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Rosemary Cohorst, Charmaine Griffith v. Bre Properties

January 18, 2012

ROSEMARY COHORST, CHARMAINE GRIFFITH,
AND DEIDRE QUENELL ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
BRE PROPERTIES, INC.; L1 HOLDING, INC; LEVEL ONE, LLC; AND REAL PAGE, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION, AS MODIFIED, RE: APPROVAL OF FINAL SETTLEMENT; DENYING IN PART AND GRANTING IN PART OBJECTIONS

On November 11, 2011, Special Master Judge Herbert B. Hoffman, Judge of the California Superior Court (Ret.) entered a Report and Recommendation pursuant to Federal Rule of Civil Procedure 53 recommending (1) the denial of the Objections to the final class action settlement, (2) the approval of the final settlement on the merits, and (3) the award of attorney's fees, costs, and class representative incentive awards ("R & R"). Objectors Yanique Dias and Gilliane Graber, represented by the firm of Chapin Fitzgerald Sullivan & Bottini LLP, object to the class action settlement as does Objector Susan Kreidler, represented by the firm of Kiesel Boucher Larson LLP. Defendants Level One, LLC and L1 Holdings, Inc. (collectively "Level One") and Defendant BRE Properties, Inc. ("BRE") oppose the Objections. Plaintiff Rosemary Cohorst and the class also oppose the Objections. Having carefully considered the R & R, the Objections and responses, the court record, the transcripts of the hearings conducted before Judge Hoffman on September 29, 2011 and October 7, 2011, and the arguments of counsel, the court denies in part and grants in part the Objections and adopts the R & R in its entirety, as modified below.

DISCUSSION

As the R &R thoroughly and thoughtfully analyzed the arguments of the Objectors, the court adopts the R & R as if fully set forth herein.

Legal Standards

Special Master

Objections to the findings and legal conclusions of the Special Master are reviewed de novo. Fed.R.Civ.P. 53(f).

Class Action Settlement

In order to approve a class action settlement, the court must "determine whether [the] class action settlement is fundamentally fair, adequate, and reasonable." Hanlon v. Chrysler Corp, 150 F.3d 1011, 1026 (9th Cir. 1998). To determine the overall fairness of the settlement, the court examines the settlement as a whole, rather than the individual components of the settlement. Id.

Assessing a settlement proposal requires the district court to balance a number of factors: (1) the strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement.

Id. This is not an exhaustive list of considerations relevant to approving a class action settlement. Id. The Objections

The Notice

At the outset the court notes that Objectors raise two distinct sets of issues related to Notice. First, Objectors challenge the adequacy of the contents of the Notice itself. Objectors argue that the Notice could have used less confusing, or additional, language in the Notice (i.e. the Notice states that the class consists of persons who had calls "handled" by Level One but the notice arguably should have identified the class as consisting of individuals who "made [or] received calls from Defendants;" greater detail should have been provided to describe Level One's involvement in recording conversations (Dias' Objections)). On May 6, 2011, the court granted preliminary approval of the settlement and approved the class Notice. (Ct. Dkt. 26). At that time, Objectors raised no objection to the contents of the Notice. The court declines to reconsider that issue now because Objectors fail to identify any newly discovered evidence, intervening change in law, or manifest injustice warranting reconsideration. See School Dist. N. 1J Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Accordingly, the court does not revisit these notice related issues*fn1 .

Second, in light of the amount of claims received (1338), in relation to the quantity of potential class members (over 1.1 million), Objectors challenge the means used to provide notice to Class Members. Specifically, Objectors contend that the notice provided to the class is inadequate because (1) not all class members received notice, (2) notice was not physically mailed to the last known postal addresses of about 15,500 potential Class Members, (3) the dedicated website is confusing, and (4) notice could have been provided to potential Class Members by placing fliers in common areas of the apartment complexes owned by BRE. ...


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