Randall Burkholder
Managing Director and Head of Settlement Administration
New York
Mon, Apr 21, 2025
The Kroll Lens: Monitoring Class Action Settlements–2025, Volume XII
In Volume 12 of Kroll’s Class Action Lens, we examine three settlements involving elder abuse, a claim rate question and a privacy settlement.
Elder Abuse
Heredia v. Sunrise Senior Living, LLC,
No. 8:18-cv-01974-JLS-JDE, 2024 WL 5416919 (C.D. Cal. Dec. 3, 2024) (Staton, J.)
Plaintiffs brought suit against an elder care service provider, alleging false representation in contracts with residents as part of a pattern of understaffing at various facilities. After reaching a settlement, Plaintiffs filed for final approval and for fees, costs and a service award, all of which the Court granted.
In support of its decision, the Court briefly discussed certification, incorporating its previous analysis from the preliminary approval order. Turning to reasonableness of the settlement, the Court likewise adopted its previous analysis in the preliminary approval order as to various factors, finding no signs of collusion, and a complex case with significant efforts from both sides to advance the litigation.
The Court then looked at reactions from the class representatives and members, including two sets of objections. The first set of objections raised questions about injunctive relief, the validity of move-in fee calculation and concerns about call response monitoring technology at Defendant's facilities. The Court found the move-in fee estimate satisfactory and that the terms of Class Counsel's involvement in the monitoring process were sufficient to overrule the objections.
For the second set of objections relating to fees and costs, the Court noted a failure of the objectors to consider the economic value of the injunction to the class, which was 38% of the settlement fund and consistent with the range in similar cases. The Court also noted the objectors' argument did not counsel against a finding of reasonableness of the settlement and that issues raised with respect to expert expenses, billing discrepancies and the lodestar calculation were insignificant enough to overrule the objections in favor of the settlement and proposed awards. As a result, the Court found the settlement fair, reasonable and adequate under Rule 23(e).
For the cost award, the Court noted it had already evaluated various Westlaw/Lexis charges incurred by counsel and a fee charged for a conference room, and after counsel applied a courtesy reduction, the Court was satisfied that the expenses were adequately documented and reasonable.
In terms of attorneys' fees, the Court considered the Ninth Circuit’s Bluetooth factors in evaluating Plaintiff's lodestar analysis. The Court found the complexity and uncertainties in litigating the present action and the expected class recovery to be consistent with similar cases and above the average for individual class members. Additionally, the economic value of injunctive requirements for training, staffing, monitoring, etc. was found not as likely to have been achieved at trial. For risks of proceeding to trial, the Court also found significant risks with maintaining certification and proving damages. The Court also noted counsel's experience with handling class actions and elder abuse litigation, including significant efforts and time spent in the instant case under a contingent fee agreement, and rejected the objection as to billing discrepancies due to counsel's lodestar reduction. Focusing on a lodestar cross-check, the Court found that rates reported were reasonable and the hours were supported by accurate records and that the fee sought was over 10% lower than the lodestar amount. Considering the above factors, the Court found an upward departure from the attorney-fee benchmark to be warranted.
Looking at the service award, the Court found the representatives' participation in conferences, declarations, responses and depositions were sufficient to merit the $15,000 awards sought.
Claim Rate
In Re: California Gasoline Spot Market Antitrust Litigation,
No. 3:20-cv-03131-JSC, 2025 WL 822665 (N.D. Cal. Mar. 14, 2025) (Corley, J.)
Plaintiffs filed a class action involving state antitrust and unjust enrichment claims against gasoline distribution companies. After reaching settlement, Plaintiffs moved for final approval of settlement and for fees, for which the Court granted final approval of settlement and attorneys’ fees in full.
In support of its decision, the Court incorporated by reference its previous certification analysis and found the previously approved notice plan to have provided the best practicable notice.
Looking next at reasonableness, the Court found significant risks in maintaining certification and proving an "umbrella damages" theory with a likely clashing of experts. The Court found the proposed settlement was consistent with comparable settlements, and that the parties had conducted sufficient investigation into claims and potential litigation, with the assistance of experienced counsel.
As for class members' reaction, the Court observed that while the settlement had resulted in a lower claims rate than the claim rate estimated in advance of the claim process, that factor did not ultimately weigh against final approval, in part due to parity with other similar consumer cases.
Turning next to attorneys’ fees and an analysis of the Ninth Circuit’s Bluetooth reasonableness factors, the Court evaluated whether a 30% attorney fee might be a sign of collusion, but this was satisfied by a lodestar comparison. The Court also found no use of clear sailing provisions or reversion of funds. Thus, the Court found all the above factors weighed in favor of approval of 30% attorneys’ fees.
Continuing with fees, the Court found under a percentage-of-recovery analysis that the upward adjustment of fees over the benchmark amount was warranted by the class recovery of approximately one-third of estimated damages and that the revision of the fee request as a percentage of the net settlement amount, after costs and service awards, are paid. Likewise, a lack of objections weighed in favor of the fee amount. Additionally, the Court's lodestar analysis found the rates and hours submitted to be "not plainly unreasonable" and resulted in a negative multiplier amount. Thus, the Court found the fee award to be reasonable.
Looking at costs, the Court found the proposed award to be supported by accurate substantiation.
Privacy
In Re: Clearview AI, Inc., Consumer Privacy Litigation,
No. 21-cv-00135, 2025 WL 875162 (N.D. Ill. Mar. 20, 2025) (Coleman, J.)
Plaintiffs brought multidistrict litigation against a data company, alleging the collection and use of biometric images without consent. After reaching a settlement, the Court granted final approval.
In support of its decision, the Court first looked at certification and found numerosity, commonality, predominance, superiority and typicality were met by an expected nationwide class of over 65,000, all sharing the same characteristics and suffering the same injury from the same conduct.
In terms of class notice, other objectors disputed the adequacy of the notice plan, claiming that issuing notice to a nationwide class was "inherently impossible" and that the notice should have included the use of physical mail in lieu of inefficient banner advertisements. The Court found these objections to be insufficient, finding that case law supported the methods used and recognized the practical limits of any notice plan. The Court also found the variety of methods employed was a reasonable strategy to combat this.
The Court then looked at reasonableness of the settlement and found it to be the result of extensive negotiations and discovery. The Court focused on objections, firstly that the settlement did not include injunctive relief. The Court found this could only have been provided under four states' laws and could not be used as a basis for nationwide relief. Furthermore, a previous settlement against Defendant had already applied a nationwide injunction limiting data access to government entities and establishing an opt-out program. The Court found that adding injunctive relief would therefore be an empty benefit, and that this would not strengthen the settlement, but instead would call into question its fairness.
Objectors also disputed the uncertain amount of monetary compensation and the provision of "coupon" compensation. The Court found this was a false characterization of the equity stake included in the settlement, which did not provide coupons or vouchers. Furthermore, the Court found the oversight of a qualified judge as the settlement master was a sufficient safeguard against any failure to pay.
Disclaimer: Please note that the content below is intended to report on class action decisions, and Kroll’s Settlement Administration practice may not have been involved with these cases.
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