MEMORANDUM OPINION and ORDER
JOHN McBRYDE, District Judge
Now before the court is the motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, filed by defendant, Bay Area Credit Service. Having considered the motion and the response of plaintiff, Brian McVey, the court concludes that the motion should be granted.
I. Plaintiff's Claims and Defendant's Motion
Plaintiff filed the instant action on May 19, 2010, alleging violations by defendant of the Fair Debt Collection Practices Act, ("FDCPA"), 15 U.S.C. § 1692 et seq. The only factual allegations in the complaint are set forth below in their entirety:
11. Defendant constantly and continuously places collection calls to Plaintiff seeking and demanding payment for an alleged debt.
12. Defendant calls Plaintiff from 855-515-3445 and requests return calls to 866-515-3445.
13. Defendant often calls Plaintiff multiple times per week.
Compl. at 2.
In the motion to dismiss, defendant argues that plaintiff's allegations fail to state a claim under the FDCPA because they are nothing more than broad, conclusory allegations devoid of specific facts.
II. Applicable Legal Principles
The standards for deciding a motion to dismiss for failure to state a claim are well-settled. The court's task is to determine "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court said that a complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. at 45-46. However, the Supreme Court has held that it did not quite mean its "no set of facts" statement inConley. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-63 (2007) (stating that the Conley "no set of facts" statement "described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival," at 563).
This is the standard upon which plaintiff relies, without any reference to, or acknowledgment of, the Supreme Court's decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
In evaluating whether the complaint states a viable claim, the court construes the allegations of the complaint favorably to the pleader. Scheuer, 416 U.S. at 236. However, the court does not accept conclusory allegations or unwarranted deductions of fact as true. Bell Atl. Corp., 550 U.S. at 555; Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). On a motion to dismiss for failure to state a claim, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
III. Analysis
One of the purposes of the FDCPA is to eliminate the use of abusive, deceptive, and unfair debt collection practices by debt collectors. 15 U.S.C. § 1692(e). Specifically, subsection 1692d, the provision allegedly violated by defendant, provides that "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." The statute then provides the following non-exhaustive list of conduct that may violate § 1692d:
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) of this title.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller's identity.
15 U.S.C. § 1692d. As an initial matter, plaintiff's second allegation, that defendant calls from one number while requesting return calls to another number, is not within any of the enumerated violations set forth above, nor has plaintiff directed the court to any authority showing that such an action violates § 1692d.
The remaining factual allegations are that defendant "constantly and continuously places collection calls," which plaintiff alleges is for the purpose of "seeking and demanding payment for an alleged debt," and that defendant "often calls Plaintiff multiple times per week." Compl. at 2. Thus, the sum of plaintiff's allegations are that defendant often calls plaintiff multiple times per week seeking payment of an alleged debt.
Nothing in the FDCPA prohibits a debt collector from contacting a debtor for the purpose of collecting a legitimate debt. Instead, Congress, in passing the FDCPA, recognized the need to protect consumers against "collection abuse" that included:
Plaintiff does not allege that he does not owe the debt or that he has fully paid the debt.
obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer, obtaining information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process.
S. Rep. No. 95-382, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. Admin. News 1695, 1696. Thus, courts have found conduct to violate § 1692d where the debt collector:
• made calls to debtors before 8:00 a.m. and after 9:00 p.m.; made calls to the debtor's place of employment after being told not to do so by the debtor or employer; and used racial slurs, belligerent threats, profanity, and terms such as liar, deadbeat, and crook in communications with debtors and their relatives,
United States v. Central Adjustment Bureau, Inc.,
667 F. Supp. 370, 375-377 (N.D. Tex. 1986);
• made fifty-four calls to a debtor's workplace and left twenty-four messages on the workplace answering machine,
Sanchez v. Client Servs., Inc.,
520 F. Supp. 2d 1149 (N.D. Cal. 2007);
• immediately called the debtor back after the debtor hung up on the debt collector,
Chiverton v. Fed. Fin. Group, Inc.,
399 F. Supp. 2d 96, 101 (D. Conn. 2005);
Kuhn v. Account Control Tech., Inc.,
865 F. Supp. 1443, 1453 (D. Nev. 1994);
Bingham v. Collection Bureau, Inc.,
505 F. Supp. 864, 873 (D.N.D. 1981).
In addition, commentary published by the Federal Trade Commission interpreting the FDCPA defines the term "repeatedly" as "calling with excessive frequency under the circumstances," and "continuously" to mean "taking a series of telephone calls, one right after the other." Federal Trade Commission Staff Commentary on the Fair Debt Collection Practices Act, Fed. Reg. 50097 et seq., 1998 WL 269068, at *501106. Plaintiff alleges no facts describing the types of conduct found by other courts to violate the FDCPA, nor does he allege conduct that would appear to have occurred "repeatedly" or "continuously," as those terms are defined by the Federal Trade Commission.
Plaintiff, in his response, relies on Townsend v. Chase Bank USA N.A., 2009 WL 426393 (C.D. Cal. Feb. 15, 2009), for the proposition that "specific facts are not necessary; the statement need only `give the defendant fair notice of what the . . .claim is and the grounds upon which it rests.'" Pl.'s Resp. at 6 (internal quotation marks and ellipsis in original). Plaintiff's reliance on Townsend is curious: the Townsend court granted the defendant debt collector's motion to dismiss the plaintiff's FDCPA claims pursuant to § 1692 because the plaintiff had failed to plead those claims with particularity by failing to allege "specific instances of communications violating the FDCPA," including failing to identify the person making the communications, or the dates and contents of the communications.Id. at *2. Plaintiff has alleged no specific instances of communications that allegedly violated the FDCPA and has alleged even fewer facts than the plaintiff in Townsend. Thus, even under the authority cited by plaintiff, he has failed to state a claim for relief under the FDCPA.
Plaintiff also relies on a case from the Seventh Circuit Court of Appeals, which considered a different provision of the FDCPA as it applied to written correspondence, and thus is inapposite to the instant action.
The court concludes that the three statements alleged as "factual allegations" in the complaint constitute nothing more than the type of "threadbare recitals" and "conclusory statements" that fail to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1940 (2009); see also Amaya v. Pollack Rosen, P.A., 2010 WL 724451 (S.D. Fl. Feb. 25, 2010) (granting motion to dismiss FDCPA claims based on 15 U.S.C. § 1692d(5)). While the court recognizes that plaintiff need not provide detailed allegations, plaintiff's factual allegations allege no facts as would raise his right to relief above the speculative level.Bell Atl. Corp., 550 U.S. at 555.
IV. Order
Therefore,
The court ORDERS that defendant's motion to dismiss be, and is hereby, granted, and that all claims asserted by plaintiff, Brian McVey, against defendant, Bay Area Credit Service, be, and are hereby, dismissed with prejudice.
tween the parties. The inquiry "must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned." [Citation.] . . .'" (
7-Eleven Owners for Fair Franchising v. Southland Corp. (2000)
85 Cal.App.4th 1135, 1145 [
102 Cal.Rptr.2d 777] (
7-Eleven), quoting
Dunk, supra, 48 Cal.App.4th at p. 1801.)
In considering whether a settlement is reasonable, the trial court should consider relevant factors, which may include, but are not limited to "`the strength of [the] plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.'" ( Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128 [ 85 Cal.Rptr.3d 20] ( Kullar), quoting Dunk, supra, 48 Cal.App.4th at p. 1801; see also In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723.) A "`presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.'" ( Kullar, at p. 128, quoting Dunk, at p. 1802; see Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52-53 [ 75 Cal.Rptr.3d 413].)
B. Adequacy of the Settlement Notice
On settlement of a class action, "notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement." (Rule 3.769(f).)
The rules specify the content of the notice to class members and the factors the court must consider in determining the manner of notice. Rule 3.766(d) provides in pertinent part: "The content of the class notice is subject to court approval. If class members are to be given the right to request exclusion from the class, the notice must include the following: [¶] (1) A brief explanation of the case, including the basic contentions or denials of the parties; [¶] (2) A statement that the court will exclude the member from the class if the member so requests by a specified date; [¶] (3) A procedure for the member to follow in requesting exclusion from the class; [¶] (4) A statement that the judgment, whether favorable or not, will bind all members who do not request exclusion; and [¶] (5) A statement that any member who does not request exclusion may, if the member so desires, enter an appearance through counsel."
The trial court "`has virtually complete discretion as to the manner of giving notice to class members.' [Citation.]" ( 7-Eleven, supra, 85 Cal.App.4th at p. 1164.) Zobrist does not directly challenge the manner in which notice was disseminated, but rather contests the content of the notices. While our review of the manner of giving notice is governed by the abuse of discretion standard, our review of the content of notice may be de novo. "`To the extent the trial court's ruling is based on assertedly improper criteria or incorrect legal assumptions, we review those questions de novo.'" ( Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734, 745 [ 99 Cal.Rptr.3d 436], quoting Hypertouch, inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1537 [27 Cal.Rptr.3d 839J ( Hypertouch); see also Wershba, supra, 91 Cal.App.4th at pp. 234-235.)
The record below reflects that the trial judge carefully reviewed the forms of notice proposed by the parties, and required revisions "with the goal of making it easy to understand for non-lawyers" and to make certain that the notice clearly explained the rights and obligations of class members in connection with the settlement. Zobrist contends that the form of notice provided to class members was nevertheless inadequate because the notices allegedly misled members of the Subscriber Class into believing that they were "eligible to make claims for any part of the Common Fund," and also because the notices allegedly did not disclose the "size of the class."
Zobrist also objects that the short-form publication notice failed to disclose to the members of the Subscriber Class that they were members of the class certified in the Brown arbitration in New York. The long-form publication notice, however, specifically stated that the settlement would resolve the claims asserted in the Brown arbitration: "The settlement will also likely resolve other pending cases that challenge Verizon Wireless's fiat[rate] ETF, including Brown, Zobrist Cellco Partnership d/b/a Verizon Wireless, [AAA], Case Nos. 11 494 01274 05 and 11 494 0032 05, pending before the [AAA] in New York, New York . . . ."
She first argues that the statement in the short-form publication notice that the "settlement will provide $21 million into a Common Fund for claims of subscribers who were charged, paid and/or were subject to a flat-rate ETF," misled members of the Subscriber Class into believing that they "could share in a portion of the $21 million." That publication notice, however (as well as the mail notice), directed potential settlement class members to the settlement Web site to learn more about the settlement, and the publication notice specifically referenced the "detailed notice and claim form package" which subscribers would need to submit to "qualify for a payment." The settlement Web site included the "`Plan of Allocation,'" detailing how payments would be made to class members, including the fact that members of the Subscriber Class were only entitled to the injunctive relief described in the settlement, at three different places linked to on the site's home page: the long-form publication notice (in English and Spanish); the Plan of Allocation of settlement proceedings pleading; and FAQ's (in English and Spanish). The long-form publication notice, for example, states that payments will be made "on a pro rata basis to Class Members who paid an ETF and payment to Class Members that were charged but did not pay an ETF and prove that they suffered economic harm as a result of the ETF." The claim form provided electronically on the Web site and in physical form to class members also made clear that subscribers who were not charged an ETF were not eligible to claim monetary relief. The claim form requires that individuals identify themselves as a customer who "paid a flat [ETF]," or who "was charged but did not pay a flat [ETF]." The form does not include a box that can be checked by past or present subscribers who were or are merely subject to a flat-rate ETF but not charged an ETF. Zobrist does not contest the adequacy of the information provided on the Web site. That the Web site was effective as a primary detailed source of information about the litigation and the settlement is evidenced by the fact that the overwhelming majority of claims filed with the settlement administrator (111,992 out of the total of 154, 992) were submitted electronically.
Significantly, Zobrist fails to cite any evidence that any class members were actually deceived or misled by the notice, or that anyone inappropriately submitted a claim for monetary relief as a consequence of confusion or misunderstanding. The notices as a whole, including information provided on the settlement Web site and in the claim form, make clear that monetary relief is limited to members of the ETF Assessed Class.
A similar procedure for notice of a class settlement, utilizing a summary notice directing class members to a Web site containing more detailed notice, was approved in Chavez as a "perfectly acceptable" manner of giving notice. ( Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at p. 58.) We agree with the observation in Chavez that "[u]sing the capability of the Internet in [this] fashion was a sensible and efficient way of providing notice, especially compared to the alternative [objector] apparently preferred — mailing out a lengthy legalistic document that few class members would have been able to plow through." ( Id. at p. 58, fn. omitted.) We do not look for perfection. "[A] large body of case law reflect[s] the view that `the whole concept of a large class-action might easily be stultified by insistence upon perfection in actual notice to class-members . . . .' [Citation.]" ( Hypertouch, supra, 128 Cal.App.4th at p. 1540.)
Zobrist also argues that notice was defective in failing to disclose the "enormous size" of the class to the EFT Assessed Class. She contends that this did not provide the class members with adequate information for the members to make an informed decision about whether to participate, object, or opt out. She cites no authority for her position that information as to the size of the potential class, or the contingencies of recovery in any particular amount, is required. Courts which have considered such objections in the context of class settlement have rejected the claim. "[T]here is no requirement that the class size be specified in the notice [citation] . . . ." ( In re Lorazepam Clorazepate Antitrust Litigation (D.D.C. 2002) 205 F.R.D. 369, 379; see also In re Ins. Brokerage Antitrust Litigation (D.N.J., Feb. 16, 2007, MDL No. 1663, No. 04-5184 (FSH)) 2007 U.S.Dist. Lexis 11163, p. *6 [rejecting objection to notice that it "do[es] not provide details about the size of the class and the actual individual settlement values"]; Managed Care Litigation Class Plaintiffs v. Aetna Inc. (S.D.Fla., Oct. 24, 2003, MDL No. 1334, No. 00-1334-MD-Moreno) 2003 U.S.Dist. Lexis 27228, p. *13 [rejecting objection to notice that there was "no way to calculate the actual value of the settlement as to each class member since no estimate of size of class was provided"].)
"`California courts may look to federal authority for guidance on matters involving class action procedures.' [Citations.]" ( Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1264, fn. 4 [ 24 Cal.Rptr.3d 818].) "[W]hen there is no relevant California precedent on point [regarding attorney fees in class actions], federal precedent should be consulted. [Citation.]" (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 38 [97 cal.Rptr.2d 797].)
Both the mail notice and the long-form publication notice identified the total amount of the common fund recovery, the nature of the costs and fees to be deducted from the common fund, and the fact that the balance of the fund would be allocated among qualified class claims. The long-form publication notice makes clear that "[t]he amount paid to Class Members may be larger or smaller than the amount of the claim, depending on how many claims are submitted." "The aggregate amount available to all claimants was specified and the formula for determining one's recovery was given. Nothing more specific is needed. [Citation.]" ( Marshall v. Holiday Magic, Inc. (9th Cir. 1977) 550 F.2d 1173, 1178.)
The trial court did not abuse its discretion in the manner of giving notice and the content of the notices was adequate to "` "fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings." [Citations.]' [Citation.]" ( 7-Eleven, supra, 85 Cal.App.4th at p. 1164.)
C. Fairness
Zobrist argues that the settlement is unfair and inadequate in several respects. She alleges the pro rata monetary recovery to the ETF Assessed Class is insufficient and "irrationally and unfairly" discriminates between those class members who actually paid an ETF and those who had only been assessed an ETF and declined to pay it. In assessing the value of the settlement to the class, Zobrist asserts that the court "misunderstood essential facts" and incorrectly believed the ETF Assessed Class to be "only a fraction of its true size." She contests the failure of the settlement to provide any monetary relief for the Subscriber Class.
She challenges the releases contemplated by the settlement as "one-sided," waiving all challenges by class members to the assessment or collection of flat-rate ETF's, while allowing Verizon to pursue collection of unpaid ETF's. She contends that the stipulated injunctive relief was "meaningless."
The trial judge here was intimately familiar with the factual and legal issues presented in the ETF litigation. She had considered and ruled upon all pretrial motions in both the Sprint and Verizon ETF cases, had served as the trial judge in the related Sprint ETF trial, and had heard all of the plaintiffs' evidence in this case before the settlement was reached midtrial. She found the settlement terms to be reasonable and adequate. "Our task is limited to a review of the record to determine whether it discloses a clear abuse of discretion when the trial court's determination of fairness is challenged on appeal. We do not substitute our notions of fairness for those of the trial court or the parties to the agreement. [Citation.] `To merit reversal, both an abuse of discretion by the trial court must be "clear" and the demonstration of it on appeal "strong."'" ( In re Microsoft I-V Cases, supra, 135 Cal.App.4th at p. 723, quoting 7-Eleven, supra, 85 Cal.App.4th at p. 1146.)
The settlement agreement here met the Kullar requirements, entitling it to a "presumption of fairness." ( Kullar, supra, 168 Cal.App.4th at p. 128, citing Dunk, supra, 48 Cal.App.4th at p. 1802.) Experienced class litigation counsel negotiated the settlement in arms-length bargaining. The settlement was reached after five years of litigation, including extensive investigation and discovery, and after trial of a related ETF case to jury verdict. Only a very small percentage of the class members objected.
As we have already concluded, notice to the potential class members was adequate — 129 class members opted out of the settlement and only eight objections were filed with the court.
The court considered the objections presented and conducted an extended and thorough analysis of the fairness of the settlement. The trial judge found the total monetary and injunctive relief to be reasonable in light of the claims released and the risks of further litigation.
1. The Size of the ETF Assessed Class
Zobrist contends that the superior court "fundamentally misunderstood the size of the ETF Assessed Class" when assessing the adequacy of the monetary relief provided by the settlement. She argues that the court erroneously determined the ETF Assessed Class to consist only of roughly 2.7 million members, when the true figure was approximately 23 million customers. White and her fellow plaintiffs/respondents dispute this. They correctly point out that there was no evidence presented to support the larger figure that Zobrist advocates, and that she cites only her own Notice of Objection and Intention to Appear at Hearing as support for this number.
The exact size of the ETF Assessed Class was a disputed issue in the litigation. The court, in its order granting final approval of the settlement, referred to "the 2.7 million person ETF Assessed Class," but this comment was made in the approval of the Plan of Allocation, not the adequacy of the settlement. The reference was to the number of individuals who received the mailed notice, based on available Verizon records. The court was aware that the ETF Assessed Class included persons who did not receive the mail notice due to the unavailability of current addresses for persons assessed ETF's before 2004. In the final approval order, the court found that the total potential monetary recovery for plaintiffs' ETF claims on a nationwide basis would be $1 billion or more. Assuming a potential recovery of $1 billion, which is the amount Verizon and plaintiffs agreed was collected by Verizon during the class period, and dividing that sum by the amount of Verizon's flat-rate ETF ($175) would yield a result of about 5.7 million potential claimants. The record does not support Zobrist's assertion that the trial judge misapprehended the size of the monetary recovery class.
At trial the parties stipulated that Verizon's collection rate in California on the ETF's was approximately 1 out of every 2.5 flat-rate ETF's assessed. Extrapolating that figure nationally would yield an approximate total ETF assessment number of roughly $2.5 billion, and 14.3 million customers assessed. Zobrist's claim of 23 million ETF Assessed Class members appears to have been based on an extrapolation of Sprint's collection rate of 1 in 3 ETF assessments.
It is also well settled that the court's obligation is only to be "aware of the maximum damages" claimed by the class, discounted by the risks that the class would not obtain such relief, and then to compare those claims to the value of the relief class members would receive under the settlement. ( Kullar, supra, 168 Cal.App.4th at p. 130, citing Dunk, supra, 48 Cal.App.4th at p. 1802.) The trial judge made that analysis, weighing the actual compensation from the common fund against the potential class recovery. The court recognized that after payment of fees, legal costs, notice costs, and administrative costs, each claimant would receive approximately 50 percent of each claim submitted; thus, a $175 claim for payment of an ETF would result in payment of approximately $87.50. ( Ibid.)
Zobrist's citation from State of California v. Levi Strauss Co (1986) 41 Cal.3d 460, 482, that "class size is of the essence in determining the compensatory effectiveness of a claimant fund sharing plan" is from a concurring opinion and is not part of the majority holding in that case.
2. Lack of Monetary Compensation to the Subscriber Class
With respect to the objection to lack of monetary compensation for members of the Subscriber Class, the court noted the weakness of those class members' claims, observing that the Subscriber Class had no claim for monetary relief for ETF's either assessed or paid and therefore had no claim for any "out-of-pocket damages." The only "potential claim for monetary relief" for those Verizon customers would be that the ETF "coerced" them into "complying with their contractual obligations," a "tenuous claim." Plaintiffs expressly eschewed any claim for monetary relief during the class certification proceedings.
The same trial judge ultimately held in the Sprint case that class members who did not actually pay the ETF were not entitled to any monetary recovery.
The court also found value to the class in Verizon's decision to change its flat-rate ETF policy and in the stipulated injunctive relief, stating that a "reasonable inference" could be drawn that "this lawsuit and the related lawsuits against Verizon were in some measure catalysts for Verizon's decision to adopt a pro-rated ETF for contracts starting on and after November 17, 2006," that this "change in policy has provided a substantial benefit to many of the class members and will provide substantial monetary benefits to Verizon customers in the future," that this "ensures that for a period of two years Verizon will not revert to a flat ETF," and that this "will keep in place the benefits obtained in the litigation." Plaintiffs submitted evidence estimating that the prorated ETF would save consumers $96 million in 2009 alone. An additional two years of a prorated ETF under the settlement's injunction would have a potential monetary value to class members of over $180 million.
3. Plaintiffs' Risks of Trial
The court further found that the objections to the settlement did "not sufficiently account for the risks related to the continued prosecution of this case." The court noted "significant risks" as to whether plaintiffs could prevail on the merits of their claims, observing that it was "unclear" whether plaintiffs could "prove that the ETF was unlawful" under Civil Code section 1671, subdivision (d), particularly given the existence of competing articulations of the judicially-created "reasonable endeavor" test. Further, it was unclear whether "the ETF operated as an alternative means of performance for those class members who elected to terminate their contracts early and to pay the ETF." ( Ibid.) Even if the ETF was found to be unlawful, there still existed the possibility that "the monetary relief that [p]laintiffs would recover on their claims might be less than the monetary relief that Verizon might prove on its cross-claims, which could result in a net judgment of $0.00 for the class."
The trial judge later found in a statement of decision on the court trial portion of the Ayyad v. Sprint (Super. Ct. Alameda County, 2008, RG03-121510) case that the Sprint ETF was invalid. An appeal from that decision is pending.
Verizon filed a cross-complaint for breach of contract and unjust enrichment against Molly White and the unnamed class members.
There were "significant risks to the class members" in continuing to prosecute the case "even if [p]laintiffs prevailed at the trial court." It was unclear whether the "ETF claims are a matter of federal law" under the Federal Communications Act of 1934 (FCA) ( 47 U.S.C. § 332(c)(3)(A)), and thus preempted. The court noted that the FCC was still "considering whether the ETF claims are a matter of federal law" and "could issue its decision at any time," as well as the "possibility of appellate proceedings" and a "remand to the trial court for further proceedings," which could "delay any final resolution for a few years." ( Ibid.) The court emphasized that "[e]ach of these was a very significant issue and at the time of settlement it was by no means clear that [p]laintiffs would prevail on all the issues."
A formal administrative proceeding had been pending at the FCC since May 2005, to determine the extent to which 47 United States Code section 332(c)(3)(A) of the FCA preempts state court actions that challenge ETF's.
Zobrist points to the jury verdict of $73,775,975 in refunds and ETF cancellations returned against Sprint in the trial that immediately preceded the Verizon trial (tried by the same plaintiffs' class counsel) as evidence of the inadequacy of the settlement. She contrasts that with the amount of the common fund here and labels it a "shocking" disparity. She ignores, however, the verdict returned by the same jury on Sprint's cross-complaint, finding that the plaintiffs had breached their contracts with Sprint, and determining Sprint's actual damages caused by early termination of the contracts to be $225,697,433. Under the setoff procedure provided in Judge Ronald Sabraw's 2006 pretrial order, the plaintiffs' net recovery in the Sprint trial was zero. While the trial court subsequently granted a new trial on the issue of Sprint's damages, and the resulting offset, Sprint has appealed this order, and plaintiffs here faced the same risk of pyrrhic victory.
4. Allocation Among Members of the ETF Assessed Class
The Plan of Allocation permits class members who have actually paid an ETF to claim full reimbursement, while those class members who have not paid are permitted only a $25 claim and "will likely receive no more than $13.00 in total." Zobrist contends that this differential treatment is "irrational[]" and "manifestly unfair." She argues that this is particularly so when Verizon is permitted to continue to pursue collection of unpaid ETF's, while class members' claims are released. As Verizon notes, however, Zobrist presented no evidence of any ongoing collection efforts against any class member, or that the majority of such claims were not already time barred at the time of the settlement. Any class member perceiving a risk of collection action by Verizon still had the ability to opt out of the settlement. More to the point, Zobrist fails to show how those who have paid nothing would be able to establish, particularly on a class basis, that they would be entitled to restitution, or that they have suffered compensable damages in any amount. The trial court found that the Plan of Allocation "reasonably allocates the monetary relief among the members of the ETF Assessed Class and the Subscriber Class in proportion to the injuries that the members of those classes have allegedly suffered." The court was well within its discretion in approving a Plan of Allocation awarding greater relief to those with documented out-of-pocket losses than those who suffered only intangible injur.
On November 17, 2006, Verizon adopted a prorated ETF in its subscriber agreements on a prospective basis.
D. Alleged Breach of Fiduciary Duty and the Incentive Payments
The court approved incentive awards in the amount of $10,000 each to class representatives White, Schroer, Brown and Nguyen. Zobrist argues that the class representatives breached their fiduciary duties to the class by receiving the incentive awards and that they sought "`individual gain'" at the expense of the class. She does not dispute the extent of the participation of the class representatives in the litigation, but rather focuses on the disparity between the amount of the awards and the recovery by individual class members. She alleges that Schroer and White received amounts grossly disproportionate to the average recovery of the ETF Assessed Class, and asserts that Nguyen and Brown (members of the Subscriber Class) received "pay-offs to induce them to sell out the Subscriber Class."
While there has been scholarly debate about the propriety of individual awards to named plaintiffs, "[i]ncentive awards are fairly typical in class action cases." ( Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958 ( Rodriguez), citing 4 Newberg on Class Actions (4th ed. 2002) § 1.1:38, p. 81 and Eisenberg Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study (2006) 53 UCLA L. Rev. 1303.) These awards "are discretionary, [citation], and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general." ( Rodriguez, at pp. 958-959.)
There is a surprising dearth of California authority directly addressing this question. The threshold question of whether a class representative is entitled to a fee in a California class action was recently answered in the affirmative in Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785 [ 96 Cal.Rptr.3d 441] ( Clark). (See also Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 726 [ 9 Cal.Rptr.3d 544] [affirming without discussion an order for "`service payments' to the five named plaintiffs compensating them for their efforts in bringing the action"]; Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 14:146.10, pp. 14-102 to 14-103 (rev. #1, 2010).) "`Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers' nonlegal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable.'" ( Clark, at p. 804, fn. omitted, citing In re Continental Illinois Securities Litigation (7th Cir. 1992) 962 F.2d 566, 571.) Clark involved allegations of unpaid wages and overtime, failure to provide meal and rest periods, and other labor violations. ( Clark, at p. 789.) The court reversed the trial court's approval of the settlement on the principal ground that "the court did not receive and consider sufficient information on a core legal issue, affecting the strength of the case for plaintiffs on the merits . . . ." ( Id. at p. 798.) Although approving the concept of incentive awards generally, the court also reversed the trial court's approval of enhancements of $25,000 to each of the two named plaintiffs on the basis that no rationale was provided to show that an award of this sum was fair and reasonable. ( Id. at pp. 805-806.)
"[T]he rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class." ( Clark, supra, 175 Cal.App.4th at p. 806.) An incentive award is appropriate "`if it is necessary to induce an individual to participate in the suit[.]' . . . [Citation.]" ( Id. at p. 804.) "[C]riteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. [Citations.]" ( Van Vranken v. Atlantic Richfield Co. (N.D.Cal. 1995) 901 F.Supp. 294, 299.) These "incentive awards" to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit. ( See Dornberger v. Metropolitan Life Ins. Co. (S.D.N.Y. 2001) 203 F.R.D. 118, 124-125.)
The court here received evidence that each of the class representatives actively participated in the litigation and worked with class counsel to assist in the prosecution of the litigation. White "produced documents, answered interrogatories and submitted to a deposition. [S]he testified at trial as a witness for plaintiffs. She also traveled across the country from her home in Portland, Oregon to testify at the June 12, 2008 hearing" before the FCC regarding ETF's. Schroer, a claimant in the Brown arbitration, "produced documents, answered interrogatories, submitted to a deposition and participated in conferences with counsel to prepare for trial and to discuss trial strategy for the Brown matter." Schroer also "personally attended three days of evidentiary hearings in the Brown matter, flew across the country from his home in New York to testify at trial in California as a witness for plaintiffs in the White action, and traveled to Washington, D.C. to testify before the FCC at the June 12, 2008 public hearing regarding . . . ETF's." Brown, also a claimant in the Brown arbitration, "produced documents, answered interrogatories and traveled from Florida to New York City to give deposition testimony in the Brown matter. Brown also participated in conferences with counsel to prepare for trial and to discuss trial strategy for the Brown matter." Nguyen "produced documents, answered interrogatories and gave deposition testimony." Counsel noted that Nguyen's willingness to participate in a deposition was "significant because she cleans houses for a living."
In contrast to the more detailed analysis given by the trial court to other aspects of the settlement, the discussion of the incentive awards was sparse. There is no "`presumption of fairness'" in review of an incentive fee award. ( Clark, supra, 175 Cal.App.4th at p. 806.) The court, however, found the awards justified in light of the total settlement on the "substantial benefit/common fund approach" and the "material support" provided by the named plaintiffs to the prosecution of the case. Given the familiarity of the trial court with the history of the lengthy litigation and the evidence before the court that the representatives had, over the course of the litigation, assisted with investigation, responded to discovery requests, reviewed documents and pleadings, and testified either in deposition or at trial, we find no abuse of discretion in these awards.
III. DISPOSITION
The judgment is affirmed.
Jones, P. J., and Needham, J., concurred.
On July 27, 2010, the opinion was modified to read as printed above.