Estrada et al v. iYogi, Inc.

Filing 85

MEMORANDUM AND ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT signed by Senior Judge William B. Shubb on 1/26/16. Based on the foregoing, the court grants final certification of the settlement class and approves the settlement set forth in the settlement agreement as fair, reasonable, and adequate. Consummation of the settlement agreement is therefore approved. The settlement agreement shall be binding upon all participating class members who did not exclude themselves. IT IS THEREFORE ORDERED that plaintiffs motions for final approval of the class and class action settlement and for reasonable attorney's fees, expenses, and incentive awards be, and the same hereby are, GRANTED. CASE CLOSED. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
----oo0oo----

11
12
13
14

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

17
18
19

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

Plaintiffs,

15
16

CIV. NO. 2:13-01989 WBS CKD

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

20
21
22
23

----oo0oo---Plaintiffs brought this putative class action against

24

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

25

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

26

aggressive sales tactics to get customers to renew their

27

subscriptions to iYogi and placing calls to consumers regardless

28

of whether they had refused the offer or previously asked that
1

1

defendant not call.

2

motion for final approval of the class action settlement and

3

motion for attorney’s fees and incentive awards for the named

4

plaintiffs.

5

I. Factual and Procedural Background

6

Presently before the court is plaintiffs’

(Docket Nos. 79, 82.)

iYogi is a technical support company that offers remote

7

computer services to millions of individuals worldwide.

8

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

9

Plaintiffs Vicki Estrada, Patricia Goodman, and Kim Williams-

10

Britt allege that iYogi placed numerous, aggressive telephone

11

calls to them and the other class members as their service plans

12

neared expiration and subsequent to expiration in violation of

13

three provisions of the TCPA.

14

The court granted preliminary approval of plaintiffs’

15

class action settlement on October 6, 2015.

16

Plaintiffs now seek final approval of the class-wide settlement

17

pursuant to Federal Rule of Civil Procedure 23(e).

18

82.)

19

approval or their motion for reasonable attorney’s fees,

20

expenses, and incentive awards.

21

at 2 (Docket No. 83).)

22

II. Discussion

23

(Docket No. 76.)

(Docket No.

Defendant does not oppose plaintiffs’ motion for final

(Def.’s Statement of Non-Opp’n

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

24

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

25

court’s approval.”

26

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

27

whether a proposed class action settlement deserves preliminary

28

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

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

2

“Approval under 23(e)

1

whether final approval is warranted.”

2

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

3

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

4

Nat’l Rural Telecomms.

The Ninth Circuit has declared a strong judicial policy

5

favoring settlement of class actions.

6

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

7

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

8

to class certification, courts must peruse the proposed

9

compromise to ratify both the propriety of the certification and

10

the fairness of the settlement.”

11

Class Plaintiffs v. City
Nevertheless,

938, 952 (9th Cir. 2003).

12
13

Staton v. Boeing Co., 327 F.3d

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

14

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

15

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

16

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

17

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

18

Although a district court has discretion in determining whether

19

the moving party has satisfied each Rule 23 requirement, see

20

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

21

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

22

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

23

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

24

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

See

25

1. Rule 23(a) Requirements

26

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

27

(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
3

28

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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).

These requirements are more commonly

referred to as numerosity, commonality, typicality, and adequacy
of representation.
In its Preliminary Approval Order, the court found that
the class satisfied these requirements and the court is unaware
of any changes that would alter its analysis.
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).

In its Preliminary Approval Order, the court found that
both prerequisites were satisfied.

The court is unaware of any

changes that would affect this conclusion.

Accordingly, since

the settlement class satisfied both Rule 23(a) and Rule 23(b)(3),
the court will grant final certification of the settlement class.
3. Rule 23(c)(2) Notice Requirements
If the court certifies a class under Rule 23(b)(3), it

28
4

1

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

2

under the circumstances, including individual notice to all

3

members who can be identified through reasonable effort.”

4

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

5

content of a proposed notice.

6

651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin,

7

417 U.S. 156, 172–77 (1974)).

8

“reasonably certain to inform the absent members of the plaintiff

9

class,” actual notice is not required.

10

Fed.

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

Although that notice must be

Silber v. Mabon, 18 F.3d

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

11

In this case, the court-appointed third-party

12

administrator, Epiq Class Action & Claims Solutions, Inc.

13

(“Epiq”), emailed notice to the last known addresses of class

14

members.

15

directed class members to the settlement website, which contained

16

information related to the settlement, answers to frequently

17

asked questions, and access to online claim forms.

18

(Pls.’ Mot. for Final Approval at 5.)

The notice

(Id.)

In addition to the initial email, which satisfied the

19

court-approved notice plan, the parties also agreed to resend the

20

notice to the 44,207 class members (out of 188,887 total) whose

21

initial emails had bounced.

22

two reminder emails to all of the class members who had not yet

23

submitted claim forms.

24

delivered to 85.6% of the settlement class.

25

(Id. at 6.)

(Id.)

The parties also sent

The notice was successfully
(Id.)

Accordingly, the court finds that the content of the

26

notice was reasonably certain to inform the class members of the

27

terms of the settlement agreement and the method used was the

28

best form of notice available under the circumstances.
5

See Fed.

1

R. Civ. P. 23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen.

2

Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory

3

if it ‘generally describes the terms of the settlement in

4

sufficient detail to alert those with adverse viewpoints to

5

investigate and to come forward and be heard.’” (citation

6

omitted)).

7
8
9

B. Rule 23(e): Fairness, Adequacy, and Reasonableness of
Proposed Settlement
Having determined class treatment to be warranted, the

10

court must now determine whether the terms of the parties’

11

settlement appear fair, adequate, and reasonable.

12

Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026.

13

requires the court to “balance a number of factors,” including:

14
15
16
17
18
19

See Fed. R.

This process

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.
Hanlon, 150 F.3d at 1026.

20

1. Strength of Plaintiffs’ Case

21

An important consideration is the strength of

22

plaintiffs’ case on the merits balanced against the amount

23

offered in the settlement.

24

district court, however, is not required to reach any ultimate

25

conclusions on the merits of the dispute, “for it is the very

26

uncertainty of outcome in litigation and avoidance of

27

wastefulness and expensive litigation that induce consensual

28

settlements.”

DIRECTV, 221 F.R.D. at 526.

The

Officers for Justice v. Civil Serv. Comm’n of the
6

1
2

City & Cty. of SF, 688 F.2d 615, 625 (9th Cir. 2004).
The settlement terms compare favorably to the

3

uncertainties with respect to liability in this case.

If the

4

case were to proceed to trial, defendant would likely reassert

5

two strong affirmative defenses: that it is exempt from liability

6

because it has an established business relationship with

7

plaintiffs and that receiving cell phone numbers from class

8

members by virtue of its direct relationship with them

9

constitutes consent.

(Pls.’ Mot. for Final Approval at 8.)

10

Plaintiffs’ also predict that iYogi would undoubtedly challenge a

11

motion for class certification and appeal any judgment in favor

12

of the class, further delaying recovery.

13

no assurance the class would recover the full amount of damages

14

even if it were to prevail at trial given iYogi’s financial

15

condition and limited insurance coverage.

16

(Id.)

Lastly, there is

(Id.)

In comparing the strength of plaintiffs’ case with the

17

proposed settlement, the court finds that the proposed settlement

18

is a fair resolution of the issues in this case.

19
20
21

2. Risk, Expense, Complexity, and Likely Duration of
Further Litigation
Further litigation could greatly delay resolution of

22

this case and increase expenses.

23

parties would likely have had to litigate class certification and

24

summary judgment, both of which would require additional

25

discovery, time, and expense.

26

favor of settlement of the action.

27
28

Prior to any judgment, the

(Id. at 10-11.)

This weighs in

3. Risk of Maintaining Class Action Status Throughout
Trial
7

1

If the case proceeded to trial, plaintiffs would have a

2

strong chance of certifying the class given the court’s

3

certification for the purposes of settlement and that TCPA class

4

actions are routinely certified.

5

plaintiffs acknowledge a risk that defendant would defeat class

6

certification by arguing that the question of whether class

7

members provided consent when purchasing iYogi’s support services

8

is an individual issue not appropriate for certification.

9

Accordingly, this factor also favors approval of the settlement.

(Id. at 11.)

However,

(Id.)

10

4. Amount Offered in Settlement

11

In assessing the amount offered in settlement, “[i]t is

12

the complete package taken as a whole, rather than the individual

13

component parts, that must be examined for overall fairness.”

14

Officers for Justice, 688 F.2d at 628.

15

that a cash settlement amounting to only a fraction of the

16

potential recovery will not per se render the settlement

17

inadequate or unfair.”

18

“It is well-settled law

Id.

Each class member who submitted a claim form in this

19

case will receive $40 in cash, regardless of how many claims are

20

made.

21

fees and costs will not be deducted from the settlement amount.

22

In addition, class members will receive prospective relief

23

because defendant has agreed to modify its terms and conditions

24

to more clearly inform its customers that by entering into the

25

agreement for its services they consent to being contacted by

26

telephone regarding the services and to more clearly inform

27

customers of their option to elect not to receive such calls.

28

(Id.)

(Pls.’ Mot. for Final Approval at 12.)

8

The attorney’s

1

While the TCPA provides for damages of $500 “for each

2

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

3

conduct was willful, 47 U.S.C. § 227(b)(3)(B), (c)(5)(B), the

4

settlement in this case is fair given the risks and costs of

5

further litigation in this case.

6

5. Extent of Discovery and the State of Proceedings

7

A settlement that occurs in an advanced stage of the

8

proceeding indicates the parties carefully investigated the

9

claims before reaching a resolution.

Alberto v. GMRI, Inc., Civ.

10

No. 07-1895 WBS DAD, 2008 WL 4891201, at *9 (E.D. Cal. Nov. 12,

11

2008).

12

conducted significant informal discovery during settlement

13

negotiations.

14

parties also engaged in extensive mediation before a third-party

15

mediator, which included an in-person mediation session and

16

several months of additional arm’s-length negotiations with the

17

assistance of the mediator.

18

investigation of the claims through formal discovery, informal

19

discovery, and mediation weigh in favor of settlement.

20

6. Experience and Views of Counsel

21

Plaintiffs’ counsel have extensive experience

The parties in this case began formal discovery and also

(Pls.’ Mot. for Final Approval at 14.)

(Id. at 4.)

The

The parties’

22

litigating class actions, particularly those involving TCPA

23

claims.

24

class counsel has been litigating this case for more than two

25

years.

26

believe the proposed settlement is fair and adequate to the class

27

members.

28

class counsel’s opinions regarding the settlement due to

(Balabanian Decl. ¶ 9 (Docket No. 82-2).)

(Id.)

In addition,

Based on their experience, plaintiffs’ counsel

(Id. ¶ 3.)

The court gives considerable weight to

9

1

counsel’s experience and familiarity with the litigation.

2

Alberto, 2008 WL 4891201, at *10.

3

of the settlement agreement.

This factor supports approval

4

7. Presence of Government Participant

5

No governmental entity participated in this matter;

6

this factor, therefore, is irrelevant to the court’s analysis.

7

8. Reaction of the Class Members to the Proposed

8

Settlement

9

Notice of the settlement was sent to 188,887

10

participating class members on November 3, 2015 and only four

11

class members submitted requests for exclusion prior to the

12

January 2, 2016 deadline.

13

1).)

14

Mot. for Final Approval at 16; see also McCarthy Obj. (Docket No.

15

80).)1

16

objections to a proposed class action settlement raises a strong

17

presumption that the terms of a proposed class settlement action

18

are favorable to the class members.”

19

Accordingly, this factor weighs in favor of the court’s approval

20

of the settlement.

Only one class member objected to the settlement.

21
22
23
24
25
26
27
28

(Bithell Decl. ¶ 10 (Docket No. 82(Pls.’

“It is established that the absence of a large number of

DIRECTV, 221 F.R.D. at 529.

Having considered the foregoing factors, the court
1

John Thomas McCarthy, a former iYogi subscriber,
objected that the settlement reward “is far too meager.”
(McCarthy Obj.) He claims that he was subjected to iYogi’s
“constant telephonic harassment” and that iYogi was also unable
to fix the computer problems he was having. (Id.) He contends
that class members who received unfavorable service and were
subjected to telephonic harassment should be refunded the full
subscription fee plus an additional amount. (Id.) This objection
is of limited relevance given that it was iYogi’s telephone
practices, not the quality of iYogi’s technical support services,
that were at issue in this case.
10

1

finds the settlement is fair, adequate, and reasonable pursuant

2

to Rule 23(e).

3

B. Attorney’s Fees

4

Plaintiffs’ counsel requests $300,000 in attorney’s

5

fees for 664.3 hours of work on this case.

6

oppose.

Defendant does not

(Def.’s Statement of Non-Opp’n at 2.)

7

Federal Rule of Civil Procedure 23(h) provides, “[i]n a

8

certified class action, the court may award reasonable attorney’s

9

fees and nontaxable costs that are authorized by law or by the

10

parties’ agreement.”

11

includes an award of attorney’s fees, that fee award must be

12

evaluated in the overall context of the settlement.

13

Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio

14

v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013)

15

(England, J.).

16

ensure that the award, like the settlement itself, is reasonable,

17

even if the parties have already agreed to an amount.”

18

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th

19

Cir. 2011).

20

If a negotiated class action settlement

Knisley v.

The court “ha[s] an independent obligation to

In re

The Ninth Circuit recognizes two methods of assigning

21

attorney’s fees: the lodestar method and the percentage of

22

recovery method.

23

1047 (9th Cir. 2002).

24

favored in common fund cases, here, where attorney’s fees do not

25

detract from a common settlement fund, the lodestar method is

26

more appropriate.

27

method and incorporate a percentage of the fund cross-check.

28

Vizcaino v. Microsoft Corp., 290 F.3d 1043,
While the percentage of recovery method is

As a result, the court will apply the lodestar

1. Lodestar Method
11

1

“The lodestar figure is calculated by multiplying the

2

number of hours the prevailing party reasonably expended on the

3

litigation (as supported by adequate documentation) by a

4

reasonable hourly rate for the region and for the experience of

5

the lawyer.”

6

figure is presumptively reasonable, the court may adjust it

7

upward or downward by an appropriate multiplier based on a number

8

of reasonableness factors.

Bluetooth, 654 F.3d at 941.

While the lodestar

Id. at 941-42.

9

In determining the size of an appropriate fee award,

10

the Supreme Court has emphasized that courts need not “achieve

11

auditing perfection” or “become green-eyeshade accountants.”

12

v. Vice, 131 S.Ct. 2205, 2217 (2011).

13

“essential goal of shifting fees . . . is to do rough justice,”

14

the court may “use estimates” or “take into account [its] overall

15

sense of a suit” to determine a reasonable attorney’s fee.

16

Fox

Rather, because the

Id.

a. Reasonable Hours

17

In determining reasonable hours, counsel bears the

18

burden of submitting detailed time records justifying the hours

19

claimed.

20

(9th Cir. 1986).

21

documentation is inadequate; if the case was overstaffed and

22

hours are duplicated; if the hours expended are deemed excessive

23

or otherwise unnecessary.”

24

Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210
The court may reduce the hours “where

Id.

Plaintiffs’ counsel represent that they worked a total

25

of 664.3 hours on this case over a two-year time period.

(Pls.’

26

Mot. for Att’y’s Fees at 8.)

27

represents to have worked 12.8 hours; Rafey S. Balabanian,

28

managing partner in San Francisco, 108.5 hours; Benjamin H.

Jay Edelson, managing partner,

12

1

Richman, partner, 135.4 hours; Courtney C. Booth, associate, 212

2

hours; law clerks, 55.3 hours; and Stefan L. Coleman, partner at

3

the Law Offices of Stefan L. Coleman, 140.3 hours.

4

This included formal mediation, a year of arm’s-length

5

negotiations, and complex legal issues against competent defense

6

counsel.

7

counsel is sufficient to conclude that the 664.3 hours claimed

8

are reasonable and not excessive.

9

(Id. at 8.)

(Id. at 10.)

The information provided by plaintiffs’

b. Reasonable Rate

10

Plaintiffs’ counsel seeks a rate of $400 per hour for

11

partners, $200 for associates, and $100 for law clerks.

12

9-10.)

13

market rate in the community “for similar work performed by

14

attorneys of comparable skill, experience, and reputation.”

15

Chalmers, 796 F.2d at 1211.

16

the forum in which the district sits.

17

496, 500 (9th Cir. 1997).

18

requested hourly rates correlate with reasonable rates in the

19

Sacramento market and are significantly lower than the rates

20

Edelson PC attorneys regularly charge to their hourly clients.

21

(Pls.’ Mot. for Att’y’s Fees at 10.)

22

(Id. at

A reasonable rate is typically based upon the prevailing

The relevant community is generally
Barjon v. Dalton, 132 F.3d

Plaintiffs’ counsel argue the

Courts in the Eastern District of California have

23

regularly approved hourly rates of $400 or more for partners or

24

experienced attorneys, $150-175 for associates, and $100 for law

25

clerks in similarly complex cases.

26

Best Buy Stores, L.P., 291 F.R.D. 443, 460-61 (E.D. Cal. 2013)

27

(England, J.) (applying the “prevailing hourly rates in the

28

Eastern District of California” of $400 for partners, $150 for
13

See, e.g., Monterrubio v.

1

associates, and $100 for law clerks in a wage and hour class

2

action); Ontiveros v. Zamora, 303 F.R.D. 356, 374 (E.D. Cal.

3

2014) (finding that the reasonable hourly rate in the Eastern

4

District is $400 for experienced attorneys and $175 for

5

associates in a wage and hour class action); Trulsson v. Cnty. Of

6

San Joaquin Dist. Att’y’s Office, Civ. No. 2:11-02986 KJM DAD,

7

2014 WL 5472787, at *6 (E.D. Cal. Oct. 28, 2014) (approving an

8

hourly rate of $450 for an experienced attorney in a civil rights

9

case).

Moreover, plaintiffs’ counsel explains that the partners

10

involved in this case have as much as nineteen years of

11

experience as litigators and that the law firm of Edelson PC has

12

particularized experience in complex consumer class actions under

13

the TCPA.

14

light of the prevailing rates in the Eastern District in

15

comparably complex cases and the experience of the attorneys, the

16

court finds plaintiffs’ proposed hourly rates of $400 for

17

partners, $200 for associates, and $100 for law clerks

18

reasonable.

19
20

(Pls.’ Mot. for Att’y’s Fees at 11, Ex. 1-A.)

In

Accordingly, the lodestar figure in this case is
$206,730.00, calculated as follows:

21

Edelson:

12.8

x

$400

=

$ 5,120.00

22

Balabanian:

108.5

x

$400

=

$ 43,400.00

23

Richman:

135.4

x

$400

=

$ 54,160.00

24

Booth:

212

x

$200

=

$ 42,400.00

25

Law Clerks:

55.3

x

$100

=

$ 5,530.00

26

Coleman:

140.3

x

$400

=

$ 56,120.00

27
28

$ 206,730.00
c. Enhancement of Lodestar
14

1

In addition to the lodestar figure, plaintiffs’ counsel

2

requests a multiplier of 1.45.

In determining whether or not a

3

multiplier is appropriate, the court considers a number of

4

reasonableness factors including “the quality of representation,

5

the benefit obtained for the class, the complexity and novelty of

6

the issues presented, and the risk of nonpayment.”

7

654 F.3d at 942 (citation omitted); see also Kerr v. Screen Guild

8

Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (enumerating

9

factors on which courts may rely in adjusting the lodestar

Bluetooth,

10

figure).

The most important factor is the benefit obtained for

11

the class.

12

possibility that plaintiffs would not have recovered anything, as

13

discussed above, the court finds that a 1.45 multiplier is

14

appropriate in this class action case.

15

finds that a fee award of $300,000 is reasonable and appropriate

16

in this case.

Id.

Given the risks inherent to this case and the

Accordingly, the court

17

2. Percentage of Recovery Cross-Check

18

Under the percentage of recovery method, the court may

19

award class counsel a percentage of the common fund recovered for

20

the class.

21

approved a benchmark percentage of 25% for a reasonable fee award

22

and courts may adjust this figure upwards or downwards if the

23

record shows “special circumstances justifying a departure.”

24

Bluetooth, 654 F.3d at 942 (citation omitted).

25

claims-made settlement, such as here, the percentage of the fund

26

approach in the Ninth Circuit is based on the total money

27

available to class members, not just the money actually claimed.

28

Williams v. MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir.

Vizcaino, 290 F.3d at 1047.

15

The Ninth Circuit has

Where there is a

1

1997) (“We conclude that the district court abused its discretion

2

by basing the fee on the class members’ claims against the fund

3

rather than on a percentage of the entire fund or on the

4

lodestar.”); Six (6) Mexican Workers v. Ariz. Citrus Growers, 904

5

F.2d 1301, 1311 (9th Cir. 1990) ([A]ttorneys’ fees sought under a

6

common fund theory should be assessed against every class

7

members’ share, not just the claiming members.”).

8
9

The total money available to class members in this case
is $7,555,480.00.

This is because there are 188,887 class

10

members who could have each made a claim for $40.00.

11

the 25% benchmark, the percentage of recovery method would

12

justify a fee award of $1,888,870.00.

13

percentage of the recovery cross-check confirms that a fee award

14

of $300,000 is reasonable.

15
16

Applying

Accordingly, the

D. Incentive Payments to Named Plaintiffs
The court may award “reasonable incentive payments” to

17

named plaintiffs “to compensate class representatives for work

18

done on behalf of the class, to make up for financial or

19

reputational risk undertaken in bringing the action, and,

20

sometimes, to recognize their willingness to act as a private

21

attorney general.”

22

01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 2015).

23

In assessing the reasonableness of incentive payments, the court

24

should consider “the actions the plaintiff has taken to protect

25

the interests of the class, the degree to which the class has

26

benefitted from those actions” and “the amount of time and effort

27

the plaintiff expended in pursuing the litigation.”

28

F.3d at 977 (citation omitted).

Davis v. Brown Shoe Co., Inc., Civ. No. 1:13-

Staton, 327

In the Ninth Circuit, an
16

1

incentive award of $5,000.00 is presumptively reasonable.

2

2015 WL 6697929, at * 11.

3

Davis,

The three class representatives in this case seek

4

incentive payments of $1,000.00 each, for a total of $3,000.00.

5

(Pls.’ Mot. for Att’y’s Fees at 18 (Docket No. 79).)

6

amount of $1,000.00 per representative is significantly lower

7

than the $5,000.00 awards found to be presumptively reasonable in

8

the Ninth Circuit.

9

class representatives for the time and resources they committed

An award

The award also seems to fairly compensate the

10

to pursuing this case and representing the class.

11

contributions included assisting in the investigation of their

12

claims, providing information for discovery, reviewing drafts and

13

discovery documents, and participating in conference calls with

14

class counsel.

15

finds that the incentive payments are reasonable.

16

III. Conclusion

(Balabanian Decl. ¶ 33.)

Their

The court therefore

17

Based on the foregoing, the court grants final

18

certification of the settlement class and approves the settlement

19

set forth in the settlement agreement as fair, reasonable, and

20

adequate.

Consummation of the settlement agreement is therefore

21

approved.

The settlement agreement shall be binding upon all

22

participating class members who did not exclude themselves.

23

IT IS THEREFORE ORDERED that plaintiffs’ motions for

24

final approval of the class and class action settlement and for

25

reasonable attorney’s fees, expenses, and incentive awards be,

26

and the same hereby are, GRANTED.

27
28

IT IS FURTHER ORDERED THAT:
(1)

solely for the purpose of this settlement, and pursuant
17

1

to Federal Rule of Civil Procedure 23, the court hereby

2

certifies the following class: All individuals who are

3

iYogi subscribers or former subscribers in the United

4

States to whom iYogi or any agent or affiliate of iYogi

5

made or attempted to make outbound calls (including but

6

not limited to subscription renewal calls) to a telephone

7

number assigned to cellular telephone service from

8

September 23, 2009 until November 18, 2013.

9

Specifically, the court finds that:

10

(a)

the settlement class members are so numerous that

11

joinder of all settlement class members would be

12

impracticable;

13

(b)

there are questions of law and fact common to the

14

settlement class which predominate over any

15

individual questions;

16

(c)

17

claims of the named plaintiffs are typical of the
claims of the settlement class;

18

(d)

the named plaintiffs and plaintiffs’ counsel have

19

fairly and adequately represented and protected the

20

interests of the settlement class; and

21

(e)

a class action is superior to other available

22

methods for the fair and efficient adjudication of

23

the controversy.

24

(2)

the court appoints the named plaintiffs, Vicki Estrada,

25

Patricia Goodman, and Kim Williams-Britt, as

26

representatives of the class and finds that they meet the

27

requirements of Rule 23;

28

(3)

the court appoints Jay Edelson, Rafey S. Balabanian,
18

1

Benjamin H. Richman, and Courtney C. Booth, Edelson PC,

2

329 Bryant Street, San Francisco, California, 94107, as

3

counsel to the settlement class and finds that counsel

4

meet the requirements of Rule 23;

5

(4)

the settlement agreement’s plan for class notice is the

6

best notice practicable under the circumstances and

7

satisfies the requirements of due process and Rule 23.

8

The plan is approved and adopted.

9

class complies with Rule 23(c)(2) and Rule 23(e) and is

10
11

The notice to the

approved and adopted;
(5)

having found that the parties and their counsel took

12

appropriate efforts to locate and inform all putative

13

class members of the settlement, and given that only one

14

class member filed an objection to the settlement, the

15

court finds and orders that no additional notice to the

16

class is necessary;

17

(6)

as of the date of the entry of this Order, the plaintiffs

18

and all class members who have not timely opted out

19

hereby do and shall be deemed to have released the

20

released parties of any and all claims that the class

21

members had or have that have been or could have been

22

asserted in this action or in any other action or

23

proceeding (as defined by paragraph 1.28 of the

24

settlement agreement);

25

(7)

26
27
28

plaintiffs’ counsel is entitled to fees and costs in the
amount of $300,000;

(8)

the named plaintiffs are entitled to incentive payments
of $1,000 each; and
19

1

(9)

this action is dismissed with prejudice; however, without

2

affecting the finality of this Order, the court shall

3

retain continuing jurisdiction over the interpretation,

4

implementation, and enforcement of the settlement

5

agreement with respect to all parties to this action and

6

their counsel of record.

7

The clerk is instructed to enter judgment accordingly.

8

Dated:

January 26, 2016

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20