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  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
						
                                

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1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema N. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP ELECTRONICALLY 3 2175 N. California Blvd., Suite 500 F I L E D Walnut Creek, California 94596 Superior Court of California, 4 Telephone: 925/838-2090 County of San Francisco Facsimile: 925/820-5592 04/08/2020 5 Clerk of the Court Allan Steyer, Esq., California State Bar No. 100318 BY: ERNALYN BURA Deputy Clerk 6 D. Scott Macrae, Esq., California State Bar No. 104663 STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: (415) 421-3400 9 Facsimile: (415) 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, NGMII LLC, and IAN KAO 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LAURA S. LEHMAN, et al., Lead Case No. CGC-16-553758 16 Plaintiffs, APPENDIX OF EVIDENCE IN SUPPORT OF SUPPLEMENTAL BRIEFING RE: MOTION 17 v. FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 18 TRANSBAY JOINT POWERS AUTHORITY, et al., PART 5 OF 6 19 Defendants. 20 And Related & Consolidated cases. Date: 21 Time: This document applies to Location: Courtroom 303 22 Maui Peaks Corporation, et al. v. Mission 23 Street Development, et al. – CGC17-17- 560322 24 25 26 27 28 APPENDIX OF EVIDENCE IN SUPPORT OF SUPPLEMENTAL BRIEFING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1795930.1 - MILLENNIUM.TOWER TAB D DECLARATION OF CAMERON R. AZARI 1 2 3 4 5 6 SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SAN FRANCISCO 8 DEPARTMENT 303 9 10 LAURA S. LEHMAN, et al., Case No. CGC-16-553758 11 Plaintiff, 12 vs. DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT 13 TRANSBAY JOINT POWERS AUTHORITY, NOTICE PLAN et al., 14 Defendant 15 This document applies to: 16 Maui Peaks Corporation, et al. v. Mission Street 17 Development, et al. (CGC-17-560322) 18 19 I, Cameron R. Azari, Esq., hereby declare and state as follows: 20 1. My name is Cameron R. Azari, Esq. I have personal knowledge of the matters set 21 forth herein, and I believe them to be true and correct. 22 2. I am a nationally recognized expert in the field of legal notice, and I have served 23 as an expert in dozens of federal and state cases involving class action notice plans. 24 3. I am the Director of Legal Notice for Hilsoft Notifications (“Hilsoft”), a firm that 25 specializes in designing, developing, analyzing and implementing large-scale legal notification 26 plans. Hilsoft is a business unit of Epiq Class Action & Claims Solutions, Inc. (“Epiq”). 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 1 28 1 4. Hilsoft has been involved with some of the most complex and significant notice 2 programs in recent history, examples of which are discussed below. With experience in more 3 than 400 cases, including more than 35 multi-district litigations, Hilsoft has prepared notices 4 which have appeared in 53 languages and been distributed in almost every country, territory, and 5 dependency in the world. Courts have recognized and approved numerous notice plans developed 6 by Hilsoft, and those decisions have invariably withstood appellate and collateral review. 7 5. Epiq was established in 1968 as a client services and data processing company. 8 Epiq has administered bankruptcies since 1985 and settlements since 1993. Epiq has routinely 9 developed and executed notice programs and administrations in a wide variety of mass action 10 contexts including settlements of consumer, antitrust, products liability, and labor and 11 employment class actions, settlements of mass tort litigation, Securities and Exchange 12 Commission enforcement actions, Federal Trade Commission disgorgement actions, insurance 13 disputes, bankruptcies, and other major litigation. Epiq has administered more than 4,500 14 settlements, including some of the largest and most complex cases ever settled. Epiq’s class 15 action case administration services include administering notice requirements, designing direct- 16 mail notices, implementing notice fulfillment services, coordinating with the United States Postal 17 Service (“USPS”), developing and maintaining notice websites and dedicated telephone numbers 18 with recorded information and/or live operators, processing exclusion requests, objections, claim 19 forms and correspondence, maintaining class member databases, adjudicating claims, managing 20 settlement funds, and calculating claim payments and distributions. As an experienced neutral 21 third-party administrator working with settling parties, courts, and mass action participants, Epiq 22 has handled hundreds of millions of notices, disseminated hundreds of millions of emails, handled 23 millions of phone calls, processed tens of millions of claims, and distributed hundreds of billions 24 in payments. 25 EXPERIENCE RELEVANT TO THIS CASE 26 6. I have served as a notice expert and have been recognized and appointed by courts 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 2 28 1 to design and provide notice in many large and significant cases, including: 2 (a) In re Takata Airbag Products Liability Litigation, Case No. 1:15-md- 3 02599-FAM (S.D. Fla), involved $1.49 billion in settlements with BMW, Mazda, Subaru, Toyota, 4 Honda, Nissan, and Ford regarding Takata airbags. The notice plans in those settlements included 5 individual mailed notice to more than 59.6 million potential class members and extensive 6 nationwide media via consumer publications, U.S. Territory newspapers, radio spots, internet 7 banners, mobile banners, and specialized behaviorally targeted digital media. Combined, the 8 notice plans reached more than 95% of adults aged 18 and over in the U.S. who owned or leased 9 a subject vehicle, an average of 4.0 times each. 10 (b) Hale v. State Farm Mutual Automobile Insurance Company, et al., 12-cv- 11 00660 (S.D. Ill.),involved a $250 million settlement with approximately 4.7 million class 12 members. The extensive notice program provided individual notice via postcard or email to 13 approximately 1.43 million class members and implemented a robust publication program which, 14 combined with individual notice, reached approximately 78.8% of all U.S. adults aged 35+, 15 approximately 2.4 times each. 16 (c) In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product 17 Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.), involved a comprehensive 18 notice program that provided individual notice to more than 946,000 vehicle owners via first class 19 mail and to more than 855,000 via email. A targeted internet campaign further enhanced the 20 notice effort. 21 (d) In re: Payment Card Interchange Fee and Merchant Discount Antitrust 22 Litigation, MDL No. 1720 (E.D.N.Y.), involved a $7.2 billion settlement with Visa and 23 MasterCard in which the intensive notice program included over 19.8 million direct mail notices 24 and insertions in over 1,500 newspapers, consumer magazines, national business publications, 25 trade and specialty publications, and language and ethnic targeted publications, as well as online 26 banner notices, all of which generated more than 770 million adult impressions. 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 3 28 1 (e) In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, 2 on April 20, 2010, MDL No. 2179 (E.D. La.), involved dual landmark settlement notice programs 3 to distinct “Economic and Property Damages” and “Medical Benefits” settlement classes after the 4 BP oil spill. Notice efforts included more than 7,900 television spots, 5,200 radio spots, and 5,400 5 print insertions and reached over 95% of Gulf Coast residents. 6 (f) In re: Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.), 7 for multiple bank settlements between 2010-2018, the notice programs involved direct mail and 8 email to millions of class members, as well as publication in relevant local 9 newspapers. Representative banks included Fifth Third Bank, National City Bank, Bank of 10 Oklahoma, Webster Bank, Harris Bank, M & I Bank, PNC Bank, Compass Bank, Commerce 11 Bank, Citizens Bank, Great Western Bank, TD Bank, BancorpSouth, Comerica Bank, 12 Susquehanna Bank, Associated Bank, Capital One, M&T Bank, Iberiabank, and Synovus. 13 7. Courts have recognized our testimony as to which method of notification is 14 appropriate for a given case, and I have provided testimony on numerous occasions on whether a 15 certain method of notice represents the best notice practicable under the circumstances. For 16 example: a) In re: Takata Airbag Products Liability Litigation (Ford), MDL No. 2599 17 (S.D. Fla.), Judge Federico A. Moreno on December 20, 2018: 18 The record shows and the Court finds that the Class Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval 19 Order. The Court finds that such Class Notice: (i) is reasonable and constitutes the best practicable notice to Class Members under the 20 circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action 21 and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, 22 their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense) and the binding effect of the orders and 23 Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude 24 themselves from the Class; (iii)constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully 25 satisfied the requirements of the United States Constitution (including the Due Process Clause), FED. R. Civ. P. 23 and any other applicable law as 26 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 4 28 well as complying with the Federal Judicial Center's illustrative class action 1 notices. 2 b) Hale v. State Farm Mutual Automobile Insurance Company, et al., 3:12-cv- 00660-DRH-SCW (S.D. Ill.), Judge Herndon on December 16, 2018: 3 The Class here is estimated to include approximately 4.7 million members. 4 Approximately 1.43 million of them received individual postcard or email notice of the terms of the proposed Settlement, and the rest were notified via 5 a robust publication program “estimated to reach 78.8% of all U.S. Adults Aged 35+ approximately 2.4 times.” Doc. 966-2 ¶¶ 26, 41. The Court 6 previously approved the notice plan (Doc. 947), and now, having carefully reviewed the declaration of the Notice Administrator (Doc. 966-2), concludes 7 that it was fully and properly executed, and reflected “the best notice that is practicable under the circumstances, including individual notice to all 8 members who can be identified through reasonable effort.” See Fed. R. Civ. P. 23(c)(2)(B). The Court further concludes that CAFA notice was properly 9 effectuated to the attorneys general and insurance commissioners of all 50 states and District of Columbia. 10 c) Vergara, et al., v. Uber Technologies, Inc., 1:15-CV-06972 (N.D. Ill.), Judge 11 Thomas M. Durkin on March 1, 2018: 12 The Court finds that the Notice Plan set forth in Section IX of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order 13 constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Classes of the pendency 14 of this case, certification of the Settlement Classes for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, 15 and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law. Further, the Court 16 finds that Defendant has timely satisfied the notice requirements of 28 U.S.C. Section 1715. 17 d) In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products 18 Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.), Judge Charles R. Breyer on May 17, 2017: 19 The Court is satisfied that the Notice Program was reasonably calculated 20 to notify Class Members of the proposed Settlement. The Notice “apprise[d] interested parties of the pendency of the action and afford[ed] them an 21 opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, the Notice Administrator 22 reports that the notice delivery rate of 97.04% “exceed[ed] the expected range and is indicative of the extensive address updating and re-mailing 23 protocols used.” (Dkt. No. 3188-2 ¶ 24.) 24 e) Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co., No. 14- 23120 (S.D. Fla.), Judge Marcia G. Cooke on April 11, 2016: 25 Pursuant to the Court’s Preliminary Approval Order, the Settlement 26 Administrator, Epiq Systems, Inc. [Hilsoft Notifications], has complied with 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 5 28 the approved notice process as confirmed in its Declaration filed with the 1 Court on March 23, 2016. The Court finds that the notice process was designed to advise Class Members of their rights. The form and method for 2 notifying Class Members of the settlement and its terms and conditions was in conformity with this Court’s Preliminary Approval Order, constituted the 3 best notice practicable under the circumstances, and satisfied the requirements of Federal Rule of Civil Procedure 23(c)(2)(B), the Class 4 Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, and due process under the United States Constitution and other applicable laws. 5 f) Rose v. Bank of America Corporation, and FIA Card Services, N.A., Nos. 6 5:11-CV-02390-EJD; 5:12-CV-04009-EJD (N.D. Cal.), Judge Edward J. Davila on August 29, 2014: 7 The Court finds that the notice was reasonably calculated under the 8 circumstances to apprise the Settlement Class of the pendency of this action, all material elements of the Settlement, the opportunity for Settlement Class 9 Members to exclude themselves from, object to, or comment on the settlement and to appear at the final approval hearing. The notice was the 10 best notice practicable under the circumstances, satisfying the requirements of Rule 23(c)(2)(B); provided notice in a reasonable manner to all class 11 members, satisfying Rule 23(e)(1)(B); was adequate and sufficient notice to all Class Members; and, complied fully with the laws of the United States 12 and of the Federal Rules of Civil Procedure, due process and any other applicable rules of court. 13 g) In re Payment Card Interchange Fee and Merchant Discount Antitrust 14 Litigation, No. 1:05-cv-03800 (E.D.N.Y.), Judge John Gleeson stated on December 13, 2013: 15 The Class Administrator notified class members of the terms of the proposed settlement through a mailed notice and publication campaign that 16 included more than 20 million mailings and publication in more than 400 publications. The notice here meets the requirements of due process and 17 notice standards… The objectors’ complaints provide no reason to conclude that the purposes and requirements of a notice to a class were not 18 met here. 19 h) In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.), Judge Carl J. Barbier stated on January 11, 20 2013: The Court finds that the Class Notice and Class Notice Plan satisfied and 21 continue to satisfy the applicable requirements of Federal Rule of Civil Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C. 22 § 1711 et seq.), and the Due Process Clause of the United States Constitution (U.S. Const., amend. V), constituting the best notice that is 23 practicable under the circumstances of this litigation. 24 The notice program surpassed the requirements of Due Process, Rule 23, and CAFA. Based on the factual elements of the Notice Program as detailed 25 below, the Notice Program surpassed all of the requirements of Due Process, Rule 23, and CAFA. 26 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 6 28 The media notice effort alone reached an estimated 95% of adults in the 1 Gulf region an average of 10.3 times each, and an estimated 83% of all adults in the United States an average of 4 times each. These figures do not 2 include notice efforts that cannot be measured, such as advertisements in trade publications and sponsored search engine listings. The Notice 3 Program fairly and adequately covered and notified the class without excluding any demographic group or geographic area, and it exceeded the 4 reach percentage achieved in most other court-approved notice programs. 5 8. Numerous other court opinions and comments regarding my testimony, and the 6 adequacy of our notice efforts, are included in Hilsoft’s curriculum vitae included as Attachment 1. 7 9. In forming expert opinions, my staff and I draw from our in-depth class action case 8 experience, as well as our educational and related work experiences. I am an active member of 9 the Oregon State Bar, having received my Bachelor of Science from Willamette University and 10 my Juris Doctor from Northwestern School of Law at Lewis and Clark College. I have served as 11 the Director of Legal Notice for Hilsoft since 2008 and have overseen the detailed planning of 12 virtually all of our court-approved notice programs during that time. Before assuming my current 13 role with Hilsoft, I served in a similar role as Director of Epiq Legal Noticing (previously called 14 Huntington Legal Advertising). Overall, I have over 19 years of experience in the design and 15 implementation of legal notification and claims administration programs, having been personally 16 involved in well over one hundred successful notice programs. 17 10. This declaration details the Settlement Notice Plan (“Notice Plan” or “Plan”) 18 proposed here for the Settlement in this matter. The facts in this declaration are based on my 19 personal knowledge, as well as information provided to me by my colleagues in the ordinary 20 course of my business at Hilsoft and Epiq. 21 NOTICE PLAN 22 11. I have reviewed the “Court’s Tentative Ruling Re: Motion for Preliminary 23 Settlement Approval” (“Ruling”) and incorporated information into this declaration to address the 24 Court’s requests regarding notice as set forth in the Ruling. I have also reviewed the proposed 25 Settlement Agreement and the Notice Plan is designed to provide notice to Settlement Class 26 Members as set forth in the proposed Settlement Agreement: 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 7 28 1 The proposed Class Representatives and all individuals and entities who (1) own one or more condominium units in The Millennium Tower, that they 2 purchased prior to May 10, 2016; (2) purchased one or more condominium units in The Millennium Tower prior to May 10, 2016 and sold such unit or 3 units after May 10, 2016; or (3) as of [the Notice Date], own one or more 4 condominium units in The Millennium Tower, that they purchased after May 10, 2016, who have not filed an individual action against one or more 5 of the Defendants regarding The Millennium Tower and who do not exclude themselves from the Settlement Class in the manner and time prescribed by 6 the Court in the Preliminary Approval Order. All Settlement Class Members are Class Action Settling Parties subject to all the terms and 7 conditions of this Agreement, including, but not limited to, the Releases. Settlement Class Members excludes the Developer Defendants, TJPA, and 8 the officers and directors and employees of the Developer Defendants and TJPA, as well as their families and also excludes the named plaintiffs named 9 in the cases within the Subject Actions (excluding this Class Action) who have asserted causes of action against TJPA and/or the Developer 10 Defendants. 11 12. Epiq has received data for the Settlement Class Members with contact information 12 in preparation for providing notice. It is my understanding that for the 161 building units included 13 within the Class, Epiq will send notice to 244 individuals and entities1 who (1) own one or more 14 condominium units in The Millennium Tower that they purchased prior to May 10, 2016; (2) 15 purchased one or more condominium units in The Millennium Tower prior to May 10, 2016 and 16 sold such unit or units after May 10, 2016; or (3) as of [the Notice Date], own one or more 17 condominium units in The Millennium Tower that they purchased after May 10, 2016, who have 18 not filed an individual action against one or more of the Defendants regarding The Millennium 19 Tower. 20 13. Based on information provided by counsel, the following chart is my understanding 21 of the breakdown of the geographic location of Settlement Class Members for the 161 building units. 22 23 24 1 Epiq will send Notice to all known entities and owners of units, some of which have multiple 25 named owners (which is why 244 Notices will be sent for the 161 units), as provided by the data from MTA (Millennium Tower Home Owners Association), and according to city tax and property 26 records as identified by Class Counsel. 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 8 28 Group # of Unit # of California # of Out of # of Total 1 Owners Addresses not State International Who Live at including Unit Addresses in Addresses 2 Millennium Owners Who Live at the United Tower Millennium Tower States 3 Group 1 40 62 8 10 120 4 Unit Owners Who (Including 53 in the (China, Purchased Their Unit Bay Area) Hong Kong, 5 Before 5/10/16 and Are Taiwan, Current Unit Owners Great Britain) 6 Group 2 0 14 2 2 18 Unit Owners Who (Including 12 in the (Taiwan, 7 Purchased Their Unit Bay Area) Hong Kong) Before 5/10/16 and Sold 8 Their Unit After 5/10/16 9 Group 3 8 13 2 0 23 Unit Owners Who (Including 11 in the 10 Purchased Their Unit Bay Area) After 5/10/16 and Are 11 Current Unit Owners TOTAL 48 89 12 12 161 12 (Including 76 in the Bay Area) 13 14 14. The Notice Plan provides for mailing individual notice to all Settlement Class 15 Members from records provided by counsel for this matter. An Email Notice will also be sent to 16 those Settlement Class Members for whom an email address is available. Both individual mailed 17 notice and emailed notice will direct the recipients to a case website dedicated to the Settlement 18 where they can access additional information. It is my understanding that the mailing addresses 19 and email address for Settlement Class Members provided for individual notice efforts are all 20 fundamentally valid, deliverable addresses for Settlement Class Members. 21 15. After careful consideration, Class Counsel and Epiq have determined that a claims 22 process is necessary for at least three reasons. First, the pre-populated Claim Forms will allow the 23 Settlement Class Member to verify the information upon which their share of the Net Settlement 24 Proceeds will be determined. This will allow any appropriate adjustments to be made before the 25 final allocation is made and checks are sent out. Second, the Claims Forms are necessary to ensure 26 that the check will be sent to the correct party who, in the case of Settlement Class Members that 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 9 28 1 are partnerships or corporations, will distribute the settlement according to the governing corporate 2 or partnership agreements. Third, the Claims Forms are needed so that the absent Settlement Class 3 Members make representations regarding their relationship with any co-owners that are needed 4 under the terms of the Class Settlement Agreement. 5 16. In my opinion, providing notice via individual notice to reach the Settlement Class 6 satisfies the requirements of due process, including its “desire to actually inform” requirement.2 7 Individual Notice – Direct Mail 8 17. Epiq will send a Notice Packet (Long-Form Notice and Claim Form 3 ) to all 9 Settlement Class Members identified from records the parties provided to Epiq. The Notice 10 Packets will be sent via USPS first class mail. A copy of the proposed Long-Form Notice and 11 Claim Form are included as Attachment 2. 12 18. Prior to mailing, all mailing addresses will be checked against the National Change 13 of Address (“NCOA”) database maintained by the USPS.4 Any addresses that are returned by the 14 NCOA database as invalid will be updated through a third-party address search service. In addition, 15 the addresses will be certified via the Coding Accuracy Support System (“CASS”) to ensure the 16 17 18 19 2 “But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably 20 adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen 21 method may be defended on the ground that it is in itself reasonably certain to inform those affected . . . .”Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). 22 3 While class action claim forms are typically submitted under penalty of perjury, Epiq believes 23 that it is unnecessary to include a warning that Settlement Class Members submitting a false Claim Form could be prosecuted for perjury. 24 4 25 The NCOA database contains records of all permanent change of address submissions received by the USPS for the last four years. The USPS makes this data available to mailing firms and lists 26 submitted to it are automatically updated with any reported move based on a comparison with the person’s name and known address. 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 10 28 1 quality of the zip code5, and verified through Delivery Point Validation (“DPV”) to verify the 2 accuracy of the addresses. This address updating process is standard for the industry and for the 3 majority of promotional mailings that occur today. 4 19. The return address on the Notice Packets will be a post office box maintained by 5 Epiq. The USPS will automatically forward Notice Packets with an available forwarding address 6 order that has not expired (“Postal Forwards”). Notice Packets returned as undeliverable will be 7 re-mailed to any new address available through USPS information, for example, to the address 8 provided by the USPS on returned pieces for which the automatic forwarding order has expired, 9 or to better addresses that may be found using a third-party lookup service. This process is also 10 commonly referred to as “skip-tracing.” Upon successfully locating better addresses, Notice 11 Packets will be promptly processed and re-mailed, via FedEx to the last known address after 12 address research. Epiq will make every effort to process, perform address research and re-mail 13 undeliverables Notice Packets within 7 to 10 days of receipt of an undeliverable Notice Packet. It 14 is expected that a very small number of Notice Packets will be returned as undeliverable due to 15 the extensive address research that has already been conducted by the parties and will be done by 16 Epiq prior to mailing.6 17 20. Additionally, a Long-Form Notice and Claim Form will be mailed via USPS first 18 class mail to all persons who request one via the toll-free telephone number, the settlement email 19 20 5 21 CASS improves the accuracy of carrier route, 5-digit ZIP®, ZIP + 4® and delivery point codes that appear on mail pieces. The USPS makes this system available to mailing firms who want to 22 improve the accuracy of postal codes, i.e., 5-digit ZIP®, ZIP + 4®, delivery point (DPCs), and carrier route codes that appear on mail pieces. 23 6 The Court ordered deadlines approved for the settlement administration (to request exclusion, to 24 object or to file a claim) will apply for the re-mailed notices. Settlement Class Members will still have an adequate amount of time to exercise their rights to file a claim, request exclusion, or object. 25 In addition, extending individual Settlement Class Member deadlines would be disruptive to the 26 notice and claims process. 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 11 28 1 address, or through the website. 2 Individual Notice – Email 3 21. Class Notice will include an Email Notice to be sent to all Settlement Class 4 Members for whom a facially valid email address is available. The Email Notice will be a 5 summary notice, as is standard practice in class action noticing (the Notice is not intended to 6 provide all the detail contained in the 10 page Long Form Notice). 7 22. The Email Notice will be created using an embedded html text format. This format 8 will provide text that is easy to read without graphics, tables, images and other elements that would 9 increase the likelihood that the message could be blocked by Internet Service Providers (ISPs) 10 and/or SPAM filters. The emails will be sent using a server known to the major emails providers 11 as one not used to send bulk “SPAM” or “junk” email blasts. Each Email Notice will be 12 transmitted with a unique message identifier. If the receiving e-mail server cannot deliver the 13 message, a “bounce code” should be returned along with the unique message identifier. For any 14 Email Notice for which a bounce code is received indicating that the message is undeliverable, at 15 least two additional attempts will be made to deliver the Notice by email. 16 23. The Email Notice will include the address of the case website accessible via 17 hyperlink from the email. By visiting the case website, recipients will be able to easily access the 18 Settlement Agreement, a detailed Long-Form Notice, important court documents, and answers to 19 frequently asked questions. A copy of the proposed Email Notice is included as Attachment 3. 20 Case Website, Toll-free Telephone Number, and Postal Mailing Address 21 24. A case website will be established with an easy-to-remember domain name. 22 Settlement Class Members will be able to obtain detailed information about the case and review 23 key documents, including the Settlement Agreement, a detailed Long-Form Notice, important 24 court documents, and answers to frequently asked questions. The website will provide logistical 25 information regarding the Final Approval Hearing and will be kept current. The case website 26 address will be displayed prominently on all Notice documents. 27 DECLARATION OF CAMERON R. AZARI, ESQ. ON SETTLEMENT NOTICE PLAN 12 28 1 25. The Exclusion Request Form will also be available on the case website, instead of 2 mailing it to Settlement Class Members. In my opinion, it is unnecessary to mail the Exclusion 3 Request Form because Settlement Class Members will be able to easily exclude themselves 4 without using a form or they can use the Exclusion Request Form that will be available on the 5 case website. Importantly, mailing the Exclusion Request Form is potentially confusing to 6 Settlement Class Members who might think they need to complete and return all the forms they 7 receive with the Long Form Notice rather than just completing the Claim Form or the Exclusion 8 Request Form. 9 26. A toll-free telephone number will also be established to allow Settlement Class 10 Members to call for additional information, and listen to answers to FAQs. This automated system 11 is available 24 hours per day, 7 days per week. During normal business hours, service agents will