Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4686 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`11 RACHAEL SHAY, individually and on Case No. 3:20-cv-1629-JO-BLM
`12 behalf of all others similarly situated,
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`Plaintiff,
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`AssignQn. Jinsook Ohta
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`[PROPOSE~ORDER GRANTING
`FINAL APPROVAL OF CLASS
`ACTION SETTLEMENT AND
`AWARD OF ATTORNEYS' FEES
`AND COSTS AND SERVICE
`AWARD
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`15 V.
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`16 APPLE INC., a Delaware corporation;
`17 APPLE VALUE SERVICES, LLC, a
`Virginia limited liability corporation;
`and DOES 1 through 10, inclusive,
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`Defendants.
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`ORDER GRANTING FINAL APPROVAL
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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4687 Page 2 of 25
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`I.
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`INTRODUCTION
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`Plaintiff Rachel Shay ("Plaintiff'), on behalf of the conditionally certified
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`3 Settlement Class, moves for final approval of a non-reversionary common fund
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`4 settlement amount of $1,800,000, as well as for allocations toward an award of
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`5 attorneys' fees and costs to Class Counsel, approval of class administration fees, and
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`6 a class representative service award to her in this action, initiated May 28, 2020,
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`7 against Apple Inc. and Apple Value Services (herein referred to collectively as
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`8 "Defendants" or "Apple"). (See Notice of Motion and Motion for Order Granting
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`9 Order for Final Approval ["Motion for Final Approval"], ECF No. 108.)
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`II.
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`BACKGROUND
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`In this Action against Defendants, Plaintiff asserted the following claims: (1)
`12 Violations of the Consumers Legal Remedies Act; (2) Violations of the Unfair
`13 Competition Law; (3) Negligent Misrepresentation; and ( 4) Implied Warrant of
`14 Merchantability. (See ECF No. 18, Second Amended Complaint ["SAC"].) On May
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`3, 2021, the Court Dismissed Plaintiffs Claim for Breach of Implied Warranty of
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`Merchantability, and, after Defendants filed their Answer to Plaintiffs remaining
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`claims, the Parties began exchanging discovery. (See ECF No. 92-2, ,I,I4-7.)
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`Following extensive discovery, Plaintiff moved for, and Defendants subsequently
`opposed, class certification. (Id., ,I 8-9.) Following oral arguments on the motion, but
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`prior to the Court issuing a final decision, the Parties agreed to attend mediation
`before the Hon. Irma E. Gonzalez (Ret.). (Id., ,I 10.) Though mediation failed to
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`immediately produce a mutually agreeable settlement, the Parties continued to
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`24 negotiate under the guidance of Judge Gonzalez, and ultimately accepted a proposal
`25 by Judge Gonzalez. (See Declaration of James R Hawkins in Support of Motion for
`26 Final Approval of Class Action Settlement ["Hawkins Deel."], ECF No. 108-2, ,r 7;
`27 ECF No. 92-2, ,I 10.)
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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4688 Page 3 of 25
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`The proposed settlement class in this action consists of consumers who
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`2 purchased Apple App Store & iTunes gift cards in California from May 201 7 to
`3 March 2018 and in the United States from March 2018 to July 2020 which were (1)
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`4 prior to purchase, subject to fraudulent pre-activation redemption attempts by
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`5 unknown third parties, and (2) after purchase, fraudulently drained of value by said
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`6 unknown third parties, and who were subsequently denied a refund or replacement
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`7 gift card. (Settlement Agreement and Release ["Settlement"], attached as Exhibit 1
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`8 hereto, at ,-r EE.)
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`On October 6, 2023, the Court granted Plaintiffs Motion for Preliminary
`1 O Approval of the Settlement Agreement and Release. Specifically, the Court
`11 preliminarily found that the Settlement was "fair, reasonable and adequate," and the
`12 Settlement "resulted from arm's length negotiations, has no obvious deficiencies,
`13 does not grant preferential treatment, and appeared to be within the range of possible
`14 approval." (See ECF No. 94, ,-r 1.) The Court also found that, for settlement purposes,
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`the prerequisites for a class action under Fed. R. Civ. P. 23(a) were satisfied and that
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`the action was maintainable as class action under Fed. R. Civ. P. 23(b )(3). (Id., ,-r,-r 3-
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`4, 6.) In addition, the Court approved the notice plan, finding that it "me[t] the
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`requirements of Federal Rule of Civil Procedure 23(c)(2)(B) and all due process
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`requirements, is the best notice practicable under the circumstances; and constitutes
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`due and sufficient notice to all persons entitled to notice." (Id.) No opposition was
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`filed to the Motion for Preliminary Approval.
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`On December 4, 2023, Plaintiff filed a Motion for Award of Attorneys' Fees,
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`Costs, and Class Representative Service Award. (See ECF No. 95 "Motion for
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`25 Attorneys' Fees".) Apple filed an opposition to the Motion for Attorneys' Fees on
`26 January 3, 2024 (see ECF No. 105) and Plaintiff filed a reply on January 10, 2024
`(see ECF No. 107.)
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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4689 Page 4 of 25
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`On January 8, 2024, a potential class member, Hassan Chaalan, objected to the
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`terms of the Settlement, arguing that ( 1) the release of claims is too broad in that it
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`releases claims against non-party retailers arising from the relevant facts; (2) notice
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`4 was inadequate; (3) the claims process was inadequate; and ( 4) the class was not
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`5 adequately represented. (See Hasssan Chaalan's Objection to Proposed Class
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`6 Settlement ["Objection"], ECF No. 106.) On January 31, 2024, Plaintiff moved for
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`7 Final Approval, and shortly thereafter, filed a Response in Opposition to Chaalan's
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`8 Objection. (See Motion for Final Approval; Plaintiffs Response in Opposition to
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`9 Objection ["Opposition to Objection"], ECF No. 112.)
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`The Court held the final fairness hearing on February 28, 2024, during which the
`11 Parties expressed that they were still finalizing their cy pres proposal. The Court now
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`issues its decision as follows: (1) Plaintiffs Motion for Final Approval is granted;
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`(2) Plaintiffs Motion for Attorneys' Fees, Costs, and Class Representative Service
`14 Award is granted, as modified; and (3) Objector Chaalan's objections are overruled.
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`The Court also approves the Parties' proposal to distribute 70% of the remaining
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`Unclaimed Settlement Amount to the Consumer Federation of America ("CF A") and
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`30% of the remaining Unclaimed Settlement Amount to the Consumer Federation of
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`California ("CFC").
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`III. ANALYSIS
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`A. Jurisdiction
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`This Court has subject matter jurisdiction over this litigation (the "Action")
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`under 28 U.S.C. § 1332(d)(2), the Class Action Fairness Act. It also concludes that it
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`24 has personal jurisdiction over the Parties to the Settlement, including Plaintiff, all
`25 members of the Settlement Class, and Defendants by virtue of their business practices
`in California, and at the very least by virtue of their failure to contest such jurisdiction
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`in this action.
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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4690 Page 5 of 25
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`B. Notice
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`Notice is adequate if it is "reasonably calculated, under all of the
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`4 circumstances, to apprise interested parties of the pendency of the action and afford
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`them an opportunity to present their objections." Mendoza v. Tucson Sch. Dist. No.
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`6 1,623 F.2d 1338, 1351 (9th Cir. 1980). The notice process the Court ordered and the
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`7 parties followed involved direct Mail Notice and/or Email Notice to Known
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`8 Settlement Class Members-those for whom Apple had an email address or physical
`9 address, as a result of their prior attempts to report the fraudulent redemption of an
`lO Eligible Gift Card1-and Publication Notice for Unknown Class Members. (See
`11 Declaration of Julie N. Green Regarding Execution of Notice Plan and
`12 Administration Process in Support of Motion for Final Approval of Class Action
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`Settlement ["Green Deel."], ECF No. 108-3, 1113-18 & Exh. A, B, C, D, E, F and
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`G.) Email Notice was sent to 960 Known Settlement Class Members for whom Apple
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`located an email address and Mail Notice was sent to 81 Known Settlement Class
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`Members for whom a valid mailing address was located but not an email address.
`(See id. 11 13-16 & Exh. D, E.) Of the 960 Known Settlement Class Members who
`received Email Notice, only 20 emails bounced and were determined to be ultimately
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`undeliverable, and therefore were sent a Mail Notice. Of the 81 Known Settlement
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`Class Members who received Mail Notice, only 5 were ultimately undeliverable
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`because no new address was found through skip trace, or because the notice was
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`returned a second time. (See id.)
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`In addition, the Settlement Administrator implemented a multi-channel digital
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`25 advertising campaign that included paid search using sponsored links on Google and
`26 Bing platforms, a social media campaign delivering advertisements through
`27 Facebook and Instagram Ad Exchange platforms, and a Nationwide Press Release
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`1 Capitalized terms not defined herein shall have the same meaning ascribed to the, in the Settlement.
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`1 distributed to 900 associated press outlets and 452 influencers. (See id., ,r,r 17-18,
`2 Exh. F, G.)
`The Court has determined that the notice issued here was reasonably calculated
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`to apprise interested parties of the pendency of this action and to afford them the
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`5 opportunity to object. See Fed. R. Civ. P. 23(e). Accordingly, such notice satisfies
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`the due process requirements of the Fifth Amendment. See Rodriguez v. West Puhl 'g
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`7 Corp., 563 F.3d 948, 962 (9th Cir. 2009); Brown v. Ticor Title Inc., 982 F.2d 386,
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`8 392 (9th Cir.1992); Mandujano v. Basic Vegetable Prods., Inc., 541 F.2d 832, 835
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`9 (9th Cir. 1976).
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`C. Certification of the Class
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`At the preliminary approval stage, the Court certified the following Settlement
`12 Class under Federal Rule of Civil Procedure 23(c) for settlement purposes:
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`"Nationwide Class" shall mean all consumers who purchased an
`Eligible Gift Card in the United States from March 2018 to July 2020,
`whose Eligible Gift Card was subject to a redemption attempt prior to
`activation, whose gift card was redeemed by an unknown third party
`prior to attempted redemption by the consumer or intended user, and
`who did not receive a refund or replacement gift card from Defendants
`or any third party.
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`"California Subclass" shall mean all consumers who purchased an
`Eligible Gift Card in the State of California from May 2017 to February
`2018, whose gift card was subject to a redemption attempt prior to
`activation, whose gift card was redeemed by an unknown third party
`prior to attempted redemption by the consumer or intended user, and
`who did not receive a refund or replacement gift card from Defendants
`or any third party.
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`(Settlement, ,r,r EE.a-b.) The Settlement Class excludes Defendants, their
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`parents, subsidiaries, affiliates, officers, directors, and employees; any entity in
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`which Defendants have a controlling interest; and all judges assigned to hear any
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`aspect of this litigation, as well as their staff and immediate family members. (Id. at
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`,r EE.c)
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`As there is no indication that anything has changed in terms of the
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`2 requirements for a settlement-related certification, the Court now makes the
`3 certification of the Settlement Class final (for settlement purposes) for the reasons
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`4 addressed in connection with the preliminary approval proceedings. (See ECF No.
`5 94, ,I,I 2-4; ECF No. 92-1, at pgs. 11-16.)
`D. The Merits of the Settlement
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`1. Legal Standards Governing Settlement
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`Settlement of a class action lawsuit requires court approval. See Fed. R. Civ.
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`9 P. 23(e). The court must find that a proposed settlement is fundamentally fair,
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`lO adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2); Staton v. Boeing Co., 327
`11 F.3d 938,959 (9th Cir. 2003) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026
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`(9th Cir. 1998)). The Ninth Circuit previously instructed district courts that, in
`13 determining whether or not to approve a class settlement in accordance with Rule
`14 23(e), the court could consider any or all of the following factors, if applicable:
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`the strength of the plaintiffs' 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.
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`20 Hanlon, 150 F.3d 1011, 1026 (9th Cir. 1998); Officers for Justice v. Civil Serv.
`21 Comm 'n, 688 F.2d 615, 625 (9th Cir. 1982); see also Campbell v. Facebook, Inc.,
`22 951 F.3d 1106, 1121 (9th Cir. 2020). That list was not intended to be exhaustive, and
`23 a court is required to consider the applicable factors in the context of the case at hand.
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`See Officers for Justice, 688 F.2d at 625.
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`Amendments to Rule 23 of the Federal Rules of Civil Procedure have
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`formalized the consideration somewhat further. Now, in order for a court to
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`determine that a settlement is "fair, reasonable, and adequate," the court must first
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`consider whether:
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`(A) the class representatives and class counsel have adequately
`represented the class;
`(B) the proposal was negotiated at arm's length;
`(C) the relief provided for the class is adequate, taking 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 agreement required to be identified under Rule 23(e)(3)2;
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`(D) the proposal treats class members equitably relative to each other.
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`12 Fed. R. Civ. P. 23(e)(2). These rule-based mandatory considerations overlap with
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`factors previously established by Ninth Circuit as permissible to consider.
`14 Consideration of the factors the Ninth Circuit has customarily employed remains
`15 appropriate after the recent Rule 23 amendments. See, e.g., McKinney-Drobnis v.
`16 Oreshack, 16 F.4th 594, 609 n.4 (9th Cir. 2021); Kim v. Allison, 8 F.4th 1170, 1178
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`(9th Cir. 2021 ).
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`In addition to fairness, the court must also be mindful of the Ninth Circuit's
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`policy favoring settlement, particularly in class action lawsuits. See, e.g., Officers for
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`Justice, 688 F.2d at 625 ("Finally, it must not be overlooked that voluntary
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`conciliation and settlement are the preferred means of dispute resolution. This is
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`especially true in complex class action litigation .... "). While balancing all of these
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`interests, the court's inquiry is ultimately limited "to the extent necessary to reach a
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`reasoned judgment that the agreement is not the product of fraud or overreaching by,
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`or collusion between, the negotiating parties." Id. The court, in evaluating the
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`27 agreement(s) of the parties, is not to reach the merits of the case or to form
`28 conclusions about the underlying questions of law or fact. See id.
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`2 Rule 23(e)(3) provides that "[t]he parties seeking approval must file a statement identifying any
`agreement made in connection with the proposal." Fed. R. Civ. P. 23(e)(3).
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`The court must determine the fairness of the settlement as a whole and cannot
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`2 consider its individual components as severable parts; "[t]he settlement must stand
`3 or fall in its entirety." Hanlon, 150 F.3d at 1026. Jd. Thus, the court may not delete,
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`4 modify, or rewrite particular provisions of a settlement. See id. "Settlement is the
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`5 offspring of compromise; the question ... is not whether the final product could be
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`6 prettier, smarter or snazzier, but whether it is fair, adequate and free from collusion."
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`7 Jd.at1027.
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`2. The Settlement is Fair
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`a. The Settlement is Fair, Adequate, and Reasonable
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`i. The Strength of the Case
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`Plaintiffs remaining claims, which are to be resolved by the Settlement, have
`twice survived Defendants' motions to dismiss. (See ECF No. 92-2, ,I 5-6; ECF No.
`13 21.) Defendants' willingness to settle these claims for $1. 8 Million, and in particular,
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`to refund one hundred percent oflost funds to all class members who have submitted
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`a valid claim, suggests Defendants recognize the risk they would face at trial.
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`Although Plaintiff and Class Counsel continue to assert the strength of Plaintiffs
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`case on the merits, they also acknowledge the inherent obstacles to successful class
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`litigation, including the difficulty in achieving and maintaining class certification,
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`substantially increased costs, and drawn-out length of court proceedings. The
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`uncertainties in outcome, expense, and duration of this litigation are ameliorated by
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`this Settlement, and Plaintiff and Class Counsel believe this Settlement is fair,
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`adequate, and reasonable. (See ECF No. 108-2 Hawkins Deel., ,-r,-r 10, 17-18.) The
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`24 Court is likewise convinced that this factor favors a finding of reasonableness.
`11. The Risk, Expense, Complexity, and Likely
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`Duration of Further Litigation
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`The expense and possible duration of the litigation should be considered in
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`28 evaluating the reasonableness of a settlement. See Dunleavy v. Nadler (In re Mego
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`1 Fin. Corp. Sec. Litig.), 213 F.3d 454, 458 (9th Cir. 2000); see also Nat'! Rural, 221
`2 F.R.D. at 526 ("[U]nless the settlement is clearly inadequate, its acceptance and
`3 approval are preferable to lengthy and expensive litigation with uncertain results.").
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`This case, having been filed on May 28, 2020, is approaching four years of
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`litigation, and has been subject to multiple dismissal attempts and an attack on
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`6 certification by Defendants. Plaintiffs investigation required the evaluation of
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`thousands of documents produced by Defendants and multiple depositions of
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`8 Defendants. Because the parties initiated mediation and settlement negotiations prior
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`to the Court's ruling on class certification, no class has yet been certified outside of
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`1 O the settlement context.
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`Even if the class had been certified, it would likely need to survive a motion
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`for summary judgment and would still need to overcome its burden of proof and
`13 Defendants' affirmative defenses at trial, as well as any challenges raised on appeal.
`14 Such extended proceedings would delay and possibly diminish Plaintiffs and the
`15 Class's opportunity to obtain relief. Likewise, attorneys' fees and costs could have
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`ended up consuming a large portion of any eventual recovery. Against all of this, the
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`Settlement offers the parties immediate and certain relief, especially considering
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`Defendants' concession that all Class members deemed Valid Claimants will be
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`made entirely whole. This factor therefore weighs in favor of approving the
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`Settlement.
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`iii. The Risk of Maintaining Class Action Status
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`As discussed above, the Court did not rule on the class certification motion
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`24 due to the Parties' decision to mediate Plaintiffs claims and negotiate a settlement.
`25 Nevertheless, there is a risk that the Court would have narrowed the proposed classes,
`that Defendants would have filed a petition to appeal pursuant to Rule 23(f), or of
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`27 decertification at a later stage. In contrast, this Settlement provides for provisional
`28 certification and ensures each member of the class has an equal opportunity to
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`1 achieve relief through Plaintiffs lawsuit. For this reason, this factor also favors final
`2 approval of the Settlement.
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`iv. The Amount Offered in the Settlement
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`The Court's evaluation of a proposed settlement looks primarily to compare
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`5 "the terms of the compromise with the likely rewards oflitigation." Protective Comm.
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`6 for lndep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-
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`7 25 (1968). Thus, in determining whether the relief offered by way of settlement is
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`fair, the Ninth Circuit has suggested that the Court compare the settlement to the
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`9 parties' "estimates of the maximum [recovery] in a successful litigation." See
`10 Dunleavy, 213 F.3d at 459; see also Rodriguez, 563 F.3d at 965. But see Lane v.
`11 Facebook, Inc., 696 F.3d 811, 823 (9th Cir. 2012) ("While a district court must of
`12 course assess the plaintiffs' claims in determining the strength of their case relative
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`to the risks of continued litigation, it need not include in its approval order a specific
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`finding of fact as to the potential recovery for each of the plaintiffs' causes of action.")
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`( omitting internal citation).
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`Plaintiff has achieved a non-reversionary settlement in the total gross amount
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`of $1,800,000. As noted at the preliminary approval stage, Plaintiff estimates a
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`potential recovery of $2.52 million. Thus, at $1.8 million, the Settlement Amount in
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`this case represents approximately 71 % of the Settlement Class's potential recovery,
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`making the Settlement Amount a fair and reasonable result for the Settlement Class
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`considering the risks and expenses avoided. (See ECF No. 92-1, at 6.) Because the
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`Settlement is designed to provide refunds for the fraudulently drained gift cards, class
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`24 members who provided proof of purchase are being made entirely whole, without
`25 having to engage in an even lengthier litigation process. Nor is there any risk here of
`26 overcompensation. Because the Settlement adequately remedies all known class
`27 members' harms, provides for present litigation and administrative costs, and
`28 provides Plaintiff with compensation for her personal efforts, the Court believes that
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`1 the amount offered in settlement reflects a fair compromise and weighs in favor of
`final approval of the Settlement.
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`v. The Extent of Discovery Completed and the Stage of
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`the Proceedings
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`Extensive discovery and a thorough investigation are essential before a Class
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`6 Plaintiff can reasonably assess strengths and value to broker a fair class settlement.
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`7 It was established at the preliminary approval stage that the Parties engaged in
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`8 substantial fact discovery, including thousands of pages of document discovery and
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`9 numerous depositions, completed significant motion practice including two rounds
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`10 of motions to dismiss and a motion for class certification, and attended a full-day
`11 mediation. (See Hawkins Deel. ,r 8d; ECF No. 92-2, ,r 7.) In total, Plaintiff issued and
`12 Apple answered thirty-one interrogatories, thirty-one requests for production, and
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`thirty-eight requests for admission. Apple issued and Plaintiff responded to twenty-
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`two interrogatories, eighteen requests for production, and sixteen requests for
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`admission. (Id.) Apple produced and Plaintiff reviewed more than 2,500 documents,
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`consisting of approximately 20,500 pages. Class Counsel deposed three Rule
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`30(b)(6) designees for Apple, and Apple's counsel also deposed Plaintiff. (Id.)
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`Class Counsel's investigation was sufficient to clearly understand the strengths
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`and weaknesses of all claims and defenses raised and to contemplate the risks to both
`sides incurred by continued litigation. (See Hawkins Deel. ,r 8-10.) While more
`discovery may have been taken - at some expense - had this case proceeded, the
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`23
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`information Plaintiff and her counsel obtained allowed them to feel comfortable
`24 about their ability to value the potential recovery. (See, e.g., Hawkins Deel. ,r 13.) At
`this stage, the Court sees no reason to doubt that Plaintiff was in a sufficient position
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`25
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`to know the strengths (and weaknesses) of her case, its value, and whether or not the
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`27 settlement figure "output" properly accounted for those "inputs." As such, this factor
`28 also favors final approval of the Settlement.
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`- 12 -
`ORDER GRANTING FINAL APPROVAL
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`

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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4698 Page 13 of 25
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`vi. The Experience and Views of Counsel
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`In assessing the adequacy of the terms of a settlement, the trial court is entitled
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`to, and should rely upon, the judgment of experienced counsel for the parties. See
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`1
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`2
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`3
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`4 Nat'/ Rural, 221 F.R.D. at 528 ("Great weight is accorded to the recommendation of
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`5 counsel, who are most closely acquainted with the facts of the underlying litigation")
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`6
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`(internal quotations and citations omitted). The basis for such reliance is that
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`7 "[p]arties represented by competent counsel are better positioned than courts to
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`8 produce a settlement that fairly reflects each party's expected outcome in litigation."
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`9 In re Pacific Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). Throughout the
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`1 O litigation, Plaintiff was represented by counsel with ample experience handling class
`11 action/complex litigation. (See ECF No. 92-1 at p. 13-14.) Class Counsel utilized
`12
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`their ample experience to thoroughly investigate and evaluate the strength of
`13 Plaintiffs claims and Defendants' defenses. (See id. at p. 17-18.) Having conducted
`14 such an investigation and relying on experience with similarly complex class actions,
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`Class Counsel considers the instant Settlement to be fair, adequate, and reasonable.
`(See Hawkins Deel. ,r,r 15.) This factor, therefore, weighs in favor of approving the
`Settlement.
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`vii. The Reaction of the Members of the Class to the
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`Proposed Settlement
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`"It is established that the absence of a large number of objections to a proposed
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`class action settlement raises a strong presumption that the terms of a proposed class
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`settlement action [sic] are favorable to the class members." Nat'/ Rural, 221 F.R.D.
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`at 529. Here, the Parties received only a single objection and zero opt-outs, in
`24
`25 comparison with the 1,071 valid claims which will result in Class Member
`26 compensation. (Green Deel. ,r,r 28, 31.) Therefore, this factor strongly supports
`27 approving the Settlement.
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`28
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`- 13 -
`ORDER GRANTING FINAL APPROVAL
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`

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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4699 Page 14 of 25
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`viii. Signs of Collusion
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`Based on the record before the Court, nothing explicitly or implicitly suggests
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`the instant Settlement was in any way the product of collusion. In particular, the Court
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`1
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`2
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`3
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`4 notes the absence of the signs identified by the Ninth Circuit as potentially presenting
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`5 such an issue. This settlement agreement is the product of good faith, arm's length
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`6 negotiations, which were informed and guided by the neutral perspective of a
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`7 respected Mediator-Hon. Irma E. Gonzalez (Ret. )-and during these negotiations,
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`8 Class Counsel continued to zealously advocate on behalf of the Plaintiff and the Class
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`9 even in working towards a mutually agreeable compromise with Defendants. (See
`10 Hawkins Deel. ,r 7; ECF 92-2, ,r 35.) As a result, the Court safely concludes that there
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`is no concern here with respect to potential collusion.
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`ix. Adequate Representation of the Class
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`(Rule
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`23(e)(2)(A))
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`Representation of a class will be adequate where Plaintiff and Class Counsel
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`have no conflicts of interest with the members of the class, and where those
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`representative parties have taken steps to vigorously prosecute the action on the
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`class's behalf. Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig. ), 926 F .3d
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`539,566 (9th Cir. 2019) (citing Hanlon, 150 F.3d at 1020). Such conflicts of interest
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`are apparent where higher value claims of some class members are "compromised by
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`a class representative with lesser injuries who may settle more valuable claims
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`cheaply," or where subgroups among the class have "differing, even adversarial,
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`interests in the allocation of limited settlement funds." Part! v. Volkswagen, AG (In
`23
`24 re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig), 895
`25 F.3d 597, 607-08 (9th Cir. 2018).
`Objector Chaalan has not challenged Plaintiff and Class Counsel's prosecution
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`27 of this action, and so it is presumed to be sufficient. Further, Chaalan's contention
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`28
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`that the Settlement unfairly releases class members' claims against non-party
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`- 14 -
`ORDER GRANTING FINAL APPROVAL
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`

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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4700 Page 15 of 25
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`1 retailers does not persuade the Court that any conflict of interests exists. Any such
`2 claims against these non-party retailers concern an identical injury and ultimately
`3 arise from the same facts as those claims against Defendants, and failure to instate
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`4 such a release would allow for potential unlawful double recovery. Further, Chaalan
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`5 fails to identify any conflict of interest presented by the Notice and Claims Processes.
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`6 Because class payments consist of refunds from purchased gift cards, the amount
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`7 each class member will receive is tailored to that member's specific harm and in no
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`8 way prejudices others in the class.
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`9
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`Therefore, the Court concludes Plaintiff and Class Counsel adequately
`1 O represented the class. They achieved a significant monetary outcome by way of the
`11 Settlement. There is nothing to suggest inadequacy.
`12
`x. Arm's-Length Negotiation (Rule 23(e)(2)(B))
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`As discussed above, settlement followed a mediation and further post-
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`mediation negotiations, all under the guidance of an experienced mediator and retired
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`Federal Judge. (See Hawkins Deel.~ 7.) The Court is consequently satisfied that the
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`Settlement resulted from arm's length negotiations.
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`xi. Adequate Relief for the Class (Rule 23(e)(2)(C))
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`The Court has already considered "the costs, risks, and delay of trial and
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`appeal." With respect to "the effectiveness of any proposed method of distributing
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`relief to the class, including the method of processing class-member claims," known
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`class members will receive full relief regardless of whether they submitted a claim,
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`as will unknown class members who provided adequate proof of purchase of an
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`24 Eligible Gift Card (those subject to reactivation redemption attempts during the Class
`25 Period). The Settlement is also non-reversionary, with uncashed checks (if any)
`26 ultimately reverting to a cy pres.
`The Court discusses the proposed award of attorneys' fees in the following
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`27
`28 section. For purposes of settlement approval, however, there is nothing glaring in the
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`- 15 -
`ORDER GRANTING FINAL APPROVAL
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`

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`Case 3:20-cv-01629-JO-BLM Document 122 Filed 03/19/24 PageID.4701 Page 16 of 25
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`1 Settlement insofar as attorneys' fees are concerned that causes the Court to pause in
`2 giving its approval. The Court is not aware of any agreement amongst the parties
`3 other than their Settlemen