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Brown v. 22ND District Agricultural Association

United States District Court, S.D. California

July 21, 2017

GILLIAN BROWN, on behalf of herself and all others similarly situated, Plaintiff,
v.
22ND DISTRICT AGRICULTURAL ASSOCIATION, a State entity; and DOES 1 through 10, inclusive, Defendants.

          ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND ATTORNEYS' FEES AWARD [ECF NOS. 42, 48] AND GRANTING AWARD OF COSTS AND FEES TO DEFENDANT AND SETTLEMENT ADMINISTRATOR [ECF NO. 49]

          LOUISA S PORTER FOR DAVID H. BARTICK UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court are the remaining portions of Plaintiff Gillian Brown's (“Plaintiff”) Motion for Final Approval of Class Action Settlement [ECF No. 42], which the Court requested supplemental briefing on in its earlier final approval order [ECF No. 47]. In that order, the Court requested the parties file a renewed motion for attorneys' fees addressing (1) how the settlement should be characterized and (2) how attorneys' fees should be calculated depending on the settlement's characterization. (ECF No. 47 at 23.) On May 23, 2017, Plaintiff filed a supplemental brief addressing the issues raised by the Court. (ECF No. 48.) On May 24, 2017, Defendant 22nd District Agricultural Association (“Association”) filed its supplemental brief addressing separate issues. (ECF No. 49.)

         After reviewing the parties' briefs, the Court GRANTS Plaintiff's final approval motion and her renewed motion for attorneys' fees [ECF Nos. 42, 48].

         BACKGROUND

         The Settlement Agreement

         The Economic Relief

         Each admission entrance fee for the 2017 San Diego County Fair (subject to a $750, 000 total reduction cap) shall be reduced fifty (50) cents from the then-current fair market value of such admission prices as determined by the Neutral Expert or as otherwise agreed upon between Class Counsel and the Association and the Association's counsel.

         To the extent the reduction cap has not been met through the 2017 San Diego County Fair fee reduction, each admission entrance fee for the 2018 San Diego County Fair (subject to a $750, 000 total reduction cap, inclusive of the previous year reduction) shall be reduced pro rata based on a calculation of the expected 2018 attendance and the remaining amount under the reduction cap. The Neutral Expert shall conduct its analysis and provide its recommendations no later than the Opt-Out and Objection Deadline, and the final agreed upon pricing for the 2017 San Diego County Fair shall be submitted to the Court in connection with the Motion. (ECF No. 39-1 at 36.)

         The Common Fund

         The Association and Solar shall also pay a Common Fund of exactly $175, 000 ($170, 00 by the Association and $5, 000 by Solar) which shall be used to compensate (1) the Settlement Administrator for its services in providing publication and website notice and other settlement administration services (as detailed in the Settlement), (2) Plaintiff Gillian Brown for an incentive award (subject to Court approval), (3) Class Counsel for their attorneys' fees and costs (subject to Court approval), and (4) the Neutral Expert described above. Neither the Association nor Solar shall oppose the requests made from the Common Fund, so long as they do not exceed the amounts set forth in Section 2.20. Any unawarded or unrequested portion of the Common Fund shall be paid to a privacy protection-related cy pres recipient to be proposed to the Court in connection with the Motion for Final Approval. (Id. at 36-37.)

         Attorneys' Fees and Costs to Class Counsel

         Class Counsel may move the Court for an award of attorneys' fees and expenses paid from the Common Fund, not to exceed $150, 000. Neither the Association nor Solar shall oppose any request which does not exceed $150, 000. The amount of attorneys' fees and costs approved by the Court shall be paid from the Common Fund Settlement Administrator to Class Counsel's Client Trust Account, as directed by written instructions from Class Counsel. This payment shall be made no later than the Funding Date[1]. Court approval of attorneys' fees and costs, or their amount, will not be a condition of Settlement. In addition, no interest will accrue on such amounts at any time. (Id. at 33.)

         Final Approval of Class Action Settlement Order

         While examining the settlement agreement, the Court suspected that the class settlement benefit, a reduced admission price, was a coupon. (ECF No. 47 at 22.) For that reason, the Court expressed reluctance to award attorneys' fees based on the lodestar method Plaintiff requested.[2] (Id.) However, class counsel argued that the Settlement should not be characterized as a coupon settlement at the final approval hearing. For that reason, the Court ordered the parties to submit further briefing to address the following questions:

(1) Whether the Settlement should be characterized as a coupon settlement?
(2) If this is a coupon settlement, whether the Court can determine a reasonable contingency fee without actual evidence of the value of the redemption?
(3) Whether the Court can use the total reduction cap ($750, 000) as the actual redemption value or the fifty cent ($0.50) reduction in admission price?
(4) Whether there is a form of non-coupon relief the Class is due to receive which allows the Court to use the lodestar method to calculate attorneys' fees under 28 U.S.C. § 1712(b) and In re HP Inkjet Printer Litig., 716 F.3d 1173 (9th Cir. 2013)? (Id. at 23.)

         The Court also ordered the parties to file a renewed motion for attorneys' fees by May 25th, 2017. (Id.) On May 23, 2017, Plaintiff and her class counsel filed a “Supplemental/Renewed Motion for Attorneys' Fees.” (ECF No. 48.) The Association filed “Further Briefing Regarding 1) Court's Order Granting Plaintiff's Motion For Final Approval Of Class Action ...


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