Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200

Class action alleging Balboa Capital sent solicited and unsolicited fax advertisements violating the TCPA and California law for faxes sent Oct. 12, 2007–Nov. 23, 2011; Plaintiffs filed an amended complaint and obtained certification under Fed. R. Civ. P. 23(b)(3) of a nationwide TCPA fax class.
Parties settled after mediation; Settlement provides a minimum fund of $2.3 million and a ceiling of $3.3 million to cover claimant payments, up to $10,000 in total incentive awards, and attorney fees/costs.
Claim options: $500 per fax if claimant submits the actual fax; $175–$275 per claimant (depending on claims volume) if claimant submits a sworn declaration; pro rata adjustments apply if fund differs from floor/ceiling; cy pres to Public Citizen if needed.
Notice: ~57,000 short-form notices successfully transmitted by fax or mailed; claims deadline passed with 271 claims (70 needing review); only one opt-out and no objections to final settlement; 48 claimant declarations mostly positive.
Plaintiffs moved for final approval; court evaluated settlement under Ninth Circuit fairness factors and held a fairness hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the settlement is fair, reasonable, and adequate under Rule 23	Settlement provides significant recovery, avoids novel legal risks and appeals, and fairly allocates funds to claimants	Agreed not to oppose final approval (no opposition to motion)	Court granted final approval; found settlement fair, adequate, and reasonable
Appropriateness of incentive awards to class representatives	$10,000 total ($5,000 each) justified for time and travel assisting the litigation	No opposition noted	Court approved $5,000 to each named plaintiff as reasonable
Attorney’s fees: whether 33% of $3.3M ceiling is reasonable	Counsel sought 33% of ceiling ($1.1M) citing exceptional result, risk, skill, contingent fee, and lodestar cross-check	Defendant did not oppose fee request up to one-third of ceiling	Court awarded $1,045,350.21 in fees and $54,649.79 in costs (33% of ceiling); found upward departure from 25% benchmark justified
Cy pres and distribution mechanisms	Cy pres to Public Citizen appropriate if fund shortfall; claimant declaration approach reasonable given lack of receipt records	No opposition noted; argued records cannot reliably prove actual receipt	Court approved cy pres to Public Citizen if needed and upheld claimant declaration method as fair

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) (factors for evaluating fairness of class settlement and scrutiny of incentive awards)
Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615 (9th Cir. 1982) (standard for overall fairness of class settlements)
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (settlement evaluated as a whole for fairness)
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) (court must independently assess reasonableness of fee awards)
Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) (factors supporting departure from 25% benchmark and lodestar cross-check)
Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir. 1997) (fee calculation should be based on entire fund)
Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012) (cy pres awards guided by statute’s objectives and silent class members’ interests)
Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) (sufficiency of discovery to make informed settlement decision)
Radcliffe v. Experian Info. Solutions Inc., 715 F.3d 1157 (9th Cir. 2013) (scrutiny of incentive awards to ensure adequacy of class representation)
Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) (focus on amount of unclaimed funds in evaluating settlements)