.

'. \
$ '
Robert Stempler, Cal. Bar u.:i60299
LLb\N! A !P7P OFFICE OF
(:,
z L1J STEMPLER, ^L
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FILED
)
3400 Inland Empire Boulevard
-
Suite I 0 I
CLERK, us. 01srn1cr1couRT
4 J LBIdfu, Califoria 91764-557 ;;1
u. !00QH0uc 909) 972-6841
,
+ Facsimile 909) 433-2132; m3. stempler@earhlink. et FEB 2 8
2006
Thomas J Lyons, PI|u0Pdmitt0d Pro Hae V
LLPO\w bL CENTER .P.
1B0l3` RIC \ F Cll|OntlA
6 342 L83I Lu!y KO8UD

DEPun
r- O!. Paul, M 551 17-1275
Tel0phone (651) 770-9707 x 134
FacS1mile (651) 770-5830; lm8!: cjclawdude@aol.com

;
Thomas J. yons
;
AtI0rey Admitted Pro Hae Vce
PriOr!y _
Scnd
Lntcr


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342 dSILuunty KO3U D

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OI. 8u, M 5 l 7-1275
f Telephon0 65 770-9707 x122
JS-2/!c-
ccaDLU!y
u. Facs1mile
.
) 0-5830; Email: tlyons@lyonslawfr.com
~
Luu el f Record r laiUtif

: ..

TED STP!!S DISTRICT COURT
'. \ \, \ .

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1 JiS.K'EEER,
l L3S0u. EDCV-03-01265-RT (SGLx)
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l_ others.similarly SI!u8!0d, LLL PL Ll1\\KPJ!\.
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PL!1MOTION L l!PL
9 I8Ul, OF CLASS ACTION
oJL!N!J, P B) P1!o

ZJ
``
ZJ
z+
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Z
Z
6
VS.
NIJL IK P`PARD OF
P!JLhL`O AS hLPob
OPOROEBUCK P PCTI\N STTLENrNT .
COMANY; 0lal.;
L0HBd3UI5.
_-CHANGES MADE BY THE ...
.
Befre !h0 court is a )uIU!muIIuHuJlh0u!I0S l000UUI0 Ih00!8SSact|un
settlement t the Defndants' alleged VIO8lOn8 Olhc Fair LOu\I VCOHng P0l
and a separate motion by the Plaintif luaward attorey's f0s, as per the
S0II!0m0H!agreement submitted to the court __ 0ntThere
EXHIBIT

MAR-12

RY 001

$

$
being DD opposition or objectio
.
ns received, and after considering the movipg
2 papersthe Cour hereby GRNTS bot motions and a
p
proves the settlem-+as
J fir and reasonable. "Sears'' refrs to both defendants in this Order.
.,
'.
1
7 L PROCEDURAL BACKGROU
0 The procedural fcts are not disputedOn November 3, 2003, plaintiffs
1 original class action complaint was f ed, which included state statutory and
6 common law claims. Upon a stipulation enterd on January 20, 2004, the parties
J agreed to give plaintif leave to amend the com
p
laint to refect a violdti on of the
! Fair Credit epoDing Act only, which Plaintif fled on January 20, 2004.
|J Fonal discovery ensued following the Parties' Planning Meeting on
7 Februar 6, 2004 and concluded on August 16, 2004, including depositions of te
lnti f and another consumer named Vik \0lelayo, 8 = iRtre8 a 1
+ lJie RlfBii9. Following several stipulations to continue the
deadline under Local Rule 23-3, Plaintif timely moved fr class certifcation on
lU June 7, 2004, the hearing of which was continued several times, while the paries
1 worked on settlement. Afer two full days of mediation assistance by the
l6 Honorabie H. Lee Sarokin, the parties reached a settlement, which they submitted
' jointly to the cour, as noted beiow.
20 On August 16, 2005, based on a stipulation jointly submitted by the paries,
`1 the court certifed the class, reviewed the settlement agreement, and granted
.` preliminary approval of the class settlement and scheduled the Fai rness Heari

g
`J fr February 27, 2006. This hearing has taken place, I which only counsel fr the
.4 paries appeared. There were no objetors or consumers who appeared on the
.J matter and, according to the Third Party Administrator's declaration, no valid
26 claims frms were received fr the settlement cupons l0 OC used 8I Sears. JC
Z1 settlement had provided fr claims by some 2.2 mi1 Ii.on potential class members,
.6 compensation to the named Plaintif, and fr att orneysfes I0 class counsel.
-
2
-
=
`

;--,.
.

2
!

II. DISCUSSION
A. Legal Standards

. '
1

J 1. Final Aproval of Settlement And Determination of Good Faith
1:1\
4 Fderal ule of Civil Procedure 23(e)(l)(A) provides: "The court must
` approve any settlement, voluntary dismissal, or compromise of the claims, issues,
6 or defnses of a certifed class." Fed.R.Civ.P. 23(e )(I )(A). In deciding whether to
approve a 'proposed settlement, the inth Circuit huS a strong judicial policy that
6 fvors settlements, particularly where complex class acti on litigation is
concered." Class Plainti v. Seattle, 955 F,2d 1268, 1276 (9th Cir.1992)
I (quotingLinny v. Cellular Alaska P'shi, 151 F .3d 1234, 1238 (9th Cir.1998)).
I1 There is an overidi ng public interest in settling and quieting litigation,"
12 and this is nparticularly true in class action suits." Van Bronkhorst v. Saeco Corp.,
3 529 F .2d 943, 950 (9th Cir.1976). Settlement spares the paries the costs of
!4 protracted litigation and eases the congestion of
j
udicial calenders. See id. at 943.
0 Consequently, in making its assessment pursuant to Rule 23( e )tpe Cour's:
1b intrusion upon what is otherwise a private consensual agreement negotiated
between the parties to a lawsuit must be limited to the extent necessar to reach a
3 reasoned judgment that the ageement is not the product of faud or overreaching
!9 by, or col iusion between, the negotiating parties, and that the settlement, taken as a
20 whole, is fir, reasonable and adequate to all concered- Ofcers for Justice v.
`1 Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir.1982); see also Hanlon v.
77 Chrsler Corp., 150 F.3d 1011, 1027 (9th Cir.1998).
`J Therefreg "[a] settlement should be approved if it is fndamentally fair,
`
` adequate and reasonable." Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375
25 (9th Cir.1993) (citation omitted). This ultimate decision is in lh0sound discretion
Z O|bO d!5It0\ 0OU!|S [which] appraise[s] !hC IO88CnuCICnc8S Cp8rI0uI8r
`J class-action settlements on a case-by-case basis." Evans v. Jef D.,
4
75 U.S. 11,
76 742, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986). However, a settlement hearing is "not
p J -
.
.

5
to be tred into a trial or reheafsal fr trial on the merits,' nor shou)d the ,
|.+
. proposed settlement "be judged against a hypothetical or speculative meas.of
. .
J what might have been achieved by the negotiators.' Ofcers for Justice, su,ra,
|;
+
688 F.2d at 625. To the contra, a presumption of firess arises where: (1)
3 counsel is experienced in similar litigation; (2) settlement was reached through
b arm's length negotiations; (3) investigation and discovery are sufcient to allow
counsel and the cour to act intelligently. Linney v. Alask Cellular P'ship, 1997
6 Westlaw 450064, at* 5 (.D. Cal. July 18, 1997) ("The involvement of
9 experienced class action counsel and the fct that the settlement agreement was
10 reached in arm's length negotiations, afer relevant discover had taken place
l create a presumption that te 8greement is fir."), af d, 151 F.3d 1234 (9th
2 Cir.1998); Ellis v. Naval Air Rework Facilit, 87 F.R.D. 15, 18 (N.D. Cal.1980)
1 ' afd. 661F.2d939 (9t Cir.1981).
vv , ' ,
1+ To detenine whether a prposed setlement is fir, adequate and
J reasonablea court may consider 11some or all" of the fllowing fctors: (I) the
b strength of plaintifs' case; (2) the risk, expense, com[lexi t and likely duration of
lJ frther li tigation, (3) the risk of maintaining class action status throughout the
trial; (4) the amount ofered in settlement; (5) the extent of discovery completed

|
and the stage of proceedings; (6) te experience and views of counsei; (7) the
Z presence of a govermental paricipant; and (8) the reaction of the class members
1 to the proposed settlement." Ofcers for Justice, SujlO 688 2d at 625); Linney,
Z7 supra, 151 F.3d at 1242; Torrisi, supra, 8 FJd at 1375. "This list is not exclusive
Z3 and diferent fctors may predominate in diferen fctual contexts." Torrisi,
7+ supra, 8 F.3d 1376 (citation omited). One fctor alone may prove deteninative.
2J See id. Howeve.r, "the settlement may not be the product of collusion among the
`0 negotiating m1ICS.1n /6 ?_O |n., LO/. cC. J|l|_., Z1. .oU454, 458 (9t
` Cir. 2000) (citations omitted).
.3
-A-

-
,,
2, /ward to the
"
Named Plaintif
Z As an example of Securities !itigati on, the courts have availed themlves
J of the power to grant remuneration to class representatives. See In re Xcel Eherg,
'}'t
1 !n0., Sec., Derivative & Erisa itig., 2005 Westlaw 840370 (D-Minn- Apr. 8,
. 2005) (awardi ng $100,000 collectively to lead plaintif group, to be distributed
O among eight lead plaintifs, who communicated with counsel throughout Ii tigation,
reviewed submissions, indicated a wi llingness to appear at tri al , kept infnned of
3 settlement negotiations, and efectuated the policies underlying the federal
securities laws) (citing In re Dunn & Bradstreet Credit Servs. Customer Litig., 130
IU F.R.D. 366 (S.D.Ohio 1990) (awarding two class representatives $55,000 each and
11 three cJass representatives $35,000 each))- These awards are generally in keeping
l2 with the publ i c policy concers cited in class actions. See Denney v. Jenkens &
13 Gilchrist, 2005 Westl aw 388562 (S.D.N.Y. Feb.18, 2005).
I4
15 3. Attomes' Fees
b The Manual fr Complex Litigation (4th ed.) discusses the methods fr
! calculating attorey fes. When a court considers calculating attorey fes there
6 are two methods available, either a percentage of the common d or a statutor
IJ fe award. Statutor award fes are usually calculated using the lodestar me
thod.
U Section 21.7 describes t
he lodestar methods as the "number of hours reasonably
21 spent on li tigationg multiplied by an hourly rate, enanced in some circumstanc
.
e
zZ by a multiplier." This case is one of statutor enfrcement and attendant fe
ZJ shifi ng under 15 U.S.C. 1681n and 16810.
z+ In additiong 4 NEWBERG ON CLASS ACTIONS (4th ed. 2002) begins
ZJ analyzing attorey fees through the historical view that attoreys get pai d based on
Zo the tenn of the contract entered into with their UIcHIS. JcIO |O IVO cXCCIOU8,
.! which are the statutory fe-shifing provisions and the equitable common fnd
`6 doctrine. Id 14: I. The class fe awards in class actions are either calculated
h
under the percentage method or ihe Jodcstar method. Id 14:6. The Jode.tar
q
r
:
2 method multiplies the hours worked with the attorey rate per hour. id
J The lodestar calculation can be adjusted positively or negatively (which i..efrred
11.'i
4 to as a multiplier) based on the novelty and complexity of the issues, the quality of
`
the representation, the great benefit obtaine.d fr the large class, and the risk of
b
nonpayment. Id For the court to approve the 0dj ustment, the attoreys applying
fr fes cary the burden of proving that the upward adjustments are necssar to
8 detenine a reasonable fe. Id The lodestar method should be used lO account fr
V work done, in comparison to the percentage fnd method which more accurately
0 refects the results achieved. Id.
1 When there is no common fnd created and the beneft is speculative, the
12 percentage method of calculati on is inappropriate and the Lodestar method should
J be applied, because the percentage method is inapplicable. Zucher v. Occidental
1 Petoleum Corp., 968 F. Supp.1396, 1400 (C.D. Cal. 1997). Multipliers.are ofen
l applied to the Lodestar method to refect counsel's risk in taking on such
!b protracted l iti gation or its desered reward fom the benefts it extracts fr the
I 7 cl ass. Id. at 1401.
6 In this case, the Lodestar method should be used to calculate the attorey
19 fes due to the fct that the overaU beneft to the ciass (based on the number .of
0 persons who redeem the coupons) is speculative, making the percentage method
2 1 unreliable whereas the Lodestar method creates a reasonable amount of attoreys
7 fes. In this fe shifing case, it is instructive to consider this comment on Lealao:
Zo "In so-called fe shifing cases, in which the responsibility to pay
+ atorey fees is statutorily or otherwise transfrred fom the
25 . prevailing plai ntif or class to the defndant, the pri mary method fr
` O$I!5DIug IC 0DuHlDl"tC8On8O0" UCDCy \C8 8the lodesta
27 method." Lealao v. Benefcial Caliornia, Inc., 97 Cal. Rptr. 2d 797,
Z6 803 (9th Cir. 2000). Once the cour has fxed the lodestar, it may
[
increase or decrease that amount by applying a positive or negativet: _.
.'
2 "multiplier" to take into account a variety of other fctors, ...|c.
J the quality of the representation, the novelty and corpl exity of the
l,' ,
+ issues, the results obtained, and the contingent risk presented. Jd See
J (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. t s,
13.1-13.7.)
Another consideration in detennining the reasonableness of the requested
8 fe would be to look at the ters of the setl ement agreement and preliminary
approval order. The agreement concering the attorey fes should be
U implemented by the cour because each party entered into an agreement over the
! terms of the attorneys fes and this agreement was not the product of collusion.
12 Finally, the Lodetar method should be supplemented with a positive multiplier
lJ based on the high quality of the re
p
resentation (class counsel :.-|-have brought
l+ other FCR class action cases as set out in their decl arations (see Docket Nos. 52,
15 53, and 54), the complexity of the issues (which is evident by the issue being one
h of frst impression), the overall result obtained fr the large .|s-+t-of
potential members (2.2 million consumers nationwide), and the contingent risk
!6 presented to the attorneys representing the case (in this case no assurance of

1 ' success given the novel theory of recover).

2U In analyzing the case histor surrounding attorey fee applications, the
`J anal ysis begins with the court's involvement with the proposed attqmey fes.
l

2Z When making an assessment pursuant to Kule 23( e ), the CDUD`5 "intrsion upon
2J what is otherwise a private consensual agreement negotiated between the part.es to
+ a lawsuit must be limited to the extent necessar Dreach a reasoned judgment that
25 the agreement is not the product of :aor overreaching by, or collsion b
etween,
2b \C H0_O\IuIIH_ 8I<S and that the settlement, taken as a whole, is fir, reasonable
`7

and adequate to all concered." re Heritage Bond Litig., 2005 Westlaw

`6 1594403, at *2 (C.D. Cal. 2005). "Therefore a settl ement should be approved if it
- 7 -
h
is fndamen|ally fir, adequate and reasonable." Id A "presumption of firess
|`t'
2 arises where: ( l) counsel is experienced in similar li tigation; (2) setlemeni:as

J reached through am1 length negotiations; (3) investigation and discover :-
1 sufcient to allow counsel and the couH to acI inteJ Ii gently." Id, citln_i.c,v.
Alaska Celluar ?'ship, 1997 Westlaw 450064, at * 5 (N.D. Cal. 1997). Lodestar
b calculations are determined by multiplying the number of hours reasonably
7 expended duri ng litigation by a reasonable hourly rate and are ty
p
ically used when
6 a set
t
l ements net value is too difcu1t to detennine. Id at `.
"The Supreme Court has indicated that the parties to a class acti on properly
1 may negotiate not only the settlement of the action itsel t but also the payment of
11 attorney's fes." In re Manufacturers Lie Insir. Co., Premium Litig.) 1998 U.S.
7 Dist. Lexis 23217, at* 29 (S.D. Cal. 1998), c/ln
[
Williams v .

MGM-Pathe
J Communications Co., 129 F. 3d l 026, l 027 (9th Cir,
1
997) (per curiam) (citations
4 omitted). If the amount of the fes and expenses will not afect the class's
3 recovery and the pary paying the bill does not oppose the request, the cour must
Jb still review to ensure reasonableness under Rule 23( e ). Id at 30.
J When reviewing an attorey fee a
pp
lication, the rates rCquested should be
6 consonant with fe awards in cases of similar complexity and diffculty. Blum v .
__ l= ____ ___ ALCITO 08 89
9
104(c 1tA1 '0T C2,Q(ll (1
9
84) ',.;,,"t;f,.n
llenson, 'O. U.r. 0 u, ' tQ+ L, ." 1_ f 1.1+ W L. 1 J L JULll O
zU upward adjustment to the fe award, the cour takes into consideration the qua lit

Z1 of representation and whether the litigation was. complex. Id Since the
22 acknowledgement of the resul
t
s obtained" _enerally will be subsumed within
23 other fctors used to calculate a reasonable fe, it norally does not provide as an
24 independent basis fr increasing the fe award. Id at 900. In other words, this
`J fctor is neutral. Similaly, the number of persons benefted is not a consideration
`b of signifcance when calculating attorey OCs. Jd n.Jb, statIn_ thc smndard !r
27 1988 cases.
28
-
8
-
h
Overall, the Lodestar method should be used to calculate the attorey:, fes
-\
ll.tl
Z due to the fct that the overa11 beneft to the class (based on the number of psons
-'
J who redeem the coupons) is speculative, the percentage method is unreliabl:
4 whereas the lodesIar method creates a reasonable amount. The agreement
t

3 concering the attorney fes should be implemented by . the cour because each
O party enterd into an agreement o,er the tens of the attoreys' fes and this
7 agreement .was not the product of collusion. This a_reement should also stand
because the United States Supreme Court has indicated that the amount of person
9
who beneft fom the settlement is insignifcant, whereas the overall beneft to the
10 class at large should be considered. Finally, the Lodestar method should be
11 supplemented with a positive multiplier based on the high qualit of the
I7 representation, the complexity of the issues (which is evident by the issue being of
13 frst i mpressi on, the overall r0sult obtained fr the large class members; and the
+ contingent risk presented to the attoreys representing the case.
I
1
I
!6
B. Analysis
1. Motion fr Final Approval of Settlement And Detennination of
Good Faith
IY Within ai most two years of litigation and the active assistance of a prvate
7 mediator, the Honorable H. Lee Saokin, the paties arrived at a fll and fnal
21 settlement (the "Settlement"). This Settlement fllows considerable discovery and
z two depositions, carefl investigation into the merits of.this action, and
7o considerable negotiation ad mediation. Through this process, the paries laintain
24 that they were able to make a competent and infrmed decision regarding the
`` beHefts and burdens of continued litigalion versus negotiated settlement. For the
Z !Cu$On8 OI50u$5CUUCDW, IHc |Ou!1 3iCV0S In0 8Uc8' bc!ICmcn!, as 5 mtI,
adequate and made in good fith.
`5
- -
a. The Se:tlement Is Fair and Adequate Under Rule:23(e)
1'
,,11
.

,,.I
. ,

J
(
l
)
The Settlem0nt was te result of anns-leng!,
1 infrmed, and (Ret.) Judge-assisted mediations
b The settlements reached in this action are the result of extensive as-length
b negotiations and frmal meditations by competent counsel experienced in the
J F
C
R, particularly involving privacy class action litigation. The parties and IhiI
6 respective counsel have devoted a considerable amount of tme, efor and
' resources to S0CUl0 the curent Settlement..
IU The Cour fnds no evidence to su_gest that the settlements reached were
J J the product of faud or collusion, but of fir deal ing among lhC pal|es, JhC length
12 of time necessar to achieve the settlements and the active litigation of this case
evidences that !0C settlements were reached in good fith. Furthennore, the
mediation
p
ocess wa also superisea by Ret. Circuit Cour Judge H. Lee
1` Sarokin, providing frther indicia of the absence of collusion or faud.
1 6
IJ
6
(2) The strength of Plaintifs' case and the ri*,
expense, compl0xity and likely duration of frher
litigation fvor approvJ of the Settlement
U "In most situations, unless the settlement is cl early inadequateg its
1 acceptance and approval are prefrable to lengthy and expensive litigation with
zz uncertain results- Nat'! Rural Telecom. Coop. v. DIRECT Inc., 221 F.R.D. 523,
ZJ 526 (C.D. Cal. 2004) (quoting 4 A. Conte & H. Newberg, Newberg on Class
Actions, 11 :50 at OO (4th ed. 2002). This is especial ly tre of class actions, and
z particularly fr securi ties class acticms because of their typical complexity. Maley
2 v. Lcl obu 1Cch LOr. t l.>u.7d J, O4 (S.D.N.Y.2002); re
27 Sumitomo Coo
p
er Litig., 189 F.R.D. 274, 281 (S.D.N.Y.1999) (Hclass action suits
6
- U -
N
in general have a well-desered reputation as being most complex .... '') (quotation
2 omitted).
J
This action involved conduct that efected approximately 2.2 million
1 consumers, whose credit repors were obtained after lCJ accounts were closed
5 and Mj outstanding balances sold to debt collectors. The parties do not dispute
that the Plaintiffs case has been, and would continue to be, somewhat complex
J and risky to prosecute if litigation ensued. The wrongdoing alleged included both
intentional wrongdoing and negligence. The damages would have been
9 paricularly diffcult to prove, given that some persons, such a the lead plaintif,
U Were aware of H0lU!6 the post-closure access of the credit repmts, while so many
l others W0l0 h0I 3Wdl0 01the relevant credit reports being oblained by Sears.
I7 The Court notes that given the large class size, there is a likely chance that
I3 this case would go to trial, requiring pre-trial and post-trial motion practice.
!+ Furthenore, the fct that appellate practice would likely fllow afer completion
of proceedings in this Court frther mi litates in fvor of fnal approval of the
!O Settlement. See Nat'/ Rural, 221 F.R.D. at 527.
lJ
I6 Also fvoring approval of the Settlement is the knowledge that, whi le
V Piaintif was confdent of the strength of his case, it is imprudent to presume
`U ultimate success at trial and thereafer. "It is known fom past ex
p
erience that no
`1 matter how confdent one may be of the outcome of liti gation, such confdence is
22 ofen misplaced." State of West Vrginia v. Chas. Pfizer & Co., 314 F . Supp. 710,
J 743-44 (S.D.N.Y.1970), a d 440 F.2d 1079 (2d Cir.), cert. denied, Cotler Drugs,
Z Inc. v. Chas. Pfzer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971); see
25 also In re Sumitomo Cooper Litig., 189 r.R.D. at 282 (discussing several instances
26 Wh0tO 8OII0mCH! V88 rejected Dy 8 0Cui| Cny !O huV0 Ih0 !uu!I|8 u1!m0!O
! recovery be less than the proposed settlement).
`
- I1
>

In the present matter, it is undisQuted that all the settling defndants have
2
explicitly denied wrongdoing and liability, and that both defendants have credible
J
defnses to Plaintiffs claims. Therefre, continued litigation appears highly
4 contentious, as both sides are diametrially opposed with respect to liability, and
5
each party, especially Plaintif, is subjected to signifcant obstacles, in that
b Plaintif bears the heavy burden of proving his case.
Settlement of this case has distinct advanta_es over the speculative nature of
6 litigating this case lO a verdict. As the court in Strougo v. Bassini, 258 F.Supp.d
9 254, 260-61 (S.D.N.Y.2003) noted:
U Even if a shareholder or class member was willing to assume all the
I
risks of pursuing the actions through frther litigation and trial, the
7 passage of time Would introduce yet more risks in terms of appea]s
IJ and possible changes in the law and would in l ight of the time value
1 of money, make fture recoveries less valuable than this current.
J , recovery.
o
*
8 Strougo, 258 F.Supp.2d at 260-61 (citing, among other cases, In re Agent
17 Oange Prod Liab. litig., 611F.Supp.1396, 1405 (E.D.N.Y.1985) ( "[M]uch of
te value of a settlement lies in the ability to make fnds available promptly.")
V
As discussed aboveg despite the perceived strength of Plaintifs caseg frher
Z1 litigation would likely be protracted and complex, and pose great risk lO Plaintiffs
z7 possible recover. These fctors weigh heavily in fvor of approving the
Z Settlement.
+

26
(3)
The amount of the Settlement fvors approval of
thC bcI|!CmCnI
27 The Settlement in this action required the publication and possible issuance
76 of some $22 million in coupons fr purchases at Sears stores. It should be noted
P
- I`
'

that Sears coupons are in stark conIrst to the coupon settlements thal are i,ued
.

lW
J by mail O!U! f0!!n1c: Hnd fr liritr itPm rnh : ee (; r!nC 8! :
. ` .
J paricular fanchise of automotive shops-
4 The Settlement was achieved despite substantial resistance fom the,
Defndants- Given the diffculty of bringing this Settlement to fruition, the

diligent effrts of counsel, and relevant case law, the Court fnds that the amount
7 of settlement is fir, adequate and reasonable.

'
l
(
4
)
The amount of discover conducted and the stage
of this case fvor approval of the Settlement
'The extent of discove

may be re]evant in deerining the adequacy of
7 te parties' kowledge of the case. Nat'! Rural, 221 F.R.D. 527 (quoting Manual
lJ fr Complex itigation, (Third) 30.42 (1995)). "'A 0OUO is more likely to
+ approve a settlement if most of the discovery is cqmpleted because it suggests that
I the parties arived at a compromise based on a fll understanding of the legal and
b fctual issues surounding the case- Id. (quoting ` Moore's Federal Practice,
J 23.85[2][e] (Matthew Bender 3d ed.)).

I As indicated above, this litigation has involved substaJtial frmal and
20 infrmal discover. Merits discovery in this action had not yet begun, at the time
?1 the Settlement was reached, Plaintifs had beeh litigating this action fr nearly two
Z years and it is now well over two years since the complaint was fled. It is sei:sible
23 o believe lhat Plaintif and the tw defendants had a reasonable understanding of
24 both the strengths and weaknesses of their respective cases, as well as a rational
zJ idea of the potential amounts of (any) recoverable damages. This fctor strongly
Z 1VOl8 approvng .---...---:
27
28
- |

0
(5)
Experienced counse] ' s invol vement | 0thi s action

i -i
Z weights in fvor of approvi ng the Settl eme
.
: '
J 'Great weight i s accorded to the recommendati on of counsel , who at most
, ,'
1 closely acquainted wi th the fcts of the underl yi ng l i tigati on. " Nat'/ Rural, ::
F. R. D. at 528 (quoting Jn re Painewebber Ltd. P'ships Litig. , 1 F.R. D. 1 04, 1 25
b
(S.D.N. Y. 1 997)). A presumpti on of correctness is said to 1 1 attach to a cl ass
7 settl ement reached i n ar's-l ength negoti ations between experienced capabl e
8 counsel afer meani ngfl di scover. " Manuel fr Compl ex Li ti gation (Third)

30. 42 ( 1 995); see also M. Berenson Co. , 1nc. v. Fane uil Hall Marketplace, Inc. ,
1 0 67 1 F. Supp. 8 1 9 822 (D. Mass. 1 987) (" Where, as here, a proposed class
1 1 settlement has been reached afer meaningfl discovery, afer arm's l ength
negotiation, conducted by capable counsel , it is presumptivel y fir. "); In re Ul}ited
I J Energ Corp. Solar Power Modules Ta Shelter Inv. Sec. Litig v. Baumer, 1 989
Westlaw 732 1 1 at * 1 , *2 (C.D. Cal . June 1 2, 1 989) ("The recommendatfon of
1 3 experi enced counsel caries si gni fcant wei ght i n the court's determi natfon of the
1 6 reasonabl eness of P0 settlement. "). "Thus, the trial judge, absent faudg col lusi ong
1 7 or the l i ke, shoul d be hesi tat to substitute its own judgment for tPat of counsel . "
1 8 Nat'l Rural, 221 F.R. D. at 528 (ci tations omitted).
9
ZU In the present case, the paHi es ae re
p
resented by experi enced and capable
Z counsel . This fctor weighs i n fvor of fnding the Settlement fir, adequate and
`` made in good fith.
`
`+
(6) Lack of objection to the Settlement favors
Z7
approval
20 1I5 establ i shed that the absence of a a(
[
C DumU0l of obj ectors .to a
27 proposed cl ass acti on setlement rai ses a strong presumpti on that the ters of a
28
- 1 4 .