Steinberg v. CoreLogic Credco, LLC

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MARLENE STEINBERG, Case No.: 3:22-cv-00498-H-SBC

12 Plaintiff,

ORDER:

13 v.

(1) CERTIFYING CLASS FOR

14 CORELOGIC CREDCO, LLC,

SETTLEMENT PURPOSES;

15 Defendant.

(2) PRELIMINARILY APPROVING

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CLASS SETTLEMENT;

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(3) APPOINTING CLASS

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REPRESENTATIVE AND CLASS

19 COUNSEL;

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(4) APPROVING CLASS NOTICE;

21 AND

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(5) SCHEDULING FINAL

23 APPROVAL HEARING

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[Doc. No. 46.]

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26 On August 25, 2023, Plaintiff Marlene Steinberg (“Plaintiff”) filed an unopposed

27 motion for preliminary approval of class action settlement and directing dissemination of

28 notice to the class. (Doc. No. 46.) On October 2, 2023, the Court held a hearing on the

1 matter. Eleanor Michelle Drake appeared on behalf of Plaintiff. Timothy James St. George

2 appeared on behalf of Defendant CoreLogic Credco, LLC (“Defendant”). For the

3 following reasons, the Court grants Plaintiff’s motion and sets a schedule for further

4 proceedings.

5 I. BACKGROUND

6 A. Factual and Procedural Background

7 This is a class action for alleged violations of the Fair Credit Reporting Act

8 (“FCRA”), 15 U.S.C. §§ 1681, et seq. (Doc. No. 1-2.) Plaintiff alleges that Defendant

9 negligently and willfully violated the FCRA by failing to maintain reasonable procedures

10 to assure the maximum possible accuracy in the preparation of the credit reports it resold

11 regarding the settlement class members, in violation of 15 U.S.C. § 1681e(b). (Id.

12 ¶¶ 72–82.) Specifically, Plaintiff alleges that Defendant resold inaccurate information

13 from one or more of the nationwide consumer reporting agencies (“CRAs”) where the

14 consumer report contained a notation that the consumer was deceased and where either one

15 or two of the CRAs also provided information to Defendant that did not include a notation

16 that the consumer was deceased. (Id.) Plaintiff further alleges that Defendant made no

17 effort to determine whether the consumer was in fact deceased prior to publishing the

18 consumer report. (Id. ¶ 59.) As a result of Defendant’s conduct, Plaintiff alleges that she

19 has suffered concrete financial and pecuniary harm arising from monetary losses relating

20 to credit denials, loss of use of funds, loss of credit and loan opportunities, out-of-pocket

21 expenses, and other related costs. (Id. ¶ 62.) Further, Plaintiff alleges that she has suffered

22 concrete harm in the form of financial and dignitary harm arising from the injury to credit

23 rating and reputation. (Id. ¶ 63.)

24 On February 24, 2022, Plaintiff filed a class action complaint in the Superior Court

25 of California, County of San Diego against Defendant. (Doc No. 1-2.) On April 12, 2022,

26 Defendant removed this action from the Superior Court of California, County of San Diego

27 to this Court. (Doc. No. 1.) On May 23, 2022, Defendant answered the complaint. (Doc.

28 No. 8.) On August 25, 2022, the parties participated in an Early Neutral Evaluation

1 Conference before the Honorable Andrew G. Schopler. (Doc. No. 24.) The parties did not

2 reach a settlement agreement. (Id.) Following the conference, the parties engaged in

3 discovery efforts, including producing documents and exchanging written discovery

4 requests and responses. (Doc. No. 46 at 8.) During this time, the parties also conducted

5 multiple meet and confers, both telephonically and through written correspondence. (Id.)

6 In January 2023, the parties attended a full-day mediation with third-party neutral

7 Rodney Max. (Id.) The parties exchanged mediation statements beforehand. (Id.) While

8 a settlement was not reached during this mediation, the parties did make significant

9 progress. (Id.) The parties continued to engage in settlement negotiations during February

10 and March 2023, ending with a draft term sheet. (Id.) The parties then worked to finalize

11 the resolution in a formal settlement agreement. (Id.)

12 On March 8, 2023, the parties filed a joint motion to stay the case pending settlement

13 negotiations. (Doc. No. 33.) On March 20, 2023, in lieu of a stay, the Court continued all

14 dates and deadlines by thirty days. (Doc. No. 36.) On April 17, 2023, the Court held a

15 telephonic status conference with the parties and continued all dates and deadlines by an

16 additional seventy-five days. (Doc. No. 37.) On June 28, 2023, the parties filed a joint

17 motion for extension of case deadlines. (Doc. No. 38.) On July 3, 2023, the Court granted

18 the parties’ joint motions and ordered Plaintiff to file a motion for preliminary approval of

19 class action settlement by July 28, 2023. (Doc. No. 39.) On July 27, 2023, the parties filed

20 a second joint motion for extension of case deadlines. (Doc. No. 41.) On July 28, 2023,

21 the Court granted the parties’ joint motion and ordered Plaintiff to file a motion for

22 preliminary approval of class action settlement by August 18, 2023. (Doc. No. 42.) On

23 August 18, 2023, the parties filed a joint motion for extension of time to file the motion for

24 preliminary approval. (Doc. No. 44.) On August 21, 2023, the Court granted the parties’

25 joint motion. (Doc. No. 45.) On August 25, 2023, Plaintiff filed the present unopposed

26 motion requesting that the Court: (1) preliminarily approve the proposed class action

27 settlement; (2) certify the settlement class for settlement purposes; (3) direct notice to be

28 distributed to the settlement class; and (4) schedule a final fairness hearing. (Doc. No. 46.)

1 B. Proposed Settlement

2 The settlement agreement defines the settlement class as:

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all persons residing in the United States of America (including its territories and

4 Puerto Rico) who were subject: (1) of a consumer report resold by Defendant to a

5 third party within the time period of January 1, 2021 and continuing through May

2, 2023, (2) where the consumer report contained a notation that the consumer was

6 deceased, and (3) either one or two of the nationwide consumer reporting agencies

7 (Experian, Trans Union and Equifax) provided information to Defendant that did

not include a deceased notation.

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9 (Doc. No. 46-2 at 7, ¶ 2.22.) Excluded from the class are “counsel of record (and their

10 respective law firms) for any of the Parties, employees of Defendants, and employees of

11 the Federal judiciary.” (Id.)

12 Under the settlement agreement, Defendant will pay the settlement amount of

13 $5,695,000.00. (Id. at 14, ¶ 4.3.1.) Defendant will also be required to improve its reporting

14 practices to more clearly state that: (1) the data it is reporting is precisely the data it received

15 from the CRAs; and (2) Defendant cannot evaluate its content. (Id. at 16–17,

16 ¶¶ 4.3.2.1–4.3.2.2.) Moreover, Defendant will be required to further identify to recipients

17 of the information how to contact Defendant if they believe the information being resold

18 by Defendant is inaccurate or incomplete. (Id.) Defendant continues to deny any

19 wrongdoing and the settlement agreement does not constitute an admission or concession

20 of liability, wrongdoing, or the lack of merit of any defense or Rule 23 argument by

21 Defendant. (Id. at 3–4.). The settlement agreement dismisses Defendant with prejudice

22 and releases Defendant from all claims arising from the settlement class. (Id. at 4, 18–20,

23 ¶¶ 4.4.1–4.4.4.)

24 Settlement class members will each receive pro rata payments from the fund. (Id.

25 at 14, ¶ 4.3.1.1.) Settlement class members receive their payment by either: (1) qualifying

26 as an automatic payment settlement class member; or (2) submitting a claims form either

27 by mail or via the settlement website. (Id. at 14–15, ¶¶ 4.3.1.1, 4.3.1.3.) Settlement class

28 members meet the automatic payment requirements if: (1) the settlement class member was

1 the subject of a consumer report resold by Defendant to a third party during the settlement

2 class period that included information from at least one CRA, but not all of the reporting

3 CRAs, where the score segment of the report indicated that the consumer was deceased;

4 and (2) that the CRA’s report does not contain a deceased notation within a tradeline.

5 (Id. 14–15, ¶ 4.3.1.2.) The remaining settlement class members include members who have

6 at least one report with a tradeline stating they are deceased, but who also have reports

7 from at least one other CRA that does not contain such tradeline. (Id. at 15–16, ¶ 4.3.1.3.)

8 Class members who are entitled to an automatic payment and class members who make

9 claims will all receive equal payments from the fund. (Id. at 14, ¶ 4.3.1.1.)

10 Plaintiff has indicated that she intends to seek a class representative’s services award

11 of up to $7,500.00 from the fund. (Id. at 26, ¶ 5.3.) Class counsel also intends to request

12 an attorneys’ fee award of $1,423,750.00, or 25% of the settlement fund, as well as

13 reimbursement for documented out-of-pocket expenses. (Id.)

14 The parties have selected JND Legal Administration as the settlement administrator.

15 (Id. at 9, ¶ 4.2.1.) The settlement administrator will email or mail notices to the settlement

16 class members and will also post the long form notice, claim form, and other documents

17 and deadlines on a website created by the settlement administrator. (Id. at 11–12,

18 ¶¶ 4.2.3–4.2.4.) Settlement class members reserve the right to object or opt out of the

19 settlement. (Id. at 21–22, ¶¶ 4.4.5.1, 4.4.7.)

20 II. DISCUSSION

21 A. Class Certification

22 Plaintiff seeks to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3)

23 for purposes of settlement. (Doc. No. 46 at 13–18.) The settlement class includes all

24 persons residing in the United States of America, including its territories and Puerto Rico,

25 who were the subject: (1) “of a consumer report resold by Defendant to a third party within

26 the time period of January 1, 2021 and continuing through May 2, 2023”; (2) “where the

27 consumer report contained a notation that the consumer was deceased”; and (3) “either one

28 or two of the nationwide consumer reporting agencies (Experian, Trans Union and Equifax)

1 provided information to Defendant that did not include a deceased notation.” (Doc.

2 No. 46-2 at 7, ¶ 2.22.) Excluded from the class are “counsel of record (and their respective

3 law firms) for any of the Parties, employees of Defendants, and employees of the Federal

4 judiciary.” (Id.)

5 A plaintiff seeking to certify a class under Rule 23(b)(3) must first satisfy the

6 requirements of Rule 23(a). Fed. R. Civ. P. 23(b); see Wal-Mart Stores, Inc. v. Dukes, 564

7 U.S. 338, 345 (2011). Once subsection (a) is satisfied, the purported class must then fulfill

8 the requirements of Rule 23(b)(3). Id.

9 1. Rule 23(a) Requirements

10 Rule 23(a) establishes that one or more plaintiffs may sue on behalf of class members

11 if all of the following prerequisites are met: (1) numerosity; (2) commonality;

12 (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a).

13 The numerosity prerequisite is met if “the class is so numerous that joinder of all

14 members is impracticable.” Fed. R. Civ. P. 23(a)(1). “In general, courts find the

15 numerosity requirement satisfied when a class includes at least 40 members.” Rannis v.

16 Recchia, 380 F. App’x 646, 651 (9th Cir. 2010); see also Hilsley v. Ocean Spray

17 Cranberries, Inc., No. 17-cv-02355-GPC-MDD, 2018 WL 6300479, *3 (S.D. Cal. Nov. 29,

18 2018) (quoting Ikonen v. Hartz Mtn. Corp., Civ. No. 87-1275-R-IEG, 122 F.R.D. 258, 262

19 (S.D. Cal. Sept. 20, 1988) (“As a general rule, . . . classes of 40 or more are numerous

20 enough.”). The parties estimate that the proposed settlement class consists of

21 approximately 27,014 members. (Doc. No. 46-2 at 9, ¶ 4.1.) The numerosity prerequisite

22 is met.

23 The commonality prerequisite is met if there are “questions of law or fact common

24 to the class.” Fed. R. Civ. P. 23(a)(2). “[T]he key inquiry is not whether the plaintiffs have

25 raised common questions, ‘even in droves,’ but rather, whether class treatment will

26 ‘generate common answers apt to drive the resolution of the litigation.’” Abdullah v. U.S.

27 Sec. Assoc., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc., 564

28 U.S. at 350) (emphasis removed). Plaintiff argues that the proposed settlement class raises

1 common questions of fact relating to Defendant’s standard policies and practices. (See

2 Doc. No. 46-2 at 15.) Further, Plaintiff argues that the proposed settlement class raises

3 common questions of law relating to (1) whether Defendant’s reporting was compliant with

4 the FCRA; and (2) whether Defendant’s conduct was willful. (Id.) The commonality

5 prerequisite is also met.

6 Typicality requires that “the claims or defenses of the representative parties [be]

7 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). When determining

8 whether the typicality prerequisite is met, courts will look at “whether other members have

9 the same or similar injury, whether the action is based on conduct which is not unique to

10 the named plaintiffs, and whether other class members have been injured by the same

11 course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)

12 (citation omitted). Importantly, the typicality inquiry focuses on “the nature of the

13 claim . . . of the class representative, and not . . . the specific facts from which it arose.”

14 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon, 976

15 F.2d at 508). Here, Plaintiff alleges that she and the proposed settlement class members

16 were each the subject of a consumer report resold by Defendant that contained an

17 inaccurate deceased indicator from one of the CRAs where at least one other CRA did not

18 also report a deceased indicator. (Doc. No. 46 at 16.) Plaintiff further alleges that her

19 arguments relating to the reasonableness of Defendant’s procedures, whether Defendant

20 acted willfully, and the proper amount of statutory and punitive damages would advance

21 not only Plaintiff’s claims but the claims of all of the proposed settlement class members.

22 (Id.) The typicality prerequisite is also met.

23 The adequacy of representation prerequisite requires that the class representative be

24 able to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

25 Representation is adequate if the plaintiff and class counsel (1) do not have any conflicts

26 of interest with any other class members and (2) will “prosecute the action vigorously” on

27 behalf of the class. Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th

28 Cir. 1978) (citation omitted). Here, Plaintiff’s claims against Defendant arise out of the

1 same underlying conduct as the proposed settlement class. (Doc. Nos. 1-2, 46 at 17.)

2 Plaintiff also has the same interest in receiving relief as the proposed settlement class.

3 (Doc. No. 46 at 17.) As such, there does not appear to be any potential conflicts of interest

4 between Plaintiff and any of the other class members. Moreover, class counsel are

5 experienced in litigating FCRA cases, including FCRA class actions. (See Doc. Nos. 46-1,

6 46-5.) Class counsel have also diligently litigated this case through informal and formal

7 discovery, mediation, and settlement negotiations. (Id.) The adequacy of representation

8 prerequisite is met.

9 Accordingly, all of the prerequisites of Rule 23(a) are satisfied.

10 2. Rule 23(b)(3) Requirements

11 Rule 23(b)(3) requires a court to find that: (1) “the questions of law or fact common

12 to class members predominate over any questions affecting only individual members”; and

13 (2) “that a class action is superior to other available methods for fairly and efficiently

14 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3)’s requirements are

15 designed “to cover cases ‘in which a class action would achieve economies of time, effort,

16 and expenses, and promote . . . uniformity of decision as to persons similarly situated,

17 without sacrificing procedural fairness or bringing about other undesirable results.’”

18 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (citation omitted). If the parties

19 seek to certify a class for settlement purposes, “a district court need not inquire whether

20 the case, if tried, would present intractable management problems for the proposal is that

21 there be no trial.” Id. at 620 (citing Fed. R. Civ. P. 23(b)(3)(D)).

22 i. Predominance

23 A plaintiff must show “that the questions of law or fact common to class members

24 predominate over any questions affecting only individual members.” Fed. R. Civ.

25 P. 23(b)(3). The predominance inquiry focuses on whether the proposed class is

26 “sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S.

27 at 623 (citation omitted). It “asks whether the common, aggregation-enabling, issues in

28 the case are more prevalent or important than the noncommon, aggregation-defeating,

1 individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (citation

2 omitted). Plaintiff argues that all of the proposed settlement class members’ claims depend

3 on: (1) whether Defendant’s reporting was compliant with the FCRA; (2) whether

4 Defendant’s conduct was willful; and (3) the proper measure of statutory and punitive

5 damages. (Doc. No. 46 at 18.) Plaintiff further argues that these issues do not require an

6 individualized inquiry. (Id.) As such, common questions of law and fact predominate.

7 ii. Superiority

8 A plaintiff must also demonstrate the superiority of maintaining a class action. Fed.

9 R. Civ. P. 23(b)(3). The class action method is considered to be superior if “classwide

10 litigation of common issues will reduce litigation costs and promote greater efficiency.”

11 Valentino v. Carter-Wallce, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (citation omitted).

12 Here, the parties estimate that the settlement class consists of approximately 27,041

13 members. (Doc. No. 46-2 at 9, ¶ 4.1.) Resolving these disputes in a single class action

14 rather than individually would promote greater efficiency and reduce litigation costs. As

15 such, a class action is the superior method of adjudicating this matter.

16 The requirements of Rule 23(b)(3) are satisfied. Accordingly, the Court grants

17 preliminary certification of the proposed class. The Court may review this finding at the

18 final approval hearing.

19 3. Appointment of Class Representative and Class Counsel

20 Plaintiff meets the commonality, typicality, and adequacy requirements of

21 Rule 23(a). As such, Plaintiff is appointed as class representative. See In re Bridgepoint

22 Educ. Inc. Secs. Litig., No. 12-cv-1737-JM-JLB, 2015 WL 224631, *8 (S.D. Cal. Jan. 15,

23 2015) (noting the inquiry as to whether a plaintiff should be appointed as class

24 representative is governed by Rule 23).

25 Under Rule 23(g), a court that certifies a class must appoint class counsel. Fed. R.

26 Civ. P. 23(g)(1). A court must consider the following factors when appointing class

27 counsel: “(i) the work counsel has done in identifying or investigating potential clams in

28 the action; (ii) counsel’s experience in handling class actions, other complex litigation, and

1 the types of claims asserted in the action; (iii) counsels’ knowledge of the applicable law;

2 and (iv) the resources that counsel will commit to represent the class.” Fed. R. Civ.

3 P. 23(g)(1)(A). The court may also “consider any other matter pertinent to counsel’s ability

4 to fairly and adequately represent the interest of the class.” Fed. R. Civ. P. 23(g)(1)(B).

5 Here, Berger Montague PC and Kelly Guzo, PLC have a good understanding of the

6 issues and have actively litigated this case through informal and formal discovery,

7 mediation, and settlement negotiations. (See Doc. Nos. 46-1, 46-5.) Berger Montague PC

8 and Kelly Guzo, PLC also have significant prior experience litigating FCRA cases,

9 including FCRA class actions. (Id.) Accordingly, Berger Montague PC and Kelly Guzo,

10 PLC are appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g).

11 B. The Settlement

12 Rule 23(e) requires the Court to determine whether a proposed settlement is

13 “fundamentally fair, adequate, and reasonable.” Staton v. Boeing Co., 327 F.3d 938, 959

14 (9th Cir. 2003) (citation omitted). To make this determination, the Court must consider a

15 number of factors, including: (1) the strength of the plaintiff’s case; (2) the risk, expense,

16 complexity, and likely duration of further litigation; (3) the risk of maintaining class action

17 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery

18 completed, and the stage of proceedings; (6) the experience and views of counsel; (7) the

19 presence of a governmental participant; and (8) the reaction of class members to the

20 proposed settlement. Id.

21 “In addition, the settlement may not be the product of collusion among the

22 negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000)

23 (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). “Prior to

24 formal class certification, there is an even greater potential for a breach of fiduciary duty

25 owed the class during settlement. Accordingly, such agreements must withstand an even

26 higher level of scrutiny of collusion or other conflicts of interest than is ordinarily required

27 under Rule 23(e) before securing the court’s approval as fair.” In re Bluetooth Headset

28 Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (citation omitted). “Signs of

1 collusion include: (1) a disproportionate distribution of the settlement fund to counsel;

2 (2) negotiation of a ‘clear sailing provision’; and (3) an arrangement for funds not awarded

3 to revert to defendant rather than to be added to the settlement fund.” Hefler v. Wells Fargo

4 & Company, No. 16-cv-05479-JST, 2018 WL 4207245, *8 (N.D. Cal. Sept. 4, 2018)

5 (quoting In re Bluetooth, 654 F.3d at 947).

6 Given that some of these factors cannot be fully assessed until a court conducts the

7 final approval hearing, “a full fairness analysis is unnecessary at this stage.” Alberto v.

8 GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (citation omitted). Rather, at the

9 preliminary approval stage, a court need only review the parties’ proposed settlement to

10 determine whether it is within the permissible “range of possible approval” and thus,

11 whether the notice to the class and the scheduling of a fairness hearing is appropriate. Id.

12 at 666 (citation omitted). Preliminary approval of a settlement and notice to the class is

13 appropriate if (1) “the proposed settlement appears to be the product of serious, informed,

14 and non-collusive negotiations”; (2) “has no obvious deficiencies”; (3) “does not

15 improperly grant preferential treatment to class representatives or segments of the class”;

16 and (4) “falls within the range of possible approval.” In re Tableware Antitrust Litig., 484

17 F. Supp. 2d 1078, 1079–80 (N.D. Cal. April 12, 2007) (citation omitted); see also Beaver

18 v. Tarsadia Hotels, No. 11-cv-01842-GPC-KSC, 2017 WL 2268853, *2–*3 (S.D. Cal.

19 May 24, 2007).

20 In determining whether a proposed settlement should be approved, the Ninth Circuit

21 has a “strong judicial policy that favors settlements, particularly where complex class

22 action litigation is concerned.” Seattle, 955 F.2d at 1276. Additionally, the Ninth Circuit

23 favors deference to the “private consensual decision of the [settling] parties,” particularly

24 where the parties are represented by experienced counsel and negotiation has been

25 facilitated by a neutral party. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 965 (9th

26 Cir. 2009) (citation omitted).

27 After reviewing the proposed settlement in light of the above factors, the Court

28 concludes that preliminary approval is appropriate. The proposed settlement agreement

1 appears to be the result of serious, informed, and non-collusive negotiations. See In re

2 Tableware Antitrust Litig., 484 F. Supp. 2d at 1079–80. Prior to reaching the settlement

3 agreement, the parties engaged in informal and formal discovery. (Doc. No. 46 at 19.)

4 During that time, Defendant produced and Plaintiff reviewed nearly 6,000 pages of

5 documents regarding the credit reports at issue in the case, including exemplar report data.

6 (Id.) On August 25, 2022, the parties participated in an Early Neutral Evaluation

7 Conference before the Honorable Andrew G. Schopler. (Doc. No. 24.) In January 2023,

8 Plaintiff represents that the parties engaged in a full-day mediation with third-party neutral

9 Rodney Max. (Doc. No. 46 at 8.) While a settlement was not reached during this

10 mediation, the parties did make significant progress. (Id.) The parties continued to engage

11 in settlement negotiations during February and March 2023, ending with a draft term sheet.

12 (Id.) The parties then worked to finalize the resolution in a formal settlement agreement.

13 (Id.) Considering this history, the record indicates the parties “carefully investigated the

14 claims before reaching a resolution.” Ontiveros v. Zamora, 303 F.R.D. 356, 371 (E.D.

15 Cal. 2014) (citation omitted); see also Loreto v. Gen. Dynamics Info. Tech., Inc., No. 19-

16 cv-1366-GPC, 2021 WL 3141208, *4 (S.D. Cal. July 26, 2021) (finding that a settlement

17 “facilitated by an experienced mediator after the exchange of sufficient discovery to allow

18 the parties to ascertain Defendant’s potential exposure,” supported preliminary approval).

19 The proposed settlement agreement also does not appear to have any obvious

20 deficiencies, does not improperly grant preferential treatment to the class representative or

21 segments of the class, and falls within the range of possible approval. See In re Tableware

22 Antitrust Litig., 484 F. Supp. 2d at 1079–80. Class counsel are experienced in consumer

23 class action litigation and FCRA litigation. See Romero v. Securus Tech., Inc., No. 16-cv-

24 1283-JM, 2020 WL 3250599, *6 (S.D. Cal. June 16, 2020) (finding that class counsel’s

25 “extensive experience in complex litigation and class actions,” supported preliminary

26 approval). Further, class counsel represent that while Plaintiff’s claims are meritorious,

27 continuing to litigate the case would pose significant risks for the class and the settlement

28 offers meaningful relief. (Doc. Nos. 46-1, 46-5.) The proposed settlement also calls for

1 the certification of a single class. (Doc. No. 46-2 at 7, ¶ 2.2.) And while some of the

2 settlement class members are required to submit a claim form in order to receive payment,

3 this requirement does not appear to improperly grant preferential treatment to the class

4 members entitled to automatic payments because, unlike the class members entitled to

5 automatic payments, these class members have notations in their credit files that suggest

6 they may have passed away. (See id. at 15–16, ¶ 4.3.1.3.) Importantly, every participating

7 settlement class member will receive equal payments from the fund. (Id. at 14, ¶ 4.3.1.1.)

8 Moreover, the proposed settlement agreement provides for a settlement fund of

9 $5,695,000.00. (Id. at 9.) According to Plaintiff, the expected monetary recovery of $607

10 net per class member is 60.7% of the likely award if the case had proceeded all the way

11 through a final judgment in Plaintiff’s favor. (Id. at 22.) This falls within the range of

12 possible approval. See Loeza v. JPMorgan Chase Bank, NA, No. 13-cv-0095-L-BGS,

13 2015 WL 13357592, *8 (S.D. Cal. Aug. 8, 2015) (“In determining whether a settlement

14 agreement is substantively fair to the class, a court must balance the value of plaintiffs’

15 expected recovery against the value of the settlement offer.” (citing In re Tableware

16 Antitrust Litig., 484 F. Supp. 2d at 1080)); In re Zynga Inc. Sec. Litig., No. 12-cv-04007-

17 JSC, 2015 WL 6471171, *10 (N.D. Cal. Oct. 27, 2015) (“A cash settlement amounting to

18 only a fraction of the potential recovery does not per se render the settlement inadequate

19 or unfair.” (citation omitted)). The proposed settlement agreement also provides for

20 non-monetary relief, including changes to Defendant’s practices and policies relating to

21 deceased indicator reporting. See Patel v. Trans Union, LLC, No. 14-cv-00522-LB, 2018

22 WL 1258194, *6 (N.D. Cal. March 11, 2018) (“When determining the value of a

23 settlement, courts consider the monetary and non-monetary benefits that the settlement

24 confers.” (citations omitted)).

25 Class counsel also intends to request an attorneys’ fee award of $1,423,750.00, or

26 25% of the settlement fund, as well as reimbursement for documented out-of-pocket

27 expenses. (Doc. No. 46-2 at 26, ¶ 5.3.) The request for attorneys’ fees is within the range

28 of acceptable attorneys’ fees in Ninth Circuit cases. See Vasquez v. Coast Valley Roofing,

1 Inc., 266 F.R.D. 482, 491 (E.D. Cal. Mar. 6, 2010) (“The typical range of acceptable

2 attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% the total settlement value, with 25%

3 considered the benchmark.” (citations omitted)); see also In re Bluetooth, 654 F.3d at 942

4 (noting that “courts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable

5 fee award” in class action settlements). Additionally, the proposed incentive award of

6 $7,500 for Plaintiff appears reasonable. (Doc. No. 46-2 at 26, ¶ 5.3); see In re Mego Fin.

7 Corp. Sec. Litig., 213 F.3d at 463 (affirming an incentive award of $5,000 to two plaintiff

8 representatives of 5,400 potential class members in $1.75 million settlement, where

9 incentive payment constituted only 0.57% of the settlement fund).

10 For the foregoing reasons, the Court conditionally grants preliminary approval of the

11 proposed settlement. The Court reserves judgment on the reasonableness of the attorneys’

12 fees for the final approval hearing.

13 C. Approving Class Notice

14 Class notice must be “reasonably calculated, under all the circumstances, to apprise

15 interested parties of the pendency of the action and afford them an opportunity to present

16 their objections.” Roes, 1–2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1045 (9th Cir. 2019)

17 (quoting Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 174 (1974)). In addition, the class

18 notice must satisfy the content requirements of Rule 23(c)(2)(B), which provides the notice

19 must clearly and concisely state in plain, easily understood language:

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(i) the nature of the action; (ii) the definition of the class certified; (iii) the class

21 claims, issues, or defenses; (iv) that a class member may enter an appearance

through an attorney if the member so desires; (v) that the court will exclude from

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the class any member who requests exclusion; (vi) the time and manner for

23 requesting exclusion; and (vii) the binding effect of a class judgment on members

under Rule 23(c)(3).

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25 Fed. R. Civ. P. 23(c)(2)(B).

26 1. Content of Notice

27 The content of the proposed notices meets the requirements of Rule 23(c)(2)(B). In

28 clearly understandable language, the notices provide the following: a description of the

1 lawsuit; a description of the settlement class; an explanation of the material elements of the

2 settlement; a statement declaring that class members may exclude themselves from or

3 object to the settlement; a description that explains how class members may exclude

4 themselves from or object to the terms of the settlement; and a description of the fairness

5 hearing. (See Doc. No. 46-2, Exs. B, C.)

6 2. Method of Notice

7 The proposed method of notice is also reasonable. The parties have requested JND

8 Legal Administration to be their settlement administrator. (Id. at 9, ¶ 4.2.1.) After the

9 Court enters a preliminary approval order, and within twenty-one days of receiving the

10 settlement class notice list from the parties, the settlement administrator will send the notice

11 via U.S. mail, postage prepaid. (Id. at 11, ¶ 4.2.3.) The settlement administrator will also

12 use commercially reasonable methods to locate email addresses for class members, and

13 will send notice to class members via email as well. (Id.) For up to thirty days following

14 the mailing of the notice via U.S. mail, the settlement administrator will re-mail the notice

15 via standard U.S. mail, postage prepaid, to those settlement class members whose notices

16 were returned as undeliverable to the extent an alternative mailing address can be

17 reasonably located. (Id. at 11–12, ¶ 4.2.3.) Moreover, thirty days after sending the notice,

18 the settlement administrator will send a reminder notice via email. (Id. at 12, ¶ 4.2.3.) The

19 settlement administrator will also create and maintain the settlement class website. (Id.

20 at 12, ¶ 4.2.4.) The settlement class website will be activated no later than five days prior

21 to the mailing of the notice. (Id.) The settlement administrator will post important

22 settlement documents, such as the operative complaint, the notice, the settlement

23 agreement, and the preliminary approval order to the settlement class website. (Id.) The

24 settlement administrator will also post the long form notice and the claim form to the

25 settlement class website. (Id.) Settlement class members will also be able to submit claim

26 forms through the settlement class website. (Id.)

27 After reviewing the content and the proposed method of providing notice, the Court

28 determines that the notice is adequate and sufficient to inform the class members of their

1 rights. Accordingly, the Court approves the form and manner of giving notice of the

2 proposed settlement. The Court also requests that the parties submit a proposal detailing

3 how notice will be given to class members should the final approval hearing be conducted

4 telephonically.

5 D. Scheduling Fairness Hearing

6 The Court schedules the final approval hearing for Monday, February 26, 2024,

7 at 10:30 a.m. Pacific Time. The settlement administrator must send class notice as set

8 forth in the settlement agreement by November 6, 2023. Plaintiff and class counsel must

9 file all papers in support of final approval, the plan of allocation, and any fee and expense

10 application or compensatory award by December 15, 2023. Potential class members

11 submitting claims must return claim forms by January 5, 2024. Potential class members

12 must return requests for exclusion and objections by January 5, 2024. Any reply papers

13 must be filed by January 12, 2024. Plaintiff and class counsel must also file with the

14 Court details outlining the scope, method, and results of the notice plan, and a list of

15 potential class members who have timely and validly excluded themselves from the

16 settlement by February 12, 2024.

17 / / /

18 / / /

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

1 CONCLUSION

2 The Court certifies the class for purposes of settlement, preliminarily approves of

3 || the proposed settlement, appoints class representative and class counsel, and approves the

4 and manner of the notice of the proposed settlement agreement to the settlement class

5 ||members. The Court requests that the parties submit a proposal detailing how notice will

6 || be given to class members should the final approval hearing be conducted telephonically.

7 ||The Court also appoints JND Legal Administration as the settlement administrator.

8 || Additionally, the Court sets the final approval hearing for Monday, February 26, 2024,

9 || at 10:30 a.m. Pacific Time. Plaintiff must file a motion for final approval of the settlement,

10 any motions for fee awards and incentive awards on or before December 15, 2023.

1] IT IS SO ORDERED.

12 | DATED: October 2, 2023 | | dub LL. JI é fe

13 MARILYN ©. HUFF, Distri ge

14 UNITED STATES DISTRICT COURT

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