Figueroa v. Capital One, N.A. et al

Filing 80

ORDER on 79 Plaintiff's Motion for Preliminary Approval of Class Action Settlement. Final Approval Hearing set for 1/11/2021 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 6/16/2020. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JACOB FIGUEROA and MARY
JACKSON, on behalf of themselves and
all other similarly situated,

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Case No.: 18cv692 JM(BGS)
ORDER ON PLAINTIFFS’
UNOPPOSED MOTION FOR
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

Plaintiffs,
v.
CAPITAL ONE, N.A.,

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Defendant.

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Presently before the court is Plaintiffs’ Unopposed Motion for Preliminary Approval

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of Class Action Settlement. A telephonic hearing on the motion was held on June 8, 2020.

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For the reasons set forth on the record and as explained in more detail below, the motion

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is GRANTED.

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I.

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This dispute centers around the fees Defendant Capital One, N.A., (“Capital One”),

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charges its customers for using Out-of-Network (“OON”) automatic teller machines

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(“ATMs”). When a Capital One accountholder withdraws funds from an OON ATM they

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are typically assessed a $2 or $3 fee by the ATM owner along with a $2 charge by Capital

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One. Capital One also charges its accountholders a third fee if a customer checks their

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balance while in the process of making a cash withdrawal at OON ATMs. (Doc. No. 6,

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“FAC” at ¶ 6.) Plaintiffs allege that these fees for OON balance inquiries, or “third” fees,

Background

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were wrongfully charged and were in violation of Capital One’s standardized account

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agreement, Fee Schedule and Electronic Funds Transfers Agreement and Disclosure.

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(FAC at ¶¶ 24, 31, 33, 50, 67-71.) Typically, Capital One charged its customers $2.00 1 for

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each OON balance inquiry about which they complain.

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On April 6, 2018, Plaintiffs initiated this action by filing suit. (Doc. No. 1.) On

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May 30, 2019, an amended complaint was filed that alleges eight causes of action, namely:

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(1) breach of contract; (2) breach of the covenant of good faith and fair dealing;

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(3) conversion; (4) unjust enrichment; (5) violation of the unfair prong of California’s

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Unfair Competition Law (“UCL”), CAL. BUS. & PROF. CODE § 17200, et seq; (6) violation

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of the fraudulent prong of the UCL; (7) violation of the California Consumer Legal

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Remedies Act (“CLRA”), CAL. CIV. CODE § 1770, et seq; and (8) violation of the New

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York Consumer Protection Act, N.Y. GEN. BUS. LAW §§ 349-350. (See generally FAC.)

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On October 7, 2019, the court denied Defendant’s motion for partial summary
judgment on Plaintiffs’ breach of contract claim. (Doc. No. 56.)

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On March 4, 2020, the parties participated in a private mediation before Bruce

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Freidman, Esq., which, after a full day’s mediation, led to the proposed settlement currently

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before the court.

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II.

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On May 8, 2020, Plaintiffs filed the instant motion for preliminary approval of the

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class action settlement. 2 (Doc. No. 74.) The motion contained drafts of the notices to

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potential class members that would be emailed, mailed and posted on a website. (Doc. No.

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75, Exhibit A-C, at 24-38.)

Settlement Agreement Terms

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The class is defined as follows:

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All Capital One accountholders in the United States who, within the Class
Period, incurred at least one OON Balance Inquiry Fee. Excluded from the

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This third fee has now increased to $2.50.
A corrected appendix of exhibits was filed after the original motion was filed. (See Doc.
No 75.)

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Settlement Class is Capital One, its parents, subsidiaries, affiliates, officers
and directors; all accountholders who make a timely election to be excluded;
and all judges assigned to this litigation and their immediate family members.

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(Doc. No. 75, “Agreement” at ¶ 1.22.) At the hearing, Mr. Kaliel clarified that the class
includes former and current account holders.
The class period is defined as follows:
• For settlement Class Members whose accounts were established in
Louisiana: the period from April 6, 2008 to June 30, 2020;
• For settlement Class Members whose accounts were established in
Connecticut, New York, and New Jersey: the period from April 6, 2012
to June 30, 2020;
• For settlement Class Members whose accounts were established in
Virginia: the period from April 3, 2013 to June 30, 2020;
• For settlement Class Members whose accounts were established in
Texas: the period from April 6, 2014 to June 30, 2020; and
• For Settlement Class Members whose accounts were established in the
District of Columbia, Maryland, and Delaware; the period from
April 6, 2015 to June 30, 2020.

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(Agreement at ¶ 1.4.) During the hearing, the court confirmed that all class members are

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covered in the class periods.

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A total of 1,683,345 Capital One customers are eligible class member. (Doc. No. 74-

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3, Kaliel Decl. at ¶ 30.) The Settlement Agreement requires Capital One to pay a gross

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settlement amount of $13,000,000, allocated as follows: $10,000 as an incentive award for

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Figueroa; $10,000 as an incentive award for Jackson; $3,900,000 to Plaintiffs’ counsel (See

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Agreement, at ¶¶ 1.6, 3.1, 3.2.) What was unknown from the papers was the amount

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estimated to be paid to BrownGreer, PLC, the Class Administrator for administration cost

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and Plaintiffs’ counsels’ costs. When questioned by the court, Plaintiffs’ counsel, Mr.

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Kaliel, informed the court that Administrator costs are estimated to be at $750,000, with

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counsels’ cost estimated at approximately $100,000. The resulting amount left in the

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settlement fund to pay class member, based off Plaintiffs’ numbers, is projected to be

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$8,230,000. 3

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The settlement provides that each member who paid at least one OON Balance

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Inquiry Fee that was assessed during the Class Period shall be entitled to receive a class

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member payment from the Settlement Fund. “Each member’s payment shall be equal to

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the member’s pro rata share of the settlement fund based on the total number of OON

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Balance Inquiry Fees paid by class member.” (Agreement at 7.) No information regarding

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the average amount each class member will recover was provided. At the hearing, Mr.

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Kaliel informed the court that over the class period Capital One has assessed the third fee

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approximately 20 million times.

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In exchange for their pro rata share, all class members are deemed to release Capital
Once from claims relating to the subject matter of this action. (Id. at 7, 8.)

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The updated Notices submitted following the hearing clarify that the settlement

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administration costs will be paid from the Settlement Amount, and that both current and

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former Capital One accountholders are eligible for relief under the Settlement. The Notices

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also state expressly that Plaintiffs may seek Service Awards of up to $10,000 and may seek

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attorneys’ fees of up to 30% of the Settlement Amount, plus costs and expenses incurred

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in litigating this matter. (See Doc. No. 79-6, Exhibits 1A, 1B, 1C.)

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III.

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Before approving the Settlement, the court’s “threshold task is to ascertain whether

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the proposed settlement class satisfies the requirements of Rule 23(a) of the Federal Rules

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of Civil Procedure applicable to class actions, namely: (1) numerosity, (2) commonality,

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(3) typicality, and (4) adequacy of representation.” Hanlon v. Chrysler Corp., 150 F.3d

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1011, 1019 (9th Cir. 1998). In the settlement context, the court “must pay undiluted, even

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heightened, attention to class certification requirements.” Id. In addition, the court must

Preliminary Certification of Rule 23 Class

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This figure was calculated using the amounts Plaintiffs are requesting and projecting.
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determine whether class counsel is adequate (Fed. R. Civ. P. 23(g)), and whether “the

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action is maintainable under Rule 23(b)(1), (2), or (3).” In re Mego Fin. Corp. Sec. Litig.,

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213 F.3d 454, 462 (9th Cir. 2000) (quoting Amchem Prod. v. Windsor, 521 U.S. 591, 614

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(1997)).

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A. Numerosity

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This requirement is satisfied if the class is “so numerous that joinder of all members

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is impracticable.” Fed. R. Civ. P. 23(a)(1). “A class greater than forty members often

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satisfies this requirement ….” Walker v. Hewlett-Packard Co., 295 F.R.D. 472, 482 (S.D.

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Cal. 2013) (citing Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249

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F.R.D. 334, 346 (N.D. Cal. 2008). Here, the parties estimate approximately 1,683,345

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class members.

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Accordingly, this requirement has been met.

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B. Commonality

Joinder of all these potential plaintiffs would be impracticable.

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This requirement is satisfied if “there are questions of law or fact common to the

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class.” Fed. R. Civ. P. 23(a)(2). “To satisfy this commonality requirement, plaintiffs need

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only point to a single issue common to the class.” Vasquez v. Coast Valley Roofing, Inc.,

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670 F. Supp. 114, 1121 (E.D. Cal. 2009). Here, the commonality requirement is satisfied

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because the class claims involve common questions of law and fact regarding Defendant’s

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allegedly deceptive assessment of OON Balance Inquiry Fees which purportedly violated

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Capital One’s standardized account agreement, fee schedule and disclosures.

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C. Typicality

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This requirement is satisfied if “the claims or defenses of the representative parties

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are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The test of

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typicality is whether other members have the same or similar injury, whether the action is

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based on conduct which is not unique to the named plaintiffs, and whether other class

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members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp.,

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976 F.2d 497, 508 (9th Cir. 1992) (internal quotation and citation omitted). Here, the

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typicality requirement is satisfied because the claims of lead Plaintiffs and the class are
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based on the allegations that Capital One’s practices violated the contracts it had entered

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into with class members. Moreover, the Plaintiffs and the class members are alleged to

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have suffered the same injuries and will benefit from the relief provided by the settlement.

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Therefore, for purposes of settlement, Plaintiffs have made an adequate showing of

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typicality.

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D. Adequacy

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The final Rule 23(a) requirement is that “the representative parties will fairly and

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adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requires the

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court address two questions: “(a) do the named plaintiffs and their counsel have any

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conflicts of interest with other class members and (b) will the named plaintiffs and their

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counsel prosecute the action vigorously on behalf of the class.” In re Mego, 213 F.3d at

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462. A court certifying a class must consider: “(i) the work counsel has done in identifying

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or investigating potential claims in the action; (ii) counsel’s experience in handling class

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actions; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel

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will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court may also

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consider “any other matter pertinent to counsel’s ability to fairly and adequately represent

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the interests of the class.” Id. at 23(g)(1)(B). Here, there is no obvious conflict between

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Figueroa’s and Jackson’s interests and those of the class members. Similarly, Plaintiffs’

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counsel appears to have extensive experience in litigating consumer actions, has litigated

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and resolved several similar cases involving bank fees, have spent “many hours”

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investigating the claims of potential plaintiffs and “expended significant resources”

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researching and developing the claims. (See, Kaliel Decl. ¶¶ 4-10.) Accordingly, the court

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finds this element satisfied for the purposes of preliminary approval.

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E. Predominance and Superiority

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“In addition to meeting the conditions imposed by Rule 23(a), the parties seeking

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class certification must show that the action is maintainable under Fed. R. Civ. P 23(b)(1),

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(2) or (3).” Hanlon, 150 F.3d at 1022. “Rule 23(b)(3) permits a party to maintain a class

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action if . . . the court finds that the questions of law or fact common to class members
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predominate over any questions affecting only individual members, and that a class action

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is superior to other available methods for fairly and efficiently adjudicating the

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controversy.” Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1173 (9th

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Cir. 2011), aff’d 133 S. Ct. 1184 (2013) (citing Fed. R. Civ. P. 23(b)(3)).

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“predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant

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adjudication by representation.” Hanlon, 150 F.3d at 1022-23 (quoting Amchen Prods,

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Inc., 521 U.S. at 623). An examination into whether there are “legal or factual questions

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that qualify each class member’s case as a genuine controversy” is required. Id. The

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superiority inquiry “requires determination of whether the objectives of a particular class

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action procedure will be achieved in a particular case.” Id. at 123.

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Here, all of the class members entered into the same or substantially similar

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agreements with Defendant and each was charged an OON Balance Inquiry Fee that

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allegedly violates the agreements in question. Thus, although each class member may have

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paid different cumulative amounts of OON Balance Inquiry Fees over the class period, the

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class is “sufficiently cohesive to warrant adjudication by representation.” Local Joint Exec.

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Bd of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc. 244 F.3d 1152, 1162 (9th

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Cir. 2001). Moreover, Capital One’s policies have been applied and continue to be applied

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uniformly to the settlement class. In sum, the legal and factual questions common to each

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class member’s claim predominate over any questions affecting individual class members.

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The relatively limited potential recovery for the class members as compared with the costs

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of litigating the claims also support the preliminary conclusion that a class action is

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superior to other methods for adjudicating this controversy.

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In accordance with the above, for purposes of settlement, Figueroa and Jackson have
satisfied the requirements for certification of a class under Rule 23.

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IV.

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“At the preliminary approval stage, the Court may grant preliminary approval of a

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settlement if the settlement: (1) appears to be the product of serious, informed, non-

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collusive negotiations; (2) has no obvious deficiencies; (3) does not improperly grant

Preliminary Approval of Settlement

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preferential treatment to class representatives or segments of the class; and (4) falls within

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the range of possible approval.” Sciortino v. PepsiCo, Inc., No. 14-CV-00478-EMC, 2016

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WL 3519179, at *4 (N.D. Cal. June 38, 2016) (quoting Harris v. Vector Mktg. Corp., No.

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C-08-5198 EMC, 2011 WL 1627973, at *7 (N.D. Cal. Apr. 29, 2011). “At the preliminary

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approval stage, a full fairness analysis is unnecessary.” Zepeda v. Paypal, Inc., No. C 10-

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1668 SBA, 2014 WL 718509, at *4 (N.D. Cal. Feb. 24, 2014) (internal quotation marks

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and citation omitted).

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Sicortino, 2016 WL 3519179, at *4.

“Closer scrutiny is reserved for the final approval hearing.”

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Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses

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of a certified class may be settled, voluntarily dismissed, or compromised only with the

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court’s approval.” Fed. R. Civ. P. 23(e). “Adequate notice is critical to court approval of

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a class settlement under Rule 23(e).” Hanlon, 150 F.3d at 1025. The Rule also “requires

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the district court to determine whether a proposed settlement is fundamentally fair,

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adequate and reasonable.” Id. at 1026. In making this determination, the court is required

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to “evaluate the fairness of a settlement as a whole, rather than assessing its individual

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components.” Lane v. Facebook, Inc., 696 F.3d 811, 818-19 (9th Cir. 2012). Because a

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“settlement is the offspring of compromise, the question we address is not whether the final

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product could be prettier, smarter or snazzier, but whether it is fair, adequate and free from

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collusion.” Hanlon, 150 F.3d at 1027.

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In assessing a settlement proposal, the district court is required to balance a number
of factors, namely:
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.

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Id. at 1026. When reviewing a proposed settlement, the court’s primary concern “is the
protection of those class members, including the named plaintiffs, whose rights may not
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have been given due regard by the negotiating parties.” Officers for Justice v. Civil Serv.

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Comm’n of City & Cnty. Of S.F., 688 F.2d 615, 624 (9th Cir. 1982). Ultimately, “[i]n most

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situations, unless the settlement is clearly inadequate, its acceptance and approval are

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preferable to lengthy and expensive litigation with uncertain results.”

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Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004).

Nat’l Rural

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In the motion, class counsel argues that each of the factors weighs in favor of

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preliminary approval of the settlement. Class counsel are experienced attorneys in the area

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of consumer class actions, including those involving assessment of banking fees, and the

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settlement has been reached following an all-day mediation before an independent third-

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party. (See Kaliel Decl. at ¶¶ 4, 13, 17.) Class counsel had also engaged in formal and

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informal discovery when the settlement was reached. (Id. at ¶¶ 8, 11-13. 15, 18.) In

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support of the settlement, counsel also point to the risk associated with the uncertainty

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accompanying continued litigation, the fact that class certification has yet to be obtained

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and the various defenses available to Capital One. Counsel noted that “Plaintiffs concluded

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that the benefits of settling outweigh the risks and uncertainties of continued litigation,”

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also explaining that “[t]he litigation has been hard-fought as the Parties have engaged in

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motion practice, fact discovery, and reviewed pertinent account data to understand the

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scope of the damages at issue and sustained by Settlement Class members.” (Doc. No. 74-

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1 at 17; Kaliel Decl. at ¶ 18.)

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In their papers, Plaintiffs also proclaim that the settlement “is squarely within the

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range of appropriateness for approval” and that after “analyzing Capital One’s Class-wide

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data, Class Counsel estimates that the Settlement Class is recovering approximately 33%

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of their most probable damages, without further risks attendant to litigation.” (Doc. No.

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74-1 at 21, 22.) Further, Plaintiffs claim that the $13,000,000 settlement result is even

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better when considering Capital One’s commitment to modify its disclosures. As disclosed

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at the hearing, Capital One has charged its customers this third OON Balance Inquiry Fee

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over twenty million times during the class period. Although, the preliminary approval

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papers do not disclose, or even attempt to estimate, the average amount of the settlement
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fund each class member will receive, Plaintiffs have purportedly recovered 33% of their

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most probable damages. 4

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Thus, based on the court’s experience with consumer class actions, and the

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accompanying declarations from experienced class counsel, the court preliminarily

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approves the settlement.

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V. Conclusion and Order

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In light of the foregoing, it is hereby ORDERED as follows:

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1.

The court finds on a preliminary basis that the provisions of the Settlement

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Agreement and Release (hereinafter “Agreement”), filed with the court as Exhibit 1 to the

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Memorandum of Points and Authorities in Support of Plaintiffs’ Unopposed Motion for

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Preliminary Approval of Class Settlement and for Certification of Settlement Class (Doc.

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No. 75), are fair, just, reasonable, and adequate and, therefore, meet the requirements for

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preliminary approval.

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2.

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the Agreement.

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3.

For purposes of this Order, the court adopts all defined terms as set forth in

The court conditionally certifies, for settlement purposes only, the following

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Settlement Class described in the Agreement as: “All Capital One accountholders in the

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United States who, within the Class Period, incurred at least one OON Balance Inquiry

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Fee. Excluded from the Settlement Class is Capital One, its parents, subsidiaries, affiliates,

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officers and directors; all accountholders who make a timely election to be excluded; and

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all judges assigned to this litigation and their immediate family members.”

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Class Period means:
• For settlement Class Members whose accounts were established in Louisiana:
the period from April 6, 2008 to June 30, 2020;

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The court anticipates that an explanation of how class counsel calculated the most likely
recoverable damages will accompany Plaintiffs’ motion for Final Approval of the
Settlement (see Doc. No 75, Exhibit D, ¶ 23.c.).
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• For settlement Class Members whose accounts were established in
Connecticut, New York, and New Jersey: the period from April 6, 2012 to
June 30, 2020;
• For settlement Class Members whose accounts were established in Virginia:
the period from April 3, 2013 to June 30, 2020;
• For settlement Class Members whose accounts were established in Texas: the
period from April 6, 2014 to June 30, 2020; and
• For Settlement Class Members whose accounts were established in the
District of Columbia, Maryland, and Delaware; the period from April 6, 2015
to June 30, 2020.

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4.

The court finds, for settlement purposes only, that Capital One has acted on

grounds that apply generally to the Settlement Class, so that the injunctive relief to which
the Parties have agreed is appropriate respecting the Settlement Class as a whole.
5.

The court appoints, for settlement purposes only, Plaintiffs Jacob Figueroa

and Mary Jackson as representatives for the Settlement Class.
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The court preliminarily appoints Class Counsel Kaliel PLLC and Carlson

Lynch as Class Counsel for purposes of settlement.
7.

The court appoints BrownGreer PLC as the Settlement Administrator. The

Settlement Administrator shall administer the notice procedures and distribute payments
and shall abide by the terms and conditions of the Agreement regarding the duties the
Settlement. All reasonable fees and costs of the Settlement Administrator shall be paid
from the Settlement Fund.
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Capital One shall deposit the Cash Settlement Amount into an escrow account

selected by the Settlement Administrator within 15 days of this Order. Capital One will
implement the disclosure language changes, as stated in Exhibit E to the Agreement, by
June 30, 2020.
9.

The Updated Class Notices, filed with the court (Doc. No. 79-6, Exhibit 1A,

1B, 1C) are approved. The Court approves, as to form and content, the updated Settlement
Class Notices for the purpose of notifying the Settlement Class as to the proposed
Settlement, the Final Approval Hearing, and the rights of Settlement Class members. The

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Court finds that the Settlement Class Notices are reasonable; constitute due, adequate, and

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sufficient notice to all persons entitled to receive notice; and that they meet the

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requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.

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Specifically, the Court finds that the Settlement Class Notices comply with Rule 23(e) of

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the Federal Rules of Civil Procedure as they are a reasonable manner of providing notice

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to those Settlement Class members who would be bound by the Agreement. The Court also

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finds that the manner of dissemination of notice complies with Rule 23(c)(2), as it is also

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the most practicable notice under the circumstances, provides individual notice to all

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Settlement Class members who can be identified through a reasonable effort, and is

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reasonably calculated, under all the circumstances, to apprise Settlement Class members

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of the pendency of this Action, the terms of the Settlement, and their right to object to the

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Settlement or exclude themselves from the Settlement Class.

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10.

As soon as possible after the entry of this order, but not later than 70 days after

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the entry of this Order, the Settlement Administrator will complete notice to the Settlement

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Class as provided in the Agreement.

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11.

The Settlement Class Notices shall be updated by Plaintiffs and/or the

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Settlement Administrator to identify the Opt-out and Objection Deadlines of 130 days after

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the entry of this Order, as well as the date and time of the Final Approval Hearing as set

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forth below.

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12.

The court will hold a Final Approval Hearing on January 11, 2021 at 10:00

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a.m. before Honorable Jeffrey T. Miller, United States District Court for the Southern

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District of California, Courtroom 5D (5th Floor – Schwartz), 221 West Broadway, San

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Diego, CA 92101, for the following purposes:

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a. Finally determining whether the Class meets all applicable requirements

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of Rule 23 of the Federal Rules of Civil Procedure and whether the Class

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should be certified for the purpose of effectuating the Settlement;

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b. Finally determining whether the proposed Settlement is fundamentally

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fair, reasonable, and adequate, and in the best interests of the Settlement
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Class Members and should be approved by the court;

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c. Considering the application of class counsel for an award of attorneys’ fees

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and costs, as provided in the Agreement;

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d. Considering the applications of the named Plaintiffs for a class

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representative incentive award as provided in the Agreement;

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e. Considering whether the order granting final approval of the class action

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settlement and judgement, as provided under the Agreement, should be

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entered, dismissing the Action with prejudice and releasing the Released

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Claims against the Released Parties; and

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f. Ruling upon such other matters as the court may deem just and appropriate.
13.

The court may adjourn the Final Approval Hearing and later reconvene such

hearing without further notice to the Class Members.
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Attendance at the Final Approval Hearing is not necessary. Settlement Class

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Members need not appear at the hearing or take any action to indicate their approval of the

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proposed class action Settlement.

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15.

Class counsel shall file a motion for final approval of the Settlement no later

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than December 3, 2020. Any request by class counsel for an award of attorneys’ fees and

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expenses shall be filed August 25, 2020, and that request shall be accompanied by

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supporting evidence to allow Class Members an opportunity to object to the fee motion

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itself before deciding whether to exclude themselves or object.

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16.

Each Settlement Class Member will have one-hundred-thirty (130) days

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from the date of this order to object to the Settlement by serving on the Settlement

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Administrator, Class Counsel, and Counsel for Defendant and filing with the Court, by the

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one-hundred-thirty (130) day deadline, a written objection to the Settlement.

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17.

Each Settlement Class Member who wishes to Opt-Out and be excluded from

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the settlement shall mail a letter to the Settlement Administrator. The written request must:

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(a) state the Class Member’s full legal name, home address, telephone number, and Capital

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One account number(s); (b) include the words “I want to opt-out and understand I will
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receive no money from the Settlement of this Action”; (c) be addressed to the Settlement

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Administrator; (d) be signed by the Class Member or their lawful representative; and

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(e) be postmarked to the Settlement Administrator no later than 130 days from the date of

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this order.

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18.

Each Settlement Class Member who wishes to object to the settlement must

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do so in writing. The objection must: (a) state the Class Member’s full legal name, home

7

address, telephone number; (b) include the words “Notice of Objection” or “Formal

8

Objection,” state in clear and concise terms, the legal and factual arguments supporting the

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objection, and include a list identifying any witness(es) the objector may call to testify at

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the Fairness Hearing, as well as true and correct copies of any exhibit(s) the objector

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intends to offer (a “Written Objection Notice”); (c) indicate the number of times the

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objector has objected to a class action settlement in the past 5 years and the caption for any

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such case(s) and a copy of any orders related to or ruling upon the objector’s prior

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objections issued by the trial and appellate courts in each case; (d) identify any counsel

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representing the objector; (e) identify the number of times the objector’s counsel and/or

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counsel’s law firm have objected to a class action settlement within the five (5) years

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preceding the date of the filed objection; (f) be directed to the Hon. Jeffrey T. Miller, United

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States District Court – Southern District of California, 221 West Broadway, Suite 5190,

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San Diego, California 92101, and must reference case number 3:18-cv-0692-JM-BGS;

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(e) be sent to the Settlement Administrator; (g) be signed by the Class Member or their

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lawful representative; and (g) be postmarked to the Settlement Administrator no later than

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130 days after the date of this order.

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19.

If the Agreement is not finally approved for any reason, then this Order shall

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be vacated, the Agreement shall have no force and effect, and the Parties’ rights and

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defenses shall be restored, without prejudice, to their respective positions as if the

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Agreement had never been executed and this Order never entered.

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20.

The parties may further modify the Agreement prior to the Final Approval

Hearing so long as such modifications do not materially change the terms of the Settlement
14
18cv692 JM(BGS)