Wahl v. Yahoo ! Inc.

Filing 58


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ANDREW WAHL, Plaintiff, 8 v. 9 10 11 YAHOO! INC., a Delaware corporation dba RIVALS.COM, United States District Court Northern District of California Defendant. 12 Case No. 17-cv-02745-BLF ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; AND GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD [RE: ECF 48, 52] 13 14 On November 8, 2018, the Court heard (1) Plaintiff’s Motion for Final Approval of Class 15 16 Action Settlement and (2) Plaintiff’s Motion for an Award of Attorneys’ Fees, Expenses, and 17 Incentive Award. For the reasons discussed below, the motions are GRANTED. 18 19 I. BACKGROUND This action arises from Defendant Yahoo! Inc.’s operation of a website called Rivals.com, 20 which allows subscribers to access premium information on college sports and recruiting, 21 including news and message boards for college basketball and football teams. Annual subscribers 22 pay $99.95 per year, and monthly subscribers pay $9.95 per month. Yahoo allegedly violated 23 California’s Automatic Renewal Law (“ARL”), Cal. Bus. & Prof. Code § 17600, by failing to give 24 statutorily required notice that subscriptions to Rivals.com would renew automatically. While the 25 ARL does not create a private right of action, violation of the ARL can be the basis for a claim 26 under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. See 27 Johnson v. Pluralsight, LLC, 728 F. App’x 674, 676-77 (9th Cir. 2018). Former plaintiff Andrew 28 Wahl filed this suit in the Santa Clara County Superior Court on March 31, 2017, asserting a 1 single UCL claim on behalf of himself and other subscribers to Rivals.com. See Notice of 2 Removal, ECF 1. 3 Yahoo removed the action to federal district court on the basis of diversity of citizenship. 4 Id. This Court dismissed the complaint with leave to amend, observing that Wahl – a resident of 5 Missouri – had not alleged that he is “a consumer in this state” as required for standing under the 6 ARL. See Order Granting Motion to Dismiss with Leave to Amend, ECF 22. On May 17, 2018, 7 Class Counsel filed the operative first amended complaint (“FAC”), substituting current 8 plaintiff/class representative Yuan Guo (“Plaintiff”) in place of Wahl. See FAC, ECF 37. Like 9 the original complaint, the FAC asserts a single UCL claim. See id. 10 Plaintiff filed a motion for preliminary approval of class action settlement, which was United States District Court Northern District of California 11 heard on July 12, 2018 and July 16, 2018. See Motion for Preliminary Approval, ECF 38; Minute 12 Entries, ECF 41, 42. The Court raised concerns regarding the proposed notice plan and a lack of 13 clarity regarding benefits to the class. Plaintiff filed a 25-page supplemental brief on July 25, 14 2018, explaining how the original settlement agreement, claim form, and class notice had been 15 modified to address the Court’s concerns. See Supplement to Motion for Preliminary Approval, 16 ECF 43. The Court thereafter granted the motion for preliminary approval and set a fairness 17 hearing for November 8, 2018. See Order Granting Motion for Preliminary Approval, ECF 44. 18 Plaintiff subsequently filed the current Motion for Final Approval of Class Action 19 Settlement and Motion for an Award of Attorneys’ Fees, Expenses, and Incentive Award. See 20 Motion for Final Approval, ECF 52; Motion for Attorneys’ Fees, ECF 48. In support of those 21 motions, Plaintiff submitted the declaration of Jennifer M. Keough, Chief Executive Officer of 22 JND Legal Administration (“JND”), the Settlement Administrator. See Keough Decl., ECF 55. 23 Ms. Keough describes the dissemination of notice to class members and states that no objections 24 or opt-outs have been received. Keough Decl. ¶¶ 3-8. Plaintiffs also submitted a copy of the 25 Settlement Agreement and Release (“Settlement Agreement”). See ECF 54. 26 The Settlement Agreement defines the Settlement Class to mean: “all customers in 27 California who were charged on a recurring basis by Rivals.com for auto-renewal subscriptions 28 entered into between March 31, 2013 and the present.” Settlement Agreement ¶ 20, ECF 54. 2 1 Class members who do nothing in response to the class notice will receive either 5 months (annual 2 subscribers) or 3 months (monthly subscribers) of free subscription services to Rivals.com. 3 Settlement Agreement ¶¶ 27-29, ECF 54. In lieu of the free subscription services, class members 4 may elect to receive either $20 in cash (annual subscribers) or $10 in cash (monthly subscribers). 5 Id. Moreover, Defendant Yahoo has agreed to “modify the subscription page for Rivals.com to 6 present the automatic renewal terms in a clear and conspicuous manner for California customers 7 before a subscription agreement is fulfilled and in visual proximity to the request to consent to the 8 subscription offer.” Settlement Agreement ¶ 31, ECF 54. Yahoo also has agreed to pay: 9 attorneys’ fees and expenses awarded by the Court, not to exceed a total of $300,000; an incentive award of $5,000 to Plaintiff Yuan Guo if approved by the Court; and the Settlement 11 United States District Court Northern District of California 10 Administrator’s reasonable fees and expenses. Settlement Agreement ¶¶ 33, 34, 47, ECF 54. 12 Yahoo’s payment of these amounts will be separate and apart from Yahoo’s payment of benefits 13 to the class. Id. 14 II. MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 15 To grant final approval of the class action settlement, the Court must determine that (a) the 16 class meets the requirements for certification under Federal Rule of Civil Procedure 23, and (b) the 17 settlement reached on behalf of the class is fair, reasonable, and adequate. See Staton v. Boeing 18 Co., 327 F.3d 938, 952 (9th Cir. 2003) (“Especially in the context of a case in which the parties 19 reach a settlement agreement prior to class certification, courts must peruse the proposed 20 compromise to ratify both the propriety of the certification and the fairness of the settlement.”). 21 A. 22 A class action is maintainable only if it meets the four requirements of Rule 23(a): 23 The Class Meets the Requirements for Certification under Rule 23 (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. 24 25 26 27 28 3 1 Fed. R. Civ. P. 23(a). In a settlement-only certification context, the “specifications of the Rule – 2 those designed to protect absentees by blocking unwarranted or overbroad class definitions – 3 demand undiluted, even heightened, attention.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 4 620 (1997). 5 In addition to satisfying the Rule 23(a) requirements, “parties seeking class certification 6 must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem, 521 U.S. at 7 614. Plaintiffs seek certification under Rule 23(b)(3), which requires that (1) “questions of law or 8 fact common to class members predominate over any questions affecting only individual 9 members” and (2) “a class action is superior to other available methods for fairly and efficiently 10 United States District Court Northern District of California 11 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The Court concluded that these requirements were satisfied when it granted preliminary 12 approval of the class action settlement. See Order Granting Motion for Preliminary Approval, 13 ECF 44. The Court is not aware of any new facts which would alter that conclusion. However, 14 the Court reviews the Rule 23 requirements again briefly, as follows. 15 Turning first to the Rule 23(a) prerequisites, Yahoo has identified 16,746 potential class 16 members, which clearly is sufficient to meet the numerosity requirement. See Keough Decl. ¶ 3, 17 ECF 55. The commonality requirement is met because the key issue in the case is the same for all 18 class members – whether Yahoo violated the ARL by automatically renewing subscriptions to 19 Rivals.com without statutorily required notice. 20 The named Plaintiff’s claim is typical of those of the class members, as he is a California 21 resident who purchased an annual subscription to Rivals.com and was charged for automatic 22 renewal of the subscription. See FAC ¶¶ 20-23. Although some class members purchased 23 monthly, rather than annual, subscriptions to Rivals.com, both annual and monthly subscribers are 24 encompassed by the class definition. The two types of subscribers are treated the same under the 25 Settlement Agreement except with respect to the benefits each may recover. Typicality requires 26 only that the claims of the class representative is “reasonably co-extensive with those of absent 27 class members.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). That 28 requirement is satisfied here. 4 1 Finally, to determine Plaintiff’s adequacy, the Court “must resolve two questions: (1) do 2 the named plaintiffs and their counsel have any conflicts of interest with other class members and 3 (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the 4 class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (internal quotation 5 marks and citation omitted). The record discloses no conflict of interest which would preclude the 6 named Plaintiff from acting as class representative, and Class Counsel has litigated this action 7 vigorously on behalf of the class. 8 9 With respect to Rule 23(b)(3), the “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. The common question in this case – whether Yahoo violated the ARL by automatically renewing 11 United States District Court Northern District of California 10 subscriptions to Rivals.com without statutorily required notice – predominates. Given that 12 commonality, and the number of class members, a class action is a superior mechanism for 13 adjudicating the claims at issue. 14 15 Accordingly, the Court finds that the requirements of Rule 23 are met and that certification of the class for settlement purposes is appropriate. 16 B. The Settlement is Fundamentally Fair, Adequate, and Reasonable 17 Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a 18 certified class may be settled, voluntarily dismissed, or compromised only with the court’s 19 approval.” Fed. R. Civ. P. 23(e). “Adequate notice is critical to court approval of a class 20 settlement under Rule 23(e).” Hanlon, 150 F.3d at 1025. Moreover, “[a] district court’s approval 21 of a class-action settlement must be accompanied by a finding that the settlement is ‘fair, 22 reasonable, and adequate.’” Lane v. Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012) (quoting 23 Fed. R. Civ. P. 23(e)). “[A] district court’s only role in reviewing the substance of that settlement 24 is to ensure that it is fair, adequate, and free from collusion.” Id. (internal quotation marks and 25 citation omitted). In making that determination, the district court is guided by an eight-factor test 26 articulated by the Ninth Circuit in Hanlon v. Chrysler Corp (“Hanlon factors”). Id. Those factors 27 include: 28 5 1 2 3 4 the strength of the plaintiffs’ 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. 5 Hanlon, 150 F.3d at 1026-27; see also Lane, 696 F.3d at 819 (discussing Hanlon factors). 6 “Additionally, when (as here) the settlement takes place before formal class certification, 7 settlement approval requires a ‘higher standard of fairness.’” Lane, 696 F.3d at 819 (quoting 8 Hanlon, 150 F.3d at 1026). 9 10 1. Notice was Adequate The Court previously approved Plaintiff’s plan for providing notice to the class when it United States District Court Northern District of California 11 granted preliminary approval of the class action settlement. See Order Granting Motion for 12 Preliminary Approval, ECF 44. Plaintiff has provided a declaration of the Settlement 13 Administrator describing implementation of the approved notice plan. See Keough Decl. ¶¶ 3-6, 14 ECF 55. Direct email notice was given to all 16,746 individuals identified by Yahoo as potential 15 class members. Keough Decl. ¶ 3. Of the 4,773 individuals whose emails “bounced” back, 4,272 16 were sent postcard notice through the United States Mail. Keough Decl. ¶¶ 3-4. The Settlement 17 Administrator also created and maintained a website which provides information to class 18 members. Keough Decl. ¶ 5. The Court is satisfied that the class members were provided with the 19 best notice practicable under the circumstances, and that such notice was adequate. 20 21 2. Presumption of Correctness Before discussing the Hanlon factors, the Court notes that “[a] presumption of correctness 22 is said to ‘attach to a class settlement reached in arm’s-length negotiations between experienced 23 capable counsel after meaningful discovery.’” In re Heritage Bond Litig., No. 02-ML-1475 DT, 24 2005 WL 1594403, at *9 (C.D. Cal. June 10, 2005) (quoting Manuel for Complex Litigation 25 (Third) § 30.42 (1995)). The settlement in this case occurred after more than a year of litigation, 26 which included exchange of informal discovery and motion practice. See Kronawitter Decl. ¶ 16, 27 ECF 43-8; Order Granting Motion to Dismiss with Leave to Amend, ECF 22. Settlement 28 negotiations were conducted at arm’s-length with the assistance of a respected mediator, the 6 1 Honorable Ronald M. Sabraw, Ret. See Sabraw Decl. ¶¶ 2-8, ECF 52-1. The Court concludes 2 that on this record a presumption of correctness applies to the class action settlement. 3. 3 Hanlon Factors Turning to the Hanlon factors, the Court first considers the strength of the plaintiff’s case, 4 5 weighing the likelihood of success on the merits and the range of possible recovery (factor 1). 6 Plaintiff estimates that the Settlement Agreement will result in total benefits to the class of 7 between $656,700 and $820,875.1 See Supplement to Motion for Preliminary Approval at 6, ECF 8 43. If Plaintiff were to take this case to trial, he would seek restitution of the full value of fees that 9 were charged to class members when their subscriptions were automatically renewed. See FAC Prayer, ECF 37; Kronawitter Decl. ¶ 15, ECF 43-8. While recovery under a full-value model 11 United States District Court Northern District of California 10 could be greater than recovery under the Settlement Agreement, Yahoo has indicated that it would 12 challenge Plaintiff’s full-value model and would litigate the case vigorously. See Kronawitter 13 Decl. ¶ 15, ECF 43-8. Thus, it is not at all clear that Plaintiff would prevail at trial or recover 14 more than the benefits guaranteed by the Settlement Agreement. Moreover, Plaintiff would face 15 significant hurdles if the litigation were to go forward, including formal discovery and further 16 motion practice, and therefore he would take on significant risk and expense absent settlement 17 (factor 2). Given the common questions of fact and law in this case, it is likely that the class would 18 19 have been certified had the case progressed (factor 3). The settlement confers tangible benefits to 20 the class, as class members have the choice between a cash recovery or several free months of 21 subscription to Rivals.com (factor 4). Plaintiff acknowledges that little formal discovery has been done (factor 5). However, 22 23 because Plaintiff’s UCL claim is based primarily on the content of the Rivals.com website and the 24 undisputed subscription renewals of class members, it appears that the parties had sufficient 25 information to evaluate the case’s strengths and weaknesses (factor 6). Plaintiff and Defendants 26 are represented by experienced counsel, whose views on the settlement are entitled to significant 27 28 1 Those figures may be low, as Plaintiff based his calculations on an estimated class size of 16,500, and the actual potential class size is 16,746. 7 1 weight. See In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008). There is no government participant (factor 7). The class reaction to the settlement is 2 3 favorable, as there were no objections or opt-outs (factor 8). See Keough Decl. ¶¶ 7-8, ECF 55. 4 Based on the foregoing reasons, and after considering the record as a whole as guided by 5 the Hanlon factors, the Court finds that notice of the proposed settlement was adequate, the 6 settlement is not the result of collusion, and the settlement is fair, adequate and reasonable. Plaintiff’s Motion for Final Approval of Class Action Settlement is GRANTED. 7 8 9 III. MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD Plaintiff seeks an award of attorneys’ fees in the amount of $285,313.66 and an award of litigation expenses in the amount of $14,686.34, for a total award of fees and expenses in the 11 United States District Court Northern District of California 10 amount of $300,000. Under the Settlement Agreement, Yahoo has agreed to pay attorneys’ fees 12 and expenses, not to exceed $300,000, if awarded by the Court. Plaintiff also seeks an incentive 13 award in the amount of $5,000. 14 A. 1. 15 16 Attorneys’ Fees and Expenses Legal Standard “While attorneys’ fees and costs may be awarded in a certified class action where so 17 authorized by law or the parties’ agreement, Fed. R. Civ. P. 23(h), courts have an independent 18 obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have 19 already agreed to an amount.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th 20 Cir. 2011). 21 Because this Court exercises diversity jurisdiction in this case, “state law governs both the 22 right to recover attorney’s fees and the computation of their amount.” Collado v. Toyota Motor 23 Sales, U.S.A., Inc., 550 F. App’x 368, 368-70 (9th Cir. 2013) (citing Mangold v. Cal. Public 24 Utilities Com’n, 67 F.3d 1470, 1478 (9th Cir. 1995)). “In particular, California Code of Civil 25 Procedure § 1021.5 applies to the request for attorney’s fees.” Id. at 370. Section 1021.5 provides 26 for an award of fees “to a successful party against one or more opposing parties in any action 27 which has resulted in the enforcement of an important right affecting the public interest if: (a) a 28 significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public 8 1 or a large class of persons, (b) the necessity and financial burden of private enforcement, or of 2 enforcement by one public entity against another public entity, are such as to make the award 3 appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if 4 any.” Cal. Civ. Proc. Code § 1021.5. 5 “Fee awards granted pursuant to § 1021.5 must be calculated using a lodestar analysis.” Collado, 550 F. App’x at 370. The Court starts with the “lodestar figure, based on the careful 7 compilation of the time spent and reasonable hourly compensation of each attorney involved in the 8 presentation of the case.” Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 579 (2004), as 9 modified (Jan. 12, 2005) (quotation marks, citation, and alteration omitted). The California 10 Supreme Court has “expressly approved the use of prevailing hourly rates as a basis for the 11 United States District Court Northern District of California 6 lodestar.” Id. The lodestar “may be adjusted by the court based on factors including . . . (1) the 12 novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the 13 extent to which the nature of the litigation precluded other employment by the attorneys, (4) the 14 contingent nature of the fee award.” Id. “In effect, the court determines, retrospectively, whether 15 the litigation involved a contingent risk or required extraordinary legal skill justifying 16 augmentation of the unadorned lodestar in order to approximate the fair market rate for such 17 services.” Id. 18 2. Discussion 19 The Court has no difficulty concluding that Plaintiff is a successful party within the 20 meaning of § 1021.5. “The California Supreme Court has ‘taken a broad, pragmatic view of what 21 constitutes a successful party’” under § 1021.5, defining the term “to mean ‘the party to the 22 litigation that achieves its objectives.’” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 23 832, 844 (9th Cir. 2007) (quoting Graham, 34 Cal. 4th at 565, 571). “Under California law, it is 24 undisputed that relief obtained through a settlement may qualify a plaintiff as the prevailing 25 party.” Id. (quotation marks, citation, and alteration omitted). Plaintiff achieved his objectives in 26 obtaining both a tangible recovery for each class member but also modification of the subscription 27 page for Rivals.com to present the automatic renewal terms in a clear and conspicuous manner. 28 The terms of the Settlement Agreement are approved by the Court herein, and the Court retains 9 1 jurisdiction to enforce those terms. “The judicially-sanctioned and court-enforceable settlement 2 agreement in this case renders [Plaintiff] a ‘successful party.’” Skaff, 506 F.3d at 844. 3 The Court also finds that the three statutory prerequisites for an award of attorneys’ fees 4 under § 1021.5 are satisfied. First, the Settlement Agreement confers a significant pecuniary 5 benefit on a large class of individuals (free subscription services or cash), and a nonpecuniary 6 benefit on the general public (modification to Rivals.com subscription page to present the 7 automatic renewal terms in a clear and conspicuous manner). Second, “the necessity and financial 8 burden” requirement is satisfied because “the necessity for pursuing the lawsuit placed a burden 9 on the plaintiff out of proportion to his . . . individual stake in the matter.” Davis v. Farmers Ins. Exch., 245 Cal. App. 4th 1302, 1329 (2016), as modified on denial of reh’g (Apr. 21, 2016), 11 United States District Court Northern District of California 10 review denied (June 29, 2016). “The purpose of an award of attorney fees pursuant to section 12 1021.5, is to encourage suits that enforce common interests of significant societal importance, but 13 which do not involve any individual’s financial interests to the extent necessary to encourage 14 private litigation to enforce the right.” Id. (quotation marks and citation omitted). Here, no 15 government agency brought action against Yahoo, and the cost of litigation was significantly 16 higher than Plaintiff’s potential individual recovery. Third, Yahoo has agreed to pay Class 17 Counsel’s attorneys’ fees and costs, up to a cap of $300,000, separate and apart from the benefits 18 to the class under the Settlement Agreement. 19 Finally, the Court concludes that the fees and expenses requested by Plaintiff are 20 reasonable under a lodestar analysis governed by California law. Plaintiff has submitted 21 declarations and billing records from both law firms that represented the class, Horn Aylward & 22 Bandy, LLC, located in Kansas City, Missouri, and Ogloza Fortney LLP, located in San 23 Francisco, California. Those declarations and records document more than 700 hours litigating 24 this action and a collective lodestar of approximately $320,000. See Kronawitter Decl. ¶¶ 16-20, 25 ECF 48-3; Ogloza Decl. ¶¶ 10-14, ECF 48-4; Billing Records, ECF 49. Class Counsel’s rates, 26 which range from $250 to $675, are consistent with prevailing rates in both Kansas City, Missouri 27 and this district. See Kronawitter Decl. ¶¶ 22-24. Plaintiff does not request a multiplier, and in 28 fact he seeks only $285,313.66 in fees, substantially less than the $320,000 lodestar. Plaintiff also 10 1 requests expenses in the modest amount of $14,686.34, which is supported by declarations of 2 Class Counsel. See Kronawitter Decl. ¶¶ 25-26, ECF 48-3; Oglaza Decl. ¶¶ 17-18, ECF 48-4. Based on this record, Plaintiff’s request for an award of attorneys’ fees in the amount of 3 4 $285,313.66 and an award of litigation expenses in the amount of $14,686.34, for a total award of 5 fees and expenses in the amount of $300,000, is GRANTED. 6 B. Incentive Award 7 Plaintiff requests an incentive award of $5,000. Incentive awards “are discretionary . . . 8 and are intended to compensate class representatives for work done on behalf of the class, to make 9 up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez v. W. Publ’g Corp., 11 United States District Court Northern District of California 10 563 F.3d 948, 958-59 (9th Cir. 2009) (internal citation omitted). “Incentive awards typically 12 range from $2,000 to $10,000.” Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 267 (N.D. 13 Cal. 2015). The Court finds that the requested award of $5,000 is appropriate in this case, and that 14 request is GRANTED. 15 IV. ORDER 16 (1) Plaintiff’s Motion for Final Approval of Class Action Settlement is GRANTED. 17 (2) Plaintiff’s Motion for an Award of Attorneys’ Fees, Expenses, and Incentive 18 Award is GRANTED. Plaintiff is awarded attorneys’ fees in the amount of 19 $285,313.66, expenses in the amount of $14,686.34, and an incentive award in the 20 amount of $5,000. 21 (3) Without affecting the finality of this Order and accompanying Judgment in any 22 way, the Court retains jurisdiction over implementation and enforcement of the 23 Settlement Agreement until each and every act agreed to be performed by the 24 parties pursuant to the Settlement Agreement has been performed; any other actions 25 necessary to conclude the Settlement and to administer, effectuate, interpret, and 26 monitor compliance with the provisions of the Settlement Agreement; and all 27 parties to this action and Settlement class members for the purpose of 28 implementing and enforcing the Settlement Agreement. 11 1 (4) The Settlement Agreement sets certain deadlines for distribution of settlement 2 funds and payment of attorneys’ fees. Within 21 days after the distribution of the 3 settlement funds and payment of attorneys’ fees, the parties shall file a Post- 4 Distribution Accounting in accordance with this District’s Procedural Guidance for 5 Class Action Settlements. 6 7 8 9 Dated: November 15, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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