SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

IAN DOUGLAS, individually, as a representative of the class, and on behalf of the general public,

Plaintiff,

vs.

DHI GROUP, INC., and DICE INC.,

Defendants.
Case No. 2018-1-CV-331732

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on August 2, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action brought under the Fair Credit Reporting Act (“FCRA”). According to the allegations of the Class Action Complaint (“Complaint”), filed on July 26, 2017, defendants DHI Group, Inc. and Dice Inc. (collectively, “Defendants”) operate a web service called “Dice Open Web” that searches the internet and creates profiles on people based on information scraped from various sources, including social media sites. (Complaint, ¶ 2.) Defendants then assemble that information into a profile without making any effort to verify the accuracy of the information. (Ibid.) The profiles are sold to recruiters and employers to use for evaluating consumers for jobs. (Id. at ¶ 11.)

The Complaint sets forth the following counts: (1) Disseminating Consumer Reports Without a Permissible Purpose; (2) Failure to Obtain Certification of a Permissible Purpose; (3) Failure to Obtain Certification of Disclosure, Authorization, Adverse Action Procedures and Equal Employment Opportunity Laws; (4) Failure to Provide Summary of Consumer Rights; (5) Failure to Provide Notice to Users of FCRA Responsibilities; and (6) Failure to Provide Consumers’ Full Files Upon Request.

The parties have reached a settlement. On March 11, 2019, the Court granted preliminary approval of the settlement. Plaintiff has now filed motions for final approval and for attorneys’ fees, costs, and a class representative service payment.

II. LEGAL STANDARD

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “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.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

III. DISCUSSION

The case has been settled on behalf of the following class:

All individuals about whom Defendants created an Open Web profile and (a) for whom a third party used a feature on the Open Web profile to communicate with the individual, or (b) the individual requested deletion of their Open Web profile. The Class Period is from July 26, 2012 to the date that the Class List is prepared.

As discussed in connection with the motion for preliminary approval, Defendant will pay a non-reversionary amount of $1,000,000. This amount includes an incentive award of $5,000 for Plaintiff, up to $333,333 in attorneys’ fees, costs of $32,000, and administration expenses of $75,000. The settlement payments will be distributed evenly to class members who submit a claim form, with a maximum individual recovery of $500. However, if enforcing the $500 cap results in more than 25% of the settlement payment ($250,000) being donated to the cy pres recipient (Public Justice), the maximum individual benefit payment will be increased until the cy pres donation is equal to 25% of the total settlement payment. The settlement also includes several non-monetary benefits in the form of revised business practices.

On March 26, 2019, the settlement administrator, Angeion Group, LLC, sent email notices to the 20,290 individuals on the class list. (Declaration of Settlement Administrator Regarding Settlement Administration, ¶ 4.) On the same date, Angeion also started a targeted Facebook advertisement campaign and established a settlement website and toll-free hotline. (Id. at ¶¶ 6, 7, and 9.) The deadline to submit a claim form was June 24, 2019. (Id. at ¶ 11.) As of July 12, 2019, Angeion has received 1,722 claim form submissions. (Ibid.) There have been two requests for exclusion and no objections. (Id. at ¶¶ 12-13.) Plaintiff states the claims rate is about 7.97% and class members who made a claim will receive approximately $330 each.
The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.
Plaintiff requests a service award of $5,000 for Ian Douglas.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The class representative has submitted a declaration in which he states he provided information to counsel, reviewed and provided input on the Complaint, gathered documents and provided information for discovery, and stayed informed regarding settlement negotiations. (Declaration of Ian Douglas, ¶ 7.) He states he spent 40-50 hours participating in the litigation. (Id. at ¶ 10.) The Court finds the service award is warranted and it is approved.

The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiff’s counsel requests attorneys’ fees in the amount of $333,333 (1/3 of the total settlement amount). Plaintiff’s counsel provides evidence demonstrating a lodestar of $214,340.35, which results in a multiplier of 1.56. (Declaration of E. Michelle Drake, ¶ 24.) The Court finds the fees requested are reasonable and they are approved.
Plaintiffs request $31,098.08 for actual incurred costs. (Declaration of E. Michelle Drake, ¶ 24.) The Court approves the requested cost amount.

The motion for final approval of class action settlement is GRANTED.

The Court now sets a compliance hearing for February 21, 2020 at 10:00 a.m. in Department 5. At least ten court days before the hearing, class counsel and the settlement administrator must submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the court’s attention. Counsel must also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). Counsel may appear at the compliance hearing telephonically.

The Court will prepare the final order and judgment after it discusses with counsel at the hearing: (1) the period of time settlement checks can be cashed before they become void and are distributed to the cy pres recipient; (2) a declaration, if any, setting forth facts that support additional costs for travel to the final approval hearing.