Legere-Gordon v. FirstCredit Incorporated

[7] 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- [11] 12 NAOMI LEGERE-GORDON, No. 1:19-cv-360 WBS individually and on behalf all 13 others similarly situated, 14 Plaintiff, MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY 15 v. APPROVAL OF CLASS ACTION SETTLEMENT 16 FIRSTCREDIT INCORPORATED, 17 Defendant. [18] 19 ----oo0oo---- 20 Plaintiff Naomi Legere-Gordon, individually and on 21 behalf of all other similarly situated persons, brought this 22 putative class action against defendant Firstcredit Incorporated 23 (“defendant” or “FCI”), alleging violations of the Telephone 24 Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 . (See 25 Compl. (Docket No. 1).) Plaintiff has filed an unopposed motion 26 for preliminary approval of a class action settlement. (Mot. for 27 Prelim. Approval (Docket No. 38).) On December 9, 2020, the 28 court held a hearing on plaintiff’s motion. (See Docket No. 40.) 1 After expressing concern with the parties’ proposed notice plan, 2 the court continued the hearing to January 25, 2021, so the 3 parties could negotiate a new plan for issuing notice to members 4 of the class. (See id.) The parties submitted a Joint Status 5 Report containing an updated proposed notice plan on January 19, 6 2021. (See Joint Status Report (Docket No. 41).) Based on 7 plaintiff’s motion, the court’s December 9, 2020, and January 25, 8 2021 hearings, and the parties’ Joint Status Report, the court 9 hereby issues the following Order granting plaintiff’s motion for 10 preliminary approval. 11 I. Factual and Procedural Background 12 Plaintiff filed her complaint in this court on 13 September 18, 2019. (See Compl.) The complaint alleges that 14 plaintiff received calls on her cellular phone from a number 15 associated with defendant on “numerous” occasions. (See Compl. 16 ¶¶ 25-29.) Upon answering these calls, plaintiff alleges, a 17 prerecorded message would state “Thank you for calling FCI . . . 18 .” (See id.) Though plaintiff never gave permission for FCI to 19 contact her, she alleges that defendant continued to call her 20 cellular phone anyway. (See Compl. ¶¶ 30-31.) Plaintiff’s 21 complaint further alleges that she represents a class of persons 22 throughout the United States to whom defendant placed, or caused 23 to be placed, similar calls over the last four years. (See 24 Compl. ¶¶ 43-70.) 25 The TCPA prohibits the use of automatic telephone 26 dialing systems (“ATDS”) to call any cellular telephone number in 27 the absence of an emergency or prior express consent of the 28 receiving party. See 47 U.S.C. § 227 (b)(1)(A)(iii). Based on 1 the frequency, number, nature, and character of the calls that 2 she received, plaintiff claims that defendant utilized an ATDS to 3 call her and other class members’ cellular phones in violation of 4 the TCPA. (See Compl. ¶¶ 34-42, 71-73.) Plaintiff alleges that 5 this ATDS employed a complex set of algorithms to automatically 6 generate and call numbers in a manner that “predicted” the time 7 when a consumer would answer the phone and be available to take 8 the call. (See id.) 9 Defendant filed an answer denying liability. (See 10 Docket No. 14.) Over the next year, the parties engaged in 11 discovery before participating in an all-day mediation before the 12 Hon. James Ware (Ret.) of JAMS on September 15, 2020. (See Decl. 13 of Anthony Paronich (“Paronich Decl.”) ¶ 12 (Docket No. 38-2).) 14 The parties reached a tentative agreement through this mediation, 15 and engaged in further negotiations over the next month to 16 produce the final settlement agreement before the court today 17 (the “Settlement Agreement”). (See id.) 18 As proposed, the Settlement Agreement contemplates a 19 release of all claims for injunctive relief asserted in this 20 action by the settlement class, defined as 21 All natural and juridical persons within the United States (1) to whom FCI placed, or 22 caused to be placed, a call, (2) directed to a number assigned to a cellular telephone 23 service, but not assigned to the intended recipient of Defendant’s calls, (3) by using 24 an automatic telephone dialing system or an artificial or prerecorded voice, (4) from 25 September 18, 2015 through the date the Order of Preliminary Approval of Class 26 Action Settlement is entered by the Court. 27 (See Mot. for Prelim. Approval, Ex. 1 (“Settlement Agreement”) at 28 3-4 (Docket No. 38-1).) The proposed settlement class consists 1 of approximately 33,172 recipients of defendants’ calls. (See 2 Paronich Decl. ¶ 11.) 3 The TCPA’s statutory damages provision awards a minimum 4 of $500 in damages per violative call. See 47 U.S.C. § 5 227(b)(3)(B). Given the number of violative calls at issue here, 6 plaintiff estimates that a judgment in this case would total at 7 least $16,500,000. (See Paronich Decl. ¶ 9.) The parties 8 represent that, based on financial documents produced by 9 defendant in discovery, this amount far exceeds defendant’s 10 ability to pay. (See id.) 11 Accordingly, the settlement does not provide class 12 members with any monetary relief, and instead seeks injunctive 13 relief requiring defendant to implement changes to its calling 14 practices. (See Settlement Agreement.) Specifically, defendant 15 must determine which phone numbers on its call lists are cellular 16 numbers and scrub those numbers from its lists (unless defendant 17 has a good faith basis to believe that consent to call the number 18 has been given); revise its TCPA processes, procedures, and 19 training materials and implement training for its employees 20 regarding these processes and procedures; and issue quarterly 21 reports concerning TCPA litigation and proof of compliance to 22 class counsel throughout the 2-year duration of the injunctive 23 period. (See id. at Ex. 5.) 24 In exchange for this injunctive relief, class members 25 waive their right to bring claims for injunctive relief or to 26 participate in any class or representative proceeding related to 27 claims that they received phone calls from defendant in violation 28 of the TCPA between September 18, 2015, and the date of 1 preliminary approval. (See id. ¶ 21 .) The settlement does not 2 require class members to release any individual claims for 3 damages they may have against FCI. (See id.) 4 The Settlement Agreement further provides for an award 5 of $180,000 in attorney’s fees and costs, subject to court 6 approval, and an incentive award for plaintiff of $3,500. (See 7 Settlement Agreement at 11.) The settlement states that class 8 counsel will be responsible for reimbursing the settlement 9 administrator for all costs of settlement administration. (See [10] id. ¶ 11 .) 11 The proposed Notice of Class Settlement calls for 12 notice to be published in summary form in two consecutive Monday 13 editions of USA Today. (See id. ¶ 12 .) This summary will direct 14 members of the settlement class to a website created by the 15 settlement administrator. (Id.) The settlement administrator 16 will also create a call center reachable at a toll-free number 17 that is dedicated to answering class members’ questions and to 18 providing information regarding the settlement. (Id.) As 19 proposed, the Notice published on the settlement website will 20 inform class members of the injunctive relief provided by the 21 settlement, of their right to object and attend a fairness 22 hearing, that the settlement will waive their right to pursue 23 claims for damages in a class action setting while preserving 24 their right to pursue individual damages claims against 25 defendant. (See id. at Ex. 4.) 26 II. Discussion 27 Federal Rule of Civil Procedure 23(e) provides that 28 “[t]he claims, issues, or defenses of a certified class may be 1 settled . . . only with the court’s approval.” Fed. R. Civ. P. 2 23(e). “To vindicate the settlement of such serious claims, 3 however, judges have the responsibility of ensuring fairness to 4 all members of the class presented for certification.” Staton v. 5 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). “Where [] the 6 parties negotiate a settlement agreement before the class has 7 been certified, settlement approval requires a higher standard of 8 fairness and a more probing inquiry than may normally be required 9 under Rule 23(e).” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035 , 10 1048 (9th Cir. 2019) (citation and internal quotations omitted). 11 The approval of a class action settlement takes place 12 in two stages. In the first stage, “the court preliminarily 13 approves the settlement pending a fairness hearing, temporarily 14 certifies a settlement class, and authorizes notice to the 15 class.” Ontiveros v. Zamora, No. 2:08-567 WBS DAD, 2014 WL 16 3057506, at *2 (E.D. Cal. July 7, 2014). In the second, the 17 court will entertain class members’ objections to (1) treating 18 the litigation as a class action and/or (2) the terms of the 19 settlement agreement at the fairness hearing. Id. The court 20 will then reach a final determination as to whether the parties 21 should be allowed to settle the class action following the 22 fairness hearing. Id. 23 Consequently, this order “will only determine whether 24 the proposed class action settlement deserves preliminary 25 approval and lay the groundwork for a future fairness hearing.” 26 See id. (citations omitted). 27 A. Class Certification 28 To be certified, the putative class must satisfy both 1 the requirements of Federal Rule of Civil Procedure 23(a) and 2 (b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 3 2013). Each will be discussed in turn. 4 1. Rule 23(a) 5 In order to certify a class, Rule 23(a)’s four 6 threshold requirements must be met: numerosity, commonality, 7 typicality, and adequacy of representation. Fed. R. Civ. P. 8 23(a). “Class certification is proper only if the trial court 9 has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has 10 been satisfied.” Wang v. Chinese Daily News, Inc., 737 F.3d 538 , 11 542-43 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, [12] 564 U.S. 338, 351 (2011)). 13 a. Numerosity 14 While Rule 23(a)(1) requires that the class be “so 15 numerous that joinder of all members is impracticable,” Fed. R. 16 Civ. P. 23(a)(1), it does not require “a strict numerical cut17 off.” McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142 , 167 18 (S.D. Cal. 2019) (citations omitted). Generally, “the numerosity 19 factor is satisfied if the class compromises 40 or more members.” [20] Id. (quoting Celano v. Marriott Int’l, Inc., 242 F.R.D. 544 , 549 21 (N.D. Cal. 2007)). Here, plaintiff’s expert estimates that there 22 are 33,172 class members. (See Paronich Decl. ¶ 11.) The 23 numerosity element is therefore satisfied. 24 b. Commonality 25 Next, Rule 23(a) requires that there be “questions of 26 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 27 Rule 23(a)(2) is satisfied when there is a “common contention . . 28 . of such a nature that it is capable of classwide resolution -- 1 which means that determination of its truth or falsity will 2 resolve an issue that is central to the validity of each one of 3 the claims in one stroke.” Dukes, 564 U.S. at 350 . “Plaintiffs 4 need not show that every question in the case, or even a 5 preponderance of questions, is capable of classwide resolution. 6 So long as there is ‘even a single common question,’ a would-be 7 class can satisfy the commonality requirement of Rule 23(a)(2).” 8 Wang, 737 F.3d at 544 (citing id.). 9 Here, the claims implicate common questions of law and 10 fact because they are premised on conduct that was directed 11 toward all class members equally. All class members are alleged 12 to have received calls from defendant on their cellular telephone 13 through use of an ATDS without their consent. (See Compl. ¶¶ 3414 42, 71-73.) The class members therefore share several factual 15 questions, including whether defendant called their cellular 16 telephone, whether that call was generated using an ATDS, and 17 whether they had given prior consent. (See id.) These factual 18 questions give rise to a common legal question: whether 19 defendant’s calls violated the TCPA, 47 U.S.C. § 227 . 20 Generally, “challeng[ing] a policy common to the class 21 as a whole creates a common question whose answer is apt to drive 22 the resolution of the litigation.” Ontiveros, 2014 WL 3057506 , 23 at *5. Even if individual members of the class would be entitled 24 to different amounts of damages because, for instance, they 25 received a different number of autodialed calls from defendant, 26 “the presence of individual damages cannot, by itself, defeat 27 class certification.” Leyva, 716 F.3d at 514 (quoting Dukes, 564 28 U.S. at 362). Accordingly, these common questions of law and 1 fact satisfy Rule 23(a)’s commonality requirement. 2 c. Typicality 3 Rule 23(a) further requires that the “claims or 4 defenses of the representative parties [be] typical of the claims 5 or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The test 6 for typicality is “whether other members have the same or similar 7 injury, whether the action is based on conduct which is not 8 unique to the named plaintiffs, and whether other class members 9 have been injured by the same course of conduct.” Sali v. Corona 10 Reg’l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (quoting 11 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 12 Here, the named plaintiff satisfies the typicality requirement, 13 as she and the other class members all allegedly received the 14 same calls from defendant in violation of the TCPA. (See Compl. 15 ¶¶ 34-42, 71-73.) 16 d. Adequacy of Representation 17 Finally, Rule 23(a) requires that “the representative 18 parties will fairly and adequately protect the interests of the 19 class.” Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) “serves to 20 uncover conflicts of interest between named parties and the class 21 they seek to represent” as well as the “competency and conflicts 22 of class counsel.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591 , 23 625, 626 n.20 (1997). The court must consider two factors: (1) 24 whether the named plaintiff and his counsel have any conflicts of 25 interest with other class members and (2) whether the named 26 plaintiff and his counsel will vigorously prosecute the action on 27 behalf of the class. In re Hyundai and Kai Fuel Econ. Litig., [28] 926 F.3d 539, 566 (9th Cir. 2019) (quoting Hanlon v. Chrysler 1 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). 2 i. Conflicts of Interest 3 The first portion of the adequacy inquiry considers 4 whether plaintiff’s interests are aligned with those of the 5 class. “[A] class representative must be part of the class and 6 possess the same interest and suffer the same injury as the class 7 members.” Amchem, 521 U.S. at 625-26 (internal modifications 8 omitted). 9 The named plaintiff’s interests appear to be generally 10 aligned with those of the class, as she allegedly received the 11 same calls from defendant using an ATDS. (See generally Compl.) 12 However, plaintiff alone stands to benefit for her participation 13 in this litigation by receiving an incentive award of $3,500. 14 (Settlement Agreement ¶ 29.) The use of an incentive award 15 raises the possibility that plaintiff’s interest in receiving 16 that award via settlement will cause her interests to diverge 17 from the class’s, especially considering that the rest of the 18 class will not receive monetary compensation. Staton, 327 F.3d 19 at 977-78. Consequently, the court must “scrutinize carefully 20 the awards so that they do not undermine the adequacy of the 21 class representatives.” Radcliffe v. Experian Info. Sys., Inc., [22] 715 F.3d 1157, 1163 (9th Cir. 2013). 23 Plaintiff’s requested incentive award of $3,500 24 represents an award that is different in kind and substantially 25 greater in amount than the benefits that will accrue to other 26 class members, given that the Settlement Agreement only provides 27 class members with injunctive relief. (See Settlement Agreement 28 ¶ 13.) However, incentive awards “are intended to compensate 1 class representatives for work done on behalf of the class, to 2 make up for financial or reputational risk undertaken in bringing 3 the action, and, sometimes, to recognize their willingness to act 4 as a private attorney general.” Rodriguez v. West Publ’g Corp., [5] 563 F.3d 948, 958-59 (9th Cir. 2009). Indeed, the Ninth Circuit 6 has consistently recognized incentive awards are “fairly typical” 7 way to “compensate class representatives for work done on behalf 8 of the class” or “to make up for financial or reputational risk 9 undertaken in bringing the action,” id., and other district 10 courts in this circuit have found incentive awards to be proper 11 even when a class is certified only for injunctive relief under 12 Rule 23(b)(2), see, e.g., Grant v. Capital Mgmt. Servs., L.P., 13 No. 10-cv-2471-WQH (BGS), 2014 WL 888665 , at *8 (S.D. Cal. Mar. 14 5, 2014) (approving incentive award of $5,000 as part of 15 settlement seeking only injunctive relief under Rule 23(b)(2)). 16 Because the Settlement Agreement expressly preserves 17 the class members’ ability to pursue any individual claims for 18 monetary relief against defendant that they may have based on the 19 phone calls in question (see Settlement Agreement at Ex. 2), the 20 court does not find that plaintiff’s requested incentive payment 21 necessarily gives rise to a conflict of interest between 22 plaintiff and the rest of the class. 23 The court emphasizes that this finding is only a 24 preliminary determination. Plaintiff represents that she will 25 formally seek the incentive award through a separate motion, to 26 be heard at the final approval hearing. (Mot. for Preliminary 27 Approval at 4.) At that time, plaintiff should be prepared to 28 provide additional evidence to convince the court that an 1 incentive award is justified in this case as a means of 2 “compensat[ing] [plaintiff] for work done on behalf of the class” 3 or of making up “for financial or reputational risk undertaken in 4 bringing the action,” especially considering that the unnamed 5 class members will receive no compensation. See Rodriguez, 563 6 F.3d at 958-59. Plaintiff should also be prepared to show that 7 the incentive award she requests is not grossly disproportionate 8 to the average amount individual class members could expect to 9 receive by bringing individual claims for money damages against 10 defendant, such that it would cause her interests to diverge from 11 those of other class members. See id. 12 ii. Vigorous Prosecution 13 The second portion of the adequacy inquiry examines the 14 vigor with which the named plaintiff and her counsel have pursued 15 the class’s claims. “Although there are no fixed standards by 16 which ‘vigor’ can be assayed, considerations include competency 17 of counsel and, in the context of a settlement-only class, an 18 assessment of the rationale for not pursuing further litigation.” 19 Hanlon, 150 F.3d at 1021 , overruled on other grounds by Dukes, [20] 564 U.S. at 338 . 21 Here, class counsel appear to be experienced class 22 action litigators fully qualified to pursue the interests of the 23 class. (See Paronich Decl. ¶¶ 4-7; Decl. of Gary M. Klinger 24 (“Klinger Decl.”) ¶¶ 4-17 (Docket No. 38-3).) Class counsel 25 represent that they have litigated dozens of TCPA class actions 26 and other class actions involving violations of privacy as lead 27 counsel in state and federal court. (See Paronich Decl. ¶ 7 28 (citing cases); Klinger Decl. ¶ 8-15 (citing cases).) 1 Furthermore, class counsel have carefully vetted their 2 clients’ and defendants’ claims through rigorous legal analysis. 3 (See Mot. for Prelim. Approval at 8-14; Paronich Decl. ¶ 8-12; 4 Klinger Decl. ¶ 18-21.) Counsels’ experience, coupled with the 5 careful vetting of their client’s claims, suggest that they are 6 well-equipped to handle this case. Accordingly, the court finds 7 that plaintiff and plaintiff’s counsel are adequate 8 representatives of the class. 9 2. Rule 23(b) 10 After fulfilling the threshold requirements of Rule 11 23(a), the proposed class must satisfy the requirements of one of 12 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512 . 13 Plaintiff seeks provisional certification under Rule 23(b)(2), 14 which provides for class certification when “the party opposing 15 the class has acted or refused to act on grounds generally 16 applicable to the class, thereby making appropriate final 17 injunctive relief or corresponding declaratory relief with 18 respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). 19 “The key to the (b)(2) class is the ‘indivisible nature 20 of the injunctive or declaratory remedy warranted — the notion 21 that the conduct is such that it can be enjoined or declared 22 unlawful only as to all of the class members or as to none of 23 them.’” B.K. by next friend Tinsley v. Snyder, 922 F.3d 957 , 971 24 (9th Cir. 2019), cert. denied sub nom. Faust v. B. K. By Tinsley, [25] 140 S. Ct. 2509 , 206 L. Ed. 2d 463 (2020) (quoting Dukes, 564 26 U.S. 338, 360 (2011)). “In other words, Rule 23(b)(2) applies 27 only when a single injunction or declaratory judgment would 28 provide relief to each member of the class. It does not authorize 1 class certification when each individual class member would be 2 entitled to a different injunction.” Id. (quoting Dukes, 564 3 U.S. at 360 (emphasis in original omitted)). 4 Here, the Settlement Agreement states that the parties 5 will jointly request that the court enter an injunction requiring 6 defendant to remove cellular telephone numbers from its call 7 lists unless defendant has a good faith basis to believe consent 8 to call that number has been provided. (See Settlement Agreement 9 at Ex. 2.) This injunctive relief is appropriate with respect to 10 the class as a whole because defendants’ actions were generally 11 applicable to the entire class: each putative class member has 12 received calls from defendant that were automatically generated 13 using an ATDS that “predicted” when he or she would be likely to 14 answer and available to talk, without prior consent (see Compl. 15 ¶¶ 34-42, 71-73). See Fed. R. Civ. P. 23(b)(2). The uniformity 16 of this conduct with respect to each putative class member 17 permits it to be “enjoined or declared unlawful . . . as to all 18 of the class members” and permits relief to be afforded to all 19 class members with a single injunction. See Snyder, 922 F.3d at 20 971. 21 Plaintiff’s complaint also seeks relief “awarding 22 Plaintiff and the class damages under 47 U.S.C. § 227 (b)(3)(B).” 23 (See Compl. at 13.) Generally, Rule 23(b)(2) “does not authorize 24 class certification when each class member would be entitled to 25 an individualized award of monetary damages.” Dukes, 564 U.S. at 26 360-61. However, the Settlement Agreement does not provide class 27 members with any monetary relief, and instead expressly preserves 28 their right to pursue individual claims for damages against 1 defendant in the future. (See Settlement Agreement at Ex. 2.) 2 The court therefore finds that certification under Rule 23(b)(2) 3 is appropriate. See Grant, 2014 WL 888665 , at *2 (certifying 4 class under Rule 23(b)(2) where settlement provided only 5 injunctive relief for alleged violations of the TCPA). 6 3. Rule 23(c)(2) Notice Requirements 7 Under Rule 23(c)(2), whether notice to class members of 8 certification under Rule 23(b)(2) must be provided is left to the 9 district court’s discretion. See Fed. R. Civ. P. 23(c)(2)(A) 10 (“For any class certified under Rule 23(b)(1) or (b)(2), the 11 court may direct appropriate notice to the class.” (emphasis 12 added)); Equal Opportunity Emp’t Comm’n v. Gen. Tel. Co. of Nw., 13 Inc., 599 F.2d 322 , 334 (9th Cir. 1979) (“When an action is 14 certified under Rule 23(b)(2) . . . absent class members are not 15 required to receive notice or to have the opportunity to opt-out 16 of the suit.”). 17 Even if the court determines that notice of class 18 certification under Rule 23(b)(2) is not necessary, notice of a 19 class action settlement may still be required under Rule 23(e) if 20 the proposed settlement would bind absent class members. See 21 Fed. R. Civ. P. 23(e). The court will therefore evaluate whether 22 and what kind of notice is required in the next section, when it 23 evaluates the fairness the settlement under Rule 23(e). 24 B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement [25] 26 Because the proposed class preliminarily satisfies the 27 requirements of Rule 23(a) and (b), the court must consider 28 whether the terms of the parties’ settlement appear fair, 1 adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). The 2 court must consider four factors under the rule: whether “(1) the 3 class representatives and class counsel have adequately 4 represented the class; (2) the proposal was negotiated at arm's 5 length; (3) the relief provided for the class is adequate; and 6 (4) the proposal treats class members equitably relative to each 7 other.” Id. The Ninth Circuit has also identified additional 8 factors, including 9 The strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of further 10 litigation; the risk of maintaining class action status throughout the trial; the amount offered in 11 settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of 12 counsel; the presence of a governmental participant; and the reaction of the class members to the proposed 13 settlement. 14 See Staton, 327 F.3d at 959 . Many of these factors cannot be 15 considered until the final fairness hearing; accordingly, the 16 court’s review will be confined to resolving any “‘glaring 17 deficiencies’ in the settlement agreement.” Syed, 2019 WL 18 1130469, at *7 (citations omitted). 19 1. Adequate Representation 20 The court must first consider whether “the class 21 representatives and class counsel have adequately represented the 22 class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is 23 “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson 24 v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060 , 25 at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on 26 Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds 27 Antitrust Litig., 414 F. Supp. 3d 686 , 701 (S.D.N.Y. 2019) 28 (noting similarity of inquiry under Rule 23(a)(4) and Rule 1 23(e)(2)(A)). 2 Because the Court has found that the proposed class 3 satisfies Rule 23(a)(4) for purposes of class certification, the 4 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, [5] 2020 WL 2467060 , at *5. 6 2. Negotiations of the Settlement Agreement 7 Counsel for both sides appear to have diligently 8 pursued settlement after thoughtfully considering the strength of 9 their arguments and potential defenses. The parties participated 10 in an arms-length mediation before an experienced mediator, Hon. 11 James Ware (Ret.), on September 15, 2020, which resulted in a 12 tentative settlement agreement. (Paronich Decl. ¶ 12.) After 13 further negotiations, the parties were able to finalize and 14 execute the Settlement Agreement on October 19, 2020. (See id.; 15 Settlement Agreement.) Given the sophistication of plaintiff’s 16 counsel and the parties’ representation that the settlement 17 reached was the product of arms-length bargaining, the court does 18 not question that the proposed settlement is in the best interest 19 of the class. See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939 , 20 942 (N.D. Cal. 2013) (holding that a settlement reached after 21 informed negotiations “is entitled to a degree of deference as 22 the private consensual decision of the parties” (citing Hanlon, [23] 150 F.3d at 1027 )). 24 3. Adequate Relief 25 In determining whether a settlement agreement provides 26 adequate relief for the class, the court must “take into account 27 (i) the costs, risks, and delay of trial and appeal; (ii) the 28 effectiveness of any proposed method of distributing relief to 1 the class, including the method of processing class-member 2 claims; (iii) the terms of any proposed award of attorney’s fees, 3 including timing of payment; and (iv) any [other] agreement[s]” 4 made in connection with the proposal. See Fed. R. Civ. P. 5 23(e)(2)(C); Baker v. SeaWorld Entm’t Inc., No. 14-cv-02129-MMA6 AGS, 2020 WL 4260712 , at *6-8 (S.D. Cal. Jul. 24, 2020). 7 A recent decision by the Ninth Circuit, Koby v. ARS 8 Nat. Servs., Inc., 846 F.3d 1071 (9th Cir. 2017), serves as a 9 useful guide in analyzing whether the relief in this case is 10 adequate. In Koby, the named plaintiffs sued ARS on behalf of a 11 class of consumers under the Fair Debt Collection Practices Act 12 (“FDCPA”). See Koby, 846 F.3d at 1074 . They alleged that ARS 13 violated the FDCPA by leaving voicemail messages in which the 14 callers failed to disclose (1) that they worked for ARS, (2) that 15 ARS is a debt collector, or (3) that the purpose of the call was 16 to collect a debt. See id. The parties reached a settlement 17 agreement in which they agreed to seek certification of a 18 nationwide, settlement-only class under Rule 23(b)(2). See id. 19 As in this case, the proposed settlement sought only 20 injunctive relief on behalf of the class, which consisted of 21 anyone in the United States who had received violative voicemails 22 from ARS between April 2008 and August 2011. Id. Also like this 23 case, the proposed settlement waived class members’ right to 24 bring a class action against ARS in the future while preserving 25 their right to bring individual claims for damages. Id. at 1075 . 26 After conducting a fairness hearing, the magistrate judge 27 approved the settlement, finding that it was “fair, reasonable, 28 and adequate” under Rule 23(e). See id. 1 The Ninth Circuit reversed, holding that the magistrate 2 judge had abused her discretion in approving the settlement 3 because the settlement required class members to waive their 4 right to pursue claims for damages against ARS as part of a class 5 action in exchange for injunctive relief that was “of no real 6 value.” See id. at 1079 . The court found that the injunction 7 would not benefit class members because ARS had already 8 voluntarily adopted a voicemail message similar to the one 9 contained in the injunction before litigation began, and thus the 10 injunction would not require ARS to do adopted a anything it was 11 not already doing. See id. at 1080 . 12 The court in Koby also found that the injunction would 13 not benefit the class members because there was a mismatch 14 between the class definition and the group of consumers who would 15 receive the benefits of the injunctive relief. See id. at 1079 . 16 While the class was defined to include consumers who had 17 previously received calls from ARS, the injunction merely 18 dictated certain disclosures that ARS would have to make when 19 leaving future voicemails. See id. According to the court, 20 there was no guarantee that a previous target of ARS’ calls would 21 necessarily be a target of their calls in the future, given that 22 the consumers in the class had been contacted regarding debts 23 that were, at that point, two to five years old. See id. at 24 1079-80. 25 Though the terms of the settlement rejected by the 26 Ninth Circuit in Koby are remarkably similar to the terms of the 27 proposed settlement here, two crucial distinctions exist. First, 28 unlike the class members in Koby, the class members here will not 1 be required to give up their individual claims for damages in 2 exchange for the injunctive relief outlined in the Settlement 3 Agreement. See id. at 1079 . Second, the terms of the injunctive 4 relief here will require FCI to scrub its call list of all 5 cellular numbers for whom FCI does not have a good faith belief 6 that consent to call has been provided, including those numbers 7 already called. (See Settlement Agreement at Ex. 5.) Unlike the 8 defendant in Koby, FCI has represented that scrubbing cellular 9 numbers from its call lists is not an action that it would have 10 taken in absence of the injunction provided by the settlement 11 agreement. See Koby, 846 F.3d at 1080 . The court therefore 12 finds that the Settlement Agreement will provide real value to 13 the class members here--value that they would not have otherwise 14 gotten in absence of the settlement. See id. 15 Plaintiff’s counsel represents that, given the 16 strength of plaintiff’s claims and defendants’ potential 17 exposure, the injunctive relief contained in the settlement 18 provides a strong result for the class. (Paronich Decl. ¶¶ 919 12.) Indeed, at least two other district courts appear to have 20 approved TCPA settlements that provided only injunctive relief to 21 the class. See Thomas v. Fin. Corp. of Am., No. 19-cv-152-K 22 (N.D. Tex. Jul. 13, 2020) (Docket No. 86); Grant, 2014 WL 888665 , 23 at *2. One of these settlements provided for an injunction that 24 was nearly identical to the one here, in exchange for a release 25 of class members’ right to pursue damages claims as part of a 26 class action. See Thomas v. Fin. Corp. of Am., No. 19-cv-152-K 27 (N.D. Tex. Jul. 13, 2020) (Docket No. 86). Because the parties 28 have represented that defendant does not have the financial 1 ability to withstand a class-wide judgment for monetary damages, 2 the court agrees that the injunctive relief provided in the 3 settlement represents an acceptable method of distributing 4 relief, especially given the settlement’s preservation of class 5 members’ right to pursue individual claims for damages against 6 defendant. See Baker v. SeaWorld Entm’t, Inc., No. 14-cv-021297 MMA-AGS, 2020 WL 4260712 , at *6-8 (S.D. Cal. Jul. 24, 2020). 8 While this relief represents “more than the defendants feel those 9 individuals are entitled to” and will potentially be “less than 10 what some class members feel they deserve,” the Settlement 11 Agreement at least offers class members the prospect of some 12 recovery. See Officers for Justice v. Civil Serv. Comm’n, 688 13 F.2d 615, 628 (9th Cir. 1982) (“Undoubtedly, the amount of the 14 individual shares will be less than what some class members feel 15 they deserve but, conversely, more than the defendants feel those 16 individuals are entitled to. This is precisely the stuff from 17 which negotiated settlements are made.”) 18 The court again emphasizes the preliminary nature of 19 this determination. Though the parties represent that defendant 20 is not in a financial condition to withstand a classwide monetary 21 judgment (see Mot. for Prelim. Approval at 13; Paronich Decl. 22 ¶ 9), they should be prepared to present additional evidence of 23 defendant’s financial condition in advance of the final fairness 24 hearing. Plaintiff should also be prepared to present additional 25 evidence indicating the likely amount class members would be 26 likely to recover from defendant were they to proceed with an 27 individual claim for damages, so that the court can more 28 accurately determine whether absent class members will have an 1 incentive to bring individual claims and therefore assess the 2 value of the preservation of this right in the Settlement 3 Agreement. See Koby, 846 F.3d at 1080-81 . 4 The Settlement Agreement further provides for an award 5 of $180,000 in attorney’s fees and costs, subject to court 6 approval. (See Settlement Agreement at 11.) If a negotiated 7 class action settlement includes an award of attorney’s fees, 8 then the court “ha[s] an independent obligation to ensure that 9 the award, like the settlement itself, is reasonable, even if the 10 parties have already agreed to an amount.” In re Bluetooth 11 Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). 12 The Ninth Circuit has recognized two different methods 13 for calculating reasonable attorney’s fees: the lodestar method 14 and the percentage-of-recovery method. See id. The percentage15 of-recovery method is generally appropriate where the settlement 16 creates a common fund for distribution to the class because it 17 “simply awards the attorneys a percentage of the fund sufficient 18 to provide class counsel with a reasonable fee.” See Hanlon, 150 19 F.3d at 1029, overruled on other grounds by Dukes, 564 U.S. at 20 338. The lodestar method, on the other hand, is generally 21 appropriate in cases seeking injunctive relief, like this one, 22 because it is often difficult or even impossible “to gauge the 23 net value of the settlement or any percentage thereof.” Id. 24 Under the lodestar method, the court multiplies the 25 number of hours reasonably expended by a reasonable hourly rate. [26] Id. Class counsel must support its figures for the number of 27 hours expended and its hourly rate by adequate documentation. [28] Id. “The resulting figure may be adjusted upward or downward to 1 account for several factors including the quality of the 2 representation, the benefit obtained for the class, the 3 complexity and novelty of the issues presented, and the risk of 4 nonpayment.” Id. 5 Plaintiff’s counsel has represented that they will be 6 filing a separate motion for attorney’s fees and costs in the 7 amount of $180,000 pursuant to Federal Rule 23(h). (Settlement 8 Agreement ¶ 28.) Because the lodestar method will allow the 9 court to award attorney’s fees even in the absence of a common 10 fund, the court does not find the Settlement Agreement’s award of 11 attorney’s fees to necessarily be unreasonable at this time. See 12 Thomas, No. 19-cv-152-K (N.D. Tex. Jul. 13, 2020) (Docket No. 86) 13 (awarding $587,500 in attorney’s fees in TCPA class action 14 settlement involving only injunctive relief); Grant, 2014 WL 15 888665, at *2 (awarding $475,000 in attorney’s fees in TCPA class 16 action settlement involving only injunctive relief). However, 17 the court will defer consideration of the reasonableness of 18 counsel’s fees until the fee motion is filed. 19 Class counsel is cautioned that the reasons for the 20 attorney’s fees should be explained further in that motion. 21 Factors considered in examining the reasonableness of the fee may 22 include: (1) whether the results achieved were exceptional; (2) 23 risks of litigation; (3) non-monetary benefits conferred by the 24 litigation; (4) customary fees for similar cases; (5) the 25 contingent nature of the fee and financial burden carried by 26 counsel; and (6) the lawyer’s “reasonable expectations, which are 27 based on the circumstances of the case and the range of fee 28 awards out of common funds of comparable size.” See Vizcaino v. 1 Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002). 2 In light of the claims at issue, defendant’s potential 3 exposure, defendant’s apparent inability to pay a classwide 4 judgment, and the fact that the court will separately assess the 5 reasonableness of plaintiff’s request for attorney’s fees at a 6 later date, the court finds that, at this stage, the substance of 7 the settlement is fair to class members and “falls within the 8 range of possible approval.” See Tableware, 484 F. Supp. 2d at 9 1079. Counsel has not directed the court to any other relevant 10 agreements that would alter this analysis. The court therefore 11 finds that Rule 23(e)’s third factor is satisfied. See Fed. R. 12 Civ. P. 23(e)(C). 13 4. Equitable Treatment of Class Members 14 Finally, the court must consider whether the Settlement 15 Agreement “treats class members equitably relative to each 16 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the Court 17 determines whether the settlement “improperly grant[s] 18 preferential treatment to class representatives or segments of 19 the class.” Hudson, 2020 WL 2467060 , at *9 (quoting Tableware, 20 484 F. Supp. at 1079. 21 Here, the Settlement Agreement does not improperly 22 discriminate between any segments of the class, as all class 23 members are entitled to the same injunctive relief. See id. 24 While the Settlement Agreement allows plaintiff to seek an 25 incentive award of $3,500, other class members will still be 26 permitted to seek damages from defendant in their own, individual 27 cases. (See Settlement Agreement, Ex. 2.) As discussed above, 28 not only is the amount of the requested award presumptively 1 reasonable, see Roe v. Frito-Lay, Inc., No. 14CV-00751, 2017 WL 2 1315626, at *8 (N.D. Cal. Apr. 7, 2017) (“[A] $5,000 incentive 3 award is ‘presumptively reasonable’ in the Ninth Circuit.”) 4 (collecting cases), plaintiff will have to submit additional 5 evidence documenting her time and effort spent on this case and 6 the likely value of other class members’ individual claims for 7 damages to ensure that her additional compensation above other 8 class members is justified. See Hudson, 2020 WL 2467060 , at *9. 9 The court therefore finds that the Settlement Agreement treats 10 class members equitably. See Fed. R. Civ. P. 23(e)(D). 11 C. Rule 23(e) Notice Requirements 12 Rule 23(e)(1) requires the court to “direct notice in a 13 reasonable manner to all class members who would be bound by” a 14 proposed settlement. Fed. R. Civ. P. 23(e)(1). Because the 15 Settlement Agreement as proposed would bind class members with 16 respect to claims they have against defendant for injunctive 17 relief and prevent them from participating in other class actions 18 related to the calls in question, the court finds that notice to 19 class members is necessary and appropriate. (See id.) 20 While there are “no rigid rules to determine whether a 21 settlement notice to class members satisfies constitutional and 22 Rule 23(e) requirements,” Wal-Mart Stores, Inc. v. Visa U.S.A., 23 Inc., 396 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like 24 any form of notice--must comply with due process requirements 25 under the Constitution. See Rubenstein, 4 Newberg on Class 26 Actions § 8:15 (5th ed.). That is, the notice must be 27 “reasonably calculated, under all the circumstances, to apprise 28 interested parties of the pendency of the action and afford them 1 an opportunity to present their objections.” Mullane v. Cent. 2 Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). While actual 3 notice is not required, the notice provided must be “reasonably 4 certain to inform the absent members of the plaintiff class.” 5 Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation 6 omitted). The content of the “[n]otice is satisfactory if it 7 ‘generally describes the terms of the settlement in sufficient 8 detail to alert those with adverse viewpoints to investigate and 9 to come forward and be heard.’” See Churchill Vill., LLC v. Gen. 10 Elec., 361 F.3d 566 , 575 (9th Cir. 2004). 11 Here, the parties originally agreed to publish summary 12 notice of the Settlement Agreement in two consecutive Monday 13 editions of USA Today, which would direct class members to a 14 settlement website that contains the full notice of settlement 15 and additional information for class members. (See Settlement 16 Agreement ¶ 12(A)) The settlement administrator would also 17 establish a call center dedicated to providing class members with 18 information about the Settlement Agreement and to answering class 19 members’ questions. (See id.) A toll-free number would be 20 established to allow class members to contact the call center 21 free of charge. (See id.) 22 The full notice published on the settlement website 23 would provide, among other things, a description of the case; a 24 description of the injunctive relief provided by the Settlement 25 Agreement; the fact that class members will give up their right 26 to sue defendant for injunctive relief and to participate in 27 another class action; the fact that class members will retain the 28 right to file individual damages lawsuits against defendant; the 1 amount of the incentive award that plaintiff is seeking; the 2 amount of attorney’s fees that class counsel is seeking; the 3 procedures for objecting to the settlement and for appearing at 4 the fairness hearing; and the date and location of the fairness 5 hearing. (See Settlement Agreement at Exs. 3-4.) Because the 6 notice would inform class members of the relief provided by the 7 settlement and of their inability sue defendant in the future for 8 injunctive relief or participate in another class action related 9 to the calls at issue, the court finds that it would adequately 10 alert those “with adverse viewpoints to investigate and to come 11 forward and be heard.” See Churchill, 361 F.3d at 575. 12 Additionally, because this is a class action certified under Rule 13 23(b)(2) and only provides injunctive relief, it is not necessary 14 for the notice to provide class members with an opportunity to 15 opt out of the settlement. See Equal Opportunity, 599 F.2d at 16 334 (“When an action is certified under Rule 23(b)(2) . . . 17 absent class members are not required to receive notice or to 18 have the opportunity to opt-out of the suit.”); Dukes, 564 U.S. 19 at 363 ((b)(2) does not require that class members be given . . . 20 opt out rights, presumably because it is thought (rightly or 21 wrongly) that notice has no purpose when the class is mandatory . 22 . . .”). 23 However, the full notice contained on the settlement 24 website will not have any effect if members of the settlement 25 class are not aware of its existence. “When, as here, a class 26 settlement is negotiated prior to formal class certification, 27 there is an increased risk that the named plaintiffs and class 28 counsel will breach the fiduciary obligations they owe to the 1 absent class members.” Koby, 846 F.3d at 1079 . “As a result, 2 ‘such agreements must withstand an even higher level of scrutiny 3 for evidence of collusion or other conflicts of interest than is 4 ordinarily required under Rule 23(e) before securing the court's 5 approval as fair.’” Id. (quoting In re Bluetooth Headset, 654 6 F.3d at 941). By the same token, when there are serious 7 questions raised about whether the proposed settlement agreement 8 would protect absent class members, the court must be even more 9 vigilant as to whether class members will actually receive notice 10 of the settlement. This is especially true where objecting to 11 the proposed settlement may be an absent class member’s only 12 remedy because, as here, the proposed settlement agreement 13 preserves only the relatively unappealing option of bringing an 14 individual suit for a small amount of damages. 15 The court is not satisfied that simply publishing a 16 summary notice in two consecutive Monday editions of USA Today is 17 sufficient to notify class members of the existence of the 18 settlement or of the website where they can find additional 19 information. See Hecht v. United Collection Bureau, Inc., 691 20 F.3d 218, 224-25 (2d Cir. 2012) (holding notice published only in 21 USA Today to be insufficient); Mullane, 339 U.S. at 314 . Because 22 the parties represent that defendant’s records do not contain the 23 identifying information of potential class members (beyond their 24 phone numbers), as the class members were unintended recipients 25 of defendant’s calls, the court is persuaded that requiring 26 individual notice via first-class mail would be impracticable and 27 unduly burdensome for defendant to locate sufficient identifying 28 information. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 1 145, 168–69 (2d Cir. 1987), cert. denied, 484 U.S. 1004 , 108 S. 2 Ct. (1988); Shneider v. Chipotle Mexican Grill, Inc., No. 16-cv3 02200-HSG, 2019 WL 1512265 (N.D. Cal. Apr. 8, 2019) (holding 4 individual notice not appropriate where it cannot be proven that 5 list of potential class members to which notice would be sent 6 contains the entire universe of known class members). However, 7 because defendant acknowledges that it has a list of “wrong 8 number” call designations in its records, the court finds that a 9 more targeted form of publication notice than that proposed in 10 the parties’ original Settlement Agreement is possible and 11 warranted in this case. See Mullane, 339 U.S. at 314 . 12 In their Joint Status Report, the parties discuss an 13 “alternative digital media notice plan” in which the settlement 14 administrator will utilize the Google Display Network to place 15 advertisements containing a summary notice of the Settlement 16 Agreement on the desktop and/or mobile devices of Google users 17 over a 30-day period. These advertisements will be sent to users 18 corresponding with the phone numbers that defendant’s records 19 associate with a “wrong number” call designation, as well as a 20 broader audience of users who provided their phone number to 21 Google when they signed up for an account. (See Joint Status 22 Report at 6-7, Ex. A.) The summary notice will contain a link to 23 the settlement website where potential class members will be able 24 to view the full notice of the Settlement Agreement. (Id. at 7.) 25 The Settlement Administrator anticipates that this digital media 26 notice plan will result in approximately 41,267,000 “impressions” 27 for potential class members to view. (Id.) Other district 28 courts have found similar digital media notice plans to provide 1 adequate notice to class members under Rules 23(b)(3) and 23(e). 2 See Schneider, 2019 WL 1512265 , at **4-5; In re EpiPen 3 (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust 4 Litig., No. 17-md-2785-DDC-TJJ, 2020 WL 6044085 , at *2 (D. Kan. 5 Oct. 13, 2020) (approving notice plan that included individual 6 notice and digital media notice plan); In re Chinese-Manufactured 7 Drywall Prods. Liab. Litig., 424 F. Supp. 3d 456 , 494-95 (E.D. 8 La. 2010 ) (approving notice plan that included notice in national 9 magazines as well as digital media notice plan). Because the 10 court finds the parties’ proposed digital media notice plan (see 11 Joint Status Report, Ex. A) to be significantly more effective 12 than their original proposal to publish notice in consecutive 13 editions of USA Today, and because there is no difference in cost 14 between the two plans, the court finds the parties’ proposed 15 digital media notice plan to be “reasonably calculated under all 16 the circumstances” to apprise interested parties of the 17 Settlement Agreement. See Mullane, 339 U.S. at 314 . 18 As the court has emphasized, the findings contained in 19 this Memorandum and Order related to the fairness, adequacy, and 20 reasonableness of the Settlement Agreement are only preliminary. 21 Though the court has not found that any of the Agreement’s 22 provisions represent “glaring deficiencies” sufficient to place 23 the settlement outside the range of possible approval at this 24 point, see Syed, 2019 WL 1130469 , at *7 (citations omitted); 25 Tableware, 484 F. Supp. 2d at 1079, full evaluation of the 26 fairness and adequacy of the settlement will not occur until the 27 time of the final fairness hearing. See Fed. R. Civ. P. 28 23(e)(2). There, input from absent class members will be a 1 valuable factor for the court to consider when evaluating the 2 fairness of the settlement’s terms, see Staton, 327 F.3d at 977 - 3 78, and the overall presence or absence of objections in 4 comparison to class size may provide the court with evidence of 5 the class’ overall reaction to the settlement. See Hanlon, 150 6 F.3d at 1027, overruled on other grounds by Dukes, 564 U.S. at 363 7 (“[T]he fact that the overwhelming majority of the class 8 willingly approved the offer and stayed in the class presents at 9 least some objective positive commentary as to its fairness.”); 10 Rodriguez, 563 F.3d at 967 (approving district court's finding of 11 “favorable reaction” to settlement where, 52,000 class members 12 submitted claims and 54 objected). 13 IT IS THEREFORE ORDERED that plaintiff’s motion for 14 preliminary certification of a conditional settlement class and 15 preliminary approval of the class action settlement (Docket No. 16 38) be, and the same hereby is, GRANTED. 17 IT IS FURTHER ORDERED THAT: 18 (1) the following class be provisionally certified for the 19 purpose of settlement: All natural and juridical persons within 20 the United States (a) to whom defendant placed, or caused to be 21 placed, a call, (b) directed to a number assigned to a cellular 22 telephone service, but not assigned to the intended recipient of 23 defendant’s calls, (c) by using an automatic telephone dialing 24 system or an artificial or prerecorded voice, (d) from September 25 18, 2015 through the date of this Order; 26 (2) the proposed settlement is preliminarily approved as 27 fair, just, reasonable, and adequate to the members of the 28 settlement class, subject to further consideration at the final 1 fairness hearing after distribution of notice to members of the 2 settlement class; 3 (3) for purposes of carrying out the terms of the settlement 4 only: 5 (a) Naomi Legere-Gordon is appointed as the 6 representative of the settlement class and is provisionally found 7 to be an adequate representative within the meaning of Federal 8 Rule of Civil Procedure 23; 9 (b) Gary M. Klinger of Mason Lietz & Klinger, LLP, and 10 Anthony Paronich of Paronich Law, P.C., are provisionally found 11 to be fair and adequate representatives of the settlement class 12 and are appointed as class counsel for the purposes of 13 representing the settlement class conditionally certified in this 14 Order; 15 (4) KCC Class Action Services, LLC (“KCC”) is appointed as 16 the settlement administrator; 17 (5) the form and content of the proposed full Notice of 18 Class Action Settlement contained in the parties Settlement 19 Agreement (Settlement Agreement at Ex. 4) is approved, except to 20 the extent that it must be updated to reflect dates and deadlines 21 specified in this Order and to reflect the fact that the final 22 fairness hearing will occur over Zoom; 23 (6) the content of the proposed digital media notice plan 24 contained in the parties’ Joint Status Report (Joint Status 25 Report, Ex. A) is approved, except to the extent it must be 26 updated to reflect dates and deadlines specified in this Order. 27 The summary notice placed on the desktop and/or mobile devices of 28 users shall, at a minimum, state “If you received a call on your 1 cell phone from FirstCredit Incorporated, a class action 2 settlement may affect your rights,” and shall contain a link to 3 the settlement website containing the full notice created 4 pursuant to the Notice of Class Action Settlement contained in 5 the parties’ Settlement Agreement (Settlement Agreement at Exs. 6 3-4). 7 (7) no later than twenty (20) days from the date this Order 8 is signed, KCC shall provide notice to the class members pursuant 9 to the proposed digital media notice plan (Joint Status Report, 10 Ex. A). 11 (8) no later than sixty (60) days from the date this Order 12 is signed, any member of the settlement class who intends to 13 object to or comment upon the settlement shall mail written 14 notice of that intent to class counsel, defense counsel, and the 15 United States District Court for the District of Idaho, pursuant 16 to the instructions in the Notice of Class Action Settlement. 17 This notice must be personally signed and include the following 18 information: (1) the class member’s full name and current 19 address, (2) the cellular telephone number(s) at which the class 20 member believes he or she received the call(s) at issue, (3) a 21 statement that the class member believes him or herself to be a 22 member of the settlement class, (4) the specific grounds for the 23 objection, (5) all documents or writings that the class member 24 wants the court to consider in relation to his or her objection, 25 (6) the name and contact information for any and all attorneys 26 representing or in any way assisting the class member, or who may 27 profit from pursuing the objection, and (7) a statement 28 indicating whether the class member intends to appear at the 1 final fairness hearing (either personally or through his or her 2 attorney); 3 (9) a final fairness hearing shall be held before this court 4 on Tuesday, June 1, 2021, at 1:30 p.m. (PT) in Courtroom 5 to 5 determine whether the proposed settlement is fair, reasonable, 6 and adequate and should be approved by this court; to determine 7 whether the settlement class’s claims should be dismissed with 8 prejudice and judgment entered upon final approval of the 9 settlement; to determine whether final class certification is 10 appropriate; and to consider class counsel’s applications for 11 attorney’s fees, costs, and an incentive award to plaintiff. The 12 parties shall update the proposed full Notice of Class Action 13 Settlement to inform class members that the final fairness 14 hearing will take place over Zoom. The Notice shall instruct any 15 person who is interested in attending the hearing to contact 16 plaintiff’s counsel no later than sixty (60) days from the date 17 KCC publishes the Notice of Class Action Settlement to obtain 18 instructions for gaining access via Zoom. The courtroom deputy 19 shall provide plaintiff’s counsel with these instructions no 20 later than May 25, 2021. Plaintiff’s counsel shall, in turn, 21 provide the instructions to persons who have expressed interest 22 in attending no later than May 27, 2021. The court may continue 23 the final fairness hearing without further notice to the members 24 of the class; 25 (10) no later than twenty-eight (28) days before the final 26 fairness hearing, class counsel shall file with this court a 27 petition for an award of attorney’s fees and costs. Any 28 objections or responses to the petition shall be filed no later 1 than fourteen (14) days before the final fairness hearing. Class 2 counsel may file a reply to any objections no later than seven 3 (7) days before the final fairness hearing; 4 (11) no later than twenty-eight (28) days before the final 5 fairness hearing, class counsel shall file and serve upon the 6 court and defendants’ counsel all papers in support of the 7 settlement, the incentive award for the class representative, and 8 any award for attorney’s fees and costs; 9 (12) no later than twenty-eight (28) days before the final 10 fairness hearing, KCC shall prepare, and class counsel shall file 11 and serve upon the court and defendants’ counsel, a declaration 12 setting forth the services rendered, proof of notice provided, a 13 list of all class members, and a list of all class members who 14 have commented upon or objected to the settlement; 15 (13) any person who has standing to object to the terms of 16 the proposed settlement may appear at the final fairness hearing 17 in person or by counsel and be heard to the extent allowed by the 18 court in support of, or in opposition to, (a) the fairness, 19 reasonableness, and adequacy of the proposed settlement, (b) the 20 requested award of attorney’s fees, reimbursement of costs, and 21 incentive award to the class representative, and/or (c) the 22 propriety of class certification. To be heard in opposition at 23 the final fairness hearing, a person must, no later than sixty 24 (60) days from the date KCC publishes the Notice of Class Action 25 Settlement, (a) serve by hand or through the mails written notice 26 of his or her intention to appear, stating the name and case 27 number of this action and each objection and the basis therefore, 28 together with copies of any papers and briefs, upon class counsel 1 and counsel for defendants, and (b) file said appearance, 2 objections, papers, and briefs with the court, together with 3 proof of service of all such documents upon counsel for the 4 | parties. 5 Responses to any such objections shall be served by 6 | hand or through the mails on the objectors, or on the objector’s 7 counsel if there is any, and filed with the court no later than 8 fourteen (14) calendar days before the final fairness hearing. 9 Objectors may file optional replies no later than seven (7) 10 calendar days before the final fairness hearing in the same 11 manner described above. Any settlement class member who does not 12 make his or her objection in the manner provided herein shall be 13 deemed to have waived such objection and shall forever be 14 foreclosed from objecting to the fairness or adequacy of the 15 proposed settlement, the judgment entered, and the award of 16 attorney’s fees, costs, and an incentive award to the class 17 representative unless otherwise ordered by the court; 18 (14) pending final determination of whether the settlement 19 should be ultimately approved, the court preliminarily enjoins 20 all class members (unless and until the class member has 21 submitted a timely and valid request for exclusion) from filing 22 or prosecuting any claims, suits, or administrative proceedings 23 regarding claims to be released by the settlement. [24] 25 | Dated: January 26, 2021 bi tiom th. eZ. be— 26 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE