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In re Uber FCRA Litigation

United States District Court, N.D. California

May 2, 2018

IN RE UBER FCRA LITIGATION

          ORDER GRANTING PLAINTIFFS' MOTION FOR FINAL APPROVAL OF SETTLEMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SERVICE AWARDS; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR ATTORNEY'S FEES Docket Nos. 257, 258, 264

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs brought putative class actions alleging they were denied employment or were terminated on the basis of information contained in background checks that Uber procured in violation of the Fair Credit Reporting Act ("FCRA") and related state laws. See Docket No. 171 ("Amend. MAC") ¶¶ 1-2, 56-62. Now pending before this Court are Plaintiffs‘ motion for final approval of class settlement, see Docket No. 264, motion for service awards, see Docket No. 257, and motion for attorney‘s fees. See Docket No. 258. Having reviewed the parties‘ submissions, the Court hereby GRANTS Plaintiffs‘ motion for final approval of class settlement, and GRANTS IN PART and DENIES IN PART Plaintiffs‘ motions for service awards and attorney‘s fees.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On June 29, 2017, this Court granted Plaintiffs‘ motion for preliminary approval of class action, and described the procedural history, history of negotiations, and discovery that preceded that motion, which will not be repeated here. See Docket No. 242 ("Prelim. App. Order") at 1-5. Following entry of the Preliminary Approval Order, Class Counsel worked closely with the Court-appointed Settlement Administrator, the Angeion Group, LLC, and with counsel for Uber to implement the notice program approved by this Court. See Docket No. 264 ("Mtn. for Final App.") at 14; see also Docket No. 264-1 ("Wolfson Decl.") ¶ 5.

         Notice of the settlement was given to the class via email, mail or online (through the Settlement Website). See Mtn. for Final App. at 20. With respect to the email notice, the claim administrator sent 1, 024, 270 emails to potential members included on the class list, of which 111, 920 email were returned as undeliverable, 120, 314 emails were confirms opened, and 793, 197 emails were delivered but there was no confirmation whether they were opened, as of September 25, 2017. See Docket No. 264-3 ("Ferrara Decl.") ¶ 6. On December 6, 2017, in accordance with the Stipulation of Settlement, the claim administrator sent 977, 313 reminder email notices to class members included in the list who did not submit a claim form to reminder of the claims submission deadline. Id. at ¶ 11.

         Taking into consideration the number of emails that were returned undeliverable, the number of emails that were unopened, duplicative records, and records without a mailing address, the claim administrator identified 843, 696 class members whom a mailed notice would be (and was) sent. Id. at ¶ 7-10. As of January 23, 2018, the claim administrator had received 135, 209 claim form submissions, of which 99, 243 appear to be valid. Id. at 16. The total number of 99, 243 valid claim forms represent approximately 10% of all Class Members. See Wolfson Decl. ¶ 17. The deadline for requests for exclusion and objections to the settlement was December 14, 2017. As of January 23, 2018, there have been 216 opt outs.[1] See Docket Nos. 259-263; see also Ferrara Decl. 26.

         Plaintiffs moved for final approval of class settlement on January 25, 2018. On February 8, 2018, the Court held a hearing on Plaintiffs‘ motion for final approval of class action settlement, Plaintiffs‘ motion for service awards, and Plaintiffs‘ motion for attorney fees and expenses. See Docket Nos. 264, 257, 258. The Court expressed concerns regarding: (1) the wording of the release included in the settlement; and (2) an objection based on a single request for exclusion filed by Audet & Partners LLP ("Audet") on behalf of Thomas Abeyta and 548 individuals ("Abeyta Objection I"). See Docket No. 277; see also Docket Nos. 263, 270 ("Abeyta Obj. I"). The Court issued a minute order the same day requiring the parties to meet and confer regarding the first issue and, with respect to the second issue, requiring that additional notice be provided certain Class Members on whose behalf Audet filed an objection and request for exclusion. See Docket No. 275 ("Feb. 8 Order"). With regards to the scope of the release, the Court found that the settlement‘s release should be clarified without requiring additional notice to Class members. See Docket No. 277 at 7; see also Feb 8 Order at 1. The parties have filed and revised a stipulation and proposed order, and the Court entered that revised order on April 19, 2018.[2] See Docket No. 284.

         With regards to the second issue, Audet claimed to represent each of the 548 individuals individually and argued that the prohibition on counsel filing opt outs on behalf of clients is a violation of due process. Id. at 2. However, only 245 of the 548 individuals are actually Class Members. See Ferrara Decl. ¶ 20. As some of the 245 Class Members have already (a) submitted claim, (b) requested for an exclusion, (c) submitted a claim and submitted a request for exclusion, or (d) did not respond, the Court ordered the parties to re-issue a class notice to only 108 Class Members, who have either (i) submitted a claim and an individual request for exclusion, or (ii) did not submit a claim and did not submit an individual request for exclusion. See Feb. 8 Order; see also Docket No. 264-3 ¶ 19, 20, 24, 25. The 108 Class Members were given a period of 45 days to respond and the deadline to respond was April 14, 2018. See Docket No. 285 ("Ferrara Decl. II"). Of the 108 Class Members, 25 submitted claims and 17 submitted requests for exclusion. Id. at ¶ 6.

         III. DISCUSSION

         A. Plaintiffs‘ Motion for Final Approval of Class Settlement

         1. Legal Standard

         Public policy "strong[ly] ... favors settlements, particularly where complex class action litigation is concerned." In re Syncor ERISA Litigation, 516 F.3d 1095, 1101 (9th Cir. 2008). In weighing final approval of a class settlement, the Court‘s role is to determine whether the settlement, taken as a whole, is fair, reasonable, and adequate. Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). As noted in the Court‘s Preliminary Approval Order, the Ninth Circuit has established a list of factors to consider when assessing whether a proposed settlement is fair, reasonable and adequate: (1) the strength of the plaintiffs‘ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the benefits offered in the settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. See Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004); see also Hanlon, 150 F.3d at 1026.

         2. Th ...


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