will receive under the settlement

agreement. Whatever the market value of two $625 vouchers may be, it is surely greater than

$40.

The Court also notes that none of the objectors expressed a desire to appear at the

Fairness Hearing. The Attorneys General, who did appear at the Fairness Hearing through a

representative, argue that their opposition to the Settlement Agreement should counsel against

approval of the settlement. While the Court is not convinced that the Attorneys General’s

appearance as amici curiae alone weighs against approval, the Court has substantively

35 considered the detailed opposition of the Attorneys General in evaluating the fairness of the

settlement agreement and does so further below.

4. The Status of the Litigation at the Time of Settlement

“In determining whether a proposed class action settlement is fair, adequate, and

reasonable, courts consider whether counsel had sufficient information, through adequate

discovery, to reasonably assess the risks of litigation vis-a-vis the probability of success and

range of recovery.” Meijer, 565 F. Supp. 2d at 57 (quotation marks and citation omitted); see

also Vitamins II, 305 F. Supp. 2d at 105 (stating that settlement agreements should “not come too

early to be suspicious nor too late to be a waste of resources”). In this case, the parties reached a

settlement agreement before formal discovery began. However, as noted above, Plaintiffs’

counsel conducted significant factual investigation into possible class claims and the financial

situation of Envision prior to the mediation. In addition, the parties had fully briefed Envision’s

motion to dismiss in the Bowman action, and Envision had filed its brief in opposition to class

certification. The Attorneys General argue that the fact that settlement was reached prior to class

certification weighs against approval of the Settlement Agreement. However, in light of the

obstacles that Plaintiffs faced in establishing class certification and the information they obtained

about Envision’s financial condition, the timing of the settlement agreement raises no cause for

concern.

5. Analysis

The discussion above shows that the parties have reached a settlement that: (1) provides

class members with an immediate benefit that may be of substantial value (representing a 45%-

54% refund and a discount of 18%-45% on future programs); (2) disgorges substantially all of

36 the profits earned by Envision during the Conferences; (3) avoids the costs of future litigation;

(4) eliminates a substantial risk of no class-wide recovery given choice-of-law problems and

Envision’s financial condition; (5) was reached during an arms-length negotiation by well-

informed and experienced counsel; (6) has the approval of experienced class counsel and an

experienced mediator; and (7) has the general support of the settlement class, as demonstrated by

the very small number of objectors and the interest among class members to immediately receive

their benefits under the settlement. In the light of the above analysis, the settlement agreement

appears to be a reasonable compromise of Plaintiffs’ claims.

In their brief amicus curiae, the Attorneys General argue that this voucher settlement is

comparable to the one that was disapproved by the court in Figueroa v. Sharper Image

Corporation, 517 F. Supp. 2d 1292 (S.D. Fla. 2007). In that case, the plaintiffs brought claims

against Sharper Image for breach of contract, breach of warranty, unjust enrichment, and unfair

business practices relating to representations made regarding the company’s Ionic Breeze air

purifiers, for which plaintiffs had each paid hundreds of dollars. 517 F. Supp. 2d at 1300. The

settlement called for the plaintiffs to receive a $19 coupon, valid for two years, that could be used

towards the purchase of any product at a Sharper Image retail store. Id. at 1303, 1305. On those

terms alone, it is clear that the vouchers offered by Envision provide substantially more value

than the coupons at issue in Figueroa. In addition, the Figueroa court’s disapproval of the

settlement was based primarily on the fact that plaintiffs’ counsel had negotiated the settlement

from an extremely weak position (on the eve of a ruling that would potentially stay the case) and

did so without conducting a reasonable assessment of strength and value of the plaintiffs’ claims.

Id. at 1321-23. The Figueroa court also found that the plaintiffs’ claims were strong and that the

37 plaintiffs could reasonably expect to recover more than $19 per plaintiff at trial, making the cost

of proceeding to trial worth the small risk of no recovery. Id. at 1327. The parties in Figueroa

had also conducted discovery relating to jurisdiction and class certification and retained experts,

minimizing the added expense of proceeding to trial. Id. at 1328. All of these factors distinguish

Figueroa from this case, where the Plaintiffs compromised an uncertain case in exchange for

valuable consideration during an arms-length negotiation.

The parties’ settlement in this case is also distinguishable from two other coupon

settlement cases cited by the Attorneys General, True v. American Honda Motor Co., No. EDCV

07-287, 2010 WL 707338, at *12 (C.D. Cal. 2010) (Feb. 26, 2010), and Clement v. American

Honda Finance Corp., 176 F.R.D. 15 (D. Conn. 1997). In True, the court disapproved a

settlement that would have awarded class members a non-transferable $500 or $1000 voucher

toward the purchase of a new Honda, finding that it represented “at best, a 6.5% discount off the

purchase of a new car, redeemable only within the next nineteen months, just a few years after

they purchased or leased a new Honda.” 2010 WL 707338 at *21. The True court also criticized

the settlement for offering cash payments to only a certain subclass of plaintiffs whose prior

complaints could be documented and noted that the settlement was worth substantially less than

settlements obtained by similar claimants. See id. at *10, *14. Similarly, in Clement, the court

disapproved a settlement that would have awarded coupons of $75 or $150 toward the financing

of a new car through American Honda Finance Corp. See 176 F.R.D. at 26-28. The court found

that the coupons were “essentially worthless” because they expired in two or three years, were

not transferable to third parties, and were virtually worthless compared to the purchase price of a

new car. Id. at 27. Here, by contrast, the vouchers represent a substantial discount towards

38 tuition at future programs and are freely transferable to other eligible students. And although

Envision programs are relatively “big ticket” items for consumers, they are not like cars and

other durable goods that are typically only purchased when a new model is needed to replace an

older one. Unlike a discount on a new car issued to a person who just purchased a new car, the

vouchers in this settlement have immediate value.

Ultimately, the reasonableness of the settlement agreement must be considered in the

context of this case, not in comparison to terms of other coupon settlements. Although a cash

settlement would have been preferable to vouchers, Envision is not presently in a position to give

cash to all class members, and their ability to do so after judgment is also doubtful. It is true that

Envision paid out nearly $1 million to settle claims and complaints that it received in the

immediate aftermath of the Conferences. However, once those funds were exhausted, the

company’s financial situation prevented it from continuing to make cash payments. The fact that

early claimants received cash does not make this settlement unfair. The record suggests, and it is

reasonable to assume, that the individuals who filed early complaints and received early

settlements had stronger claims overall than the members of the settlement class (the vast

majority of whom have never formally complained to Envision about their experience at the

Conferences). The average settlement obtained by the early claimants (roughly $400 cash plus

$750 in vouchers) is actually not far off from the $1250 in vouchers that will be paid to members

of the settlement class. And relief is more widely available under the settlement agreement:

whereas early claimants had to indicate that they missed parts of the Conferences involuntarily in

order to receive a settlement, class members need only verify that they were “unsatisfied” with

their experiences. It is also important to note that none of the early claims filed against Envision

39 resulted in a judicial determination as to liability, so there is no benchmark judgment against

which to assess Plaintiff’s claims.

The parties crafted the settlement agreement in a manner that would provide meaningful

relief to the class members while ensuring that Envision could continue to operate while also

disgorging the profits from the Conferences over time. According to the experienced mediator,

“the significant value of the vouchers, their full transferability, the long duration of the time in

which they may be redeemed, and the scholarship fund set this settlement apart from other

coupon settlements.” Joint Response to Br. Amicus Curiae, Ex. H (Aff. of the Hon. Daniel

Weinstein) ¶ 15. Based on the significant recovery that the settlement affords the members of the

settlement class, the difficulties faced by the Plaintiffs in litigating this class action, the inherent

risks, costs, and time associated with continued litigation, and Envision’s financial condition, the

Court finds that the settlement is fair, reasonable, and adequate under Rule 23(e) and 28 U.S.C.

§ 1712(e). Therefore, the Court shall grant the parties’ Joint Motion for Final Approval, except

as to the potential cy pres fund.

The Court is troubled by the lack of standards governing the distribution of the money

from the Class Settlement Scholarship Fund, the potential cy pres fund. Although the parties

have amended the settlement agreement to provide that class counsel shall receive semiannual

reports on the administration of the CSSF, the fund is to be administered by Envision with nearly

complete discretion. If the amount of money in the CSSF is substantial, there is a risk that

Envision will use the scholarships as a promotional tool. At the Fairness Hearing, class counsel

agreed to the Court’s proposal that the Court would conditionally approve the CSSF provisions

of the settlement agreement until class members filed their claims for vouchers and the exact

40 amount of the CSSF could be determined, at which point the parties could submit a plan of

distribution with more detailed eligibility criteria. The Court shall follow that approach and

HOLD IN ABEYANCE final approval as to the plan of distribution of funds in the CSSF until

the amount of such funds are known.

IV. CONCLUSION

Having considered all of the above-listed factors, the objections, the opposition of the

Attorneys General, and the record as a whole, the Court finds that the terms of the settlement

agreement are fair, reasonable, and adequate and should be approved. The Court finds that it has

jurisdiction over this action, and there is no dispute that class may be certified for settlement

purposes. The Court finds that the settlement agreement was negotiated at arms-length by

experienced counsel with the assistance of an experienced mediator after an appropriate amount

of investigation and informal discovery, and it is the opinion of the experienced counsel and

mediator that the settlement is fair, adequate, and reasonable. The Court finds that the vouchers

to be awarded under the settlement agreement provide meaningful value to class members

because of their high face value ($1250, representing a 45%-54% refund and an 18%-45%

discount toward future programs), their transferability, and their seven-year duration. The Court

also finds that choice-of-law issues and Envision’s financial condition significantly undermine

Plaintiffs’ likeilhood of obtaining meaningful class-wide relief at trial. The Court finds that the

settlement is supported by the class, as demonstrated by the low number of objectors and opt-

outs. The Court also finds that the cy pres fund, if properly administered, will ensure that

Envision substantially disgorges the profits from its alleged misconduct.

Therefore, the Court shall overrule the objections to the settlement agreement and

41 GRANT the parties’ [24] Joint Motion for Final Approval of the Settlement Agreement.

Because the Court has concerns about the distribution of proceeds from the proposed cy pres

fund, the Court shall HOLD IN ABEYANCE approval of the Class Settlement Scholarship Fund

and revisit that issue after the class members have submitted their claims for vouchers and the

amount of money to be deposited into the CSSF is determined. The Court shall order the parties

to file a Joint Status Report after the claims period has ended and all claims have been received

so that the Court may make a final ruling at that time. The Court shall also HOLD IN

ABEYANCE Plaintiffs’ [25] Motion for Attorneys’ Fees, Expenses, and Class Representative

Service Awards and address those issues at a later date. An appropriate Order accompanies this

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge