Garner v. State Farm Mutual Automobile Insurance Company

Filing 283

FINDINGS OF FACT AND CONCLUSIONS OF LAW in support of Final Approval of Class Action Settlement. Signed by Judge Claudia Wilken on 4/22/2010. (cwlc2, COURT STAFF) (Filed on 4/22/2010)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ARNESHA M. GARNER, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. CASE NO. CV 08 1365 CW (EMC) FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 Having considered all motions, memoranda and submissions made in connection with the proposed class action settlement agreement, together with all of its Exhibits attached thereto, dated December 30, 2009, (the Agreement), and the record of these proceedings, the representations, argument, and recommendation of counsel for the moving parties, and the requirements of law; the Court hereby makes the following findings of fact and conclusions of law in support of its Final Order and Judgment approving the proposed Settlement.1 FINDINGS OF FACT 1. From approximately March 12, 2007 until approximately February 18, 2008, State Farm California claims representatives used Total Loss Comparable Vehicle Valuation Reports, provided by Mitchell International, Inc. (Mitchell), in connection with their handling of vehicle physical damage claims by State Farm California insureds that used a Projected Sold Adjustment and/or Age of Ad Adjustment. State Farm has also identified 57 Total Loss Comparable Vehicle Valuation Reports that Mitchell provided to State Farm California claim representatives in San Diego prior to March 12, 2007, the date when Mitchell became State Farm`s primary total loss vendor, which also included a Projected Sold Adjustment and Age of Ad Adjustment. Those State Farm insureds who received payments in connection with total loss vehicles pursuant to these 57 Total Loss Comparable Vehicle Valuation Reports are included in the Settlement Class for all purposes. 2. On March 10, 2008, Plaintiff filed the above-captioned Action seeking to recover for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) violation of California Business and Professions Code 17200 and (4) unjust enrichment. Plaintiff filed her First Amended Complaint on July 7, 2008. 3. Plaintiff alleged that State Farm, through its vendor Mitchell, violated Title 10 of California Code of Regulations 2695.8 (the Total Loss Regulation or TLR) by adjusting the asking prices of comparable vehicles used in Total Loss Comparable Vehicle Valuation Reports based on a computer generated prediction of what the comparable vehicles were 1 Capitalized terms not otherwise defined herein are as defined in the Agreement. 29 30 -1FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 projected to sell for and made additional adjustments to the comparable vehicles based on the time difference between when the comparable vehicles were advertised for sale and the date of the total loss for the vehicle being valued. Plaintiff also alleged that State Farm and Mitchell failed to adequately disclose the Projected Sale Price and Age of Ad adjustments in the valuation reports provided to the insureds. Plaintiff alleges that the total aggregate amount of Projected Sale Price and Age of Ad adjustments applied to the total loss claims of the Class is approximately $23,500,000. 4. State Farm denies the allegations of the Complaint and further alleges that (1) the TLR was not in effect during the relevant time frame, (2) the Total Loss Comparable Vehicle Valuation Reports used by State Farm during the relevant time frame complied with the TLR, (3) State Farm has complied with its contractual obligations to Plaintiff and other members of the Settlement Class in connection with its valuation of Total Loss Vehicles; and (4) State Farm made payments to Plaintiff and Settlement Class Members that reflected the actual cash values of their Total Loss Vehicles. 5. On April 14, 2008, State Farm made a Motion to Compel Contractual Appraisal and for a Stay Pending Appraisal. (Doc. 7.) 6. On June 30, 2008, this Court entered an order granting the motion to compel an appraisal filed by Defendant State Farm Mutual Automobile Insurance Company. This Court held that State Farm had the contractual right to demand an appraisal, and Plaintiff had the contractual obligation to proceed with the appraisal process. Pursuant to the terms of the contract, this was a precondition to Plaintiff`s filing a lawsuit. (Doc. 47, June 30, 2008 Order at 14-15.) This Court further found that the appraisal process provided for in State Farm`s insurance policy was not one-sided, was sanctioned by state statute and was not unconscionable. (Id. at 18-19.) 7. On November 20, 2008, State Farm made a Motion for Summary Judgment seeking a judicial determination that the TLR was not in effect during the relevant time frame. (Doc. 113.) On December 4, 2008, Plaintiff made a Cross-Motion for Summary Adjudication, -2FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 seeking a judicial determination that the TLR was in effect during the relevant time frame. (Doc. 127.) 8. On March 23, 2009, this Court entered an order denying State Farm`s motion for summary judgment and granting Plaintiff`s cross-motion for summary adjudication, holding that the TLR was in effect during the relevant time frame. (Doc. 159, March 23, 2009 Order at 17-19.) In its March 23, 2009 Order, this Court found that the California Department of Insurance (CDI) had informed Mitchell that the agency would be satisfied if Mitchell used the midpoint of the [DMV VLF Data] range in conducting [total loss] valuations. (Id. at 10.) The Court further found that the $200 dollar range of sales prices that can be derived from the DMV`s VLF codes constitute[d] sales price data that could be used by insurers as actual sales price data for comparable vehicles in performing total loss valuations pursuant to the TLR. The Court noted that the CDI takes the position that VLF data relates to actual sales prices,` and thus can be used to conduct valuations in accordance with the TLR, that CDI had indicated that the mid-range of the VLF Data could be used, and that the $200 [VLF] range . . . is suitable and is accepted by the agency in charge of enforcing the TLR. (Id. at 13.) 9. On September 10, 2009, Plaintiff moved for certification of the following class: All individuals insured by State Farm California under a State Farm private passenger vehicle policy between March 12, 2007 and February 18, 2008: (1) who received a first party total loss settlement or settlement offer based in whole or in part on the projected sold price` of comparable vehicles; and/or (2) whose settlement or settlement offer was reduced to account for the difference between the date on which a comparable vehicle was advertised for sale and the date of loss of the claimant`s vehicle (known as the age of ad` adjustment). (Docs. 193, 198.) State Farm filed its opposition to class certification on October 1, 2009. (Doc. 206.) 10. On October 23, 2009, after Plaintiff`s motion for class certification was fully briefed, the Parties engaged in a formal mediation before the Honorable Daniel Weinstein (Ret.) of JAMS in New York, NY. In anticipation of the mediation, the Parties submitted and exchanged written mediation briefs which highlighted the key remaining issues in this case and -3FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 clarified the relative strengths and weaknesses of the Parties` positions. During the week after the mediation, with the further capable assistance of Judge Weinstein, the Parties reached an agreement in principal. Over the next two months, the Parties worked together to finalize the terms of the Agreement, settlement notice, and other related documents. 11. On December 30, 2009, the Parties filed the Agreement with the Court and each moved for preliminary approval of the Agreement, with supporting memoranda and declarations. (Docs. 243, 244, 247, 248.) 12. On January 15, 2010, this Court granted Plaintiff`s and State Farm`s separate motions seeking preliminary approval of the Settlement Agreement. (Doc. 252.) By such Order, the Court certified the following Settlement Class: Any and all persons insured under a State Farm vehicle insurance policy who received a first party total loss comprehensive or collision payment on a claim administered in California, based in whole or in part on a Total Loss Comparable Vehicle Valuation Report that used a Projected Sold Adjustment and/or Age of Ad Adjustment. (a) State Farm means State Farm Mutual Automobile Insurance Company and/or State Farm Fire and Casualty Insurance Company. (b) Total Loss Comparable Vehicle Valuation Report means a report generated by a computerized system that values a Total Loss Vehicle by identifying comparable vehicles and making adjustments to either the asking or selling price of such vehicles in an attempt to determine the actual cash value of the Total Loss Vehicle at the time of loss. Total Loss Comparable Vehicle Valuation Reports do not include either appraisals or reports that use dealer quotes. (c) Projected Sold Adjustment means an adjustment to the asking price of comparable vehicles used in Total Loss Comparable Vehicle Valuation Reports provided by Mitchell to State Farm in California to reflect the price for which that comparable vehicle was projected to sell. 29 30 -4FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 (d) Age of Ad Adjustment means the adjustment to comparable vehicles used in Total Loss Comparable Vehicle Valuation Reports provided by Mitchell to State Farm in California, to account for depreciation of a vehicle between the time that it is listed for sale and the date of loss. (e) Total Loss Vehicle means a vehicle owned by a person within the Settlement Class that was determined by State Farm to be a total loss. (Id. at 2-3.) 13. 14. The Court appointed Arnesha M. Garner as Class Representative. (Id. at 4.) The Court appointed the following persons as Class Counsel: David M. Birka-White of Birka-White Law Offices, and Robert J. Nelson, of Lieff, Cabraser, Heimann & Bernstein, LLP. (Id.) 15. The Court also found that the Agreement was reached as a result of arms-length negotiations between the parties and was not the result of collusion. (Id. at 1.) The Court further found that the Agreement is fair, reasonable and adequate (id. at 4), and within the range of possible judicial approval. (Id.) 16. The Court appointed Rust Consulting, Inc. to act as Administrator of the Rust Consulting specializes in class action notification and claims Settlement. (Id. at 11.) administration, including telephone and web-based support, direct mail services, claims processing, and settlement fund distribution. Founded in 1976, Rust Consulting began its claims administration practice in 1989 and has extensive experience in class action matters, having provided services in class actions ranging in size from 100 to 100 million class members, and has provided notification and/or claims administration services for over 2,500 projects. (Decl. of Melissa D. Eisert, Doc. 264, 2.) 17. By separate order, the Court directed that certain changes be made to the proposed Settlement Notice. (Doc. 253.) The Court directed that the Administrator disseminate the Settlement Notice, as modified by this Court`s Order, in accordance with the Agreement and this Court`s Preliminary Approval Order. (Doc. 252 at 4-5.) -5FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 18. On January 20, 2010, the Parties Jointly filed a Notice of Revised Settlement Notice Pursuant to Court`s Order (Docket No. 253) and attached a revised Settlement Notice incorporating the Court`s revisions. (Doc. 254.) 19. The Notice Plan provided the best practicable notice to Settlement Class Members by: (i) requiring State Farm to provide a list of names, addresses, and claim numbers for all potential Settlement Class Members which may be readily identified by reference to State Farm`s internal documents; (ii) requiring the Administrator to take reasonable steps to ensure that the addresses are current, such as running that list through the National Change of Address database; and (iii) mailing each identified Settlement Class Member a copy of the proposed Notice. (See Agreement, Doc. 248, 5.1-5.3.) 20. The Agreement provides that within ten business days of the Court`s Order granting final approval of the Agreement and entry of Final Judgment in the case, State Farm will fund the Settlement with a total of $15 million. (Agreement, Doc. 248, 8.1.) The Settlement Class Members will be entitled to the entire balance of that amount after deducting the costs of notice, other administrative expenses, a court-approved award of attorneys` fees and expenses for proposed Class Counsel, and any amount awarded to Plaintiff. (Id. 9.1.) 21. Once the deductions have been made, State Farm will prepare a Distribution Plan, which will propose allocation of the remaining funds to each Settlement Class Member in proportion to the total combined dollar amount of the Projected Sold Adjustment and Age of Ad Adjustment on the Settlement Class Members` Subject Valuation Report. (Id. 9.2-9.4.) Class Counsel will have an opportunity to review and comment on the Distribution Plan. Once State Farm and Class Counsel agree that the Distribution Plan complies with the formula provided in the Agreement, the Distribution Plan will be provided to the Administrator and amounts provided for in the Distribution Plan will be distributed to the Settlement Class Members. (Id. 9.5.) The amount of distribution to each Settlement Class Member will vary depending on which adjustments were used in his or her Subject Valuation Report and the amount of those 29 30 -6FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 adjustments. The Parties estimate a distribution between $100 and $1,000 for most Settlement Class Members. 22. To ensure that funds are fully dispersed to the Class, the Agreement provides for a second proportional distribution of any amount reserved for administrative costs but unspent and uncashed settlement checks. If the amount remaining in the Settlement fund is too small to justify the expense of a second distribution, the remaining monies will be paid to agreed upon cy pres recipients. (Id. 9.7.) Moreover, the existence of opt-outs will not reduce the size of the Settlement fund. The Net Settlement Fund will be proportionately divided among those Class members who do not request to be excluded from the Settlement Class. (Id. 2.34, 9.2, 9.3.) Thus, all Settlement funds will be paid out; none will revert to State Farm. 23. The Agreement does not require the Settlement Class Member to take any action to be eligible for a distribution under the Agreement. All known Settlement Class Members who have not affirmatively opted out of the Settlement Class and are entitled to a distribution will receive a check in the mail. (Id. 6.3, 9.5.) 24. The Administrator will mail the payments in the proper amounts to the Class members using the same addresses used for distributing the Settlement notice (as modified by any address changes identified during the notice distribution process). Five days after the Settlement checks are sent, the Administrator will send a postcard reminder to Class members notifying them that they should have recently received a check. (Id. 9.5.) To the extent that any payments to Class members are returned with a forwarding address, the Administrator will re-send such payments to the new address indicated. For payments that are uncashed within 45 days, the Administrator will send reminder letters to the relevant Class members. For payments greater than $50 that are uncashed within 60 days, the Administrator will attempt to call the relevant Class members. Any payments that are undeliverable or otherwise uncashed within 90 days will, depending on the total amount of such uncashed payments, either be proportionally redistributed to those Class members who cashed their checks or become part of a cy pres fund to be distributed to the Volunteer Legal Services Program and Bay Area Legal Aid. (Id. 9.5-9.7.) -7FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 25. State Farm has also agreed under the Settlement that going forward in California, it will use any one or some combination of the following for comparable vehicles used by Mitchell (or any other total loss vendor) when preparing a Total Loss Comparable Vehicle Valuation Report for State Farm: (i) the high point of VLF Data obtained from the DMV (even though this Court has previously found that the DMV would actually permit using the lower midpoint of that data); (ii) actual sales prices from other sources compliant with the TLR; or (iii) the asking price of advertised vehicles (without a projected sold or age of ad adjustment). (Id. 11.1, 11.2.) 26. In exchange for the relief described above, the Agreement provides that Settlement Class Members generally release State Farm and certain other released parties (such as State Farm`s affiliated companies, employees, and vendors) from any and all claims arising out of or related to State Farm`s use of the Subject Valuation Reports. (Id. 12.1, 12.2.)2 27. In accordance with the Agreement and this Court`s orders, Rust Consulting obtained addresses for Settlement Class Members from State Farm, ran the list of addresses through the National Change of Address database and updated the list of addresses accordingly. Rust Consulting mailed the Settlement Notice (which included both an English and Spanish version) to 24,358 potential Settlement Class Members by first-class mail on February 9, 2010. (Decl. of Melissa D. Eisert, Doc. 260, 6-8.) 28. As of March 30, 2010, 768 of the more than 24,000 Settlement notices mailed by 65 of these notices were returned with a Rust Consulting were returned undeliverable. forwarding address from the United States Postal Service. Rust Consulting re-sent these notices to the new addresses indicated, and updated the addresses in the Class list accordingly. The addresses for the remaining returned notices (i.e., those returned without a forwarding address) were traced, and an additional 411 notices were mailed to updated addresses, and Rust Consulting updated the Class list accordingly. (Id. 9.) The description of the Agreement in paragraphs 18 through 26 is a summary only. Nothing herein is intended to alter or change the terms of the Agreement. 2 29 30 -8FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 29. Rust Consulting established, and continues to maintain, a toll-free number with an automated system providing information about the Agreement, with the ability to request copies of the Settlement notice or the Agreement and to speak with a live customer service representative. As of March 30, 2010, there had been 223 calls to Rust Consulting`s toll free number. 141 of those callers requested to speak with a live customer service representative. (Id. 10-11.) 30. Consistent with the Agreement and the Court`s Preliminary Approval Order, the Court approved Settlement Notice informed Settlement Class Members of their rights to: (a) request exclusion from the Settlement Class; and (b) object to, and/or comment regarding, the Agreement. Any person within the Class definition who submitted a timely request for exclusion shall be excluded from the Settlement Class and shall not be bound by the Agreement. Any Class member who does not request to be excluded may object to the Agreement and/or appear at the Fairness Hearing to comment regarding the Agreement by submitting a timely objection/notice of intent to appear. The deadline for submitting requests for exclusion and objections was March 26, 2010. (Doc. 252 at 5-6; Decl. of Melissa D. Eisert, Doc. 264, Ex. A.) 31. Class Counsel set up a toll-free number in order to receive calls from Class members. As of March 11, 2010, there were 20 voice messages left via Class Counsel`s toll-free number. Class Counsel returned all messages promptly. (Decl. of Robert J. Nelson, Doc. 258, 10.) 32. As of March 30, 2010, there were 101 requests for exclusion. (Id. 12.) While most opt-outs simply stated that they wished to be excluded from the class, without giving a reason (none was required), a few noted that they were opting out because they believed they had been treated fairly by State Farm. (Exhs. B-D to Decl. of Laura L. Goodman, Doc. 275.) 33. Only one Settlement Class Member objected to the proposed Settlement. (Decl. of Laura L. Goodman, Exh. A (Doc. 275.)). This objection has since been withdrawn. (Doc. 273.) 29 30 -9FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 34. On January 8, 2010, the Administrator, at the direction of State Farm`s counsel, sent both the Attorney General of the United States and the Commissioner of the California Department of Insurance a disk containing all of the information required under 28 U.S.C. 1715. (See Parks Decl., Doc. 265, 3-10.) 35. In addition, because potential Settlement Class Members also reside in other states, Rust Consulting, at the direction of State Farm`s counsel, also sent notice to the insurance commissioners in forty-two other states where potential Settlement Class Members may reside. (Id. 4.) In addition, each state commissioner received a list of the potential Settlement Class Members who may currently reside in their respective states, together with each Settlement Class Member`s estimated proportionate share of the Settlement. (Id. 7.) 36. On January 26, 2010, Rust Consulting, at the direction of State Farm`s counsel, served on the appropriate state and federal officials a supplemental notice indicating that this Court had issued its Preliminary Approval Order. (Id. 8.) The notice also contained copies of the (i) Preliminary Approval Order, (ii) Order on Proposed Attorneys` Fees and Revisions to Notice to Settlement Class Members, and (iii) Notice of Revised Settlement Notice Pursuant to Court`s Order. (Id. 9.) In addition, the supplemental notice indicated that the Fairness Hearing was scheduled for April 15, 2010 at 2:00 p.m. (subject to the Court`s schedule). (Id. 10.) 37. Rust Consulting confirmed with the United States Postal Service that all notices have been delivered to the appropriate State and Federal officials. (Id. 11.) 38. No government official has expressed an objection to the Settlement. CONCLUSIONS OF LAW I. Standards For Approval Of Class Action The law favors the compromise and settlement of class action suits. See, e.g., Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982). [T]he decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants and their strategies, -10FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 positions, and proof. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). When considering a motion for final approval of a class action settlement under Rule 23(e), the Court`s inquiry is whether the settlement is fair, adequate, and reasonable. Fed. R. Civ. P. 23(e)(2). See Hanlon, 150 F.3d at 1026 (setting forth fairness and adequacy factors to be considered for approval of class settlement); accord Rodriguez v. West Publ'g Corp., 563 F.3d 948, 963 (9th Cir. 2009); see also Class Plaintiffs, 955 F.2d at 1276. A settlement is fair, adequate, and reasonable when the interests of the class are better served by the settlement than by further litigation. Manual for Complex Litigation (Fourth) 21.61 (2004). The decision to approve or reject a proposed settlement is committed to the Court`s sound discretion. See City of Seattle, 955 F.2d at 1276. In exercising this discretion, [t]his circuit has long deferred to the private consensual decision of the parties. Rodriguez, 563 F.3d at 965; see also Hanlon, 150 F.3d at 1027 (approval of class settlement proper after several months of negotiation where there was [n]o evidence of collusion). Thus, in evaluating whether the settlement is fair and adequate, the Court`s function is not to second-guess the settlement`s terms. [T]he court`s intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Therefore, the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits. Neither the trial court nor this court is to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements. The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators. Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982).3 This is especially See also Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators.`) (emphasis in original; citation omitted); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 212 (5th Cir. Apr. 1981) ([W]hether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.); In re Enron Corp. Sec., Derivative & "ERISA" Litig., 228 F.R.D. 541, 565 (S.D. Tex. 2005) ([I]t is not relevant that other negotiators might have obtained a better settlement for the class . . . .). 3 29 30 -11FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 so in light of the strong judicial policy that favors settlements, particularly where complex class action litigation is concerned. City of Seattle, 955 F.2d at 1276; see also Curtis-Bauer v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 4667090, at *4 (N.D. Cal. Oct. 22, 2008) (Henderson, J.) ([T]he court must also be mindful of the Ninth Circuit`s policy favoring settlement, particularly in class action law suits.). Courts in the Ninth Circuit have considered, if applicable, the following eight factors in determining whether a proposed class action settlement is fair, reasonable, and adequate: [1] the strength of the plaintiffs` case; [2] the risk, expense, complexity, and likely duration of further litigation; [3] the risk of maintaining class action status throughout the trial; [4] the amount offered in settlement; [5] the extent of discovery completed, and the stage of the proceedings; [6] the experience and views of counsel; [7] the presence of a governmental participant; and [8] the reaction of the class members to the proposed settlement. Rodriguez, 563 F.3d at 963 (citation omitted); accord Hanlon, 150 F.3d at 1026. The relative importance of each factor is left to the sound discretion of the Court. See Nat'l Rural Telecomms., 221 F.R.D. at 526. Not all of these factors will apply to every class action settlement. Under certain circumstances, one factor alone may prove determinative in finding sufficient grounds for court approval. Id. at 525-26. II. Applying The Factors To This Case A. The Value And Strength Of Plaintiff's Case The first fairness factor addresses Plaintiff`s likelihood of success on the merits and the range of possible recovery. See Rodriguez, 563 F.3d at 964-65. In determining the probability of Plaintiff`s success on the merits, there is no particular formula by which that outcome must be tested. Id. at 965. Rather, the Court`s assessment of the likelihood of success is nothing more than an amalgam of delicate balancing, gross approximations and rough justice.` Officers for Justice, 688 F.2d at 625 (citation omitted). Nor, at this stage, need the Court reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements. Id. Instead, the Court may presume that through 29 30 -12FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 negotiation, the Parties, counsel, and mediator arrived at a reasonable range of settlement by considering Plaintiff`s likelihood of recovery. See Rodriguez, 563 F.3d at 965. In this case, State Farm has raised several significant challenges to Plaintiff`s claims. First, State Farm contends that the TLR was not in effect during the class period. (State Farm Mem., Doc. 262, at 9 n.4.) While this Court has previously rejected State Farm`s argument (Mar. 23, 2009 Order [Doc. 159] at 17-18), its decision would be subject to review on appeal absent a settlement. Second, State Farm maintains that its use of the Mitchell TLV system complied with the TLR, which State Farm contends permits an insurer to value total loss vehicles using a computerized automobile valuation service that produces statistically valid fair market values within the local market area. (State Farm Mem. at 9 (citing Cal. Code Regs. tit. 10, 2695.8(b)(4)(C) (2009).) State Farm further argues that even if Plaintiff could demonstrate that the Mitchell valuation reports did not comply with the TLR, a regulatory violation does not, in itself, establish a breach of contract or an act [of] bad faith by the insurer. (State Farm Mem. at 9 (citing Rattan v. United Servs. Auto. Ass'n, 84 Cal. App. 4th 715, 724 (2000); see also Safeco Ins. Co. of Am. v. Parks, 170 Cal. App. 4th 992, 1006 (2009) (An insurer`s failure to comply with [a CDI] regulation does not, in itself, establish a breach of contract or bad faith by the insurer.).) Rather, State Farm argues that to establish either a breach of contract claim or a bad faith claim under California law, Plaintiff and each of the class members must prove that they did not receive what they were entitled to under their insurance contracts. (State Farm Mem. at 9 (citing Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th Cir. 2000); Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1164 (9th Cir. 2002).) State Farm notes that the insurance policies at issue provide that, in the event a policyholder`s vehicle is a total loss, State Farm will pay the policyholder the actual cash value of the vehicle (less deductibles) at the time the loss occurred. (Ex. A, Garner Policy, IV, p. 17 [Doc. 210].) State Farm further argues that actual cash value, which is the same as fair market value, is [t]he amount at which property would change hands between a willing buyer -13FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 and a willing seller.` (State Farm Mem. at 9 (citing In re Two "S" Corp., 875 F.2d 240, 244 n.4 (9th Cir. 1989) (quoting Black's Law Dictionary 536 (5th ed. 1979)); accord United States v. 760.807 Acres of Land, 731 F.2d 1443, 1446 (9th Cir. 1984).) Although the Court has not decided this issue, it has previously indicated that this might be an appropriate way to measure damages, and expressed reservations about Plaintiff`s proposed measure. (See Transcript of June 17, 2008 at 16:16-17:24; Motion to Dismiss and Compel Order, Doc. 47, at 5, n.2, Doc. 159; Summary Judgment Order, Doc. 159, at 5, n.1.) While Plaintiff strongly disagrees that State Farm`s proposed measure would be proper, Plaintiff acknowledges that the issue of how Class damages should be measured was undecided at the time of the Settlement. Plaintiff notes that were the Court to have adopted State Farm`s proposed measure, or any other measure that significantly differed from that proposed by Plaintiffs, the recovery for the Class in this case would almost certainly be significantly lower than the $15,000,000 monetary payment provided for in the Agreement, even assuming Plaintiffs prevailed at trial on the issue of liability. The Agreement allows the Class to avoid the risk of such a result, while still providing Class members with a large percentage of the potential recovery under Plaintiff`s proposed measure of damages. B. Complexity and Expense of Litigation The second fairness factor the complexity, expense, and likely duration of the litigation also weighs in favor of approval. Settlement avoids the complexity, delay, risk and expense of continuing with the litigation and will produce a prompt, certain, and substantial recovery for the Plaintiff class. Curtis-Bauer, 2008 WL 4667090, at *4. Indeed, there is no doubt that the time and expense of continuing the litigation would be substantial, and that such transactional costs could significantly reduce whatever judgment, if any, Plaintiff could recover through litigation. The Rodriguez court found that approval under this factor was favored where, as here, significant procedural hurdles remained, including an anticipated summary judgment motion, Daubert motions, and appeals. See Rodriguez, 563 F.3d at 966. Avoiding such unnecessary and unwarranted expenditure of resources and time would benefit all Parties and the Court. See -14FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 Enron Corp., 228 F.R.D. at 565; In re Prudential Sec. Inc. Ltd. P'ships Litig., 163 F.R.D. 200, 210 (S.D.N.Y. 1995). Thus, the Agreement also provides the Class with another significant benefit that they would not receive if the case proceeded to trial prompt relief. C. The Risk of Maintaining Class Action Status Throughout the Trial The third factor, which concerns the risk of maintaining class certification, favors settlement as well. As discussed above, State Farm raised significant objections to Plaintiff`s theory of damages, which could undermine the manageability of the proposed class action. D. The Settlement Amount The fourth fairness factor, the amount of recovery offered, see Rodriguez, 563 F.3d at 963, also strongly favors final approval of the Settlement. The Settlement Agreement was proposed after protracted arms-length and adversarial negotiation, during which time an experienced impartial mediator helped the Parties arrive at a compromise amount that both Parties find satisfactory. In particular, the Settlement Class Members will receive substantial financial benefit, as State Farm will fund the Settlement with $15 million, resulting in a recovery of approximately $100 to $1,000 for most Settlement Class Members. The Agreement is designed to maximize the recovery for each of the Settlement Class Members. The Notice Plan used a list of names, addresses, and claim numbers for all potential Settlement Class Members that was culled from State Farm`s internal documents to provide each identified Settlement Class Member with actual mailed notice of the Settlement. (See Agreement 5.1-5.3.) All identified Settlement Class Members who have not affirmatively opted out of the Settlement Class and are entitled to a distribution will receive a check in the mail. (Id. 6.3, 9.5.) Finally, State Farm does not retain a reversionary interest in either the Gross Settlement Fund or the Net Settlement Fund. Indeed, courts have recognized that even where unlike here the total settlement fund is small, it may not be unreasonable in light of the perils plaintiffs face in obtaining a meaningful recovery on their claims. In re Critical Path, Inc., No. C 01-00551 WHA, 2002 WL -15FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 32627559, at *7 (N.D. Cal. June 18, 2002) (Alsup, J.); accord Jaffe v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 346417, at *9 (N.D. Cal. Feb. 7, 2008) (Henderson, J.) (The settlement amount could undoubtedly be greater, but it is not obviously deficient, and a sizeable discount is to be expected in exchange for avoiding the uncertainties, risks, and costs that come with litigating a case to trial.); see also Hanlon, 150 F.3d at 1027 (holding that the possibility that the settlement could have been better . . . does not mean the settlement presented was not fair, reasonable or adequate). As discussed above, Plaintiff certainly faces such perils here. Yet the proposed Settlement nevertheless provides the Settlement Class with real, substantial monetary benefit, notwithstanding these difficulties with their claims and the fact that they face serious procedural hurdles to recovery. Notably, Plaintiff`s expert, Dr. Richard Drogin, opined that the total aggregate loss to the Settlement Class due to Mitchell`s use of projected sales price and age of ad adjustments is $23,544,458. (Drogin Decl., Doc. 197, 10, 11.) The Gross Settlement Fund of $15 million is approximately 64 percent of Dr. Drogin`s estimated loss. Even assuming that costs and fees reduce the Net Settlement amount to approximately $10,000,000, the Settlement Class will still receive approximately 42 percent of the total aggregate alleged loss according to Plaintiff`s expert`s numbers. The Ninth Circuit has found that settlement amounts of about 20 percent i.e., less than half of what the Settlement Class will receive here were fair and adequate. See, e.g., In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000); see also Officers for Justice, 688 F.2d at 628 (It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery does not per se render the settlement inadequate or unfair.). Significantly, the Agreement provides for equal and fair relief for each and every Class member. Pursuant to the Agreement, every Class member will receive the exact same percentage of the Projected Sale Price and Age of Ad adjustments that were applied to their total loss claims. Rather than be faced with the expense and uncertainty of what would doubtless be protracted litigation, members of the Settlement Class are offered certain monetary recovery now based on readily ascertainable criteria. In short, this Settlement affords substantial relief to the Settlement -16FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 Class. In addition to the substantial monetary payment to the Class, State Farm has also agreed that it will no longer use the Projected Sold or Age of Ad adjustments in California. Rather, Mitchell (or any other total loss vendor used by State Farm) will use any one or some combination of the following for comparable vehicles when preparing a Total Loss Comparable Vehicle Valuation Report for State Farm: (i) the high point of VLF Data obtained from the DMV (even though this Court has previously found that the DMV would actually permit using the lower midpoint of that data); (ii) actual sales prices from other sources compliant with the TLR; or (iii) the asking price of advertised vehicles (without a projected sold or age of ad adjustment). (Id. 11.1, 11.2.) Accordingly, the fourth fairness factor strongly indicates that the proposed Settlement is fair and adequate. E. Extent of Discovery Completed The fifth fairness factor, the extent of discovery and the current stage of the proceedings, likewise supports final approval. Substantial discovery has been conducted in this case, giving Plaintiff a good grasp on the merits of [her] case before settlement talks began. Rodriguez, 563 F.3d at 967; see also Jaffe, 2008 WL 346417, at *9 (finding approval appropriate where parties had engaged in extensive discovery prior to settlement). As a result, the Agreement is informed by Class Counsel`s thorough investigation and discovery efforts, and comes after extensive, hard-fought litigation by the Parties in this case. Class Counsel has undertaken substantial investigation and discovery in this case, including, without limitation: (a) reviewing and analyzing extensive email correspondence and tens of thousands of pages of other documents produced by State Farm, Mitchell, J.D. Power & Associates, and the California Department of Insurance, among other entities; (b) deposing employees of State Farm and Mitchell, California Department of Insurance officials, State Farm`s expert witness, and other witnesses; (c) reviewing and analyzing a substantial selection of the more than 24,000 total loss valuation reports provided by State Farm to the Class members; (d) working extensively with experts regarding the complexities of the TLR and the appraisal -17FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 process; (e) researching the legislative history of the TLR; (f) completing a detailed statistical analysis, working with experts, of the valuation methodology used by Mitchell; (g) working extensively with experts to analyze Class damages; and (h) propounding extensive written discovery. Further, this case has been heavily litigated. The Parties have litigated multiple dispositive and other important motions raising complex legal and factual issues, including State Farm`s motion to dismiss and motion to compel appraisal, the Parties` cross-motions for summary judgment/adjudication regarding the applicability of the TLR, and Plaintiff`s pending motion for class certification. The Parties further engaged in an extensive appraisal process regarding the Class representative`s total loss vehicle. Moreover, both Parties have engaged expert witnesses and submitted expert reports, and have litigated multiple discovery disputes. F. Absence of Collusion Before approving a class action settlement, the district court must reach a reasoned judgment that the proposed agreement is not the product of fraud or overreaching by, or collusion among, the negotiating parties. City of Seattle, 955 F.2d at 1290. Where a settlement is the product of arms-length negotiations conducted by capable and experienced counsel, the court begins its analysis with a presumption that the settlement is fair and reasonable. See 4 Newberg 11.41. The Agreement here is the product of arms-length negotiations between the Parties. The Parties engaged in a full day mediation before an experienced mediator, Judge Daniel Weinstein, and thereafter reached an agreement in principle with the further capable assistance of Judge Weinstein. For two months thereafter, the Parties worked together extensively to finalize the Agreement. Both Parties were represented throughout the negotiations by counsel experienced in the prosecution, defense, and settlement of complex class actions, and were guided by this Court`s prior rulings in this case. G. Experience and Views of Counsel The experience and views of counsel also weighs in favor of approving the Settlement. -18FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 Counsel for State Farm and proposed Class Counsel, both of whom have substantial experience in prosecuting and negotiating the settlement of class action and insurance litigation, concur that the Settlement is fair, and proposed Class Counsel have recommended approval of the proposed Settlement as in the best interests of the putative Settlement Class. See Rodriguez, 563 F.3d at 967 ([P]arties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party`s expected outcome in litigation[.]`) (citation omitted); see also Isby v. Bayh, 75 F.3d 1191, 1200 (7th Cir. 1996) (noting that a district court is entitled to give consideration to the opinion of competent counsel that the settlement [is] fair, reasonable, and adequate). H. The Presence of a Governmental Participant Although no governmental entity is a party to this action, forty-four governmental entities including the CDI, the United States Attorney General, and the insurance commissioners in forty-two other states where potential Settlement Class Members may reside have been notified of the proposed Settlement pursuant to the notice provision of CAFA, 28 U.S.C. 1715. (See Decl. of Justin Parks re: Service of CAFA Notice, Doc. 265, 4, 6, 7.) Although CAFA does not create an affirmative duty for either state or federal officials to take any action in response to a class action settlement, CAFA presumes that, once put on notice, state or federal officials will raise any concerns that they may have during the normal course of the class action settlement procedures. See generally Fed. R. Civ. P. 23(e)(2) (court must conduct a fairness hearing before approving class action settlement). To date, no state or federal official has raised any objection or concern regarding the Agreement. I. The Reaction of the Class Members to the Proposed Settlement The reaction of the Settlement Class Members to the proposed Settlement has been overwhelmingly positive and strongly supports final approval. Following the Court`s preliminary approval, the Parties and Rust Consulting have fully implemented the Courtapproved Notice Plan. Under the Agreement, all Settlement Class Members choosing to object to, or opt out of, the Settlement had until March 26, 2010 to do so. As of March 31, 2010, only -19FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 one Settlement Class Member has objected to the Settlement. (Decl. of Melissa D. Eisert, Doc. 264, 13.) Courts have repeatedly recognized that the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members. Nat'l Rural Telecomms., 221 F.R.D. at 529. Thus, the Court may appropriately infer that a class action settlement is fair, adequate, and reasonable when few class members object to it. Create-A-Card, Inc. v. Intuit, Inc., 2009 U.S. Dist. LEXIS 93989, at *15 (N.D. Cal.); see also Barcia v. Contain-A-Way, Inc., No. 07cv938-IEG-JMA, 2009 WL 587844, at *4 (S.D. Cal. Mar. 6, 2009) (absence of objectors strongly supports the fairness, reasonableness, and adequacy of the settlement); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118-19 (3d Cir. 1990) (finding that 29 objections out of a 281member class strongly favors settlement). Moreover, the lone objector raises no concern that should preclude approval of the settlement.4 The objector voices concern regarding how payments to the Settlement Class Members are calculated. In particular, she is concerned that the Parties will have unfettered discretion in determining what amount she will receive under the Agreement. This is not so. The Agreement requires the amount that each Settlement Class Member receives be computed in strict compliance with the formula set out in the Agreement. (Agreement 9.3.) Class Counsel will then have an opportunity to review and comment on the results of State Farm`s computations in the Distribution Plan. Only after State Farm and Class Counsel agree that the Distribution Plan complies with the formula provided for in the Agreement will the Administrator distribute the funds to the Settlement Class Members. (Id. 9.5.) The objector also raises a concern that State Farm may have a reversionary interest in the Settlement Fund, which it does not under the terms of the Agreement. The Settlement Class Members are entitled to the entire balance of the Settlement Fund after deducting the costs of notice, other administrative expenses, a court-approved award of attorneys` fees and expenses for See Exh. A to Declaration of Laura Goodman, Doc. 275. The objector has since withdrawn her objections. 4 29 30 -20FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 proposed Class Counsel, and any amount awarded to Plaintiff. (Id. 9.1.) Finally, the objector suggests that the payments to the Class Representative and Class Counsel are excessive. However, counsel fees and expenses, as well as payment to the Class Representative, are subject to review and approval by this Court, and are addressed by separate order. In addition, as of March 30, 2010, only 101 out of the over 24,000 who received notice have elected to opt out of the Settlement Class. (Eisert Decl., Doc. 264, 12.) This means that over 99.5% of the recipients of the Class Notice chose to remain part of the Settlement Class, which is a further indication of the fairness of the Settlement. See Brailsford v. Jackson Hewitt Inc., No. C 06-00700 CW, 2007 WL 1302978, at *4 (N.D. Cal. May 3, 2007) (Wilken, J.) (observing that low opt-out rate is an indication of fairness). Notably, the fact that a potential Settlement Class Member chooses to opt out does not necessarily indicate that he or she finds the Settlement objectionable. Indeed, several of the opt-outs indicated that they chose to exclude themselves from the class because they felt that they were treated and compensated fairly and efficiently by [their] State Farm Claims Representative . . . and do not want to pursue any claim against State Farm5 or have been customers with State Farm for over 50 years [and State Farm has] always dealt fairly, honestly and in a timely manner [with them].6 III. Adequate Notice Has Been Provided to the Settlement Class and to the Appropriate State and Federal Officials A. The Notice Plan Has Been Fully and Successfully Implemented Under Federal Rule 23(c), the parties need only provide notice reasonably certain to inform the absent members of the plaintiff class.` Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted). The notice need only generally describe[] the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and See Exh. B to Decl. of Laura Goodman, Doc. 275. See Exh. C to Decl. of Laura Goodman; see also Exh. D to Decl. of Laura Goodman (Please exclude us from the class action suit against State Farm. We were very satisfied with the settlement of our claims.). 5 6 29 30 -21FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 be heard.` Churchill, 361 F.3d 566, 575 (9th Cir. 2004); see also Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1351 (9th Cir. 1980) (Notice in a class suit may consist of a very general description of the proposed settlement.). In its Preliminary Approval Order, the Court found that the proposed Notice Plan will provide the best practicable notice to the putative Class under the circumstances (Doc. 252, at 1), and satisfies all applicable requirements of law, including, but not limited to Rule 23 of the Federal Rules of Civil Procedure and the Constitutional requirement of due process. (Id. at 4.) The Settlement Notice clearly and concisely informed Settlement Class Members of the relevant aspects of the litigation and the Settlement, including: (i) the definition of who is a Settlement Class Member; (ii) the history of the litigation; (iii) the terms of the Settlement; (iv) the binding effect of any judgment for those persons who are Settlement Class Members; (v) the right of Settlement Class Members to request exclusion (opt out) from the Settlement Class and the procedures and deadlines for doing so; (vi) the right of Settlement Class Members to object to any aspect of the Settlement and/or to appear at the Fairness Hearing and the procedures and deadlines for doing so; (vii) the date, time, and location of the Fairness Hearing; (viii) how to obtain additional information; (ix) the benefits of the Settlement and how to participate in the Settlement; and (x) information on Class Counsel`s fees and expenses. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985). The Court-approved Notice Distribution Plan has now been fully implemented by the Parties and the Administrator. (See Eisert Decl., Doc. 264, 3-13.) Accordingly, the Court finds that the Settlement Notice and Notice Plan as carried out by the Administrator complied with this Court`s Preliminary Approval Order [Doc. 252] dated January 15, 2010, and this Court`s Order on Proposed Attorneys` Fees and Revisions to Notice to Class Members [Doc. 253], and satisfied the requirements of Federal Rule of Civil Procedure 23 and due process. B. Notice Has Been Given to the Appropriate Federal and State Officials Pursuant to CAFA CAFA requires that notice of all federal class action settlements be sent to the appropriate state and federal officials as a condition of obtaining court approval of the settlement. In non-22FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 banking cases, the appropriate federal official is the Attorney General of the United States. See 28 U.S.C. 1715(a)(1)(A). Notice must also be sent to the appropriate State official of each State in which a class member resides. 28 U.S.C. 1715(b). The appropriate State official is the person in the State who has the primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State, if some or all of the matters alleged in the class action are subject to regulation by that person. 28 U.S.C. 1715(a)(2). In this case, the CDI is the entity with the primary regulatory authority over State Farm in California. The Administrator provided notice of the Settlement to the Attorney General of the United States, the Commissioner of the California Department of Insurance, as well as the commissioners of insurance departments in 42 other states where potential Settlement Class Members reside, together with a disk containing all of the information required under 28 U.S.C. 1715. (See Parks Decl., Doc. 265, 3-10.) In addition, each state commissioner received a list of the potential Settlement Class Members who may currently reside in their respective states, together with each Settlement Class Member`s estimated proportionate share of the Settlement. (Id. 7.) On January 26, 2010, Rust Consulting, at the direction of State Farm`s counsel, served on the appropriate state and federal officials a supplemental notice indicating that this Court had issued its Preliminary Approval Order, and provided a copy of this Court`s orders and the revised Settlement Notice. (Id. 8.) Accordingly, notification to appropriate federal and state officials has been given in accordance with CAFA. IV. The Court Has Considered The Objections Of The Single Objector And Overrules The Objections The Court has considered the objections filed by the lone Objector, Laura Maltin, and finds each of her objections to be unpersuasive.7 Although Ms. Maltin has withdrawn her objections, the Court nevertheless addresses her concerns. 7 29 30 -23FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 First, Maltin objects to the requested incentive award for the Class representative, Arnesha Garner. Incentive awards are fairly typical in class action cases. Rodriguez v. West Publishing Corp., 563 F.3d 948, 958 (9th Cir. 2009) (emphasis in original); see also Staton v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003); Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995); Dornberger v. Metropolitan Life Ins. Co., 203 F.R.D 118, 143 (S.D.N.Y. 2001) (An incentive award is meant to compensate the named plaintiff for any personal risk incurred by the individual or any additional effort expended by the individual for the benefit of the lawsuit.) (citation and internal quotation marks omitted). Contrary to Maltin`s contention, Ms. Garner`s commitment and contribution to this case have been considerable. In addition to lending her name to this case, and thus subjecting herself to public attention, Ms. Garner has devoted considerable time and attention to this case for the benefit of the Class. Among other things, she has made herself available for deposition on two separate occasions, wherein she was subjected to questioning regarding her personal financial affairs and other sensitive subjects; met with Class Counsel on six separate occasions; attended the full-day Court-ordered appraisal hearing; spoke with Class Counsel and their staff on many occasions; reviewed all major pleadings; and repeatedly responded to interrogatories and document requests. See Docket No. 221, 4-5. Under the circumstances of this case, the Court finds that an award of $20,000 is well justified, given Ms. Garner`s commitment to the Class.8 Moreover, unlike many class actions, where there are several class representatives, each of whom are entitled to incentive awards, here there was just one. Numerous courts in the Ninth Circuit and elsewhere have approved incentive awards of $20,000 or more where, as here, the class representative has demonstrated a strong commitment to the class. See, e.g., Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 430 (2d Cir. 2007) (approving incentive awards of $25,000 to named plaintiffs who were deposed); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (affirming $25,000 incentive award); In re Conn. Gen. Life Ins. Co., 1997 WL 910387, at *14 (C.D. Cal. Feb. 13, 1997) (approving $25,000 incentive payments); Van Vranken., 901 F.Supp. at 299-300 (awarding $50,000 incentive fee); In re Dun & Bradstreet Credit Serv. Customer Litig., 130 F.R.D. 366, 373-74 (S.D. Ohio 1990) (in estimated $18 million settlement, incentive awards ranged from $35,000 to $55,000); Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251 (S.D. Ohio 1991) (awarding $50,000 incentive awards); Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 700 F.Supp. 208, 210 (S.D.N.Y. 1988) (in estimated $4 million settlement, granting a $20,085 incentive award). 8 29 30 -24FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 Second, Maltin objects regarding the method of calculation for each Class member`s settlement payment, suggesting that the determination of payment amounts is discretionary and uncertain. However, the Settlement expressly requires that each Class Member`s payment will be calculated in strict compliance with the formula set forth in the Settlement. (Settlement, 9.3.) Moreover, Maltin`s concern regarding the fairness of the payment amounts is unfounded. Each Class member`s payment will be directly proportional to the amount of the projected sold price and age of ad adjustments that were applied to their total loss claims; i.e., every Class member will receive the exact same percentage of the adjustments that were made to their claims. (Settlement, 9.1-9.5.) Moreover, the amount of each Class member`s settlement payment--estimated to be between $100 and $1000 for most Class members--is an outstanding result given the size of their claims and the risks and uncertainties of continued litigation. Maltin`s third concern--that unspent settlement funds might revert back to State Farm-- is unfounded because the Settlement is clear that all uncashed settlement checks and any unspent portions of the administrative cost reserve will be distributed to Class members as part of a second distribution, or, if the amount remaining is not sufficient to justify the cost of a second distribution, then such monies will be paid to well-deserving, agreed-upon cy pres recipients. (Settlement, 9.7.) Fourth, the Maltin objects that Class Counsel`s requested fee award is excessive. However, for the reasons set forth in the Court`s separate order on attorneys` fees and expenses, the Court finds that an award of $4,500,000 in attorneys` fees and $317,903.90 in litigation expenses is reasonable and appropriate under applicable law. The Court notes that if Class Counsel`s fee were calculated pursuant to Maltin`s suggested approach--i.e., $1000 for each Class member who receives relief--then Class Counsel`s fee award would be considerably higher than the amount the Court has ordered. /// /// /// -25FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT 29 30 S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F/1690407v1 CONCLUSION For all the foregoing reasons, the Court finds that the Agreement, is fair, adequate, and reasonable and in the best interests of the Settlement Class; that it satisfies Federal Rule of Civil Procedure 23(e) and the fairness and adequacy factors of this Circuit; and should be approved and implemented as set out in this Court`s Final Order and Judgment. Dated this 22nd day of April, 2010. The Honorable Claudia Wilken United States District Judge 29 30 -26FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT S

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?