Kirchner v. Shred-It USA, Inc. et al

Filing 55

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 3/31/15 GRANTING 53 Motion for Preliminary Settlement Approval. (Meuleman, A)

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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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MICHAEL KIRCHNER, an individual,
on behalf of himself and all
others similarly situated,
Plaintiff,

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CIV. No. 2:14-1437 WBS EFB

MEMORANDUM AND ORDER RE:
MOTION FOR PRELIMINARY
SETTLEMENT APPROVAL

v.
SHRED-IT USA INC., a Delaware
Corporation; FIRST ADVANTAGE LNS
SCREENING SOLUTIONS, INC., and
Does 1 through 10,
Defendants.

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----oo0oo---Plaintiff Michael Kirchner brought this putative class-

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action lawsuit against defendants Shred-it USA (“Shred-it”) and

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First Advantage Background Services Corp. (“First Advantage”),

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alleging that defendants failed to comply with federal credit

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reporting laws while conducting pre-employment background checks.

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Presently before the court is plaintiff and Shred-it’s joint

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motion for preliminary approval of class action settlement.
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(Docket No. 53.)

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I.

Factual and Procedural Background

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Plaintiff applied for a job with Shred-it on April 13,

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2011.

(First Am. Compl. (“FAC”) ¶ 14 (Docket No. 17).)

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of the application process, plaintiff received and signed a one-

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page disclosure form.

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disclosing the fact that Shred-it might procure a consumer report

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for employment purposes on plaintiff, the form also included

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release and discharge language that plaintiff alleges violated

(Id. ¶ 14, Ex. A.)

As part

In addition to

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the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq.

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Specifically, plaintiff claims the language failed to comply with

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15 U.S.C. § 1681b’s requirement that an employer disclose that a

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consumer report may be obtained for employment purposes in a form

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consisting “solely of the disclosure.”

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§ 1681b(b)(2).

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(FAC ¶ 17); see 15 U.S.C.

On October 8, 2014, Shred-it moved to dismiss

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plaintiff’s FAC.

(Docket No. 31.)

Before the court could rule

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on that motion, however, plaintiff and Shred-it notified the

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court that they had agreed to settlement terms and withdrew

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Shred-it’s motion to dismiss without prejudice.

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The parties now seek preliminary approval of their stipulated

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class action settlement.

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II.

(Docket No. 43.)

Discussion

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Federal Rule of Civil Procedure 23(e) provides that

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“[t]he claims, issues, or defenses of a certified class may be

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settled . . . only with the court’s approval.”

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23(e).

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which the Court first determines whether a proposed class action

Fed. R. Civ. P.

“Approval under 23(e) involves a two-step process in

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settlement deserves preliminary approval and then, after notice

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is given to class members, whether final approval is warranted.”

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Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523,

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525 (C.D. Cal. 2004) (citing Manual for Complex Litig., Third, §

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30.41 (1995)).

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This Order is the first step in that process and only

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analyzes whether the proposed class action settlement deserves

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preliminary approval.

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

See Murillo v. Pac. Gas & Elec. Co., 266
Preliminary approval

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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

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proposed terms after that hearing.

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See id.; Diaz v. Trust Territory of

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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Class Plaintiffs v. City
Nevertheless,

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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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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 . . . .’”

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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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Staton, 327 F.3d at 952 (quoting Hanlon, 150

A. Class Certification
A class action will only be certified 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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See

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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

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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.

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

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a. Numerosity
Under the first requirement, “[a] proposed class of at
least forty members presumptively satisfies the numerosity
requirement.”

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

456 (C.D. Cal. 2012); see also, e.g., Collins v. Cargill Meat
Solutions Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wanger,
J.) (“Courts have routinely found the numerosity requirement
satisfied when the class comprises 40 or more members.”).

The

proposed class, which the parties estimate will contain
approximately 3,328 members, (see Pl.’s Mem. at 6 (Docket No. 531)), easily satisfies this requirement.
b. Commonality

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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

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

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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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Hanlon,

Plaintiff states that, had the case proceeded to trial,

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all putative class members would have predicated their claims on

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Shred-it’s alleged failure to comply with the FCRA by using a

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disclosure form with additional language, such as a liability

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release or indemnity provision.

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the exact factual predicates for each claim may vary, plaintiff

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argues that Shred-it’s policy of including additional language in

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its disclosure forms creates common questions of fact and law

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regarding the adequacy of those forms under 15 U.S.C.

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§ 1681b(b)(2).

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(Pl.’s Mem. at 14.)

Although

(See id.)

The court agrees that the potential claims of the class

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members would arise from a set of circumstances similar to that

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of plaintiff’s, namely, the receipt or signing of a form provided

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by Shred-it that contained language beyond the disclosure and

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authorization language permitted by the FCRA.

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forms complied with § 1681b(b)(2) is a question common to all

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class members.

Whether these

Class members would also face the common question
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of whether Shred-it “willfully” failed to comply with

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§ 1681b(b)(2)’s requirement.

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Ins. Co. of Am. v. Burr, 551 U.S. 47, 56-60 (2007).

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questions of law are therefore applicable in the same manner to

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each member of the class, making class relief based on

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commonality appropriate.

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701 (1979) (holding that commonality issues of the class “turn on

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questions of law applicable in the same manner to each member of

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the class”); Acosta v. Trans Union, LLC, 243 F.R.D. 377, 384

See 15 U.S.C. § 1681n(a); Safeco
These

See Califano v. Yamasaki, 442 U.S. 682,

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(C.D. Cal. 2007) (finding commonality when “[t]he same alleged

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conduct of Defendants forms the basis for each of the plaintiffs’

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claims”).

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c. Typicality

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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

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course of conduct.’”

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

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The test for typicality “‘is whether

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

Plaintiff argues that all putative class members were

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subject to the same course of conduct by Shred-it: providing them

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with disclosure and authorization forms that included extra

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language.

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were thus deprived of proper disclosure in the form required by

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§ 1681b(b)(2) in the same manner as plaintiff.

(Pl.’s Mem. at 14-15.)

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The putative class members

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Because the parties proposed a settlement prior to

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certification, the court has little in the way of a record to

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independently verify these assertions.

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rely on the declaration of plaintiff’s counsel.

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at 21-24 (providing the declaration of Peter R. Dion-Kindem).)

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The parties’ common interest in settling their dispute also

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deprives the court of adversarial briefs on this subject, making

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it difficult to assess whether plaintiff “possess[es] the same

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interest and suffer[s] the same injury” as the putative class

The court must instead
(See Pl.’s Mem.

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members--an important part of the typicality inquiry.

Rodriguez,

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431 U.S. at 403 (quoting Schlesinger v. Reservists Comm. to Stop

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the War, 418 U.S. 208, 216 (1974)).

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Nevertheless, for the purpose of preliminary

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certification, the court accepts that the injuries of the named

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plaintiff are likely to be “reasonably coextensive” with those of

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the putative class.

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allegedly violates the FCRA and the statutory damages available

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to the plaintiff and putative class members under 15 U.S.C.

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§ 1681n(a) make it unlikely that any class member’s particular

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background or situation diverges significantly from plaintiff’s.1

The routine nature of the practice that

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15 U.S.C. § 1681n(a) provides, in relevant part:

(a) In general
Any person who willfully fails to comply with any
requirement imposed under this subchapter with
respect to any consumer is liable to that consumer
in an amount equal to the sum of-(1)(A) any actual damages sustained by the
consumer as a result of the failure or damages of
not less than $100 and not more than $1,000 . . .
15 U.S.C. § 1681n(a)(1)(A).
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See Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner

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& Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (noting that

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class certification should not be granted if “there is a danger

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that absent class members will suffer if their representative is

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preoccupied with defenses unique to it”).

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agreement does not appear to be the result of exceptional

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circumstances or atypical claims proffered by plaintiff.

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This settlement

d. Adequacy of Representation

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Finally, to resolve the question of adequacy, the court

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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).

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Hanlon, 150 F.3d at

These questions involve consideration of a number of

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

Under the first inquiry, plaintiff’s interests appear

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to be aligned with those of the class.

The class is defined to

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include individuals who suffered a similar injury as plaintiff:

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those on which Shred-it procured or caused to be procured a

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consumer report after that individual signed a form that included

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language other than the authorization and disclosure permitted by

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§ 1681b(b)(2).

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plaintiff’s alleged injury and should adequately align his

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interests with those he seeks to represent.

This definition is narrowly tailored to reflect

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See Windsor, 521

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U.S. at 625–26 (“[A] class representative must be part of the

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class and possess the same interest and suffer the same injury as

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the class 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 settlement also provides for an incentive award of

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$5,000 to plaintiff.2

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Ninth Circuit has specifically approved the award of “reasonable

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incentive payments” to named plaintiffs, the use of an incentive

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award nonetheless raises the possibility that plaintiff’s

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interest in receiving that award will cause his interests to

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diverge from the class’s interest in a fair settlement.

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327 F.3d at 977–78 (declining to approve a settlement agreement

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where size of incentive award suggested that named plaintiffs

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were “more concerned with maximizing [their own] incentives than

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with judging the adequacy of the settlement as it applies to

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class members at large”).

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“scrutinize carefully the awards so that they do not undermine

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the adequacy of the class representatives.”

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Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).

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(Settlement Agreement § 11.)

Although the

Staton,

As a result, district courts

Radcliffe v.

The incentive award in this case does not appear to

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create a clear conflict of interest.

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found that $5,000 incentive payments are reasonable.”

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Hanesbrands Inc., Civ. No. 08-0844 EDL, 2009 WL 928133, at *10

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“In general, courts have
Hopson v.

“Incentive awards are payments to class representatives
for their service to the class in bringing the lawsuit.”
Radcliffe v. Experian Info. Solutions Inc., 715 F.3d 1157, 1163
(9th Cir. 2013).
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(N.D. Cal. Apr. 3, 2009) (citing In re Mego Fin. Corp. Sec.

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Litig., 213 F.3d 454, 463 (9th Cir. 2000); In re SmithKline

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Beckman Corp., 751 F. Supp. 525, 535 (E.D. Pa. 1990); Alberto v.

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GMRI, Inc., 252 F.R.D. 652, 669 (E.D. Cal. 2008)).

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amount of plaintiff’s incentive award is lower than awards found

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to be fair and reasonable in other cases.

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v. Atl. Richfield Co., 901 F. Supp. 294, 300 (N.D. Cal. 1995)

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(holding that incentive award of $50,000 to each named plaintiff

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was fair and reasonable); Glass v. UBS Fin. Servs., Inc., Civ.

The proposed

See, e.g., Van Vranken

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No. 04–4068 MMC, 2007 WL 221862, at *16 (N.D. Cal. Jan. 26, 2007)

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(approving incentive award of $25,000 for each of four named

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plaintiffs).

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Plaintiff states that each member of the proposed class

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will recover approximately $45.55 under the terms of the

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settlement agreement.

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$5,000 to plaintiff is thus somewhat disproportionate to the

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recovery of other class members.

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Buy Stores, L.P., 291 F.R.D. 443, 463 (E.D. Cal. 2013) (England,

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J.) (finding $7,500 incentive award unreasonable when average

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class member would receive $65.79 and reducing the award to

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$2,500).

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plaintiff an inadequate class representative, but it gives the

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court pause, particularly given the lack of evidence before the

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court demonstrating the quality of plaintiff’s representative

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service.3

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(Pl.’s Mem. at 6.)

An incentive award of

See, e.g., Monterrubio v. Best

This disproportionality does not automatically render

The incentive award is not dispositive of plaintiff’s

In his declaration, plaintiff’s counsel states,
“Plaintiff has been instrumental in prosecuting this action and
has personally risked liability for a large cost bill if the
matter was not successful.” (Pl.’s Mem. at 21; Dion-Kindem Decl.
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adequacy, and its justification can be further explored at the

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final Fairness Hearing.

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(certifying plaintiff as an adequate class representative

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“pending the introduction at the final fairness hearing of

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evidence in support of counsel’s findings”).

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court preliminarily finds that the proposed incentive award does

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not render plaintiff an inadequate representative of the class.

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On or before the date of the Fairness Hearing, however, the

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parties shall present or be prepared to present evidence of the

See Alberto, 252 F.R.D. at 662-63, 669

Accordingly, the

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named plaintiff’s efforts taken as class representative, such has

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his hours of service or an itemized list of his activities, to

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justify the discrepancy between his award and those of the

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unnamed plaintiffs.4

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The second prong of the adequacy inquiry examines the

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vigor with which the named plaintiff and her counsel have pursued

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the common claims.

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which ‘vigor’ can be assayed, considerations include competency

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of counsel and, in the context of a settlement-only class, an

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assessment of the rationale for not pursuing further litigation.”

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Hanlon, 150 F.3d at 1021.

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“Although there are no fixed standards by

Plaintiff’s counsel states that he has expertise in
prosecuting employment claims throughout his career and has

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¶ 6.) The declaration does not justify this assertion, however,
rendering it of limited persuasive value.
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Relevant factors for the evaluation of the amount of
incentive payments made to the named plaintiff include “the
actions the plaintiff has taken to protect the interests of the
class, the degree to which the class has benefitted from those
actions, . . . and reasonabl[e] fear[s of] workplace
retaliation.” Staton, 327 F.3d at 977 (citation omitted).
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served as the counsel of record for at least twenty-three class

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actions in federal and state court.

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Kindem Decl. ¶¶ 2, 4.)

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that plaintiff’s counsel has the experience necessary to maximize

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the return on his labor and vindicate the injuries of the class.

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(Pl.’s Mem. at 21; Dion-

The court therefore has some assurance

Plaintiff’s counsel also indicates that the decision to

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settle plaintiff’s claim was made after taking into account the

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uncertainty and risk of further litigation, the potential outcome

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of pursuing the case, and the difficulties and delays inherent in

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litigation.

(Pl.’s Mem. at 21; Dion-Kindem Decl. ¶ 7.)

In

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particular, plaintiff’s counsel points to this court’s recent

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rejection of a nearly identical claim brought in a case involving

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different parties.

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No. 1:14-742 WBS, 2014 WL 5426862, at *3-4 (E.D. Cal. Oct. 23,

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2014).

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of settlement.

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plaintiff is an adequate class representative.

(See Pl.’s Mem. at 18); Syed v. M-I LLC, Civ.

The court agrees that these considerations weigh in favor
Therefore, the court holds that the named

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2. Rule 23(b)

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An action that meets all the prerequisites of Rule

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23(a) may only be certified as a class action if it also

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satisfies the requirements of one of the three subdivisions of

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Rule 23(b).

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

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Cir. 2013).

Plaintiff seeks certification under Rule 23(b)(3),

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which provides that a class action may be maintained only if (1)

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“the court finds that questions of law or fact common to class

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members predominate over questions affecting only individual

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members” and (2) “that a class action is superior to other

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available methods for fairly and efficiently adjudicating the
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1

controversy.”

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Fed. R. Civ. P. 23(b)(3).
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”).

Murillo, 266

Here, plaintiff’s

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claim turns on the legality of a common method used by Shred-it

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for disclosing that it will seek consumer reports for employment

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purposes and whether this method was a willful violation of the

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FCRA.

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predicate class members’ claims were allegedly deficient because

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they included release and/or indemnity provisions.

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Mem. at 16-17.)

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common nucleus of facts and potential legal remedies” for

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putative class members that can be resolved in a single

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adjudication.

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All of the disclosure and authorization forms that

(See Pl.’s

The class claim therefore demonstrates “[a]

See Hanlon, 150 F.3d at 1022.

To the extent that any variations may exist, there is

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no indication that those issues would be anything more than

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“local variants of a generally homogenous collection of causes”

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that derive from plaintiff’s allegations.

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idiosyncratic differences are therefore “not sufficiently

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substantive to predominate over the shared claims.”

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23.

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and fact predominate over those affecting only individuals.

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See id.

These

Id. at 1022–

Accordingly, the court finds that common questions of law

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:

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

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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Id.

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(C) and (D) inapplicable here.

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

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The parties’ pre-certification settlement renders factors
See Murillo, 266 F.R.D. at 477

The court is unaware of any concurrent litigation

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regarding the issues presented here against Shred-it.

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absence of competing lawsuits, it is also unlikely that other

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individuals have an interest in controlling the prosecution of

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this action or other actions, although objectors at the Fairness

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Hearing may reveal otherwise.

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As it stands now, the class action device appears to be the

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superior method for adjudicating this controversy.

In the

See Alberto, 252 F.R.D. at 664.

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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

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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.”

27

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

Fed.

Rule 23(c)(2) governs both the form and

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content of a proposed notice.

2

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.

6

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

7

See Ravens v. Iftikar, 174 F.R.D.

Although that notice must be

Silber v. Mabon, 18 F.3d

Here, the Settlement Agreement provides that Simpluris,

8

Inc., the settlement administrator, will mail notice to each

9

putative class member via first-class U.S. mail.

(Settlement

10

Agreement ¶ 12.)

The court is satisfied that this system of

11

providing notice is reasonably calculated to provide notice to

12

class members and is the best form of notice available under the

13

circumstances.

14

settlement in which Simpluris provided notice by mail to class

15

members in a similar manner).

See Monterrubio, 291 F.R.D. at 443 (approving

16

The parties have also supplied the “Notice of

17

Settlement and Release of Claims Form” that they propose to send

18

to class members after filling in the dates and deadlines set by

19

the court.

20

the proceedings, the definition of the class, the terms of the

21

settlement, and the procedure for objecting or opting out of the

22

settlement.

23

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

24

also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575

25

(9th Cir. 2004) (“Notice is satisfactory if it ‘generally

26

describes the terms of the settlement in sufficient detail to

27

alert those with adverse viewpoints to investigate and to come

28

forward and be heard.’” (quoting Mendoza v. Tucson Sch. Dist. No.

(See Settlement Agreement Ex. B.)

(Id.)

The form explains

The content of the form therefore also
See Fed R. Civ. P. 23(c)(2)(B); see

16

1
2

1, 623 F.2d 1338, 1352 (9th Cir. 1980)).
B. Preliminary Settlement Approval

3

After determining that the proposed class satisfies the

4

requirements of Rule 23, the court must determine whether the

5

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

6

reasonable.

7

1026.

8

factors,” including:

9
10
11
12
13

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.

14
15
16
17
18
19
20

Hanlon, 150 F.3d at 1026.

considered until the final Fairness Hearing, so the court need
only conduct a preliminary review at this time to resolve any
“glaring deficiencies” in the Settlement Agreement before
authorizing notice to class members.

1. Terms of the Settlement Agreement
The key terms of the Settlement Agreement can be

22

24
25
26
27
28

Ontiveros, 2014 WL 3057506,

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

21

23

Many of these factors cannot be

summarized as follows:
(1)

Settlement Class:

All individuals as to whom, from June

16, 2009, through June 16, 2014, Shred-it procured or
caused to be procured a consumer report for employment
purposes who signed an authorization form, in electronic
or written form, allowing for consumer reports to be
17

1

obtained which included a liability release or other

2

language of any kind other than the authorization and

3

disclosure permitted under the Fair Credit Reporting Act,

4

15 U.S.C. 1681b(b)(2).

5

(2)

Notice:

(Settlement Agreement ¶ 17.)

Not more than seven days after the court has

6

issued an order preliminarily approving the settlement,

7

the Settlement Administrator will send a “Notice of

8

Settlement and Release of Claims form” to all class

9

members via first-class U.S. mail, postage prepaid and

10

return service requested.

The notice shall be mailed to

11

each class member’s last known mailing address, as

12

updated by using the U.S. Postal Service’s database of

13

verifiable mailing addresses and the National Change-of-

14

Address database.

15

Administrator’s mailing address as the return-mail

16

address.

17

include an indication that it is a “Court Approved

18

Settlement Notice Authorized by the U.S. District Court

19

for the Eastern District of California” and may also

20

include a bar code.

21

undeliverable, the Settlement Administrator will use

22

publically available databases as practicable to update

23

the address and cause the notice to be re-mailed.

24

Settlement Administrator will also establish and staff a

25

toll-free telephone line that class members can use to

26

contact the Settlement Administrator with questions about

27

the settlement or change their addresses.

28

35.)

The notice shall bear the Settlement

The envelope in which the notice is sent will

If a notice is returned as

18

The

(Id. ¶¶ 33-

1

(3)

Opt-out Procedure:

To opt out of the settlement, a class

2

member must, within sixty days after the mailing date of

3

the initial settlement notice, submit by first-class U.S.

4

mail a written notice addressed to the Settlement

5

Administrator indicating his or her name and stating that

6

he or she desires to opt out or otherwise does not want

7

to participate in the settlement.

8

does not timely (as measured by the postmark on that

9

individual’s written notice) opt out of the settlement by

10

written notice containing the requisite information shall

11

remain members of the settlement class and shall be bound

12

by any orders of the court about the settlement or the

13

settlement class.

14

(4)

Any class member who

(Id. ¶ 36.)

Objections to Settlement:

Any class member who wishes to

15

object to the settlement must file a timely written

16

statement of objection with the Clerk of Court, and mail

17

a copy of that objection with the requisite postmark to

18

class counsel and defense counsel no later than sixty

19

days from the date this Order is signed.

20

must state the case name and number; the basis for and an

21

explanation of the objection; the name, address,

22

telephone number, and email address of the class member

23

making the objection; and a statement of whether the

24

class member intends to appear at the final Fairness

25

Hearing, either with or without counsel.

26

any objection must be personally signed by the class

27

member and, if represented by counsel, then by counsel.

28

Any class member who fails to make objections in the
19

The objection

In addition,

1

manner specified above shall be deemed to have waived any

2

objections and shall be foreclosed from making any

3

objections, whether by appeal or otherwise, to the

4

settlement.

5

in any way the approval of the terms and conditions of

6

the Settlement Agreement or the court’s final approval

7

order except by filing and serving written objections in

8

accordance with the provisions of the Settlement

9

Agreement.

No class member shall be entitled to contest

Any settlement member who fails to object in

10

the manner prescribed shall be deemed to have waived and

11

shall be foreclosed forever from raising any objections

12

to the settlement.

(Id. ¶ 37.)

Settlement Amount:

Shred-it has agreed to pay a gross

13

(5)

14

settlement amount of $250,000.

15

up to $80,000 in attorneys’ fees, subject to court

16

approval, and a Settlement Fund of $170,000.

17

Settlement Fund shall be used to satisfy the claims of

18

all participating class members, class counsel’s

19

litigation expenses, named plaintiff’s incentive award,

20

and settlement administration costs.

21

(6)

That payment consists of

The

(See id. ¶¶ 20-26.)

Attorney’s Fees, Costs, and Plaintiff’s Incentive Award:

22

Shred-it has agreed to pay class counsel up to $80,000 as

23

reasonable attorneys’ fees.

24

approved by the court shall not increase the net

25

Settlement Fund, but shall only result in less

26

compensation from Shred-it.

27

apply to the court for litigation costs not to exceed

28

$5,000, class administration costs not to exceed $31,000,
20

Any attorneys’ fees not

Class counsel will also

1

and an incentive award for plaintiff of $5,000.

2

amounts will be satisfied from the Settlement Fund,

3

reducing the net amount available for distribution to

4

class members.

5

(7)

These

(See id. ¶¶ 4-5, 11, 21, 22.)

Settlement Distribution:

After being reduced by the

6

amount of plaintiff’s incentive award, litigation costs,

7

and administration costs, the remaining Settlement Fund

8

will be distributed pro rata in the form of a check to

9

each class member who did not validly and timely opt out

10

of the settlement.

11

from the date on which checks are mailed to negotiate

12

their checks.

13

the Settlement Fund after distributing the net Settlement

14

Fund proceeds and after the 180-day period for

15

negotiating checks will constitute a cy pres fund which

16

will be donated to a mutually agreed upon and non-

17

controversial charity, approved by the court that serves

18

interests that are aligned with those of the settlement

19

class.

20

(8)

Class members shall have 180 days

Any uncashed settlement compensation from

Release:

(Id. ¶ 22, § D-E.)
Class members who participate in the settlement

21

agree to “fully and forever release, waive, acquit, and

22

discharge . . . any and all claims that the Settlement

23

Class has arising out of or relating directly or

24

indirectly in any manner whatsoever to the facts alleged

25

in the Action.”

26

and all claims under 15 U.S.C. § 1681b(b)(2)(A) of the

27

FCRA and any parallel state or common law claims.”

28

¶ 28.)

This includes but is not limited to “any

(Id.

In addition, plaintiff agrees to discharge Shred21

1

it from any and all claims plaintiff has by reason of

2

“any cause, matter or thing whatsoever . . . including

3

both known and unknown and suspected and unsuspected

4

claims and causes of action.”

5

not apply, however, to any valid worker’s compensation

6

claims or any claims asserted on or before November 25,

7

2014, against Shred-it.

Plaintiff’s release does

(Id. ¶ 29.)

8

2. Preliminary Determination of Adequacy

9

At the preliminary stage, “the court need only

10

‘determine whether the proposed settlement is within the range of

11

possible approval.’”

12

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

13

This generally requires consideration of “whether the proposed

14

settlement discloses grounds to doubt its fairness or other

15

obvious deficiencies, such as unduly preferential treatment of

16

class representatives or segments of the class, or excessive

17

compensation of attorneys.”

18

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

19

Cal. June 13, 2006)).

20

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

21

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

22

then turn to the substantive terms of the agreement.

23

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

24

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

25

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

26

and a substantive component.”).

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

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

Courts often begin by examining the

See, e.g.,

27

a. Negotiation of the Settlement Agreement

28

Plaintiff’s counsel states that the settlement
22

1

agreement is the result of arms-length negotiations.

2

at 18-19.)

3

parties entered into the agreement at the same time that Shred-it

4

had a pending motion to dismiss plaintiff’s claims.

5

10.)

6

case was informed by the time and expense that both sides would

7

incur in the course of further litigation, as well as the

8

substantial uncertainty of recovery posed by this court’s recent

9

rejection of a nearly identical claim brought in a case involving

(Pl.’s Mem.

This assertion is supported by the fact that the

(See id. at

Counsel further declares that the decision to settle the

10

different parties.

11

5, 7.); see Syed, 2014 WL 5426862, at *3-4.

12

considerations, the court sees no reason to second-guess

13

counsel’s determination that settlement is in the best interest

14

of the class.

15

942 (N.D. Cal. 2013) (holding that a settlement reached after

16

informed negotiations “is entitled to a degree of deference as

17

the private consensual decision of the parties” (citing Hanlon,

18

150 F.3d at 1027)).

19

(Pl.’s Mem. at 18, 21; Dion-Kindem Decl. ¶¶
In light of these

See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939,

b. Amount Recovered and Distribution

20

In determining whether a settlement agreement is

21

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

22

of expected recovery against the value of the settlement offer.

23

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

24

consideration of the uncertainty class members would face if the

25

case were litigated to trial.

26

*14.

27
28

This inquiry may involve

See Ontiveros, 2014 WL 3057506, at

Here, 15 U.S.C. § 1681n provides for recovery of “not
less than $100 and not more than $1,000” in statutory damages,
23

1

plus any punitive damages.

2

average recovery under the terms of the settlement is expected to

3

be approximately $45.55 per class member.

4

While this amount is lower than the minimum potential statutory

5

damages available in § 1681n, “it is well-settled law that a

6

proposed settlement may be acceptable even though it amounts to

7

only a fraction of the potential recovery that might be available

8

to the class members at trial.”

9

Plaintiff’s counsel states that this amount is fair and

See 15 U.S.C. 1681n(a)(1)(A).

The

(See Pl.’s Mem. at 6.)

DIRECTV, 221 F.R.D. at 527.

10

reasonable in light of the court’s rejection of an identical

11

claim in Syed.

12

(Pl.’s Mem. at 6 (citing Syed, 2014 WL 5426862).

Turning to the distribution of this amount, Simpluris

13

Inc., the settlement administrator, is an experienced claims

14

administrator who has been appointed by the court in prior cases.

15

See, e.g., Ontiveros, 2014 WL 3057506, at *14; Adoma v. Univ. of

16

Phoenix, Inc., 913 F. Supp. 2d 964, 971–72 (E.D. Cal. 2012)

17

(Karlton, J.).

18

costs of up to $31,000 is slightly higher than the fees awarded

19

to it in other cases.

20

(approving a $19,000 fee for Simpluris to manage 1,725-member

21

class); Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482,

22

484 (E.D. Cal. 2010) (approving a $25,000 fee for a settlement

23

administrator that managed 177 class members).

24

case involves a much larger class--estimated by Shred-it at 3,328

25

members, (see Pl.’s Mem. at 6)--which justifies a higher cost of

26

settlement administration.

27

litigation costs of no more than $5,000 are lower than many other

28

cases, helping to minimize the amount deducted from the common

The settlement’s cap on class administration

See, e.g., Adoma, 913 F.Supp.2d at 985

However, this

Moreover, class counsel’s claimed

24

1

fund available for distribution to class members.

2

Ontiveros, 2014 WL 3057506, at *14 (preliminarily approving

3

claimed expenses and costs of $50,000); Hartless v. Clorox Co.,

4

273 F.R.D. 630, 646 (S.D. Cal. 2011) (awarding $111,002.22 in

5

costs); Loretz v. Regal Stone, Ltd., 756 F. Supp. 2d 1203, 1218

6

(N.D. Cal. 2010) (awarding a total of over $70,000 in costs to

7

two law firms acting as class counsel).

8

concludes that the amount recovered for class members and the

9

method of distribution “fall[] within the range of possible

10

approval.”

11

See, e.g.,

The court therefore

See Tableware, 484 F. Supp. 2d at 1079.
c. Attorneys’ Fees

12

If a negotiated class action settlement includes an

13

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

14

overall context of the settlement.

15

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

16

455.

17

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

18

parties have already agreed to an amount.”

19

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

20

Knisley v. Network Assocs.,

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

In re Bluetooth

“Under the ‘common fund’ doctrine, ‘a litigant or a

21

lawyer who recovers a common fund for the benefit of persons

22

other than himself or his client is entitled to a reasonable

23

attorney’s fee from the fund as a whole.”

24

969 (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)).

25

The Ninth Circuit has approved two methods of assigning

26

attorneys’ fees in common fund cases: the “percentage of the

27

fund” method and the “lodestar” method.

28

Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (citing In re Wash.
25

Staton, 327 F.3d at

Vizcaino v. Microsoft

1

Pub. Power Supply Sys. Litig., 19 F.3d 1291, 1295–96 (9th Cir.

2

1994)).

3

counsel a percentage of the common fund recovered for the class.

4

Id.

5

fund cases, where “the benefit to the class is easily

6

quantified.”

7

approved a “benchmark” percentage of twenty-five percent, and

8

courts may adjust this figure upwards or downwards if the record

9

shows “‘special circumstances’ justifying a departure.”

Under the percentage method, the court may award class

The percentage method is particularly appropriate in common

Bluetooth, 654 F.3d at 942.

The Ninth Circuit has

Id.

10

(quoting Six (6) Mexican Workers v. Ariz. Citrus Growers, 904

11

F.2d 1301, 1311 (9th Cir. 1990)).

12

Under the lodestar method, the court determines an

13

appropriate attorney’s fee by multiplying the number of hours

14

reasonably expended by class counsel by a reasonable hourly rate.

15

Id. at 941.

16

downwards based on a “host of ‘reasonableness’ factors.”

17

942 (citing Hanlon, 150 F.3d at 1029).

18

is most often applied in class actions brought under fee-shifting

19

statutes or those where the relief obtained is not easily

20

monetized, it may be used in common fund cases as well.

21

941–42.

22

“crosscheck” the reasonableness of a percentage award.

23

290 F.3d at 1050–51.

The court may then adjust the lodestar upwards or
Id. at

While the lodestar method

Id. at

24

In addition, the lodestar method may be used to
Vizcaino,

Here, the Settlement Agreement provides for attorneys’

25

fees of up to $80,000.

(See Settlement Agreement ¶¶ 20-22.)

26

These fees “shall be paid separately by Shred-it to Class

27

Counsel.”

28

application for attorney’s fees, but “[a]ny fees not approved by

(Id. ¶ 22, § B.)

Shred-it has agreed not to oppose an

26

1

the Court shall not increase the Net Settlement Fund, but shall

2

only benefit Shred-it.”

3

arrangement to mean that only $170,000 is available for

4

distribution to class members and that plaintiff’s counsel seeks

5

a separate fee award directly from Shred-it.

(Id.)

The court understands this

6

Plaintiff’s counsel states in a declaration that

7

“Plaintiff’s counsel will only be seeking 25% of the gross

8

settlement, or $62,500.”

9

11.)

(Pl.’s Mem. at 22; Dion-Kindem Decl. ¶

He further states that “given that this is a settlement

10

with a common-fund, a fee request of 25%, or $62,500 is fair and

11

reasonable.”

12

court assumes counsel calculated this percentage in fees based on

13

the $250,000 in total liability that Shred-it faces under the

14

Settlement Agreement.

15

will pay the amount of $250,000 in settlement of all claims

16

asserted against it in this Action.”).)

17

(Pl.’s Mem. at 23; Dion-Kindem Decl. ¶ 16.)

The

(See Settlement Agreement ¶ 21 (“Shred-it

The court has doubts about the appropriateness of

18

justifying a fee award using a percentage-of-the-fund calculation

19

based on this amount.

20

establish a common fund of $250,000.

21

“$250,000 is the total amount of money Shred-it will pay pursuant

22

to this settlement,” (id. ¶ 20), and it arrives at that number by

23

combining the $170,000 available to class members with class

24

counsel’s right to be paid a maximum of $80,000 from Shred-it.

25

Normal percentage-of-the-fund calculation arrives at an award

26

based on the amount available for distribution to class members.5

27
28

5

The Settlement Agreement does not
It states only that

The arrangement devised by plaintiff’s counsel and
Shred-it differs from normal common fund procedure. “Under
27

1

See Staton, 327 F.3d at 967-69.

2

troubling to the court that plaintiff’s counsel bases his

3

percentage-of-the-fund calculation in part on an amount that

4

Shred-it may never pay.

5

(“Any fees not approved by the Court shall not increase the Net

6

Settlement Fund, but shall only benefit Shred-it.”).)

7

funds earmarked for other purposes may distort the reasonableness

8

of a fee award using the percentage method.6

9

It is therefore particularly

(See Settlement Agreement ¶ 22, § B

Including

If the court accepts plaintiff counsel’s framing, the

10

maximum attorneys’ fee award of $80,000 is approximately thirty-

11

two percent of $250,000.

12

against the amount available to for class members, however, an

13

award of $80,000 represents approximately forty-seven percent of

14

the amount recovered.

15

the amount plaintiff’s counsel declares he will seek.

16

request of $62,500 is twenty-five percent of $250,000, but it is

17

approximately thirty-seven percent of $170,000.

18

If the court measures this award

The same disparity appears with regard to
His

Having noted its reservations, the court need not make

19

a final decision on the fee award in this Order.

20

regular common fund procedure, the parties settle for the total
amount of the common fund and shift the fund to the court’s
supervision. The plaintiffs’ lawyers then apply to the court for
a fee award from the fund.” Staton, 327 F.3d at 969. “The court
then determines the amount of attorney’s fees that plaintiffs’
counsel may recover from this fund, thereby diminishing the
amount of money that ultimately will be distributed to the
plaintiff class.” Id. (quoting Florin v. Nationsbank of Georgia,
N.A., 34 F.3d 560, 563 (7th Cir. 1994)).

21
22
23
24
25
26
27
28

6

See Murillo,

The Manual For Complex Litigation cautions judges to
beware of agreements that “calculat[e] the fee based on the
allocated settlement funds, rather than the funds actually
claimed by and distributed to class members.” Manual For Complex
Litig., Fourth, § 21.61 (2004).
28

1

266 F.R.D. at 480 (granting preliminary approval of the

2

settlement despite concerns that the proposed fee award was

3

unreasonable).

4

evidence to justify the amount he intends to request, such as

5

documentation of the amount of hours worked or a reasonable

6

hourly rate for a lawyer of his experience in the region.

7

Bluetooth, 654 F.3d at 942.

8

preliminarily approve the fee award on the understanding that

9

plaintiff’s counsel must demonstrate, on or before the date of

Plaintiff’s counsel has not yet presented

See

Accordingly, the court will

10

the final Fairness Hearing, that the proposed award is reasonable

11

in light of the court’s concerns.

12

unable to do so, the court will be forced to reduce fees to a

13

reasonable amount or to deny final approval of this settlement.

14

See Vizcaino, 290 F.3d at 1047; Alberto, 252 F.R.D. at 667–68.

15

In the event that counsel is

IT IS THEREFORE ORDERED that plaintiff’s motion for

16

preliminary certification of a conditional settlement class and

17

preliminary approval of the class action settlement be, and the

18

same hereby is, GRANTED.

19

IT IS FURTHER ORDERED that:

20

(1)

the following class be provisionally certified for

21

the purpose of settlement:

22

whom, from June 16, 2009, through June 16, 2014,

23

Shred-it procured or caused to be procured a

24

consumer report for employment purposes who signed

25

an authorization form, in electronic or written

26

form, allowing for consumer reports to be obtained

27

which included a liability release or other

28

language of any kind other than the authorization
29

All individuals as to

1

and disclosure permitted under the Fair Credit

2

Reporting Act, 15 U.S.C. 1681b(b)(2);

3

(2)

the proposed settlement is preliminarily approved

4

as fair, just, reasonable, and adequate to the

5

members of the settlement class, subject to

6

further consideration at the final Fairness

7

Hearing after distribution of notice to members of

8

the settlement class;

9

(3)

10

for purposes of carrying out the terms of the
settlement only:

11

(a)

plaintiff Michael Kirchner is appointed

12

as the representative of the settlement

13

class and is provisionally found to be

14

an adequate representative within the

15

meaning of Rule 23;

16

(b)

The Dion-Kindem Law Firm and The

17

Blanchard Law Group, APC are

18

provisionally found to be a fair and

19

adequate representatives of the

20

settlement class and are appointed as

21

class counsel for the purposes of

22

representing the settlement class

23

conditionally certified in this Order;

24

(4)

25
26

Simpluris, Inc. is appointed as the settlement
administrator;

(5)

the form and content of the proposed Notice of

27

Settlement and Release of Claims Form are

28

approved, except to the extent that those forms
30

1
2

reflect dates modified by this Order;
(6)

no later than five (5) days from the date this

3

Order is signed, Shred-it’s counsel shall provide

4

the names and contact information of all

5

settlement class members to Simpluris;

6

(7)

no later than seven (7) days from the date this

7

Order is signed, Simpluris shall mail the notice

8

form to all members of the settlement class;

9

(8)

no later than sixty (60) days from the date this

10

Order is signed, any member of the settlement

11

class who intends to object to, comment upon, or

12

opt out of the settlement shall mail written

13

notice of that intent to Simpluris pursuant to the

14

instructions in the Notice of Settlement and

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Release of Claims Form;

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(9)

a final Fairness Hearing shall be held before this

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court on Monday, July 13, 2015, at 2:00 p.m. in

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Courtroom 5 to determine whether the proposed

19

settlement is fair, reasonable, and adequate and

20

should be approved by this court; to determine

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whether the settlement class’s claims should be

22

dismissed with prejudice and judgment entered upon

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final approval of the settlement; to determine

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whether final class certification is appropriate;

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and to consider class counsel’s applications for

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attorneys’ fees, costs, and an incentive award to

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plaintiff.

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Fairness Hearing without further notice to the

The court may continue the final

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1
2

members of the class;
(10) no later than twenty-eight (28) days before the

3

final Fairness Hearing, class counsel shall file

4

with this court a petition for an award of

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attorneys’ fees and costs.

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responses to the petition shall be filed no later

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than fourteen (14) days before the final Fairness

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Hearing.

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objections no later than seven (7) days before the

10
11

Any objections or

Class counsel may file a reply to any

final Fairness Hearing;
(11) no later than twenty-eight (28) days before the

12

final Fairness Hearing, class counsel shall file

13

and serve upon the court and Shred-it’s counsel

14

all papers in support of the settlement, the

15

incentive award for the class representative, and

16

any award for attorneys’ fees and costs;

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(12) no later than twenty-eight (28) days before the

18

final Fairness Hearing, Simpluris shall prepare,

19

and class counsel shall file and serve upon the

20

court and Shred-it’s counsel, a declaration

21

setting forth the services rendered, proof of

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mailing, a list of all class members who have

23

opted out of the settlement, a list of all class

24

members who have commented upon or objected to the

25

settlement, and copies of any forms received;

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(13) any person who has standing to object to the terms

27

of the proposed settlement may appear at the final

28

Fairness Hearing in person or by counsel and be
32

1

heard to the extent allowed by the court in

2

support of, or in opposition to, (a) the fairness,

3

reasonableness, and adequacy of the proposed

4

settlement, (b) the requested award of attorneys’

5

fees, reimbursement of costs, and incentive award

6

to the class representative, and/or (c) the

7

propriety of class certification.

8

opposition at the final Fairness hearing, a person

9

must, no later than sixty (60) days from the date

To be heard in

10

this Order is signed, (a) serve by hand or through

11

the mails written notice of his or her intention

12

to appear, stating the name and case number of

13

this action and each objection and the basis

14

therefore, together with copies of any papers and

15

briefs, upon class counsel and counsel for Shred-

16

it, and (b) file said appearance, objections,

17

papers, and briefs with the court, together with

18

proof of service of all such documents upon

19

counsel for the parties.

20

objections shall be served by hand or through the

21

mails on the objectors, or on the objector’s

22

counsel if any there be, and filed with the court

23

no later than fourteen (14) calendar days before

24

the final Fairness Hearing.

25

optional replies no later than seven (7) calendar

26

days before the final Fairness Hearing in the same

27

manner described above.

28

member who does not make his or her objection in
33

Responses to any such

Objectors may file

Any settlement class

1

the manner provided herein shall be deemed to have

2

waived such objection and shall forever be

3

foreclosed from objecting to the fairness or

4

adequacy of the proposed settlement, the judgment

5

entered, and the award of attorneys’ fees, costs,

6

and an incentive award to the class representative

7

unless otherwise ordered by the court.

8

Dated:

March 31, 2015

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