Knutson v. Schwan's Home Service, Inc., No. 3:2012cv00964 - Document 139 (S.D. Cal. 2014)

Court Description: ORDER Granting 135 Motion for Preliminary Approval of Class Action Settlement. The hearing set for July 18, 2014, is Vacated. Signed by Judge Gonzalo P. Curiel on 7/14/2014. (srm)

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Knutson v. Schwan&#039;s Home Service, Inc. Doc. 139 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ERIK KNUTSON AND KEVIN LEMIEUX, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, 14 PLAINTIFFS, 15 V. 16 SCHWAN’S HOME SERVICE, INC.; AND CUSTOMER ELATION, INC., 17 Case No.: 3:12-cv-00964-GPC-DHB CLASS ACTION ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (ECF NO. 135) 18 DEFENDANTS. 19 20 21 22 23 From April 18, 2008 through August 31, 2012, Defendants Schwan’s Home 24 Service, Inc. (“Schwan’s”) and Customer Elation, Inc. (“Customer Elation”) 25 (collectively, “Defendants”) placed calls to past or present customers of 26 NutriSystem, Inc. (“NutriSystem”). Plaintiffs Erik Knutson (“Knutson”) and Kevin 27 Lemieux (“Lemieux”) (together, “Plaintiffs”) allege Defendants violated the 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 1 of 14 - 3:12-cv-00964-GPC-DHB Dockets.Justia.com 1 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by placing 2 automated and/or prerecorded telephone calls to persons without their prior express 3 consent, using an automatic telephone dialing system (“ATDS”). 4 Knutson, initiated this lawsuit (the “Action”) on April 18, 2012. Knutson 5 later filed a First Amended Complaint adding Lemieux. (ECF No. 28.) On January 6 25, 2013, Plaintiffs filed a motion for leave to file a Second Amended Complaint 7 (“SAC”) to add defendant Customer Elation. (ECF No. 30.) The Court granted 8 that motion on February 20, 2013. (ECF No. 38.) In their SAC, Plaintiffs assert 9 causes of action for (1) negligent violation of the TCPA and (2) knowing and/or 10 willful violation of the TCPA. On May 8, 2013, Plaintiffs filed a motion for class 11 certification, which the Court granted in part on September 5, 2013. (ECF No. 99.) 12 22 The Court certified the following Rule 23(b)(3) class (“Class”): All persons who are past or present customers of NutriSystem, Inc., who had or have a number assigned to a cellular telephone service, which number was called by Defendants using an automatic telephone dialing system and/or an artificial or prerecorded voice between April 18, 2008 and August 31, 2012. Excluded from the Class are persons who Defendants called for emergency purposes and persons who gave express consent to Defendants to call their cellular telephone number prior to Defendants first placing a call using an automatic telephone dialing system and/or artificial or prerecorded voice. Also excluded from the Class are Defendants, their officers and directors, families and legal representatives, heirs, successors or assigns and any other entity in which Defendants have a controlling interest, any judge assigned to this case and their immediate families. 23 (ECF No. 119.) Plaintiffs seek, in their SAC, $500 per negligent violation and 24 $1,500 per willful violation as well as injunctive relief. 13 14 15 16 17 18 19 20 21 25 Presently before the Court is Plaintiffs’ Motion for Preliminary Approval of 26 Class Action Settlement. (ECF No. 135.) Pursuant to the Parties’ Settlement 27 Agreement, Defendants do not oppose this Motion. 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 2 of 14 - 3:12-cv-00964-GPC-DHB DISCUSSION 1 2 Prior to granting approval of a class action settlement, a court (1) assesses 3 whether a class exists and (2) determines whether the proposed settlement is 4 “fundamentally fair, adequate, and reasonable.” Stanton v. Boeing Co., 327 F.3d 5 938, 952 (9th Cir. 2003) (internal quotations omitted). Here, the Court has already 6 granted class certification pursuant to Fed. R. Civ. P. 23(b)(3) and thus first turns to 7 examining the fairness of the Settlement Agreement (“SA”) followed by the 8 questions of a claims administrator and class notice. 9 I. THE SETTLEMENT 10 Rule 23(e) requires the Court to determine whether a proposed settlement is 11 “fundamentally fair, adequate, and reasonable.” Stanton, 327 F.3d at 959 (internal 12 quotations omitted). In making this determination, a court may consider: (1) the 13 strength of the plaintiff’s case; (2) “the risk, expense, complexity, and likely 14 duration of further litigation”; (3) “the risk of maintaining class action status 15 throughout the trial”; (4) “the amount offered in settlement”; (5) “the extent of 16 discovery completed and the stage of the proceedings”; (6) “the experience and 17 views of counsel”; (7) “the presence of a governmental participant”; and (8) “the 18 reaction of the class members to the proposed settlement.” Id. (internal quotations 19 omitted). Moreover, the settlement may not be the product of collusion among the 20 negotiating parties. In re Mego Fin Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 21 2000). 22 Because some of these factors cannot be fully assessed until the Court 23 conducts a final fairness hearing, “a full fairness analysis is unnecessary at this 24 stage.” See Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (internal 25 quotations omitted). At the preliminary approval stage, a court need only review 26 the parties’ proposed settlement to determine whether it is within the permissible 27 “range of possible approval” and thus, whether the notice to the class and the 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 3 of 14 - 3:12-cv-00964-GPC-DHB 1 2 scheduling of formal fairness hearing is appropriate. Id. at 666. A. THE STRENGTH OF PLAINTIFFS’ CASE AND THE RISK, EXPENSE, 3 COMPLEXITY AND LIKELY DURATION OF FURTHER LITIGATION, AND THE 4 RISK OF MAINTAINING CLASS ACTION STATUS THROUGHOUT THE TRIAL 5 Both sides recognize the risks of continuing to litigate this Action. Class 6 Counsel understands the uncertainties associated with complex, class-action 7 litigation. Defendants argued in their Motion for Summary Judgment that, due to 8 the circumstances surrounding the Class Members’ relationships with NutriSystem 9 and Schwan’s, all Class Members consented to receiving calls on their cell phones 10 The law interpreting the TCPA and its consent requirement has been in flux, 11 making it difficult for Class Members to prove lack of consent under the TCPA. 12 See, e.g., Baird v. Sabre Inc., 2014 WL 320205 (C.D. Cal. Jan. 28, 2014). 13 Moreover, Defendants filed a separate motion to decertify the Class or, in the 14 alternative, to amend the Class definition based on arbitration and forum selection 15 clauses in the Terms and Conditions agreed to by individuals purchasing products 16 from NutriSystem. Defendants argue the arbitration and forum selection clauses 17 fracture the Class and create individualized issues that defeat the requirements for 18 class certification or call for this Court to reconsider the Class definition. Although 19 now withdrawn, Defendants also filed an appeal of this Court’s class certification 20 order. Both the motion to decertify and the appeal present risks regarding the 21 continued certification of the Class. 22 On the other hand, Defendants also understand the risks of litigation. Even if 23 only a small percentage of Class Members recover damages, a large demand award 24 could result. Further litigation would be very expensive. Defendants have already 25 expended considerable resources on discovery and motions practice, as well as to 26 ascertain the 16,691 unique cellular telephone numbers, which represent the 27 certified Class. 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 4 of 14 - 3:12-cv-00964-GPC-DHB 1 Taken together, the costs, the risks to both sides, and delays of continued 2 litigation weigh in favor of preliminary approval of the proposed settlement. 3 B. THE EXTENT OF DISCOVERY AND THE STAGE OF THE PROCEEDINGS 4 As to class-action settlements, “formal discovery is not a necessary ticket to 5 the bargaining table where the parties have sufficient information to make an 6 informed decision about settlement.” Linney v. Cellular Alaska P’ship, 151 F.3d 7 1234, 1239 (9th Cir. 1998) (internal quotations omitted). 8 Here, the Parties appear to have engaged in substantial discovery. In addition 9 to participating in formal discovery (including the exchange of requests for 10 admissions, interrogatories, and document requests), the Parties have taken 11 extensive depositions. Defendants have taken both named Plaintiffs’ depositions. 12 Plaintiffs have taken nine depositions, and there have been numerous discovery 13 disputes over call data. Plaintiffs also took the deposition of non-party NutriSystem 14 regarding telephone numbers provided by NutriSystem to Schwan’s. Moreover, the 15 Parties engaged in multiple lengthy direct negotiations, as well as two full days of 16 mediation before the Honorable Leo S. Papas (Ret.) and one full day of mediation 17 before the Honorable Leo Wagner (Ret.). 18 The Parties also engaged in formal discovery to determine the Class size. 19 Plaintiffs requested information on not only Class size, but how Defendants 20 identified the Class certified by the Court. To do this, Defendants obtained a list of 21 unique mobile numbers associated with NutriSystem customers that received calls 22 on their cellular telephones using an ATDS or prerecorded messages and compared 23 that list of numbers against its system of record, which stores profile information 24 for all of Defendants’ customers. That compiled list constitutes the Class list. 25 The Parties appear to have thoroughly investigated, litigated, and evaluated 26 the factual strengths and weaknesses of this case and engaged in sufficient 27 discovery to support the Settlement. Accordingly, the extent of discovery and stage 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 5 of 14 - 3:12-cv-00964-GPC-DHB 1 2 3 of the proceedings weigh in favor of preliminary approval. C. EXPERIENCE OF CLASS COUNSEL Class Counsel have experience prosecuting class actions relating to privacy 4 and consumer rights, including TCPA actions. 5 approved as class counsel in a TCPA action in Barani v. Wells Fargo Bank, N.A., 6 2014 U.S. Dist. LEXIS 49838 (S.D. Cal. April 9, 2014). Counsel on both sides 7 believe this Settlement is fair and reasonable in light of the uncertainties of 8 continued certification and litigation. Accordingly, this factor weighs in favor of 9 preliminary approval. See Ellis v. Naval Air Rework Facility, 87 F.R.D. 18 (N.D. 10 Cal. 1980); In re Omnivsion Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 11 2008) (“The recommendations of plaintiffs’ counsel should be given a presumption 12 of reasonableness.” (internal quotations omitted)). 13 Class Counsel were recently D. THE AMOUNT OFFERED IN SETTLEMENT 14 A settlement is not judged against only the amount that might have been 15 recovered had the plaintiff prevailed at trial, nor must the settlement provide 100% 16 of the damages sought to be fair and reasonable. Linney, 151 F.3d at 1242. There 17 is a “range of reasonableness” in determining whether to approve settlements, 18 “which recognizes the uncertainties of law and fact in any particular cause and the 19 concomitant risks and costs necessarily inherent in taking any litigation to 20 completion.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005) 21 (quoting Newman v. Stein, 464 F.2d 689, 693 (2d. Cir. 1972)). The adequacy of 22 the amount recovered must be judged as “a yielding of absolutes . . . . Naturally, 23 the agreement reached normally embodies a compromise; in exchange for the 24 saving of cost and elimination of risk, the parties each give up something they 25 might have won had they proceeded with litigation.” Officers for Justice v. Civil 26 Serv. Comm’n, 688 F.2d 615, 624 (9th Cir. 1982) (internal quotations omitted). “It 27 is well-settled law that a cash settlement amounting to only a fraction of the 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 6 of 14 - 3:12-cv-00964-GPC-DHB 1 potential recovery will not per se render the settlement inadequate or unfair.” Id. at 2 628. 3 Here, Plaintiffs assert causes of action for (1) negligent violation of the 4 TCPA; and (2) knowing and/or willful violation of the TCPA. The TCPA provides 5 statutory damages of $500 for each negligent violation and $1,500 for each willful 6 violation. 7 Defendants have agreed to establish a maximum benefit in the amount of: 8 9 (1) (a) all valid claims for cash benefits in the amount of $20 per claiming Class Member; 10 11 (b) and 13 14 16 17 up to $38,000 for Notice and other Administrative Expenses; (c) 12 15 Up to $1,200,000 in cash for the payment of: the Fee and Expense Award; and (2) Up to $1,335,280 in Schwan’s merchandise vouchers, entitling each claiming class member to a voucher in the amount of $80 (SA § 4.1.) 18 The Settlement Agreement provides for a maximum recovery by each 19 claiming Class Member of a $20 settlement check plus a merchandise voucher in 20 the amount of $80 that may be used to purchase products from Schwan’s website. 21 This recovery amount will not be diluted based on the number of claims submitted, 22 as the settlement benefit is large enough to cover 100% participation without a pro 23 rata reduction. (SA § 4.) Each Settlement Class Member shall be entitled to make 24 only one claim per cellular telephone number, regardless of the number of calls 25 received by each cellular telephone number. (SA §§ 4 & 5.) 26 The award each Class Member will receive is fair, appropriate, and 27 reasonable given the purposes of the TCPA and in light of the anticipated risk, 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 7 of 14 - 3:12-cv-00964-GPC-DHB 1 expense, and uncertainty of continued litigation, as discussed above. 2 A proposed settlement may be acceptable even though it amounts to only a 3 percentage of the potential recovery that might be available to Class Members at 4 trial. See Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 527 5 (C.D. Cal. 2004); Mego Fin. Corp., 213 F.3d 454, 459 (9th Cir. 2000). The Court 6 finds the amounts provided by the Settlement Agreement to be adequate, at least at 7 this stage of the proceedings. See, e.g., Arthur v. Sallie Mae, Inc., 2012 WL 8 4075238 (W.D. Wash. Sept. 17, 2012) (approving TCPA settlement where each 9 claiming class member was estimated to receive recovery between $20 and $40); 10 Gutierrez v. Barclays Grp., 3:10-cv-1012-DMS, ECF No. 58 (S.D. Cal. Mar. 12, 11 2012) (approving TCPA settlement where each of the approximate 66,000 class 12 members received approximately a $100 credit or settlement check); Adams v. 13 AllianceOne, 3:08-cv-0248-JAH, ECF No. 137 (S.D. Cal. Sept. 28, 2012) 14 (approving TCPA class settlement where each claiming class member received 15 $40); Bellows v. NCO Fin. Sys., Inc., 3:07-cv-1413-W, ECF Nos. 53 & 54 (S.D. 16 Cal. July 13, 2009) (approving TCPA class settlement where each claiming class 17 member received $70) 18 The voucher component of this Settlement is similar to the preliminarily 19 approved class action settlement in Wojcik v. Buffalo Bills, Inc., 3:12-cv-2414- 20 SDM, ECF No. 73 (M.D. Fla. April 17, 2014). There, a maximum settlement fund 21 of $2,487,745 was created for class members to make claims for debit cards 22 redeemable for merchandise purchases at the official online retail store or in person 23 at the retail store. The tiered claim amounts ranged from merchandise debit cards 24 in the amount of $57.50 to $75.00. The district court preliminarily approved the 25 settlement. In this case, Plaintiffs and the Class Members will recover not only $80 26 in merchandise certificates, but also a $20 settlement check for each Class Member. 27 Accordingly, the Court finds the amounts offered in the settlement to be adequate at 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 8 of 14 - 3:12-cv-00964-GPC-DHB 1 this stage of the proceedings. 2 II. APPOINTING THE CLAIMS ADMINISTRATOR 3 The Parties propose that the Court appoint Kurtzman Carson Consultants 4 (“KCC”) as the claims administrator for this Action. (SA § 7.1.) KCC specializes 5 in providing administrative services for class-action litigation and has experience in 6 administering 7 Accordingly, the Court GRANTS Plaintiffs’ motion to appoint KCC as the Claims 8 Administrator. 9 III. consumer-protection and privacy class-action settlements. APPROVING CLASS NOTICE 10 Class notice must be “reasonably calculated, under all the circumstances, to 11 apprise interested parties of the pendency of the action and afford them an 12 opportunity to present their objections.” See Mullane v. Cent. Hanover Bank & 13 Trust Co., 339 U.S. 306, 314 (1950). Moreover, the class notice must satisfy the 14 content requirements of Rule 23(c)(2)(B), which provides that the notice must 15 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; (v) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 16 17 18 19 20 21 Here, the proposed notice provides: (1) information on the meaning and 22 nature of the class; (2) the terms and provisions of the proposed settlement; (3) the 23 costs and fees to be paid out of the settlement benefit; (4) the procedures and 24 deadlines for submitting claim forms, objections, and/or requests for exclusion; and 25 (5) 26 /// the date, time and place of the Final Fairness Hearing. 27 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 9 of 14 - 3:12-cv-00964-GPC-DHB 1 In addition, the methods of Notice, more fully set forth below are reasonable. CONCLUSION & ORDER 2 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. JURISDICTION: The Court has jurisdiction over the subject matter of 5 the Action and over all settling parties hereto. 6 2. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT: The 7 Court preliminarily finds the Settlement of the Action, on the terms and conditions 8 set forth in the Settlement Agreement, including all exhibits thereto, is in all 9 respects, fundamentally fair, reasonable, adequate, and in the best interests of the 10 Class Members, taking into consideration the benefits to Class Members; the 11 strengths and weaknesses of Plaintiffs’ case; the complexity, expense, and probable 12 duration of further litigation; and the risk and delay inherent in possible appeals. 13 The Court finds that Notice of the settlement should be given to persons in the 14 Class and a full hearing should be held on approval of the settlement. 15 3. CAFA NOTICE: Defendants shall be responsible for serving the Class 16 Action Fairness Act (“CAFA”) notice required by 28 U.S.C. § 1715(b) within ten 17 (10) days of entry of this Order. Defendants may delegate this responsibility to the 18 Claims Administrator. At least fourteen (14) days prior to the Final Fairness 19 Hearing, Defendants shall file a declaration confirming compliance with the CAFA 20 notice requirement. 21 4. CLASS MEMBERS: Pursuant to Federal Rule of Civil Procedure 22 23(b)(3), the Action remains certified as a class action on behalf of the following 23 Class Members: All persons who are past or present customers of NutriSystem, Inc., who had or have a number assigned to a cellular telephone service, which number was called by Defendants using an automatic telephone dialing system and/or artificial or prerecorded voice between April 18, 2008 and August 31, 2012. Excluded from the Class are persons who Defendants called for emergency purposes and persons who gave express consent to Defendants to call their cellular telephone number 24 25 26 27 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 10 of 14 - 3:12-cv-00964-GPC-DHB 4 prior to Defendants first placing a call using an automatic telephone dialing system and/or artificial or prerecorded voice. Also excluded from the Class are Defendants, their officers and directors, families and legal representatives, heirs, successors or assigns and any other entity in which Defendants have a controlling interest, any judge assigned to this case and their immediate families. 5 5. 1 2 3 CLASS REPRESENTATIVES AND CLASS COUNSEL 6 APPOINTMENT: For purposes of the Court considering preliminary approval, the 7 Court continues the appointment of Knutson and Lemieux as Class Representatives 8 and Abbas Kazerounian of Kazerouni Law Group, APC and Joshua B. Swigart of 9 Hyde & Swigart as Class Counsel. 10 6. NOTICE AND CLAIMS PROCESS: The Court approves the form and 11 method of Notice as set forth in the Settlement Agreement. Defendants shall 12 provide the Class list for Class Members whose cellular telephone numbers were 13 identified from its databases to the Claims Administrator and Class Counsel. 14 Within twenty-one (21) days following entry of this Order, the Claims 15 Administrator shall mail a postcard-type Direct Mail Notice to each known Class 16 Member at the address provided by Defendants, based on the information contained 17 in Defendants’ databases, and update those addresses for which a postcard is 18 returned with a forwarding address. The Direct Mail Notice shall reference a 19 website established for this settlement, and that website shall contain the full details 20 of the settlement and permit the filing of claims on the website. The mailed Notices 21 shall also contain the Claims Administrator’s toll free telephone number so that 22 Class Members can inquire about the settlement and be directed on how to 23 download claim forms, fill them out, and submit them. At least fourteen (14) days 24 prior to the Final Fairness Hearing, the claims administrator shall file a declaration 25 of compliance with the Notice procedures set forth in the Agreement. The Court 26 finds that the form and methods of Notice set forth in the Agreement satisfy the 27 requirements of Federal Rule of Civil Procedure 23(c)(2)(B), due process, and 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 11 of 14 - 3:12-cv-00964-GPC-DHB 1 constitute the best practicable procedure under the circumstances. 2 7. SETTLEMENT AND CLAIMS PROCESS: The Court preliminarily 3 approves the $2,535,280 settlement as fair, reasonable, and adequate for members 4 of the Class. The Court preliminarily approves the process set forth in the 5 Agreement for reviewing, approving and paying claims after deducting Settlement 6 Costs. 7 8. EXCLUSIONS: Any Class Member who desires to opt-out of the Class 8 must send a written request for exclusion to the claims administrator, postmarked 9 no later than ninety (90) days after Notice is mailed to Class Members. The claims 10 administrator’s address shall be provided in the Notice to the Class Members and 11 shall be posted on the website. The claims administrator shall provide a list of those 12 persons requesting exclusion to Class Counsel and Defendants’ counsel after the 13 deadline for exclusions passes, but no later than twenty-one (21) days prior to the 14 Final Fairness Hearing. A copy of that list will be filed with the Motion for Final 15 Approval of the Class Action Settlement. 16 9. To be effective, a written request for exclusion must contain the Class 17 Member’s full name, address, cellular telephone number, and be signed by the 18 Class Member. The request must also state generally that the person wishes to be 19 excluded from the Settlement. 20 10. Any Class Member who submits a valid and timely request for exclusion 21 shall not be a Settlement Class Member and shall not be bound by the Settlement 22 Agreement. 23 11. OBJECTIONS: Any Class Member who intends to object to the fairness 24 of the Settlement must file a written objection with the Court, at United States 25 District Court, Southern District of California, Office of the Clerk, 333 West 26 Broadway, Suite 420, San Diego, CA 92101, no later than ninety (90) days after 27 Notice is mailed to Class Member. Further, any such Class Member must within 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 12 of 14 - 3:12-cv-00964-GPC-DHB 1 the same period, provide a copy of the written objection to Class Counsel and 2 Defense counsel, whose addresses shall be set forth in the website’s Notice advising 3 the Class Members about objections. 4 12. To be considered, the written objection must be signed by the Class 5 Member and state: the Class Members full name, address, telephone number, the 6 reasons for objecting, and whether the objector intends to appear at the Final 7 Fairness Hearing on their own behalf or through counsel. Further, the Class 8 Member must attach to the written objection any documents supporting the 9 objection. 10 13. Any Class Member who does not file a valid and timely objection to the 11 settlement shall be barred from seeking review of the settlement by appeal or 12 otherwise. 13 14. FINAL FAIRNESS HEARING: The Court shall conduct a hearing 14 (“Final Fairness Hearing”) on December 12, 2014, at 1:30 p.m. at 221 West 15 Broadway, Courtroom 2D, San Diego, CA 92101. The Final Fairness Hearing may 16 be rescheduled or continued by the Court without further notice to the Class 17 Members. At the hearing, the Court will consider the following issues: 18 a. Whether the proposed settlement is fundamentally fair, reasonable, 19 adequate, and in the best interest of the Settlement Class Members and should be 20 finally approved by the Court; 21 b. Whether the Final Judgment and Order of Dismissal With Prejudice, as 22 provided under the Agreement, should be entered, dismissing the Action with 23 prejudice and releasing the Released Parties; 24 c. Such other issues, as the Court deems appropriate. 25 15. Attendance at the Final Fairness Hearing is not necessary. Class 26 Members need not appear at the hearing or take any other action to indicate their 27 approval of the proposed class action settlement. As set forth above, however, 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 13 of 14 - 3:12-cv-00964-GPC-DHB 1 Class Members wishing to be heard are required to indicate in their written 2 objection whether they intend to appear at the Final Fairness Hearing. 3 16. If the Agreement is not finally approved for any reason, then this Order 4 shall be vacated without further order, the Agreement shall have no force and 5 effect, and the Parties’ rights and defenses shall be restored, without prejudice, to 6 their respective positions as if the Agreement had never been executed and this 7 Order never entered. 8 17. The hearing currently set for July 18, 2014, is VACATED. 9 IT IS SO ORDERED. 10 DATED: July 14, 2014 11 ______________________________ HON. GONZALO P. CURIEL U.S. District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________________________________________________________________________________ Order of Preliminary Approval of Class Action Settlement - 14 of 14 - 3:12-cv-00964-GPC-DHB

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