Romero et al v. Securus Technologies, Inc.
Filing
178
ORDER granting 175 Motion Preliminary Approval of Class Action Settlement. Final Approval Hearing set for 9/28/2020 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 6/16/2020. (sjt)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
13
JUAN ROMERO, FRANK TISCARENO,
and KENNETH ELLIOTT on behalf of
themselves and all others similarly
situated,
14
Plaintiffs,
12
15
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
v.
16
Case No.: 16cv1283 JM (MDD)
SECURUS TECHNOLOGIES, INC.,
Defendant.
17
18
19
Plaintiffs Juan Romero, Kenneth Elliott, and Frank Tiscareno (“Plaintiffs”), on
20
behalf of themselves and the class they represent, move for preliminary approval of a
21
proposed class action settlement reached with Defendant Securus Technologies, Inc.
22
(“Securus”). (Doc. No. 175.) Securus does not oppose. (Doc. 175-2 ¶ 22.) A hearing on
23
the motion was held on June 6, 2020. For the reasons set forth below, the motion is
24
GRANTED.
25
I.
26
On May 27, 2016, Plaintiffs filed a putative class action alleging that Securus
27
unlawfully recorded calls between detainees and attorneys. Securus provides inmate
28
communication services for correctional facilities throughout California. Plaintiffs are two
BACKGROUND
1
16cv1283 JM (MDD)
1
former inmates and a criminal defense attorney who used Securus’ telephone systems to
2
make calls to and from certain correctional facilities in California and whose calls were
3
recorded. After the court partially granted two successive motions to dismiss, Plaintiffs
4
filed the operative Third Amended Complaint, which alleges claims for violation of the
5
California Invasion of Privacy Act (CIPA), unfair competition, violation of the California
6
Business and Professions Code § 17200 et seq., concealment, fraud, negligence, and unjust
7
enrichment. (Doc. No. 30.)
8
On October 10, 2017, Plaintiffs first moved for class certification, seeking to
9
represent the class under both Rule 23(b)(2) and 23(b)(3). (Doc. No. 62.) Plaintiffs argued
10
there were at least 123 potential class members in San Diego, and more statewide. (Doc.
11
No. 62-1 at 8-10.) Plaintiffs argued that the commonality and typicality requirements were
12
met by a common contention that Securus recorded phone conversations between detainees
13
and attorneys without permission. (Id. at 11.) Plaintiffs supported their adequacy argument
14
with declarations from Plaintiffs and their counsel attesting to Plaintiffs’ commitment to
15
the class and counsels’ experience in prosecuting complex litigation cases and unlawful
16
recording class actions. (Id. at 14-16.)
17
On April 12, 2018, the court denied Plaintiffs’ motion for class certification without
18
prejudice, explaining that Plaintiffs had “fail[ed] to present sufficient evidence . . . . that
19
there is an administratively feasible manner to determine whether a class action is the
20
superior method for prosecuting Plaintiffs’ claims.” (Doc. No. 93 at 5.) The court found
21
the class could be as small as 22 members or as large as thousands, and numbers at the low
22
end might not produce efficiencies from class litigation. Id. at 5-6. The court allowed
23
Plaintiffs to renew their motion within 90 days notwithstanding Securus’ position that it
24
had completed its production and that the deadline for discovery on class certification
25
issues had passed. Id. at 6.
26
On May 22, 2018, Plaintiffs moved for summary judgment on the issue of whether
27
their CIPA claim required proof of intent. (Doc. No. 101.) On July 11, 2018, Plaintiffs
28
also filed a renewed motion for class certification. (Doc. No. 122-1.) On November 21,
2
16cv1283 JM (MDD)
1
2018, the court issued an order resolving both motions. (Doc. No. 141.) The court denied
2
Plaintiffs’ motion for partial summary judgment because it found that CIPA is not a strict
3
liability statute, and because Plaintiffs failed to establish there is no genuine dispute of
4
material fact as to whether Securus had the necessary intent. Id. at 19. However, the court
5
granted in part Plaintiffs’ renewed motion for class certification. Id. at 33-34. The court
6
certified a class for Plaintiffs’ CIPA claim under Rule 23(b)(2) and Rule 23(b)(3), but
7
denied class certification for each of Plaintiffs’ other claims. Id. The court certified the
8
following class:
9
10
11
12
13
Every person who was a party to any portion of a conversation between a
person who was in the physical custody of a law enforcement officer or other
public officer in California, and that person’s attorney, on a telephone number
designated or requested not to be recorded, any portion of which was
eavesdropped on or recorded by Defendant Securus Technologies, Inc. by
means of an electronic device during the period from July, 10, 2008 to the
applicable opt-out date, inclusive[.]
14
15
(Id. at 34.) The court also appointed as class counsel the Law Office of Robert L. Teel, the
16
Law Offices of Ronald A. Marron, and Foley & Lardner. Id.
17
Thereafter, the parties participated in two day-long mediation sessions with the
18
Honorable Leo S. Papas (Retired), first on October 3, 2018 and again on August 16, 2019.
19
While the mediations did not result in an immediate settlement, the parties reportedly made
20
significant progress and continued to engage in direct settlement negotiations following the
21
conclusion of the second mediation.
22
On December 3, 2018, Plaintiffs filed an interlocutory request with the Ninth Circuit
23
to appeal the denial of their motion for partial summary judgment, which was denied. (Doc.
24
Nos. 143, 149.) Additionally, Plaintiffs and Securus petitioned the Ninth Circuit for review
25
of the district court’s class certification order. (Doc. Nos. 144, 145.) Plaintiffs sought
26
review of the district court’s denial of class certification as to all claims except their CIPA
27
claim, arguing that they were based on the same central question and common proof. (Doc.
28
No. 144.) Securus sought review of three questions: (1) whether the court could certify
3
16cv1283 JM (MDD)
1
class claims without any evidence that Securus had a common, class-wide intention about
2
recording; (2) whether class litigation was superior to other forms of litigation in this case;
3
and (3) whether the court had the authority to grant Plaintiffs’ motion for class certification
4
after having denied Plaintiffs’ first motion for class certification. (Doc. No. 145.) Securus
5
also argued that the district court erred because the court misapplied the law governing
6
allegations of improperly recorded calls after 2014. Id. On February 27, 2019, the Ninth
7
Circuit denied Plaintiffs’ petition, but granted Securus’ petition. (Doc. Nos. 155, 156.) On
8
April 17, 2019, the action was stayed in the district court pending Securus’ appeal. (Doc.
9
No. 168.)
10
Following the Ninth Circuit’s grant of review of Securus’ petition, the Ninth Circuit
11
appointed a mediator. After multiple status conferences with the mediator, an agreement
12
was reached. On March 12, 2020, the Ninth Circuit dismissed the appeal without prejudice
13
to reinstatement for approval of the settlement by the district court. On May 18, 2020,
14
Plaintiffs filed the instant motion for preliminary approval of the class action settlement.
15
II.
SETTLEMENT AGREEMENT TERMS
16
The terms of the proposed settlement include only injunctive relief, and no monetary
17
relief, to the class members. (Doc. No. 175-3). Under the proposed settlement agreement,
18
within six months of the date the court enters judgment granting final approval of the
19
settlement, Securus will: (1) make available to its current and future California facility
20
customers a “private call” option when dialing approved numbers that will allow inmates
21
to make free calls that “will not be recorded;” (2) make available to its current and future
22
California customers message prompts advising them, inter alia, that calls to non-approved
23
numbers may be monitored and recorded, but calls to approved numbers will not; and
24
(3) post on its website information on how to designate a telephone number as an approved
25
number. For five years thereafter, Securus will provide Plaintiffs’ counsel with bi-annual
26
declarations describing Securus’ compliance. Additionally, subject to the court’s approval,
27
Securus will pay each Plaintiff a service award of $20,000, and attorneys’ fees and costs in
28
the amount of $840,000. Only the named Plaintiffs, not class members, will release their
4
16cv1283 JM (MDD)
1
claims for injunctive relief and for damages. Finally, upon issuance of the preliminary
2
approval order, Securus will engage a third-party administrator, ILYM Group, to provide
3
notice to class members by email, or in the event of an invalid email address, by mail.
4
As a result of their settlement, the parties request that the court amend its November
5
21, 2018 class certification order so that it includes only injunctive relief under Rule
6
23(b)(2). See Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies class certification
7
may be altered or amended before final judgment.”); see also In re MDC Holdings Sec.
8
Litig., 754 F. Supp. 785, 801 (S.D. Cal. 1990) (“Throughout the trial, the district court
9
retains the authority to amend the certification order as may be appropriate as the case
10
develops.”). Accordingly, Plaintiffs seek to modify the November 21, 2018 class definition
11
to the following:
12
Every person who was a party to any portion of a conversation between a
person who was in the physical custody of a law enforcement officer or other
public officer in California, and that person’s attorney, on a telephone number
designated or requested not to be recorded, any portion of which was
eavesdropped on or recorded by Defendant Securus Technologies, Inc. by
means of an electronic device during the period July 10, 2008 through
whichever occurs first: (1) the date on which the court grants preliminary
approval of the settlement; or (2) June 16, 2020.
13
14
15
16
17
18
(Doc. No. 171-1 at 12.)1
19
III.
PRELIMINARY CERTIFICATION OF RULE 23 CLASS
20
Before approving the settlement, the court’s “threshold task is to ascertain whether
21
the proposed settlement class satisfies the requirements of Rule 23(a) of the Federal Rules
22
of Civil Procedure applicable to class actions, namely: (1) numerosity, (2) commonality,
23
24
25
26
27
28
1
Although the court has already appointed class counsel, Plaintiffs also request that the
court “reconfirm” the appointment of the Law Office of Robert L. Teel, the Law Offices
of Ronald A. Marron, and Foley & Lardner as class counsel for the settlement. (Doc. No.
175-1 at 20-21.) Plaintiffs support this request by noting that they have devoted and will
continue to devote a significant amount of time and effort to this litigation, and that they
have extensive experience in complex litigation and class actions. (Id.)
5
16cv1283 JM (MDD)
1
(3) typicality, and (4) adequacy of representation.” Hanlon v. Chrysler Corp., 150 F.3d
2
1011, 1019 (9th Cir. 1998). In the settlement context, the court “must pay undiluted, even
3
heightened, attention to class certification requirements.” Id. In addition, the court must
4
determine whether class counsel is adequate (Fed. R. Civ. P. 23(g)), and whether “the
5
action is maintainable under Rule 23(b)(1), (2), or (3).” In re Mego Fin. Corp. Sec. Litig.,
6
213 F.3d 454, 462 (9th Cir. 2000) (quoting Amchem Prod. v. Windsor, 521 U.S. 591, 614
7
(1997)).
8
A.
Numerosity
9
This requirement is satisfied if the class is “so numerous that joinder of all members
10
is impracticable.” Fed. R. Civ. P. 23(a)(1). “A class greater than forty members often
11
satisfies this requirement[.]” Walker v. Hewlett-Packard Co., 295 F.R.D. 472, 482 (S.D.
12
Cal. 2013) (citing Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249
13
F.R.D. 334, 346 (N.D. Cal. 2008)). Here, the court previously found that joinder of the
14
246 potential class members identified by Plaintiffs would be impracticable. (Doc. No.
15
141 at 30-31.) Additionally, given that the relief sought now only includes injunctive relief,
16
the numerosity requirement may be relaxed. See Reynoso v. RBC Bearings, Inc., Case No.
17
SACV 16-01037 JVS(JCGx), 2017 WL 6888305, at *5 (C.D. Cal. Oct. 5, 2017), decertified
18
on other grounds by Reynoso v. All Power Mfg. Co., No. SACV 16-01037 JVS(JCGx),
19
2018 WL 5906645, at *6 (C.D. Cal. Apr. 30, 2018). Accordingly, this requirement has
20
been met.
21
B.
Commonality
22
This requirement is satisfied if “there are questions of law or fact common to the
23
class.” Fed. R. Civ. P. 23(a)(2). “To satisfy this commonality requirement, plaintiffs need
24
only point to a single issue common to the class.” Vasquez v. Coast Valley Roofing,
25
Inc., 670 F. Supp. 114, 1121 (E.D. Cal. 2009). Here, as the court previously found, the
26
requirement is satisfied because the class claim involves a single common question and
27
that common issues dominate this litigation. (Doc. No. 141 at 31.) The court identified
28
the following two class-wide questions that could be answered by common proof: (1)
6
16cv1283 JM (MDD)
1
“[w]hether Securus recorded calls between detainees and attorneys without their
2
permission,” and (2) “[h]ow and why Securus recorded detainee-attorney calls.” (Id. at
3
24.)
4
C.
Typicality
5
The typicality requirement is satisfied if “the claims or defenses of the representative
6
parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The
7
test of typicality is whether other members have the same or similar injury, whether the
8
action is based on conduct which is not unique to the named plaintiffs, and whether other
9
class members have been injured by the same course of conduct.” Hanon v. Dataproducts
10
Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation and citation omitted). Here,
11
the court previously found that “[l]ike all class members, Plaintiffs’ confidential calls were
12
recorded by Securus without their permission.” (Doc. No. 141 at 31). Thus, the injunctive
13
relief achieved by the settlement would apply to Plaintiffs and other members of the class
14
equally. For the purposes of preliminary approval of settlement, therefore, Plaintiffs have
15
made an adequate showing of typicality.
16
D.
Adequacy
17
The final Rule 23(a) requirement is that “the representative parties will fairly and
18
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requires the
19
court to address two questions: “(a) do the named plaintiffs and their counsel have any
20
conflicts of interest with other class members and (b) will the named plaintiffs and their
21
counsel prosecute the action vigorously on behalf of the class.” In re Mego, 213 F.3d at
22
462. A court certifying a class must consider: “(i) the work counsel has done in identifying
23
or investigating potential claims in the action; (ii) counsel’s experience in handling class
24
actions; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel
25
will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court may also
26
consider “any other matter pertinent to counsel’s ability to fairly and adequately represent
27
the interests of the class.” Id. at 23(g)(1)(B).
28
7
16cv1283 JM (MDD)
1
Here, the court already determined that Plaintiffs and class counsel will fairly and
2
adequately protect the class members’ interests. (Doc. No. 141 at 32-33.) Plaintiffs assert
3
that “nothing has changed in that regard,” and “[s]ince the Court’s order granting class
4
certification, Class Counsel have continued to vigorously litigate this action before this
5
Court and the Ninth Circuit and have engaged in extensive settlement negotiations, further
6
evidencing that Rule 23(a)’s adequacy requirements remain satisfied.” (Doc. 175-1 at 18.)
7
Because there is no obvious conflict between the named Plaintiffs’ interests and those of
8
the class members, and because Plaintiffs’ counsel appears to have extensive experience in
9
litigating wage and hour class action lawsuits, this element is satisfied for the purposes of
10
11
preliminary approval.
E.
Rule 23(b)(2)
12
“In addition to meeting the conditions imposed by Rule 23(a), the parties seeking
13
class certification must show that the action is maintainable under Fed. R. Civ. P 23(b)(1),
14
(2) or (3).” Hanlon, 150 F.3d at 1022. Rule 23(b)(2) provides that a class action may be
15
maintained if “the party opposing the class has acted or refused to act on grounds that apply
16
generally to the class, so that final injunctive relief or corresponding declaratory relief is
17
appropriate respecting the class as a whole[.]” Here, the court previously determined that
18
a single injunction or declaratory judgment would provide relief to each member of the
19
class. (Doc. No. 141 at 30 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360
20
(2011)). Additionally, the court previously found that “[a]n injunction prohibiting Securus
21
from eavesdropping on, listening to, recording, disclosing, or using communications
22
between detainees and their attorneys without their permission would prevent an issue
23
similar to the one presented here from recurring,” and that such a ruling “would benefit all
24
members of the class.” (Id. at 29.) In accordance with the above, for purposes of
25
preliminary approval, Plaintiffs have satisfied the requirements for certification of a class
26
under Rule 23.
27
28
8
16cv1283 JM (MDD)
1
IV.
PRELIMINARY APPROVAL OF SETTLEMENT
2
“At the preliminary approval stage, the Court may grant preliminary approval of a
3
settlement if the settlement: (1) appears to be the product of serious, informed, non-
4
collusive negotiations; (2) has no obvious deficiencies; (3) does not improperly grant
5
preferential treatment to class representatives or segments of the class; and (4) falls within
6
the range of possible approval.” Sciortino v. PepsiCo, Inc., Case No. 14-cv-00478-EMC,
7
2016 WL 3519179, at *4 (N.D. Cal. June 38, 2016) (quoting Harris v. Vector Mktg. Corp.,
8
No. C-08-5198 EMC, 2011 WL 1627973, at *7 (N.D. Cal. Apr. 29, 2011)). “At the
9
preliminary approval stage, a full fairness analysis is unnecessary.” Zepeda v. Paypal, Inc.,
10
No. C 10-1668 SBA, 2014 WL 718509, at *4 (N.D. Cal. Feb. 24, 2014) (internal quotation
11
marks and citation omitted). “Closer scrutiny is reserved for the final approval hearing.”
12
Sicortino, 2016 WL 3519179, at *4.
13
Rule 23(e) provides that “[t]he claims, issues, or defenses of a certified class may be
14
settled, voluntarily dismissed, or compromised only with the court’s approval.” “Adequate
15
notice is critical to court approval of a class settlement under Rule 23(e).” Hanlon, 150
16
F.3d at 1025. The Rule also “requires the district court to determine whether a proposed
17
settlement is fundamentally fair, adequate and reasonable.” Id. at 1026. In making this
18
determination, the court is required to “evaluate the fairness of a settlement as a whole,
19
rather than assessing its individual components.” Lane v. Facebook, Inc., 696 F.3d 811,
20
818-19 (9th Cir. 2012). Because a “settlement is the offspring of compromise, the question
21
we address is not whether the final product could be prettier, smarter or snazzier, but
22
whether it is fair, adequate and free from collusion.” Hanlon, 150 F.3d at 1027. Thus, in
23
assessing a settlement proposal, the district court is required to balance a number of factors,
24
namely:
25
26
27
28
the strength of the plaintiff’s case; the risk, expense, complexity, and likely duration
of further litigation; the risk of maintaining class action status throughout 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 governmental
participant; and the reaction of the class members to the proposed settlement.
9
16cv1283 JM (MDD)
1
Id. at 1026. The court’s primary concern “is the protection of those class members,
2
including the named [p]laintiffs, whose rights may not have been given due regard by the
3
negotiating parties.” Officers for Justice v. Civil Serv. Comm’n of City & Cnty. of San
4
Francisco, 688 F.2d 615, 624 (9th Cir. 1982) (citation omitted). “In most situations, unless
5
the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy
6
and expensive litigation with uncertain results.”
7
DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). “Naturally, the agreement reached
8
normally embodies a compromise; in exchange for the saving of cost and elimination of
9
risk, the parties each give up something they might have won had they proceeded with
10
litigation.” U.S. v. Armour & Co., 402 U.S. 673, 681 (1971). Furthermore, there is a strong
11
judicial policy in favor of settlement, but the settlement may not be the product of collusion
12
among the negotiating parties. Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th
13
Cir. 2004). A full fairness analysis is unnecessary at the preliminary approval stage
14
because some of these factors may not be able to be fully assessed until the court conducts
15
a final fairness hearing. See Dalton v. Lee Publ’ns, Inc., No. 08-CV-1072-GPC-NLS, 2015
16
WL 11582842, at *6 (S.D. Cal. Mar. 6, 2015). “At this preliminary approval stage, the
17
court again need only ‘determine whether the proposed settlement is within the range of
18
possible approval’” and thus, whether the notice to the class and the scheduling of a fairness
19
hearing is appropriate. Alberto v. GMR, Inc., 252 F.R.D. 652, 666-67 (E.D. Cal. 2008)
20
(citation omitted).
Nat’l Rural Telecomms. Coop. v.
21
Plaintiffs argue that the proposed settlement represents a fair, adequate, and
22
reasonable result for class members because the class members: (1) will receive notice of
23
the litigation and the changes in Securus’ privacy practices; (2) will be given an opportunity
24
to object; and (3) are not bound to release any rights they may have to seek and obtain
25
monetary damages or other relief. (Doc. No. 175 at 22.) Plaintiffs further argue that the
26
proposed settlement satisfies the standard for preliminary approval because it: (1) falls
27
within the range of possible approval; (2) is the product of serious, informed, and non-
28
collusive negotiations; (3) has no obvious deficiencies; and (4) does not improperly grant
10
16cv1283 JM (MDD)
1
preferential treatment to class representatives or segments of the class. (Id. at 22-23 (citing
2
Lopez v. Mgmt. & Training Corp., Case No.: 17cv1624 JM(RBM), 2019 WL 6829250, at
3
*5 (S.D. Cal. Dec. 13, 2019)).
4
A.
Range of Possible Approval
5
To determine whether a proposed settlement is within the range of possible approval,
6
“courts primarily consider plaintiffs’ expected recovery balanced against the value of the
7
settlement offer.” See In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D.
8
Cal. 2007). This requires the court to evaluate the strength of a plaintiff’s case. Id. Here,
9
Plaintiffs assert that the injunctive relief in the proposed settlement is designed to eliminate
10
virtually all risk of inadvertent recording of attorney-detainee phone calls. (Doc. No. 171-
11
1 at 23.) Plaintiffs argue, and the court agrees, that the outcome of litigation is uncertain
12
because Securus continues to deny any wrongdoing and there is the distinct possibility that
13
the Ninth Circuit could reverse the district court’s order granting class certification.
14
Additionally, because the district court rejected Plaintiffs’ theory of strict liability on
15
summary judgment, and because the Ninth Circuit declined to review that issue, Plaintiffs
16
may be required to prove scienter at trial, which will be challenging because Securus
17
maintains that the call recordings resulted from a software glitch.
18
B.
Arm’s Length Negotiations
19
In Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009), the Ninth Circuit
20
stated, “[w]e put a good deal of stock in the product of an arms-length, non-collusive,
21
negotiated resolution.” Plaintiffs argue, and the court agrees, that the proposed settlement
22
is the result of an arm’s length negotiation because: (1) it was preceded by four years of
23
litigation involving extensive discovery and substantive motions; (2) at the time of
24
settlement, Plaintiffs and class counsel had a full understanding that injunctive relief would
25
adequately benefit the class when weighed against the risks of continuing litigation; (3) the
26
parties participated in two in-person mediation sessions with an experienced mediator, and
27
several months of continued settlement negotiations supervised by the Ninth Circuit
28
11
16cv1283 JM (MDD)
1
mediator; and (4) class counsel have extensive experience in complex litigation and class
2
actions. (Doc. No. 171-1 at 26-27.)
3
C.
Deficiencies
4
In Tableware, 484 F. Supp. 2d. at 1080, the district court found that a settlement is
5
likely free from obvious deficiencies when it provides a real, immediate benefit to the class
6
despite numerous risks. Plaintiffs argue, and the court agrees, that the injunctive relief
7
afforded is significant in light of the serious risks Plaintiffs face obtaining relief for the
8
class at trial, and the risk that the Ninth Circuit would reverse class certification. (Doc.
9
No. 175-1 at 27.)
10
D.
Preferential Treatment
11
“[T]he Ninth Circuit has recognized that service awards to named plaintiffs in a class
12
action are permissible and do not render a settlement unfair or unreasonable.” Harris v.
13
Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *9 (N.D. Cal. Apr. 29,
14
2011) (citing Stanton v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003)). Plaintiffs therefore
15
argue that the proposed settlement agreement does not give preferential treatment to any
16
member, even though it authorizes the named Plaintiffs to seek an amount up to $20,000
17
as a service award. (Doc. No. 17-1 at 28.) As the court made clear to the parties during
18
the hearing on the instant motion, the appropriateness of a service award, and the amount
19
of any service award, will ultimately be decided by the court after the final approval
20
hearing.
21
E.
Notice
22
Class members are entitled to receive the best notice practicable about the
23
settlement. Fed. R. Civ. P. 23(c)(2). Notice should be “reasonably calculated, under all
24
the circumstances, to apprise interested parties of the pendency of the action and afford
25
them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr.
26
Co., 339 U.S. 306, 314 (1950). “[T]he mechanics of the notice process are left to the
27
discretion of the court subject only to the broad ‘reasonableness’ standards imposed by due
28
12
16cv1283 JM (MDD)
1
process.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 120 (8th Cir. 1975). In support
2
of the sufficiency of their proposed notice, Plaintiffs state:
3
4
5
6
7
8
[T]he settlement administrator will be provided with the most current list of
names, email addresses, and physical addresses of Class Members based on
Defendant’s records. The settlement administrator will then email (and if
necessary, mail) the Notice to all known Class Members. The Notice directs
Class Members to the Settlement website, where they can find Settlementrelated documents, including the Settlement Agreement, the Notice, and other
pertinent information.
(Doc. No. 171-1 at 25.)
9
The proposed class notice appears plain and easily understood because the notice
10
describes the claims, the class members, the relief provided under the settlement, and class
11
members’ rights and option to appear at the final approval hearing personally or through
12
counsel. (Doc. 175-3 at 21-22.) Additionally, class members will have an opportunity to
13
object to the settlement because under a Rule 23(b)(2) class action involving injunctive
14
relief, there is no opportunity to opt out, and the class members here are not bound by the
15
release.
16
V.
CONCLUSION AND ORDER
17
Based on the April 17, 2020 settlement agreement, the unopposed motion for
18
preliminary approval of the settlement, supporting documents, and a hearing with the
19
parties, the court concludes upon preliminary examination, that: (1) the proposed class
20
satisfies the requirements of Rule 23(a) and Rule 23(b)(2); (2) the settlement appears fair,
21
reasonable, and adequate, and within the range of reasonableness for preliminary approval
22
such that a presumption of fairness is appropriate; (3) the class should receive notice of the
23
settlement and be provided the opportunity to object to it; and (4) whether the settlement
24
is fair, reasonable, and adequate and should be finally approved and confirmed through
25
final judgment, and whether the court should grant class counsel’s request for payment of
26
attorneys’ fees, as well as the service award for the class representatives, should be
27
considered at, and is reserved for, a final approval hearing.
28
13
16cv1283 JM (MDD)
1
The court therefore preliminarily finds that the settlement of the action, on the terms
2
and conditions set forth in the agreement and the exhibits thereto, are fundamentally fair,
3
reasonable, adequate and in the best interests of the class members, taking into
4
consideration the benefits to class members; the strength and weaknesses of Plaintiffs’
5
case; the complexity, expense and probable duration of further litigation; and the risk and
6
delay inherent in possible appeals, subject to the following revisions:
7
8
1. The first full sentence of Article III, “SETTLEMENT TERMS,” Section E, Subpart
9
4, “Compliance Reporting,” on page 6 of 17 of the Settlement Agreement shall be
10
amended and restated to read, “Within twelve (12) months of the Effective Date, and
11
within each six-month period thereafter during the Term of this Settlement
12
Agreement, Securus will serve on Class Counsel a declaration executed under
13
penalty of perjury describing Securus’ compliance with the requirements of this
14
Agreement.”
15
16
2. The second full sentence of Article III, “SETTLEMENT TERMS,” Section G,
17
“Service Awards,” on page 7 of 17 of the Settlement Agreement shall be amended
18
and restated to read, “After preliminary approval of the Agreement, the Class
19
Representatives may file a petition for Service Awards in an amount up to $20,000
20
each.”
21
22
3. The last sentence of Article IV, “RELEASE OF CLAIMS,” Section A on page 7 of
23
17 of the Settlement Agreement shall be amended and restated to read, “Plaintiffs
24
shall release any further rights to file an Application for Attorneys’ Fees and Costs
25
and for a Service Award following entry of the Court’s order in connection therewith
26
and the Court’s Final Approval Order.”
27
28
14
16cv1283 JM (MDD)
1
4. Article VIII, “MISCELLANEOUS PROVISIONS,” Section V, “Continuing
2
Jurisdiction,” on page 15 of 17 of the Settlement Agreement shall be amended and
3
restated in its entirety to read “Continuing Jurisdiction. The Court may have
4
continuing jurisdiction to implement this Agreement’s terms and the Final
5
Judgment. The Parties submit to the jurisdiction of the Court for purposes of
6
implementing the terms of the Settlement Agreement.”
7
8
Notice of the settlement should be given to persons in the class and a full hearing
9
should be held for final approval of the settlement. The provisions of the settlement
10
agreement as modified herein are preliminarily approved and the parties shall comply with
11
each of its terms. The court also hereby finds and orders the following:
12
1.
Jurisdiction
13
Based on the information provided by the parties to date, the court appears to have
14
jurisdiction over the subject matter of this action and over each of the parties hereto,
15
including under 28 U.S.C. § 1332, and venue appears proper in this district.
16
2.
Settlement Administrator
17
The court approves the selection of ILYM, Inc. to be the settlement administrator.
18
The settlement administrator will administer the applicable provisions of the agreement in
19
accordance with the terms of the agreement, including, but not limited to: (1) distributing
20
and providing the class notice; (2) receiving and examining objections; and (3) preparing,
21
administering, and issuing all payments and disbursements required under the settlement
22
agreement.2
23
3.
Class Action Fairness Act
24
In compliance with the Class Action Fairness Act, 28 U.S.C. § 1715, and as set forth
25
in the agreement, Defendant itself, or through its designee, is ordered to serve written notice
26
27
2
28
As stated in the settlement agreement, the Defendant shall pay all costs and expenses in
connection with giving notice as set forth herein.
15
16cv1283 JM (MDD)
1
of the proposed settlement on the U.S. Attorney General and the appropriate California
2
state official, unless such notice has already been served.
3
4
5
6
7
8
9
10
4.
Class Members
Pursuant to Rule 23(b)(2), the certification of the action is confirmed for settlement
purposes as a class action on behalf of the following class members:
Every person who was a party to any portion of a conversation between a
person who was in the physical custody of a law enforcement officer or other
public officer in California, and that person’s attorney, on a telephone number
designated or requested not to be recorded, any portion of which was
eavesdropped on or recorded by Defendant Securus Technologies, Inc. by
means of an electronic device during the period July 10, 2008 through June
16, 2020.
11
12
Excluded from the class are the judges to whom the action is or has been assigned and any
13
member of the judges’ staffs and immediate families.
14
5.
Class Representatives and Class Counsel Appointments
15
For purposes of the court considering preliminary approval, the court confirms its
16
appointment of Plaintiffs as the class representatives and Foley & Lardner LLP, the Law
17
Offices of Ronald A. Marron, and the Law Office of Robert L. Teel as class counsel.
18
6.
Distribution of Notice
19
The court approves the form, content and method of notice set forth in the agreement.
20
Defendant shall provide the class list and email addresses to the settlement administrator
21
within five (5) days of this order granting preliminary approval.
22
The furnishing of information by Defendant to the settlement administrator for
23
purposes of giving notice to settlement class members or otherwise to administer the
24
settlement is pursuant to this court’s order, as relevant to any law regarding consumer
25
reports.
26
No later than ten (10) days after the date of this order, the settlement administrator
27
shall establish the settlement and notice website. No later than fifteen (15) days after the
28
date of this order, the settlement administrator shall send by email the class notice and a
16
16cv1283 JM (MDD)
1
link to the settlement website to each person on the class list at their last known email
2
address as provided by Defendant or as updated by the settlement administrator. The email
3
will include a link to the settlement website to be maintained by the settlement
4
administrator. In the event of an invalid email address, the settlement administrator will
5
mail hardcopies of the notice to the address in Securus’ database or as updated by the
6
settlement administrator through the national change of address database or otherwise. The
7
settlement administrator shall use such methods as it determines are practicable (which
8
may include a reverse-directory lookup and/or skip tracing) to attempt to match email
9
addresses or mail addresses and contact information to names and addresses.
10
As to class members whose names and addresses are not located through such
11
methods, the settlement administrator shall provide notice by the settlement website. The
12
settlement website shall contain the full details of the settlement. If the attempts at notice
13
for any class member are unsuccessful, the settlement website shall constitute notice and
14
the class member shall be deemed a member of the settlement class whose rights and claims
15
with respect to the issues raised in this action will be determined by the court’ s final order
16
approving the settlement of the class claim and this action, the judgment, and by the other
17
rulings in the action. With their motion for final settlement approval, class counsel shall
18
file a declaration from the settlement administrator detailing its compliance with the notice
19
procedures set forth in the agreement.
20
The form, content, and method of notice set forth in the agreement and approved
21
herein provide a means of notice reasonably calculated to apprise the class members of the
22
pendency of the action and the proposed settlement, and thereby meet and satisfy the
23
requirements of Rule 23(c)(2), as well as due process under the United States Constitution,
24
and any other applicable law, and shall constitute due and sufficient notice to all settlement
25
class members entitled thereto.
26
7.
Settlement Process
27
The court preliminarily approves the settlement for injunctive relief only as fair,
28
reasonable, and adequate for members of the class. The Defendant shall institute the
17
16cv1283 JM (MDD)
1
changes to its business practices within the time frame set forth in the agreement. The
2
court preliminarily approves the process set forth in the agreement for the change in
3
Defendant’s business practices.
4
8.
Class Certification
5
The court confirms that the action satisfies the applicable prerequisites for class
6
action treatment under Rule 23 and preliminarily confirms its certification of the class and
7
approves the class for settlement under Rule 23(b)(2).
8
9.
Objections by Class Members
9
Any class member may object to the settlement, including without limitation, the
10
injunctive relief to be undertaken by Defendant under the settlement, class counsels’
11
application for attorneys’ fees and litigation expenses, and the class representatives’ service
12
payments, by mailing a written objection to the settlement administrator asking the court
13
to deny approval containing the class member’s name, address, and telephone number, and
14
a statement that he or she objects to the approval of the settlement.
15
The last day for class members to submit written objections shall be seventy-five
16
(75) days after the date of this order granting preliminary approval of the settlement. Any
17
such objections must be made in accordance with the terms set forth in the class notice and
18
will be timely only if postmarked no later than seventy-five (75) days after the date of this
19
order granting preliminary approval of this settlement and agreement.
20
Any class member who wants to appear at the final approval hearing, either
21
personally or through counsel, must so state in his or her objection. The timeliness of
22
objections and notices shall be conclusively determined by the postmark date. Class
23
counsel shall file with the court any objections received with the final approval motion
24
papers. No later than seven (7) days before the final approval hearing, the parties may file
25
with the court replies to any objections.
26
Class members appearing through their own attorney are responsible for paying that
27
attorney. All written objections and supporting papers filed with the court must clearly
28
identify the case name and number, be submitted to the court either by mailing them to the
18
16cv1283 JM (MDD)
1
Clerk of the Court for the United States District Court for the Southern District of
2
California, or by filing them in person in the United States District Court for the Southern
3
District of California, and be filed or postmarked on or before the objection deadline. Class
4
members who do not file their objections in the manner set forth herein will be deemed to
5
have waived all objections.
6
10.
7
Motion for Final Approval and Application for Attorney Fees
and Costs and Service Awards.
8
Class counsel shall file a motion for final approval of the settlement, approval of class
9
representatives’ service payments, and an application for attorneys’ fees and costs no later than
10
sixty (60) days after the date of this order granting preliminary approval of the settlement. The
11
motion for final approval of settlement and motion for attorneys’ fees shall be posted on the
12
settlement website by the settlement administrator so that they may be reviewed and printed
13
out by any member of the settlement class or any other person.
14
11.
Final Approval Hearing
15
The court will conduct a final approval hearing on Monday, September 28, 2020 in
16
courtroom 5D of the United States District Court for the Southern District of California, 221
17
West Broadway, San Diego, California 92101. The final approval hearing may be rescheduled
18
or continued by the court without further notice to the settlement class members. At the final
19
approval hearing, the court will consider: (1) whether this action satisfies the applicable
20
prerequisites for class action treatment for settlement purposes under Rule 23; (2) whether the
21
settlement is fundamentally fair, reasonable, adequate, and in the best interest of the class
22
members and should be approved by the court; (3) whether the order granting final approval
23
of class action settlement and final judgment, as provided under the agreement, should be
24
entered issuing the injunction, releasing the released claims, and dismissing the action with
25
prejudice; and (4) such other issues as the court deems appropriate. Attendance by the class
26
members at the final approval hearing is not necessary. Settlement class members need not
27
appear at the hearing or take any other action to indicate their approval of the proposed class
28
action settlement.
19
16cv1283 JM (MDD)
1
12.
Other Proceedings and Continuing Jurisdiction
2
Pending the final determination of the fairness, reasonableness, and adequacy of the
3
proposed settlement, no class representative shall prosecute, institute, commence, or continue
4
any lawsuit (individual action or class action) with respect to any claims released against the
5
Defendant. If the agreement is not finally approved for any reason, then this order shall be
6
vacated, the agreement shall have no force and effect, and the parties’ rights and defenses shall
7
be restored, without prejudice, to their respective positions as if the agreement had never been
8
executed and this order never entered, subject to the court’s discretion. The court retains
9
continuing and exclusive jurisdiction over the action to consider all further matters arising
10
out of or connected with the settlement, including the administration and implementation
11
of the agreement.
12
13
14
IT IS SO ORDERED.
DATED: June 16, 2020
JEFFREY T. MILLER
United States District Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
16cv1283 JM (MDD)
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?