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1 ALLAN STEYER (Bar No. 100318) JILL M. MANNING (Bar No. 178849) 2 D. SCOTT MACRAE (Bar No. 104663) STEYER LOWENTHAL BOODROOKAS 3 ALVAREZ & SMITH LLP 4 235 Pine Street, 15th Floor San Francisco, CA 94104 5 Telephone: (415) 424-3400 Facsimile: (415) 421-2234 6 [email protected] 7 [email protected] [email protected] 8 CLIFFORD H. PEARSON (Bar. No. 108523) 9 DANIEL L. WARSHAW (Bar No. 185365) THOMAS J. NOLAN (Bar No. 66992) 10 PEARSON, SIMON & WARSHAW, LLP 11 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 12 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 13 [email protected] [email protected] 14 [email protected] 15 [Additional counsel list on signature page] 16 Counsel for Plaintiffs and the Class 17
18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 20 CHRISTINA GRACE and KEN POTTER CASE NO. 5:17-cv-00551-LHK-NC Individually and on Behalf of All Others 21 Similarly Situated, CLASS ACTION 22 Plaintiffs, NOTICE OF MOTION AND MOTION FOR 23 FINAL APPROVAL OF CLASS ACTION vs. SETTLEMENT; MEMORANDUM OF 24 POINTS AND AUTHORITIES IN SUPPORT APPLE INC., THEREOF 25
26 Defendant. Date: February 8, 2021 Time: 1:30 p.m. 27 Courtroom: 8
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1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on February 8, 2021 at 1:30 p.m. or as soon thereafter as the 3 matter may be heard in the Courtroom of the Honorable Lucy H. Koh, United States District Court, 4 Northern District of California, San Jose Division, 280 South 1st Street, San Jose, CA 95113, 5 Plaintiffs Christina Grace and Ken Potter (“Plaintiffs”) will and hereby do move the Court, pursuant 6 to Federal Rule of Civil Procedure 23(e), for the entry of an Order granting final approval of the 7 Settlement Agreement between Plaintiffs and Defendant Apple Inc. (“Apple”).
8 The grounds for this motion are that the proposed settlement is within the necessary range of 9 reasonableness to justify granting final approval pursuant to Federal Rule of Civil Procedure 23(e). 10 This motion is based upon this Notice of Motion and Motion for Final Approval of Class Action 11 Settlement, the Declaration of Daniel L. Warshaw, the Declaration of Cameron R. Azari, the 12 pleadings and papers on file in this action, and such oral and documentary evidence as may be 13 presented at the hearing on this motion. 14 / / /
15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / /
22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / /
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1 TABLE OF CONTENTS Page 2
3 I. INTRODUCTION ...... 1 4 II. BACKGROUND ...... 2 5 A. Plaintiffs’ Claims ...... 2 6 B. Procedural History ...... 3 7 III. SUMMARY OF THE SETTLEMENT ...... 4 8 A. Mediation and Settlement ...... 4 9 B. The Proposed Settlement Class ...... 4 10 C. Monetary Relief ...... 5 11 12 D. Narrowly Tailored Release ...... 5 13 E. Class Notice and the Cost of Settlement Administration ...... 6 14 IV. THE COURT SHOULD GRANT FINAL APPROVAL OF THE SETTLEMENT ...... 7
15 A. The Settlement is Fair, Reasonable and Adequate ...... 7
16 1. The Strength of Plaintiffs’ Case Compared to the Risk, Expense, Complexity, and Likely Duration of Further Litigation ...... 8 17 2. The Amount Offered in Settlement ...... 10 18 19 3. The Risk of Maintaining Class Action Status Through Trial ...... 12 20 4. The Extent of Discovery Completed and the Stage of the Proceedings ...... 12 21 5. The Experience and Views of Counsel ...... 13
22 6. The Reaction of the Class Members to the Proposed Settlement...... 15
23 (a) The Sole Objector is a Disbarred California Attorney and Professional Objector Who is Not a Class Member ...... 15 24 7. The Settlement is Not the Product of Collusion ...... 21 25 26 B. The Settlement Class Satisfies Rule 23 and Should be Finally Certified ...... 22 27 1. The Class Representatives and Class Counsel have Vigorously Represented the Class ...... 23 28
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1 2. The Class Representatives’ Interests are Aligned with and are Not Antagonistic to the Other Class Members’ Interests ...... 24 2 3. The Settlement was Negotiated at Arm’s-Length ...... 24 3 4. The Relief Provided for the Class is Adequate ...... 25 4 5 V. CONCLUSION ...... 25
6 7
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 AIG, Inc. v. ACE INA Holdings, Inc., 5 Nos. 07-2898, 09-2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) ...... 18 6 In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299 (N.D. Cal. 2018) ...... 11, 14, 21 7 In re Apple Sec. Litig., 8 No. 5:06-CV-05208-JF (HRL), 2011 WL 1877988 (N.D. Cal. May 17, 2011) ...... 18
9 Betancourt v. Advantage Human Resourcing, Inc., 10 No. 14-CV-01788-JST, 2016 WL 344532 (N.D. Cal. Jan. 28, 2016) ...... 11 11 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) ...... 8, 21 12 Brown v. Hain Celestial Grp., Inc., 13 3:11-CV-03082-LB, 2016 WL 631880 (N.D. Cal. Feb. 17, 2016) ...... 16
14 Castaneda v. Burger King Corp., No. C 08-04262 WHA, 2010 WL 2735091 (N.D. Cal. July 12, 2010) ...... 20 15 16 Caudle v. Sprint/United Mgmt. Co., No. C 17-06874 WHA, 2019 WL 6841239 (N.D. Cal. Dec. 16, 2019) ...... 11 17 Chambers v. Whirlpool Corp., 18 214 F. Supp. 3d 877 (C.D. Cal. 2016) ...... 17
19 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) ...... 2, 7, 8, 23 20 Class Plaintiffs v. City of Seattle, 21 955 F.2d 1268 (9th Cir. 1992) ...... 7 22 Cobell v. Salazar, 23 679 F.3d 909 (D.C. Cir. 2012) ...... 18
24 Collins v. Quincy Bioscience, LLC, No. 19-22864-Civ (MGC) (S.D. Fla.), Dkt. No. 176 ...... 21 25 In re Equifax Inc. Customer Data Sec. Breach Litig., 26 No. 1:17-MD-2800-TWT, 2020 WL 256132 (N.D. Ga. Mar. 17, 2020) ...... 15 27 G. F. v. Contra Costa Cty., 28 No. 13-CV-03667-MEJ, 2015 WL 4606078 (N.D. Cal. July 30, 2015) ...... 21
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1 Gay v. Tom’s of Maine, Inc., No. 0:14-cv-60604-KMM, Dkt. No. 43 (S.D. Fla. Mar. 11, 2016) ...... 16 2 Glass v. UBS Fin. Servs., Inc., 3 No. C-06-4068 MMC, 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) ...... 9, 14 4 Hanlon v. Chrysler Corp., 5 150 F.3d 1011 (9th Cir. 1998) ...... 10, 23 6 Hillis v. Equifax Consumer Servs., Inc., No. 104-CV-3400-TCB, 2007 WL 1953464 (N.D. Ga. June 12, 2007) ...... 17 7 Hooker v. Sirius XM Radio Inc., 8 No. 4:13-cv-00003-AWA-LRL, Dkt. No. 209 ...... 16
9 Hopkins v. Stryker Sales Corp., 10 No. 11-CV-02786-LHK, 2013 WL 496358 (N.D. Cal. Feb. 6, 2013) ...... 20 11 In re Hydroxycut Mktg. & Sales Practices Litig., No. 09CV1088 BTM KSC, 2013 WL 5275618 (S.D. Cal. Sept. 17, 2013) ...... 16, 17 12 Jennings v. Open Door Mktg., LLC, 13 No. 15-CV-04080-KAW, 2018 WL 4773057 (N.D. Cal. Oct. 3, 2018) ...... 19
14 Lane v. Facebook, Inc., 15 696 F.3d 811 (9th Cir. 2012) ...... 17 16 Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013) ...... 17 17 Larsen v. Trader Joe’s Co., 18 No. 11-cv-05188-WHO, 2014 WL 3404531 (N.D. Cal. July 11, 2014) ...... 14
19 Legg v. Lab. Corp. of Am., No. 14-61543-CV, 2016 WL 3944069 (S.D. Fla. Feb. 18, 2016) ...... 16 20 21 In re Linkedin User Privacy Litig., 309 F.R.D. 573 (N.D. Cal. 2015) ...... 12, 21 22 McDonald v. CP OpCo, LLC, 23 No. 17-CV-04915-HSG, 2019 WL 2088421 (N.D. Cal. May 13, 2019) ...... 11
24 Moore v. Verizon Commc’ns, Inc., No. C 09-1823 SBA, 2013 WL 450365 (N.D. Cal. Feb. 5. 2013) ...... 16 25 26 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ...... 10 27 In re Nexus 6P Prod. Liab. Litig., 28 No. 17-CV-02185-BLF, 2019 WL 6622842 (N.D. Cal. Nov. 12, 2019) ...... 20
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1 Nicholas der-Hacopian v. Darktrace, Inc., No. 18-CV-06726-HSG, 2020 WL 7260054 (N.D. Cal. Dec. 10, 2020) ...... 21 2 Noll v. eBay, Inc., 3 309 F.R.D. 593 (N.D. Cal. 2015) ...... 12 4 In re NVIDIA GPU Litig., 5 539 F. App’x 822 (9th Cir. 2013) ...... 17 6 In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, 910 F. Supp. 2d 891 (E.D. La. 2010) ...... 18 7 In re Omnivision Techs., Inc., 8 559 F. Supp. 2d 1036 (N.D. Cal. 2008) ...... 14
9 Parker v. Anderson, 10 667 F.2d 1204 (5th Cir. 1982) ...... 18 11 Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020) ...... 12 12 Rodman v. Safeway Inc., 13 No. 11-CV-03003-JST, 2018 WL 4030558 (N.D. Cal. Aug. 23, 2018) ...... 17
14 Rodriguez v. West Publ’g Corp., 15 563 F.3d 948 (9th Cir. 2009) ...... 7, 10, 11 16 Roe v. Jose Torres L.D. Latin Club Bar, Inc., No. 19-CV-06088-LB, 2020 WL 5074392 (N.D. Cal. Aug. 27, 2020) ...... 11 17 Schneider v. Chipotle Mexican Grill, Inc., 18 No. 16-CV-02200-HSG, 2020 WL 511953 (N.D. Cal. Jan. 31, 2020) ...... 11
19 Schneider v. Chipotle Mexican Grill, Inc., No. 16-CV-02200-HSG, 2020 WL 6484833 (N.D. Cal. Nov. 4, 2020) ...... 20 20 21 Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ...... 20 22 Spann v. J.C. Penney Corp., 23 No. SA CV 12-0215 FMO, 2016 U.S. Dist. LEXIS 137184 (C.D. Cal. Sep. 30, 2016) ...... 17
24 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) ...... 22 25 26 Stovall-Gusman v. W.W. Granger, Inc., No. 13-CV-02540-HSG, 2015 WL 3776765 (N.D. Cal. June 17, 2015) ...... 11 27 In re Syncor ERISA Litig., 28 516 F.3d 1095 (9th Cir. 2008) ...... 7
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1 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ...... 20 2 Wal-Mart Stores, Inc. v. Buholzer, 3 156 F. App’x 346 (2d Cir. 2005) ...... 17 4 Wal-Mart Stores, Inc. v. Dukes, 5 564 U.S. 338 (2011) ...... 22 6 In re WorldCom, Inc. Sec. Litig., No. 02 CIV 3288(DLC), 2004 WL 2591402 (S.D.N.Y. Nov. 12, 2004) ...... 17 7 Other Authorities 8 4 Newberg on Class Actions § 13.45 (5th ed.) ...... 14 9 10 Fed. R. Civ. P. 23(a) ...... 22 11 Fed. R. Civ. P. 23(e) ...... passim 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 The Settlement Class Members’ reaction to the Settlement was overwhelmingly positive. Of 4 the approximately 3.2 million Settlement Class Members, only nine opted out and only one—a 5 disbarred attorney who is a serial objector and not a member of the class—filed an objection. Over 6 ninety-nine percent (99%) of the Settlement Class Members were prequalified to participate in the 7 Settlement using Apple’s records, received direct notice of the Settlement, and do not need to submit
8 a claim form to participate in the Settlement. These persons will automatically receive a payment for 9 each of their qualifying devices. The small balance of the Settlement Class Members (0.2%) who 10 were not prequalified by Apple and will not receive an automatic payment had the opportunity to 11 participate in the Settlement by submitting an Application for Inclusion, which 3,358 individuals did. 12 Pursuant to Federal Rule of Civil Procedure 23(e), the Parties now seek final approval of the 13 Settlement.1 14 Under the terms of the Settlement, Apple will fund an $18 million non-reversionary cash
15 Settlement Fund. After deducting from the Settlement Fund the costs of notice and claims 16 administration, attorneys’ fees and expenses, and incentive awards, the proceeds of the fund will be 17 distributed automatically by electronic and/or paper checks. 18 On September 10, 2020, this Court issued an Order preliminarily approving this class action 19 Settlement. See Dkt. No. 426 (“Preliminary Approval Order”). The Preliminary Approval Order was 20 the product of an extensive inquiry by the Court, which engaged with Class Counsel during a nearly 21 90-minute hearing regarding myriad aspects of the proposed Settlement, and requested and received
22 supplemental briefing providing further detailed information regarding the proposed Settlement (see 23 Dkt. No. 424). 24 Pursuant to the Notice Plan set forth in the Preliminary Approval Order and Settlement 25 Agreement, Epiq, the Claims Administrator appointed by the Court, has sent direct notice to the 26 3,222,856 Class Members. See Declaration of Cameron R. Azari (“Azari Decl.”), ¶¶ 14-23. The 27 28 1 All capitalized terms referenced herein are defined in the Settlement Agreement. 947352.1 1 Case No. 5:17-cv-00551-LHK-NC
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1 Notice reached 97% of the Settlement Class. Id., ¶ 23. Additionally, Epiq received 3,358 2 Applications for Inclusion (“Applications”) in the Class from persons who believe they have a device 3 that falls within the Class definition. Id., ¶ 24. Only nine Settlement Class Members opted out of the 4 settlement, and only one objection was filed. Id., ¶¶ 36-37. Accordingly, Epiq has successfully 5 effectuated the Court-approved Notice Plan and the response of Class Members has been extremely 6 positive. 7 As previously set forth in Plaintiffs’ Motion for Preliminary Approval (Dkt. No. 414), the
8 “Churchill factors” strongly support final approval of the proposed Settlement. See Churchill Vill., 9 L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004). The Settlement is fair, reasonable and 10 adequate and meets all requirements for final approval. It provides for immediate monetary relief to 11 the Settlement Class Members whose devices are alleged to have been impacted by the April 16, 2014 12 Facetime Break. Absent a settlement, the Class would face the task of maintaining class certification 13 through trial, the expense and uncertainty of trial, and the risk of appeal. Accordingly, the Court 14 should grant final approval of the Settlement.
15 II. BACKGROUND 16 A. Plaintiffs’ Claims 17 Plaintiff Christina Grace filed this Action on February 2, 2017, and filed the Amended 18 Complaint, which added Plaintiff Ken Potter, on April 5, 2017. The Amended Complaint alleges “a 19 consumer class action brought by Plaintiffs on behalf of themselves and all others similarly situated 20 who owned an Apple iPhone 4 or iPhone 4S that was operating on iOS 6 or an earlier operating 21 system, and therefore lost the ability to use Apple’s ‘FaceTime’ video conferencing feature when
22 Apple intentionally broke FaceTime for iOS 6 and earlier operating systems on April 16, 2014.” Dkt. 23 No. 36. Plaintiffs assert two causes of action: trespass to chattels under California law, and violation 24 of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (the “UCL”). Id. 25 In addition to injunctive relief, Plaintiffs seek damages and restitution on a class-wide basis for the 26 diminution in value of their iPhone 4 and 4S devices allegedly caused by the FaceTime Break.2
27 2 28 The “FaceTime Break” refers to the April 16, 2014 expiration of the certificate that allowed the FaceTime feature to function on iPhone 4 and 4S devices running on iOS 6 or an earlier version. 947352.1 2 Case No. 5:17-cv-00551-LHK-NC
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1 Plaintiffs retained Dr. Justine S. Hastings, Ph.D., to calculate aggregate class-wide damages measured 2 by the diminution in value of Class Members’ iPhone 4 and 4S devices caused by the FaceTime 3 Break. Dkt. No. 174. Dr. Hastings’ econometric damages model produced an estimate of the impact 4 of the FaceTime Break on prices of used iPhone 4 and 4S models and concluded that Apple’s conduct 5 impacted the prices by, on average, $18.30 per device. 6 Apple denies the allegations and challenged the propriety of the damages model, which among 7 other things was based on data pertaining solely to business-to-business transactions rather than
8 transactions involving class members or those similarly situated. 9 B. Procedural History 10 This case was vigorously litigated. The parties engaged in significant motion practice, 11 including a motion to dismiss, a motion for class certification, a Federal Rule of Civil Procedure 12 (“Rule”) 23(f) petition, 12 discovery motions, a summary judgment motion, 6 motions in limine and 13 a Daubert motion to exclude the testimony and opinions of Plaintiffs’ two experts. Declaration of 14 Daniel L. Warshaw in Support of Motion for Final Approval of Class Action Settlement (“Warshaw
15 Decl.”), ¶ 18. On July 28, 2017, the Court denied Apple’s Motion to Dismiss the Amended 16 Complaint. Dkt. No. 65. On September 19, 2018, the Court issued a Class Certification Order 17 certifying a class pursuant to Rule 23(b)(3) defined as “[a]ll owners of non-jailbroken Apple iPhone 18 4 or Apple iPhone 4S devices in California who on April 16, 2014, had iOS 6 or earlier operating 19 systems on their iPhone 4 or iPhone 4S devices.” Dkt. No. 269. The Court denied certification of a 20 nationwide class and did not certify an injunctive relief class under the UCL. Id. On November 6, 21 2018, Plaintiffs filed a petition pursuant to Rule 23(f) seeking permission to appeal the Court’s denial
22 of certification of a nationwide class. Dkt. No. 290. On March 20, 2019, the Ninth Circuit denied 23 permission to appeal. Dkt. No. 295. On April 29, 2019 the Court set the case for trial on April 6, 24 2020; however, the trial date was vacated. Dkt. Nos. 301, 410. On August 21, 2019, the Court denied 25 Apple’s Summary Judgment Motion. Dkt. No. 306. On September 10, 2020, the Court issued the 26 Preliminary Approval Order (Dkt. No. 426) following a nearly 90-minute hearing regarding all 27 aspects of the proposed Settlement and supplemental briefing (Dkt. No. 424). 28 / / /
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1 III. SUMMARY OF THE SETTLEMENT 2 A. Mediation and Settlement 3 On November 9, 2018, the parties attended an all-day Court-ordered mediation session before 4 the Honorable William J. Cahill (Ret.), at JAMS in San Francisco. Warshaw Decl., ¶ 3. The parties 5 were unable to reach a settlement. Id. After denying Apple’s motion for summary judgment, the 6 Court ordered the parties to return to mediation. On October 22, 2019, the parties returned to JAMS 7 for a mediation before Judge Cahill but were again unable to reach agreement on all terms of a
8 settlement. Id., ¶ 4. After the second mediation, Judge Cahill engaged in extensive settlement 9 discussions with each party but ultimately a settlement was not reached. Id., ¶ 5. As the litigation 10 progressed closer to trial, the Court ordered the Parties to attend a settlement conference before the 11 Honorable Nathanael Cousins. Dkt. No. 325. On December 5, 2019, Magistrate Judge Cousins held 12 an all-day settlement conference, but the parties were again unable to resolve the case. Warshaw 13 Decl., ¶ 6. After extensive follow-up discussions, the parties attended a second in-person settlement 14 conference with Magistrate Judge Cousins on January 16, 2020, which also did not result in a
15 settlement. Id., ¶ 7. Magistrate Judge Cousins continued conferring with the parties and, on January 16 31, 2020, made a mediator’s proposal. Id., ¶ 8. On February 6, 2020, Magistrate Judge Cousins 17 informed the parties that both parties had accepted the mediator’s proposal. Id., ¶ 9. 18 B. The Proposed Settlement Class 19 The Settlement Agreement provides for relief to the following Class Members: 20 All owners of non-jailbroken Apple iPhone 4 or Apple iPhone 4S devices who on April 16, 2014, had iOS 6 or earlier operating systems on their 21 iPhone 4 or iPhone 4S devices, and who were in California at that time. 22 The Class includes3 approximately 3.2 million individuals who were affected by the FaceTime 23 Break and who are members of the class certified by the Court. Dkt. No. 269.4 24
25 3 The Class excludes (a) directors, officers, and employees of Apple or its subsidiaries and affiliated companies; (b) the Court, the Court staff, as well as any appellate court to which this matter is ever 26 assigned and its staff; (c) Apple Counsel, as well as their immediate family members, legal representatives, heirs, successors, or assigns; and (d) any individuals who timely exclude themselves 27 from the Class or whose claims have already been adjudicated to a final judgment. 28 4 Because there is no way, using available records, to verify if a user has jailbroken their phone, the Settlement Agreement provides that otherwise-qualifying iPhone devices will be presumed to be non-
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1 C. Monetary Relief 2 Under the terms of the proposed settlement, Apple will fund an $18 million non-reversionary 3 cash Settlement Fund. After subtracting from the Settlement Fund the costs of notice and claims 4 administration, attorneys’ fees and expenses, and incentive awards, the proceeds of the Net Settlement 5 Fund will be distributed automatically by the Settlement Administrator by electronic and/or paper 6 checks. Each Settlement Class Member will receive a Class Payment for each of their qualifying 7 iPhone 4 or iPhone 4S devices. Settlement Class Members did not need to submit a claim in order to
8 receive their direct payment from the Net Settlement Fund. The amount of payments to each 9 participating Settlement Class Member will be calculated based on each Settlement Class Member’s 10 proportional share of the Net Settlement Fund, i.e., the Net Settlement Fund balance divided by the 11 total number of eligible devices. 12 The Settlement Agreement provides for a meet and confer process between the Parties to 13 determine the most appropriate disposition of any unclaimed funds from uncashed checks following 14 the initial payment. Plaintiffs’ position is that the Court should order a second distribution of any
15 such unclaimed funds to Settlement Class Members who cashed checks from the first distribution, 16 and that if, after the second distribution, unclaimed funds remain in the Settlement Fund, they should 17 be donated to the Consumer Federation of America via cy pres.5 Apple’s position is that unclaimed 18 funds, if any, from uncashed checks should escheat to the State of California for the class members’ 19 benefit. Pursuant to the Settlement Agreement, the Parties will brief this issue for the Court if 20 necessary, but under no circumstances will any of the Settlement funds revert to Apple. 21 D. Narrowly Tailored Release
22 The Settlement Agreement contains a narrowly tailored release that is specifically limited to 23 claims arising from, or related to, the facts underlying the Action and the certified California Class. 24 Settlement Agreement at ¶ 8.1. The Settlement Agreement is not intended to abridge the rights of 25 consumers in other states who may have potential claims. Id., Recitals, p. 5. 26
27 jailbroken unless it is determined through existing records that they are jailbroken. 5 28 The cy pres recipient was one of the topics that the Court sought further information on following the preliminary approval hearing which was provided in the supplemental briefing (Dkt. No. 424). 947352.1 5 Case No. 5:17-cv-00551-LHK-NC
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1 E. Class Notice and the Cost of Settlement Administration 2 Epiq has effectuated the Notice Plan pursuant to the Court’s Order and the Settlement 3 Agreement by sending direct notice to the 3,222,856 Class Members. See Azari Decl., ¶¶ 14-23, 38- 4 42. On October 9, 2020, Epiq disseminated 3,204,274 Email Notices to all potential Settlement Class 5 Members for whom Apple provided an email address. Id., ¶ 15. For those Settlement Class Members 6 for whom Apple did not have an email address but did have a physical mailing address, Epiq mailed 7 13,635 Postcard Notices via first-class mail that same day. Id., ¶ 18. This first round of Notice was
8 sent to 99.8% of the Settlement Class. On November 18, 2020, Epiq completed a second round of 9 notice by mailing Postcard Notices to the persons whose emails were undeliverable.6 Id., ¶ 19. 10 Additionally, Epiq received 3,358 Applications from persons who believe they have a device that 11 falls within the Class definition. Id., ¶ 24. These Applications for Inclusion were submitted via the 12 settlement website or by mail. The Claims Administrator sent the Applications for Inclusion to Apple 13 for verification of class membership. Id., ¶ 25. Of the 3,358 Applications, 163 have been approved 14 to date.7 Id., ¶ 26.
15 Additionally, on October 8, 2020, Epiq created a dedicated website for the Settlement. See 16 www.GraceClassAction.com. Id., ¶ 32. By visiting the settlement website, Settlement Class 17 Members are able to obtain detailed information about the case, review documents related to the 18 Settlement, and obtain answers to Frequently Asked Questions (FAQs). Moreover, individuals who 19 did not receive Notice of the Settlement via email or by physical mail had the opportunity to submit 20 an Application for Inclusion either electronically or by printing the Application and mailing it to Epiq. 21 Id. As of January 4, 2021, there have been 38,551 unique visitors to the settlement website and
22 71,058 website page views. Id., ¶ 33 Epiq also established a toll-free telephone number (1-866-977- 23 0759) for Settlement Class Members to call for additional information about the Settlement, or 24 request that a Long Form Notice be mailed to them, among other things. Id., ¶ 34. Epiq handled 752 25 calls to the toll-free number. Id. Epiq also established a mailing address to allow Settlement Class 26 Members to request additional information about the Settlement. Id., ¶ 35.
27 6 The email addresses provided by Apple for 629,186 Class Members were undeliverable. 28 7 848 Applications are still pending confirmation by Apple. Azari Decl., ¶ 26 947352.1 6 Case No. 5:17-cv-00551-LHK-NC
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1 When authorized by the Court, Epiq will send the checks by email to those Settlement Class 2 Members for whom it has a confirmed email address, and will mail checks to those Settlement Class 3 Members for whom it has a confirmed mailing address. As set forth in Section III.C supra, under no 4 circumstances will any of the settlement funds revert to Apple. 5 At preliminary approval, Epiq estimated it would cost approximately $1.4 million for it to 6 fully administer the Settlement in this Action. Warshaw Decl., ¶ 23. The updated cost for settlement 7 administration is $1,406,119. Id.; see also Azari Decl., ¶ 28.
8 IV. THE COURT SHOULD GRANT FINAL APPROVAL OF THE SETTLEMENT 9 Federal Rule of Civil Procedure 23(e) requires court approval of any settlement of claims of 10 a settlement class. The Ninth Circuit maintains a “strong judicial policy that favors settlements, 11 particularly where complex class action litigation is concerned.” Class Plaintiffs v. City of Seattle, 12 955 F.2d 1268, 1276 (9th Cir. 1992); see also Churchill, 361 F.3d at 576; In re Syncor ERISA Litig., 13 516 F.3d 1095, 1101 (9th Cir. 2008). 14 A. The Settlement is Fair, Reasonable and Adequate
15 A proposed class action settlement may be approved if the Court, after allowing absent class 16 members an opportunity to be heard, finds that the settlement is “fair, reasonable, and adequate.” 17 Fed. R. Civ. P. 23(e)(2). When assessing a proposed settlement, “the court’s intrusion upon what is 18 otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited 19 to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or 20 overreaching by, or collusion between, the negotiating parties, and the settlement, taken as a whole, 21 is fair, reasonable and adequate to all concerned.” Rodriguez v. West Publ’g Corp., 563 F.3d 948,
22 965 (9th Cir. 2009) (internal quotation omitted). 23 To assess whether a settlement merits final approval, courts in this Circuit typically consider 24 the following factors: 25 (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; 26 (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; 27 (5) the extent of discovery completed and the stage of the proceedings; 28 (6) the experience and views of counsel;
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1 (7) the presence of a governmental participant;8 (8) the reaction of the class members to the proposed settlement; and 2 (9) whether the settlement is a product of collusion among the parties. 3 Churchill, 361 F.3d at 575-76; In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th 4 Cir. 2011). As discussed below, an analysis of these factors shows this Settlement to be advantageous 5 to the Class and worthy of judicial approval. 6 The Settlement in this case is fair, reasonable, and adequate and should be approved by the 7 Court because it provides substantial monetary relief to Class Members, i.e. an $18 million non-
8 revisionary cash fund. As detailed below and consistent with this Court’s Procedural Guidance for 9 Class Action Settlements, the factors to be considered by the Court weigh heavily in favor of 10 approval, because the Settlement Agreement adequately remedies the claims alleged by Plaintiffs in 11 this class action lawsuit. 12 1. The Strength of Plaintiffs’ Case Compared to the Risk, Expense, Complexity, and Likely Duration of Further Litigation 13 14 While Plaintiffs believe their claims are strong, the risk, complexity and expense of further
15 litigation is substantial and weigh strongly in favor of approving the Settlement. The risks of 16 continuing this litigation include: (i) the possible success of Apple’s vigorous defense at trial and/or 17 on appeal to Plaintiffs’ assertions that the challenged conduct constitutes a trespass to chattels and 18 unfair business practice; (ii) Apple successfully moving to decertify the litigation class; (iii) Apple’s 19 aggressive challenges to Plaintiffs’ damages methodology and the possibility that the Court would 20 grant Apple’s pending Daubert motion; (iv) a possible adverse outcome at trial; and (v) risks on 21 appeal.
22 At trial, Apple would have asserted legal and factual defenses. For example, Apple has argued 23 throughout this Action that, inter alia, (i) it never acted with the intent to interfere with FaceTime, 24 (ii) the certificate expiration that caused the FaceTime Break was a result of programming decisions 25 made in 2007 and 2010, and (iii) it provided a fully satisfactory fix in the form of an update to the
26 8 There is no government participant in this matter, therefore this factor is a non-issue. The 27 appropriate federal and state officials will be notified pursuant to the Class Action Fairness Act, 28 28 U.S.C. § 1715, and given an opportunity to raise any objections or concerns they may have prior to final approval. 947352.1 8 Case No. 5:17-cv-00551-LHK-NC
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1 latest version of its operating system. Apple has also argued that Plaintiffs lack an ownership interest 2 in the personal property that was allegedly interfered with, and that it was impossible to ascertain 3 customers who suffered a significant interference with FaceTime on a device they were actively 4 using. Apple also would have presented affirmative defenses, including that: (i) Plaintiffs were 5 estopped from claiming trespass to chattels; (ii) in utilizing digital certificates in connection with 6 FaceTime, Apple acted out of necessity to prevent serious harm; (iii) Plaintiffs consented to the 7 alleged interference; (iv) Plaintiffs failed to mitigate damages because they could have, but did not,
8 take action to lessen their alleged damages; and (v) Apple’s conduct was necessary and had a 9 substantial business justification. 10 Further, as set forth in its Daubert motion, Apple challenges the opinions of Plaintiffs’ two 11 experts, Dr. Hastings and Dr. Mark Jones. Dkt. No. 333. Thus, Plaintiffs face the risk of proceeding 12 to trial without expert opinion calculating damages arising from the FaceTime Break, and/or expert 13 opinion relating to the various technical aspects of FaceTime Break and its impact on the Apple 14 devices. Further, Apple’s expert submitted a report challenging Dr. Hastings’ damages analysis and
15 concluding that there were no measurable damages caused by the FaceTime Break. 16 Finally, absent settlement, Plaintiffs would have to litigate this Action for a lengthy and 17 unknown duration of time in order to potentially secure a recovery for the Class. While Plaintiffs 18 believe they have sufficient evidence to prove liability and damages at trial, obtaining a verdict, 19 whether by judge or jury, is inherently uncertain. Plaintiffs bear the burden in this case to prove their 20 claims by a preponderance of the evidence. Moreover, it is exceedingly likely that a successful result 21 at trial would have resulted in post-trial appeal proceedings initiated by Apple. See Glass v. UBS Fin.
22 Servs., Inc., No. C-06-4068 MMC, 2007 WL 221862, *4 (N.D. Cal. Jan. 26, 2007), aff’d, 331 F. 23 App’x 452 (9th Cir. 2009) (“Regardless of how this Court might have ruled on the merits of the legal 24 issues, the losing party likely would have appealed, and the parties would have faced the expense and 25 uncertainty of litigating an appeal.”). This Settlement provides valuable monetary relief to the Class 26 without the delay and risk of further litigation. 27 The substantial relief obtained through this Settlement, particularly when balanced against the 28 length, expense and uncertainty of trial and post-trial proceedings, weighs in favor of approval. See
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1 Rodriguez, 563 F.3d at 966; Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 2 (C.D. Cal. 2004) (“The Court shall consider the vagaries of litigation and compare the significance 3 of immediate recovery by way of the compromise to the mere possibility of relief in the future, after 4 protracted and expensive litigation.”) (citation omitted); Hanlon v. Chrysler Corp., 150 F.3d 1011, 5 1027 (9th Cir. 1998) (“Settlement is the offspring of compromise; the question we address is not 6 whether the final product could be prettier, smarter or snazzier, but whether it is fair, adequate and 7 free from collusion.”).
8 2. The Amount Offered in Settlement 9 The benefits offered by the Settlement Agreement weigh heavily in favor of final approval. 10 As detailed above, the Settlement Agreement creates an $18 million non-reversionary cash common 11 fund—nearly 30 percent of the total average damages initially estimated by Dr. Hastings—and 12 provides substantial monetary relief to Settlement Class Members. The amount of the settlement 13 fund is fair, reasonable and adequate given the diminution in value damages calculated by Dr. 14 Hastings, Apple’s defenses, and litigation and trial risks.
15 In exchange for a release of their claims, Settlement Class Members will receive for each 16 qualifying iPhone 4 and 4S device they own an equal share of the Net Settlement Amount. Epiq 17 currently estimates that for each qualifying iPhone 4 or 4S device, Settlement Class Members will 18 receive an initial check for an estimated $3.13, assuming the Court approves Plaintiffs’ motion for 19 attorneys’ fees, costs and incentive awards without modification. Azari Decl., ¶ 31. In the event that 20 some Settlement Class Members do not cash their checks, the Settlement Agreement provides that 21 the Parties will meet and confer regarding distribution of the residue and, if necessary, brief their
22 respective positions, which could include a second distribution followed by cy pres (Plaintiffs’ 23 position, if economically feasible), or escheatment to the State of California. (Apple’s position). 24 Settlement Agreement, ¶ 2.7. In no event would any residue revert to Apple. 25 In the event that a cy pres mechanism is ultimately used to distribute any residual funds, the 26 Parties have selected, as set forth in the supplemental briefing following preliminary approval (Dkt. 27 No. 424), the Consumer Federation of America as the cy pres recipient. Neither the Parties nor their 28 counsel have any affiliation with the Consumer Federation of America. Warshaw Decl., ¶ 22.
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1 The intent of the Settlement is to distribute the Settlement Fund efficiently and effectively to 2 Settlement Class Members. Plaintiffs estimate that if all Settlement Class Members cash their checks 3 and the Court approves Plaintiffs’ motion for attorneys’ fees, costs and incentive awards, the average 4 damages amount received by each will be approximately $3.13, which represents 15 to 20 percent of 5 Dr. Hastings’ estimate of average per device diminution in value caused by the FaceTime Break. 6 This amount falls well within the “range of reasonableness” under Ninth Circuit law. In re Anthem, 7 Inc. Data Breach Litig., 327 F.R.D. 299, 319 (N.D. Cal. 2018) (A “Settlement Fund represent[ing]
8 approximately 14.5% of the projected recovery that Settlement Class Members would be entitled to 9 if they prevailed on their claims . . . is within the range of reasonableness after taking into account 10 the costs and risks of litigation.”); Betancourt v. Advantage Human Resourcing, Inc., No. 14-CV- 11 01788-JST, 2016 WL 344532, at *5 (N.D. Cal. Jan. 28, 2016) (“9.7% of the total maximum potential 12 recovery that class members would be entitled to if they prevailed on all claims . . . is ‘within the 13 range of reasonableness’ . . . ”); Stovall-Gusman v. W.W. Granger, Inc., No. 13-CV-02540-HSG, 14 2015 WL 3776765, at *4 (N.D. Cal. June 17, 2015) (“10% of what class might have been awarded
15 had they succeeded at trial” is “‘within the range of reasonableness’ in light of the risks and costs of 16 litigation.”); Schneider v. Chipotle Mexican Grill, Inc., No. 16-CV-02200-HSG, 2020 WL 511953, 17 at *10 (N.D. Cal. Jan. 31, 2020) (granting preliminary approval where “total settlement amount 18 constitutes approximately 7.4% of the ‘best-case’ nationwide recovery”). 19 Further, the Net Settlement Fund will be paid in cash, “which is a good indicator of a 20 beneficial settlement.” Rodriguez, 563 F.3d at 965. Moreover, Settlement Class Members do not 21 need to submit a claims form or take any action in order to receive a settlement payment. Because
22 Class Members are not required to submit claims, “settlement dollars will reach the class members 23 in a timely and efficient manner.” McDonald v. CP OpCo, LLC, No. 17-CV-04915-HSG, 2019 WL 24 2088421, at *4 (N.D. Cal. May 13, 2019) (granting final settlement approval); see also Caudle v. 25 Sprint/United Mgmt. Co., No. C 17-06874 WHA, 2019 WL 6841239, at *3 (N.D. Cal. Dec. 16, 2019) 26 (approving class action settlement as fair, reasonable and adequate where “class members need do 27 nothing — payments will be sent automatically upon approval of this proposed settlement.”); Roe v. 28 Jose Torres L.D. Latin Club Bar, Inc., No. 19-CV-06088-LB, 2020 WL 5074392, at *6 (N.D. Cal.
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1 Aug. 27, 2020) (granting final approval of settlement with gross settlement amount of 7% of 2 maximum potential recovery where “settlement agreement provides that checks will be mailed 3 automatically to all settlement class members who do not opt out, without any requirement to submit 4 a claim form.”); Noll v. eBay, Inc., 309 F.R.D. 593, 608 (N.D. Cal. 2015) (final approval of settlement 5 where “[e]ach settlement class member will automatically receive an account credit or a check.”). 6 Plaintiffs submit that particularly when juxtaposed against the risks and costs of further 7 litigation, the Settlement constitutes an excellent result for the Class.
8 3. The Risk of Maintaining Class Action Status Through Trial 9 Plaintiffs believe this Action was properly certified as a class action by the Court and that 10 Plaintiffs’ economist Dr. Hastings constructed an econometric model capable of proving damages on 11 a class-wide basis. 12 Nevertheless, Plaintiffs’ ability to maintain class certification through trial certainly poses a 13 risk, especially in the event of an unforeseen intervening change in the law. Even if Plaintiffs were 14 able to successfully prove their case at trial, Apple would argue that there would be substantial
15 difficulty in proving class-wide damages based on, among other things, differences in each Class 16 Member’s particular use of their devices and the deficiencies in Plaintiffs’ damages model based on 17 data about the business-to-business market. Apple would further argue that every member of a class 18 must satisfy the basic requirements of Article III standing before the members may “be awarded 19 individual monetary damages.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1037 (9th Cir. 2020). 20 Although Plaintiffs are confident that this Action would remain certified as a class action, the risk of 21 failing to maintain class action status throughout trial further weighs in favor of final approval. In re
22 Linkedin User Privacy Litig., 309 F.R.D. 573, 587 (N.D. Cal. 2015) (“[T]he notion that a district 23 court could decertify a class at any time is an inescapable and weighty risk that weighs in favor of a 24 settlement.”). 25 4. The Extent of Discovery Completed and the Stage of the Proceedings 26 The parties engaged in extensive discovery and motion practice that informed their decision 27 regarding the sufficiency of the Settlement Agreement. This case has been vigorously litigated since 28 Plaintiff Grace filed it nearly four years ago, on February 2, 2017. The Motion practice included a
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1 motion to dismiss, a motion for class certification, a Rule 23(f) petition, 12 discovery motions 2 (including motions related to ESI), a summary judgment motion, a Daubert motion to exclude the 3 testimony and opinions of Plaintiffs’ two experts, and six motions in limine. The parties also prepared 4 and submitted pretrial filings, including a joint pretrial statement, proposed jury instructions, verdict 5 forms and voir dire questions, trial exhibit lists and witness lists. 6 The parties engaged in exhaustive discovery. Plaintiffs served 65 Requests for Production, 7 43 Interrogatories, and 42 Requests for Admission on Apple. Warshaw Decl., ¶ 10. The parties
8 engaged in extensive negotiations over search terms and ESI production, resulting in 6 motions to 9 compel, and Apple produced 1,025,596 pages of documents. Id., ¶ 11. Plaintiffs took seven non- 10 expert depositions of Apple, including two Rule 30(b)(6) depositions, and four depositions of non- 11 parties.9 Id., ¶ 12. There were seven depositions of the parties’ five experts. Id., ¶ 13. Plaintiffs’ 12 experts, Dr. Hastings and Dr. Jones, were deposed twice and once, respectively. Id. Apple’s experts, 13 Ms. Dana Trexler and Dr. Neil Malhotra were each deposed once, and Dr. Aviel Rubin was deposed 14 twice. Id. Apple deposed both Class Representatives. Id., ¶ 14. Apple requested and the Court
15 ordered (over Plaintiffs’ objection), forensic imaging of the Class Representatives’ three iPhone 4 16 devices. Id., ¶ 15. The Class Representatives surrendered their devices for several months into the 17 custody of a neutral third party, who conducted forensic imaging consistent with the Court’s Order. 18 Id. The neutral third party produced extensive data from the Plaintiffs’ devices, including all data 19 and information regarding FaceTime, Wi-Fi use, Wi-Fi connection history, and Wi-Fi networks. Id. 20 This production totaled over 370,000 files from within the Settings, Diagnostics, and Usages tabs, or 21 otherwise related to the phone settings in general. Id.; see also Dkt. No. 154.
22 This thorough and lengthy discovery and motion practice allowed Plaintiffs and Apple to fully 23 evaluate the strengths and weakness of their respective positions in the litigation, and to assess their 24 respective likelihood of success at trial and beyond. 25 5. The Experience and Views of Counsel 26 Final approval is further justified by the fact that Plaintiffs and the Class are represented by
27 9 28 Plaintiffs moved for relief from the ten-deposition limit set forth in Rule 30(a)(2), to take additional depositions of Apple. The Court denied the request. Dkt. No. 222. 947352.1 13 Case No. 5:17-cv-00551-LHK-NC
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1 court-appointed co-lead counsel from Pearson, Simon & Warshaw, LLP, Steyer Lowenthal 2 Boodrookas Alvarez & Smith LLP, Caldwell Cassady & Curry, and Friedman Oster & Tejtel PLC, 3 who together have extensive experience in class action and complex litigation, have negotiated 4 numerous other class action settlements, have tried cases to verdict against Apple and have the ability 5 to litigate this Action on a class-wide basis through trial and appeal. Class Counsel secured 6 satisfactory terms of settlement only after a thorough investigation of the factual and legal issues 7 raised in this Action and believe that the Settlement is fair, adequate and reasonable. Warshaw Decl.,
8 ¶ 24. “The recommendations of plaintiffs’ counsel should be given a presumption of reasonableness.” 9 In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008); see also Larsen v. Trader 10 Joe’s Co., No. 11-cv-05188-WHO, 2014 WL 3404531, at *5 (N.D. Cal. July 11, 2014) (“The opinions 11 of counsel should be given considerable weight both because of counsel’s familiarity with this 12 litigation and previous experience with cases.”). 13 Further, the Settlement Agreement was the product of extensive arm’s-length and adversarial 14 settlement discussions between the parties that spanned many months and several mediations,
15 culminating in a mediator’s proposal from Magistrate Judge Cousins that helped bridge the remaining 16 gaps. Where a settlement is the product of arm’s-length negotiations conducted by capable and 17 experienced counsel, the court begins its analysis with a presumption that the settlement is fair and 18 reasonable. See 4 Newberg on Class Actions § 13.45 (5th ed.). Further, “[c]ourts in this district have 19 recognized that ‘the assistance of an experienced mediator in the settlement process confirms that the 20 settlement is non-collusive.’” In re Anthem, 327 F.R.D. at 327; see also Glass, 2007 WL 221862, at 21 *5 (“The settlement was negotiated and approved by experienced counsel on both sides of the
22 litigation, with the assistance of a well-respected mediator . . . [and] this factor supports approval of 23 the settlement.”). As explained above, the Settlement Agreement was reached only after two in- 24 person mediations with Judge Cahill, two in-person settlement conferences with Magistrate Judge 25 Cousins, and extensive and prolonged negotiations conducted by phone and email. Warshaw Decl., 26 ¶¶ 3-9. At the conclusion of those settlement negotiations, Magistrate Judge Cousins presented a 27 mediator’s proposal, which the parties accepted. Id., ¶ 8. 28 Drawing upon their considerable experience and expertise, Class Counsel negotiated and
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1 evaluated the Settlement, which resulted from a proposal by Magistrate Judge Cousins, and ultimately 2 determined that the Settlement provided significant and substantive relief to the Class in the face of 3 significant litigation risks, and therefore should be accepted. Id., ¶ 19. 4 6. The Reaction of the Class Members to the Proposed Settlement 5 The Settlement has received widespread support and been positively received by Class 6 Members following the Notice. Of course, one of the primary benefits of the Settlement is the fact 7 that Class Members do not need to respond or file a claim to receive proceeds of the Settlement.
8 Apple provided the Claims Administrator reliable contact information for millions of persons 9 reflected in Apple’s records as having a qualifying device. That information – email addresses and 10 physical addresses – was used to provide direct Notice in accordance with the Preliminary Approval 11 Order. Of the 3,222,856 Class Members, Apple provided to the Claims Administrator email 12 addresses for 3,204,274, or 99.4%. Azari Decl., ¶ 14. Postcard Notices were sent to 13,635 Class 13 Members without email addresses.10 Id., ¶ 18. Apple did not have contact information for 4,947 14 Settlement Class Members, or 0.2%. Those persons were able to access information about the
15 Settlement from the settlement website and file an Application for Inclusion. The Claims 16 Administrator received 3,358 such Applications for Inclusion. Id., ¶ 24. Only nine Class Members 17 opted out of the Settlement. Id., ¶ 36. 18 (a) The Sole Objector is a Disbarred California Attorney and Professional Objector Who is Not a Class Member 19 20 Only one individual submitted an objection, Steven F. Helfand. See Dkt. No. 428. As a 21 preliminary matter, Mr. Helfand is well known as a serial “professional objector” and was disbarred
22 by the California State Bar in 2020 for seeking to mislead a judge, misappropriation, and acts 23 involving moral turpitude, among others, in the context of an objection to a class action settlement. 24 In re Equifax Inc. Customer Data Sec. Breach Litig., No. 1:17-MD-2800-TWT, 2020 WL 256132, at 25 *42 (N.D. Ga. Mar. 17, 2020) (citing Notice of Disciplinary Charges, In the Matter of Steven Franklyn
26 10 The Claims Administrator mailed an additional 596,229 Postcard Notices to those Class Members 27 whose email addresses were invalid (after 2 attempts), but for whom a mailing address was provided. 28 No mailing addresses were available for 32,957 of the 629,186 email bounces. Azari Decl., ¶¶ 16, 19. 947352.1 15 Case No. 5:17-cv-00551-LHK-NC
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1 Helfand, No. 17-O-00411 and 17-O-00412 (State Bar Court of California; filed Sept. 24, 2018, 2 available at http://members.calbar.ca.gov/courtDocs/17-O-411.pdf (last visited Dec. 22, 2020)). 3 Moreover, Mr. Helfand is not a member of the Settlement Class. Under Fed. R. Civ. P. 4 23(e)(5), any “class member” may object to a proposed class settlement. “[N]on-class members 5 have no standing to object to the settlement of a class action.” Moore v. Verizon Commc’ns, Inc., 6 No. C 09-1823 SBA, 2013 WL 450365, *4 (N.D. Cal. Feb. 5. 2013). “The party seeking to invoke 7 the Court’s jurisdiction—in this case, the Objectors—has the burden of establishing standing.” In
8 re Hydroxycut Mktg. & Sales Practices Litig., No. 09CV1088 BTM KSC, 2013 WL 5275618, at *2 9 (S.D. Cal. Sept. 17, 2013) (citations omitted). The Administrator has confirmed that Mr. Helfand 10 does not appear on the list of Settlement Class Members provided by Apple, and his “Application 11 for Inclusion in the Class” does not include a serial number of a qualifying device or an IMEI/MEID 12 number. Accordingly, Mr. Helfand has submitted no evidence of his membership in the Class and 13 Epiq has confirmed that he is not a Class Member. Azari Decl., ¶ 37. Accordingly, Mr. Helfand 14 has no standing to object to the Settlement and Plaintiffs’ motion to strike his objection is filed
15 concurrently herewith. 16 Further, Mr. Helfand has established a pattern of objecting to class action settlements despite 17 lacking standing to do so. See, e.g., Legg v. Lab. Corp. of Am., No. 14-61543-CV, 2016 WL 18 3944069, at *3 (S.D. Fla. Feb. 18, 2016) (finding that “objector[] Steven Helfand . . . [is] not [a] 19 member[] of the Settlement Class and therefore lack[s] standing to object to the Settlement”); 20 Hooker v. Sirius XM Radio Inc., No. 4:13-cv-00003-AWA-LRL, Dkt. No. 209, ¶ 20 (E.D. Va. Dec. 21 22, 2016) (“The Court finds that Mr. Helfand . . . [is] not [a] member[] of the Class.”); Brown v.
22 Hain Celestial Grp., Inc., 3:11-CV-03082-LB, 2016 WL 631880, at *10 (N.D. Cal. Feb. 17, 2016) 23 (noting that Mr. Helfand is a “professional objector” and that he has “provided no proof that he is a 24 class member[.]”). 25 Further, Mr. Helfand’s litigious history strongly suggests that he had no interest in 26 participating in the Settlement. Rather, his goal is to delay approval of the settlement for personal 27 monetary gain. As another federal court has determined, Mr. Helfand “is a well-known serial objector 28 who has represented himself and third parties in objecting to multiple class action settlements.” Gay
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1 v. Tom’s of Maine, Inc., No. 0:14-cv-60604-KMM, Dkt. No. 43, at 4 n.1 (S.D. Fla. Mar. 11, 2016) 2 (citing Chavez v. Netflix, Inc., 75 Cal. Rptr. 3d 413, 423-24 (Ct. App. 2008)); Wal-Mart Stores, Inc. 3 v. Buholzer, 156 F. App’x 346, 347 (2d Cir. 2005); Lane v. Facebook, Inc., 709 F.3d 791, 792 (9th 4 Cir. 2013); In re NVIDIA GPU Litig., 539 F. App’x 822, 823 (9th Cir. 2013); In re WorldCom, Inc. 5 Sec. Litig., No. 02 CIV 3288(DLC), 2004 WL 2591402, at *9 (S.D.N.Y. Nov. 12, 2004); Hillis v. 6 Equifax Consumer Servs., Inc., No. 104-CV-3400-TCB, 2007 WL 1953464, at *2 (N.D. Ga. June 12, 7 2007); Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th Cir. 2012)); see also Spann v. J.C. Penney
8 Corp., No. SA CV 12-0215 FMO (KESx), 2016 U.S. Dist. LEXIS 137184, at *32 n.11 (C.D. Cal. 9 Sep. 30, 2016) (recognizing that Steven Helfand is a “known serial objector”); Rodman v. Safeway 10 Inc., No. 11-CV-03003-JST, 2018 WL 4030558, at *7 n. 6 (N.D. Cal. Aug. 23, 2018) (“Helfand 11 frequently files objections in class action cases.”); Chambers v. Whirlpool Corp., 214 F. Supp. 3d 12 877, 890 (C.D. Cal. 2016) (describing Helfand as a “serial objector”). 13 Mr. Helfand’s Objection is without merit, improper, and should be overruled. Mr. Helfand’s 14 one-page objection states a number of boilerplate statements and inaccuracies in purported support
15 of his objection, each of which are addressed below: 16 1. “I am a class member … . I owned the phones in question.” “Under Fed. R. 17 Civ. P. 23(e)(5), any class member may object to a proposed class settlement. Thus, ‘non-class 18 members have no standing to object.’ The party seeking to invoke the Court’s jurisdiction—in this 19 case, the Objectors—has the burden of establishing standing.” In re Hydroxycut, 2013 WL 5275618, 20 at *2 (citing Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989), and Steel Co. v. Citizens for a 21 Better Environment, 523 U.S. 83, 103-04, (1998)). Here, Mr. Helfand has failed to establish standing.
22 Even crediting Mr. Helfand’s assertion that he “owned the phones in question,” being a Class Member 23 involves more than mere ownership of an iPhone 4 or 4S device; it also requires that (i) the individual 24 was in the State of California on April 16, 2014, and (ii) that the device was running iOS 6 (or earlier) 25 on that date. See Section III.B supra. Mr. Helfand, a Florida resident, has proffered no 26 representations—let alone evidence—regarding (i) his whereabouts on April 16, 2014, or (ii) the 27 operating system that was installed on any purportedly qualifying device(s) on that date. In addition, 28 Mr. Helfand’s Application for Inclusion is defective, as he failed to provide any qualifying
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1 information for his device. Instead, Mr. Helfand submitted an Application for Inclusion with a series 2 of zeros in lieu of serial number for an iPhone 4 or 4S.11 Azari Decl., ¶ 37. Mr. Helfand is not 3 included among the list of over 3.2 million Class Members developed from Apple’s exhaustive 4 records. Therefore, based on Mr. Helfand’s failure to establish class membership, he does not have 5 standing to object to the Settlement.12 See In re Apple Sec. Litig., No. 5:06-CV-05208-JF (HRL), 6 2011 WL 1877988, at *2 n.4 (N.D. Cal. May 17, 2011) (finding objector “lacks standing to object 7 [because] he did not provide evidence to show that he is a class member.”). Assuming arguendo that
8 standing is established (it is not), we address the balance of the objections below. 9 2. “The settlement is an opt-in, one. This is not allowed.” This assertion is 10 simply not true. As fully explained and briefed at the preliminary approval stage and in this Motion, 11 this is an “opt-out” settlement. The Notice and Settlement payments to approximately 3.2 million 12 Class Members are fully automated and the Class Members do not have to do anything to receive 13 payment. See Section II supra. Nine of these approximately 3.2 million Class Members elected to 14 opt out.13 For the 0.2% of Class Members whose information was not provided by Apple, a clear and
15 efficient process exists for them to file an Application for Inclusion, which 3,358 individuals have
16 11 Mr. Helfand asks “Who on earth is still using an Iphone [sic] 4 or Iphone [sic] 4S?” For avoidance 17 of doubt, it is not a requirement of the Settlement that a Class Member still own or use the phone(s) 18 in question. Nor is it a requirement that they have “the serial number, the receipt or the packaging[.]” Indeed, as discussed, the Parties have leveraged data obtained from Apple concerning the 19 composition of the Class to craft the Settlement in a manner that provides substantial compensation to Class Members with the least amount of required action on their part. For the vast majority of 20 Class Members (i.e., ~ 99.8%), the Settlement requires no action at all. 12 21 As discussed above, Mr. Helfand has made numerous objections where he failed to establish standing. 22 13 If Mr. Helfand were a Class Member, he too could have opted out. “For those few objectors unhappy with the Settlement, their remedy was simple: opt out. The ‘court will not dismantle this 23 settlement for the sake of one class member’s unique demands, particularly when the class member 24 ... had the right (and the means) to opt out and pursue its individual claims without disturbing the settlement for the rest of the class.’ AIG, Inc. v. ACE INA Holdings, Inc., Nos. 07-2898, 09-2026, 25 2012 WL 651727, at *11-12 (N.D. Ill. Feb. 28, 2012); Cobell v. Salazar, 679 F.3d 909, 920 (D.C. Cir. 2012) (‘Indeed, the existence of the opt-out alternative effectively negates any inference that 26 those who did not exercise that option considered the settlement unfair.’); cf. Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. 1982) (‘[T]he named plaintiffs should not be permitted to hold the 27 absentee class hostage by refusing to assent to an otherwise fair and adequate settlement in order to 28 secure their individual demands.’).” In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, 910 F. Supp. 2d 891, 938-939 (E.D. La. 2010). 947352.1 18 Case No. 5:17-cv-00551-LHK-NC
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1 done. Id. If this is the process Mr. Helfand is characterizing as an “opt-in” settlement, his objection 2 must be overruled because it applies to a fraction of one percent of the Class (less than 5,000 3 individuals out of over 3.2 million). 4 3. “The confidentiality provision is designed to stymie claims and defeat class 5 member access to the settlement. The notice was inadequate.” Nothing about this Settlement is 6 confidential except Class Member data, which is personal, sensitive and completely irrelevant to the 7 Settlement or its merits. Mr. Helfand’s argument on this point is nonsensical and should be
8 disregarded. The Parties have presented this Court with the Settlement and all details related thereto, 9 including a robust Notice Plan, and the Court preliminarily approved the Settlement after an extensive 10 hearing and supplemental briefing. See Sections II and III supra. The Notice included a detailed 11 explanation of the Settlement and Class Members could easily access the Settlement itself on the 12 Settlement Website. Indeed, out of over 3.2 million known Class Members who received direct notice 13 of the Settlement, Mr. Helfand—who did not receive direct notice—was the only individual to object. 14 See Azari Decl., ¶ 37. To the extent that Mr. Helfand is referring to Section 1 of the Settlement
15 Agreement regarding publicity, that provision does not prohibit disclosure of the Settlement, but 16 instead provides that “[t]he Parties may respond to inquiries from the press and tell the public in 17 general only that this Action ‘has been resolved between the parties’ and refer to the Settlement 18 Website” where the Settlement Agreement is posted. Such provisions do not discourage participation 19 in class actions. See Jennings v. Open Door Mktg., LLC, No. 15-CV-04080-KAW, 2018 WL 20 4773057, at *8 (N.D. Cal. Oct. 3, 2018) (granting final approval of settlement agreement “that 21 restricts the parties from publicizing the agreement, such as by issuing press releases or press
22 statements.”). It is unlikely that additional publicity would have resulted in any additional Class 23 Members being included, as the parties lacked contact information for less than 0.2%. Indeed, the 24 Notice Plan was clearly effective because Mr. Helfand did not receive direct Notice, yet nevertheless 25 was informed of the Settlement. Further, Section 1 of the Settlement Agreement did not prohibit 26 disclosure of the Settlement. Because the Notice Plan was designed to directly reach 99.8% of Class 27 Members and provided an effective process for the remaining 0.2%, as well as easy access to the 28 Settlement Agreement, Mr. Helfand’s unsupported allegations should be disregarded.
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1 4. “The attorneys fees are too much; for too little work.” This matter was 2 litigated for nearly four years up to the eve of trial, through multiple dispositive motions, a dozen 3 discovery motions, numerous depositions, and myriad other litigation activity. See Section II.B 4 supra. Aside from taking this case to trial, no litigation stone was left unturned. Id. Class Counsel 5 has devoted more than 9,650 hours to this litigation and expended over $1 million in out-of-pocket 6 costs on a pure contingency basis. See Dkt. No. 429. Class Counsel has requested that fees be 7 calculated using the “percentage-of-the-fund” method. See id. The percentage-of-the-fund method
8 is the most appropriate way to calculate a reasonable fee where, as here, contingency fee litigation 9 has produced a cash common fund. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); 10 Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (common fund 11 fee is generally “calculated as a percentage of the recovery”). Although Class Counsel has requested 12 a fee of 30 percent (which reflects an upward adjustment from the 25 percent benchmark), the fee 13 amount requested represents an effective negative multiplier of 0.67 on Class Counsel’s cumulative 14 lodestar. See Dkt. No. 429. Indeed, courts in the Ninth Circuit—including this Court—often award
15 fees in excess of the 25 percent benchmark. See, e.g., Hopkins v. Stryker Sales Corp., No. 11-CV- 16 02786-LHK, 2013 WL 496358, at *1 (N.D. Cal. Feb. 6, 2013) (30% fee); Schneider v. Chipotle 17 Mexican Grill, Inc., No. 16-CV-02200-HSG, 2020 WL 6484833, at *12 (N.D. Cal. Nov. 4, 2020) 18 (30% fee); In re Nexus 6P Prod. Liab. Litig., No. 17-CV-02185-BLF, 2019 WL 6622842, at *13 19 (N.D. Cal. Nov. 12, 2019) (30% fee); Castaneda v. Burger King Corp., No. C 08-04262 WHA, 2010 20 WL 2735091, at *1 (N.D. Cal. July 12, 2010) (33% fee). As more fully set forth in Plaintiffs’ fee 21 motion,14 case law strongly supports a significant upward adjustment from the benchmark, and the
22 30% fee requested here. See id. Mr. Helfand’s 10-word objection to Class Counsel’s fee request 23 (which had not even been filed at the time Mr. Helfand filed his objection) must be rejected.15
24 14 25 Apple filed an opposition to the fee motion for reasons unrelated to those set out by Mr. Helfand. 15 Mr. Helfand also objects to the fee award on the grounds that it “is based on the wrong law.” 26 Because Class Counsel’s fee motion was not filed at the time Mr. Helfand filed his objection, his argument has no basis in law or fact. Plaintiffs are in fact seeking attorneys’ fees based on Ninth 27 Circuit authority. See Dkt. No. 429 (citing Hendricks v. Starkist Co., No. 13-00729-HSG, 2016 WL 28 5462423, at *10 (N.D. Cal. Sept. 29, 2016), aff’d, 2018 WL 5115482 (9th Cir. Oct. 19, 2018); Rodriguez, 563 F.3d at 967). 947352.1 20 Case No. 5:17-cv-00551-LHK-NC
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1 5. Cy pres recipient. Mr. Helfand objected to the Rose Foundation as the cy pres 2 recipient. Following the preliminary approval hearing, Class Counsel submitted supplemental 3 briefing and the Court approved the Consumer Federation of America as the potential cy pres 4 recipient. Dkt. Nos. 424, 426. Thus, this part of the Objection is moot. 5 Based on the foregoing, Mr. Helfand’s lone objection among a Settlement Class exceeding 6 3.2 million members should be overruled and stricken (see concurrently filed Motion to Strike) 7 because: (i) Mr. Helfand is not a Class Member, and (ii) his objection has no merit and appears to be
8 another one of his numerous (possibly over 50 based on Mr. Helfand’s own sworn deposition 9 testimony)16 objections to class action lawsuits across the country. 10 The Class’s overwhelming support of the Settlement in light of the robust, Court-approved 11 Notice Plan supports final approval. See In re Anthem, 327 F.R.D. at 321 (“[T]he positive response 12 from the Class favors approval of the Settlement.”); In re Linkedin, 309 F.R.D. at 589 (“A low number 13 of opt-outs and objections in comparison to class size is typically a factor that supports settlement 14 approval.”); Nicholas der-Hacopian v. Darktrace, Inc., No. 18-CV-06726-HSG, 2020 WL 7260054,
15 at *6 (N.D. Cal. Dec. 10, 2020) (‘“[T]he absence of a large number of objections to a proposed class 16 action settlement raises a strong presumption that the terms of a proposed class settlement action are 17 favorable to the class members.”’). 18 7. The Settlement is Not the Product of Collusion 19 As the Settlement was negotiated and agreed to after Plaintiffs’ motion for class certification 20 was granted (see Dkt. No. 269), this factor need not be considered. See In re Bluetooth, 654 F.3d at 21 946. Indeed, the Settlement was the result of extensive arm’s-length negotiations—including four
22 in-person mediation sessions with an experienced mediator, as well as a Magistrate Judge, and 23 additional negotiations—and was only reached after hard-fought litigation for almost four years. See 24 G. F. v. Contra Costa Cty., No. 13-CV-03667-MEJ, 2015 WL 4606078, at *13 (N.D. Cal. July 30, 25 2015) (“[T]he assistance of an experienced mediator in the settlement process confirms that the 26
27 16 Mr. Helfand has filed “[p]robably, like, 50” objections to class action settlements, “[i]t might have 28 been more.” See Collins v. Quincy Bioscience, LLC, No. 19-22864-Civ (MGC) (S.D. Fla.), Dkt. No. 176, p. 17, Ex. A at p. 41. 947352.1 21 Case No. 5:17-cv-00551-LHK-NC
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1 settlement is non-collusive.”) (internal quotation marks omitted). As more fully set forth in Sections 2 II and III supra, this factor supports final approval of the Settlement. 3 Based on the foregoing analysis of the Churchill factors, the Settlement merits final approval. 4 B. The Settlement Class Satisfies Rule 23 and Should be Finally Certified 5 In its Preliminary Approval Order, the Court found that the Settlement Class met the 6 requirements of Rule 23 and preliminarily certified it based on its prior Order regarding class 7 certification (Dkt. No. 269). See Preliminary Approval Order, pp. 4-5. Plaintiffs now request that
8 the Court affirm its preliminary findings and render a final decision as to the appropriateness of class 9 certification. 10 The prerequisites for class certification under Rule 23(a) are numerosity, commonality, 11 typicality, and adequacy – each of which is satisfied here. Fed. R. Civ. P. 23(a). The Settlement 12 Class set forth above includes over 3.2 million members, and thus readily satisfies the numerosity 13 requirement. See Fed. R. Civ. P. 23(a)(1). The Court has found at the class certification stage that 14 “Plaintiffs have satisfied Rule 23(a)(2)’s commonality requirement.” Dkt. No. 269 at 12. The issues
15 Plaintiffs identified at class certification as “depend[ing] upon a common contention,” of such a 16 nature that “determination of its truth or falsity will resolve an issue that is central to the validity of 17 each [claim] in one stroke” apply equally to the Settlement Class. Wal-Mart Stores, Inc. v. Dukes, 18 564 U.S. 338, 350 (2011). The Court also held at the class certification stage that the final 19 requirements of Rule 23(a) – typicality and adequacy – were likewise satisfied with the Court’s 20 definition of the Class. The Class Representatives also have no conflicts with the class; have 21 participated actively in the case; and are represented by experienced attorneys who were previously
22 appointed by the Court to represent class members’ interests. As the Court found in its order granting 23 preliminary approval, class representatives Grace and Potter may be “appointed as Settlement Class 24 Representatives to implement the settlement in accordance with the Settlement Agreement. See 25 Preliminary Approval Order, pp. 4-5; see also Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) 26 (adequacy satisfied if plaintiffs and their counsel lack conflicts of interest and are willing to prosecute 27 the action vigorously on behalf of the class). 28 “In addition to meeting the conditions imposed by Rule 23(a), the parties seeking class
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1 certification must also show that the action is maintainable under Fed. R. Civ. P. 23(b)(1), (2) or (3).” 2 Hanlon, 150 F.3d at 1022. Here, the Court likewise held at the class certification stage that a 3 California class was maintainable under Rule 23(b)(3) in this case, finding that common questions 4 predominated over any questions affecting only individual members and class resolution was superior 5 to other available methods for a fair resolution of the controversy. Dkt. No. 269 at 16-43. In its Order 6 granting preliminary approval, the Court found that “the proposed Settlement Class definition is 7 consistent with the Class previously certified and therefore meets the requirements of Federal Rule
8 of Civil Procedure 23 for the reasons set forth in the Order Granting in Part and Denying in Part 9 Motion for Class Certification.” Preliminary Approval Order at 5 (internal citations omitted). There 10 is no reason to depart from that finding here. 11 Under Rule 23(e)(2), a court considering whether to grant approval of a class settlement must 12 also consider whether: (i) the class representatives and class counsel have adequately represented the 13 class; (ii) the proposal was negotiated at arm’s-length; (iii) the relief provided for the class is 14 adequate; and (iv) the proposal treats class members equitably relative to each other. Fed. R. Civ. P.
15 23(e)(2). These factors overlap substantially with the Churchill factors discussed above, and likewise 16 support the granting of this Motion. See Sections II and III supra. 17 1. The Class Representatives and Class Counsel have Vigorously Represented the Class 18 19 Class Representatives Christina Grace and Ken Potter have vigorously represented the Class 20 since the outset of the litigation. Among other things, over the more than three-year span of this 21 Action, the Class Representatives have: (i) responded to and produced documents, including personal
22 text messages and emails, in response to Apple’s document requests; (ii) responded to interrogatories; 23 (iii) responded to RFAs; (iv) prepared for and endured full-day depositions; (v) provided, pursuant to 24 the Court’s Order appointing a neutral third party, certain iPhone devices for forensic imaging—and 25 subsequent searching—for a period of several months, pursuant to which 370,000 files and all data 26 and information regarding FaceTime, Wi-Fi use, Wi-Fi connection history, and Wi-Fi networks was 27 harvested from their devices; (vi) made themselves available by telephone for consultation during 28 each of the four mediation and settlement conferences; and (vii) otherwise devoted many hours
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1 consulting with Class Counsel regarding fact development and strategy. See Declaration of Jill M. 2 Manning in support of Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses and 3 Service Awards (Dkt. No. 429), ¶¶ 25-35. 4 Jill M. Manning, Daniel L. Warshaw, David F.E. Tejtel, and John Austin Curry were 5 appointed as Interim Class Counsel on September 18, 2018 (Dkt. No. 269) and again in the 6 Preliminary Approval Order and have provided excellent representation to the Class for four years. 7 As set forth in more detail in the Warshaw Declaration at ¶ 18, in litigating this Action, Counsel, inter
8 alia:
9 • Identified and investigated Apple’s conduct in causing the alleged FaceTime Break; • Met with clients and secured retainer agreements; 10 • Drafted a complaint and amended complaint; 11 • Overcame a motion to dismiss; • Undertook extensive and hotly contested discovery; 12 • Obtained the necessary sales data from third parties by subpoena after comprehensive negotiations in order to prepare a damages model; 13 • Retained experts to opine on merits and damages issues, and prepared multiple expert 14 reports; • Deposed Apple’s experts; 15 • Obtained certification of a California Class; • Successfully opposed a potentially dispositive motion for summary judgment; 16 • Participated in four in-person mediation sessions and extensive follow up 17 discussions; and • Prepared for trial. 18 19 2. The Class Representatives’ Interests are Aligned with and are Not Antagonistic to the Other Class Members’ Interests 20 21 Each Class Representative committed substantial time to this Action and each reviewed and
22 approved of the proposed Settlement, finding it to be fair, reasonable, and adequate. The Class 23 Representatives have fairly and adequately protected the interests of the Class. Id., ¶ 21. This 24 consideration further supports approval of the Settlement. 25 3. The Settlement was Negotiated at Arm’s-Length
26 As detailed above in Section III.A, the Settlement resulted from extensive, arm’s-length 27 negotiations with two experienced and well-respected jurists and was reached following a mediator’s 28 proposal from a Magistrate Judge. Warshaw Decl., ¶¶ 3-9. Accordingly, this factor is met.
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1 4. The Relief Provided for the Class is Adequate
2 Rule 23(e)(2)(C) directs the Court to consider whether the relief provided for the class is 3 adequate, taking into account: 4 (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, 5 including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of 6 payment; and 7 (iv) any agreement required to be identified under Rule 23(e)(3).
8 The costs, risks, and delay of trial and appeal are discussed supra at Section IV.A.1. The effectiveness 9 of the proposed notice and claims process is discussed supra at Section III.E. Apart from the 10 Settlement Agreement and the Confidential Attachment thereto identified in paragraph 6.6, there are 11 no agreements requiring disclosure under Rule 23(e)(3). 12 Based on the foregoing, the Court should finally approve the Settlement Class. 13 V. CONCLUSION 14 For the foregoing reasons, Plaintiffs respectfully request that the Court approve the Parties’
15 Settlement and enter judgment consistent with its terms. 16 DATED: January 4, 2021 Respectfully submitted, 17 18 By: /s/ Daniel L. Warshaw DANIEL L. WARSHAW 19 PEARSON, SIMON & WARSHAW, LLP 20 Clifford H. Pearson (Bar No. 108523) 21 Daniel L. Warshaw (Bar No. 185365) Thomas J. Nolan (Bar No. 66992) 22 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 23 Telephone: (818) 788-8300 [email protected] 24 [email protected] 25 [email protected]
26 27 28
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1 STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP 2 Allan Steyer (Bar No. 100318) Jill M. Manning (Bar No. 178849) 3 D. Scott Macrae (Bar No. 104663) 4 235 Pine Street, 15th Floor San Francisco, CA 94104 5 Telephone: (415) 424-3400 [email protected] 6 [email protected] 7 [email protected]
8 FRIEDMAN OSTER & TEJTEL PLLC David F.E. Tejtel (admitted pro hac vice) 9 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 10 Telephone: (646) 661-5881 [email protected] 11
12 CALDWELL CASSADY & CURRY Bradley W. Caldwell (admitted pro hac vice) 13 Jason D. Cassady (admitted pro hac vice) John Austin Curry (admitted pro hac vice) 14 2121 N. Pearl Street, Suite 1200 Dallas, TX 75201 15 Telephone: (214) 888-4848 16 [email protected] [email protected] 17 [email protected]
18 Counsel for Plaintiffs and the Class
19 20 21
22 23 24 25 26 27 28
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1 ALLAN STEYER (Bar No. 100318) JILL M. MANNING (Bar No. 178849) 2 D. SCOTT MACRAE (Bar No. 104663) STEYER LOWENTHAL BOODROOKAS 3 ALVAREZ & SMITH LLP 4 235 Pine Street, 15th Floor San Francisco, CA 94104 5 Telephone: (415) 424-3400 Facsimile: (415) 421-2234 6 [email protected] 7 [email protected] [email protected] 8 CLIFFORD H. PEARSON (Bar. No. 108523) 9 DANIEL L. WARSHAW (Bar No. 185365) THOMAS J. NOLAN (Bar No. 66992) 10 PEARSON, SIMON & WARSHAW, LLP 11 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 12 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 13 [email protected] [email protected] 14 [email protected] 15 Counsel for Plaintiffs and the Class 16
17
18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 20 CHRISTINA GRACE and KEN POTTER CASE NO. 5:17-cv-00551-LHK-NC 21 Individually and on Behalf of All Others Similarly Situated, CLASS ACTION 22 Plaintiffs, DECLARATION OF DANIEL L. 23 WARSHAW IN SUPPORT OF MOTION vs. FOR FINAL APPROVAL OF CLASS 24 ACTION SETTLEMENT 25 APPLE INC.,
26 Defendant.
27
28 946992.2 Case No. 5:17-cv-00551-LHK-NC DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS
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1 Daniel L. Warshaw declares: 2 1. I am an attorney duly admitted to practice before this Court. I am a Partner at 3 Pearson, Simon & Warshaw, LLP and appointed co-lead counsel for Plaintiffs and the Class. 4 2. I am one of the attorneys principally responsible for the handling of this matter (the 5 “Action”) and was appointed by the Court as Class Counsel. I am personally familiar with the facts 6 set forth in this declaration. If called as a witness I could and would competently testify to the 7 matters stated herein.
8 3. On November 9, 2018, the parties attended an all-day mediation session before the 9 Honorable William J. Cahill (Ret.), at JAMS in San Francisco. The parties were unable to reach a 10 settlement. 11 4. On October 22, 2019, the parties returned to JAMS for a second mediation before 12 Judge Cahill but were again unable to reach agreement on all terms of a settlement. 13 5. After the second mediation, Judge Cahill engaged in extensive settlement discussions 14 with each party but ultimately a settlement was not reached.
15 6. On December 5, 2019, Magistrate Judge Cousins held an all-day settlement 16 conference, but the parties were unable to resolve the Action. 17 7. After extensive follow-up discussions, the parties attended a second in-person 18 settlement conference with Magistrate Judge Cousins on January 16, 2020 that also failed to result 19 in a settlement. 20 8. Magistrate Judge Cousins continued conferring with the parties and, on January 31, 21 2020, made a mediator’s proposal.
22 9. On February 6, 2020, Magistrate Judge Cousins informed the parties that both parties 23 had accepted the mediator’s proposal. 24 10. Plaintiffs served 65 Requests for Production, 43 Interrogatories, and 42 Requests for 25 Admission on Apple. 26 11. The parties engaged in extensive negotiations over search terms and ESI production, 27 resulting in 6 motions to compel, and Apple produced 1,025,596 pages of documents.
28 12. Plaintiffs took seven depositions of Apple, including two Rule 30(b)(6) depositions, 946992.2 2 Case No. 5:17-cv-00551-LHK-NC DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS
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1 and four depositions of non-parties. 2 13. There were seven depositions of the parties’ five experts. Plaintiffs’ experts, Dr. 3 Hastings and Dr. Jones, were deposed twice and once, respectively. Apple’s experts, Ms. Trexler 4 and Dr. Malhotra were each deposed once, and Dr. Rubin was deposed twice. 5 14. Apple deposed both Class Representatives. 6 15. Apple requested and the Court ordered (over Plaintiffs’ objection), forensic imaging 7 of the Class Representatives’ three iPhone 4 devices. The Class Representatives surrendered their
8 devices for several months into the custody of a neutral third party, who conducted forensic imaging 9 consistent with the Court’s Order. The neutral third party produced extensive data from the 10 Plaintiffs’ devices, including all data and information regarding FaceTime, Wi-Fi use, Wi-Fi 11 connection history, and Wi-Fi networks. This production totaled over 370,000 files from within the 12 Settings, Diagnostics, and Usages tabs, or otherwise related to the phone settings in general. Dkt. 13 No. 154. 14 16. Class Counsel secured satisfactory terms of settlement only after a thorough
15 investigation of the factual and legal issues raised in this Action. 16 17. Drawing upon their considerable experience and expertise, Class Counsel negotiated 17 and evaluated the Settlement and ultimately determined that the Settlement provided significant and 18 substantive relief to the Class in the face of significant litigation risks. 19 18. During the pendency of this litigation, Class Counsel, among other things:
20 • Identified and investigated Apple’s conduct in causing the alleged FaceTime Break, 21 which included significant research on the technical aspects on how FaceTime
22 worked and was broken, Apple’s representations and conduct related thereto, and the 23 merit of potential legal claims related to Apple’s conduct;
24 • Drafted a complaint and subsequently, in response to Apple’s motion to dismiss, an 25 amended complaint;
26 • Overcame Apple’s second motion to dismiss, which required extensive legal 27 research and briefing on complex issues such as Article III standing and the legal 28 946992.2 3 Case No. 5:17-cv-00551-LHK-NC DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS
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1 sufficiency of Plaintiffs’ trespass to chattels and Unfair Competition Law causes of 2 action;
3 • Undertook extensive, hotly contested discovery, which included seeking and 4 defending numerous motions to compel, managing the Court-ordered forensic 5 imaging of Plaintiffs’ devices by a third-party neutral; preparing for and taking the 6 depositions of key fact and 30(b)(6) witnesses; and defending Plaintiffs’ depositions;
7 • Obtained necessary sales data from third parties by subpoena after comprehensive 8 negotiations in order to prepare a damages model;
9 • Retained experts to opine on merits and damages issues, and prepared multiple expert 10 reports;
11 • Deposed Apple’s experts; 12 • Obtained certification of a California Class, which required in-depth legal research 13 and briefing on predominance, choice of law, damages, and other issues related to 14 the Class;
15 • Successfully opposed a potentially dispositive motion for summary judgment; 16 • Participated in four in-person mediation sessions and numerous follow-up 17 discussions, including extensive and prolonged negotiations regarding the terms of 18 the Settlement Agreement, notice to the class, and claims administration; and
19 • Prepared for trial, which included filing and responding to motions in limine, 20 drafting, negotiating, and filing proposed jury instructions, a verdict form, and voir 21 dire, and planning, preparing, and filing exhibit lists and proposed findings of fact
22 and law. 23 19. The Settlement resulted from extensive, arm’s-length negotiations with two 24 experienced and well-respected jurists and was reached following a mediator’s proposal from a 25 Magistrate Judge. 26 20. Class Counsel’s estimated lodestar through October 31, 2020 is $8,068,130.80. 27 Class Counsel requested fee is 30% of the Settlement fund resulting in a “negative multiplier” of 28 0.67. See Dkt. No. 429. 946992.2 4 Case No. 5:17-cv-00551-LHK-NC DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS
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1 21. The two Class Representatives have actively participated in this litigation for more 2 than three years, including (i) reviewing the pleadings and responding to discovery requests, 3 (ii) surrendering their iPhone devices to a third-party neutral for forensic imaging for a period of 4 several months, (iii) preparing for and being deposed, (iv) conferring with Class Counsel during 5 mediation and settlement conferences, and (v) regularly consulting with Class Counsel regarding 6 the progress of the Action. 7 22. Based upon the representations made to me by the Plaintiffs, Co-Class Counsel, and
8 Apple’s counsel, the parties and their counsel do not have any affiliation with the proposed cy pres 9 recipient, the Consumer Federation of America, which the parties have agreed to use only in the 10 event that cy pres is selected pursuant to the Settlement Agreement as a mechanism for disposing 11 of residual funds. 12 23. Epiq Systems, Inc., the proposed settlement administrator, estimates that it will cost 13 approximately $1,406,119 million to administer the Settlement. 14 24. Based upon my experience litigating class actions for over twenty years, in my view,
15 the proposed Settlement is fair, reasonable and adequate. 16 I declare under penalty of perjury under the law of the United State of America that the 17 foregoing is true and correct. 18 Executed on January 4, 2021, at Sherman Oaks, California. 19 /s/ Daniel L. Warshaw 20 DANIEL L. WARSHAW
21
22 23 24 25 26 27 28 946992.2 5 Case No. 5:17-cv-00551-LHK-NC DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS
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1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3 SAN JOSE DIVISION
4 CHRISTINA GRACE and KEN POTTER, CASE NO. 5:17-CV-00551-LHK-NC Individually and on Behalf of All Others 5 Similarly Situated, CLASS ACTION
6 Plaintiffs, DECLARATION OF CAMERON R. AZARI, 7 vs. ESQ. REGARDING IMPLEMENTATION AND ADEQUACY OF SETTLEMENT 8 APPLE INC., NOTICE PLAN
9 Defendant. Judge: Hon. Lucy H. Koh
10 11 I, Cameron R. Azari, Esq., hereby declare and state as follows: 12 1. My name is Cameron R. Azari, Esq. I have personal knowledge of the matters set 13 forth herein or have knowledge based upon the actions of those individuals whom I supervise 14 in the ordinary course of my company’s business, and I believe them to be true and correct. 15 2. I am a nationally recognized expert in the field of legal notice and I have served as 16 an expert in dozens of federal and state cases involving class action notice plans. 17 3. I am the Director of Legal Notice for Hilsoft Notifications (“Hilsoft”), a firm that 18 specializes in designing, developing, analyzing and implementing large-scale, un-biased, legal 19 notification plans for class action settlements. Hilsoft is a business unit of Epiq Class Action 20 & Claims Solutions, Inc. (“Epiq”). For purposes of this declaration, Hilsoft and Epiq are 21 referred to collectively as “Epiq”. 22 4. Epiq has been involved with some of the most complex and significant notice 23 programs for class action settlements in recent history, examples of which are discussed below. 24 With experience in more than 450 class action cases, including more than 40 multi-district 25 litigations, Epiq has prepared notices that have appeared in 53 languages and have been 26 distributed in almost every country, territory, and dependency in the world. Courts have 27 recognized and approved numerous notice plans developed by Epiq in connection with class 28 action settlements, and those decisions have withstood appellate and collateral review.
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1 EXPERIENCE 2 5. I have served as a notice expert and have been recognized and appointed by courts 3 to design and provide notice in many large and significant class action cases, including: 4 a) In re Takata Airbag Products Liability Litigation, 1:15-md-02599-FAM 5 (S.D. Fla), involved a $1.49 billion class action settlement with BMW, Mazda, Subaru, Toyota, 6 Honda, Nissan, and Ford regarding Takata airbags. The notice plans in those settlements 7 included individual mailed notice to more than 59.6 million potential class members and 8 extensive nationwide media via consumer publications, U.S. Territory newspapers, radio spots, 9 internet banners, mobile banners, and behaviorally targeted digital media. Combined, the notice 10 plans reached more than 95% of the adults aged 18+ in the United States who owned or leased 11 a vehicle equipped with a Takata airbag, 4.0 times each. 12 b) Hale v. State Farm Mutual Automobile Insurance Company, et al., 12-cv- 13 00660 (S.D. Ill.), involved a $250 million settlement with approximately 4.7 million class 14 members. The extensive notice program provided individual notice via postcard or email to 15 approximately 1.43 million class members and implemented a robust publication program 16 which, combined with individual notice, reached approximately 78.8% of all the adults aged 17 35+ in the United States approximately 2.4 times each. 18 c) In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product 19 Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.), involved a comprehensive 20 notice program that provided individual notice to more than 946,000 vehicle owner class 21 members via first-class mail and to more than 855,000 vehicle owner class members via email. 22 A targeted internet campaign further enhanced the notice effort. 23 d) In re: Payment Card Interchange Fee and Merchant Discount Antitrust 24 Litigation, MDL No. 1720 (E.D.N.Y.), involved a $6.05 billion settlement with Visa and 25 MasterCard in 2012 that had an intensive notice program. The intensive notice program 26 included over 19.8 million direct mail notices to class members together with insertions in over 27 1,500 newspapers, consumer magazines, national business publications, trade and specialty 28 publications, and language and ethnic-targeted publications. Epiq also implemented an
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1 extensive online notice campaign with banner notices, which generated more than 770 million 2 adult impressions, a settlement website in eight languages, and acquisition of sponsored search 3 listings to facilitate class members locating the website. For the subsequent superseding $5.54 4 billion settlement with Visa and MasterCard in 2019, Epiq implemented an extensive notice 5 program, which included over 16.3 million direct mail notices to class members together with 6 over 354 print publication units and banner notices, which generated more than 689 million 7 adult impressions. 8 e) In Re: Premera Blue Cross Customer Data Security Breach Litigation, 9 3:15-md-2633 (D. Ore.), involved an extensive individual class action notice program, which 10 included 8.6 million double-postcard notices and 1.4 million email notices. The notices 11 informed class members of a $32 million settlement for a “security incident” regarding class 12 members’ personal information stored in Premera’s computer network, which was 13 compromised. The individual notice efforts reached 93.3% of the class. A settlement website, 14 an informational release, and a geo-targeted publication notice further enhanced the notice 15 efforts to class members. 16 f) In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, 17 on April 20, 2010, MDL No. 2179 (E.D. La.), involved a dual landmark class action settlement 18 notice program to distinct “Economic and Property Damages” and “Medical Benefits” classes 19 for BP’s $7.8 billion settlement of claims related to the Deepwater Horizon oil spill. Notice 20 efforts included more than 7,900 television spots, 5,200 radio spots, and 5,400 print insertions 21 and reached over 95% of Gulf Coast residents. 22 g) In re: Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.), 23 involved multiple bank class action settlements between 2010-2020. The notice programs 24 involved direct mail and email to millions of class members, as well as publication in relevant 25 local newspapers. Representative banks of the more than 20 banks involved in the class action 26 settlements included Fifth Third Bank, National City Bank, Bank of Oklahoma, Webster Bank, 27 Harris Bank, M & I Bank, PNC Bank, Compass Bank, Commerce Bank, Citizens Bank, Great 28
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1 Western Bank, TD Bank, BancorpSouth, Comerica Bank, Susquehanna Bank, Associated Bank, 2 Capital One, M&T Bank, Iberiabank, and Synovuss. 3 6. Courts have recognized my testimony and the testimony of others at Epiq involved 4 in class action notice programs regarding the method of notification that is appropriate for a 5 given case, and I have provided testimony on numerous occasions on whether a certain method 6 of notice represents the best notice practicable under the circumstances. For example: 7 a) In In re Payment Card Interchange Fee and Merchant Discount Antitrust 8 Litigation, MDL No. 1720 (E.D. NY.), based upon my testimony, Judge Margo K. Brodie ruled 9 on December 13, 2019: 10 The notice and exclusion procedures provided to the Rule 23(b)(3) Settlement Class, including but not limited to the methods of identifying 11 and notifying members of the Rule 23(b)(3) Settlement Class, were fair, adequate, and sufficient, constituted the best practicable notice under the 12 circumstances, and were reasonably calculated to apprise members of the Rule 23(b)(3) Settlement Class of the Action, the terms of the 13 Superseding Settlement Agreement, and their objection rights, and to apprise members of the Rule 23(b)(3) Settlement Class of their exclusion 14 rights, and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, any other applicable laws or rules of the Court, 15 and due process.
16 b) In In re: Takata Airbag Products Liability Litigation (Ford), MDL No. 17 2599 (S.D. Fla.), based upon my testimony, Judge Federico A. Moreno ruled on December 20, 18 2018: The record shows and the Court finds that the Class Notice has been 19 given to the Class in the manner approved by the Court in its Preliminary Approval Order. The Court finds that such Class Notice: (i) is reasonable 20 and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, 21 under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to 22 exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing 23 (either on their own or through counsel hired at their own expense) and the binding effect of the orders and Final Order and Final Judgment in 24 the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes 25 due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United 26 States Constitution (including the Due Process Clause), FED. R. Civ. P. 23 and any other applicable law as well as complying with the Federal 27 Judicial Center's illustrative class action notices. 28
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1 c) In Hale v. State Farm Mutual Automobile Insurance Company, et al., 3:12- 2 cv-00660-DRH-SCW (S.D. Ill.), based upon my testimony, Judge Herndon ruled on December 3 16, 2018: The Class here is estimated to include approximately 4.7 million 4 members. Approximately 1.43 million of them received individual postcard or email notice of the terms of the proposed Settlement, and the 5 rest were notified via a robust publication program “estimated to reach 78.8% of all U.S. Adults Aged 35+ approximately 2.4 times.” Doc. 966- 6 2 ¶¶ 26, 41. The Court previously approved the notice plan (Doc. 947), and now, having carefully reviewed the declaration of the Notice 7 Administrator (Doc. 966-2), concludes that it was fully and properly executed, and reflected “the best notice that is practicable under the 8 circumstances, including individual notice to all members who can be identified through reasonable effort.” See Fed. R. Civ. P. 23(c)(2)(B). 9 The Court further concludes that CAFA notice was properly effectuated to the attorneys general and insurance commissioners of all 50 states 10 and District of Columbia. 11 d) In Vergara, et al., v. Uber Technologies, Inc., 1:15-CV-06972 (N.D. Ill.), 12 based upon my testimony, Judge Thomas M. Durkin ruled on March 1, 2018:
13 The Court finds that the Notice Plan set forth in Section IX of the Settlement Agreement and effectuated pursuant to the Preliminary 14 Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the 15 Settlement Classes of the pendency of this case, certification of the Settlement Classes for settlement purposes only, the terms of the 16 Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States 17 Constitution, and any other applicable law. Further, the Court finds that Defendant has timely satisfied the notice requirements of 28 U.S.C. 18 Section 1715. 19 e) In In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and 20 Products Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.), based upon my 21 testimony, Judge Charles R. Breyer ruled on May 17, 2017:
22 The Court is satisfied that the Notice Program was reasonably calculated to notify Class Members of the proposed Settlement. The 23 Notice “apprise[d] interested parties of the pendency of the action and afford[ed] them an opportunity to present their objections.” Mullane v. 24 Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, the Notice Administrator reports that the notice delivery rate of 97.04% 25 “exceed[ed] the expected range and is indicative of the extensive address 26 updating and re-mailing protocols used.” (Dkt. No. 3188-2 ¶ 24.) 27 f) In Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co., No. 14- 28 23120 (S.D. Fla.), based upon my testimony, Judge Marcia G. Cooke ruled on April 11, 2016:
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1 Pursuant to the Court’s Preliminary Approval Order, the Settlement Administrator, Epiq Systems, Inc. [Hilsoft Notifications], has complied 2 with the approved notice process as confirmed in its Declaration filed with the Court on March 23, 2016. The Court finds that the notice 3 process was designed to advise Class Members of their rights. The form and method for notifying Class Members of the settlement and its terms 4 and conditions was in conformity with this Court’s Preliminary Approval Order, constituted the best notice practicable under the circumstances, and satisfied the requirements of Federal Rule of Civil Procedure 5 23(c)(2)(B), the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, and due process under the United States Constitution and other 6 applicable laws. 7 g) In Rose v. Bank of America Corporation, and FIA Card Services, N.A., Nos. 8 5:11-CV-02390-EJD; 5:12-CV-04009-EJD (N.D. Cal.), based upon my testimony, Judge 9 Edward J. Davila ruled on August 29, 2014:
10 The Court finds that the notice was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of this 11 action, all material elements of the Settlement, the opportunity for Settlement Class Members to exclude themselves from, object to, or 12 comment on the settlement and to appear at the final approval hearing. The notice was the best notice practicable under the circumstances, 13 satisfying the requirements of Rule 23(c)(2)(B); provided notice in a reasonable manner to all class members, satisfying Rule 23(e)(1)(B); 14 was adequate and sufficient notice to all Class Members; and, complied fully with the laws of the United States and of the Federal Rules of Civil 15 Procedure, due process and any other applicable rules of court. 16 h) In In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of 17 Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.), based upon my testimony, Judge Carl J. 18 Barbier ruled on January 11, 2013:
19 The Court finds that the Class Notice and Class Notice Plan satisfied and continue to satisfy the applicable requirements of Federal Rule of Civil 20 Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C. § 1711 et seq.), and the Due Process Clause of the United States 21 Constitution (U.S. Const., amend. V), constituting the best notice that is practicable under the circumstances of this litigation. 22 The notice program surpassed the requirements of Due Process, Rule 23, 23 and CAFA. Based on the factual elements of the Notice Program as detailed below, the Notice Program surpassed all of the requirements of 24 Due Process, Rule 23, and CAFA.
25 The media notice effort alone reached an estimated 95% of adults in the Gulf region an average of 10.3 times each, and an estimated 83% of all 26 adults in the United States an average of 4 times each. These figures do not include notice efforts that cannot be measured, such as 27 advertisements in trade publications and sponsored search engine listings. The Notice Program fairly and adequately covered and notified 28 the class without excluding any demographic group or geographic area,
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and it exceeded the reach percentage achieved in most other court- 1 approved notice programs. 2 7. Numerous other court opinions and comments regarding my testimony, and the 3 adequacy of Epiq’s notice efforts, are included in Epiq’s curriculum vitae attached hereto as 4 Attachment 1. 5 8. In forming expert opinions, my staff and I draw from our in-depth class action case 6 experience, as well as our educational and related work experiences. I am an active member of 7 the Oregon State Bar, having received my Bachelor of Science from Willamette University and 8 my Juris Doctor from Northwestern School of Law at Lewis and Clark College. I have served 9 as the Director of Legal Notice for Epiq since 2008 and have overseen the detailed planning 10 and implementation of virtually all of Epiq’s court-approved notice programs during that time. 11 Before assuming my current role with Epiq, I served in a similar role as Director of Epiq Legal 12 Noticing (previously called Huntington Legal Advertising). Overall, I have over 20 years of 13 experience in the design and implementation of legal notification and claims administration 14 programs, having been personally involved in hundreds of successful notice programs.
15 OVERVIEW 16 9. The facts in this declaration are based on what I personally know, as well as 17 information provided to me in the ordinary course of my business by my colleagues at Epiq, 18 who assisted with developing and implementing this class action notification program. This 19 declaration will describe the implementation of the Settlement Notice Plan (“Notice Plan” or 20 “Plan”) for the settlement in Grace, et al. v. Apple, Inc., Case No. 5:17-CV-00551-LHK-NC, in 21 the United States District Court for the Northern District of California. 22 10. On September 10, 2020, the Court entered an Order Granting Preliminary Approval 23 of Class Action Settlement (“Preliminary Approval Order”), which appointed Epiq as the 24 Settlement Administrator and approved the Notice Plan (ECF No. 426). The Court also 25 approved the Settlement Class definition, which is defined in the Settlement Agreement as:
26 All owners of non-jailbroken Apple iPhone 4 or Apple iPhone 4S devices who on April 16, 2014, had iOS 6 or earlier operating systems on their 27 iPhone 4 or iPhone 4S devices, and who were in California at that time. 28
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1 11. After entry of the Court’s Preliminary Approval Order, Epiq began to implement 2 the Notice Plan. This declaration will detail the successful implementation of the Notice Plan 3 the Court preliminarily approved and will also outline the administration of the settlement to 4 date. 5 12. Rule 23 of the Federal Rules of Civil Procedure directs that the best notice 6 practicable under the circumstances must include “individual notice to all members who can be 7 identified through reasonable effort.”1 The Notice Plan here satisfied this requirement. An 8 Email Notice was sent to all Settlement Class Members with an available email address, and a 9 Postcard Notice was sent via first-class mail to all Settlement Class Members without an 10 available email address or for whom an Email Notice was undeliverable. A settlement website 11 provided further notice of the settlement. 12 13. In my opinion, the Notice Plan as designed and implemented reached the greatest 13 practicable number of Settlement Class Members through the use of individual direct notice 14 and, as such, was the best notice practicable under the circumstances of this case and met the 15 requirements of due process, including its “desire to actually inform” requirement.2 16 NOTICE PLAN IMPLEMENTATION
17 Individual Notice 18 14. On January 24, 2020, Apple transmitted one data file to Epiq, which contained 19 contact information for Settlement Class Members (including physical mailing addresses and 20 email addresses). Subsequently, on April 16, 2020, Apple sent a second data file to Epiq, which 21 contained additional or updated contact information for some of the Settlement Class Members 22 as identified by Apple. Epiq reviewed the files and removed Apple employees and de- 23 duplicated the data - combining all records with the same name, email address, and mailing
24
25 1 Fed. R. Civ. P. 23(c)(2)(B). 26 2 “But when notice is a person’s due, process which is a mere gesture is not due process. The 27 means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of 28 any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected . . . .” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). DECLARATION OF CAMERON R. AZARI, ESQ. RESETTLEMENT NOTICE PLAN 8 Case 5:17-cv-00551-LHK Document 435-2 Filed 01/04/21 Page 9 of 83
1 address. These efforts resulted in a Class List with mailing information for 3,222,856 2 Settlement Class Members. The following is a breakdown of the Class List as it relates to 3 sending notice:
4 4,947 records had no contact information that could be used to send notice (no 5 email address and no physical mailing address);
6 13,635 records had a mailing address, but no email address; and 7 3,204,274 had a facially valid email address. 8 Individual Notice – Email 9 15. On October 9, 2020, Epiq commenced attempting Email Notice to the 3,204,274 10 potential Settlement Class Members for whom a facially valid email address was included in 11 the data file produced by Apple. Epiq created the Email Notice using an embedded HTML text 12 format. This format provided easy to read text without graphics, tables, images and other 13 elements to increase the likelihood that the message would not be blocked by Internet Service 14 Providers (ISPs) and/or SPAM filters. Epiq sent each of the Email Notices using a server known 15 to the major email providers as one not used to send bulk “SPAM” or “junk” email blasts. Epiq 16 also sent the emails in small groups to avoid the Email Notices being erroneously flagged as a 17 bulk junk email blast. Epiq sent each Email Notice with a unique message identifier. If the 18 receiving email server could not deliver the message, a “bounce code” was returned to Epiq 19 along with the unique message identifier. For any Email Notice for which Epiq received a 20 bounce code indicating that the email was undeliverable, Epiq made at least two additional 21 attempts to deliver the Notice by email. 22 16. Commencing on November 3, 2020, Epiq made subsequent attempts to send Email 23 Notices that had not been delivered in the initial attempt, utilizing a different email service, to 24 maximize the number of Email Notices successfully delivered to Settlement Class Members. 25 Epiq again sent Email Notices using embedded HTML text, using known servers, in small 26 batches, and using unique message identifiers. If the receiving email server could not deliver 27 the message, a “bounce code” was returned to Epiq along with the unique message identifier. 28 For any Email Notice for which Epiq received a bounce code indicating that the email was
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1 undeliverable, Epiq made at least two additional attempt to deliver the Notice by email. At the 2 end of all efforts to disseminate Email Notice, 629,186 emails could not be delivered. 3 Subsequently, a Postcard Notice was mailed to those 629,186 Settlement Class Members for 4 whom the Email Notice could not be delivered and a physical mailing address was available. 5 This is described in more detail below in paragraphs 18-23. 6 17. Each Email Notice included the website address of the settlement website. At the 7 settlement website, a Settlement Class Member was able to view the Long Form Notice, the 8 Settlement Agreement, the Preliminary Approval Order, and other information about the 9 Settlement and other filings in the case. The Email Notice is included as Attachment 2. 10 Individual Notice – Postcard Notice 11 18. On October 9, 2020, Epiq mailed 13,635 Postcard Notices via United States Postal 12 Service (“USPS”) first-class mail to all identifiable Settlement Class Members who did not have 13 a facially valid email address in the Class List. The Postcard Notice, measured 4.25” x 5.5” and 14 included two images that clearly and concisely summarized the Settlement. The Postcard 15 Notice directed the Settlement Class Members to the settlement website and also provided 16 contact information for the Settlement Administrator, including a telephone number for 17 inquiries. A copy of the Postcard Notice as printed and mailed is included as Attachment 3. 18 19. Epiq also mailed Postcard Notices to all Settlement Class Members whose Email 19 Notices were ultimately undeliverable and who had a valid physical mailing address. On 20 November 18, 2020, Epiq mailed the Postcard Notice to 596,229 Settlement Class Members for 21 whom the Email Notice was undeliverable. 22 20. Prior to mailing the Postcard Notice, mailing addresses were checked against the 23 National Change of Address (“NCOA”) database maintained by the USPS. The NCOA 24 contains records of all reported permanent moves for the past four (4) years. In addition, the 25 addresses were certified via the Coding Accuracy Support System (“CASS”) to ensure the 26 quality of the zip code, and also verified through Delivery Point Validation (“DPV”) to verify 27 the accuracy of the addresses in the records. This address updating process is standard for the 28 industry and for the majority of promotional mailings that occur today.
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1 21. Additionally, Epiq mailed a Long Form Notice via first class mail to all individuals 2 who requested one by calling the toll-free telephone number that Epiq established as part of the 3 administration of the Settlement and as part of the Notice Plan. As of January 4, 2021, in 4 response to such requests, Epiq has mailed seventeen (17) Long Form Notices via USPS first- 5 class mail. Additionally, a copy of the Long Form Notice is available at the settlement website 6 to download or print. A copy of the Long Form Notice as printed and mailed is included as 7 Attachment 4. 8 22. The return address on the Postcard Notices is a post office box maintained by Epiq. 9 The USPS automatically forwards Postcard Notices with an available forwarding address order 10 that has not expired (“Postal Forwards”). For Postcard Notices returned as undeliverable, Epiq 11 re-mails the Notice to any new address available through the USPS information (for example, 12 to the address provided by the USPS on returned pieces for which the automatic forwarding 13 order has expired, but which is still during the period in which the USPS returns the piece with 14 the address indicated). Epiq also obtains better addresses by using a third-party lookup service. 15 Upon successfully locating better addresses, 47,701 Postcard Notices were promptly re-mailed. 16 23. As of January 4, 2021, a Postcard Notice or an Email Notice was successfully 17 delivered to 3,131,326 of the 3,217,909 Settlement Class Members for whom Epiq had valid 18 contact information and to whom Epiq sent Notice. This equates to a deliverable rate of 97.3%. 19 Factoring in the very small number of devices for whom email or physical address information 20 was not available, the Notice Plan overall reached approximately 97.1% of all 3,222,856 21 Settlement Class Members. 22 Application for Inclusion in the Class 23 24. Individuals who did not receive Notice via email or mail from Epiq have the 24 opportunity to submit an Application for Inclusion in the Settlement Class if they believe they 25 are a Settlement Class Member. As of January 4, 2021, Epiq has received 3,358 Applications 26 for Inclusion in the Class (3,354 submitted via the settlement website, and another four (4) 27 requests for inclusion via written correspondence). 28
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1 Validation of Applications 2 25. For all 3,358 Applications for Inclusion, Epiq compared the applicant’s name, 3 address, email address, and device serial number with the Class Data provided by Apple. After 4 review, Epiq determined that there are 163 valid Applications that included serial numbers that 5 Epiq could match back to the Class Data and which weren’t submitted by a Settlement Class 6 Member already associated with that serial number in the Class Data. Of the remaining 7 Applications, 286 were submitted by Settlement Class Members already identified in the Class 8 Data (and who already will receive an automatic payment under the Settlement). The remaining 9 2,909 Applications did not include serial numbers that Epiq could match to the Class Data. 10 However, 848 of these Applications that did not include serial numbers that were included in 11 the Class Data, did include an IMEI/MEID3 instead of, or in addition to, a serial number. Epiq 12 has not completed its investigation into whether these IMEIs/MEIDs belong to devices that are 13 included in the Class Data, and, in consultation with Apple, expects to have that information by 14 January 8, 2021. 15 26. The 163 valid Applications for Inclusion in the Class (along with any others 16 identified in the 848 Applications with IMEIs/MEIDs referenced above) will be included in the 17 calculation and distribution of Settlement Payments. 18 Estimated Settlement Payments 19 27. The Settlement Payments will be calculated by dividing the Net Settlement Fund 20 by the total number of iPhone serial numbers belonging to Settlement Class Members to 21 determine the value of each iPhone. Then, each Settlement Class Member will receive a 22 payment equal to the value of each class iPhone multiplied by the number of devices attributed 23 to them in the Class Data. 24 25
26
27 3 In addition to a serial number, every iPhone has unique identifier codes, known as either an 28 IMEI and/or an MEID number. IMEI stands for International Mobile Station Equipment Identity. MEID stands for Mobile Equipment Identifier. DECLARATION OF CAMERON R. AZARI, ESQ. RESETTLEMENT NOTICE PLAN 12 Case 5:17-cv-00551-LHK Document 435-2 Filed 01/04/21 Page 13 of 83
1 28. The Net Settlement Fund will be determined by reducing the Settlement Fund of 2 $18 million by the following amounts subject to the Court’s approval: $5.4 million in Attorneys’ 3 fees, $1,082,447.84 in costs, $15,000 in total Service Awards, and potential administration fees 4 and expenses of $1,406,119. Assuming that the Court approves all amounts requested, the Net 5 Settlement Fund remaining for distribution to Settlement Class Members would be 6 $10,096,433.16. 7 29. As explained above, Epiq has not completed its analysis of the Applications for 8 Inclusion in the Class that included IMEI or MEID numbers. Epiq has also not yet performed 9 an official calculation of the Settlement Payments to be made to Settlement Class Members 10 based on the total number of devices attributed to Settlement Class Members. 11 30. At Class Counsel’s request, Epiq has performed a preliminary estimate of the 12 amount to be paid to Settlement Class Members for each iPhone associated with them based on 13 the presumption that each Settlement Class Member owned only one included iPhone. As some 14 Settlement Class Members will receive payment for more than one iPhone, the amount per 15 phone may ultimately be slightly lower than the amount estimated below. 16 31. Dividing the Net Settlement Fund amount of $10,096,433.16 by the 3,222,856 17 Settlement Class Members identified in the Class Data plus the 163 currently approved 18 Applications for Inclusion in the Class, results in an approximate payment amount of $3.13 per 19 device. 20 Settlement Website, Toll-free Telephone Number and Postal Mailing Address 21 32. On October 8, 2020, Epiq created a dedicated settlement website for the Settlement 22 at www.GraceClassAction.com. At the settlement website, Settlement Class Members are able 23 to obtain detailed information about the case and review documents related to the Settlement 24 including the Long Form Notice, the Settlement Agreement, the Preliminary Approval Order, 25 and other documents. Answers to Frequently Asked Questions (FAQs) are also available on 26 the settlement website. Individuals who did not receive Notice via email or mail from Epiq 27 have the opportunity to submit an Application for Inclusion in the Class at the settlement 28
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1 website. The settlement website address was displayed prominently in all the Notices described 2 above. 3 33. As of January 4, 2021, there have been 38,551 unique visitors to the settlement 4 website and 71,058 website page views presented. 5 34. On October 8, 2020, Epiq established a toll-free telephone number (1-866-977- 6 0759) for the case to allow Settlement Class Members to call for additional information about 7 the Settlement, listen to answers to FAQs, or request that a Long Form Notice be mailed to 8 them, among other things. This automated phone system is available 24 hours per day, 7 days 9 per week. As of January 4, 2021, Epiq received 752 calls to the toll-free number for a total of 10 1,730 minutes. 11 35. Epiq also established a postal mailing address to allow Settlement Class Members 12 to request additional information or ask questions about the Settlement. Both the toll-free 13 telephone number and the postal mailing address were included on the Postcard Notices, the 14 Email Notice, the Long Form Notice, and the settlement website.
15 Exclusions and Objections 16 36. The deadline to request exclusion from the Settlement or to object to the Settlement 17 was December 9, 2020. As of January 4, 2021, Epiq has received nine (9) timely requests for 18 exclusion from the Settlement and one (1) late request for exclusion. A copy of the Request for 19 Exclusion Report for the 10 total requests for exclusion is included as Attachment 5. 20 37. As of January 4, 2021, I am aware of one (1) objection to the Settlement submitted 21 by Steven Helfand. I have reviewed the objection and it does not relate to notice or settlement 22 administration. Mr. Helfand is not included among the over 3.2 million Settlement Class 23 Members in the Class Data. On November 13, 2020, Mr. Helfand submitted an Application for 24 Inclusion in the Class, but it did not provide any information indicating that he owned a 25 qualifying iPhone 4 or 4S device that was running on iOS 6 or an early version on April 16, 26 2014. No valid serial number was provided (Mr. Helfand’s Application included all zeros in 27 the serial number field). 28
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1 CONCLUSION 2 38. In class action notice planning, execution, and analysis, Epiq is guided by due 3 process considerations under the United States Constitution, by federal and local rules and 4 statutes, and further by case law pertaining to notice. This framework directs that a class action 5 notice program be designed to reach the greatest practicable number of potential class members 6 and that the notice or notice program itself not limit knowledge of the availability of settlement 7 benefits—nor the ability to exercise other options—to class members in any way. All of these 8 requirements were met in this case. 9 39. The Notice Plan followed the guidance for how to satisfy due process obligations 10 that a notice expert gleans from the United States Supreme Court’s seminal decisions which 11 are: a) to endeavor to actually inform the class members, and b) to demonstrate that notice is 12 reasonably calculated to do so:
13 A. “But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually 14 informing the absentee might reasonably adopt to accomplish it,” Mullane v. Central Hanover Trust, 339 U.S. 306, 315 (1950). 15 B. “[N]otice must be reasonably calculated, under all the circumstances, to 16 apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” Eisen v. Carlisle & Jacquelin, 417 U.S. 17 156, 174 (1974) (citing Mullane at 314). 18 40. As described above, the Notice Plan effectively provided individual notice, which 19 reached approximately 97.1% of the Settlement Class. Many courts have accepted and 20 understood that anything over a 70% reach is adequate. In 2010, the Federal Judicial Center 21 issued a Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide. 22 This Guide states that “the lynchpin in an objective determination of the adequacy of a proposed 23 notice effort is whether all the notice efforts together will reach a high percentage of the class. 24 It is reasonable to reach between 70–95%.” The Notice Plan here as implemented achieved a 25 reach to the Settlement Class at the highest end of this range. 26 41. The Notice Plan described above provided the best notice practicable under the 27 circumstances of this case, conformed to all aspects of Federal Rule of Civil Procedure 23, and 28
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1 comported with the guidance for effective notice articulated in the Manual for Complex Litigation 2 4th. 3 42. The Notice Plan schedule afforded enough time to provide full and proper notice to 4 Settlement Class Members before the exclusion and objection deadlines. 5 I declare under penalty of perjury under the laws of the United States and the State of 6 California that the foregoing is true and correct. Executed on January 4, 2021. 7 ______8 Cameron R. Azari, Esq. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Attachment 1 Case 5:17-cv-00551-LHK Document 435-2 Filed 01/04/21 Page 18 of 83
Hilsoft Notifications is a leading provider of legal notice services for large-scale class action and bankruptcy matters. We specialize in providing quality, expert, notice plan development – designing notice programs that satisfy due process requirements and withstand judicial scrutiny. Hilsoft Notifications (“Hilsoft”) has been retained by defendants and/or plaintiffs for more than 450 cases, including more than 40 MDL cases, with notices appearing in more than 53 languages and in almost every country, territory and dependency in the world. For more than 25 years, Hilsoft’s notice plans have been approved and upheld by courts. Case examples include:
Hilsoft designed and implemented monumental notice campaigns to notify current or former owners or lessees of certain BMW, Mazda, Subaru, Toyota, Honda, Nissan, and Ford vehicles as part of $1.49 billion in settlements regarding Takata airbags. The Notice Plans included individual mailed notice to more than 59.6 million potential class members and notice via consumer publications, U.S. Territory newspapers, radio spots, internet banners, mobile banners, and behaviorally targeted digital media. Combined, the Notice Plans reached more than 95% of adults aged 18+ in the U.S. who owned or leased a subject vehicle with a frequency of 4.0 times each. In re: Takata Airbag Products Liability Litigation (OEMS – BMW, Mazda, Subaru, Toyota, Honda, Nissan and Ford), MDL No. 2599 (S.D. Fla.).
For a landmark $6.05 billion settlement reached by Visa and MasterCard in 2012, Hilsoft implemented an intensive notice program, which included over 19.8 million direct mail notices to class members together with insertions in over 1,500 newspapers, consumer magazines, national business publications, trade and specialty publications, and language & ethnic targeted publications. Hilsoft also implemented an extensive online notice campaign with banner notices, which generated more than 770 million adult impressions, a settlement website in eight languages, and acquisition of sponsored search listings to facilitate locating the website. For the subsequent superseding $5.54 billion settlement reached by Visa and MasterCard in 2019, Hilsoft implemented an extensive notice program, which included over 16.3 million direct mail notices to class members together with over 354 print publication units and banner notices, which generated more than 689 million adult impressions. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-MD-1720, MDL No. 1720 (E.D.N.Y.). For a $250 million settlement with approximately 4.7 million class members, Hilsoft designed and implemented a notice program with individual notice via postcard or email to approximately 1.43 million class members and a robust publication program, which combined, reached approximately 78.8% of all U.S. adults aged 35+ approximately 2.4 times each. Hale v. State Farm Mutual Automobile Insurance Company, et al., 12-cv-00660 (S.D. Ill.).
Hilsoft designed and implemented an extensive individual notice program, which included 8.6 million double- postcard notices and 1.4 million email notices. The notices informed class members of a $32 million settlement for a “security incident” regarding class members’ personal information stored in Premera’s computer network, which was compromised. The individual notice efforts reached 93.3% of the settlement class. A settlement website, an informational release, and a geo-targeted publication notice further enhanced the notice efforts. In Re: Premera Blue Cross Customer Data Security Breach Litigation, 3:15-md-2633 (D. Ore.).
Hilsoft designed a notice program that included extensive data acquisition and mailed notice to inform owners and lessees of specific models of Mercedes-Benz vehicles. The notice program designed and implemented by Hilsoft reached approximately 96.5% of all class members. Callaway v. Mercedes-Benz USA, LLC, 8:14-cv-02011 (C.D. Cal.).
For a $20 million TCPA settlement that involved Uber, Hilsoft created a notice program, which resulted in notice via mail or email to more than 6.9 million identifiable class members. The combined measurable effort reached approximately 90.6% of the settlement class with direct mail and email, newspaper and internet banner ads. Vergara, et al., v. Uber Technologies, Inc., 1:15-CV-06972 (N.D. Ill.).
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A comprehensive notice program within the Volkswagen Emissions Litigation that provided individual notice to more than 946,000 vehicle owners via first class mail and to more than 855,000 vehicle owners via email. A targeted internet campaign further enhanced the notice effort. In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.).
An extensive notice effort regarding asbestos personal injury claims and rights as to Debtors’ Joint Plan of Reorganization and Disclosure Statement that was designed and implemented by Hilsoft. The notice program included nationwide consumer print publications, trade and union labor publications, internet banner advertising, an informational release, and a website. In re: Kaiser Gypsum Company, Inc., el al., 16-31602 (Bankr. W.D. N.C.).
Hilsoft designed and implemented an extensive settlement notice plan for a class period spanning more than 40 years for smokers of light cigarettes. The notice plan delivered a measured reach of approximately 87.8% of Arkansas adults 25+ with a frequency of 8.9 times and approximately 91.1% of Arkansas adults 55+ with a frequency of 10.8 times. Hispanic newspaper notice, an informational release, radio public service announcements (“PSAs”), sponsored search listings and a case website further enhanced reach. Miner v. Philip Morris USA, Inc., 60CV03-4661 (Ark. Cir.).
One of the largest claim deadline notice campaigns ever implemented, for BP’s $7.8 billion settlement claim deadline relating to the Deepwater Horizon oil spill. Hilsoft designed and implemented the claim deadline notice program, which resulted in a combined measurable paid print, television, radio and internet effort, which reached in excess of 90% of adults aged 18+ in the 26 identified DMAs covering the Gulf Coast Areas an average of 5.5 times each. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.).
A large asbestos bar date notice effort, which included individual notice, national consumer publications, hundreds of local and national newspapers, Spanish newspapers, union labor publications, and digital media to reach the target audience. In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Date Notice), 14-10979 (Bankr. D. Del.).
BP’s $7.8 billion settlement of claims related to the Deepwater Horizon oil spill emerged from possibly the most complex class action case in U.S. history. Hilsoft drafted and opined on all forms of notice. The 2012 dual notice program to distinct “Economic and Property Damages” and “Medical Benefits” settlement classes designed by Hilsoft reached at least 95% Gulf Coast region adults via more than 7,900 television spots, 5,200 radio spots, 5,400 print insertions in newspapers, consumer publications, and trade journals, digital media, and individual notice. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.).
Overdraft fee class actions have been brought against nearly every major U.S. commercial bank. For related settlements from 2010-2020, Hilsoft has developed programs that integrate individual notice and in some cases paid media efforts. Fifth Third Bank, National City Bank, Bank of Oklahoma, Webster Bank, Harris Bank, M& I Bank, PNC Bank, Compass Bank, Commerce Bank, Citizens Bank, Great Western Bank, TD Bank, BancorpSouth, Comerica Bank, Susquehanna Bank, Associated Bank, Capital One, M&T Bank, Iberiabank and Synovus are among the more than 20 banks that have retained Hilsoft. In re Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.).
Hilsoft provided notice for one of the largest data breaches in U.S. history with approximately 130 million credit and debit card numbers stolen. In re Heartland Data Security Breach Litigation, MDL No. 2046 (S.D. Tex.).
For one of the largest and most complex class action case in Canadian history, Hilsoft designed and implemented groundbreaking notice to disparate, remote indigenous people in the multi-billion dollar settlement. In re Residential Schools Class Action Litigation, 00-CV-192059 CPA (Ont. Super. Ct.).
Extensive point of sale notice program of a settlement, which provided payments of up to $100,000 related to Chinese drywall – 100 million notices distributed to Lowe’s purchasers during a six-week period. Vereen v. Lowe’s Home Centers, SU10-CV-2267B (Ga. Super. Ct.).
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LEGAL NOTICING EXPERTS
Cameron Azari, Esq., Director of Legal Notice Cameron Azari, Esq. has more than 20 years of experience in the design and implementation of legal notice and claims administration programs. He is a nationally recognized expert in the creation of class action notification campaigns in compliance with Fed R. Civ. P. 23(c)(2) (d)(2) and (e) and similar state class action statutes. Cameron has been responsible for hundreds of legal notice and advertising programs. During his career, he has been involved in an array of high profile class action matters, including In re: Takata Airbag Products Liability Litigation, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement), In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, In re: Checking Account Overdraft Litigation, and In re Residential Schools Class Action Litigation. He is an active author and speaker on a broad range of legal notice and class action topics ranging from amendments to FRCP Rule 23 to email noticing, response rates and optimizing settlement effectiveness. Cameron is an active member of the Oregon State Bar. He received his B.S. from Willamette University and his J.D. from Northwestern School of Law at Lewis and Clark College. Cameron can be reached at [email protected].
Lauran Schultz, Epiq Managing Director Lauran Schultz consults with Hilsoft clients on complex noticing issues. Lauran has more than 20 years of experience as a professional in the marketing and advertising field, specializing in legal notice and class action administration since 2005. High profile actions he has been involved in include companies such as BP, Bank of America, Fifth Third Bank, Symantec Corporation, Lowe’s Home Centers, First Health, Apple, TJX, CNA and Carrier Corporation. Prior to joining Epiq in 2005, Lauran was a Senior Vice President of Marketing at National City Bank in Cleveland, Ohio. Lauran’s education includes advanced study in political science at the University of Wisconsin-Madison along with a Ford Foundation fellowship from the Social Science Research Council and American Council of Learned Societies. Lauran can be reached at [email protected].
Kyle Bingham, Manager of Strategic Communications Kyle Bingham has 14 years of experience in the advertising industry. At Hilsoft and Epiq, Kyle is responsible for overseeing the research, planning, and execution of advertising campaigns for legal notice programs including class action, bankruptcy and other legal cases. Kyle has been involved in the design and implementation of numerous legal notice campaigns, including In re: Takata Airbag Products Liability Litigation, In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch), In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Notice), In re: Residential Schools Class Action Litigation, Hale v. State Farm Mutual Automobile Insurance Company, and In Re: Checking Account Overdraft Litigation. Prior to joining Epiq and Hilsoft, Kyle worked at Wieden+Kennedy for seven years, an industry-leading advertising agency where he planned and purchased print, digital and broadcast media, and presented strategy and media campaigns to clients for multi-million dollar branding campaigns and regional direct response initiatives. He received his B.A. from Willamette University. Kyle can be reached at [email protected].
ARTICLES AND PRESENTATIONS
Cameron Azari Speaker, “Consumers and Class Action Notices: An FTC Workshop.” Federal Trade Commission, Washington, DC, October 29, 2019.
Cameron Azari Speaker, “The New Outlook for Automotive Class Action Litigation: Coattails, Recalls, and Loss of Value/Diminution Cases.” ACI’s Automotive Product Liability Litigation Conference.” American Conference Institute, Chicago, IL, July 18, 2019.
Cameron Azari Moderator, “Prepare for the Future of Automotive Class Actions.” Bloomberg Next, Webinar-CLE, November 6, 2018.
Cameron Azari Speaker, “The Battleground for Class Certification: Plaintiff and Defense Burdens, Commonality Requirements and Ascertainability.” 30th National Forum on Consumer Finance Class Actions and Government Enforcement, Chicago, IL, July 17, 2018.
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Cameron Azari Speaker, “Recent Developments in Class Action Notice and Claims Administration.” PLI's Class Action Litigation 2018 Conference, New York, NY, June 21, 2018.
Cameron Azari Speaker, “One Class Action or 50? Choice of Law Considerations as Potential Impediment to Nationwide Class Action Settlements.” 5th Annual Western Regional CLE Program on Class Actions and Mass Torts. Clyde & Co LLP, San Francisco, CA, June 22, 2018.
Cameron Azari Co-Author, A Practical Guide to Chapter 11 Bankruptcy Publication Notice. E-book, published, May 2017.
Cameron Azari Featured Speaker, “Proposed Changes to Rule 23 Notice and Scrutiny of Claim Filing Rates,” DC Consumer Class Action Lawyers Luncheon, December 6, 2016.
Cameron Azari Speaker, “Recent Developments in Consumer Class Action Notice and Claims Administration." Berman DeValerio Litigation Group, San Francisco, CA, June 8, 2016.
Cameron Azari Speaker, “2016 Cybersecurity & Privacy Summit. Moving From ‘Issue Spotting’ To Implementing a Mature Risk Management Model.” King & Spalding, Atlanta, GA, April 25, 2016.
Cameron Azari Speaker, “Live Cyber Incident Simulation Exercise.” Advisen’s Cyber Risk Insights Conference, London, UK, February 10, 2015.
Cameron Azari Speaker, “Pitfalls of Class Action Notice and Claims Administration.” PLI's Class Action Litigation 2014 Conference, New York, NY, July 9, 2014.
Cameron Azari Co-Author, “What You Need to Know About Frequency Capping In Online Class Action Notice Programs.” Class Action Litigation Report, June 2014.
Cameron Azari Speaker, “Class Settlement Update – Legal Notice and Court Expectations.” PLI's 19th Annual Consumer Financial Services Institute Conference, New York, NY, April 7-8, 2014 and Chicago, IL, April 28-29, 2014.
Cameron Azari Speaker, “Legal Notice in Consumer Finance Settlements - Recent Developments.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 29-30, 2014.
Cameron Azari Speaker, “Legal Notice in Building Products Cases.” HarrisMartin’s Construction Product Litigation Conference, Miami, FL, October 25, 2013.
Cameron Azari Co-Author, “Class Action Legal Noticing: Plain Language Revisited.” Law360, April 2013.
Cameron Azari Speaker, “Legal Notice in Consumer Finance Settlements Getting your Settlement Approved.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 31-February 1, 2013.
Cameron Azari Speaker, “Perspectives from Class Action Claims Administrators: Email Notices and Response Rates.” CLE International’s 8th Annual Class Actions Conference, Los Angeles, CA, May 17-18, 2012.
Cameron Azari Speaker, “Class Action Litigation Trends: A Look into New Cases, Theories of Liability & Updates on the Cases to Watch.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 26-27, 2012.
Lauran Schultz Speaker, “Legal Notice Best Practices: Building a Workable Settlement Structure.” CLE International’s 7th Annual Class Action Conference, San Francisco, CA, May 2011.
Cameron Azari Speaker, “Data Breaches Involving Consumer Financial Information: Litigation Exposures and Settlement Considerations.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 2011.
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Cameron Azari Speaker, “Notice in Consumer Class Actions: Adequacy, Efficiency and Best Practices.” CLE International’s 5th Annual Class Action Conference: Prosecuting and Defending Complex Litigation, San Francisco, CA, 2009.
Lauran Schultz Speaker, “Efficiency and Adequacy Considerations in Class Action Media Notice Programs.” Chicago Bar Association, Chicago, IL, 2009.
Cameron Azari Author, “Clearing the Five Hurdles of Email - Delivery of Class Action Legal Notices.” Thomson Reuters Class Action Litigation Reporter, June 2008.
Cameron Azari Speaker, “Planning for a Smooth Settlement.” ACI: Class Action Defense – Complex Settlement Administration for the Class Action Litigator, Phoenix, AZ, 2007. Cameron Azari Speaker, “Structuring a Litigation Settlement.” CLE International’s 3rd Annual Conference on Class Actions, Los Angeles, CA, 2007.
Cameron Azari Speaker, “Noticing and Response Rates in Class Action Settlements” – Class Action Bar Gathering, Vancouver, British Columbia, 2007.
Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Skadden Arps Slate Meagher & Flom, LLP, New York, NY, 2006.
Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Bridgeport Continuing Legal Education, Class Action and the UCL, San Diego, CA, 2006.
Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stoel Rives litigation group, Portland, OR / Seattle, WA / Boise, ID / Salt Lake City, UT, 2005.
Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stroock & Stroock & Lavan Litigation Group, Los Angeles, CA, 2005.
Cameron Azari Author, “Twice the Notice or No Settlement.” Current Developments – Issue II, August 2003.
Cameron Azari Speaker, “A Scientific Approach to Legal Notice Communication” – Weil Gotshal litigation group, New York, NY, 2003.
JUDICIAL COMMENTS
Judge Nancy J. Rosenstengel, First Impressions Salon, Inc. et al. v. National Milk Producers Federation, et al. (Apr. 27, 2020) 3:13-cv-00454 (S.D. Ill.):
The Court finds that the Notice given to the Class Members was completed as approved by this Court and complied in all respects with the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process. The settlement Notice Plan was modeled on and supplements the previous court-approved plan and, having been completed, constitutes the best notice practicable under the circumstances. In making this determination, the Court finds that the Notice provided Class members due and adequate notice of the Settlement, the Settlement Agreement, the Plan of Distribution, these proceedings, and the rights of Class members to opt-out of the Class and/or object to Final Approval of the Settlement, as well as Plaintiffs’ Motion requesting attorney fees, costs, and Class Representative service awards.
Judge Harvey Schlesinger, In Re: Disposable Contact Lens Antitrust Litigation (Mar. 4, 2020) 3:15-md-02626 (M.D. Fla.):
The Court finds that the dissemination of the Notice: (a) was implemented in accordance with the Preliminary Approval Orders; (b) constitutes the best notice practicable under the circumstances; (c) constitutes notice that was reasonably calculated, under the circumstances, to apprise the Settlement Classes of (i) the pendency of the Action; (ii) the effect of the Settlement Agreements (including the Releases to the provided thereunder); (iii) Class Counsel’s possible motion for an award of attorneys’ fees and reimbursement of expenses; (iv) the right to object to any aspect of the Settlement Agreements, the Plan of Distribution, and/or
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Class Counsel’s motion for attorneys’ fees and reimbursement of expenses; (v) the right to opt out of the Settlement Classes; (vi) the right to appear at the Fairness Hearing; and (vii) the fact that Plaintiffs may receive incentive awards; (d) constitutes due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the Settlement Agreement and (e) satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and the United States Constitution (including the Due Process Clause).
Judge Amos L. Mazzant, Stone et al. v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens (Mar. 3, 2020) 4:17-cv-00001 (E.D. Tex.):
The Court has reviewed the Notice Plan and its implementation and efficacy, and finds that it constituted the best notice practicable under the circumstances and was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to the proposed settlement in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution and Rules 23(c) and (e) of the Federal Rules of Civil Procedure.
In addition, Class Notice clearly and concisely stated in plain, easily understood language: (i) the nature of the action; (ii) the definition of the certified Equitable Relief Settlement Class; (iii) the claims and issues of the Equitable Relief Settlement Class; (iv) that a Settlement Class Member may enter an appearance through an attorney if the member so desires; (v) the binding effect of a class judgment on members under Fed. R. Civ. P. 23(c)(3).
Judge Michael H. Simon, In Re: Premera Blue Cross Customer Data Security Breach Litigation (Mar. 2, 2020) 3:15-md- 2633 (D. Ore.):
The Court confirms that the form and content of the Summary Notice, Long Form Notice, Publication Notice, and Claim Form, and the procedure set forth in the Settlement for providing notice of the Settlement to the Class, were in full compliance with the notice requirements of Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e), fully, fairly, accurately, and adequately advised members of the Class of their rights under the Settlement, provided the best notice practicable under the circumstances, fully satisfied the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure, and afforded Class Members with adequate time and opportunity to file objections to the Settlement and attorney’s fee motion, submit Requests for Exclusion, and submit Claim Forms to the Settlement Administrator.
Judge Maxine M. Chesney, McKinney-Drobnis, et al. v. Massage Envy Franchising (Mar. 2, 2020) 3:16-CV-6450 (N.D. Cal.):
The COURT hereby finds that the individual direct CLASS NOTICE given to the CLASS via email or First Class U.S. Mail (i) fairly and accurately described the ACTION and the proposed SETTLEMENT; (ii) provided sufficient information so that the CLASS MEMBERS were able to decide whether to accept the benefits offered by the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT; (iii) adequately described the manner in which CLASS MEMBERS could submit a VOUCHER REQUEST under the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT and/or appear at the FINAL APPROVAL HEARING; and (iv) provided the date, time, and place of the FINAL APPROVAL HEARING. The COURT hereby finds that the CLASS NOTICE was the best notice practicable under the circumstances and complied fully with Federal Rule of Civil Procedure Rule 23, due process, and all other applicable laws.
Judge Harry D. Leinenweber, Albrecht v. Oasis Power, LLC d/b/a Oasis Energy (Feb. 6, 2020) 1:18-cv-1061 (N.D. Ill.):
The Court finds that the distribution of the Class Notice, as provided for in the Settlement Agreement, (i) constituted the best practicable notice under the circumstances to Settlement Class Members, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of, among other things, the pendency of the Action, the nature and terms of the proposed Settlement, their right to object or to exclude themselves from the proposed Settlement, and their right to appear at the Final Approval Hearing, (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to be provided with notice, and (iv) complied fully with the requirements of Fed. R. Civ. P. 23, the United States Constitution, the Rules of this Court, and any other applicable law.
The Court finds that the Class Notice and methodology set forth in the Settlement Agreement, the Preliminary Approval Order, and this Final Approval Order (i) constitute the most effective and practicable notice of the Final Approval Order, the relief available to Settlement Class Members pursuant to the Final Approval Order,
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and applicable time periods; (ii) constitute due, adequate, and sufficient notice for all other purposes to all Settlement Class Members; and (iii) comply fully with the requirements of Fed. R. Civ. P. 23, the United States Constitution, the Rules of this Court, and any other applicable laws.
Judge Robert Scola, Jr., Wilson et al. v. Volkswagen Group of America, Inc., et al. (Jan. 28, 2020) 17-cv-23033 (S.D. Fla.):
The Court finds that the Class Notice, in the form approved by the Court, was properly disseminated to the Settlement Class pursuant to the Notice Plan and constituted the best practicable notice under the circumstances. The forms and methods of the Notice Plan approved by the Court met all applicable requirements of the Federal Rules of Civil Procedure, the United States Code, the United States Constitution (including the Due Process Clause), and any other applicable law.
Judge Michael Davis, Garcia v. Target Corporation (Jan. 27, 2020) 16-cv-02574 (D. Minn.):
The Court finds that the Notice Plan set forth in Section 4 of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Class of the pendency of this case, certification of the Settlement Class for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.
Judge Bruce Howe Hendricks, In Re: TD Bank, N.A. Debit Card Overdraft Fee Litigation (Jan. 9, 2020) MDL No. 2613, 6:15-MN-02613 (D. S.C.):
The Classes have been notified of the settlement pursuant to the plan approved by the Court. After having reviewed the Declaration of Cameron R. Azari (ECF No. 220-1) and the Supplemental Declaration of Cameron R. Azari (ECF No. 225-1), the Court hereby finds that notice was accomplished in accordance with the Court’s directives. The Court further finds that the notice program constituted the best practicable notice to the Settlement Classes under the circumstances and fully satisfies the requirements of due process and Federal Rule 23.
Judge Margo K. Brodie, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, (Dec. 13, 2019) MDL No. 1720, 05-MD-1720 (E.D. NY.):
The notice and exclusion procedures provided to the Rule 23(b)(3) Settlement Class, including but not limited to the methods of identifying and notifying members of the Rule 23(b)(3) Settlement Class, were fair, adequate, and sufficient, constituted the best practicable notice under the circumstances, and were reasonably calculated to apprise members of the Rule 23(b)(3) Settlement Class of the Action, the terms of the Superseding Settlement Agreement, and their objection rights, and to apprise members of the Rule 23(b)(3) Settlement Class of their exclusion rights, and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, any other applicable laws or rules of the Court, and due process.
Judge Steven Logan, Knapper v. Cox Communications, Inc. (Dec. 13, 2019) 2:17-cv-00913 (D. Ariz.):
The Court finds that the form and method for notifying the class members of the settlement and its terms and conditions was in conformity with this Court’s Preliminary Approval Order (Doc. 120). The Court further finds that the notice satisfied due process principles and the requirements of Federal Rule of Civil Procedure 23(c), and the Plaintiff chose the best practicable notice under the circumstances. The Court further finds that the notice was clearly designed to advise the class members of their rights.
Judge Manish Shah, Prather v. Wells Fargo Bank, N.A. (Dec. 10, 2019) 1:17-cv-00481 (N.D. Ill.):
The Court finds that the Notice Plan set forth in Section VIII of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Class of the pendency of this case, certification of the Settlement Class for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.
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Judge Liam O’Grady, Liggio v. Apple Federal Credit Union (Dec. 6, 2019) 1:18-cv-01059 (E.D. Vir.):
The Court finds that the manner and form of notice (the “Notice Plan”) as provided for in the this Court’s July 2, 2019 Order granting preliminary approval of class settlement, and as set forth in the Parties’ Settlement Agreement was provided to Settlement Class Members by the Settlement Administrator. . . The Notice Plan was reasonably calculated to give actual notice to Settlement Class Members of the right to receive benefits from the Settlement, and to be excluded from or object to the Settlement. The Notice Plan met the requirements of Rule 23(c)(2)(B) and due process and constituted the best notice practicable under the circumstances.
Judge Brian McDonald, Armon et al. v. Washington State University (Nov. 8, 2019) 17-2-23244-1 (consolidated with 17-2-25052-0) (Sup. Ct. Wash.):
The Court finds that the Notice Program, as set forth in the Settlement and effectuated pursuant to the Preliminary Approval Order, satisfied CR 23(c)(2), was the best Notice practicable under the circumstances, was reasonably calculated to provide-and did provide-due and sufficient Notice to the Settlement Class of the pendency of the Litigation; certification of the Settlement Class for settlement purposes only; the existence and terms of the Settlement; the identity of Class Counsel and appropriate information about Class Counsel’s then-forthcoming application for attorneys’ fees and incentive awards to the Class Representatives; appropriate information about how to participate in the Settlement; Settlement Class Members’ right to exclude themselves; their right to object to the Settlement and to appear at the Final Approval Hearing, through counsel if they desired; and appropriate instructions as to how to obtain additional information regarding this Litigation and the Settlement. In addition, pursuant to CR 23(c)(2)(B), the Notice properly informed Settlement Class Members that any Settlement Class Member who failed to opt-out would be prohibited from bringing a lawsuit against Defendant based on or related to any of the claims asserted by Plaintiffs, and it satisfied the other requirements of the Civil Rules.
Judge Andrew J. Guilford, In Re Wells Fargo Collateral Protection Insurance Litigation (Nov. 4, 2019) 8:17-ml-02797 (C.D. Cal.):
Epiq Class Action & Claims Solutions, Inc. (“Epiq”), the parties’ settlement administrator, was able to deliver the court-approved notice materials to all class members, including 2,254,411 notice packets and 1,019,408 summary notices.
Judge Paul L. Maloney, Burch v. Whirlpool Corporation (Oct. 16, 2019) 1:17-cv-00018 (W.D. Mich.):
[T]he Court hereby finds and concludes that members of the Settlement Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of federal and applicable state laws and due process.
Judge Jon Tigar, McKnight v. Uber Technologies, Inc. (Aug. 13, 2019) 3:14-cv-05615 (N.D. Cal.):
The settlement administrator, Epiq Systems, Inc., carried out the notice procedures as outlined in the preliminary approval. ECF No. 162 at 17-18. Notices were mailed to over 22 million class members with a success rate of over 90%. Id. at 17. Epiq also created a website, banner ads, and a toll free number. Id. at 17-18. Epiq estimates that it reached through mail and other formats 94.3% of class members. ECF No. 164 ¶ 28. In light of these actions, and the Court’s prior order granting preliminary approval, the Court finds that the parties have provided adequate notice to class members.
Judge Gene E.K. Pratter, Tashica Fulton-Green et al. v. Accolade, Inc. (Sept. 24, 2019) 18-274 (E.D. Penn.):
The Court finds that such Notice as therein ordered, constitutes the best possible notice practicable under the circumstances and constitutes valid, due, and sufficient notice to all Settlement Class Members in compliance with the requirements of Federal Rule of Civil Procedure 23(c)(2)(B).
Judge Edwin Torres, Burrow, et al. v. Forjas Taurus S.A., et al. (Sept. 6, 2019) 1:16-cv-21606 (S.D. Fla.):
Because the Parties complied with the agreed-to notice provisions as preliminarily approved by this Court, and given that there are no developments or changes in the facts to alter the Court’s previous conclusion, the Court finds that the notice provided in this case satisfied the requirements of due process and of Rule 23(c)(2)(B).
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Judge Amos L. Mazzant, Fessler v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens (Aug. 30, 2019) 4:19-cv-00248 (E.D. Tex.):
The Court has reviewed the Notice Plan and its implementation and efficacy, and finds that it constituted the best notice practicable under the circumstances and was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to the proposed settlement or opt out of the Settlement Class in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution and Rules 23(c) and (e) of the Federal Rules of Civil Procedure.
In addition, Class Notice clearly and concisely stated in plain, easily understood language: (i) the nature of the action; (ii) the definition of the certified 2011 Settlement Class; (iii) the claims and issues of the 2011 Settlement Class; (iv) that a Settlement Class Member may enter an appearance through an attorney if the member so desires; (v) that the Court will exclude from the Settlement Class any member who requests exclusions; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Fed. R. Civ. P. 23(c)(3).
Judge Karon Owen Bowdre, In Re: Community Health Systems, Inc. Customer Data Security Breach Litigation (Aug. 22, 2019) MDL No. 2595 (N.D. Ala.):
The court finds that the Notice Program: (1) satisfied the requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process; (2) was the best practicable notice under the circumstances; (3) reasonably apprised Settlement Class members of the pendency of the Action and their right to object to the settlement or opt-out of the Settlement Class; and (4) was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice. Approximately 90% of the 6,081,189 individuals identified as Settlement Class members received the Initial Postcard Notice of this Settlement Action.
The court further finds, pursuant to Fed. R. Civ. P. 23(c)(2)(B), that the Class Notice adequately informed Settlement Class members of their rights with respect to this action.
Judge Christina A. Snyder, Zaklit, et al. v. Nationstar Mortgage LLC, et al. (Aug. 21, 2019) 5:15-cv-02190 (C.D. Cal.):
The Class Notice provided to the Settlement Class conforms with the requirements of Fed. Rule Civ. Proc. 23, the California and United States Constitutions, and any other applicable law, and constitutes the best notice practicable under the circumstances, by providing individual notice to all Settlement Class Members who could be identified through reasonable effort, and by providing due and adequate notice of the proceedings and of the matters set forth therein to the other Settlement Class Members. The notice fully satisfied the requirements of Due Process. No Settlement Class Members have objected to the terms of the Settlement.
Judge Brian M. Cogan, Luib v. Henkel Consumer Goods Inc. (Aug. 19, 2019) 1:17-cv-03021 (E.D.N.Y.):
The Court finds that the Notice Plan, set forth in the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order: (i) was the best notice practicable under the circumstances; (ii) was reasonably calculated to provide, and did provide, due and sufficient notice to the Settlement Class regarding the existence and nature of the Action, certification of the Settlement Class for settlement purposes only, the existence and terms of the Settlement Agreement, and the rights of Settlement Class members to exclude themselves from the Settlement Agreement, to object and appear at the Final Approval Hearing, and to receive benefits under the Settlement Agreement; and (iii) satisfied the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and all other applicable law.
Judge Yvonne Gonzalez Rogers, In Re: Lithium Ion Batteries Antitrust Litigation (Aug. 16, 2019) 4:13-MD- 02420 (N.D. Cal.):
The proposed notice plan was undertaken and carried out pursuant to this Court’s preliminary approval order. [T]he notice program reached approximately 87 percent of adults who purchased portable computers, power tools, camcorders, or replacement batteries, and these class members were notified an average of 3.5 times each. As a result of Plaintiffs’ notice efforts, in total, 1,025,449 class members have submitted claims. That includes 51,961 new claims, and 973,488 claims filed under the prior settlements.
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Judge Gary W.B. Chang, Robinson v. First Hawaiian Bank (Aug. 8, 2019) 17-1-0167-01 (Cir. Ct. of First Cir. Haw.):
This Court determines that the Notice Program satisfies all of the due process requirements for a class action settlement.
Judge Karin Crump, Hyder, et al. v. Consumers County Mutual Insurance Company (July 30, 2019) D-1-GN-16- 000596 (D. Ct. of Travis County Tex.):
Due and adequate Notice of the pendency of this Action and of this Settlement has been provided to members of the Settlement Class, and this Court hereby finds that the Notice Plan described in the Preliminary Approval Order and completed by Defendant complied fully with the requirements of due process, the Texas Rules of Civil Procedure, and the requirements of due process under the Texas and United States Constitutions, and any other applicable laws.
Judge Wendy Bettlestone, Underwood v. Kohl's Department Stores, Inc., et al. (July 24, 2019) 2:15-cv-00730 (E.D. Penn.):
The Notice, the contents of which were previously approved by the Court, was disseminated in accordance with the procedures required by the Court's Preliminary Approval Order in accordance with applicable law.
Judge Andrew G. Ceresia, J.S.C., Denier, et al. v. Taconic Biosciences, Inc. (July 15, 2019) 00255851 (Sup Ct. N.Y.):
The Court finds that such Notice as therein ordered, constitutes the best possible notice practicable under the circumstances and constitutes valid, due, and sufficient notice to all Settlement Class Members in compliance with the requirements of the CPLR.
Judge Vince G. Chhabria, Parsons v. Kimpton Hotel & Restaurant Group (July 11, 2019) 3:16-cv-05387 (N.D. Cal.):
Pursuant to the Preliminary Approval Order, the notice documents were sent to Settlement Class Members by email or by first-class mail, and further notice was achieved via publication in People magazine, internet banner notices, and internet sponsored search listings. The Court finds that the manner and form of notice (the “Notice Program”) set forth in the Settlement Agreement was provided to Settlement Class Members. The Court finds that the Notice Program, as implemented, was the best practicable under the circumstances. The Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, class certification, the terms of the Settlement, and their rights to opt-out of the Settlement Class and object to the Settlement, Class Counsel’s fee request, and the request for Service Award for Plaintiff. The Notice and Notice Program constituted sufficient notice to all persons entitled to notice. The Notice and Notice Program satisfy all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the constitutional requirement of due process.
Judge Daniel J. Buckley, Adlouni v. UCLA Health Systems Auxiliary, et al. (June 28, 2019) BC589243 (Sup. Ct. Cal.):
The Court finds that the notice to the Settlement Class pursuant to the Preliminary Approval Order was appropriate, adequate, and sufficient, and constituted the best notice practicable under the circumstances to all Persons within the definition of the Settlement Class to apprise interested parties of the pendency of the Action, the nature of the claims, the definition of the Settlement Class, and the opportunity to exclude themselves from the Settlement Class or present objections to the settlement. The notice fully complied with the requirements of due process and all applicable statutes and laws and with the California Rules of Court.
Judge John C. Hayes III, Lightsey, et al. v. South Carolina Electric & Gas Company, a Wholly Owned Subsidiary of SCANA, et al. (June 11, 2019) 2017-CP-25-335 (Ct. of Com. Pleas., S.C.):
These multiple efforts at notification far exceed the due process requirement that the class representative provide the best practical notice. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140 (1974); Hospitality Mgmt. Assoc., Inc. v. Shell Oil, Inc., 356 S.C. 644, 591 S.E.2d 611 (2004). Following this extensive notice campaign reaching over 1.6 million potential class member accounts, Class counsel have received just two objections to the settlement and only 24 opt outs.
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Judge Stephen K. Bushong, Scharfstein v. BP West Coast Products, LLC (June 4, 2019) 1112-17046 (Ore. Cir., County of Multnomah):
The Court finds that the Notice Plan was effected in accordance with the Preliminary Approval and Notice Order, dated March 26, 2019, was made pursuant to ORCP 32 D, and fully met the requirements of the Oregon Rules of Civil Procedure, due process, the United States Constitution, the Oregon Constitution, and any other applicable law.
Judge Cynthia Bashant, Lloyd, et al. v. Navy Federal Credit Union (May 28, 2019) 17-cv-1280 (S.D. Cal.):
This Court previously reviewed, and conditionally approved Plaintiffs’ class notices subject to certain amendments. The Court affirms once more that notice was adequate.
Judge Robert W. Gettleman, Cowen v. Lenny & Larry's Inc. (May 2, 2019) 1:17-cv-01530 (N.D. Ill.):
Notice to the Settlement Class and other potentially interested parties has been provided in accordance with the elements specified by the Court in the preliminary approval order. Adequate notice of the amended settlement and the final approval hearing has also been given. Such notice informed the Settlement Class members of all material elements of the proposed Settlement and of their opportunity to object or comment thereon or to exclude themselves from the Settlement; provided Settlement Class Members adequate instructions and a means to obtain additional information; was adequate notice under the circumstances; was valid, due, and sufficient notice to all Settlement Class [M]embers; and complied fully with the laws of the State of Illinois, Federal Rules of Civil Procedure, the United States Constitution, due process, and other applicable law.
Judge Edward J. Davila, In re HP Printer Firmware Update Litigation (Apr. 25, 2019) 5:16-cv-05820 (N.D. Cal.):
Due and adequate notice has been given of the Settlement as required by the Preliminary Approval Order. The Court finds that notice of this Settlement was given to Class Members in accordance with the Preliminary Approval Order and constituted the best notice practicable of the proceedings and matters set forth therein, including the Settlement, to all Persons entitled to such notice, and that this notice satisfied the requirements of Federal Rule of Civil Procedure 23 and of due process.
Judge Claudia Wilken, Naiman v. Total Merchant Services, Inc., et al. (Apr. 16, 2019) 4:17-cv-03806 (N.D. Cal.):
The Court also finds that the notice program satisfied the requirements of Federal Rule of Civil Procedure 23 and due process. The notice approved by the Court and disseminated by Epiq constituted the best practicable method for informing the class about the Final Settlement Agreement and relevant aspects of the litigation.
Judge Paul Gardephe, 37 Besen Parkway, LLC v. John Hancock Life Insurance Company (U.S.A.) (Mar. 31, 2019) 15- cv-9924 (S.D.N.Y.):
The Notice given to Class Members complied in all respects with the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process and provided due and adequate notice to the Class.
Judge Alison J. Nathan, Pantelyat v. Bank of America, N.A., et al. (Jan. 31, 2019) 16-cv-8964 (S.D.N.Y.):
The Class Notice provided to the Settlement Class in accordance with the Preliminary Approval Order was the best notice practicable under the circumstances, and constituted due and sufficient notice of the proceedings and matters set forth therein, to all persons entitled to notice. The notice fully satisfied the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and all other applicable law and rules.
Judge Kenneth M. Hoyt, Al's Pals Pet Card, LLC, et al v. Woodforest National Bank, N.A., et al. (Jan. 30, 2019) 4:17- cv-3852 (S.D. Tex.):
[T]he Court finds that the class has been notified of the Settlement pursuant to the plan approved by the Court. The Court further finds that the notice program constituted the best practicable notice to the class under the circumstances and fully satisfies the requirements of due process, including Fed. R. Civ. P. 23(e)(1) and 28 U.S.C. § 1715.
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Judge Robert M. Dow, Jr., In re: Dealer Management Systems Antitrust Litigation (Jan. 23, 2019) MDL No. 2817 (N.D. Ill.):
The Court finds that the Settlement Administrator fully complied with the Preliminary Approval Order and that the form and manner of providing notice to the Dealership Class of the proposed Settlement with Reynolds was the best notice practicable under the circumstances, including individual notice to all members of the Dealership Class who could be identified through the exercise of reasonable effort. The Court further finds that the notice program provided due and adequate notice of these proceedings and of the matters set forth therein, including the terms of the Agreement, to all parties entitled to such notice and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1715(b), and constitutional due process.
Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (Ford) (Dec. 20, 2018) MDL No. 2599 (S.D. Fla.):
The record shows and the Court finds that the Class Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval Order. The Court finds that such Class Notice: .(i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense) and the binding effect of the orders and Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States Constitution (including the Due Process Clause), FED. R. Civ. P. 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.
Judge Herndon, Hale v. State Farm Mutual Automobile Insurance Company, et al. (Dec. 16, 2018) 3:12-cv-00660 (S.D. Ill.):
The Class here is estimated to include approximately 4.7 million members. Approximately 1.43 million of them received individual postcard or email notice of the terms of the proposed Settlement, and the rest were notified via a robust publication program “estimated to reach 78.8% of all U.S. Adults Aged 35+ approximately 2.4 times.” Doc. 966-2 ¶¶ 26, 41. The Court previously approved the notice plan (Doc. 947), and now, having carefully reviewed the declaration of the Notice Administrator (Doc. 966-2), concludes that it was fully and properly executed, and reflected “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” See Fed. R. Civ. P. 23(c)(2)(B). The Court further concludes that CAFA notice was properly effectuated to the attorneys general and insurance commissioners of all 50 states and District of Columbia.
Judge Jesse M. Furman, Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al. (Nov. 13, 2018) 14-cv- 7126 (S.D.N.Y.):
The mailing and distribution of the Notice to all members of the Settlement Class who could be identified through reasonable effort, the publication of the Summary Notice, and the other Notice efforts described in the Motion for Final Approval, as provided for in the Court's June 26, 2018 Preliminary Approval Order, satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and constitute due and sufficient notice to all Persons entitled to notice.
Judge William L. Campbell, Jr., Ajose v. Interline Brands, Inc. (Oct. 23, 2018) 3:14-cv-01707 (M.D. Tenn.):
The Court finds that the Notice Plan, as approved by the Preliminary Approval Order: (i) satisfied the requirements of Rule 23(c)(3) and due process; (ii) was reasonable and the best practicable notice under the circumstances; (iii) reasonably apprised the Settlement Class of the pendency of the action, the terms of the Agreement, their right to object to the proposed settlement or opt out of the Settlement Class, the right to appear at the Final Fairness Hearing, and the Claims Process; and (iv) was reasonable and constituted due, adequate, and sufficient notice to all those entitled to receive notice.
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Judge Joseph C. Spero, Abante Rooter and Plumbing v. Pivotal Payments Inc., d/b/a/ Capital Processing Network and CPN (Oct. 15, 2018) 3:16-cv-05486 (N.D. Cal.):
[T]the Court finds that notice to the class of the settlement complied with Rule 23(c)(3) and (e) and due process. Rule 23(e)(1) states that “[t]he court must direct notice in a reasonable manner to all class members who would be bound by” a proposed settlement, voluntary dismissal, or compromise. Class members are entitled to the “best notice that is practicable under the circumstances” of any proposed settlement before it is finally approved by the Court. Fed. R. Civ. P. 23(c)(2)(B)…The notice program included notice sent by first class mail to 1,750,564 class members and reached approximately 95.2% of the class.
Judge Marcia G. Cooke, Dipuglia v. US Coachways, Inc. (Sept. 28, 2018) 1:17-cv-23006 (S.D. Fla):
The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the Case 1:17-cv-23006-MGC Document 66 Entered on FLSD Docket 09/28/2018 Page 3 of 7 4 proceedings and of the matters set forth therein, including the proposed settlement set forth in the Agreement, to all persons entitled to such notice and said notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.
Judge Beth Labson Freeman, Gergetz v. Telenav, Inc. (Sept. 27, 2018) 5:16-cv-04261 (N.D. Cal.):
The Court finds that the Notice and Notice Plan implemented pursuant to the Settlement Agreement, which consists of individual notice sent via first-class U.S. Mail postcard, notice provided via email, and the posting of relevant Settlement documents on the Settlement Website, has been successfully implemented and was the best notice practicable under the circumstances and: (1) constituted notice that was reasonably calculated, under the circumstances, to apprise the Settlement Class Members of the pendency of the Action, their right to object to or to exclude themselves from the Settlement Agreement, and their right to appear at the Final Approval Hearing; (2) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to receive notice; and (3) met all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause, and the Rules of this Court.
Judge M. James Lorenz, Farrell v. Bank of America, N.A. (Aug. 31, 2018) 3:16-cv-00492 (S.D. Cal.):
The Court therefore finds that the Class Notices given to Settlement Class members adequately informed Settlement Class members of all material elements of the proposed Settlement and constituted valid, due, and sufficient notice to Settlement Class members. The Court further finds that the Notice Program satisfies due process and has been fully implemented.
Judge Dean D. Pregerson, Falco et al. v. Nissan North America, Inc. et al. (July 16, 2018) 2:13-cv-00686 (C.D. Cal.):
Notice to the Settlement Class as required by Rule 23(e) of the Federal Rules of Civil Procedure has been provided in accordance with the Court’s Preliminary Approval Order, and such Notice by first-class mail was given in an adequate and sufficient manner, and constitutes the best notice practicable under the circumstances, and satisfies all requirements of Rule 23(e) and due process.
Judge Lynn Adelman, In re: Windsor Wood Clad Window Product Liability Litigation (July 16, 2018) MDL No. 16-MD- 02688 (E.D. Wis.):
The Court finds that the Notice Program was appropriately administered, and was the best practicable notice to the Class under the circumstances, satisfying the requirements of Rule 23 and due process. The Notice Program, constitutes due, adequate, and sufficient notice to all persons, entities, and/or organizations entitled to receive notice; fully satisfied the requirements of the Constitution of the United States (including the Due Process Clause), Rule 23 of the Federal Rules of Civil Procedure, and any other applicable law; and is based on the Federal Judicial Center’s illustrative class action notices.
Judge Stephen K. Bushong, Surrett et al. v. Western Culinary Institute, et al. (June 18, 2018) 0803-03530 (Ore. Cir. County of Multnomah):
This Court finds that the distribution of the Notice of Settlement was effected in accordance with the Preliminary Approval/Notice Order, dated February 9, 2018, was made pursuant to ORCP 32 D, and fully met
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the requirements of the Oregon Rules of Civil Procedure, due process, the United States Constitution, the Oregon Constitution, and any other applicable law.
Judge Jesse M. Furman, Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al. (June 1, 2018) 14-cv- 7126 (S.D.N.Y.):
The mailing of the Notice to all members of the Settlement Class who could be identified through reasonable effort, the publication of the Summary Notice, and the other Notice distribution efforts described in the Motion for Final Approval, as provided for in the Court’s October 24, 2017 Order Providing for Notice to the Settlement Class and Preliminarily Approving the Plan of Distribution, satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and constitute due and sufficient notice to all Persons entitled to notice.
Judge Brad Seligman, Larson v. John Hancock Life Insurance Company (U.S.A.) (May 8, 2018) RG16813803 (Cal. Sup. Ct., County of Alameda):
The Court finds that the Class Notice and dissemination of the Class Notice as carried out by the Settlement Administrator complied with the Court’s order granting preliminary approval and all applicable requirements of law, including, but not limited to California Rules of Court, rule 3.769(f) and the Constitutional requirements of due process, and constituted the best notice practicable under the circumstances and sufficient notice to all persons entitled to notice of the Settlement.
[T]he dissemination of the Class Notice constituted the best notice practicable because it included mailing individual notice to all Settlement Class Members who are reasonably identifiable using the same method used to inform class members of certification of the class, following a National Change of Address search and run through the LexisNexis Deceased Database.
Judge Federico A. Moreno, Masson v. Tallahassee Dodge Chrysler Jeep, LLC (May 8, 2018) 17-cv-22967 (S.D. Fla.):
The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the proceedings and of the matters set forth therein, including the proposed settlement set forth in the Agreement, to all persons entitled to such notice and said notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.
Chancellor Russell T. Perkins, Morton v. GreenBank (Apr. 18, 2018) 11-135-IV (20th Jud. Dist. Tenn.):
The Notice Program as provided or in the Agreement and the Preliminary Amended Approval Order constituted the best notice practicable under the circumstances, including individual notice to all Settlement Class members who could be identified through reasonable effort. The Notice Plan fully satisfied the requirements of Tennessee Rule of Civil Procedure 23.03, due process and any other applicable law.
Judge James V. Selna, Callaway v. Mercedes-Benz USA, LLC (Mar. 8, 2018) 8:14-cv-02011 (C.D. Cal.):
The Court finds that the notice given to the Class was the best notice practicable under the circumstances of this case, and that the notice complied with the requirements of Federal Rule of Civil Procedure 23 and due process.
The notice given by the Class Administrator constituted due and sufficient notice to the Settlement Class, and adequately informed members of the Settlement Class of their right to exclude themselves from the Settlement Class so as not to be bound by the terms of the Settlement Agreement and how to object to the Settlement.
The Court has considered and rejected the objection . . . [regarding] the adequacy of the notice plan. The notice given provided ample information regarding the case. Class members also had the ability to seek additional information from the settlement website, from Class Counsel or from the Class Administrator
Judge Thomas M. Durkin, Vergara, et al., v. Uber Technologies, Inc. (Mar. 1, 2018) 1:15-CV-06972 (N.D. Ill.):
The Court finds that the Notice Plan set forth in Section IX of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Classes of the pendency of this case,
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certification of the Settlement Classes for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law. Further, the Court finds that Defendant has timely satisfied the notice requirements of 28 U.S.C. Section 1715.
Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (Honda & Nissan) (Feb. 28, 2018) MDL No. 2599 (S.D. Fla.):
The Court finds that the Class Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval Order. The Court finds that such Class Notice: (i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense) and the binding effect of the orders and Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States Constitution (including the Due Process Clause), FED R. CIV. R. 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.
Judge Susan O. Hickey, Larey v. Allstate Property and Casualty Insurance Company (Feb. 9, 2018) 4:14-cv-04008 (W.D. Kan.):
Based on the Court’s review of the evidence submitted and argument of counsel, the Court finds and concludes that the Class Notice and Claim Form was mailed to potential Class Members in accordance with the provisions of the Preliminary Approval Order, and together with the Publication Notice, the automated toll- free telephone number, and the settlement website: (i) constituted, under the circumstances, the most effective and practicable notice of the pendency of the Lawsuit, this Stipulation, and the Final Approval Hearing to all Class Members who could be identified through reasonable effort; and (ii) met all requirements of the Federal Rules of Civil Procedure, the requirements of due process under the United States Constitution, and the requirements of any other applicable rules or law.
Judge Muriel D. Hughes, Glaske v. Independent Bank Corporation (Jan. 11, 2018) 13-009983 (Cir. Ct. Mich.):
The Court-approved Notice Plan satisfied due process requirements . . . The notice, among other things, was calculated to reach Settlement Class Members because it was sent to their last known email or mail address in the Bank’s files.
Judge Naomi Reice Buchwald, Orlander v. Staples, Inc. (Dec. 13, 2017) 13-CV-0703 (S.D.N.Y.):
The Notice of Class Action Settlement (“Notice”) was given to all Class Members who could be identified with reasonable effort in accordance with the terms of the Settlement Agreement and Preliminary Approval Order. The form and method of notifying the Class of the pendency of the Action as a class action and the terms and conditions of the proposed Settlement met the requirements of Federal Rule of Civil Procedure 23 and the Constitution of the United States (including the Due Process Clause); and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto.
Judge Lisa Godbey Wood, T.A.N. v. PNI Digital Media, Inc. (Dec. 1, 2017) 2:16-cv-132 (S.D. GA.):
Notice to the Settlement Class Members required by Rule 23 has been provided as directed by this Court in the Preliminary Approval Order, and such notice constituted the best notice practicable, including, but not limited to, the forms of notice and methods of identifying and providing notice to the Settlement Class Members, and satisfied the requirements of Rule 23 and due process, and all other applicable laws.
Judge Robin L. Rosenberg, Gottlieb v. Citgo Petroleum Corporation (Nov. 29, 2017) 9:16-cv-81911 (S.D. Fla):
The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the proceedings and of the matters set forth therein, including the proposed settlement set forth in the Settlement Agreement, to all persons entitled to such notice and said
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notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.
Judge Donald M. Middlebrooks, Mahoney v TT of Pine Ridge, Inc. (Nov. 20, 2017) 9:17-cv-80029 (S.D. Fla.):
Based on the Settlement Agreement, Order Granting Preliminary Approval of Class Action Settlement Agreement, and upon the Declaration of Cameron Azari, Esq. (DE 61-1), the Court finds that Class Notice provided to the Settlement Class was the best notice practicable under the circumstances, and that it satisfied the requirements of due process and Federal Rule of Civil Procedure 23(e)(1).
Judge Gerald Austin McHugh, Sobiech v. U.S. Gas & Electric, Inc., i/t/d/b/a Pennsylvania Gas & Electric, et al. (Nov. 8, 2017) 2:14-cv-04464 (E.D. Penn.):
Notice has been provided to the Settlement Class of the pendency of this Action, the conditional certification of the Settlement Class for purposes of this Settlement, and the preliminary approval of the Settlement Agreement and the Settlement contemplated thereby. The Court finds that the notice provided was the best notice practicable under the circumstances to all persons entitled to such notice and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.
Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (BMW, Mazda, Toyota, & Subaru) (Nov. 1, 2017) MDL No. 2599 (S.D. Fla.):
[T]he Court finds that the Class Notice has been given to the Class in the manner approved in the Preliminary Approval Order. The Class Notice: (i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense), and the binding effect of the orders and Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States Constitution (including the Due Process Clause), Federal Rule of Civil Procedure 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.
Judge Charles R. Breyer, In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation (May 17, 2017) MDL No. 2672 (N.D. Cal.):
The Court is satisfied that the Notice Program was reasonably calculated to notify Class Members of the proposed Settlement. The Notice “apprise[d] interested parties of the pendency of the action and afford[ed] them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, the Notice Administrator reports that the notice delivery rate of 97.04% “exceed[ed] the expected range and is indicative of the extensive address updating and re-mailing protocols used.” (Dkt. No. 3188-2 ¶ 24.)
Judge Rebecca Brett Nightingale, Ratzlaff et al. v. BOKF, NA d/b/a Bank of Oklahoma et al. (May 15, 2017) No. CJ- 2015-00859 (Dist. Ct. Okla.):
The Court-approved Notice Plan satisfies Oklahoma law because it is "reasonable" (12 O.S. § 2023(E)(I)) and it satisfies due process requirements because it was "reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at 314-15).
Judge Joseph F. Bataillon, Klug v. Watts Regulator Company (Apr. 13, 2017) No. 8:15-cv-00061 (D. Neb.):
The court finds that the notice to the Settlement Class of the pendency of the Class Action and of this settlement, as provided by the Settlement Agreement and by the Preliminary Approval Order dated December 7, 2017, constituted the best notice practicable under the circumstances to all persons and entities within the definition of the Settlement Class, and fully complied with the requirements of Federal Rules of Civil Procedure Rule 23 and due process. Due and sufficient proof of the execution of the Notice Plan as outlined in the Preliminary Approval Order has been filed.
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Judge Yvonne Gonzalez Rogers, Bias v. Wells Fargo & Company, et al. (Apr. 13, 2017) 4:12-cv-00664 (N.D. Cal.):
The form, content, and method of dissemination of Notice of Settlement given to the Settlement Class was adequate and reasonable and constituted the best notice practicable under the circumstances, including both individual notice to all Settlement Class Members who could be identified through reasonable effort and publication notice.
Notice of Settlement, as given, complied with the requirements of Rule 23 of the Federal Rules of Civil Procedure, satisfied the requirements of due process, and constituted due and sufficient notice of the matters set forth herein.
Notice of the Settlement was provided to the appropriate regulators pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715(c)(1).
Judge Carlos Murguia, Whitton v. Deffenbaugh Industries, Inc., et al (Dec. 14, 2016) 2:12-cv-02247 (D. Kan.) and Gary, LLC v. Deffenbaugh Industries, Inc., et al (Dec. 14, 2016) 2:13-cv-2634 (D. Kan.):
The Court determines that the Notice Plan as implemented was reasonably calculated to provide the best notice practicable under the circumstances and contained all required information for members of the proposed Settlement Class to act to protect their interests. The Court also finds that Class Members were provided an adequate period of time to receive Notice and respond accordingly.
Judge Yvette Kane, In re: Shop-Vac Marketing and Sales Practices Litigation (Dec. 9, 2016) MDL No. 2380 (M.D. Pa.):
The Court hereby finds and concludes that members of the Settlement Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and all other applicable laws.
Judge Timothy D. Fox, Miner v. Philip Morris USA, Inc. (Nov. 21, 2016) 60CV03-4661 (Ark. Cir.):
The Court finds that the Settlement Notice provided to potential members of the Class constituted the best and most practicable notice under the circumstances, thereby complying fully with due process and Rule 23 of the Arkansas Rules of Civil Procedure.
Judge Eileen Bransten, In re: HSBC Bank USA, N.A., Checking Account Overdraft Litigation (Oct. 13, 2016) 650562/2011 (Sup. Ct. N.Y.):
This Court finds that the Notice Program and the Notice provided to Settlement Class members fully satisfied the requirements of constitutional due process, the N.Y. C.P.L.R., and any other applicable laws, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all persons entitled thereto.
Judge Jerome B. Simandle, In re: Caterpillar, Inc. C13 and C15 Engine Products Liability Litigation (Sept. 20, 2016) MDL No. 2540 (D. N.J.):
The Court hereby finds that the Notice provided to the Settlement Class constituted the best notice practicable under the circumstances. Said Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the terms of the Settlement Agreement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Fed. R. Civ. P. 23, requirements of due process and any other applicable law.
Judge Marcia G. Cooke, Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co. (Apr. 11, 2016) 14-23120 (S.D. Fla.):
Pursuant to the Court’s Preliminary Approval Order, the Settlement Administrator, Epiq Systems, Inc. [Hilsoft Notifications], has complied with the approved notice process as confirmed in its Declaration filed with the Court on March 23, 2016. The Court finds that the notice process was designed to advise Class Members of their rights. The form and method for notifying Class Members of the settlement and its terms and conditions was in conformity with this Court’s Preliminary Approval Order, constituted the best notice practicable under the circumstances, and satisfied the requirements of Federal Rule of Civil Procedure
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23(c)(2)(B), the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, and due process under the United States Constitution and other applicable laws.
Judge Yvonne Gonzalez Rogers, In Re: Lithium Ion Batteries Antitrust Litigation (Mar. 22, 2016) 4:13-MD-02420 (N.D. Cal.):
From what I could tell, I liked your approach and the way you did it. I get a lot of these notices that I think are all legalese and no one can really understand them. Yours was not that way.
Judge Christopher S. Sontchi, In re: Energy Future Holdings Corp, et al., (July 30, 2015) 14-10979 (Bankr. D. Del.):
Notice of the Asbestos Bar Date as set forth in this Asbestos Bar Date Order and in the manner set forth herein constitutes adequate and sufficient notice of the Asbestos Bar Date and satisfies the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.
Judge David C. Norton, In re: MI Windows and Doors Inc. Products Liability Litigation (July 22, 2015) MDL No. 2333, 2:12-mn-00001 (D. S.C.):
The court finds that the Notice Plan, as described in the Settlement and related declarations, has been faithfully carried out and constituted the best practicable notice to Class Members under the circumstances of this Action, and was reasonable and constituted due, adequate, and sufficient notice to all Persons entitled to be provided with Notice.
The court also finds that the Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of: (1) the pendency of this class action; (2) their right to exclude themselves from the Settlement Class and the proposed Settlement; (3) their right to object to any aspect of the proposed Settlement (including final certification of the Settlement Class, the fairness, reasonableness, or adequacy of the proposed Settlement, the adequacy of the Settlement Class’s representation by Named Plaintiffs or Class Counsel, or the award of attorney’s and representative fees); (4) their right to appear at the fairness hearing (either on their own or through counsel hired at their own expense); and (5) the binding and preclusive effect of the orders and Final Order and Judgment in this Action, whether favorable or unfavorable, on all Persons who do not request exclusion from the Settlement Class. As such, the court finds that the Notice fully satisfied the requirements of the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the rules of this court, and any other applicable law, and provided sufficient notice to bind all Class Members, regardless of whether a particular Class Member received actual notice.
Judge Robert W. Gettleman, Adkins v. Nestle Purina PetCare Company, et al., (June 23, 2015) 12-cv-2871 (N.D. Ill.):
Notice to the Settlement Class and other potentially interested parties has been provided in accordance with the notice requirements specified by the Court in the Preliminary Approval Order. Such notice fully and accurately informed the Settlement Class members of all material elements of the proposed Settlement and of their opportunity to object or comment thereon or to exclude themselves from the Settlement; provided Settlement Class Members adequate instructions and a variety of means to obtain additional information; was the best notice practicable under the circumstances; was valid, due, and sufficient notice to all Settlement Class members; and complied fully with the laws of the State of Illinois, Federal Rules of Civil Procedure, the United States Constitution, due process, and other applicable law.
Judge James Lawrence King, Steen v. Capital One, N.A. (May 22, 2015) 2:10-cv-01505 (E.D. La.) and 1:10-cv-22058 (S.D. Fla.) as part of In Re: Checking Account Overdraft Litigation, MDL 2036 (S.D. Fla.):
The Court finds that the Settlement Class Members were provided with the best practicable notice; the notice was reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'' Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at 314-15). This Settlement with Capital One was widely publicized, and any Settlement Class Member who wished to express comments or objections had ample opportunity and means to do so. Azari Decl. ¶¶ 30-39.
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Judge Rya W. Zobel, Gulbankian et al. v. MW Manufacturers, Inc., (Dec. 29, 2014) 1:10-cv-10392 (D. Mass.):
This Court finds that the Class Notice was provided to the Settlement Class consistent with the Preliminary Approval Order and that it was the best notice practicable and fully satisfied the requirements of the Federal Rules of Civil Procedure, due process, and applicable law. The Court finds that the Notice Plan that was implemented by the Claims Administrator satisfies the requirements of FED. R. CIV. P. 23, 28 U.S.C. § 1715, and Due Process, and is the best notice practicable under the circumstances. The Notice Plan constituted due and sufficient notice of the Settlement, the Final Approval Hearing, and the other matters referred to in the notices. Proof of the giving of such notices has been filed with the Court via the Azari Declaration and its exhibits.
Judge Edward J. Davila, Rose v. Bank of America Corporation, and FIA Card Services, N.A., (Aug. 29, 2014) 5:11-CV-02390; 5:12-CV-0400 (N.D. Cal.):
The Court finds that the notice was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of this action, all material elements of the Settlement, the opportunity for Settlement Class Members to exclude themselves from, object to, or comment on the settlement and to appear at the final approval hearing. The notice was the best notice practicable under the circumstances, satisfying the requirements of Rule 23(c)(2)(B); provided notice in a reasonable manner to all class members, satisfying Rule 23(e)(1)(B); was adequate and sufficient notice to all Class Members; and, complied fully with the laws of the United States and of the Federal Rules of Civil Procedure, due process and any other applicable rules of court.
Judge James A. Robertson, II, Wong et al. v. Alacer Corp. (June 27, 2014) CGC-12-519221 (Cal. Super. Ct.):
Notice to the Settlement Class has been provided in accordance with the Preliminary Approval Order. Based on the Declaration of Cameron Azari dated March 7, 2014, such Class Notice has been provided in an adequate and sufficient manner, constitutes the best notice practicable under the circumstances and satisfies the requirements of California Civil Code Section 1781, California Civil Code of Civil Procedure Section 382, Rules 3.766 of the California Rules of Court, and due process.
Judge John Gleeson, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, (Dec. 13, 2013) 05-md-01720, MDL No. 1720 (E.D. NY.):
The Class Administrator notified class members of the terms of the proposed settlement through a mailed notice and publication campaign that included more than 20 million mailings and publication in more than 400 publications. The notice here meets the requirements of due process and notice standards… The objectors’ complaints provide no reason to conclude that the purposes and requirements of a notice to a class were not met here.
Judge Lance M. Africk, Evans, et al. v. TIN, Inc., et al, (July 7, 2013) 2:11-cv-02067 (E.D. La.):
The Court finds that the dissemination of the Class Notice… as described in Notice Agent Lauran Schultz’s Declaration: (a) constituted the best practicable notice to Class Members under the circumstances; (b) constituted notice that was reasonably calculated, under the circumstances…; (c) constituted notice that was reasonable, due, adequate, and sufficient; and (d) constituted notice that fully satisfied all applicable legal requirements, including Rules 23(c)(2)(B) and (e)(1) of the Federal Rules of Civil Procedure, the United States Constitution (including Due Process Clause), the Rules of this Court, and any other applicable law, as well as complied with the Federal Judicial Center’s illustrative class action notices.
Judge Edward M. Chen, Marolda v. Symantec Corporation, (Apr. 5, 2013) 08-cv-05701 (N.D. Cal.):
Approximately 3.9 million notices were delivered by email to class members, but only a very small percentage objected or opted out . . . The Court . . . concludes that notice of settlement to the class was adequate and satisfied all requirements of Federal Rule of Civil Procedure 23(e) and due process. Class members received direct notice by email, and additional notice was given by publication in numerous widely circulated publications as well as in numerous targeted publications. These were the best practicable means of informing class members of their rights and of the settlement’s terms.
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Judge Ann D. Montgomery, In re Zurn Pex Plumbing Products Liability Litigation, (Feb. 27, 2013) 0:08-cv-01958 (D. Minn.):
The parties retained Hilsoft Notifications ("Hilsoft"), an experienced class-notice consultant, to design and carry out the notice plan. The form and content of the notices provided to the class were direct, understandable, and consistent with the "plain language" principles advanced by the Federal Judicial Center.
The notice plan's multi-faceted approach to providing notice to settlement class members whose identity is not known to the settling parties constitutes "the best notice [*26] that is practicable under the circumstances" consistent with Rule 23(c)(2)(B).
Magistrate Judge Stewart, Gessele et al. v. Jack in the Box, Inc., (Jan. 28, 2013) 3:10-cv-960 (D. Ore.):
Moreover, plaintiffs have submitted [a] declaration from Cameron Azari (docket #129), a nationally recognized notice expert, who attests that fashioning an effective joint notice is not unworkable or unduly confusing. Azari also provides a detailed analysis of how he would approach fashioning an effective notice in this case.
Judge Carl J. Barbier, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Medical Benefits Settlement), (Jan. 11, 2013) MDL No. 2179 (E.D. La.):
Through August 9, 2012, 366,242 individual notices had been sent to potential [Medical Benefits] Settlement Class Members by postal mail and 56,136 individual notices had been e-mailed. Only 10,700 mailings—or 3.3%—were known to be undeliverable. (Azari Decl. ¶¶ 8, 9.) Notice was also provided through an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, highly-trafficked websites, and Sunday local newspapers (via newspaper supplements). Notice was also provided in non-measured trade, business and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The combined measurable paid print, television, radio, and Internet effort reached an estimated 95% of adults aged 18+ in the Gulf Coast region an average of 10.3 times each, and an estimated 83% of all adults in the United States aged 18+ an average of 4 times each. (Id. ¶¶ 8, 10.) All notice documents were designed to be clear, substantive, and informative. (Id. ¶ 5.)
The Court received no objections to the scope or content of the [Medical Benefits] Notice Program. (Azari Supp. Decl. ¶ 12.) The Court finds that the Notice and Notice Plan as implemented satisfied the best notice practicable standard of Rule 23(c) and, in accordance with Rule 23(e)(1), provided notice in a reasonable manner to Class Members who would be bound by the Settlement, including individual notice to all Class Members who could be identified through reasonable effort. Likewise, the Notice and Notice Plan satisfied the requirements of Due Process. The Court also finds the Notice and Notice Plan satisfied the requirements of CAFA.
Judge Carl J. Barbier, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Economic and Property Damages Settlement), (Dec. 21, 2012) MDL No. 2179 (E.D. La.):
The Court finds that the Class Notice and Class Notice Plan satisfied and continue to satisfy the applicable requirements of Federal Rule of Civil Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C. § 1711 et seq.), and the Due Process Clause of the United States Constitution (U.S. Const., amend. V), constituting the best notice that is practicable under the circumstances of this litigation. The notice program surpassed the requirements of Due Process, Rule 23, and CAFA. Based on the factual elements of the Notice Program as detailed below, the Notice Program surpassed all of the requirements of Due Process, Rule 23, and CAFA.
The Notice Program, as duly implemented, surpasses other notice programs that Hilsoft Notifications has designed and executed with court approval. The Notice Program included notification to known or potential Class Members via postal mail and e-mail; an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, and Sunday local newspapers. Notice placements also appeared in non-measured trade, business, and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The Notice Program met the objective of reaching the greatest possible number of class members and providing them with every reasonable opportunity to understand their legal rights. See Azari Decl. ¶¶ 8, 15, 68. The
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Notice Program was substantially completed on July 15, 2012, allowing class members adequate time to make decisions before the opt-out and objections deadlines.
The media notice effort alone reached an estimated 95% of adults in the Gulf region an average of 10.3 times each, and an estimated 83% of all adults in the United States an average of 4 times each. These figures do not include notice efforts that cannot be measured, such as advertisements in trade publications and sponsored search engine listings. The Notice Program fairly and adequately covered and notified the class without excluding any demographic group or geographic area, and it exceeded the reach percentage achieved in most other court-approved notice programs.
Judge Alonzo Harris, Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. v. FairPay Solutions, Inc., (Aug. 17, 2012) 12-C-1599 (27th Jud. D. Ct. La.):
Notice given to Class Members and all other interested parties pursuant to this Court’s order of April 18, 2012, was reasonably calculated to apprise interested parties of the pendency of the action, the certification of the Class as Defined for settlement purposes only, the terms of the Settlement Agreement, Class Members rights to be represented by private counsel, at their own costs, and Class Members rights to appear in Court to have their objections heard, and to afford persons or entities within the Class Definition an opportunity to exclude themselves from the Class. Such notice complied with all requirements of the federal and state constitutions, including the Due Process Clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Class as Defined.
Judge James Lawrence King, In re Checking Account Overdraft Litigation (IBERIABANK), (Apr. 26, 2012) MDL No. 2036 (S.D. Fla):
The Court finds that the Notice previously approved was fully and properly effectuated and was sufficient to satisfy the requirements of due process because it described “the substantive claims . . . [and] contained information reasonably necessary to [allow Settlement Class Members to] make a decision to remain a class member and be bound by the final judgment.'' In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104-05 (5th Cir. 1977). The Notice, among other things, defined the Settlement Class, described the release as well as the amount and method and manner of proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their rights to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. The Notice also informed Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could obtain more information, such as access to a full copy of the Agreement. Further, the Notice described in summary form the fact that Class Counsel would be seeking attorneys' fees of up to 30 percent of the Settlement. Settlement Class Members were provided with the best practicable notice “reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.'' Mullane, 339 U.S. at 314. The content of the Notice fully complied with the requirements of Rule 23.
Judge Bobby Peters, Vereen v. Lowe’s Home Centers, (Apr. 13, 2012) SU10-CV-2267B (Ga. Super. Ct.):
The Court finds that the Notice and the Notice Plan was fulfilled, in accordance with the terms of the Settlement Agreement, the Amendment, and this Court’s Preliminary Approval Order and that this Notice and Notice Plan constituted the best practicable notice to Class Members under the circumstances of this action, constituted due and sufficient Notice of the proposed Settlement to all persons entitled to participate in the proposed Settlement, and was in full compliance with Ga. Code Ann § 9-11-23 and the constitutional requirements of due process. Extensive notice was provided to the class, including point of sale notification, publication notice and notice by first-class mail for certain potential Class Members.
The affidavit of the notice expert conclusively supports this Court’s finding that the notice program was adequate, appropriate, and comported with Georgia Code Ann. § 9-11-23(b)(2), the Due Process Clause of the Constitution, and the guidance for effective notice articulate in the FJC’s Manual for Complex Litigation, 4th.
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Judge Lee Rosenthal, In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, (Mar. 2, 2012) MDL No. 2046 (S.D. Tex.):
The notice that has been given clearly complies with Rule 23(e)(1)’s reasonableness requirement… Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, ¶ 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice “were written in easy-to-understand plain English.” In re Black Farmers Discrimination Litig., — F. Supp. 2d —, 2011 WL 5117058, at *23 (D.D.C. 2011); accord AGGREGATE LITIGATION § 3.04(c).15 The notice provided “satisf[ies] the broad reasonableness standards imposed by due process” and Rule 23. Katrina Canal Breaches, 628 F.3d at 197.
Judge John D. Bates, Trombley v. National City Bank, (Dec. 1, 2011) 1:10-CV-00232 (D.D.C.) as part of In Re: Checking Account Overdraft Litigation, MDL 2036 (S.D. Fla.):
The form, content, and method of dissemination of Notice given to the Settlement Class were in full compliance with the Court’s January 11, 2011 Order, the requirements of Fed. R. Civ. P. 23(e), and due process. The notice was adequate and reasonable, and constituted the best notice practicable under the circumstances. In addition, adequate notice of the proceedings and an opportunity to participate in the final fairness hearing were provided to the Settlement Class.
Judge Robert M. Dow, Jr., Schulte v. Fifth Third Bank, (July 29, 2011) 1:09-cv-6655 (N.D. Ill.):
The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members.
Judge Ellis J. Daigle, Williams v. Hammerman & Gainer Inc., (June 30, 2011) 11-C-3187-B (27th Jud. D. Ct. La.):
Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings—including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court’s order of 30th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members’ right to be represented by private counsel, at their own cost, and Settlement Class members’ right to appear in Court to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class.
Judge Stefan R. Underhill, Mathena v. Webster Bank, N.A., (Mar. 24, 2011) 3:10-cv-1448 (D. Conn.) as part of In Re: Checking Account Overdraft Litigation, MDL 2036 (S.D. Fla.):
The form, content, and method of dissemination of Notice given to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process.
Judge Ted Stewart, Miller v. Basic Research, LLC, (Sept. 2, 2010) 2:07-cv-871 (D. Utah):
Plaintiffs state that they have hired a firm specializing in designing and implementing large scale, unbiased, legal notification plans. Plaintiffs represent to the Court that such notice will include: 1) individual notice by electronic mail and/or first-class mail sent to all reasonably identifiable Class members; 2) nationwide paid media notice through a combination of print publications, including newspapers, consumer magazines, newspaper supplements and the Internet; 3) a neutral, Court-approved, informational press release; 4) a
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neutral, Court-approved Internet website; and 5) a toll-free telephone number. Similar mixed media plans have been approved by other district courts post class certification. The Court finds this plan is sufficient to meet the notice requirement.
Judge Sara Loi, Pavlov v. Continental Casualty Co., (Oct. 7, 2009) 5:07-cv-2580 (N.D. Ohio):
As previously set forth in this Memorandum Opinion, the elaborate notice program contained in the Settlement Agreement provides for notice through a variety of means, including direct mail to each class member, notice to the United States Attorney General and each State, a toll free number, and a website designed to provide information about the settlement and instructions on submitting claims. With a 99.9% effective rate, the Court finds that the notice program constituted the “best notice that is practicable under the circumstances,” Fed. R. Civ. P. 23(c)(2)(B), and clearly satisfies the requirements of Rule 23(c)(2)(B).
Judge James Robertson, In re Department of Veterans Affairs (VA) Data Theft Litigation, (Sept. 23, 2009) MDL No. 1796 (D.D.C.):
The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice.
Judge Lisa F. Chrystal, Little v. Kia Motors America, Inc., (Aug. 27, 2009) UNN-L-0800-01 (N.J. Super. Ct.):
The Court finds that the manner and content of the notices for direct mailing and for publication notice, as specified in the Notice Plan (Exhibit 2 to the Affidavit of Lauran R. Schultz), provides the best practicable notice of judgment to members of the Plaintiff Class.
Judge Barbara Crowder, Dolen v. ABN AMRO Bank N.V., (Mar. 23, 2009) 01-L-454, 01-L-493 (3rd Jud. Cir. Ill.):
The Court finds that the Notice Plan is the best notice practicable under the circumstances and provides the Eligible Members of the Settlement Class sufficient information to make informed and meaningful decisions regarding their options in this Litigation and the effect of the Settlement on their rights. The Notice Plan further satisfies the requirements of due process and 735 ILCS 5/2-803. That Notice Plan is approved and accepted. This Court further finds that the Notice of Settlement and Claim Form comply with 735 ILCS 5/2-803 and are appropriate as part of the Notice Plan and the Settlement, and thus they are hereby approved and adopted. This Court further finds that no other notice other than that identified in the Notice Plan is reasonably necessary in this Litigation.
Judge Robert W. Gettleman, In re Trans Union Corp., (Sept. 17, 2008) MDL No. 1350 (N.D. Ill.):
The Court finds that the dissemination of the Class Notice under the terms and in the format provided for in its Preliminary Approval Order constitutes the best notice practicable under the circumstances, is due and sufficient notice for all purposes to all persons entitled to such notice, and fully satisfies the requirements of the Federal Rules of Civil Procedure, the requirements of due process under the Constitution of the United States, and any other applicable law… Accordingly, all objections are hereby OVERRULED.
Judge Steven D. Merryday, Lockwood v. Certegy Check Services, Inc., (Sept. 3, 2008) 8:07-cv-1434 (M.D. Fla.):
The form, content, and method of dissemination of the notice given to the Settlement Class were adequate and reasonable and constituted the best notice practicable in the circumstances. The notice as given provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions of the Settlement Agreement, and these proceedings to all persons entitled to such notice, and the notice satisfied the requirements of Rule 23, Federal Rules of Civil Procedure, and due process. Judge William G. Young, In re TJX Companies, (Sept. 2, 2008) MDL No. 1838 (D. Mass.):
The form, content, and method of dissemination of notice provided to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process.
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Judge Philip S. Gutierrez, Shaffer v. Continental Casualty Co., (June 11, 2008) SACV-06-2235 (C.D. Cal.):
[Notice] was reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and met all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clauses), the Rules of the Court, and any other applicable law.
Judge Robert L. Wyatt, Gunderson v. AIG Claim Services, Inc., (May 29, 2008) 2004-002417 (14th Jud. D. Ct. La.):
Notices given to Settlement Class members…were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination…Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class.
Judge Mary Anne Mason, Palace v. DaimlerChrysler Corp., (May 29, 2008) 01-CH-13168 (Ill. Cir. Ct.):
The form, content, and method of dissemination of the notice given to the Illinois class and to the Illinois Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The notice, as given, provided valid, due, and sufficient notice of the proposed Settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings, to all Persons entitled to such notice, and said notice fully satisfied the requirements of due process and complied with 735 ILCS §§5/2-803 and 5/2-806.
Judge David De Alba, Ford Explorer Cases, (May 29, 2008) JCCP Nos. 4226 & 4270 (Cal. Super. Ct.):
[T]he Court is satisfied that the notice plan, design, implementation, costs, reach, were all reasonable, and has no reservations about the notice to those in this state and those in other states as well, including Texas, Connecticut, and Illinois; that the plan that was approved—submitted and approved, comports with the fundamentals of due process as described in the case law that was offered by counsel.
Judge Kirk D. Johnson, Webb v. Liberty Mutual Ins. Co., (Mar. 3, 2008) CV-2007-418-3 (Ark. Cir. Ct.):
The Court finds that there was minimal opposition to the settlement. After undertaking an extensive notice campaign to Class members of approximately 10,707 persons, mailed notice reached 92.5% of potential Class members.
Judge Carol Crafton Anthony, Johnson v. Progressive Casualty Ins. Co., (Dec. 6, 2007) CV-2003-513 (Ark. Cir. Ct.):
Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated…Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice reached a large majority of the Class members. The Court finds that such notice constitutes the best notice practicable…The forms of Notice and Notice Plan satisfy all of the requirements of Arkansas law and due process.
Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co., (Aug. 20, 2007) CV-2007-154-3 (Ark. Cir. Ct.):
The Court does find that all notices required by the Court to be given to class members was done within the time allowed and the manner best calculated to give notice and apprise all the interested parties of the litigation. It was done through individual notice, first class mail, through internet website and the toll-free telephone call center…The Court does find that these methods were the best possible methods to advise the class members of the pendency of the action and opportunity to present their objections and finds that these notices do comply with all the provisions of Rule 23 and the Arkansas and United States Constitutions.
Judge Robert Wyatt, Gunderson v. F.A. Richard & Associates, Inc., (July 19, 2007) 2004-2417-D (14th Jud. D. Ct. La.):
This is the final Order and Judgment regarding the fairness, reasonableness and adequacy. And I am satisfied in all respects regarding the presentation that’s been made to the Court this morning in the Class memberships, the representation, the notice, and all other aspects and I’m signing that Order at this time.
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Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (July 19, 2007) MDL No. 1653-LAK (S.D.N.Y.):
The Court finds that the distribution of the Notice, the publication of the Publication Notice, and the notice methodology…met all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, (including the Due Process clause), the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 78u-4, et seq.) (the “PSLRA”), the Rules of the Court, and any other applicable law.
Judge Joe Griffin, Beasley v. The Reliable Life Insurance Co., (Mar. 29, 2007) CV-2005-58-1 (Ark. Cir. Ct.):
[T]he Court has, pursuant to the testimony regarding the notification requirements, that were specified and adopted by this Court, has been satisfied and that they meet the requirements of due process. They are fair, reasonable, and adequate. I think the method of notification certainly meets the requirements of due process…So the Court finds that the notification that was used for making the potential class members aware of this litigation and the method of filing their claims, if they chose to do so, all those are clear and concise and meet the plain language requirements and those are completely satisfied as far as this Court is concerned in this matter.
Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (Mar. 1, 2007) MDL No. 1653-LAK (S.D.N.Y.):
The court approves, as to form and content, the Notice and the Publication Notice, attached hereto as Exhibits 1 and 2, respectively, and finds that the mailing and distribution of the Notice and the publication of the Publication Notice in the manner and the form set forth in Paragraph 6 of this Order…meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Securities Exchange Act of 1934, as emended by Section 21D(a)(7) of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u- 4(a)(7), and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons and entities entitled thereto.
Judge Anna J. Brown, Reynolds v. The Hartford Financial Services Group, Inc., (Feb. 27, 2007) CV-01-1529-BR (D. Ore.):
[T]he court finds that the Notice Program fairly, fully, accurately, and adequately advised members of the Settlement Class and each Settlement Subclass of all relevant and material information concerning the proposed settlement of this action, their rights under Rule 23 of the Federal Rules of Civil Procedure, and related matters, and afforded the Settlement Class with adequate time and an opportunity to file objections to the Settlement or request exclusion from the Settlement Class. The court finds that the Notice Program constituted the best notice practicable under the circumstances and fully satisfied the requirements of Rule 23 and due process.
Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the Midwest, (Feb. 13, 2007) CV-2006-409- 3 (Ark. Cir. Ct.):
Based on the Court’s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Class Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminary Approval Order, was the best notice practicable under the circumstances to all members of the Settlement Class. Accordingly, the Class Notice and Claim Form as disseminated are finally approved as fair, reasonable, and adequate notice under the circumstances. The Court finds and concludes that due and adequate notice of the pendency of this Action, the Stipulation, and the Final Settlement Hearing has been provided to members of the Settlement Class, and the Court further finds and concludes that the notice campaign described in the Preliminary Approval Order and completed by the parties complied fully with the requirements of Arkansas Rule of Civil Procedure 23 and the requirements of due process under the Arkansas and United States Constitutions.
Judge Richard J. Holwell, In re Vivendi Universal, S.A. Securities Litigation, 2007 WL 1490466 (S.D.N.Y.):
In response to defendants’ manageability concerns, plaintiffs have filed a comprehensive affidavit outlining the effectiveness of its proposed method of providing notice in foreign countries. According to this…the Court is satisfied that plaintiffs intend to provide individual notice to those class members whose names and addresses are ascertainable, and that plaintiffs’ proposed form of publication notice, while complex, will prove both manageable and the best means practicable of providing notice.
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Judge Samuel Conti, Ciabattari v. Toyota Motor Sales, U.S.A., Inc., (Nov. 17, 2006) C-05-04289-SC (N.D. Cal.):
After reviewing the evidence and arguments presented by the parties…the Court finds as follows…The class members were given the best notice practicable under the circumstances, and that such notice meets the requirements of the Due Process Clause of the U.S. Constitution, and all applicable statutes and rules of court.
Judge Ivan L.R. Lemelle, In re High Sulfur Content Gasoline Prods. Liability Litigation, (Nov. 8, 2006) MDL No. 1632 (E.D. La.):
This Court approved a carefully-worded Notice Plan, which was developed with the assistance of a nationally-recognized notice expert, Hilsoft Notifications…The Notice Plan for this Class Settlement was consistent with the best practices developed for modern-style “plain English” class notices; the Court and Settling Parties invested substantial effort to ensure notice to persons displaced by the Hurricanes of 2005; and as this Court has already determined, the Notice Plan met the requirements of Rule 23 and constitutional due process.
Judge Catherine C. Blake, In re Royal Ahold Securities and “ERISA” Litigation, (Nov. 2, 2006) MDL No. 1539 (D. Md.):
The global aspect of the case raised additional practical and legal complexities, as did the parallel criminal proceedings in another district. The settlement obtained is among the largest cash settlements ever in a securities class action case and represents an estimated 40% recovery of possible provable damages. The notice process appears to have been very successful not only in reaching but also in eliciting claims from a substantial percentage of those eligible for recovery.
Judge Elaine E. Bucklo, Carnegie v. Household International, (Aug. 28, 2006) 98 C 2178 (N.D. Ill.):
[T]he Notice was disseminated pursuant to a plan consisting of first class mail and publication developed by Plaintiff’s notice consultant, Hilsoft Notification[s]…who the Court recognized as experts in the design of notice plans in class actions. The Notice by first-class mail and publication was provided in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies all requirements of Rule 23(e) and due process.
Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the Midwest, (June 13, 2006) CV-2005-58-1 (Ark. Cir. Ct.):
Based on the Court’s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Individual Notice and the Publication Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminarily Approval Order, was the best notice practicable under the circumstances…and the requirements of due process under the Arkansas and United States Constitutions.
Judge Norma L. Shapiro, First State Orthopedics et al. v. Concentra, Inc., et al., (May 1, 2006) 2:05-CV-04951 (E.D. Pa.):
The Court finds that dissemination of the Mailed Notice, Published Notice and Full Notice in the manner set forth here and in the Settlement Agreement meets the requirements of due process and Pennsylvania law. The Court further finds that the notice is reasonable, and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice, is the best practicable notice; and is reasonably calculated, under the circumstances, to apprise members of the Settlement Class of the pendency of the Lawsuit and of their right to object or to exclude themselves from the proposed settlement.
Judge Thomas M. Hart, Froeber v. Liberty Mutual Fire Ins. Co., (Apr. 19, 2006) 00C15234 (Ore. Cir. Ct.):
The court has found and now reaffirms that dissemination and publication of the Class Notice in accordance with the terms of the Third Amended Order constitutes the best notice practicable under the circumstances.
Judge Catherine C. Blake, In re Royal Ahold Securities and “ERISA” Litigation, (Jan. 6, 2006) MDL No. 1539 (D. Md.):
I think it’s remarkable, as I indicated briefly before, given the breadth and scope of the proposed Class, the global nature of the Class, frankly, that again, at least on a preliminary basis, and I will be getting a final report on this, that the Notice Plan that has been proposed seems very well, very well suited, both in terms
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of its plain language and in terms of its international reach, to do what I hope will be a very thorough and broad-ranging job of reaching as many of the shareholders, whether individual or institutional, as possibly can be done to participate in what I also preliminarily believe to be a fair, adequate and reasonable settlement.
Judge Catherine C. Blake, In re Royal Ahold Securities & “ERISA” Litigation, (2006) 437 F.Supp.2d 467, 472 (D. Md.):
The court hereby finds that the Notice and Notice Plan described herein and in the Order dated January 9, 2006 provided Class Members with the best notice practicable under the circumstances. The Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement and Plan of Allocation, to all persons entitled to such notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.
Judge Robert H. Wyatt, Jr., Gray v. New Hampshire Indemnity Co., Inc., (Dec. 19, 2005) CV-2002-952-2-3 (Ark. Cir. Ct.):
Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The Notice contained the essential elements necessary to satisfy due process, including the Settlement Class definition, the identities of the Parties and of their counsel, a summary of the terms of the proposed settlement, Class Counsel’s intent to apply for fees, information regarding the manner in which objections could be submitted, and requests for exclusions could be filed. The Notice properly informed Class members of the formula for the distribution of benefits under the settlement…Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice was also effected by publication in many newspapers and magazines throughout the nation, reaching a large majority of the Class members multiple times. The Court finds that such notice constitutes the best notice practicable.
Judge Michael J. O’Malley, Defrates v. Hollywood Entm’t Corp., (June 24, 2005) 02 L 707 (Ill. Cir. Ct.):
[T]his Court hereby finds that the notice program described in the Preliminary Approval Order and completed by HEC complied fully with the requirements of due process, the Federal Rules of Civil Procedure and all other applicable laws.
Judge Wilford D. Carter, Thibodeaux v. Conoco Phillips Co., (May 26, 2005) 2003-481 F (14th J.D. Ct. La.):
Notice given to Class Members…were reasonably calculated under all the circumstances and have been sufficient, both as to the form and content…Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due process and sufficient notice to all potential members of the Class as Defined.
Judge Michael Canaday, Morrow v. Conoco Inc., (May 25, 2005) 2002-3860 G (14th J.D. Ct. La.):
The objections, if any, made to due process, constitutionality, procedures, and compliance with law, including, but not limited to, the adequacy of notice and the fairness of the proposed Settlement Agreement, lack merit and are hereby overruled.
Judge John R. Padova, Nichols v. SmithKline Beecham Corp., (Apr. 22, 2005) 00-6222 (E.D. Pa.):
Pursuant to the Order dated October 18, 2004, End-Payor Plaintiffs employed Hilsoft Notifications to design and oversee Notice to the End-Payor Class. Hilsoft Notifications has extensive experience in class action notice situations relating to prescription drugs and cases in which unknown class members need to receive notice…After reviewing the individual mailed Notice, the publication Notices, the PSAs and the informational release, the Court concludes that the substance of the Notice provided to members of the End-Payor Class in this case was adequate to satisfy the concerns of due process and the Federal Rules.
Judge Douglas Combs, Morris v. Liberty Mutual Fire Ins. Co., (Feb. 22, 2005) CJ-03-714 (D. Okla.):
I am very impressed that the notice was able to reach – be delivered to 97 ½ percent members of the class. That, to me, is admirable. And I’m also – at the time that this was initially entered, I was concerned about the ability of notice to be understood by a common, nonlawyer person, when we talk about legalese in a
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court setting. In this particular notice, not only the summary notice but even the long form of the notice were easily understandable, for somebody who could read the English language, to tell them whether or not they had the opportunity to file a claim.
Judge Joseph R. Goodwin, In re Serzone Products Liability Litigation, (2005) 231 F.R.D. 221, 231 (S.D. W. Va.):
The Notice Plan was drafted by Hilsoft Notifications, a Pennsylvania firm specializing in designing, developing, analyzing and implementing large-scale, unbiased legal notification plans. Hilsoft has disseminated class action notices in more than 150 cases, and it designed the model notices currently displayed on the Federal Judicial Center’s website as a template for others to follow…To enhance consumer exposure, Hilsoft studied the demographics and readership of publications among adults who used a prescription drug for depression in the last twelve months. Consequently, Hilsoft chose to utilize media particularly targeting women due to their greater incidence of depression and heavy usage of the medication.
Judge Richard G. Stearns, In re Lupron® Marketing and Sales Practice Litigation, (Nov. 24, 2004) MDL No. 1430 (D. Mass.):
After review of the proposed Notice Plan designed by Hilsoft Notifications…is hereby found to be the best practicable notice under the circumstances and, when completed, shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Rule 23 the Federal Rules of Civil Procedure and due process.
Judge Richard G. Stearns, In re Lupron® Marketing and Sales Practice Litigation, (Nov. 23, 2004) MDL No. 1430 (D. Mass.):
I actually find the [notice] plan as proposed to be comprehensive and extremely sophisticated and very likely be as comprehensive as any plan of its kind could be in reaching those most directly affected.
Judge James S. Moody, Jr., Mantzouris v. Scarritt Motor Group Inc., (Aug. 10, 2004) 8:03 CV- 0015-T-30 (M.D. Fla.):
Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the members of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement, it is hereby determined that all members of the Class, except for Ms. Gwendolyn Thompson, who was the sole person opting out of the Settlement Agreement, are bound by this Order and Final Judgment entered herein.
Judge Robert E. Payne, Fisher v. Virginia Electric & Power Co., (July 1, 2004) 3:02CV431 (E.D. Va.):
The record here shows that the class members have been fully and fairly notified of the existence of the class action, of the issues in it, of the approaches taken by each side in it in such a way as to inform meaningfully those whose rights are affected and to thereby enable them to exercise their rights intelligently…The success rate in notifying the class is, I believe, at least in my experience, I share Ms. Kauffman’s experience, it is as great as I have ever seen in practicing or serving in this job…So I don’t believe we could have had any more effective notice.
Judge John Kraetzer, Baiz v. Mountain View Cemetery, (Apr. 14, 2004) 809869-2 (Cal. Super. Ct.):
The notice program was timely completed, complied with California Government Code section 6064, and provided the best practicable notice to all members of the Settlement Class under the circumstances. The Court finds that the notice program provided class members with adequate instructions and a variety of means to obtain information pertaining to their rights and obligations under the settlement so that a full opportunity has been afforded to class members and all other persons wishing to be heard…The Court has determined that the Notice given to potential members of the Settlement Class fully and accurately informed potential Members of the Settlement Class of all material elements of the proposed settlement and constituted valid, due, and sufficient notice to all potential members of the Settlement Class, and that it constituted the best practicable notice under the circumstances.
Hospitality Mgmt. Assoc., Inc. v. Shell Oil Co., (2004) 356 S.C. 644, 663, 591 S.E.2d 611, 621 (Sup. Ct. S.C.):
Clearly, the Cox court designed and utilized various procedural safeguards to guarantee sufficient notice under the circumstances. Pursuant to a limited scope of review, we need go no further in deciding the Cox court's findings that notice met due process are entitled to deference.
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Judge Joseph R. Goodwin, In re Serzone Prods. Liability Litigation, (2004) U.S. Dist. LEXIS 28297 (S.D. W. Va.):
The Court has considered the Notice Plan and proposed forms of Notice and Summary Notice submitted with the Memorandum for Preliminary Approval and finds that the forms and manner of notice proposed by Plaintiffs and approved herein meet the requirements of due process and Fed.R.Civ.P. 23(c) and (e), are the best notice practicable under the circumstances, constitute sufficient notice to all persons entitled to notice, and satisfy the Constitutional requirements of notice.
Judge James D. Arnold, Cotten v. Ferman Mgmt. Servs. Corp., (Nov. 26, 2003) 02-08115 (Fla. Cir. Ct.):
Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the member of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement…
Judge Judith K. Fitzgerald, In re Pittsburgh Corning Corp., (Nov. 26, 2003) 00-22876 (Bankr.W.D. Pa.):
The procedures and form of notice for notifying the holders of Asbestos PI Trust Claims, as described in the Motion, adequately protect the interests of the holders of Asbestos PI Trust Claims in a manner consistent with the principles of due process, and satisfy the applicable requirements of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.
Judge Carter Holly, Richison v. American Cemwood Corp., (Nov. 18, 2003) 005532 (Cal. Super. Ct.):
As to the forms of Notice, the Court finds and concludes that they fully apprised the Class members of the pendency of the litigation, the terms of the Phase 2 Settlement, and Class members’ rights and options…Not a single Class member—out of an estimated 30,000—objected to the terms of the Phase 2 Settlement Agreement, notwithstanding a comprehensive national Notice campaign, via direct mail and publication Notice…The notice was reasonable and the best notice practicable under the circumstances, was due, adequate, and sufficient notice to all Class members, and complied fully with the laws of the State of California, the Code of Civil Procedure, due process, and California Rules of Court 1859 and 1860.
Judge Thomas A. Higgins, In re Columbia/HCA Healthcare Corp., (June 13, 2003) MDL No. 1227 (M.D. Tenn.):
Notice of the settlement has been given in an adequate and sufficient manner. The notice provided by mailing the settlement notice to certain class members and publishing notice in the manner described in the settlement was the best practicable notice, complying in all respects with the requirements of due process.
Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., (2003) 216 F.R.D. 55, 68 (S.D.N.Y.):
In view of the extensive notice campaign waged by the defendant, the extremely small number of class members objecting or requesting exclusion from the settlement is a clear sign of strong support for the settlement…The notice provides, in language easily understandable to a lay person, the essential terms of the settlement, including the claims asserted…who would be covered by the settlement…[T]he notice campaign that defendant agreed to undertake was extensive…I am satisfied, having reviewed the contents of the notice package, and the extensive steps taken to disseminate notice of the settlement, that the class notice complies with the requirements of Rule 23 (c)(2) and 23(e). In summary, I have reviewed all of the objections, and none persuade me to conclude that the proposed settlement is unfair, inadequate or unreasonable.
Judge Edgar E. Bayley, Dimitrios v. CVS, Inc., (Nov. 27, 2002) 99-6209; Walker v. Rite Aid Corp., 99-6210; and Myers v. Rite Aid Corp., 01-2771 (Pa. Ct. C.P.):
The Court specifically finds that: fair and adequate notice has been given to the class, which comports with due process of law.
Judge Dewey C. Whitenton, Ervin v. Movie Gallery, Inc., (Nov. 22, 2002) 13007 (Tenn. Ch.):
The content of the class notice also satisfied all due process standards and state law requirements…The content of the notice was more than adequate to enable class members to make an informed and intelligent choice about remaining in the class or opting out of the class.
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Judge James R. Williamson, Kline v. The Progressive Corp., (Nov. 14, 2002) 01-L-6 (Ill. Cir. Ct.):
Notice to the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The notice contained the essential elements necessary to satisfy due process…
Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (Sept. 13, 2002) L-008830.00 (N.J. Super. Ct.):
Here, the comprehensive bilingual, English and Spanish, court-approved Notice Plan provided by the terms of the settlement meets due process requirements. The Notice Plan used a variety of methods to reach potential class members. For example, short form notices for print media were placed…throughout the United States and in major national consumer publications which include the most widely read publications among Cooper Tire owner demographic groups.
Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., (Sept. 3, 2002) 00 Civ. 5071-HB (S.D.N.Y.):
The Court further finds that the Class Notice and Publication Notice provided in the Settlement Agreement are written in plain English and are readily understandable by Class Members. In sum, the Court finds that the proposed notice texts and methodology are reasonable, that they constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and that they meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law.
Judge Milton Gunn Shuffield, Scott v. Blockbuster Inc., (Jan. 22, 2002) D 162-535 (Tex. Jud. Dist. Ct.) ultimately withstood challenge to Court of Appeals of Texas. Peters v. Blockbuster 65 S.W.3d 295, 307 (Tex. App.-Beaumont, 2001):
In order to maximize the efficiency of the notice, a professional concern, Hilsoft Notifications, was retained. This Court concludes that the notice campaign was the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the settlement and afford them an opportunity to present their objections…The notice campaign was highly successful and effective, and it more than satisfied the due process and state law requirements for class notice.
Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (Oct. 30, 2001) MID-L-8839-00-MT (N.J. Super. Ct.):
The parties have crafted a notice program which satisfies due process requirements without reliance on an unreasonably burdensome direct notification process…The form of the notice is reasonably calculated to apprise class members of their rights. The notice program is specifically designed to reach a substantial percentage of the putative settlement class members.
Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (Oct. 29, 2001) L-8830-00-MT (N.J. Super. Ct.):
I saw the various bar graphs for the different publications and the different media dissemination, and I think that was actually the clearest bar graph I’ve ever seen in my life…it was very clear of the time periods that you were doing as to each publication and which media you were doing over what market time, so I think that was very clear.
Judge Stuart R. Pollak, Microsoft I-V Cases, (Apr. 1, 2001) J.C.C.P. CJC-00-004106 (Cal. Super. Ct.):
[C]oncerning dissemination of class notice; and I have reviewed the materials that have been submitted on that subject and basically I’m satisfied. I think it’s amazing if you’re really getting 80 percent coverage. That’s very reassuring. And the papers that you submitted responded to a couple things that had been mentioned before and I am satisfied with all that.
Judge Stuart R. Pollak, Microsoft I-V Cases, (Mar. 30, 2001) J.C.C.P. 4106 (Cal. Super. Ct.):
Plaintiffs and Defendant Microsoft Corporation have submitted a joint statement in support of their request that the Court approve the plan for dissemination of class action notice and proposed forms of notice, and amend the class definition. The Court finds that the forms of notice to Class members attached hereto as Exhibits A and B fairly and adequately inform the Class members of their rights concerning this litigation. The Court further finds that the methods for dissemination of notice are the fairest and best practicable under the circumstances, and comport with due process requirements.
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LEGAL NOTICE CASES
Hilsoft has served as a notice expert for planning, implementation and/or analysis in the following partial list of cases:
Andrews v. MCI (900 Number Litigation) S.D. Ga., No. CV 191-175
Harper v. MCI (900 Number Litigation) S.D. Ga., No. CV 192-134
In re Bausch & Lomb Contact Lens Litigation N.D. Ala., No. 94-C-1144-WW
In re Ford Motor Co. Vehicle Paint Litigation E.D. La., MDL No. 1063
Castano v. Am. Tobacco E.D. La., No. CV 94-1044
Cox v. Shell Oil (Polybutylene Pipe Litigation) Tenn. Ch., No. 18,844
In re Amino Acid Lysine Antitrust Litigation N.D. Ill., MDL No. 1083
In re Dow Corning Corp. (Breast Implant Bankruptcy) E.D. Mich., No. 95-20512-11-AJS
Kunhel v. CNA Ins. Companies N.J. Super. Ct., No. ATL-C-0184-94
In re Factor Concentrate Blood Prods. Litigation N.D. Ill., MDL No. 986 (Hemophiliac HIV)
In re Ford Ignition Switch Prods. Liability Litigation D. N.J., No. 96-CV-3125
Jordan v. A.A. Friedman (Non-Filing Ins. Litigation) M.D. Ga., No. 95-52-COL
Kalhammer v. First USA (Credit Card Litigation) Cal. Cir. Ct., No. C96-45632010-CAL
Navarro-Rice v. First USA (Credit Card Litigation) Ore. Cir. Ct., No. 9709-06901
Spitzfaden v. Dow Corning (Breast Implant Litigation) La. D. Ct., No. 92-2589
Robinson v. Marine Midland (Finance Charge Litigation) N.D. Ill., No. 95 C 5635
McCurdy v. Norwest Fin. Alabama Ala. Cir. Ct., No. CV-95-2601
Johnson v. Norwest Fin. Alabama Ala. Cir. Ct., No. CV-93-PT-962-S
In re Residential Doors Antitrust Litigation E.D. Pa., MDL No. 1039
Barnes v. Am. Tobacco Co. Inc. E.D. Pa., No. 96-5903
Small v. Lorillard Tobacco Co. Inc. N.Y. Super. Ct., No. 110949/96
Naef v. Masonite Corp (Hardboard Siding Litigation) Ala. Cir. Ct., No. CV-94-4033
In re Synthroid Mktg. Litigation N.D. Ill., MDL No. 1182
Raysick v. Quaker State Slick 50 Inc. D. Tex., No. 96-12610
Castillo v. Mike Tyson (Tyson v. Holyfield Bout) N.Y. Super. Ct., No. 114044/97
Avery v. State Farm Auto. Ins. (Non-OEM Auto Parts) Ill. Cir. Ct., No. 97-L-114
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Walls v. The Am. Tobacco Co. Inc. N.D. Okla., No. 97-CV-218
Tempest v. Rainforest Café (Securities Litigation) D. Minn., No. 98-CV-608
Stewart v. Avon Prods. (Securities Litigation) E.D. Pa., No. 98-CV-4135
Goldenberg v. Marriott PLC Corp (Securities Litigation) D. Md., No. PJM 95-3461
Delay v. Hurd Millwork (Building Products Litigation) Wash. Super. Ct., No. 97-2-07371-0
Gutterman v. Am. Airlines (Frequent Flyer Litigation) Ill. Cir. Ct., No. 95CH982
Hoeffner v. The Estate of Alan Kenneth Vieira (Un-scattered Cal. Super. Ct., No. 97-AS 02993 Cremated Remains Litigation)
In re Graphite Electrodes Antitrust Litigation E.D. Pa., MDL No. 1244
In re Silicone Gel Breast Implant Prods. Liability Litigation, N.D. Ala., MDL No. 926 Altrichter v. INAMED
St. John v. Am. Home Prods. Corp. (Fen/Phen Litigation) Wash. Super. Ct., No. 97-2-06368
Crane v. Hackett Assocs. (Securities Litigation) E.D. Pa., No. 98-5504
In re Holocaust Victims Assets Litigation (Swiss Banks) E.D.N.Y., No. CV-96-4849
McCall v. John Hancock (Settlement Death Benefits) N.M. Cir. Ct., No. CV-2000-2818
Williams v. Weyerhaeuser Co. (Hardboard Siding Litigation) Cal. Super. Ct., No. CV-995787
Kapustin v. YBM Magnex Int’l Inc. (Securities Litigation) E.D. Pa., No. 98-CV-6599
Leff v. YBM Magnex Int’l Inc. (Securities Litigation) E.D. Pa., No. 95-CV-89
In re PRK/LASIK Consumer Litigation Cal. Super. Ct., No. CV-772894
Hill v. Galaxy Cablevision N.D. Miss., No. 1:98CV51-D-D
Scott v. Am. Tobacco Co. Inc. La. D. Ct., No. 96-8461
Jacobs v. Winthrop Financial Associates (Securities D. Mass., No. 99-CV-11363 Litigation) Int’l Comm’n on Holocaust Era Ins. Claims – Worldwide Former Secretary of State Lawrence Outreach Program Eagleburger Commission
Bownes v. First USA Bank (Credit Card Litigation) Ala. Cir. Ct., No. CV-99-2479-PR
Whetman v. IKON (ERISA Litigation) E.D. Pa., No. 00-87
Mangone v. First USA Bank (Credit Card Litigation) Ill. Cir. Ct., No. 99AR672a
In re Babcock and Wilcox Co. (Asbestos Related E.D. La., No. 00-10992 Bankruptcy) Barbanti v. W.R. Grace and Co. (Zonolite / Asbestos Wash. Super. Ct., No. 00201756-6 Litigation)
Brown v. Am. Tobacco Cal. Super. Ct., No. J.C.C.P. 4042,711400
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Wilson v. Servier Canada Inc. (Canadian Fen/Phen Ont. Super. Ct., No. 98-CV-158832 Litigation)
S.D.N.Y. No. 87 B 20142, No. 87 B In re Texaco Inc. (Bankruptcy) 20143, No. 87 B 20144
Olinde v. Texaco (Bankruptcy, Oil Lease Litigation) M.D. La., No. 96-390
Gustafson v. Bridgestone/Firestone, Inc. (Recall Related S.D. Ill., No. 00-612-DRH Litigation)
In re Bridgestone/Firestone Tires Prods. Liability Litigation S.D. Ind., MDL No. 1373
Gaynoe v. First Union Corp. (Credit Card Litigation) N.C. Super. Ct., No. 97-CVS-16536
Carson v. Daimler Chrysler Corp. (Fuel O-Rings Litigation) W.D. Tenn., No. 99-2896 TU A
Providian Credit Card Cases Cal. Super. Ct., No. J.C.C.P. 4085
Fields v. Great Spring Waters of Am., Inc. (Bottled Water Cal. Super. Ct., No. 302774 Litigation) Sanders v. Great Spring Waters of Am., Inc. (Bottled Water Cal. Super. Ct., No. 303549 Litigation)
Sims v. Allstate Ins. Co. (Diminished Auto Value Litigation) Ill. Cir. Ct., No. 99-L-393A
Peterson v. State Farm Mutual Auto. Ins. Co. (Diminished Ill. Cir. Ct., No. 99-L-394A Auto Value Litigation) Microsoft I-V Cases (Antitrust Litigation Mirroring Justice Cal. Super. Ct., No. J.C.C.P. 4106 Dept.) Westman v. Rogers Family Funeral Home, Inc. (Remains Cal. Super. Ct., No. C-98-03165 Handling Litigation)
Rogers v. Clark Equipment Co. Ill. Cir. Ct., No. 97-L-20
Garrett v. Hurley State Bank (Credit Card Litigation) Miss. Cir. Ct., No. 99-0337
Ragoonanan v. Imperial Tobacco Ltd. (Firesafe Cigarette Ont. Super. Ct., No. 00-CV-183165 CP Litigation)
Dietschi v. Am. Home Prods. Corp. (PPA Litigation) W.D. Wash., No. C01-0306L
Dimitrios v. CVS, Inc. (PA Act 6 Litigation) Pa. C.P., No. 99-6209
Jones v. Hewlett-Packard Co. (Inkjet Cartridge Litigation) Cal. Super. Ct., No. 302887
In re Tobacco Cases II (California Tobacco Litigation) Cal. Super. Ct., No. J.C.C.P. 4042
Scott v. Blockbuster, Inc. (Extended Viewing Fees 136th Tex. Jud. Dist., No. D 162-535 Litigation)
Anesthesia Care Assocs. v. Blue Cross of Cal. Cal. Super. Ct., No. 986677
Ting v. AT&T (Mandatory Arbitration Litigation) N.D. Cal., No. C-01-2969-BZ
In re W.R. Grace & Co. (Asbestos Related Bankruptcy) Bankr. D. Del., No. 01-01139-JJF
Talalai v. Cooper Tire & Rubber Co. (Tire Layer Adhesion N.J. Super. Ct.,, No. MID-L-8839-00 MT Litigation)
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Kent v. Daimler Chrysler Corp. (Jeep Grand Cherokee Park- N.D. Cal., No. C01-3293-JCS to-Reverse Litigation) Int’l Org. of Migration – German Forced Labour Geneva, Switzerland Compensation Programme Madsen v. Prudential Federal Savings & Loan 3rd Jud. Dist. Ct. Utah, No. C79-8404 (Homeowner’s Loan Account Litigation) Cal. Super. Ct., No. GIC 765441, No. GIC Bryant v. Wyndham Int’l., Inc. (Energy Surcharge Litigation) 777547
In re USG Corp. (Asbestos Related Bankruptcy) Bankr. D. Del., No. 01-02094-RJN
Thompson v. Metropolitan Life Ins. Co. (Race Related Sales S.D.N.Y., No. 00-CIV-5071 Practices Litigation)
Ervin v. Movie Gallery Inc. (Extended Viewing Fees) Tenn. Ch., No. CV-13007
Peters v. First Union Direct Bank (Credit Card Litigation) M.D. Fla., No. 8:01-CV-958-T-26 TBM
National Socialist Era Compensation Fund Republic of Austria
In re Baycol Litigation D. Minn., MDL No. 1431
Claims Conference–Jewish Slave Labour Outreach Program German Government Initiative
Wells v. Chevy Chase Bank (Credit Card Litigation) Md. Cir. Ct., No. C-99-000202
Walker v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., No. 99-6210
Myers v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., No. 01-2771
In re PA Diet Drugs Litigation C.P. Pa., No. 9709-3162
Harp v. Qwest Communications (Mandatory Arbitration Lit.) Ore. Circ. Ct., No. 0110-10986
Tuck v. Whirlpool Corp. & Sears, Roebuck & Co. (Microwave Ind. Cir. Ct., No. 49C01-0111-CP-002701 Recall Litigation) 1st Jud. D.C. N.M., No. D-0101-CV- Allison v. AT&T Corp. (Mandatory Arbitration Litigation) 20020041
Kline v. The Progressive Corp. Ill. Cir. Ct., No. 01-L-6
Baker v. Jewel Food Stores, Inc. & Dominick’s Finer Foods, Ill. Cir. Ct., No. 00-L-9664 Inc. (Milk Price Fixing) In re Columbia/HCA Healthcare Corp. (Billing Practices M.D. Tenn., MDL No. 1227 Litigation)
Foultz v. Erie Ins. Exchange (Auto Parts Litigation) C.P. Pa., No. 000203053
Soders v. General Motors Corp. (Marketing Initiative C.P. Pa., No. CI-00-04255 Litigation)
Nature Guard Cement Roofing Shingles Cases Cal. Super. Ct., No. J.C.C.P. 4215
Curtis v. Hollywood Entm’t Corp. (Additional Rental Wash. Super. Ct., No. 01-2-36007-8 Charges)
Defrates v. Hollywood Entm’t Corp. Ill. Cir. Ct., No. 02L707
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Pease v. Jasper Wyman & Son, Merrill Blueberry Farms Inc., Me. Super. Ct., No. CV-00-015 Allen’s Blueberry Freezer Inc. & Cherryfield Foods Inc.
West v. G&H Seed Co. (Crawfish Farmers Litigation) 27th Jud. D. Ct. La., No. 99-C-4984-A
Linn v. Roto-Rooter Inc. (Miscellaneous Supplies Charge) C.P. Ohio, No. CV-467403
McManus v. Fleetwood Enter., Inc. (RV Brake Litigation) D. Ct. Tex., No. SA-99-CA-464-FB
Baiz v. Mountain View Cemetery (Burial Practices) Cal. Super. Ct., No. 809869-2
Stetser v. TAP Pharm. Prods, Inc. & Abbott Laboratories N.C. Super. Ct., No. 01-CVS-5268 (Lupron Price Litigation) Richison v. Am. Cemwood Corp. (Roofing Durability Cal. Super. Ct., No. 005532 Settlement)
Cotten v. Ferman Mgmt. Servs. Corp. 13th Jud. Cir. Fla., No. 02-08115
In re Pittsburgh Corning Corp. (Asbestos Related Bankr. W.D. Pa., No. 00-22876-JKF Bankruptcy)
Mostajo v. Coast Nat’l Ins. Co. Cal. Super. Ct., No. 00 CC 15165
Friedman v. Microsoft Corp. (Antitrust Litigation) Ariz. Super. Ct., No. CV 2000-000722
Multinational Outreach - East Germany Property Claims Claims Conference
Davis v. Am. Home Prods. Corp. (Norplant Contraceptive D. La., No. 94-11684 Litigation) Walker v. Tap Pharmaceutical Prods., Inc. (Lupron Price N.J. Super. Ct., No. CV CPM-L-682-01 Litigation)
Munsey v. Cox Communications (Late Fee Litigation) Civ. D. La., No. Sec. 9, 97 19571
Gordon v. Microsoft Corp. (Antitrust Litigation) 4th Jud. D. Ct. Minn., No. 00-5994
Clark v. Tap Pharmaceutical Prods., Inc. 5th Dist. App. Ct. Ill., No. 5-02-0316
Fisher v. Virginia Electric & Power Co. E.D. Va., No. 3:02-CV-431
Mantzouris v. Scarritt Motor Group, Inc. M.D. Fla., No. 8:03-CV-0015-T-30-MSS
W. Va. Cir. Ct., No. 01-C-1530, 1531, Johnson v. Ethicon, Inc. (Product Liability Litigation) 1533, No. 01-C-2491 to 2500
Schlink v. Edina Realty Title 4th Jud. D. Ct. Minn., No. 02-018380
Tawney v. Columbia Natural Res. (Oil & Gas Lease W. Va. Cir. Ct., No. 03-C-10E Litigation) White v. Washington Mutual, Inc. (Pre-Payment Penalty 4th Jud. D. Ct. Minn., No. CT 03-1282 Litigation) Acacia Media Techs. Corp. v. Cybernet Ventures Inc., C.D. Cal., No. SACV03-1803 (Patent Infringement Litigation)
Bardessono v. Ford Motor Co. (15 Passenger Vans) Wash. Super. Ct., No. 32494
Gardner v. Stimson Lumber Co. (Forestex Siding Litigation) Wash. Super. Ct., No. 00-2-17633-3SEA
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Poor v. Sprint Corp. (Fiber Optic Cable Litigation) Ill. Cir. Ct., No. 99-L-421
Thibodeau v. Comcast Corp. E.D. Pa., No. 04-CV-1777
Cazenave v. Sheriff Charles C. Foti (Strip Search Litigation) E.D. La., No. 00-CV-1246
National Assoc. of Police Orgs., Inc. v. Second Chance Mich. Cir. Ct., No. 04-8018 Body Armor, Inc. (Bullet Proof Vest Litigation)
Nichols v. SmithKline Beecham Corp. (Paxil) E.D. Pa., No. 00-6222
Yacout v. Federal Pacific Electric Co. (Circuit Breaker) N.J. Super. Ct., No. MID-L-2904-97
Lewis v. Bayer AG (Baycol) 1st Jud. Dist. Ct. Pa., No. 002353
In re Educ. Testing Serv. PLT 7-12 Test Scoring Litigation E.D. La., MDL No. 1643
Stefanyshyn v. Consol. Indus. Corp. (Heat Exchanger) Ind. Super. Ct., No. 79 D 01-9712-CT-59
Barnett v. Wal-Mart Stores, Inc. Wash. Super. Ct., No. 01-2-24553-8
In re Serzone Prods. Liability Litigation S.D. W. Va., MDL No. 1477
Ford Explorer Cases Cal. Super. Ct., No. J.C.C.P. 4226 & 4270
In re Solutia Inc. (Bankruptcy) S.D.N.Y., No. 03-17949
In re Lupron Marketing & Sales Practices Litigation D. Mass., MDL No. 1430
Morris v. Liberty Mutual Fire Ins. Co. D. Okla., No. CJ-03-714
Bowling, et al. v. Pfizer Inc. (Bjork-Shiley Convexo-Concave S.D. Ohio, No. C-1-91-256 Heart Valve)
Thibodeaux v. Conoco Philips Co. D. La., No. 2003-481
Morrow v. Conoco Inc. D. La., No. 2002-3860
Tobacco Farmer Transition Program U.S. Dept. of Agric.
Perry v. Mastercard Int’l Inc. Ariz. Super. Ct., No. CV2003-007154
Brown v. Credit Suisse First Boston Corp. C.D. La., No. 02-13738
In re Unum Provident Corp. D. Tenn., No. 1:03-CV-1000
In re Ephedra Prods. Liability Litigation D.N.Y., MDL No. 1598
Chesnut v. Progressive Casualty Ins. Co. Ohio C.P., No. 460971
Froeber v. Liberty Mutual Fire Ins. Co. Ore. Cir. Ct., No. 00C15234
Luikart v. Wyeth Am. Home Prods. (Hormone Replacement) W. Va. Cir. Ct., No. 04-C-127
Salkin v. MasterCard Int’l Inc. (Pennsylvania) Pa. C.P., No. 2648
Rolnik v. AT&T Wireless Servs., Inc. N.J. Super. Ct., No. L-180-04
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Singleton v. Hornell Brewing Co. Inc. (Arizona Ice Tea) Cal. Super. Ct., BC No. 288 754
Becherer v. Qwest Commc’ns Int’l, Inc. Ill. Cir. Ct., No. 02-L140
Clearview Imaging v. Progressive Consumers Ins. Co. Fla. Cir. Ct., No. 03-4174
Mehl v. Canadian Pacific Railway, Ltd D.N.D., No. A4-02-009
Murray v. IndyMac Bank. F.S.B N.D. Ill., No. 04 C 7669
Gray v. New Hampshire Indemnity Co., Inc. Ark. Cir. Ct., No. CV-2002-952-2-3
George v. Ford Motor Co. M.D. Tenn., No. 3:04-0783
Allen v. Monsanto Co. W. Va. Cir. Ct., No. 041465
Carter v. Monsanto Co. W. Va. Cir. Ct., No. 00-C-300
Carnegie v. Household Int’l, Inc. N. D. Ill., No. 98-C-2178
Daniel v. AON Corp. Ill. Cir. Ct., No. 99 CH 11893
In re Royal Ahold Securities and “ERISA” Litigation D. Md., MDL No. 1539
In re Pharmaceutical Industry Average Wholesale Price D. Mass., MDL No. 1456 Litigation
Meckstroth v. Toyota Motor Sales, U.S.A., Inc. 24th Jud. D. Ct. La., No. 583-318
Walton v. Ford Motor Co. Cal. Super. Ct., No. SCVSS 126737
Hill v. State Farm Mutual Auto Ins. Co. Cal. Super. Ct., BC No. 194491
First State Orthopaedics et al. v. Concentra, Inc., et al. E.D. Pa. No. 2:05-CV-04951
Sauro v. Murphy Oil USA, Inc. E.D. La., No. 05-4427
In re High Sulfur Content Gasoline Prods. Liability Litigation E.D. La., MDL No. 1632
Homeless Shelter Compensation Program City of New York
Rosenberg v. Academy Collection Service, Inc. E.D. Pa., No. 04-CV-5585
Chapman v. Butler & Hosch, P.A. 2nd Jud. Cir. Fla., No. 2000-2879
In re Vivendi Universal, S.A. Securities Litigation S.D.N.Y., No. 02-CIV-5571
Desportes v. American General Assurance Co. Ga. Super. Ct., No. SU-04-CV-3637
In re: Propulsid Products Liability Litigation E.D. La., MDL No. 1355
Baxter v. The Attorney General of Canada (In re Residential Ont. Super. Ct., No. 00-CV-192059 CP Schools Class Action Litigation) 13th Tenn. Jud. Dist. Ct., No. CT-002506- McNall v. Mastercard Int’l, Inc. (Currency Conversion Fees) 03 Lee v. Allstate Ill. Cir. Ct., No. 03 LK 127
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Turner v. Murphy Oil USA, Inc. E.D. La., No. 2:05-CV-04206
Carter v. North Central Life Ins. Co. Ga. Super. Ct., No. SU-2006-CV-3764-6
Harper v. Equifax E.D. Pa., No. 2:04-CV-03584-TON
Beasley v. Hartford Insurance Co. of the Midwest Ark. Cir. Ct., No. CV-2005-58-1
Springer v. Biomedical Tissue Services, LTD (Human Tissue Ind. Cir. Ct., No. 1:06-CV-00332 Litigation)
Spence v. Microsoft Corp. (Antitrust Litigation) Wis. Cir. Ct., No. 00-CV-003042
Pennington v. The Coca Cola Co. (Diet Coke) Mo. Cir. Ct., No. 04-CV-208580
Sunderman v. Regeneration Technologies, Inc. (Human S.D. Ohio, No. 1:06-CV-075 Tissue Litigation)
Splater v. Thermal Ease Hydronic Systems, Inc. Wash. Super. Ct., No. 03-2-33553-3-SEA
Peyroux v. The United States of America (New Orleans E.D. La., No. 06-2317 Levee Breech)
Chambers v. DaimlerChrysler Corp. (Neon Head Gaskets) N.C. Super. Ct., No. 01:CVS-1555
Ciabattari v. Toyota Motor Sales, U.S.A., Inc. (Sienna Run N.D. Cal., No. C-05-04289 Flat Tires)
In re Bridgestone Securities Litigation M.D. Tenn., No. 3:01-CV-0017
In re Mutual Funds Investment Litigation (Market Timing) D. Md., MDL No. 1586
Accounting Outsourcing v. Verizon Wireless M.D. La., No. 03-CV-161
Hensley v. Computer Sciences Corp. Ark. Cir. Ct., No. CV-2005-59-3
Peek v. Microsoft Corporation Ark. Cir. Ct., No. CV-2006-2612
Reynolds v. The Hartford Financial Services Group, Inc. D. Ore., No. CV-01-1529
Schwab v. Philip Morris USA, Inc. E.D.N.Y., No. CV-04-1945
Zarebski v. Hartford Insurance Co. of the Midwest Ark. Cir. Ct., No. CV-2006-409-3
In re Parmalat Securities Litigation S.D.N.Y., MDL No. 1653
Beasley v. The Reliable Life Insurance Co. Ark. Cir. Ct., No. CV-2005-58-1
Sweeten v. American Empire Insurance Company Ark. Cir. Ct., No. 2007-154-3
Govt. Employees Hospital Assoc. v. Serono Int., S.A. D. Mass., No. 06-CA-10613
Gunderson v. Focus Healthcare Management, Inc. 14th Jud. D. Ct. La., No. 2004-2417-D
Gunderson v. F.A. Richard & Associates, Inc., et al. 14th Jud. D. Ct. La., No. 2004-2417-D
Perez v. Manor Care of Carrollwood 13th Jud. Cir. Fla., No. 06-00574-E
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Pope v. Manor Care of Carrollwood 13th Jud. Cir. Fla., No. 06-01451-B
West v. Carfax, Inc. Ohio C.P., No. 04-CV-1898
Hunsucker v. American Standard Ins. Co. of Wisconsin Ark. Cir. Ct., No. CV-2007-155-3
In re Conagra Peanut Butter Products Liability Litigation N.D. Ga., MDL No. 1845
The People of the State of CA v. Universal Life Resources Cal. Super. Ct., No. GIC838913 (Cal DOI v. CIGNA)
Burgess v. Farmers Insurance Co., Inc. D. Okla., No. CJ-2001-292
Grays Harbor v. Carrier Corporation W.D. Wash., No. 05-05437
Perrine v. E.I. Du Pont De Nemours & Co. W. Va. Cir. Ct., No. 04-C-296-2
In re Alstom SA Securities Litigation S.D.N.Y., No. 03-CV-6595
Brookshire Bros. v. Chiquita (Antitrust) S.D. Fla., No. 05-CIV-21962
Hoorman v. SmithKline Beecham Ill. Cir. Ct., No. 04-L-715
Santos v. Government of Guam (Earned Income Tax Credit) D. Guam, No. 04-00049
Johnson v. Progressive Ark. Cir. Ct., No. CV-2003-513
Bond v. American Family Insurance Co. D. Ariz., No. CV06-01249
In re SCOR Holding (Switzerland) AG Litigation (Securities) S.D.N.Y., No. 04-cv-7897
Shoukry v. Fisher-Price, Inc. (Toy Safety) S.D.N.Y., No. 07-cv-7182
In re: Guidant Corp. Plantable Defibrillators Prod’s Liab. D. Minn., MDL No. 1708 Litigation
Clark v. Pfizer, Inc. (Neurontin) C.P. Pa., No. 9709-3162
Angel v. U.S. Tire Recovery (Tire Fire) W. Va. Cir. Ct., No. 06-C-855
In re TJX Companies Retail Security Breach Litigation D. Mass., MDL No. 1838
Webb v. Liberty Mutual Insurance Co. Ark. Cir. Ct., No. CV-2007-418-3
Shaffer v. Continental Casualty Co. (Long Term Care Ins.) C.D. Cal., No. V06-2235
Palace v. DaimlerChrysler (Defective Neon Head Gaskets) Ill. Cir. Ct., No. 01-CH-13168
Lockwood v. Certegy Check Services, Inc. (Stolen Financial M.D. Fla., No. 8:07-cv-1434 Data)
Sherrill v. Progressive Northwestern Ins. Co. 18th D. Ct. Mont., No. DV-03-220
Gunderson v. F.A. Richard & Assocs., Inc. (AIG) 14th Jud. D. Ct. La., No. 2004-2417-D
Jones v. Dominion Resources Services, Inc. S.D. W. Va., No. 2:06-cv-00671
Gunderson v. F.A. Richard & Assocs., Inc. (Wal-Mart) 14th Jud. D. Ct. La., No. 2004-2417-D
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In re Trans Union Corp. Privacy Litigation N.D. Ill., MDL No. 1350
Gudo v. The Administrator of the Tulane Ed. Fund La. D. Ct., No. 2007-C-1959
Guidry v. American Public Life Insurance Co. 14th Jud. D. Ct. La., No. 2008-3465
McGee v. Continental Tire North America D.N.J., No. 2:06-CV-06234
Sims v. Rosedale Cemetery Co. W. Va. Cir. Ct., No. 03-C-506
Gunderson v. F.A. Richard & Assocs., Inc. (Amerisafe) 14th Jud. D. Ct. La., No. 2004-002417
In re Katrina Canal Breaches Consolidated Litigation E.D. La., No. 05-4182
In re Department of Veterans Affairs (VA) Data Theft D.D.C., MDL No. 1796 Litigation
Dolen v. ABN AMRO Bank N.V. (Callable CD’s) Ill. Cir. Ct., No. 01-L-454 and No. 01-L-493
Pavlov v. CNA (Long Term Care Insurance) N.D. Ohio, No. 5:07cv2580
Steele v. Pergo( Flooring Products) D. Ore., No. 07-CV-01493-BR
Opelousas Trust Authority v. Summit Consulting 27th Jud. D. Ct. La., No. 07-C-3737-B
Little v. Kia Motors America, Inc. (Braking Systems) N.J. Super. Ct., No. UNN-L-0800-01
Boone v. City of Philadelphia (Prisoner Strip Search) E.D. Pa., No. 05-CV-1851
In re Countrywide Customer Data Breach Litigation W.D. Ky., MDL No. 1998
Miller v. Basic Research (Weight-loss Supplement) D. Utah, No. 2:07-cv-00871
Gunderson v. F.A. Richard & Assocs., Inc. (Cambridge) 14th Jud. D. Ct. La., No. 2004-002417
Weiner v. Snapple Beverage Corporation S.D.N.Y., No. 07-CV-08742
Holk v. Snapple Beverage Corporation D.N.J., No. 3:07-CV-03018
Coyle v. Hornell Brewing Co. (Arizona Iced Tea) D.N.J., No. 08-CV-2797
In re Heartland Data Security Breach Litigation S.D. Tex., MDL No. 2046
Satterfield v. Simon & Schuster, Inc. (Text Messaging) N.D. Cal., No. 06-CV-2893
Schulte v. Fifth Third Bank (Overdraft Fees) N.D. Ill., No. 1:09-CV-06655
D.D.C., No. 1:10-CV-00232 as part of MDL Trombley v. National City Bank (Overdraft Fees) 2036 (S.D. Fla.)
Vereen v. Lowe’s Home Centers (Defective Drywall) Ga. Super. Ct., No. SU10-CV-2267B
D. Conn, No. 3:10-cv-01448 as part MDL Mathena v. Webster Bank, N.A. (Overdraft Fees) 2036 (S.D. Fla.)
Delandro v. County of Allegheny (Prisoner Strip Search) W.D. Pa., No. 2:06-cv-00927
Gunderson v. F.A. Richard & Assocs., Inc. (First Health) 14th Jud. D. Ct. La., No. 2004-002417
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Williams v. Hammerman & Gainer, Inc. (Hammerman) 27th Jud. D. Ct. La., No. 11-C-3187-B
Williams v. Hammerman & Gainer, Inc. (Risk Management) 27th Jud. D. Ct. La., No. 11-C-3187-B
Williams v. Hammerman & Gainer, Inc. (SIF Consultants) 27th Jud. D. Ct. La., No. 11-C-3187-B
Gwiazdowski v. County of Chester (Prisoner Strip Search) E.D. Pa., No. 2:08cv4463
Williams v. S.I.F. Consultants (CorVel Corporation) 27th Jud. D. Ct. La., No. 09-C-5244-C
Sachar v. Iberiabank Corporation (Overdraft Fees) S.D. Fla., MDL No. 2036
LaCour v. Whitney Bank (Overdraft Fees) M.D. Fla., No. 8:11cv1896
Lawson v. BancorpSouth (Overdraft Fees) W.D. Ark., No. 1:12cv1016
McKinley v. Great Western Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Wolfgeher v. Commerce Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Harris v. Associated Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Case v. Bank of Oklahoma (Overdraft Fees) S.D. Fla., MDL No. 2036
Nelson v. Rabobank, N.A. (Overdraft Fees) Cal. Super. Ct., No. RIC 1101391
Fontaine v. Attorney General of Canada (Stirland Lake and Ont. Super. Ct., No. 00-CV-192059 CP Cristal Lake Residential Schools)
Opelousas General Hospital Authority v. FairPay Solutions 27th Jud. D. Ct. La., No. 12-C-1599-C
Marolda v. Symantec Corporation (Software Upgrades) N.D. Cal., No. 3:08-cv-05701
In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010—Economic and Property E.D. La., MDL No. 2179 Damages Settlement In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf E.D. La., MDL No. 2179 of Mexico, on April 20, 2010—Medical Benefits Settlement Vodanovich v. Boh Brothers Construction (Hurricane E.D. La., No. 05-cv-4191 Katrina Levee Breaches)
Gessele et al. v. Jack in the Box, Inc. D. Ore., No. 3:10-cv-960
RBS v. Citizens Financial Group, Inc. (Overdraft Fees) S.D. Fla., MDL No. 2036
In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Mastercard & Visa) – 2013 & 2019 E.D.N.Y., MDL No. 1720 Notice Programs
Saltzman v. Pella Corporation (Building Products) N.D. Ill., No. 06-cv-4481
In re Zurn Pex Plumbing, Products Liability Litigation D. Minn., MDL No. 1958
Blahut v. Harris, N.A. (Overdraft Fees) S.D. Fla., MDL No. 2036
Eno v. M & I Marshall & Ilsley Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
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Casayuran v. PNC Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Anderson v. Compass Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Evans, et al. v. TIN, Inc. (Environmental) E.D. La. No. 2:11-cv-02067
Opelousas General Hospital Authority v. Qmedtrix 27th Jud. D. Ct. La., No. 12-C-1599-C Systems, Inc.
Williams v. SIF Consultants of Louisiana, Inc. et al. 27th Jud. D. Ct. La., No. 09-C-5244-C
Miner v. Philip Morris Companies, Inc. et al. Ark. Cir. Ct., No. 60CV03-4661
Fontaine v. Attorney General of Canada (Mistassini Hostels Qué. Super. Ct., No. 500-06-000293-056 Residential Schools) & No. 550-06-000021-056 (Hull) Ont. Super. Ct., No. CV-11-4322294- Glube et al. v. Pella Corporation et al. (Building Products) 00CP
Yarger v. ING Bank D. Del., No. 11-154-LPS
Price v. BP Products North America N.D. Ill, No. 12-cv-06799
National Trucking Financial Reclamation Services, LLC et E.D. Ark., No. 4:13-cv-00250 al. v. Pilot Corporation et al.
Johnson v. Community Bank, N.A. et al. (Overdraft Fees) M.D. Pa., No. 3:12-cv-01405
Rose v. Bank of America Corporation, et al. (TCPA) N.D. Cal., No. 11-cv-02390
McGann, et al., v. Schnuck Markets, Inc. (Data Breach) Mo. Cir. Ct., No. 1322-CC00800
Simmons v. Comerica Bank, N.A. (Overdraft Fees) S.D. Fla., MDL No. 2036
George Raymond Williams, M.D., Orthopedic Surgery, a 27th Jud. D. Ct. La., No. 09-C-5242-B Professional Medical, LLC, et al. v. Bestcomp, Inc., et al.
Simpson v. Citizens Bank (Overdraft Fees) E.D. Mich, No. 2:12-cv-10267
In re Plasma-Derivative Protein Therapies Antitrust N.D. Ill, No. 09-CV-7666 Litigation
In re Dow Corning Corporation (Breast Implants) E.D. Mich., No. 00-X-0005
Mello et al v. Susquehanna Bank (Overdraft Fees) S.D. Fla., MDL No. 2036
Wong et al. v. Alacer Corp. (Emergen-C) Cal. Super. Ct., No. CGC-12-519221
In re American Express Anti-Steering Rules E.D.N.Y., 11-MD-2221, MDL No. 2221 Antitrust Litigation (II) (Italian Colors Restaurant)
Costello v. NBT Bank (Overdraft Fees) Sup. Ct. Del Cnty., N.Y., No. 2011-1037
Gulbankian et al. v. MW Manufacturers, Inc. D. Mass., No. 10-CV-10392
Hawthorne v. Umpqua Bank (Overdraft Fees) N.D. Cal., No. 11-cv-06700
Civil D. Ct., Parish of Orleans, La., No. Smith v. City of New Orleans 2005-05453
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Adkins et al. v. Nestlé Purina PetCare Company et al. N.D. Ill., No. 1:12-cv-02871
Ore. Cir., County of Multnomah, No. 1112- Scharfstein v. BP West Coast Products, LLC 17046 Given v. Manufacturers and Traders Trust Company a/k/a S.D. Fla., MDL No. 2036 M&T Bank (Overdraft Fees) In re MI Windows and Doors Products Liability Litigation D. S.C., MDL No. 2333 (Building Products)
Childs et al. v. Synovus Bank, et al. (Overdraft Fees) S.D. Fla., MDL No. 2036
E.D. La., No. 2:10-cv-01505 as part of S.D. Steen v. Capital One, N.A. (Overdraft Fees) Fla., MDL No. 2036 12th Jud. Cir. Ct., Sarasota Cnty, Fla., Kota of Sarasota, Inc. v. Waste Management Inc. of Florida No. 2011-CA-008020NC In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010—Economic and Property E.D. La., MDL No. 2179 Damages Settlement (Claim Deadline Notice)
Dorothy Williams d/b/a Dot’s Restaurant v. Waste Away Cir. Ct., Lawrence Cnty, Ala., No. 42-cv- Group, Inc. 2012- 900001.00
In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bankr. D. Del., No. 14-10979 Bar Notice)
Gattinella v. Michael Kors (USA), Inc., et al. S.D.N.Y., No. 14-civ-5731
Kerry T. Thibodeaux, M.D. (A Professional Medical 27th Jud. D. Ct. La., No. 13-C-3212 Corporation) v. American Lifecare, Inc.
Russell Minoru Ono v. Head Racquet Sports USA C.D.Cal., No. 2:13-cv-04222
Opelousas General Hospital Authority v. PPO Plus, L.L.C., 27th Jud. D. Ct. La., No. 13-C-5380 et al.
In re: Shop-Vac Marketing and Sales Practices Litigation M.D. Pa., MDL No. 2380
In re: Caterpillar, Inc. C13 and C15 Engine Products Liability D. N.J., MDL No. 2540 Litigation
In Re: Citrus Canker Litigation 11th Jud. Cir., Fla., No. 03-8255 CA 13
Whitton v. Deffenbaugh Industries, Inc., et al. D. Kan., No. 2:12-cv-02247 Gary, LLC v. Deffenbaugh Industries, Inc., et al. D. Kan., No. 2:13-cv-2634 N.D. Fla., No. 1:10-cv-00090 as part of Swift v. BancorpSouth Bank (Overdraft Fees) MDL 2036 (S.D. Fla.) Sup. Ct. Conn., No. X10-UWY-CV-12- Forgione v. Webster Bank N.A. (Overdraft Fees) 6015956-S
Small v. BOKF, N.A. D. Col., No. 13-cv-01125
Anamaria Chimeno-Buzzi & Lakedrick Reed v. Hollister Co. S.D. Fla., No. 14-cv-23120 & Abercrombie & Fitch Co.
In Re: Lithium Ion Batteries Antitrust Litigation N.D. Cal., MDL No. 2420, 4:13-MD-02420
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MSPA Claims 1, LLC v. IDS Property Casualty Insurance 11th Jud. Cir. Fla, No. 15-27940-CA-21 Company
Glaske v. Independent Bank Corporation (Overdraft Fees) Cir. Ct. Mich., No. 13-009983-CZ
In re: HSBC Bank USA, N.A., Checking Account Overdraft Sup. Ct. N.Y., No. 650562/11 Litigation
In re: Volkswagen “Clean Diesel” Marketing, Sales Practices N.D. Cal., MDL No. 2672 and Product Liability Litigation (Bosch)
Hawkins v. First Tennessee Bank, N.A., et al. (Overdraft 13th Jud. Cir. Tenn., No. CT-004085-11 Fees)
Greater Chautauqua Federal Credit Union v. Kmart Corp., et N.D. Ill., No. 1:15-cv-02228 al. (Data Breach)
Bias v. Wells Fargo & Company, et al. (Broker’s Price N.D. Cal., No 4:12-cv-00664 Opinions)
Klug v. Watts Regulator Company (Product Liability) D. Neb., No. 8:15-cv-00061
Ratzlaff et al. v. BOKF, NA d/b/a Bank of Oklahoma, et al. Dist. Ct. Okla., No. CJ-2015-00859 (Overdraft Fees)
Morton v. Greenbank (Overdraft Fees) 20th Jud. Dist. Tenn., No. 11-135-IV
Jacobs, et al. v. Huntington Bancshares Inc., et al. (FirstMerit Ohio C.P., No. 11CV000090 Overdraft Fees)
Farnham v. Caribou Coffee Company, Inc. (TCPA) W.D. Wis., No. 16-cv-00295
Gottlieb v. Citgo Petroleum Corporation (TCPA) S.D. Fla., No. 9:16-cv-81911
McKnight et al. v. Uber Technologies, Inc. et al. N.D. Cal., No 3:14-cv-05615
Lewis v. Flue-Cured Tobacco Cooperative Stabilization N.C. Gen. Ct of Justice, Sup. Ct. Div., No. Corporation (n/k/a United States Tobacco Cooperative, Inc.) 05 CVS 188, No. 05 CVS 1938
T.A.N. v. PNI Digital Media, Inc. S.D. GA., No. 2:16-cv-132
In re: Syngenta Litigation 4th Jud. Dist. Minn., No. 27-CV-15-3785
The Financial Oversight and Management Board for Puerto Rico as representative of Puerto Rico Electric Power Authority D. Puerto Rico, No. 17-04780 (“PREPA”) (Bankruptcy)
Reilly v. Chipotle Mexican Grill, Inc. S.D. Fla., No. 1:15-cv-23425
Ma et al. v. Harmless Harvest Inc. (Coconut Water) E.D.N.Y., No. 2:16-cv-07102
Mahoney v TT of Pine Ridge, Inc. S.D. Fla., No. 9:17-cv-80029
Sobiech v. U.S. Gas & Electric, Inc., i/t/d/b/a Pennsylvania Gas E.D. Penn., No. 2:14-cv-04464 & Electric, et al.
Alexander M. Rattner v. Tribe App., Inc., and S.D. Fla., No. 1:17-cv-21344 and Kenneth Horsley v. Tribe App., Inc., No. 1:17-cv-23111
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Gordon, et al. v. Amadeus IT Group, S.A., et al. S.D.N.Y. No. 1:15-cv-05457
Masson v. Tallahassee Dodge Chrysler Jeep, LLC (TCPA) S.D. Fla., No. 1:17-cv-22967
Orlander v. Staples, Inc. S.D. NY, No. 13-CV-0703
Larey v. Allstate Property and Casualty Insurance Company W.D. Kan., No. 4:14-cv-04008
Cal. Sup. Court, County of Alameda, No. Larson v. John Hancock Life Insurance Company (U.S.A.) RG16 813803
Alaska Electrical Pension Fund, et al. v. Bank of America N.A S.D.N.Y., No. 14-cv-7126 et al. (ISDAfix Instruments)
Falco et al. v. Nissan North America, Inc. et al. (Engine – CA & C.D. Cal., No. 2:13-cv-00686 WA)
Pantelyat, et al v. Bank of America, N.A. et al. (Overdraft/Uber) S.D.N.Y., No. 16-cv-08964
In re: Parking Heaters Antitrust Litigation E.D.N.Y., No. 15-MC-0940
Wallace, et al, v. Monier Lifetile LLC, et al. Sup. Ct. Cal., No. SCV-16410
In re: Windsor Wood Clad Window Products Liability Litigation E.D. Wis., MDL No. 16-MD-02688
Farrell v. Bank of America, N.A. (Overdraft) S.D. Cal., No. 3:16-cv-00492
Hale v. State Farm Mutual Automobile Insurance Company, S.D. Ill., No. 12-cv-0660 et al.
Callaway v. Mercedes-Benz USA, LLC (Seat Heaters) C.D. Cal., No. 8:14-cv-02011
Poseidon Concepts Corp. et al. (Canadian Securities Ct. of QB of Alberta, No. 1301-04364 Litigation) In re: Takata Airbag Products Liability Litigation (OEMs – S.D. Fla, MDL No. 2599 BMW, Mazda, Subaru, Toyota, Honda, and Nissan) Watson v. Bank of America Corporation et al.; Sup. Ct. of B.C., No. VLC-S-S-112003; Bancroft-Snell et al. v. Visa Canada Corporation et al.; Ontario Sup. Ct., No. CV-11-426591; Bakopanos v. Visa Canada Corporation et al.; Sup. Ct. of Quebec, No. 500-06-00549- Macaronies Hair Club and Laser Center Inc. operating as Fuze 101; Ct. of QB of Alberta, No. 1203-18531; Salon v. BofA Canada Bank et al.; Ct. of QB of Saskatchewan, No. 133 of Hello Baby Equipment Inc. v. BofA Canada Bank and others 2013 (Visa and Mastercard Canadian Interchange Fees) Vergara, et al., v. Uber Technologies, Inc. (TCPA) N.D. Ill., No. 1:15-CV-06972
Ore. Cir., County of Multnomah, No. 0803- Surrett et al. v. Western Culinary Institute, et al. 03530
Underwood v. Kohl's Department Stores, Inc., et al. E.D. Penn., No. 2:15-cv-00730
Ajose et al. v. Interline Brands Inc. (Plumbing Fixtures) M.D. Tenn., No. 3:14-cv-01707
Gergetz v. Telenav (TCPA) N.D. Cal., No. 5:16-cv-4261
Raffin v. Medicredit, Inc., et al. C.D. Cal., No 15-cv-4912
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First Impressions Salon, Inc. et al. v. National Milk Producers S.D. Ill., No. 3:13-cv-00454 Federation, et al. Abante Rooter and Plumbing v. Pivotal Payments Inc., d/b/a/ N.D. Cal., No. 3:16-cv-05486 Capital Processing Network and CPN) (TCPA)
Dipuglia v. US Coachways, Inc. (TCPA) S.D. Fla., No. 1:17-cv-23006
Knapper v. Cox Communications D. Ariz., No. 2:17-cv-00913
Martin v. Trott (MI - Foreclosure) E.D. Mich., No. 2:15-cv-12838
Cowen v. Lenny & Larry's Inc. N.D. Ill., No. 1:17-cv-01530 Al's Pals Pet Card, LLC, et al v. Woodforest National Bank, S.D. Tex., No. 4:17-cv-3852 N.A., et al. In Re: Community Health Systems, Inc. Customer Data N.D. Ala., MDL No. 2595, 2:15-CV-222 Security Breach Litigation Tashica Fulton-Green et al. v. Accolade, Inc. E.D. Penn., No. 2:18-cv-00274 37 Besen Parkway, LLC v. John Hancock Life Insurance S.D.N.Y., No. 15-cv-9924 Company (U.S.A.) Stahl v. Bank of the West Sup. Ct. Cal., No. BC673397 Parsons v. Kimpton Hotel & Restaurant Group, LLC (Data N.D. Cal., No. 3:16-cv-05387 Breach) Waldrup v. Countrywide C.D. Cal., No. 2:13-cv-08833 In re: Valley Anesthesiology Consultants, Inc. Data Breach Sup. Ct. Cal., No. CV2016-013446 Litigation Naiman v. Total Merchant Services, Inc., et al. (TCPA) N.D. Cal., No. 4:17-cv-03806
In re Dealer Management Systems Antitrust Litigation N.D. Ill., MDL No. 2817, No. 18-cv-00864
In re HP Printer Firmware Update Litigation N.D. Cal., No. 5:16-cv-05820
Zaklit, et al. v. Nationstar Mortgage LLC, et al. (TCPA) C.D. Cal., No. 5:15-CV-02190
Luib v. Henkel Consumer Goods Inc. E.D.N.Y., No. 1:17-cv-03021
Lloyd, et al. v. Navy Federal Credit Union S.D. Cal., No. 17-cv-1280
Waldrup v. Countrywide Financial Corporation, et al. C.D. Cal., No. 2:13-cv-08833
Adlouni v. UCLA Health Systems Auxiliary, et al. Sup. Ct. Cal., No. BC589243
Di Filippo v. The Bank of Nova Scotia, et al. (Gold Market Ontario Sup. Ct., No. CV-15-543005- Instrument) 00CP & No. CV-16-551067-00CP Ontario Sup Ct., No. CV-16-543833- 00CP; Quebec Sup. Ct of Justice, No. McIntosh v. Takata Corporation, et al.; Vitoratos, et al. v. Takata 500-06-000723-144; & Court of Queen’s Corporation, et al.; and Hall v. Takata Corporation, et al. Bench for Saskatchewan, No. QBG. 1284 or 2015 Quebec Ct., Dist. of Montreal, No. 500-06- Rabin v. HP Canada Co., et al. 000813-168 Lightsey, et al. v. South Carolina Electric & Gas Company, a Ct. of Com. Pleas., S.C., No. 2017-CP-25- Wholly Owned Subsidiary of SCANA, et al. 335
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In re: Comcast Corp. Set-Top Cable Television Box Antitrust E.D. Penn., No. 2:09-md-02034 Litigation Henrikson v. Samsung Electronics Canada Inc. Ontario Sup. Ct., No. 2762-16cp
Burrow, et al. v. Forjas Taurus S.A., et al. S.D. Fla., No. 1:16-cv-21606
Waldrup v. Countrywide Financial Corporation, et al. C.D. Cal., No. 2:13-cv-08833
Jackson v. Viking Group D. Md., No. 8:18-cv-02356
Walters v. Target Corp (Overdraft) S.D. Cal., No. 3:16-cv-1678
Skochin et al. v. Genworth Life Insurance Company, et al. E.D. Vir., No. 3:19-cv-00049 Rose et al. v. The Travelers Home and Marine Insurance E.D. Penn., No. 19-cv-977 Company Nelson v. Roadrunner Transportation Systems, Inc. (Data N.D. Ill., No. 1:18-cv-07400 Breach) Sup. Ct, Cal., County of Riverside, In re: Renovate America Finance Cases No. RICJCCP4940
Behfarin v. Pruco Life Insurance Company, et al. C.D. Cal., No. 2:17-05290
S.D. Fla., No. 1:10-CV-22190, as part Dasher v. RBC Bank (USA) (Overdraft) MDL 2036 (S.D. Fla.) E.D. Mich., No. MDL No. 2744, 16-md- In re: FCA US LLC Monostable Electronic Gearshift Litigation 02744 Lehman v. Transbay Joint Powers Authority, et al. (Millennium Sup. Ct. of Cal., Cnty of San Fran., Tower) No. GCG-16-553758
Pirozzi, et al. v. Massage Envy Franchising, LLC E.D. Mo., No. 4:19-CV- 807
Cox, et al. v. Ametek, Inc. et al. S.D. Cal., No. 3:17-cv-00597 Danielle Trujillo, et al. v. Ametek, Inc. et al (Toxic Leak) S.D. Cal., No.3:15-cv-01394
Lashambae v. Capital One (Overdraft) E.D.N.Y, No. 1:2017-cv-06406 Harris et al. v. Farmers Insurance Exchange and Mid Century Sup.Ct Cal., No. BC 579498 Insurance Company Grayson v. General Electric Company D. Conn., No. 3:13-cv-01799
Elder v. Hilton Worldwide Holdings, Inc. N.D. Cal., No. 16-cv-00278 In Re: Premera Blue Cross Customer Data Security Breach D. Ore., No. 3:15-md-2633 Litigation Lusnak v. Bank of America, N.A. C.D. Cal., No. 14-cv-1855
Kuss v. American HomePatient, Inc. et al. M.D. Fla., No. 8:18-cv-2348
In re: Kaiser Gypsum Company, Inc., el al. Bankr. W.D. N.C., No. 16-31602 Stone et al. v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a E.D. Tex., No. 4:17-cv-00001 Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens In Re Optical Disk Drive Products Antitrust Litigation N.D. Cal., No. 3:10-md-2143 In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices N.D. Cal., MDL No. 2672 and Products Liability Litigation
PORTLAND AREA OFFICE 10300 SW ALLEN BLVD BEAVERTON, OR 97005 T 503-597-7697
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McKinney-Drobnis, et al. v. Massage Envy Franchising N.D. Cal., No. 3:16-cv-6450
Albrecht v. Oasis Power, LLC d/b/a Oasis Energy N.D. Ill., No. 1:18-cv-1061
Garcia v. Target Corporation (TCPA) D. Minn., No. 16-cv-02574
Liggio v. Apple Federal Credit Union E.D. Vir., No. 1:18-cv-01059
In Re: TD Bank, N.A. Debit Card Overdraft Fee Litigation D. S.C, MDL No. 2613, No. 6:15-MN-02613 Fessler v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a E.D. Tex., No. 4:19-cv-00248 Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens D. Ct. of Travis County Tex., No. D-1-GN- Hyder, et al. v. Consumers County Mutual Insurance Company 16-000596
Audet et al. v. Garza et al. D. Conn., No. 3:16-cv-00940
In Re: Disposable Contact Lens Antitrust Litigation M.D. Fla., No. 3:15-md-2626
Coffeng v. Volkswagen Group of America, Inc., N.D. Cal., No. 3:17-cv-01825
Ciuffitelli, et al. v. Deloitte & Touche LLP, et al. D. Ore., No. 3:16-cv-00580
In Re Wells Fargo Collateral Protection Insurance Litigation C.D. Cal., No. 8:17-ML-2797
Prather v. Wells Fargo Bank, N.A. (TCPA) N.D. Ill., No. 1:17-cv-00481
Wilson et al. v. Volkswagen Group of America, Inc. et al. S.D. Fla., No. 17-cv-23033
Sup. Ct. Wash., No. 17-2-23244-1 SEA Armon et al. v. Washington State University (consolidated with No. 17-2-25052-0 SEA)
Burch v. Whirlpool Corporation W.D. Mich., No. 1:17-cv-18
Robinson v. First Hawaiian Bank (Overdraft) Cir. Ct. of First Cir. Haw., No. 17-1-0167-01
Denier, et al. v. Taconic Biosciences, Inc. Sup Ct. N.Y., No. 00255851
Hilsoft-cv-144
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Attachment 2 Case 5:17-cv-00551-LHK Document 435-2 Filed 01/04/21 Page 67 of 83
From: Do_not_reply_graceclassaction Sent: Thursday, October 08, 2020 3:06 PM To: Subject: Grace v Apple Notice of Settlement
CAUTION: This email originated from outside of Epiq. Do not click links or open attachments unless you recognize the sender and know the content is safe.
If you own or owned a non-jailbroken Apple iPhone 4 or Apple iPhone 4S device that on April 16, 2014, had an iOS 6 or earlier operating system, and if you were in California on that date, you could get a payment from a class action settlement.
A settlement has been reached with Apple Inc. in a class action lawsuit alleging that Apple Inc. (“Apple” or the “Defendant”) interfered with “FaceTime” for iOS 6 and earlier operating systems on April 16, 2014. The lawsuit alleges that this caused Apple’s FaceTime feature to no longer work on Apple iPhone 4 or iPhone 4S devices unless users updated the operating system on their devices to the then- current iOS 7 release. Apple denies all allegations of wrongdoing.
You received this email because Apple’s records indicate you may be a Class Member and entitled to receive a payment. The Court decided that the Class includes all owners of non-“jailbroken” Apple iPhone 4 or iPhone 4S devices who on April 16, 2014, had iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices, and who were in California on that date. A “jailbroken” iPhone is one where the user has intentionally removed programmed limitations in order to modify the functionality of the iPhone, run unauthorized applications, or otherwise change the performance of the iPhone.
What are your options?
Stay in the Class and Receive a Settlement Payment. An $18 million settlement fund will be established. If you are a Class Member, and you remain in the Class, you will receive a settlement payment if the Court grants final approval to the settlement. You will give up the right to sue Apple in a separate lawsuit regarding the subject matter of the claims this settlement resolves. o If you received this notice from the Settlement Administrator, that means Apple has determined from its records that you may be a Class Member. If you do nothing you will remain in the Class and automatically receive a digital check via email or physical check via U.S. Mail for your payment under the proposed settlement. No further action is required on your part. o If you did not receive this notice from the Settlement Administrator (for example, if someone forwarded it to you), and you believe you are a Class Member, you must complete and submit a valid Application for Inclusion in the Class by December 9, 2020, in order to receive a payment under the proposed settlement. Applications for Inclusion in the Class may be submitted online at www.GraceClassAction.com. All applications are subject to verification and validation.
Ask to be Excluded. If you decide to exclude yourself, you will keep the right to sue Apple in a separate lawsuit about the subject matter of the claims this settlement resolves, but you give up the right to get a payment from this settlement. This is the only option that allows you to sue, continue to sue, or be part of another lawsuit against Apple related to the subject matter of the claims in this case. Instructions for requesting to exclude yourself from the settlement can be
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found at www.GraceClassAction.com. Your exclusion request must be received by December 9, 2020.
Object to the Settlement. If you do not exclude yourself from the settlement, you may object to it by writing to the Court about why you don’t like the settlement. You may also attend the Court’s Final Approval Hearing and ask the Court for permission to speak about your objection. You may also hire your own attorney, at your own expense, to appear or speak for you at the hearing. Instructions for objecting and attending the hearing can be found at www.GraceClassAction.com. Your objection must be filed or postmarked on or before December 9, 2020.
More detailed information, including the Settlement Agreement, is available at www.GraceClassAction.com or by calling 1-866-977-0759.
This Notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the settlement agreement available at www.GraceClassAction.com, by contacting Class Counsel (shown below), by accessing the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, United States District Court for the Northern District of California, Robert F. Peckham Federal Building & United States Courthouse, 280 South 1st Street, Room 2112, San Jose, CA 95113, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS.
Jill M. Manning, Esq. Daniel L. Warshaw, Esq. Steyer Lowenthal Boodrookas Alvarez & Pearson, Simon & Warshaw, LLP Smith LLP (818) 788-8300 (415) 421-3400 [email protected] [email protected]
David F.E. Tejtel, Esq. John Austin Curry, Esq. Friedman Oster & Tejtel PLLC Caldwell Cassady & Curry LLP (888) 529-1108 (214) 888-4848 [email protected] [email protected]
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Attachment 4 Case 5:17-cv-00551-LHK Document 435-2 Filed 01/04/21 Page 73 of 83
Grace v Apple Class Action Administrator P.O. Box 2299 Portland, OR 97208-2299
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Grace v. Apple Opt-Out List
No. First Name Middle Name Last Name Timely 1 MARTIN REDDY Yes 2 DINAKARAN CHIDAMBARAM Yes 3 MELVIN BELSKY Yes 4 KAREN BELSKY Yes 5 STEPHAN CHOCHIAN Yes 6 TAMARA MEHLING Yes 7 GEORGE G SHAPOVALOV Yes 8 MONIQUE BARTHES Yes 9 MIKE JACKSON Yes 10 DOUGLAS WARY No Case 5:17-cv-00551-LHK Document 435-3 Filed 01/04/21 Page 1 of 6
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8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 10 CHRISTINA GRACE and KEN POTTER, CASE NO. 5:17-cv-00551-LHK-NC Individually and on Behalf of All Others 11 Similarly Situated, CLASS ACTION
12 Plaintiffs, [PROPOSED] ORDER GRANTING 13 FINAL APPROVAL OF CLASS ACTION vs. SETTLEMENT 14 APPLE INC., Judge: Hon. Lucy H. Koh 15 16 Defendant.
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1 This matter comes before the Court on Plaintiffs’ motion for final approval of the proposed 2 class action settlement. Plaintiffs Christina Grace and Ken Potter (“Plaintiffs”), individually and on 3 behalf of the proposed settlement class, and Apple Inc. (“Defendant”) have entered into a Settlement 4 Agreement that, if approved, would settle the above-captioned litigation (the “Action”). This Court 5 reviewed the motion, including the Settlement Agreement, supporting declaration of Class Counsel, 6 and declaration of Cameron R. Azari of Epiq Class Action & Claims Solutions, Inc. On February 7 8, 2021, this Court heard Plaintiffs’ motion for final approval of class settlement.
8 Having considered the motion, the Settlement Agreement together with all exhibits and 9 attachments thereto, the record in this matter, and the briefs and arguments of counsel, the Court 10 GRANTS the motion and finds as follows: 11 Unless otherwise defined herein, all terms that are capitalized herein shall have the meanings 12 ascribed to those terms in the Settlement Agreement. The Court has jurisdiction over the subject 13 matter of the Settlement Agreement with respect to and over all parties to the Settlement Agreement, 14 including all Settlement Class Members and Defendant.
15 I. THE SETTLEMENT CLASS SATISFIES RULE 23 16 On September 19, 2018, this Court issued a Class Certification Order certifying a class 17 pursuant to Federal Rule of Civil Procedure (“Rule”) 23(b)(3) defined as “[a]ll owners of non- 18 jailbroken Apple iPhone 4 or Apple iPhone 4S devices in California who on April 16, 2014, had 19 iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices.” Dkt. No. 269. On 20 September 10, 2020, this Court issued an Order preliminarily approving the Settlement and finding 21 that the proposed Settlement Class was consistent with the previously-certified class, and therefore
22 met the requirements of Rule 23. Dkt No. 426. The Court also appointed Plaintiffs Grace and Potter 23 as Settlement Class Representatives, and Jill M. Manning, Daniel L. Warshaw, David F.E. Tejtel, 24 and John Austin Curry, on behalf of their firms, as Class Counsel. Id. 25 The Court finds that the Settlement Class meets the Rule 23 requirements and certifies the 26 Settlement Class. 27 II. THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE 28 In evaluating a proposed class action settlement under Federal Rule of Civil Procedure 23(e),
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1 the standard is whether the settlement “is fundamentally fair, adequate and reasonable.” Officers 2 for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982); accord Torrisi v. Tucson Elec. 3 Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993). A district court may consider some or all of the 4 following factors when making this determination: “the strength of plaintiffs’ case; the risk, expense, 5 complexity, and likely duration of further litigation; the risk of maintaining class action status 6 throughout the trial; the amount offered in settlement; the extent of discovery completed, and the 7 stage of the proceedings; the experience and views of counsel; the presence of a governmental
8 participant; and the reaction of the class members to the proposed settlement.” Officers for Justice, 9 688 F.2d at 625. The Court, considering these factors, finds that the Settlement is fair, adequate, 10 and reasonable. 11 First, the Settlement reflects the strength of Plaintiffs’ case as well as the Defendant’s 12 position. This Court has been “exposed to the litigants, and their strategies, positions and proof,” 13 (Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (quoting Officers for Justice, 688 14 F.2d at 626)), and finds that the judicial policy favoring the compromise and settlement of class
15 action suits is applicable here. See Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 16 1992)). The Court is also satisfied that the Settlement was reached after arm’s length negotiations 17 by capable counsel, aided by an experienced mediator and United States Magistrate Judge, and was 18 not a product of fraud, overreaching, or collusion among the parties. Id. at 1290. 19 Second, the risks, expense, complexity, and likely duration of further litigation also support 20 final approval. This matter was settled on the eve of trial and may have been the subject of potential 21 appeals. By contrast, the Settlement provides the Settlement Class with timely and certain recovery.
22 Third, as a result of this Settlement, Apple has agreed to fund an $18 million non- 23 reversionary Settlement Fund for the benefit of the Settlement Class. The size of this Settlement 24 Fund provides adequate recovery to the Settlement Class. 25 Fourth, the extent of discovery completed and the stage of proceedings support approval. 26 The parties engaged in significant motion practice, including a motion to dismiss, a motion for class 27 certification, a Rule 23(f) petition, 12 discovery motions, a summary judgment motion, 6 motions 28 in limine and a Daubert motion to exclude the testimony and opinions of Plaintiffs’ two experts.
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1 The parties ultimately settled shortly before trial. Both parties had therefore developed a perspective 2 on the strengths and weaknesses of their respective cases in order to “make an informed decision 3 about settlement.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (quoting 4 Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998)). The adversarial nature of 5 the litigation of this matter is indicative of a lack of collusion. 4 Newberg on Class Actions § 13:50 6 (5th ed. 2018). 7 Fifth, the views of Plaintiffs’ counsel, who are experienced in litigating and settling complex
8 consumer class actions, weigh in favor of final approval. Linney, 1997 WL 450064, at *5. Class 9 Counsel endorses the Settlement as fair, adequate, and reasonable. See Declaration of Daniel L. 10 Warshaw, ¶ 24. 11 Finally, the reaction of the Settlement Class Members supports the Court’s final approval of 12 the Settlement. Out of the approximately 3.2 million Settlement Class Members, only nine opted 13 out (.00028125%) and one objected (.00003125%). See Declaration of Cameron R. Azari, ¶¶ 36- 14 37. Such low rates of objections and opt-outs are “indicia of the approval of the class.” Hughes v.
15 Microsoft Corp., No. C98-1646C, C93-0178C, 2001 WL 34089697, at *1, *8 (W.D. Wash. Mar. 16 26, 2001) (finding indicia of approval when 9 class members out of 37,155, or just over .02%, who 17 received notice submitted objections, and “less than 1%” opted out); see also Sugarman v. Ducati 18 N. Am., Inc., No. 5:10-CV-05246-JF, 2012 WL 113361, at *3 (N.D. Cal. Jan. 12, 2012) (objections 19 from 42 of 38,774 class members—more than 0.1 percent—is a “positive response”); Churchill 20 Vill., LLC v. Gen. Elec., 361 F.3d 566, 577 (9th Cir. 2004) (affirming district court’s approval of 21 settlement where forty-five of 90,000 class members objected to the settlement (.05%), and 500
22 class members opted out (.56%)). 23 The Court has reviewed the objection of Steven F. Helfand (Dkt. No. 428) and finds that he 24 has failed to establish membership in the Settlement Class and, therefore, lacks standing to object 25 to the settlement. See Moore v. Verizon Commc’ns, Inc., No. C 09-1823 SBA, 2013 WL 450365, 26 *4 (N.D. Cal. Feb. 5. 2013) (“[N]on-class members have no standing to object to the settlement of 27 a class action.”). Indeed, Mr. Helfand had the burden of establishing standing, and failed to do so. 28 See In re Hydroxycut Mktg. & Sales Practices Litig., No. 09CV1088 BTM KSC, 2013 WL 5275618,
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1 at *2 (S.D. Cal. Sept. 17, 2013) (“The party seeking to invoke the Court’s jurisdiction—in this case, 2 the Objectors—has the burden of establishing standing.”). The Court further finds that each of Mr. 3 Helfand’s objections to the Settlement lack merit. Accordingly, the Court overrules Mr. Helfand’s 4 objection. 5 III. THE NOTICE PLAN IS APPROPRIATE 6 Federal Rule of Civil Procedure 23(c)(2)(B) requires that the settling parties provide class 7 members with “the best notice that is practicable under the circumstances, including individual
8 notice to all members who can be identified through reasonable effort. The notice must clearly and 9 concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition 10 of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter 11 an appearance through an attorney if the member so desires; (v) that the court will exclude from the 12 class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and 13 (vii) the binding effect of a class judgment on members under Rule 23(c)(3).” 14 The Court finds that the Notice Plan, which was direct notice sent to 99.8% of the Settlement
15 Class via email and U.S. Mail, has been fully implemented in compliance with this Court’s Order 16 (Dkt. No. 426) and complies with Rule 23(c)(2)(B). 17 IV. THE DISTRIBUTION PLAN IS FAIR, REASONABLE, AND ADEQUATE 18 The Court finds that the distribution plan is fair, adequate, and reasonable, particularly as it 19 is recommended by experienced and competent counsel. See Rieckborn v. Velti PLC, No. 13-CV- 20 03889-WHO, 2015 WL 468329, at *8 (N.D. Cal. Feb. 3, 2015) (quoting Vinh Nguyen v. Radient 21 Pharm. Corp., No. 11-CV-00406, 2014 WL 1802293, at *5 (C.D. Cal. May 6, 2014)). The
22 distribution plan contemplated by the Settlement Agreement passes muster. Here, the amount of 23 payments to each participating Settlement Class Member will be calculated based on each 24 Settlement Class Member’s proportional share of the Net Settlement Fund, i.e., the Net Settlement 25 Fund balance divided by the total number of eligible devices. Indeed, all Settlement Class Members 26 benefit from this monetary relief, particularly given that the vast majority of Settlement Class 27 Members will receive payment automatically without the need to file a claim form. 28 If, following the initial distribution of Settlement funds to the Settlement Class Members,
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1 there exist unclaimed funds in the Settlement Fund, the Parties will meet and confer pursuant to the 2 Settlement Agreement. If the parties are unable to reach agreement on distribution of any unclaimed 3 funds, they are directed to comply with the terms of the Settlement Agreement and file with the 4 Court a brief supporting the Parties’ respective positions regarding an allocation plan (i.e., a second 5 distribution, donation via cy pres to the Consumer Federation of America or escheatment to the state 6 of California). Under no circumstances shall any Settlement Funds revert to Apple. 7 V. CONCLUSION
8 For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for final approval of the 9 proposed class action Settlement. 10 11 IT IS SO ORDERED. 12 13 14 DATED: ______, 2021
15 16 Hon. Lucy H. Koh 17 United States District Court Judge
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