Wage Law has more on Edelist v. First USA Bank, N.A., no. G035215 (Jun. 8, 2006), an unpublished opinion in which the Court of Appeal (Fourth Appellate District, Division Three) affirmed a final approval order. The court disagreed with the objector's concerns about whether the agreed-to injunctive relief actually benefited the class and whether the cy pres component of the settlement was appropriate. The court also affirmed the attorneys' fees award with a 1.75 multiplier, representing 32% of the value of the settlement to the class 3.9% of the cash component of the settlement ($7 million) plus the injunctive relief component (valued at $50 million). The decision, while unpublished, is worth a read.
UPDATE: Welcome to the many people who found this post by searching for "Edelist settlement" in Google or another search engine. The plaintiffs in the Edelist case are represented by Strange & Carpenter, a law firm in Los Angeles. Inquiries about the case should be addressed to Ms. Jill Hood of that firm. Ms. Hood's phone number is (310) 207-5055 and her email address is jhood@linkline.com. Please do not contact me. I am not involved in this case and cannot help you.
UPDATE #2: I continue to receive emails and comments about this case, even though I am not involved in it. Perhaps this will help. Here is the full text of the Court of Appeal's unpublished opinion dated June 2006, which was the subject of my original blog post (and which is no longer available online at the Court of Appeal's website). It provides further background information about the terms of the settlement, including the injunctive relief provisions valued at $50 million. I also edited my original post to more accurately reflect the terms of the settlement as described in the opinion.
Not Reported in Cal.Rptr.3d, 2006 WL 1555765 (Cal.App. 4 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 976, 977)
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Court of Appeal, Fourth District, Division 3, California.
Daniel EDELIST, et al., Plaintiffs and Respondents,
v.
FIRST USA BANK, N.A. et al., Defendants and Respondents;
Rosie M. Ross, Objector and Appellant.
No. G035215.
(Super.Ct.No. 02CC00294).
June 8, 2006.
As Modified on Denial of Rehearing July 10, 2006.
Appeal from orders of the Superior Court of Orange County, Jonathan H. Cannon, Judge. Affirmed.
Kendrick & Nutley, J. Garrett Kendrick, and C. Benjamin Nutley for Objector and Appellant.
Morrison & Foerster, Robert S. Stern, Dean J. Zipser, and Marilyn D. Martin-Culver for Defendants and Respondents.
Strange & Carpenter, Brian R. Strange, Gretchen Carpenter, Law Offices of Barry L. Kramer and Barry L. Kramer for Plaintiff and Respondent.
OPINION
SILLS, P.J.
*1 Rosie Ross, an absent class member, filed objections to the proposed settlement of this class action suit and the request for attorney fees. The trial court approved the settlement and awarded attorney fees in the amount of $2,245,250. Ross appeals both orders; we affirm.
FACTS
Daniel Edelist filed this class action complaint on behalf of himself and all credit card holders with First USA Bank “who incurred improper overlimit fees, improper finance charges, improper late fees, and other penalties as a result of Defendant's wrongful practices····” The first amended complaint alleged First USA's billing statements set forth minimum payment amounts which were insufficient to avoid the assessment of an overlimit fee, even if paid timely, and the billing statement failed to inform the cardholder what amount of payment would avoid the imposition of an overlimit fee. The complaint also alleged that First USA violated the terms of its cardmember agreements by charging multiple overlimit fees based on a single transaction and imposing excess finance charges for payments received after 10:00 a.m. on the stated due date.
First USA answered the complaint. The parties engaged in discovery and, ultimately, settlement negotiations. About fifteen months after the complaint was filed, Edelist submitted a proposed settlement agreement to the trial court for preliminary approval. In the proposed settlement agreement, First USA agreed to (1) assess overlimit fees as of the payment due date for card holders who were overlimit at the end of the prior cycle, rather than assessing them if the card holder was overlimit at any time during the current payment cycle, and (2) extend the posting time for payments received on the due date from 10:00 a.m. to 1:00 p.m. First USA agreed to maintain these new policies for eighteen months.
The proposed settlement agreement divided the class plaintiffs into two groups: The Overlimit Fee Class consisted of First USA credit card holders during the defined period “who, in one or more monthly billing cycles, (1) timely paid at least the ‘Minimum Payment’ amount shown as due for the monthly billing cycle, (2) made no purchases/cash advances or made purchases/cash advances which totaled less than or equal to the ‘Available Credit’ for the billing cycle, and (3) were assessed an overlimit fee during the billing cycle.” The Posting Class consisted of First USA credit card holders who, during the defined period, “incurred finance charges and/or late fees or other fees as a result of First USA's failure to credit their payments on the day they were received.”
First USA agreed to create a $7 million settlement fund, which was to constitute its entire liability. Edelist's expert valued the injunctive relief at $50 million. Costs of administration, attorney fees and court costs were to be deducted from the settlement fund. The agreement allocated 96 percent of the net settlement fund to the Overlimit Fee Class on a per account basis. The remaining 4 percent was allocated to the Posting Class, but was to be distributed as a cy près award to charitable organizations “[b]ecause the [P]osting [C]lass in this case is difficult if not impossible to ascertain, the damages are individually small, and the settlement recoveries would be too small to justify the costs of distribution····”
*2 The trial court postponed preliminary approval of the settlement agreement, asking Edelist to explain why First USA could not continue with the settlement terms indefinitely rather than for only eighteen months. It also wanted an estimate of the distribution to individual Overlimit Fee Class members and a plan for any surplus from that portion.
Edelist explained that “the injunctive relief component of this settlement is a bonus for the class, which defendant was under no obligation to agree to. With regard to the assessment of overlimit fees, which constitutes the great bulk of the injunctive relief, it is important to note that the unfairness alleged in the complaint did not lie with the assessment of inherently unfair or improper fees, but rather, with the failure to clearly describe the conditions under which such fees would be imposed. Defendant has not only agreed to clarify its contractual obligations to properly reflect its actions, but additionally agreed to follow the procedures asked for by plaintiffs for a period of at least 18 months.”
In response to the trial court's concerns, Edelist amended the proposed notice to the Overlimit Fee Class to include an estimate of individual cash recovery at approximately $2 to $3 per account. The parties agreed that the cy près award would be distributed “[half] to a charitable organization designated by class counsel and half to charitable organizations designated by First USA. Class counsel intended to designate Public Counsel in Los Angeles as its recipient. First USA intended to designate First State Community Loan Fund, an institution “that offers 0% loans to non-profits for the development of affordable housing in Delaware,” as the recipient of 28.5 percent of the fund; Claymont Community Center, an organization “providing health, social service, educational, and job training programs to low-income individuals and families in Northern Delaware,” as the recipient of 18 percent of the fund; and Latin American Community Center, an organization “serving the needs of the Hispanic population in ··· Wilmington, Delaware,” as the recipient of 3.5 percent of the fund.
The trial court issued preliminary approval of the settlement, conditionally certifying the class, designating Edelist as its representative, and finding the settlement was in the best interests of the class, “subject to the right of members ··· to be heard on the terms and the reasonableness of the Settlement at the Final Approval Hearing.” Notice of the proposed settlement was sent to 1 .9 million class members.
Rosie Ross, a class member, filed objections to the settlement, claiming it did nothing to correct the result of past conduct, the cy près provisions benefited a small geographical area rather than members of a national class, and the request for attorney fees was unreasonably large. Notwithstanding, the trial court issued final approval of the settlement in October 2005, reserving the issue of attorney fees to December.
*3 At the attorney fee hearing, class counsel requested attorney fees in the amount of $3.5 million, which “represents a multiplier of only 3.06 applied to Class Counsel's hourly lodestar on this case, or a percentage fee of only approximately 6% of the value of the settlement.” After hearing argument, the trial court accepted class counsel's hourly lodestar of $1,283,000 but reduced the multiplier to 1.75 for a total attorney fee award in the amount of $2,245,250. The trial court also awarded costs of $24,874.65 and made an incentive award of $2,500 to Edelist.
DISCUSSION
Fairness of Settlement
The settlement of a class action requires court approval to protect the class members from the possibility of fraud, collusion or unfairness. ( Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800-1801, 56 Cal.Rptr.2d 483.) The trial court has broad discretion to determine whether the settlement is fair. Relevant factors are: “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through 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. [Citation.]” ( Id. at p. 1801, 56 Cal.Rptr.2d 483.)
We review the trial court's determination of fairness for an abuse of discretion, while giving “[g]reat weight [to] the trial judge's views. The trial judge ‘ “is exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly.” ‘ [Citation.] To merit reversal, both an abuse of discretion by the trial court must be ‘clear’ and the demonstration of it on appeal ‘strong.’ [Citations.]” ( 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145-1146, 102 Cal.Rptr.2d 777.)
Ross first contends the injunctive relief obtained by the settlement is not as significant as Edelist claims. Although Edelist claimed the basic unfairness with First USA's practices was a failure to explain its overlimit policies to its cardholders, nowhere in the agreement is there a requirement that First USA change its billing statement to clarify or explain those policies.
Edelist responds that although the overlimit fees were not inherently unfair or illegal, they were imposed pursuant to an ambiguous credit card agreement. During the fairness hearing, class counsel explained that it was standard practice for credit card companies to impose overlimit fees “so that if you are over on the first day or any time during the month, you will get an overlimit fee, even if you got one the preceding month.” But they convinced First USA that the language used in its credit card agreement “could be interpreted such as to not permit that. They have corrected that language.” [¶] So not only did we get First USA to correct the language, but ··· they also agreed to an additional benefit to make up for past wrongdoing of giving customers basically a ··· free ride for a period of 18 months where even if somebody would be in violation of the contractual provision, they still will wait until the balance due date, which may be the 20th day or 25th day in the billing cycle, before actually assessing that limit.” [¶] So, basically, what they've agreed to do for a period of 18 months is not to enforce a contractual right that they have a right to do.”
*4 Thus, First USA could have solved the problem by simply agreeing to clarify its agreement to conform to its practices. Instead, First USA agreed to maintain consumer friendly practices for at least 18 months. Whether the settlement agreement actually calls for clarification is unimportant because First USA did clarify the overlimit procedure. Ross does not dispute the actual change, just the lack of its representation in writing.
Ross next points out that although First USA agreed to change its posting time for payments from 10:00 a.m. to 1:00 p.m., it had a de facto practice of crediting payments if they were received within 24 hours past the deadline. Ross complains because First USA is not contractually bound to continue the de facto policy, the settlement agreement, which imposes a more restrictive policy, does not benefit the class.
Because the 24-hour grace period is voluntary, First USA has no obligation to continue it notwithstanding the settlement agreement. If First USA decides to discontinue the grace period (which it has every right to do), the terms of the settlement agreement allow three more hours within which cardholders' payment will be credited. This is a benefit to the class.
Ross's final challenge on the fairness of the settlement is an attack on the cy près provisions. She complains the money will benefit a certain population of Los Angeles County and the state of Delaware rather than the national class of First USA credit card holders.
The cy près doctrine (or fluid recovery doctrine, as it is called in the class action context) allows the court “to award damages in a way that benefits as many of the class members as possible” when it is not possible or practical to compensate them individually. ( In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 716, 37 Cal.Rptr.3d 660.) Under such circumstances, the fluid class recovery should put the funds to the next best use, even if that results in no compensation to some class members and benefits to some persons not in the class. ( In re Vitamin Cases (2003) 107 Cal.App.4th 820, 826, 132 Cal.Rptr.2d 425.)
Ross cites two cases that have rejected class action fluid recoveries, but both are distinguishable from the one before us. In Six (6) Mexican Workers v. Arizona Citrus Growers (9th Cir.1990) 904 F.2d 1301, Arizona Citrus Growers appealed from a class action awarding approximately $2 million in statutory damages for violations of the Farm Labor Contractor Registration Act. The class consisted of 1349 undocumented Mexican workers who were employed during the 1976-1977 picking season. The trial court ordered that any unclaimed funds would be distributed through a cy prs award to the Inter-American Foundation for indirect distribution in Mexico. The Ninth Circuit remanded the case for modification of the distribution provisions because the group benefited by the award was “too remote from the plaintiff class.” ( Id. at p. 1308.)
Six (6) Mexican Workers was not a settlement case. “[T]he use of a cy pres distribution remains controversial and unsettled in an adjudicated class action context [but is] proper in connection with a class settlement, subject to court approval of the particular application of the funds.” (4 Conte & Newberg, Newberg on Class Actions, § 11.20, Ch. 11 (4th ed.2002).)
*5 Ross also cites Mirfasihi v. Fleet Mortg. Corp. (7th Cir.2004) 356 F.3d 781. There, the class action was brought on behalf of persons whose home mortgages were owned by Fleet and whose personal and financial information was transmitted to telemarketing companies. A small percentage of the class members purchased unwanted financial services from the telemarketers as a result of deceptive practices. Fleet agreed to disgorge its profits, but if they were distributed among the entire class, each individual would recover less than the amount of postage. Accordingly, the proposed settlement awarded nothing to the large majority of the class members and all to those who were actually victimized by the deceptive practices. The trial court approved the settlement.
On appeal, the class representative argued the settlement should be upheld because although the majority of the class received no monetary recovery, they received a cy près remedy. The court rejected that argument, commenting, “In the class action context the reason for appealing to cy pres is to prevent the defendant from walking away from the litigation scot-free because of the infeasibility of distributing the proceeds of the settlement ··· to the class members. There is no indirect benefit to the class from the defendant's giving the money to someone else.” ( Mirfasihi v. Fleet Mortg. Corp., supra, 356 F.3d at p. 784.) The cy près discussion turned out to be dicta, however. The court reversed the approval of the settlement, but not because of the claimed cy près feature. It found the class recovery was seriously undervalued; had it been correctly valued, it would have been feasible to distribute a recovery to all class members.
In re Vitamin Cases, supra, 107 Cal.App.4th 820, 132 Cal.Rptr.2d 425 supports the trial court's approval of the settlement here. Vitamin Cases arose from allegations of price fixing in the sale of vitamin products, violations of both the Cartwright Act and the unfair competition law. There were two classes: the Consumer Class, consisting of individual purchasers for their own use; and the Commercial Class, consisting of wholesale purchasers. The Commercial Class was awarded $42 million, to be distributed to the class members. The Consumer Class was awarded $38 million, but the entire amount “was to be distributed to charitable, governmental and nonprofit organizations that promote the health and nutrition of consumer class members or that otherwise further the purposes underlying the lawsuit.” ( Id. at p. 824, 132 Cal.Rptr.2d 425.) The court approved the settlement, observing that the number of Consumer Class members was estimated to be 30 million and the amount of individual recovery “would surely be quite small.” ( Id. at p. 830, 132 Cal.Rptr.2d 425.)
A fluid recovery is appropriate here because it affects only 4 percent of the class, and it is undisputed that individual recoveries would be miniscule. Ross complains, however, that the chosen charities have nothing to do with the class or the underlying purposes of the lawsuit. Edelist disagrees, pointing out that First USA's head office is in Delaware, making the charities located there geographically appropriate. Furthermore, the charities provide a variety of services, i.e., small business loans, affordable housing, and health, social, educational and job-training programs for low income persons. It is reasonable to assume that some Posting Class members would benefit from those services.
Attorney Fees
*6 Ross claims the attorney fee award of over $2 million is excessive and unjustified. “In reviewing a challenge to a trial court decision applying a lodestar multiplier to an award of attorney fees, the standard of review is abuse of discretion, since the trial judge was presumably in the best position to determine the value of the services rendered by counsel····” ( Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 622, 98 Cal.Rptr.2d 388.)
The lodestar method originated with Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303. The trial court must first determine “a touchstone or lodestar figure” based on time spent and hourly rate. Then the trial court may augment or diminish the lodestar by considering several factors: “ ‘(1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.’ [Citation.]” ( Ramos v. Countrywide Home Loans, Inc., supra, 82 Cal.App.4th at p. 622, 98 Cal.Rptr.2d 388.)
Class counsel presented voluminous documentation of its hours spent. The trial court accepted the evidence, stating, “Counsel has provided time records to justify the hours claimed. The time sheets appear to reflect a reasonable amount of hours spent on this litigation.” The trial court initially commented that the hourly rates for the three lawyers ($425-$500) “seemed a bit high”; but class Counsel submitted evidence that these were the approved rates for this type of litigation and the lawyers for First USA charged up to $725 per hour. The trial court was apparently convinced by this evidence, and its acceptance of the claimed lodestar was not an abuse of discretion.
The trial court tentatively intended to impose a multiplier of 1.5, but after oral argument and the submission of additional evidence in the form of declarations, the trial court ordered a multiplier of 1.75. Class counsel submitted evidence that the questions presented were novel and difficult, requiring considerable skill to negotiate and determine damages. The risk factors were high because the chances of prevailing were slim. Class counsel invested much time and research before the claim was considered viable and asserted that the successful recovery was likely due in large part to its expertise in the practices and procedures used by credit card issuers when processing payments.
Again, the trial court was apparently convinced by class counsel's evidence, because it raised the multiplier to 1.75. This resulted in an attorney fee award that is 32 percent of the cash settlement fund and 3.9 percent of the calculated value of the settlement ($57 million total). It did not, however, articulate its reasons for the multiplier on the record. Ross argues this failure renders the award subject to reversal and remand as a matter of law.
*7 Several cases have expressed concern where a trial court fails to state which factors it relied on when fixing a multiplier. ( Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 112 Cal.Rptr.2d 284; Ramos v. Countrywide Home Loans, supra, 82 Cal.App.4th 615, 98 Cal.Rptr.2d 388.) In each of these cases, however, the appellate court was unable to find support for the multiplier in the record. We are not faced with that situation. This record contains ample evidence to support the trial court's choice of a multiplier, and on that basis we find no abuse of discretion in the award.
Incentive Award
Ross contends the incentive award to Edelist must be reversed because it is unsupported by any evidence. We disagree.
Edelist requested an incentive award of $5000 in his request for attorney fees and costs. In a footnote contained in her preliminary opposition, Ross pointed out there was no ‘justification or support’ for the requested award. The trial court agreed the request was too high, noting in its tentative ruling: ‘Counsel has not offered any evidence justifying the $5000.00 incentive award. There is no indication Mr. Edelist participated in this litigation whatsoever (with the exception of lending his name to the caption).’ The trial court reduced the award to $2500.
The trial court apparently felt the $2500 incentive award was an appropriate amount for a plaintiff lending his name to the caption in this case. The scant case law on the subject supports the trial court's conclusion. In Staton v. Boeing Company (9th Cir.2003) 327 F.3d 938, the court refused to approve a class action settlement because, inter alia, it awarded the named class representatives damages averaging sixteen times more that the amount to be received by each unnamed class member. The total payment to the class of 15,000 was over $7 million, and “29 named class representatives are designated to receive payments totaling $890,000.” ( Id. at p. 977.) The court found the “large differential” in damages could not stand on the record before it. ( Id. at p. 978.)
The Staton court remarked, however, that “named plaintiffs, as opposed to designated class members who are not named plaintiffs, are eligible for reasonable incentive payments,” pointing out that it had approved incentive awards of $5000 each to two named plaintiffs in In re Mego Fin. Corp. Sec. Litig. (9th Cir.2000) 213 F.3d 454. ( Staton v. Boeing Corporation, supra, 327 F.3d at pp. 976-977.) In Mego, the incentive awards were approved without discussion; the opinion revealed no evidence of the extent of the named plaintiffs' involvement in the litigation. ( In re Mego Fin. Corp. Sec. Litig., supra, 213 F.3d 454.)
In In re Continental Illinois Sec. Litig. (7th Cir.1992) 962 F.2d 566, the court upheld the trial court's refusal to approve a $10,000 award to a named plaintiff whose involvement consisted of a few hours of deposition and a “slight risk of being made liable for sanctions, costs, or other fees should the suit go dangerously awry.” ( Id. at pp. 571-572.) The court observed that the risk was slight “because the case was a clear winner and ··· if the named plaintiff had dropped out because he couldn't hope to be compensated for his modest efforts there were plenty of others to take his place without demanding compensation. The implicit reasoning is that the market would have produced a named plaintiff willing to charge a price of zero····” ( Id. at p. 572.) The court observed, however, that an incentive award was not per se inappropriate. “Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers' nonlegal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable.” ( Id. at p. 571.)
Here, there was considerable risk that the case would be unsuccessful, thus exposing Edelist to costs or sanctions. Where the litigation resulted in a $7 million settlement fund and the value of the injunctive relief as much as $50 million, the modest $2500 incentive award to Edelist for merely “lending his name to the caption” was not an abuse of discretion.
DISPOSITION
The orders approving the settlement and awarding attorney fees are affirmed. Respondents are entitled to costs on appeal.
WE CONCUR: RYLAARSDAM and ARONSON, JJ.
This weekend I attended the