(N.D. Cal. May 9, 2024) (Corley, J.)
In this case, the Plaintiff initiated a consumer class action against a debt collector, alleging abusive, deceptive and unfair debt collection practices. The parties settled and the Plaintiff moved for final approval of the settlement. The Court granted the motion for approval and for fees, costs and incentive award.
Looking at adequacy of notice, the Court reviewed concerns raised during the preliminary approval stage. As a result, the parties made revisions that included providing a placeholder website link for class members to access deadlines and documents. They also informed class members of their right to object to fees, specified when the motion for fees and final approval would be filed and gave instructions on how to access that information. After the end of the objection filing deadline, the Court found that the website did not make the final approval motion or fee motion available and ordered notice to be reissued on this provision. That notice was distributed via a second postcard.
No. 23-cv-10037, 2024 WL 3325705 (E.D. Mich. Jul. 8, 2024) (Lawson, J.)
The Plaintiff brought a Telephone Consumer Protection Act (TCPA) class action against a home warranty company, alleging that calls were received despite being listed on the National Do Not Call Registry. After reaching a settlement through negotiation, the parties moved for final certification and for fees, costs and service award. The Court granted the motion.
In reviewing the settlement notice, the Court observed notice via first-class mail was sent to 20,762 members, an amount less than the expected 21,953 class members identified. The notice provider found 1,185 of these were duplicate entries, and six were without a valid address. A total of 3,311 notices were returned as undeliverable, and 144 of these were resent with forwarding information. The remaining undeliverable contacts (excluding 160 returned after the response deadline) were traced using a service, resulting in updated addresses for 1,633 members. Notices were reissued, with 160 returning undeliverable. In total, 19,068 notices were successfully mailed.
The Court also looked at the email notification sent to 20,642 class members with email addresses, including the six who did not have mailing addresses. Out of these, 18,147 emails were successfully delivered, 2,495 bounced back, 6,552 were opened and 807 recipients followed the link to the website.
In total, the Court found 20,373 members, or 98.1%, had received notice. There were 10,424 website visits, 562 calls to the hotline, 3,295 claim forms submitted and 235 claims from unverified potential class members, one of which had filed supporting information. There were 51 members who filed opt-outs and four unverified members. As of the April 30, 2024, deadline, no class member had objected.
Looking at certification, the Court found numerosity met by the number of members, and commonality met by claims falling under the same ad campaign and shared status as Do Not Call registrants. Typicality was also met by Defendants’ common policy against the class as a whole. Adequacy was met, as the Plaintiff and counsel were capable and without conflict of interest. Rule 23(b)(3) was also met: The Plaintiff’s interests aligned with the class and were considered identical with respect to the TCPA.
Turning next to the settlement itself, the Court found the agreement met all seven 6th Circuit Whitlock factors, which include risk of fraud and collusion, complexity and expense, significant discovery, prospects of success, counsel’s participation, opportunity for objectors and public interest in efficient resolution.
Turning to the fee award, the Court applied the percentage of fund method and found 27.85% of the total fund was consistent with other TCPA actions. The lodestar cross-check was found to be somewhat higher. However, when evaluated against the Moulton factors that courts consider when deciding which method to favor, the Court concluded that the contingent nature of the fee and the substantial recovery for class members supported approval of the request. The Court also found the costs of administration and the service award were reasonable.
No. 4:21-cv-3156, 2024 WL 3903550 (D. Neb. Aug. 21, 2024) (Gerrard, J.)
The Plaintiff brought a data security breach action against a financial institution. After the settlement, the Plaintiff moved for final approval and fees. The Court granted the motions.
Looking at notice, the Court found 97% of the class had been given notice and that the receipt of 1,200 claims was sufficient for final approval in a data breach settlement.
On reasonableness, the Court found the settlement was related to the case merits and that the risk of success, the time and expense, and the complexity of litigation in data breach cases weighed in favor.
On the fee award, the Court found the 14% fee request was below the typical fees approved for similar cases and that although the fees were twice the lodestar cross-check, the amount was warranted for significant research, briefing and discovery for several years. The Court thus found the fee award reasonable and found the costs sought and service award were reasonable as well.
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