Sherri B. Simpson v. Trump University, LLC , 881 F.3d 1111 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONNY LOW; J. R. EVERETT; JOHN No. 17-55635
BROWN, on Behalf of Themselves
and All Others Similarly Situated; D.C. Nos.
ART COHEN, Individually and on 3:10-cv-00940-
Behalf of All Others Similarly GPC-WVG
Situated, 3:13-cv-02519-
Plaintiffs-Appellees, GPC-WVG
SHERRI B. SIMPSON,
Objector-Appellant, OPINION
v.
TRUMP UNIVERSITY, LLC, AKA
Trump Entrepreneur Initiative, a
New York limited liability company;
DONALD J. TRUMP,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted November 15, 2017
Pasadena, California
Filed February 6, 2018
2 SIMPSON V. TRUMP UNIVERSITY
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Steven Paul Logan, * District Judge.
Opinion by Judge Nguyen
SUMMARY **
Objector / Class Settlement
The panel affirmed the district court’s order approving a
class settlement between students and Trump University
over Sherri Simpson’s objections, and rejecting Simpson’s
request to opt out.
A lone objector, Sherri Simpson, sought to opt out of the
class and bring her claims in a separate lawsuit, which would
derail the settlement.
The panel held that Simpson had Article III standing
because she claimed that the settlement’s approval
improperly denied her a second, settlement-stage
opportunity to remove herself from the class, and therefore,
Simpson had an interest in the settlement that created a case
or controversy.
The panel rejected Simpson’s argument that the class
notice language provided a second opt-out right at the
*
The Honorable Steven Paul Logan, United States District Judge
for the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SIMPSON V. TRUMP UNIVERSITY 3
settlement stage, in addition to one at the class certification
stage. The panel also rejected Simpson’s argument that even
if the class notice did not give her a second opt-out right at
the settlement stage, due process required such an
opportunity. The panel held that due process required only
that class members be given a single opportunity to opt out
of a Fed. R. Civ. P. 23(b)(3) class.
The panel held that the district court did not abuse its
discretion in approving the settlement.
COUNSEL
Deepak Gupta (argued) and Jonathan E. Taylor, Gupta
Wessler PLLC, Washington, D.C.; Gary B. Friedman, New
York, New York; Edward S. Zusman and Kevin K. Eng,
Markun Zusman Freniere & Compton LLP, San Francisco,
California; for Objector-Appellant.
Steven Francis Hubacheck (argued), Daniel J. Pfefferbaum,
Rachel L. Jensen, Jason A. Forge, and Patrick J. Coughlin,
Robbins Geller Rudman & Dowd LLP, San Diego,
California; Amber L. Eck, Haeggquist & Eck LLP, San
Diego, California; for Plaintiffs-Appellees.
Daniel M. Petrocelli and David L. Kirman, O’Melveny &
Myers LLP, Los Angeles, California, for Defendants-
Appellees.
Gregory A. Beck, Washington, D.C.; Christopher L.
Peterson, S.J. Quinney College of Law, University of Utah,
Salt Lake City, Utah; for Amici Curiae Plain-Language
Notice Experts, The National Association of Consumer
Advocates, and Professors of Consumer Law.
4 SIMPSON V. TRUMP UNIVERSITY
Elizabeth Rogers Brannen and Peter K. Stris, Stris & Maher
LLP, Los Angeles, California; Jay Tidmarsh and Judge
James J. Clynes Jr., Professor of Law, Notre Dame Law
School, Notre Dame, Indiana; for Amici Curiae Civil
Procedure Professors.
Eric T. Schneiderman, Attorney General; Steven C. Wu,
Deputy Solicitor General of Counsel; Barbara D.
Underwood, Solicitor General; Office of the Attorney
General, New York, New York; for Amicus Curiae State of
New York.
John T. Jasnoch, Scott & Scott LLP, San Diego, California;
for Amici Curiae Claims Administrators.
OPINION
NGUYEN, Circuit Judge:
Trump University, now defunct, was a for-profit entity
that purported to teach Donald J. Trump’s “secrets of
success” in the real estate industry. During the 2016
presidential election, Trump University and Trump were
defendants in three lawsuits alleging fraud and violations of
various state and federal laws: two class actions in the
Southern District of California, and a suit by the New York
Attorney General in state court. Each suit alleged that
Trump University used false advertising to lure prospective
students to free investor workshops at which they were sold
expensive three-day educational seminars. At these
seminars, instead of receiving the promised training,
attendees were aggressively encouraged to invest tens of
thousands of dollars more in a so-called mentorship program
SIMPSON V. TRUMP UNIVERSITY 5
that included resources, real estate guidance, and a host of
other benefits, none of which ever materialized.
In the California cases, the district court certified two
classes of over eight thousand disappointed “students,” and
scheduled the cases for trial in late November 2016. On
November 8, 2016, Trump was elected President of the
United States. Within weeks, the parties reached a global
settlement on terms highly favorable to class members.
Plaintiffs would receive between 80 to 90 percent of what
they paid for Trump University programs, totaling
$21 million. The defendants agreed to pay an additional
$4 million in the case brought by the Attorney General of
New York.
This appeal involves a lone objector, Sherri Simpson,
who seeks to opt out of the class and bring her claims in a
separate lawsuit, which would derail the settlement.
Simpson does not dispute that she received, at the class
certification stage, a court-approved notice of her right to
exclude herself from the class and chose not to do so by the
deadline. She argues, however, that the class notice
promised her a second opportunity to opt out at the
settlement stage, or alternatively, that due process requires
this second chance. Neither argument is correct. We affirm.
I. Background
A. The Lawsuits
Trump University was “a private, for-profit entity
purporting to teach Trump’s ‘insider success secrets’” in the
real estate industry. Makaeff v. Trump Univ., LLC, 715 F.3d
254, 258 (9th Cir. 2013). In 2010, Sherri Simpson was
wooed to a free “investor workshop” in Florida, which
Trump University advertised as a chance to “[l]earn from
6 SIMPSON V. TRUMP UNIVERSITY
Donald Trump’s hand-picked instructor a systematic method
for investing in real estate that anyone can use effectively.”
At this event, attendees were encouraged to purchase a more
comprehensive three-day seminar, called the Apprenticeship
Program, at the cost of $1,495.
Simpson succumbed to the pitch and attended the
seminar. Those attending were aggressively pressed to
invest further in their Trump University “education” by
enrolling in the Gold Elite mentorship program. The Gold
Elite program promised access to “financing, counseling,
information databases, and numerous other resources” of
Trump University, including a year-long match with a
designated “mentor,” all meant to help enrollees launch
successful careers in real estate investing. Simpson signed
up for a shared membership, at the cost of almost $17,500.
Simpson believed that Trump University failed to
provide her with the promised personal mentoring and real
estate expertise. Her assigned mentor quickly disappeared
and never returned her calls and emails. Simpson was not
alone in her negative experience, as “students” throughout
the country demanded refunds, complained to government
agencies, and eventually sued Trump University and its
founder for allegedly deceptive business practices. See
Makaeff, 715 F.3d at 260.
Ultimately, two class actions were filed: Low v. Trump
University, LLC, No. 3:10-cv-00940 (S.D. Cal. filed Apr. 30,
2010), which alleged violations of California, Florida, and
New York law by the organization and its founder, and
Cohen v. Donald J. Trump, No. 3:13-cv-02519 (S.D. Cal.
filed Oct. 18, 2013), which alleged violations of federal law
SIMPSON V. TRUMP UNIVERSITY 7
by Trump as an individual. 1 Plaintiffs in both cases alleged
that Trump University made material misrepresentations in
its advertising and promotions, including claims that Trump
University was an accredited university; that students would
be taught by real estate experts who were handpicked by
Trump; and that students would receive a year of support and
mentoring. The Attorney General of New York also sued
Trump, Trump University, and related corporate entities,
alleging fraud and other unlawful business practices under
New York law. See People ex rel. Schneiderman v. The
Trump Entrepreneur Initiative, LLC, Index No.
451463/2013 (N.Y. Sup. Ct. Aug. 24, 2013).
In Low, the district court certified a class of plaintiffs
who purchased Trump University programs in California,
Florida, and New York, but later decertified the class as to
damages. A nationwide class was certified in Cohen. In
September 2015, the court approved a joint class
certification notice to class members in both cases.
B. Class Certification Notice
Both of the Low and Cohen classes were certified under
Federal Rule of Civil Procedure 23(b)(3), which requires the
court to provide class members “the best notice that is
practicable under the circumstances,” including, in part, a
“clear[] and concise[] state[ment] in plain, easily understood
language . . . that the court will exclude from the class any
member who requests exclusion.” Fed. R. Civ. P.
23(c)(2)(B)(v). The district court approved a joint two-page
mailed notice for the two classes. The mailed notice directed
1
The Low case was initially captioned as Makaeff v. Trump
University. Sonny Low became the lead plaintiff after the court
permitted Tarla Makaeff to withdraw as a class representative.
8 SIMPSON V. TRUMP UNIVERSITY
recipients to a website, which contained a long-form notice
of seven pages. The notices conformed, almost verbatim, to
model class action notices developed by the Federal Judicial
Center. See Federal Judicial Center, Illustrative Forms of
Class Action Notices: Employment Discrimination Notices
(2002), https://www.fjc.gov/sites/default/files/2016/ClaAct
11.pdf.
Both notices explained the basis of the lawsuit and
presented prospective class members with a binary choice:
remain in the class, or opt out. The long-form notice
explained these two options in more detail. It provided that
class members could “Do Nothing,” which would result in
inclusion in the lawsuit and potentially sharing in “money or
benefits that may come from a trial or settlement.” Class
members were expressly advised that as a consequence of
such inaction, they would “give up any rights to sue Trump
University and Trump separately about the same legal
claims.” Alternatively, class members could “Ask To Be
Excluded,” which would mean getting out of the lawsuit and
keeping the right to sue separately, but “[g]et[ting] no money
from any recovery” in the class action. The long-form notice
later emphasized that the recipient must decide between the
two options—staying in the class or asking to be excluded—
and reiterated the consequences of each course of action.
Ten people opted out of the class by the deadline, which
was November 16, 2015. 2 Simpson, who received the notice
and was frequently in contact with class counsel throughout
2015 and 2016, chose not to opt out.
2
The court later allowed three additional class members to opt out
after the court-imposed deadline but before the cases settled.
SIMPSON V. TRUMP UNIVERSITY 9
C. The Settlement
On December 19, 2016, the parties reached a settlement.
No defendant admitted wrongdoing, but a successor entity
of Trump University agreed to pay $21 million to class
members. As part of the settlement, the defendants also
agreed to pay the New York Attorney General $4 million. In
part due to class counsel’s admirable agreement to serve pro
bono, the district court estimated that the settlement would
provide class members with recovery of 80 to 90 percent of
the monies they paid to Trump University. The settlement
expressly prohibited any late opt outs.
On January 4, 2017, settlement administrators mailed a
court-approved settlement notice to the 8,253 class
members, including Simpson. The settlement notice
explained the four options available to class members at the
settlement stage: 1) submit a claim by March 6, 2017; 2)
object to the settlement by March 6, 2017; 3) ask to speak
about the fairness of the settlement in court; or 4) do nothing.
The first three options were not mutually exclusive, in that a
class member could both submit a claim and object to the
settlement’s terms. Class members who did nothing would
receive no payment and give up all rights to the settlement.
Simpson submitted her claim on February 1, 2017, over
a month before the claims deadline. As part of the claims
submission process, she affirmed, by typing “I AFFIRM” on
an online form, the following statement: “I understand that I
am bound by the terms of any judgment in these actions and
may not bring a separate lawsuit for these claims.” On
March 6, 2017, now represented by counsel, Simpson filed
an objection to the settlement, arguing that she had a due
process right to opt out of the settlement and alternatively
requesting that the district court allow her to opt out pursuant
to its discretionary authority under Rule 23(e)(4).
10 SIMPSON V. TRUMP UNIVERSITY
On March 29, 2017, in a supplemental declaration in
response to class counsel’s opposition to her objection,
Simpson argued for the first time that the long-form class
action notice gave her the impression that she would have a
second opportunity to opt out of the class if the case settled.
Simpson did not attest to reading the long-form notice in full
when she received it, only stating that she “believe[d]” she
did since it “would have been typical” of her to do so.
Simpson did not claim that she would have opted out at the
class certification stage absent this supposed promise of a
second opt-out opportunity. However, she noted that she
“would at the very least have investigated all [her] options
and contacted a lawyer familiar with class action practice.”
The district court approved the settlement over
Simpson’s objection and refused to allow her to opt out.
This timely appeal followed.
II. Standard of Review
We review the sufficiency of the class notice de novo.
Silber v. Mabon, 18 F.3d 1449, 1453 (9th Cir. 1994); see also
DeJulius v. New England Health Care Emps. Pension Fund,
429 F.3d 935, 942 (10th Cir. 2005) (“The underlying
question of whether a particular class action notice program
satisfies the requirements of [Rule] 23 and the Due Process
Clause is a legal determination we review de novo.”).
III. Discussion
A. Standing
We must first address the “threshold question of whether
[Simpson] has standing (and the court has jurisdiction).”
Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011).
“Standing under Article III of the Constitution requires a
SIMPSON V. TRUMP UNIVERSITY 11
showing that: (1) the plaintiff has suffered an injury-in-fact,
(2) the injury is fairly traceable to the challenged action of
the defendant, and (3) the injury is likely to be redressed by
a favorable decision.” Loritz v. U.S. Ct. of Appeals for the
Ninth Cir., 382 F.3d 990, 991–92 (9th Cir. 2004) (citing
Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 863 (9th Cir.
2003)).
Plaintiffs contend that Simpson lacks standing because
she has not alleged an injury-in-fact traceable to the
supposedly defective opt-out notice. Because Simpson
decided to remain in the class after receiving the class action
notice, Plaintiffs argue that she failed to show reliance on
any purported inadequacy in the notice’s description of her
opt-out rights. This misconstrues Simpson’s argument. She
does not argue that the opt-out notice deprived her of the first
opportunity to opt out. Rather, she claims that the
settlement’s approval improperly denied her a second,
settlement-stage opportunity to remove herself from the
class. Simpson therefore “has an interest in the settlement
that creates a ‘case or controversy’ sufficient to satisfy the
constitutional requirements of injury, causation, and
redressability.” See Devlin v. Scardelletti, 536 U.S. 1, 6–7
(2002) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555
(1992)). 3 Because Simpson has standing, we consider the
merits of her arguments.
3
The district court concluded that Simpson lacked standing because
any purported injury she suffered is not redressable, a ground not relied
upon by Plaintiffs on appeal. Central to the district court’s analysis was
its view that Simpson had waived her right to bring a separate lawsuit
when she submitted a settlement claim. We disagree. First, the injury
she alleges—the deprivation of another opt-out chance—is redressable
by a favorable decision in this case. See Loritz, 382 F.3d at 992. Second,
Simpson waived her right to a separate suit only if she is bound by the
12 SIMPSON V. TRUMP UNIVERSITY
B. The Class Notice Does Not Allow a Second Opt-
Out Opportunity
Simpson’s main argument is that the class notice
promised a second opt-out right at the settlement stage, in
addition to one at the class certification stage. She points to
a single sentence in the long-form notice, which states that if
“the Plaintiffs obtain money or benefits, either as a result of
the trial or a settlement, [class members] will be notified
about how to obtain a share (or how to ask to be excluded
from any settlement).” Simpson reads the ten-word
parenthetical to promise her a second opt-out right at the
settlement stage.
Rule 23(b)(3) entitles “class members [to] the best notice
that is practicable under the circumstances.” Fed. R. Civ. P.
23(c)(2)(B). “The yardstick against which we measure the
sufficiency of notices in class action proceedings is one of
reasonableness.” In re Bank of Am. Corp., 772 F.3d 125,
132 (2d Cir. 2014).
Here, reading the notice as a whole and in context, we
conclude that it promised only one opportunity to opt out.
The mailed notice stated repeatedly that class members’
“legal rights are affected” and that they had “a choice to
make now” about their class membership. Under the bolded
header “What Are Your Options?”, the notice explained:
If you wish to remain a member of one or
both Classes and possibly get money in the
cases, you do not need to do anything now. If
you remain in either or both Classes, you will
settlement and, of course, if she prevails here, the settlement is
necessarily undone.
SIMPSON V. TRUMP UNIVERSITY 13
be legally bound by all orders and judgments
the Court makes. If you do not want to be a
part of either or both lawsuits, you must take
steps to exclude yourself (sometimes called
“opting-out”). If you exclude yourself, you
cannot receive money from the lawsuit—if
any is won—but you will not be bound by
any Court orders or judgments. If you want
to start or continue your own lawsuit against
Trump University and Trump regarding their
Live Events, you must exclude yourself.
The next paragraph provided instructions on how to send an
“Exclusion Request” form, with a deadline of November 16,
2015.
The long-form notice provided additional information
about the litigation. The first page, headed with the bolded
language “If you purchased a ‘Trump University’ program,
two class action lawsuits may affect your rights,” contained
this conspicuous advisory:
14 SIMPSON V. TRUMP UNIVERSITY
YOUR LEGAL RIGHTS AND OPTIONS IN THESE LAWSUITS
Stay in these lawsuits. Await the
DO NOTHING outcomes. Give up certain rights for
the possibility of receiving money at a
later time.
By doing nothing, you keep the
possibility of getting money or benefits
that may come from a trial or settlement.
But, you give up any rights to sue Trump
University and Trump separately about
the same legal claims in these lawsuits.
Get out of the lawsuits. Get no money
ASK TO BE from any recovery. Keep rights.
EXCLUDED
If you ask to be excluded from these
lawsuits and money or benefits are later
awarded, you will not share in those
monies or benefits. But, you keep any
rights to sue Trump University and
Trump separately about the same legal
claims in these lawsuits.
Immediately underneath, the notice warned recipients that
“[t]o ask to be excluded, you must act before November 16,
2015.”
The remaining pages described, in a question-and-
answer format, prospective class members’ rights.
Specifically, under the header “Your Rights and Options,”
Question 13 stated the following:
SIMPSON V. TRUMP UNIVERSITY 15
YOUR RIGHTS AND OPTIONS
You have to decide whether to stay in the Classes or ask
to be excluded before the trial, and you have to decide
this now.
13. What happens if I do nothing?
You don’t have to do anything now if you want to keep the
possibility of getting money or benefits from these
lawsuits. By doing nothing, you are staying in one or both
of the Classes. If you stay in, and the Plaintiffs obtain
money or benefits, either as a result of the trial or a
settlement, you will be notified about how to obtain a share
(or how to ask to be excluded from any settlement). Keep
in mind that if you do nothing now, regardless of whether
the Plaintiffs win or lose the trial, you will not be able to
sue (by way of separate lawsuit) Trump University and
Trump about the same legal claims that are the subject of
these lawsuits. You will also be legally bound by all of the
Orders and Judgments the Court makes in these class
actions.
On the same page, the notice instructed class members how
to ask to be excluded, and again noted that they must request
exclusion by November 16, 2015: “To ask to be excluded,
you must send an “Exclusion Request” . . . . You must mail
your Exclusion Request postmarked by November 16,
2015”.
Read as a whole, the mailed and long-form notices
informed class members that they faced a binary choice—to
stay in the lawsuit, or to opt out—and that they needed to
make that choice by November 16, 2015. The most
reasonable reading of the notice suggests that class members
16 SIMPSON V. TRUMP UNIVERSITY
had a single opt-out opportunity that expired if not exercised
by the deadline. Indeed, the header immediately preceding
the language Simpson relies upon advised class members
that they “have to decide whether to stay in the Classes or
ask to be excluded before the trial, and [they] have to decide
this now.” (Emphasis added). This pervasive language in
both class notices supports the district court’s conclusion
that class members were “clearly apprised . . . that if they
wished to bring a separate lawsuit against Defendants, they
had to elect to opt out immediately.”
Simpson argues that Question 13’s assurance that class
members would be notified of “how to ask to be excluded
from any settlement” was intended to give class members a
second opt-out opportunity in the case of settlement, but not
trial. Looking at the cited sentence in isolation, her reading
is not wholly unreasonable. But Simpson’s argument
depends on the success of two additional inferences. First,
“ask to be excluded” must mean the right to exclusion.
Second, “exclusion” must entitle her to exclusion from class
membership, not just from the settlement’s benefits.
The first inference is more plausible than the second.
Though, in plain language, an opportunity to “ask” does not
implicitly contain a corresponding right to receive what one
asks for, in the context of the rest of the notice, “ask to be
excluded” could connote the right to exclusion. But the
second required inference—that exclusion from the
settlement means exclusion from the class and resurrection
of an individual right to litigate—is not at all plausible. The
notice contains no other language supporting Simpson’s
theory that exclusion from the settlement would resurrect a
class member’s right to litigate separately. On the contrary,
the notice clearly states that by failing to act by November
16, 2015, class members would “give up any rights to sue
SIMPSON V. TRUMP UNIVERSITY 17
Trump University and Trump separately about the same
legal claims.” (Emphasis added).
Plaintiffs urge reading the phrase “how to ask to be
excluded from any settlement” to mean the opportunity to
refuse receipt of the settlement’s benefits. Although the
language could have been clearer, Plaintiffs’ interpretation
is more consistent with the notice as a whole. It may be
unusual to refuse money awarded as part of a class action
settlement, but at least one class member did so in this case.
Simpson challenges this reading as illogical because class
members had to request a share of the settlement by
submitting a claims form, and could therefore refuse benefits
through mere inaction. But at the time the class notice was
mailed, the logistics of a possible settlement distribution
were unknown, and a direct distribution scenario without the
need of claims forms remained feasible.
The correct inquiry here is what an average class
member would have understood the notice to guarantee, see
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 113–
14 (2d Cir. 2005), and the actions of the class members in
this case bolster our conclusion that a reasonable reading of
the notice precludes Simpson’s interpretation. Among over
eight thousand class members, Simpson is the only one
advancing this understanding of the notice. Indeed, Simpson
did not even raise this argument until the final settlement
approval hearing. 4 The absence of more voices to
corroborate Simpson’s reading supports our conclusion that
no reasonable class member would have understood the
4
Plaintiffs repeatedly characterize Simpson’s argument as
“attorney-manufactured.” The timeline and evolution of her objection
support that assertion, but our court would have little work to do without
creative arguments “manufactured” by zealous attorney advocates.
18 SIMPSON V. TRUMP UNIVERSITY
notice to guarantee a second opt-out opportunity at the
settlement stage.
We agree with Simpson that the language in Question 13
could have been clearer as to the meaning of the phrase “ask
to be excluded from any settlement.” But even if “[t]he
notice in this case was not perfect,” In re Online DVD-Rental
Antitrust Litig., 779 F.3d 934, 947 (9th Cir. 2015), we
conclude it was “of such nature as reasonably to convey the
required information” regarding the window for class
members to opt out of or remain in the class, see Mullane v.
Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
The standard is not whether the notice could be written to
avoid any “possibility of conceivable injury” or
misunderstanding, but is one of reasonableness. Id. at 315
(citation omitted). We hold that the class notice language
did not provide a second, settlement-stage opportunity to
opt-out of the class. 5
C. Due Process Does Not Compel a Second Opt-Out
Opportunity
Simpson next argues that even if the class notice did not
give her a second opt-out right at the settlement stage, due
process requires such an opportunity. Our precedent
squarely forecloses this argument. In Officers for Justice v.
5
Simpson cites several cases in which class members were allowed
to opt out at the settlement stage after receiving initial class notices that
included Question 13’s exact parenthetical language. See, e.g., Hoffman
v. Blattner Energy, Inc., No. 14-cv-2195, ECF No. 94-1 at 5 (C.D. Cal.
Sept. 1, 2016) and id. ECF No. 109 at 5-6. But she does not show that
the later opt-out period arose from a guarantee in the initial class notice,
as opposed to the parties’ negotiation of the settlement’s terms. See
Officers for Justice v. Civil Serv. Comm’n of S.F., 688 F.2d 615, 634 (9th
Cir. 1982).
SIMPSON V. TRUMP UNIVERSITY 19
Civil Service Commission of San Francisco, Jesse Byrd, a
named plaintiff and class representative, objected to several
terms of a Rule 23(b) class action settlement. 688 F.2d 615,
622–23 (9th Cir. 1982). Byrd received a class notice similar
to the one here, which advised potential class members that
they would be “included in the plaintiff class,” unless they
requested exclusion in writing by the deadline, extinguishing
their right to “bring any further action against” the
defendants. Id. at 634. Byrd did not opt out of the class, but
argued that due process guaranteed him a second opt-out
opportunity at the settlement stage that would revive his
ability to litigate separately. Id. at 634–35.
We rejected this argument and held that Byrd, having
failed to exclude himself at the class certification stage, was
not entitled to exercise that option at the settlement stage. Id.
at 635. We recognized that while some class action
settlements allow a second opt-out opportunity, “they are
unusual and probably result from the bargaining strength of
the class negotiators[]” rather than any due process concerns.
Id. As we explained:
[There is] no authority of any kind suggesting
that due process requires that members of a
Rule 23(b)(3) class be given a second chance
to opt out. We think it does not. Byrd’s
rights are protected by the mechanism
provided in the rule: approval by the district
court after notice to the class and a fairness
hearing at which dissenters can voice their
objections, and the availability of review on
appeal. Moreover, to hold that due process
requires a second opportunity to opt out after
the terms of the settlement have been
20 SIMPSON V. TRUMP UNIVERSITY
disclosed to the class would impede the
settlement process so favored in the law.
Id.
Simpson is incorrect that intervening Supreme Court
precedent has implicitly overruled Officers for Justice. To
the contrary, the cases she cites simply support the case’s
holding that due process requires that class members be
given a single opportunity to opt out of a Rule 23(b)(3) class.
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812
(1985) (“[D]ue process requires at a minimum that an absent
plaintiff be provided with an opportunity to remove himself
from the class by executing and returning an ‘opt out’ or
‘request for exclusion’ form to the court . . . [T]he procedure
followed by Kansas, where a fully descriptive notice is sent
first-class mail to each class member, with an explanation of
the right to ‘opt out,’ satisfies due process.”); Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 363 (2011) (citing
Shutts, 472 U.S. at 812) (“In the context of a class action
predominantly for money damages we have held that
absence of notice and opt-out violates due process.”). We
are bound by Officers for Justice unless it is “clearly
irreconcilable” with an intervening Supreme Court decision.
See Rodriguez v. AT & T Mobility Servs., LLC, 728 F.3d 975,
979 (9th Cir. 2013) (quoting Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc)). “This is a high standard”
that has not been met here. See id. (quoting Lair v. Bullock,
697 F.3d 1200, 1207 (9th Cir. 2012)).
D. The District Court Did Not Abuse Its Discretion
in Approving the Settlement
Finally, Simpson argues that the district court abused its
discretion in approving the settlement. We may reverse only
if the district court’s decision was “illogical, implausible, or
SIMPSON V. TRUMP UNIVERSITY 21
without support in inferences that may be drawn from facts
in the record.” United States v. Hinkson, 585 F.3d 1247,
1251 (9th Cir. 2009) (en banc).
Here, we easily conclude that the district court properly
exercised its discretion. The district court considered the
“risks, expense, complexity, and likely duration of further
litigation” and had ample reasons to approve the settlement
despite its prohibition on additional opt-outs. Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Both
classes of plaintiffs would have faced significant hurdles had
they proceeded to trial, including the difficulty of prevailing
in a jury trial against either the President Elect (if the trial
had proceeded as scheduled) or the sitting President (if the
trial had been postponed, as Defendants requested). The
Low class would have had to litigate thousands of individual
damage claims, while the Cohen class faced possible
decertification. Weighed against this was the fairness of the
settlement as a whole, which the court estimated would
provide class members with almost a full recovery. Under
these challenging circumstances, the district court acted well
within its discretion by approving the settlement. 6
AFFIRMED.
6
Simpson also urges us to clarify the “outer boundaries of a district
court’s discretion under Rule 23(e)(4)” and impose a per se rule
mandating a settlement-stage opt-out opportunity in any case where
members of a previously-certified class later learn of a settlement’s
actual value. We lack the authority to rewrite the Federal Rules to
accommodate Simpson’s policy concerns. Moreover, the Rule’s
language anticipates that parties can reach a settlement agreement that
does not permit an additional opt-out opportunity. See Fed. R. Civ. P.
23(e)(4). The court’s discretionary authority to reject a settlement in
such cases provides the protection Simpson seeks.