Phillips et al v. Caliber Home Loans

Filing 87

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 7/19/2021. (RJE)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 19-cv-2711 (WMW/LIB)

Stephen Phillips, Mary Tourville-Phillips,
Sandi Barnett, Gregory Benjamin, Tyrus
Davis, and Christopher Bingham, on behalf
of themselves and all others similarly
situated,
Plaintiffs,
v.
Caliber Home Loans, Inc.,

ORDER GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT AND
CERTIFICATION OF SETTLEMENT
CLASS

Defendant.
Plaintiffs Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory
Benjamin, Tyrus Davis and Christopher Bingham (collectively, Plaintiffs or Settlement
Class Representatives), on behalf of themselves and the proposed Settlement Class, seek
preliminary approval of a proposed settlement of claims against Defendant Caliber Home
Loans, Inc. (“Caliber”). For the reasons addressed below, the Court grants Plaintiffs’
unopposed motion for preliminary approval of the class action settlement and preliminary
certification of the Settlement Class for settlement purposes only.
BACKGROUND
I.

Procedural Background

Plaintiffs commenced separate actions in Minnesota, North Carolina, and Texas,
respectively. Plaintiff Phillips and Plaintiff Tourville-Phillips initiated a class action
lawsuit in Lake County District Court (Sixth Judicial District) in Minnesota, which Caliber

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removed to this Court on October 14, 2019, alleging breach of contract, breach of the
implied covenant of good faith and fair dealing, and unjust enrichment. Phillips v. Caliber
Home Loans, Inc., No. 0:19-cv-02711 (the “Phillips Lawsuit”). Plaintiff Barnett and
Plaintiff Benjamin initiated a class action lawsuit in the United States District Court for the
Southern District of Texas, alleging breach of contract and violations of the Texas Debt
Collection Act (TDCA). Barnett v. Caliber Home Loans, Inc., No. 2:19-cv-309 (the
“Barnett Lawsuit”). Plaintiff Davis and Plaintiff Bingham initiated a class action lawsuit
in the United States District Court for the Middle District of North Carolina. Davis v.
Caliber Home Loans, Inc., No. 1:20-cv-00338 (the “Davis Lawsuit”). Plaintiff Davis
alleged that Caliber violated the North Carolina Debt Collection Act, the North Carolina
Mortgage Debt Collection and Servicing Act, and the North Carolina Unfair and Deceptive
Trade Practices Act.

Plaintiff Bingham alleged that Caliber violated the Maryland

Consumer Debt Collection Act. Although the three putative class actions were commenced
separately, each is based on one common factual allegation: Caliber charged and collected
millions of dollars in Pay-to-Pay Fees from homeowners, in addition to their regular
mortgage payments. Plaintiffs allege that this practice violated the laws of Minnesota,
North Carolina, and Texas, and breached their mortgage agreements. Caliber denies the
allegations in the complaints and denies any wrongdoing.
On December 11, 2019, Caliber moved to dismiss the Phillips Lawsuit. This Court
denied Caliber’s motion to dismiss the Phillips’ breach-of-contract claim and unjustenrichment claim but granted Caliber’s motion to dismiss the Phillips’ claim for breach of

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the implied covenant of good faith and fair dealing. Thereafter, the Phillips Plaintiffs filed
a Second Amended Complaint adding a claim that Caliber’s conduct also violated the Fair
Debt Collections Practices Act. This Court subsequently stayed the proceedings in the
Phillips Lawsuit pending mediation.
On December 9, 2019, Caliber moved to dismiss the Barnett Lawsuit. The district
court denied Caliber’s motion to dismiss the TDCA claim but granted Caliber’s motion to
dismiss the breach-of-contract claim.

The district court subsequently stayed the

proceedings in the Barnett Lawsuit pending mediation.
On May 29, 2020, Caliber moved to dismiss the Davis Lawsuit. While Caliber’s
motion to dismiss the Davis Lawsuit remained pending, the district court stayed the
proceedings in the Davis Lawsuit pending mediation.
On March 31, 2021, the parties participated in a full day mediation session
conducted by Jill Sperber. With the assistance of the mediator, the parties reached mutually
agreeable terms of a global settlement. Notices of settlement subsequently were filed in
the Phillips Lawsuit, the Barnett Lawsuit, and the Davis Lawsuit (collectively referred to
as the “Related Cases”). Each notice provided that a global settlement (the “Settlement”)
had been reached and that Plaintiffs Davis, Bingham, Barnett, and Benjamin would be
added as named plaintiffs to the Phillips Lawsuit. On April 16, 2021, the Phillips Plaintiffs
filed a Third Amended Complaint on April 16, 2021, adding Plaintiffs Davis, Bingham,
Barnett, and Benjamin to the Phillips Lawsuit.

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On May 14, 2021, the parties executed a settlement agreement (Settlement
Agreement), which memorializes the terms and conditions of the proposed Settlement and
embodies all relevant exhibits thereto.
II.

Settlement Terms
A.

The Proposed Settlement Class

The Settlement Agreement contemplates certification of the following Settlement
Class for settlement purposes only:
All persons who (1) were borrowers on residential mortgage
loans on properties in the United States whose loans were
serviced by Caliber, and (2) paid a fee to Caliber for making a
loan payment by telephone, [interactive voice response
(“IVR”)], or the internet, from January 1, 2013, to January 21,
2020.
B.

Benefits to the Settlement Class

The Settlement Agreement, if approved, will create a $5,000,000 non-reversionary
common fund and will resolve the claims of Plaintiffs and the Settlement Class Members
deriving from Caliber’s practice of charging additional processing fees when borrowers
paid their monthly mortgage by telephone, interactive voice response (“IVR”), or the
internet (“Pay-to-Pay Fees”). The common fund, which represents approximately 29.38
percent of damages, will provide cash payments to Settlement Class Members, as well as
Administrative Costs to provide notice and administer the settlement, and any Fee and
Expense Award and Service Awards that the Court may approve. Settlement Class
Members need not submit a claim form to receive monetary compensation pro rata
according to the amount of Pay-to-Pay Fees they were charged. In addition to the common

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fund, the Settlement includes important and valuable injunctive relief. As of January 21,
2020, Caliber has ceased charging or collecting Pay-to-Pay Fees to any Settlement Class
Member and to any borrower in the country. As a result of this Settlement, Caliber agrees
to refrain from charging or collecting Pay-to-Pay Fees from borrowers for a period of at
least two years after entry of the Final Approval Order.
C.

Settlement Administrator and Administration Costs

The proposed Settlement Administrator is Kroll Business Services (“Kroll”), a
leading class action administration firm in the United States. The parties reviewed
proposals from several prominent settlement administrators before deciding on Kroll based
on overall cost and value to the Settlement Class. The Administrative Costs will be paid
from the Gross Settlement Fund.
D.

Class Member Release

In exchange for the benefits conferred by the Settlement, all Settlement Class
Members will be deemed to have released the Released Entities from all claims that were
or could have been asserted by the Class Representatives or Settlement Class Members,
through the date of this Order, relating to the charging, collection, or attempted collection
of Pay-to-Pay Fees.
E.

Proposed Plan of Notice

The parties’ proposed Notice Plan consists of direct notice in the form of Email and
Postcard Notice, as well as a Settlement Website where Settlement Class Members may

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view and download a Long Form Notice. Settlement Class Members also may request that
the Settlement Administrator mail or email them a copy of the Long Form Notice.
Within 14 days after the date of this Order, Caliber, at its own expense, will compile
the Settlement Class Member List and provide it to the Settlement Administrator and Class
Counsel.
As soon as practicable, but no later than 30 days after the date that Caliber provides
the Settlement Class Member List to the Settlement Administrator, the Settlement
Administrator shall cause the Email Notice to be sent to all Settlement Class Members for
whom the Settlement Class Member List includes an email address.
As soon as practicable, but no later than 30 days after Caliber provides the
Settlement Class Member List to the Settlement Administrator, the Settlement
Administrator shall cause the Postcard Notice to be sent to all Settlement Class Members
for whom no email address appears on the Settlement Class Member List. Before mailing
Class Notice, the Settlement Administrator will update the last known addresses of the
members of the Settlement Class using the National Change of Address database. Within
a reasonable time before the Response Deadline, the Settlement Administrator shall also
cause the Postcard Notice to be sent to all Settlement Class Members whose Email Notices
are returned undeliverable, after running those Settlement Class Members’ last known
addresses through the National Change of Address database. If the Postcard Notice is
returned with a forwarding address, the Settlement Administrator shall make one attempt
to remail the Postcard Notice to that forwarding address, as soon as possible before the

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Response Deadline. If the Postcard Notice is returned undeliverable without a forwarding
address, the Settlement Administrator shall make a reasonable attempt to locate an updated
address and make one attempt to remail the Postcard Notice to the updated address, as soon
as possible before the Response Deadline.
The Settlement Administrator shall mail or email the Long Form Notice to any
Settlement Class member who requests a copy.
Prior to the date on which the Settlement Administrator mails the Postcard Notice,
the Settlement Administrator shall establish the Settlement Website. The Settlement
Website shall contain: (1) the Long Form Notice in downloadable PDF format; (2) the
Long Form Notice in HTML format with a clickable table of contents, described as answers
to frequently asked questions; (3) a contact information page with contact information for
the Settlement Administrator, and addresses and telephone numbers for Class Counsel and
Defense Counsel; (4) the Settlement Agreement; (5) the signed Preliminary Approval
Order and publicly filed motion papers and declarations in support thereof; (6) the
operative complaints in each of the Actions; and (6) when they become available, the Fee
and Service Award Application, the motion for entry of the Final Approval Order, and any
motion papers and declarations filed publicly in support thereof. The Settlement Website
shall remain accessible until 30 days after the Settlement Administrator has completed its
obligations under the Settlement Agreement.
The Settlement Administrator shall establish a 24-hour toll-free telephone line with
information about frequently asked questions about the Settlement. The number shall be

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included in the Class Notice and on the Settlement Website. The Settlement Administrator
also will ensure that necessary and timely notice is provided to any state and federal officers
as required by the Class Action Fairness Act, 28 U.S.C. § 1715.
F.

Opt-Outs and Objections

The Class Notice will advise Settlement Class Members of their right to opt out of
the Settlement or to object to the Settlement and/or to Class Counsel’s application for
attorneys’ fees, costs, and expenses and/or Service Award to the Class Representative, and
of the associated deadlines to opt out or object.
Settlement Class Members who choose to opt out must submit a written request for
exclusion. Any request for exclusion must be postmarked on or before the “Response
Deadline”—105 days after entry of the Preliminary Approval Order. Any request for
exclusion must include the name of the case, and the name, address, phone number, and
signature of the borrower or borrowers seeking exclusion and must contain language
clearly indicating a request for exclusion. If there are co-borrowers on the loan, all coborrowers must sign the request for exclusion. Any Settlement Class Member who does
not submit a request to opt out in accordance with the deadlines and other requirements
will be bound by the Settlement absent a court order to the contrary.
Settlement Class Members who wish to object to the Settlement must mail a written
objection, postmarked on or before the Response Deadline, to the Clerk of the Court or by
filing it in person before the Response Deadline. Copies of any written objection shall be
sent to both Class Counsel and Defense Counsel via mail, hand, or overnight delivery. All

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objections must be in writing and personally signed by the Settlement Class Member and
include: (1) the objector’s name, address, email address if any, and telephone number; (2)
the case caption; (3) the specific factual basis and legal grounds for the objection; (4) a list
of all cases in which the objector has objected to a class action settlement, including case
name, court, and docket number; (5) if the objector is represented by counsel, a list of all
cases in which the objector’s counsel has represented an objector in objecting to a class
action settlement, case name, court, and docket number; (6) a statement indicating whether
the Settlement Class Member and/or their lawyer(s) intend to appear at the Final Fairness
Hearing; (7) a list of witnesses, if any, that the objecting Settlement Class Member intends
to call; and (8) whether the objection relates only to the objector, or to a subset of the
Settlement Class, or to the entire Settlement Class. The objector also should comply with
the Local Rules and promptly file a Certification of Interested Entities or Persons on the
docket.
Any Settlement Class Member who has not submitted a timely request for exclusion
may appear at the Final Fairness Hearing either in person or through an attorney. However,
if the Settlement Class Member intends to appear through counsel, the Settlement Class
Member must have submitted a written objection pursuant to this section. Any lawyer who
intends to appear at the Final Fairness Hearing also must enter a written Notice of
Appearance of Counsel with the Clerk of the Court no later than the Response Deadline.
Any Settlement Class Member who intends to request the Court to allow him or her to call

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witnesses at the Final Fairness Hearing must make such a request in a written brief, which
contains a list of such witnesses and a summary of their requested testimony.
No person who has opted out of the Settlement may object to it. Any Settlement
Class Member who does not provide a timely written objection or who does not make a
record of his or her objection at the Final Approval Hearing shall be deemed to have waived
any objection and shall forever be foreclosed from making any objection to the fairness,
reasonableness, or adequacy of the proposed Settlement, Fee and Service Awards
Application, or the Fee and Expense Award or Service Awards.
G.

Attorneys’ Fees and Costs and Service Award

The Settlement Agreement contemplates Class Counsel petitioning the Court for
attorneys’ fees, as well as documented, customary costs incurred by Class Counsel. The
Settlement Agreement provides that Class Counsel may seek attorneys’ fees in an amount
not to exceed one third of the Gross Settlement Fund (33.33 percent) as well as reasonable
expenses incurred in the litigation. Any approved Fee and Expense Award will be paid
from the Gross Settlement Fund prior to distribution to the Settlement Class Members.
On or before 21 days before the Response Deadline, Class Counsel will file a
petition for attorneys’ fees and costs explaining why the requested Fee and Expense Award
is reasonable. Class Counsel will provide lodestar information sufficient for the Court to
perform a lodestar cross-check should the Court choose to exercise its discretion to perform
one. Caliber has not agreed to any award of attorneys’ fees or expenses and reserves the
right to respond as it deems appropriate.

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Class Counsel also may petition the Court for up to $5,000 each for Stephen Phillips,
Mary Tourville-Phillips, Sandi Barnett, Gregory Benjamin, Tyrus Davis, and Christopher
Bingham as Service Awards as compensation for their time and effort in the Action. Any
approved awards will be deduced from the Gross Settlement Fund prior to distribution to
the Settlement Class Members.

Plaintiffs will submit declarations detailing their

participation in the Action along with the Fee and Service Award Application.
Neither final approval, nor the size of the Common Fund, are contingent on approval
of the full amount of requested Fee and Expense Award or Service Awards.
ANALYSIS
I.

Legal Standard

Court approval of a class action settlement is within the sound discretion of the
district court. Fed. R. Civ. P. 23(e). The procedure for judicial review of a proposed class
action settlement proceeds in two stages. First, “before scheduling the fairness hearing,
the court makes preliminary determinations with respect to the fairness of the settlement
terms, approves the means of notice to class members, and sets the date for that final
hearing.” Schoenbaum v. E.I. Dupont De Nemours & Co., No. 4:05CV01108, 2009 WL
4782082, at *2 (E.D. Mo. Dec. 8, 2009); see also Liles v. Del Campo, 350 F.3d 742 (8th
Cir. 2003).

“Because class members will subsequently receive notice and have an

opportunity to be heard on the settlement, [a] Court need not review the settlement in detail
at [the preliminary approval stage]; instead, preliminary approval is appropriate so long as
the proposed settlement falls within the range of possible judicial approval.” In re M.L.

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Stern Overtime Litig., No. 07-CV-0118, 2009 WL 995864, at *3 (S.D. Cal. April 13, 2009)
(internal quotation marks omitted); see also Martin v. Cargill, Inc., 295 F.R.D. 380, 383
(D. Minn. 2013) (“At the preliminary-approval stage, the fair, reasonable, and adequate
standard is lowered, with emphasis only on whether the settlement is within the range of
possible approval due to an absence of any glaring substantive or procedural deficiencies.”
(internal quotation marks omitted)).
To grant preliminary approval and justify providing notice to the Settlement Class,
the district court must conclude that the proposed Settlement is “within the range of
possible approval” and “does not disclose grounds to doubt its fairness.” See Manual for
Complex Litigation § 30.41, at 237 (3d ed. 1975).

Such a finding “is at most a

determination that there is what might be termed ‘probable cause’ to submit the proposal
to class members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Ass’nE. R.R.s, 627 F.2d 631, 634 (2d Cir. 1980); In re Zurn Pex Plumbing Prods. Liab. Litig.,
No. 08-MDL-1958 ADM/AJB, 2012 WL 5055810, at *5 (D. Minn. Oct. 18, 2012) (finding
that “there is probable cause to submit the proposal to class members and hold a full-scale
hearing as to its fairness” (internal quotation marks omitted)).
II.

Findings of Fact, Conclusions of Law, and Order
A.

The Settlement Agreement Warrants Preliminary Approval

The Court finds, on a preliminary basis, that the Settlement Agreement appears to
be within the range of reasonableness of a settlement that could ultimately be given final
approval by this Court.

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1.

It appears to the Court that the Settlement was negotiated at arms’ length

between experienced and sophisticated counsel, affording it the presumption that it is fair
and reasonable. See Grove v. Principal Mut. Life Ins. Co., 200 F.R.D. 434, 445 (S.D. Iowa
2001). Based on the vigorous litigation of the issues, the exchange of informal discovery,
and the rigorous negotiations described in Plaintiffs’ submission, it appears to the Court
that the Settlement was negotiated at arms’ length and under circumstances demonstrating
a lack of collusion.
2.

It appears to the Court that the relatively early resolution of this Action will

conserve the resources of the Parties and the Court, that the parties have vigorously litigated
the legal issues, and that Caliber has provided sufficient informal discovery to permit Class
Counsel and the Court to intelligently evaluate the Settlement offered against the risks and
benefits of continued litigation.
3.

It appears to the Court that the Settlement is fair, reasonable, and adequate

when balanced against the probable outcome of further litigation, liability, and damages
issues, and potential appeals of rulings. The amount offered in Settlement represents 29.38
percent of damages, as well as significant injunctive relief. Plaintiffs’ motion describes the
legal issues that would be decided before this Court and before the Barnett Lawsuit and
Davis Lawsuit courts should the Settlement not be approved, both on the merits and at class
certification.

Although litigation presents serious risks at many stages, as well as

substantial expense and delay without any guarantee of additional benefit to the Settlement
Class, the Settlement provides immediate and substantial benefits to more than one million

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Settlement Class Members. Moreover, continued litigation likely would take several years
to resolve and involve expensive discovery. See Holden v. Burlington N., Inc., 665 F. Supp.
1398, 1414 (D. Minn. 1987) (observing that “many of the immediate and tangible benefits”
of settlement would be lost through continued litigation, making the proposed settlement
“an attractive resolution” of the case). This is especially true when, as here, the defendant
vigorously denies the Plaintiffs’ allegations. Cf. Strougo ex rel. Brazilian Equity Fund, Inc.
v. Bassini, 258 F. Supp. 2d 254, 259–60 (S.D.N.Y. 2003).
4.

It appears to the Court that the parties’ proposed allocation of the Settlement

is fair and reasonable. Payments will be made on a pro rata basis depending on the number
of Pay-to-Pay Fees each Settlement Class Member paid. According to this allocation, Class
Members are treated fairly as to one another because they are compensated according to
the amount of Pay-to-Pay Fees they were charged. See Fed. R. Civ. P. 23(e)(2)(D);
Valencia v. Greater Omaha Packing, No. 8:08CV161, 2014 WL 284461, at *3 (D. Neb.
Jan. 23, 2014) (finding a pro rata distribution to the class was fair and equitable).
5.

It appears to the Court that the Class Representatives and Class Counsel have

adequately represented the proposed Settlement Class. See Fed. R. Civ. P. 23(e)(2)(A).
Class Counsel are experienced and sophisticated, with years of experience in complex class
action litigation and litigation involving mortgage servicers, financial institutions and fees.
The Class Representatives also have supervised the litigation by reviewing pleadings,
reviewing the Settlement and communicating with Class Counsel regarding the litigation.

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In advance of final approval, the Class Representatives shall submit declarations detailing
their involvement in the litigation.
6.

It appears to the Court that the terms of the proposed award of attorneys’ fees

and expenses are fair and reasonable. However, before final approval, Class Counsel shall
file a separate motion seeking approval of attorneys’ fees and expenses in an amount not
to exceed one third (33.33 percent) of the Gross Settlement Fund, plus their reasonable
expenses of litigation. In this submission, Class Counsel will set forth the specific legal
and factual bases for their request for attorneys’ fees and expenses and provide lodestar
information. It also appears to the Court that the proposed Service Awards are fair and
reasonable.
B.

Certification of the Settlement Class for Settlement Purposes is
Appropriate

On a motion for preliminary approval, the parties must also show that the Court
“will likely be able to . . . certify the class for purposes of judgment on the proposal.” Fed.
R. Civ. P. 23(e)(1)(B)(ii). The Court finds, for purposes of settlement only, that the
Settlement Class meets all the requirements of Fed. R. Civ. P. 23(a) and (b)(3).
1.

It appears to the Court, for purposes of settlement only, that the proposed

Settlement Class is sufficiently numerous that joinder would be logistically impossible.
The proposed Settlement Class consists of approximately 456,663 Settlement Class
Members, who are associated with approximately 322,404 loans.
requirement is satisfied.

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The numerosity

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2.

It appears to the Court, for purposes of settlement only, that there is a

commonality of interests between the Settlement Class Members, including both questions
of law and questions of fact. Plaintiffs’ claims here depend on the common contentions
that Pay-to-Pay Fees are neither authorized by Class Members’ mortgages nor permitted
by law. For the same reason, the predominance requirement of Fed. R. Civ. P. 23(b)(3) is
satisfied for settlement purposes.
3.

It appears to the Court, for purposes of settlement only, that the Class

Representatives’ claims are typical of those of the Settlement Class Members. The Class
Representatives’ claims arise from the same alleged course of conduct as those of the
Settlement Class Members. The typicality requirement is satisfied.
4.

It appears to the Court, for purposes of settlement only, that the Class

Representatives and Class Counsel are adequate representatives and have no conflicts with
the proposed Settlement Class.
5.

It appears to the Court, for purposes of settlement only, that a class action is

a superior method of resolving the claims of the Settlement Class Members, which are of
modest amounts.
C.

The Proposed Notice Plan is Approved

Due process under Rule 23 requires that class members receive notice of the
settlement and an opportunity to be heard and participate in the litigation. See Fed. R. Civ.
P. 23(c)(2)(B); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985); Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 175–76 (1974) (“[I]ndividual notice must be provided

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to those class members who are identifiable through reasonable effort.”). The mechanics
of the notice process are left to the discretion of the district court, subject only to the broad
“reasonableness” standards imposed by due process. See Tapia v. Zale Del. Inc., No.
13cv1565-PCL, 2017 WL 1399987, at *4 (S.D. Cal. April 18, 2017); see also Rosenburg
v. I.B.M., No. CV06–00430PJH, 2007 WL 128232, *5 (N.D. Cal. Jan. 11, 2007) (providing
that notice should inform class members of essential terms of settlement, including claims
procedures and the right to accept, object or opt-out of settlement).
It appears to the Court that the proposed Notice Plan, which consists of Email Notice
and Postcard Notice to be sent directly to Settlement Class Members, as well as a Long
Form Notice, Settlement Website, and toll-free phone line, comports with due process,
Rule 23, and all other applicable law. Given the relatively small value at stake for each
Class Member, the Court finds that email notice is the best practicable notice under the
circumstances and orders that Caliber provide email addresses to the Settlement
Administrator for each Settlement Class Member for whom it is in possession of such
information. The Ninth Circuit has approved class notice in the form of email and postcard
notice. See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 946 (9th Cir.
2015) (finding that notice satisfied due process and Rule 23(e) when an initial email notice
was supplemented by a postcard notice to those whose emails bounced back).
Moreover, the substance of the proposed Class Notice will fully apprise Class
Members of their rights. Under Rule 23(e), notice to class members “must generally
describe the terms of the settlement in sufficient detail to alert those with adverse

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viewpoints to investigate and to come forward and be heard.” Lane v. Facebook, Inc., 696
F.3d 811, 826 (9th Cir. 2012) (internal quotation marks omitted). The Notice contains all
of the critical information required to apprise Class Members of their rights under the
Settlement, directs them to the Settlement Website where they can obtain more detailed
information, and provides a toll-free number for Class Members to call with questions.
This approach to notice is adequate. See, e.g., Sarabri v. Weltman, Weinberg & Reis Co.,
L.P.A., No. 10cv1777 AJB (NLS), 2012 WL 3809123, at *2 (S.D. Cal. Sept. 4, 2012)
(approving mailed notice where notice would include the settlement website with a full
settlement details and the claim administrator’s toll-free number); Knutson v. Schwan’s
Home Serv., Inc., No. 3:12-cv-00964-GPC-DHB, 2014 WL 3519064, at *5–*6 (S.D. Cal.
July 14, 2014) (same). The Court also finds that the proposed costs associated with the
Notice Plan appear to be fair and reasonable.
III.

Schedule and Procedures
The Court orders the following schedule and procedures for disseminating the

Notice, requesting exclusion from the Settlement Class, objecting to the Settlement, filing
the Fee and Service Award Application, and filing the motion for final approval:
Date
14 days after Preliminary Approval
Order

Event
Caliber to provide Settlement Class Member
List to Settlement Administrator

30 days after the date that Caliber
provides the Settlement Class Member
List to the Settlement Administrator

Settlement Administrator to cause Email
Notice to be sent to Settlement Class
Members with email addresses

30 days after the date that Caliber
provides the Settlement Class Member

Settlement Administrator to cause Postcard
Notice to be sent to Settlement Class

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List to the Settlement Administrator

Members without email addresses

30 days after Preliminary Approval
Order

Settlement Administrator to establish
Settlement Website and toll-free telephone
line

84 days after Preliminary Approval
Order

Deadline for Class Counsel to file Fee and
Service Award Application

105 days after Preliminary Approval
Order

Response Deadline (deadline to request
exclusion or file objections)

21 days before Final Fairness Hearing

Deadline to file motion for final approval

14 days before Final Fairness Hearing

Deadline to respond to objections

December 16, 2021, at 9:00 a.m.

Final Fairness Hearing

IV.

Final Fairness Hearing

The Court will hold a Final Fairness Hearing for a final determination of whether
the proposed Settlement is fair, reasonable, and adequate. The Final Fairness Hearing will
be held in Courtroom 7A of the Saint Paul Courthouse on December 16, 2021, at 9:00 a.m.
Objections by Settlement Class Members will be considered if filed in writing by the
Response Deadline above. Settlement Class Members who have not requested exclusion
may be heard orally in support of or opposition to the Settlement. Settlement Class
Members who wish to appear at the Final Fairness Hearing through counsel are required
to file a notice of his or her desire to appear personally, and counsel must file a notice of
appearance on the docket. Settlement Class Members proceeding pro se are requested, but
not required, to file a notice of his or her desire to appear personally. These written notice
requirements may be excused upon a showing of good cause.

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V.

Other Provisions

Class Counsel and Caliber are authorized to take, without further Court approval,
all necessary and appropriate steps to implement the Settlement, including the proposed
Notice Plan and confirmatory discovery. The deadlines set forth in this Order may be
extended by Order of the Court without further notice to Settlement Class Members, except
that notice shall be posted on the Settlement Website. Settlement Class Members should
check the Settlement Website regularly for updates and further details regarding the
deadlines. Exclusions and objections must meet the deadlines and follow the requirements
set forth in the approved Class Notice to be valid, although the Court will accept exclusions
and objections deemed to be in substantial compliance.
If for any reason the Court does not execute and file an Order of Final Approval, or
if the Effective Date does not occur for any reason, the parties will be restored to the status
quo ante as set forth more specifically in the Settlement.
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
1.

Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action

Settlement and Certification of the Settlement Class, (Dkt. 80), is GRANTED;
2.

The proposed Settlement Class is certified for settlement purposes only

pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure;

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CASE 0:19-cv-02711-WMW-LIB Doc. 87 Filed 07/19/21 Page 21 of 21

3.

The proposed Settlement is preliminarily approved as being fair, reasonable

and adequate pursuant to Rule 23(e);
4.

Plaintiffs Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory

Benjamin, Tyrus Davis, and Christopher Bingham are appointed as Class Representatives;
5.

James L. Kauffman, Randy Pulliam, Hassan A. Zavareei and Kristen G.

Simplicio are appointed as Class Counsel;
6.

Caliber is ordered to provide the Settlement Class Member List, including

email addresses when available, to the Settlement Administrator, who is ordered to follow
the confidentiality provisions set forth in the Settlement Agreement with respect to such
information; and
7.

The proposed Notice Plan complies with the requirements of Rule 23 and

due process, and Class Notice is to be sent to the Settlement Class Members as set forth in
the Settlement Agreement and pursuant to the deadlines above.

Dated: July 19, 2021

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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