Smith v. Apple, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRIS SMITH, et al., Case No. 21-cv-09527-HSG

8 Plaintiffs, ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL 9 v. Re: Dkt. No. 155 10 APPLE, INC., 11 Defendant.

12 13 Pending before the Court is Plaintiffs’ unopposed motion for preliminary approval of class 14 action settlement. See Dkt. No. 155. The Court held a hearing on the motion, and now GRANTS 15 it. 16 I. BACKGROUND 17 A. Factual Allegations 18 This is a putative class action brought on behalf of purchasers of Apple Watches 19 (“Plaintiffs”). See Dkt. No. 136 (“TAC”) ¶ 1. Plaintiffs allege that First Generation, Series 1 20 through Series 6, and Series SE Apple Watches contain “an undisclosed and unreasonably 21 dangerous safety hazard.” Id. ¶ 2. More specifically, Plaintiffs allege that sudden swelling of the 22 watch batteries can cause the screen to detach, shatter, or crack, “exposing its razor-sharp edges 23 and leading to operational failure of the Watch and/or personal injuries . . . .” Id. Plaintiffs allege 24 that Apple (“Defendant”) failed to allocate sufficient space within the watch to prevent the screen 25 issue, “[d]espite knowing that the battery inside the Watch can suddenly swell.” Id. Plaintiffs 26 further allege that the watches have injured Plaintiffs and putative class members, creating a 27 “substantial and material risk of serious injury, including lacerations, cuts, abrasions, and other 1 Plaintiffs filed their initial complaint in December 2021, Dkt. No. 1, and an amended 2 complaint in March 2022. Dkt. No. 31. Defendant then filed a motion to dismiss the amended 3 complaint, which this Court granted in part and denied in part. Dkt. No. 80. Plaintiffs filed a 4 second amended complaint in March 2023, and Defendant again moved to dismiss. See Dkt. Nos. 5 84, 100. The Court granted Plaintiffs’ request to file a Third Amended Complaint and mooted the 6 second motion to dismiss. Dkt. No. 134. 7 The operative complaint asserts the following causes of action against Defendant: 8 violations of the California Unlawful Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. 9 (“UCL”); violations of the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et 10 seq. (“CLRA”); fraud by omission under various state laws; violations of the Song-Beverly 11 Consumer Warranty Act, Cal. Civ. Code § 1790 et seq.; and violations of consumer protection and 12 unfair competition laws in New York, Texas, and Florida. See FAC ¶¶ 295–396. 13 In August 2024, Plaintiffs filed their motion for preliminary approval, and the Court held a 14 hearing on the motion and took it under submission on October 3, 2024. See Dkt. Nos. 155, 159. 15 The Court subsequently directed the parties to submit additional evidence including: 1) a 16 sufficiently detailed estimate of the potential class recovery at trial; and 2) the actual terms of the 17 provision that triggers Defendant’s ability to reject the settlement agreement. See Dkt. 160 at 1–2. 18 The parties submitted timely responses. See Dkt. Nos. 161, 162. 19 B. Settlement Agreement 20 In November 2023, the parties participated in a full-day mediation with mediator Randy 21 Wulff. See Dkt. No. 155-2, Tufts Decl. ¶ 8. The parties ultimately entered into a settlement 22 agreement. See Dkt. No. 155-1. The key terms are as follows: 23 Class Definition: The Settlement Class is defined as “all natural persons who reside in the 24 United States, who own or owned any model First Generation, Series 1, Series 2 or Series 3 Apple 25 Watch (i.e. “Covered Devices”) for personal and/or household use, and who are reflected in 26 Apple’s records as having reported Covered Issues in the United States,” between April 24, 2015, 27 and February 6, 2024. Dkt. No. 155-1 (“Settlement Agreement,” or “SA”) at 1 ¶ 24. “Covered 1 Apple’s records as having reported symptoms potentially associated with battery swell.” Id. ¶ 24. 2 Settlement Benefits: Defendant will make a $20,000,000 non-reversionary payment. SA 3 at 1 ¶ 27. This gross settlement fund will cover Court-approved attorneys’ fees and costs, 4 settlement administration fees, incentive payments to the Lead Plaintiff and the other named 5 Plaintiffs, and payments to class members. Id. at § B.2. Class members who make a payment 6 selection by the response deadline, or whose valid, current payment information is confirmed by 7 the Settlement Administrator, will receive either $20 for each Covered Device or, if necessary, a 8 pro rata portion of the settlement fund less than $20. Id. at § B.4. If there is more than $50,000 9 remaining in the settlement fund after all costs have been allocated, class members may receive up 10 to $50 per Covered Device. See id. The parties propose that any remaining funds would go to the 11 Rose Foundation’s Consumer Products Fund as the cy pres recipient. SA § B.9. 12 Release: The Named Plaintiffs and the Settlement Class release and discharge Defendant 13 and its subsidiaries from: 14 “any and all damages, suits, claims, debts, demands, assessments, obligations, liabilities, attorneys’ fees, costs, expenses, rights of action and causes of action, of any kind or 15 character whatsoever, whether based on contract (express, implied, or otherwise), statute, 16 or any other theory of recovery, and whether for compensatory or punitive damages, and whether known or unknown, suspected or unsuspected, occurring before the Effective Date 17 of the Settlement (the “Released Matters”) arising out of or related to the claims made in this Lawsuit. This release will include claims relating to the Released Matters of which the 18 Releasing Parties are presently unaware or which the Releasing Parties do not presently suspect to exist which, if known to the Releasing Parties, would materially affect the 19 Releasing Parties’ release of the Apple Released Parties.” 20

21 SA § H.1. Notice to class members will include the following language:

22 “Unless you exclude yourself with an opt-out request (see Question ___), you cannot sue, continue to sue, or be part of any other lawsuit against Apple arising out of or related to the 23 claims in this case. The “Releases” section in the Settlement Agreement describes the legal 24 claims that you give up if you remain a Settlement Class Member. The Settlement Agreement can be viewed at www.watchsettlement.com.”

26 SA, Ex. C, at 33. 27 Incentive Award: Class counsel may apply for an incentive award for the lead Named 1 $2,000 each. SA § G.1. 2 Attorneys’ Fees and Costs: The Settlement Agreement does not provide for an agreed- 3 upon amount of attorney’s fees and costs. SA § G.2. Plaintiffs’ motion for preliminary approval 4 states that Plaintiffs’ counsel will request up to $5,000,000 in attorneys’ fees. Dkt. No. 155 5 (“Mot.”) at 14.1 6 Opt-Out Procedure: Class members must object to the Settlement Agreement or opt out 7 (via regular mail or the settlement website) within 60 days after the date that the mailing date of 8 the email and postcard notice. SA § G.2; 1 ¶ 24. In addition, Defendant may reject the settlement 9 if “the number of Settlement Class members who elect to exclude themselves from the Settlement 10 Class exceeds the threshold agreed to by the Parties and confidentially submitted to the Court in 11 camera.” Id. § E.6. 12 II. PROVISIONAL CLASS CERTIFICATION 13 The plaintiff bears the burden of showing by a preponderance of the evidence that class 14 certification is appropriate under Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. 15 Dukes, 564 U.S. 338, 350–51 (2011). Class certification is a two-step process. First, a plaintiff 16 must establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality, 17 typicality, and adequacy of representation. Id. at 349. Second, it must establish that at least one of 18 the bases for certification under Rule 23(b) is met. Where, as here, a plaintiff seeks to certify a 19 class under Rule 23(b)(3), it must show that “questions of law or fact common to class members 20 predominate over any questions affecting only individual members, and that a class action is 21 superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. 22 R. Civ. P. 23(b)(3). 23 “The criteria for class certification are applied differently in litigation classes and 24 settlement classes.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019) 25 (“Hyundai II”). When deciding whether to certify a litigation class, a district court must consider 26 manageability at trial. Id. However, this concern is not present in certifying a settlement class. 27 1 Id. at 556–57. In deciding whether to certify a settlement class, a district court “must give 2 heightened attention to the definition of the class or subclasses.” Id. at 557. 3 A. Rule 23(a) Certification 4 The Court finds that all the requirements of Rule 23(a) are met: 5 • Numerosity. Joinder of the hundreds of thousands of estimated class members 6 would be impracticable. See Mot. at 15 (estimating over 600,000 class members). 7 • Commonality. Common questions of law and fact include whether the Covered 8 Devices were defective, whether the alleged defect caused the Covered Devices to 9 fail, and whether Defendant had knowledge of the alleged defect but failed to 10 disclose it. See Dkt. No. 155 at 15–16. 11 • Typicality. Plaintiffs’ claims are both factually and legally similar to those of the 12 putative class because all class members purchased the Covered Devices and 13 reported a Covered Issue to Defendant. See SA at 1 ¶ 24. 14 • Adequacy of Representation. The Court is unaware of any actual conflicts of 15 interest in this matter and no evidence in the record suggests that either Plaintiffs or 16 counsel have a conflict with other class members. Plaintiffs’ counsel has been 17 appointed class counsel in numerous federal and state class actions. Dkt. Nos. 155- 18 2 ¶ 4; 155-3 ¶¶ 4–12; 155-4 ¶¶ 3–4. The Court finds that proposed class counsel 19 and Plaintiffs have prosecuted this action vigorously on behalf of the class to date 20 and will continue to do so. 21 B. Rule 23(b)(3) 22 The Court also finds that the predominance and superiority requirements of Rule 23(b)(3) 23 are met: 24 • Predominance. The Court concludes that for purposes of settlement, common 25 questions predominate here because Plaintiffs and the settlement class members all 26 purchased the same products from Defendant and allegedly experienced and 27 reported the same defect. In addition, the Court at this stage need not analyze 1 prevent provisional class certification. See Hyundai II, 926 F.3d at 561–62 2 (holding that district courts do not need “to address choice-of-law issues beyond 3 those raised by objectors” before certifying a settlement class). 4 • Superiority. Especially given the relatively modest value of the individual claims 5 here, class action enables the most efficient use of Court and attorney resources and 6 reduces costs to the class members by allocating costs among them. Further, this 7 forum is appropriate, and there are no obvious difficulties in managing this class 8 action. 9 C. Class Representative and Class Counsel 10 Because the Court finds that the Plaintiffs meets the commonality, typicality, and adequacy 11 requirements of Rule 23(a), the Court appoints Plaintiffs as Class Representatives. When a court 12 certifies a class, it must also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B). Counsel have 13 investigated and litigated this case throughout its existence and have submitted declarations 14 detailing their expertise in representing plaintiffs in class action suits, especially product liability 15 and consumer class actions. Dkt. Nos. 155-2 ¶ 4; 155-3 ¶¶ 4–12; 155-4 ¶¶ 3–4. Accordingly, the 16 Court appoints Cunningham Bounds LLC, Morgan & Morgan Complex Litigation Group, and 17 Kilborn Law, LLC as Class Counsel. See Fed. R. Civ. P. 23(g)(1)(A) (listing factors courts must 18 consider when appointing class counsel). 19 III. PRELIMINARY SETTLEMENT APPROVAL 20 Finding that provisional class certification is appropriate, the Court considers whether it 21 should preliminarily approve the parties’ class action settlement. 22 A. Legal Standard 23 Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a 24 certified class—or a class proposed to be certified for purposes of settlement—may be settled . . . 25 only with the court’s approval.” Fed. R. Civ. P. 23(e). “The purpose of Rule 23(e) is to protect 26 the unnamed members of the class from unjust or unfair settlements affecting their rights.” In re 27 Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). Accordingly, before a district court 1 adequate and reasonable.” In re Heritage Bond Litig., 546 F.3d 667, 674–75 (9th Cir. 2008). 2 Where the parties reach a class action settlement prior to class certification, district courts 3 apply “a higher standard of fairness and a more probing inquiry than may normally be required 4 under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (quotations omitted). 5 Such settlement agreements “‘must withstand an even higher level of scrutiny for evidence of 6 collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing 7 the court’s approval as fair.’” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048–49 (9th Cir. 8 2019) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011)). A 9 more “exacting review is warranted to ensure that class representatives and their counsel do not 10 secure a disproportionate benefit at the expense of the unnamed plaintiffs who class counsel had a 11 duty to represent.” Id. (quotations omitted). 12 Courts may preliminarily approve a settlement and notice plan to the class if the proposed 13 settlement: (1) appears to be the product of serious, informed, non-collusive negotiations; (2) does 14 not grant improper preferential treatment to class representatives or other segments of the class; 15 (3) falls within the range of possible approval; and (4) has no obvious deficiencies. In re Lenovo 16 Adware Litig., No. 15-MD-02624-HSG, 2018 WL 6099948, at *7 (N.D. Cal. Nov. 21, 2018) 17 (citation omitted). Courts lack the authority, however, to “delete, modify or substitute certain 18 provisions. The settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026. 19 B. Analysis 20 i. Evidence of Conflicts and Signs of Collusion 21 The first factor the Court considers is whether there is evidence of collusion or other 22 conflicts of interest. See Roes, 944 F.3d at 1049. The Ninth Circuit has directed district courts to 23 look for “subtle signs of collusion,” which include whether counsel will receive a disproportionate 24 distribution of the settlement, whether the parties negotiate a “‘clear sailing’ arrangement (i.e., an 25 arrangement where defendant will not object to a certain fee request by class counsel),” and 26 whether the parties agree to a reverter that returns unclaimed funds to the defendant. Id. 27 Here, Plaintiffs’ motion for preliminary approval states that Plaintiffs’ counsel will request 1 appropriate amount of fees and awards at final approval, the Court finds that because this proposed 2 amount reflects the Ninth Circuit benchmark for an attorneys’ fees award, it is not so 3 disproportionate as to raise concerns, at least at the preliminary approval stage. See, e.g., In re 4 Bluetooth Headset, 654 F.3d at 942 (“[C]ourts typically calculate 25% of the fund as the 5 ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any 6 ‘special circumstances’ justifying a departure.”). Further, there is no clear sailing agreement: the 7 Settlement Agreement “entitles Class Counsel to apply for reasonable attorneys’ fees and 8 expenses” while reserving Defendant’s right to object to or oppose any such request. See SA § 9 G.2. And the proposed settlement is non-reversionary. See id. § B.9. The agreement provides 10 that any unclaimed funds remaining after the final distribution of the settlement fund, taking into 11 account any increased payments to class members up to $50 per Covered Device, will first be used 12 to pay unanticipated additional costs of settlement administration, and the remainder will be paid 13 to the cy pres recipient. See id. Finally, while Defendant may reject the settlement if the number 14 of exclusions from the settlement class exceeds a certain threshold agreed to by the parties, id. § 15 E.6, the Court reviewed this amount in camera and finds it reasonable at this stage. 16 ii. Preferential Treatment 17 The Court next considers whether the Settlement Agreement provides preferential 18 treatment to any class member. The Ninth Circuit has instructed that district courts must be 19 “particularly vigilant” for signs that counsel have allowed the “self-interests” of “certain class 20 members to infect negotiations.” In re Bluetooth, 654 F.3d at 947. For that reason, courts in this 21 district have consistently stated that preliminary approval of a class action settlement is 22 inappropriate where the proposed agreement “improperly grant[s] preferential treatment to class 23 representatives.” Lenovo, 2018 WL 6099948, at *8 (quotations omitted). 24 The Settlement Agreement authorizes Lead Plaintiff to apply for an incentive award of up 25 to $5,000 for his role in this lawsuit and authorizes each of the remaining Named Plaintiffs (ten in 26 total) to apply for awards up to $2,000. See SA § G.1. The Court will ultimately determine 27 whether any of these individuals are entitled to such an award and the reasonableness of the 1 done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the 2 action.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). Plaintiffs must 3 provide sufficient evidence to allow the Court to evaluate their awards “individually, using 4 ‘relevant factors includ[ing] the actions the plaintiff has taken to protect the interests of the class, 5 the degree to which the class has benefitted from those actions, . . . [and] the amount of time and 6 effort the plaintiff expended in pursuing the litigation . . . .’” Stanton v. Boeing Co., 327 F.3d 938, 7 977 (9th Cir. 2003). The Court will consider the evidence presented at the final fairness hearing 8 and evaluate the reasonableness of any incentive award request. Nevertheless, because incentive 9 awards are not per se unreasonable, the Court finds that this factor weighs in favor of preliminary 10 approval. See Rodriguez, 563 F.3d at 958 (finding that “[i]ncentive awards are fairly typical in 11 class action cases” and “are discretionary” (emphasis omitted)). 12 iii. Settlement within Range of Possible Approval 13 The third factor the Court considers is whether the settlement is within the range of 14 possible approval. To evaluate whether the settlement amount is adequate, “courts primarily 15 consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” Lenovo, 16 2018 WL 6099948, at *8. This requires the Court to evaluate the strength of Plaintiffs’ case. 17 As an initial matter, the Court notes that the claims alleged in the operative complaint are 18 broader than those released under the parties’ agreement. In their operative complaint, Plaintiffs 19 bring claims related to First Generation, Series 1 through Series 6, and Series SE Apple Watches. 20 Id. ¶ 2. However, the Settlement Agreement defines the Settlement Class as purchasers of First 21 Generation, Series 1, Series 2 or Series 3 watches only. SA at 1 ¶ 24. Plaintiffs’ counsel explains 22 that the parties narrowed the class definition after determining through discovery that the 23 incidence of symptoms associated with battery swell was significantly lower in later generations 24 of the Apple Watch. As a result, Defendant’s records reflect that a much smaller percentage of 25 owners of these later models reported battery swelling symptoms. Mot. at 24. As such, expanding 26 the class would not have meaningfully increased recovery to the class. Id. Further, given the 27 narrower definition of the class and the scope of the Release in the agreement, purchasers of the 1 See id.; SA § H.1. The Court finds this explanation reasonable in considering whether to grant 2 preliminary approval. 3 Plaintiffs’ motion for preliminary approval did not include an estimate of the potential 4 class recovery at trial, instead asserting generally that trial “carried considerable risk of a lesser 5 recovery or none at all.” See Dkt. 155 at 17. Plaintiffs’ supplemental brief now provides two 6 different analyses of the potential damages that could be recovered at trial. See Dkt. No. 161 7 at 3–4. First, Plaintiffs conducted a “choice-based conjoint” analysis, which they describe as a 8 calculation of “how much of a discount a consumer would have demanded if they had known a 9 feature they were promised was defective.” See id. at 3; see In Re Macbook Keyboard Litigation, 10 No. 5:18-CV-02813-EJD, 2021 WL 1250378, at *5 (N.D. Cal. Apr. 5, 2021) (“Choice-based 11 conjoint (‘CBC’) analysis is a well-recognized economic method used to study and quantify 12 consumer preferences.”). According to this analysis, consumers would have required a discount of 13 approximately $156 per unit had they known of the alleged defect. See id. However, Plaintiffs 14 maintain that because the analysis is based on results in a survey in which consumers are asked to 15 assume the defect was certain to occur, the final damages amount would be “far less” than $156 16 per class member after accounting for an unspecified “actual probability of occurrence.” See id. 17 at 3. 18 The other potential damages analysis Plaintiffs submit is based on a service cost of $79, 19 which is the amount that Apple Watch owners pay for service of battery issues if they are not 20 AppleCare+ subscribers. See Dkt. No. 161 at 3. Using this amount, the potential damages 21 recovery would be almost $50,000,000 if all of the 625,000 individuals who reported symptoms 22 potentially associated with battery swell paid $79 to Defendant. Id. at 3–4. But according to 23 Plaintiff, the actual total spent on service costs would be less because “[s]ome consumers” 24 received a free replacement watch or screen. Id. at 4. 25 Finally, Plaintiffs argue that continuing the litigation would pose “significant risks” to their 26 ability to certify the settlement class and prevail at trial because Defendant strongly denies liability 27 and would mount a rigorous defense to Plaintiffs’ claims. Mot. at 21, 24. Under the settlement, 1 SA § B.3. 2 Based on Plaintiffs’ submission, even without any further reductions that likely would 3 apply if the case proceeded, the settlement provides approximately 40% of the possible recovery 4 using the service costs model, or at least $20 and up to $50 of the $156 overpayment reflected in 5 the CBC analysis. Given the substantial risks that Plaintiffs identify if the case were to go 6 forward, the Court finds that the settlement amount is reasonable and weighs in favor of granting 7 preliminary approval. 8 iv. Obvious Deficiencies 9 The Court also considers whether there are obvious deficiencies in the Settlement 10 Agreement. The Court finds no obvious deficiencies, and therefore finds that this factor weighs in 11 favor of preliminary approval. 12 * * * 13 Having weighed the relevant factors, the Court preliminarily finds that the Settlement 14 Agreement is fair, reasonable, and adequate, and GRANTS preliminary approval. The Court 15 DIRECTS the parties to include both a joint proposed order and a joint proposed judgment when 16 submitting their motion for final approval. The proposed order should thoroughly address all of 17 the topics set forth in the Northern District’s Procedural Guidance for Class Action Settlements.2 18 The parties should also review this Court’s recent orders granting final approval of class action 19 settlements and draft their proposed order accordingly.3 20 // 21 // 22 // 23 // 24

25 2 See N.D. Cal. Procedural Guidance for Class Action Settlements, https://www.cand.uscourts.gov/forms/procedural-guidance-for-class-action-settlements/ (updated 26 Sept. 5, 2024).

27 3 See, e.g., Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2023 WL 2250264 1 IV. PROPOSED CLASS NOTICE PLAN 2 For Rule 23(b)(3) class actions, “the court must direct to the class members the best notice 3 that is practicable under the circumstances, including individual notice to all members who can be 4 identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Individual notice must be sent 5 to all class members “whose names and addresses may be ascertained through reasonable effort.” 6 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). District courts have “broad power and 7 discretion vested in them by [Rule 23]” in determining the contours of appropriate class notice. 8 See Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979). 9 With respect to the content of the notice itself, the notice must clearly and concisely state 10 in plain, easily understood language: 11 (i) the nature of the action; (ii) the definition of the class certified; 12 (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if 13 the member so desires; (v) that the court will exclude from the class any member who requests 14 exclusion; (vi) the time and manner for requesting exclusion; and 15 (vii) the binding effect of a class judgment on members[.] 16 Fed. R. Civ. P. 23(c)(2)(B). 17 The parties have agreed that a third-party settlement administrator, Angeion Group, will 18 send the class notice. SA § F.1. Defendant will provide the Settlement Administrator will the 19 names and last known mailing and/or email addresses for class members. Id. at § F.3. The 20 Settlement Administrator will then send the class notice via email to class members for whom 21 Defendant provided an email address, and via direct mail postcard for members for whom 22 Defendant provided a physical address, but not an email address. Id. at § F.4. Before sending the 23 postcard notice, the Settlement Administrator will update physical addresses with the National 24 Change of Address database, and any postcard notices returned as undeliverable will be re-mailed 25 to a forwarding address. Id. at § F.5.d. In the event that this email and postcard notice process 26 reaches less than 90% of the class, the Settlement Administrator will provide supplemental direct 27 mail notice to class members whose emails returned a hard bounce back and for whom a mailing 1 Finally, the Settlement Administrator will also maintain a website that will include the class 2 notice, publicly filed papers related to the case, and additional information, and will establish a 3 toll-free phone number that class members can contact. Id. at § F.5.a–b. 4 The Court finds that the proposed notice process is “reasonably calculated, under all the 5 circumstances, to apprise all class members of the proposed settlement.” Roes, 944 F.3d at 1045 6 (quotation omitted). 7 As to the substance of the notice, the parties have attached a copy of the full proposed class 8 notice to the Settlement Agreement. See Dkt. No. 155-1, Ex. C.4 This notice will be posted on the 9 settlement website. Id. at § F.5.a. The parties have also provided copies of the proposed email 10 notice, see id., Ex. A, and proposed postcard notice, see id., Ex. B. All of the notices explain the 11 nature of the action and claims, define the class, and inform class members about what payment 12 they will receive and how to opt out of or object to the Settlement Agreement. See id. 13 However, only the full class notice informs class members that they may object to the 14 motion for attorneys’ fees and motion for incentive awards; the email and postcard notices do not 15 include this information, and instead only generally state that class member make “exclude 16 [themselves] or object.” See Dkt. No. 155-1, Ex. A, at 22; Ex. B, at 25. To better enable class 17 members to understand that they may specifically object to these motions in addition to the 18 proposed settlement, Class Counsel shall include language in the email and postcard notice: 19 (1) specifically stating that class members may object to the attorneys’ fees motion and request for 20 Plaintiffs’ incentive awards; (2) specifically stating the deadlines for filing these motions and for 21 any class member objections to them; and (3) informing class members how to access the motions 22 and supporting materials. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 993–94 23 (9th Cir. 2010) (holding that under Rule 23(h), class members must be given a full and fair 24 opportunity to examine and object to attorneys’ fees motion). 25

26 4 The Settlement Agreement indicates that the full notice is attached as Exhibit A to the Settlement Agreement, Dkt. No. 155-1, the email notice is attached as Exhibit B, and the postcard notice is 27 attached as Exhibit C. See SA at 1 ¶ 12; id. § F.5.c, d. But based on the content of the notices, it 1 In addition, one statement in the proposed full class notice, Dkt. No. 155-1, Ex. C, 2 contradicts Plaintiffs’ representations in the motion for preliminary approval. The full class notice 3 states that “Class Counsel may ask the Court for an award of attorneys’ fees of up to 30% of the 4 Settlement Fund, litigation expenses, and service awards to the Class Representatives of up to 5 $5,000 each.” Id. at 34. But the motion indicates that Plaintiffs’ counsel “will apply for no more 6 than $5,000,000 in attorneys’ fees, plus costs and expenses,” or 25% of the $20 million settlement 7 fund (not 30%). Mot. at 14. Further, according to the motion (and the Settlement Agreement), 8 counsel will request up to $5,000 for the Lead Plaintiff, but only up to $2,000 for each of the 9 remaining Named Plaintiffs. Id.; SA § G.1. Class counsel must conform the language in the full 10 class notice to correct these inconsistencies and accurately reflect the amount of attorneys’ fees 11 and awards Plaintiffs’ counsel may request. 12 The Court finds that with these changes, the content of the proposed notice provides 13 sufficient information about the case and thus conforms with due process requirements. See 14 Hyundai II, 926 F.3d at 567 (“Notice is satisfactory if it generally describes the terms of the 15 settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come 16 forward and be heard.” (quotation omitted)). 17 V. CONCLUSION 18 The Court GRANTS the motion for preliminary approval. Dkt. No. 155. The parties are 19 DIRECTED to meet and confer and stipulate to a schedule of dates for each event listed below, 20 which shall be submitted to the Court within seven days of the date of this Order. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 5 Deadline for Settlement Administrator to mail 3 notice to all putative Class Members Filing deadline for attorneys’ fees andcosts motion | = ti‘s;sSsCSY 4 Filing deadline for incentive payment motion PO Deadline for Class Members to opt-out or object to 5 settlement and/or application for attorneys’ fees and 6 costs and incentive payment, at least 45 days after the filing of the motion for attorneys’ fees and 7 incentive payments Filing deadline for final approval motion PO 8 Final fairness hearing and hearing on motions PO 9 10 || The parties are further DIRECTED to implement the proposed class notice plan with the edits 11 || identified above. qa 12 IT IS SO ORDERED.

13 || Dated: October 25, 2024

4 . □ HAYWOOD S. GILLIAM, JR. United States District Judge Q 16

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