Opinion
No. 1:19-cv-360 WBS
01-26-2021
NAOMI LEGERE-GORDON, individually and on behalf all others similarly situated, Plaintiff, v. FIRSTCREDIT INCORPORATED, Defendant.
MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Plaintiff Naomi Legere-Gordon, individually and on behalf of all other similarly situated persons, brought this putative class action against defendant Firstcredit Incorporated ("defendant" or "FCI"), alleging violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. (See Compl. (Docket No. 1).) Plaintiff has filed an unopposed motion for preliminary approval of a class action settlement. (Mot. for Prelim. Approval (Docket No. 38).) On December 9, 2020, the court held a hearing on plaintiff's motion. (See Docket No. 40.) After expressing concern with the parties' proposed notice plan, the court continued the hearing to January 25, 2021, so the parties could negotiate a new plan for issuing notice to members of the class. (See id.) The parties submitted a Joint Status Report containing an updated proposed notice plan on January 19, 2021. (See Joint Status Report (Docket No. 41).) Based on plaintiff's motion, the court's December 9, 2020, and January 25, 2021 hearings, and the parties' Joint Status Report, the court hereby issues the following Order granting plaintiff's motion for preliminary approval.
I. Factual and Procedural Background
Plaintiff filed her complaint in this court on September 18, 2019. (See Compl.) The complaint alleges that plaintiff received calls on her cellular phone from a number associated with defendant on "numerous" occasions. (See Compl. ¶¶ 25-29.) Upon answering these calls, plaintiff alleges, a prerecorded message would state "Thank you for calling FCI . . . ." (See id.) Though plaintiff never gave permission for FCI to contact her, she alleges that defendant continued to call her cellular phone anyway. (See Compl. ¶¶ 30-31.) Plaintiff's complaint further alleges that she represents a class of persons throughout the United States to whom defendant placed, or caused to be placed, similar calls over the last four years. (See Compl. ¶¶ 43-70.)
The TCPA prohibits the use of automatic telephone dialing systems ("ATDS") to call any cellular telephone number in the absence of an emergency or prior express consent of the receiving party. See 47 U.S.C. § 227(b)(1)(A)(iii). Based on the frequency, number, nature, and character of the calls that she received, plaintiff claims that defendant utilized an ATDS to call her and other class members' cellular phones in violation of the TCPA. (See Compl. ¶¶ 34-42, 71-73.) Plaintiff alleges that this ATDS employed a complex set of algorithms to automatically generate and call numbers in a manner that "predicted" the time when a consumer would answer the phone and be available to take the call. (See id.)
Defendant filed an answer denying liability. (See Docket No. 14.) Over the next year, the parties engaged in discovery before participating in an all-day mediation before the Hon. James Ware (Ret.) of JAMS on September 15, 2020. (See Decl. of Anthony Paronich ("Paronich Decl.") ¶ 12 (Docket No. 38-2).) The parties reached a tentative agreement through this mediation, and engaged in further negotiations over the next month to produce the final settlement agreement before the court today (the "Settlement Agreement"). (See id.)
As proposed, the Settlement Agreement contemplates a release of all claims for injunctive relief asserted in this action by the settlement class, defined as
All natural and juridical persons within the United States (1) to whom FCI placed, or caused to be placed, a call, (2) directed to a number assigned to a cellular telephone service, but not assigned to the intended recipient of Defendant's calls, (3) by using an automatic telephone dialing system or an artificial or prerecorded voice, (4) from September 18, 2015 through the date the Order of Preliminary Approval of Class Action Settlement is entered by the Court.(See Mot. for Prelim. Approval, Ex. 1 ("Settlement Agreement") at 3-4 (Docket No. 38-1).) The proposed settlement class consists of approximately 33,172 recipients of defendants' calls. (See Paronich Decl. ¶ 11.)
The TCPA's statutory damages provision awards a minimum of $500 in damages per violative call. See 47 U.S.C. § 227(b)(3)(B). Given the number of violative calls at issue here, plaintiff estimates that a judgment in this case would total at least $16,500,000. (See Paronich Decl. ¶ 9.) The parties represent that, based on financial documents produced by defendant in discovery, this amount far exceeds defendant's ability to pay. (See id.)
Accordingly, the settlement does not provide class members with any monetary relief, and instead seeks injunctive relief requiring defendant to implement changes to its calling practices. (See Settlement Agreement.) Specifically, defendant must determine which phone numbers on its call lists are cellular numbers and scrub those numbers from its lists (unless defendant has a good faith basis to believe that consent to call the number has been given); revise its TCPA processes, procedures, and training materials and implement training for its employees regarding these processes and procedures; and issue quarterly reports concerning TCPA litigation and proof of compliance to class counsel throughout the 2-year duration of the injunctive period. (See id. at Ex. 5.)
In exchange for this injunctive relief, class members waive their right to bring claims for injunctive relief or to participate in any class or representative proceeding related to claims that they received phone calls from defendant in violation of the TCPA between September 18, 2015, and the date of preliminary approval. (See id. ¶ 21.) The settlement does not require class members to release any individual claims for damages they may have against FCI. (See id.)
The Settlement Agreement further provides for an award of $180,000 in attorney's fees and costs, subject to court approval, and an incentive award for plaintiff of $3,500. (See Settlement Agreement at 11.) The settlement states that class counsel will be responsible for reimbursing the settlement administrator for all costs of settlement administration. (See id. ¶ 11.)
The proposed Notice of Class Settlement calls for notice to be published in summary form in two consecutive Monday editions of USA Today. (See id. ¶ 12.) This summary will direct members of the settlement class to a website created by the settlement administrator. (Id.) The settlement administrator will also create a call center reachable at a toll-free number that is dedicated to answering class members' questions and to providing information regarding the settlement. (Id.) As proposed, the Notice published on the settlement website will inform class members of the injunctive relief provided by the settlement, of their right to object and attend a fairness hearing, that the settlement will waive their right to pursue claims for damages in a class action setting while preserving their right to pursue individual damages claims against defendant. (See id. at Ex. 4.)
II. Discussion
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." Fed. R. Civ. P. 23(e). "To vindicate the settlement of such serious claims, however, judges have the responsibility of ensuring fairness to all members of the class presented for certification." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). "Where [] the parties negotiate a settlement agreement before the class has been certified, settlement approval requires a higher standard of fairness and a more probing inquiry than may normally be required under Rule 23(e)." Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048 (9th Cir. 2019) (citation and internal quotations omitted).
The approval of a class action settlement takes place in two stages. In the first stage, "the court preliminarily approves the settlement pending a fairness hearing, temporarily certifies a settlement class, and authorizes notice to the class." Ontiveros v. Zamora, No. 2:08-567 WBS DAD, 2014 WL 3057506, at *2 (E.D. Cal. July 7, 2014). In the second, the court will entertain class members' objections to (1) treating the litigation as a class action and/or (2) the terms of the settlement agreement at the fairness hearing. Id. The court will then reach a final determination as to whether the parties should be allowed to settle the class action following the fairness hearing. Id.
Consequently, this order "will only determine whether the proposed class action settlement deserves preliminary approval and lay the groundwork for a future fairness hearing." See id. (citations omitted).
A. Class Certification
To be certified, the putative class must satisfy both the requirements of Federal Rule of Civil Procedure 23(a) and (b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Each will be discussed in turn.
1. Rule 23(a)
In order to certify a class, Rule 23(a)'s four threshold requirements must be met: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). "Class certification is proper only if the trial court has concluded, after a 'rigorous analysis,' that Rule 23(a) has been satisfied." Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542-43 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).
a. Numerosity
While 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), it does not require "a strict numerical cut-off." McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 167 (S.D. Cal. 2019) (citations omitted). Generally, "the numerosity factor is satisfied if the class compromises 40 or more members." Id. (quoting Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007)). Here, plaintiff's expert estimates that there are 33,172 class members. (See Paronich Decl. ¶ 11.) The numerosity element is therefore satisfied.
b. Commonality
Next, Rule 23(a) requires that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2) is satisfied when there is a "common contention . . . of such a nature that it is capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 564 U.S. at 350. "Plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. So long as there is 'even a single common question,' a would-be class can satisfy the commonality requirement of Rule 23(a)(2)." Wang, 737 F.3d at 544 (citing id.).
Here, the claims implicate common questions of law and fact because they are premised on conduct that was directed toward all class members equally. All class members are alleged to have received calls from defendant on their cellular telephone through use of an ATDS without their consent. (See Compl. ¶¶ 34-42, 71-73.) The class members therefore share several factual questions, including whether defendant called their cellular telephone, whether that call was generated using an ATDS, and whether they had given prior consent. (See id.) These factual questions give rise to a common legal question: whether defendant's calls violated the TCPA, 47 U.S.C. § 227.
Generally, "challeng[ing] a policy common to the class as a whole creates a common question whose answer is apt to drive the resolution of the litigation." Ontiveros, 2014 WL 3057506, at *5. Even if individual members of the class would be entitled to different amounts of damages because, for instance, they received a different number of autodialed calls from defendant, "the presence of individual damages cannot, by itself, defeat class certification." Leyva, 716 F.3d at 514 (quoting Dukes, 564 U.S. at 362). Accordingly, these common questions of law and fact satisfy Rule 23(a)'s commonality requirement.
c. Typicality
Rule 23(a) further requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). The test for typicality is "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). Here, the named plaintiff satisfies the typicality requirement, as she and the other class members all allegedly received the same calls from defendant in violation of the TCPA. (See Compl. ¶¶ 34-42, 71-73.)
d. Adequacy of Representation
Finally, Rule 23(a) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) "serves to uncover conflicts of interest between named parties and the class they seek to represent" as well as the "competency and conflicts of class counsel." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 626 n.20 (1997). The court must consider two factors: (1) whether the named plaintiff and his counsel have any conflicts of interest with other class members and (2) whether the named plaintiff and his counsel will vigorously prosecute the action on behalf of the class. In re Hyundai and Kai Fuel Econ. Litig., 926 F.3d 539, 566 (9th Cir. 2019) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).
i. Conflicts of Interest
The first portion of the adequacy inquiry considers whether plaintiff's interests are aligned with those of the class. "[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Amchem, 521 U.S. at 625-26 (internal modifications omitted).
The named plaintiff's interests appear to be generally aligned with those of the class, as she allegedly received the same calls from defendant using an ATDS. (See generally Compl.) However, plaintiff alone stands to benefit for her participation in this litigation by receiving an incentive award of $3,500. (Settlement Agreement ¶ 29.) The use of an incentive award raises the possibility that plaintiff's interest in receiving that award via settlement will cause her interests to diverge from the class's, especially considering that the rest of the class will not receive monetary compensation. Staton, 327 F.3d at 977-78. Consequently, the court must "scrutinize carefully the awards so that they do not undermine the adequacy of the class representatives." Radcliffe v. Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).
Plaintiff's requested incentive award of $3,500 represents an award that is different in kind and substantially greater in amount than the benefits that will accrue to other class members, given that the Settlement Agreement only provides class members with injunctive relief. (See Settlement Agreement ¶ 13.) However, incentive awards "are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general." Rodriguez v. West Publ'g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). Indeed, the Ninth Circuit has consistently recognized incentive awards are "fairly typical" way to "compensate class representatives for work done on behalf of the class" or "to make up for financial or reputational risk undertaken in bringing the action," id., and other district courts in this circuit have found incentive awards to be proper even when a class is certified only for injunctive relief under Rule 23(b)(2), see, e.g., Grant v. Capital Mgmt. Servs., L.P., No. 10-cv-2471-WQH (BGS), 2014 WL 888665, at *8 (S.D. Cal. Mar. 5, 2014) (approving incentive award of $5,000 as part of settlement seeking only injunctive relief under Rule 23(b)(2)).
Because the Settlement Agreement expressly preserves the class members' ability to pursue any individual claims for monetary relief against defendant that they may have based on the phone calls in question (see Settlement Agreement at Ex. 2), the court does not find that plaintiff's requested incentive payment necessarily gives rise to a conflict of interest between plaintiff and the rest of the class.
The court emphasizes that this finding is only a preliminary determination. Plaintiff represents that she will formally seek the incentive award through a separate motion, to be heard at the final approval hearing. (Mot. for Preliminary Approval at 4.) At that time, plaintiff should be prepared to provide additional evidence to convince the court that an incentive award is justified in this case as a means of "compensat[ing] [plaintiff] for work done on behalf of the class" or of making up "for financial or reputational risk undertaken in bringing the action," especially considering that the unnamed class members will receive no compensation. See Rodriguez, 563 F.3d at 958-59. Plaintiff should also be prepared to show that the incentive award she requests is not grossly disproportionate to the average amount individual class members could expect to receive by bringing individual claims for money damages against defendant, such that it would cause her interests to diverge from those of other class members. See id.
ii. Vigorous Prosecution
The second portion of the adequacy inquiry examines the vigor with which the named plaintiff and her counsel have pursued the class's claims. "Although there are no fixed standards by which 'vigor' can be assayed, considerations include competency of counsel and, in the context of a settlement-only class, an assessment of the rationale for not pursuing further litigation." Hanlon, 150 F.3d at 1021, overruled on other grounds by Dukes, 564 U.S. at 338.
Here, class counsel appear to be experienced class action litigators fully qualified to pursue the interests of the class. (See Paronich Decl. ¶¶ 4-7; Decl. of Gary M. Klinger ("Klinger Decl.") ¶¶ 4-17 (Docket No. 38-3).) Class counsel represent that they have litigated dozens of TCPA class actions and other class actions involving violations of privacy as lead counsel in state and federal court. (See Paronich Decl. ¶ 7 (citing cases); Klinger Decl. ¶ 8-15 (citing cases).)
Furthermore, class counsel have carefully vetted their clients' and defendants' claims through rigorous legal analysis. (See Mot. for Prelim. Approval at 8-14; Paronich Decl. ¶ 8-12; Klinger Decl. ¶ 18-21.) Counsels' experience, coupled with the careful vetting of their client's claims, suggest that they are well-equipped to handle this case. Accordingly, the court finds that plaintiff and plaintiff's counsel are adequate representatives of the class.
2. Rule 23(b)
After fulfilling the threshold requirements of Rule 23(a), the proposed class must satisfy the requirements of one of the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. Plaintiff seeks provisional certification under Rule 23(b)(2), which provides for class certification when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
"The key to the (b)(2) class is the 'indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.'" B.K. by next friend Tinsley v. Snyder, 922 F.3d 957, 971 (9th Cir. 2019), cert. denied sub nom. Faust v. B. K. By Tinsley, 140 S. Ct. 2509, 206 L. Ed. 2d 463 (2020) (quoting Dukes, 564 U.S. 338, 360 (2011)). "In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction." Id. (quoting Dukes, 564 U.S. at 360 (emphasis in original omitted)).
Here, the Settlement Agreement states that the parties will jointly request that the court enter an injunction requiring defendant to remove cellular telephone numbers from its call lists unless defendant has a good faith basis to believe consent to call that number has been provided. (See Settlement Agreement at Ex. 2.) This injunctive relief is appropriate with respect to the class as a whole because defendants' actions were generally applicable to the entire class: each putative class member has received calls from defendant that were automatically generated using an ATDS that "predicted" when he or she would be likely to answer and available to talk, without prior consent (see Compl. ¶¶ 34-42, 71-73). See Fed. R. Civ. P. 23(b)(2). The uniformity of this conduct with respect to each putative class member permits it to be "enjoined or declared unlawful . . . as to all of the class members" and permits relief to be afforded to all class members with a single injunction. See Snyder, 922 F.3d at 971.
Plaintiff's complaint also seeks relief "awarding Plaintiff and the class damages under 47 U.S.C. § 227(b)(3)(B)." (See Compl. at 13.) Generally, Rule 23(b)(2) "does not authorize class certification when each class member would be entitled to an individualized award of monetary damages." Dukes, 564 U.S. at 360-61. However, the Settlement Agreement does not provide class members with any monetary relief, and instead expressly preserves their right to pursue individual claims for damages against defendant in the future. (See Settlement Agreement at Ex. 2.) The court therefore finds that certification under Rule 23(b)(2) is appropriate. See Grant, 2014 WL 888665, at *2 (certifying class under Rule 23(b)(2) where settlement provided only injunctive relief for alleged violations of the TCPA).
3. Rule 23(c)(2) Notice Requirements
Under Rule 23(c)(2), whether notice to class members of certification under Rule 23(b)(2) must be provided is left to the district court's discretion. See Fed. R. Civ. P. 23(c)(2)(A) ("For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class." (emphasis added)); Equal Opportunity Emp't Comm'n v. Gen. Tel. Co. of Nw., Inc., 599 F.2d 322, 334 (9th Cir. 1979) ("When an action is certified under Rule 23(b)(2) . . . absent class members are not required to receive notice or to have the opportunity to opt-out of the suit.").
Even if the court determines that notice of class certification under Rule 23(b)(2) is not necessary, notice of a class action settlement may still be required under Rule 23(e) if the proposed settlement would bind absent class members. See Fed. R. Civ. P. 23(e). The court will therefore evaluate whether and what kind of notice is required in the next section, when it evaluates the fairness the settlement under Rule 23(e).
B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement
Because the proposed class preliminarily satisfies the requirements of Rule 23(a) and (b), the court must consider whether the terms of the parties' settlement appear fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). The court must consider four factors under the rule: whether "(1) the class representatives and class counsel have adequately represented the class; (2) the proposal was negotiated at arm's length; (3) the relief provided for the class is adequate; and (4) the proposal treats class members equitably relative to each other." Id. The Ninth Circuit has also identified additional factors, including
The strength of the plaintiff's case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.See Staton, 327 F.3d at 959. Many of these factors cannot be considered until the final fairness hearing; accordingly, the court's review will be confined to resolving any "'glaring deficiencies' in the settlement agreement." Syed, 2019 WL 1130469, at *7 (citations omitted).
1. Adequate Representation
The court must first consider whether "the class representatives and class counsel have adequately represented the class." Fed. R. Civ. P. 23(e)(2)(A). This analysis is "redundant of the requirements of Rule 23(a)(4) . . . ." Hudson v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060, at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting similarity of inquiry under Rule 23(a)(4) and Rule 23(e)(2)(A)).
Because the Court has found that the proposed class satisfies Rule 23(a)(4) for purposes of class certification, the adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 2020 WL 2467060, at *5.
2. Negotiations of the Settlement Agreement
Counsel for both sides appear to have diligently pursued settlement after thoughtfully considering the strength of their arguments and potential defenses. The parties participated in an arms-length mediation before an experienced mediator, Hon. James Ware (Ret.), on September 15, 2020, which resulted in a tentative settlement agreement. (Paronich Decl. ¶ 12.) After further negotiations, the parties were able to finalize and execute the Settlement Agreement on October 19, 2020. (See id.; Settlement Agreement.) Given the sophistication of plaintiff's counsel and the parties' representation that the settlement reached was the product of arms-length bargaining, the court does not question that the proposed settlement is in the best interest of the class. See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 942 (N.D. Cal. 2013) (holding that a settlement reached after informed negotiations "is entitled to a degree of deference as the private consensual decision of the parties" (citing Hanlon, 150 F.3d at 1027)).
3. Adequate Relief
In determining whether a settlement agreement provides adequate relief for the class, the court must "take into account (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any [other] agreement[s]" made in connection with the proposal. See Fed. R. Civ. P. 23(e)(2)(C); Baker v. SeaWorld Entm't Inc., No. 14-cv-02129-MMA-AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020).
A recent decision by the Ninth Circuit, Koby v. ARS Nat. Servs., Inc., 846 F.3d 1071 (9th Cir. 2017), serves as a useful guide in analyzing whether the relief in this case is adequate. In Koby, the named plaintiffs sued ARS on behalf of a class of consumers under the Fair Debt Collection Practices Act ("FDCPA"). See Koby, 846 F.3d at 1074. They alleged that ARS violated the FDCPA by leaving voicemail messages in which the callers failed to disclose (1) that they worked for ARS, (2) that ARS is a debt collector, or (3) that the purpose of the call was to collect a debt. See id. The parties reached a settlement agreement in which they agreed to seek certification of a nationwide, settlement-only class under Rule 23(b)(2). See id.
As in this case, the proposed settlement sought only injunctive relief on behalf of the class, which consisted of anyone in the United States who had received violative voicemails from ARS between April 2008 and August 2011. Id. Also like this case, the proposed settlement waived class members' right to bring a class action against ARS in the future while preserving their right to bring individual claims for damages. Id. at 1075. After conducting a fairness hearing, the magistrate judge approved the settlement, finding that it was "fair, reasonable, and adequate" under Rule 23(e). See id.
The Ninth Circuit reversed, holding that the magistrate judge had abused her discretion in approving the settlement because the settlement required class members to waive their right to pursue claims for damages against ARS as part of a class action in exchange for injunctive relief that was "of no real value." See id. at 1079. The court found that the injunction would not benefit class members because ARS had already voluntarily adopted a voicemail message similar to the one contained in the injunction before litigation began, and thus the injunction would not require ARS to do adopted a anything it was not already doing. See id. at 1080.
The court in Koby also found that the injunction would not benefit the class members because there was a mismatch between the class definition and the group of consumers who would receive the benefits of the injunctive relief. See id. at 1079. While the class was defined to include consumers who had previously received calls from ARS, the injunction merely dictated certain disclosures that ARS would have to make when leaving future voicemails. See id. According to the court, there was no guarantee that a previous target of ARS' calls would necessarily be a target of their calls in the future, given that the consumers in the class had been contacted regarding debts that were, at that point, two to five years old. See id. at 1079-80.
Though the terms of the settlement rejected by the Ninth Circuit in Koby are remarkably similar to the terms of the proposed settlement here, two crucial distinctions exist. First, unlike the class members in Koby, the class members here will not be required to give up their individual claims for damages in exchange for the injunctive relief outlined in the Settlement Agreement. See id. at 1079. Second, the terms of the injunctive relief here will require FCI to scrub its call list of all cellular numbers for whom FCI does not have a good faith belief that consent to call has been provided, including those numbers already called. (See Settlement Agreement at Ex. 5.) Unlike the defendant in Koby, FCI has represented that scrubbing cellular numbers from its call lists is not an action that it would have taken in absence of the injunction provided by the settlement agreement. See Koby, 846 F.3d at 1080. The court therefore finds that the Settlement Agreement will provide real value to the class members here--value that they would not have otherwise gotten in absence of the settlement. See id.
Plaintiff's counsel represents that, given the strength of plaintiff's claims and defendants' potential exposure, the injunctive relief contained in the settlement provides a strong result for the class. (Paronich Decl. ¶¶ 9-12.) Indeed, at least two other district courts appear to have approved TCPA settlements that provided only injunctive relief to the class. See Thomas v. Fin. Corp. of Am., No. 19-cv-152-K (N.D. Tex. Jul. 13, 2020) (Docket No. 86); Grant, 2014 WL 888665, at *2. One of these settlements provided for an injunction that was nearly identical to the one here, in exchange for a release of class members' right to pursue damages claims as part of a class action. See Thomas v. Fin. Corp. of Am., No. 19-cv-152-K (N.D. Tex. Jul. 13, 2020) (Docket No. 86). Because the parties have represented that defendant does not have the financial ability to withstand a class-wide judgment for monetary damages, the court agrees that the injunctive relief provided in the settlement represents an acceptable method of distributing relief, especially given the settlement's preservation of class members' right to pursue individual claims for damages against defendant. See Baker v. SeaWorld Entm't, Inc., No. 14-cv-02129-MMA-AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). While this relief represents "more than the defendants feel those individuals are entitled to" and will potentially be "less than what some class members feel they deserve," the Settlement Agreement at least offers class members the prospect of some recovery. See Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 628 (9th Cir. 1982) ("Undoubtedly, the amount of the individual shares will be less than what some class members feel they deserve but, conversely, more than the defendants feel those individuals are entitled to. This is precisely the stuff from which negotiated settlements are made.")
The court again emphasizes the preliminary nature of this determination. Though the parties represent that defendant is not in a financial condition to withstand a classwide monetary judgment (see Mot. for Prelim. Approval at 13; Paronich Decl. ¶ 9), they should be prepared to present additional evidence of defendant's financial condition in advance of the final fairness hearing. Plaintiff should also be prepared to present additional evidence indicating the likely amount class members would be likely to recover from defendant were they to proceed with an individual claim for damages, so that the court can more accurately determine whether absent class members will have an incentive to bring individual claims and therefore assess the value of the preservation of this right in the Settlement Agreement. See Koby, 846 F.3d at 1080-81.
The Settlement Agreement further provides for an award of $180,000 in attorney's fees and costs, subject to court approval. (See Settlement Agreement at 11.) If a negotiated class action settlement includes an award of attorney's fees, then the court "ha[s] an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount." In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).
The Ninth Circuit has recognized two different methods for calculating reasonable attorney's fees: the lodestar method and the percentage-of-recovery method. See id. The percentage-of-recovery method is generally appropriate where the settlement creates a common fund for distribution to the class because it "simply awards the attorneys a percentage of the fund sufficient to provide class counsel with a reasonable fee." See Hanlon, 150 F.3d at 1029, overruled on other grounds by Dukes, 564 U.S. at 338. The lodestar method, on the other hand, is generally appropriate in cases seeking injunctive relief, like this one, because it is often difficult or even impossible "to gauge the net value of the settlement or any percentage thereof." Id.
Under the lodestar method, the court multiplies the number of hours reasonably expended by a reasonable hourly rate. Id. Class counsel must support its figures for the number of hours expended and its hourly rate by adequate documentation. Id. "The resulting figure may be adjusted upward or downward to account for several factors including the quality of the representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment." Id.
Plaintiff's counsel has represented that they will be filing a separate motion for attorney's fees and costs in the amount of $180,000 pursuant to Federal Rule 23(h). (Settlement Agreement ¶ 28.) Because the lodestar method will allow the court to award attorney's fees even in the absence of a common fund, the court does not find the Settlement Agreement's award of attorney's fees to necessarily be unreasonable at this time. See Thomas, No. 19-cv-152-K (N.D. Tex. Jul. 13, 2020) (Docket No. 86) (awarding $587,500 in attorney's fees in TCPA class action settlement involving only injunctive relief); Grant, 2014 WL 888665, at *2 (awarding $475,000 in attorney's fees in TCPA class action settlement involving only injunctive relief). However, the court will defer consideration of the reasonableness of counsel's fees until the fee motion is filed.
Class counsel is cautioned that the reasons for the attorney's fees should be explained further in that motion. Factors considered in examining the reasonableness of the fee may include: (1) whether the results achieved were exceptional; (2) risks of litigation; (3) non-monetary benefits conferred by the litigation; (4) customary fees for similar cases; (5) the contingent nature of the fee and financial burden carried by counsel; and (6) the lawyer's "reasonable expectations, which are based on the circumstances of the case and the range of fee awards out of common funds of comparable size." See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002).
In light of the claims at issue, defendant's potential exposure, defendant's apparent inability to pay a classwide judgment, and the fact that the court will separately assess the reasonableness of plaintiff's request for attorney's fees at a later date, the court finds that, at this stage, the substance of the settlement is fair to class members and "falls within the range of possible approval." See Tableware, 484 F. Supp. 2d at 1079. Counsel has not directed the court to any other relevant agreements that would alter this analysis. The court therefore finds that Rule 23(e)'s third factor is satisfied. See Fed. R. Civ. P. 23(e)(C).
4. Equitable Treatment of Class Members
Finally, the court must consider whether the Settlement Agreement "treats class members equitably relative to each other." See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the Court determines whether the settlement "improperly grant[s] preferential treatment to class representatives or segments of the class." Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 484 F. Supp. at 1079.
Here, the Settlement Agreement does not improperly discriminate between any segments of the class, as all class members are entitled to the same injunctive relief. See id. While the Settlement Agreement allows plaintiff to seek an incentive award of $3,500, other class members will still be permitted to seek damages from defendant in their own, individual cases. (See Settlement Agreement, Ex. 2.) As discussed above, not only is the amount of the requested award presumptively reasonable, see Roe v. Frito-Lay, Inc., No. 14CV-00751, 2017 WL 1315626, at *8 (N.D. Cal. Apr. 7, 2017) ("[A] $5,000 incentive award is 'presumptively reasonable' in the Ninth Circuit.") (collecting cases), plaintiff will have to submit additional evidence documenting her time and effort spent on this case and the likely value of other class members' individual claims for damages to ensure that her additional compensation above other class members is justified. See Hudson, 2020 WL 2467060, at *9. The court therefore finds that the Settlement Agreement treats class members equitably. See Fed. R. Civ. P. 23(e)(D).
C. Rule 23(e) Notice Requirements
Rule 23(e)(1) requires the court to "direct notice in a reasonable manner to all class members who would be bound by" a proposed settlement. Fed. R. Civ. P. 23(e)(1). Because the Settlement Agreement as proposed would bind class members with respect to claims they have against defendant for injunctive relief and prevent them from participating in other class actions related to the calls in question, the court finds that notice to class members is necessary and appropriate. (See id.)
While there are "no rigid rules to determine whether a settlement notice to class members satisfies constitutional and Rule 23(e) requirements," Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like any form of notice--must comply with due process requirements under the Constitution. See Rubenstein, 4 Newberg on Class Actions § 8:15 (5th ed.). That is, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). While actual notice is not required, the notice provided must be "reasonably certain to inform the absent members of the plaintiff class." Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted). The content of the "[n]otice is satisfactory if it 'generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.'" See Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).
Here, the parties originally agreed to publish summary notice of the Settlement Agreement in two consecutive Monday editions of USA Today, which would direct class members to a settlement website that contains the full notice of settlement and additional information for class members. (See Settlement Agreement ¶ 12(A)) The settlement administrator would also establish a call center dedicated to providing class members with information about the Settlement Agreement and to answering class members' questions. (See id.) A toll-free number would be established to allow class members to contact the call center free of charge. (See id.)
The full notice published on the settlement website would provide, among other things, a description of the case; a description of the injunctive relief provided by the Settlement Agreement; the fact that class members will give up their right to sue defendant for injunctive relief and to participate in another class action; the fact that class members will retain the right to file individual damages lawsuits against defendant; the amount of the incentive award that plaintiff is seeking; the amount of attorney's fees that class counsel is seeking; the procedures for objecting to the settlement and for appearing at the fairness hearing; and the date and location of the fairness hearing. (See Settlement Agreement at Exs. 3-4.) Because the notice would inform class members of the relief provided by the settlement and of their inability sue defendant in the future for injunctive relief or participate in another class action related to the calls at issue, the court finds that it would adequately alert those "with adverse viewpoints to investigate and to come forward and be heard." See Churchill, 361 F.3d at 575. Additionally, because this is a class action certified under Rule 23(b)(2) and only provides injunctive relief, it is not necessary for the notice to provide class members with an opportunity to opt out of the settlement. See Equal Opportunity, 599 F.2d at 334 ("When an action is certified under Rule 23(b)(2) . . . absent class members are not required to receive notice or to have the opportunity to opt-out of the suit."); Dukes, 564 U.S. at 363 ((b)(2) does not require that class members be given . . . opt out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory . . . .").
However, the full notice contained on the settlement website will not have any effect if members of the settlement class are not aware of its existence. "When, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class members." Koby, 846 F.3d at 1079. "As a result, 'such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair.'" Id. (quoting In re Bluetooth Headset, 654 F.3d at 941). By the same token, when there are serious questions raised about whether the proposed settlement agreement would protect absent class members, the court must be even more vigilant as to whether class members will actually receive notice of the settlement. This is especially true where objecting to the proposed settlement may be an absent class member's only remedy because, as here, the proposed settlement agreement preserves only the relatively unappealing option of bringing an individual suit for a small amount of damages.
The court is not satisfied that simply publishing a summary notice in two consecutive Monday editions of USA Today is sufficient to notify class members of the existence of the settlement or of the website where they can find additional information. See Hecht v. United Collection Bureau, Inc., 691 F.3d 218, 224-25 (2d Cir. 2012) (holding notice published only in USA Today to be insufficient); Mullane, 339 U.S. at 314. Because the parties represent that defendant's records do not contain the identifying information of potential class members (beyond their phone numbers), as the class members were unintended recipients of defendant's calls, the court is persuaded that requiring individual notice via first-class mail would be impracticable and unduly burdensome for defendant to locate sufficient identifying information. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 168-69 (2d Cir. 1987), cert. denied, 484 U.S. 1004, 108 S. Ct. (1988); Shneider v. Chipotle Mexican Grill, Inc., No. 16-cv-02200-HSG, 2019 WL 1512265 (N.D. Cal. Apr. 8, 2019) (holding individual notice not appropriate where it cannot be proven that list of potential class members to which notice would be sent contains the entire universe of known class members). However, because defendant acknowledges that it has a list of "wrong number" call designations in its records, the court finds that a more targeted form of publication notice than that proposed in the parties' original Settlement Agreement is possible and warranted in this case. See Mullane, 339 U.S. at 314.
In their Joint Status Report, the parties discuss an "alternative digital media notice plan" in which the settlement administrator will utilize the Google Display Network to place advertisements containing a summary notice of the Settlement Agreement on the desktop and/or mobile devices of Google users over a 30-day period. These advertisements will be sent to users corresponding with the phone numbers that defendant's records associate with a "wrong number" call designation, as well as a broader audience of users who provided their phone number to Google when they signed up for an account. (See Joint Status Report at 6-7, Ex. A.) The summary notice will contain a link to the settlement website where potential class members will be able to view the full notice of the Settlement Agreement. (Id. at 7.) The Settlement Administrator anticipates that this digital media notice plan will result in approximately 41,267,000 "impressions" for potential class members to view. (Id.) Other district courts have found similar digital media notice plans to provide adequate notice to class members under Rules 23(b)(3) and 23(e). See Schneider, 2019 WL 1512265, at **4-5; In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-2785-DDC-TJJ, 2020 WL 6044085, at *2 (D. Kan. Oct. 13, 2020) (approving notice plan that included individual notice and digital media notice plan); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 424 F. Supp. 3d 456, 494-95 (E.D. La. 2010) (approving notice plan that included notice in national magazines as well as digital media notice plan). Because the court finds the parties' proposed digital media notice plan (see Joint Status Report, Ex. A) to be significantly more effective than their original proposal to publish notice in consecutive editions of USA Today, and because there is no difference in cost between the two plans, the court finds the parties' proposed digital media notice plan to be "reasonably calculated under all the circumstances" to apprise interested parties of the Settlement Agreement. See Mullane, 339 U.S. at 314.
As the court has emphasized, the findings contained in this Memorandum and Order related to the fairness, adequacy, and reasonableness of the Settlement Agreement are only preliminary. Though the court has not found that any of the Agreement's provisions represent "glaring deficiencies" sufficient to place the settlement outside the range of possible approval at this point, see Syed, 2019 WL 1130469, at *7 (citations omitted); Tableware, 484 F. Supp. 2d at 1079, full evaluation of the fairness and adequacy of the settlement will not occur until the time of the final fairness hearing. See Fed. R. Civ. P. 23(e)(2). There, input from absent class members will be a valuable factor for the court to consider when evaluating the fairness of the settlement's terms, see Staton, 327 F.3d at 977-78, and the overall presence or absence of objections in comparison to class size may provide the court with evidence of the class' overall reaction to the settlement. See Hanlon, 150 F.3d at 1027, overruled on other grounds by Dukes,564 U.S. at 363 ("[T]he fact that the overwhelming majority of the class willingly approved the offer and stayed in the class presents at least some objective positive commentary as to its fairness."); Rodriguez, 563 F.3d at 967 (approving district court's finding of "favorable reaction" to settlement where, 52,000 class members submitted claims and 54 objected).
IT IS THEREFORE ORDERED that plaintiff's motion for preliminary certification of a conditional settlement class and preliminary approval of the class action settlement (Docket No. 38) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED THAT:
(1) the following class be provisionally certified for the purpose of settlement: All natural and juridical persons within the United States (a) to whom defendant placed, or caused to be placed, a call, (b) directed to a number assigned to a cellular telephone service, but not assigned to the intended recipient of defendant's calls, (c) by using an automatic telephone dialing system or an artificial or prerecorded voice, (d) from September 18, 2015 through the date of this Order;
(2) the proposed settlement is preliminarily approved as fair, just, reasonable, and adequate to the members of the settlement class, subject to further consideration at the final fairness hearing after distribution of notice to members of the settlement class;
(3) for purposes of carrying out the terms of the settlement only:
(a) Naomi Legere-Gordon is appointed as the representative of the settlement class and is provisionally found to be an adequate representative within the meaning of Federal Rule of Civil Procedure 23;
(b) Gary M. Klinger of Mason Lietz & Klinger, LLP, and Anthony Paronich of Paronich Law, P.C., are provisionally found to be fair and adequate representatives of the settlement class and are appointed as class counsel for the purposes of representing the settlement class conditionally certified in this Order;
(4) KCC Class Action Services, LLC ("KCC") is appointed as the settlement administrator;
(5) the form and content of the proposed full Notice of Class Action Settlement contained in the parties Settlement Agreement (Settlement Agreement at Ex. 4) is approved, except to the extent that it must be updated to reflect dates and deadlines specified in this Order and to reflect the fact that the final fairness hearing will occur over Zoom;
(6) the content of the proposed digital media notice plan contained in the parties' Joint Status Report (Joint Status Report, Ex. A) is approved, except to the extent it must be updated to reflect dates and deadlines specified in this Order. The summary notice placed on the desktop and/or mobile devices of users shall, at a minimum, state "If you received a call on your cell phone from FirstCredit Incorporated, a class action settlement may affect your rights," and shall contain a link to the settlement website containing the full notice created pursuant to the Notice of Class Action Settlement contained in the parties' Settlement Agreement (Settlement Agreement at Exs. 3-4).
(7) no later than twenty (20) days from the date this Order is signed, KCC shall provide notice to the class members pursuant to the proposed digital media notice plan (Joint Status Report, Ex. A).
(8) no later than sixty (60) days from the date this Order is signed, any member of the settlement class who intends to object to or comment upon the settlement shall mail written notice of that intent to class counsel, defense counsel, and the United States District Court for the District of Idaho, pursuant to the instructions in the Notice of Class Action Settlement. This notice must be personally signed and include the following information: (1) the class member's full name and current address, (2) the cellular telephone number(s) at which the class member believes he or she received the call(s) at issue, (3) a statement that the class member believes him or herself to be a member of the settlement class, (4) the specific grounds for the objection, (5) all documents or writings that the class member wants the court to consider in relation to his or her objection, (6) the name and contact information for any and all attorneys representing or in any way assisting the class member, or who may profit from pursuing the objection, and (7) a statement indicating whether the class member intends to appear at the final fairness hearing (either personally or through his or her attorney);
(9) a final fairness hearing shall be held before this court on Tuesday, June 1, 2021, at 1:30 p.m. (PT) in Courtroom 5 to determine whether the proposed settlement is fair, reasonable, and adequate and should be approved by this court; to determine whether the settlement class's claims should be dismissed with prejudice and judgment entered upon final approval of the settlement; to determine whether final class certification is appropriate; and to consider class counsel's applications for attorney's fees, costs, and an incentive award to plaintiff. The parties shall update the proposed full Notice of Class Action Settlement to inform class members that the final fairness hearing will take place over Zoom. The Notice shall instruct any person who is interested in attending the hearing to contact plaintiff's counsel no later than sixty (60) days from the date KCC publishes the Notice of Class Action Settlement to obtain instructions for gaining access via Zoom. The courtroom deputy shall provide plaintiff's counsel with these instructions no later than May 25, 2021. Plaintiff's counsel shall, in turn, provide the instructions to persons who have expressed interest in attending no later than May 27, 2021. The court may continue the final fairness hearing without further notice to the members of the class;
(10) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file with this court a petition for an award of attorney's fees and costs. Any objections or responses to the petition shall be filed no later than fourteen (14) days before the final fairness hearing. Class counsel may file a reply to any objections no later than seven (7) days before the final fairness hearing;
(11) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file and serve upon the court and defendants' counsel all papers in support of the settlement, the incentive award for the class representative, and any award for attorney's fees and costs;
(12) no later than twenty-eight (28) days before the final fairness hearing, KCC shall prepare, and class counsel shall file and serve upon the court and defendants' counsel, a declaration setting forth the services rendered, proof of notice provided, a list of all class members, and a list of all class members who have commented upon or objected to the settlement;
(13) any person who has standing to object to the terms of the proposed settlement may appear at the final fairness hearing in person or by counsel and be heard to the extent allowed by the court in support of, or in opposition to, (a) the fairness, reasonableness, and adequacy of the proposed settlement, (b) the requested award of attorney's fees, reimbursement of costs, and incentive award to the class representative, and/or (c) the propriety of class certification. To be heard in opposition at the final fairness hearing, a person must, no later than sixty (60) days from the date KCC publishes the Notice of Class Action Settlement, (a) serve by hand or through the mails written notice of his or her intention to appear, stating the name and case number of this action and each objection and the basis therefore, together with copies of any papers and briefs, upon class counsel and counsel for defendants, and (b) file said appearance, objections, papers, and briefs with the court, together with proof of service of all such documents upon counsel for the parties.
Responses to any such objections shall be served by hand or through the mails on the objectors, or on the objector's counsel if there is any, and filed with the court no later than fourteen (14) calendar days before the final fairness hearing. Objectors may file optional replies no later than seven (7) calendar days before the final fairness hearing in the same manner described above. Any settlement class member who does not make his or her objection in the manner provided herein shall be deemed to have waived such objection and shall forever be foreclosed from objecting to the fairness or adequacy of the proposed settlement, the judgment entered, and the award of attorney's fees, costs, and an incentive award to the class representative unless otherwise ordered by the court;
(14) pending final determination of whether the settlement should be ultimately approved, the court preliminarily enjoins all class members (unless and until the class member has submitted a timely and valid request for exclusion) from filing or prosecuting any claims, suits, or administrative proceedings regarding claims to be released by the settlement. Dated: January 26, 2021
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE