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1 MICHAEL KAUFMAN (State Bar No. 254575) [email protected] 2 CARMEN G. IGUINA (State Bar No. 277369) [email protected] 3 AHILAN T. ARULANANTHAM (State Bar No. 237841) [email protected] 4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street 5 Los Angeles, California 90017 Telephone: (213) 977-5232 6 Facsimile: (213) 417-2232 7 CHARLES ROTH * [email protected] 8 CLAUDIA VALENZUELA * [email protected] 9 NATIONAL IMMIGRANT JUSTICE CENTER A HEARTLAND ALLIANCE PARTNER 10 208 South LaSalle, Suite 1300 Chicago, Illinois 60604 11 Telephone: (312) 660-1308 Facsimile: (312) 660-1505 12 Counsel for Plaintiffs (Additional counsel listed on following page) 13 UNITED STATES DISTRICT COURT 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 MARCO ANTONIO ALFARO ) Case No. 4:14-cv-01775-YGR ) 16 GARCIA, CREDY MADRID CALDERON, GUSTAVO ORTEGA, ) UNOPPOSED NOTICE OF MOTION ) AND MOTION FOR (1) PRELIMINARY 17 and CLAUDIA RODRIGUEZ DE LA TORRE, on behalf of themselves and all ) APPROVAL OF CLASS ACTION ) SETTLEMENT; (2) PRELIMINARY 18 others similarly situated, ) CERTIFICATION OF THE ) SETTLEMENT CLASS; AND (3) ORDER 19 Plaintiffs, ) DIRECTING NOTICE TO THE CLASS ) AND SCHEDULING A FAIRNESS 20 v. ) HEARING. MEMORANDUM OF POINTS AND AUTHORITIES IN 21 JEH JOHNSON, Secretary of Homeland ) Security, LEON RODRIGUEZ, Director ) SUPPORT THEREOF; DECLARATION ) OF MICHAEL KAUFMAN IN SUPPORT 22 of U.S. Citizenship and Immigration Services, and JOSEPH LANGLOIS, ) THEREOF ) 23 Associate Director of Refugee, Asylum and International Operations, ) [Proposed] Order Filed Concurrently ) 24 Defendants. ) Date: August 11, 2015 ) Time: 2:00 p.m. 25 ) Place: Courtroom 4 - 3rd Floor ) 26 ) Honorable Yvonne Gonzalez Rogers ) 27 ) Complaint Filed: April 17, 2014 28 Case No. 4:14-cv-01775-YGR UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

1 JULIA HARUMI MASS (State Bar No. 189649) [email protected] 2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 3 39 Drumm Street San Francisco, California 94111 4 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 5 Email: [email protected]

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6 JAMES A. ROLFES * 7 [email protected] DAVID Z. SMITH 8 [email protected] TIMOTHY R. CARRAHER * 9 [email protected] CHRISTOPHER R. MURPHY 10 [email protected] REED SMITH LLP 11 10 South Wacker Drive, 40th Floor Chicago, Illinois 60606 12 Telephone: (312) 207-1000 Facsimile: (312) 207-6400 13 14 JOHN D. PINGEL (State Bar No. 267310) [email protected] 15 REED SMITH LLP 101 Second Street, Suite 1800 16 San Francisco, California 94105-3659 Telephone: (415) 543-8700 17 Facsimile: (415) 391-8269 18 Counsel for Plaintiffs 19 * admitted pro hac vice 20 21 22 23 24 25 26 27 28 Case No. 4:14-cv-01775-YGR UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

NOTICE OF MOTION AND MOTION

1 2

PLEASE TAKE NOTICE that Plaintiffs hereby move under Federal Rules of Civil

3 Procedure 23 for an order (1) granting preliminary approval of the settlement reached between 4 Plaintiffs and Defendants, attached as Exhibit 1 to the Declaration of Michael Kaufman, as fair, 5 reasonable, and adequate; (2) granting preliminary certification of the Settlement Class; (3) granting 6 approval of the proposed notice to the Class and directing provision of Class Notice; and (4) setting 7 a schedule for the Fairness Hearing. This motion shall be heard on August 11, 2015 at 2:00 p.m., or 8 as soon thereafter as counsel may be heard in the courtroom of the Honorable Yvonne Gonzalez 9 Rogers at the Oakland Courthouse, 1301 Clay Street, Oakland, California 94612.

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10

This motion is based upon this Notice of Motion and Motion, the Memorandum of Points and

11 Authorities in support thereof, the Declaration of Michael Kaufman and the exhibits thereto, the 12 complete files and records of this action, and such other evidence and authorities as may be 13 presented to the Court in connection with the briefing and hearing of this motion. 14

This motion is made pursuant to the class Settlement Agreement entered into by the parties,

15 attached as Exhibit 1 to the Declaration of Michael Kaufman. This motion is made following 16 conferences of counsel, which have taken place over the course of months, including during 17 settlement negotiations. Defendants have confirmed that they do not oppose this motion. 18

DATED: July 7, 2015

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19 By 20

/s/ John D. Pingel John D. Pingel One of Plaintiffs’ Attorneys

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TABLE OF CONTENTS

1 2

Page 3 STATEMENT OF ISSUES TO BE DECIDED – LOCAL RULE 7-4(a)(3) ........................................ i 4 MEMORANDUM OF POINTS AND AUTHORITIES ...................................................................... 1 5 INTRODUCTION ................................................................................................................................ 1 6 FACTUAL BACKGROUND ............................................................................................................... 2 7 A.

Facts Alleged by Plaintiffs ............................................................................................ 2

B.

Procedural History ........................................................................................................ 3

8 9 SUMMARY OF SETTLEMENT TERMS........................................................................................... 4

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10 A.

The Settlement Class..................................................................................................... 4

B.

Terms of the Settlement ................................................................................................ 5

C.

Continued Jurisdiction of the Court .............................................................................. 6

D.

Attorneys’ Fees and Costs ............................................................................................ 7

11 12 13 14 THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED .............................................. 7 15 A.

The Relief Provided by the Settlement Compared to the Strength of Named Plaintiffs’ Case and Risk of Further Litigation. ............................................................ 8

B.

The Settlement is Fair, Adequate and Reasonable Given the Extent of Discovery and Information Exchanged Between the Parties. ....................................... 9

C.

The Settlement is the Product of Serious, Informed, Non-collusive Negotiations Conducted by Experienced Counsel. ..................................................... 10

20

D.

Presence of Government Participants. ........................................................................ 11

21

E.

Reaction of Class Members to the Settlement. ........................................................... 11

16 17 18 19

22 THE COURT SHOULD GRANT PRELIMINARY CERTIFICATION TO THE SETTLEMENT CLASS ......................................................................................................... 11 23 THE COURT SHOULD APPROVE THE CLASS NOTICE AND NOTICE PLAN UNDER RULE 23(e)(1). ....................................................................................................................... 12 24 25

A.

The Proposed Class Notice and Settlement Materials Provide Appropriate Information to Class Members in Easily Understandable Language.......................... 12

B.

The Process for Distribution of Class Notice Is Reasonably Calculated to Reach Class Members. ................................................................................................ 13

C.

Individual Mailed Notice is Not Required. ................................................................. 14

26 27 28

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1 2

D.

The Settlement Approval Process Provides Adequate Opportunity for Settlement Class Members to Raise Objections or Comment on the Settlement. .................................................................................................................. 15

3 PROPOSED SCHEDULE FOR NOTICE AND FINAL APPROVAL ............................................. 16 4 CONCLUSION ................................................................................................................................... 16 5 6 7 8 9

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases 4

Alfaro Garcia, et al. v. Johnson, et al., No. 4:14-cv-01775-YGR ...............................................................................................................15 5 6 Bourlas v. Davis Law Associates, 237 F.R.D. 345 (E.D.N.Y. 2006) .....................................................................................................9 7 Carson v. American Brands, Inc., 8 450 U.S. 79 (1981) ...........................................................................................................................8

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9 Churchill Vill., L.L.C. v. GE, 361 F.3d 566 (9th Cir. 2004) .....................................................................................................7, 12 10 11 Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) ...................................................................................................9, 10 12 Gautreaux v. Pierce, 13 690 F.2d 616 (7th Cir. 1982) ...........................................................................................................7 14 Handschu v. Special Servs. Div., 787 F.2d 828 (2d Cir. 1986)...........................................................................................................14 15 16 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...................................................................................................7, 11 17 Kaplan v. Chertoff, 18 2008 WL 200108 (E.D. Pa. 2008) .................................................................................................14 19 Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) .........................................................................................................9 20 21 In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ...........................................................................................................9 22 Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338 (9th Cir. 1980) .......................................................................................................12 23 24 Murillo v. Pacific Gas & Elec. Co., 266 F.R.D. 468 (E.D. Cal. 2010) .....................................................................................................7 25 In re Pac. Enters. Sec. Litig., 26 47 F.3d 373 (9th Cir. 1995) ...........................................................................................................10 27 Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988) .........................................................................................................14 28 Case No. 4:14-cv-01775-YGR

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1 Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956 (3d Cir. 1983)...........................................................................................................14 2 Statutes 3 4 8 U.S.C. § 1231(b)(3) ............................................................................................................................2

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5 Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. 105-277, 112 Stat. 2681, 2681-821 ........................................................................................................................2 6 Rules 7 Fed. R. Civ. P. 23 ...........................................................................................................................11, 14 8 Fed. R. Civ. P. 23(c)(2)(A) ..................................................................................................................14 9 Fed. R. Civ. P. 23(c)(2)(B) ............................................................................................................12, 13 10 11 Fed. R. Civ. P. 23(e)(1) ........................................................................................................................13 12 Fed. R. Civ. P. 23(e)(2) ..........................................................................................................................7 13 Regulations 14 8 C.F.R. §§ 208.16-17, 1208.16-17 .......................................................................................................2 15 8 C.F.R. § 208.31(b) ..............................................................................................................................3 16 8 C.F.R. § 208.31(c)...............................................................................................................................3 17 Other Authorities 18 19

Manual for Complex Litigation, §30.42 (3d ed. 1995) ........................................................................10 Newberg on Class Actions, at §11:47 ..................................................................................................10

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STATEMENT OF ISSUES TO BE DECIDED – LOCAL RULE 7-4(a)(3)

1 2

1.

Should the Settlement Agreement reached between Named Plaintiffs and Defendants

3 be granted preliminary approval? 4

2.

Should the Court preliminarily approve certification of a Settlement Class consisting

5 of all individuals who (i) are or will be subject to a reinstated order of removal under 8 U.S.C. 6 § 1231(a)(5) or an administrative removal order under 8 U.S.C. § 1228(b); (ii) have expressed, or in 7 the future express, a fear of returning to his or her country of removal; (iii) are detained in the 8 custody of the Department of Homeland Security (“DHS”); and (iv) have not received, or do not 9 receive, an initial reasonable fear determination by USCIS under 8 C.F.R. § 208.31 within ten (10)

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10 days of referral to USCIS, but excluding individuals who have received their reasonable fear 11 determination? 12

3.

Should the Notice (Exhibit A to the Settlement Agreement) be provided to the Class

13 as provided for in Section V.A. of the Settlement Agreement? 14

4.

Should the Court set a date for the final approval and fairness hearing?

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

Plaintiffs Marco Antonio Alfaro Garcia, Credy Madrid Caldron, Gustavo Ortega, and

4 Claudia Rodriguez de la Torre (collectively, the “Named Plaintiffs”), on behalf of themselves and 5 the Settlement Class herein, and Defendants Jeh Johnson, Secretary of Homeland Security, Leon 6 Rodriguez, Director of U.S. Citizenship and Immigration Services and Joseph Langlois, Associate 7 Director of Refugee, Asylum and International Operations (collectively, “Defendants”), have 8 reached a settlement of the claims in this action (“Settlement” or “Settlement Agreement” refers to 9 the proposed settlement). The parties thus seek preliminary approval of the Settlement by this

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10 Motion, as required by Federal Rule of Civil Procedure 23(e). 11

In this action, Plaintiffs claim that governing regulations require Defendants to give

12 noncitizens the opportunity to establish their claims for protection within the United States by 13 conducting an interview and issuing a determination as to whether they have a “reasonable” basis for 14 their claims (i.e., a “reasonable fear determination”) within ten days of referral. Defendants dispute 15 those claims but have nonetheless agreed to enter into the Settlement, memorialized in the 16 Settlement Agreement described in this Motion. 17

The Settlement Agreement, attached to the Declaration of Michael Kaufman (the “Kaufman

18 Decl.”) as Exhibit 1, provides members of the Settlement Class with substantial relief through 19 numerous provisions ensuring that reasonable fear determinations will be provided expeditiously, 20 ultimately achieving a national average of ten days for Defendants to issue these determinations. 21 The proposed Settlement easily satisfies the standards necessary for preliminary approval. Named 22 Plaintiffs ask this Court to (1) grant preliminary approval of the Settlement Agreement reached 23 between Named Plaintiffs and Defendants as fair, reasonable and adequate; (2) grant preliminary 24 certification of the Settlement Class; (3) direct that notice (Exhibit A to the Settlement Agreement) 25 be provided to the Class as provided for in Section V(A) of the Settlement Agreement ; and (4) set a 26 schedule for a final approval and fairness hearing. 27 28 Case No. 4:14-cv-01775-YGR

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FACTUAL BACKGROUND

1 2

A.

Facts Alleged by Plaintiffs

3

Plaintiffs claim that Defendants are failing to timely process their claims to protection from

4 removal from the United States based on a fear of persecution or torture, in violation of a binding 5 federal regulation. Defendants dispute Plaintiffs’ claims. 6

Specifically, Plaintiffs have alleged that by federal immigration law and its treaty obligation,

7 the United States has committed to provide all individuals an opportunity to seek protection in the 8 United States if they fear persecution or torture in their home countries. See 8 U.S.C. § 1231(b)(3) 9 (providing that a person may seek withholding of removal if his “life or freedom would be

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10 threatened in that country because of the alien’s race, religion, nationality, membership in a 11 particular social group, or political opinion.”); Foreign Affairs Reform and Restructuring Act of 12 1998 § 2242, Pub. L. 105-277, 112 Stat. 2681, 2681-821 (providing, as a signatory to the United 13 Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or 14 Punishment (“CAT”), that the United States will “not to expel, extradite, or otherwise effect the 15 involuntary return of any person to a country in which there are substantial grounds for believing the 16 person would be in danger of being subjected to torture . . ..”); 8 C.F.R. §§ 208.16-17, 1208.16-17 17 (implementing CAT obligations). This case concerns the procedures the government has adopted for 18 certain noncitizens who seek protection within our borders: those who are subject to removal based 19 on the reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5), or an administrative 20 removal order under 8 U.S.C. § 1228(b). 21

When U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and Border

22 Protection (“CBP”) apprehend a noncitizen subject to reinstatement or administrative removal, such 23 individuals are generally subject to removal from the United States without a hearing or decision by 24 an immigration judge. But if the individual expresses fear of persecution or torture if returned to his 25 or her country of origin, applicable regulations require federal immigration authorities to make a 26 referral to U.S. Citizenship and Immigration Services (“USCIS”). A USCIS asylum officer then 27 conducts a “reasonable fear interview” and thereafter makes a determination as to whether the 28 individual established a “reasonable possibility” that he or she would be persecuted or tortured upon Case No. 4:14-cv-01775-YGR

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1 his or her return to the country of removal. See 8 C.F.R. § 208.31(c). If the individual establishes 2 “reasonable fear,” he or she is referred to the immigration courts for a full hearing on his or her 3 claims for withholding of removal. Id. 4

A duly promulgated immigration regulation sets forth a timeline for completion of reasonable

5 fear determinations. The regulation provides that “[u]pon issuance” of a reinstated or administrative 6 order, a noncitizen who expresses fear of return to his or her home country “shall be referred to an 7 asylum officer for a reasonable fear determination.” 8 C.F.R. § 208.31(b). The regulation further 8 provides: “In the absence of exceptional circumstances, this determination will be conducted within 9 10 days of the referral.” Id. In general, individuals subject to the reasonable fear process are subject

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10 to detention throughout the time it takes to complete the reasonable fear interview and 11 determination, the immigration court proceedings, and any appeals. 12

Despite the regulation, Plaintiffs allege that Defendants have rarely, if ever, completed

13 reasonable fear determinations within the regulatory timeline. As such, according to Plaintiffs, 14 noncitizens are forced to wait in detention for months – and, in some cases, over a year – for 15 Defendants to complete their reasonable fear determinations. Accordingly, Named Plaintiffs, who at 16 the time were being detained and awaiting their reasonable fear determinations, filed this case to 17 compel Defendants to fulfill their obligation to issue reasonable fear determinations within the 18 mandated ten days. 19

B.

Procedural History

20

Named Plaintiffs filed their Class Action Complaint for Declaratory and Injunctive Relief on

21 April 17, 2014, alleging claims under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1) 22 and for violation of 8 C.F.R. § 208.31(b). Dkt. No. 1. 23

On April 18, 2014, Named Plaintiffs filed a motion to certify the class action. Dkt. No. 12.

24 After the parties completed briefing on that motion, Defendants filed a motion to dismiss the 25 Complaint. Dkt. No. 42. After the parties completed briefing on that motion, the Court held a 26 hearing on both the class certification motion and motion to dismiss and thereafter issued an order on 27 November 21, 2014 denying Defendants’ motion to dismiss and granting Named Plaintiffs’ motion 28 for class certification, appointing Named Plaintiffs’ counsel as class counsel (hereinafter “Class Case No. 4:14-cv-01775-YGR

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1 Counsel”) and certifying “a nationwide class of all individuals who: (1) are or will be subject to 2 removal pursuant to 8 U.S.C. § 1231(a)(5) or 8 U.S.C. § 1228(b); (2) who have expressed, or in the 3 future express, a fear of returning to their country of removal; and (3) who have not received, or do 4 not receive, a reasonable fear determination pursuant to 8 C.F.R. § 208.31 within ten days of referral 5 to the U.S. Citizenship and Immigration Services.” The defined class does not include “individuals 6 who have received their reasonable fear determinations.” Dkt. No. 70. 7

Named Plaintiffs engaged in extensive discovery. See Kaufman Decl. at ¶ 5. Plaintiffs

8 issued and Defendants responded to Interrogatories and Document Requests. See id. Named 9 Plaintiffs also issued approximately twenty notices of deposition before discovery was stayed due to

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10 the parties’ settlement negotiations. See id. 11

On February 11, 2015, the parties engaged in the first of a series of settlement conferences

12 before Magistrate Judge Laurel Beeler. See id. at ¶ 6. The parties continued those talks and 13 ultimately agreed to the terms of the settlement. See id. Named Plaintiffs approve of the settlement 14 and believe that it is in the best interests of the Class. See id.at ¶ 7 and Exs. 2 & 3. SUMMARY OF SETTLEMENT TERMS

15 16

A.

17

The parties have agreed that the Settlement Class will consist of:

18

Any person who, during the period of this Agreement:

19

a.

b.

c.

is detained in the custody of the Department of Homeland Security (“DHS”); and

24 25

has expressed, or in the future expresses, a fear of returning to his or her country of removal;

22 23

is or will be subject to a reinstated order of removal under 8 U.S.C. § 1231(a)(5) or an administrative removal order under 8 U.S.C. § 1228(b);

20 21

The Settlement Class

d.

has not received, or does not receive, an initial reasonable fear determination

26

by USCIS under 8 C.F.R. § 208.31 within ten (10) days of referral to USCIS;

27

however,

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e.

1

the defined class does not include individuals who have received their reasonable fear determination.

2

3 Settlement Agreement, Ex. 1 to Kaufman Decl., at § I(D). The Court has already certified a class 4 nearly identical to the Settlement Class proposed by the parties. Dkt. No. 70. As discussed below, 5 the Settlement Class’s definition is more precise than the already certified class in that it is limited to 6 individuals, who like the Plaintiffs at the time of filing, were being detained in the custody of the 7 Department of Homeland Security in immigration detention facilities. 8

B.

Terms of the Settlement

9

The main terms of the Settlement Agreement presented for the Court’s approval require that

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10 the Defendants take steps to ensure more transparent and expedited procedures for processing 11 reasonable fear determinations for Settlement Class Members. Settlement Agreement at § III. First, the Settlement Agreement ensures that Settlement Class Members are promptly

12

13 referred by ICE to USCIS for a reasonable fear determination. Under the terms of the Agreement, 14 ICE must refer an individual to USCIS “immediately, as practicable” after an individual who is in 15 ICE custody is issued a qualifying removal order and expresses fear of persecution or torture. 16 Settlement Agreement at § III(A). Within a year after the date of the Settlement Agreement, ICE 17 must achieve an average of no greater than 5 days for referrals and, thereafter, the parties will meet 18 and confer to establish a new, shorter benchmark for referrals for the pendency of the Agreement. 19 Id. at § III(A)(1)-(2). To ensure that ICE complies with its obligations under the Settlement 20 Agreement, ICE will endeavor to modify its databases to capture relevant data, produce periodic 21 implementation reports to Class Counsel, and incorporate its obligations under the Settlement 22 Agreement into any future published training guides or manuals addressing procedures for the 23 reinstatement of removal order and/or administrative removal orders. Id. at §§ III(A)(3), III(C). Second, for individuals referred to USCIS for a reasonable fear determination, Defendants

24

25 must achieve a national average of no more than ten (10) court days to complete reasonable fear 1 26 determinations by November 2, 2015 or thirty (30) calendar days after the Effective Date,

27

1

The Settlement Agreement defines “Effective Date” as “the date when all of the following shall have occurred: (a) entry of the Preliminary Approval Order; (b) approval by the Court of this Agreement, following 28 notice to the Class and a fairness hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure;

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1 whichever is later. Id. at §§ III(E); III(H). Further, Defendants have committed that in no individual 2 Settlement Class Member’s case will a reasonable fear determination take longer than twenty (20) 3 court days, not including any tolling or delays due to exceptional circumstances, and to notify Class 4 Counsel in any case in which they fail to meet this requirement. Id. at § III(H). The Settlement 5 Agreement provides that the determination period will be calculated beginning on the date of a 6 “proper” referral to USCIS, and ending on the date on which USCIS makes a determination and 7 serves it on the Settlement Class Member. Id. at § III(D). The determination period shall be “tolled” 8 when an individual (or his or her representative) requests additional time to prepare for the interview 9 and such tolling period shall be limited to the time requested by the individual (or his or her

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10 representative) and agreed to by USCIS or a default period of no more than ten (10) court days. Id. 11 at § III(F). In addition, refusal to participate in the reasonable fear interview or accept service of 12 written documentation of the reasonable fear determination shall toll the reasonable fear 13 determination period during the length of the refusal to participate or accept service. Id. The 14 Settlement Agreement also provides for the tolling of the determination period for “exceptional 15 circumstances,” which specifically do not include “unusual but reasonably foreseeable 16 circumstances.” Id. at § III(G). 17

To ensure Defendants’ compliance with the prescribed timing requirements, Defendants must

18 produce monthly reports with data on reasonable fear determinations and permit Class Counsel to 19 access a sample of class members’ files. Id. at § III(I)-(J). If Defendants achieve certain 20 benchmarks for twelve (12) consecutive months, thereafter reporting will be required only on a 21 quarterly basis. If, after eight (8) consecutive quarterly reports, Defendants have achieved all 22 benchmarks, Defendants can seek an early termination of the Agreement. Id. at § III(I)(1). 23

C.

Continued Jurisdiction of the Court

24

The Settlement Agreement provides that the Court will retain jurisdiction for enforcement

25 purposes for five years from the Effective Date, but that the period can be shortened to three years if 26 Defendants achieve certain benchmarks. Id. at §§ IV(A), VII. The Settlement Agreement also 27 and (c) entry by the Court of Final Judgment, in all material respects in the form appended hereto as Exhibit

28 B.” Settlement Agreement § VI(A). Case No. 4:14-cv-01775-YGR

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1 requires the parties to exhaust a certain dispute resolution process before invoking the Court’s 2 jurisdiction. Id. at § IV(B). Should the parties need to invoke the Court’s jurisdiction to enforce the 3 Settlement Agreement, the parties agreed that the Court in such a proceeding will have the power to 4 award such relief and issue such judgments as the Court deems proper and appropriate. Id. at 5 § IV(C). The Settlement Agreement further does not prohibit the parties from jointly agreeing to 6 reduce the duration of the Settlement Agreement. Id. at § VII. 7

D.

Attorneys’ Fees and Costs

8

As part of the Settlement Agreement, Defendants have agreed to pay $327,047.66 to Class

9 Counsel for fees and costs incurred in this litigation. Id. at § IX.

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10 11

THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED At preliminary approval, the court “need only ‘determine whether the proposed settlement is

12 within the range of possible approval.’” Murillo v. Pacific Gas & Elec. Co., 266 F.R.D. 468, 479 13 (E.D. Cal. 2010) (quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n. 3 (7th Cir. 1982)). Here, the 14 proposed settlement is well within the realm of “possible approval,” providing Settlement Class 15 members with relief sought by the Complaint: the expeditious processing of their claims for 16 protection within the United States. Thus, the settlement is within the range of settlements that the 17 Court could properly approve. 18

“If the proposal would bind class members, the court may approve it only after a hearing and

19 on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The Ninth Circuit sets 20 forth the following factors for a district court to consider in determining the fairness of a settlement 21 at final approval: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity and likely 22 duration of further litigation; (3) the risk of maintaining class action status throughout the trial; 23 (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the 24 proceedings; (6) the experience and views of the counsel; (7) the presence of a governmental 25 participant; and (8) the reaction of the class members to the proposed settlement. Hanlon v. Chrysler 26 Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); accord Churchill Vill., L.L.C. v. GE, 361 F.3d 566, 575 27 (9th Cir. 2004). These factors are “non-exclusive” and the court should only consider the relevant 28 Case No. 4:14-cv-01775-YGR

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1 factors. Churchill Vill., 361 F.3d at 576 n.7. Here, the parties’ settlement is “fundamentally fair, 2 adequate, and reasonable,” and meets the relevant Hanlon factors. 3 4 5

A.

The Relief Provided by the Settlement Compared to the Strength of Named Plaintiffs’ Case and Risk of Further Litigation.

“Courts judge the fairness of a proposed compromise by weighing the plaintiff’s likelihood

6 of success on the merits against the amount and form of relief offered in the settlement . . . They do 7 not decide the merits of the case or resolve unsettled legal questions.” Carson v. American Brands, 8 Inc., 450 U.S. 79, 88 n. 14 (1981) (internal citation omitted). 9

Named Plaintiffs believe that they would have likely prevailed at trial based on their claims

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10 and supporting evidence that Defendants’ delay in providing reasonable fear determinations violated 11 both the APA and 8 C.F.R. § 208.31(b) and that they would have shown sufficient facts to support 12 the granting of injunctive relief. See Kaufman Decl. at ¶ 9. Indeed, as the Court found in its order 13 denying Defendants’ motion to dismiss and granting class certification “[t]he exhibits provided by 14 defendants . . . illustrate that the exceptional appears to have become the norm such that nothing 15 about the agency’s delay is due to anything of a ‘rare’ or ‘unusual’ nature. Rather, the fact of 16 noncompliance in the majority of reasonable fear determinations appears to be part of an ongoing 17 and expected trend.” Dkt. No. 70 at 18. 18

The relief in the parties’ Settlement Agreement requires the Defendants to give timely

19 reasonable fear determinations, and establishes requirements, on a national basis, that will assure 20 such determinations will be done on an average of ten or less days from referral. As such, this relief 21 is in the best interests of the Class, particularly given the scope and detail of the relief provided. 22 Negotiation of a settlement in this manner allowed Named Plaintiffs to have considerable input into 23 the nature and substance of the relevant policies, as well as to secure robust monitoring to ensure 24 compliance with the terms of the Agreement. 25

Furthermore, while Defendants dispute Named Plaintiffs’ claims and allegations, the parties

26 agree that it would be expensive and time-consuming to litigate this case through trial, that the 27 outcome of a trial is uncertain, and that resolution of this action through settlement is appropriate. 28 Case No. 4:14-cv-01775-YGR

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1 See Kaufman Decl. at ¶ 10. The parties thus recognized that there was much more to be gained 2 through reasonable settlement discussions than through protracted litigation and trial. 3

Class Counsel believes that this Class Settlement is both fair and reasonable for all parties

4 and that if approved, this Settlement will result in substantial improvements in the reasonable fear 5 determination process for present and future Settlement Class Members. See Kaufman Decl. at ¶ 11. 6 The Settlement Agreement is the result of considerable negotiations, and tremendous effort to reach 7 a mutually acceptable resolution of Named Plaintiffs’ claims and provide monitoring of Defendants’ 8 implementation of the policies and procedures necessary to provide expeditious processing of 9 reasonable fear determinations. See id. In Class Counsel’s opinion, this Settlement will require that

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10 Defendants implement processes and procedures that will ensure that they achieve compliance of a 11 national average of ten (10) days to issue reasonable fear determinations. See id. 12 13 14

B.

The Settlement is Fair, Adequate and Reasonable Given the Extent of Discovery and Information Exchanged Among the Parties.

As the Ninth Circuit has recognized, although “extensive formal discovery ha[s] not been

15 completed . . . ‘in the context of class action settlements, ‘formal discovery is not a necessary ticket 16 to the bargaining table’ where the parties have sufficient information to make an informed decision 17 about settlement.’” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (internal 18 citations omitted) (quoting Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998)). 19

Here, Named Plaintiffs engaged in both informal fact-gathering and formal discovery.

20 Named Plaintiffs propounded discovery, including interrogatories and requests for production, on 21 Defendants and received documents and interrogatory responses from Defendants. See 22 KaufmanDecl. at ¶ 5. Defendants also submitted hundreds of pages of documents relevant to the 23 Named Plaintiffs’ claims in support of their Motion to Dismiss. See Dkt. No. 42. Class Counsel 24 also conducted independent fact research and contacted various detained noncitizens who had 25 expressed a fear to government officials, as well as consulted with experts, to better inform their 26 settlement negotiations. See Kaufman Decl. at ¶ 5. This and other information obtained during 27 negotiations informed the terms of the Settlement. 28 Case No. 4:14-cv-01775-YGR

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1 2 3

C.

The Settlement is the Product of Serious, Informed, Non-collusive Negotiations Conducted by Experienced Counsel.

Where a “proposed settlement appears to be the product of serious, informed, non-collusive

4 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class 5 representative or segments of the class and falls within the reasonable range of approval, preliminary 6 approval is granted.” Bourlas v. Davis Law Associates, 237 F.R.D. 345, 355 (E.D.N.Y. 2006) 7 (internal citations omitted). “Strong judicial policy ... favors settlements.” Class Plaintiffs v. City of 8 Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Further, courts presume that class settlements reached 9 in arms’ length negotiations between experienced, capable counsel after meaningful discovery are

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10 correct. See id. at 1290; Manual for Complex Litigation, §30.42 (3d ed. 1995). 11

Further, the Ninth Circuit has recognized that “[p]arties represented by competent counsel

12 are better positioned than courts to produce a settlement that fairly reflects each party’s expected 13 outcome in litigation.” In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). “The weight 14 accorded to the recommendation of counsel is dependent on a variety of factors; namely, length of 15 involvement in the litigation, competence, experience in the particular type of litigation, and the 16 amount of discovery completed. Usually, a consideration of the criteria involved leads the court to 17 the conclusion that the recommendation of counsel is entitled to great weight following arm’s-length 18 settlement negotiations.” Newberg on Class Actions, at §11:47. 19

Named Plaintiffs were involved in active, adversarial litigation against Defendants for over a

20 year during which settlement discussions were ongoing. After the Court denied Defendants’ motion 21 to dismiss and certified the Class in November 2014, the parties agreed to have a settlement 22 conference with Magistrate Beeler. See Kaufman Decl. at ¶ 6. The parties convened for two, all-day 23 in-person settlement conferences with Judge Beeler, and numerous additional conferences by phone 24 and discussions over email. During those settlement conferences, the parties discussed in detail 25 every element of the Settlement Agreement and considered alternative proposals, before arriving at 26 the terms of the present settlement. Id. 27

Further, Named Plaintiffs are represented by the ACLU of Southern California, the ACLU of

28 Northern California, the National Immigrant Justice Center (“NIJC”) and Reed Smith LLP. The Case No. 4:14-cv-01775-YGR

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1 ACLU of Southern California, the ACLU of Northern California, NIJC and Reed Smith have 2 extensive experience with impact litigation affecting noncitizens and immigrants and various other 3 under-represented groups in both individual and class actions. See Kaufman Decl. at ¶ 3. 4 Defendants are well represented by attorneys from the U.S. Department of Justice. 5

In sum, the Settlement Agreement between the parties is the result of arms-length, informed

6 and non-collusive negotiations. And, the experience of the parties’ counsel, and the nature and 7 quality of their negotiations, weigh greatly in favor of the Court’s approval of the Settlement. 8

D.

Presence of Government Participants.

9

To the extent this factor is significant, the Defendants are all governmental officials sued in

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10 their official capacities and are using limited public resources. This Settlement preserves those 11 public resources by rendering further litigation unnecessary, properly balances the concerns of the 12 Department of Homeland Security and USCIS with the interests of the Class, avoids the time and 13 expense of further litigation, and results in a benefit to the public as a whole. 14

E.

Reaction of Class Members to the Settlement.

15

Class Counsel will discuss this factor further in the motion for final approval. Named

16 Plaintiffs have been apprised of the terms of the Settlement and approve of the Settlement 17 Agreement. See Kaufman Decl. at ¶ 7 & Exs. 2 & 3. 18

THE COURT SHOULD GRANT PRELIMINARY CERTIFICATION

19

TO THE SETTLEMENT CLASS

20

A court may certify a settlement class if a plaintiff demonstrates that all of the prerequisites

21 of Federal Rule of Civil Procedure 23(a) have been met, and at least one of the requirements for 22 Rule 23(b) have also been met. See Fed. R. Civ. P. 23; Hanlon, 150 F. 3d at 1019. Here, the Court 23 has already certified, under Rule 23(b)(2), a class nearly identical to the Settlement Class proposed 24 by the parties. See Dkt. No. 70. In fact, the Settlement Class’s definition is more precise than the 25 already certified Class in that it is limited to individuals who, like the Plaintiffs at the time of filing, 26 were being held in detention facilities in the custody of the Department of Homeland Security. The 27 definition of the Settlement Class is thus tailored to encompass the group of individuals whom 28 Plaintiffs have contended from the outset of this case were being harmed as a result of Defendants’ Case No. 4:14-cv-01775-YGR

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

1 actions. See Kaufman Decl. at ¶ 12. Further, the Government has represented to Class Counsel that 2 non-detained individuals constitute a very small percentage of the class the Court previously 3 certified, and because they are not being detained, these non-detained individuals present unique 4 circumstances that affect the timing of their respective reasonable fear determinations. Id. 5

Because the Court already found that a class consisting of “a nationwide class of all

6 individuals who: (1) are or will be subject to removal pursuant to 8 U.S.C. § 1231(a)(5) or 8 U.S.C. 7 § 1228(b); (2) who have expressed, or in the future express, a fear of returning to their country of 8 removal; and (3) who have not received, or do not receive, a reasonable fear determination pursuant 9 to 8 C.F.R. § 208.31 within ten days of referral to the U.S. Citizenship and Immigration Services . . .

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10 [and] who have [not] received their reasonable fear determinations,” Dkt. No. 70, meets the 11 requirements of Rule 23, the parties respectfully propose that certification of the Settlement Class is 12 likewise appropriate. 13

THE COURT SHOULD APPROVE THE CLASS NOTICE

14

AND NOTICE PLAN UNDER RULE 23(e)(1).

15 16 17

A.

The Proposed Class Notice and Settlement Materials Provide Appropriate Information to Class Members in Easily Understandable Language.

Rule 23(e)(1) of the Federal Rules of Civil Procedure requires that prior to final approval of a

18 class settlement, “[t]he court must direct to class members the best notice that is practicable under 19 the circumstances,” and notice to class members must be “clearly and concisely state[d] in plain, 20 easily understood language.” Fed. R. Civ. P. 23(c)(2)(B). “Notice is satisfactory if it ‘generally 21 describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to 22 investigate and to come forward and be heard.’” Churchill Vill., LLC, 361 F.3d at 575 (quoting 23 Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). 24

The proposed Class Notice accomplishes this. See Ex. A to the Settlement Agreement. The

25 Class Notice provides a brief description of the case and Settlement, as well as the Settlement Class 26 definition. The headings are in bold and plainly describe the different topics covered by the Notice. 27 The Notice explains how class members can obtain a list of Class Counsel and a copy of the 28 Settlement Agreement, including a listing of websites on which this information is posted. It Case No. 4:14-cv-01775-YGR

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1 provides the mailing address of Class Counsel for Settlement Class Members to contact Class 2 Counsel to ask questions or obtain additional information. Finally, the notice also explains how 3 Settlement Class members can exercise their right to object, the deadline for objections and the date, 4 time, and location of the fairness hearing. Moreover, the proposed Class Notice provides this 5 information in simple English that is easy to read and understand (and will be translated into simple 6 Spanish that is also easy to read and understand). See Kaufman Decl. ¶ 13. 7 8 9

B.

The Process for Distribution of Class Notice Is Reasonably Calculated to Reach Class Members.

Rule 23(e) provides that, if a court grants preliminary approval, “[t]he court must direct

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10 notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. 11 Civ. P. 23(e)(1). The parties have developed a Plan for Class Notice for the Class. See Settlement 12 Agreement at § V(A). The Plan for Class Notice has three components: 13

First, the Class Notice will be posted to governmental and non-profit websites that will serve

14 as “portals” to distribute information to Class Members. Id. § V(A). Specifically, Defendants will 15 post the Class Notice on USCIS’s public website. Id. § V(A)(i). In addition, Class Counsel will post 16 the Class Notice on the websites of the ACLU of Southern California, the ACLU of Northern 17 California, and the NIJC. These three website each receive several hundred thousand “hits” per 18 year. Kaufman Decl. ¶ 14. 19

Second, Class Notice will be provided to USCIS’s Public Engagement Division for

20 distribution to a network of community-based and non-profit organizations that provide advice and 21 assistance to immigrants. Settlement Agreement at § V(A)(ii). The parties will thus enlist these 22 numerous organizations in distributing the Class Notice. 23

Third, Defendants will post or otherwise make available the Class Notice at all ICE

24 immigration detention facilities where Settlement Class Members may be detained. See Settlement 25 Agreement at § V(A)(iv). These Notices will be placed in an area prominently visible to 26 immigration detainees, including any Settlement Class Member. 27 28 Case No. 4:14-cv-01775-YGR

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

1

C.

Individual Mailed Notice is Not Required.

2

In light of the robust notice scheme described above and given that this case involves a class

3 certified under Federal Rule of Civil Procedure 23(b)(2), individualized notice of the proposed 4 settlement to all class members should not be required. Moreover, any negligible benefit gained by 5 providing such notice would be outweighed by the cost and delay that would be incurred. Rule 23(b)(3) specifically requires individualized notice “to all members who can be

6

7 identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). This individualized notice is 8 necessary so that class members can exercise their right to opt out. In contrast, for (b)(1) and (b)(2) 9 classes, as to which there is no right to opt out, Rule 23 provides only that “the court may direct

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10 appropriate notice to the class.” Fed. R. Civ. P. 23(c)(2)(A). The reason for the different treatment is 11 that, 12

Rule 23(b)(1) and (b)(2) classes are cohesive in nature. Because of this cohesiveness,

13

an adequate class representative can, as a matter of due process, bind all absent class

14

members by a judgment. . . . Rule 23(b)(3) classes are less cohesive, and must abide

15

by more stringent due process constraints.

16 Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 963 & fn.1 (3d Cir. 1983) (citations 17 omitted). 18

Accordingly, “the form of notice of settlement of a Rule 23(b)(1) or (b)(2) class action need

19 only be such as to bring the proposed settlement to the attention of representative class members 20 who may alert the court to inadequacies in representation, or conflicts in interest among subclasses, 21 which might bear upon the fairness of the settlement.” Id. at 963 (emphasis added); see also 22 Handschu v. Special Servs. Div., 787 F.2d 828, 833 (2d Cir. 1986) (“Because of the common 23 interests of all its members, a Rule 23(b)(2) class seeking declaratory and injunctive relief is 24 cohesive by nature, and notice to a representative class membership may be considered sufficient.”) 25 (emphasis added; citation omitted). 26

Courts have thus approved notice of proposed settlements in (b)(1) and (b)(2) cases by means

27 of individual notice to class representatives and flyers posted at a correctional center, without the 28 requirement of individual notice to each prisoner. Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir. Case No. 4:14-cv-01775-YGR

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1 1988). Moreover, in cases involving detained noncitizens, like the Class here, courts will approve 2 providing notice by posting on appropriate government websites, in the institutions and 3 dissemination through community-based and nonprofit organizations which work with potential 4 class members. See, e.g., Kaplan v. Chertoff, 2008 WL 200108, 12 -13 (E.D. Pa. 2008) (distribution 5 of notice of proposed settlement by posting on USCIS and SSA public websites, providing notice to 6 USCIS Community Relations Program for distribution to existing network of community based and 7 non-profit organizations providing advice and assistance to immigrants found sufficient.) The proposed notice plan here, like the plans approved in the above cases, is designed to

8

9 reach a substantial number of class members and will amply ensure awareness of the Settlement by

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10 “representative class members” who will be able to inform the Court of any perceived deficiencies in 11 the settlement—the very purpose of notice in a (b)(2) case. Further, not only is individualized notice not required, it would be unnecessarily burdensome

12

13 in this case. First, the cost of providing individualized notice to the thousands of Settlement Class 14 members would be substantial. See Kaufman Decl. ¶ 15. The parties agree that the Defendants’ 15 resources would be better spent elsewhere. Second, individualized notice would delay the settlement 16 approval process. Defendants have informed Plaintiffs that it would take weeks to send out 17 individualized notice to all potential Settlement Class members and would cost tens of thousands of 18 dollars. Id. In contrast, the proposed notice plan would post the Class Notice five (5) working days 19 after the Court grants preliminary approval. Settlement Agreement at § V(A). Therefore, the cost 20 and delay involved in providing individualized notice weigh strongly in favor of the proposed notice 21 plan. 22

In sum, individualized notice of the proposed settlement to all class members should not be

23 required. 24

D.

The Settlement Approval Process Provides Adequate Opportunity for

25

Settlement Class Members to Raise Objections or Comment on the Settlement.

26

The Class Notice describes the process for raising objections and provides the addresses to

27 which objections must be mailed. There is a prominent heading in bold that calls the reader’s 28 attention to the objection process. The objection procedure itself is simple: the Class member may Case No. 4:14-cv-01775-YGR

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

1 submit an objection to Class Counsel in writing, via regular mail no later than a date set by the Court 2 in this case. All objections received by Class Counsel will be provided to defense counsel and filed 3 with the Court. The parties propose that only such objecting Class members will have the right, if 4 they seek it in their objections, to present objections at the fairness hearing, if the Court permits them 5 to do so. See id. Alternatively, an objector may file additional papers, briefs, pleadings, or other 6 documents that with the Court (with a copy mailed to Class Counsel). All such papers filed must 7 include the caption Alfaro Garcia, et al. v. Johnson, et al., No. 4:14-cv-01775-YGR, and provide: 8 (i) the Settlement Class Member’s full name and current detention facility or address; (ii) a signed 9 declaration that the Settlement Class Member is a member of the Settlement Class; (iii) the specific

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10 grounds for the objection; (iv) all documents or writings that the Settlement Class Member desires 11 the Court to consider; and (vii) a notice of intention (if any) to appear at the Fairness Hearing. 12

Class Counsel will provide any responses received in a separate document for the Court’s

13 review, along with or in advance of the motion for final approval. Counsel, however, will of course 14 accommodate the Court’s wishes with respect to the procedure on this matter. 15 16

PROPOSED SCHEDULE FOR NOTICE AND FINAL APPROVAL The parties propose that upon receipt of preliminary approval of the Class Settlement from

17 the Court, the parties will publish the notice for thirty (30) days in the manner outlined above. 18 Settlement Class members will have 30 days to respond to the proposed notice. Upon expiration of 19 the 30 days, counsel will file with the Court any objections or comments received. Thereafter, 20 counsel will file the motion for final approval, to be set on the Court’s next available hearing day as 21 a regularly scheduled motion. CONCLUSION

22 23

For the reasons discussed above, Named Plaintiffs request that the Court issue an order:

24 1) granting preliminary approval of the Settlement; 2) granting preliminary certification of the 25 Settlement Class, as defined in the Settlement Agreement; 3) approving the proposed Class Notice 26 and the process for distribution of the Notice; 4) establish a schedule for distribution of the Notice, 27 handling of objections, and related filings; and 5) set a date and time for the Fairness Hearing. 28 Case No. 4:14-cv-01775-YGR

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING

1 Dated: July 7, 2015

Respectfully submitted,

2 3 By: /s/ John D. Pingel

4

One of Plaintiffs’ Attorneys

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5 Michael Kaufman 6 Carmen G. Iguina * Ahilan T. Arulanantham * 7 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 8 1313 West 8th Street Los Angeles, CA 90017 9 [email protected] [email protected] 10 [email protected] Telephone: (213) 977-5232 11 Facsimile: (213) 417-2232

Charles Roth * Claudia Valenzuela * NATIONAL IMMIGRANT JUSTICE CENTER A HEARTLAND ALLIANCE PARTNER 208 South LaSalle, Suite 1300 Chicago, Illinois 60604 [email protected] [email protected] Telephone: (312) 660-1308 Facsimile: (312) 660-1505

12 Julia Harumi Mass AMERICAN CIVIL LIBERTIES 13 UNION FOUNDATION OF NORTHERN CALIFORNIA 14 39 Drumm Street San Francisco, CA 94111 15 [email protected] [email protected] 16 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 17

James A. Rolfes * David Z. Smith Timothy R. Carraher * Christopher R. Murphy REED SMITH LLP 10 South Wacker Drive Chicago, Illinois 60606 [email protected] [email protected] [email protected] [email protected] Telephone: (312) 207-1000 Facsimile: (312) 207-6400 John D. Pingel REED SMITH LLP 101 Second St., Suite 1800 San Francisco, CA 94105 [email protected] Telephone: (415) 543-8700 Facsimile: (415) 391-8269

Attorneys for the Plaintiffs and Class

18 19 * admitted pro hac vice 20 21 22 23 24 25 26 27 28 Case No. 4:14-cv-01775-YGR

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL AND SCHEDULING A FAIRNESS HEARING