United States District Court, N.D. California
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND MOTION FOR ATTORNEYS' FEES AND
COSTS RE: DKT. NOS. 70, 71
HAYWOOD S. GILLIAM, JR. United States District Judge
before the Court is Plaintiff Joyce Harper and Leila
Emerson's (“Plaintiffs”) unopposed motion for
final approval of class action settlement. Dkt. No. 70
(“Mot.”). Also pending is Plaintiffs' motion
for attorneys' fees and costs. Dkt. No. 71 (“Fees
Mot.”). The Court held a final fairness hearing on
August 4, 2016. Dkt. No. 78. For the reasons stated below,
the Court GRANTS final approval, as well as Plaintiffs'
motion for attorneys' fees and costs.
filed suit against Defendants The Law Office of Harris and
Zide (“Defendant”) and Bank of America, National
Association (“BOA”), the latter of which has been
dismissed from the action, for violation of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”), and California's
Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code
§ 1788 et seq. (“RFDCPA”).
See Dkt. No. 29 (“Compl.”) ¶ 1.
allege that Defendant, while acting to collect debts from the
putative class on behalf of BOA, failed to provide the exact
disclosure required by 15 U.S.C. § 1692g(a)(4).
Id. ¶¶ 1-2. Specifically, §
1692g(a)(4) requires that debt collectors send certain
“validation notices” to debtors when attempting
to collect a debt, which advise debtors about their rights to
dispute the debt and to request, “in writing, ”
that the debt collector provide verification of the debt.
See 15 U.S.C. § 1692g(a)(4). Unless this
information is included in the initial communication with a
debtor, a debt collector must provide notice within five
days. Id. § 1692g(a). Plaintiffs allege that
Defendant failed to inform them that verification of their
purported debt had to be requested in writing, thereby
implying that an oral request for verification of the debt is
valid. Compl. ¶¶ 22-34. On that basis, Plaintiffs
sought statutory damages, injunctive and declaratory relief,
pre-judgment and post-judgment interest, and attorneys'
fees and costs. Id. ¶ 70.
answered the complaint on June 17, 2015. Dkt. No. 36.
Plaintiffs stipulated to dismiss BOA from the action and
filed a notice of settlement on September 17, 2015.
See Dkt. Nos. 51, 52. Plaintiffs filed their
unopposed motion for preliminary approval of class action
settlement on November 2, 2015. Dkt. No. 56. The Court
granted the motion on May 4, 2016, appointing Plaintiffs as
class representatives, Greenwald Davidson Radbil PLLC as
class counsel, and provisionally certifying a Rule 23(b)(3)
damages class for statutory damages and a Rule 23(b)(2)
injunctive relief class for changed debt collection
practices. See Dkt. No. 67. The Court also approved
Bay Area Legal Aid as a cy pres recipient.
Id. at 15. Plaintiffs represented that they would
file a motion for attorneys' fees and costs not to exceed
$45, 000, and Defendant agreed not to oppose any request for
$25, 000 or less. Dkt. No. 56-1 (“SA”).
23, 2016, Plaintiffs moved for final approval of the class
action settlement and for attorneys' fees and costs in
the amount of $45, 000. See Dkt. Nos. 70, 71.
Defendant opposed Plaintiffs' motion for attorneys'
fees and costs, Dkt. No. 73, and Plaintiffs replied, Dkt. No.
Overview of the Proposed Settlement
November 2, 2015, the parties submitted a class action
settlement agreement that details the provisions of the
proposed settlement. See SA. The key terms are as
Definition: All persons with a California address to
whom Defendant mailed an initial debt collection
communication that stated, “If you notify this firm
within thirty (30) days after your receipt of this letter,
that the debt or any portion thereof, is disputed, we will
obtain verification of the debt or a copy of the judgment, if
any, and mail a copy of such verification or judgment to you,
” between March 10, 2014 and March 10, 2015, in
connection with the collection of a consumer debt on behalf
of Bank of America, N.A. Id. ¶ 1.B. The parties
have represented that there are a total of 1, 111 persons who
fall within this class definition, despite initially
estimating that there would be 1, 156 people in the class.
Dkt. No. 77-1 ¶ 6; see also SA ¶ 10.A.
Relief: Each class member will receive $10 regardless of
the ultimate size of the class. SA ¶ 10.A. Given the
currently estimated class size, the class will receive an
aggregate payment of $11, 110. See Id. (stating that
‘[s]hould the Parties discover that there are
additional, or fewer, Class Members, the Settlement Fund will
be adjusted accordingly such that the Settlement Fund
consists of $10.00 per Class Member.”). Plaintiffs, as
named plaintiffs, will receive an additional $1000 each as
statutory damages awarded under 15 U.S.C. §
1692k(a)(2)(A). Id. ¶ 10.E; Dkt. No. 56. at 14.
To the extent that any funds remain after all claims are
paid, Bay Area Legal Aid will receive the balance as a cy
pres recipient. Id. ¶ 10.D.
Relief: Defendant will no longer use the language quoted
in the class definition in its initial debt collection
communications. Id. ¶ 10.F.
The class will release Defendant and any associated persons
or entities from any and all known and unknown claims that
arise out of or relate to the use of the language quoted in
the class definition from Defendant's initial debt
collection communications. Id. ¶ 1.C.
Fees and Costs: The settlement agreement authorizes
class counsel to seek attorneys' fees and costs not to
exceed $45, 000. Id. ¶ 10.G.1. However,
Defendant only agreed not to oppose an application for fees
and costs totaling no more than $25, 000. Id.
Settlement is not contingent on the outcome of this fee
application, which remains subject to the discretion of the
Court. Id. ¶ 10.G.2.
Motion for Final Approval of Class Action Settlement
approval of a class action settlement requires, as a
threshold, an assessment of whether the class satisfies the
requirements of Federal Rule of Civil Procedure 23(a) and
(b). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019,
1022 (9th Cir. 1998). Because no facts that would affect
these requirements have changed since the Court preliminarily
approved the class on May 4, 2016, this order incorporates by
reference its prior analysis under Rules 23(a) and (b) as set
forth in the order granting preliminary approval.
See Dkt. No 67. The Court affirms its previous
findings and certifies the settlement class.
claims, issues, or defenses of a certified class may be
settled . . . only with the court's approval.”
Fed.R.Civ.P. 23(e). The Court may finally approve a class
settlement “only after a hearing and on finding that it
is fair, reasonable, and adequate.” Fed.R.Civ.P.
23(e)(2); Hanlon v. Chrysler Corp., 150 F.3d 1011,
1025 (9th Cir. 1998). To assess whether a proposed settlement
comports with Rule 23(e), courts should consider the
the strength of the plaintiff's case; the risk, expense,
complexity, and likely duration of further litigation; the
risk of maintaining class action status throughout the trial;
the amount offered in settlement; the extent of discovery
completed and the stage of the proceedings; the experience
and views of counsel; the presence of a governmental
participant; and the reaction of the class members to the
Hanlon, 150 F.3d at 1025 (hereinafter, the
“Hanlon factors”). No single factor is
the “most significant, ” Officers for Justice
v. Civ. Serv. Comm'n of City & Cnty. of S.F.,
688 F.2d 615, 625 (9th Cir. 1982), and “the decision to
approve or reject a settlement is committed to the sound
discretion of the trial judge, ” Hanlon, 150
F.3d at 1026. In addition, “[a]dequate notice is