FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE EASYSAVER REWARDS No. 16-56307 LITIGATION, D.C. No. 3:09-cv-02094- JOSUE ROMERO; DEANNA HUNT; BAS-WVG KIMBERLY KENYON; GINA BAILEY; ALISSA HERBST; GRANT JENKINS; BRADLEY BERENTSON; JENNIFER OPINION LAWLER; DANIEL COX; JONATHAN WALTER; CHRISTOPHER DICKEY, Plaintiffs-Appellees, v. BRIAN PERRYMAN, Objector-Appellant, v. PROVIDE COMMERCE, INC.; REGENT GROUP, INC., a California corporation, DBA Encore Marketing International; ENCORE MARKETING INTERNATIONAL, INC., a Delaware corporation, Defendants-Appellees. 2 IN RE EASYSAVER REWARDS LITIGATION Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding Argued and Submitted May 17, 2018 San Francisco, California Filed October 3, 2018 Before: N. Randy Smith and Michelle T. Friedland, Circuit Judges, and Barbara M. G. Lynn, * Chief District Judge. Opinion by Judge Friedland SUMMARY ** Class Action / Settlement The panel vacated the award of attorney’s fees but otherwise affirmed the district court’s approval of a class action settlement in an appeal brought by an objecting class member, challenging the settlement resolving claims that Provide Commerce, Inc. and Regent Group, Inc. enrolled consumers in a membership rewards program without their consent and mishandled their billing information. * The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IN RE EASYSAVER REWARDS LITIGATION 3 The settlement made available $3.5 million to pay settlement administration costs and refund class members’ enrollment fees, with any remaining funds designated for three cy pres beneficiaries. The settlement also provided that each class member would receive a $20 credit that may be used to purchase additional products from defendants. The settlement anticipated that class counsel would receive $8.7 million in attorney’s fees. The panel vacated the fee award because the district court failed to treat the credits as coupons under the Class Action Fairness Act when calculating that award. The panel held that because the district court incorporated the full face value of the coupons into both its percentage-of-recovery calculation and lodestar calculation of the attorney’s fee award, the error required recalculation of the fee award. The panel held that the district court did not abuse its discretion in approving the use of cy pres here or in approving the particular recipients. The panel also held that the district court did not abuse its discretion in rejecting the Objector’s two proposed alternatives for distributing the remaining funds. Finally, given both the structure of this settlement agreement and the focus of Objector’s challenges, the panel held that it was unnecessary to reverse the entire settlement approval in conjunction with the panel’s vacatur of the fee award. COUNSEL Theodore H. Frank (argued) and Adam E. Schulman, Competitive Enterprise Institute, Center for Class Action 4 IN RE EASYSAVER REWARDS LITIGATION Fairness, Washington, D.C., for Objector-Appellant Brian Perryman. Bruce Steckler (argued), Steckler Law Group LLP, ...
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