Fraser v. ASUS Computer International et al

Filing 98

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT AND AWARDING LITIGATION EXPENSES by Judge William Alsup [granting 79 Motion for Settlement]. (whasec, COURT STAFF) (Filed on 7/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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COLIN FRASER, individually and on
behalf of all others similarly situated,

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Plaintiff,

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No. C 12-00652 WHA
v.

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ORDER GRANTING FINAL
APPROVAL OF CLASS
ACTION SETTLEMENT
AGREEMENT AND
AWARDING
LITIGATION EXPENSES

ASUS COMPUTER INTERNATIONAL,
a California Corporation, and ASUSTEK
COMPUTER, INC., a Taiwanese
Corporation,
Defendants.

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/

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INTRODUCTION

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In this action brought on behalf of owners of tablet computers, plaintiff moves for final

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approval of the class action settlement agreement. For the reasons stated below, the motion is

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GRANTED.

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STATEMENT

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Plaintiff Colin Fraser brought this action against Asus Computer International, Inc. and

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Asustek, Inc. on behalf of himself and all other United States residents who purchased an Asus

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Transformer Prime EE TF201 Tablet computer. The facts have been set forth in previous orders

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and need not be repeated here (see Dkt. No. 61). Briefly, the complaint alleges that the TF201

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tablet contains a defect that resulted in a loss or reduction in global positioning system (“GPS”)

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and wireless internet (“WiFi”) functionality.

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Following denial of the first motion for preliminary approval of the settlement agreement,

Jacqueline Scott Corley. By order dated February 19, 2013, plaintiff’s second motion for

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certification of a class for settlement purposes and preliminary approval of a revised class action

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settlement was granted (Dkt. No. 72). Class counsel were directed to give notice to class

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members and the fairness hearing was set for July 11. The revised settlement agreement

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provided that class members could submit a claim form to become part of the settlement class

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and that failure or refusal to do so would not compromise or affect the individual’s rights.

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That is, consumers wishing to be part of the class and receive class benefits would be required

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to affirmatively submit a claim form. The notice set out the terms of the proposed settlement

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For the Northern District of California

the parties continued settlement discussions under the supervision of Magistrate Judge

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United States District Court

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and informed class members of their right to appear at the fairness hearing and to object to the

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proposed settlement.

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Over the course of the claim period 11,409 class members submitted a claim form.

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Two objections were received and eight individuals were allowed to submit a late claim form.

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At the fairness hearing on July 11, no class members appeared.

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ANALYSIS

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1.

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The second proposed settlement agreement only extinguishes the claims of those class

THE PROPOSED SETTLEMENT AGREEMENT.

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members who submit a claim form, thereby opting in to the settlement class. The principal

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portions of this settlement agreement are summarized below:

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The class includes all United States residents who purchased a

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TF201 tablet computer and who have not previously returned the device for a full

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refund.

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2.

Only individuals who submit a claim form are included in the

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settlement class. The legal rights of class members who do not submit a claim

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form are not affected.

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3.

Settlement class members will receive a seventeen dollar cash

payment and an add-on device to enhance the tablet’s GPS reception (“dongle”).
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4.

The full class notice and claim form were made available on Asus’

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website and social media pages. A shorter form of notice was sent directly to

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each class member’s individual TF201 device.

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Although seventeen dollars and a dongle is a low amount in comparison to the original purchase

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price of $500, the proposed settlement agreement is fair, reasonable and adequate, all the more

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so because those who objected and refrained from submitting a claim form are still free to bring

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their own suit. The reasonableness of the settlement is underscored by the overwhelming ratio of

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claims filed to objections (11,409 to 2). In fact, eight individuals requested to be included in the

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settlement even after the deadline for submitting claims forms had passed (Dkt. No. 93).
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For the Northern District of California

United States District Court

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FILED OBJECTIONS.

Objections were filed to the proposed settlement agreement by Kobi Reiter and

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Bill Adams. They assert that the compensation offered to class members is too low.

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Settlement approval, however, depends not on whether the settlement could have been

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better but on whether it is “fair, adequate and free from collusion.” Hanlon v. Chrysler Corp.,

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150 F.3d 1011, 1027 (9th Cir. 1998). As was noted above, the large number of class members

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wishing to participate in the settlement is evidence that the settlement is reasonable and should

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be approved.

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During oral argument, counsel for Asus represented to the Court that objectors

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Adams and Reiter have not submitted proper claim forms in addition to submitting objections.

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If objector(s), now aware their objections have been overruled, wish to benefit from the

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settlement (and be bound by the release), said objector(s) may submit a proper claim form

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within fourteen calendar days of this order, namely July 25, 2013. If no such claim form has

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been submitted or is submitted by said deadline, then said objector may bring his own lawsuit,

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subject to the statute of limitations and any other defenses.

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Having considered all relevant submissions and all statements made at the fairness

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hearing, this order finds that the settlement is fair, reasonable and adequate as required by

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FRCP 23(e)(2). Given that the settlement agreement only binds those class members who

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submit a claim form, this order also finds that the form and manner of notice was reasonable
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and adequate, satisfying the requirements of due process and FRCP 23(e)(1). Accordingly, the

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joint motion for final approval of the settlement agreement is GRANTED and the settlement is

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APPROVED. Class members who filed a claim form are bound by the settlement and are

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enjoined from bringing, joining or continuing to prosecute any action asserting the released

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claims. Counsel shall file on the public docket a final list of the names of the class members

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bound by the settlement, and shall file under seal a list of their names and identifying

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information. Jurisdiction over matters relating to the interpretation, implementation,

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effectuation, and enforcement of the settlement shall be retained for a period of four years from

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the date of this order.
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For the Northern District of California

United States District Court

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Parties’ counsel have agreed to waive their right to apply for attorney’s fees.

LITIGATION EXPENSES AND INCENTIVE AWARDS.

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The agreement provides, however, for recovery of the actual out-of-pocket expenses of

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plaintiff's counsel in the amount of $45,000. The lion’s share of this amount is the cost of

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the jointly retained expert, Dr. Dominique Hanssens. Other expenses include travel expenses,

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filing fees, photocopying and telephone charges. Because the expenses are not taken from the

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class fund and are reasonable in light of the total amount recovered by the class, litigation

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expenses to counsel in the amount of $45,000 are GRANTED.

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The settlement agreement also provides for a $500 stipend to named plaintiff Colin

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Fraser and a $200 stipend to three cooperating class members, Nicholas Balog, Bill Vance and

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Herbert Vieth. Plaintiff submits that these stipends reflect a reasonable compensation for the

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effort expended by these plaintiffs on the proceedings. Named plaintiff Colin Fraser reviewed

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the original complaint and sat for a deposition for roughly three hours. The cooperating class

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members produced documents to class counsel, discussed the amended complaint and settlement

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options with counsel and stood ready to be deposed.

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Incentive awards are discretionary and, when allowed, “are intended to compensate

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class representatives for work done on behalf of the class.” Rodriguez v. West Publishing Corp.,

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563 F.3d 948, 958 (9th Cir. 2003). Given, however, the proportion of the requested stipends to

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the amount recovered by individual class members — $500 and $200, respectively, to $17 —
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a downward adjustment of the stipends is warranted. Upon review of the declarations of named

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plaintiff and the cooperating class members, this order finds that they may be awarded a $100

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and $50 stipend, respectively. To that extent, plaintiff’s motion for stipend payments to

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cooperating class members is GRANTED.

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CONCLUSION

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For the reasons stated above, the motion for final approval of the class settlement

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agreement is GRANTED and the settlement is APPROVED. Pursuant to Section IV of the

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settlement agreement, all claims asserted in this action are DISMISSED ON THE MERITS as to

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the class members participating in this settlement. Counsel shall file a final list of those class
members bound by the settlement as set forth above. Those persons fully release and discharge

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For the Northern District of California

United States District Court

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Asus and its affiliates from any and all liabilities on claims which they have or may claim now

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or in the future to have, that were or could have been alleged or asserted against Asus or any of

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its affiliates, relating to any claims that the TF201 suffers from GPS and WiFi strength or

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reception issues and any alleged misrepresentation or failure to disclose concerning such GPS

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or WiFi issues. Released claims shall not include personal injury claims or claims to enforce

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the settlement. Jurisdiction over matters relating to the enforcement of the settlement shall be

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retained up to and including July 11, 2017. The motion for litigation expenses in the amount of

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$45,000 is GRANTED. Plaintiff Colin Fraser is awarded an extra stipend in the amount of $100.

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Class members Nicholas Balog, Bill Vance and Herbert Vieth are each awarded an extra stipend

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in the amount of $50. Class counsel shall immediately give notice of this order to objecting class

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members Kobi Reiter and Bill Adams.

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IT IS SO ORDERED.

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Dated: July 11, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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