The Northern District of California recently issued Procedural Guidance for Class Action Settlements. The court notes that failure to address the issues in the guidance “may result in unnecessary delay, or even failure, of approval.”

The guidance covers a range of subjects, including some that may not be obvious from recent Ninth Circuit precedent. Notable points include:

PRELIMINARY APPROVAL

  • Issues to be addressed in motions for preliminary approval should include:
  • any differences between the settlement class and the class certified if a litigation class has been certified, or any differences between the settlement class and the class proposed in the complaint if a litigation class has not been certified;
  • any differences between the claims to be released and the claims set out in the operative complaint; and
  • the likely recovery amount per plaintiff under the terms of the settlement and the potential recovery if plaintiffs were to prevail on each of their claims.
  • Notice should include contact information for class counsel to answer questions and instructions on how to access the case docket via PACER (or in person).
  • With respect to methods of notice, “[t]he envelope should be designed to enhance the chance that it will be opened. Notice should be supplemented by email notice if feasible.”

FINAL APPROVAL

  • In addition to information about the number of valid claims, the number of opt-outs, and the number of objectors, a motion for final approval should include information about the number of undeliverable class notices and claim packets.
  • In general, unused funds allocated to attorneys’ fees, incentive awards, settlement administration fees, and payments to class members should be distributed to the class pro rata or awarded to a cy pres recipient.
  • All requests for approval of attorneys’-fee awards must include “detailed lodestar information, even if the requested amount is based on a percentage of the settlement fund.”
  • All requests for incentive awards must be supported by “admissible evidence of the proposed awardees’ involvement in the case and other justifications for the awards.”