United States District Court, N.D. California
Dkt. No., 33
ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
HAYWOOD S. GILLIAM JR. United States District Judge
before the Court is Plaintiff Michael Rhom's unopposed
motion for preliminary approval of class action settlement,
Dkt. No. 33 (“Mot.”), which came before the Court
for hearing on February 9, 2017, Dkt. No. 34. The parties
filed a joint supplemental submission in support of the
motion on February 16, 2017. Dkt. No. 35. The submission
attached an amended settlement agreement, claim form, email
notice, and website notice. Dkt. No. 35-1 & Exs. A-C.
Having carefully considered these filings, as well as the
arguments made at hearing, the Court hereby
GRANTS the motion.
PROVISIONAL CLASS CERTIFICATION
district court concludes that the moving party has met its
burden of proof under Federal Rule of Civil Procedure 23,
then the court has broad discretion to certify the class.
Zinser v. Accufix Research Inst., Inc., 253
F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir.
2001).To meet that burden, the moving party must satisfy each
of the four requirements of Rule 23(a) and at least one
subsection of Rule 23(b). Id. Rule 23(a) provides
that a district court may certify a class only if:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). That is, the class must satisfy the
requirements of numerosity, commonality, typicality, and
adequacy of representation to maintain a class action.
Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581,
588 (9th Cir. 2012). Moreover, where the plaintiff seeks to
certify a class under Rule 23(b)(3), she must show that
“questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.” Fed.R.Civ.P. 23(b)(3). Here, Plaintiff
has shown that Rule 23(a)'s requirements of numerosity,
commonality, typicality, and adequacy of representation are
satisfied, as are Rule 23(b)(3)'s requirements of
predominance and superiority. Accordingly, the Court provisionally
certifies a damages class under Rule 23(b)(3). Moreover, the
Court appoints Plaintiff as the class representative and
CounselOne, P.C. as class counsel, finding that the relevant
requirements are satisfied. See Fed. R. Civ. P.
23(a)(4); Hanlon v. Chrysler Corp., 150 F.3d 1011,
1020 (9th Cir. 1998) (requirements to satisfy Rule 23(a)(4));
Fed.R.Civ.P. 23(c)(1)(B) (appointment of class counsel);
Fed.R.Civ.P. 23(g)(1) (factors to consider re: same).
PRELIMINARY SETTLEMENT APPROVAL
found provisional certification appropriate, the Court
considers whether to grant preliminary approval of the
proposed class action settlement under Rule 23(e).
See Fed. R. Civ. P. 23(e) (“The claims,
issues, or defenses of a certified class may be settled . . .
only with the court's approval.”) “A district
court may approve a proposed settlement in a class action
only if the compromise is fundamentally fair, adequate, and
reasonable.” In re Heritage Bond Litig., 546
F.3d 667, 674-75 (9th Cir. 2008). Specifically, courts
scrutinize whether the proposed settlement (1) appears to be
the product of serious, informed, non-collusive negotiations;
(2) does not grant improper preferential treatment to class
representatives or other segments of the class; (3) falls
within the range of possible approval; and (4) has no obvious
deficiencies. In re Tableware Antitrust Litig., 484
F.Supp.2d 1078, 1080 (N.D. Cal. 2007). Finally, where the
parties reach a class action settlement prior to class
certification, as they did here, the district courts apply
“a higher standard of fairness and a more probing
inquiry than may normally be required under Rule
23(e).” Dennis v. Kellogg Co., 697 F.3d 858,
864 (9th Cir. 2012) (internal quotations marks omitted).
Here, having rigorously scrutinized the settlement agreement
in light of the higher standard of fairness that applies, the
Court preliminarily finds that the proposed settlement is
fair, adequate, and reasonable on its face, and that all four
Tableware factors weigh in favor of preliminary
PROPOSED CLASS NOTICE PLAN
notice in a Rule 23(b)(3) class action must comport with the
requirements of due process. Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 173-77 & n.14 (1974). The
notice must be “the best practicable, reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.”
Philips Petroleum Co. v. Shutts, 472 U.S. 797, 812
(1985) (internal quotation marks omitted). “The notice
should describe the action and the plaintiffs' rights in
it.” Id. Rule 23(c)(2)(B) provides, in
The notice must clearly and concisely state in plain, easily
understood language: (i) the nature of the action; (ii) the
definition of the class certified; (iii) the class claims,
issues, or defenses; (iv) that a class member may enter an
appearance through an attorney if the member so desires; (v)
that the court will exclude from the class any member who
requests exclusion; (vi) the time and manner for requesting
exclusion; and (vii) the binding effect of a class judgment
on members under Rule 23(c)(3).
the Court finds that the notice plan described in the amended
settlement agreement, see Dkt. No. 35-1 ¶ 5.1,
will provide the best practical notice to the class, and that
the amended notices adequately describe the action and class
members' rights and satisfy the seven requirements of
Rule 23(c)(2)(B), see Dkt. No. 35-1 Exs. B-C. In
addition, the Court finds that that the CPT Group is
qualified to perform the tasks associated with administering
the notice outlined in the settlement agreement and therefore
approves CPT Group as the settlement administrator.
See Dkt. No. 35-1 ¶¶ 1.29, 7.1.