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Relente v. Viator, Inc.

United States District Court, N.D. California

May 4, 2015

ROSALINA C. RELENTE, et al., Plaintiffs,
v.
VIATOR, INC., Defendant.

ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT Re: Dkt. No. 98

JAMES DONATO, District Judge.

On April 1, 2015, the Court held a hearing regarding the final approval of the proposed class action settlement entered into between the parties. The Court previously granted preliminary approval of the settlement. See Dkt. No. 76. After carefully considering the proposed class action settlement, the Court grants final approval. A separate order will address plaintiffs' counsel's motion for attorney's fees.

INTRODUCTION

The facts as alleged in this case were set out in the Court's order granting preliminary approval of the proposed settlement. See Dkt. No. 76. To recap, the plaintiffs, Rosalina Relente and Travis Anderson, allege that Viator, a company that markets and sells "tours and experiences" through its website, displayed some tours with a "strike-through price" - a price with a line running through it to convey the fact that it was superseded. See Sitkin Decl. ¶ 4, Dkt. No. 80. Plaintiffs claimed that these strike-through prices misled consumers about the amount by which the tours' prices were discounted. See id.

The terms of the proposed settlement are straightforward. The class of customers who would be covered by the settlement, unless they opt out, consists of:

All persons who purchased a Viator tour worldwide using a California billing address from October 16, 2008 through June 7, 2014 when a Strikethrough Price was displayed with no Special Offer Text.

Proposed Settlement ¶ 3.1, Dkt. No. 63-1. The "special offer text" refers to an explanation on the website of the basis for the strikethrough price. Id. § 2.23.

Under the terms of the proposed settlement, Viator will be subject to a permanent injunction requiring it to include a description of the basis for a strike-through price whenever it lists one on its website or apps. Id. § 5. In addition, the settlement provides for a $515, 000 settlement fund, to be divided between the class members based on how much they paid for their tour. Id. § 2.5. There are 16, 637 class members, resulting in an average payout of $30.96. See Lake Decl. ¶ 5, Dkt. No. 100. None of the settlement fund reverts to Viator.

The members of the proposed class would release Viator from:

any and all liabilities, claims, cross-claims, causes of action, rights, actions suits, debts, liens, contracts, agreements, damages, costs, attorneys' fees, losses, expenses, obligations, or demands, of any kind whatsoever, whether known or unknown, existing or potential, or suspected or unsuspected, whether raised by claim, counterclaim, setoff, or otherwise, including any known or unknown claims, which they have or may claim now or in the future to have, that were or could have been alleged against any of the Released Persons in the Action, that relate to the advertising of tours (Released Claims'). The Release shall have no effect on any claims arising after June 7, 2014.

Proposed Settlement § 8.1.

In addition, Viator will be subject to a permanent injunction requiring it to include a description of the basis for a strike-through price whenever it lists one on its website or apps. Id. § 5.

Notice was provided in the form of a website, Lake Decl. ¶ 6, emails to the class members, id. ¶ 7, and postcards to those class members whose email notice bounced, id. ¶ 9. The emails were tested to avoid being caught by spam filters. Id. ¶ 7. The postcard notice was used for 664 potential class members, and 32 were returned as undeliverable. Id. ¶ 9. ...


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