Erin C. Caligiuri Objector - Appellant
Symantec Corp.; Digital River, Inc. Defendants-Appellees Devi Khoday; Danise Townsend, individually and on behalf of the class they represent Plaintiffs - Appellees Michelle Van De Voorde Objector - Appellant Devi Khoday; Danise Townsend, individually and on behalf of the class they represent Plaintiffs - Appellees
Symantec Corp.; Digital River, Inc. Defendants-Appellees
Submitted: April 3, 2017
from United States District Court for the District of
Minnesota - Minneapolis
GRUENDER, MURPHY, and KELLY, Circuit Judges.
GRUENDER, Circuit Judge.
Caligiuri and Michelle Van de Voorde appeal the district
court's order approving a class action settlement
and granting attorneys' fees and service awards.
Caligiuri argues that the district court abused its
discretion by (1) approving the settlement without knowing
the final administrative costs or the final amount received
by the class, (2) calculating attorneys' fees as a
percentage of the total settlement fund without deducting
administrative costs, (3) failing to ensure that unclaimed
settlement funds would be used to benefit the class, and (4)
granting service awards of $10, 000 to each named plaintiff.
Van de Voorde joins in Caligiuri's first two arguments.
January 2011, plaintiffs filed a class action against
Symantec Corp. and Digital River, Inc. (collectively
"Symantec"). Symantec sold download insurance
services costing between $4.99 and $16.99. These services
allowed purchasers of Norton software to re-download the
software beyond sixty days from the date of their purchase.
Plaintiffs alleged that Symantec failed to disclose that
consumers could use various free alternatives to re-download
their Norton software. After the close of discovery, the
district court certified a national class comprised of all
persons in the United States who purchased the download
insurance services between January 24, 2005 and March 10,
April 2015, the parties agreed to settle. The settlement
agreement provided that Symantec would pay $60, 000, 000 into
a total settlement fund. In addition to this amount, Symantec
agreed to pay each named plaintiff up to $7, 500 of any
service award approved by the court. Any amount over $7, 500
would be paid from the total settlement fund. To receive
reimbursement, class members were required to submit an
electronic claim form within thirty days after entry of the
final approval order. Class members who submitted an approved
claim form would receive reimbursement from the net
settlement fund, which consists of the total settlement fund
after subtracting attorneys' fees and expenses,
administrative costs, and any amount of service awards
exceeding $7, 500 per named plaintiff. Approved claimants
would receive $50 for each purchase of download insurance
services, subject to a pro rata reduction if the
total claims exceeded the net settlement fund. If, after
distribution of the approved claims, sufficient funds
remained to pay at least $2 to each approved claimant, then
such funds would be distributed to approved claimants in a
second distribution on a pro rata basis. If any
funds remained after distribution to approved claimants, the
remaining funds would be distributed cy pres to the
Electronic Frontier Foundation, a nonprofit digital rights
October 2015, the district court preliminarily approved the
settlement and appointed a settlement administrator. The
settlement administrator's direct notice program provided
notice of the settlement via e-mail to class members with a
known e-mail address and via postcard to class members with
an unknown or invalid e-mail address. The e-mail and postcard
notices directed the class members to a settlement website
containing the electronic claim form.
court scheduled a final fairness hearing for January 19,
2016. Before the hearing, the settlement administrator
informed the court that, as of January 10, 2016, it had
incurred $1, 955, 681.56 in costs and estimated that the
total cost of the entire settlement administration would be
approximately $2, 420, 681.56. It further stated that it
already had received claims for 307, 240 unique purchases.
addition, class counsel filed a motion for attorneys'
fees, expenses, and service awards. Class counsel requested
an award of attorneys' fees of one-third of the total
settlement fund, which amounts to $20, 000, 000, as well as
reimbursement for $738, 605.19 in litigation expenses. The
motion also requested that the court grant service awards of
$10, 000 to each of the two named plaintiffs.
members Erin Caligiuri and Michelle Van de Voorde timely
objected to the settlement and to class counsel's motion
for attorneys' fees and service awards. After the
fairness hearing, the district court granted final approval
of the settlement, granted class counsel's motion for
attorneys' fees, expenses, and service awards, and denied
all objections. Caligiuri and Van de Voorde now appeal.