FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`IN RE APPLE INC. DEVICE
`PERFORMANCE LITIGATION,
`
`
`NAMED PLAINTIFFS AND
`SETTLEMENT CLASS MEMBERS,
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`SARAH FELDMAN; HONDO JAN,
`Objectors-Appellants,
`
`
`
`
`APPLE INC.,
`
`
`
`v.
`
`Defendant-Appellee.
`
`
`
`IN RE APPLE INC. DEVICE
`PERFORMANCE LITIGATION,
`
`
`NAMED PLAINTIFFS AND
`SETTLEMENT CLASS MEMBERS,
`Plaintiff-Appellee,
`
`
`
`v.
`
` No. 21-15758
`
`D.C. No.
`5:18-md-02827-
`EJD
`
` No. 21-15761
`
`D.C. No.
`5:18-md-02827-
`EJD
`
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`2
`
`
`BEST COMPANIES, INC.,
`Objector-Appellant,
`
`
`
`
`APPLE INC.,
`
`
`
`v.
`
`Defendant-Appellee.
`
`
`
`IN RE APPLE INC. DEVICE
`PERFORMANCE LITIGATION,
`
`
`NAMED PLAINTIFFS AND
`SETTLEMENT CLASS MEMBERS,
`Plaintiff-Appellee,
`
` No. 21-15762
`
`D.C. No.
`5:18-md-02827-
`EJD
`
`
`
`
`v.
`
`
`DEBORAH PANTONI,
`Objector-Appellant,
`
`
`
`
`APPLE INC.,
`
`
`
`
`
`v.
`
`Defendant-Appellee.
`
`
`
`
`

`

`
`
`
`
`
`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 3
`
` No. 21-15763
`
`D.C. No.
`5:18-md-02827-
`EJD
`
`
`OPINION
`
`IN RE APPLE INC. DEVICE
`PERFORMANCE LITIGATION,
`
`
`NAMED PLAINTIFFS AND
`SETTLEMENT CLASS MEMBERS,
`Plaintiff-Appellee,
`
`
`
`
`ANNA ST. JOHN,
`
`v.
`
`Objector-Appellant,
`
`v.
`
`Defendant-Appellee.
`
`
`
`
`APPLE INC.,
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted May 11, 2022
`Pasadena, California
`
`Filed September 28, 2022
`
`Before: Jacqueline H. Nguyen, John B. Owens, and
`Ryan D. Nelson, Circuit Judges.
`
`Opinion by Judge Nguyen
`
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`SUMMARY*
`
`4
`
`
`
`
`
`Class Settlement
`
`
`In consolidated appeals by five class objectors, the panel
`
`vacated the district court’s rulings arising from its approval
`of a $310 million class action settlement resolving
`allegations that Apple Inc. secretly throttled the system
`performance of certain model iPhones to mask battery
`defects.
`
` Best Companies, Inc. (“BCI”) contended that the district
`court provided inadequate notice of the settlement to
`nonnatural persons. The panel held that notice here satisfied
`both Fed. R. Civ. P. 23 and due process. The settlement
`administrator contacted 99% of the persons associated with
`potentially eligible devices via the email and postal
`addresses in Apple’s records. Additional class members
`received notice
`through
`the settlement’s substantial
`coverage in the press and on social media. Rule 23 and due
`process require only a “reasonable effort” to notify
`individual class members. The panel rejected BCI’s
`assertion that the parties could have given nonnatural
`persons constructive notice of the settlement through
`publication because the free media coverage and individual
`notice to device users was more than adequate to reach
`nonnatural persons. The district court did not abuse its
`discretion by authorizing the reasonable notice to nonnatural
`persons.
`
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 5
`
`
`
`Three of the objectors (the “Feldman objectors”)
`
`complained that the settlement extinguished the claims of
`“all former or current U.S. owners” of certain devices who
`downloaded iOS software before Apple disclosed potential
`defects, but the settlement limited recovery to the subset of
`owners who can attest that “they experienced” the alleged
`defects. The panel held that the fundamental problem with
`the Feldman objectors’ argument was their assumption that
`all class members suffered the same impairment of iPhone
`performance and uniform damages. The parties agreed to
`the attestation requirement as a compromise, and the panel
`held that this compromise was reasonable. The settlement
`allowed Apple to limit its exposure while ensuring that
`compensation was available to every class member who
`suffered a compensable injury.
`
`The Feldman objectors also argued that the district court
`
`cited the wrong legal standard in examining the settlement’s
`fairness by
`improperly applying a presumption of
`reasonableness to the settlement rather than applying a
`heightened scrutiny. The panel held that the district court
`applied the wrong legal standard and ignored precedent
`requiring a heightened fairness inquiry prior to class
`certification. Here, while the district court’s probing
`analysis suggested that it may have applied heightened
`scrutiny, its written order relied on a flawed legal standard.
`The district court abused its discretion by stating that it
`applied a presumption of reasonableness and fairness to the
`settlement. The panel vacated the order granting final
`settlement approval so that on remand the district court could
`evaluate the settlement under the correct standard. In light
`of this vacatur, the panel also vacated the district court’s
`order awarding attorney’s fees, expenses, and incentive
`payments.
`
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`6
`
`The Judicial Council of California coordinated four state
`
`court proceedings into a single action in the San Francisco
`Superior Court (the “JCCP action”), which proceeded
`parallel to the federal litigation. The panel agreed with the
`Feldman objectors that the district court’s explanation for
`considering JCCP-related work conflicted with the court’s
`overall rationale for its fee award. The lodestar amount
`claimed by class counsel and accepted by the district court
`included nearly $4 million in attorney’s fees generated by
`JCCP counsel in the state proceedings. The panel held that
`the impact of the JCCP fees on the multiplier was not at all
`insignificant, and the district court’s failure to consider
`whether the JCCP fees should be included in the lodestar was
`an abuse of discretion.
`
`The panel held that Supreme Court precedent did not
`
`foreclose incentive payments to class representatives. The
`Feldman objectors contended that twenty-first century
`precedent allowing such awards conflicted with Supreme
`Court precedent from the nineteenth century. The panel held
`that, to the contrary, the court has previously considered the
`nineteenth century caselaw in the context of incentive
`awards and found nothing discordant. Incentive awards
`cannot categorically be rejected or approved. So long as
`they are reasonable, they can be awarded.
`
`
`
`COUNSEL
`
`
`Kendrick Jan (argued), Kendrick Jan APC, San Diego,
`California, for Objector-Appellants Sarah Feldman and
`Hondo Jan.
`
`Scott A. Kamber (argued), Kamber Law LLC, Denver,
`Colorado, for Objector-Appellant Best Companies, Inc.
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 7
`
`
`
`John J. Pentz (argued), Law Offices of John J. Pentz,
`Sudbury, Massachusetts; Jane L. Westfall, Menifee,
`California; for Objector-Appellant Deborah Pantoni.
`
`Theodore H. Frank (argued) and Anna St. John, Hamilton
`Lincoln Law Institute, Center for Class Action Fairness,
`Washington, D.C., for Objector-Appellant Anna St. John.
`
`Mark C. Molumphy (argued), Joseph W. Cotchett, and Elle
`D. Lewis, Cotchett Pitre & McCarthy LLP, Burlingame,
`California; Laurence D. King, Kathleen A. Herkenhoff, and
`Matthew B. George, Kaplan Fox & Kilsheimer LLP,
`Oakland, California; Frederic S. Fox, Donald R. Hall, and
`Melinda C. Campbell, Kaplan Fox & Kilsheimer LLP, New
`York, New York; for Plaintiff-Appellee.
`
`Christopher Chorba (argued), Theodore J. Boutrous Jr., and
`Wesley Sze, Gibson Dunn & Crutcher LLP, Los Angeles,
`California; Kory Hines and Catherine McCaffrey, Gibson
`Dunn & Crutcher LLP, New York, New York; for
`Defendant-Appellee.
`
`Brett R. Nolan, Office of the Attorney General, Frankfort,
`Kentucky; Steve Marshall, Attorney General, Office of the
`Attorney General, Montgomery, Alabama; Mark Brnovich,
`Attorney General; Office of the Attorney General, Phoenix,
`Arizona; Leslie Rutledge, Attorney General, Office of the
`Attorney General, Little Rock, Arkansas; Ashley Moody,
`Attorney General, Office of
`the Attorney General,
`Tallahassee, Florida; Jeff Landry, Attorney General, Office
`of the Attorney General, Baton Rouge, Louisiana; Keith
`Ellison, Attorney General Office of the Attorney General, St.
`Paul, Minnesota; Douglas J. Peterson, Attorney General,
`Office of the Attorney General, Lincoln, Nebraska; Aaron
`D. Ford, Attorney General, Office of the Attorney General,
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`8
`
`Carson City, Nevada; Wayne Stenehjem, Attorney General,
`Office of the Attorney General, Bismarck, North Dakota;
`Dave Yost, Attorney General, Office of the Attorney
`General, Columbus, Ohio; Ken Paxton, Attorney General,
`Office of the Attorney General, Austin, Texas; Sean D.
`Reyes, Attorney General, Office of the Attorney General,
`Salt Lake City, Utah; for Amici Curiae Kentucky, Alabama,
`Arizona, Arkansas, Florida, Louisiana, Minnesota,
`Nebraska, Nevada, North Dakota, Ohio, Texas, and Utah.
`
`Shiyang Huang, Topeka, Kansas, as pro se Amicus Curiae.
`
`
`
`OPINION
`
`NGUYEN, Circuit Judge:
`
`In this multidistrict litigation against Apple Inc., the
`district court approved a $310 million class action settlement
`resolving allegations that Apple secretly throttled the system
`performance of certain model iPhones to mask battery
`defects. The court approved $80.6 million, representing
`26% of the recovery, in fees to class counsel and also
`approved service awards to the named plaintiffs. Several
`class members who objected to these decisions now appeal.
`
`The district court actively managed this difficult
`litigation, which involved the consolidation of dozens of
`federal lawsuits. Once the settlement was achieved
`following motions practice, discovery, and months of
`negotiations with the assistance of a mediator, the settlement
`administrator sent over 90 million class notices via email and
`over 5 million notices by postcard. About 99% of persons
`associated with potentially eligible devices received notice
`of the settlement. The settlement also received substantial
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 9
`
`
`
`press and social media coverage. We find that class
`members—including
`nonnatural
`persons—received
`adequate notice of the settlement. Any suggestion to the
`contrary is unsupported by the record.
`
`The district court properly resolved most of the
`objections at issue on appeal. However, in finding the
`settlement fair, reasonable, and adequate, the district court
`committed legal error. As we have repeatedly admonished,
`settlement prior to class certification requires extra scrutiny.
`While we commend the district court’s thoughtful and
`thorough analysis, which suggests that the court took great
`care in considering the terms of the settlement, its written
`order explicitly states that the court applied a presumption
`that the settlement was fair and reasonable. Because the
`district court cited the wrong legal standard, we vacate and
`remand for it to reconsider settlement approval under the
`correct standard. See Roes, 1–2 v. SFBSC Mgmt., LLC, 944
`F.3d 1035, 1049 (9th Cir. 2019) (holding that the district
`court committed reversible error in approving a settlement
`negotiated prior to class certification by starting its analysis
`with a presumption of fairness and reasonableness).
`
`I. Background
`
`In January and December 2017, Apple released updates
`for its iPhones’ system software (“iOS”) that under certain
`conditions slowed the performance of certain phones. At the
`time of the iOS releases, Apple acknowledged only that the
`updates provided “improvements” and fixed “bugs.” On
`December 20, 2017, after independent researchers published
`findings that the iOS updates degraded system performance,
`Apple publicly acknowledged as much.
`
`Apple explained that as iPhone batteries age, they
`become less capable of supplying a phone’s peak demands
`
`

`

`10 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`for electric current,1 and that the iOS updates smoothed out
`a phone’s electrical demands when necessary to avoid
`unexpected shutdowns.
` The following week, Apple
`disclosed that the smoothing feature affected the “the
`maximum performance of some system components.”
`However, Apple insisted that “[t]he level of perceived
`change depends on how much power management is
`required for a particular device” and that “[i]n some cases, a
`user may not notice any differences in daily device
`performance.”
`
`Following Apple’s disclosures, consumers around the
`country
`filed class action
`lawsuits concerning
`the
`unexpected shutdowns and iOS updates. The Judicial Panel
`on Multidistrict Litigation consolidated the 67 federal
`actions in the Northern District of California. The Judicial
`Council of California coordinated the four state court
`proceedings into a single action in the San Francisco
`Superior Court (the “JCCP action”), which proceeded
`parallel to the federal litigation.
`
`In May 2018, the district court consolidated the
`individual federal cases, see Fed. R. Civ. P. 42(a)(2), and
`selected one of three competing proposals for the litigation’s
`leadership structure. The court established a protocol for
`attorney work and expenses that required any compensable
`activity to be reasonable, non-duplicative, beneficial to the
`prosecution of the multidistrict litigation, and authorized by
`one of three attorneys managing the litigation. The court
`required plaintiffs’ counsel to maintain contemporaneous
`records and provide quarterly reports for in camera review.
`And the court appointed a special master to oversee the
`
`1 Other factors, in particular cold conditions and low battery charge,
`also affect a battery’s ability to supply peak electrical demands.
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 11
`
`
`
`discovery process who resolved several issues during the
`next two years.
`
`In the consolidated amended complaint, a total of 122
`named plaintiffs from every state and several territories and
`foreign countries alleged 76 claims against Apple. Plaintiffs
`asserted various fraud-based theories, breach of contract,
`trespass to chattels, and violation of the federal Computer
`Fraud and Abuse Act, 18 U.S.C. § 1030, California’s Data
`Access and Fraud Act, Cal. Penal Code § 502, and several
`states’ unfair competition and consumer protection statutes.
`
`The district court eliminated many of the claims at issue
`in its rulings on Apple’s two motions to dismiss. The court
`dismissed plaintiffs’ claims regarding alleged battery defects
`but concluded that plaintiffs had viable claims relating to the
`iOS updates. In particular, the court concluded that plaintiffs
`could proceed on a “computer intrusion” theory for trespass
`to chattels and under the California and federal computer
`fraud statutes.
`
` In February 2020, the parties reached a settlement. The
`settlement agreement resolved the claims of “all former or
`current U.S. owners” of certain iPhone models that ran
`specified versions of iOS by the time Apple first publicly
`disclosed that the iOS updates slowed phone performance
`under certain conditions.2 The agreement resolved not only
`the federal multidistrict litigation, but also the JCCP action
`in California.
`
`
`2 The settlement applied to iPhone 6, 6 Plus, 6s, 6s Plus, and SE
`devices that ran iOS 10.2.1 or later and iPhone 7 and 7 Plus devices that
`ran iOS 11.2 or later.
`
`

`

`12 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`
`Apple agreed to pay $25 per eligible iPhone to settlement
`class members with approved claims, subject to two
`limitations. First, Apple agreed to pay the settlement class a
`minimum of $310 million and a maximum of $500 million.
`This meant that if the number of eligible iPhones with
`approved claims was less than about 12 million or more than
`20 million, then the payment per device would be
`proportionately more or less than $25. Second, Apple’s
`payment to settlement class members was subject to a
`deduction for any court-ordered attorney’s fees, expenses,
`and service awards to the named plaintiffs.
`
`To receive a cash payment, settlement class members
`had to certify under penalty of perjury that “they experienced
`diminished performance on [an] eligible device when
`running [the applicable iOS] before December 21, 2017.”
`Class members could also opt out of the settlement.
`
`The district court granted preliminary approval to the
`settlement, provisionally certified the nationwide settlement
`class, and directed the parties to notify class members.
`Apple provided the settlement administrator with the names,
`contact information, and serial numbers associated with each
`potentially eligible device—i.e., each device covered by the
`settlement that had downloaded the applicable iOS during
`the relevant time period.3 The settlement administrator sent
`90,119,272 class notices via email and an additional
`5,617,563 notices by postcard. In all, approximately 99% of
`
`
`3 Apple’s records showed which devices had downloaded a
`particular version of iOS and when the download occurred, but Apple
`apparently did not know when, if ever, a device owner installed the iOS
`after downloading it. Some iPhones had the applicable iOS pre-installed,
`and Apple included those devices in the information it provided to the
`settlement administrator.
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 13
`
`
`
`the persons associated with potentially eligible devices
`received notice of the settlement.
`
`The settlement administrator received 3,284,985 claims
`by the submission deadline and, as of January 2021, had
`approved 69% of them.4 These response and claim approval
`rates meant that claimants could receive, on average, at least
`$128 less any court-ordered deduction for attorney’s fees,
`costs, and incentive awards.5 In addition, 622 persons timely
`opted out of the settlement.
`
`Class counsel moved for final approval of the settlement
`and, separately, for attorney’s fees, expenses, and service
`awards for the named plaintiffs. At issue here, counsel
`requested attorney’s fees of $87.73 million and service
`awards of either $3,500 or $1,500 for each of the named
`plaintiffs, the larger amount for the nine named plaintiffs
`who were deposed.
`
`The district court received various objections to the two
`motions from 144 class members. In addition, Apple
`opposed the requested amount of attorney’s fees as
`excessive, and the United States as well as several states’
`
`4 Of the 974,300 disapproved claims, 73% did not match an eligible
`device, 17% had inadequate attestations, and 10% were duplicative or
`had uncured deficiencies.
`
`5 Based on the number of claims, the settlement agreement required
`Apple to pay the minimum of $310 million, including settlement
`administration costs, leaving about $297.25 million available for
`distribution to potentially 2,310,439 claimants. The amount available
`per claim would exceed $128 if some of the 41,579 pending claims were
`disapproved. And to the extent the number of claimants exceeded the
`number of eligible devices (for example, if both corporate purchasers
`and their employees using the phones made claims), the recovery per
`device would exceed the average recovery per claimant.
`
`

`

`14 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`attorneys general submitted briefs raising similar concerns.
`At two hearings lasting a total of eight hours, the district
`court heard from the parties and several objectors about the
`fairness of the proposed settlement and the requested
`compensation for class counsel and the named plaintiffs.
`
`Ultimately, the district court granted final approval to the
`settlement and granted in part class counsel’s fee motion.
`The court approved the requested expenses and service
`awards, finding them to be reasonable. However, the court
`found that the request for attorney’s fees of $87.73 million
`was too high and instead awarded $80.6 million.
`
`Five of the objectors challenge the district court’s rulings
`in these four consolidated appeals. In case nos. 21-15758
`and 21-15762, Sarah Feldman, Hondo Jan, and Deborah
`Pantoni (collectively, the “Feldman objectors”) challenge
`the settlement approval, the amount of attorney’s fees, and
`the decision to grant service awards. In case no. 21-15761,
`Best Companies, Inc. (“BCI”) challenges the settlement
`approval as it relates to nonnatural persons. In case no. 21-
`15763, Anna St. John challenges the amount of attorney’s
`fees.
`
`II. Jurisdiction and Standard of Review
`
`We have jurisdiction pursuant to 28 U.S.C. § 1291. We
`review a district court’s decision to approve a class action
`settlement for clear abuse of discretion. Saucillo v. Peck, 25
`F.4th 1118, 1129 (9th Cir. 2022). Under this “extremely
`limited” review, we will affirm if the district judge applies
`the proper legal standard and makes findings of fact that are
`not clearly erroneous. Id. (quoting In re Bluetooth Headset
`Prods. Liab. Litig., 654 F.3d 935, 940 (9th Cir. 2011)). We
`review the district court’s decision to award attorney’s fees
`and costs to class counsel, as well as the method of
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 15
`
`
`
`calculation, for abuse of discretion. In re Google Inc. St.
`View Elec. Commc’ns Litig., 21 F.4th 1102, 1110 (9th Cir.
`2021).
`
`We review legal questions de novo. See In re
`Volkswagen “Clean Diesel” Mktg., Sales Practices, &
`Prods. Liab. Litig., 914 F.3d 623, 640 (9th Cir. 2019). Legal
`questions include the interpretation of the settlement
`agreement, see Parsons v. Ryan, 949 F.3d 443, 453, 460 (9th
`Cir. 2020), “whether notice of a proposed settlement satisfies
`due process,” Torrisi v. Tucson Elec. Power Co., 8 F.3d
`1370, 1374 (9th Cir. 1993), and whether Supreme Court
`precedent bars incentive awards altogether, see Chambers v.
`Whirlpool Corp., 980 F.3d 645, 656 (9th Cir. 2020)
`(reviewing a fee award’s legal basis de novo).
`
`III. Discussion
`
`A. Nonnatural Persons Received Sufficient Notice of the
`Settlement
`
`BCI contends that the district court provided inadequate
`notice of the settlement to nonnatural persons. Rule 23
`requires that the district court “direct to class members the
`best notice that is practicable under the circumstances,
`including individual notice to all members who can be
`identified through reasonable effort.” Fed. R. Civ. P.
`23(c)(2)(B). Procedural due process requires that the notice
`be “reasonably calculated, under all the circumstances, to
`apprise interested parties of the pendency of the action and
`afford them an opportunity to present their objections.”
`Roes, 944 F.3d at 1045 (quoting Eisen v. Carlisle &
`Jacquelin, 417 U.S. 156, 174 (1974)). But “neither Rule 23
`nor the Due Process Clause requires actual notice to each
`individual class member.” Briseno v. ConAgra Foods, Inc.,
`844 F.3d 1121, 1128 (9th Cir. 2017).
`
`

`

`16 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`
`The notice here satisfied both Rule 23 and due process.
`The settlement administrator contacted 99% of the persons
`associated with potentially eligible devices via the email and
`postal addresses in Apple’s records and later sent follow-up
`notices to persons who had not yet responded. Additional
`class members received notice through the settlement’s
`substantial coverage in the press and on social media.
`
`BCI complains that “tying the notice solely to the Apple
`ID on an Affected Device . . . focused on notifying users of
`Affected Devices, but not necessarily the owners.” But the
`focus on users was reasonable given the requirement that
`claimants attest they experienced diminished performance
`on their devices. As BCI acknowledges, nonnatural persons
`“generally could not be users” of eligible devices.
`Moreover, BCI does not satisfactorily explain how the
`settlement administrator could have provided better notice to
`nonnatural persons.
`
`While BCI speculates that Apple could have furnished
`corporate purchasers’ contact information based on internal
`sales records, Apple informed the district court that it lacks
`that capability. Due process does not require Apple to
`perform impossible feats. Cf. Roes, 944 F.3d at 1047 n.9
`(holding that “email notice would in no way have been
`‘practicable under the circumstances’” where the defendants
`“did not have e-mail addresses for the class members”).
`
`Similarly, BCI suggests that the parties could have
`identified corporate purchasers by “subpoena[ing] sales
`records from the major U.S. cellular carriers,” but there is no
`reason to assume that cellular carriers supply a significant
`share of corporate devices. Apple does not track corporate
`ownership of its devices in part because nonnatural persons
`purchase devices “in a variety of ways.” Even if the various
`third parties selling iPhones to corporations were not so
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 17
`
`
`
`numerous as to make subpoenaing them impracticable, such
`an approach would have risked delays and increased costs
`from litigation over the subpoenas. See, e.g., Ostrowski v.
`Amazon.com, Inc., No. C16-1378-JCC, 2016 WL 4992051,
`at *1 (W.D. Wash. Sept. 16, 2016) (addressing third party
`retailer’s objections to subpoena for customer information).
`Rule 23 and due process require only a “reasonable effort”
`to notify individual class members. Fed. R. Civ. P.
`23(c)(2)(B); cf. In re Hyundai & Kia Fuel Econ. Litig.,
`926 F.3d 539, 568 (9th Cir. 2019) (en banc) (rejecting
`argument
`that defendant automakers “should have
`automatically made lump sum payments to class members”
`where the automakers lacked “complete records of resales of
`the class vehicles” and “could [not] have identified
`subsequent purchasers who were also part of the class”).
`
`Lastly, BCI asserts that the parties could have given
`nonnatural persons constructive notice of the settlement
`through publication. But the free media coverage and
`individual notice to device users was more than adequate to
`reach nonnatural persons. The media covered the settlement
`in 2,670 pieces with a combined readership of approximately
`7.31 million people. This case is thus readily distinguishable
`from Roes, where we found it “particularly problematic”
`that, despite concerns that certain class members “might be
`difficult to reach by mail, the settlement provided no other
`means of reaching [them].” Roes, 944 F.3d at 1046. Indeed,
`the large share of corporate claimants belies a lack of notice.
`More than one million nonnatural persons submitted claims,
`comprising nearly a third of the total. Of the 67 corporate
`
`

`

`18 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`class members who objected to the settlement, only BCI
`challenged the notice.6
`
`The notice to nonnatural persons was reasonable, and the
`district court did not abuse its discretion by authorizing it.
`
`B. The Attestation Requirement Did Not Render the
`Settlement Unfair
`
`For a settlement to be “fair, reasonable, and adequate,”
`Rule 23(e) requires that “the class representatives and class
`counsel have adequately represented the class,” “the relief
`provided for the class is adequate,” and the settlement “treats
`class members equitably relative to each other.” Fed. R. Civ.
`P. 23(e)(2)(A), (C), (D). The Feldman objectors contest
`each of these criteria.7 However, most of their arguments
`
`6 We easily reject BCI’s argument that the settlement does not apply
`to nonnatural persons. The settlement references “individuals,” but that
`word is not “a legal term of art that applies only to natural persons,” and
`its ordinary meaning “does not necessarily exclude corporations.”
`United States v. Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000).
`Regardless, while the settlement includes “individuals,” it applies more
`broadly
`to
`iPhone “owners”—a
`term
`that plainly encompasses
`nonnatural persons. And the settlement agreement is not entirely silent
`as to nonnatural persons; it protects them from fraud by allowing the
`settlement administrator to reject a claim form if “the person submitting
`[it] requests that payment be made to [an] . . . entity other than the
`Settlement Class Member for whom the Claim Form is submitted.”
`
`7 The Feldman objectors also argue that the district court should
`have made detailed findings that Rule 23(a) and (b)(3)’s prerequisites
`were satisfied. We have previously rejected a “claim [of] error in the
`brevity of [such] findings” where “the record provides more than
`adequate foundation” for review, Hanlon v. Chrysler Corp., 150 F.3d
`1011, 1023 (9th Cir. 1998), and this case is no different. Moreover, the
`crux of the Feldman objectors’ challenge to the commonality, typicality,
`adequacy, and predominance requirements, see Fed. R. Civ. P. 23(a)(2)–
`
`
`

`

`IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION 19
`
`
`
`boil down to the same core complaint: the settlement
`extinguishes the claims of “all former or current U.S.
`owners” of certain devices who downloaded iOS software
`before Apple disclosed potential defects, yet the settlement
`limits recovery to the subset of owners who can attest that
`“they experienced” the alleged defects.
`
`The fundamental problem with the Feldman objectors’
`arguments is their assumption that “all Class members
`suffered the same impairment of iPhone performance and
`uniform damages.” Throughout this litigation, Apple has
`disputed “that all devices were used in a way that would have
`activated the performance management feature” that slowed
`system performance. Apple insists that “even when [the
`feature] was activated, users may not have . . . noticed any
`differences.” Although plaintiffs alleged that “the iOS
`updates affected all Plaintiffs alike,” the parties agreed to the
`attestation requirement as a compromise.
`
`That compromise was reasonable. It reflected “the
`bargaining and compromise inherent in settling disputes.”
`California v. IntelliGender, LLC, 771 F.3d 1169, 1179 (9th
`Cir. 2014). At the time of the settlement, the only claims
`that remained—concerning Apple’s alleged failure to
`disclose the nature of the iOS updates—all required a
`showing of damages for a plaintiff to recover. Neither the
`federal Computer Fraud and Abuse Act nor California’s
`Data Access and Fraud Act provides for statutory damages,
`see 18 U.S.C. § 1030(g); Cal. Penal Code § 502(e)(1), and
`trespass to chattels is not actionable without damage to or
`
`
`(4), (b)(3), concerns the class definition—namely, that it includes class
`members who aren’t entitled to compensation because they couldn’t
`attest to injury. We consider this issue, as to which the district court
`made detailed findings, in connection with Rule 23(e)(2).
`
`

`

`20 IN RE APPLE INC. DEVICE PERFORMANCE LITIGATION
`
`interference with the phone’s operation. See hiQ Labs, Inc.
`v. LinkedIn Corp., 31 F.4th 1180, 1201 n.21 (9th Cir. 2022).
`If a class member did not perceive and could not otherwise
`detect the throttling, then the class member’s inability to
`make the attestation relinquished a valueless claim. Apple,
`on the other hand, risked increased liability by proceeding to
`trial because plaintiffs might have proven that the system
`slowdowns affected every device. The settlement allowed
`Apple to limit its exposure while ensuring that compensation
`was available to every class member who suffered a
`compensable injury.
`
`That not every class member had an actionable claim is
`not tantamount to two adverse groups requiring separate
`representation, as in Amchem Products, Inc. v. Windsor,
`521 U.S. 591 (1997). In Amchem, every class member
`suffered an injury—exposure to asbestos—but the injuries
`manifested over different time horizons “because of a
`latency period that may last as long as 40 years.” Id. at 598.
`Class members whose injuries had already manifested
`sought “generous immediate payments,” bringing them into
`conflict with the other class members who sought an “ample,
`inflation-protected fund for the future.” Id. at 626. Thus,
`“the interests of those within the single class [were] not
`aligned” in “significant respects.” Id. No such conflict
`exists here. All class members who were injured by Apple’s
`failure to disclose the nature of the iOS updates experienced
`injury during the same time frame and in the same manner.
`
`Nor does the possibility that some class members
`suffered no damages mean that they lack standing and must
`be dismissed.8 W