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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 1 of 16

The Honorable Richard A. Jones











UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON






BRENDA STOOTS EWING, on behalf of
herself and all others similarly situated,





ADMINISTRATIVE SYSTEMS, INC.,





v.

Plaintiff,

Defendant.

AT SEATTLE






No. C08-0797 RAJ

MOTION FOR FINAL APPROVAL OF
THE SETTLEMENT

NOTE ON MOTION CALENDAR:
September 23, 2009


MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT
Case No. C08-0797-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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I.

II.

Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 2 of 16

TABLE OF CONTENTS



PAGE

PRELIMINARY STATEMENT .........................................................................................1

PROCEDURAL HISTORY.................................................................................................2

A.

B.

Background..............................................................................................................2

Preparation and Filing of the Complaint..................................................................2

III.

ARGUMENT.......................................................................................................................3

A.

B.

The Standards for Judicial Approval of Class Action Settlements..........................3

The Settlement Meets the Ninth Circuit Standard for Approval .............................4

1.

2.

3.

4.

5.

6.

7.

This case was meritorious, but entailed risks...............................................4

The risk, expense, complexity, and likely duration of further litigation......5

The amount obtained in Settlement .............................................................6

The extent of discovery completed, and the stage of the proceedings.........7

The experience and views of Class Counsel and Representative
Plaintiff ........................................................................................................7

Reaction of the Class Members to the Proposed Settlement .......................8

The Settlement is the product of arm’s-length negotiations ........................9

C.

The Settlement Provided Adequate Notice to the Class ..........................................9

IV.

CONCLUSION..................................................................................................................10




MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT- i
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 3 of 16

TABLE OF AUTHORITIES

Page

CASES






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884 F.2d 1222 (9th Cir. 1989) .............................................................................................3

962 F.2d 1203 (6th Cir. 1992) .............................................................................................6

2001 U.S. Dist. LEXIS 5976 (W.D. Wash. Mar. 21, 2001) ..............................................10

151 F.3d 1234 (9th Cir. 1998) .............................................................................................6

2006 U.S. Dist. LEXIS 90990 (N.D. Cal. Dec. 5, 2006).................................................3, 9

213 F.3d 454 (9th Cir. 2000) .......................................................................................3, 4, 5

464 F.2d 689 (2d Cir. 1972).................................................................................................6

688 F.2d 615 (9th Cir. 1982) ...........................................................................................4, 6

559 F. Supp. 2d 1036 (N.D. Cal. 2007) ...........................................................................7, 8

47 F.3d 373 (9th Cir. 1995) .................................................................................................7

2007 U.S. Dist. LEXIS 88886 (N.D. Cal. Nov. 26, 2007)...................................................7

2007 U.S. Dist. LEXIS 74767 (C.D. Cal. Sept. 10, 2007),
aff’d in part, reversed in part on other grounds, 563 F.3d 948 (9th Cir. 2009)..................7

563 F.3d 948 (9th Cir. 2009) ...............................................................................................3


Franklin v. Kaypro Corp.,


Granada Invest., Inc. v. DWG Corp.,


Hughes v. Microsoft Corp.,


Linney v. Cellular Alaska P’Ship,


Lundell v. Dell, Inc.,


In re Mego Fin. Corp. Sec. Litig.,


Newman v. Stein,


Officers for Justice v. Civil Serv. Comm’n,


In re Omnivision Techs.,


In re Pacific Enters. Sec. Litig.,


In re Portal Software, Inc. Sec. Litig.,


Rodriguez v. West Publ’g Corp.,


Rodriguez v. West Publ’g Corp.,


Santos v. Camacho,


Staton v. Boeing Co.,

2008 U.S. Dist. LEXIS 35991 (D. Guam Apr. 23, 2008)....................................................7

327 F.3d 938 (9th Cir. 2003) ...............................................................................................3

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT- ii
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 4 of 16




In re Syncor ERISA Litig.,


Weinberger v. Kendrick,



516 F.3d 1095 (9th Cir. 2008) .............................................................................................3

698 F.2d 61 (2d Cir. 1982)...................................................................................................4


15 U.S.C. § 1681 et seq....................................................................................................................2


STATUTES

MISCELLANEOUS





4 A. Conte & H. Newberg, NEWBERG ON CLASS ACTIONS, § 11:50 (4th ed. West 2008)...............5


MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT- iii
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 5 of 16



Pursuant to the Court’s June 8, 2009, order granting preliminary approval of the

settlement, Plaintiff Brenda Stoots Ewing (“Plaintiff” or “Ms. Ewing”) hereby submits her

motion for approval of the proposed Settlement of this Class Action.

I.

PRELIMINARY STATEMENT

As the result of Ms. Ewing’s vigorous prosecution of the case and arm’s-length

settlement negotiations, a proposed settlement that benefits the Class was achieved. Plaintiff

submits this motion pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and Rule 408

of the Federal Rules of Evidence.

The Settlement is an excellent result for the Class and confers both prophylactic and

compensatory benefits. In reaching the Settlement, Class Counsel and Ms. Ewing considered the

numerous risks of continued litigation against Defendant. Even though Class Counsel believe

that the Action has substantial merit, it involves complex legal, factual and accounting issues,

which could create difficulties presenting evidence at trial. For example, identity theft is

widespread and it is difficult to determine the source of information that may be used to steal a

person’s identity, which undermine the claims for damages. Accordingly, Class Counsel believe

that the credit monitoring and reimbursement benefits the Settlement provides the Class

outweigh the risks of continued litigation.

Following multiple requests for additional information which also led to the amendment

of the Settlement to the greater benefit of the Class, the Court granted preliminary approval of

the Settlement and granted certification of the Class – for settlement purposes on June 8, 2009.

The Court also authorized the claims administrator to send Notice of the proposed Settlement to

potential Class members. The deadline for Class members to file objections to the Settlement

and the fee and expense application expired on September 4, 2009. To date, Class Counsel and
the Court have only received two objections.1



1 Letter from Candyce Conley requesting a $50,000 payment (Dkt. # 36) and letter from Geri Truszynski

objecting to the selection of Trilegiant Corp. as claims administrator (Dkt. # 37).

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 1
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 6 of 16



A.

Background

II.

PROCEDURAL HISTORY

Plaintiff filed this action against Defendant ASI on May 22, 2008. The Complaint

alleged general negligence and a violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681, et seq., after a desktop computer belonging to ASI, containing certain personal

information about Plaintiff and approximately 550,000 other individuals, had been stolen on or

about December 27, 2007 (the “ASI Data Breach”). Plaintiff alleged that as a consequence of

Defendant’s failure to protect their Personal Information, Plaintiff and the putative Class

incurred costs and expenses to safeguard their personal information and were faced with the

substantial risk that they would become victims of personal identity theft and thereby suffer

financial loss and other significant harm.

The information on the stolen computer included personal information about the affected

individuals, including names, dates of births, addresses and social security numbers, and in some

cases, bank account numbers and/or medical history information (the “Class Information”).
B.

Preparation and Filing of the Complaint

Before filing suit, Class Counsel thoroughly reviewed and analyzed all available

information regarding ASI, including press releases, and reports about the Company in the

media. Class Counsel also thoroughly researched and evaluated the viability of federal and state

causes of action for damages flowing from the Data Breach. Ms. Ewing filed her Class Action

Complaint (the “Complaint”) on May 30, 2008, alleging violations of the Fair Credit Reporting

Act (“FCRA”), 15 U.S.C. § 1681 et seq. and general negligence.

Over negotiations in person and by telephone spanning nearly six months, the parties

agreed to settle the Action on terms that provide credit monitoring free of charge to all affected

Class members for at least one year and a second year should unauthorized credit inquiries be

made. The settlement also provides for reimbursement of costs to procure credit monitoring and

expenses associated with identity theft stemming from the Data Breach.

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MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 2
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 7 of 16



A.


III. ARGUMENT

The Standards for Judicial Approval of Class Action Settlements

It is well established in the Ninth Circuit that “voluntary conciliation and settlement are

the preferred means of dispute resolution,” especially in class action law suits. In re Syncor

ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008). Class actions readily lend themselves to

compromise because of the difficulties of proof, the uncertainties of the outcome, and the typical

length of the litigation. It is beyond question that “there is an overriding public interest in

settling and quieting litigation,” and this is “particularly true in class action suits.” Franklin v.

Kaypro Corp., 884 F.2d 1222, 1229 (9th Cir. 1989).

Under Rule 23(e) of the Federal Rules of Civil Procedure, a class action may be settled

upon notice of the proposed settlement to class members, and a court finding, after a hearing,

that the Settlement is fair, reasonable and adequate. Final approval of a class action settlement is

warranted if the interests of the class will be better served by resolution of the litigation than by

continued litigation. See Rodriguez v. West Publ’g Corp., 563 F.3d 938, 964 (9th Cir. 2009).

A court’s role in settlement approval is essentially twofold, determining whether the

settlement: (i) is tainted by fraud or collusion; and (ii) is fair, reasonable and adequate. Staton v.

Boeing Co., 327 F.3d 938, 960 (9th Cir. 2003).

In exercising its discretion to approve the settlement of a class action, a district court

typically considers (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and

likely duration of further litigation; (3) the amount offered in settlement; (4) the stage of the

proceedings and the extent of discovery completed; (5) the experience and views of counsel; (6)

the reaction of the class members to the proposed settlement; and (7) whether the settlement is

the product of an adversarial, arm’s-length negotiation. See In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454, 458 (9th Cir. 2000); Lundell v. Dell, Inc., 2006 U.S. Dist. LEXIS 90990, at *8

(N.D. Cal. Dec. 5, 2006). It should not, however, adjudicate the merits of the case. Rodriguez,

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 3
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 8 of 16



563 F.3d at 964. As the Ninth Circuit has noted, the settlement or fairness hearing is not to be

turned into a trial or rehearsal for trial on the merits:

Neither the trial court nor this court is to reach any ultimate conclusions
on the contested issues of fact and law which underlie the merits of the
dispute, for it is the very uncertainty of outcome in litigation and
avoidance of wasteful and expensive litigation that induce consensual
settlements. The proposed settlement is not to be judged against a
hypothetical or speculative measure of what might have been achieved by
the negotiators.

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982); see also

Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982) (“in order to avoid a trial, the judge must

[not] in effect conduct one”).

A finding that this Settlement is reasonable is fully warranted because the Settlement is

the product of arm’s-length negotiations which occurred over a period of nearly six months.

Following inquiry by the Court, the Settlement negotiations were re-opened by the parties and

further benefits were obtained for the Class. This Settlement is a fair, reasonable, and adequate

resolution of the litigation and warrants this Court’s approval. See Declaration of Thomas E.

Loeser in Support of Motion for Final Approval of Settlement and Motion for Approval of

Attorneys’ Fees and Expenses (“Loeser Decl.”) ¶¶ 21-22, 26-33.
B.

The Settlement Meets the Ninth Circuit Standard for Approval
1.
The stage of the proceedings and the amount of information available to the parties to

This case was meritorious, but entailed risks

assess the strengths and weaknesses of their case is one factor that courts consider in determining

the fairness, reasonableness, and adequacy of a settlement. See Mego Fin., 213 F.3d at 459.

Class Counsel believe that the settlement terms compare favorably to the risks associated with

continued litigation. Class Counsel conducted an extensive investigation and analysis of the

claims. Their efforts included: (1) an exhaustive factual investigation into the events and

circumstances underlying the claims in the Complaint, including reviewing and analyzing all

relevant publicly available media; (2) extensively researching the viability of claims under the

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 4
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 9 of 16



FCRA and state law; and (3) drafting a detailed Complaint. Class Counsel also performed

additional analyses and valuations of the claims and risks presented, and conferred regarding the

potential scope of class-wide damages. As a result, Class Counsel gained a comprehensive

understanding of the strengths and weaknesses of the case. See Loeser Decl., ¶ 23.

The Settlement provides Class members with immediate protection from identity theft for

one year at no cost to Class members. Where Class members have already procured such

protection, the Settlement provides reimbursement. A second year of credit monitoring is

provided should there be evidence of unauthorized credit inquiries. In the event a Class member

falls victim to identity theft, the Settlement provides for up to $2,500 in reimbursement for out-
of-pocket expenses.2 Balanced against that definite result are the numerous uncertainties this
case faced. If settlement had not been reached, there was a real possibility that the Class would

have received no recovery. Thus, based on Class Counsel’s extensive experience, Class Counsel

believe that the Settlement fairly resolves the issues in this case. See Mego Fin., 213 F.3d at 459

(finding parties could identify strengths and weaknesses of claims without formal discovery

because “in the context of class action settlements, ‘formal discovery is not a necessary ticket to

the bargaining table’ where the parties have sufficient information to make an informed decision

about settlement”) (quoting Linney v. Cellular Alaska P’Ship, 151 F.3d 1234, 1239 (9th Cir.

1998)).

The risk, expense, complexity, and likely duration of further litigation

2.
“In most situations, unless the settlement is clearly inadequate, its acceptance and

approval are preferable to lengthy and expensive litigation with uncertain results.” 4 A. Conte &

H. Newberg, NEWBERG ON CLASS ACTIONS, § 11:50 (4th ed. West 2008).



2 This benefit is capped at an aggregate value of $100,000. However the credit monitoring

benefits are uncapped, that is, all eligible persons who claim such benefits will be entitled to
receive them.

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 5
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 10 of 16



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As articulated in the Loeser Declaration, although Plaintiff believes that the case against

Defendant is strong – and negotiated the Settlement on that basis – Defendant nevertheless had a

number of defenses. Loeser Decl., ¶¶ 21-23. Defendant could have prevailed in a motion to

dismiss. And the claims could have been dismissed on summary judgment, or failed ultimately

at trial.

Instead of the lengthy, costly, and uncertain course of further litigation with Defendant,

the Settlement provides an immediate and certain recovery for the Class. Accordingly, the

Settlement clearly outweighs the substantial risks associated with continued litigation.

The amount obtained in Settlement

3.
The determination of a “reasonable” settlement is not susceptible to a mathematical

equation yielding a particularized sum. Rather, “in any case there is a range of reasonableness

with respect to a settlement.” Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972). While

weaknesses in this case might have yielded less or no recovery after trial, the possibility that the

Class “might have received more if the case had been fully litigated is no reason not to approve

the settlement.” Granada Invest., Inc. v. DWG Corp., 962 F.2d 1203, 1206 (6th Cir. 1992)

(citation omitted); Officers for Justice, 688 F.2d at 625 (“The proposed settlement is not to be

judged against a hypothetical or speculative measure of what might have been achieved by the

negotiators.”). In fact, a proposed settlement may be acceptable even though it amounts to only

a fraction of the potential recovery that might be available to the class members at trial. Linney

v. Cellular Alaska P’Ship, 151 F.3d 1234, 1242 (9th Cir. 1998).

Here, it is difficult to quantify the full extent of damages that could result from the Data

Breach. The settlement provides protection to Class members in case theft of identity occurs at a

later time. Further, in the event a Class member is a victim of identity theft, out-of-pocket

expenses up to $2,500 are available under the Settlement.

The Settlement confers an immediate and valuable cash benefit to eligible Class

members. Given the complexities of this litigation and the continued risks if the parties were to

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 6
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 11 of 16



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proceed through the motions to dismiss, discovery and trial, the Settlement presents a reasonable

resolution of this Action and eliminates the risk that the Class might not otherwise recover.

The extent of discovery completed, and the stage of the proceedings

4.
In this case, Class Counsel were fully aware of the strengths and weaknesses of the case.

Class Counsel conducted a thorough investigation and analysis of the merits of the claims,

including review of numerous authorities and significant cases concerning data theft, review of

press releases and other publicly disseminated information, consultation with noted authorities to

identify the potential scope of damages in the case, research of the law regarding the claims and

possible defenses, a complete analysis of each side’s claims and defenses, and participation in an

extended face-to-face and telephonic settlement negotiation. See Loeser Decl., ¶¶ 21-33. This

Settlement is based upon adequate information and a sufficient investigation for an in-depth

analysis of the Class’s claims.

The experience and views of Class Counsel and Representative Plaintiff

5.
“The recommendations of plaintiffs’ counsel should be given a presumption of

reasonableness.” In re Omnivision Techs., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2007) (citation

omitted). This makes sense, as counsel is “most closely acquainted with the facts of the

underlying litigation,” Santos v. Camacho, 2008 U.S. Dist. LEXIS 35991, at *89 (D. Guam Apr.

23, 2008), and the “[p]arties represented by competent counsel are better positioned than courts

to produce a settlement that fairly reflects each party’s expected outcome in litigation.” In re
Pacific Enters. Sec. Litig., 47 F.3d at 378.3 Thus, “‘the trial judge, absent fraud, collusion, or the
like, should be hesitant to substitute its own judgment for that of counsel.’” Santos, 2008 U.S.

Dist. LEXIS 35991, at *90 (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)).



3 See also Rodriguez v. West Publ’g Corp., 2007 U.S. Dist. LEXIS 74767, at *30 (C.D. Cal. Sept. 10, 2007)
aff’d in part, reversed in part on other grounds, 563 F.3d 948 (9th Cir. 2009) (investigation sufficient to enable
counsel and the court to act intelligently supports approval); In re Portal Software, Inc. Sec. Litig., 2007 U.S. Dist.
LEXIS 88886, at *10 (N.D. Cal. Nov. 26, 2007) (counsel’s pre-filing investigation, locating and interviewing
witnesses, research, and opposing defendant’s motion to dismiss supports approval).

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 7
Case No. C08-0787-RAJ

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1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 12 of 16



This Action has been litigated by experienced and competent counsel on both sides.

Class Counsel have many years of experience in litigating class actions nationwide, and in
assessing the relevant merits of each side’s case.4 Further, Defendant was ably represented by
Foster Pepper PLLC, a nationally recognized firm with an abundance of experience in class

action litigation. It is Class Counsel’s informed opinion that, given the uncertainty and further

substantial expense of pursuing this Action through the motions to dismiss, discovery, trial and

possible appeals, the proposed Settlement is fair, reasonable, adequate and in the best interests of

the Class. See Loeser Decl., ¶¶ 18-23, 26-33, 55.

Reaction of the Class Members to the Proposed Settlement

6.
“[T]he absence of a large number of objections to a proposed class action settlement

raises a strong presumption that the terms of a proposed class settlement action are favorable to

the class members.” Omnivision, 559 F. Supp. 2d at 1043 (citation omitted). The deadline for

Class members to file their requests to exclude themselves from the Settlement or to object to

any aspect of the Settlement, or Class Counsel’s fee and expense request expired on September

4, 2009. The claims administrator mailed 549,023 Notice packages to potential Class members.

Declaration of Claims Administrator Re Notice to Settlement Class Members (“Lukens Decl.”),

¶¶ 4-5, filed contemporaneously with this motion. To date, there have been 2,126 requests for

exclusions, id., ¶ 7. The opt-outs comprise just four-tenths of one percent of the Class members.

Loeser Decl., ¶ 25. The favorable reaction of the Class further supports approval of the

Settlement.

There are only two known objectors: Candyce Conley has procured her own credit
monitoring (at a cost in excess of $400 per year) and requests a payment of $50,000.5 Geri



4 See Firm Resumes, attached as Ex. A to the Loeser Decl.
5 See Dkt. # 36.

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 8
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



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Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 13 of 16



Truszynski, objects to the selection of Trilegiant Corp as claims administrator and provider of
the credit monitoring benefits.6

The Settlement is the product of arm’s-length negotiations

7.
The Settlement was the product of extensive, hard-fought negotiations between

Representative Plaintiff and Defendant. The process included face-to-face meetings and

extensive telephonic conferences. These arm’s-length negotiations support approval of the

Settlement. See Lundell, 2006 U.S. Dist. LEXIS 90990, at *8 (approving class action settlement

that was “the result of intensive, arms’-length negotiations between experienced attorneys

familiar with the legal and factual issues of this case”).

In addition, the credit monitoring benefits are uncapped, meaning all who seek such

benefits will receive them, foreclosing ab initio any possibility that the Settlement was

negotiated or designed to confer a disproportionate or unjustified benefit upon Representative

Plaintiff or any other group within the Class.
C.

The Settlement Provided Adequate Notice to the Class

The Court’s Order preliminarily approving settlement and providing for notice was

entered on June 8, 2009, and directed the claims administrator, no later than July 10, 2009, to

cause the mailing of the Notice packet to all Class members. Nearly 550,000 Notice packets

have been mailed to potential Class members. See Lukens Decl., ¶¶ 4-6. This method of giving

notice, previously approved by the Court, is appropriate because it directs notice in a “reasonable

manner to all class members who would be bound by the propos[ed judgment].” Fed. R. Civ. P.

23(e)(1).

The Notice advises Class members of the essential terms of the Settlement, sets forth the

procedure for objecting to the Settlement, and provides specifics on the date, time and place of

the final approval hearing. The Notice also contains information regarding Class Counsel’s fee



6 See Dkt. # 37.

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application. Thus, the Notice provides the necessary information for Class members to make an

informed decision regarding the proposed Settlement. The Notice fairly apprises Class members

of their rights with respect to the Settlement and is therefore the best notice practicable under the

circumstances and complied with the Court’s preliminary approval Order, Federal Rule of Civil

Procedure 23, and due process. See Hughes v. Microsoft Corp., 2001 U.S. Dist. LEXIS 5976, at

*3-4 (W.D. Wash. Mar. 21, 2001) (approving similar notice regimen) (citing Silber v. Mabon, 18

F.3d 1449, 1454 (9th Cir.1994)).

IV. CONCLUSION

For the foregoing reasons, Representative Plaintiff respectfully requests that the Court

grant final approval of the Settlement, and enter the proposed Order and Judgment Granting

Final Approval to Class Action Settlement, Approving Award of Fees and Costs and Dismissing

Claims With Prejudice.

Dated: September 9, 2009





HAGENS BERMAN SOBOL SHAPIRO LLP




By: s/ Thomas E. Loeser

Anthony D. Shapiro, WSBA #12824
Thomas E. Loeser, WSBA #38701


1301 Fifth Avenue, Suite 2900
Seattle, Washington 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
tony@hbsslaw.com
toml@hbsslaw.com

Steven A. Kanner
Douglas A. Millen
Robert J. Wozniak
FREED KANNER LONDON & MILLEN LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Telephone:(224) 632-4500
Facsimile: (224) 632-4521
skanner@fklmlaw.com
dmillen@fklmlaw.com
rwozniak@fklmlaw.com

MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 10
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010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594



Case 2:08-cv-00797-RAJ Document 41 Filed 09/09/09 Page 15 of 16




J. Mitchell Clark
LAW OFFICES OF J. MITCHELL CLARK
Mail Address:
P.O. Box 2701
Corpus Christi, TX 78403
Telephone: (361) 887-8500
Facsimile: (361) 882-4500
Mitchell@txverdict.com

Physical Address:
Frost Bank Plaza, Suite 2100
802 N. Carancahua
Corpus Christi, TX 78470

Christopher L. Brown
LAW OFFICE OF
CHRISTOPHER L. BROWN
7518 Enterprise Ave.
Memphis, TN 38138
Telephone:(901) 759-3900
Facsimile: (901) 751-1135
chris@clbrownlaw.com

Attorneys for Plaintiff and the proposed Class

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CERTIFICATE OF SERVICE

I hereby certify that on September 9, 2009, I electronically filed the foregoing document

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the e-mail addresses registered, as denoted on the following Electronic Mail Notice List.







/s/ Thomas E. Loeser
THOMAS E. LOESER
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
toml@hbsslaw.com

ELECTRONIC MAIL NOTICE LIST

• Christopher L. Brown
chris@clbrownlaw.com

• Mitchell J. Clark

mitchell@txverdict.com
• Christopher G. Emch

emchc@foster.com,pateb@foster.com

• Tim J. Filer

FileT@Foster.com,HoweJ@Foster.com

• Gavin C. Gaukroger

gaukg@foster.com,salee@foster.com

• Emanuel Fraser Jacobowitz

jacoe@foster.com,hickc@foster.com

• Thomas E. Loeser

TomL@hbsslaw.com,dawn@hbsslaw.com

• Douglas A. Millen

dmillen@fklmlaw.com

• Anthony D. Shapiro

• Robert J. Wozniak

rwozniak@fklmlaw.com

tony@hbsslaw.com,laurie@hbsslaw.com,dawn@hbsslaw.com





MOTION FOR FINAL APPROVAL OF THE
SETTLEMENT - 12
Case No. C08-0787-RAJ

010053-11 326413 V2

1301 FIFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101

TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594