ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEY’S FEES, COSTS, AND CLASS REPRESENTATIVE ENHANCEMENT PAYMENT
Having reviewed and considered all the briefing filed with respect to plaintiffs Motion for Final Approval of Class Action Settlement (Dkt. 268-1, “Motion”) and Unopposed Motion for Attorneys’ Fees, Litigation Costs and Class Representative’s Enhancement Payment (Dkt. 248-1, “Fees Motion”), along with the oral argument presented during the final fairness hearing held on August 25, 2016, the court concludes as follows.
INTRODUCTION
Plaintiff Cynthia Spann (“plaintiff’) filed this action, individually and on behalf of others similarly situated, against JCPen-ney Corporation, Inc. (“JCPenney” or “defendant”) on February 8, 2012. (See Dkt. 257, Court’s Order of January 25, 2016, at l).
[a]ll persons who, while in the State of California between November 5, 2010 and January 31, 2012 who purchased from JCPenney one or more private or exclusive branded items of apparel or accessories advertised at a discount of at least 30% off of the stated “original” or “regular” price, and who have not received a refund or credit for their purchases.
Excluded from the class are defendant, as well as its officers, employees, agents or affiliates, and any judge who presides over this action, as well as all past and present employees, officers and directors of JCPenney. Also excluded is any person who only received a discount of 30% or more as a result of using one or more coupons
(Id.).
The parties engaged in substantial settlement negotiations throughout the course of the litigation and finally settled the case in September, 2015. (See Dkt. 257, Court’s Order of January 25, 2016, at 2). Subsequently, the court modified the previously-certified class definition, granted preliminary approval of the settlement, appointed Heffler Claims Group LLC (“Heffler”) as the claims administrator, and directed Heffler to provide notice to the class mem
BACKGROUND
I. PLAINTIFF’S CLAIMS.
This case arises from plaintiffs March 5, 2011, visit to a JCPenney store in Brea, California. (See Dkt. 160, 4AC at ¶ 18). During that visit, “in reliance on [JCPen-ney’s] false and deceptive advertising, marketing and pricing schemes, [plaintiff] purchased over $200.00 in private branded and exclusive branded apparel and aeces-sories[.]”
Plaintiff asserts that, prior to February 1, 2012, “JCPenney engaged in a pervasive false advertising scheme by which it advertised ‘sale’ prices that were substantially lower than comparative ‘regular’ or ‘original’ prices for its private and exclusive branded apparel and accessories.” (Dkt. 257, Court’s Order of January 25, 2016, at 3). According to plaintiff, the “higher ‘regular’ and ‘original’ prices (and implied savings) were false and deceptive because JCPenney hardly, if ever, offered, sold or intended to sell its merchandise at those prices.” (Id.). JCPenney “temporarily stopped using false price comparisons on February 1, 2012 when it initiated a ‘fair and square’ pricing campaign but, after a significant decline in revenues, it returned to its original scheme, at least for some products, in early 2013.” (Id.).
II. SETTLEMENT AGREEMENT.
In the summer of 2013, the parties began negotiations regarding the structure of a class-wide settlement. (See Dkt. 257, Court’s Order of January 25, 2016, at 3). No settlement was reached at that time, but the parties “periodically engaged in informal settlement negotiations” over the course of the following two years. (See id. at 3-4). In July 2015, the parties conducted additional settlement negotiations and reached a settlement in September 2015. (See id. at 4).
The settlement expanded the definition of the class from that previously certified, (see Dkt. 268-3, Settlement Agreement at ¶ 2.31) (defining the term “Settlement Class”)), and defined the class as follows:
all persons who, while in the State of California and between November 5, 2010 and January 31, 2012, and between January 1, 2013 through December 31, 2014, purchased from JCPenney one or more private or exclusive branded items of apparel or accessories at a discount of at least 30% off the stated “original” or “regular” price, and who have not received a full refund or credit for their purchases. Excluded from the Settlement Class are Defendant, as well as its officers, employees, agents or affiliates, and any judge who presides over thisaction, as well as all past and present employees, officers and directors of JCPenney.
(Id.; see also Dkt. 257, Court’s Order of January 25, 2016, at 4 & 31 (preliminarily approving the revised definition of the settlement class)).
The parties have agreed that JCPenney will establish a $50,000,000.00 settlement fund, which will include both a Cash Component and a Class Allocation. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1). The Cash Component will cover reasonable attorney’s fees and costs, a reasonable class representative enhancement payment, and notice and administration costs. (See id. at ¶¶ 6.1.1.1-3). The portion of the settlement fund not used for the Cash Component will comprise the Class Allocation, which will be provided to class members in JCPenney store credit or cash. (See id. at ¶ 6.1.2). The amount of store credit or cash that each claimant receives will be determined using a system of points based on the value of each class member’s qualifying transactions. (See id. at ¶¶ 6.1.2.1 & 6.1.2.1.4). For example, claimants with total purchase amounts
The settlement also includes non-monetary relief. Defendant agrees that going forward, “its advertising and pricing practices ... will not violate Federal or California law, including California’s specific price-comparison advertising statutes.” (Dkt. 268-3, Settlement Agreement at ¶ 6.1.7). “Specifically, JCPenney agrees that any former price to which JCPenney refers in its price comparison advertising will be the actual, bona fide price at which the item was openly and actively offered for sale, for a reasonably substantial period of time, in the recent, regular course of business, honestly and in good faith.” (Id.). Additionally, JCPenney has agreed to “implement a compliance program, which will consist of periodic (no less than once a year) monitoring, training and auditing to ensure compliance with California’s price comparison laws.” (Id.).
III. NOTICE TO CLASS.
Pursuant to the Court’s Order of January 25, 2016, Heffler, the court-approved claims administrator, prepared and disseminated the class notice, located and updated addresses for class members,
On February 24, 2016, Heffler established a toll-free number for class members to obtain claim forms and additional information about the settlement. (See Dkt. 268-5, Prutsman Decl. at ¶ 22). The toll-free number provided recorded and live information. (See id.). As of July 27, 2016, Heffler had responded to 36,827 telephone calls inquiring about the case or the settlement. (Id.).
On February 26, 2016, based on data obtained from JCPenney, Heffler caused the class notice to be sent to 2,617,205 class members via email, of which 1,346,-184 were successfully delivered. (See Dkt. 268-5, Prutsman Decl. at ¶¶ 13 & 17; see also Dkt. 268-10, “Email Notice”). Due to the inadvertent inclusion of emails of JCPenney employees who were expressly excluded from the settlement, as well as the failure to include a subject line in some of the emails, Heffler re-sent the Email Notice to 2,583,238 class members on March 15, 2016.
On or about March 15, 2016, Heffler mailed 4,286,776 Postcard Notices to class members for whom there was no email address or whose Email Notice was returned as undeliverable. (See Dkt. 268-5, Prutsman Decl. at ¶ 18; see also Dkt. 268-11, “Post-Card Notice”). Of the 259,021 Post-Card Notices returned as undeliverable, Heffler updated and re-mailed the notices to 4,922 class members. (See Dkt. 268-5, Prutsman Decl. at ¶ 20). In total, Heffler successfully emailed 1,758,050 Email Notices and mailed or re-mailed 4,034,025 Post-Card Notices. (Id. at ¶ 21).
Heffler also developed and maintained a website for the settlement located at www. jcpenneysettlement.com. (Dkt. 268-5, Prutsman Decl. at ¶¶ 2 & 23). The website contains, among other things, a Long Form Notice, Claim Form, Opt-Out Request, a Frequently Asked Questions (“FAQs”) section, the Settlement Agreement, the complaint, the declarations and exhibits submitted in connection with the motion for preliminary approval, and the Fees Motion, along with supporting documents. (See Dkt. 268-5, Prutsman Decl. at ¶¶ 24-25; see also Dkt. 268-12 (Long Form Notice); Dkt. 268-13 (Claim Form); Dkt. 268-3, Settlement Agreement at Exh. 5 (Out-Out Form); Dkt. 268-14 (FAQs)). The website also contains case deadlines, including the June 30, 2016, deadline for submitting Claim Forms, requesting exclusion, and making objections, (see Dkt. 268-5, Prutsman Decl. at ¶ 25; Dkt. 257, Court’s Order of January 25, 2016, at 31), and notice of the August 25, 2016, final fairness hearing. (Dkt. 268-5, Prutsman Decl. at ¶ 25; Dkt. 257, Court’s Order of January 25, 2016, at 32). The website allows class members to print forms, submit claims for store credit in lieu of cash payment, upload proof of additional qualifying purchases, and submit Opt-Out Requests. (Dkt. 268-5, Prutsman Decl. at ¶ 26). As of July 27, 2016, the website had 363,946 visits. (Id. at ¶ 27).
Between March 25, 2016, and April 24, 2016, banner ads directing potential class members to the settlement website appeared on three internet networks and on Facebook. (Dkt. 268-5, Prutsman Decl. at ¶ 6; see also Dkt. 268-6 (sample banner
As of July 27, 2016, Heffler received 60,985 timely paper claims and 98,037 electronic claims for a total of 159,022 claims. (See Dkt. 268-5, Prutsman Decl. at ¶ 29). Of those, 102,502 requested store credit, 56,089 requested a cash payment, and 431 had not yet been processed. (See id.). Assuming a Class Allocation fund of $33,631,919.09, the 158,787 claimants will get an average payout of $211.81, although the actual amount for each claimant will vary depending on the total number of valid claims and the number of points assigned based on the allocation plan provided in the Settlement Agreement. (See id. at ¶ 31).
As of July 27, 2016, Heffler received 809 timely exclusion requests, (see Dkt. 268-5, Prutsman Decl. at ¶ 32), and seven objections. (Id. at ¶ 33).
LEGAL STANDARD
Federal Rule of Civil Procedure 23
In order to approve a settlement agreement in a class action, the court must conduct a three-step inquiry. First, it must assess whether defendants have met the notice requirements under CAFA. See 28 U.S.C. § 1715(d). Second, it must determine whether the notice requirements of Rule 23(c)(2)(B) have been satisfied. Finally, it must conduct a hearing to determine whether the settlement agreement is “fair, reasonable, and adequate.” See Fed. R. Civ. P. 23(e)(2); Staton v. Boeing Co.,
In determining whether a settlement agreement is fair, adequate, and reasonable, the court must weigh some or all of the following factors: “(1) the strength of the plaintiffs 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
However, when “a settlement agreement is negotiated prior to formal class certification, consideration of these eight ... factors alone is not enough to survive appellate review.” Bluetooth,
DISCUSSION
I. FINAL APPROVAL OF CLASS SETTLEMENT.
A.Class Action Fairness Act.
When a settlement is reached in a class action case, CAFA requires that “[n]ot later than 10 days after a proposed settlement of a class action is filed in court, each defendant that is participating in the proposed settlement shall serve [notice of the proposed settlement] upon the appropriate State official of each State in which a class member resides and the appropriate Federal official!.]” 28 U.S.C. § 1715(b). The statute provides detailed requirements for the contents of such a notice, which must include, among other things, “any proposed or final notification to class members!,]” and “any proposed or final class action settlement!.]” See id. At § 1715(b)(3) & (4). The court is precluded from granting final approval of a class action settlement until the CAFA notice requirement is met. See id. at § 1715(d) (“An order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under [28 U.S.C. § 1715(b)]”).
Here, Heffler provided the required CAFA notice. (See Dkt. 268-5, Prutsman Decl. at ¶ 5). As of July 27, 2016, Heffler had not received any objections or comments on the settlement. (See id.).
B. Class Certification.
In its order granting preliminary approval, the court certified the modified class pursuant to Rule 23(b)(3). (See Dkt. 257, Court’s Order of January 25, 2016, at 9-15 & 31). Because circumstances have not changed, and for the reasons set forth in its Order of January 25, 2016, the court hereby affirms its order certifying the class for settlement purposes under Rule 23(e). See In re Apollo Grp. Inc. Sec. Litig.,
C. Rule 23(c) Notice Requirements.
Class actions brought under Rule 23(b)(3) must satisfy the notice provisions
After undertaking the required examination, the court approved the form of the proposed class notice. (See Dkt. 257, Court’s Order of January 25, 2016, at 27-30). As discussed above, Heffler sent the class notice and related forms to potential class members via email and mail. (See Dkt. 268-5, Prutsman Decl. at ¶¶ 13-21; Dkt. 268-10 (Email Notice); Dkt. 268-11 (Post-Card Notice)). Heffler also publicized the settlement in English and Spanish in magazines, certain internet networks, on Facebook, and in a press release. (See Dkt. 268-5, Prutsman Decl. at ¶¶ 6-10). Accordingly, based on its prior findings and the record before it, the court finds that the class notice and the notice process fairly and adequately informed class members of the nature of the action, the terms of the proposed settlement, the effect of the action and release of claims, their right to exclude themselves from the action, and their right to object to the proposed settlement. (See Dkt. 257, Court’s Order of January 25, 2016, at 27-30).
D. Whether the Class Settlement is Fair, Adequate and Reasonable.
1. The Strength of Plaintiffs Case, and the Risk, Expense, Complexity, and Duration of Further Litigation.
In evaluating the strength of the case, the court should assess “objectively the strengths and weaknesses inherent in the litigation and the impact of those considerations on the parties’ decisions to reach [a settlement agreement].” Adorna,
Here, the parties reached a settlement with the assistance of private mediators, (see Dkt. 257, Court’s Order of January 25, 2016, at 18), and “thoroughly investigated and considered their own and the opposing party’s positions.” (Id.). As the court previously noted, “the parties clearly had a sound basis for measuring the terms of the Settlement Agreement against the risks of continued litigation, and there is no evidence that the agreement is the product of fraud or overreaching by, or collusion between, the negotiating parties.” (Id.) (quoting Rodriguez v. W. Publ’g Corp.,
Additionally, as the court recognized, the parties were litigating and negotiating “under a huge cloud of uncertainty concerning JCPenney’s financial stability” given its financial losses following its move to
In sum, even if plaintiff successfully proved her liability case at trial, the amount of restitution recovered—if any— could vary widely depending on a number of factors, including the court’s discretion as to whether and how much to award in restitution, discovery and analysis regarding the appropriate method by which to calculate such an award, and JCPenney’s ability to satisfy a judgment awarding the maximum amounts sought by plaintiff. (See Dkt. 257, Court’s Order of January 25, 2016, at 22). Adding the duration of any likely appeals to this mix of factors renders the settlement exceptional.
2.The Risk of Maintaining Class Action Status through Trial.
Although the court certified a class prior to settlement, (see Dkt. 209, Court’s Order of May 18, 2015, at 38), and has preliminary certified the modified class, (see Dkt. 257, Court’s Order of January 25, 2016, at 31), plaintiff nonetheless faced the risk that the court could de-certify the class, either by way of a motion to de-certify or on its own motion. Thus, this factor weighs in favor of granting final approval.
3.The Amount Offered in Settlement.
“[T]he very essence of a settlement is compromise, a yielding of absolutes and an abandoning of highest hopes.” Linney v. Cellular Alaska P’ship,
4.The Extent of Discovery Completed and Stage of Proceedings.
“A settlement following sufficient discovery and genuine arms-length negotiation is presumed fair.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc.,
5.The Experience and Views of Counsel.
“Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation. This is because the parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” Nat’l Rural Telecomms.,
6.The Presence of a Government Participant.
There is no government participant in this matter. Accordingly, this factor is not relevant. See Wren v. RGIS Inventory Specialists,
7.The Reaction of Notified Class Members to the Proposed Settlement.
“It is established that the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members.” Nat’l Rural Telecomms.,
Only 809 class members requested exclusion, (see Dkt. 268-5, Prutsman Deck at
a. Objections Based on Merits of Lawsuit.
Of the seven objections, three are directed at the merits of the lawsuit rather than the terms of the settlement. For instance, Sandy Bacon is critical of plaintiffs decision to file this lawsuit, stating that “[b]ecause she has no sense of her own, she blames JC Penney for her ignorance, and they have been ordered to make $50 million available to compensate all of us ‘misled’ buyers.” (Dkt. 259, Objection of Sandy Bacon (“Bacon Obj.”) at ECF 8745). Elaine Fedorka blames this litigation on “a few disgruntled customers” and opines that JCPenney did not “willfully use[] false price comparisons.” (Dkt. 263, Notice of Receipt of Objection, Exh. A (Objection of Elaine Fedorka) (“Fedorka Obj.”) at ECF 8770). She believes the court should “throw this case out.” (Id.). Similarly, Laura Crenwelge urges the court to “dismiss the case altogether if possible [and] find in favor of JCPenney that this lawsuit has no basis[.]” (Dkt. 262, Notice of Receipt of Objection, Exh. A (Objection of Laura Crenwelge) (“Crenwelge Obj.”) at ECF 8762). She explains that while this lawsuit is “ludicrous,” she has not opted out of the settlement because she “might as well get [her] piece of the pie[.]”
b. Objection Based on Compliance with Settlement Agreement.
Jessica Charles objects to the settlement because she asserts that, despite plaintiffs counsel’s representations to the court, “JCPenney continues to this day to advertise fake discounts across the huge majority of its products, where the claimed sale price is actually JCPenney’s regular price.” (Dkt. 261, Objection of Jessica Charles (“Charles Obj.”) at ECF 8756). As a result, she contends that class counsel and plaintiff “have failed the class and are not adequate to represent the class ... [since i]t is clear that the attorneys have failed to thoroughly investigate the case.” (Id. at ECF 8757). The court finds Ms. Charles’s objection to be without merit.
As an initial matter, Ms. Charles fails to offer any facts or evidence supporting her assertion regarding JCPenney’s post-settlement conduct. (See, generally, Dkt. 261, Charles Obj. at ECF 8756-57). Ms. Charles did not provide any evidence or specify
But more importantly, as plaintiff notes, neither plaintiff nor her counsel represented to the court that JCPenney would no longer engage in false price comparisons. (See Dkt. 268-1, Motion at 19-20). Rather, plaintiff merely set forth what the parties agreed to in the settlement, which states in relevant part:
As a direct result of this Litigation, JCPenney agrees that its advertising and pricing practices as of the date of this Settlement Agreement, [November 9, 2015,] and continuing forward, will not violate Federal or California law, including California’s specific price-comparison advertising statutes. Specifically, JCPen-ney agrees that any former- price to which JCPenney refers in its price comparison advertising will be the actual, bona fide price at which the item was openly and actively offered for sale, for a reasonably substantial period of time, in the recent, regular course of business, honestly and in good faith. As a further direct result of this Litigation, JCPen-ney shall implement a compliance program, which shall consist of periodic (no less than once a year) monitoring, training and auditing to ensure compliance with California’s price comparison laws.
(Dkt. 268-3, Settlement Agreement ■ at ¶ 6.1.7). Thus, even if Ms. Charles’s objection were true, plaintiff and class counsel cannot be faulted for JCPenney’s current business practices.
Finally, JCPenney responds that it has implemented a new price-comparison advertising policy in direct response to this litigation, which has been in place since the date of the Settlement Agreement. (See Dkt. 267, J.C. Penney Corporation, Inc.’s Response to Jessica Charles’ Objection to Class Settlement at 2). Pursuant to that policy, JCPenney “has created a Promotional Pricing Governance Committee and has instituted regular training sessions.” (Id.). JCPenney also created the position of Director of Pricing Compliance, “whose primary responsibility is to monitor and ensure compliance with the new pricing policy.” (Id.). Nowhere in the Settlement Agreement, (see, generally, Dkt. 268-3, Settlement Agreement), or in the settlement-approval filings, (see, generally, Dkt.), has either party represented that JCPenney would not utilize any price-comparison pricing. Instead, JCPenney agreed that such practices would not violate federal or California law. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1.7).
c. Objections to Fees and Cy Pres Recipient.
The remaining three objections relate to fees and the cy pres provision of the settlement.
E. Whether the Settlement is the Product of Collusion.
Although the court had certified a class prior to settlement, the parties sought modification of the class as part of the settlement. (See Dkt. 257, Court’s Order of January 25, 2016, at 9-15 & 31). In granting preliminary approval of the settlement, the court carefully scrutinized the settlement and concluded that “[t]he parties clearly had a sound basis for measuring the terms of the Settlement Agreement against the risks of continued litigation, and there is no evidence that the agreement [was] the product of fraud or overreaching by, or collusion between, the negotiating parties.” (Dkt. 257, Court’s Order of January 25, 2016, at 18).
With respect to “signs” of collusion, the court notes that, unlike Bluetooth, where the class received no monetary award, see
F. Cy Pres Designee.
The settlement provides that the residue of any un-cashed checks issued to class members will be distributed, subject to the court's approval, to the National Consumer Law Center (“NCLC”), as a cy pres recipient. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1.6).
Courts may approve cy pres distributions if there is “a driving nexus between the plaintiff class and the cy pres beneficiaries.” Dennis v. Kellogg Co.,
Here, plaintiff states that the NCLC is “guided by the objectives of this litigation (consumer protection against unfair and deceptive business praetices)[.]” (Dkt. 268-I, Motion at 24). Indeed, courts have repeatedly found the NCLC to have the requisite nexus with consumer classes for qualification as a cy pres recipient. See, e.g., Johnson v. Gen. Mills, Inc.,
II. ATTORNEY’S FEES, COSTS AND SERVICE AWARD.
A. Attorney’s Fees.
The settlement provides that class counsel may apply to the court for an attorney’s fee award not to exceed 27% of the settlement amount, and costs of up to $500,000. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1.1.1). In the Fees Motion, class counsel seek $13,500,000 in attorney’s fees (equaling 27% of $50,000,000) and $191,080.91 in costs. (See Dkt. 248-1, Fees Motion at 1).
The California Supreme Court recently held that courts have discretion to choose among two different methods for calculating a reasonable attorney’s fee award. See Laffitte v. Robert Half Int’l Inc.,
“The percentage method calculates the fee as a percentage share of a recovered common fund or the monetary value of plaintiffs’ recovery.” Laffitte,
The “courts often consider the following factors when determining the benchmark percentage to be applied: (1) the result obtained for the class; (2) the effort expended by counsel; (3) counsel’s experience; (4) counsel’s skill; (5) the complexity of the issues; (6) the risks of nonpayment assumed by counsel; (7) the reaction of the class; and (8) comparison with counsel’s lodestar.” Craft v. Cnty. of San Bernardino,
1.The Result Obtained for the Class.
“The result achieved is a significant factor to be considered in making a fee award.” In re Heritage Bond Litig.,
2. Class Counsel’s Expended Effort, Experience, and Skill Required.
The “prosecution and management of a complex ... class action requires unique legal skills and abilities.” In re Omnivision Technologies, Inc.,
3. Complexity of the Issues.
“Courts have recognized that the novelty, difficulty and complexity of the issues
4.Risk of Non-Payment.
“Courts consistently recognize that the risk of non-payment or reimbursement of expenses is a factor in determining the appropriateness of counsel’s fee award.” In re Heritage Bond Litig.,
5. Reaction of the Class.
The reaction of the class to the settlement has been positive. As previously noted, only 809 class members requested exclusion, (see Dkt. 268-5, Prutsman Deck at ¶ 32), which is 0.014% of those who received notice, (see Dkt. 268-1, Motion at 15), and only seven class members filed objections to the settlement, (see Dkt. 268-5, Prutsman Deck at ¶ 33), which represents 0.0001% of those who received notice of the settlement. (See Dkt. 268-1, Motion at 15). The positive reaction of the class members supports the fee application.
6. Lodestar Cross-Check.
“One way that a court may demonstrate that its use of a particular method or the amount awarded is reasonable is by conducting a cross-check using the other method.” In re Online DVD-Rental Antitrust Litig.,
In conducting the cross-check, the court need not “closely scrutinize each claimed attorney-hour, but [may] instead use[ ] information on attorney time spent to focus on the general question of whether the fee award appropriately reflects the degree of time and effort expended by the attorneys.” Laffitte,
7. Conclusion.
Consideration of the foregoing factors supports the request for attorney’s fees. In sum, under the circumstances, the requested fee award out of the common fund established by the Settlement Agreement is fair and reasonable.
B. Costs.
The Settlement Agreement provides that class counsel may seek reimbursement of litigation costs of up to $500,000. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1.1.1). Here, class counsel have incurred $191,080.91 in costs. (See Dkt. 248-1, Fees Motion at 21-22; Dkt. 266, Reply at 13; Dkt. 248-2, Zevin Fees Decl. at ¶¶ 20-21 (setting forth costs and expenses incurred); Dkt. 248-3, Emge Decl. at ¶ 15 (same)). The court finds that the costs incurred by class counsel ovér the course of this litigation are reasonable, and therefore awards a total of $191,080.91 in costs to be paid out of the settlement fund.
C. Class Representative Enhancement Award.
Class counsel request that the court grant plaintiff an enhancement award in the amount of $10,000. (See Dkt. 248-1,
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiffs Motion for Final Approval of Class Action Settlement (Document No. 268) is granted as set forth herein.
2. The court hereby grants final approval of the parties’ Settlement Agreement (“Settlement Agreement”) ' (Document No. 268-3). The court finds that the settlement is fair, adequate, and reasonable, appears to be the product of arm’s length and informed negotiations, and treats all members of the class fairly. The parties are ordered to perform their obligations pursuant to the terms of the Settlement Agreement and this Order.
3. Plaintiffs Unopposed Motion for Attorneys’ Fees, Litigation Costs and Class Representative’s Enhancement Payment (Document No. 248) is granted as set forth herein.
4. The settlement class is certified under Federal Rule of Civil Procedure 23(c): All members ■ of the class preliminarily approved on January 25, 2016, who did not properly and timely request exclusion pursuant to the procedures specified in the Settlement Agreement.
5. The form, manner, and content of the Class Notice meet the requirements of Federal Rules of Civil Procedure 23(c)(2).
6. The court affirms the appointment of plaintiff Cynthia E. Spann as class representative.
7. The court affirms the appointment of Stanley Law Group and Emge Firm, LLP as class counsel.
8. Plaintiff Cynthia E. Spann shall be paid a service payment of $10,000 in accordance with the terms of the Settlement Agreement.
9. Class counsel shall be paid $13,500,000 in attorney’s fees and $191,080.91 in costs in accordance with the terms of the Settlement Agreement.
10. The settlement administrator, Heftier Claims Group LLC, shall be paid up to $2,667,000 for its fees and expenses in connection with the administration of the Settlement Agreement, in accordance with the terms of the Settlement Agreement.
11. The court approves the designation of the National Consumer Law Center as the cy pres beneficiary of any unclaimed settlement funds pursuant to the Settlement Agreement.
12. All class members'who did not validly and timely request exclusion from the settlement have released claims against defendant, as set forth in the Settlement Agreement.
13. Except as to any class members who have validly and timely requested exclusion, this action is dismissed with prejudice, with all parties to bear their own fees and costs except as set forth herein and in the prior orders of this court.
15. Judgment shall be entered accordingly.
Notes
. In citations to the record, capitalization, emphasis, internal alteration marks, and internal quotation marks may be altered or omitted without notation
. Private brands are brands that JCPenney owns, designs, and develops, and exclusive brands are outside brands that are sold exclusively at JCPenney. (See Dkt. 257, Court's Order of January 25, 2016, at 3 n. 1).
. Total purchase amounts will be determined in a number of ways. First, the transaction data for all known and identifiable class members will be supplied by JCPenney to the claims administrator, who will provide such class members with a unique identification number that they can enter on the settlement website to view the date and purchase amount of their transactions. (See Dkt. 268-3, Settlement Agreement at ¶ 6.1.2.1.2). Second, claimants who believe they made purchases that were not identified by JCPenney, or who believe that their data is incomplete or inaccurate, may submit receipts demonstrating qualified purchases, which may increase their allocation points. (See id. at ¶ 6.1.2.1.3). Finally, claimants who certify under penalty of perjury that they are members of the class, but do not have receipts, and for which there is no information in JCPenney's database, will receive one point. (See id. at ¶ 6.1.2.1.4).
. Excluded from this email notice were JCPenney employees, class members who had already submitted a claim, and 4,480 class' members who requested that they not receive any further emails regarding this litigation. (See Dkt. 268-5, Prutsman Decl. at ¶ 16).
. All "Rule” references are to the Federal Rules of Civil Procedure.
. Plaintiff notes that this number may be inflated due to overlap between class members receiving both the Email Notice and the PostCard Notice. (See Dkt. 268-1, Motion at 15).
. In the alternative, Ms. Crenwelge urges the court to "drastically reduce the amount awarded in fees and costs[.]” (Dkt. 262, Cren-welge Obj. at ECF 8762).
. In any event, the court has already considered the merits of this case in connection with defendant’s motion to dismiss, (see Dkt. 202, Court’s Order of March 17, 2015), and motion for summaty judgment, (see Dkt. 204, Court’s Order of March 23, 2015), and declined to grant defendant’s motions.
. Counsel also retained a process server to serve a deposition notice on Ms. Charles at the address indicated in her objection, but service was unsuccessful. (See Dkt. 268-4, Declaration of Derek J. Emge in Support of Motion for Final Approval of Class Action Settlement (“Emge Decl.”) at ¶ 3).
. While Ms. Crenwelge primarily takes issue with the merits of the lawsuit, she also calls the requested attorney's fees “absolutely ridiculous.” (See Dkt. 262, Crenwelge Obj. at ECF 8762).
. As plaintiff notes, Mr. Sweeney is a known "serial” objector, (Dkt. 266, Plaintiff’s Reply Memorandum in Support of Motion for Attorneys' Fees, Litigation Costs and Class Representative’s Enhancement Payment ("Reply”) at 1, 4-5 & 7-9), and Mr. Ellingwood and Ms. Branch are represented by Steven Helfand, another known serial objector. (Id. at 1 & 9-10); see, e.g., Brown v. Hain Celestial Group, Inc.,
. "In general, a clear sailing agreement is one where the party paying the fee agrees not to contest the amount to be awarded by the fee-setting court so long as the award falls beneath a negotiated ceiling.” In re Toys R Us,
. Accordingly, Ms. Branch’s objection to the appointment of NCLC as the cy pres designee is without merit and is overruled. (See Dkt. 264, Branch Obj. at ECF 8783-86).
. As plaintiff notes, the settlement in this case is not governed by CAFA’s provision regarding “coupon” settlements, see 28 U.S.C. § 1712(a), since class members have the option of selecting either a cash payment or a store credit, both of equal value, (see Dkt. 268-3, Settlement Agreement at ¶ 6.1.2; see also Dkt. 248-1, Fees Motion at 10; Dkt. 266, Reply at 7-8), and the store credits: do not expire; may be used to purchase any product at a JCPenney store or its website; will maintain a balance to be depleted on actual use; are transferable; are stackable; and may be used in connection with any promotion or discount. (See Dkt. 248-1, Fees Motion at 10; Dkt. 268-3, Settlement Agreement at ¶ 2.37); see also In re Online DVD-Rental Antitrust Litig.,