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Friedman v. 24 Hour Fitness USA

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 12, 2010

DANIEL FRIEDMAN, ET AL., PLAINTIFFS,
v.
24 HOUR FITNESS USA, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Judge: Hon. A. Howard Matz

CLASS ACTION

FINAL ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF SETTLEMENT

Crtrm.: 14

FINAL ORDER AND JUDGMENT

On July 12, 2010, the Court held a Fairness Hearing for Final Approval of Settlement, pursuant to the Court's March 29, 2010 Order Granting Preliminary Approval of Class Settlement and Setting Schedule for Final Approval ("Preliminary Approval Order"). On June 28, 2010, Plaintiffs filed a Motion for Final Approval of Settlement and Memoranda of Points and Authorities, and the Declarations of Melissa Harnett, Jeffrey Keller, Daniel Friedman, Debra McKenna, Molly Kramer, Luis Riojas, Craig Jones, Thomas Hernan, Stephanie Dougherty, Kimberly Zander, Willman Alfaro, Scott Hardy, Kim R. Schmidt, Alicia Gehring, and the Mediator's Report of Antonio Piazza in support thereof. Plaintiffs further filed a Response to Objections to Settlement Agreement. 24 Hour Fitness ("24 Hour") also filed Supplemental Responses to Objections to Final Approval of Class Action Settlement, as well as declarations from Nick Kacprowski, Katheryn Healon, Nadia Brannon, and Joanna Tuttle. In addition, the Court received five timely objections on behalf of seven class members and two non-class members, and one untimely objections on behalf of one class member who failed to comply with the Court's Preliminary Approval Order with respect to the requirements governing the filing of an objection, which requirements were set forth in the notice disseminated to the class.

Having fully reviewed and considered the Settlement Agreement and all submissions, written and oral (which includes submissions not specifically described above), the Court finds that the Settlement Agreement is fair, reasonable, and adequate. The Motion for Final Approval of the Settlement Agreement is thus GRANTED.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED THAT:

1. The Capitalized terms in bold type used in this order shall have the same meaning as set forth in the Settlement Agreement.

2. The Court finds that the Settlement Agreement was arrived at in good faith, without collusion, following extensive arms' length negotiations by counsel for the parties, including two mediation sessions before the highly regarded mediators, Hon. Judge David Garcia (Ret.) and Antonio Piazza. The settlement was based on the parties' acceptance of Mr. Piazza's mediator's proposal, made after a full day at the second mediation between the parties. The terms of the mediator's proposal were further negotiated by the parties over 131/2 weeks following the mediation and then set forth in the Settlement Agreement signed by the parties.

3. The Court finds that the Settlement Agreement provides valuable benefits to the Settlement Class. The Settlement provides actual benefits to Settlement Class Members who previously had the Charges at Issue taken from their bank and credit card accounts after canceling their memberships.*fn1 At the Settlement Class Member's election, each will receive either a $20.00 monetary reimbursement or a certificate for a free three month gym membership. The parties have presented evidence that the average amount charged after cancellation was $25.00. (Declaration of Nadia Brannon ("Brannon Decl.") ¶ 29-30) The Court finds that the $20.00 benefit option reimburses approximately 80% of the average class member's actual damages for the Charges at Issue.

4. The parties have also presented evidence that the certificate for a free three month gym membership has a justifiable value of between $149.99 and $199.99, as stated in the Court approved notice. The evidence demonstrates that similar (though not identical) memberships are regularly sold by defendant for such amounts. However, these memberships only provide access to a single club, while the Certificate can be used at more than 400 of defendant's clubs in the United States.

5. The Court thus hereby finally approves the Settlement Agreement, and the Settlement contemplated thereby, as being a fair, reasonable and adequate settlement as to all members of the Settlement Class within the meaning of Federal Rule of Civil Procedure 23, and directs its consummation pursuant to its terms and conditions.

6. The Class preliminarily certified on March 29, 2010 is hereby finally certified, and defined as follows:

All Persons who incurred Charges at Issue during the Class Period. Charge(s) at Issue means an EFT from a Person's bank account or credit/debit/charge card for Dues Charges where 24 Hour's membership database file reflects the payment by EFT on or after the date in 24 Hour's membership database file for a Request for Cancellation or Termination of the Settlement Class Member's or Club Membership Holder's Monthly Membership Agreement. Charge(s) at Issue do notinclude: (1) pre-paid last months' dues; (2) Dues Charges paid by EFT on a date before the date in 24 Hour's membership database file for a Request for Cancellation or Termination of a Monthly Membership Agreement;or (3) Dues Charges paid by EFT after a Request for Cancellation or Termination that were charged by 24 Hour in order to reinstate a previously cancelled Monthly Membership Agreement or to pay Dues Charges on anew Monthly Membership Agreement. Class Period means the time from October 2, 2002 through February28, 2010. Excluded from this Settlement Class are (1) Persons who did not pre-pay last month dues and/or forwhom 24 Hour's membership database file reflects a fullrefund or return of the Charges at Issue; (2) Persons whowere and remain members of the certified settlement classin the matter of Weir v. 24 Hour Fitness USA, Inc., SanFrancisco Superior Ct. Case Number CGC- 05-438478;(3) 24 Hour, its subsidiaries and affiliates, officers,directors, and employees; and (4) any judge to whom thismatter is assigned, his or her court staff, and his or herimmediate family.

7. Solely for the purposes of effectuating the Settlement, the Court hereby further finds as follows:

a. Joinder of all Settlement Class Members in a single proceeding would be impracticable, if not impossible because of their numbers and dispersion;

b. The Class Representatives and Class Counsel have capably prosecuted the claims of the lawsuit;

c. No conflict exists between the Class Representatives or Class Counsel and the Settlement Class;

d. The Class Representatives and Class Counsel are adequate representatives for the Settlement Class;

e. The Class Representatives' claims are typical of the Settlement Class;

f. The Class Representatives are members of the Settlement Class and have claims representative of the claims and defenses presented in this case;

g. Commonality is satisfied in this case for settlement purposes as a number of common issues exist among Settlement Class Members;

h. Common issues predominate over individual issues in the context of settlement; and

i. Certification of an agreed-upon Settlement Class is a superior mechanism for resolving these claims.

8. The Court finds and concludes that the notice given to Settlement Class Members was materially implemented in accordance with the terms of the Settlement Agreement and the Preliminary Approval Order and: (i) constituted the best notice practicable under the circumstances; (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the Settlement, their rights to object to the Settlement and to appear at the Final Settlement Hearing; (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to notice; and (v) met all applicable requirement of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law.

9. The Court further finds that notice of this Settlement Agreement has been timely given to the appropriate federal and state officials pursuant to 28 U.S.C. § 1715. Having reviewed the Defendant's notifications and accompanying materials, the Court finds that the Defendant's notifications complied fully with CAFA requirements.

10. All Settlement Class Members who have not validly excluded themselves from the Settlement Class as set forth in the Preliminary Approval Order shall be bound by all determinations and judgments concerning the Settlement Agreement and the Settlement contemplated thereby.

11. The Court hereby dismisses on the merits and with prejudice the Complaint as to all Settlement Class Members, without fees or costs except as provided in this Order or otherwise by this Court. The Persons identified in Exhibit A hereto, as having requested exclusion from the Class as of the deadline for opting out, shall not share in the benefits of the Settlement. The Court dismisses without prejudice the claims of such Persons who have properly and timely excluded themselves in full accordance with the procedures set forth in the Preliminary Approval Order.

12. The Court hereby finds that the distribution plan set forth in Paragraphs 2.1 through 2.3 of the Settlement Agreement for payment of either twenty dollars ($20) or a Three Month Club Access Certificate as elected by each Settlement Class Member for each Charge at Issue, fairly and adequately addresses settlement administration and ensures fair allocation of the elected payments amongst all members of the Settlement Class.

13. The parties have informed the Court that for approximately 12,500 class memberships, class members did not receive notice due to a computer glitch by defendant in preparing the class list. (Brannon Decl., ¶ 31) The standard for notice for a Rule 23(b)(3) class is "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). This is not the same as "actually received" notice. See Silber v. Mabon, 18 F.3d 1449, 1453-54 (9th Cir. 1994). With respect to the Settlement Class Members who did not receive direct notice by virtue of computer issues, the Court finds that, provided that such persons have an opportunity to benefit from the settlement, notice was adequately provided by virtue of the publication component of the notice program approved by the Court. See Trist v. First Fed. Sav. & Loan Assoc. of Chester, 89 F.R.D. 1, 2-3 (E.D. Pa. 1980). In light of the publication of notice in People Magazine and on the Internet, the Court finds that it would be unfair to delay final approval of the settlement and receipt of the benefits provided by the settlement to approximately 1.8 million unaffected class memberships, in order to provide the approximately 12,500 class memberships (i.e., approximately 0.7% of the class) affected by the computer glitch with additional direct notice and an opportunity to opt and or object. Id.; see also In re VMS Limited Partnership Securities Litigation, 1995 WL 355722 (N.D. Ill. 1995)(no right to extend opt-out date due to clerical error resulting in class member not having received notice);Turner v. Murphy Oil USA, Inc., 472 F.Supp. 2d 830, 840 (E.D. La. 2007) ("[T]he question is not whether some individual got adequate notice, but whether the class as a whole had notice adequate to flush out whatever objections might reasonably be raised to the settlement.") (quoting Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (internal quotation marks and ellipses omitted). The Court hereby accepts as fair, reasonable and adequate the parties' proposal that the Settlement Class Members affected by the computer issue be sent the Three Month Club Access Certificates no later than thirty (30) days following the Effective Date, if they previously did not file a claim form seeking the monetary reimbursement. A Claim Form and a letter will accompany the Three Month Club Access Certificates. The letter will be substantially in the form of the letter attached to the Declaration of Nickolas Kacprowski as Exhibit A, advising such members of the computer issue and the opportunity to return the Three Month Club Access Certificates with a completed Claim Form to obtain the monetary reimbursement option. The Claim Form deadline for these approximately 12,500 class memberships shall be (60) days after the Effective Date, and no Claim Forms for these memberships shall be honored unless they are received by the Settlement Administrator by that date. For all Claim Forms timely received on behalf of the approximately 12,500 class memberships described in this paragraph, Defendants will transfer twenty dollars ($20) to the Settlement Administrator for disbursement to these Settlement Class Members who timely submitted Claim Forms within seventy-five (75) days of the Effective Date. Within eight-five (85) days of the Effective Date, the Settlement Administrator shall mail one check for twenty dollars ($20) for each valid Claim Form that it timely received for the approximately 12,500 class memberships described in this paragraph. For all untimely or invalid Claim Forms received, as described in this paragraph, the Settlement Administrator will return the Three Month Club Access Certificates to the Settlement Class Member within seventy-five (75) days of the Effective Date. Nothing in this paragraph shall delay the distribution of benefits identified in paragraphs 40 and -42 and 55 and 57, set forth below.

14. The Court Orders that within three (3) business days following the entry of this Order Granting Final Approval of Settlement, a Class Escrow Account shall be created pursuant to the Escrow Agreement in accordance with Section 2.3 of the Settlement Agreement and the Court shall retain jurisdiction over the Escrow Agreement pursuant to § 12.19 of the Settlement Agreement. Defendant shall deposit $20 for each Charge at Issue for which Settlement Class Members have validly elected monetary payment, as of July 3, 2010 into the Class Escrow Account, and that amount as of July 3, 2010, is $3,724,180. The funds contained in the Class Escrow Account shall be released to the Settlement Administrator only upon and following the Effective Date of the Settlement as defined in the Settlement Agreement.

15. The Court has been informed that there are approximately 546 pending Claim Forms as of July 3, 2010. These Claim Forms include incomplete Claim Forms for which the parties have agreed to send cure letters and Claim Forms sent for deceased Settlement Class Members. The parties have agreed to accept properly cured Claim Forms among these 546 Claim Forms ("Untimely Claim Forms") if they are received by the Settlement Administrator on or before August 2, 2010. By the later of three (3) business days following this Court's entry of an Order Granting Final Approval of the Settlement and Judgment or August 13, 2010, Defendant shall deposit into the Class Escrow Account twenty dollars ($20) for each Untimely Claim Form

16. In accordance with the terms of the Settlement Agreement, the twenty dollar ($20) payments and Three Month Club Access Certificates shall be mailed to Settlement Class Members by the Settlement Administrator no later than thirty (30) days after the Effective Date of the Settlement. No funds may otherwise be disbursed from the Class Escrow Account, except as expressly set forth below or authorized by the terms of the Settlement Agreement.

17. Defendant shall pay all costs associated with the implementation of the Notice Plan set forth in the Settlement Agreement and in this Court's Preliminary Approval Order as well as all costs associated with Settlement administration.

18. Upon the Effective Date, 24 Hour and the Representative Plaintiffs, individually and as class representatives, and each Settlement Class Member who has not properly and timely excluded himself or herself from the Settlement Class shall be deemed to have, and by operation of the Judgment in this case shall have, fully, finally, and forever released, dismissed with prejudice, relinquished and discharged all Released Claims, including Unknown Claims, against the Released Persons ("Release").This Release shall be binding upon any and all agents, representatives, attorneys, insurers, trustees, assigns, subrogees, heirs, and executors of each such Representative Plaintiff and Settlement Class Member and 24 Hour.

a. "Released Persons" means a) the Representative Plaintiffs, b) Settlement Class Members, c) 24 Hour, and d) past, present and future divisions; parents; subsidiaries; affiliates; predecessors; successors; shareholders; owners; and creditors of 24 Hour Fitness USA, Inc. For each of the Released Persons above, Released Persons also includes their respective agents; attorneys; insurers; past, present and future divisions; parents; subsidiaries; affiliates; predecessors; successors; shareholders; owners; creditors; officers; directors; employees; trustees; representatives; administrators; fiduciaries; assigns; subrogees; executors; partners; and/or privies.

b. "Released Claims" means all claims, including Unknown Claims, demands, obligations, causes of action and liabilities, of whatever kind, whether in law or equity, or of whatever legal theory, including breach of contract, unjust enrichment, untrue and misleading advertising, declaratory relief, and violations of the Racketeer Influenced Corrupt Organizations Act, the Electronic Funds Transfer Act, the Health Studio Services Act, the Consumer Legal Remedies Act, the Unfair Competition Act, as well as violations of any state or federal statutes, rules or regulations, common law, or any other bases for a cause of action that have been or could have been asserted based upon allegations made in any complaint or amended complaint filed in the Litigation concerning the Charges at Issue and/or (1) 24 Hour's policy of charging, submitting for payment, or collecting the Charges at Issue, (2) 24 Hour's method or practice of executing that policy, (3) 24 Hour's authorization to submit Charges at Issue to its payment processors, including, but not limited to, LaSalle Bank National Association and Paymentech Merchant Services, Inc., or any other payment processor, (4) 24 Hour's authorization or right to charge or collect Charges at Issue, (5) 24 Hour's representations, warranties, or statements concerning Charges at Issue, or (6) 24 Hour's cancellation and/or termination policies concerning the Charges at Issue applicable to its Monthly Membership Agreements. The Released Claims also include any claim, causes of action, lawsuits, actions, administrative proceedings, and/or demands that 24 Hour may have against any Released Person for the payment of the Charges at Issue. The Released Claims further include all claims, including Unknown Claims, demands, obligations, causes of action and liabilities, of whatever kind, whether in law or equity, or of whatever legal theory by Representative Plaintiffs Hernan and Friedman (and not on behalf of the Settlement Class Members) related to the Special Deals Claims including allegations concerning reasons for, existence of, or amounts of price reductions, discounts offered in connection with 24 Hour memberships, or the advertising, marketing, or sale of 24 Hour memberships. Under ¶ 1.39 of the Settlement Agreement, the Settlement Class Members do not release any claims, causes of action, lawsuits, actions, administrative proceedings or demands the Settlement Class Members may have for the Special Deals Claims. Under ¶ 1.39 of the Settlement Agreement, the Settlement Class Members do not release any claims, causes of action, lawsuits, actions, administrative proceedings or demands that theymay have for personal injury, including any available remedies ("Personal Injury Claims"). The Representative Plaintiffs and Settlement Class Members have expressly acknowledged and agreed that nothing in ¶ 1.39 of the Settlement Agreement shall confer upon any Representative Plaintiff or Settlement Class Member any right to bring any claim, cause of action, lawsuit, action, administrative proceeding or demand that they did not otherwise have the right to bring prior to execution of this Agreement or that they had otherwise or apart from this Agreement waived or released, including for injuries for which they assumed the risk.

19. As part of the final approval of the Settlement Agreement, Class Counsel have sought approval of the agreed upon $8 million in fees, and $353,712.32 in reimbursement of costs expended by Class Counsel in this litigation. The Court has reviewed Class Counsel's submissions in support of the Motion for Final Approval, including Class Counsel's time records and the detailed declarations of Jeffrey Keller and Melissa Harnett and finds the requested amount to be fair and reasonable.

20. "Attorneys' fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the settlement is 'fundamentally fair, adequate, and reasonable.'" Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). In cases such as this one, where the "defendant in form agrees to pay the fees independently of any monetary award or injunctive relief provided to the class... the court need not inquire into the reasonableness of the fees even at the high end with precisely the same level of scrutiny as when the fee amount is litigated." Staton, 327 F.3d at 966; see also Hernandez v. Kovacevich, 2005 WL 2435906 at, *8-10 (E.D. Cal. September 30, 2005) (applying Staton); Wing v. Asarco, Inc., 114 F.3d 986, 988 (9th Cir. 1997) (holding attorneys' fees agreed to in a class settlement are constrained only by "reasonableness"). This is particularly true when "nothing before the court suggest[s] any collusion occurred" between the parties. Lobatz v. U.S. Cellular of Cal., Inc., 222 F.3d 1142, 1148 (9th Cir. 2000); Hemphill v. San Diego Ass'n of Realtors, Inc., 225 F.R.D. 616, 624 (S.D. Cal. 2005); In re First Capital Holdings Corp. Financial Prod. Sec. Lit., WL 226321, at *4 (C.D. Cal. June 10, 1992). Moreover, the presence or absence of objectors to a fee amount set forth in a settlement agreement is especially important to the consideration of whether the fees sought are reasonable. Singer v. Becton Dickinson and Co., 2010 WL 219610, at *8 (S.D. Cal. June 1, 2010).

21. Here the Court finds there is no evidence that the fee award was collusive. The amount was set forth as part of the mediator's proposal agreed upon by the parties and memorialized in the Settlement Agreement. No objectors have provided evidence of collusion and no objections to Class Counsel's intent to seek the specified amount in attorney's fees have been made (although one objector, whose objections have been overruled, claimed to be unable to determine whether she should object). These facts heavily weigh in favor of finding the negotiated fees reasonable.

22. The reasonableness of the fee award sought by Class Counsel is further corroborated by this Court's lodestar analysis. For purposes of the lodestar analysis, the Court finds that Plaintiffs are prevailing plaintiffs under both federal and state law statutes containing fee shifting provisions and are therefore entitled to an award of attorneys' fees. See 18 U.S.C. § 1964(c) (providing for attorneys fees in RICO action), 15 U.S.C. § 1693(a)(2)(m) (providing for attorneys fees in EFTA action), California Civil Code § 1780(e) (providing for attorneys fees in CLRA action), and California Code of Civil Procedure § 1021.5 (providing for attorneys' fees when the action "has resulted in the enforcement of an important right affecting the public interest.").*fn2 When a party prevails under both federal and state law, the Court may apply the more generous provisions of state law in calculating a fee award, such as including a multiplier for contingent fee risk. Fair Housing Council of San Diego v. Pensaquitos Casablanca Owner's Ass'n, 523 F. Supp. 1164, 1170 (S.D. Cal. 2007) (citing Mangold v. California Public Utilities Comm'n, 67 F.3d 1470, 1479 (9th Cir. 1995); Nat'l Federation of the Blind v. Target Corp., 2009 WL 2390261, at *5-6 (N.D. Cal. August 3, 2009); see also Ketchum v. Moses, 24 Cal. 4th 1122, 1136 (2001) (confirming availability of multipliers under California law despite differing federal approach).

23.Under the lodestar method, the Court first determines the lodestar by multiplying the number of hours reasonably spent by plaintiffs' counsel by reasonable hourly rates. Hanlon v. Chrysler Corp.,150 F.3d 1011, 1029 (9th Cir. 1998); Serrano v. Priest ("Serrano III"), 20 Cal. 3d 25, 48-49 (1977). The Court may then apply a multiplier to the lodestar under California state law, adjusting it upward or downward to take into account a variety of factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. Lealao v. Beneficial California, 82 Cal. App. 4th 19, 26 (2000).

24. Class Counsel have provided evidence in the form of time records and detailed declarations that 22,578.01 hours have been spent litigating this case on behalf of class members since before the filing of the complaint on October 2, 2006, including 9,987.81 hours billed by Keller Grover and 12,590.20 billed by Wasserman, Comden, Casselman & Esensten ("WCCE") (See Harnett ¶¶ 17, 99, Ex. 2; Keller ¶ 7, Ex. 2). Class Counsel has also submitted schedules of the hourly rates charged by the attorneys and professional staff who worked on this case as part of the Harnett and Keller declarations.

25. The Court has reviewed Class Counsel's submissions as well as considered all relevant factors and finds that Class Counsel's time was reasonably spent. The litigation was extremely hard fought by Counsel for both sides and the issues dealt with in this litigation were extremely complex and difficult throughout. This Court's own docket reflects the substantial amount of work that Class Counsel put into this case and Class Counsel have further evidenced the substantial amount of work that was involved but not reflected in the docket, including extensive discovery practice, 31 depositions, review of hundreds of thousands of pages of documents, two mediations, work with experts, and trial preparation. Further the Harnett and Keller Declarations state that Class Counsel have reviewed their own hours and have made cuts to hours where appropriate. Hours were reduced for time entry errors, duplications and instances where Class Counsel through its own audit determined that the hours should be reduced or not billed at all. The hours for which Class Counsel seeks compensation are therefore reasonable.

26. The Court also finds that Class Counsel's hourly rates are commensurate with the prevailing rates for private attorneys practicing both contingent and non-contingent litigation of this type in this district. Multiplying the time reasonably spent by Class Counsel litigating this case by Class Counsel's reasonable hourly rates, the Court calculates Class Counsel's lodestar to be $9,321,593 ($4,757,373.50 for Keller Grover and $4,564,219.50 for WCCE).

27. Class Counsel have further argued that a multiplier would be appropriate here as proof of the reasonableness of their fee request. The Court finds that in light of the fact that the unadjusted lodestar is well above the requested $8 million fee award (by an amount of 14%), the Court need not engage in the multiplier analysis to find the $8 million fee award reasonable. Accordingly, the Court hereby approves a fee award of $8 million to Class Counsel.

28. The Settlement Agreement also reflects Defendant's agreement to pay Class Counsel's costs, up to $400,000. Fed. R. Civ. P. 54(d)(1) provides that "costs -- other than attorney's fees -- should be allowed to the prevailing party" unless otherwise provided by law or court order. Class Counsel have provided the Court with invoices detailing the reimbursable amounts for each firm. The Court has reviewed the Keller and Harnett Declarations and the invoices attached and finds that Class Counsel's costs were reasonably necessary to the conduct of the litigation. The Court therefore awards Class Counsel their full costs in the amount of $353,712.32.

29. The Court Orders that within three (3) business days following the entry of this Order Granting Final Approval of Settlement, the $8 million fee award and the $353,712.32 award of costs shall be deposited into the Class Counsel Escrow Account as required under Paragraph 9.3 of the Settlement Agreement. The deposited fees and costs are to be distributed to Class Counsel upon the Effective Date as further specified in the Settlement Agreement.

30. The Settlement Agreement also contemplates the award of incentive payments to the Representative Plaintiffs in the amount of $10,000 each, subject to the Court's approval. The Court has reviewed the declarations of each of the Representative Plaintiffs and has taken into consideration all factors that can be considered by the Court in determining whether the awards are appropriate. The Court hereby GRANTS Plaintiffs' incentive award requests and finds that incentive awards in the amount of $10,000 for each of the Representative Plaintiffs are reasonable and justified.

31. The Court Orders that within three (3) business days following the entry of this Order Granting Final Approval of Settlement, Defendant shall place an additional $90,000 into the Class Escrow Account, ordered in Paragraph 40 above, and pursuant to Paragraph 2.3 of the Settlement Agreement. Payments of $10,000 to each of the nine (9) Representative Plaintiffs shall be made within thirty (30) days of the Effective Date as set forth in the Settlement Agreement.

32. If for any reason the Settlement Agreement becomes null and void before the Effective Date or before the Judgment becomes Final (including, without limitation, the exhaustion of any judicial review, or requests for judicial review from this Order of Final Approval), the operative complaint shall be the Fifth Amended Complaint and the Settling Parties shall resume the Litigation as if no Agreement had been entered. In such event, the terms and provisions of the Settlement Agreement shall have no further force and effect with the exception of Paragraphs 12.1 and 12.7 of the Settlement Agreement.

33. Upon the Effective Date of the Settlement, all Released Claims shall be deemed dismissed with prejudice and fully, finally, and forever relinquished and discharged against the Released Persons by operation of Judgment.

34. The Court further Orders that the parties carry out the provisions of the Agreement.

35. This Court has jurisdiction to enter this Final Judgment and Order of Dismissal. Without in any way affecting the finality of this Judgment, this Court expressly retains exclusive and continuing jurisdiction as to all matters relating to the administration, consummation, and enforcement and interpretation of the Settlement Agreement, and of this Order, and for any other purposes, including but not limited to:

(i) enforcing the terms and conditions of the Settlement Agreement and resolving any disputes, claims or causes of action that, in whole or in part, are related to or arise out of the Settlement Agreement, or the Judgment, including, without limitation, whether an Individual is or is not a Settlement Class Member;

(ii) entering such additional orders as may be necessary or appropriate to project or effectuate the Judgment approving the Settlement Agreement, dismissing all claims with prejudice, and permanently enjoining Settlement Class Members from initiating or pursuing related proceedings, or to ensure the fair administration of this Settlement, including issuing orders upon application of the parties, to conduct any discovery that may be necessary to apply for the posting of an appeal bond if an appeal is filed by a Settlement Class Member; and

(iii) resolving any disputes, claims or causes, and entering any additional orders relating to or arising out of the Released Claims, the timeliness and/or validity of any Opt Out, approval of any distribution to be made cy pres, and/or any Claim Form submitted for payment from the Class Escrow Account.

IT IS SO ORDERED:

Hon. A. Howard Matz United States District Judge

EXHIBIT A

Class Member Name 24 Hour Membership

Claimant ID

Number

DONNA SMITH FY77087 96515 CHRYSTAL FLACKMAN FQ80345 105071 MARIA CERVANTES FY90047 121521 DOUG HELMSTADER FZ03000 144506 KURT ERIKSSON FZ55582 234559 CAROLYN BARSANO FZ78491 275798 MARY GUIRA FZ84894 287838 LISA CLARK CD33868 346856 RACHEL MOORE GA35436 375009 DEB KAPUSTENSKY FA39211 383455 MARY ANN MORENO GA78754 442046 JOSE FUENTES GB82143 626736 SHELLEY VILES GC01714 660594 THEO WIRTZ GC31069 713139 ANA KAUFFMANN GC62408 768559 CAROLYN CORDELL ZZ870005 872577 SARAH SMITH GD70355 948876 GREGORIO LOPEZ GD76051 958479 ANNE GAULT GF57521 1275865 ZOHAL WAZIRI GG38917 1392845 REZA RAFIE GG85294 1466423 ASHLEY WARD GH33886 1548914 HAROLD GAULT GI14381 1667103 HAROLD GAULT GI14381 1667271 HAROLD GAULT GI14381 1667387 JEAN ERMOIAN GI17235 1671445 JENNIFER BLACK GI49119 1721799 ALFREDO MENDOZA GJ16107 1833249 JOHN SCHILTZ GJ51943 1890440 MICAH SMITH GJ96408 1961942 JADA MELANCON GK19962 2001197 CHEYENNE OSMUNDSEN GK23700 2006840 DEANNNA WEBB GK24881 2008257 KY;LE GREENBERG GL09657 2147949 NOZOMI NISHINO GL35333 2186504 DEMITRA LEWIS GL79713 2266305 SANDRA HORAN GM16152 2331140

ANNALISA JOYCE GM65490 2422220 SAMANTHA BELLOWS GM75386 2439846 SAMANTHA BELLOWS GM75386 2439969 SANDEEP SINGH FW19530 2571225 LORI HAWKINS BQ73469 2772028 MARY CANTLIN GP83436 2886237 NERRISA JUAN GP91140 2897875 MARIA RODRIGUEZ FV63662 3005095 JARED ELLIOT GQ71538 3023877 JARED ELLIOT GQ71538 3023884 KATHRYN COX GQ83933 3040751 LISA LUNDIN GT41368 3370445 SAMANTHA GAMACHE SAMMONS

GT57923

3391198

REBECCA KUK GT64086 3398357 ANTHONY LIPKA GT85117 3425541 KATHI LENGENFELDER GU20253 3473047 KATHERINE MILLER GU45771 3512203 SCOTT CRAM GU58796 3531556 SCOTT CRAM GU58796 3531600 LEAH MAGPANTAY GV18693 3620076 LEAH MAGPANTAY GV18693 3620083 GABRIELA ROSADO GV64095 3679463 LINDA BEADLES GX07070 3871928 PAM MELODY 110517454 4027560 OMAR GUTIERREZ GZ51749 4204190 MARAIA VURAI HB18870 4428275 AESHIM MARTIN HB84303 4529569 JAMES DAVIS HC30231 4590644 KATHRIN HUELCK HE12510 4861225 LOIS J ROSS AE499297 4985211 MILDRED C PICKARD AV53153 5013029 CITATION GAS BS424778 5065448 SANDY RYNO BS423568 5065677 CITATION GAS BS451079 5069279 WILL L SILMON CU95367 5164509 GLEN WAMBHEIM DE34392 5421909 CECELIA RHONE DT81562 5465255 TRESA LYKOU DW21954 5521302 JANET KRUGER DX77342 5552559 EUGENE WOLOWSKI DY39977 5565047 GENE WOLOWSKI DY39977 5565054

EUGENE WOLOWSKI DY39977 5565061 LAURIE ALLEN DY86463 5574131 THOMAS ALFORD DV41074 5625505 DARLENE RIDGWAY ED35826 5683376 CHALINA MORI ED98807 5701872 JAY MASATSUGU EF59530 5750931 ANTHONY SCARTOZZI EI23377 5853441 JOAN CROKER EJ01922 5880980 CHARLOTTE I. MILLER EJ76160 5902125 CHRIS CLARK EM35649 5958245 RYAN LURK EM68911 5975730 TAMARA KALE EM75323 5978670 RUBY HARRIS EN17136 6002077 COLLEEN OHLANDT DJ27925 6045494 ANGELA CAMDEN EO80032 6081287 BONNIE BAKER EP74923 6125967 PAMELA GOLDEN EQ83218 6166519 GLENN SLOAN EU35545 6309473 ROBERT FLINT EU38201 6310783 CITATION GAS EU47625 6315085 CITATION GAS EU47641 6315092 CITATION GAS EU47681 6315122 CITATION GAS EU47711 6315146 GLENN SLOAN EU35545 6383183 CYNTHIA KROHN EX09736 6427337 CRISTIAN SUAREZ EY20689 6509378 NICOLE WHYTE EY58948 6548995 CHRIS KROHN EY83467 6576141 JESSICA HEALEY EY96759 6590932 ISABELLE LOPEZ EZ13232 6609269 NICOLE BURNS EZ13532 6609580 AMY SCHROEDER EZ21411 6617332 DANIELLE ALLEN EZ66431 6666330 DEBBIE KAPUSTENSKY FA39211 6730840 REINA FUENTES FA96027 6786335 ROBERT OLSON FB31712 6822484 BYRON E CONNER AA15126 6875732 LINDSAY STANSFIELD FC42018 6931636 RUTH SIMONSON FD28848 7008498 SIRISUDA PADERMCHOKE FD45947 7023781 MARIANNE SOPER FD92961 7062766

MANUEL KARAMANLIAN FE09555 7076992 MANUEL KARAMANLIAN FE09555 7077043 DIANNE FENDLER FE75469 7137624 RENEE NOWLIN FE86892 7150647 BARBARA EISENBEIS FF59578 7229275 JAMES KIRSCH FF90813 7268892 MATTHEW OGWIN FH07827 7405730 GERALD LAM FH37257 7440045 CHELSEY GRIMM FH72816 7485763 KAY CLINE FJ14715 7619151 RUTH FOSSON FJ17166 7621338 TERRY NICHOLSON FJ24066 7627507 KAZUMI TAKENAKA FL73269 7849664 JEFF MERRITT FM26406 7901430 JEFF MERRITT FM26406 7901447 RUSSELL W KRUGER BH25130 7940491 GRACE HO FM93387 7959813 GERALD LAM FH37257 8012869 CHINH TRAN FN77243 8042101 ERIC BURDICK FN77336 8042224 GERARDO PASTOR FN86806 8050731 KAY CLINE FJ14715 8084699 GLEN MCLARTY FO79166 8136749 ROSA GUERREO FQ15097 8256072 HOPE SLIGER FQ60460 8299352 MICHELLE TRAN FQ73713 8314512 HO YEUNG FQ89807 8332622 LUKE MARQUARD FR16619 8362117 ANDREA RODRIGUEZ FR59596 8405739 MEGAN WILSON FR99856 8442192 JENNIFER MINDT FS06404 8448255 RUSSELL LISTER FT28536 8565112 RUSSELL LISTER FT28536 8565129 RUSSELL LISTER FT28536 8565143 RUSSELL LISTER FT28536 8565150 RENE GARCIA FU31926 8649195 ANDREA RODRIGUEZ FR59596 8664877 BRITNI HOTCHKISS FV11760 8731692 BRITNI HOTCHKISS FV11760 8731708 MARY CANTLIN GP83436 9050501 MATT SHAW HF83635 9156913

MAXIMILIANO GREMIGNI HG66099 9275836 PATRICIA KENNEDY HH46897 9401860 PATRICIA KENNEDY HH46897 9402140 BETTY ROMANO HH51294 9408043 MICHAEL WEST HI30768 9522794 RENEE ANDERSON HI37513 9532083 ERICA PETERS HI55179 9560635 NICOLE RICE HI68825 9584037 JEFF PUI HJ34173 9687370 JEFF PUI HJ34173 9687387 ASHLEY BURRIS-ANTEE HJ58991 9721142 SHIRENE ERICKSON HK38251 9827561 SHIRENE ERICKSON HK38251 9827776 JULI KOPROWSKI HK54853 9848986 TRACY MOSER HK59854 9854857 JATINDER UBBI HL79826 10006764 JATINDER UBBI HL79827 10007013 JORDAN BOUCHAL HM08156 10042892 JEFF CARLSON HM54121 10107171 LISA EVEN HM77409 10138670 ROBERT BREADY HM92986 10158586 AARON AKEMAN HN00836 10169681 AARON AKEMAN HN00836 10169698 LEAH BEAVER HN00837 10169704 TROY STAMPS HN46902 10229897 JARED GRAFF HO02108 10297896 MELVIN LONG HO71754 10394106 TOMAS SASSONE HP10466 10444474 TOMAS SASSONE HP10467 10444481 CHRIS SMITH HP23878 10461518 ANA VELAZQUEZ HP43394 10486443 RAOUL LEYBA HP59891 10504864 JOSE AGUILAR HF63393 10512418 KRISTEN BAKER HQ06096 10565452 DANIA MARTINEZ HQ60609 10647745 MARIA PESTOVNIKOVA HQ61609 10648926 DIANE ELLIOTT HR79956 10828823 DIANE ELLIOTT HR80050 10828847 NICOLE LANOUETTE HR91534 10850909 HILARY WILKANS HS27047 10901618 MELISSA MCCARRISTON HS80903 10991107

ANDREW HAYES HT49235 11104889 PEGGY SIMMONS HT92152 11170624 CHESTER CAMPBELL HU06955 11193401 CHESTER CAMPBELL HU06955 11193579 SHANNON POTEET HU67342 11284284 ELIZABETH DANIEL HT82411 11286844 SANDY JOSEPH HU94468 11321521 ERIN MICHELLE CRITTENDEN HV17561 11354819 SARA WELLS HV96162 11471738 GIGI LEIBY HW23208 11504245 LORETTA REDDAWAY HW35456 11528395 MAYA JONES HW53895 11551539 JILL JONES HW78536 11589846 PAULETTE SYLVIA HX29704 11665861 MELODY LOYOLA HX33081 11671008 RACHEL VERON HY15232 11785835 STEPHANIE LOPEZ HY31527 11806936 MARY DAVIDSON HZ47280 11966753 BRANDON SHORT IA02377 12040254 ANDREA BEAULIER IB81519 12284627 ANDREA BEAULIER IB81519 12284634 ANDREA BEAULIER IB81519 12284986 ANDREA BEAULIER-REAVIS IB81519 12284993 VALERIE BLOISE IC11930 12326624 VALENE BLOISE IC11930 12326631 QUINTINA GALLEGOS IC28756 12349180 KAY FORD IC32154 12354986 CHAUNDRA KENNEDY IC75186 12416875 CHRISTOPHER HAMILTON IC77910 12421824 HANNAH AFFLECK ID03371 12458349 RUTH BELL ID25961 12487615 AESHIM MARTIN HB84303 12493937 JENNA MALTSBERGER ID92958 12572625 JENNA MALTSBERGER ID93043 12572847 LETICIA GUTIEREZ IE08034 12591602 J CHANDRASEKHARA IE30608 12616817 ALMAZ TESFAI IE51487 12643653 ALMAZ TESFAI IE51487 12643660 JACQUIE BUTTERFIELD IE72773 12673025 ORLANDO OMORUYI IE94818 12699582 ORLANDO OMORUYI IE94818 12699599

HAMAD ALJASSAR IF22585 12730483 JENNIFER TANCREDI IG08740 12833177 LEILA SCHWANEMANN IG56259 12897391 RACHAEL DAVIS IG56976 12898596 MICHAEL NORIEGA IG69088 12911943 LESLIE REICHBAUM IG89084 12935482 LESLIE REICHBAUM IG89084 12935499 GARY PENTECOST IH31990 12982592 AMBER RADECKI II29822 13099756 MARIE NELSON GB74170 13119720 AMANDA DUGGAN II67724 13143008 AMANDA DUGGAN II67724 13143015 KRISTIN FASSNACHT IL54767 13469306 KIM CYBORON IL78898 13500894 KIM CYBORON IL78898 13500900 JANE TAKAYAMA IM66978 13578572 ALI VAHIDZAEH IM90553 13599577 DAVE KITCHEN IN33633 13642037 JENNIFER JOHNSON IO76602 13777142 DANIELA KWON IR99993 14112034 AARON AKEMAN HN00836 14154942 AARON AKEMAN HN00836 14154959 JAMES BARTON IT18526 14234187 AMADO TADIARCA IU11916 14327834 FRANCESCA GACHO IU35271 14354977 ELYSE GRESNICKSMITH IU44941 14365416 LIZETH LOPEZ IU90461 14405846 SAVANNAH ARGYLE IV84807 14497698 SHAWN ARIANNIA IW55836 14570803 SHAWN ARIANNIA IW55836 14570810 PABLO MEDINA IX19607 14629488 ADRIANA ROMO IX39680 14650901 MAROLYN LARSON IX77116 14684845 SHANE LIPPOLD IX90658 14697951 EARL HOBAR GO71719 14728228 KOURTNEY PYLE IY26574 14736308 ZAYRA SERRANO FK05293 14798818 ALEXANDER GINO JA34157 14927133 ANDREW CHILDS JB68571 15036438 EVA RAMOS JD02900 15134714 BRITTANY BARCUS JD06382 15137319

EDLYN CADIZ JD28341 15153166 EDLYN CADIZ JD28341 15153173 JENNIFER LEPIRE JD33112 15156280 NGOC LE JE44364 15230256 ARACELI RUIZ DE FIERRO JF12377 15268488 LISA SANXTER JG63653 15347602 CRAIG GEARK JH03449 15365767 STEVE MERGEN JH28854 15376503 BARBARA FRANKLIN JH96603 15401199 MARY LEYBA HP59890 15431578 KATIE ELLIS JJ21224 15435712 KATIE ELLIS JJ21224 15435781 ADAM FORMAN JJ61366 15443786 JESUS CONTRERAS JL55478 15469656 CITATION GAS QQ008601 15482198 CITATION GAS QQ008603 15482204 CITATION GAS QQ008604 15482211 CITATION GAS QQ008605 15482228 CITATION GAS QQ008615 15482235 CITATION GAS QQ008619 15482242 CITATION GAS QQ008622 15482259 CITATION GAS QQ008623 15482358 CITATION GAS QQ008625 15482365 CITATION GAS QQ008627 15482372 CITATION GAS QQ008628 15482389 CITATION GAS QQ008630 15482396 CITATION GAS QQ008666 15482402 CITATION GAS QQ008664 15482419 CITATION GAS QQ008665 15482426 CITATION GAS QQ008699 15482440 CITATION GAS QQ008667 15482457 CITATION GAS QQ008669 15482464 CITATION GAS QQ008670 15482471 CITATION GAS QQ008633 15482488 CITATION GAS QQ008637 15482495 CITATION GAS QQ008638 15482501 CITATION GAS QQ008640 15482518 CITATION GAS QQ008641 15482525 CITATION GAS QQ008644 15482532 CITATION GAS QQ008646 15482549 CITATION GAS QQ008647 15482556

CITATION GAS QQ008648 15482563 CITATION GAS QQ008649 15482570 CITATION GAS QQ008652 15482587 CITATION GAS QQ008654 15482594 CITATION GAS QQ008656 15482600 CITATION GAS QQ008657 15482617 CITATION GAS QQ008658 15482624 CITATION GAS QQ008660 15482631 CITATION GAS QQ008661 15482648 CITATION GAS QQ011731 15482655 CITATION GAS QQ011739 15482679 CITATION GAS QQ011740 15482686 CITATION GAS QQ008663 15482693 CITATION GAS QQ008672 15482709 CITATION GAS QQ008673 15482716 CITATION GAS QQ008671 15482761 CITATION GAS QQ010641 15482822 CITATION GAS QQ011728 15482853 CITATION GAS QQ011729 15482860 CITATION GAS QQ011771 15483010

K. I. (a minor) ZX037847 15531490 MICHAEL RODRIGUES ZX335464 15690890 CITATION GAS ZY038878 15714398 CITATION GAS ZY042913 15719478 CITATION GAS ZY042914 15719652 CITATION GAS ZY042915 15719669 CITATION GAS ZY043231 15720139 CITATION GAS ZY043232 15720146 CITATION GAS ZY043233 15720153 LINDA SANDERS ZY830743 15928085 KATRINA MARRIOTT ZY893471 16014800 JARED W KLINGENBERG ZY944536 16081277 CITATION GAS ZZ204212 16150577 CITATION GAS ZZ204830 16150638 CITATION GAS ZZ290646 16151321 CITATION GAS ZZ290647 16151338 CITATION GAS ZZ290648 16151345 CITATION GAS ZZ290650 16151352 CITATION GAS ZZ290651 16151369 CITATION GAS ZZ290653 16151376 CITATION GAS ZZ290654 16151383

CITATION GAS ZZ292517 16152274 CITATION GAS ZZ292518 16152281 CITATION GAS ZZ292536 16152304 CITATION GAS ZZ298151 16152526 CITATION GAS ZZ298152 16152724 CITATION GAS ZZ298153 16152731 KARIN KUNZIG ZZ392287 16157439 CHERIE NAVARRO ZZ396760 16159594 CITATION GAS ZZ404354 16163171 CITATION GAS ZZ404355 16163188 CITATION GAS ZZ404841 16163324 CITATION GAS ZZ404842 16163379 CITATION GAS ZZ575502 16177604 CITATION GAS ZZ575683 16177772 MICHAEL MANNING ZZ762165 16194809 MICHAEL MANNING ZZ762163 16194922 MICHAEL MANNING ZZ762164 16194939 CITATION GAS ZZ770708 16201026 CITATION GAS BS436118 16229723 ALFRED MIKULA CL59452 16234178 ROBERT PARK FO37086 16515864 MICHELLE TRAN FQ73713 16536012 MARILYN FLEETWOOD FT79490 16563926 JENNIFER CORUM GH15499 16744202 JENNIFER BLACK GI49119 16763821 SURENDRA SAMLALSINGH GU25562 16930179 JANICE NORCROSS GU75553 16937499 JEANNE ROITER HB50135 17024488 JD HOLLAND HD10644 17045797 LOLETTA HAZEN HH05844 17100410 RACHAEL DAVIS HI99915 17128698 CHRIS SMITH HP23878 17206457 DEEPAK MURTHY IG06556 17429429 CHRISTINE CORBETT IG51335 17435512 KONRAD MORAGA II79732 17461443 ALLEN MARGARETH II89095 17462174 HELEN CALUPIG IL57182 17490702 JULIO CARDENAS JA76340 17630955 CITATION GAS QQ008642 17678384 CITATION GAS QQ008634 17678445 CITATION GAS QQ008655 17678599

CITATION GAS QQ008606 17678605 CITATION GAS QQ008611 17678629 CITATION GAS QQ008620 17678636 CITATION GAS QQ011742 17678650 CITATION GAS QQ008662 17678827 CITATION GAS QQ008697 17678834 LINDA SANDERS ZY830743 17720656 CITATION GAS ZZ204827 17741637 CITATION GAS ZZ204831 17741644 CITATION GAS ZZ404356 17742740 FARRAH CARLTON AX48313 17750875 TRAVIS RENNER DD23534 17798952 GARY CHRISTENSEN DL81085 17834513 CHRIS PARKER DW04546 17897242 OMAR VIENGAR DW13417 17897341 KIRK MCVEY DX86322 17906395 VIRGINIA SCHNEEGANS EA04253 17917216 CONSTANCE ELMORE EARL ED35865 17931564 TAMI ZINK FE18083 363341 TAMI ZINK FE18083 7083839


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