ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Before the Court is Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. (Doc. 87.)

BACKGROUND

Plaintiff's amended complaint alleges that Defendants violated 47 U.S.C. § 227 of the Telephone Consumer Protection Act of 1991 (the "TCPA") by using an automated telephone dialing system ("ATDS") to call, without permission, her individual cellular telephone and the cellular telephones of putative class members (the "Lawsuit"). (Doc. 24.) Including the calls to Plaintiff, Defendants used an ATDS to make 30,378 calls to the cellular phones of 9,042 putative class members from January 1, 2012, to May 31, 2012. (Docs. 79, 87-1 at 42.) The parties have reached a settlement in which Defendants will set aside $2.3 million (the "Settlement Fund") for Plaintiff's attorneys fees, costs of administration, and for payments to Plaintiff and the putative class members. Plaintiff now requests the Court preliminarily certify the class for settlement purposes, preliminarily approve the class settlement agreement, approve the proposed notice plan, and set the final approval conference.

LEGAL STANDARDS

To certify a class action pursuant to Federal Rule of Civil Procedure 23(a), the named plaintiff must demonstrate that:

Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011) (quoting Fed. R. Civ. P. 23(a)). Numerosity is routinely satisfied by hundreds of class members. E.g., Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012). Commonality exists "[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class." Id. (quoting Parra v. Bashas', Inc., 536 F.3d 975, 978-79 (9th Cir. 2008)). "The test of typicality `is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.'" Id. at 1030 (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). Adequacy rests on two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id. at 1031 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).

Provided the elements of Rule 23(a) are met, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Dukes, 131 S.Ct. at 2548. The third such requirement provides that a class action may be maintained if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The superiority inquiry requires consideration of four factors:

Fed. R. Civ. P. 23(b)(3). In the context of a "settlement-only" certification, any difficulties in managing the action are ameliorated because the parties propose to avoid trial. Amchem Prods., 521 U.S. at 620.

Once the class is certified, the class claims "may be settled . . . only with the court's approval." Fed. R. Civ. P. 23(e). "If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, . . . adequate," id. 23(e)(2), "and free from collusion," Hanlon, 150 F.3d at 1027. Whether a settlement meets these standards in the context of an unopposed motion seeking both preliminary certification of the class and approval of the proposed settlement requires consideration of several factors, including: (1) "the strength of plaintiffs' case"; (2) "the risk, expense, complexity, and likely duration of further litigation"; (3) "the risk of maintaining class action status throughout the trial"; (4) "the amount offered in settlement"; (5) "the extent of discovery completed, and the stage of the proceedings"; and (6) "the experience and views of counsel." Id. at 1026. "The parties seeking approval must [also] file a statement identifying any agreement made in connection with the proposal." Fed. R. Civ. P. 23(e)(3).

"Adequate notice is critical to court approval of a class settlement under Rule 23(e)." Hanlon, 150 F.3d at 1025. "For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B); see id. 23(e)(1) ("The court must direct notice in a reasonable manner to all class members who would be bound by the proposal."). Rule 23(c)(2)(B) enumerates seven elements that "[t]he notice must clearly and concisely state in plain, easily understood language." Id. 23(c)(2)(B).

DISCUSSION

I. Preliminary Class Certification for Purposes of Settlement

Rule 23(a)

First, there are 9,042 putative class members—joinder is clearly impracticable. Therefore, the numerosity requirement is satisfied. Second, the legal and factual circumstances of the putative class members' claims are identical: Defendants used ATDS to call cellular phones in violation of 47 U.S.C. § 227. The Court finds the commonality requirement satisfied. Third, since Plaintiff is a member of the class, she has the same interests and claims as the putative class members; Defendants' defenses would be the same as to Plaintiff as they would as against each putative class member. Thus, the typicality requirement is satisfied. Fourth, Plaintiff has no antagonistic or conflicting interests with the putative class members; rather they all share the same interest in monetary damages. Plaintiff testified that she understands her responsibility to look out for the best interests of the class and to ensure equal treatment of the class members (Doc. 79-3 at 3); she is so committed to certifying and representing the class that she declined more than one offer of judgment that would have been more than she could have possibly recovered at trial. Plaintiff has retained experienced class counsel that are determined to prosecute the action. The Court finds the adequacy requirement satisfied. For the foregoing reasons, the Court finds the strictures of Rule 23(a) have been met.

Rule 23(b)

There is complete identity of common factual and legal issues: the central question is whether Defendants violated the TCPA by calling putative class members. The Court finds that the proposed class is "sufficiently cohesive to warrant adjudication by representation," Amchem Prods., 521 U.S. at 623, and that common questions predominate over individual questions. Thus, the predominance standard is met.

Shifting to the superiority inquiry, there is no discernable reason why any one class member would have an interest in individually controlling the prosecution of their claims. As mentioned above, the putative class members' allegations are homogenous and arise from standardized conduct. The only alternative to a nation-wide representative action would be for putative class members to bring identical suits individually or in smaller groups. Prudent judicial administration strongly militates against a method of adjudication that would result in thousands of identical law suits. Since there is no other pending litigation, and the parties are proposing to settle the action rather than litigate it, the class action is clearly superior to other methods of adjudication. Thus, the superiority standard is met, and the requirements of Rule 23(b)(3) are satisfied.

As both conditions for class certification have been satisfied, the Court preliminarily certifies the class.

II. Appointment of Class Counsel

"The choice of counsel has traditionally been left to the parties, whether they sue in their individual capacities or as class representatives." In re Cavanaugh, 306 F.3d 726, 734 (9th Cir. 2002). Plaintiff's counsel—and proposed class counsel—Greenwald Davidson PLLC has ample experience in litigating class actions and has demonstrated an understanding of applicable law. As mentioned above, Plaintiff's counsel is determined to tenaciously prosecute this action, and has done so from its inception. The Court appoints Greenwald Davidson PLLC as class counsel. See Fed. R. Civ. P. 23(g).

III. Fairness, Reasonableness, and Adequacy of the Settlement

The Strength of Plaintiff's Case and the Risk of Maintaining Class Action Status

The parties seem to agree that Plaintiff's case is indeed strong by virtue of Defendants' unaccepted offer of judgment. There is, however, a possibility that Defendants could moot Plaintiff's claims by fully satisfying her economic stake in the case. See Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 952 (9th Cir. 2013) (quoting GCB Commc'ns, Inc. v. U.S. South Commc'ns, Inc., 650 F.3d 1257, 1267 (9th Cir. 2011)) ("[A] case will `become moot' when `an opposing party has agreed to everything the other party has demanded.'"); see also id. at 955 (quoting Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1536 (2013) (Kagan, J., dissenting)) ("[A] court may have `discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff's obstinacy or madness prevents her from accepting total victory.'"). Since the inherently transitory relation-back doctrine articulated in Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), does not apply to claims for statutory damages, see Genesis Healthcare, 133 S.Ct. at 1531-32 (explaining a defendant's litigation strategy does not render a claim for damages inherently transitory because the claim "cannot evade review; it remains live until it is settled"), mooting Plaintiff's individual claims would moot the class action as well, see Sosna v. Iowa, 419 U.S. 393, 402 (1975) ("There must . . . be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23. . . ."); see, e.g., Luman v. Theismann, No. 2:13-cv-00656-KJM, 2014 WL 443960 (E.D. Cal. Feb. 4, 2014) (dismissing uncertified class action because named plaintiffs' claims were moot).

Given the uncertainty about whether Plaintiff could certify the class in the absence of this settlement agreement, the proposed agreement appears fair and reasonable.

The Risk, Expense, Complexity, and Likely Duration of Further Litigation

Further litigation would not only be contentious, but would likely result in appeals. Settlement curtails further expense, as well as shortens and simplifies the proceedings. This factor also lends itself to finding the settlement fair and reasonable.

The Extent of Discovery and the Stage of the Proceedings

Litigation has been progressing for close to two years and the parties have engaged in substantial discovery; indeed, discovery has now closed. The parties were able to assess the relative strengths and weaknesses of the opposing party's positions and to compare the benefits of the proposed settlement to further litigation. Accordingly, this factor also weighs in favor of preliminary approval of the settlement.

The Experience and Views of Counsel

The parties engaged in arms-length settlement negotiations which included mediation, and ultimately arrived at the instant Settlement Agreement. As Plaintiff's counsel is qualified to assess the merits of the case and negotiate a class settlement, this factor favors preliminary settlement as well.

The Amount Offered in Settlement

The Settlement Agreement provides for a $2.3 million settlement fund from which claimants will receive a pro rata share after deduction of attorney's fees, administration expenses, and Plaintiff's incentive award. Class members will receive no less than $167, and depending on how many class members submit claims, they could receive substantially more. This recovery surpasses other recent TCPA class settlements. E.g., Malta v. Fed. Home Loan Mortg. Corp., No. 10-CV-1290-BEN, 2013 WL 444619, at *4 (S.D. Cal. Feb. 5, 2013) ("If each of the potential 5,887,508 eligible claimants filed claims, they would receive approximately $2 each."); Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., No. 10-cv-1777-AJB, 2012 WL 3991734, at *3 (S.D. Cal. Aug. 27, 2012) (recovery of $0.85 to $70 depending on how many class members filed claims); Lo v. Oxnard European Motors, LLC, No. 11-CV-1009-JLS, 2011 WL 6300050, at *5 (S.D. Cal. Dec. 15, 2011) (minimum recovery of $131.69). This suggests the settlement is fair, reasonable, and adequate.

Collusion

"[D]istrict courts must be vigilant in scrutinizing all incentive awards to determine whether they destroy the adequacy of the class representatives." Radcliffe v. Experian Info. Solutions Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). In Radcliffe, "[t]here [wa]s a serious question whether class representatives could be expected to fairly evaluate whether awards ranging from $26 to $750 is a fair settlement value when they would receive $5,000 incentive awards." Id. Ultimately, the Court in Radcliffe reversed the district court's approval of the class settlement because the incentive award was conditioned on the class representative's approval of the settlement, but also because of "the significant disparity between the incentive awards and the payments to the rest of the class members further exacerbated the conflict of interest caused by the conditional incentive awards." Id.

Here, Plaintiff will receive a $12,000 incentive award while the putative class members' recovery is a pro rata distribution of the settlement fund after Plaintiff's award and attorney's fees and administration costs are deducted. The Court has some reservations about whether Plaintiff can adequately represent class interests given "the significant disparity between the incentive awards and the payments to the rest of the class members." Id. Since the parties did not file a statement about any agreement made in connection with the proposed settlement, see Fed. R. Civ. P. 23(e)(3), it is unknown whether Plaintiff's incentive payment was conditioned on approval of the settlement.

It is not evident that Plaintiff's incentive payment is the result of collusion. Likewise, it does not appear that Plaintiff's attorneys' fees are the result of collusion, but there is some doubt as to whether 28% of the settlement fund—$644,000—is fundamentally fair and reasonable given the circumstances. See Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003) ("There is no exception in Rule 23(e) for fees provisions contained in proposed class action settlement agreements."); see also id. at 964 (quoting Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 266 (1985)) ("When a large attorney's fee means a smaller recovery to plaintiff, a significant conflict of interest between client and attorney is created."). In any event, the Court need not resolve these issues at this time; it is enough if the settlement is "within the range of reason." Federal Judicial Center, Manual for Complex Litigation § 22.923, at 454 (4th ed. 2004) (quoting In re Prudential Ins. Co. Am. Sales Practices Litig., 148 F.3d 283, 324 n.73 (3d Cir. 1998)).

As the settlement is not outside the range of reason and bears hallmarks of fairness, reasonableness, and adequacy, the Court preliminarily approves the settlement.

IV. Approval of Class Notice

The proposed notice program provides for direct mail notice to each member of the class as well as a website devoted to settlement administration. The proposed program also provides that the settlement administrator will use skip tracing to identify each class member, thereby reasonably ensuring each class member receives direct mail notice. The content of the notice clearly explains the meaning, definition, and nature of the class and its claims; the terms, provisions, and binding effect of the settlement; the costs fees, and awards to be deducted from the settlement fund; the time and manner for submitting claims, exclusions, and; the right to appear through an attorney; the parties' counsel's contact information for requesting additional information; and the date, time, and place of the final approval hearing.

However, the process for submitting objections is unclear: the notice equivocates on whether the settlement administrator and/or the parties' attorneys need to receive written notice by mail. (See Doc. 87-1 at 44-45.) Since Plaintiff's proposed order is silent as to mailing objections to the settlement administrator, the Court presumes class members need not mail their objections to the settlement administrator in order for the objections to be effective. Provided the notice content is modified to unambiguously explain that objections must be filed with the Court and mailed to both parties' counsel, it is adequate.

Since this program, as modified, provides satisfactory individual and direct notice to all class members, the Court conditionally finds Plaintiff's proposal to be the best practicable notice under the circumstances. As the method of notice detailed below is reasonable, the Court conditionally approves the proposed notice program.

Accordingly,

IT IS HEREBY ORDERED denying without prejudice Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction due to Mootness. (Doc. 65.)

IT IS FURTHER ORDERED denying without prejudice Plaintiff's Motion to Stay Ruling on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction due to Mootness. (Doc. 70.)

IT IS FURTHER ORDERED denying without prejudice Plaintiff's Motion for Class Certification. (Doc. 79.)

IT IS FURTHER ORDERED granting Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. (Doc. 87.)

IT IS FURTHER ORDERED: