Newton v. American Debt Services, Inc et al

Filing 330

ORDER Re Supplemental Briefing. Signed by Judge Edward M. Chen on 11/30/2015. (emcsecS, COURT STAFF) (Filed on 11/30/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

HEATHER L NEWTON,
Plaintiff,

8

AMERICAN DEBT SERVICES, INC, et al.,

For the Northern District of California

United States District Court

Docket No. 322

Defendants.

11
12

ORDER RE SUPPLEMENTAL
BRIEFING

v.

9
10

Case No. 11-cv-03228-EMC

The Court has reviewed Plaintiff’s motion for preliminary approval. Having reviewed the

13

motion, the Court hereby orders the parties to provide a joint supplemental brief regarding the

14

following issues. The supplemental briefing shall be filed no later than December 7, 2015.
Attorneys’ Fees

15

1.

16

Plaintiffs are asking for a fee award of 46% of the total settlement fund. Plaintiffs should

17

provide specific, non-conclusory information as to why a departure from the 25% benchmark is

18

appropriate (e.g., how the issues in this case were particularly difficult, complex, or novel). See,

19

e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-48 (9th Cir. 2002). To assess the fee

20

request, even for purposes of preliminary approval only, the Court is in need of information as to

21

the lodestar claimed – i.e., the number of hours incurred in the case and the hourly rates claimed.

22

Plaintiffs’ attorneys shall file with this Court, ex parte and under seal, one (1) declaration that

23

states the total number of hours worked on this litigation, and which breaks the number of hours

24

down by task (e.g., “Initial Case Investigation,” “Settlement Negotiations and Mediation,” etc.).

25

Counsel shall attach their actual time records to the declaration. The declaration and associated

26

records shall be filed with the Court no later than December 7, 2015. The parties should also

27

ensure that the fee motion is filed and available on the Class Administrator’s website at least

28

twenty-one (21) days before objections to the proposed settlement are due.

1

2.

Second Amended Complaint

2

Based on the allegations of the Second Amended Complaint, Plaintiffs demanded “an

3

additional award of $5,000 for each class member who is a senior citizen or disabled person as

4

defined in subdivisions (f) and (g) of Civil Code section 1761.” Docket No. 206, Second

5

Amended Complaint, Prayer for Relief ¶ 6. The parties should provide the Court with information

6

as to how many class members are elderly and/or disabled.

7

3.

8

Under the settlement agreement, Plaintiffs and the class release all claims under section

9

Release of Claims

1542 of the California Civil Code, which provides:

10

A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.

12
For the Northern District of California

United States District Court

11

13
14
15

Cal. Civ. Code § 1542; Settlement Agreement § I. A19.
Plaintiffs should cite an authority to address the Court’s concern as to whether the release
under the Settlement Agreement is not overly broad.

16

4.

Exclusion

17

Plaintiff’s Motion for Approval of Class Action Settlement states that “[i]t is not planned

18

that Class Members will be given a second opportunity to exclude themselves.” Docket No. 322

19

at 13. Plaintiffs should explain why the parties are foreclosing this opportunity.

20

5.

21

If the parties have any responses to objections from class members, the parties should file

22

Responses to Objections from Class Members

their responses fourteen (14) days before the hearing.

23

6.

24

The parties should address when CAFA notice was given. See 28 U.S.C. § 1715(b).

25

7.

26
27
28

CAFA Notice

Class Notice (Exhibit 1 of Settlement Agreement)
a.

Terms of the Settlement

On the first page of the notice, there should be a short statement regarding the average
recovery per class member. It must be bolded.
2

1
2
3
4
5
6
7

b.

Attorneys’ fees

On the first page of the notice, there should be a short statement regarding the attorneys’
fees. The attorneys’ fees should be in bold.
c.

Release

The terms of release must be included in the notice.
d.

Options

Section “Your Rights and Options” lays out the options for class members. That section

8

should instruct class members who wish to exclude themselves from the settlement to send a letter

9

to the settlement administrator, setting forth their name and a statement that they request exclusion

10

12
For the Northern District of California

United States District Court

11

13
14
15
16
17
18
19
20
21

22

from the class and do not wish to participate in the settlement.
e.

Contact Information for the Claims Administrator

The parties should provide additional contact information for the Claims Administrator –
e.g., an e-mail address and a fax number.
f.

Instructions on How to Access PACER

The parties must include detailed, easy to understand instructions on how to access the
case docket via PACER.
g.

Section 5

The parties must remove the sentence that states “The Class Representative and the
attorneys think the settlement is best for everyone who paid fees to the Defendants.”
h.

Section 12

The parties must remove the sentence that states “[y]ou do not have to do anything now if
you want to keep the possibility of getting money from this lawsuit.”

23
24

IT IS SO ORDERED.

25
26
27
28

Dated: November 30, 2015
______________________________________
EDWARD M. CHEN
United States District Judge
3