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Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`PAUL IZOR,
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`Plaintiff,
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`v.
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`ABACUS DATA SYSTEMS, INC,
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`Case No. 19-cv-01057-HSG
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`ORDER GRANTING MOTION FOR
`PRELIMINARY APPROVAL FOR
`CLASS ACTION SETTLEMENT
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`Re: Dkt. No. 69
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`Defendant.
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`Pending before the Court is the unopposed motion for preliminary approval of class action
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`settlement filed by Plaintiff Paul Izor. See Dkt. No. 69. The parties have reached a settlement
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`regarding Plaintiff’s claims and now seek the required court approval. For the reasons set forth
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`below, the Court GRANTS the motion.
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`I. BACKGROUND
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`A. Factual Background
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`Plaintiff brings this Telephone Consumer Protection Act, 46 U.S.C. § 227 (“TCPA”), class
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`action against Defendant Abacus Data Systems Inc. (“Abacus”) on behalf of himself and two
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`putative classes of others similarly situated. See generally Dkt. No. 1 (“Compl.”). Plaintiff seeks
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`to represent two classes:
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`Autodialed No Consent Class: All persons in the United States who
`from four years prior to the filing of this action through class
`certification (1) Defendant (or an agent acting on behalf of Defendant)
`text messaged, (2) on the person’s cellular telephone number, (3)
`using a text messaging platform substantially similar to the text
`messaging platform Defendant used to text message Plaintiff, (4) for
`whom Defendant claims (a) it obtained prior express written consent
`in the same manner as Defendant claims it supposedly obtained prior
`express written consent to text message Plaintiff, or (b) it did not
`obtain prior express written consent.
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`Do Not Call Registry Class: All persons in the United States who
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 2 of 15
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`from four years prior to the filing of this action through class
`certification (1) Defendant (or an agent acting on behalf of Defendant)
`texted more than one time; (2) within any 12-month period (3) where
`the person’s telephone number had been listed on the DNC for at least
`thirty days; (4) for a substantially similar reason that Defendant texted
`Plaintiff; and (5) for whom Defendant claims (a) it obtained prior
`express written consent in the same manner as Defendant claims it
`supposedly obtained prior express written consent to text message
`Plaintiff, or (b) Defendant did not obtain prior express written
`consent.
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`Compl. at ¶ 26.
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`Defendant sells software services to professionals, including HotDocs, “a document
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`automation software company for the legal profession.” Id. at ¶ 1 n.2. Plaintiff alleges that
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`Defendant, or a third party acting on behalf of Defendant, “sen[t] out unsolicited text messages to
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`consumers purportedly ‘notifying’ them that their version of HotDocs is out of date and asking
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`them to ‘press y’ to schedule an appointment presumably to update their accounts.” Id. at ¶ 2, 16.
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`For such updates, however, consumers “must pay a monthly software service fee of $75, and the
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`appointments they schedule with Abacus are nothing more than sales pitches for HotDocs.” Id. at
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`¶ 2. Plaintiff alleges that Defendant sent “two autodialed texts messages to his cellular phone.”
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`Id. at ¶ 4. The first text read: “HotDocs: Your HotDocs version is out of date and requires an
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`update. Reply Y to schedule an appointment. Txt STOP to OptOut.” Id. at ¶ 11. Plaintiff
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`immediately texted “STOP,” to which he received a second text: “AbacusNext: You opted out and
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`will no longer receive messages from AbucusNext 8588824894.” Id. at ¶ 20.
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`Plaintiff brings two causes of action under the TCPA: (1) Defendant allegedly sent
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`unsolicited text messages using an automatic telephone dialing system (“ATDS”) in violation of
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`47 U.S.C. § 227(b)(1)(A)(iii); and (2) Defendant allegedly violated a regulation, 47 C.F.R.
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`§ 64.1200, promulgated under the statute in violation of 47 U.S.C. § 227(c)(5). Id. at ¶¶ 32–44.
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`B. Procedural Background
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`Plaintiff filed this action on February 26, 2019. See Dkt. No. 1. After the Court denied
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`Defendant’s motion to dismiss and motion to stay, Defendant filed an answer on August 19, 2019.
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`Dkt. No. 45. After months of discovery, the parties engaged in a full-day mediation with mediator
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`Bruce A. Friedman on January 31, 2020. Dkt. No. 69-2 (“Kaufman Decl.”) at ¶ 18. While the
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`mediation did not initially end in settlement, the parties reached an agreement in principle on June
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 3 of 15
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`5, 2020, after conducting more discovery and engaging in further settlement negotiations with Mr.
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`Friedman. Id. at ¶ 7; see also Dkt. No. 67.
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`C. Settlement Agreement
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`The parties entered into a settlement agreement, fully executed on June 17, 2020. Dkt. No.
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`69-1, Ex. 1 (“SA”). The parties filed an amendment to the settlement agreement on August 6,
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`2020. Dkt. No. 72-1 (“Amendment”). The key terms are as follows:
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`Settlement Class Definition: The Settlement Class is defined as:
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`[A]ll regular users or subscribers of numbers assigned to a paging
`service, cellular telephone service, specialized mobile radio service,
`radio common carrier service, or any service for which the called
`party is charged for the call to which a text message was transmitted
`by Trumpia on behalf of Defendant within four years of February
`26, 2019.
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`SA ¶ 1.1.36.
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`Settlement Benefits: Defendant will make a $1,950,000 non-reversionary Settlement
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`Fund. Id. ¶¶ 1.1.40, 4.1. The Settlement Fund will include payments to the Class Members,
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`administrative expenses (estimated between $72,496 and $103,996), Plaintiff’s attorneys’ fees (not
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`to exceed $650,000) and costs (not to exceed $25,000), and any incentive payment for Lead
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`Plaintiff (not to exceed $5,000).
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`In addition to the Settlement Fund, Defendant agreed that it will “implement policies and
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`procedures to prevent against the sending of text messages without prior express consent to
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`numbers assigned to wireless carriers using an automated telephone dialing system, and . . . will
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`not send any telemarketing text messages to promote its products and/or services in violation of
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`the TCPA.” Id. at ¶ 4.3. Specifically, the parties agreed that “Defendant will not make any
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`telemarketing calls or send any telemarketing text messages for a period of 2 years to any
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`Settlement Class Member without an independent investigation into the existence of consent,”
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`“Defendant will obtain a subscription to the National Do Not Call Registry,” Defendant will
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`perform a quarterly spot check of 10 telemarketing calls and/or texts made on its behalf,” and
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`Defendant will require any vendors making telemarketing calls to identify any sub-vendors they
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`use and get prior written approval to use them.” Amendment at 2–3 (adding detail to SA ¶ 4.3).
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 4 of 15
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`Release: All Settlement Class Members will release:
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`[A]ny and all claims, liabilities, demands, causes of action, or lawsuits
`of the Settlement Class Members, whether known or unknown,
`whether legal, statutory, equitable, or of any other type or form,
`whether under federal, state, or local law (such as any violations of
`the Telephone Consumer Protection Act, 47 USC § 227, the FCC’s
`related regulations—including Do Not Call requirements, or unfair or
`deceptive practices act), and whether brought in an individual,
`representative, or any other capacity, (a) that were brought in the
`Litigation or could have been brought under state or local laws similar
`to the Telephone Consumer Protection Act, (b) that arise from the
`manner in which text messages were sent, or attempted to be sent, by
`or on behalf of Defendant, (c) that arise from a lack of consent for
`sending text messages or (d) that arise from the sending, or attempted
`sending, of text messages by or on behalf of Defendant to telephone
`numbers registered on any federal or state do not call list, within the
`four years preceding February 26, 2019.
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`See id. at 1–2 (amending SA ¶ 1.1.29).
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`Class Notice: A third-party settlement administrator will send summary class notices via
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`first-class U.S. mail to each member of the class. SA ¶ 7.5.3. The notice will include the nature
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`of the action; the class definition; a summary of the settlement terms; instructions on how to
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`complete a claim form in order to receive payment; instructions on how to object to and opt out of
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`the settlement, and relevant deadlines. Id. at Ex. C.
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`In addition to the mailed summary notices, the third-party settlement administrator will
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`also publish a one-time summary notice “in a magazine, website, or through targeted social media
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`ads.” Id. at ¶ 7.5.4; see also id. at Ex. C. The parties indicate that the settlement administrator
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`will use Google Display Network and Facebook Ads, which they anticipate will produce
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`105,000,000 impressions. See id. at Ex. C. Finally, the settlement administrator will set up a
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`Settlement Website, which will include a long-form notice, within 30 days of preliminary
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`approval. Id. at ¶ 7.3.1; see also id. at Ex. B.
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`Opt-Out Procedure: The deadline for a class member to submit a request for exclusion or
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`to object to the Settlement is 60 days after the initial mailing and electronic posting date of the
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`notice. SA at ¶¶ 1.1.25, 10.4. In order to opt-out, the Class Member must send a written request
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`with a clear indication that he or she would like to be excluded as well as the “Class Member’s
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`name, address, and the telephone number that allegedly received a text or text messages sent by
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`Trumpia on behalf of Defendant during the Settlement Class period.” Id. at ¶ 10.4. Defendant has
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`the right to terminate the Settlement Agreement if the total number of opt outs exceeds 1,000. Id.
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`at ¶ 10.4.4.
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`Claims Process and Distribution: Each Class Member is entitled to submit one claim
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`through the proposed claim form. Id. at Ex. A. Each valid claim form submitted before the claims
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`deadline will receive a pro rata share of the Settlement Fund within 60 days of the date any
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`judgment becomes “Final.” “‘Final’ means one business day following the latest of the following
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`events: (i) the expiration of three (3) business days after the time to file a motion to alter or amend
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`a judgment under Fed. R. Civ. P. 59(e) has passed without any such motion having been filed; (ii)
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`the expiration of the time in which to file an Appeal of any judgment entered pursuant to this
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`Agreement has passed without any Appeal having been taken; or (iii) the resolution of any such
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`Appeal in a manner that does not reverse or vacate the Judgment and in a manner that permits the
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`consummation of the Settlement substantially in accordance with the terms and conditions of this
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`Agreement.” Id. at ¶ 1.1.14.
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`Incentive Award: The named Plaintiff may apply for an incentive award of no more than
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`$5,000. See Dkt. No. 69 at 11; see also SA at ¶ 5.
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`Attorneys’ Fees and Costs: Class counsel intends to apply for attorneys’ fees not to exceed
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`one-third of the Settlement Fund (or $650,000), as well as costs not to exceed $25,000. See Dkt.
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`No. 69 at 12; see also SA at ¶ 6.
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`II.
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`PROVISIONAL CLASS CERTIFICATION
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`The plaintiff bears the burden of showing by a preponderance of the evidence that class
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`certification is appropriate under Federal Rule of Civil Procedure 23. See Wal-Mart Stores, Inc. v.
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`Dukes, 564 U.S. 338, 350–51 (2011). Class certification is a two-step process. First, a plaintiff
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`must establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality,
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`typicality, and adequacy of representation. Id. at 349. Second, she must establish that at least one
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`of the bases for certification under Rule 23(b) is met. Where, as here, a plaintiff seeks to certify a
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`class under Rule 23(b)(3), she must show that “questions of law or fact common to class members
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`predominate over any questions affecting only individual members, and that a class action is
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 6 of 15
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`superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
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`R. Civ. P. 23(b)(3).
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`“The criteria for class certification are applied differently in litigation classes and
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`settlement classes.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019)
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`(“Hyundai II”). When deciding whether to certify a litigation class, a district court must consider
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`manageability at trial. Id. However, this concern is not present in certifying a settlement class.
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`Id. at 556–57. In deciding whether to certify a settlement class, a district court “must give
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`heightened attention to the definition of the class or subclasses.” Id. at 557.
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`A. Rule 23(a) Certification
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`i. Numerosity
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`Rule 23(a)(1) requires that the putative class be “so numerous that joinder of all members
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`is impracticable.” The Court finds that numerosity is satisfied here because joinder of the
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`estimated 18,722 class members would be impracticable. See Kaufman Decl. at ¶ 18.
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`ii. Commonality
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`Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” A
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`contention is sufficiently common where “it is capable of classwide resolution — which means
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`that determination of its truth or falsity will resolve an issue that is central to the validity of each
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`one of the claims in one stroke.” Dukes, 564 U.S at 350. Commonality exists where “the
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`circumstances of each particular class member vary but retain a common core of factual or legal
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`issues with the rest of the class.” Parra v. Bashas’, Inc., 536 F.3d 975, 978–79 (9th Cir. 2008).
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`“What matters to class certification . . . is not the raising of common ‘questions’—even in
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`droves—but rather the capacity of a classwide proceeding to generate common answers apt to
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`drive the resolution of the litigation.” Dukes, 564 U.S at 350 (emphasis in original). Even a single
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`common question is sufficient to meet this requirement. Id. at 359.
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`Common questions of law and fact in this action include whether Defendant can be held
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`vicariously liable for the text messages sent by Trumpia, a third-party text-messaging platform.
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`See Compl. at ¶ 16. Another common question of law and fact is whether Trumpia used an
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`autodialer under the TCPA. See Compl. at ¶¶ 2, 26, 29, 33. Accordingly, the Court finds that the
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`commonality requirement is met in this case.
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`iii. Typicality
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`Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical
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`of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The test of typicality is whether
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`other members have the same or similar injury, whether the action is based on conduct which is
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`not unique to the named plaintiffs, and whether other class members have been injured by the
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`same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)
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`(quotation omitted). That said, under the “permissive standards” of Rule 23(a)(3), the claims
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`“need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.
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`1998) (quotation omitted).
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`Plaintiff’s claims are both factually and legally similar to those of the putative class
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`because Defendant allegedly sent unsolicited text messages advertising its products to both
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`Plaintiff and all class members. Compl. at ¶¶ 2–3, 34. The Court finds this sufficient to satisfy the
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`typicality requirement.
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`iv. Adequacy of Representation
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`Rule 23(a)(4) requires that the “representative parties will fairly and adequately represent
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`the interests of the class.” The Court must address two legal questions: (1) whether the named
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`Plaintiff and her counsel have any conflicts of interest with other class members and (2) whether
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`the named Plaintiff and her counsel will prosecute the action vigorously on behalf of the class.
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`See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). This inquiry “tend[s] to
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`merge” with the commonality and typicality criteria. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
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`147, 158 n.13 (1982). In part, these requirements determine whether “the named plaintiff’s claim
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`and the class claims are so interrelated that the interests of the class members will be fairly and
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`adequately protected in their absence.” Id.
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`The Court is unaware of any actual conflicts of interest in this matter and no evidence in
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`the record suggests that either Plaintiff or proposed class counsel have a conflict with other class
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`members. Both Plaintiff’s counsel have been appointed class counsel in many complex class
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`actions, especially those involving the TCPA. Kaufman Decl. at ¶ 15, Ex. B, Ex. C. As evidenced
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`by the motions practice and discovery to date, the Court finds that proposed class counsel and
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`Plaintiff have prosecuted this action vigorously on behalf of the class. The adequacy of
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`representation requirement, therefore, is satisfied.
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`B. Rule 23(b)(3) Certification
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`To certify a class, a plaintiff must satisfy the two requirements of Rule 23(b)(3). First,
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`“questions of law or fact common to class members [must] predominate over any questions
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`affecting only individual members.” Fed. R. Civ. P. 23(b)(3). And second, “a class action [must
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`be] superior to other available methods for fairly and efficiently adjudicating the controversy.” Id.
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`i. Predominance
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` The “predominance inquiry tests whether proposed classes are sufficiently cohesive to
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`warrant adjudication by representation.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045
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`(2016) (quotations omitted). The Supreme Court has defined an individualized question as one
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`where “members of a proposed class will need to present evidence that varies from member to
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`member.” Id. (quotations omitted). A common question, on the other hand, is one where “the
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`same evidence will suffice for each member to make a prima facie showing [or] the issue is
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`susceptible to generalized, class-wide proof.” Id. (quotations omitted).
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`The Court concludes that for purposes of settlement, common questions predominate here,
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`because Plaintiff alleges that Defendant’s text message marketing was uniform to consumers and
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`violated the TCPA. At least the following central questions are common to all class members: (1)
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`whether consumers received at least one substantively similar advertising text message to establish
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`Article III standing; (2) whether Defendant may be held vicariously liable for the text messages
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`sent by Trumpia; and (3) whether Trumpia used an autodialer under the TCPA.
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`ii.
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`Superiority
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`The superiority requirement tests whether “a class action is superior to other available
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`methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The
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`Court considers four non-exclusive factors: (1) the interest of each class member in individually
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`controlling the prosecution or defense of separate actions; (2) the extent and nature of any
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`litigation concerning the controversy already commenced by or against the class; (3) the
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`desirability of concentrating the litigation of the claims in the particular forum; and (4) the
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`difficulties likely to be encountered in the management of a class action. Id.
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`The Court concludes that a class action enables the most efficient use of Court and attorney
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`resources and reduces costs to the Class Members by allocating costs among them. Especially
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`here, where the interest of each class member in controlling the prosecution of a claim would be
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`low, the forum is appropriate, and there are no obvious difficulties in managing this class action,
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`the superiority requirement is met.
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`The Court finds that the predominance and superiority requirements of Rule 23(b)(3) are
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`met.
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`iii. Class Representative and Class Counsel
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`Because the Court finds that Plaintiff meets the commonality, typicality, and adequacy
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`requirements of Rule 23(a), the Court appoints Paul Izor as the class representative. When a court
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`certifies a class, it must also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B). Factors that
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`courts must consider when making that decision include:
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`(i) the work counsel has done in identifying or investigating potential
`claims in the action;
`(ii) counsel’s experience in handling class actions, other complex
`litigation, and the types of claims asserted in the action;
`(iii) counsel’s knowledge of the applicable law; and
`(iv) the resources that counsel will commit to representing the class.
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`Fed. R. Civ. P. 23(g)(1)(A).
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`As noted above, counsel have investigated and litigated this case throughout its existence
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`and have submitted a declaration detailing their expertise in representing plaintiffs in class action
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`suits, especially TCPA class actions. See Kaufman Decl. at ¶ 15, Ex. B, Ex. C. Accordingly, the
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`Court appoints Plaintiff’s counsel, Rachel E. Kaufman and Avi R. Kaufman of the law firm of
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`Kaufman, P.C., and Stefan Coleman of the Law Offices of Stefan Coleman, P.A. as Class
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`Counsel.
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`III.
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`PRELIMINARY SETTLEMENT APPROVAL
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`Finding that provisional class certification is appropriate, the Court now considers whether
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`it should preliminarily approve the parties’ class action settlement.
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 10 of 15
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`A. Legal Standard
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`Rule 23(e) provides that “[t]he claims, issues, or defenses of a certified class—or a class
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`proposed to be certified for purposes of settlement—may be settled . . . only with the court’s
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`approval.” Fed. R. Civ. P. 23(e). “The purpose of Rule 23(e) is to protect the unnamed members
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`of the class from unjust or unfair settlements affecting their rights.” In re Syncor ERISA Litig.,
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`516 F.3d 1095, 1100 (9th Cir. 2008). Accordingly, before a district court approves a class action
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`settlement, it must conclude that the settlement is “fundamentally fair, adequate and reasonable.”
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`In re Heritage Bond Litig., 546 F.3d 667, 674–75 (9th Cir. 2008).
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`Where the parties reach a class action settlement prior to class certification, district courts
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`apply “a higher standard of fairness and a more probing inquiry than may normally be required
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`under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (citation omitted).
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`Such settlement agreements “must withstand an even higher level of scrutiny for evidence of
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`collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing
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`the court’s approval as fair.” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048–49 (9th Cir.
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`2019) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011)). A
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`more “‘exacting review’ is warranted ‘to ensure that class representatives and their counsel do not
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`secure a disproportionate benefit at the expense of the unnamed plaintiffs who class counsel had a
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`duty to represent.’” Id. (citations and quotations omitted).
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`Courts may preliminarily approve a settlement and notice plan to the class if the proposed
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`settlement: (1) appears to be the product of serious, informed, non-collusive negotiations; (2) does
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`not grant improper preferential treatment to class representatives or other segments of the class;
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`(3) falls within the range of possible approval; and (4) has no obvious deficiencies. In re Lenovo
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`Adware Litig., No. 15-md-02624-HSG, 2018 WL 6099948, at *7 (N.D. Cal. Nov. 21, 2018)
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`(citation omitted). Courts lack the authority, however, to “delete, modify or substitute certain
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`provisions. The settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026.
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`B. Analysis
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`i.
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`Serious, Informed, Non-Collusive Negotiations
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`The first factor the Court considers is whether there is evidence of collusion or other
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 11 of 15
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`conflicts of interest. See Roes, 944 F.3d at 1049. The Ninth Circuit has directed district courts to
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`look for “subtle signs of collusion,” which include whether counsel will receive a disproportionate
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`distribution of the settlement, whether the parties negotiate a “‘clear sailing’ arrangement (i.e., an
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`arrangement where defendant will not object to a certain fee request by class counsel),” and
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`whether the parties agree to a reverter that returns unclaimed funds to the defendant. Id.
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`As discussed above, this proposed settlement was reached after significant discovery and
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`with the assistance of a neutral mediator. The proposed settlement is non-reversionary, with
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`distributions to class members determined on a pro rata basis. SA at ¶ 4.4.4. Additionally, the
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`Settlement Agreement does not contain a clear sailing arrangement. Id. at ¶ 6. Class Counsel
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`confirms that it will seek fees no greater than one-third of the Settlement Fund. Dkt. No. 69 at 12.
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`The Court will assume the role of a fiduciary for Class Members in determining whether awarding
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`fees in the amount eventually requested would be disproportionate. See Staton v. Boeing Co., 327
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`F.3d 938, 970 (9th Cir. 2003) (“Because in common fund cases the relationship between plaintiffs
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`and their attorneys turns adversarial at the fee-setting stage, courts have stressed that when
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`awarding attorneys’ fees from a common fund, the district court must assume the role of fiduciary
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`for the class plaintiffs.”) (quoting In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d
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`1291, 1302 (9th Cir. 1994)). While nothing in the current record regarding the fee request raises
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`any clear red flags, the Court is cognizant of its obligation to review class fee awards with
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`particular rigor, and at the final approval stage will carefully scrutinize the circumstances and
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`determine what attorneys’ fee awards is appropriate in this case.
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`Accordingly, the Court preliminarily finds that there is no evidence of collusion or
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`conflicts of interest in this Settlement and finds that this factor weighs in favor of preliminary
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`approval.
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`ii. Preferential Treatment
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`The Court next considers whether the settlement agreement provides preferential treatment
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`to any class member. The Ninth Circuit has instructed that district courts must be “particularly
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`vigilant” for signs that counsel have allowed the “self-interests” of “certain class members to
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`infect negotiations.” In re Bluetooth, 654 F.3d at 947. For that reason, courts in this district have
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 12 of 15
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`consistently stated that preliminary approval of a class action settlement is inappropriate where the
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`proposed agreement “improperly grant[s] preferential treatment to class representatives.” Lenovo,
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`2018 WL 6099948, at *8 (quotations omitted).
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`Although the Settlement Agreement authorizes Representative Plaintiff to seek an
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`incentive award for his role in this lawsuit, see SA at ¶ 5.1, the Court ultimately will determine
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`whether he is entitled to such an award and the reasonableness of the amount requested. Incentive
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`awards “are intended to compensate class representatives for work done on behalf of the class, to
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`make up for financial or reputational risk undertaken in bringing the action.” Rodriguez v. West
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`Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). In his petition, Plaintiff must provide
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`sufficient evidence to allow the Court to evaluate his award “individually, using ‘relevant factors
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`includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree to
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`which the class has benefitted from those actions, . . . [and] the amount of time and effort the
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`plaintiff expended in pursuing the litigation . . . .’” Stanton v. Boeing Co., 327 F.3d 938, 977 (9th
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`Cir. 2003). The Court will consider the evidence presented at the final fairness hearing and
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`evaluate the reasonableness of any incentive award request. Nevertheless, because incentive
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`awards are not per se unreasonable, the Court finds that this factor weighs in favor of preliminary
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`approval. See Rodriguez, 563 F.3d at 958 (finding that “[i]ncentive awards are fairly typical in
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`class action cases” and “are discretionary” (emphasis omitted)).
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`iii.
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`Settlement within Range of Possible Approval
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`The third factor the Court considers is whether the settlement is within the range of
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`possible approval. To evaluate whether the settlement amount is adequate, “courts primarily
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`consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” Lenovo,
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`2018 WL 6099948, at *8. This requires the Court to evaluate the strength of Plaintiff’s case.
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`The TCPA provides for $500 in statutory damages for each violation. However, a
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`proposed settlement may be acceptable even if it “amount[s] to only a fraction of the potential
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`recovery.” Van Ba Ma v. Covidien Holding, Inc., No. 12-cv-2161-DOC, 2014 WL 2472316, at *3
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`(C.D. Cal. May 30, 2014) (quoting Boyd v. Bechtel Corp., 485 F. Supp. 610, 624 (N.D. Cal.
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`1979)). Here, the $1,950,000 Settlement Fund amounts to approximately $105 per Class Member
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`Case 4:19-cv-01057-HSG Document 73 Filed 08/24/20 Page 13 of 15
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`after the deduction of administration costs, attorneys’ fees and costs, and any incentive award.
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`Kaufman Decl. at ¶ 17. The parties anticipate that the likely Class Member participation rate will
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`result in a recovery of $400 to $600 per Class Member. Id. At the hearing the parties represented
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`that this assumes a participation or claims rate of 10–15%. Plaintiff acknowledges that there are
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`significant risks and barriers he would face in continuing to litigate this cas

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