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granting preliminary approval to TCPA settlement where class members estimated to receive $40
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CIV. NO. 2:13-01989 WBS CKD
10-06-2015
VICKI ESTRADA, PATRICIA GOODMAN and KIM WILLIAMS-BRITT on behalf of themselves and all others similarly situated, Plaintiffs, v. IYOGI, INC., a New York Corporation, Defendant.
MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Plaintiffs brought this putative class action against iYogi, Inc. ("iYogi"), alleging defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), by employing aggressive sales tactics to get customers to renew their subscriptions to iYogi and placing calls to consumers regardless of whether they had refused the offer or previously asked that defendant not call. Presently before the court is plaintiffs' motion for preliminary approval of the class action settlement.
I. Factual and Procedural Background
iYogi is a technical support company that offers remote computer services to millions of individuals worldwide. Consumers sign up for a year-to-year flat fee service plan. Plaintiffs Vicki Estrada, Patricia Goodman, and Kim Williams-Britt allege they received several calls to their cellphones from iYogi soliciting them to renew their service plans.
Plaintiffs contend defendant violated three provisions of the TCPA. The first provision makes it "unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). The second provision makes it unlawful to place more than one telephone call within a twelve-month period to persons whose cellular telephone numbers are listed on the national do-not-call registry. Id. at § 227(c)(5); 47 C.F.R. § 64.1200(c), (e). The third provision prohibits the making of unsolicited robocalls utilizing an artificial or prerecorded voice to cellular phones without first obtaining the call recipients' prior express consent to do so. 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B).
Plaintiffs brought this lawsuit on behalf of a putative class of consumers in the United States who are iYogi subscribers or former subscribers whom iYogi called on their cellphones. Plaintiffs now seek preliminary approval of the parties' stipulated class-wide settlement, pursuant to Federal Rule of Civil Procedure 23(e).
II. Discussion
Rule 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). "Approval under 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted." Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004) (citing Manual for Complex Litig., Third, § 30.41 (1995)).
This Order is the first step in that process and analyzes only whether the proposed class action settlement deserves preliminary approval. See Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010). Preliminary approval authorizes the parties to give notice to putative class members of the settlement agreement and lays the groundwork for a future fairness hearing, at which the court will hear objections to (1) the treatment of this litigation as a class action and/or (2) the terms of the settlement. See id.; Diaz v. Trust Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989) (stating that a district court's obligation when considering dismissal or compromise of a class action includes holding a hearing to "inquire into the terms and circumstances of any dismissal or compromise to ensure that it is not collusive or prejudicial"). The court will reach a final determination as to whether the parties should be allowed to settle the class action on their proposed terms after that hearing.
The Ninth Circuit has declared a strong judicial policy favoring settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nevertheless, where, as here, "the parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both [1] the propriety of the certification and [2] the fairness of the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003).
The first part of this inquiry requires the court to "pay 'undiluted, even heightened, attention' to class certification requirements" because, unlike in a fully litigated class action suit, the court "will lack the opportunity . . . to adjust the class, informed by the proceedings as they unfold." Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The parties cannot "agree to certify a class that clearly leaves any one requirement unfulfilled," and consequently the court cannot blindly rely on the fact that the parties have stipulated that a class exists for purposes of settlement. See Windsor, 521 U.S. at 621-22 (stating that courts cannot fail to apply the requirements of Rule 23(a) and (b)).
The second part of this inquiry obliges the court to "carefully consider 'whether a proposed settlement is fundamentally fair, adequate, and reasonable,' recognizing that '[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness . . . .'" Staton, 327 F.3d at 952 (quoting Hanlon, 150 F.3d at 1026); see also Fed. R. Civ. P. 23(e) (outlining class action settlement procedures).
A. Class Certification
A class action will be certified only if it meets the four prerequisites identified in Rule 23(a) and additionally fits within one of the three subdivisions of Rule 23(b). See Ontiveros v. Zamora, Civ. No. 2:08-567 WBS DAD, 2014 WL 3057506, at *4 (E.D. Cal. July 7, 2014); Fed. R. Civ. P. 23(a)-(b). Although a district court has discretion in determining whether the moving party has satisfied each Rule 23 requirement, see Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must conduct a rigorous inquiry before certifying a class, see Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403-05 (1977).
1. Rule 23(a) Requirements
Rule 23(a) restricts class actions to cases where:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.Fed. R. Civ. P. 23(a).
a. Numerosity
Under the first requirement, "[a] proposed class of at least forty members presumptively satisfies the numerosity requirement." Avilez v. Pinkerton Gov't Servs., 286 F.R.D. 450, 456 (C.D. Cal. 2012); see also, e.g., Collins v. Cargill Meat Solutions Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wanger, J.) ("Courts have routinely found the numerosity requirement satisfied when the class comprises 40 or more members."). Here, plaintiffs estimate the proposed class will contain approximately 189,000 members. (See Pls.' Mot. at 9 (Docket No. 74).) This easily satisfies the numerosity requirement.
b. Commonality
Commonality requires that the class members' claims "depend upon a common contention" that 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." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011). "[A]ll questions of fact and law need not be common to satisfy the rule," and the "existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." Hanlon, 150 F.3d at 1019.
The proposed class includes "[a]ll individuals who are iYogi subscribers or former subscribers in the United States to whom iYogi or any agent or affiliate of iYogi made or attempted to make outbound calls (including but not limited to subscription renewal calls) to a telephone number assigned to cellular telephone service from September 23, 2009 until November 18, 2013." (Pls.' Mot. at 8.) Like the named plaintiffs, the class would be comprised of individuals alleging that an iYogi employee or agent called their cellphones to convince them to renew their subscription in violation of the TCPA. Due to their common legal contentions, the proposed class meets the commonality requirement.
c. Typicality
Typicality requires that named plaintiffs have claims "reasonably coextensive with those of absent class members," but their claims do not have to be "substantially identical." Hanlon, 150 F.3d at 1020. 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." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted).
The putative class members allege a simple set of facts that are essentially identical to those alleged by the named plaintiffs. The class injury for all class members was the aggravation and nuisance of receiving unsolicited and harassing telephone calls and the money paid to wireless telephone carriers for the receipt of such calls. Such injury was caused by the same conduct of iYogi. (See First Am. Compl. ("FAC") at 1.) Plaintiffs seek the remedy of statutory damages, which would presumably be the same award for each individual injury. (See id. at 10, 13.) While there could conceivably be nuances with respect to a class member's experiences with iYogi or costs from receiving a call, class members' claims appear to be reasonably coextensive with those of the named plaintiffs. The proposed class therefore meets the typicality requirement.
d. Adequacy of Representation
To resolve the question of adequacy, the court must make two inquiries: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150 F.3d at 1020. These questions involve consideration of a number of factors, including "the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive." Brown v. Ticor Title Ins., 982 F.2d 386, 390 (9th Cir. 1992).
First, there do not appear to be any conflicts of interest. The named plaintiffs' interests are generally aligned with the putative class members. The putative class members suffered a similar injury as the named plaintiffs, and the definition of the class is narrowly tailored and aligns with the named plaintiffs' interests. See Windsor, 521 U.S. at 625-26 ("[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members."); Murillo, 266 F.R.D. at 476 (finding that an appropriate class definition ensured that "the potential for conflicting interests will remain low while the likelihood of shared interests remains high").
The settlement agreement provides for an incentive award of $1,000 to each of the named plaintiffs, to be paid separate from and in addition to the class recovery of $40 per class member. An incentive award of $1,000 to each of the named plaintiffs does not on its face appear to create a conflict of interest. The Ninth Circuit has specifically approved the award of "reasonable incentive payments" to named plaintiffs. Staton, 327 F.3d at 977-78. Moreover, courts have generally found that $5,000 incentive payments are reasonable. Hopson v. Hanesbrands Inc., Civ. No. 08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal. Apr. 3, 2009) (citing In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000); In re SmithKline Beckman Corp., 751 F. Supp. 525, 535 (E.D. Pa. 1990); Alberto v. GMRI, Inc., 252 F.R.D. 652, 669 (E.D. Cal. 2008)). Here, the proposed award amount of $1,000 per representative is significantly lower than $5,000 payments found to be reasonable and proportionate to the recovery of other class members.
The second prong of the adequacy inquiry examines the vigor with which the named plaintiffs and their counsel have pursued the common 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.
Plaintiffs' counsel states that he and his colleagues at Edelson PC "are experienced members of the plaintiffs' bar who have built their practice litigating similarly complex consumer class actions, including many under the TCPA." (Balabanian Decl. ¶ 17 (Docket No. 74-2).) Further, plaintiffs' counsel states he has "already dedicated substantial resources to the prosecution of this Action . . . and will continue to do so throughout the Action's pendency." (Id. ¶ 18.) The court finds no reason to doubt that plaintiffs' attorney is qualified to conduct the proposed litigation and assess the value of the settlement.
In addition, plaintiffs' counsel seems to have seriously considered the risks of continued litigation in deciding to settle this action. For instance, he recognized that if the case were to proceed to trial, defendant would likely assert several "potentially dispositive defenses":
For example, on the issue of consent, there is no dispute that iYogi collected the phone numbers for the calls at issue directly from its customers at the time they subscribed to its remote support services. To that end, iYogi will also likely raise the defense that it was in a direct relationship with the Settlement Class Members and that their provision of their cellular phone numbers is therefore enough to constitute consent.(Id. ¶¶ 26-27.) Plaintiffs' counsel also acknowledged that iYogi would undoubtedly challenge a motion for class certification and appeal any judgment in favor of the class, further delaying recovery. (Id. ¶ 27.) At this stage, the court agrees that these factors weighed in favor of settlement. The named plaintiffs and their counsel appear to be prepared to prosecute the action vigorously on behalf of the class.
2. Rule 23(b)
An action that meets all the prerequisites of Rule 23(a) may be certified as a class action only if it also satisfies the requirements of one of the three subdivisions of Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Plaintiffs seek certification under Rule 23(b)(3), which provides that a class action may be maintained only if (1) "the court finds that questions of law or fact common to class members predominate over questions affecting only individual members" and (2) "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
a. Predominance
"Because Rule 23(a)(3) already considers commonality, the focus of the Rule 23(b)(3) predominance inquiry is on the balance between individual and common issues." Murillo, 2 66 F.R.D. at 476 (citing Hanlon, 150 F.3d at 1022); see also Windsor, 521 U.S. at 623 ("The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.").
The class members' contentions appear to be similar, if not identical. Again, although some nuances among the class members' allegations could exist, there is no indication that those variations are "sufficiently substantive to predominate over the shared claims." See id. Accordingly, the court finds that common questions of law and fact predominate over the class members' claims.
b. Superiority
Rule 23(b)(3) also requires a showing that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b) (3). It sets forth four non-exhaustive factors to consider in making this determination:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.Id. The parties settled this action prior to certification, making factors (C) and (D) inapplicable. See Murillo, 266 F.R.D. at 477 (citing Windsor, 521 U.S. at 620). Class members might have an interest in individually controlling prosecution given that recovery through settlement will amount to a $40 award whereas the TCPA provides statutory damages of $500 per call received or, at most, $1,500 if defendant's conduct is found to be willful. See 47 U.S.C. § 227(b)(3)(C), (c)(5)(B). However, the costs of pursuing litigation individually would be substantially higher, especially considering that the TCPA does not provide for payment of attorney fees. Id. There is also always the risk that defendant will prevail at trial and plaintiffs will recover nothing. As a result, class members' interest in pursuing individual suits is likely low. The court is unaware of any concurrent litigation already begun by class members regarding TCPA violations by defendant. Objectors at the fairness hearing may reveal otherwise. See Alberto, 252 F.R.D. at 664. At this stage, the class action device appears to be the superior method for adjudicating this controversy.
Plaintiffs have informed the court that there were separate actions filed by other clients of Edelson PC against iYogi on claims unrelated to this action. (Pls.' Mot. at 7.) Those matters have been settled on an individual basis. (Id.) --------
3. Rule 23(c)(2) Notice Requirements
If the court certifies a class under Rule 23(b)(3), it "must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172-77 (1974)). Although that notice must be "reasonably certain to inform the absent members of the plaintiff class," actual notice is not required. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted).
The settlement agreement provides that the settlement administrator, Epiq Class Action & Claims Solutions, Inc., will provide notice to the class via e-mail. (Pls.' Mot. at 23-24; Settlement Agreement ¶ 7.1 (Docket No. 74-1).) If an e-mail bounces back or is otherwise undeliverable, the settlement administrator will re-send the email one time. (Settlement Agreement ¶ 7.1.) The e-mail will direct class members to the settlement website. (Id.) The parties supplied the full notice, (Settlement Agreement Ex. D), and claim form, (id. at Ex. A), which will be available on the settlement website.
The notice explains the proceedings; defines the scope of the class; informs the class member of the claim form requirement and the binding effect of the class action; describes the procedure for opting out and objecting; and provides the time and date of the fairness hearing. The content of the notice therefore satisfies Rule 23(c)(2)(B). See Fed. R. Civ. P. 23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) ("Notice 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.'" (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)).
Plaintiffs contend that e-mail will "be particularly effective in this case given that e-mail was one of the primary means by which iYogi communicated with its customers, and each customer that registered for iYogi's services was required to provide a valid e-mail address to do so." (Pls.' Mot. at 23-24; Balabanian Decl. ¶ 20 (Docket No. 74-2).) The reliance on e-mail alone is not generally the best form of notice, especially given that the parties do not have any process in place for correcting out-of-date e-mail addresses. However, given defendant's history of using email to contact customers and the fact that it would likely be prohibitively expensive to provide notice to such a large class through other means, the court is satisfied that this system is reasonably calculated to provide notice to class members and is the best form of notice available under the circumstances.
B. Preliminary Settlement Approval
After determining that the proposed class satisfies the requirements of Rule 23, the court must determine whether the terms of the parties' settlement appear fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026. This process requires the court to "balance a number of 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.Hanlon, 150 F.3d at 1026. Many of these factors cannot be considered until the final fairness hearing, so the court need only conduct a preliminary review at this time to resolve any "glaring deficiencies" in the settlement agreement before authorizing notice to class members. Ontiveros, 2014 WL 3057506, at *12 (citing Murillo, 266 F.R.D. at 478).
At the preliminary stage, "the court need only 'determine whether the proposed settlement is within the range of possible approval.'" Murillo, 266 F.R.D. at 479 (quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)). This generally requires consideration of "whether the proposed settlement discloses grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class representatives or segments of the class, or excessive compensation of attorneys." Id. (quoting W. v. Circle K Stores, Inc., Civ. No. 04-0438 WBS GGH, 2006 WL 1652598, at *11-12 (E.D. Cal. June 13, 2006)). Courts often begin by examining the process that led to the settlement's terms to ensure that those terms are "the result of vigorous, arms-length bargaining" and then turn to the substantive terms of the agreement. See, e.g., West, 2006 WL 1652598, at *11-12; In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007) ("[P]reliminary approval of a settlement has both a procedural and a substantive component.").
1. Negotiation of the Settlement Agreement
The parties represent that the settlement is the result of arms-length settlement negotiations, including a private mediation before the Honorable Morton Denlow (ret.) of JAMS (Chicago). (Balabanian Decl. ¶ 8); see La Fleur v. Med. Mgmt. Int'l, Inc., Civ. No. 5:13-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25, 2014) ("Settlements reached with the help of a mediator are likely non-collusive."). Plaintiffs' counsel stated that the settlement was reached after "months of continued and often contentious settlement discussions." (Balabanian Decl. ¶ 22.) He declares he took into account the uncertain outcome and risks of litigation, particularly the delay often inherent in class actions. (Id. ¶¶ 26-27.) Moreover, the parties had begun formal discovery and that also informed the decision to settle. (Pls.' Mot. at 5.) In light of these considerations, the court finds no reason to doubt the parties' representations that the settlement was the result of vigorous, arms-length bargaining.
2. Amount Recovered and Distribution
In determining whether a settlement agreement is substantively fair to the class, the court must balance the value of expected recovery against the value of the settlement offer. See Tableware, 484 F. Supp. 2d at 1080. This inquiry may involve consideration of the uncertainty class members would face if the case were litigated to trial. See Ontiveros, 2014 WL 3057506, at *14.
The TCPA provides for damages of $500 "for each such violation" of the statute or, at most, $1,500 if defendant's conduct was willful. 47 U.S.C. § 227(b)(3)(B), (c)(5)(B). In contrast, the settlement would provide each class member with $40 in cash, which is only eight percent of the available damages under the TCPA. In addition, the settlement agreement requires class members to take the affirmative step of opting in to receive the $40 payment. Class members must submit a claim form through the settlement website; by downloading the form from the website and submitting it by mail to the settlement administrator; or by calling a toll free number or writing to the settlement administrator to request a hard copy claim form. (Settlement Agreement ¶ 6.1.) The agreement also requires class members to take the affirmative step of opting out if they do not wish to be part of the settlement class. (Id. ¶¶ 1.29, 1.30, 8.1.) Class members who do not request to be excluded will release defendant from their TCPA claims. (Id. at ¶ 1.28.) Therefore, there is a risk that some members of the class will opt into the judgment by default, thus releasing defendant, but get no recovery simply because they fail to timely return the claim form.
While the settlement agreement provides class members with only a small percentage of the possible recovery and contains a potentially unfair opt-in/opt-out requirement, there are many uncertainties associated with pursuing litigation that justify this recovery. As discussed above, plaintiffs' counsel has testified that there are two "potentially dispositive" defenses that iYogi could assert with respect to customers' consent and there are risks of significant delay if defendant challenges a motion for class certification or any final judgment in favor of plaintiffs. (Balabanian Decl. ¶¶ 26-27.) In addition, there is no assurance the class will recover the full amount of damages even if it prevails at trial "given iYogi's financial condition and limited insurance coverage." (Id. ¶ 27.)
In light of the uncertainties associated with pursuing litigation, the court will grant preliminary approval to the settlement because it is within the range of possible approval. Murillo, 266 F.R.D. at 479 (quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)).
3. Attorney's Fees
If a negotiated class action settlement includes an award of attorneys' fees, that fee award must be evaluated in the overall context of the settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio, 291 F.R.D. at 455. 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 settlement agreement provides that plaintiffs' counsel will apply to the court for a fee award of up to $300,000, to be paid by defendant separate and apart from the recovery of the class. (Settlement Agreement ¶ 10.2.) Defendant may oppose plaintiffs' petition for the fee award. (Id.) If the court does not approve, in whole or in part, the fee award, it will not prevent the settlement agreement from becoming effective or be grounds for termination. (Id.)
In deciding the attorney's fees motion, the court will have the opportunity to assess whether the requested fee award is reasonable, by multiplying a reasonable hourly rate by the number of hours counsel reasonably expended. See Van Gerwen v. Gurantee Mut. Life. Co., 214 F.3d 1041, 1045 (9th Cir. 2000). As part of this lodestar calculation, the court may take into account factors such as the "degree of success" or "results obtained" by plaintiffs' counsel. See Cunningham v. County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988). If the court, in ruling on the fees motion, finds that the amount of the settlement warrants a fee award at a rate lower than what plaintiffs' counsel requests, then it will reduce the award accordingly. The court will therefore not evaluate the fee award at length here in considering whether the settlement is adequate. However, the fact that the attorney's fees will not detract from the class members' recovery militates in favor of approving the settlement agreement.
IT IS THEREFORE ORDERED that plaintiffs' motion for preliminary certification of a conditional settlement class and preliminary approval of the class action settlement be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that:
(1) Defendant shall notify class members of the settlement in the manner specified under section VII of the settlement agreement;
(2) Class members who want to receive a settlement payment under the settlement agreement must accurately complete and deliver the claim form to the settlement administrator no later than sixty (60) calendar days after the last day for notice to be provided under section V and VI of the settlement agreement;
(3) Class members who want to object to or comment on the settlement agreement must deliver written objections to plaintiffs' counsel and defendant's counsel, and must file such objection with the court, no later than sixty (60) calendar days after the last day for notice to be provided under section VII of the settlement agreement. Written objections must be filed and postmarked no later than the objection deadline. The objection must include: (a) the name and case number of the action, Estrada, et al. v. iYogi, Inc., Case No. 2:13-CV-01989 (E.D. Cal.); (b) the class member's full name and current address; (c) the email address the member used in connection with purchasing an iYogi subscription; (d) a signed declaration that he/she believes himself or herself to be a member of the settlement class; (e) the specific grounds for the objection; (f) all documents or writings that the member desires the court to consider; and (g) a statement regarding whether the class member or class member's counsel intend to appear at the Fairness Hearing. Any class member who files and serves a written objection, as described in this paragraph, may appear at the fairness hearing, either in person or through personal counsel hired at the class member's expense, to object to the settlement agreement.
(4) Class members who fail to object to the settlement agreement in the manner specified above shall be deemed to have waived their right to object to the settlement agreement and be forever barred from making any such objections (whether in this action or any other action or proceeding).
(5) Class members who want to be excluded from the settlement must, within sixty days after the last day for notice to be provided, submit a request for exclusion indicating (a) the name and case number of the action, Estrada, et al. v. iYogi, Inc., Case No. 2:13-CV-01989 (E.D. Cal.); (b) the name, address, and telephone number of the person requesting exclusion (including the telephone number allegedly called by defendant); and (c) a statement to the effect that "I/We hereby request to be excluded from the proposed Settlement Classes in Estrada, et al. v. iYogi, Inc., Case No. 2:13-CV-01989 (E.D. Cal.)." Requests must be in writing, signed by the person seeking exclusion, and postmarked or received by the end of the opt-out period.
(6) The class is provisionally certified as a class of all individuals who are iYogi subscribers or former subscribers in the United States to whom iYogi or any agent or affiliate of iYogi made or attempted to make outbound calls (including but not limited to subscription renewal calls) to a telephone number assigned to cellular telephone service from September 23, 2009 until November 18, 2013. (Settlement Agreement ¶ 1.35.) Excluded from the class are the judges presiding over the action and members of their families; defendant; all persons who properly execute and submit a timely request for exclusion; all persons whose claims against defendant have been fully and finally adjudicated and/or released; and the legal representatives of any excluded persons.
(7) Plaintiffs Vicki Estrada, Patricia Goodman, and Kim Williams-Britt are conditionally certified as the class representatives to implement the parties' settlement in accordance with the settlement agreement. The law firm of Edelson PC, through Jay Edelson, Rafey S. Balabanian, Benjamin H. Richman, and Courtney C. Booth, is conditionally appointed as class counsel. Plaintiffs and Edelson PC must fairly and adequately protect the class's interests.
(8) The parties agree that Epiq Class Action & Claims Solutions, Inc. will serve as the settlement administrator.
(9) If the settlement agreement terminates for any reason, the following will occur: (a) Class certification will be automatically vacated; (b) plaintiffs will stop functioning as class representatives; and (c) this action will revert to its previous status in all respects as it existed immediately before the parties executed the settlement agreement.
(10) All discovery and pretrial proceedings and deadlines are stayed and suspended until further notice from the court, except for such actions as are necessary to implement the settlement agreement and this Order.
(11) The fairness hearing is set for January 25, 2016 at 2:00 p.m., in Courtroom No. 5, to determine whether the settlement agreement should be finally approved as fair, reasonable, and adequate.
(12) Based on the date this Order is signed and the date of the fairness hearing, the following are the certain associated dates in this settlement:
(a) Defendant shall send e-mail notice within 28 days after entry of this Order;
(b) Pursuant to Local Rule 293, plaintiffs shall file a motion for attorney's fees no later than 28 days prior to the final fairness hearing;
(c) The last day for class members to file a claim, request exclusion, or object to the settlement is 60 days after the date on which notice is provided;
(13) The parties shall file briefs in support of the final approval of the settlement no later than January 11, 2016.
(14) In the case that the fairness hearing be postponed, adjourned, or continued, the updated hearing date shall be posted on the settlement website. Dated: October 6, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE