United States District Court, S.D. California
CARRIE COUSER, individually and on behalf of all others similarly situated, Plaintiff,
COMENITY BANK, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S UNOPPOSED MOTION FOR CY PRES DISTRIBUTION
[DOC. NO. 96]
Michael M. Anello, United States District Judge
October 12, 2012, Plaintiff Carrie Couser filed this putative
class action alleging violations of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227
et seq. See Doc. No. 1. Plaintiff now moves
the Court for approval of cy pres distribution of
remaining settlement funds to certain beneficiaries.
See Doc. No. 96. The Court found the matter suitable
for determination on the papers and without oral argument
pursuant to Civil Local Rule 7.1(d)(1). For the reasons set
forth below, the Court GRANTS IN PART and DENIES IN PART
action is premised on allegations that Defendant contacted
Plaintiff on her cellular telephone in an attempt to collect
an alleged debt owed by Plaintiff's mother. Plaintiff
alleges that Defendant used an automatic telephone dialing
system to place multiple calls to her each day, and that she
incurred charges for incoming calls. The Parties ultimately
entered into a settlement agreement and on May 27, 2015, the
Court granted final approval of the class action settlement
(“the Settlement”). See Doc. No. 91. For
the purposes of settlement, the Court certified the following
All persons whose cellular telephone numbers were called by
Defendant, released parties, or a third party dialing company
on behalf of Defendant or the released parties, using an
automatic telephone dialing system and/or an artificial or
prerecorded voice, without consent, from August 1, 2010
through May 26, 2014, excluding those persons whose cellular
telephone number/s were marked with a “wrong
number” code in Defendant's database (which persons
are included in the putative class in Picchi v. World
Financial Network Bank, et al., Case No.:11-CV-61797,
currently pending in the Southern District of Florida).
Excluded from the Class is Defendant, its parent companies,
affiliates or subsidiaries, or any employees thereof, and any
entities in which any of such companies has a controlling
interest; the judge or magistrate judge to whom the Action is
assigned; and, any member of those judges' staffs and
immediate families, as well as persons who validly request
exclusion from the Settlement Class.
See Doc. No. 91.
as part of the Settlement, Defendant was required to
establish a non-reversionary Settlement Fund in the amount of
$8, 475, 000.00. After costs and fees were distributed, the
Net Settlement Amount was to be distributed pro rata
to Class Members who had submitted valid and approved claims.
Pursuant to the Settlement, the Claims Administrator was to
mail Settlement Checks to those Class Members, and any funds
not paid out as a result of un-cashed Settlement Checks would be
paid as cy pres awards to recipients to be agreed
upon by the Parties, and upon Court approval. See
Doc. No. 91.
Plaintiff moves for Court approval of cy pres
distribution of the remaining balance of the Settlement Fund,
which amounts to approximately $871, 549.69. See Doc.
No. 96. Specifically, Plaintiff requests that the balance be
divided equally and distributed to: (1) New Media Rights; (2)
Consumer Federation of California; (3) Public Justice
Foundation; and (4) Bet Tzedek Legal Services. Defendant
Comenity Bank does not oppose this motion.
‘cy pres doctrine allows a court to distribute
unclaimed or non-distributable portions of a class action
settlement fund to the ‘next best' class of
beneficiaries.'” See Lane v. Facebook,
Inc., 696 F.3d 811, 819 (9th Cir. 2012) (quoting
Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir.
2011)). “[A] district court should not approve a cy
pres distribution unless it bears a substantial nexus to
the interests of the class members, ” meaning that the
distribution “must account for the nature of the
plaintiffs' lawsuit, the objectives of the underlying
statutes, and the interests of the silent class
members.” Id. (citing Nachshin, 663
F.3d at 1036); see also Six (6) Mexican Workers v.
Arizona Citrus Growers, 904 F.2d 1301, 1308 (9th Cir.
1990) (setting aside district court's cy pres
application where distribution to the chosen recipient
organization would have “benefit[ed] a group far too
remote from the plaintiff class”).
“[t]he purpose of the TCPA is to ‘protect the
privacy interests of residential telephone subscribers by
placing restrictions on unsolicited, automated telephone
calls to the home and to facilitate interstate commerce by
restricting certain uses of facsimile machines and automatic
dialers.'” Aboudi v. T-Mobile USA, Inc.,
No. 12CV2169 BTM NLS, 2015 WL 4923602, at *5 (S.D. Cal. Aug.
18, 2015) (quoting Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 954 (9th Cir. 2009)). In enacting
the TCPA, Congress sought to protect people from unsolicited,
automated phone calls because they cause a nuisance and
constitute invasions of privacy. See Cabiness v. Educ.
Fin. Sols., LLC, No. 16-CV-01109-JST, 2016 WL 5791411,
at *6 (N.D. Cal. Sept. 1, 2016); Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).
in mind the foregoing, the Court discusses each of the
proffered cy pres beneficiaries and their nexus to