Pay Pal Order

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 1 of 18
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
MOISES ZEPEDA, MICHAEL SPEAR,
Case No: C 10-2500 SBA
5 RONYA OSMAN, BRIAN PATTEE,
CASEY CHING, DENAE ZAMORA,

6 MICHAEL LAVANGA, and GARY
Related to:
No. C 10-1668 SBA
MILLER, on behalf of themselves and all

7 others similarly situated,
8
9
Plaintiffs,
v.
10 PAYPAL, INC., E-BAY INC., and DOES 1

11
ORDER GRANTING PLAINTIFFS

MOTION FOR PRELIMINARY
APPROVAL OF AMENDED CLASS
ACTION SETTLEMENT
AGREEMENT
Dkt. 275
through 10, inclusive,

Defendants.
12
13
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This is a putative nationwide class action brought by Plaintiffs Moises Zepeda,
15
Michael Spear, Ronya Osman, Brian Pattee, Casey Ching, Denae Zamora, Michael
16
Lavanga and Gary Miller (collectively Plaintiffs) against PayPal, Inc. (PayPal) and its
17
parent entity, eBay, Inc. (eBay). Plaintiffs allege that PayPal improperly handled
18
disputed transactions relating to their user accounts by unilaterally placing holds and
19
reserves thereon. PayPal also is alleged to have failed to provide annual error-resolution
20
notices and monthly account statements under the Electronic Fund Transfer Act (EFTA)
21
The Court denied Plaintiffs prior motion for preliminary approval. The parties
22
thereafter revised their proposed settlement and have now filed a Motion for Preliminary
23
Approval of Amended Class Action Settlement Agreement. Dkt. 275. Having read and
24
considered the papers filed in connection with these matters and being fully informed, the
25
Court hereby GRANTS Plaintiffs motion and confers preliminary approval of the
26
Amended Class Action Settlement Agreement.1
27
1
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The Court, in its discretion, finds this matter suitable for resolution without oral
argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
I.
BACKGROUND
A.
Defendant Paypal operates an on-line payment processing service that functions as a
OVERVIEW
third party intermediary to facilitate payments between buyers and sellers of goods and
services sold on-line through websites. As a condition of using PayPals service,
subscribers must abide by the PayPal User Agreement (User Agreement), among other
agreements. Sec. Am. Compl. 33, Dkt. 110. The User Agreement provides that upon a
breach of its termssuch as by engaging in defined Restricted ActivitiesPayPal may
hold funds in a sellers account by placing reserves on accounts and/or limiting and/or
10
suspending sellers accounts and holding the funds in the accounts for up to and in some
11
cases exceeding 180 days. Id. 36. Among other things, Restricted Activities are defined
12
to include a breach of the User Agreement or any other agreements with PayPal, selling
13
counterfeit goods, and providing false or inaccurate information. Id. 37.
14
The operative pleading before the Court is the Second Amended Complaint (SAC)
15
filed on October 9, 2012.2 The pleadings allege that each of the representative Plaintiffs
16
has used PayPal as sellers and had the funds in their respective user accounts frozen for 180
17
days. Id. 10-17. According to Plaintiffs, such conduct violates the terms of the User
18
Agreement because PayPal failed to specify what particular activity led to the freezing of
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their accounts. Id. 37. In addition, PayPal allegedly failed to provide them with an
20
opportunity to cure the issue that resulted in the freezing of the accounts in the first instance
21
or avoid future holds from being placed on the accounts. Id. 4, 45-52. From those core
22
set of facts, the SAC alleges the following claims for: (1) breach of contract; (2) breach of
23
implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) an
24
accounting; (5) violation of the California Consumer Legal Remedies Act; (6) conversion;
25
26
This action is related to Fernando, et al. v. PayPal, Inc., et al., Case No. 10-CV01668 SBA. After reaching their first settlement in this and the Fernando action, the parties
27 filed the SAC, which incorporates the claims alleged in Fernando.
28
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(7) violation of Californias Unfair Competition Law; (8) unjust enrichment; (9) violation
of the EFTA; (10) declaratory relief; and (11) violation of the class settlement reached in In
re PayPal Litigation (Comb), No. C 02-01227 JF (Comb).3 Dkt. 110. As Defendants,
Plaintiffs have named PayPal and its parent entity, eBay, Inc.
B.
SETTLEMENT AGREEMENTS
1.
Initial Settlement
The parties originally reached tentative settlements in both this and the related
Fernando action. In early 2012, Marina Trubitsky, one of the attorneys representing the
Fernando plaintiffs, attempted to renege on the settlement, and demanded the opportunity to
10
negotiate individual settlements with Defendants. Dkt. 205 at 4. Defendants refused, and
11
as a result, the parties in this case opted to separately proceed with a settlement in this
12
action only. Id. In response, Ms. Trubitsky commenced a series of actions aimed at
13
disrupting the settlement, including the filing of a new action, which was later dismissed.
14
Id.
15
In an attempt to refocus the parties in both cases on a global settlement, the Court
16
referred both to Magistrate Judge Nathanael Cousins for a mandatory settlement
17
conference. Id. at 5. The conference was set for January 2013, but Ms. Trubitsky failed to
18
appear. Id. In view of the ongoing issues with counsel in the Fernando action, Plaintiffs
19
counsel in this action moved for preliminary approval of the settlement they had previously
20
reached with Defendants. Dkt. 166 at 6. The Court denied Plaintiffs motion on the
21
grounds that the settlement release was overbroad and the lack of any tangible benefits to
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27
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In Comb, plaintiffs, on behalf of a class defined as [a]ll Persons who opened a

PayPal account during the period from October 1, 1999 through January 31, 2004, alleged
that PayPal routinely froze customer accounts flagged as suspicious, without
justification or explanation. Comb Dkt. 234 at 6-7. The parties eventually entered into a
settlement agreement that provided both injunctive relief and a settlement fund in the
amount of $9.25 million. Id. Dkt. 249. The injunctive relief portion of the settlement was
intended to implement the requirements of the [EFTA] . . . and to address the operating
practices which led to widespread complaints by users of the PayPal system. Id. Dkt. 247
at 7.
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the class. Dkt. 205 at 11-12. The Court granted the parties leave to resubmit a renewed
motion for preliminary approval. Id. at 12.
3
4
2.
Second Settlement
The parties participated in two full day mediations in March and June 2014 and
reached a revised settlement, which includes aspects of the prior settlement and
incorporates new provisions, as well. Todzo Decl. Ex. 2 (Infante Decl.) 3, Dkt. 275-3.
As before, the revised settlement requires PayPal to modify the disclosure of its reserve and
hold practices and improve transparency regarding the dispute resolution process. Unlike
the prior settlement, however, the revised settlement provides for a $3.2 million settlement
10
fund, of which at least $1,840,000 will be available to pay claims of Claims Class members
11
who had holds or reserves placed on their accounts and lost interest income. The revised
12
settlement also creates a separate fund of $800,000 for Alternate Claims from which class
13
members can pursue individual claims for damage to business (subject to a $2,000 cap per
14
claimant) upon presentation of proper documentation. Id. Ex. 1 (Settlement Agt.) 4.4,
15
4.5, Dkt. 275-2.
16
To facilitate the provision of injunctive relief and the payment of claims, the revised
17
settlement creates two subclasses: a Claims Class; and an Injunctive Relief Class. Id.
18
3.1. The Claims Class is comprised of all current and former users of PayPal in the
19
United States who: (1) had an active PayPal account between April 19, 2006 and the date
20
of entry of the Preliminary Approval Order; and (2) had a hold or reserve placed on the
21
account and/or the account was closed or suspended by PayPal. Settlement Agt. 1.6.
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The Claims Class is intended to address claims for damages allegedly resulting from either
23
a hold or a reserve on funds held in a PayPal account, or due to the suspension or closure of
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a PayPal account. Id. 1.6, 1.7.
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There are two types of monetary relief available to members of the Claims Class:
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(1) guaranteed payments based on the amount and length of a hold or reserve (a Basic
27
Claim); and (2) payments for business damages, subject to proof of such damages by
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Claims Class members (an Alternate Claim). Id. 1.2, 1.3. The payments for Basic
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Claims are equal to two-thirds of the average amount of interest at market rates that would
have accrued on the funds subject to a hold or reserve, subject to a $3.00 floor and rounded
to the nearest $1.00 or $10.00, as follows:
4
5
6
7
LENGTH OF
HOLD/RESERVE
1-30 days
31-90 days
91-150 days
Over 150 days
HOLD/RESERVE
UNDER $1,000
$3.00
$3.00
$3.00
$14.00
HOLD/RESERVE UP
TO $1,000
$3.00
$5.00
$10.00
$25.00
HOLD/RESERVE
OVER $10,000
$3.00
$150.00
$100.00
$440.00
Id. 5.3. Alternate Claims will be paid in full, subject to proof, up to an individual cap of
$1,500 per claim. If the total of Alternate Claims (including administration expenses
10
associated with those claims) exceeds $800,000, the Alternate Claims payments will be
11
reduced on a pro-rata basis. However, if the $3.2 million settlement fund is not exhausted
12
by payment of Basic Claims, attorneys fees and administrative costs, then up to an
13
additional $200,000 from the Settlement Fund may be used to pay Alternate Claims.
14
The Settlement provides for the upward proration of payments to Claims Class
15
members to ensure the maximum possible relief for Settlement Class Members. To that
16
end, the only funds that may need to be distributed on a cy pres basis are leftover funds
17
from uncashed settlement checks. The designated cy pres recipient, the Electronic Frontier
18
Foundation, is a non-profit organization that works to defend civil liberties in the digital
19
world, including the rights of users of commercial websites, such as PayPal.
20
The Injunctive Relief Class is defined as all current and former users of PayPal in
21
the United States who had an active PayPal account between April 19, 2006 and the date of
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entry of the Preliminary Approval Order. Id. 1.19. The Injunctive Relief Class is
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intended primarily to address claims that are not based on damages that arise from a
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violation of the settlement in Comb and related violations of the EFTA, including PayPals
25
alleged failure to provide annual error-resolution notices and monthly account statements.
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Id. 1.19, 1.20.
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On March 25, 2015, the Court issued its ruling on Plaintiffs renewed motion for
preliminary approval. Dkt. 264. The Court found that while the revised settlement
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agreement resolved many of the concerns that resulted in the rejection of the prior
agreement, two obvious deficiencies remained. First, the Court questioned whether it was
appropriate to allege, much less settle, claims based on alleged violations of the Comb
settlement since the judgment in that action specified that any disputes concerning the
agreement must be litigated in that action. Id. at 11. Second, the Court noted that, although
the issue was raised in the order denying the first motion for preliminary approval, the
parties still had not explained why both settlement classes include persons who have been
PayPal accountholders since 2006, even though the practices at issue allegedly began in
2008. Id. at 12.
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3.
11
The Current Settlement
Following the denial of Plaintiffs second motion for preliminary approval, the
12
parties revised their settlement agreement and have now filed a motion for preliminary
13
approval of the Settlement Agreement, as amended (Amended Settlement Agreement).
14
Todzo Decl. 6. To address the Courts concerns, the parties have agreed that Plaintiffs
15
will file a Third Amended Complaint that omits any claims based on the alleged breach of
16
the Comb Settlement. Todzo Decl. Ex. 1 (Am. to Settlement Agt.) 5, Dkt. 275-2. The
17
settlement release has correspondingly been modified to eliminate any reference to the
18
Comb Settlement. Id. 1, 2. With regard to the issue pertaining to the class period, the
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parties continue to propose that the class period for both of the proposed settlement classes
20
should run from April 19, 2006, which is four years prior to the filing of the Complaint in
21
the Fernando Action on April 19, 2010 (which claims are now being asserted in the instant
22
action). Id. Ex. 6 (Proposed Third Am. Compl.) 59, Dkt. 275-7. They contend that this
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class period is appropriate because Plaintiffs claims include allegations based on the closing
24
or suspending of accounts and claims arising from PayPals handling of buyers accounts,
25
and these activities occurred both before and after 2008. Pls. Mot. for Prelim. Approval at
26
10. To that end, the proposed Third Amended Complaint adds allegations that PayPal
27
began engaging in the disputed practices prior to 2006. Proposed Third Am. Compl. 39.
28
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Plaintiffs now move for preliminary approval of the Amended Settlement
Agreement. In addition, Plaintiffs request: (1) provisional certification of the two proposed
Settlement Classes (i.e, the Claims Class and the Injunctive Relief Class); (2) the
appointment of (a) the Complex Litigation Group, (b) Lexington Law Group, (c) Farmer,
Jaffe, Weissing, Edwards, Fistos & Leherman, P.L., and (d) Seeger Weiss LLP, as Class
Counsel; (3) approval of the proposed Class Notice; and (4) and the scheduling of a final
approval hearing. Proposed Order, Dkt. 275-8. Non-party Reginald Burgess, acting pro se,
has filed an Objection to Preliminary Approval of Settlement Motion and Demand Opt-Out
if Proposed Settlement in Approved. Dkt. 277.4
10
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II.
DISCUSSION
Class action settlements are governed by Federal Rule of Civil Procedure 23(e),
12
which requires a court to determine whether a proposed settlement is fundamentally fair,
13
adequate, and reasonable. Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003)
14
(quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). To make a
15
fairness determination, the district court balances a variety factors, including: (1) the
16
strength of plaintiffs case; (2) the risk, expense, complexity, and likely duration of further
17
litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount
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offered in settlement; (5) the extent of discovery completed, and the stage of the
19
proceedings; (6) the experience and views of counsel; (7) the presence of a governmental
20
participant; and (8) the reaction of the class members to the proposed settlement. See
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Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003). In conducting this evaluation, it is
22
neither for the court to reach any ultimate conclusions regarding the merits of the dispute,
23
nor to second guess the settlement terms. See Officers for Justice v. San Fran. Civ. Serv.
24
Commn, 688 F.2d 615, 625 (9th Cir. 1982).
25
26
27
Reginald Burgess, first pro se and later through his attorney, Garrett Skelly, has
filed numerous motions in this action in an attempt to thwart the parties efforts to obtain
28 preliminary approval of their proposed class settlement.
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Given that some of the aforementioned fairness factors cannot be fully assessed until
the Court conducts the final approval hearing, a full fairness analysis is unnecessary at this
stage. Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (internal quotations
marks and citation omitted). Rather, preliminary approval of a settlement and notice to the
proposed class is appropriate: if [1] the proposed settlement appears to be the product of
serious, informed, noncollusive negotiations, [2] has no obvious deficiencies, [3] does not
improperly grant preferential treatment to class representatives or segments of the class,
and [4] falls with the range of possible approval . . . . In re Tableware Antitrust Litig., 484
F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (quoting Manual for Complex Litigation, Second
10
30.44 (1985)). The initial decision to approve or reject a settlement proposal is
11
committed to the sound discretion of the trial judge. Officers for Justice, 688 F.2d at 625.
12
In the instant case, the In re Tableware Antitrust Litigation factors weigh in favor of
13
preliminarily approving the settlement. First, the settlement is the result of non-collusive
14
negotiations; i.e., a mediation conducted by Magistrate Judge Infante (ret.), which, in turn,
15
led to continued negotiations and the execution of the Amended Settlement Agreement.
16
Second, there are no longer any obvious deficiencies. As discussed above, the two issues
17
cited by the Court in its prior order denying preliminary approval have been addressed by
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the parties. Specifically, the Amended Settlement Agreement omits any claims based on
19
the Comb settlement from the Third Amended Complaint and the settlement release. As
20
for the scope of the class period, Plaintiffs have sufficiently explained that the 2006 date
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was chosen as the commencement of the class period based on (1) the statute of limitations
22
and the filing date of the Fernando action, and (2) the inclusion of claims based on conduct
23
occurring prior to 2008. Notwithstanding these modifications, the parties have not reduced
24
the settlement benefits to the Class. Lastly, there is no indication that the settlement
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improperly grants preferential treatment to class representatives or segments of the class, or
that it is outside the range of possible approval.5
The Court is unpersuaded by Burgess objections. As an initial matter, since
Burgess is not a party to the action, it is questionable whether he has standing to object to
the proposed settlement at this juncture. See Standard Fire Ins. Co. v. Knowles, 133 S.Ct.
1345, 1349 (2013) (A nonnamed class member is not a party to the class-action litigation
before the class is certified.). Even if he had standing, Burgess objections do not militate
against preliminarily approving the settlement. Burgess contentions regarding his inability
to participate in the settlement negotiations and the authority and the competency of
10
Plaintiffs counsel to represent the Class have previously been considered and rejected by
11
the Court. E.g., Dkt. 125 at 1-2, 131 at 1, 205 at 9; 264 at 7 n.5. With respect to Burgess
12
remaining objections, they are germane to whether the agreement is fair, reasonable and
13
adequate within the meaning of Rule 23(e), rather than to the In re Tableware factors
14
discussed herein. See Narouz v. Charter Commcns, LLC, 591 F.3d 1261, 1267 (9th Cir.
15
2010) (noting that the fairness hearing is the time when members of the class may be
16
heard concerning their support for, or objection to, the settlement).6
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5
The Court notes that Plaintiffs request for attorneys fees based on 30 percent of
the Settlement Fund is slightly higher than the Ninth Circuits benchmark of 25 percent
See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011).
20 Although such request is not so far beyond benchmark to constitute an obvious deficiency
with the settlement, Plaintiffs counsel should be mindful of addressing these issues and
21 providing appropriate detail and documentation in connection with their motions for
attorneys fees and for final approval.
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For example, Burgess complains that the proposed incentive award, which has
been reduced to $2,500 from $5,000, is too high. Objections at 2. In this District, a
$5,000 incentive award is presumptively reasonable. Villegas v. J.P. Morgan Chase &
Co., No. C 09-0261 SBA, 2012 WL 3542187, *6 (N.D. Cal., Aug. 14, 2012) (Armstrong,
J.) (citing cases). In any event, the reasonableness of the proposed incentive award will be
assessed in connection with the final approval hearing. See Staton v. Boeing Co., 327 F.3d
928, 977 (9th Cir. 2003) (stating that in reviewing whether an incentive based award is
appropriate, a court should consider the following factors: the actions the plaintiff has
taken to protect the interests of the class, the degree to which the class has benefitted from
those actions . . . [and] the amount of time and effort the plaintiff expended in pursuing the
litigation.). Any request by Plaintiffs for the approval incentive awards shall include a
discussion based on the aforementioned legal standard.
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1
2
In sum, the Court finds that Plaintiffs have made a sufficient showing to warrant
preliminary approval of the Amended Settlement Agreement.
A.
Plaintiffs seek conditional certification of a settlement class under Rule 23(a) and
(b)(3). A class action will only be certified if it meets the four prerequisites identified in
Federal Rule of Civil Procedure 23(a) and additionally fits within at least one of the three
subdivisions of Federal Rule of Civil Procedure 23(b). Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 614 (1997).
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CONDITIONAL CLASS CERTIFICATION
1.
Rule 23(a) Requirements
The four requirements of Rule 23(a) are commonly referred to as numerosity,
11
commonality, typicality, and adequacy of representation (or just adequacy),
12
respectively. United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv.
13
Workers Intl Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010).
14
Although a district court has discretion in determining whether the moving party has
15
satisfied each Rule 23 requirement, the court must conduct a rigorous inquiry before
16
certifying a class. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1977); Ellis v.
17
Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011).
18
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a)
Numerosity
Rule 23(a)(1) requires that the class be so numerous that joinder of all members is
20
impracticable. Fed. R. Civ.P. 23(a)(1). Numerosity is satisfied here, as the proposed
21
settlement class includes millions of potential members. Joinder of millions of individual
22
class members would be impracticable in this action. See Altamirano v. Shaw Indus., Inc.,
23
No. CV-00939-HSG, 2015 WL 4512372, *4 (N.D. Cal., July 24, 2015) (Numerosity is
24
satisfied here because the proposed settlement class includes millions of potential
25
members.).
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1
2
b)
Commonality
Class certification is appropriate only if there are questions of law or fact common
to the class. Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2) should be construed permissively,
meaning that [a]ll questions of fact and law need not be common to satisfy the rule. The
existence of shared legal issues with divergent factual predicates is sufficient, as is a
common core of salient facts coupled with disparate legal remedies within the class.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). [E]ven a single common
question is sufficient. Wal-Mart Stores, Inc. v. Dukes, -- U.S. --, 131 S.Ct. 2541, 2556
(2011). The common question, however, must be of such a nature that it is capable of
10
classwide resolutionwhich means that determination of its truth or falsity will resolve an
11
issue that is central to the validity of each one of the claims in one stroke. Id. at 2551.
12
With respect to the Claims Class, Plaintiffs allege that Defendants breached
13
standardized form contracts in the same manner with respect to Plaintiffs and the other
14
members of the proposed class. With respect to the Injunctive Relief Class, Plaintiffs
15
allege that PayPal failed to provide monthly statements and annual notices to all members
16
of the class. Because these claims arise from a standard course of conduct adversely
17
affecting a group of individuals, each of the two proposed classes satisfies the commonality
18
requirement. See In re First Alliance Mortg. Co., 471 F.3d 977, 990-91 (9th Cir. 2006)
19
(class treatment of fraud claims is favored where claims stem from common course of
20
conduct).
21
c)
Typicality
22
In certifying a class, courts must find that the claims or defenses of the
23
representative parties are typical of the claims or defenses of the class. Fed R. Civ. P.
24
23(a)(3). [R]epresentative claims are typical if they are reasonably co-extensive with
25
those of absent class members; they need not be substantially identical. Hanlon, 150 F.3d
26
at 1020. The test of typicality is whether other members have the same or similar injury,
27
whether the action is based on conduct which is not unique to the named plaintiffs, and
28
whether other class members have been injured by the same course of conduct. Parsons
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v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quoting Hanon v. Dataproducts Corp., 976
F.2d 497, 508 (9th Cir. 1992)). In this case, there is no dispute that the injuries suffered by
Plaintiffs are essentially the same as those of the class and result from PayPals course of
conduct relating to account holds and reserves and providing the requisite statements.
5
6
d)
Adequacy
Rule 23(a)(4) permits certification of a class action only if the representative parties
will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To
determine whether named plaintiffs will adequately represent a class, courts must resolve
two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest
10
with other class members and (2) will the named plaintiffs and their counsel prosecute the
11
action vigorously on behalf of the class? Ellis, 657 F.3d at 985.
12
At this juncture, the only conflict that has surfaced is between Burgess and
13
Plaintiffs counsel. However, as discussed above and in numerous prior orders of this
14
Court, Burgess complaints lack merit and are inconsistent with Rule 11 of the Federal
15
Rules of Civil Procedure. In addition, the record shows that Plaintiffs counsel have been
16
vigorously litigating this case in furtherance of the interests of the class. The Court is
17
therefore satisfied that the adequacy requirement, along with the other Rule 23(a)
18
requirements, has been sufficiently demonstrated.
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2.
Rule 23(b) Requirements
Plaintiffs seek to certify the Injunctive Relief Class under Rule 23(b)(2) and the
Claims Class under Rule 23(b)(3).
a)
23(b)(2)
Class certification under Rule 23(b)(2) is appropriate only where the primary relief
24
sought is declaratory or injunctive. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981
25
(9th Cir. 2011). Certification is proper where class members complain of a pattern or
26
practice that is generally applicable to the class as a whole, even if some class members
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may have suffered no injury or different injuries from the challenged practice[.] Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2557 (2011) (internal quotation marks omitted).7
Here, the principal relief sought with respect to the Injunctive Relief Class consists
of changes to PayPals business practices regarding its hold and reserve policies, including
additional disclosures to PayPal customers. The conduct to be enjoined will affect all class
members. Because an injunction would offer all class members uniform relief from this
harm, class certification of the Injunctive Relief Class is appropriate under Rule 23(b)(2).
Dukes, 131 S.Ct. at 2557.
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b)
23(b)(3)
In contrast to Rule 23(b)(2), individualized monetary claims belong under Rule
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23(b)(3), with its procedural protections of predominance, superiority, mandatory notice,
12
and the right to opt out. Id. at 2545. Rule 23(b)(3) requires the Court to find that: (1) the
13
questions of law or fact common to class members predominate over any questions
14
affecting only individual members, and (2) a class action is superior to other available
15
methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).
16
These requirements are called the predominance and superiority requirements. Hanlon,
17
150 F.3d at 1022-23. Rule 23(b)(3) does not require plaintiffs seeking class certification to
18
prove that each element of their claim is susceptible to classwide proof. See Amgen Inc. v.
19
Connecticut Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1196 (2013). Rather, plaintiffs need
20
only show that common questions predominate over any questions affecting only
21
individual [class] members. Id. (quoting Fed. Rule Civ. Proc. 23(b)(3)).
22
With respect to members of the Claims Class, Plaintiffs allege that PayPal utilized
23
standardized form contracts and uniformly breached those contracts in the same manner
24
with respect to Plaintiffs and the other members of the Claims Class. This is sufficient to
25
show that common questions of fact and law predominate. See Gutierrez v. Wells Fargo
26
7
Unlike Rule 23(b)(3), a plaintiff does not need to show predominance of common
issues or superiority of class adjudication to certify a Rule 23(b)(2) class. Rather, only a
showing of cohesiveness of class claims is required. Walters v. Reno, 145 F.3d 1032, 1047
28 (9th Cir. 1998).
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Bank, No. C 07-5923 WHA, 2008 WL 4279550, *17 (N.D. Cal. Sept. 11, 2008) (finding
that commonality and predominance requirements were satisfied where [t]he challenged
practice is a standardized one applied on a routine basis to all customers by the bank); see
also In re Med. Capital Secs. Litig., 2011 WL 5067208, at *3 (C.D. Cal. July 26, 2011)
(Courts routinely certify class actions involving breaches of form contracts.). Moreover,
resolving those claims in a single action is superior to attempting to resolve the class
members claims through individual actions. Class certification as to the Claims Class is
therefore appropriate under Rule 23(b)(3).
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B.
CLASS NOTICE
Notice to the class is required for classes certified under Rule 23(b)(3), but not for
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classes certified under (b)(1) or (b)(2). Fed. R. Civ. P. 23(c)(2), (e)(1); see Dukes, 131
12
S.Ct. at 2558 (The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt
13
out, and does not even oblige the District Court to afford them notice of the action.).8
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Notice must generally describe the terms of the settlement in sufficient detail to alert those
15
with adverse viewpoints to investigate and to come forward and be heard. Mendoza v.
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United States, 623 F.2d 1338, 1352 (9th Cir. 1980). In order to satisfy due process
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considerations, notice must be reasonably calculated, under all the circumstances, to
18
apprise interested parties of the pendency of the action and afford them an opportunity to
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present their objections. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994).
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Here, notice to the Settlement Class will be sent by e-mail, which is the primary
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method that PayPal uses to communicate with its subscribers. The e-mail notice will
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contain a hyperlink to the settlement website, where a detailed long-form notice will be
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For classes certified under Rule 23(b)(3), the Court must direct to class members
the best notice practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort. Id. 23(c)(2)(B). The notice
must clearly and concisely state in plain, easily understood language: (i) the nature of the
action; (ii) the definition of the class certified; (iii) the class claims, issues or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so
desires; (v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class
judgment on members under Rule 23(c)(3). Id.
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available. For Claims Class members eligible to submit a claim over $3.00 but whose e-
mail addresses bounce back, the e-mail notice will be followed by a postcard notice sent
by regular mail. In addition, the settlement administrator will conduct an Internet notice
program consisting of banner ads placed on websites likely to be visited by PayPal users.
The email and Internet notice will be provided to Settlement Class Members so that they
have at least sixty days before the opt-out and objection deadline, and the mailed notice will
be mailed at least thirty days before the deadline, thus providing Settlement Class members
more than sufficient time to decide whether to participate in the settlement, object, or (as to
the Claims Class) opt out. The Court finds that Plaintiffs proposed methods of
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disseminating notice of the settlement is the best notice practicable given the
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circumstances.
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Furthermore, the Court finds the content of the proposed notice to be appropriate.
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The notice outlines: the background of the case; a summary of the settlement; the
14
definition of the classes certified; how to opt out, object or otherwise comment on the
15
settlement; attorneys fees; who to contact for additional information; and a paragraph
16
outlining the review and approval process the court will implement to determine whether
17
the settlement warrants approval. See Todzo Decl. Ex. 1 at 95-110. Thus, the proposed
18
form of notice provides class members with information on which to base their decision to
19
remain in the class, to opt out or to object to the settlement. Rodriguez v. West Publg
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Corp., 563 F.3d 948, 962 (9th Cir. 2009) (finding that the content of a notice to class
21
members is satisfactory if it generally describes the terms of the settlement in sufficient
22
detail to alert those with adverse viewpoints to investigate and to come forward and be
23
heard.) (citation omitted). Accordingly, the court approves the proposed notice, as to
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both form and content.
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C.
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An order certifying a class action . . . must appoint class counsel under Rule 23(g).
APPOINTMENT OF CLASS COUNSEL
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Fed. R. Civ. P. 23(c)(1)(B). The court considers several factors, including: the work
28
counsel has done in identifying or investigating potential claims in the action; counsels
- 15 -
experience in handling class actions, other complex litigation and the types of claims
asserted in the action; counsels knowledge of the applicable law; and the resources that
counsel will commit to representing the class. Fed. R. Civ. P. 23(g).
In their motion, Plaintiffs propose appointing four law firms as Class Counsel:
(1) Quantum Legal, LLC (formerly known as Complex Litigation Group LLC, see Dkt.
262); (2) Lexington Law Group; (3) Farmer, Jaffe, Weissing, Edwards, Fistos & Leherman,
P.L.; and (4) Kohn, Swift & Graf, P.C.. Dkt. 275 at 23. The instant motion does not
address the qualifications of any of these firms in the context of the Rule 23(g) factors.
Nonetheless, the Court notes that Quantum Legal and Lexington Law Group negotiated the
10
instant settlement and have submitted the vast majority of filings on behalf of Plaintiffs in
11
this case. In addition, Plaintiffs have submitted short firm biographies for both of Quantum
12
Legal and Lexington Law Group which summarize their experience in class actions. Todzo
13
Decl. Exs. 4, 5. In contrast, no information is offered regarding the other two firms, whose
14
involvement in this actionbased on the information presentedappears to have been
15
minimal. Accordingly, the Court approves only Quantum Legal and Lexington Law Group
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as Class Counsel.
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D.
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Though not addressed in Plaintiffs motion for preliminary approval, the
SCHEDULE
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accompanying proposed order includes a schedule for the final approval of the settlement.
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Proposed Order at 3-8, Dkt. 275-8. Of particular note is Plaintiffs request for a period of
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180 days from the preliminary approval date to effectuate notice to the class and to file their
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motion for attorneys fees. Id. at 3.9 They also request that the final approval hearing be
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scheduled no earlier than 275 days (i.e., approximately 9 months) from the date the
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preliminary approval order. Id. at 6. Neither Plaintiffs nor Defendants offer any
25
explanation to justify the proposed extended schedule nor is the need for one readily
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apparent to the Court. Accordingly, the parties shall meet and confer and jointly propose a
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There is no proposed deadline for filing a motion for final approval.

- 16 -
final approval schedule that will result in a final approval hearing schedule no less than six
months from the date this order is filed. If the parties are in agreement that advancing the
final approval schedule in that manner is not practicable, the stipulation and proposed order
shall provide a detailed explanation for their proposed final approval schedule.
III.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED THAT Plaintiffs Motion for Preliminary Approval of
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Class Action Settlement is GRANTED, as follows:

1.
Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) & (3), the Court
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conditionally certifies, for settlement purposes only, a proposed Settlement Class comprised
11
of a Claims Class and an Injunctive Relief Class.
12
a.
The Injunctive Relief Class is defined as: All current and former
13
users of PayPal in the United States who had an active PayPal account between
14
April 19, 2006 and the date of entry of the Preliminary Approval Order.
15
b.
The Claims Class is defined as: All current and former users of
16
PayPal in the United States who: (1) had an active PayPal account between April
17
19, 2006 and the date of entry of the Preliminary Approval Order; and (2) had a hold
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or reserve placed on the account and/or the account was closed or suspended by
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PayPal. Excluded from the Claims Class are judicial officers presiding over this
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action and the members of their immediate families and judicial staff.
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2.
The Court hereby appoints Plaintiffs Moises Zepeda, Michael Spear, Ronya
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Osman, Brian Pattee, Casey Ching, Denae Zamora, Michael Lavanga and Gary Miller as
23
class representatives pursuant to Rule 23 of the Federal Rules of Civil Procedure.
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3.
Jeffrey A. Leon of Quantum Legal LLC and Mark N. Todzo and Howard
Hirsch of Lexington Law Group are appointed as counsel for the Settlement Class.
4.
Epiq Systems is appointed as Settlement Administrator and shall perform the
duties described in the Amended Settlement Agreement.
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5.
Within fourteen (14) days of the date this Order is filed, the parties shall, in
the manner discussed above, submit a stipulation and proposed order to schedule deadlines
for, inter alia, filing the Third Amended Complaint, providing notice to the class, the filing
of motions for final approval and motion for attorneys fees and incentive awards,
responding to any objections, and the final approval hearing.
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IT IS SO ORDERED.
Dated: 11/5/15
______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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STROOCK & STROOCK & LAVAN LLP

JULIA B. STRICKLAND (State Bar No. 083013)
DAVID W. MOON (State Bar No. 197711)
WESLEY M. GRIFFITH (State Bar No. 286390)
2029 Century Park East, Suite 1800
Los Angeles, CA 90067-3086
Telephone: 310-556-5800
Facsimile: 310-556-5959
Email: lacalendar@stroock.com
Attorneys for Defendants
PAYPAL, INC. and EBAY INC.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MOISES ZEPEDA, MICHAEL SPEAR,

)
RONYA OSMAN, BRIAN PATTEE,
)
CASEY CHING, DENAE ZAMORA,
)
MICHAEL LAVANGA, and GARY
)
MILLER, on behalf of themselves and all others )
similarly situated,
)
)
Plaintiffs,
)
v.
)
)
PAYPAL, INC., et al.,
)
)
Defendants.
)
)
)
Case No. 10-CV-02500 SBA

Related to : Case No. 10-CV-1668 SBA
[PROPOSED] ORDER SETTING FINAL
APPROVAL SCHEDULE
[Stipulation Re Final Approval Schedule filed
concurrently]
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[PROPOSED] ORDER SETTING FINAL APPROVAL SCHEDULE
CASE NO. 10-CV-02500 SBA
LA 51963003V1
[PROPOSED] ORDER
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The Court previously entered an Order (ECF No. 281) granting the Motion for Preliminary
Approval of Amended Class Action Settlement Agreement (ECF No. 275) filed by plaintiffs
Moises Zepeda, Michael Spear, Ronya Osman, Brian Pattee, Casey Ching, Denae Zamora, Michael
Lavanga and Gary Miller (Plaintiffs).
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Having read and considered the final approval schedule proposed by Plaintiffs and
defendants PayPal, Inc. (PayPal) and eBay Inc. (together, Defendants), IT IS HEREBY
ORDERED as follows:
2029 Century Park East

Los Angeles, California 90067-3086
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1.
Capitalized terms are used herein as defined in the Settlement Agreement (ECF No.
2.
Plaintiffs shall file their Third Amended Complaint, which shall be deemed
275-2).
controverted without the need for Defendants to file a responsive pleading, within two days of the
date this order is filed. on or before January 1, 2016.
3.
Notwithstanding the date specified in 1.34 and 8.1 of the Settlement Agreement,
PayPal shall provide the summary Email Notice to Settlement Class Members on or before March
11, 2016.
4.
Notwithstanding any dates specified in 8.4 of the Settlement Agreement, the
Settlement Administrator shall establish the Settlement Website no later than the day the Email
Notice is first sent.
5.
Any application or petition for attorneys fees and costs or service awards pursuant
to 6.1 of the Settlement Agreement shall be made on or before March 11, 2016.
6.
Supplemental summary Postcard Notice will be provided by the Settlement
Administrator pursuant to 8.2 of the Settlement Agreement on or before April 10, 2016.
7.
Notwithstanding the date set forth in 5.6 and 9.1(h) of the Settlement Agreement,
all Claim Forms must be submitted no later than May 10, 2016, after which no person shall be
allowed to submit a Claim Form.
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-1[PROPOSED] ORDER SETTING FINAL APPROVAL SCHEDULE
LA 51963003V1
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8.
Claims Class Members may exclude themselves from the Claims Class by mailing a
request for exclusion in the form and to the address(es) specified in the Website Notice.
Notwithstanding the date set forth in 9.1(g) and 9.3 of the Settlement Agreement, all such
written requests must be postmarked on or before May 10, 2016. Claims Class Members may not
exclude themselves from the Injunctive Relief Class, and members of only the Injunctive Relief
Class may not exclude themselves from the Injunctive Relief Class. Any Claims Class Member
who does not properly and timely request exclusion shall be included in the Claims Class and shall
be bound by all determinations and any judgment entered in the action.
9.
If the number of Claims Class Members who would otherwise each be entitled to
payments of over three dollars exceeds two hundred fifty opt-outs or the total number of opt-outs of
Claims Class Members exceeds five hundred, then Defendants may terminate the settlement in
their sole discretion, and the Parties shall be returned to the status quo ante as of the date of
execution of the Prior Agreement (originally filed as ECF No. 112-1 and re-filed as ECF No. 166)
for all litigation purposes, as if no settlement had been negotiated or entered into, and the terms of
the Settlement Agreement and the fact that the Settlement Agreement was reached shall not be
referred to by the Parties in connection with any further proceedings. If Defendants exercise this
right to terminate the Settlement Agreement, they shall provide Class Counsel and the Court with
written notice of this election no later than May 30, 2016.
10.
Any member of the Settlement Class may object to the fairness, reasonableness, or
adequacy of the Settlement, the request for an award of fees and costs to Class Counsel or the
awards to the Settlement Class representatives and may do so either on their own or through
counsel hired at their own expense, except those Claims Class Members who have timely
submitted a written request for exclusion from the Claims Class, who may only object to those
portions of the Settlement from which they have not been excluded. All objections must be in
writing and must: (i) clearly identify the case name and number (Zepeda v. PayPal, Case Number
10-cv-02500-SBA); (ii) be submitted to the Court either by mailing them to the Class Action Clerk,
United States District Court for the Northern District of California, 1301 Clay Street, Oakland, CA
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LA 51963003V1
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94612, or by filing them in person at any location of the United States District Court for the
Northern District of California; (iii) be filed or postmarked on or before sixty (60) days after the
Notice Deadline; (iv) include the Settlement Class Members name, address and telephone number;
(v) include an e-mail address associated with their PayPal account(s); (vi) include a sentence
confirming, under penalty of perjury, that the person is a Settlement Class Member; (vii) identify
the factual basis and legal grounds for the objection to the settlement; (viii) identify any witnesses
whom the Settlement Class Member may call to testify at the Final Approval Hearing; and (ix)
include copies of any exhibits the Settlement Class Member intends to offer into evidence at the
Final Approval Hearing. Notwithstanding the date set forth in 9.1(g) and 9.3 of the Settlement
Agreement, objections and requests to appear must be filed with the Court on or before May 10,
2016. By submitting an objection, such objecting Settlement Class Member agrees to sit for a
deposition in his or her county or other agreed location. Any Settlement Class Member who fails
to timely and properly file and serve any written objection as required by this paragraph will not be
permitted to be heard at the hearing or otherwise to contest approval of the Settlement or to appeal
from any orders or judgments of the Court. Any Settlement Class Member who fails to timely and
properly file a written objection and a request to appear will not be permitted to be heard at the
Final Approval Hearing.
11.
Any Settlement Class Member who fails to timely file a written objection with the
Court as prescribed herein shall be deemed to have waived his or her objections and forever be
barred from making any such objections in this Action or in any other action or proceeding.
12.
Any responses to objections to the Settlement Agreement and any papers in support
of the Settlement shall be filed with the Court at least thirty (30) fourteen (14) days before the
Final Approval Hearing.
13.
No later than seven (7) five (5) days before the Final Approval Hearing, Defendants
or the Settlement Administrator shall file with the Court a declaration verifying that notice has been
provided to the Settlement Class as set forth in this Order.
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LA 51963003V1
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Armstrong, Courtroom 1, Oakland Courthouse, 1301 Clay Street, Oakland, California 94612, on
July 13, 2016 at 1:00 PM to determine whether there exists any reason why the settlement should
not be approved as being fair, reasonable and adequate, and in the best interests of the Settlement
Class, and why judgment should not be entered thereon. The Final Approval Hearing may be
postponed, adjourned, or continued by order of the Court without further notice to the Settlement
Class. After the Final Approval Hearing, the Court may enter a final approval order and final
judgment that will adjudicate the rights of the Settlement Class Members with respect to the claims
being settled.
15.
15
Agreement is terminated pursuant to its terms for any reason, then the following shall apply:
(a)
18
purposes whatsoever, and shall not be admissible or discoverable in any other proceeding;
(b)
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entered into;
(c)
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The conditional certification of the Settlement Class pursuant to the
Preliminary Approval Order shall be vacated automatically and void; no doctrine of waiver,
estoppel or preclusion shall be asserted in any litigated certification proceedings in these actions;
and the Settlement Agreement and its existence shall be inadmissible to establish any fact relevant
to class certification or any alleged liability of Defendants for the matters alleged in the actions or
for any other purpose; and
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All parties shall return, without prejudice, to the status quo ante as of the
date of the Prior Agreement as if the Prior Agreement and the Settlement Agreement had not been
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All orders and findings entered in connection with the settlement shall
become null and void and have no further force and effect, shall not be used or referred to for any
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In the event the Settlement is not approved by the Court, or for any reason the
Effective Date contemplated in the Settlement Agreement does not occur, or the Settlement
13
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A Final Approval Hearing shall be held before the Honorable Saundra B.
(d)
Neither the settlement terms nor any publicly disseminated information
regarding the settlement, including, without limitation, the class notices, court filings, orders and
public statements, may be used as evidence for any purpose whatsoever. In addition, neither the
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fact of, nor any documents relating to, any withdrawal from the settlement, any failure of the Court
to approve the settlement or any objections or interventions may be used as evidence for any
purpose whatsoever.
16.
All other proceedings in this action are stayed until further order of the Court,
except as may be necessary to implement the terms of the settlement. Pending final determination
of whether the settlement should be approved, Plaintiffs and all Settlement Class Members and all
persons purporting to act on behalf of Settlement Class Members are enjoined, directly, on a
representative basis or in any other capacity, from asserting, commencing, prosecuting or
continuing any of the Released Claims against Defendants or any of the other Released Parties in
any action, arbitration or proceeding in any court, arbitral forum or tribunal.
17.
In the event that any of the provisions of this Preliminary Approval Order is asserted
by PayPal or eBay as a defense in whole or in part to any Released Claim or otherwise asserted in
any other suit, action or proceeding by a Settlement Class Member, that suit, action or other
proceeding shall be immediately stayed and enjoined until this Court or the court or tribunal in
which the claim is pending has determined any issues related to such defense or assertion. Solely
for purposes of such suit, action or other proceeding, to the fullest extent they may effectively do so
under applicable law, the Parties irrevocably waive and agree not to assert, by way of motion, as a
defense or otherwise, any claim or objection that they are not subject to the jurisdiction of the
Court, or that the Court is, in any way, an improper venue or an inconvenient forum. These
provisions are necessary to protect the Settlement Agreement, this Order and this Courts flexibility
and authority to effectuate the Settlement Agreement and are ordered in aid of this Courts
jurisdiction and to protect its judgment.
IT IS SO ORDERED.
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Dated: 1/27/16
_______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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-5-
[PROPOSED] ORDER SETTING FINAL APPROVAL SCHEDULE

LA 51963003V1

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Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 1 of 18

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOISES ZEPEDA, MICHAEL SPEAR,

Case No: C 10-2500 SBA

5 RONYA OSMAN, BRIAN PATTEE,

CASEY CHING, DENAE ZAMORA,

MILLER, on behalf of themselves and all

10 PAYPAL, INC., E-BAY INC., and DOES 1

ORDER GRANTING PLAINTIFFS

through 10, inclusive,

This is a putative nationwide class action brought by Plaintiffs Moises Zepeda,

Amended Class Action Settlement Agreement.1

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 2 of 18

Defendant Paypal operates an on-line payment processing service that functions as a

services sold on-line through websites. As a condition of using PayPals service,

breach of its termssuch as by engaging in defined Restricted ActivitiesPayPal may

counterfeit goods, and providing false or inaccurate information. Id. 37.

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 3 of 18

re PayPal Litigation (Comb), No. C 02-01227 JF (Comb).3 Dkt. 110. As Defendants,

referred both to Magistrate Judge Nathanael Cousins for a mandatory settlement

In Comb, plaintiffs, on behalf of a class defined as [a]ll Persons who opened a

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 4 of 18

motion for preliminary approval. Id. at 12.

4.5, Dkt. 275-2.

a PayPal account. Id. 1.6, 1.7.

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 5 of 18

to the nearest $1.00 or $10.00, as follows:

by payment of Basic Claims, attorneys fees and administrative costs, then up to an

world, including the rights of users of commercial websites, such as PayPal.

Id. 1.19, 1.20.

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 6 of 18

2008. Id. at 12.

The Current Settlement

approval of the Settlement Agreement, as amended (Amended Settlement Agreement).

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 7 of 18

Plaintiffs now move for preliminary approval of the Amended Settlement

if Proposed Settlement in Approved. Dkt. 277.4

which requires a court to determine whether a proposed settlement is fundamentally fair,

Commn, 688 F.2d 615, 625 (9th Cir. 1982).

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 8 of 18

improperly grant preferential treatment to class representatives or segments of the class,

30.44 (1985)). The initial decision to approve or reject a settlement proposal is

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 9 of 18

improperly grants preferential treatment to class representatives or segments of the class, or

that it is outside the range of possible approval.5

The Court is unpersuaded by Burgess objections. As an initial matter, since

heard concerning their support for, or objection to, the settlement).6

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 10 of 18

521 U.S. 591, 614 (1997).

CONDITIONAL CLASS CERTIFICATION

Rule 23(a) Requirements

The four requirements of Rule 23(a) are commonly referred to as numerosity,

commonality, typicality, and adequacy of representation (or just adequacy),

impracticable. Fed. R. Civ.P. 23(a)(1). Numerosity is satisfied here, as the proposed

settlement class includes millions of potential members. Joinder of millions of individual

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 11 of 18

existence of shared legal issues with divergent factual predicates is sufficient, as is a

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 12 of 18

action vigorously on behalf of the class? Ellis, 657 F.3d at 985.

requirements, has been sufficiently demonstrated.

Rule 23(b) Requirements

Case 4:10-cv-02500-SBA Document 281 Filed 11/05/15 Page 13 of 18

Dukes, 131 S.Ct. at 2557.