Steinberg v. CoreLogic Credco, LLC

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARLENE STEINBERG, Case No.: 3:22-cv-00498-H-SBC

11 Plaintiff, ORDER: 12 v. (1) CERTIFYING SETTLEMENT 13 CORELOGIC CREDCO, LLC, CLASS; 14 Defendant. (2) GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR FINAL 15 APPROVAL OF CLASS ACTION 16 SETTLEMENT; and (3) GRANTING PLAINTIFF’S 17 UNOPPOSED MOTION FOR 18 ATTORNEYS’ FEES, COSTS, AND CLASS REPRESENTATIVE 19 INCENTIVE AWARD 20 [Doc. Nos. 54, 55.] 21

22 23 On December 15, 2023, Plaintiff Marlene Steinberg (“Plaintiff”) filed unopposed 24 motions for final approval of class action settlement and for attorneys’ fees, costs, and class 25 representative incentive award. (Doc. Nos. 54, 55.) On April 8, 2024, the Court held a 26 final approval hearing on the matter. Sophia Marie Rios appeared on behalf of Plaintiff. 27 Timothy James St. George appeared on behalf of Defendant CoreLogic Credco, LLC 28 (“Defendant”). No class member filed an objection and no objectors appeared at the 1 hearing. For the reasons below, the Court grants Plaintiff’s motion for final approval of 2 class action settlement, and approves Plaintiff’s request for attorneys’ fees, costs, and class 3 representative incentive award. 4 BACKGROUND 5 I. FACTUAL AND PROCEDURAL BACKGROUND 6 This is a class action for alleged violations of the Fair Credit Reporting Act 7 (“FCRA”), 15 U.S.C. §§ 1681, et seq. (Doc. No. 1-2, Compl.) Plaintiff alleges that 8 Defendant negligently and willfully violated the FCRA by failing to maintain reasonable 9 procedures to assure the maximum possible accuracy in the preparation of the credit reports 10 it resold regarding the settlement class members, in violation of 15 U.S.C. § 1681e(b). (Id. 11 ¶¶ 72–82.) Specifically, Plaintiff alleges that Defendant resold inaccurate information 12 from one or more of the nationwide consumer reporting agencies (“CRAs”) where the 13 consumer report contained a notation that the consumer was deceased and where either one 14 or two of the CRAs also provided information to Defendant that did not include a notation 15 that the consumer was deceased. (Id.) Plaintiff further alleges that Defendant made no 16 effort to determine whether the consumer was in fact deceased prior to publishing the 17 consumer report. (Id. ¶ 59.) As a result of Defendant’s conduct, Plaintiff alleges that she 18 has suffered concrete financial and pecuniary harm arising from monetary losses relating 19 to credit denials, loss of use of funds, loss of credit and loan opportunities, out-of-pocket 20 expenses, and other related costs. (Id. ¶ 62.) Further, Plaintiff alleges that she has suffered 21 concrete harm in the form of financial and dignitary harm arising from the injury to credit 22 rating and reputation. (Id. ¶ 63.) 23 On February 24, 2022, Plaintiff filed a class action complaint in the Superior Court 24 of California, County of San Diego against Defendant. (See Compl.) On April 12, 2022, 25 Defendant removed this action from the Superior Court of California, County of San Diego 26 to this Court. (Doc. No. 1.) On May 23, 2022, Defendant answered the complaint. (Doc. 27 No. 8.) On August 25, 2022, the parties participated in an Early Neutral Evaluation 28 Conference before the Magistrate Judge. (Doc. No. 24.) The parties did not reach a 1 settlement agreement. (Id.) Following the conference, the parties engaged in discovery 2 efforts, including producing documents and exchanging written discovery requests and 3 responses. (Doc. No. 46 at 8; Doc. No. 55 at 8.) During this time, the parties also 4 conducted multiple meet and confers, both telephonically and through written 5 correspondence. (Id.) 6 In January 2023, the parties attended a full-day mediation with a private mediator. 7 (Id.) The parties exchanged mediation statements beforehand. (Id.) While a settlement 8 was not reached during this mediation, the parties made significant progress. (Id.) The 9 parties continued to engage in settlement negotiations during February and March 2023, 10 ending with a draft term sheet. (Id.) The parties then worked to finalize the resolution in 11 a formal settlement agreement. (Id.) 12 On August 25, 2023, Plaintiff filed an unopposed motion requesting that the Court 13 grant preliminary approval of the proposed class action settlement, certify the settlement 14 class for settlement purposes, direct notice to the settlement class, and schedule a hearing 15 for final fairness review. (Doc. No. 46.) On October 2, 2023, the Court issued an 16 order: (1) certifying the class for settlement purposes; (2) preliminarily approving the class 17 settlement; (3) appointing the class representative, class counsel, and the settlement 18 administrator; (4) approving class notice; and (5) scheduling the final approval hearing. 19 (Doc. No. 49.) The Court appointed Plaintiff as class representative, Berger Montague PC 20 and Kelly Guzo, PLC as class counsel, and JND Legal Administration as the settlement 21 administrator. (Id. at 9–10, 17.) 22 On October 3, 2023, Plaintiff filed a notice of revised settlement class notices. (Doc. 23 No. 50.) Specifically, the revised notices alerted class members of the possibility that the 24 final approval hearing may be held telephonically and directed the class members to the 25 settlement class website for further information. (Id., Exs. B, C, F.) On October 4, 2024, 26 the Court approved the revised class notices. (Doc. No. 52.) 27 On December 15, 2023, Plaintiff filed the present unopposed motions for final 28 approval of class action settlement and for attorneys’ fees, costs, and class representative 1 incentive award. (Doc. Nos. 54, 55.) On February 12, 2024, the Court ordered the parties 2 to file supplemental briefing on the parties’ proposed cy pres distributions. (Doc. No. 58.) 3 On March 1, 2024, Plaintiff filed unopposed supplemental briefing on the issue. (Doc. 4 No. 60.) 5 II. SETTLEMENT AGREEMENT 6 On August 25, 2023, the parties finalized the settlement agreement. (Doc. No. 46-2, 7 Settlement Agreement (“SA”).) The settlement class is defined as: 8 all persons residing in the United States of America (including its territories and Puerto Rico) who were subject: (1) of a consumer report resold by 9 Defendant to a third party within the time period of January 1, 2021 and 10 continuing through May 2, 2023, (2) where the consumer report contained a notation that the consumer was deceased, and (3) either one or two of the 11 nationwide consumer reporting agencies (Experian, Trans Union and Equifax) 12 provided information to Defendant that did not include a deceased notation. 13 (Id. at 7, ¶ 2.22.) Excluded from the class are “counsel of record (and their respective law 14 firms) for any of the Parties, employees of Defendants, and employees of the Federal 15 judiciary.” (Id.) The parties identified approximately 26,833 settlement class members at 16 issue. (Doc. No. 55 at 9.) 17 Under the proposed settlement agreement, Defendant will pay the settlement amount 18 of $5,695,000. (SA at 14, ¶ 4.3.1.) Defendant will also be required to improve its reporting 19 practices to more clearly state that: (1) the data it is reporting is precisely the data it received 20 from the CRAs; and (2) Defendant cannot evaluate its content. (Id. at 16–17, 21 ¶¶ 4.3.2.1–4.3.2.2.) Moreover, Defendant will be required to further identify to recipients 22 of the information how to contact Defendant if they believe the information being resold 23 by Defendant is inaccurate or incomplete. (Id.) Defendant continues to deny any 24 wrongdoing and the settlement agreement does not constitute an admission or concession 25 of liability, wrongdoing, or the lack of merit of any defense or Rule 23 argument by 26 Defendant. (Id. at 3–4.). The proposed settlement agreement dismisses Defendant with 27 prejudice and releases Defendant from all claims arising from the settlement class. (Id. 28 at 4, 18–20, ¶¶ 4.4.1–4.4.4.) 1 Settlement class members will each receive pro rata payments from the fund. (Id. 2 at 14, ¶ 4.3.1.1.) Settlement class members receive their payment by either: (1) qualifying 3 as an automatic payment settlement class member; or (2) submitting a claims form either 4 by mail or via the settlement website. (Id. at 14–15, ¶¶ 4.3.1.1, 4.3.1.3.) Settlement class 5 members meet the automatic payment requirements if: (1) the settlement class member was 6 the subject of a consumer report resold by Defendant to a third party during the settlement 7 class period that included information from at least one CRA, but not all of the reporting 8 CRAs, where the score segment of the report indicated that the consumer was deceased; 9 and (2) that the CRA’s report does not contain a deceased notation within a tradeline. (Id. 10 at 14–15, ¶ 4.3.1.2.) The remaining settlement class members include members who have 11 at least one report with a tradeline stating they are deceased, but who also have reports 12 from at least one other CRA that does not contain such tradeline. (Id. at 15–16, ¶ 4.3.1.3.) 13 Approximately 4,622 class members will receive automatic payments. (Doc. No. 55 at 9; 14 see SA at 14–15, ¶ 4.3.1.2.) Class members who are entitled to an automatic payment and 15 class members who make claims will all receive equal payments from the fund. (SA 16 at 27–28, ¶ 5.3.1.) The amount of money each class member will receive is dependent 17 upon the total number of claims filed. (Doc. No. 55 at 10.) 18 Under the terms of the proposed settlement agreement, any settlement checks that 19 are not cashed, or funds remaining as a result of checks that were undeliverable, will be 20 evenly donated to the Homeownership Preservation Foundation and Habitat for Humanity 21 as cy pres recipients, but cannot be used for purposes of litigation. (SA at 28, ¶ 5.3.1.) No 22 portion of the settlement fund will revert to Defendant under any circumstance. (Id.) 23 Class counsel is requesting $1,423,750, or 25% of the settlement fund, in attorneys’ 24 fees; $16,995.49 in reimbursement for documented out-of-pocket expenses; $118,000 in 25 settlement administration costs; and $7,500 as an incentive payment to the class 26 representative. (Doc. No. 54 at 7, 9–10; see SA at 26, ¶ 5.3.) 27 / / / 28 / / / 1 III. CLASS NOTICE 2 On August 25, 2023, Defendant provided the settlement administrator with a mailing 3 list containing the names, mailing addresses, dates of birth, and social security numbers 4 for 26,876 potential class members. (Doc. No. 55-1, Declaration of Ryan Bahry (“Bahry 5 Decl.”) ¶ 6.) Defendant also provided the settlement administrator with information 6 indicating which class members should receive an automatic payment as opposed to those 7 required to file a claim form to participate. (Id.) On August 29, 2023, the settlement 8 administrator received a supplemental mailing list containing the same information for an 9 additional 138 potential class members, all of whom would need to file a claim form to 10 participate. (Id.) After receiving the mailing lists, the settlement administrator processed 11 and updated the class member contact information using the National Change of Address 12 Database. (Id. ¶ 7.) 13 On September 1, 2023, pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715, 14 Defendant served upon the appropriate federal and state officials a notice of the proposed 15 settlement of this action. (Id. ¶¶ 4–5; Ex. A to Bahry Decl.) 16 On November 1, 2023, the settlement administrator activated the settlement website 17 and a toll-free telephone line for class members with questions. (Id. ¶¶ 16, 18.) As of 18 December 12, 2023, the settlement website tracked 1,716 unique users with 5,826 page 19 views, and the toll-free number received 459 incoming calls. (Id.) 20 On November 6, 2023, the settlement administrator mailed notices via USPS 21 first-class mail to all 26,833 class members, along with a claim form where applicable. (Id. 22 ¶ 11.) That same day, the settlement administrator e-mailed notice to 26,124 available 23 e-mail addresses associated to a total of 13,382 class members, along with a claim form 24 where applicable. (Id. ¶ 8.) 25 As of December 12, 2023, the settlement administrator tracked 2,556 mailed notices 26 that were returned as undeliverable. (Id. ¶ 12.) Of those 2,556 undeliverable notices, 393 27 were re-mailed to forwarding addresses provided by USPS. (Id.) For the remaining 28 undeliverable notices, the settlement administrator conducted additional research and 1 received updated information for 851 class members. (Id.) The settlement administrator 2 re-mailed notices to 851 of those class members, of which thirty-four were returned as 3 undeliverable. (Id.) Twelve of those thirty-four undeliverable notices were re-mailed to 4 forwarding addresses provided by USPS. (Id.) Additionally, as of December 12, 2023, 5 the settlement administrator tracked 1,243 class members whose e-mail notice attempts 6 were unsuccessful. (Id. ¶ 10.) 7 On December 6, 2023, the settlement administrator sent a reminder notice to those 8 class members in the claim form group who had not yet returned a claim form. (Id. ¶¶ 14, 9 15.) As of December 12, 2023, 25,944 class members were mailed or e-mailed a notice 10 that was not returned as undeliverable, representing 96.7% of the total class. (Id. ¶ 13.) 11 As of February 12, 2024, the settlement administrator has received three timely 12 requests for exclusions from class members and one timely request for exclusion from a 13 non-class member. (Doc. No. 57-1, Supplemental Declaration of Ryan Bahry (“Bahry 14 Supp. Decl.”) ¶ 5.) Further, as of February 12, 2024, the settlement administrator has not 15 received, and is not aware of, any objections to the settlement. (Id. ¶ 7.) Additionally, as 16 of February 12, 2024, the settlement administrator has received 4,910 eligible claim forms 17 submitted by class members. (Id. ¶ 10.) 18 DISCUSSION 19 I. FINAL CERTIFICATION OF SETTLEMENT CLASS 20 The Court previously found that all the requirements of Federal Rules of Civil 21 Procedure 23(a) and 23(b)(3) had been met in its order certifying the class. (Doc. No. 49.) 22 Given that no substantive issues concerning class certification have been raised since the 23 Court granted preliminary approval of the settlement class, the Court incorporates its prior 24 analysis by reference, (id. at 5–9), and finds that final class certification for settlement is 25 appropriate. 26 The Court certifies the following as the class members: all persons residing in the 27 United States of America, including its territories and Puerto Rico, who were the 28 subject: (1) “of a consumer report resold by Defendant to a third party within the time 1 period of January 1, 2021 and continuing through May 2, 2023”; (2) “where the consumer 2 report contained a notation that the consumer was deceased”; and (3) “either one or two of 3 the nationwide consumer reporting agencies (Experian, Trans Union and Equifax)

4 provided information to Defendant that did not include a deceased notation.” (SA at 7, 5 ¶ 2.22.) Excluded from the class are “counsel of record (and their respective law firms) 6 for any of the Parties, employees of Defendants, and employees of the Federal judiciary.” 7 (Id.) 8 II. FINAL APPROVAL OF CLASS ACTION SETTLEMENT 9 District courts must approve class action settlements. Fed. R. Civ. P. 23(e). 10 Specifically, Federal Rule of Civil Procedure 23(e)(1)–(5) requires a district court 11 to: (1) ensure notice is sent to all class members; (2) hold a hearing and make a finding that 12 the settlement is fair, reasonable, and adequate; (3) confirm that the parties seeking 13 approval file a statement identifying the settlement agreement; and (4) be shown that class 14 members were given an opportunity to object. Fed. R. Civ. P. 23(e)(1)–(5). Class counsel 15 filed the proposed settlement agreement on August 25, 2023, (Doc. No. 46-2), and class 16 members were given an opportunity to object on or before January 5, 2024. (Bahry Decl. 17 ¶ 22.) The Court did not receive any objections to the proposed settlement agreement. 18 Following the final fairness hearing, the Court evaluates the adequacy of notice and 19 conducts its final review of the settlement. 20 A. Adequacy of Notice 21 Adequate notice of the class settlement must be provided under Federal Rule of Civil 22 Procedure 23(e). “While Rule 23 requires that ‘reasonable effort’ be made to reach all 23 class members, it does not require that each individual actually receive notice.” Winans v. 24 Emeritus Corp., No. 13-cv-03962-HSG, 2016 WL 107574, at *3 (N.D. Cal. Jan. 11, 2016); 25 see also Silber v. Mabon, 18 F.3d 1449, 1453–54 (9th Cir. 1994) (explaining that the 26 district court need not ensure all class members receive actual notice, only that “the best 27 practicable notice” is given). 28 The Court previously reviewed the content of the class notice, the method for 1 providing notice, and the procedure for class members to opt out or object at the 2 preliminary approval stage and found each to be satisfactory under Rule 23(c)(2)(B) and 3 Rule 23(c)(3). (Doc. No. 49 at 14–16; Doc. No. 52 at 2.) On August 25 and 29, 2023, the 4 settlement administrator received the list of names and contact information for the unique 5 class members from Defendant. (Bahry Decl. ¶ 6.) Defendant also provided the settlement 6 administrator with information indicating which class members should receive an 7 automatic payment as opposed to those required to file a claim form to participate. (Id.) 8 On November 6, 2023, after processing and updating the class member list using the 9 National Change of Address Database, the settlement administrator mailed the class notice 10 via USPS first-class mail to all 26,833 class members, along with a claim form where 11 applicable. (Id. ¶ 7, 11.) That same day, the settlement administrator e-mailed notice 12 to 26,124 available e-mail addresses associated to a total of 13,382 class members, along 13 with a claim form where applicable. (Id. ¶ 8.) The class notice informed class members 14 of the January 5, 2024, deadline for class members to submit a request for exclusion or 15 object to the settlement. (Id. ¶ 22.) On December 6, 2023, the settlement administrator 16 sent a reminder notice to those who were in the claim form group and had not yet returned 17 a claim form. (Id. ¶¶ 14, 15.) The settlement administrator represents that 25,944 class 18 members were mailed or e-mailed a notice that was not returned as undeliverable, 19 representing 96.7% of the total class. (Id. ¶ 13.) The settlement administrator established 20 a toll-free telephone number where class members could call the settlement administrator 21 and make inquiries regarding the settlement. (Id. ¶ 18.) As of February 12, 2024, the 22 settlement administrator has received three timely requests for exclusions from class 23 members and one timely request for exclusion from a non-class member. (Bahry Supp. 24 Decl. ¶ 5.) Further, as of February 12, 2024, the settlement administrator has not received, 25 and is not aware of, any objections to the settlement. (Id. ¶ 7.) Additionally, as of 26 February 12, 2024, the settlement administrator has received 4,910 eligible claim forms 27 submitted by class members. (Id. ¶ 10.) 28 Given the above, the Court finds that the settlement administrator provided adequate 1 notice per the Court’s order, (Doc. No. 49), and satisfied Rule 23(e). 2 B. Final Fairness Determination 3 A proposed class settlement can only be approved if “it is fair, reasonable, and 4 adequate.” Fed. R. Civ. P. 23(e)(2). In making this determination, district courts in the 5 Ninth Circuit consider several factors, including: “(1) the strength of the plaintiff’s case; 6 (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of 7 maintaining class action status throughout the trial; (4) the amount offered in settlement; 8 (5) the extent of discovery completed and the stage of the proceedings; (6) the experience 9 and views of counsel; (7) the presence of a governmental participant; and (8) the reaction 10 of class members to the proposed settlement.” Staton v. Boeing Co., 327 F.3d 938, 959 11 (9th Cir. 2003) (quotations omitted). A proposed settlement must additionally meet the 12 factors enumerated in Federal Rule of Civil Procedure 23(e)(2)(A)–(D). 13 “In deciding whether to approve a proposed settlement, the Ninth Circuit has a 14 ‘strong judicial policy that favors settlements, particularly where complex class action 15 litigation is concerned.’” In re Heritage Bond Litigation, No. 2-ML-01475 DT, 2005 16 WL 1594403, at *2 (C.D. Cal. June 10, 2005) (quoting Class Plaintiffs v. City of Seattle, 17 955 F.2d 1268, 1276 (9th Cir. 1991)); see also Rodriguez v. W. Publ’g Corp., 563 F.3d 18 948, 965 (9th Cir. 2009) (“This circuit has long deferred to the private consensual decision 19 of the parties.”). Further, the Ninth Circuit favors deference “to the private consensual 20 decision of the [settling] parties,” particularly when the parties are represented by 21 experienced counsel. Rodriguez, 563 F.3d at 965. Nevertheless, when “class counsel 22 negotiates a settlement agreement before the class is even certified,” settlement approval 23 “requires a higher standard of fairness and a more probing inquiry than may normally be 24 required under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) 25 (quotation marks and citations omitted). As such, courts must also scrutinize proposed 26 settlements for “evidence of collusion or other conflicts of interest.” In re Bluetooth 27 Headset Prods. Liab. Litig., 654 F.3d 935, 946–47 (9th Cir. 2011). 28 / / / 1 1. The Strength of Plaintiff’s Case and the Risk of Further Litigation 2 Both parties have expended significant time, effort, and resources supporting their 3 positions, and they would continue to do so if the settlement failed to receive final approval. 4 Class counsel represents that while Plaintiff’s claims are meritorious, continuing to litigate 5 the case would pose significant risks for the class and the class members’ meaningful relief 6 under the proposed settlement agreement. (Doc. No. 55 at 13–14.) In particular, class 7 counsel considered the risks associated with the issue of willfulness. (Id.) The FCRA is 8 not a strict liability statute. Rather, a plaintiff can recover under the FCRA only when the 9 defendant has acted negligently or willfully. 15 U.S.C. § 1681. When the defendant’s 10 violation was at most negligent, recovery is limited to actual damages. See 15 U.S.C. 11 §§ 1681n(a)(1); 1681o(a)(1). Therefore, in order to obtain monetary recovery that is 12 certain for all class members, Plaintiff would be required to prove that not only Defendant 13 violated the FCRA, but that Defendant did so willfully. See id. Further, the issue of 14 willfulness is often a question for the jury. See Guimond v. Trans Union Credit Info. Co., 15 45 F.3d 1329, 1333 (9th Cir. 1995) (“The reasonableness of the procedures and whether 16 the agency followed them will be jury questions in the overwhelming majority of cases.”). 17 These considerations led class counsel to conclude that a timely settlement would be best 18 for everyone involved. (Doc. No. 55 at 13–14); see Linney v. Cellular Alaska P’ship, 151 19 F.3d 1234, 1242 (9th Cir. 1998) (“[I]t is the very uncertainty of outcome in litigation and 20 avoidance of wasteful and expensive litigation that induce consensual settlement.” (internal 21 quotation marks and citation omitted)). The Court concludes that the strength of the 22 parties’ positions as well as the risk of further litigation weigh in favor of approving the 23 settlement. 24 2. The Settlement Amount 25 In determining whether a settlement agreement is substantively fair to the class, 26 courts must balance the value of the plaintiffs’ expected recovery against the value of the 27 settlement offer. In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. 28 Cal. 2007). The Ninth Circuit has explained that “the proposed settlement is ‘not to be 1 judged against a hypothetical or speculative measure of what might have been achieved by 2 the negotiators.’” Martinez v. Semi-Tropic Coop. Gin & Almond Huller, Inc., No. 19-cv- 3 01581-JLT-CDB, 2023 WL 3569906, at *14 (E.D. Cal. May 19, 2023) (emphasis removed) 4 (quoting Officers for Just. v. Civ. Serv. Comm’n of City & Cnty. of San Francisco, 688 5 F.2d 615, 625 (9th Cir. 1982) (citations omitted)). 6 Here, the proposed settlement agreement provides for a settlement fund 7 of $5,695,000. (SA at 14, ¶ 4.3.1.) Plaintiff sought statutory damages under the FCRA, 8 which provides for damages of between $100 and $1,000 for each willful violation. (See 9 Compl. at 14); 15 U.S.C. § 1681n(a)(1). Class counsel represents that the estimated net 10 recovery is approximately $606 per eligible class member, which is over the mid-point of 11 the range of statutory recovery. (Doc. No. 55 at 15.) The recovery that each settlement 12 class member is estimated to receive is also in line with other approved FCRA class action 13 settlements. See, e.g., In re Toys R Us-Delaware, Inc.–Fair & Accurate Credit 14 Transactions Act (FACTA) Litig., 295 F.R.D. 438, 453–4 (C.D. Cal. 2014) (“A $5 or $30 15 award, therefore, represents 5% to 30% of the recovery that might have been obtained. 16 This is not a de minimis amount. Given the likelihood that plaintiffs would have been 17 unable to prove actual damages and the risk that they would have been unable to prove 18 willfulness and recover any damages at all, the court finds that the amount of the settlement 19 weighs in favor of approval.”). Further, the proposed settlement agreement provides for 20 non-monetary relief, including changes to Defendant’s practices and policies relating to 21 deceased indicator reporting. See Patel v. Trans Union, LLC, No. 14-cv-00522-LB, 2018 22 WL 1258194, at *6 (N.D. Cal. March 11, 2018) (“When determining the value of a 23 settlement, courts consider the monetary and non-monetary benefits that the settlement 24 confers.” (citations omitted)). 25 This settlement is a good result for the class and eliminates the risks, expenses, and 26 delay associated with continued litigation. Moreover, the settlement amount is the result 27 of arm’s length negotiation conducted by experienced counsel and an experienced 28 mediator. Accordingly, the Court concludes that the amount offered in settlement weighs 1 in favor of granting final approval of the settlement. 2 3. The Extent of Discovery Completed and the Stage of the Proceedings 3 Prior to reaching the settlement agreement, the parties engaged in informal and 4 formal discovery. (Doc. No. 46 at 8; Doc. No. 55 at 8.) During that time, Defendant 5 produced and Plaintiff reviewed over 5,000 pages of documents regarding the credit reports 6 at issue in the case, including exemplar report data. (Id.) On August 25, 2022, the parties 7 participated in an Early Neutral Evaluation Conference before the Magistrate Judge. (Doc. 8 No. 24.) In January 2023, Plaintiff represents that the parties engaged in a full-day 9 mediation with a private mediator. (Doc. No. 46 at 8; Doc. No. 55 at 8.) While a settlement 10 was not reached during this mediation, the parties did make significant progress. (Id.) The 11 parties continued to engage in settlement negotiations during February and March 2023, 12 ending with a draft term sheet. (Id.) The parties then worked to finalize the resolution in 13 a formal settlement agreement. (Id.) Considering this history, the record supports the 14 conclusion that the parties conducted sufficient discovery to allow them to make an 15 informed decision to settle this case. Yanez v. HL Welding, Inc., No. 20-cv-01789-MDD, 16 2021 WL 3054986, at *7 (S.D. Cal. July 20, 2021) (“The use of an experienced private 17 mediator and presence of discovery supports the conclusion that Plaintiffs were armed with 18 sufficient information about the case to broker a fair settlement.” (internal quotations 19 omitted)); Ontiveros v. Zamora, 303 F.R.D. 356, 371 (E.D. Cal. 2014) (“[T]he parties’ 20 apparent careful investigation of the claims and their resolution in consideration of the 21 views of a third party mediator weigh in favor of settlement.”). 22 4. The Experience and Views of Counsel 23 Class counsel are experienced and skilled in consumer class actions and have 24 significant prior experience in litigating FCRA cases. (See Doc. Nos. 46-1, 46-5.) Class 25 counsel have a good understanding of the issues and have actively litigated this case 26 through informal and formal discovery, mediation, and settlement negotiations. (Id.) 27 Further, class counsel recommends the settlement as fair, reasonable, adequate, and in the 28 best interests of the class. (See Doc. No. 55 at 18.) Class counsel’s expertise and sound 1 support of the settlement weighs in favor of granting final approval. See In re Immune 2 Resp. Sec. Litig., 497 F. Supp. 2d 1166, 1174 (S.D. Cal. 2007) (The parties’ “negotiation 3 and adoption of the settlement terms, based on their familiarity with the law in this practice 4 area and the strengths and weaknesses of their respective positions, suggests the 5 reasonableness of the settlement. This factor clearly favors settlement.”); see also Blount 6 v. Host Healthcare, Inc., No. 21-cv-00310-MMA, 2022 WL 1094616, at *3 (S.D. Cal. 7 April 12, 2022) (“Great weight is accorded to the recommendation of counsel,” because 8 “parties represented by competent counsel are better positioned than the courts to produce 9 a settlement that fairly reflects each party’s expected outcome in the litigation” (citations 10 and internal quotations omitted)). 11 5. The Reaction of the Class Members to the Proposed Settlement 12 The parties identified approximately 26,833 class members. (Doc. No. 55 at 9.) As 13 of February 12, 2024, the settlement administrator has received three timely requests for 14 exclusions from class members and one timely request for exclusion from a non-class 15 member. (Bahry Supp. Decl. ¶ 5.) Further, as of February 12, 2024, the settlement 16 administrator has not received, and is not aware of, any objections to the settlement. (Id. 17 ¶ 7.) The complete lack of objections and minimal exclusions indicates the adequacy of 18 the settlement. See Benitez v. W. Milling, LLC, No. 18-cv-01484-SKO, 2020 19 WL 3412725, at *7 (E.D. Cal. June 22, 2020) (“[I]t is established that the absence of a 20 large number of objections to a proposed class action settlement raises a strong 21 presumption that the terms of a proposed class settlement action are favorable to the class 22 members.” (citation omitted)). 23 Moreover, as of February 12, 2024, 4,910 eligible claim forms have been received 24 from class members, for a claims rate well over 10%. (Bahry Supp. Decl. ¶ 10.) This is in 25 line with other approved class action settlements in this Circuit. See e.g., Shames v. Hertz 26 Corp., No. 07-cv-02174-MMA, 2012 WL 5392159, at *14 (S.D. Cal. Nov. 5, 2012) 27 (granting final approval of settlement with 4.9% claims rate); Zepeda v. PayPal, Inc., 28 No. 10-cv-02500-SBA, 2017 WL 1113293, at *15–*16 (N.D. Cal. March 24, 2017) 1 (finding in consumer protection case that a 2.8% claims rate indicated that the email “notice 2 process has been remarkably successful—and the Settlement Class’s reaction to the 3 Settlement has been overwhelmingly positive”); Couser v. Comenity Bank, 125 F. 4 Supp. 3d 1034, 1044 (S.D. Cal. 2015) (claims rate in consumer class action of 7.7% was 5 “higher than average”); Rael v. Children’s Place, Inc., No. 16-cv-00370-GPC, 2020 6 WL 434482, at *9 (S.D. Cal. Jan. 28, 2020) (noting “consumer class actions tend to result 7 in claims rates in the low single digits” and gathering cases in support); Tait v. BSH Home 8 Appliances Corp., No. 10-cv-00711-DOC, 2015 WL 4537463, at *8 (C.D. Cal. July 27, 9 2015) (approving settlement with 3% claims rate); Touhey v. U.S., No. 08-cv-01418-VAP, 10 2011 WL 3179036, at *7–*8 (C.D. Cal. July 25, 2011) (approving settlement with 2% 11 claims rate). Accordingly, the class members’ reaction weighs in favor of granting final 12 approval. 13 6. No Subtle Signs of Collusion 14 The collusion inquiry addresses the possibility the agreement is the result of either 15 overt misconduct by the negotiators or improper incentives of certain class members at the 16 expense of other members of the class. Staton, 327 F.3d at 960. The Ninth Circuit has 17 articulated the following as the “subtle signs” of collusion, including: (1) “when counsel 18 receive a disproportionate distribution of the settlement, or when the class receives no 19 monetary distribution but class counsel are amply rewarded”; (2) “when the parties 20 negotiate a ‘clear sailing’ arrangement providing for the payment of attorneys’ fees 21 separate and apart from class funds”; and (3) “when the parties arrange for fees not awarded 22 to revert to defendants rather than be added to the class fund.” In re Bluetooth, 654 F.3d 23 at 947 (internal quotations and citations omitted). 24 Here, there is no evidence of overt misconduct nor any indication of collusion. The 25 requested attorneys’ fees are reasonable considering the record and extensive time spent 26 by class counsel on this matter, and the results achieved. See infra Section III.A. Similarly, 27 the $7,500 class representative incentive award is fair and reasonable and does not appear 28 to be the result of collusion. See infra Section III.C. Settlement class members will receive 1 meaningful monetary distributions even after deducting awards, costs, and fees. (Doc. 2 No. 55 at 14–15.) The settlement also provides meaningful non-monetary relief in the form 3 of practice changes that directly address the claims at issue. (Id. at 16–17.) Further, no 4 portion of the settlement fund will revert to Defendant. (Id. at 10.) The proposed 5 settlement agreement resulted from significant arm’s length negotiation with the assistance 6 of a private mediator. (Id. at 8; Doc. No. 46 at 13); see Couser, 125 F. Supp. 3d at 1042 7 (“A settlement following sufficient discovery and genuine arms-length negotiation is 8 presumed fair.”). As such, the absence of collusion from the record also supports approval 9 of the proposed settlement. 10 After considering all applicable factors, the Court concludes the settlement is “fair, 11 reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Staton, 327 F.3d at 960. 12 III. ATTORNEYS’ FEES, COSTS, AND INCENTIVE PAYMENT TO CLASS REPRESENTATIVE 13 14 Having granted final approval of the settlement, the Court now turns to class 15 counsel’s request for attorneys’ fees, costs, and an incentive payment to the class 16 representative. Here, class counsel seeks $1,423,750, or 25% of the settlement fund, in 17 attorneys’ fees; $16,995.49 in reimbursement for documented out-of-pocket 18 expenses; $118,000 in settlement administration costs; and $7,500 as an incentive payment 19 to the class representative. (Doc. No. 54 at 7, 9–10.) 20 A. Attorneys’ Fees 21 Pursuant to Federal Rule of Civil Procedure 23(h), “[i]n a certified class action, the 22 court may award reasonable attorney’s fees and nontaxable costs that are authorized by law 23 or by the parties’ agreement.” Fed. R. Civ. P. 23(h). However, “courts have an 24 independent obligation to ensure that the award, like the settlement itself, is reasonable, 25 even if the parties have already agreed to an amount.” In re Bluetooth, 654 F.3d at 941. 26 With respect to the attorneys’ fees, “[t]he typical range of acceptable attorneys’ fees 27 in the Ninth Circuit is 20% to 33 1/3% of the total settlement value, with 25% considered 28 the benchmark” in common fund cases. Vasquez v. Coast Valley Roofing, Inc., 266 1 F.R.D. 482, 491 (E.D. Cal. 2010); Stanger v. China Elec. Motor, Inc., 812 F.3d 734, 738 2 (9th Cir. 2016). This “benchmark percentage should be adjusted, or replaced by a lodestar 3 calculation, when special circumstances indicate that the percentage recovery would be 4 either too small or too large in light of the hours devoted to the case or other relevant 5 factors.” Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th 6 Cir. 1990). Regardless of whether courts use the percentage approach or the lodestar 7 method, the main inquiry is whether the end result is reasonable. Powers v. Eichen, 229 8 F.3d 1249, 1258 (9th Cir. 2000). The Ninth Circuit has identified several factors that may 9 be relevant in determining if the award is reasonable, including: (1) the results achieved; 10 (2) the risks of litigation; (3) the skill required and the quality of work; (4) the contingent 11 nature of the fee; (5) the burdens carried by class counsel; and (6) the awards made in 12 similar cases. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048–50 (9th Cir. 2002). 13 Here, class counsel requests an award of $1,423,750 in attorneys’ fees to be paid 14 from the settlement fund. (Doc. No. 54 at 7.) The requested amount of attorneys’ fees 15 is 25% of the total settlement fund of $5,695,000. (Id.) This is in line with the Ninth 16 Circuit’s 25% benchmark for common fund cases. See In re Bluetooth, 654 F.3d at 942 17 (noting that “courts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable 18 fee award” in class action settlements). Moreover, the overall award class counsel achieved 19 for the class was favorable, and the risks associated with continuing to litigate this case 20 were real and substantial. See supra Section II.B.1–2. Further, class counsel took this case 21 on a contingent fee basis, bearing the entire risk and cost of litigation. (Doc. No. 54 at 16.) 22 Class members received notice of the requested attorneys’ fees award, and no class 23 members objected. (Doc. No. 54 at 18; Bahry Supp. Decl. ¶ 7.) The requested fee award 24 is in line with what other district courts in this Circuit have awarded in cases in which class 25 counsel took the case on contingency and no class member objected to the settlement. See, 26 e.g., Ochinero v. Ladera Lending, Inc., No. 19-cv-1136-JVS-ADSx, 2021 WL 4460334, 27 at *8 (C.D. Cal. July 19, 2021) (approving 33% fee award from common fund settlement 28 in which counsel took the case on contingency and no class member objected). 1 Finally, as a cross-check, class counsel represents that the fees calculated under the 2 lodestar method would be $552,303. (Doc. No. 54-1, Declaration of E. Michelle Drake 3 (“Drake Decl.”) ¶ 9; Doc. No. 54-2, Declaration of Kristi C. Kelly (“Kelly Decl.”) ¶ 20.) 4 Thus, the amount class counsel requests is approximately 2.58 times what class counsel 5 would receive under the lodestar method. See In re Bluetooth, 654 F.3d at 944–45 6 (encouraging district courts to cross-check their calculations under the 7 percentage-of-recovery method against the lodestar method). A multiplier of 2.58 is well 8 within the accepted range for common fund cases in which class counsel took the case on 9 a contingency fee arrangement. See Vizcaino, 290 F.3d at 1051 & n.6 (affirming multiplier 10 of 3.65x in a common fund case, and noting that vast majority of common fund cases result 11 in a multiplier of between one and four); Reyes v. Experian Info. Sols., Inc., 856 F. 12 App’x 108, 111 (9th Cir. 2021) (reversing district court that awarded less than 25% in 13 FCRA class action, when “[a]ssuming a 25% award, the lodestar crosscheck returns a 14 multiplier of 2.88”). Accordingly, the Court concludes that the request is reasonable and 15 grants class counsel $1,423,750 in attorneys’ fees. 16 B. Litigation Expenses 17 Class counsel represents to the Court that they incurred litigation expenses in the 18 amount of $16,995.49. (Doc. No. 54 at 7, 9, 21; Drake Decl. ¶ 7; Kelly Decl. ¶ 22.) After 19 reviewing class counsel’s declarations regarding expenses, the Court concludes that the 20 requested litigation expenses are reasonable, and grants class counsel’s request for these 21 fees. 22 Class counsel also requests that the Court approve settlement administration costs in 23 the amount of $118,000. (Doc. No. 54 at 10, 21.) Subject to Court approval, the parties 24 have agreed that the settlement administrator’s expenses for its work in preparing and 25 distributing notice to the settlement class, securing and maintaining the settlement website 26 and phone support, vetting of claim forms, eventual preparation and distribution of 27 settlement payments, and other administrative tasks should be deducted from the settlement 28 fund as well. (Id. at 10.) While the requested amount is marginally higher than the amount 1 quoted in Plaintiff’s preliminary approval papers, (Doc. No. 46 at 12), the parties note that 2 they opted for a more robust reminder notice to ensure class members had the opportunity 3 to file claims in advance of the deadline. (Doc. No. 54 at 10 n.4.) Further, the contemplated 4 deduction of this expense from the settlement fund was included in the notice to the 5 settlement class and no objections have been received. (Id. at 10.) The Court finds the 6 settlement administration costs reasonable and approves payment of $118,000 from the 7 settlement fund to the settlement administrator. 8 C. Incentive Award to Class Representative 9 Class counsel requests a $7,500 incentive award for the class representative. “The 10 criteria courts may consider in determining whether to make an incentive award 11 include: (1) the risk to the class representative in commencing suit, both financial and 12 otherwise; (2) the notoriety and personal difficulties encountered by the class 13 representative; (3) the amount of time and effort spent by the class representative; (4) the 14 duration of the litigation and; (5) the personal benefit (or lack thereof) enjoyed by the class 15 representative as a result of the litigation.” Cox v. Clarus Mktg. Grp., LLC, 291 16 F.R.D. 473, 483 (S.D. Cal. 2013) (citations omitted). 17 After reviewing these factors, the Court concludes that the requested incentive award 18 is fair and reasonable. The $7,500 incentive award is well within the acceptable range 19 awarded in similar cases. See, e.g., Fulford v. Logitech, Inc., No. 08-cv-02041-MMC, 20 2010 WL 807448, at *3 n.1 (N.D. Cal. 2010) (collecting cases awarding incentive 21 payments ranging from $5,000 to $40,000); Gutierrez-Rodriguez v. R.M. Galicia, Inc., 22 No. 16-cv-00182-H-BLM, 2018 WL 1470198, at *7 (S.D. Cal. Mar. 26, 2018) 23 (approving $7,500 incentive award). Plaintiff played an active role in this matter and 24 regularly communicated with class counsel throughout litigation and settlement. (Doc. 25 No. 45 at 9–10; Kelly Decl. ¶¶ 26–28.) Specifically, Plaintiff provided information for the 26 complaint, reviewed the pleading prior to filing, responded to written discovery requests, 27 produced over 500 pages of documents for production, and reviewed and approved the 28 settlement agreement. (Id.) Further, Plaintiff’s documents and discovery responses 1 included sensitive information about Plaintiff’s personal finances, including credit reports 2 and mortgage statements. (Doc. No. 54 at 10.) Considering Plaintiff’s participation, as 3 well as acceptable ranges of incentive awards in similar cases, the Court approves 4 the $7,500 incentive award for Plaintiff. 5 D. Cy Pres Recipients 6 Finally, the Court approves the parties’ choice in cy pres recipients. “[C]y pres 7 distributions must be guided by (1) the objectives of the underlying statute(s) and (2) the 8 interests of the silent class members.” See Nachshin v. AOL, LLC, 663 F.3d 1034, 1039 9 (9th Cir. 2011) (citing Six Mexican Workers, 904 F.2d at 1307). In this instance, the

10 settlement agreement provides that any remaining settlement funds will be donated evenly 11 to the Homeownership Preservation Foundation and Habitat for Humanity. (SA at 28, 12 ¶ 5.3.1.) 13 The proposed cy pres recipients’—the Homeownership Preservation Foundation and 14 Habitat for Humanity—missions and work have a sufficient nexus to the objectives of the 15 underlying statute and the interests of the class members. The Homeownership 16 Preservation Foundation and Habitat for Humanity provide assistance in the form of 17 education, counseling, and advocacy to individuals facing obstacles to home ownership, 18 including credit-related barriers. (Doc. No. 60 at 3–4.) Defendant is a nationwide leading 19 provider of housing-related credit reports. (Compl. ¶ 18; Doc. No. 60 at 3.) Moreover, the 20 credit report at issue in this case was generated in relation to Plaintiff’s application to 21 refinance her mortgage. (Id. ¶¶ 55–56.) Similarly, Defendant issued credit reports for class 22 members in the process of buying and refinancing home mortgages. (Doc. No. 60 at 3.) 23 Accordingly, the proposed recipients’ missions and work relating to homeownership and 24 financial education and advocacy is sufficiently close to the interests of the class members 25 here. See, e.g., In re Midland Credit Mgmt. Inc., Tel. Consumer Prot. Act Litig., No. 10- 26 cv-02261-MMA (MDD), 2018 WL 4927982, at *3 (S.D. Cal. Oct. 10, 2018) (approving 27 cy pres recipient focused on “personal financial literacy regarding credit and debt” in 28 Telephone Consumer Protection Act action); Beaver v. Tarsadia Hotels, No. 11-cv-01842- 1 GPC-KSC, 2020 WL 1139662, at *2 (S.D. Cal. Mar. 9, 2020) (“[T]he Court concludes that 2 there is a nexus between the cy pres recipient[], whose work protects and educates 3 homebuyers, and [Interstate Land Sales Full Disclosure Act’s] objective of protecting 4 homebuyers from unscrupulous developers.”). Furthermore, the underlying statute in this 5 action—the FCRA—was enacted to “to protect consumers’ concrete interests in avoiding 6 the very real-world harms that result from inaccurate credit reporting—such as the inability 7 to obtain credit.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1025 (9th Cir. 2020), rev’d 8 on other grounds, 594 U.S. 413 (2021). Thus, the Homeownership Preservation 9 Foundation and Habitat for Humanity, both of which provide assistance for individuals 10 seeking housing-related credit, are in line with the objectives of the FCRA. 11 Given that the proposed recipients have a sufficient nexus to the objectives of the 12 FCRA and the interests of the class members, the Homeownership Preservation Foundation 13 and Habitat for Humanity are appropriate organizations to receive cy pres distributions in 14 the settlement of this action. 15 CONCLUSION 16 The Court has jurisdiction over the subject matter of this action and all parties to the 17 action, including the settlement class members. First, the Court certifies the settlement 18 class and grants final approval of the settlement. All persons who satisfy the class 19 definitions and did not opt out of the settlement classes by the deadline are class members 20 bound by this Order. The form and method of notice satisfied the requirements of the 21 Federal Rules of Civil Procedure and the United States Constitution. Second, the Court 22 grants class counsel $1,423,750 in attorneys’ fees and $16,995.49 in documented 23 out-of-pocket expenses. The Court also grants $118,000 to the settlement administrator. 24 Further, the Court grants Plaintiff an incentive award of $7,500. The attorneys’ fees, costs, 25 and incentive award will be paid out of the settlement fund. 26 / / / 27 / / / 28 / / / 1 The Court reserves jurisdiction over the implementation, administration, and 2 enforcement of this settlement. The Court dismisses the action with prejudice, and no cost 3 ||shall be awarded other than those specified in this Order or provided by the settlement 4 ||agreement. The Clerk of the Court is instructed to close this case. 5 IT IS SO ORDERED. 6 || DATED: April 9, 2024 -

8 MARILYN ©. HUFF, Distri ge UNITED STATES DISTRICT COURT 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28