Thomas S. Zilly United States District Judge

ORDER

THIS MATTER comes before the Court on plaintiff's unopposed motion for preliminary approval of class action settlement, docket no. 139. A previous motion, docket no. 134, was denied without prejudice. See Minute Order (docket no. 135). Since then, the parties have engaged in further negotiations in an effort to address the concerns raised by the Court. The nature of their proposed settlement, however, has not changed. The parties still seek approval of a plan to resolve the class claims through defendant's payment in three installments of $6,000,000, and the distribution of the net proceeds ( i .e. , the balance remaining after deducting attorney's fees, litigation expenses, administration costs, and incentive awards) to class members on a pro rata basis. Having considered all of the papers filed in support of the pending motion, including the Amended Settlement Agreement and Release, docket no. 139-1, the Court enters the following Order. Discussion A. Telephone Consumer Protection Act

In this action, plaintiff Kevin Pine alleged on behalf of himself and all others similarly situated that defendant A Place for Mom, Inc. had violated the Telephone Consumer Protection Act ("TCPA"). See 2d Am. Compl. at ¶ 95-104 (docket no. 111). To establish a TCPA violation, a plaintiff must prove that a defendant called a cellular telephone number using an "automatic telephone dialing system" ("ATDS"). See Order at 4-5 (docket no. 123) (citing Meyer v . Portfolio Recovery Assocs., LLC , 707 F.3d 1036, 1043 (9th Cir. 2012)). If the plaintiff makes such showing, the burden shifts to the defendant to demonstrate that the plaintiff gave the requisite consent to the call. See id . at 5 (citing Van Patten v . Vertical Fitness Group, LLC , 847 F.3d 1037, 1044 & n.3 (9th Cir. 2017)). B. Previous Proposed Settlement

In their initial attempt to obtain approval of a settlement in this matter, the parties proposed to define the class as including

all persons within the United States who, between August 7, 2013, and August 15, 2019, received a non-emergency Call from Defendant, or any party acting on its behalf, to a cellular telephone through the use of a dialing system characterized by the plaintiff as an automated telephone dialing system or an artificial or prerecorded voice.

The parties now proffer the following class definition:

all persons within the United States who, between August 7, 2013, and August 15, 2019, received a non-emergency Call from Defendant, or any party acting on its behalf, to a cellular telephone.

In response to the Court's reluctance to approve an "opt in" system of distributing settlement proceeds, the parties propose to segregate the class into two groups, which are essentially subclasses, only one of which would be required to "opt in." The parties have labeled the subsets as "Locate" and "Non-Locate." The designations "Locate" and "Non-Locate" bear no correlation to the features of the subclasses, but rather correspond to the actions of the proposed settlement administrator. Defendant has the same information about all Locate and Non-Locate subclass members, i .e., names, cellular phone numbers, and email addresses. For Locate subclass members, the settlement administrator will be tasked with using its "best efforts" and the data provided by defendant to determine a mailing address or, in other words, to locate the individuals, and to send notices about the settlement to them via U.S. mail. See id . at ¶ 8.2. On the other hand, for Non-Locate subclass members, the settlement administrator need not attempt to find a physical location, and may correspond with such individuals via email. Id . at ¶ 8.3.

According to the Amended Settlement Agreement, the only difference between the Locate and Non-Locate subclasses is whether defendant concedes on the issue of consent. Defendant does not dispute that Locate subclass members did not consent to receiving calls from defendant or its agents. Id . at ¶ 3.4. As to Non-Locate subclass members, defendant is either unable or unwilling to agree on an absence of consent to receiving calls. See id . at ¶¶ 3.4 & 7.2. Thus, the parties propose to require that members of the Non-Locate subclass return a claim form verifying that they did not consent to receiving calls from defendant before they can receive any benefit from the settlement. See id . at ¶ 9.2 & Ex. A2. In contrast, under the terms of the proposed settlement, monetary awards would be automatically sent to Locate subclass members who do not exclude themselves from the class or opt to donate their funds to the Fisher Center for Alzheimer's Research Foundation. Id . at ¶ 9.1. The parties indicate that the Locate subclass has at least 56,000 members. Id . at ¶ 7.2. They have not provided any estimate concerning the number of members in the Non-Locate subclass.

Although the parties contemplate that class members cannot receive a share of the settlement funds if they consented to the calls at issue, they have not included lack of consent as a prerequisite in defining the class. The parties' proposed definition of the class is therefore overbroad. For the sake of consistency with the terms of the proposed settlement and with the requirements of the TCPA, the class definition must be revised as follows:

All persons within the United States who, between August 7, 2013, and August 15, 2019, received, without their consent , a non-emergency call from defendant A Place for Mom, Inc., or any party acting on defendant's behalf, to a cellular telephone.

The Court cannot, however, at this time, certify the two subclasses proposed by the parties. The parties have not provided any estimates concerning the number of individuals in the Non-Locate subclass or the expected rate at which claim forms might be returned by such subclass members. Without this information, the Court cannot calculate the potential pro rata shares to be paid from the settlement fund and class members cannot assess whether they should object to the settlement. Conclusion

Notwithstanding the foregoing issues, the Court will approve portions of the parties' agreement, and hereby ORDERS as follows:

(1) Plaintiff's unopposed motion for preliminary approval of class action settlement, docket no. 139, is GRANTED in part, DEFERRED in part, and RENOTED to January 31, 2020.

(2) The Court hereby CERTIFIES for settlement purposes the following Class:

All persons within the United States who, between August 7, 2013, and August 15, 2019, received, without their consent, a non-emergency call, from defendant A Place for Mom, Inc. or any party acting on defendant's behalf, to a cellular telephone.

(3) The following individual is APPOINTED as Class Representative: Kevin Pine. The following law firms are APPOINTED as Class Counsel: Lieff Cabraser Heimann & Bernstein, LLP; Kozonis & Klinger, Ltd.; Hussin Law Firm; and Frank Freed Subit & Thomas LLP.

(4) Kurtzman Carson Consultants LLC is APPOINTED as Settlement (or Claims) Administrator.

(5) With respect to the Class defined in Paragraph 2, the Court CONCLUDES that the following prerequisites are satisfied: (i) the Class is so numerous that joinder of all members is impracticable; (ii) questions of law and fact common to all members of the Class exist; (iii) the claims of the Class Representative are typical of the claims of the class members; (iv) the Class Representative and Class Counsel meet the requirements for fair and adequate representation; (v) the questions of law and fact that are common to class members predominate over questions affecting only individual members; and (vi) resolution by a class action settlement is superior to other available methods of adjudicating the dispute. See Fed. R. Civ. P. 23(a) & (b)(3). The Court reserves ruling on whether the interests of absent class members who wish to litigate their claims for damages individually will be adequately protected by the notices to be distributed in this matter and the ability of such class members to opt out of the settlement. See Fed. R. Civ. P. 23(b)(3)(A) & (c)(2)(B).

(6) The parties propose to leave to the Court's "sole discretion" at some later date the designation of a cy pres recipient. Am. Settlement Agr. at ¶ 7.5(e). The Ninth Circuit has clearly disapproved of such practice. Dennis v . Kellogg Co., 697 F.3d 858, 867 (9th Cir. 2012) ("Our concerns are not placated by the settlement provision that the charities will be identified at a later date and approved by the court - a decision from which the Objectors might again appeal."). If settlement funds are to go to a cy pres recipient, then the parties must designate the recipient in their agreement and provide an opportunity to class members to object to the recipient. Any cy pres beneficiary must be "tethered to the nature of the lawsuit and the interests of the silent class members." Id .; Nachsin v . AOL, LLC , 663 F.3d 1034, 1036 (9th Cir. 2011) ("Cy pres distributions must account for the nature of the plaintiffs' lawsuit, the objectives of the underlying statutes, and the interests of the silent class members, including their geographic diversity."). The parties bear the burden of demonstrating the appropriateness of their selection of a cy pres recipient, and the Court will not relieve them of this responsibility.

(7) On or before the new noting date for the pending motion, the parties shall file supplemental materials, including any revised settlement documents, consistent with this Order.

(8) The Clerk is directed to send a copy of this Order to all counsel of record.

IT IS SO ORDERED.

Dated this 5th day of December, 2019.

/s/_________

Thomas S. Zilly

United States District Judge