Estrada et al v. iYogi, Inc.

Filing 76

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 10/6/2015 GRANTING 74 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement : All discovery and pretrial proceedings and deadlines are stayed and suspended u ntil further notice from the court, except for such actions as are necessary to implement the settlement agreement and this Order. A Fairness Hearing is set for 1/25/2016 at 02:00 PM p.m., in Courtroom 5 (WBS) before Senior Judge William B. Shubb. Pursuant to Local Rule 293, plaintiffs shall file a motion for attorney's fees no later than 28 days prior to the final fairness hearing. The parties shall file briefs in support of the final approval of the settlement no later than 1/11/2016. In the case that the fairness hearing be postponed, adjourned, or continued, the updated hearing date shall be posted on the settlement website. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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VICKI ESTRADA, PATRICIA
GOODMAN and KIM WILLIAMSBRITT on behalf of themselves
and all others similarly
situated,

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MEMORANDUM AND ORDER RE: MOTION
FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

Plaintiffs,

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CIV. NO. 2:13-01989 WBS CKD

v.
IYOGI, INC., a New York
Corporation,
Defendant.

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----oo0oo----

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Plaintiffs brought this putative class action against

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iYogi, Inc. (“iYogi”), alleging defendant violated the Telephone

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Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by employing

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aggressive sales tactics to get customers to renew their

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subscriptions to iYogi and placing calls to consumers regardless

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of whether they had refused the offer or previously asked that

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defendant not call.

Presently before the court is plaintiffs’
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motion for preliminary approval of the class action settlement.

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I. Factual and Procedural Background

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iYogi is a technical support company that offers remote

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computer services to millions of individuals worldwide.

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Consumers sign up for a year-to-year flat fee service plan.

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Plaintiffs Vicki Estrada, Patricia Goodman, and Kim Williams-

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Britt allege they received several calls to their cellphones from

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iYogi soliciting them to renew their service plans.

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Plaintiffs contend defendant violated three provisions

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of the TCPA.

The first provision makes it “unlawful for any

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person within the United States . . . to make any call (other

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than a call made for emergency purposes or made with the prior

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express consent of the called party) using any automatic

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telephone dialing system . . . to any telephone number assigned

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to a . . . cellular telephone service.”

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§ 227(b)(1)(A)(iii).

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place more than one telephone call within a twelve-month period

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to persons whose cellular telephone numbers are listed on the

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national do-not-call registry.

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64.1200(c), (e).

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unsolicited robocalls utilizing an artificial or prerecorded

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voice to cellular phones without first obtaining the call

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recipients’ prior express consent to do so.

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§ 227(b)(1)(A)(iii), (b)(1)(B).

47 U.S.C.

The second provision makes it unlawful to

Id. at § 227(c)(5); 47 C.F.R. §

The third provision prohibits the making of

47 U.S.C.

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Plaintiffs brought this lawsuit on behalf of a putative

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class of consumers in the United States who are iYogi subscribers

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or former subscribers whom iYogi called on their cellphones.

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Plaintiffs now seek preliminary approval of the parties’
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stipulated class-wide settlement, pursuant to Federal Rule of

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Civil Procedure 23(e).

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II. Discussion

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Rule 23(e) provides that “[t]he claims, issues, or

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defenses of a certified class may be settled . . . only with the

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court’s approval.”

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involves a two-step process in which the Court first determines

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whether a proposed class action settlement deserves preliminary

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approval and then, after notice is given to class members,

Fed. R. Civ. P. 23(e).

“Approval under 23(e)

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whether final approval is warranted.”

Nat’l Rural Telecomms.

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Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004)

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(citing Manual for Complex Litig., Third, § 30.41 (1995)).

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This Order is the first step in that process and

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analyzes only whether the proposed class action settlement

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deserves preliminary approval.

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Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010).

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authorizes the parties to give notice to putative class members

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of the settlement agreement and lays the groundwork for a future

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fairness hearing, at which the court will hear objections to (1)

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the treatment of this litigation as a class action and/or (2) the

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terms of the settlement.

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Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989) (stating that a

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district court’s obligation when considering dismissal or

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compromise of a class action includes holding a hearing to

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“inquire into the terms and circumstances of any dismissal or

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compromise to ensure that it is not collusive or prejudicial”).

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The court will reach a final determination as to whether the

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parties should be allowed to settle the class action on their

See Murillo v. Pac. Gas & Elec.
Preliminary approval

See id.; Diaz v. Trust Territory of

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proposed terms after that hearing.
The Ninth Circuit has declared a strong judicial policy

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favoring settlement of class actions.

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of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

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where, as here, “the parties reach a settlement agreement prior

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to class certification, courts must peruse the proposed

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compromise to ratify both [1] the propriety of the certification

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and [2] the fairness of the settlement.”

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327 F.3d 938, 952 (9th Cir. 2003).

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Class Plaintiffs v. City
Nevertheless,

Staton v. Boeing Co.,

The first part of this inquiry requires the court to

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“pay ‘undiluted, even heightened, attention’ to class

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certification requirements” because, unlike in a fully litigated

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class action suit, the court “will lack the opportunity . . . to

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adjust the class, informed by the proceedings as they unfold.”

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Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see

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Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

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The parties cannot “agree to certify a class that clearly leaves

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any one requirement unfulfilled,” and consequently the court

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cannot blindly rely on the fact that the parties have stipulated

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that a class exists for purposes of settlement.

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U.S. at 621-22 (stating that courts cannot fail to apply the

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requirements of Rule 23(a) and (b)).

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See Windsor, 521

The second part of this inquiry obliges the court to

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“carefully consider ‘whether a proposed settlement is

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fundamentally fair, adequate, and reasonable,’ recognizing that

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‘[i]t is the settlement taken as a whole, rather than the

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individual component parts, that must be examined for overall

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fairness . . . .’”

Staton, 327 F.3d at 952 (quoting Hanlon, 150
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F.3d at 1026); see also Fed. R. Civ. P. 23(e) (outlining class

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action settlement procedures).

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A. Class Certification
A class action will be certified only if it meets the

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four prerequisites identified in Rule 23(a) and additionally fits

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within one of the three subdivisions of Rule 23(b).

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Ontiveros v. Zamora, Civ. No. 2:08-567 WBS DAD, 2014 WL 3057506,

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at *4 (E.D. Cal. July 7, 2014); Fed. R. Civ. P. 23(a)-(b).

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Although a district court has discretion in determining whether

See

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the moving party has satisfied each Rule 23 requirement, see

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Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v.

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Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must

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conduct a rigorous inquiry before certifying a class, see Gen.

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Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); E. Tex.

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Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403–05 (1977).

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1. Rule 23(a) Requirements

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Rule 23(a) restricts class actions to cases where:

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(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).

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a. Numerosity
Under the first requirement, “[a] proposed class of at

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least forty members presumptively satisfies the numerosity

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requirement.”

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456 (C.D. Cal. 2012); see also, e.g., Collins v. Cargill Meat

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Solutions Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wanger,

Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450,

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J.) (“Courts have routinely found the numerosity requirement

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satisfied when the class comprises 40 or more members.”).

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plaintiffs estimate the proposed class will contain approximately

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189,000 members.

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easily satisfies the numerosity requirement.

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b. Commonality

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(See Pls.’ Mot. at 9 (Docket No. 74).)

Here,

This

Commonality requires that the class members’ claims

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“depend upon a common contention” that is “capable of classwide

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resolution--which means that determination of its truth or

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falsity will resolve an issue that is central to the validity of

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each one of the claims in one stroke.”

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Dukes, 131 S. Ct. 2541, 2550 (2011).

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and law need not be common to satisfy the rule,” and the

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“existence of shared legal issues with divergent factual

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predicates is sufficient, as is a common core of salient facts

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coupled with disparate legal remedies within the class.”

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150 F.3d at 1019.

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Wal-Mart Stores, Inc. v.
“[A]ll questions of fact

Hanlon,

The proposed class includes “[a]ll individuals who are

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iYogi subscribers or former subscribers in the United States to

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whom iYogi or any agent or affiliate of iYogi made or attempted

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to make outbound calls (including but not limited to subscription

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renewal calls) to a telephone number assigned to cellular

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telephone service from September 23, 2009 until November 18,

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2013.”

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would be comprised of individuals alleging that an iYogi employee

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or agent called their cellphones to convince them to renew their

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subscription in violation of the TCPA.

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contentions, the proposed class meets the commonality

(Pls.’ Mot. at 8.)

Like the named plaintiffs, the class

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Due to their common legal

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requirement.

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c. Typicality
Typicality requires that named plaintiffs have claims

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“reasonably coextensive with those of absent class members,” but

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their claims do not have to be “substantially identical.”

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Hanlon, 150 F.3d at 1020.

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other members have the same or similar injury, whether the action

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is based on conduct which is not unique to the named plaintiffs,

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and whether other class members have been injured by the same

The test for typicality “is whether

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course of conduct.”

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508 (9th Cir. 1992) (citation omitted).

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Hanon v. Dataproducts Corp., 976 F.2d 497,

The putative class members allege a simple set of facts

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that are essentially identical to those alleged by the named

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plaintiffs.

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aggravation and nuisance of receiving unsolicited and harassing

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telephone calls and the money paid to wireless telephone carriers

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for the receipt of such calls.

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same conduct of iYogi.

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Plaintiffs seek the remedy of statutory damages, which would

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presumably be the same award for each individual injury.

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id. at 10, 13.)

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respect to a class member’s experiences with iYogi or costs from

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receiving a call, class members’ claims appear to be reasonably

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coextensive with those of the named plaintiffs.

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class therefore meets the typicality requirement.

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The class injury for all class members was the

Such injury was caused by the

(See First Am. Compl. (“FAC”) at 1.)

(See

While there could conceivably be nuances with

The proposed

d. Adequacy of Representation
To resolve the question of adequacy, the court must
make two inquiries: “(1) do the named plaintiffs and their
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counsel have any conflicts of interest with other class members

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and (2) will the named plaintiffs and their counsel prosecute the

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action vigorously on behalf of the class?”

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1020.

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factors, including “the qualifications of counsel for the

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representatives, an absence of antagonism, a sharing of interests

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between representatives and absentees, and the unlikelihood that

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the suit is collusive.”

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390 (9th Cir. 1992).

Hanlon, 150 F.3d at

These questions involve consideration of a number of

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Brown v. Ticor Title Ins., 982 F.2d 386,

First, there do not appear to be any conflicts of

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interest.

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with the putative class members.

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suffered a similar injury as the named plaintiffs, and the

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definition of the class is narrowly tailored and aligns with the

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named plaintiffs’ interests.

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(“[A] class representative must be part of the class and possess

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the same interest and suffer the same injury as the class

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members.”); Murillo, 266 F.R.D. at 476 (finding that an

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appropriate class definition ensured that “the potential for

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conflicting interests will remain low while the likelihood of

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shared interests remains high”).

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The named plaintiffs’ interests are generally aligned
The putative class members

See Windsor, 521 U.S. at 625–26

The settlement agreement provides for an incentive

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award of $1,000 to each of the named plaintiffs, to be paid

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separate from and in addition to the class recovery of $40 per

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class member.

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plaintiffs does not on its face appear to create a conflict of

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interest.

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of “reasonable incentive payments” to named plaintiffs.

An incentive award of $1,000 to each of the named

The Ninth Circuit has specifically approved the award

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Staton,

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327 F.3d at 977–78.

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$5,000 incentive payments are reasonable.

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Inc., Civ. No. 08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal.

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Apr. 3, 2009) (citing In re Mego Fin. Corp. Sec. Litig., 213 F.3d

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454, 463 (9th Cir. 2000); In re SmithKline Beckman Corp., 751 F.

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Supp. 525, 535 (E.D. Pa. 1990); Alberto v. GMRI, Inc., 252 F.R.D.

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652, 669 (E.D. Cal. 2008)).

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$1,000 per representative is significantly lower than $5,000

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payments found to be reasonable and proportionate to the recovery

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Moreover, courts have generally found that
Hopson v. Hanesbrands

Here, the proposed award amount of

of other class members.
The second prong of the adequacy inquiry examines the

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vigor with which the named plaintiffs and their counsel have

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pursued the common claims.

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standards by which ‘vigor’ can be assayed, considerations include

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competency of counsel and, in the context of a settlement-only

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class, an assessment of the rationale for not pursuing further

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litigation.”

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“Although there are no fixed

Hanlon, 150 F.3d at 1021.

Plaintiffs’ counsel states that he and his colleagues

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at Edelson PC “are experienced members of the plaintiffs’ bar who

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have built their practice litigating similarly complex consumer

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class actions, including many under the TCPA.”

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¶ 17 (Docket No. 74-2).)

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has “already dedicated substantial resources to the prosecution

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of this Action . . . and will continue to do so throughout the

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Action’s pendency.”

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doubt that plaintiffs’ attorney is qualified to conduct the

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proposed litigation and assess the value of the settlement.

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(Balabanian Decl.

Further, plaintiffs’ counsel states he

(Id. ¶ 18.)

The court finds no reason to

In addition, plaintiffs’ counsel seems to have
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seriously considered the risks of continued litigation in

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deciding to settle this action.

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if the case were to proceed to trial, defendant would likely

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assert several “potentially dispositive defenses”:
For example, on the issue of consent, there is no
dispute that iYogi collected the phone numbers for the
calls at issue directly from its customers at the time
they subscribed to its remote support services.
To
that end, iYogi will also likely raise the defense that
it was in a direct relationship with the Settlement
Class Members and that their provision of their
cellular
phone
numbers
is
therefore
enough
to
constitute consent.

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(Id. ¶¶ 26-27.)

For instance, he recognized that

Plaintiffs’ counsel also acknowledged that iYogi

would undoubtedly challenge a motion for class certification and
appeal any judgment in favor of the class, further delaying
recovery.

(Id. ¶ 27.)

At this stage, the court agrees that

these factors weighed in favor of settlement.

The named

plaintiffs and their counsel appear to be prepared to prosecute
the action vigorously on behalf of the class.
2. Rule 23(b)
An action that meets all the prerequisites of Rule
23(a) may be certified as a class action only if it also
satisfies the requirements of one of the three subdivisions of
Rule 23(b).

Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th

Cir. 2013).

Plaintiffs seek certification under Rule 23(b)(3),

which provides that a class action may be maintained only if (1)
“the court finds that questions of law or fact common to class
members predominate over questions affecting only individual
members” and (2) “that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.”

Fed. R. Civ. P. 23(b)(3).
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a. Predominance

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“Because Rule 23(a)(3) already considers commonality,

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the focus of the Rule 23(b)(3) predominance inquiry is on the

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balance between individual and common issues.”

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F.R.D. at 476 (citing Hanlon, 150 F.3d at 1022); see also

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Windsor, 521 U.S. at 623 (“The Rule 23(b)(3) predominance inquiry

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tests whether proposed classes are sufficiently cohesive to

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warrant adjudication by representation.”).

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Murillo, 266

The class members’ contentions appear to be similar, if

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not identical.

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members’ allegations could exist, there is no indication that

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those variations are “sufficiently substantive to predominate

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over the shared claims.”

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that common questions of law and fact predominate over the class

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members’ claims.

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Again, although some nuances among the class

See id.

Accordingly, the court finds

b. Superiority

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Rule 23(b)(3) also requires a showing that “a class

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action is superior to other available methods for fairly and

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efficiently adjudicating the controversy.”

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(3).

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making this determination:

It sets forth four non-exhaustive factors to consider in

(A) the class members’ interests in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against
class members; (C) the desirability or undesirability
of concentrating the litigation of the claims in the
particular forum; and (D) the likely difficulties in
managing a class action.

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Fed. R. Civ. P. 23(b)

Id.

The parties settled this action prior to certification,

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making factors (C) and (D) inapplicable.

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at 477 (citing Windsor, 521 U.S. at 620).

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have an interest in individually controlling prosecution given

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that recovery through settlement will amount to a $40 award

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whereas the TCPA provides statutory damages of $500 per call

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received or, at most, $1,500 if defendant’s conduct is found to

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be willful.

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the costs of pursuing litigation individually would be

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substantially higher, especially considering that the TCPA does

See Murillo, 266 F.R.D.
Class members might

See 47 U.S.C. § 227(b)(3)(C), (c)(5)(B).

Id.

However,

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not provide for payment of attorney fees.

There is also

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always the risk that defendant will prevail at trial and

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plaintiffs will recover nothing.

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interest in pursuing individual suits is likely low.

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is unaware of any concurrent litigation already begun by class

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members regarding TCPA violations by defendant.1

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the fairness hearing may reveal otherwise.

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F.R.D. at 664.

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be the superior method for adjudicating this controversy.

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3. Rule 23(c)(2) Notice Requirements

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If the court certifies a class under Rule 23(b)(3), it

As a result, class members’
The court

Objectors at

See Alberto, 252

At this stage, the class action device appears to

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“must direct to class members the best notice that is practicable

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under the circumstances, including individual notice to all

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members who can be identified through reasonable effort.”

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R. Civ. P. 23(c)(2)(B).

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content of a proposed notice.

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Fed.

Rule 23(c)(2) governs both the form and
See Ravens v. Iftikar, 174 F.R.D.

Plaintiffs have informed the court that there were
separate actions filed by other clients of Edelson PC against
iYogi on claims unrelated to this action. (Pls.’ Mot. at 7.)
Those matters have been settled on an individual basis. (Id.)
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651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin,

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417 U.S. 156, 172–77 (1974)).

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“reasonably certain to inform the absent members of the plaintiff

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class,” actual notice is not required.

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1449, 1454 (9th Cir. 1994) (citation omitted).

Although that notice must be

Silber v. Mabon, 18 F.3d

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The settlement agreement provides that the settlement

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administrator, Epiq Class Action & Claims Solutions, Inc., will

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provide notice to the class via e-mail.

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Settlement Agreement ¶ 7.1 (Docket No. 74-1).)

(Pls.’ Mot. at 23-24;
If an e-mail

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bounces back or is otherwise undeliverable, the settlement

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administrator will re-send the email one time.

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Agreement ¶ 7.1.)

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settlement website.

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(Settlement Agreement Ex. D), and claim form, (id. at Ex. A),

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which will be available on the settlement website.

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(Settlement

The e-mail will direct class members to the
(Id.)

The parties supplied the full notice,

The notice explains the proceedings; defines the scope

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of the class; informs the class member of the claim form

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requirement and the binding effect of the class action; describes

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the procedure for opting out and objecting; and provides the time

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and date of the fairness hearing.

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therefore satisfies Rule 23(c)(2)(B).

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23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen. Elec., 361

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F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it

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‘generally describes the terms of the settlement in sufficient

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detail to alert those with adverse viewpoints to investigate and

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to come forward and be heard.’” (quoting Mendoza v. Tucson Sch.

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Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)).

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The content of the notice
See Fed. R. Civ. P.

Plaintiffs contend that e-mail will “be particularly
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effective in this case given that e-mail was one of the primary

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means by which iYogi communicated with its customers, and each

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customer that registered for iYogi’s services was required to

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provide a valid e-mail address to do so.”

(Pls.’ Mot. at 23-24;

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Balabanian Decl. ¶ 20 (Docket No. 74-2).)

The reliance on e-mail

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alone is not generally the best form of notice, especially given

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that the parties do not have any process in place for correcting

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out-of-date e-mail addresses.

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of using email to contact customers and the fact that it would

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likely be prohibitively expensive to provide notice to such a

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large class through other means, the court is satisfied that this

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system is reasonably calculated to provide notice to class

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members and is the best form of notice available under the

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circumstances.

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However, given defendant’s history

B. Preliminary Settlement Approval

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After determining that the proposed class satisfies the

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requirements of Rule 23, the court must determine whether the

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terms of the parties’ settlement appear fair, adequate, and

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reasonable.

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1026.

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factors,” including:

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See Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at

This process requires the court to “balance a number of

the strength of the plaintiff’s case; the risk,
expense, complexity, and likely duration of further
litigation; the risk of maintaining class action
status throughout the trial; the amount offered in
settlement; the extent of discovery completed and the
stage of the proceedings; the experience and views of
counsel; the presence of a governmental participant;
and the reaction of the class members to the proposed
settlement.

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Hanlon, 150 F.3d at 1026.

Many of these factors cannot be
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considered until the final fairness hearing, so the court need

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only conduct a preliminary review at this time to resolve any

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“glaring deficiencies” in the settlement agreement before

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authorizing notice to class members.

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at *12 (citing Murillo, 266 F.R.D. at 478).

Ontiveros, 2014 WL 3057506,

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At the preliminary stage, “the court need only

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‘determine whether the proposed settlement is within the range of

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possible approval.’”

9

Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)).

Murillo, 266 F.R.D. at 479 (quoting

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This generally requires consideration of “whether the proposed

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settlement discloses grounds to doubt its fairness or other

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obvious deficiencies, such as unduly preferential treatment of

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class representatives or segments of the class, or excessive

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compensation of attorneys.”

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Inc., Civ. No. 04-0438 WBS GGH, 2006 WL 1652598, at *11-12 (E.D.

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Cal. June 13, 2006)).

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process that led to the settlement’s terms to ensure that those

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terms are “the result of vigorous, arms-length bargaining” and

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then turn to the substantive terms of the agreement.

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West, 2006 WL 1652598, at *11-12; In re Tableware Antitrust

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Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007)

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(“[P]reliminary approval of a settlement has both a procedural

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and a substantive component.”).

Id. (quoting W. v. Circle K Stores,

Courts often begin by examining the

See, e.g.,

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1. Negotiation of the Settlement Agreement

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The parties represent that the settlement is the result

26

of arms-length settlement negotiations, including a private

27

mediation before the Honorable Morton Denlow (ret.) of JAMS

28

(Chicago).

(Balabanian Decl. ¶ 8); see La Fleur v. Med. Mgmt.
15

1

Int’l, Inc., Civ. No. 5:13-00398, 2014 WL 2967475, at *4 (N.D.

2

Cal. June 25, 2014) (“Settlements reached with the help of a

3

mediator are likely non-collusive.”).

4

that the settlement was reached after “months of continued and

5

often contentious settlement discussions.”

6

22.)

7

risks of litigation, particularly the delay often inherent in

8

class actions.

9

formal discovery and that also informed the decision to settle.

Plaintiffs’ counsel stated

(Balabanian Decl. ¶

He declares he took into account the uncertain outcome and

(Id. ¶¶ 26-27.)

Moreover, the parties had begun

10

(Pls.’ Mot. at 5.)

In light of these considerations, the court

11

finds no reason to doubt the parties’ representations that the

12

settlement was the result of vigorous, arms-length bargaining.

13

2. Amount Recovered and Distribution

14

In determining whether a settlement agreement is

15

substantively fair to the class, the court must balance the value

16

of expected recovery against the value of the settlement offer.

17

See Tableware, 484 F. Supp. 2d at 1080.

18

consideration of the uncertainty class members would face if the

19

case were litigated to trial.

20

*14.

21

This inquiry may involve

See Ontiveros, 2014 WL 3057506, at

The TCPA provides for damages of $500 “for each such

22

violation” of the statute or, at most, $1,500 if defendant’s

23

conduct was willful.

24

contrast, the settlement would provide each class member with $40

25

in cash, which is only eight percent of the available damages

26

under the TCPA.

27

class members to take the affirmative step of opting in to

28

receive the $40 payment.

47 U.S.C. § 227(b)(3)(B), (c)(5)(B).

In

In addition, the settlement agreement requires

Class members must submit a claim form
16

1

through the settlement website; by downloading the form from the

2

website and submitting it by mail to the settlement

3

administrator; or by calling a toll free number or writing to the

4

settlement administrator to request a hard copy claim form.

5

(Settlement Agreement ¶ 6.1.)

6

members to take the affirmative step of opting out if they do not

7

wish to be part of the settlement class.

8

8.1.)

9

release defendant from their TCPA claims.

The agreement also requires class

(Id. ¶¶ 1.29, 1.30,

Class members who do not request to be excluded will
(Id. at ¶ 1.28.)

10

Therefore, there is a risk that some members of the class will

11

opt into the judgment by default, thus releasing defendant, but

12

get no recovery simply because they fail to timely return the

13

claim form.

14

While the settlement agreement provides class members

15

with only a small percentage of the possible recovery and

16

contains a potentially unfair opt-in/opt-out requirement, there

17

are many uncertainties associated with pursuing litigation that

18

justify this recovery.

19

has testified that there are two “potentially dispositive”

20

defenses that iYogi could assert with respect to customers’

21

consent and there are risks of significant delay if defendant

22

challenges a motion for class certification or any final judgment

23

in favor of plaintiffs.

24

addition, there is no assurance the class will recover the full

25

amount of damages even if it prevails at trial “given iYogi’s

26

financial condition and limited insurance coverage.”

27
28

As discussed above, plaintiffs’ counsel

(Balabanian Decl. ¶¶ 26-27.)

In

(Id. ¶ 27.)

In light of the uncertainties associated with pursuing
litigation, the court will grant preliminary approval to the
17

1

settlement because it is within the range of possible approval.

2

Murillo, 266 F.R.D. at 479 (quoting Gautreaux v. Pierce, 690 F.2d

3

616, 621 n.3 (7th Cir. 1982)).

4

3. Attorney’s Fees

5

If a negotiated class action settlement includes an

6

award of attorneys’ fees, that fee award must be evaluated in the

7

overall context of the settlement.

8

312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio, 291 F.R.D. at

9

455.

Knisley v. Network Assocs.,

The court “ha[s] an independent obligation to ensure that

10

the award, like the settlement itself, is reasonable, even if the

11

parties have already agreed to an amount.”

12

Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

13

In re Bluetooth

The settlement agreement provides that plaintiffs’

14

counsel will apply to the court for a fee award of up to

15

$300,000, to be paid by defendant separate and apart from the

16

recovery of the class.

17

may oppose plaintiffs’ petition for the fee award.

18

court does not approve, in whole or in part, the fee award, it

19

will not prevent the settlement agreement from becoming effective

20

or be grounds for termination.

21

(Settlement Agreement ¶ 10.2.)

Defendant

(Id.)

If the

(Id.)

In deciding the attorney’s fees motion, the court will

22

have the opportunity to assess whether the requested fee award is

23

reasonable, by multiplying a reasonable hourly rate by the number

24

of hours counsel reasonably expended.

25

Mut. Life. Co., 214 F.3d 1041, 1045 (9th Cir. 2000).

26

this lodestar calculation, the court may take into account

27

factors such as the “degree of success” or “results obtained” by

28

plaintiffs’ counsel.

See Van Gerwen v. Gurantee
As part of

See Cunningham v. County of Los Angeles,
18

1

879 F.2d 481, 488 (9th Cir. 1988).

2

the fees motion, finds that the amount of the settlement warrants

3

a fee award at a rate lower than what plaintiffs’ counsel

4

requests, then it will reduce the award accordingly.

5

will therefore not evaluate the fee award at length here in

6

considering whether the settlement is adequate.

7

fact that the attorney’s fees will not detract from the class

8

members’ recovery militates in favor of approving the settlement

9

agreement.

10

If the court, in ruling on

The court

However, the

IT IS THEREFORE ORDERED that plaintiffs’ motion for

11

preliminary certification of a conditional settlement class and

12

preliminary approval of the class action settlement be, and the

13

same hereby is, GRANTED.

14

IT IS FURTHER ORDERED that:

15

(1) Defendant shall notify class members of the

16

settlement in the manner specified under section VII of the

17

settlement agreement;

18

(2) Class members who want to receive a settlement

19

payment under the settlement agreement must accurately complete

20

and deliver the claim form to the settlement administrator no

21

later than sixty (60) calendar days after the last day for notice

22

to be provided under section V and VI of the settlement

23

agreement;

24

(3) Class members who want to object to or comment on

25

the settlement agreement must deliver written objections to

26

plaintiffs’ counsel and defendant’s counsel, and must file such

27

objection with the court, no later than sixty (60) calendar days

28

after the last day for notice to be provided under section VII of
19

1

the settlement agreement.

2

postmarked no later than the objection deadline.

3

must include: (a) the name and case number of the action,

4

Estrada, et al. v. iYogi, Inc., Case No. 2:13-CV-01989 (E.D.

5

Cal.); (b) the class member’s full name and current address; (c)

6

the email address the member used in connection with purchasing

7

an iYogi subscription; (d) a signed declaration that he/she

8

believes himself or herself to be a member of the settlement

9

class; (e) the specific grounds for the objection; (f) all

10

documents or writings that the member desires the court to

11

consider; and (g) a statement regarding whether the class member

12

or class member’s counsel intend to appear at the Fairness

13

Hearing.

14

objection, as described in this paragraph, may appear at the

15

fairness hearing, either in person or through personal counsel

16

hired at the class member’s expense, to object to the settlement

17

agreement.

18

Written objections must be filed and
The objection

Any class member who files and serves a written

(4) Class members who fail to object to the settlement

19

agreement in the manner specified above shall be deemed to have

20

waived their right to object to the settlement agreement and be

21

forever barred from making any such objections (whether in this

22

action or any other action or proceeding).

23

(5) Class members who want to be excluded from the

24

settlement must, within sixty days after the last day for notice

25

to be provided, submit a request for exclusion indicating (a) the

26

name and case number of the action, Estrada, et al. v. iYogi,

27

Inc., Case No. 2:13-CV-01989 (E.D. Cal.); (b) the name, address,

28

and telephone number of the person requesting exclusion
20

1

(including the telephone number allegedly called by defendant);

2

and (c) a statement to the effect that “I/We hereby request to be

3

excluded from the proposed Settlement Classes in Estrada, et al.

4

v. iYogi, Inc., Case No. 2:13-CV-01989 (E.D. Cal.).”

5

must be in writing, signed by the person seeking exclusion, and

6

postmarked or received by the end of the opt-out period.

7

Requests

(6) The class is provisionally certified as a class of

8

all individuals who are iYogi subscribers or former subscribers

9

in the United States to whom iYogi or any agent or affiliate of

10

iYogi made or attempted to make outbound calls (including but not

11

limited to subscription renewal calls) to a telephone number

12

assigned to cellular telephone service from September 23, 2009

13

until November 18, 2013.

14

Excluded from the class are the judges presiding over the action

15

and members of their families; defendant; all persons who

16

properly execute and submit a timely request for exclusion; all

17

persons whose claims against defendant have been fully and

18

finally adjudicated and/or released; and the legal

19

representatives of any excluded persons.

20

(Settlement Agreement ¶ 1.35.)

(7) Plaintiffs Vicki Estrada, Patricia Goodman, and Kim

21

Williams-Britt are conditionally certified as the class

22

representatives to implement the parties’ settlement in

23

accordance with the settlement agreement.

24

Edelson PC, through Jay Edelson, Rafey S. Balabanian, Benjamin H.

25

Richman, and Courtney C. Booth, is conditionally appointed as

26

class counsel.

27

adequately protect the class’s interests.

28

The law firm of

Plaintiffs and Edelson PC must fairly and

(8) The parties agree that Epiq Class Action & Claims
21

1
2

Solutions, Inc. will serve as the settlement administrator.
(9) If the settlement agreement terminates for any

3

reason, the following will occur: (a) Class certification will be

4

automatically vacated; (b) plaintiffs will stop functioning as

5

class representatives; and (c) this action will revert to its

6

previous status in all respects as it existed immediately before

7

the parties executed the settlement agreement.

8

(10) All discovery and pretrial proceedings and

9

deadlines are stayed and suspended until further notice from the

10

court, except for such actions as are necessary to implement the

11

settlement agreement and this Order.

12

(11) The fairness hearing is set for January 25, 2016

13

at 2:00 p.m., in Courtroom No. 5, to determine whether the

14

settlement agreement should be finally approved as fair,

15

reasonable, and adequate.

16

(12) Based on the date this Order is signed and the

17

date of the fairness hearing, the following are the certain

18

associated dates in this settlement:

19
20
21

(a) Defendant shall send e-mail notice within 28
days after entry of this Order;
(b) Pursuant to Local Rule 293, plaintiffs shall

22

file a motion for attorney’s fees no later than 28 days prior to

23

the final fairness hearing;

24

(c) The last day for class members to file a

25

claim, request exclusion, or object to the settlement is 60 days

26

after the date on which notice is provided;

27
28

(13) The parties shall file briefs in support of the
final approval of the settlement no later than January 11, 2016.
22

1

(14) In the case that the fairness hearing be

2

postponed, adjourned, or continued, the updated hearing date

3

shall be posted on the settlement website.

4

Dated:

October 6, 2015

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