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In re Easysaver Rewards Litigation

United States District Court, S.D. California

August 9, 2016

In re EASYSAVER REWARDS LITIGATION

          ORDER

          Hon. Cynthia Bashant United States District Judge

         I. BACKGROUND

         On February 4, 2013, the Honorable Anthony Battaglia issued a Final Order approving the class settlement; granting Plaintiffs’ motion for attorneys’ fees, costs and incentive awards; and overruling Objector Perryman’s objections. [ECF No. 271.] Based on this Order, on February 21, 2013, Judge Battaglia entered a Final Judgment dismissing with prejudice the action and retaining jurisdiction over the implementation, administration and enforcement of the Final Judgment, the Settlement Agreement and all matters ancillary thereto. [ECF No. 277.]

         Objector Perryman appealed. While the case was on appeal, it was transferred from the calendar of Judge Battaglia to the calendar of Judge Cynthia Bashant. [ECF No. 295.]

         On March 19, 2015, the Court of Appeals issued an order and memorandum vacating the district court’s judgment and remanding the case for further proceedings consistent with its newly decided In re Online DVD-Rental Antitrust Litig., No. 12-15709, 779 F.3d 934 (9th Cir. 2015). [ECF No. 302.] On July 27, 2016, this court heard oral argument from the Plaintiffs on behalf of the class members, the Defendants and Objector Perryman, on the effect of In re Online DVD-Rental Antitrust on the settlement approved by Judge Battaglia. Having considered the oral arguments as well as the various written submissions to the court, the court adopts the orders of Judge Battaglia in their entirety [ECF No. 271, 277] and finds this settlement is not a “coupon settlement” requiring adherence to 28 U.S.C. § 1712.

         II. STATEMENT OF FACTS

         According to Plaintiffs, when class members completed a purchase on one of Provide Commerce Inc. (“Provide Commerce”)’s retail websites, they were presented with a pop-up window offering $15.00 off their next purchase as a “Thank you” gift, and asking them to enter their zip code and email address and click “Accept” to receive the gift. [Fourth Amended Complaint, ECF No. 221, ¶¶3, 26.] Provide Commerce then transmitted this private payment information to Encore Marketing International (“EMI”) without consent. [Id. ¶¶1-3.] EMI proceeded to enroll class members in a Rewards Program and charged their credit or debit cards a $1.95 activation fee, followed by a $14.95 monthly fee. [Id. ¶¶3, 26.]

         Defendants Provide Commerce and EMI deny these allegations, claiming the Rewards Program details were adequately disclosed and that Plaintiffs entered into electronic contracts with EMI for membership in the Rewards Program. [ECF No. 248-1.]

         III. SETTLEMENT TERMS

         The Court adopts the Background and Proposed Settlement Terms outlined in Judge Battaglia’s Final Order approving class settlement. [ECF No. 271.] However, the Court emphasizes the following findings of fact about the settlement:

1. The total settlement in this case was a $12.5 million non-reversionary cash fund plus $20.00 merchandise credits[1] automatically sent via e-mail or direct mail to all class members without the need for a claim form submission. If all class members used the full $20.00 merchandise credit, the total settlement would be $38 million. [ECF No. 248-3 §2.]
2. The non-reversionary cash fund was to reimburse those class members who had been charged an activation or monthly fees without their consent. Any amounts left over after reimbursement of all class members seeking reimbursement and after deduction of attorneys’ fees and costs would go to a cy pres fund to fund higher education projects relating to internet privacy and consumer protection. [Id. §2.1d, e.]
3. The settlement was specifically tailored to address the alleged harm inflicted in this case, that is, return of any cash charged to class members’ credit or debit cards for unwanted enrollment in the Rewards Program, plus a $20.00 merchandise credit to compensate for the $15.00 “Thank You” gift offer.
4. The $20.00 merchandise credit did not require class members to hand over more of their own money before they could take advantage of ...

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