United States District Court, N.D. California
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT RE: DKT. NO. 59
DONNA
M. RYU UNITED STATES MAGISTRATE JUDGE.
On May
4, 2018, Plaintiff Joseph Carlotti filed a class action
complaint in Alameda County Superior Court against Defendants
ASUS Computer International (“ACI”) and ASUSTek
Computer Inc. (“ASUSTek”). [Docket No. 1-1
(“Compl.”).] ACI removed the action to this court
on June 7, 2018 under the Class Action Fairness Act. [Docket
No. 1.] The parties seek preliminary approval of a class
action settlement. [Docket No. 59 (“Mot.”).] The
court held a hearing on August 22, 2019. Following the
hearing, court ordered the parties to submit additional
briefing, which they submitted on September 12, 2019 and
October 7, 2019. [Docket Nos. 68 (“Supp. Br.”);
68-1 (“Gutride Supp. Decl.”), Ex. A
(“Agreement”).]
For the
reasons stated below, the motion for preliminary approval is
granted.
I.
BACKGROUND
A.
Facts and Claims
Carlotti
alleges that Defendants manufactured and sold two laptop
models that contain defects: the ASUS GL502VS
(“VS”) and the ASUS GL502VKS (“VKS”).
These models were allegedly advertised as “portable
laptops with a powerful graphical processor suited for gaming
and video editing.” Compl. ¶ 2. However, according
to Carlotti, the laptop models contain two main defects that
render them inadequate for these processes. Id.
¶ 1. First, the laptops allegedly have several issues
relating to their power supply units, including: (1) the
battery drains during use, even when connected to a power
outlet; (2) there are “significant reductions in
computational performance” when the battery power is
low; and (3) there is accelerated degradation of the
batteries (“Power Defect”). Id. ¶
2. Second, Carlotti claims that the laptops' cooling
system is insufficient to prevent overheating, leading to
reduced durability and performance (“Overheating
Issue”). Id. ¶ 6.
The
operative complaint proposes a class of “[a]ll persons
in the United States who purchased one or more ASUS GL502VS
or GL502VSK laptops.” Compl. ¶ 83. The California
Subclass includes “[a]ll members of the Class who made
their purchase in California.” Id. On behalf
of the putative class and subclass, Carlotti brings numerous
claims for relief, including: (1) breach of express warranty;
(2) breach of the implied warranty of merchantability; (3)
violations of the Magnuson-Moss Warranty Act, 15 U.S.C.
§§ 2301, et seq.; (4) deceit and
fraudulent concealment; (5) unjust enrichment; (6) violations
of the Consumers Legal Remedies Act, Cal. Civ. Code
§§ 1750, et seq.; (7) violations of the
False Advertising Law, Cal. Bus. & Prof. Code
§§ 17500; (8) violations of the Song-Beverly
Consumer Warranty Act, Cal. Civ. Code §§ 1790
et seq.; and (9) violations of the Unfair
Competition Law, Cal. Bus. & Prof. Code §§
17200 et seq.
B.
Procedural History
Carlotti
represents that the parties “conducted a thorough
examination and investigation of the facts and law relating
to the matters in the Litigation.” Mot. at 2. Class
counsel engaged in pre-litigation investigation and
discovery, including researching Defendants' marketing
and advertising, reviewing Carlotti's documentation, and
analyzing the information available on Defendants'
websites. [Docket No. 61 (“Gutride Decl.”) ¶
4.] Carlotti filed the complaint in Alameda County Superior
Court on May 4, 2018. Id. ¶ 2. Defendant ACI
removed the case to this district on June 7, 2018.
Id. ¶ 5. Carlotti filed a motion for
alternative method of service on ASUSTeK, a Taiwanese
corporation, which the court granted on February 11, 2019.
[Docket Nos. 39, 42.]
Class
counsel represents that they engaged in meet-and-confer
efforts with Defendants' counsel throughout the case,
including the scope of discovery, the retention and
production of electronically stored information, the terms of
a protective order, and the timing of production and
depositions. Gutride Decl. ¶ 7. Carlotti propounded
written discovery, including requests for production of
documents and interrogatories. Id. ¶ 8.
Defendants produced hundreds of documents, and class counsel
retained an electrical engineering expert to assist in
reviewing Defendants' production. Docket No. 63
(“Sacks Decl.”) ¶ 14; Gutride Decl. ¶
9. Defendants deposed Carlotti on November 14, 2018. Gutride
Decl. ¶ 10. On March 19, 2019, the parties held a
mediation before Martin Quinn, Esq. at JAMS. Id.
¶ 12. The case settled as a result of the mediation, and
there has been no briefing or hearing for summary judgment or
class certification.
The
court held a hearing on August 22, 2019. Following the
hearing, court ordered the parties to submit additional
information about the proposed settlement. [Docket No. 65.]
The parties submitted supplemental briefing on September 12,
2019 and October 7, 2019.
II.
TERMS OF THE SETTLEMENT
The
following description of the Agreement includes the changes
implemented after the hearing.[1] Under the terms of the Agreement,
Defendants will provide an extended warranty (“Extended
Warranty”) on all VS laptops to cover certain repairs,
which include repairs to or replacement of a motherboard
and/or a new AC power adapter (“Qualifying
Repairs”). Agreement ¶¶ 2.48, 5.1. The
Extended Warranty will last until the latest of (1) three
years from the date of purchase; (2) 90 days after final
approval of the class action settlement; or (3) 180 days
after the date Defendants previously replaced the internal
power supply and/or AC power adaptor. Id. ¶
5.1. The value of the Extended Warranty is estimated at $16,
110, 225.00. Supp. Br. at 9.
Additionally,
all class members are entitled to submit a claim for monetary
relief, including those who are eligible for Qualifying
Repairs under the Extended Warranty. The amount of the
settlement benefits is not limited by the number of claims
submitted or any fees or costs in the case, all of which are
covered by Defendants. The amount of benefits to which each
class member is entitled depends on (1) whether the class
member previously complained about one of the defects
addressed in this case and (2) the proof of purchase:
• Group A includes class members who
registered their laptop with Defendants, bought the laptop
from the ASUS website, or can submit a proof of purchase.
Members of this group who submit a claim have the option to
select either a $110 cash payment or a $210 credit
certificate, which is freely transferable, stackable, and is
valid for at least two years. Agreement ¶ 6.1(a).
• Group B includes class members who
previously complained to Defendants about the defects.
Members of this group will automatically receive a $210
credit certificate without filing a claim. Members can elect
to file a claim instead and receive a $110 cash payment.
Id. ¶ 6.1(b). The parties represent that fewer
than 500 people qualify for Group B.
• Group C includes any other member of
the class (i.e., those that do not have the proof required to
be in Group A or did not file a prior complaint to qualify
for Group B). Although this group does not have to submit the
proof that is required to be part of Group A, they still must
provide the serial number of their laptops. Members of this
group have the option to submit a claim for either a $55 cash
payment or a $105 credit certificate. Id. ¶
6.1(c).
The
highest potential monetary value of the settlement is $5,
208, 000. See Docket No. 62 (“Nafisi
Decl.”) ¶ 19. For Group A claims only, Defendants
retain the right to demand an inspection of a laptop to
verify that it suffers from either defect. Members of any
Group must certify under penalty of perjury that their laptop
suffered from the Power Defect and/or Overheating Issue.
See Agreement, Ex. A, A1.
The
parties propose that Angeion Group act as the settlement
administrator. Class members will be notified by email if
Defendants have an email address for them; by postcard via
First Class U.S. Mail if Defendants have their physical
address but not an email address; and by both email and
postcard if Defendants have an email address and a physical
mailing address. Agreement ¶ 7.2(b). If a physical
mailing is returned as undelivered, then the claims
administrator will use a skip trace search to identify
updated mailing addresses. Id. ¶ 7.2(e). Notice
will also be published in People magazine and USA Today, and
will be distributed via press release. See Id.
¶ 7.2(i); Mot. At 9. There will also be an online notice
published across internet websites and social media
platforms, and an online notice on Defendants' websites
and social media platforms. Agreement ¶ 7.2(h). This
media notice procedure is expected to reach 76.75% of the
target audience with an average frequency of 3.03 times each.
[Docket No. 60 (“Weisbrot Decl.”) ¶¶
22-23.] The claims administrator will launch a settlement
website. Id. ¶ 7.2(f).
Carlotti's
counsel will seek approval of an award of costs and fees in
the amount of $787, 500.00 after the class members are
notified and have the opportunity to opt out of the
settlement or object. Agreement ¶ 2.4. Carlotti will
seek an incentive award of $5, 000. Id. ¶ 2.29.
III.
PRELIMINARY APPROVAL
“The
Ninth Circuit maintains a ‘strong judicial policy'
that favors the settlement of class actions.”
McKnight v. Uber Techs., Inc., No. 14-cv-05615-JST,
2017 WL 3427985, at *2 (N.D. Cal. Aug. 7, 2017) (quoting
Class Plaintiffs v. City of Seattle, 955 F.2d 1268,
1276 (9th Cir. 1992)). The settlement of a certified class
action must be “fair, reasonable, and adequate.”
Fed.R.Civ.P. 23(e)(2). “The court's role in
reviewing a proposed settlement is to represent those class
members who were not parties to the settlement negotiations
and agreement.” Tadepalli v. Uber Techs.,
Inc., No. 15-cv-04348-MEJ, 2016 WL 1622881, at *6 (N.D.
Cal. Apr. 25, 2016). At the preliminary approval state, the
court's role is to assess whether the settlement
“falls within the range of possible approval.”
Terry v. Hoovestol, Inc., No. 16-cv-05183-JST, 2018
WL 4283420, at *1 (N.D. Cal. Sept. 7, 2018) (internal
quotation marks and further citations omitted).
The
court will look to two authorities in deciding whether to
grant preliminary approval: (1) the fairness factors set
forth in Churchill Vill., L.L.C. v. Gen. Elec., 361
F.3d 566, 575 (9th Cir. 2004); and (2) the factors in Rule
23(e)(2). “The relative degree of importance to be
attached to any particular factor will depend upon . . . the
unique facts and circumstances presented by each individual
case.” Officers for Justice v. Civil Serv.
Comm'n of City & Cty. of San Francisco, 688 F.2d
615, 625 (9th Cir. 1982). The court will also consider the
Northern District of California's Procedural Guidance for
Class Action Settlements.[2]
A.
Churchill Factors
A class
action “may be settled, voluntarily dismissed, or
compromised only with the court's approval.”
Fed.R.Civ.P. 23(e). The “decision to approve or reject
a settlement is committed to the sound discretion of the
trial judge because he is exposed to the litigants, and their
strategies, positions, and proof.” In re Mego Fin.
Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000),
as amended (June 19, 2000) (citation omitted). The
district court's role in reviewing proposed class action
settlements is to determine whether a settlement is
“fundamentally fair, adequate, and reasonable.”
Id. The court is tasked with balancing a number of
factors, including:
(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 amount offered in 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.
Churchill, 361 F.3d at 575.
1.
Strength of Plaintiff's Case and Risks of
Litigation
The
first three factors are addressed together and require the
court to assess the plaintiff's “likelihood of
success on the merits and the range of possible
recovery” versus the risks of continued litigation and
maintaining class action status through the duration of the
trial. See Garner v. State Farm Mut. Auto. Ins. Co.,
No. 08-cv-1365-CW, 2010 WL 1687832, at *9 (N.D. Cal. Apr. 22,
2010). However, the court need not “reach any ultimate
conclusions on the contested issues of fact and law which
underlie the merits of the dispute, for it is the very
uncertainty of outcome in litigation and avoidance of
wasteful and expensive litigation that induce consensual
settlements.” Officers for Justice, 688 F.2d
at 625. These factors weigh in favor of approving settlement
when the defendant has “plausible defenses that could
have ultimately left class members with a reduced or
non-existent recovery.” In re TracFone Unlimited
Serv. Plan Litig., 112 F.Supp.3d 993, 999 (N.D. Cal.
2015).
The
complaint in this case alleges various breach of warranty and
false advertising claims based on the alleged defects in the
two ASUS laptop models at issue. While Carlotti and his
counsel assert that the claims are meritorious, they concede
that several issues in the case could possibly result in
little or no recovery on a class-wide basis, including the
difficulty of proving:
(1) that all the Laptops uniformly experienced the Power
Defect and Overheating Issues, (2) that Defendants'
marketing materials were likely to deceive reasonable
consumers, (3) that omissions in the marketing materials were
material to reasonable consumers, (4) the amount of damages
or restitution due to the class or to any class member, and
(5) that common questions predominate over individual issues
such that a class may be certified.
Mot. at 14. Adam Gutride, one of Carlotti's counsel,
identified additional arguments raised by Defendants:
(a) Plaintiff could not identify any actionable
misrepresentation or omissions, as opposed to inactionable
puffery, regarding the Laptops; (b) Plaintiff lacked standing
to assert claims related to the GL502VS Laptops (because he
purchased a GL502VSK Laptop); (c) there was no defect in the
GL502VSK Laptops; (d) Plaintiff's common law fraud claims
are barred by California's economic loss rule; (e) there
was no breach of express warranty because the written
warranty did not cover design defects, ASUS complied with its
warranty by replacing Plaintiff's laptop, and there was
no other express warranty; (f) there was no unfair or
unlawful conduct; (g) Plaintiff could not certify a class
because individualized questions of materiality, reliance,
and injury would predominate; and (h) Plaintiff and the Class
suffered no damages because the Laptops performed as well as,
or better than, other laptops in the market. In support of
those arguments, Defendants argued that GL502VS and GL502VSK
Laptop models differed in material respects. ASUS conceded
that it received some complaints from GL502VS Laptop
purchasers about the Power Defect and Overheating Issue, but
ASUS claimed that it addressed the problem by designing the
next model (the GL502VSK) with an upgraded power adapter and
a different CPU and motherboard, which allegedly resolved the
defects identified by Plaintiff. ASUS claimed that the Power
Defect and Overheating Issue only affected 2% of the GL502VS
laptops and .5% of the GL502VSK laptops.
Gutride Decl. ¶ 15. Carlotti also asserts that even if
the class prevails at trial, the court could “require
an individualized damage prove-up, ” which would be far
more time-intensive and costly than the relatively simple
claims process outlined in the settlement.
The
record establishes that there is significant risk to
individual and class recovery if the case were to proceed
further in litigation. If Defendants were able to show, for
example, that they complied with Carlotti's warranty by
replacing his laptop, then Carlotti may lack standing to
represent the class for the warranty claims. See
Gutride Decl. ¶ 15. Further, even if the class were
certified, Defendants could still move to decertify the class
at any time. See In re Netflix Privacy Litig., 2013
WL 1120801, at *6 (N.D. Cal. Mar. 18, 2013) (“The
notion that a district court could decertify a class at any
time is one that weighs in favor of settlement.”).
Weighing
the potential benefits to the class against the risks of
continued litigation, the court finds that first three
Churchill factors support approving the settlement.
2.
Amount Offered in Settlement
The
fourth Churchill factor, which looks at the amount
of recovery offered in settlement, favors preliminary
approval. When considering whether the amount offered in
settlement is fair and adequate, “[i]t is the complete
package taken as a whole, rather than the individual
component parts, that must be examined for overall
fairness.” Officers for Justice, 688 F.2d at
628. In addition, “it is well-settled law that a
proposed settlement may be acceptable even though it amounts
to only a fraction of the potential recovery that might be
available to the class members at trial.”
Nat'l Rural Telecommunications Coop.
v. DIRECTV, Inc., 221 F.R.D. 523, 527 (CD. Cal. 2004).
In this
case, the Agreement entitles all class members to submit a
claim for monetary relief. The amount of the settlement
benefits is not limited by the number of claims submitted or
any fees or costs in the case, all of which are covered by
Defendants. The amount of benefits any class member can
receive depends on whether they previously complained about
one of the defects at issue in this case and the proof they
have relating to their purchase. Class members in Group A and
B have the option of receiving either a $110 cash payment or
a $210 credit certification, while class members in Group C
can receive either a $55 cash payment or a $105 credit
certificate. Carlotti represents that approximately 24, 800
laptops were sold during the class period. Mot. at 7. The
maximum (albeit theoretical) monetary recovery under the
settlement is $5, 208, 000.
Class
members are entitled to receive injunctive relief in addition
to the monetary recovery. The Extended Warranty covers
repairs relating to the Power Defect to the VS laptops, of
which approximately 13, 500 were sold during the class
period. Nafisi Decl. ¶ 18. In the initial motion,
counsel estimated that cost of repair for the Power Defect in
the VS laptops would be approximately $500 per laptop.
Id. In the supplemental papers, this figure was
amended. See Docket No. 68-3 (“Morquecho
Decl.”) ¶¶ 2-3. The current cost of replacing
an original motherboard in a VS laptop without a warranty is
$1, 153.63. Id. ¶ 2. The current replacement
cost for a VS power adapter is $39.72. Id. ¶ 3.
If all class members who purchased a VS laptop during the
class period received both repairs, the monetary value of the
repairs would be 13, 500*($1, 153.63$39.72) = $16, 110, 225.
In total, the Agreement provides monetary and equitable
relief with an estimated maximum value of over $21.3 million.
At the
hearing, the court asked what relief the class would receive
if they prevailed. Class counsel responded that the damages
for the false advertising claims would likely be calculated
based on the premiums that class members paid for laptops
that were advertised to perform high capacity functions such
as gaming and video editing. The premiums are the difference
in price between the laptops at issue (approximately $1, 700)
and laptops that could not perform the high capacity
functions. Class counsel estimated the premiums would be
2-5%, or $34-85 per laptop. Because this claim would affect
all members of the class, which is estimated to include
approximately 24, 800 members, the total monetary recovery
for the false advertising claims is estimated to be between
$843, 200 ($34x24800) and $2, 108, 000 ($85x24, 800).
For the
warranty claim, class counsel represented that damages would
likely be calculated based on the cost of repair. In the
initial motion, counsel estimated that cost of repair for the
Power Defect in the VS laptops would be approximately $500
per laptop. Nafisi Decl. ¶ 18. In the supplemental
papers, this figure was amended to $1, 193.35 (assuming that
the laptop was no longer covered by a warranty). See
Morquecho Decl. ¶¶ 2-3. Unlike the false
advertising claim, however, the warranty claims would affect
only those class members whose laptops experienced the
defects, which they estimate as about 2% of the class
(approximately 500 people). Based on this estimate, the total
value of the warranty claim would be about $596, 675. In
total, the estimated maximum recovery for the class if they
prevailed would be $2, 704, 675, which is a fraction of the
estimated settlement value.
The
total potential settlement value does not reflect the
realistic value of the settlement because most of that number
is based on the value of the Extended Warranty without
considering the relatively low percentage of the class who
experienced the defects. However, looking at the relief
provided to any individual class member, the amount offered
in the settlement appears reasonable. Anyone who bought a VS
laptop with a Power Defect[3] would be entitled to receive a full
repair of the issue through the Extended Warranty (valued at
$1, 193.35), and between $55 and $210 in monetary benefits in
addition to the repairs. Therefore, class members who were
affected by the defects can receive a full equitable remedy
in the form of repairs while still recovering a significant
monetary benefit.
The
court finds that the relief offered is closely tailored to
address the alleged wrongful conduct and is within the realm
of reasonable recovery in this case.
3.
Stage of Proceedings
Class
settlements are presumed fair when they are reached
“following sufficient discovery and genuine arms-length
negotiation.” DIRECTV, Inc., 221
F.R.D. at 528; 4 Newberg at § 11.24. “The extent
of discovery [also] may be relevant in determining the
adequacy of the parties' knowledge of the case.”
DIRECTV, 221 F.R.D. at 527 (quoting Manual for
Complex Litigation, Third § 30.42 (1995)). “A
court is more likely to approve a settlement if most of the
discovery is completed because it suggests that the parties
arrived at a compromise based on a full understanding of the
legal and factual issues surrounding the case.”
Id. (quoting 5 Moore's Federal
Practice, §23.85[2][e] (Matthew Bender 3d ed.)).
However, “[i]n the context of class action settlements,
as long as the parties have sufficient information to make an
informed decision about settlement, ‘formal discovery
is not a necessary ticket to the bargaining
table.'” Wilson v. Tesla, Inc., No.
17-cv-03763-JSC, 2019 WL 2929988, at *8 (N.D. Cal. July 8,
2019) (quoting Linney v. Cellular Alaska P'ship,
151 F.3d 1234, 1239 (9th Cir. 1998)).
Carlotti
represents that the parties “conducted a thorough
examination and investigation of the facts and law relating
to the matters in the Litigation.” Mot. at 2. They
state that they conducted “an in-depth technical
analysis of the issue that involved surveying and
interviewing dozens of affected consumers, reviewing hundreds
of online posts, and developing a detailed understanding of
ASUS's representations and remediation attempts.”
Nafisi Decl. ¶ 3. Carlotti's counsel hired an
electrical engineering expert and engaged in extensive
pre-litigation investigation and discovery. Id.
Carlotti appeared for a deposition. Id. On March 19,
2019, the parties participated in an all-day mediation
conducted by Martin Quinn, of JAMS. The case settled as a
result of the mediation, and there has been no briefing or
hearing for summary judgment or class certification. Luanne
Sacks, lead counsel for Defendants, also testifies that the
parties engaged in significant discovery. Sacks Decl. ¶
14. She states that Defendants deposed Carlotti, responded to
his interrogatories and document requests, and produced
hundreds of pages of documents. Id. She also avers
that they were in the process of scheduling the deposition
for ACI's Rule 30(b)(6) witness immediately prior to the
settlement. Id.
At the
hearing, the court noted that there was a limited amount of
written discovery propounded in this case and that the number
of documents (“hundreds”) seemed low for a
consumer class action. The court also noted that the case was
settled early and without substantial litigation. Class
counsel represented that a substantial portion of the
investigation took place before the complaint was filed, when
they analyzed software updates released by Defendants that
were meant to address the defects; talked to consumers who
had installed the updates to determine their efficacy; and
ran diagnostic tests on affected laptops. Once the complaint
was filed, Carlotti analyzed additional documentation
provided by Defendants, including information on the remedial
efforts Defendants had been undertaking. They retained an
electrical engineering expert to review the technical
documents. The parties represented that they exchanged a
substantial amount of information outside of formal discovery
procedures.
The
court finds that the parties adequately investigated the
claims and defenses in this case and that the parties had
enough information to make an informed decision about
settlement.
4.
Experience and Views of Counsel
Carlotti
is represented by counsel from Gutride Safier, LLP
(“GSLLP”) and Migliaccio & Rathod
(“M&R”). Class counsel represents that they
have no conflicts of interest with the class and have
extensive experience and expertise in prosecuting complex
class actions. Mot. at 21. Adam Gutride of GSLLP submitted a
declaration in support of the motion for preliminary approval
and attached a resume of the firm's cases. Gutride Decl.,
Ex. 2. GSLLP has been appointed as class counsel in more than
25 consumer cases and has overseen more than a dozen large
class action settlements. Gutride Decl. ¶ 13. Esfand
Nafisi of M&R also submitted a declaration and attached
the resumes of M&R attorneys, as well as a list of the
notable consumer cases prosecuted by the firm. Nafisi Decl.,
Ex. 1.
The
court is satisfied that class counsel have provided adequate
representation on behalf of the class.
5.
Government Participant
This
factor is inapplicable because there is no government
participant in this case. See Mendoza v. Hyundai Motor
Co., Ltd, No. 15-cv-01685-BLF, 2017 WL 342059, at *7
(N.D. Cal. Jan. 23, 2017).
6.
Reaction of Class Members
The
reaction of the class members is best assessed at the final
approval hearing since the court can look at how many class
members submitted claim forms and objections. See
Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 967 (9th
Cir. 2009) (affirming approval of a class action settlement
where there were 54 objections out of 376, 301 notices sent).
Therefore, this factor should not be considered in
preliminary approval.
B.
Rule 23(e) Factors
Rule
23(e) requires the court to consider whether:
(A) the class representatives and class counsel have
adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking
into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing
relief to the class, including the method of processing
class-member claims;
(iii) the terms of any proposed award of attorney's fees,
including timing of payment; and
(iv) any agreement required to be identified under Rule
23(e)(3); and
(D) the proposal treats class members equitably relative to
each other.
Fed. R. Civ. P. 23(e).
1.
Adequacy of Representation
In
determining whether to approve a class action settlement, a
court must consider whether “the class representatives
and class counsel have adequately represented the
class.” Fed.R.Civ.P. 23(e)(2)(A).
a.
Class ...