Shin v. Plantronics, Inc., No. 5:2018cv05626 - Document 64 (N.D. Cal. 2019)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT. Re: Dkt. No. 57 . The Court SETS a further case management conference for 8/12/2019, at 10:00 AM. The parties must file a joint case management statement by 8/5/2019. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 6/17/2019)
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Shin v. Plantronics, Inc. Doc. 64 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 Case No. 18-cv-05626-NC PHIL SHIN, 11 United States District Court Northern District of California Plaintiff, 12 v. 13 PLANTRONICS, INC., 14 Defendant. 15 ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT Re: Dkt. No. 57 16 17 In this consumer class action, plaintiff Phil Shin moves for preliminary approval of 18 a proposed class action settlement. See Dkt. No. 57; see also Dkt. No. 57-1 (“Settlement 19 Agreement”). The parties seek to settle all claims relating to defendant Plantronics Inc.’s 20 wireless headphones in exchange for an extended limited warranty or cash payment for 21 class members. See id. For the following reasons, the Court DENIES Shin’s unopposed 22 motion for preliminary approval. 23 I. 24 25 Background A. Factual Background Plantronics is a headphones designer and manufacturer, who created the BackBeat 26 FIT wireless headphones (the “Headphones”). See Dkt. No. 35 (“FAC”) ¶¶ 1, 11. The 27 Headphones are marketed as “sweatproof” and “waterproof,” with rechargeable batteries 28 that are supposed to last for up to eight hours per charge. Id. ¶¶ 2–3. Dockets.Justia.com 1 Shin purchased his Headphones through an online retailer in March 2015 after 2 seeing Plantronics’s advertisements. Id. ¶¶ 10, 36–38. By mid-January 2016, Shin noticed 3 that the Headphones became difficult to charge. Id. ¶ 40. Shin suspected that the battery 4 life diminished because he used the Headphones while exercising, but they were not sweat- 5 or waterproof. Id. ¶ 41. Plantronics provided Shin with a replacement in February, but the 6 replacement failed as well. Id. 7 8 United States District Court Northern District of California 9 B. Procedural History Shin initiated this lawsuit on September 13, 2018. See Dkt. No. 1. On December 14, 2018, in response to Plantronics’s motion to dismiss, Shin amended his complaint 10 alleging eight claims for relief: (1) breach of express warranty under the Magnuson Moss 11 Warranty Act, 15 U.S.C. § 2301; (2) breach of implied warranty under the Magnuson 12 Moss Warranty Act, 15 U.S.C. § 2301; (3) breach of express warranty under California 13 law; (4) breach of the implied warranty of merchantability under the California Song- 14 Beverly Act, Cal. Civ. Code §§ 1791 et seq.; (5) breach of the implied warranty of fitness 15 for a particular purpose; (6) violation of California’s Consumers Legal Remedies Act, Cal. 16 Civ. Code §§ 1761 et seq.; (7) violation of California’s Unfair Competition Law, Cal. Bus. 17 & Prof. Code §§ 17200 et seq.; and (8) fraud. See FAC ¶¶ 61–175. Each claim is 18 predicated on Shin’s allegations regarding the Headphones’ “rapidly diminishing battery 19 life” and “failure to resist sweat and water” as warranted. Id. ¶ 6. 20 On February 13, 2019, Plantronics moved to dismiss the first amended complaint. 21 See Dkt. No. 40. The parties completed their briefing and the Court held a hearing on the 22 motion on March 27, 2019. See Dkt. Nos. 44, 45, 47. One day later, and before the Court 23 ruled on Plantronics’s motion, the parties reached a settlement and filed a joint notice of 24 class action settlement the following week. See Dkt. No. 57 at 11; see also Dkt. Nos. 49, 25 50. Shin moved for preliminary approval of the class action settlement on May 24, 2019. 26 See Dkt. No. 57. The Court held a hearing on June 12, 2019. See Dkt. No. 61. All parties 27 have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 13, 17. 28 2 C. 1 The Settlement seeks to settle claims for a proposed settlement class of “all Persons 2 3 domiciled within the United States and its territories who purchased at retail the 4 Headphones . . . during the period of time from April 1, 2014 through the Notice Date.” 5 See Settlement § 3.8. Under the Settlement, class members are entitled to one of three alternative 6 United States District Court Northern District of California Settlement Agreement 7 remedies. See id. § 6. Alternative 1 is an extended limited warranty that runs from the 8 effective date of the Settlement. See id. § 6.2. This alternative is limited to class members 9 who purchased Headphones after January 1, 2018. Id. Under the extended warranty, class 10 members may receive a functional replacement1 if their Headphones suffers from a battery 11 charging issue. Id. §§ 6.2(b), 6.4. Alternative 2 is a $50 cash payment. See id. § 6.6.1. 12 To qualify for this alternative, class members must provide proof of purchase and evidence 13 that they had previously complained to Plantronics that their Headphones did not function 14 properly due to a battery charging issue. Id. § 6.6.1(b), (c). Alternative 3 is a $25 cash 15 payment. See id. § 6.6.2. Under this alternative, class members must provide proof of 16 purchase and only need to attest that their Headphones malfunctioned or failed to work 17 properly due to a battery charging issue. Id. § 6.6.2(b), (c). In return, class members who do not opt out of the settlement agree to release all 18 19 claims relating to “any alleged defect or deficiency in the Headphones” and Plantronics’s 20 advertising relating to the Headphones. Id. § 11.1. Claims for personal injury and 21 emotional distress are not waived. Id. § 11.2. Under the Settlement, the Settlement Administrator is responsible for providing 22 23 notice. See id. § 7. A full Settlement Notice and Short Form Notice will be sent to 24 individuals who purchased or registered their Headphones from Plantronics, and 25 reasonably identifiable individuals who purchased the Headphones from third parties. Id. 26 27 28 The replacement headphones are not identical to the Headphones at issue; they “are a new design and utilize batteries from a different manufacturer than the Headphones that are the subject of this litigation.” See Dkt. No. 57-7 (“Goldenberg Decl.”) ¶ 9. 3 1 1 §§ 7.3(a), (b); see also Dkt. Nos. 57-3, 57-4 (Short Form Notices), 57-5 (full Settlement 2 Notice). The Settlement permits Class Counsel to move for an order directing third-party 3 retailers to provide contact information for customers who purchased the Headphones. Id. 4 § 7.3(d). In addition, the Settlement Administrator will also publish the Settlement Notice 5 and maintain a website for class members to submit claims. See id. §§ 7.4, 7.5. 6 II. United States District Court Northern District of California 7 Legal Standard Federal Rule of Civil Procedure 23(e) requires judicial approval of any settlement 8 by a certified class. “The purpose of Rule 23(e) is to protect the unnamed members of the 9 class from unjust or unfair settlements affecting their rights. Pilkington v. Cardinal 10 Health, Inc. (In re Syncor ERISA Litig.), 516 F.3d 1095, 1100 (9th Cir. 2008)). 11 Accordingly, a settlement should only be approved if it is “fundamentally fair, adequate, 12 and reasonable.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) 13 (internal quotation marks omitted). In determining whether the proposed settlement meets 14 this standard, the Court does not have the ability “to delete, modify, or substitute certain 15 provisions . . . . The settlement must stand or fall in its entirety.” Id. Due to the dangers of 16 collusion between class counsel and the defendant, settlement approval that takes place 17 prior to formal class certification requires a higher standard of fairness. Hanlon v. 18 Chrysler Corp., 150 F.3d 1011, 1026 (1998). 19 “The Court may grant preliminary approval of a settlement and direct notice to the 20 class if the settlement: “(1) appears to be the product of serious, informed, non-collusive 21 negotiations; (2) has no obvious deficiencies; (3) does not improperly grant preferential 22 treatment to class representatives or segments of the class; and (4) falls within the range of 23 possible approval.” Harris v. Vector Mktg. Corp., No. 08-cv-05198-EMC, 2011 WL 24 1627973, at *7 (N.D. Cal. 2011); In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 25 1080 (N.D. Cal. 2007). 26 III. Discussion 27 28 The Court denies the motion for preliminary approval of the class action settlement for three reasons. First, the parties’ Settlement releases claims based on facts beyond those 4 1 alleged in the first amended complaint. Second, the Settlement relief is not adequate. 2 Third, the parties’ proposed notices and notice plan is lacking. 3 4 Identical Factual Predicate Rule In the Ninth Circuit, “a settlement agreement may preclude a party from bringing a 5 related claim in the future ‘even though the claim was not presented and might not have 6 been presentable in the class action,’ but only where the released claim is ‘based on the 7 identical factual predicate as that underlying the claims in the settled class action.’” Hesse 8 v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (quoting Williams v. Boeing Co., 517 9 F.3d 1120, 1133 (9th Cir. 2008). Thus, settlements may release claims only when “those 10 claims depend on the same set of facts as the claims that gave rise to the settlement.” Id. 11 United States District Court Northern District of California A. Courts in this district have routinely denied approval of class action settlements 12 under this rule. In Custom LED, LLC v. eBay, Inc., No. 12-cv-00350-JST, 2013 WL 13 4552789, at *1, 4, 6 (N.D. Cal. Aug. 27, 2013), the court denied approval of a class action 14 settlement that released claims “regardless of whether any such claim is based on the 15 [breach-of-contract] allegations in the complaint.” Likewise, in Chavez v. PVH Corp., No. 16 13-cv-01797-LHK, 2015 WL 581382, at *5–6 (N.D. Cal. Feb. 11, 2015), the court denied 17 approval of an unpaid wages class settlement that attempted to release claims related to 18 meal breaks, bag checks, or overtime pay even though those claims would arise under the 19 same California statute. See also Christensen v. Hillyard, Inc., No. 13-cv-04389-NC, 2014 20 WL 3749523, at *4 (N.D. Cal. July 30, 2014) (denying approval of class settlement 21 because “it does not directly track the allegations in the complaint.”). 22 This Settlement suffers from a similar deficiency. The Settlement releases “any and 23 all manner of . . . claims alleged or that could have been alleged in the Lawsuit or that arise 24 from or relate to any act, harm, omission . . . or event whatsoever arising out of the 25 performance of the Headphones, any alleged defect or deficiency in the Headphones, 26 Defendant’s advertising, marketing . . . or sale or distribution of the Headphones . . . .” 27 Settlement § 11.1 (emphasis added). The first amended complaint, however, limits its 28 factual allegations to alleged defects with the Headphone’s battery, inability to resist sweat 5 1 or water as warranted, and Plantronics’s allegedly misleading representations regarding the 2 Headphones’ battery life and sweat- or waterproofing. See generally, FAC. But the 3 Settlement releases claims that may arise from facts not alleged in the first amended 4 complaint. For example, as Shin’s counsel noted at the preliminary approval hearing, the 5 Settlement would release claims concerning a defect that renders the Headphones unable to 6 moderate volume. But this defect may be wholly unrelated to the alleged battery problems 7 or lack of waterproofing. Such a broad release of claims cannot be approved. This reason 8 alone warrants denial. 9 United States District Court Northern District of California 10 B. Adequacy of Settlement The Court also finds that the settlement is inadequate. To reiterate, the Settlement 11 provides three alternative remedies for the class: (1) an extended limited warranty for class 12 members who purchased their Headphones after January 1, 2018; (2) a $50 cash payment 13 with proof of a prior complaint regarding a battery charging issue; or (3) a $25 cash 14 payment without such proof. See Settlement § 6.6. 15 16 17 The recently amended Rule 23(e) requires that the Court consider four overarching factors before approving a class settlement: (A) the class representative and class counsel have adequately represented the class; 18 19 (B) the proposal was negotiated at arm’s length; 20 (C) the relief provided for the class is adequate, taking into account: 21 (i) the costs, risks, and delay of trial and appeal; 22 (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; 23 (iii) 24 of payment; and 25 (iv) 26 27 28 the terms of any proposed award of attorney’s fees, including timing (D) any agreement required to be identified under Rule 23(e)(3); and the proposal treats class members equitably relative to each other. Fed. R. Civ. P. 23(e)(2). This amendment does not “displace any factor” previously 6 1 announced by the Ninth Circuit, but instead “focus the court and the lawyers on the core 2 concerns of procedure and substance that should guide the decision whether to approve the 3 proposal.” Advisory Committee Notes, Fed. R. Civ. P. 23, subdiv. (e)(2) (2018). United States District Court Northern District of California 4 Thus, the Court will also consider factors outlined by the Ninth Circuit to determine 5 the fairness, adequacy, and reasonableness of the settlement: “(1) the strength of the 6 plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; 7 (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in 8 settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the 9 experience and views of counsel; (7) the presence of a governmental participant; and (8) 10 the reaction of the class members to the proposed settlement.” Churchill Village, L.L.C. v. 11 General Electric, 361 F.3d 566, 575 (9th Cir. 2004) (citing Hanlon, 150 F.3d at 1026). 12 Further, because settlement was reached before formal class certification, a “higher level 13 of scrutiny for evidence of collusion or other conflicts of interest [is] required . . . .” Jones 14 v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), 654 F.3d 935, 946 (9th 15 Cir. 2011) (citing Hanlon, 150 F.3d at 1026). 16 Here, the fourth and fifth Hanlon factors weigh against approval of the Settlement. 17 Likewise, “the terms of [the] proposed award of attorney’s fees” also caution against 18 approval. Fed. R. Civ. P. 23(e)(2)(iii); see also In re Bluetooth, 654 F.3d at 947 (“[C]ourts 19 therefore must be particularly vigilant . . . when the parties negotiate a ‘clear sailing’ 20 arrangement providing for the payment of attorneys’ fees separate and apart from class 21 funds . . . .”). 22 Under the fourth Hanlon factor, courts often compare the proposed class’ expected 23 recovery at trial to the value of the proposed settlement. See Terry v. Hoovestol, Inc., No. 24 16-cv-5183-JST, 2018 WL 4283420, at *4 (N.D. Cal. Sept. 7, 2018) (citing In re 25 Tableware, 484 F. Supp. 2d at 1080). “[A] cash settlement amounting to only a fraction of 26 the potential recovery does not per se render the settlement inadequate or unfair.” 27 Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) 28 (quoting Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 628 (9th Cir. 1982). 7 1 Plantronics estimates that the proposed settlement class contains roughly 1.3 million 2 members with approximately 300,000 class members qualifying for the extended limited 3 warranty. See Goldenberg Decl. ¶ 9. Because the Headphones generally sold for between 4 $60 and $90 each, Shin estimates that class recovery at trial would be between $7.8 million 5 and $11.7 million. Id. ¶ 18. Shin then estimates anticipated class recovery under the 6 Settlement to be between $3.25 million and $6.5 million assuming a 10% claim rate 7 without accounting for the value of the extended limited warranty. Id. This comparison, however, is flawed. Shin fails to account for the fact that class 8 United States District Court Northern District of California 9 members can only recover under the Settlement for battery charging issues. See 10 Settlement § 6.6. This is so even though the first amended complaint alleges defects with 11 both the Headphones’ battery and waterproofing (see FAC ¶¶ 61–81), and the proposed 12 settlement class includes “all Persons . . . who purchased at retail the Headphones . . .” 13 (Settlement § 3.8 (emphasis added)). Under the narrow terms of relief, it is possible that 14 far less than 10% of the class would qualify and file a claim for recovery under the 15 Settlement.2 This discrepancy between the narrow relief offered to the class and the broad 16 release of all claims—even those that do not rely on battery charging issues—is striking 17 and militates against approval. Moreover, Shin appears to have done little to no independent research regarding 18 19 how many individuals may qualify for each remedy. This casts substantial doubt on Shin’s 20 comparison of the anticipated class recovery to the estimated class recovery at trial. The 21 Court is mindful that such information may be difficult to come by given that no discovery 22 has occurred, and this case is still in the early stages of litigation. But the difficulty of 23 obtaining reliable information is no excuse for haphazard estimates, particularly where the 24 Settlement seeks to release an all-encompassing class from virtually all claims relating to 25 the Headphones. In short, the Court is unconvinced by Shin’s assessment of the amount 26 offered in the settlement and finds that the fourth Hanlon factor weighs against approval. 27 28 2 This is further compounded by the inadequate notice plan proposed by the parties as discussed below. 8 United States District Court Northern District of California 1 The fifth Hanlon factor—“extent of discovery completed and the stage of the 2 proceedings”—also weighs against approval. Churchill Village, 361 F.3d at 575. As 3 recounted above, this lawsuit is in the early stages of proceedings and no formal discovery 4 had been taken. Indeed, the parties settled one day after the hearing on Plantronics’s 5 motion to dismiss. The lack of formal discovery is reflected in Shin’s motion for 6 preliminary approval, which relies heavily on Plantronics’s own representations regarding 7 many critical facts including the size of the class and number of class members eligible for 8 particular modes of relief. This factor alone does not doom the Settlement. Cf. Class 9 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (explaining the “strong 10 judicial policy” in favor of settling class actions). But the lack of formal discovery and the 11 earliness of the settlement amplifies the Court’s concerns regarding its adequacy. 12 Finally, the Settlement provides for a “clear sailing” arrangement regarding the 13 payment of attorneys’ fees. See Settlement § 10. Such arrangements are not per se 14 unreasonable, but “carr[y] ‘the potential of enabling a defendant to pay class counsel 15 excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf 16 of the class.’” In re Bluetooth, 654 F.3d at 947 (quoting Lobatz v. U.S. Cellular of Cal., 17 Inc., 222 F.3d 1142, 1148 (9th Cir. 2000)). Although the Court has seen no evidence of 18 collusion, the presence of a “clear sailing” attorneys’ fees arrangement, coupled with the 19 deficiencies outlined above, also gives the Court pause. 20 21 C. Proposed Notice Plan Under Rule 23(c)(2)(B), “upon ordering notice under Rule 23(e)(1) to a class 22 proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must 23 direct to class members the best notice that is practicable under the circumstances, 24 including individual notice to all members who can be identified through reasonable 25 effort.” Fed. R. Civ. P. 23(c)(2)(B). To comply with Rule 23, “the notice must clearly and 26 concisely state in plain, easily understood language”: 27 (i) the nature of the action; 28 (ii) the definition of the class certified; 9 1 (iii) the class claims, issues, or defenses; 2 (iv) that a class member may enter an appearance through an attorney if the member so desires; 3 4 (v) exclusion; 5 United States District Court Northern District of California that the court will exclude from the class any member who requests 6 (vi) the time and manner for requesting exclusion; and 7 (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 8 Id. In short, notice must allow class members to “assess the reasonableness of the 9 settlement.” In re Yahoo! Inc. Customer Data Security Breach Litig., No. 16-md-02752- 10 LHK, 2019 WL 387322, at *6 (N.D. Cal. Jan. 30, 2019) (citing Churchill Village, 361 F.3d 11 at 575); see also Advisory Committee Notes, Fed. R. Civ. P. 23, subdiv. (c)(2) (2018) 12 (“The ultimate goal of giving notice is to enable class members to make informed 13 decisions about whether to opt out or . . . to object or to make claims.”). 14 The Settlement lists two methods to identify class members: (1) Plantronics will 15 provide contact information for class members “who directly purchased Headphones from 16 Plantronics on [its] website or registered their Headphones with Plantronics, and (2) 17 Plantronics will identify “the top 10 retailers of the Headphones” and “Class Counsel may 18 seek to obtain an order to be entered by the Court directing these third parties” to provide 19 contact information for potential class members or to deliver the class notice. Settlement 20 §§ 7.3(a), (d). At the hearing, Shin’s counsel estimated that this proposal will identify over 21 75% of the class. Counsel also stated that the majority of class members would be 22 identified under the second method. 23 Once class members have been identified, the Settlement’s notice plan requires the 24 Settlement administrator (or relevant third-party retailers) to mail or e-mail notices to 25 individual class members. Id. §§ 7.3(a)–(c), (d)(ii). The Settlement also requires the 26 administrator to provide “Publication Notice.” Id. § 7.4 27 28 The Court is not convinced that this plan would provide “the best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B); see also Fed. R. Civ. P. 10 United States District Court Northern District of California 1 23(e)(1)(B) (“The court must direct notice in a reasonable manner to all class members 2 who would be bound by the proposal . . . .”). As noted by Shin’s counsel, a large majority 3 of the class cannot be identified through Plantronics’s records and effective notice under 4 this plan requires the cooperation of third-party retailers. Thus, the prudent course of 5 action would be to secure third-party cooperation either before or in connection with this 6 motion. But the parties have not done so. Indeed, the Settlement does not even require 7 such action. See Settlement § 7.3(d) (“Class Counsel may seek to obtain an order . . . .” 8 (emphasis added)). Further, the Settlement provides no contingency in the event those 9 retailers refuse to provide their customers’ information or deliver the class notice. And if 10 those retailers agree to deliver the notice instead of turning over customer information, the 11 Settlement provides insufficient oversight of that largely voluntary process. See id. 12 § 7.3(d)(ii)–(iii). 13 Normally, publication notice would act to cover such gaps in the parties’ outreach 14 to the class. By publishing the settlement notice on popular forums for discussion or 15 complaints about the Headphones, for example (see FAC ¶¶ 25, 27 (identifying complaints 16 regarding the Headphones on Plantronics and Amazon’s websites)), the parties could target 17 potential class members with reasonable accuracy. But here, the Settlement provides no 18 details on what that publication notice would entail. See Advisory Committee Notes, Fed. 19 R. Civ. P. 23, subdiv. (c)(2) (2018) (“In providing the court with sufficient information to 20 enable it to decide whether to give notice to the class-action settlement under Rule 21 23(e)(1), it would ordinarily be important to include details about the proposed method of 22 giving notice . . . .” (emphasis added)). The Court simply cannot assess the reasonableness 23 and efficacy of the proposed notice plan without such information. 24 Furthermore, the proposed notices themselves are not adequate. As stated above, 25 Rule 23 requires notices to “clearly and concisely state in plain, easily understood 26 language . . . the binding effect of a class judgment on members under Rule 23(c)(3).” 27 Fed. R. Civ. P. 23(c)(2)(B). Here, the Short Form Notices (see Dkt. No. 57-3, 57-4) fail to 28 adequately explain to class members “the binding effect of a class judgment.” Id. 11 1 Specifically, the Short Form Notices do not tell the class members that they will release 2 Plantronics from virtually all claims regarding the Headphones if they do not opt out. See 3 Settlement § 11.1. The full Settlement Notice (see Dkt. No. 57-5) does explain the 4 consequence of staying in the settlement class (see id. ¶¶ 29–30) but fails to do so “clearly 5 and concisely . . . in plain, easily understood language.” Fed. R. Civ. P. 23(c)(2)(B). 6 Instead, the full Settlement Notice merely copies and pastes the full release language from 7 the Settlement, which is heavy on legalese and difficult to parse. See Dkt. No. 57-5 ¶ 30. 8 9 10 United States District Court Northern District of California 11 12 In short, the Settlement’s proposed notices and notice plan fall short of Rule 23’s requirements. This also weighs against preliminary approval. Accordingly, the Court DENIES Shin’s unopposed motion for preliminary approval of the class action settlement. D. Class Certification and Attorneys’ Fees Because the Court denies preliminary approval of the class action settlement, the 13 Court declines to decide whether the proposed settlement class may be properly certified 14 under Rule 23(b)(3). Likewise, the Court does not decide whether the amount of 15 attorneys’ fees, costs, and service award to the named plaintiff is reasonable. 16 IV. Conclusion 17 The Court DENIES Shin’s unopposed motion for preliminary approval of the class 18 action settlement without prejudice. The Court SETS a further case management 19 conference for August 12, 2019, at 10:00 a.m. The parties must file a joint case 20 management statement by August 5, 2019. See L.R. 16-10(d). 21 IT IS SO ORDERED. 22 23 24 Dated: June 17, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 25 26 27 28 12
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