Opinion
2:14-cv-02597-DJC-DB
03-22-2024
DAVID WEINER, individually, and on behalf of other members of the public similarly situated, Plaintiff, v. OCWEN FINANCIAL CORPORATION, a Florida corporation and OCWEN LOAN SERVICING, LLC, a Delaware limited liability company, Defendants.
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND DIRECTION OF NOTICE UNDER FED. R. CIV. P. 23(E)
HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE
Plaintiff David Weiner, on behalf of himself and a national and California class of borrowers who had their home mortgage loans serviced by Defendants Ocwen Financial Corporation and Ocwen Loan Servicing, LLC (“Ocwen”), moves for preliminary approval of the Settlement and approval of the proposed plan to notify the classes of national and California borrowers. Ocwen does not oppose the Motion or the Settlement Agreement, which is the byproduct of a second round of mediation between the parties. For the reasons set forth below, the Court grants Plaintiff's Motion for Preliminary Approval of Class Settlement and Direction of Notice Under Federal Rule of Civil Procedure 23(e) (ECF No. 244).
BACKGROUND
I. Factual Background
The Court takes the following facts from Plaintiff's unopposed Motion. (See Mot. Prelim. Approval Class Settlement and Direction of Not. Under Fed.R.Civ.P. 23(e) (ECF No. 244) (“Motion” or “Mot.”).) Plaintiff's suit generally revolves around allegations that Ocwen misled borrowers into believing that certain fees they paid were for “reimbursing Ocwen for the amounts it paid to vendors for property valuation products known as Broker Price Opinions (‘BPOs') and Hybrid Valuations (‘Hybrids')” but “included a hidden vendor ‘reconciliation' service, which Plaintiff alleges was neither disclosed nor a necessary or appropriate component of the BPOs and Hybrid Valuations.” (Mot. at 1.) Plaintiff alleged that the fees charged to - and in many cases paid by - borrowers for the property valuations were neither a fair market price, nor consistent with industry standards. (See id. at 3.) Plaintiff also alleged that Ocwen rebranded its in-house loan servicer, Ocwen Solutions, into a “supposed third-party loan servicer named Altisource,” through which Ocwen “concealed from borrowers that their property valuation charges were secretly bundled with additional fees for unnecessary and undisclosed ‘reconciliations' of their property valuation.” (Id.) Plaintiff alleged that these fees “were neither authorized by the Uniform Deed of Trust, nor offered by any other vendor, and only served to line the pockets of Ocwen's executives, who also owned shares in Altisource.” (Id.) As a result, borrowers were charged tens of millions of dollars for hidden junk fees. (Id. at 1.)
II. Procedural Background
Plaintiff filed the Complaint on November 5, 2014. (See Compl. (ECF No. 1).) Plaintiff brought seven claims for violations of: (1) California's Unfair Competition Law, California Business and Professions Code section 17200, et seq.; (2) the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1962(c) and (d) (“RICO”); (3) the Rosenthal Fair Debt Collection Practices Act, California Civil Code section 1788, et seq.; (4) unjust enrichment under California law; (5) fraud; and (6) breach of contract. Plaintiff prevailed over an early Motion to Dismiss from Ocwen. (See ECF Nos. 6, 9, 10-16.) Plaintiff then overcame an attempt to stay litigation in this case pending the outcome of another case. (See ECF Nos. 20, 24-25, 39-30, 31,33.) Discovery ensured, during which time, Plaintiff on several occasions moved to compel production or testimony. (See ECF Nos. 40, 43, 61, 65, 73, 106, 130, 146, 207.) Plaintiff was also able to defeat a motion for interlocutory review of the Court's prior Order denying Ocwen's Motion to Dismiss. (See ECF Nos. 48, 52, 54, 100.)
Plaintiff initially moved to certify the proposed litigation classes on January 30, 2017, which the Court granted on September 29, 2017. (See ECF No. 93, 102.) Ocwen then petitioned for permission to appeal the Court's Class Certification Order on October 13, 2017. (See ECF No. 104.) Ocwen's petition was summarily denied. (See Mot. at 5.) On June 28, 2019, Ocwen moved for partial summary judgment, seeking to dismiss Plaintiff's RICO claims, his claim for violations of California's Unfair Competition Law, and his claim for unjust enrichment, and to limit Plaintiff's damages to any out-of-pocket losses a class member suffered, that is, what a member actually paid as a result of the deceptive charges. (See ECF No. 164.) The Court denied Ocwen's requests to dismiss certain claims but granted Ocwen's request to limit the measure of damages. (See ECF No. 181.)
Following the summary judgment motion, the parties began preparing for trial, which was set to begin on March 7, 2022. (See ECF Nos. 183-85, 187, 192.) On September 20, 2021, however, Ocwen moved to decertify the class in light of the Supreme Court's decision in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), which the Court initially granted. (See ECF Nos. 194, 219; Mot. at 5.) Plaintiff immediately sought reconsideration of the Court's Class Decertification Order, which the Court eventually granted. (See ECF Nos. 220, 227.) Afterward, the Court rescheduled the jury trial to begin on November 27, 2023. (See ECF No. 232.)
Plaintiff filed a notice of settlement on October 11,2023 (see ECF No. 238), and filed the instant Motion on December 18, 2023. (See ECF No. 244.) Rather than hear oral arguments on the Motion, the Court asked for supplemental briefing, which the parties filed on March 8, 2024. (See Defs.' Br. re Class Settlement (ECF No. 247) (“Ocwen's Supplemental Briefing” or “Ocwen's Suppl. Br.”); Pl.'s Suppl. Br. in Supp. of Mot. for Preliminary Approval of Class Settlement and Direction of Notice under Fed.R.Civ.P. 23(e) (ECF No. 248) (“Plaintiff's Supplemental Briefing” or “Pl.'s Suppl. Br.”).) The matter is now fully briefed.
III. The Proposed Settlement
The general terms of the Settlement Agreement are clear, as is the parties' intent to settle this matter. For instance, it appears Settlement Counsel will seek fees of $8 million plus costs estimated to be about $950,000. (See Settlement Agreement Ex. B (ECF No. 244-1 at 48-61), at 2 (“Class Notice”); Pl.'s Suppl. Br. at 3-4.) The Settlement Cass includes a National Settlement Class and a California Settlement SubClass. (See Mot. at 7.)
The National Settlement Class includes:
All residents of the United States of America who have or had a loan serviced by Ocwen Financial Corporation or Ocwen Loan Servicing LLC (together, “Ocwen”) and who paid for one or more Broker Price Opinions (“BPOs”) or Hybrid Valuations (“Hybrids”) charged by Ocwen through Altisource, from November 5, 2010 through September 29, 2017, the date of the class certification order in this action[.](Id.) The National Settlement Class will receive either $60 or $70 in reimbursement for a BPO fee or Hybrid Valuation fee paid. (See id.)
The California Settlement Sub-Class includes:
All residents of the State of California who have a loan serviced by Ocwen and to whom charges for one or more BPOs or Hybrids were assessed to their mortgage account by Ocwen through Altisource, from November 5, 2010 through September 29, 2017.(Id.) California Settlement Sub-Class members will have a credit applied or the charge reversed, which is worth $60 for a BPO and $70 for a Hybrid Valuation. (See id.)
The parties will appoint JND Legal Administration as the Settlement Administrator, and Ocwen will pay for the Settlement Administrator to implement the notice program and administrate the claims process up to $600,000. (See Mot. at 8.) The Settlement Administrator estimates that the costs will be $586,000 based on the final tally of the claims administrated. (See id.) The Settlement Administrator will identify and locate Settlement Class Members to mail them notices as soon as practicable once the parties provide the Settlement Administrator all available records, data and information necessary to identify and locate Settlement Class Members. (See Decl. of Roland Tellis in Supp. of Pl.'s Mot. Ex. 1 (ECF No. 244-1 at 734), at 7 (“Settlement Agreement”).) To obtain relief, a Settlement Class Member must submit a claim, which only requires the Class Member to claim that they are a member of the Sub-Class, which the Settlement Administrator will confirm. (See id. at 8.)
As for the Gross Settlement Amount the parties have informed the Court that “the maximum potential gross settlement award obtainable by Class Members is $53,826,220.” (Ocwen's Suppl. Br. at 1; see Pl.'s Suppl. Br. at 1.) Ocwen, however, informed the Court that Ocwen has not agreed to a total settlement amount, but, instead, has agreed to an “uncapped claims-made settlement, wherein Ocwen will pay for the total amount of submitted and verified claims.” (Ocwen's Suppl. Br. at 2.) The Court also understands that there are 322,958 class members in the National Settlement Class and 7,419 class members in the California Settlement Sub-Class, for a total of 330,377 borrowers. (See Ocwen's Suppl. Br. at 1; Pl.'s Suppl. Br. at 2.) Finally, Settlement Counsel has clarified with the Court that “Plaintiff's counsel will file their motions for attorneys' fees, expenses, and service awards at least 30 days before the proposed objection/opt-out deadline.” (Pl.'s Suppl. Br. at 3.)
DISCUSSION
IV. The Proposed Settlement
Plaintiff seeks to certify the Settlement Class pending final approval. (See Mot. at 17.) Under Federal Rule of Civil Procedure 23, in order to approve a preliminary settlement agreement, a court must determine if it “will likely be able to” both (1) “certify the class for purposes of the judgment on proposal” under Rule 23(a) and 23(b), and (2) “approve the proposal under Rule 23(e)(2).” Fed.R.Civ.P. 23(e)(1)(B). See Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). For classes likely to be certified under Rule 23(b)(3), "the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort," imposing specific requirements on the contents of the notice. Fed.R.Civ.P. 23(c)(2)(B). After determining certification is appropriate, the Court must then decide whether the proposed settlement is “fundamentally fair, adequate, and reasonable.” Staton, 327 F.3d at 952. At the preliminary approval stage, the court considers the likelihood that it will ultimately approve the proposed settlement. Fed.R.Civ.P. 23(e)(1)(B). The determination as to whether to grant final approval is given after class members have been notified and given the opportunity to provide feedback. Fed.R.Civ.P. 23(e)(2).
A. Plaintiff Has Twice Demonstrated That Rule 23(b)(3) Classes Exist
1. Legal Standard
Whether a class exists depends on whether the class can be certified, which is a two-step process. See In re: Volkswagen "Clean Diesel" Mktg., Sales Pracs., and Prod. Liab. Litig., No. 2672-CRB-JSC, 2016 WL 4010049, at *10 (N.D. Cal. July 26, 2016) (“In re Volkswagen”) (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591,613 (1997)); In re Hyundai and Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019) (en banc) (“In re Hyundai ”) (citing Fed.R.Civ.P. 23(a)-(b)). First, representative plaintiffs must establish the four requirements of numerosity, commonality, typicality, and adequacy under Federal Rule of Civil Procedure 23(a). See In re Volkswagen, 2016 WL 4010049, at *10 (citing Fed.R.Civ.P. 23(a)); In re Hyundai, 926 F.3d at 556 (same). In addition to meeting the numerosity, commonality, typicality, and adequacy prerequisites, the class action must fall within one of the three types specified in Rule 23(b). In re Hyundai, 926 F.3d at 556. A class cannot be certified until the district court is “satisfied, after a rigorous analysis, that the prerequisites” of both Rule 23(a) and 23(b) have been satisfied. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651,664 (9th Cir. 2022) (en banc) (fist quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); and then citing Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013)), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery Coop., Inc., On Behalf of Itself & All Others Similarly Situated, 143 S.Ct. 424 (2022) (mem.).
The criteria for class certification are applied differently in litigation classes and settlement classes. In re Hyundai, 926 F.3d at 556. District courts should not consider whether the action would be manageable at trial under Rule 23(b)(3)(D) because the point of the proposed settlement is to avoid trial and such difficulties. See id. at 557 (quoting Amchem Prod., Inc., 521 U.S. at 620). But other specifications of the Rule - those designed to protect absentees by blocking unwarranted or overbroad class definitions - demand undiluted, even heightened, attention in the settlement context. Amchem Prod., Inc., 521 U.S. at 620. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. Id. (citing Fed.R.Civ.P. 23(c)-(d)).
2. Analysis
Plaintiff has twice litigated the issue of class certification and ultimately prevailed. (See Mot. at 17-21 (quoting ECF No. 102 (providing the Court's Order granting class certification)); also ECF Nos. 1 94 (providing Ocwen's motion for decertification in light of TransUnion, arguing that Plaintiff could not satisfy the predominance requirements of Rule 23(b)(3)); 227 (providing the Court's Order granting Plaintiff's Motion for Reconsideration of ECF No. 219, which granted Ocwen's decertification motion, holding that the Ninth Circuit's decision in Olean, 31 F.4th at 682, foreclosed Ocwen's argument).) Ocwen provides no further opposition. The Court's prior rulings are sufficient for approval should no objections be raised. See Carlin v. DairyAm., Inc., 380 F.Supp.3d 998, 1008 (E.D. Cal. 2019) (collecting cases).
Previously, the Court certified three total sub-classes: (1) a national class of borrowers who paid for one or more BPOs or Hybrid Valuations and who could obtain relief under RICO; (2) a California sub-class of borrowers who paid for one or more BPOs or Hybrid Valuations and could obtain relief under California's Unfair Competition Law and for unjust enrichment; and (3) a California sub-class of borrowers who were charged for one or more BPOs or Hybrid Valuations and could obtain relief under California's Unfair Competition Law. (See Mot. at 4-5 (quoting ECF No. 102 at 12); ECF No. 93 at 10 and n.9.) Now, Plaintiff seeks to consolidate the national and California sub-classes who paid for one or more BPOs or Hybrid Valuations into one national sub-class. (See Mot. at 7 and n.2.) Given the similarities between the three sub-classes the Court previously approved and the two sub-classes Plaintiff proposes now, the Court concludes that Plaintiff has shown that the Court will likely be able to certify the class for purposes of judgment. Fed.R.Civ.P. 23(e)(1)(B)(ii).
a. The Proposed Classes Satisfy Rule 23(a)
To take advantage of Rule 23's procedure for aggregating claims, plaintiffs must make two showings. Olean, 31 F.4th at 663 . First, the plaintiff must satisfy the four requirements of Rule 23(a): (1) numerosity, that is, “that joinder of all members is impracticable;” (2) commonality, that is, that “there are questions of law or fact common to the class;” (3) typicality, that is, that “the claims or defenses of the representative parties are typical of the claims or defenses of the class; and” (4) adequacy, that is, that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). As explained below, Plaintiff satisfies all four requirements under Rule 23(a) with respect to the Settlement Class.
i. The Proposed Classes Are Numerous
In general, for numerosity, classes smaller than fifteen are not permissible. See Gen. Tel. Co. of the Nw., Inc. v. Equal Emp. Opportunity Comm'n, 446 U.S. 318, 330 (1980). Classes exceeding 40 parties are normally needed, as that is when joinder becomes impracticable, but classes between 20 to 40 members may suffice, depending on the circumstances of the case, see, e.g., Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 632 (S.D. Cal. 2010) (first citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 482 (2d Cir. 1995); and then citing Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1998)).
Here, the California Settlement Sub-Class contains over 7,000 potential members, and the National Settlement Class contains over 300,000 members. (See Ocwen's Suppl. Br. at 1; Pl.'s Suppl. Br. at 1.) The two classes exceed 40 individuals and are therefore sufficiently numerous. See Dilts, 267 F.R.D. at 632.
ii. The Settlement Class Has Common Questions
To establish commonality, the plaintiff need only establish a single significant question of law or fact. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011) (“Dukes”)), overruled on other grounds by Olean, 31 F.4th at 682 n.32 (overruling Mazza to the extent it held that “no class may be certified that contains members lacking Article III standing, which does not apply when a court is certifying a class seeking injunctive or other equitable relief.”). A common question “must be of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Olean, 31 F.4th at 663 (quoting Dukes, 564 U.S. at 350). By contrast, an individual question is one where members of a proposed class will need to present evidence that varies from member to member. Id. (citing Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).
Here, there are several common questions that exist among the National Settlement Class and the California Settlement Sub-Class, all of which ultimately derive from the Uniform Deed of Trust. (See Compl. ¶¶ 54-58, 72-84, 121.) For instance, the Court previously found that the “classwide claims alleged here depend on whether or not the BPOs and Hybrid Valuations charged to Plaintiff and members of the purported class were unlawful.” (ECF No. 102 at 8.) This required looking to the language of the Uniform Deed of Trust, and resolution of this issue would establish liability. Thus, there were common questions on the merits. The same still holds true for the Settlement Class. Therefore, Plaintiff has established that there exist common questions among the Settlement Class. See Mazza, 666 F.3d at 589.
iii. Plaintiff Is Typical Under Rule 23(a)
As both the Supreme Court and Ninth Circuit have recognized:
Rule 23(a)'s commonality and typicality requirements occasionally merge: “Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 349 n.5).
“Under the rule's permissive standards, representative claims are ‘typical' if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Id. (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.'” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). “Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Ellis, 657 F.3d at 984 (quoting Hanon, 976 F.2d at 508). Typicality under “Rule 23(a)(3) requires only that [the representative's] claims be ‘typical' of the class, not that they be identically positioned to each [ ]other or to every class member[,]” Parsons, 754 F.3d at 686, as “[differing factual scenarios resulting in a claim of the same nature as other class members does not defeat typicality.” Ellis, 657 F.3d at 985 n.9.
Here, the Court concludes that Plaintiff is typical of the Settlement Class. Ocwen previously argued that Plaintiff was an atypical member because Plaintiff had some unique defenses that applied to him. (See ECF No. 85 at 5-7, 23-24) (providing Ocwen's Class Certification Opposition where Ocwen summarized Plaintiff's “unique loan history” and argued that it precluded a finding of typicality); ECF No. 197-1 at 67, 18-20 (providing Ocwen's Class Decertification Motion where Ocwen noted that Plaintiff's own class-wide evidence for showing damages and injury-in-fact did not establish by Plaintiff's methodology that Plaintiff himself paid any charges or suffered any damages).). However, Ocwen's argument regarding Plaintiff's alleged unclean hands (see ECF No. 97 at 2 (providing Plaintiff's Class Certification Reply)), and convoluted theory of standing distinct from the class-wide evidence (see ECF No. 1971 at 19-20 (providing Ocwen's Class Decertification Motion)), do not detract from the fact that Plaintiff was harmed as a result of Ocwen's allegedly unlawful conduct that stems from the Uniform Deed of Trust. Thus, Plaintiff has suffered the same or similar injury as the rest of the Settlement Class. See Ellis, 657 F.3d at 984.
Moreover, Ocwen's arguments always went more towards damages calculations issues, which do not prevent granting preliminary approval. “[A] district court is not precluded from certifying a class even if plaintiffs may have to prove individualized damages at trial, a conclusion implicitly based on the determination that such individualized issues do not predominate over common ones.” Olean, 31 F.4th at 669 (citing Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016)). Thus, Plaintiff's claim is typical of the Settlement Class, even though his damages calculations may have differed from some portions of the class at trial, which in any event is not relevant for purposes of approving a settlement class. See In re Hyundai, 926 F.3d at 557.
iv. Plaintiff and Settlement Counsel Are Adequate Representatives
Federal Rule of Civil Procedure 23(a)(4) requires the representatives show that they will “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). For adequacy of representation, “courts must resolve two questions: ‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?'” Ellis, 657 F.3d at 985 (quoting Hanlon, 150 F.3d at 1020). Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interests between representatives and absentees. Id. (citing Molski v. Gliech, 318 F.3d 937, 955 (9th Cir. 2003), overruled on other grounds by Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 620-23 (9th Cir. 2010)).
Here, Plaintiff and Settlement Counsel declare that they will both continue vigorously litigating this case. (See Mot. at 19-20; Decl. of Roland Tellis in Supp. of Pl.'s Mot. (ECF No. 244-1) ¶¶ 11, 15 (“Tellis Decl.”).) Their assertion is supported by the lengthy docket in this case, which has been the subject of a significant amount of motion practice. Therefore, for purposes of preliminary approval, the Court concludes that Plaintiff and Settlement Class are adequate representatives based on their prior work and declared intent to continue vigorously litigating this case. See Fed. R. Civ. P. 23(a)(iv).
b. The Proposed Classes Satisfy Rule 23(b)(3)
After establishing the four requirements of Rule 23(a), the plaintiff must show that the proposed class falls within the scope of one of Rule 23(b)'s three categories. See Olean, 31 F.4th at 663. The plaintiff has the burden of proving facts necessary for certifying a class under Rule 23 by a preponderance of the evidence, and the plaintiff may use any admissible evidence. See Olean, 31 F.4th at 665 (citing Tyson Foods, Inc., 577 U.S. at 454-55).
Rule 23(b) permits certification of three types of classes: (1) where case-by-case adjudication would lead to inconsistent results or judgments, see Fed.R.Civ.P. 23(b)(1); (2) where the class seeks injunctive or declaratory relief, see Fed.R.Civ.P. 23(b)(2); or (3) where (a) common questions predominate over individual questions and (b) aggregating the claims in a class action is superior to other available methods for fairly and efficiently adjudicating the controversy, see Fed.R.Civ.P. 23(b)(3). Where, as here, the plaintiff seeks monetary damages, the plaintiff must satisfy the requirements of Rule 23(b)(3).
i. Common Questions Predominate
The predominance requirement under Rule 23(b)(3) is a more demanding test than what is required under Rule 23(a). See Amchem Products, Inc., 521 U.S. at 62324. In considering whether the questions of fact and law predominate, the Court must determine “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. Though it is the plaintiff's burden to prove that class issues predominate, “a plaintiff need not rebut every individualized issue that possibly could be raised[ ]” because that “would be akin to demanding proof ‘that plaintiffs would win at trial.'” Van v. LLR, Inc., 61 F.4th 1053, 1066-67 (9th Cir. 2023) (first citing Olean, 31 F.4th at 664-65; and then quoting Olean, 31 F.4th at 667).
Previously Ocwen argued that Plaintiff was atypical because he lacked standing. However, Plaintiff has established his standing, as has the rest of the Settlement Class, because of the temporary loss of use of money from allegedly unlawful charges decreasing the equity available in the home. See Maya v. Centex Corp., 658 F.3d 1060, 1071 (9th Cir. 2011) (citing Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 101-11 (1979)); Van, 61 F.4th at 1064.
Ocwen also argued that Plaintiff lacked evidence to establish class-wide injury. (See, e.g., ECF No. 206-1 at 4-7.) However, Plaintiff was only required to provide evidence that “establishes that a common question is capable of class-wide resolution, not whether the evidence in fact establishes that plaintiffs would win at trial.” Olean, 31 F.4th at 667. As it is, Plaintiff provided substantial evidence suggesting that Ocwen's conduct was unlawful, pointing to documents indicating that no other businesses engaged in the same practice as Ocwen, and that Ocwen's conduct caused class-wide injury, pointing to a spreadsheet using information provided by Ocwen that showed which Class Members were charged an unlawful fee and paid for it. (See ECF No. 181 at 3-10, 13-14 (providing the Partial Summary Judgment Order); ECF No. 175 at 4-9, 1 0-18 (providing Plaintiff's Partial Summary Judgment Opposition).) In light of this evidence, Plaintiff provided sufficient material to show that the questions of whether Ocwen's practices were unlawful and whether Plaintiff and other Class Members were injured could be resolved class-wide at trial. See Olean, 31 F.4th at 667.
Accordingly, the Court concludes that class issues predominate.
ii. A Class Action Is Superior
The superiority requirement is used to decide whether a class action suit is preferable to other methods by reducing costs and promoting efficiency. Amchem Products, Inc., 521 U.S. at 620. Rule 23(b)(3) class actions are permitted where the only realistic chance for recovery is by aggregating their claims because of how little each claim is worth. See Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001).
As evidenced by the Proposed Settlement, the value of each claim is relatively small. Each class member is entitled to $60 or $70 per marked-up fee that was paid. Thus, the only real shot of recovery was by aggregating those claims. See id. at 1163.
B. The Proposed Settlement Is Fair, Reasonable, and Adequate
1. Legal Standard
Under Federal Rule of Civil Procedure 23(e)(2), a district court may approve a class action settlement only after finding that the settlement is “fair, reasonable, and adequate.” Campbell v. Facebook, Inc., 951 F.3d 1106, 1120-21 (9th Cir. 2020). Courts reviewing class action settlements must “ensure[ ] that unnamed class members are protected ‘from unjust or unfair settlements affecting their rights,'” while also accounting for “the ‘strong judicial policy that favors settlements, particularly where complex class action litigation is concerned.'” Id. at 1121 (quoting In re Hyundai, 926 F.3d at 556, 568) (alteration in Campbell). “To survive appellate review, the district court must show [that] it has explored comprehensively all [Rule 23(e)(2)] factors, and must give a reasoned response to all non-frivolous objections.” In re Apple Inc. Device Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022) (quoting McKinney-Drobnis v. Oreshack, 16 F.4th 594, 606 (9th Cir. 2021)) (first alteration added; second alteration included).
2. Analysis
Because this is the preliminary approval stage, some parts of the Rule 23(e)(2) analysis cannot be completed yet. Moreover, as other courts have recognized, the Court need not consider all of the fairness factors at the preliminary approval stage. See, e.g., In re Volkswagen, 2016 WL 4010049, at *13 (citing Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008)). Preliminary approval of the settlement is proper where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval. See In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1079-80 (N.D. Cal. 2007) (citation omitted). In light of this lesser showing required, the Court concludes that the Settlement Agreement should be submitted to the Settlement Class members for consideration. See In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs., & Prod. Liab. Litig., No. 8:10-ML-2151-JVS-FMOx, 2012 WL 7802852, at *6 (C.D. Cal. Dec. 28, 2012).
a. Plaintiff and Counsel Are Adequate Representatives
Because the Court has previously held that Settlement Counsel and Plaintiff adequately represent the class for purposes of Rule 23(a)(4), Plaintiff and Settlement Counsel satisfy the requirements of Rule 23(e)(2)(a), as the determinations are identical. See Mejia v. Walgreen Co., No. 2:19-cv-00218-WBS-AC, 2020 WL 6887749, at *9 (E.D. Cal. Nov. 24, 2020) (collecting sources). Moreover, Plaintiff has expressed his continued willingness to represent and protect the interests of the class. (See Mot. at 10 (citing Tellis Decl. ¶ 10.) Thus, the Court concludes that Plaintiff and Settlement Counsel will continue to vigorously litigate the case.
b. The Settlement Arose After Two Mediations
Plaintiff and Ocwen have twice gone to mediation. (See Tellis Decl. ¶¶ 4-5.) The parties first tried mediation following the Court's Order on October 25, 2018, after Ocwen had already sought dismissal and Plaintiff certified the class. (See ECF No. 148.) On July 24, 2018, the parties convened for arbitration and engaged in good-faith discussions concerning all matters in dispute. (See Tellis Decl. ¶ 4.) The first round of mediation was unsuccessful, but the parties resumed settlement negotiations on July 26, 2023, after the partial motion for summary judgment was decided and after the motion to decertify the class was denied following reconsideration. (See id. ¶ 5.) This second round of mediation culminated in the Settlement Agreement. (See id. ¶¶ 5-6.) Between these two rounds of mediations, the parties exchanged large amounts of discovery, which also ultimately supports approving the Settlement Agreement. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (“In re Mego”), as amended (June 19, 2000). Here, the parties exchanged documents totaling over 1.5 million pages. (See Mot. at 12; Tellis Decl. ¶ 10.) Considering this case has taken nearly a decade to reach this point, the Court may fairly presume that the parties know the value and merits of the case. Moreover, the parties agree “[e]ach of the Settling Parties assumes the risk of mistake as to facts or law.” (Settlement Agreement at 20.) In light of these mediations that were separated by years of continued discovery and motion practice, the Court, at this stage, finds that the Settlement Agreement was the product of arm's length negotiations and is fair. Fed.R.Civ.P. 23(e)(2)(B); see also Chambers v. Whirlpool Corp., 980 F.3d 645, 669 (9th Cir. 2020).
c. The Relief Appears Adequate
Determining the adequacy of the relief requires the Court to consider four factors: (1) the costs, risks, and delay of trial and appeal; (2) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (3) the terms of any proposed award of attorney's fees, including timing of payment; and (4) any agreement required to be identified under Rule 23(e)(3). Fed.R.Civ.P. 23(e)(2)(C)(i)-(iv).
i. The Costs and Risks of Trial Are Considerable, Whereas the Relief Will be Concrete and Immediate
Plaintiff's argument here is that the Settlement Class Members will receive $60 for charges that cost them, on average, $56 for BPOs, or $70 for charges that cost them, on average, $66 for Hybrid Valuations, which is a considerable amount when factoring in the costs and risks of trial, and that “the issue as to whether the Class Members would be entitled to recovery of the full amount of the BPO and Hybrid fees assessed or just the amount of the markups was heavily disputed but unresolved.” (Mot. at 14.) Moreover, this is a complex civil lawsuit involving federal RICO claims, which are notoriously difficult claims to prove, and an appeal would be likely regardless of the outcome at trial, thus favoring approval of the Proposed Settlement. See Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004).
ii. The Proposed Method of Relief Will Be Effective
The National Settlement Class will receive a settlement check mailed to them. (See Settlement Agreement at 10.) The California Settlement Sub-Class will have their accounts credited or have charges reversed. (See Id. at 11.) Such relief will be immediate. The California Settlement Sub-Class will be identified by whether a fee is marked as “FB36” during the class period but not marked “paid” in Ocwen's loan database at any point. (See id.) Considering that the National Settlement Class would include any members not in the California Settlement Sub-Class, that means that both classes may easily be identified through Ocwen's loan database.
Moreover, the Class Notice provides comprehensive information about the Settlement Agreement. For instance, the Class Notice provides a Table of Contents where the Settlement Class can learn about the following topics: what the Class Notice contains; what the Class Notice is about; who is part of the Settlement Class; submitting a claim; receiving payment; understanding the class action process; the claims and rights released or waived; the consequences of doing nothing; how to optout and the consequences for doing so; how the lawyers will be paid; how to object to the settlement and the difference between objecting and opting-out; when and where the Final Fairness Hearing will be; and how to obtain more information. (See Class Notice at 3.) The Class Notice seems likely to apprise a Settlement Class Member of their rights and what steps to take, thus making it more likely that the Settlement Class Members will receive relief. The Class Notice, therefore, adds to the effectiveness of the Settlement Agreement and supports finding that the Settlement Agreement is fair, reasonable, and adequate.
Finally, the Claim Form is streamlined and easy to understand and complete. The Claim Form, totaling three pages, informs the Settlement Class how to submit a claim online, via email, or via postmarked mail on the first page. The second page requires the Settlement Class Member to provide basic information, like their address and name. If a Class Member receives a unique identification in their Class Notice, the member should list that. Finally, the Class Member must check a box to assert that they are a member of the National Settlement Class or the California Settlement SubClass before signing and dating the form and informing Ocwen how the member would like to be paid. (See Settlement Agreement Ex. C (ECF No. 244-1 at 62-65).)
Considering the Class Notice, the Claim Form, and the Settlement Agreement, the proposed method of relief will likely be effective.
iii. Fees Will Ultimately Be Determined by the Court
Following Supplemental Briefing from the parties, the Court has the information needed to evaluate the Bluetooth factors. See, e.g., In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 943 (9th Cir. 2011) (“In re Bluetooth”). For instance, it appears that fees and costs for Plaintiff's counsel are reasonable compared to the Gross Settlement Amount. Plaintiff's Counsel will seek about $8 million in fees and $950,000 in costs. (See Pl.'s Suppl. Br. at 2; Class Notice at 2.) The Gross Settlement Amount might exceed $53 million. (See Ocwen's Suppl. Br. at 1; Pl.'s Suppl. Br. at 1.) Fees of around $8 million out of a potential settlement amount of $53 million would equate to of a rate of about 15%, meaning that Settlement Counsel would not be able to recover more than 25%, which is the benchmark for attorney's fees. See In re Bluetooth, 654 F.3d at 942.
Thus, the Court concludes that the terms of the Settlement Agreement do not preclude this Court from preliminarily approving it. Crucially, Settlement Counsel has denied itself the right to object to the Court awarding less for costs and fees, and Ocwen now takes the position that it will not object to whatever fees are awarded to Plaintiff's Counsel. (See Settlement Agreement at 15; Pl.'s Suppl. Br. at 3-4; Ocwen's Suppl. Br. at 2.) Therefore, because the Court will ultimately decide what to award Settlement Counsel, nothing prevents the Court granting preliminary approval.
iv. The Court Will Also Determine Plaintiff's Award
The Settlement Agreement includes a potential “incentive award” for Plaintiff of up to $12,500. (See Mot. at 16.) The Court has some concerns with this “incentive award.” See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1056-58 (9th Cir. 2019).
Incentive awards of $5,000 are generally reasonable. See Alberto, 252 F.R.D. at 669. Yet here, Settlement Counsel seeks more than double the benchmark. Settlement Counsel claim that they will seek an incentive award for Plaintiff because he participated in litigation by collecting and preserving documents and information related to his claims, providing such information to counsel upon request, working with counsel to prepare responses to interrogatories, and sitting for a deposition. (See Tellis Decl. ¶ 11.) However, incentive awards are normally provided “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.” Roes, 1-2, 944 F.3d at 1057 (quoting Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009)). To the Court's knowledge, Plaintiff has incurred no financial or reputational risk in bringing this action and has only sat for one deposition. Thus, an incentive award is concerning because “special rewards for counsel's individual clients are not permissible when the case is pursued as a class action.” Id. (quoting Staton v. Boeing Co., 327 F.3d 938, 976 (9th Cir. 2003)).
Moreover, the cases provided by Plaintiff in support are inapt. (See Mot. at 16.) In the first case, the court declined to approve the incentive award of $5,000 and decided to wait until the Final Fairness Hearing. See Cisneros v. Airport Terminal Servs., Inc., No. 2:19-cv-02798-VAP-SPx, 2021 WL 3812163, at *9 (C.D. Cal. Mar. 26, 2021). In the second case, the court decided to approve the incentive award of $15,000, but only after “Class Counsel dedicated no less than five pages of the Final Approval Motion to this issue . . . .” La Fleur v. Med. Mgmt. Int'l, Inc., No. EDCV 13-00398-VAP, 2014 WL 2967475, at *8 (C.D. Cal. June 25, 2014). The Motion and the attached declaration each dedicate a paragraph to the issue. (See Mot. at 16; Tellis Decl. ¶ 11.) That is not enough to justify the incentive award.
Finally, the Court has concerns that the incentive award to Plaintiff amounts to “what is essentially a side settlement between [Plaintiff] and [Ocwen] covering additional claims not covered in the class settlement.” Roes, 1-2, 944 F.3d at 1057. When Plaintiff moved for class certification, Plaintiff sought to continue bringing some of his claims individually. (See ECF No. 93 at 10 n.9 (“Although he is not seeking class certification for all of the claims asserted in his Complaint, Plaintiff continues to seek relief with respect to the other allegations in his Complaint on an individual basis.”).) Thus, the $12,500 incentive award could be viewed as a side settlement for these claims. This suggestion from the Settlement Agreement is buttressed by the fact that Plaintiff is otherwise entitled to relief as a member of the Settlement Class. (See Mot. at 16.)
Nonetheless, the amount of the incentive award for Plaintiff does not preclude this Court from granting preliminary approval of the Settlement Agreement. Like with fees for Settlement Counsel, the Settlement Agreement does not depend on Plaintiff receiving any incentive award. (See Settlement Agreement at 15.) Accordingly, because the Court will ultimately decide what to award Plaintiff, the incentive award does not prevent the Court from preliminarily approving the Settlement Agreement. The Court will revisit the issue of the incentive award at the Final Fairness Hearing. See Cisneros, 2021 WL 3812163, at *9.
d. The Proposed Settlement Treats the Classes Equally
As for the two sub-classes, the Settlement Agreement provides the two classes relief based on the alleged harm. For the National Settlement Class, it is reasonable and fair to reimburse them for the marked-up fees. For the California Settlement SubClass, it is reasonable and fair to credit their account or otherwise reverse any charges from a marked-up fee that was assessed to their account but was never paid by the borrower. Both sub-classes will submit the same form. Therefore, the Settlement Agreement does not treat the classes differently. See In re Volkswagen, 2016 WL 4010049, at *16.
e. The Proposed Settlement Appears Fair, Reasonable, and Adequate in Light of the Other Factors Considered
i. Legal Standard
Previously, the Ninth Circuit held that district courts “should scrutinize agreements for ‘subtle signs that class counsel have allowed pursuit of their own selfinterests . . . to infect the negotiations[ ]” where the matter settles before class certification. See Briseno v. Henderson, 998 F.3d 1014, 1023 (9th Cir. 2021) (quoting In re Bluetooth, 654 F.3d at 947); also Staton, 327 F.3d at 959-64 (providing factors district courts considered under a prior version of Fed.R.Civ.P. 23(e)); Hanlon, 150 F.3d at 1026 (same). District courts were to consider the following factors: (1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. See Briseno, 998 F.3d at 1023 (citations omitted).
In addition, the Ninth Circuit “identified three of those signs [that class counsel have allowed pursuit of their own self-interests to infect the negotiations]:”
(1) “when counsel receive[s] a disproportionate distribution of the settlement”; (2) “when the parties negotiate a ‘clear sailing arrangement,'” under which the defendant agrees not to challenge a request for an agreed-upon attorney's fee; and (3) when the agreement contains a ‘kicker' or ‘reverter' clause that returns unawarded fees to the defendant, rather than the class.Briseno, 998 F.3d at 1023 (quoting In re Bluetooth, 654 F.3d at 947).
Following amendments to Rule 23(e) in December 2018, however, the Ninth Circuit has held that “courts must apply Bluetooth's heightened scrutiny to post-class certification settlements in assessing whether the division of funds between the class members and their counsel is fair and ‘adequate.'” Briseno, 998 F.3d at 1025 (quoting Fed.R.Civ.P. 23(e)(2)(C). The Court proceeds with analysis and determines that the Settlement Agreement is fair, reasonable, and adequate.
ii. Analysis
The first factor on attorneys' fees does not weigh against approving the Settlement Agreement. Fees of around $8 million out of a potential Gross Settlement Amount of over $53 million means that fees will not exceed the 25% benchmark. That is not a disproportionate amount. See In re Bluetooth, 654 F.3d at 943.
The second factor regarding the risks, expense, complexity, and likely duration of future litigation favors approving the Settlement Agreement. Going to trial to prove a RICO conspiracy is no easy task, and this case involved complex processes regarding property valuations, which would also be confusing to explain to a jury. Moreover, an appeal is likely whatever the outcome at trial. Such a posture supports approving the Settlement Agreement. See Churchill Village, L.L.C., 361 F.3d at 576.
The third factor on the risk of maintaining the class also favors approving the Settlement Agreement. Although Plaintiff was able to produce evidence sufficient to establish that common questions “are capable of being established through a common body of evidence, applicable to the whole class[,]" Olean, 31 F.4th at 666, the next stage requires Plaintiff to show that each class member has suffered an injuryin-fact based on evidence adduced at trial, a much more difficult task, see id. at 667.
The amount offered in the settlement potentially weighs against approving the Settlement Agreement given the possibility of treble damages from RICO claims, but “[i]t is well-settled law that a cash settlement amounting to only a fraction of the potential recovery does not per se render the settlement inadequate or unfair." In re Mego, 213 F.3d at 459 (quoting Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 628 (9th Cir. 1982)). However, “courts generally determine fairness of an antitrust class action settlement based on how it compensates the class for past injuries, without giving much, if any, consideration to treble damages." Rodriguez, 563 F.3d at 964. RICO cases, like antitrust cases, similarly offer treble damages, and “treble damages are a fact of life[,]" id., but the Ninth Circuit has “never precluded courts from comparing the settlement amount to both single and treble damages[,]" and "[b]y the same token, [has] not required them to do so in all cases." Id. at 965. That is because, at least in the Ninth Circuit, there is a strong tradition of deferring to the private consensual decisions of the parties. See id. (citing Hanlon, 150 F.3d at 1027). As a result, the Ninth Circuit has emphasized that:
‘the court's intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit 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 the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.'Id. (quoting Hanlon, 150 F.3d at 1027 (quoting Officers for Justice, 688 F.2d at 625)).
Here, the Court concludes that there is no reason to intrude upon the privately-ordered agreement between the parties because there is no indication that the agreement was produced by fraud, collusion, overreaching, or other bad-faith actions. See id. In particular, and as explained before, see supra Parts IV.B.2.iii and Error! Reference source not found., the payouts to Plaintiff and Settlement Counsel will be determined by the Court and do not affect the validity of the Settlement Agreement.
Finally, this is the preliminary approval stage, and the Court must still consider and respond to any objections. See Fed.R.Civ.P. 23(e)(5). As it is, the Settlement Agreement includes a provision stating that Settlement Counsel or Ocwen may nullify the Settlement Agreement if more than 1,000 individuals opt-out of it. (See Settlement Agreement at 16 (“If 1,000 or more potential members of the Settlement Class properly and timely opt out of the Settlement, then the Settlement may be deemed null and void upon notice by Ocwen or Class Counsel without penalty or sanction.”).) Thus, if some members believe that Plaintiff was a particularly weak representative and they think they could do better than Plaintiff at trial, they may optout of the Settlement Agreement, and the Court will consider whether such a clause can be invoked at the Final Fairness Hearing. See In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 948 (9th Cir. 2015); Churchill Village, L.L.C., 361 F.3d at 577.
The fifth factor favors approving the Settlement Agreement. As mentioned before, there has been over one million pages of documents produced throughout the course of this nearly decade-long litigation. The parties have sufficient information to apprise themselves of the strengths and weaknesses of their case and plenty of time to review that information. Thus, the fifth factor favors approval.
The sixth factor on the views of counsel also favors approving the Settlement Agreement. Attorney Tellis declares that, based on his 27 years of complex litigation experience and his personal involvement in the prosecution of this case from start to finish, he believes that “the Settlement is not only fair, reasonable, adequate, but also is in the best interests of all Class Members in light of all known facts and circumstances and should therefore be given preliminary approval by the Court.” (Tellis Decl. ¶ 8.)
The seventh factor on the presence of a government actor is irrelevant because there are no government actors involved in this matter. The eighth factor on the reaction of class members must wait until the Final Fairness Hearing. As for the three Bluetooth factors, the only that potentially applies is the concern for reversionary settlement agreements. See In re Bluetooth, 654 F.3d at 947. There is no concern here that Settlement Counsel will receive a disproportionate distribution of the Gross Settlement Amount because the Court will ultimately approve the award to Settlement Counsel. Similarly, the Court has no concerns regarding a clear sailing arrangement, as the Settlement Agreement prevents Plaintiff and Settlement Counsel from objecting to the award of fees, not Ocwen. (See Settlement Agreement at 15.) As for the potentially reversionary aspects of the Settlement Agreement, while the Court may have its suspicions that, like with the Settlement Administrator, Ocwen has already earmarked money to pay, ultimately, whatever money is not given to Settlement Class Members will be too little to effectively redistribute and meaningfully increase the award each Class Member receives, which significantly to the Court, is already sufficient to make them whole from their injury. Granted, this may “create[ ] an incentive for defendants to ensure as low a claims rate as possible so as to maximize the funds that will revert[,]” which “might lead defendants to negotiate for a subpar notice process, a more tedious claims process, or restrictive claim eligibility conditions.” Roes, 1-2, 944 F.3d at 1058-59. However, the Court has no such concern here because of the extended window to make a claim, the streamlined nature of the Claim Form, and the comprehensive information provided by the Class Notice.
Even after considering the Bluetooth factors to “smoke out potential collusion[,]” the Court concludes that the Settlement Agreement is fair, reasonable, and adequate. Briseno, 998 F.3d at 1023. Therefore, the Court grants preliminary approval of the Settlement Agreement.
V. The Proposed Notice
A. Legal Standard
Federal Rule of Civil Procedure 23(c)(2) requires the “best notice practicable under the circumstances.” To ultimately approve a class action settlement, a district court must ensure that class members were notified of the proceedings, had the opportunity to opt out or (for those who remain in the settlement) object to any of the settlement's terms, and were provided the chance to appear at the fairness hearing. Fed.R.Civ.P. 23(e)(1)-(5). Rule 23 lists seven items that must be included in the required notice. See Fed.R.Civ.P. 23(c)(2)(B). However, “Rule 23(e) simply requires notice that describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.” Roes, 1-2, 944 F.3d at 1044 (quoting In re Online DVD-Rental, 779 F.3d at 946) (internal quotation marks omitted).
B. Analysis
The Court concludes that the Class Notice provides sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard. See Roes, 1-2, 944 F.3d at 1044. The parties plan to appoint JND Legal Administration as the Settlement Administrator, who is a reputable administrator with experience in several prior cases involving complex and multi-district litigation. (See Mot. at 23; generally Decl. of Gina Intrepido-Bowden on Proposed Settlement Not. Prog. (ECF No. 244-2) (“Intrepido-Bodwen Decl.”) (providing the Vice President of JND Legal Administration's declaration disclosing the countless prior cases it has worked on and providing copies of the proposed notices to be sent physically and digitally).) Ocwen plans to pay for the costs of the Settlement Administrator up to $600,000, which the Settlement Administrator estimates to cost no more than $586,000. (See Mot. at 8.) As stated before, the Class Notice contains a Table of Contents covering all of the topics discussed in the notice, and the Class Notice provides ample means of contacting the parties and learning how to object to or opt out of the Settlement Agreement. (See Class Notice at 3-11.) However, the Class Notice must fill in the blanks for the contact information. Moreover, Settlement Counsel must finalize a date by which time they will provide the Settlement Class notice of its request for attorneys' fees, although they represent now that they will file the motion for fees at least 30 days before the proposed objection/opt-out deadline. (See Pl.'s Suppl. Br. at 3.) As for the means of providing the Class Notice, the Settlement Administrator plans to send the notice via physical mail and email where possible, to broadcast the notice online using targeted search queries and advertising campaigns, and to run a website and call center. (See Mot. at 23-24; Intrepido-Bodwen Decl. ¶ 13.) Overall, the Settlement Administrator anticipates the Class Notice having an “expected reach [ ] on the high end of the 70-95% reach standard set forth by the FJC and will exceed that of other court approved programs.” (Intrepido-Bodwen Decl. ¶ 35.) In light of the above, the Court concludes that the Class Notice satisfies the requirements of Rule 23(e) and the Constitution. See In re Online DVD-Rental, 779 F.3d at 946.
ORDER
For the reasons set forth above, the Court GRANTS Plaintiff's Motion for Preliminary Approval of Class Settlement and Direction of Notice Under Federal Rule of Civil Procedure 23(e) (ECF No. 244). The parties are to proceed with updating the [Proposed] Preliminary Approval Order (ECF No. 244-1 at 35-47) to be consistent with the terms of this Order. Specifically, the parties are to fill in any missing information and update paragraph 25 to state that “Not fewer than thirty (30) days prior to the date set by the Court to consider whether the Settlement should be finally approved, Settlement Class Counsel shall file a motion or motions for Final Approval of the Settlement Agreement and for Attorney's Fees and Costs for work performed in connection with the Action.” (See ECF No. 244-1 at 43.) Once the Court receives a revised [Proposed] Preliminary Approval Order, the Court will sign it and set the date for the Final Fairness Hearing, which will be scheduled for 150 days after entry of the [Proposed] Preliminary Approval Order. IT IS SO ORDERED.
IT IS SO ORDERED.