Romero v. Securus, CA, Memo in Support of Settlement, Phone Surveillance, 2020
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Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5353 Page 1 of 31 1 2 3 4 5 6 7 8 9 10 NICHOLAS J. FOX (SBN 279577) nfox@foley.com FOLEY & LARDNER LLP 11988 El Camino Real, Suite 400 San Diego, CA 92130 Telephone: (858) 847-6700 Facsimile: (858) 792-6773 EILEEN R. RIDLEY (SBN 151735) eridley@foley.com FOLEY & LARDNER LLP 555 California Street, Suite 1700 San Francisco, CA 94104-1520 Telephone: (415) 434-4484 Facsimile: (415) 434-4507 ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com LAW OFFICE OF ROBERT L. TEEL 1425 Broadway, Mail Code: 20-6690 Seattle, Washington 98122 Telephone: (866) 833-5529 Facsimile: (855) 609-6911 RONALD A. MARRON (SBN 175650) ron@consumersadvocates.com LAW OFFICES OF RONALD A. MARRON, APLC 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiffs and the Class 11 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 16 17 JUAN ROMERO, FRANK TISCARENO, and KENNETH ELLIOTT on behalf of themselves and all others similarly situated, 18 Plaintiffs, 19 v. 20 21 SECURUS TECHNOLOGIES, INC., 22 23 Defendant. Case No. 16-CV-1283-JM-MDD CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: Time: Ctrm.: Judge: June 5, 2020 8:30 a.m. 5D Hon. Jeffrey T. Miller 24 25 26 27 28 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5354 Page 2 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................ 1 II. OVERVIEW OF THE LITIGATION ........................................................... 2 A. Substantial Early Motion Practice Challenged The Pleadings....................... 2 B. Discovery ....................................................................................................... 3 C. Plaintiffs’ Summary Judgment And Class Certification Motions ................. 4 D. Both Sides Seek Interlocutory Appellate Review .......................................... 5 E. Settlement Negotiations ................................................................................. 6 III. THE TERMS OF THE SETTLEMENT AGREEMENT ............................ 6 A. Class Definition.............................................................................................. 6 B. Injunctive Relief ............................................................................................. 6 C. Service Award to Plaintiffs ............................................................................ 8 D. Attorneys’ Fees and Costs.............................................................................. 8 E. Release ........................................................................................................... 8 F. Notice ............................................................................................................. 8 IV. APPLICABLE LEGAL STANDARDS ......................................................... 9 V. ARGUMENT .................................................................................................. 10 A. The Court Should Certify the Class for the Settlement. .............................. 10 1. The Class is Sufficiently Numerous. ......................................................... 10 2. Class Members Share Common Questions of Law and Fact. .................. 11 3. Plaintiffs’ Claims are Typical of the Class Members’ Claims................. 12 4. Plaintiffs and Class Counsel Adequately Represent the Class. ............... 12 5. The Proposed Class Satisfies Rule 23(b)(2). ........................................... 13 B. The Court Should Approve Plaintiffs’ Counsel As Class Counsel. ............. 14 C. The Proposed Settlement Merits Preliminary Approval. ............................. 15 1. The Settlement Is Within the Range of Possible Approval. ...................... 17 2. The Settlement Is the Product of Arms-Length Negotiations. .................. 19 3. The Settlement Has No Deficiencies. ....................................................... 21 4. The Settlement Does Not Provide Preferential Treatment....................... 22 6. Rule 23(b)(2) Does Not Afford an Opportunity to Opt Out. .................... 23 VI. THE PROPOSED SCHEDULE OF EVENTS ............................................ 24 VII. CONCLUSION................................................... Error! Bookmark not defined. 28 -i4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5355 Page 3 of 31 1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Cases 5 Alberto v. GMR, Inc., 252 F.R.D. 652 (E.D. Cal. 2008) ........................................................................ 16 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ambrosia v. Cogent Commun., Inc., 312 F.R.D. 544 (N.D. Cal. 2016) ........................................................................ 12 Beck-Ellman v. Kaz USA, Inc., No. 3:10-CV-02134-H-DHB, 2013 WL 10102326 (S.D. Cal. June 11, 2013) ............................................................................................................. 22 Campbell v. Facebook Inc., 315 F.R.D. 250 (N.D. Cal. 2016) ........................................................................ 11 Cervantez v. Celestica Corp., No. EDCV 07-729-VAP, 2010 WL 2712267 (C.D. Cal. July 6, 2010) ................................................................................................................... 21 Churchill Vill., L.L.C. v. GE, 361 F.3d 566 (9th Cir. 2004) .............................................................................. 16 Class Plaintiffs v. Seattle, 955 F.2d 1268 (9th Cir. 1992) .............................................................................. 9 Dalton v. Lee Publ’ns, Inc., No. 08-CV-1072-GPC-NLS, 2015 WL 11582842 (S.D. Cal. March 6, 2015) (Curiel, J., presiding) ........................................................................ 9, 16 In re Facebook, Inc., PPC Advert. Litig., 282 F.R.D. 446 (N.D. Cal. 2012), aff’d sub nom. Fox Test Prep v. Facebook, Inc., 588 F. App’x 733 (9th Cir. 2014) ............................................. 11 Fulford v. Logitech, Inc., No. 08-CV-02041, 2010 WL 807448 (N.D. Cal. 2010) ..................................... 22 Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) .............................................................................. 23 28 - ii 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5356 Page 4 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998), overruled on other grounds by WalMart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........................ 10, 11, 12, 15, 16 Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973 (N.D. Cal. Apr. 29, 2011) .... 19, 20, 22 In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ............................................................... 20 Kanawi v. Bechtel Corp., 254 F.R.D. 102 (N.D. Cal. 2008) ........................................................................ 13 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) .............................................................................. 15 Lopez v. Mgmt. & Training Corp., No. 17cv1624, 2019 WL 6829250 ................................................................ 15, 17 Manouchehri v. Styles for Less, Inc., No. 14cv2521 NLS, 2016 WL 3387473 (S.D. Cal. June 20, 2016) ................... 20 McDonald v. CP OpCo, LLC, No. 17cv04915-HSG, 2019 WL 2088421 (N.D. Cal. Jan. 28, 2019) ................. 18 In re MDC Holdings Sec. Litig., 754 F. Supp. 785 (S.D. Cal. 1990) ...................................................................... 10 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) ............................................................................................ 22 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ........................................................................ 16 Newman v. Stein, 464 F.2d 689 (2d Cir. 1972)................................................................................ 18 Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615 (9th Cir. 1982) ........................................................................ 10, 16 Reynoso v. RBC Bearings, Inc., No. SACV 16-01037 ........................................................................................... 11 28 - iii 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5357 Page 5 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) ........................................................................ 18, 19 Ruch v. Am Retail Grp., Inc., No. 14cv05352-MEJ, 2016 WL 5462451 (N.D. Cal. Mar. 24, 2016) ................ 19 Schofield v. Delta Air Lines, Inc., No. 18cv00382-EMC, 2019 WL 955288 (N.D. Cal. Feb. 27, 2019) .................. 18 Sierra v. Kaiser Found. Hosps., No. 18cv00780-KSC, 2019 WL 5864170 (S.D. Cal. Nov. 7, 2019) .................. 17 Stathakos v. Columbia Sportswear Co., No. 15-cv-04543-YGR, 2018 WL 582564 (N.D. Cal. Jan. 25, 2018) ................ 21 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ........................................ 9, 15, 17, 21, 22 United States v. Armour & Co., 402 U.S. 673 (1971) ............................................................................................ 16 In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2672 CRB (JSC), 2016 U.S. Dist. LEXIS 148374 (N.D. Cal. Oct. 25, 2016) .............................................................................................. 19 Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) ................................................................................ 10, 11, 14 Wolin v. Jaguar Land Rover N Am. LLC, 617 F.3d 1168 (9th Cir. 2010) ............................................................................ 12 21 22 Statutes 23 California Business and Professions Code §§ 17200, et seq. ................................................................................................... 3 24 25 26 California Civil Code § 1542.................................................................................................................... 8 27 28 - iv 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5358 Page 6 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Federal Rules of Civil Procedure Rule 23 .......................................................................................................... 25, 24 Rule 23(a)............................................................................................................ 10 Rule 23(a)(1) ....................................................................................................... 10 Rule 23(a)(2) ....................................................................................................... 11 Rule 23(a)(3) ....................................................................................................... 12 Rule 23(a)(4) ....................................................................................................... 12 Rule 23(b)(2) ............................................................................. 4, 5, 10, 13, 23, 24 Rule 23(b)(3) ..................................................................................................... 4, 5 Rule 23(c)(1)(C).................................................................................................. 10 Rule 23(c)(2) ....................................................................................................... 22 Rule 23(e)........................................................................................................ 9, 15 Rule 23(e)(3) ....................................................................................................... 24 Rule 23(f) ................................................................................................ 2, 5, 6, 17 Rule 23(g) ............................................................................................................. 4 Rule 23(g)(1)(A) ................................................................................................. 15 Rule 23(e)(1)(B).................................................................................................. 23 Rule 23(e)(2) ....................................................................................................... 23 Other Authorities 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions §11:47 (4th ed. 2002) .......................................................................................... 20 Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Federal Judicial Center (January 1, 2020), https://www.fjc.gov/content/judges-class-action-notice-and-claimsprocess-checklist-and-plain-language-guide-0. [Last visited May 17, 2020.] ............................................................................................................ 23 Manual for Complex Litigation (4th ed. 2004) § 21.63....................................................................................................... 9, 22, 24 23 24 25 26 27 28 -v4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5359 Page 7 of 31 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. INTRODUCTION 3 Plaintiffs Kenneth Elliott, Juan Romero, and Frank Tiscareno (collectively, 4 “Plaintiffs”), on behalf of themselves and the Class they represent, respectfully move 5 for preliminary approval of a proposed class action settlement (“Settlement” or 6 “Settlement Agreement”) reached with Defendant Securus Technologies, Inc. 7 (“Securus”).1 See Settlement Agreement, attached as Exhibit 1 to the Declaration of 8 Robert L. Teel. 9 Plaintiffs have diligently and zealously litigated this case over the past four 10 years. Following extensive discovery and motion practice, and multiple rounds of 11 settlement negotiations, Plaintiffs and Securus reached the Settlement whereby 12 Securus has agreed to implement substantial business changes to ensure that there is 13 no inadvertent recording of detainee-attorney calls and safeguard the constitutional, 14 statutory, and common law privacy rights of the Class. The proposed injunctive relief 15 requires Securus: (1) provide a “Private Call” option that allows callers who intend 16 to make private calls to make this designation at the commencement of the call (at 17 no additional charge or cost from Securus); (2) provide additional message prompts 18 advising users about call monitoring and recording so that both attorney and detainee 19 clients can clearly ascertain whether the call is on a private line or not; (3) post 20 information that will facilitate the designation of private numbers on Securus’s 21 website(s); and (4) submit a declaration to Class Counsel and the Court every six 22 months for the next five years to ensure compliance with the requirements of the 23 Settlement Agreement. 24 Securing injunctive relief to preserve and secure the Constitutional and 25 statutory privacy rights of the Class is important and valuable to the Class. Plaintiffs’ 26 determination that it is in the best interests of the Class to forego seeking class-wide 27 28 1 Capitalized terms shall have the same meaning as set forth in the Settlement Agreement attached as Exhibit 1, hereto, unless otherwise noted. -14833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5360 Page 8 of 31 1 monetary relief in order to ensure the confidentiality of attorney-detainee phone calls 2 is based in part on a recognition that the Ninth Circuit’s grant of Securus’s Rule 23(f) 3 petition for interlocutory review of this Court’s order certifying a class jeopardizes 4 the prospect for any class-wide relief. Plaintiffs similarly determined that this 5 Court’s Order denying their motion for partial summary judgment on whether intent 6 is a required element of their principal statutory claim—and the Ninth Circuit’s 7 refusal to grant interlocutory review of that order—creates a meaningful risk that 8 Plaintiffs would be unable to recover class-wide damages. Based on, inter alia, the 9 foregoing, the Settlement is fair, adequate, and reasonable. 10 The Settlement is the product of extensive arms-length negotiations that took 11 place over several months with the assistance of an experienced mediator. The 12 Settlement was negotiated by lawyers with a depth of experience in alleged data 13 privacy breaches and in class action litigation more broadly, and was reached only 14 after the parties were well-informed of all relevant facts and the strengths and 15 weaknesses of Plaintiffs’ case—and of Securus’s defenses—and after Plaintiffs’ 16 counsel could be reasonably certain that the deal represents the best possible result 17 for the Class given the circumstances of this case. Consequently, the Settlement 18 satisfies the criteria for preliminary approval. 19 II. OVERVIEW OF THE LITIGATION 20 A. Substantial Early Motion Practice Challenged The Pleadings 21 On May 27, 2016, Juan Romero and Frank Tiscareno, two former inmates of 22 the San Diego County Central Jail, initiated a putative class action against Securus, 23 alleging that it had intentionally eavesdropped on and recorded detainee-attorney 24 phone calls despite advertising the security and privacy of those calls. [D.E. 1]. The 25 initial Complaint asserted claims for injunctive relief, common law negligence, and 26 violation of Section 636 of the California Invasion of Privacy Act (“CIPA”). Id. 27 In response to a motion to dismiss [D.E. 4], Plaintiffs filed a First Amended 28 Complaint, adding Kenneth Elliott, a criminal defense lawyer as an additional -2- 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5361 Page 9 of 31 1 plaintiff who would serve as the representative of a putative subclass of attorneys. 2 [D.E. 8]. The First Amended Complaint also added new claims for conversion, unfair 3 competition, unjust enrichment, fraudulent concealment, fraud and intentional 4 misrepresentation. Id. Securus once again moved to dismiss. [D.E. 11]. After full 5 briefing, the Court granted Securus’s motion in part, dismissing with prejudice 6 Plaintiffs’ conversion claim, and dismissing without prejudice their claims of fraud 7 and intentional misrepresentation. [D.E. 21]. Plaintiffs filed a Second Amended 8 Complaint, which Securus again moved to dismiss, and the Court once again granted 9 Securus’s motion in part and denied it in part. [D.E. 29]. 10 On February 8, 2017, Plaintiffs filed the operative Third Amended Complaint, 11 which alleges claims for a violation of CIPA, unfair competition, violation of 12 Business and Professions Code Sections 17200, et seq., concealment, fraud, 13 negligence, and unjust enrichment. [D.E. 30]. Securus answered the Third Amended 14 Complaint, and with the pleadings settled, the litigation proceeded to discovery. 15 B. Discovery 16 Extensive discovery ensued, including the exchange of multiple sets of written 17 interrogatories and requests for admission, the production of thousands of 18 documents, and the issuance of a number of third-party subpoenas. The Parties filed 19 several motions to resolve discovery disputes that arose over the course of the 20 litigation, including Plaintiffs’ request to expedite discovery [D.E. 32, 33, 38, 39], 21 Plaintiffs’ motion to compel additional responses to certain interrogatories, requests 22 for production, and requests for admission [D.E. 59], Securus’s motion for relief from 23 the discovery order of Magistrate Judge Mitchell D. Dembin [D.E. 70, 81], Plaintiffs’ 24 ex parte application regarding Securus’s interrogatory responses and the existence 25 and/or production of audio recordings [D.E. 85], and the Parties’ joint motion to 26 resolve whether Securus must respond to outstanding discovery while its motion to 27 stay proceedings was pending [D.E. 161]. 28 -34833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5362 Page 10 of 31 1 C. Plaintiffs’ Summary Judgment And Class Certification Motions 2 Plaintiffs first moved for class certification on October 10, 2017, seeking both 3 Rule 23(b)(2) and 23(b)(3) classes. [D.E. 62]. As evidence of numerosity, Plaintiffs 4 submitted a spreadsheet prepared by their counsel—based on other evidence—that 5 purported to identify calls made by San Diego inmates to certain phone numbers 6 designated for privacy. [D.E. 62-4 at 33-63; D.E. 62-5 at 2-5; D.E. 63 through D.E. 7 63-7; and D.E. 74-2 at 20-31]. Plaintiffs maintained that the underlying evidence 8 disclosed at least 123 potential class members in San Diego, and even more 9 statewide. [D.E. 62-1 at 8-10]. Plaintiffs argued that the commonality and typicality 10 requirements for class certification were met by, without limitation, a common 11 contention capable of class-wide resolution, namely whether Securus recorded phone 12 conversations between attorneys and detainees recorded without permission. [D.E. 13 62-1 at 11]. Plaintiffs supported their adequacy argument with declarations from 14 Plaintiffs and counsel attesting to, without limitation, Plaintiffs’ commitment to the 15 Class and counsels’ experience in prosecuting complex litigation cases and unlawful 16 recording class actions.” [D.E. 62-1 at 14-16]. 17 On April 12, 2018, the Court denied Plaintiffs’ motion for class certification 18 without prejudice, explaining that Plaintiffs had “fail[ed] to present sufficient 19 evidence . . . that there is an administratively feasible manner to determine whether 20 a class action is the superior method for prosecuting Plaintiffs’ claims.” [D.E. 93 21 at 5]. The Court found that, given Plaintiffs’ submissions, the Class could be as small 22 as 22 members or as large as thousands and numbers at the low end might not produce 23 efficiencies from class litigation. Id. at 5-6. The Court allowed Plaintiffs to renew 24 their motion within 90 days notwithstanding Securus’ position that it had completed 25 its production and that the deadline for discovery on class certification issues had 26 passed. Id. at 6. 27 Plaintiffs thereafter moved for partial summary judgment, asking the Court to 28 hold that CIPA § 636 requires no proof of intent to trigger its civil liability. [D.E. -4- 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5363 Page 11 of 31 1 101]. On July 11, 2018, Plaintiffs also filed a renewed motion for class certification. 2 [D.E. 122-1]. On November 21, 2018, the Court issued an order resolving both 3 motions. [D.E. 141]. First, the Court denied Plaintiffs’ motion for partial summary 4 judgment, concluding that CIPA § 636 does not create a strict liability offense, and 5 that Plaintiffs motion failed to establish there is no genuine dispute of material fact 6 as to whether Securus had the intent necessary to violate CIPA. Id. at 19. Second, 7 the Court granted in part Plaintiffs’ renewed motion for class certification. Id. at 33- 8 34. The Court certified a Rule 23(b)(2) and Rule 23(b)(3) class for Plaintiffs’ CIPA 9 claim, and denied class certification for each of Plaintiffs’ other claims. Id. The 10 Court also appointed as class counsel the Law Office of Robert L. Teel, the Law 11 Offices of Ronald A. Marron, APLC, and Foley & Lardner, LLP. Id. at 34 12 D. Both Sides Seek Interlocutory Appellate Review 13 On December 3, 2018, Plaintiffs filed an interlocutory request to appeal the 14 denial of their motion for partial summary judgment. [D.E. 143]. The Ninth Circuit 15 denied this request on January 16, 2019. [D.E. 149]. Both Plaintiffs and Securus 16 petitioned the Ninth Circuit for review of the Court’s class certification order 17 pursuant to Federal Rule of Civil Procedure 23(f). [D.E. 144, 145]. Plaintiffs sought 18 review of the Court’s denial of class certification as to all claims other than CIPA, 19 arguing that they were based on the same central question and common proof. [D.E. 20 144]. Securus sought review of three questions: (1) whether the Court could certify 21 class claims under § 636(a) without any evidence that Securus had a common, 22 class-wide intention about recording, (2) whether class litigation was superior to 23 other forms of litigation in this case, and (3) whether the Court had the authority to 24 grant Plaintiffs’ motion for class certification after having denied Plaintiffs’ first 25 motion for class certification. [D.E. 145]. Securus also argued that this Court had 26 erred because the Court misapplied the law governing allegations of improperly 27 recorded calls after 2014. Id. On February 27, 2019, the Ninth Circuit denied 28 -54833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5364 Page 12 of 31 1 Plaintiffs’ Rule 23(f) petition, but granted Securus’s petition. [D.E. 155, 156]. On 2 April 17, 2019, the Court stayed the action pending Securus’s appeal. [D.E. 168]. 3 E. Settlement Negotiations 4 The parties participated in two all day mediation sessions with the Honorable 5 Leo S. Papas (Retired), first on October 3, 2018 and again on August 16, 2019. While 6 the mediations did not result in an immediate settlement, the parties made significant 7 progress and continued to engage in direct settlement negotiations following the 8 conclusion of the second mediation. Ninth Circuit Mediator Sasha M. Cummings 9 was appointed as a mediator following the Ninth Circuit’s grant of review for 10 Securus’s Rule 23(f) petition. Ms. Cummings encouraged the parties to continue 11 their negotiations during periodic status calls and an agreement was eventually 12 reached, the terms of which are memorialized in the Settlement Agreement dated 13 April 17, 2020. At all times, the settlement negotiations were adversarial, non- 14 collusive, and conducted at arms-length. 15 III. THE TERMS OF THE SETTLEMENT AGREEMENT 16 A. 17 The Class consists of: 18 23 Every person who was a party to any portion of a conversation between a person who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number designated or requested not to be recorded, any portion of which was eavesdropped on or recorded by Defendant Securus Technologies, Inc. by means of an electronic device during the period July 10, 2008 through whichever occurs first: (1) the date on which the court grants preliminary approval of the settlement; or (2) June 16, 2020. 24 B. 25 The proposed Settlement Agreement provides injunctive relief designed to 26 eliminate virtually all risk of an inadvertent recording of attorney-detainee phone 27 calls. Specifically, the injunctive relief provides: 19 20 21 22 Class Definition Injunctive Relief 28 -64833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5365 Page 13 of 31 1. 1 Verification and No Recording of Approved Numbers.2 Within six 2 (6) months of the date the Court enters judgment granting final approval of the 3 settlement, Securus will make available to its current and future California facility 4 customers a “Private Call” option that allows persons who intend to make calls to 5 what they believe to be an Approved Number to make this indication at the 6 commencement of the call. If the dialed number is in fact an Approved Number, the 7 call will be connected and will not be recorded. If the dialed number is not an 8 Approved Number, the call will not be completed, and the calling party will have the 9 option of calling the same number via other non-Private Call options. Securus will 10 not unilaterally impose any additional charge or cost for the use of this “Private Call” 11 option. 2. 12 Message Prompts. Within six (6) months of the date the Court enters 13 judgment granting final approval of the settlement, Securus will make available to its 14 current and future California customers the following message prompts as 15 alternatives to its standard message prompts: • 16 For all calls to non-Approved Numbers, a prompt advising that the call 17 will be recorded and may be monitored, along with basic instructions to 18 contact the facility and request Approved Number treatment; and • 19 For all calls to Approved Numbers, a prompt advising that the call will not be recorded and cannot be monitored. 20 3. 21 Designation of Approved Numbers. Within six (6) months of the date 22 the Court enters judgment granting final approval of the settlement, Securus will post 23 on its public facing website(s), in a reasonably conspicuous manner, information that 24 will facilitate the designation of a telephone number as an Approved Number. This 25 includes, but is not limited to, a description of the availability of private lines for an 26 27 28 2 An “Approved Number” is a telephone number approved by a Securus customer for entry into Securus’s Call Platform so that calls to that number may be completed without being recorded. -7- 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5366 Page 14 of 31 1 Approved Number and contact information for those who can assist in the 2 privatization process. 4. 3 Compliance Reporting. Within twelve (12) months of the date the 4 Court enters judgment granting final approval of the settlement and within each six- 5 month period thereafter for the next five years, Securus will serve Class Counsel and 6 file with the Court a declaration executed under penalty of perjury describing 7 Securus’s compliance with the requirements of the Settlement Agreement. Each 8 declaration shall, without limitation, identify the number of California customers and 9 facilities to which it has offered the “Private Call” option and the number of 10 customers and facilities that have and have not agreed to offer the “Private Call” 11 option to its detainees and/or attorneys. 12 C. Service Award to Plaintiffs 13 In recognition of Plaintiffs’ time and effort as class representatives and the 14 release of their claims, the Parties agree that Securus will pay each Plaintiff a service 15 award not to exceed twenty thousand dollars ($20,000.00), subject to Court approval. 16 D. Attorneys’ Fees and Costs 17 The Parties agree that Securus will pay attorneys’ fees and costs to Plaintiffs’ 18 counsel in an amount of eight hundred and forty thousand dollars ($840,000), subject 19 to Court approval as further set forth in the Settlement Agreement. Plaintiffs’ counsel 20 will submit a fee petition and proposed order prior to the final approval hearing. 21 E. Release 22 Under the terms of the Settlement Agreement, the named Plaintiffs release 23 their claims for injunctive relief and for damages. The Settlement Agreement also 24 waives the protections of Civil Code Section 1542 as to the named Plaintiffs. 25 F. Notice 26 The parties agreed that upon issuance of the preliminary approval order, 27 Securus will engage a third-party administrator, ILYM Group, Inc., to provide the 28 Notice attached to the Settlement Agreement. Teel Declaration, Exhibit 1, p. 20-21. -8- 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5367 Page 15 of 31 1 (Exhibit A to the Settlement Agreement). The Notice will include the date and time 2 of the final approval hearing, how to object to the settlement, information about 3 important dates and deadlines associated with the settlement, and relevant contact 4 information. 5 All persons who used Securus’ phone system found in Securus’ database of 6 customers with either an address in California shall receive an email from the 7 settlement administrator with the Notice and containing a link to a webpage 8 maintained by the settlement administrator setting forth the Notice, the Settlement 9 Agreement, and any other information required under the Settlement Agreement. In 10 the event of invalid email addresses, the Settlement Administrator will directly mail 11 hardcopies of the Notice to the addresses listed in Securus’s database. 12 IV. APPLICABLE LEGAL STANDARDS 13 The Ninth Circuit maintains a “strong judicial policy” that favors the 14 settlement of class actions. Class Plaintiffs v. Seattle, 955 F.2d 1268, 1276 (9th Cir. 15 1992). Nonetheless, the Court must first “determine whether a proposed settlement 16 is “fundamentally fair, adequate and reasonable” pursuant to Rule 23(e). Dalton v. 17 Lee Publ’ns, Inc., No. 08-CV-1072-GPC-NLS, 2015 WL 11582842, at *2 (S.D. Cal. 18 March 6, 2015) (Curiel, J., presiding) (quoting Stanton v. Boeing Co., 327 F.3d 938, 19 959 (9th Cir. 2003). The initial decision to approve or reject a settlement lies in the 20 sound and broad discretion of the trial judge. Seattle, supra at 1276. 21 The Manual for Complex Litigation describes a three-step process for 22 approving a class action settlement: (1) preliminary approval of the proposed 23 settlement; (2) dissemination of notice of the settlement to class members; and (3) a 24 final approval hearing. Manual for Complex Litigation § 21.63 (4th ed. 2004). At 25 the preliminary approval stage, the Court must determine whether the settlement falls 26 “within the range of possible approval”. 27 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). The proposed settlement should be 28 “taken as a whole, rather than the individual component parts” in determining overall -9- 4833-4843-8204.1 In re Tableware Antitrust Litig., MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5368 Page 16 of 31 1 fairness. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled 2 on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Courts 3 are not permitted to “‘delete, modify, or substitute certain provisions’”. Id. (quoting 4 Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 630 (9th 5 Cir. 1982)). The settlement “must stand or fall in its entirety.” Id.. 6 Plaintiffs’ request the Court complete the first two steps of the settlement 7 approval process by granting preliminary approval of the settlement and ordering the 8 dissemination of the Notice to the Class Members. 9 V. ARGUMENT 10 A. The Court Should Certify the Class for the Settlement. 11 The Parties request for purposes of settlement only, that the Court amend its 12 November 21, 2018 class certification order so that it consists of only a Rule 23(b)(2) 13 class for injunctive and declaratory relief. See Fed. R. Civ. P. 23(c)(1)(C) (“An order 14 that grants or denies class certification may be altered or amended before final 15 judgment.”); See also In re MDC Holdings Sec. Litig., 754 F. Supp. 785, 801 (S.D. 16 Cal. 1990) (“Throughout the trial, the district court retains the authority to amend the 17 certification order as may be appropriate as the case develops.”). 18 The requested amendment does not materially change the analysis for class 19 certification pursuant to Rule 23(a) and Rule 23(b)(2). As discussed below, and 20 consistent with the Court’s November 21, 2018 class certification order, the Parties 21 stipulate for purposes of the Settlement Agreement only that the Class meets the 22 requirements of Rule 23(a) as well as the requirements to certify an injunctive relief 23 class under Rule 23(b)(2). 24 1. The Class is Sufficiently Numerous. 25 Rule 23(a)’s first requirement—numerosity—is satisfied where “the class is so 26 numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The 27 numerosity requirement is relaxed if the representative plaintiff is seeking an 28 injunction or a declaratory judgment because certifying a class would avoid - 10 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5369 Page 17 of 31 1 duplicative suits brought by other class members. Reynoso v. RBC Bearings, Inc., 2 No. SACV 16-01037 JVS(JCGx), 2017 WL 6888305, at *5 (C.D. Cal. Oct. 5, 2017), 3 decertified on other grounds by Reynoso v. All Power Mfg. Co., No. SACV 16-01037 4 JVS(JCGx), 2018 WL 5906645, at *6 (C.D. Cal. Apr. 30, 2018) (citing Sueoka v. 5 United States, 101 F. App’x 649, 653 (9th Cir. 2004)). “[C]ourts generally find that 6 the numerosity factor is satisfied if the class comprises 40 or more members, and will 7 find that it has not been satisfied when the class comprises 21 or fewer.” In re 8 Facebook, Inc., PPC Advert. Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012), aff’d sub 9 nom. Fox Test Prep v. Facebook, Inc., 588 F. App’x 733 (9th Cir. 2014); see also 10 Campbell v. Facebook Inc., 315 F.R.D. 250, 261 (N.D. Cal. 2016). In its order 11 granting class certification, the Court noted that Plaintiffs identified 246 potential 12 class members and held that joinder of this many plaintiffs would be impracticable. 13 [D.E. 141 at 31]. Accordingly, numerosity is satisfied. 14 2. Class Members Share Common Questions of Law and Fact. 15 The second requirement of class certification asks whether there are “questions 16 of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is 17 construed permissively and is demonstrated when the claims of all class members 18 “depend upon a common contention” that is “capable of classwide resolution—which 19 means that determination of its truth or falsity will resolve an issue that is central to 20 the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 21 et al., 564 U.S. 338, 350 (2011); See also Hanlon v. Chrysler Corp., 150 F.3d 1011, 22 1019 (9th Cir. 1998). 23 The Court previously held that “a single common question can satisfy the 24 commonality requirement of Rule 23(a)(2)” and that “common issues dominate this 25 litigation.” [D.E. 141 at 31]. The Court identified the following two class-wide 26 questions that may be answered by common proof: (1) “[w]hether Securus recorded 27 calls between detainees and attorneys without their permission,” and (2) “[h]ow and 28 why Securus recorded detainee-attorney calls” [D.E. 141 at 24]. - 11 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5370 Page 18 of 31 1 3. Plaintiffs’ Claims are Typical of the Class Members’ Claims. 2 The third element of Rule 23(a)—typicality—directs courts to focus on 3 whether the plaintiff’s claims or defenses “are typical of the claims or defenses of the 4 class.” Fed. R. Civ. P. 23(a)(3). The test of typicality is “whether other members 5 have the same or similar injury, whether the action is based on conduct which is not 6 unique to the named plaintiffs, and whether other class members have been injured 7 by the same course of conduct.” Ambrosia v. Cogent Commun., Inc., 312 F.R.D. 544, 8 554 (N.D. Cal. 2016) (citations omitted). Representative claims are typical “if they 9 are reasonably coextensive with those of absent class members; they need not be 10 substantially identical.” Id. (citation omitted). Ultimately, this requirement ensures 11 that “the interest of the named representative aligns with the interests of the class.” 12 Wolin v. Jaguar Land Rover N Am. LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) 13 (citation omitted). 14 Plaintiffs’ claims are typical of those of the Class. The Court previously held 15 that “[l]ike all class members, Plaintiffs’ confidential calls were recorded by Securus 16 without their permission.” [D.E. 141 at 31]. As such, the injunctive and declaratory 17 relief achieved by the Settlement would apply to Plaintiffs and other members of the 18 Class equally. 19 4. 20 Rule 23(a)(4) permits class certification if the “representative parties will fairly 21 and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This 22 factor requires (1) that the representative plaintiffs do not have conflicts of interest 23 with the class, and (2) that plaintiffs are represented by qualified and competent 24 counsel. Hanlon, 150 F.3d at 1020. The Court already determined when it previously 25 certified the Class that Plaintiffs and Class Counsel will fairly and adequately protect 26 the Class Members’ interests, and nothing has changed in that regard. [D.E. 141 at 27 32-33]. Plaintiffs and Class Counsel Adequately Represent the Class. 28 - 12 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5371 Page 19 of 31 1 Plaintiffs share the same interest as the other members of the Class, and there 2 is no evidence of any conflict of interest between Plaintiffs and counsel with other 3 absent class members. Plaintiffs are also represented by qualified counsel who have 4 been committed to the prosecution of this case from the outset. Class Counsel are 5 experienced in complex litigation and class actions of similar size, scope, and 6 complexity to this class action and have the resources necessary to see this litigation 7 through to its conclusion. See Teel Declaration, ¶ 3, pg. 1. Moreover, Class Counsel 8 have vigorously litigated this action in order to protect the interests of the Class and 9 to maximize the relief obtained for all Class Members, as evidenced by, inter alia, 10 their substantial motion practice and discovery requests. See Kanawi v. Bechtel 11 Corp., 254 F.R.D. 102, 111 (N.D. Cal. 2008) (finding adequacy met where plaintiffs 12 “demonstrated their commitment to th[e] action” and their attorneys were “qualified 13 to represent the class”). 14 In granting class certification of the CIPA claims, the Court determined that 15 the “named Plaintiffs and class counsel will fairly and adequately protect the interests 16 of the class” because “Plaintiffs’ claims are typical of the class” and Class Counsel 17 submitted “declarations detailing their qualifications and experience with class 18 actions.” [D.E. 141 at 32]. Since the Court’s order granting class certification, Class 19 Counsel have continued to vigorously litigate this action before this Court and the 20 Ninth Circuit and have engaged in extensive settlement negotiations, further 21 evidencing that Rule 23(a)’s adequacy requirements remain satisfied. 22 5. The Proposed Class Satisfies Rule 23(b)(2). 23 In addition to the four requirements for certification under Rule 23(a), the 24 Class also satisfies the additional requirement imposed under Rule 23(b)(2), that 25 Defendant has “acted or refused to act on grounds that apply generally to the class,” 26 thereby making injunctive relief appropriate. Fed. R. Civ. P. 23(b)(2). 27 The “key to the (b)(2) class is ‘the indivisible nature of the injunctive or 28 declaratory remedy warranted—the notion that the conduct is such that it can be - 13 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5372 Page 20 of 31 1 enjoined or declared unlawful only as to all of the class members or as to none of 2 them.’” Dukes, 564 U.S. at 360 (citation omitted). 3 In the instant matter, the Court has determined that “a single injunction or 4 declaratory judgment would provide relief to each member of the class.” [D.E. 141 5 at 30 (quoting Dukes, 564 U.S. at 360)]. The Court specifically found that “[a]n 6 injunction prohibiting Securus from eavesdropping on, listening to, recording, 7 disclosing, or using communications between detainees and their attorneys without 8 their permission would prevent an issue similar to the one presented here from 9 recurring,” and that such a ruling “would benefit all members of the class.” [D.E. 10 141 at 29]. 11 B. The Court Should Approve Plaintiffs’ Counsel As Class Counsel. 12 When certifying a class, the Court must also consider the appointment of class 13 counsel. The relevant factors in deciding whether to approve class counsel are: (1) 14 the work counsel has done in identifying or investigating potential claims in the 15 action; (2) counsel’s experience in handling class actions, other complex litigation, 16 and the types of claims asserted in the action; (3) counsel’s knowledge of the 17 applicable law; and (4) the resources that counsel will commit to representing the 18 class. See Fed. R. Civ. P. 23(g)(1)(A). 19 As set forth above, the Court has previously found Class Counsel adequate to 20 fairly protect the interests of the Class. [D.E. 141 at 32-2]. Plaintiffs now ask the 21 Court to reconfirm the appointment of Foley & Lardner LLP, the Law Offices of 22 Ronald A. Marron, APLC, and the Law Office of Robert L. Teel as Class Counsel 23 for the Settlement. Class Counsel satisfy the criteria of Rule 23(g). First, they have 24 devoted—and will continue to devote—a significant amount of time and effort to this 25 litigation, including through their substantive motion practice, pursuit of discovery, 26 and settlement discussions. See Teel Declaration, ¶¶ 3, 4, 10, 13, 14, and 21 . Second, 27 Class Counsel have extensive experience in complex litigation and class actions and 28 - 14 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5373 Page 21 of 31 1 have been appointed class counsel or have worked on numerous consumer class 2 actions throughout the country. See Teel Declaration, ¶¶ 13 and 17. 3 In short, Class Counsel have the resources necessary to conduct litigation of 4 this nature, have already diligently investigated the claims at issue in this action and 5 dedicated substantial resources to the case, and will continue to do so throughout its 6 conclusion. Accordingly, Foley & Lardner LLP, the Law Offices of Ronald A. 7 Marron, APLC, and the Law Office of Robert L. Teel meet the adequacy 8 requirements of Rule 23, and should be reconfirmed and appointed Class Counsel for 9 the Settlement. 10 C. 11 Rule 23(e) requires judicial approval of a proposed class action settlement 12 based on a finding that the agreement is “fair, reasonable, and adequate.” See Lane 13 v. Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012). “In assessing a settlement 14 proposal, a district court is required to balance a number of factors, namely: 15 The Proposed Settlement Merits Preliminary Approval. 18 the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. 19 Lopez v. Mgmt. & Training Corp., No. 17cv1624 JM(RBM), 2019 WL 6829250, at 20 *5 (S.D. Cal. Dec. 13, 2019) (Miller, J.) (quoting Hanlon, 150 F.3d at 1026). 21 Preliminary approval of a settlement is appropriate “‘[i]f the proposed settlement 22 appears to be the product of serious, informed, non-collusive negotiations, has no 23 obvious deficiencies, does not improperly grant preferential treatment to class 24 representatives or segments of the class, and falls within the range of possible 25 approval.’” Tableware, supra at 1079 (quoting Manual for Complex Litigation § 26 30.44 (2nd ed. 1985)). The proposed settlement need not be ideal, but it must be fair 27 and free of collusion, consistent with counsel’s fiduciary obligations to the class. 16 17 28 - 15 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5374 Page 22 of 31 1 Hanlon, supra at 1027; See also Churchill Vill., L.L.C. v. GE, 361 F.3d 566, 575-76 2 (9th Cir. 2004). 3 A full fairness analysis is unnecessary at the preliminary approval stage 4 because some of these factors may not able fully assessed until the Court conducts a 5 final fairness hearing. Dalton, 2015 WL 11582842, at *6. “At this preliminary 6 approval stage, the court again need only ‘determine whether proposed settlement is 7 within the range of possible approval’” and thus, whether the notice to the class and 8 the scheduling of a formal fairness hearing is appropriate. Alberto v. GMR, Inc., 252 9 F.R.D. 652, 666-67 (E.D. Cal. 2008) (citation omitted). 10 The court’s primary concern “is the protection of those class members, 11 including the named Plaintiffs, whose rights may not have been given due regard by 12 the negotiating parties.” Officers for Justice v. Civil Serv. Comm’n of City & Cnty. 13 Of S.F., 688 F.2d 615, 624 (9th Cir. 1982) (citation omitted). “In most situations, 14 unless the settlement is clearly inadequate, its acceptance and approval are preferable 15 to lengthy and expensive litigation with uncertain results.” Nat’l Rural Telecomms. 16 Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). 17 As explained by the Supreme Court, “[n]aturally, the agreement reached 18 normally embodies a compromise; in exchange for the saving of cost and elimination 19 of risk, the parties each give up something they might have won had they proceeded 20 with litigation.” United States v. Armour & Co., 402 U.S. 673, 681 (1971). Here, 21 the Settlement Agreement represents a fair, adequate, and reasonable result for Class 22 Members because they: (1) will receive notice of the litigation and the changes in 23 Securus’ privacy practices; (2) will be given an opportunity to object; and (3) are not 24 bound to release any rights they may have to seek and obtain monetary damages or 25 other relief. 26 The proposed Settlement satisfies the standard for preliminary approval 27 because it: (1) falls within the range of possible approval; (2) is the product of serious, 28 informed, non-collusive negotiations; (3) has no obvious deficiencies; and (4) does - 16 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5375 Page 23 of 31 1 not improperly grant preferential treatment to class representatives or segments of 2 the class. Lopez v. Mgmt. & Training Corp., 2019 WL 6829250, at *5; see also 3 Sierra v. Kaiser Found. Hosps., No. 3:18-cv-00780-KSC, 2019 WL 5864170, at *9 4 (S.D. Cal. Nov. 7, 2019). 5 1. 6 The Settlement is a desirable result for the Class, and well within the range of 7 possible approval. To determine whether the Settlement is within the range of 8 possible approval, “courts primarily consider plaintiffs’ expected recovery balanced 9 against the value of the settlement offer.” In re Tableware Antitrust Litig., 484 F. 10 Supp. 2d 1078, 1080 (N.D. Cal. 2007). This requires the Court to evaluate the 11 strength of Plaintiff’s case. Id. The Settlement Is Within the Range of Possible Approval. 12 The proposed Settlement provides significant and meaningful injunctive relief 13 that is designed to eliminate virtually all risk of an inadvertent recording of attorney- 14 detainee phone calls, thereby protecting not only the state and federal constitutional 15 rights of the Class, but also of the public. See Section III, B, supra. 16 In contrast to the tangible, immediate benefits of the Settlement, the outcome 17 of continued litigation, trial, and appeal is uncertain and could add years to this 18 litigation. Securus has vigorously denied—and continues to deny—any wrongdoing, 19 and absent settlement, Securus would surely continue to defend this action 20 aggressively, with the opportunity to prevail at multiple different procedural 21 opportunities. Indeed, although Plaintiffs and their counsel believe in the merits of 22 their case, they recognize the numerous hurdles they could face should they continue 23 to litigate the action. For instance, with the Ninth Circuit’s order granting Securus’s 24 Rule 23(f) petition for review of the order granting class certification (and the Ninth 25 Circuit’s denial of Plaintiffs’ petition for interlocutory review of the order), Plaintiffs 26 faced the distinct possibility (whatever probabilities one might assign to it) that the 27 Ninth Circuit could reverse this Court’s order granting class certification. 28 - 17 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5376 Page 24 of 31 1 In addition, because the Court rejected Plaintiffs’ theory of strict liability on 2 summary judgment (and the Ninth Circuit denied Plaintiffs’ petition for interlocutory 3 review of this order), to recover any damages at trial Plaintiffs and other Class 4 Members would need to go beyond strict liability and prove some level of scienter. 5 This could be a challenging burden of proof as Securus has consistently maintained 6 that any call recordings that occurred were random and inadvertent, and resulted from 7 a software glitch. [See D.E. 32-1 ¶ 7; D.E. 62-1 at 9 n.5]. In short, there is a genuine 8 risk that absent settlement, Securus could prevail in motion practice, at trial, or on 9 appeal, resulting in no relief to Plaintiffs or the class. See Rodriguez v. W. Publ’g 10 Corp., 563 F.3d 948, 966 (9th Cir. 2009) (noting that the elimination of “[r]isk, 11 expense, complexity, and likely duration of further litigation” are factors that weigh 12 in favor of approval of settlement); see also Newman v. Stein, 464 F.2d 689, 693 (2d 13 Cir. 1972) (“[I]n any case there is a range of reasonableness with respect to a 14 settlement—a range which recognizes the uncertainties of law and fact in any 15 particular case and the concomitant risks and costs necessarily inherent in taking any 16 litigation to completion.”). 17 Considering the substantial risk of further litigation and the meaningful relief 18 provided under the Settlement, the Settlement falls well within the range of possible 19 approval. See McDonald v. CP OpCo, LLC, No. 17-cv-04915-HSG, 2019 WL 20 2088421, at *4 (N.D. Cal. Jan. 28, 2019) (“Additionally, difficulties and risks in 21 litigation weigh in favor of approving a class settlement.”); See also Schofield v. 22 Delta Air Lines, Inc., No. 18-cv-00382-EMC, 2019 WL 955288, at *5-*6 (N.D. Cal. 23 Feb. 27, 2019) (noting “the potential vulnerabilities in Plaintiff’s case” and finding 24 the settlement consideration adequate for preliminary approval despite being a “very 25 large discount on a possible recovery . . . based on statutory damages”). 26 While Plaintiffs are confident in the strength of their Class claims, Defendant 27 is equally confident in its defenses, and based on the foregoing Plaintiffs 28 acknowledge there is risk they could be unable to obtain a jury verdict against - 18 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5377 Page 25 of 31 1 Defendant. Even if they prevailed, Plaintiffs face the risk of lengthy appeals after 2 the proceedings were completed. Finally, there is a possibility that following the 3 appellate proceedings, the Court could decide to decertify the Class in whole or part, 4 presenting further risks and delays. 5 Accordingly, “Plaintiffs’ strong claims are balanced by the risk, expense, and 6 complexity of their case, as well as the likely duration of further litigation.” In re 7 Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 8 2672 CRB (JSC), 2016 U.S. Dist. LEXIS 148374, at *748 (N.D. Cal. Oct. 25, 2016). 9 “Settlement is favored in cases [such as this one] that are complex, expensive, and 10 lengthy to try.” Id. (citing Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 11 2009)). Thus, these risk and delay factors support approval of the Settlement. 12 2. 13 Settlements that are the result of hard-fought litigation and arms-length 14 negotiations among experienced counsel, such as this one, are entitled to an initial 15 presumption of fairness. See Rodriguez v. W. Publ’g Corp., 563 F.3d at 965 (“We put 16 a good deal of stock in the product of an arms-length, non-collusive, negotiated 17 resolution.”). The Settlement Is the Product of Arms-Length Negotiations. 18 The proposed Settlement is the product of informed arms-length negotiations 19 because it was preceded by four years of adversarial litigation involving substantial 20 discovery, including the exchange of multiple sets of written discovery and hundreds 21 of documents, and extensive motion practice, including various discovery motions, a 22 motion for partial summary judgment, two motions for class certification, and three 23 petitions for interlocutory review. See Ruch v. Am Retail Grp., Inc., No. 14-cv- 24 05352-MEJ, 2016 WL 5462451, at *2-*8 (N.D. Cal. Mar. 24, 2016) (holding that the 25 process by which the parties reached their settlement, which included “extensive pre- 26 mediation exchanges of information” and “another several weeks negotiating the 27 long form settlement agreement, with back and forth on the details of the settlement 28 . . . weigh[ed] in favor of preliminary approval”); See also Harris v. Vector Mktg. - 19 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5378 Page 26 of 31 1 Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011) 2 (settlement negotiations were not collusive where “the parties arrived at the 3 settlement after engaging in extensive discovery and after fully briefing their 4 respective motions for summary judgment”). At the time of Settlement, Plaintiffs 5 and Class Counsel had a full understanding of the strengths and weaknesses of 6 Plaintiffs’ claims and Defendant’s defenses and were able to assess whether the 7 change in business practices and injunctive relief would adequately benefit the class 8 when weighed against the risks of continuing litigation. See Harris, 2011 WL 9 1627973, at *8. 10 Moreover, the Settlement was reached only after the parties participated in two 11 in-person mediation sessions with an experienced mediator, and several months of 12 continued settlement negotiations supervised by the Ninth Circuit Mediator—all of 13 which “further suggests that the parties reached the settlement in a procedurally 14 sound manner and that it was not the result of collusion or bad faith by the parties or 15 counsel.” Id.; See also Manouchehri v. Styles for Less, Inc., No. 14cv2521 NLS, 2016 16 WL 3387473, at *5 (S.D. Cal. June 20, 2016) (“A mediator’s involvement during the 17 course of settling a class action is evidence of arms-length, non-collusive 18 negotiations”). Accordingly, the proposed Settlement is the product of serious, 19 informed, non-collusive negotiations and merits an initial presumption of fairness. 20 The recommendation of experienced counsel in favor of settlement also carries 21 a “great deal of weight” in a court’s determination of the reasonableness of a 22 settlement. In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1174 (S.D. 23 Cal. 2007). “The weight accorded to the recommendation of counsel is dependent on 24 a variety of factors; namely, length of involvement in litigation, competence, 25 experience in the particular type of litigation, and the amount of discovery 26 completed.” 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions §11:47 27 (4th ed. 2002). 28 - 20 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5379 Page 27 of 31 1 Plaintiffs and Class Members are represented by a leading Am Law 200 law 2 firm ( Foley & Lardner LLP) and other counsel with extensive experience in complex 3 litigation and class actions (the Law Offices of Ronald A, Marron, APLC and the 4 Law Office of Robert L. Teel). Class Counsel believe that the settlement provides a 5 fair, adequate, and reasonable recovery for Class Members. As Class Counsel are 6 experienced attorneys in this field, their opinion that the Settlement is fair, adequate, 7 and reasonable for Class Members also weighs in favor of approval of the Settlement. 8 Where, as here, extensive discovery was taken, the parties thoroughly litigated 9 the various issues (including the Court ruling on two motions for class certification 10 and a motion for summary adjudication), and trial is approaching, these factors 11 “weigh[] in favor of the proposed settlement.” Cervantez v. Celestica Corp., No. 12 EDCV 07-729-VAP (OPx), 2010 WL 2712267, at *5 (C.D. Cal. July 6, 2010). The 13 Parties took extensive discovery. 14 3. 15 The Settlement is also free of any defects. A court is likely to find a settlement 16 free from obvious deficiencies when it provides a real, immediate benefit to the class 17 despite numerous risks. See In re Tableware, 484 F. Supp. 2d. at 1080. The Settlement Has No Deficiencies. 18 As noted above, the injunctive relief afforded is significant in light of the 19 serious risks Plaintiffs face in obtaining relief for the Class. With Securus’ appeal 20 pending, Plaintiffs face the imminent risk that the Ninth Circuit could reverse class 21 certification or that they would face evidentiary hurdles in establishing that any 22 recordings were made with any requisite amount of scienter. Under the Settlement 23 Agreement, Class Members receive immediate, meaningful injunctive relief that 24 fully remedies Securus’s alleged recording of detainee-attorney calls. See Stathakos 25 v. Columbia Sportswear Co., No. 4:15-cv-04543-YGR, 2018 WL 582564, at *5 26 (N.D. Cal. Jan. 25, 2018) (approving injunctive settlement where “continued 27 litigation could not result in any greater injunctive relief to the Class and would only 28 deprive the class of immediate relief”). “Based on th[e] risk and the anticipated - 21 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5380 Page 28 of 31 1 expense and complexity of further litigation, the [C]ourt cannot say that the proposed 2 settlement is obviously deficient.” In re Tableware, 484 F. Supp. 2d at 1080. 3 4. 4 The Settlement does not give preferential treatment to any Class Member, and 5 provides injunctive relief that applies equally to every Class Member. While the 6 Settlement Agreement does authorize Plaintiffs to seek a service award for their role 7 as named plaintiffs in this lawsuit, “the Ninth Circuit has recognized that service 8 awards to named plaintiffs in a class action are permissible and do not render a 9 settlement unfair or unreasonable.” Harris, 2011 WL 1627973, at *9 (citing Stanton 10 v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003)). Additionally, although this Court 11 will ultimately determine whether Plaintiffs are entitled to such an award and the 12 reasonableness of the amount requested, the proposed award is not outside the range 13 of reasonableness. See e.g., Beck-Ellman v. Kaz USA, Inc., No. 3:10-CV-02134-H- 14 DHB, 2013 WL 10102326, at *7 (S.D. Cal. June 11, 2013) (approving $20,000 15 incentive award); Fulford v. Logitech, Inc., No. 08-CV-02041, 2010 WL 807448, at 16 *3 n.1 (N.D. Cal. 2010) (collecting cases awarding service payments ranging from 17 $5,000 to $40,000). 18 preliminary approval of the Settlement Agreement. The Settlement Does Not Provide Preferential Treatment. Thus, the absence of any preferential treatment supports 19 5. The Settlement Provides the Best Notice Practicable. 20 The second step of the approval process is to disseminate notice about the 21 Settlement to the Class. See Manual for Complex Litigation, supra, at §21.63. Class 22 members are entitled to receive the best notice practicable about the settlement. Fed. 23 R. Civ. P. 23(c)(2). 24 circumstances, to apprise interested parties of the pendency of the action and afford 25 them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & 26 Tr. Co., 339 U.S. 306, 314 (1950). “[T]he mechanics of the notice process are left to 27 the discretion of the court subject only to the broad ‘reasonableness’ standards Notice should be “reasonably calculated, under all the 28 - 22 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5381 Page 29 of 31 1 imposed by due process.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 120 (8th 2 Cir. 1975). 3 Here, the Settlement Administrator will be provided with the most current list 4 of names, email addresses, and physical addresses of Class Members based on 5 Defendant’s records. The settlement administrator will then email (and if necessary, 6 mail) the Notice to all known Class Members. The Notice directs Class Members to 7 the Settlement website, where they can find Settlement-related documents, including 8 the Settlement Agreement, the Notice, and other pertinent information. 9 Further, the proposed Class Notice is plain, easily understood, consistent with 10 the guidelines set forth by the Federal Judicial Center. See Judges’ Class Action 11 Notice and Claims Process Checklist and Plain Language Guide, Federal Judicial 12 Center (January 1, 2020), https://www.fjc.gov/content/judges-class-action-notice- 13 and-claims-process-checklist-and-plain-language-guide-0. 14 2020.] The Class Notice provides neutral, objective, and accurate information about 15 the nature of the litigation and the Settlement. The Class Notice describes the claims, 16 the Class Members, the relief provided under the Settlement, and Class Member’s 17 rights and option to appear at the Final Approval Hearing personally or through 18 counsel. The Parties submit that the Class Notice provides the best notice practicable 19 under the circumstances and will be highly effective in reaching the Class Members. [Last visited May 17, 20 6. Rule 23(b)(2) Does Not Afford an Opportunity to Opt Out. 21 As set forth in the Settlement Agreement and Notice, Class Members will have 22 an opportunity to object to the Settlement. See Teel Declaration, ¶15. While Class 23 Members must be given an opportunity to object to the Settlement, because the 24 opportunity to request exclusion from a proposed settlement is limited to members 25 of a (b)(3) class, there is no opportunity to opt out. Fed. R. Civ. Proc. 23 Advisory 26 Committee Notes – 2003 Amendment. Unlike the named Plaintiffs, Class Members 27 are not being bound under Fed. R. Civ. Proc. 23(e)(1)(B) and 23(e)(2) by the release, 28 and there is therefore nothing to opt out from. - 23 - 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5382 Page 30 of 31 1 Class Members’ rights are protected by the mechanisms provided under Rule 2 23 for a Rule 23(b)(2) class, namely approval by the Court after notice to the Class 3 and a fairness hearing at which dissenters can voice their objections, and the 4 availability of review on appeal. The Notice provides Class Members with individual 5 notice of the litigation and Settlement, ample opportunity to object, and an explicit 6 warning that their rights are being affected. Nothing more is required. 7 VI. THE PROPOSED SCHEDULE OF EVENTS 8 The last step in the settlement process is to hold a final approval hearing at 9 which the Court will make a final decision about whether to approve the Settlement 10 pursuant to Rule 23(e)(3). See Manual for Complex Litigation, supra, at § 21.63. 11 Plaintiff has submitted a proposed order concurrently with this motion, 12 pursuant to Local Civil Rule 7.2(c), setting forth the proposed schedule of events 13 from here through final approval. Plaintiffs believe the Court may enter the proposed 14 order without the need for a hearing, unless the Court has questions, given that the 15 Court will hold a final approval hearing once Class Members have been given notice 16 and an opportunity to weigh in. Specifically, Plaintiffs propose the following 17 schedule at the Court’s convenience: 18 19 20 21 22 23 24 25 26 27 Deadline for emailing the Notice and publishing the Notice webpage 15 calendar days after entry of the proposed order Deadline for filing a final approval motion and application for attorney fees and costs and service awards 45 calendar days after entry of the proposed order Deadline for Class Members to object to the Settlement 75 calendar days after entry of the proposed order Deadline for filing a reply in support of final approval and attorney fees and costs and service awards 7 calendar days before final approval hearing 28 - 24 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD Case 3:16-cv-01283-JM-MDD Document 175-1 Filed 05/18/20 PageID.5383 Page 31 of 31 1 Final Approval Hearing Approximately 100 calendar days after entry of the proposed order, at the Court’s convenience 2 3 4 Plaintiffs respectfully submit that this proposed schedule complies with Rule 23 and 5 the Class Action Fairness Act while securing timely relief for Class Members. 6 VII. CONCLUSION 7 For the reasons stated above, Plaintiffs respectfully request that this Court 8 grant their motion for preliminary approval and enter an order substantially in the 9 form of their proposed order filed concurrently herewith: (1) certifying the Class for 10 purposes of the Settlement; (2) appointing Juan Romero, Frank Tiscareno, and 11 Kenneth Elliott as class representatives; (3) appointing Foley & Lardner LLP, the 12 Law Offices of Ronald A. Marron, APLC, and the Law Office of Robert L. Teel as 13 class counsel; (4) granting preliminary approval of the proposed Settlement 14 Agreement; (5) and scheduling the final approval hearing. 15 16 17 Dated: May 18, 2020 18 19 20 21 22 23 24 25 26 Respectfully submitted, By: s/ Robert L. Teel Robert L. Teel LAW OFFICE OF ROBERT L. TEEL Robert L. Teel FOLEY & LARDNER LLP Eileen R. Ridley Nicholas J. Fox THE LAW OFFICE OF RONALD A. MARRON Ronald A. Marron Attorneys for Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliot and the Class 27 28 - 25 4833-4843-8204.1 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 16-CV-1283-JM-MDD