UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-h-rbb Document - Filed // Page of 0 DOYLE LOWTHER LLP WILLIAM J. DOYLE II (0) JOHN A. LOWTHER IV (0000) JAMES R. HAIL (0) SAMANTHA A. SMITH () KATHERINE S. DIDONATO (0) 000 Willow Creek Road, Suite 0 San Diego, CA () -0 () - fax [additional counsel on signature page] Attorneys for Plaintiffs and the Class UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 0 TERRY HORVATH, JEREMY FORSYTHE, RONALD JOHNSON, and FRED MONTGOMERY, individually and on behalf of all others similarly situated; v. Plaintiffs, LG ELECTRONICS MOBILECOMM U.S.A., INC., a California corporation; Defendant. Case No. :-cv-0-h-rbb CLASS ACTION Plaintiffs Memorandum of Points and Authorities in Support of Motion For Final Approval of Settlement Date: January, 0 Time: 0:0 a.m. Court: Hon. Marilyn L. Huff _

2 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 TABLE OF CONTENTS I. INTRODUCTION... II. SUMMARY OF THE LITIGATION... A. The Parties Actively Litigated This Complex Action For Years... B. The Parties Extensive Settlement Negotiations... C. Preliminary Approval... III. SETTLEMENT BENEFITS... A. Principal Settlement Terms... B. Notice and Administrative Costs... C. Plaintiff Reimbursements and Attorneys Fees and Expenses... IV. THE STANDARDS FOR JUDICIAL APPROVAL OF CLASS ACTION SETTLEMENT ARE SATISFIED... V. EVALUATION OF THE SETTLEMENT... A. The Strength of Plaintiffs Case and the Substantial Settlement Benefits, When Balanced Against the Risk, Expense, Complexity and Likely Duration of Further Litigation, Support Approval of the Settlement... B. Plaintiffs Engaged in Sufficient Pretrial Discovery and Proceedings to Identify the Strengths and Weaknesses of Their Case and Weigh the Propriety of Settlement... 0 C. Experienced Counsel Recommend Approval of the Settlement... D. Initial Reaction to the Settlement Has Been Overwhelmingly Positive... VI. THE NOTICE PLAN APPROVED BY THE COURT SATISFIES DUE PROCESS AND HAS BEEN FULLY AND SUCCESSFULLY IMPLEMENTED... VII. CERTIFICATION OF THE SETTLEMENT CLASS IS PROPER... A. The proposed Settlement Class meets Rule (a) s requirements... B. The proposed Settlement Class satisfies Rule (b)()... VIII. CONCLUSION... i

3 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 CASES TABLE OF AUTHORITIES Beck-Ellman v. Kaz U.S.A., Inc., 0 U.S. Dist. LEXIS 0 (S.D. Cal. Jan., 0)...,, Fulford v. Logitech, Inc., 00 U.S. Dist. LEXIS 0 (N.D. Cal. Mar., 00)... Gardner v. GC Servs., LP, 0 U.S. Dist. LEXIS 0 (S.D. Cal. Apr., 0)...0 Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )..., 0,, 0 In re Consol. Pinnacle West Secs. Litig., F.d (th Cir. )... In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., U.S. Dist. LEXIS (C.D. Cal. June 0, )... Johansson-Dohrmann v. CBR Sys., Inc., 0 U.S. Dist. LEXIS 0 (S.D. Cal. July, 0)... Marshall v. Holiday Magic, Inc., 0 F.d (th Cir. )... Officers for Justice v. Civil Service Comm., F.d (th Cir. )..., Rodriguez v. West Publ g Corp., F.d (th Cir. 00)... Shames v. Hertz Corp., 0 U.S. Dist. LEXIS (S.D. Cal. Nov., 0)... Silber v. Mabon, F.d (th Cir. )... Staton v. Boeing Co., F.d (th Cir. 00)... Thurston v. Bear Naked, Inc., 0 U.S. Dist. LEXIS 0 (S.D. Cal. July 0, 0)... Torrisi v. Tucson Elec. Power Co., F.d 0 (th Cir. )..., 0 Van Bronkhorst v. Safeco Corp., F.d (th Cir. )... ii

4 Case :-cv-0-h-rbb Document - Filed // Page of Wilson v. Airborne, Inc., 00 U.S. Dist. LEXIS 0 (C.D. Cal. Aug., 00)... Wolin v. Jaguar Land Rover N. Am., LLC, F.d (th Cir. 00)... Yeoman v. Ikea U.S. West, Inc., 0 U.S. Dist. LEXIS (S.D. Cal. May, 0)... STATUTES U.S.C.... RULES Federal Rule Of Civil Procedure... passim 0 0 iii

5 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 Plaintiffs submit this Memorandum in Support of their Motion for Final Approval of the class action settlement this Court preliminarily approved on November, 0. I. INTRODUCTION This Settlement is the product of nine months of extensive, arms length negotiations. These discussions were directly between the Parties and overseen and assisted by Catherine A. Yanni, Esq., a highly regarded private mediator with extensive knowledge and expertise in the field of consumer class action litigation, with particular expertise with defective consumer products, and electronic devices. On November, 0, the Court granted Preliminary Approval of the Settlement and approved the proposed notice program. See Court s Order dated November, 0 (ECF No. ). For the reasons set forth, the Settlement is an outstanding result for the Settlement Class. Without any reduction for fees or cost to Settlement Class Members, the Settlement provides a $.00 cash payment to each Settlement Class member who can verify he or she is a resident of the United States, purchased a qualifying phone between April, 0 and November, 0, notified LG Electronics MobileComm, U.S.A., Inc. ( LGEMU ) or T-Mobile U.S., Inc. ( T-Mobile ) about the Shutdown Defect or Screen Bleed Defect, and continued to experience similar problems after notifying either of them. Additionally, Settlement Class The form of a Final Approval Order shall be submitted to the Court once the deadlines for opt-outs and objections have passed.

6 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 Members who received multiple replacement Gx Phones with the same alleged defect are entitled to make multiple claims. See Settlement Agreement and Release dated October, 0 ( Settlement Agreement ) (ECF No. -). There is no cap or limit on the number of claims, or total amount of compensation, that can be paid to the Settlement Class Members. As the Settlement meets the standard for final approval, Plaintiffs request the Court grant this motion. II. SUMMARY OF THE LITIGATION The Joint Declaration of John Lowther and William J. Doyle II in Support of Final Approval of Settlement and in Support of Reimbursement of Attorneys Fees and Expenses ( Joint Declaration ) is an integral part of this submission. Plaintiffs refer the Court to the Joint Declaration for a detailed description of the factual and procedural history of the case, the asserted claims, counsels investigation and settlement negotiations, the numerous risks and uncertainties presented and overcome in this Litigation, and other factors showing this Settlement is fair, reasonable, and adequate. A. The Parties Actively Litigated This Complex Action For Years In July 0, Plaintiffs filed their initial complaint against LGEMU. See Joint Declaration. Plaintiffs, through their counsel, conducted extensive research, discovery and investigation during the prosecution of the Litigation, including: () investigating and drafting two complaints detailing the defects in All capitalized terms shall have the same meaning as in the Settlement Agreement, unless otherwise indicated.

7 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 Gx Phones; () briefing and arguing against a comprehensive motion to dismiss; () inspecting and analyzing many tens of thousands of pages of documents, technical data, and voluminous spreadsheets from both LGEMU and T-Mobile, constituting approximately one gigabyte of data; () conducting extensive discovery and meet and confer discussions, including initiating an action in Washington State federal court to enforce a subpoena against non-party wireless carrier T-Mobile; () working with expert consultants to obtain and process LGEMU s electronic documents and identify the mechanical causes of the Shutdown Defect and Screen Bleed Defect in Gx Phones; () developing theories of proof in preparation for class certification; () conducting numerous interviews of Gx Phone owners as part of fact discovery; and () engaging in multiple rounds of settlement discussions and conducting extensive due diligence into the proposed remedies, including substantial investigation to determine whether the proposed relief would in fact cure the alleged Gx Phone defects. Id. at. B. The Parties Extensive Settlement Negotiations After more than a year of litigation and discovery, the Parties agreed to participate in voluntary mediation with Catherine Yanni of JAMS. Joint Declaration. The Parties participated in two formal, face-to-face mediation sessions and numerous settlement conference calls, both with and without Ms. Yanni s participation, and informal discussions between the Parties. Id. at 0-. The settlement discussions were rigorous, hard-fought, and spanned several months. Id. It was only as a result of substantial efforts by the Parties, their

8 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 counsel, and Ms. Yanni that a tentative settlement was reached. Id. The Parties thereafter engaged in the time-consuming process of negotiating the precise language of the Settlement Agreement, which required extensive, consultation and effort, altogether taking nearly seven months to complete. Id. at -. At all times, the Parties negotiated at arms length and in an adversarial manner. Id. at 0-,. And the Parties scrupulously avoided any discussion, negotiation, or mediation of fees, costs, or class representative remuneration until after the Settlement Class relief and compensation had been reached in principle and secured, and even then did not result in an agreement on the amount of fees to be paid to Class Counsel. Id. at. C. Preliminary Approval On November, 0, after the Parties agreed to the final Settlement Agreement, the Court held a hearing on the motion for preliminary settlement approval. Joint Declaration 0. The Court granted preliminary approval of the Settlement and provisionally certified a plaintiff Settlement Class under Federal Rule of Civil Procedure (b)(). Court s Order dated November, 0 (ECF No. ). The Court also approved the Parties proposed Notice to the Settlement Class, approved Kurtzman Carson Consultants ( KCC ) as the claims administrator to supervise and administer the Notice plans, and approved Doyle Lowther LLP as Class Counsel. Id. at -.

9 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 III. SETTLEMENT BENEFITS As detailed in the Settlement Agreement and in the forms of notice to the Settlement Class approved by the Court, the principal Settlement terms are set forth below. A. Principal Settlement Terms Settlement Class Members who experienced either, or both, of the two defects in question (the Shutdown Defect or the Screen Bleed Defect) at any time between April, 0 and November, 0, and experienced similar problems after notifying T-Mobile or LGEMU of the defect, are entitled, subject to completing a simple Claim Form sent to the Settlement Class Members or using an online claims process, to a $.00 cash payment. Joint Declaration 0. These cash payments are not subject to proration, nor is there any cap on the total number of claims that can be made by Settlement Class Members. Id. Settlement Class Members who received multiple replacement Gx Phones, and continued to experience one of the alleged defects with a replacement phone after notifying either LGEMU or T-Mobile, are entitled to a $.00 cash payment for each replacement phone. Id. LGEMU is paying all costs of the initial Settlement Class Notice and all costs of Settlement administration and distribution of the Settlement proceeds. Id. In return for these benefits, all Settlement Class Members claims against LGEMU concerning the alleged Shutdown Defect or Screen Bleed Defect during the class period will be released, except claims of personal injury or separate

10 Case :-cv-0-h-rbb Document - Filed // Page 0 of 0 0 property damage. Settlement Agreement.0,. (ECF No. -). All Released Persons shall also release any claims which may be asserted against the Parties or their counsel arising from this Litigation s initiation, prosecution, or resolution. Id.,.,. (ECF No. -) B. Notice and Administrative Costs LGEMU has agreed to pay the costs of Notice and Settlement administration on top of the substantial costs involved in providing the Settlement relief to Settlement Class Members. Joint Declaration 0(a)(iii). As detailed in the Declaration of Stefanie Gardella of KCC ( Gardella Decl. ), direct notice, consisting of a double postcard notice with detachable claim form (the Postcard Notice ), was sent to, potential Settlement Class Members. Gardella Decl., 0. The Postcard Notice provides a link to the Settlement website ( which contains detailed information about the action and the Settlement as well as and an automated toll-free telephone line. Gardella Decl., Ex. A. C. Plaintiff Reimbursements and Attorneys Fees and Expenses Filed concurrently herewith is Plaintiffs Memorandum of Points and Authorities in Support of Motion for Award of Attorneys Fees, Reimbursement of Expenses, and Service Awards ( Attorneys Fees Motion ) for prosecuting the action. Class Counsel requests fees and expenses in the amount of $,00,0. and seeks a service payment of $,00 each for time and effort each representative Plaintiff expended in this Litigation. Joint Declaration,. Defendant

11 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 reserves the right to challenge the amount of attorneys fees and costs awarded to Class Counsel. Settlement Agreement. (ECF No. -). As detailed in Plaintiffs accompanying Attorneys Fees Motion, the requested fees fall within the range of reasonable fees based on a lodestar/multiplier approach. The payment of costs of Notice, administration and distribution of the Settlement, attorneys fees and expenses, and representative Plaintiffs service awards are additional obligations of LGEMU and do not reduce or affect in any way the amount of consideration paid to claiming members of the Settlement Class. Joint Declaration. This resolution satisfies the standard for final approval of a settlement, for Settlement Class Members are adequately compensated for their defective Gx Phones, the Settlement addresses the defects alleged in the operative Complaint, and it allows multiple claims by Settlement Class Members who received a defective replacement Gx Phone. IV. THE STANDARDS FOR JUDICIAL APPROVAL OF CLASS ACTION SETTLEMENT ARE SATISFIED Federal courts favor settlement of disputed claims, especially in class action litigation. Officers for Justice v. Civil Service Comm., F.d, (th Cir. ); see Van Bronkhorst v. Safeco Corp., F.d, 0 (th Cir. ) ( there is an overriding public interest in settling and quieting litigation, and this is particularly true in class action suits ); Order Prelim. Approving Settlement, at (ECF No. ). In considering final approval of a class action settlement, courts must determine whether the settlement: (a) is the product of fraud or collusion; and (b) is fair, adequate, and reasonable. Officers for Justice, F.d at. Courts

12 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 must evaluate the settlement as a whole, so the settlement stands or falls in its entirety. Id. at ; Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ). In Officers for Justice v. Civil Serv. Commission, the Ninth Circuit set forth the factors trial courts should consider in assessing whether a proposed settlement is fair, reasonable, and adequate: Although Rule (e) is silent respecting the standard by which a proposed settlement is to be evaluated, the universally applied standard is whether the settlement is fundamentally fair, adequate and reasonable. The district court s ultimate determination will necessarily involve a balancing of several factors which may include, among others, some or all of the following: the strength of 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. F.d at (internal citations omitted); accord Hanlon, 0 F.d at 0; Torrisi v. Tucson Elec. Power Co., F.d 0, (th Cir. ); Order Prelim. Approving Settlement, at (ECF No. ). A settlement is presumed fair where, as here, the settlement is reached through arm s length bargaining, factual investigation is sufficient to allow counsel and the court to act intelligently, counsel is experienced in similar litigation, and the percentage of objectors is small. See In re Consol. Pinnacle West Secs. Litig., F.d, n. (th Cir. ). The Court may properly invoke this presumption here.

13 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 V. EVALUATION OF THE SETTLEMENT A. The Strength of Plaintiffs Case and the Substantial Settlement Benefits, When Balanced Against the Risk, Expense, Complexity and Likely Duration of Further Litigation, Support Approval of the Settlement The Settlement provides substantial relief to Settlement Class Members. Each Settlement Class Member who purchased a Gx Phone between April, 0 and November, 0 and complained to LGEMU or T-Mobile about the Shutdown Defect or Screen Bleed Defect, and continued to experience similar problems after making such Notice is entitled to a $.00 cash payment. Joint Declaration 0. Settlement Class Members who received replacement Gx Phones with a Shutdown or Screen Bleed Defect may submit multiple claims. Id. Given the complexities of this Litigation and the dangers of proceeding through trial, the Settlement represents a very favorable resolution of this Litigation and eliminates the real risk the Settlement Class (or many members located outside of California) may recover nothing. Although Class Counsel believe Plaintiffs have a strong case, it certainly is not without risk. A range of recoveries exists, and at trial a reasonable jury could award less than the Settlement amount. Defendant disputes Plaintiffs claims, and counsel expects LGEMU would mount a skilled and vigorous defense at any trial. Plaintiffs face additional risks in certifying a nationwide class for litigation and trial purposes. Even if a class were certified, Plaintiffs would have no assurance this case would proceed through trial as a class action. Courts may exercise their discretion to re-evaluate the appropriateness of class certification at any time. Fed.

14 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 R. Civ. Pro. (c)()(c). Given the risk that the class would not be certified actual recovery through settlement confers substantial benefits on the class that outweighs the potential recovery that could have been obtained through full adjudication. Gardner v. GC Servs., LP, 0 U.S. Dist. LEXIS 0, at *- (S.D. Cal. Apr., 0). Approving this Settlement guarantees a significant recovery for Settlement Class Members. Absent Settlement, the case could have continued for months if not another year, with discovery, class certification, summary judgment, and trial. Although Class Counsel believe Plaintiffs had a reasonable chance of prevailing on the merits, the accumulation of significant expenses from further discovery, expert fees, class certification and summary judgment practice, and then trial could severely deplete any eventual recovery. The Settlement, on the other hand, ensures an immediate and substantive recovery for Settlement Class Members without having their claims reduced by such expenses. B. Plaintiffs Engaged in Sufficient Pretrial Discovery and Proceedings to Identify the Strengths and Weaknesses of Their Case and Weigh the Propriety of Settlement In assessing the fairness, reasonableness, and adequacy of a settlement, courts take into account the current stage of litigation. Hanlon, 0 F.d at 0; Torrisi, F.d at. Plaintiffs, through their counsel, have conducted extensive factual investigation, both formal and informal discovery and independent factual research. Class Counsel reviewed and analyzed nearly a gigabyte of technical information, including: detailed tracking reports concerning the Gx s sales, 0

15 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 performance, defect rates, and complaint and warranty issues; internal engineering and investigative presentations concerning problems with the Gx; voluminous spreadsheets containing hundreds of thousands of consumer inquiries and complaints; and tens of thousands of pages of data and documents from LGEMU and T-Mobile. Class Counsel also retained expert consultants to assist in processing LGEMU s electronic documents, to test Gx Phones, and retained an expert to assist Plaintiffs, the Court, and the jury during class certification and trial. Counsel s Joint Declaration details the contested discovery issues. See Joint Declaration. As part of the mediation sessions with Ms. Yanni, Plaintiffs spent significant effort analyzing the strengths and weaknesses of the Parties respective claims and defenses. See Joint Declaration -. At all times LGEMU asserted vigorous defenses to every claim, and also indicated their intent to mount a robust challenge to class certification. See Joint Declaration, -,. Counsel s understanding of the value of Plaintiffs case was further informed by the Court s dismissal order and application of this order to the facts uncovered in discovery and through counsel s independent investigation, and expert opinions. See Joint Declaration. Class Counsel thus had more than enough information to comprehend the strengths and weaknesses of this case and make an intelligent decision about the Settlement s fairness. See Order Prelim. Approving Settlement at (ECF No. ). Through multiple rounds of settlement discussions, counsel conducted extensive due diligence into potential causes of the Shutdown and

16 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 Screen Bleed Defects and investigated various proposed fixes. Joint Declaration -. Counsel thus has gained the requisite understanding about the alleged defects at issue to make informed decisions during the course of settlement negotiations and an informed recommendation on the benefits of settlement. See id. C. Experienced Counsel Recommend Approval of the Settlement The Ninth Circuit favors deference to the private consensual decision of the settling parties, particularly where the parties are represented by experienced counsel and negotiation has been facilitated by a neutral party, [such as] a private mediator and a magistrate judge. Beck-Ellman v. Kaz U.S.A., Inc., 0 U.S. Dist. LEXIS 0, at * (S.D. Cal. Jan., 0) (Huff, J.) (quoting Rodriguez v. West Publ g Corp., F.d, (th Cir. 00)); accord Order Prelim. Approving Settlement, at (ECF No. ); see also In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., U.S. Dist. LEXIS, at * (C.D. Cal. June 0, ) (finding counsel s belief the proposed settlement represented the most beneficial result for class compelling factor in approving settlement). Plaintiffs counsel are experienced with complex litigation, including consumer class action litigation. Joint Declaration. These counsel negotiated the Settlement on behalf of the Settlement Class and secured cash compensation for the defective Gx Phones, including the right of Settlement Class Members to seek multiple cash payments for receiving defective replacement Gx Phones from LGEMU, without any cap or limit. Joint Declaration 0.

17 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 The Settlement negotiations, moreover, occurred with the oversight and guidance of an experienced neutral mediator, Catherine Yanni. Even after the terms of the Settlement were reached in principle, the Parties had substantial discussions over the Settlement s precise terms, all under the guidance of Ms. Yanni, which required several additional months of negotiations. Joint Declaration. Where, as here, the Settlement was negotiated by experienced counsel and facilitated by an accomplished mediator, the Court should give a settlement recommendation significant weight. Beck-Ellman, 0 U.S. Dist. LEXIS 0, at *; Order Prelim. Approving Settlement at (ECF No. ). Plaintiffs Counsel, having considered the relevant legal authorities and evidence to support the claims asserted against LGEMU, the likelihood of prevailing on these claims, the asserted defenses and risks at the class certification, summary judgment and trial stages, and the likely prospect of appellate proceedings and further delays if the Settlement Class prevailed at trial, conclude the Settlement is fair, reasonable, and adequate, and in the best interest of the Settlement Class. Joint Declaration. D. Initial Reaction to the Settlement Has Been Overwhelmingly Positive Class Counsel have spoken with close to 00 class members in response to the class notice, the vast majority of whom have expressed approval of this settlement. Joint Declaration at 0. In comparison, as of the date of this Motion, only three potential Settlement Class Members, or less than 0.00 percent of all potential Settlement Class Members have opted out of the Settlement, and not a

18 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 single objection has been filed. Gardella Decl. -. Although still early in the settlement process, the lack of significant opposition to the Settlement militates in favor of approving the Settlement. Marshall v. Holiday Magic, Inc., 0 F.d, (th Cir. ) (objection by only % of class supports approval). A small number of objections strongly supports the fairness of the settlement and should not stand in the way of final approval. Johansson-Dohrmann v. CBR Sys., Inc., 0 U.S. Dist. LEXIS 0, at * (S.D. Cal. July, 0); see Shames v. Hertz Corp., 0 U.S. Dist. LEXIS, at * (S.D. Cal. Nov., 0) ( The small number of objections and class members who opted out of the settlement, when compared to the large number of class members, favors approval. ); see also Hanlon, 0 F.d at 0 ( Settlement is the offspring of compromise; the question we address is not whether the final product could be prettier, smarter or snazzier, but whether it is fair, adequate and free from collusion. ). This number carries even more weight when the manner of class notice is considered. All Gx Phones received wireless service from T-Mobile, which conducted a comprehensive search of its customers using a technical vendor to process customer data, and identified the accounts with Gx Phones. A compilation of potential Settlement Class Members names and addresses was provided to claims administrator KCC, who in turn verified the accuracy of the addresses. Gardella Decl.. Class Notice was mailed to, potential Settlement Class Members. Gardella Decl. 0,.

19 Case :-cv-0-h-rbb Document - Filed // Page of The Parties will submit a follow-up declaration to the Court closer to the fairness hearing updating the Settlement Class Member response. To the extent any objections are submitted after the filing of Plaintiffs final approval papers, Plaintiffs will file detailed responses before the fairness hearing. VI. THE NOTICE PLAN APPROVED BY THE COURT SATISFIES DUE PROCESS AND HAS BEEN FULLY AND SUCCESSFULLY IMPLEMENTED On November, 0, the Court approved an extensive direct Notice Plan. 0 0 See Court s Order dated November, 0 (ECF No. ). The Parties designed the Notice Plan to inform the greatest number of Settlement Class Members about the terms of the Settlement, thereby maximizing the opportunity for Settlement Class Members to review and understand the Settlement, and either participate or exclude themselves from the Settlement s benefits. The Notice Plan involved: () mailing the double Postcard Notice to, potential Settlement Class Members every person who obtained one of these phones during the Class Period; () creating a Settlement website at which provides the Long Form Notice, Settlement Agreement, electronic Claim Form, a list of Frequently Asked Questions, and other relevant Settlement documents; and () establishing an automated toll-free telephone line Settlement Class Members can call to hear information regarding the Settlement. Court s Order dated November, 0 (ECF No. ); see Passarella Decl. (ECF No. 0); Gardella Decl., -, 0. The Claims Administrator disseminated the Postcard Notice to consumers who fall within the Settlement Class definition by First Class postage at the U.S.

20 Case :-cv-0-h-rbb Document - Filed // Page 0 of 0 0 Post Office. Gardella Decl. 0. The Postcard Notice provides key information about the Settlement, Settlement Hearing and directs consumers to the settlement website, where they can also submit their claims online. Joint Declaration 0; Passarella Decl. (ECF No. 0); Gardella Decl., Ex. A. An exemplar of the Postcard Notice is attached as Exhibit A to the Gardella Declaration. Gardella Decl.. The Settlement website and claim form are easy to use, provides consumers with detailed information about the Settlement s terms, their rights in connection with the Settlement, the ability to electronically submit claims, and the date, time, and location of the Settlement hearing, at which time the Court will consider final approval of the Settlement. Id. at ; Joint Declaration 0. Further, the Settlement website provides a direct link, entitled Court Documents, to the operative complaint, order on motion to dismiss, and the requisite settlement documents, permitting the public to view or download the materials, thereby giving the public free and easy access to the Settlement record in this matter. Id. The Postcard Notice also adequately informs Settlement Class Members of their rights and options. Joint Declaration 0. The Postcard Notice combines the Short Form Notice and Claim Form into one document where the Settlement Class Member can simply fill out the form, tear it off, and return it. The Post Card Notice describes the nature and status of the Litigation, sets forth the Settlement Class definition and class claims, discloses the right of people who fall within the Settlement Class to exclude themselves from the Settlement, and explains how to opt-out of the Settlement and the legal consequences of not excluding oneself, if so

21 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 desired, from the Settlement. Passarella Decl. (ECF No. 0); Joint Declaration 0. The Postcard Notice also describes the Settlement and identifies the benefits Plaintiffs are proposing to distribute among the Settlement Class, explains Class Counsel will seek an award of attorneys fees and reimbursement of expenses in connection with final settlement approval, and provides contact information for counsel. Id.; see Gardella Decl., Ex. A. The Postcard Notice discloses the date, time and place of the formal fairness hearing, and notifies Settlement Class Members of their right to comment on the Settlement and appear at the fairness hearing. Id. KCC provided notice of this Settlement to state and federal officials in accordance with the requirements of the Class Action Fairness Act, U.S.C. (a). Gardella Decl.. KCC mailed a complete set of the requisite CAFA documents to state and federal officials on October, 0. Id. Given the size of the Settlement Class, the Notice Plan approved and implemented here was outstanding and appropriate. Silber v. Mabon, F.d, (th Cir. ) (notice need not actually reach every single class member; instead, the notice need only be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections). Numerous courts have approved notice programs reaching a smaller percentage of class members than the Notice reached in this case, which should be all-inclusive of the universe of potential Settlement Class Members. See, e.g., Beck-Ellman, 0 U.S. Dist. LEXIS 0, at *

22 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 (approving notice plan by KCC projected to reach at least 0% of the class members); Fulford v. Logitech, Inc., 00 U.S. Dist. LEXIS 0, at *- (N.D. Cal. Mar., 00) (approving notice plan based on registration records with % reach); Wilson v. Airborne, Inc., 00 U.S. Dist. LEXIS 0, at *- (C.D. Cal. Aug., 00) (approving program reaching 0% of class members). Federal Judicial Center Judges Class Action Notice and Claims Process Checklist, at ( A high reach, e.g. between 0-% can often reasonably be reached by a notice campaign ). Plaintiffs have endeavored to undertake the most effective and robust notice program possible, satisfying both due process and Rule s requirements. Under the circumstances, Plaintiffs have provided the best notice practicable. VII. CERTIFICATION OF THE SETTLEMENT CLASS IS PROPER Plaintiffs request the Court approve its prior order provisionally certifying the Settlement Class consisting of all United States residents who: () purchased an LGEMU Gx Phone; () experienced and complained to LGEMU or T-Mobile about either the Shutdown Defect or the Screen Bleed Defect at any time between April, 0 and November, 0; and () continued to experience similar problems after making such complaints. Persons who validly and timely exclude themselves from the Settlement Class, persons who have suffered personal or bodily injury or separate property damage as a result of either the Shutdown Defect or the Screen Bleed Defect, and any officer, director or employee of LGEMU or its

23 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 parents, subsidiaries and affiliates are not included in the Settlement Class. As this Court held in its order preliminarily approving the Settlement, this case meets the prerequisites for class certification under Rule (a): numerosity; commonality; typicality; and fair and adequate representation. In addition, this case satisfies the requirements of Rule (b)(). See Court s Order dated November, 0 (ECF No. ). Class Counsel previously submitted evidence in support of these findings in connection with the motion for preliminary approval of settlement, and incorporates the evidence herein. Nothing has changed in terms of the evidentiary submission to warrant modifying the provisional certification order for settlement purposes. A. The proposed Settlement Class meets Rule (a) s requirements The Settlement Class is so numerous that joinder of all class members is impracticable. Fed. R. Civ. P. (a)(). As stated above, Notice has been sent to over 00,000 potential class members. The proposed Settlement Class easily satisfies the numerosity requirement of Rule (a). See Yeoman v. Ikea U.S. West, Inc., 0 U.S. Dist. LEXIS, at * (S.D. Cal. May, 0) (class sufficiently numerous so long as common sense indicates it is large). There are questions of fact and law common to the Settlement Class. Fed. R. Civ. P. (a)(). Commonality exists when the class claims stem from a common nucleus of operative facts. Staton v. Boeing Co., F.d, (th Cir. 00). Here, in addition to the overall question whether this Settlement is fair, reasonable and adequate, which affects all Settlement Class Members, there are numerous

24 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 core common issues of law and fact, including: () whether the Gx Phones have a common manufacturing defect; () whether LGEMU was aware of the defect; and () whether LGEMU violated state and federal law by selling the Gx Phones. Underlying these questions is a common nucleus of operative facts pertaining to LGEMU s sale of defective mobile phones. The Settlement Class thus satisfies Federal Rule of Civil Procedure (a)() s commonality requirement. The proposed Settlement Class Representatives claims are typical of those of the Settlement Class. Fed. R. Civ. P. (a)(). [R]epresentative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical. Hanlon, 0 F.d at 00. The typicality requirement is satisfied here because Plaintiffs and Settlement Class Members allege the same set of operative facts. Every Class Representative and Settlement Class Member purchased a Gx Phone in the United States and experienced and complained about the Shutdown Defect or the Screen Bleed Defect. Joint Declaration ; see also Declaration of Plaintiff Terry Horvath in Support of Final Approval of Settlement ( Horvath Decl. ) ; Declaration of Plaintiff Jeremy Forsythe in Support of Final Approval of Settlement ( Forsythe Decl. ) ; Declaration of Plaintiff Ronald Johnson in Support of Final Approval of Settlement ( Johnson Decl. ) ; Declaration of Plaintiff Fred Montgomery ( Montgomery Decl. ). Declarations are attached as Exhibits -, respectively, to the Declaration of William J. Doyle II, filed concurrently herewith ( Doyle Decl. ). 0

25 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 The Plaintiffs and Class Representatives constitute more than adequate class representatives, as they have no claims materially antagonistic to other Settlement Class Members. Fed. R. Civ. P. (a)(). The proposed Settlement Class Representatives have been exemplary participants in the Litigation, who regularly stayed informed during this litigation s pendency, and who were always dutiful and responsive to Court and Class Counsel requests. Horvath Decl. -, -; Forsythe Decl., -; Johnson Decl.,, ; Montgomery Decl.,, -; Joint Declaration,, 0,,. For example, without any promise of compensation or reimbursement, three of four Class Representatives took time off from work and travelled from several different states to San Diego, California, to participate in an Early Neutral Evaluation Conference in one case, taking two days for cross-country travel from Florida to represent the Class s interests. Horvath Decl. ; Forsythe Decl. ; Johnson Decl. ; Montgomery Decl.. And the Class Representatives agreed in advance to return to San Diego, California for additional Court appearances, and they were at all times accommodative to the Court s docket and schedule. Horvath Decl. ; Forsythe Decl. ; Johnson Decl. ; Montgomery Decl.. Finally, the Class Representatives had input concerning, and ultimately approved, the Settlement. Horvath Decl. ; Forsythe Decl. ; Johnson Decl. ; Montgomery Decl.. Further, the Class Representatives retained attorneys with extensive experience in the area of consumer class action litigation who have successfully prosecuted numerous class actions and other complex litigation on behalf of injured consumers in this District

26 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 and across the country. Joint Declaration. Class Counsel have vigorously and skillfully prosecuted this Litigation and have secured a Settlement that is in the Settlement Class s best interests. Joint Declaration. Finally, Plaintiffs constitute adequate class representatives, as they have no claims materially antagonistic to other Settlement Class Members. Fed. R. Civ. P. (a)(). The proposed Settlement Class Representatives have actively participated in the Litigation. Joint Declaration,, 0,,. Plaintiffs retained attorneys with extensive experience in the area of consumer class action litigation who have successfully prosecuted numerous class actions and other complex litigation on behalf of injured consumers in this District and across the country. Id.. Plaintiffs Counsel have vigorously and skillfully prosecuted this Litigation and have secured a Settlement that is in the Settlement Class s best interests. Id.. B. The proposed Settlement Class satisfies Rule (b)() In addition to meeting the prerequisites of Rule (a), this case satisfies the requirements of Rule (b)(). Common questions of law and fact predominate, and a class action is the superior, if not the only, method available to fairly and efficiently resolve the Settlement Class s claims. Where a complaint alleges a common course of conduct regarding a particular defect affecting all class members in the same manner, common issues predominate. Wolin v. Jaguar Land Rover N. Am., LLC, F.d, (th Cir. 00). These common factual issues predominate over any individual question

27 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 of fact. Moreover, Settlement Class Members have experienced uniform failures caused by the common Shutdown Defect and Screen Bleed Defect. Joint Declaration. These issues are common to the proposed Settlement Class and thus predominate. Rule (b)() also requires the Court to determine a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Plaintiffs present classwide allegations premised on common evidence. Trying each class claim separately would be inefficient, when each of thousands of cases would allege common claims for small sums and offer identical proof of LGEMU s misconduct. See Thurston v. Bear Naked, Inc., 0 U.S. Dist. LEXIS 0, at * (S.D. Cal. July 0, 0) (Huff, J.) (holding where claims are common, involve small sums and do not depend on individual determinations, a class action is clearly superior ). Resolution of Plaintiffs and the Settlement Class s claims against LGEMU through the proposed Settlement Class is superior to any other available method of resolution. Accordingly, certification of the Settlement Class under Rule (b)() is appropriate. VIII. CONCLUSION The Settlement provides substantial relief to Settlement Class Members and squarely addresses the defects alleged in the Litigation. For the reasons set forth above, the proposed Settlement warrants the Court s final approval.

28 Case :-cv-0-h-rbb Document - Filed // Page of 0 0 DATED: December, 0 Respectfully Submitted, /s/ William J. Doyle II WILLIAM J. DOYLE II DOYLE LOWTHER LLP John A. Lowther James R. Hail Samantha A. Smith Katherine DiDonato 000 Willow Creek Road, Suite 0 San Diego, CA Tel: () -0 Fax: () - bill@doylelowther.com john@doylelowther.com jim@doylelowther.com samantha@doylelowther.com kate@doylelowther.com GLYNN LAW GROUP THOMAS E. GLYNN 000 Willow Creek Rd., Suite 0 San Diego, CA Tel: () -00 Fax: () -0 tom@glynnlawgroup.com THE CONSUMER LAW GROUP ALAN M. MANSFIELD 000 Willow Creek Rd., Suite 0 San Diego, CA Tel: () 0-0 Fax: () -0 alan@clgca.com Attorneys for Plaintiffs and the Proposed Class