Dekker v. Vivint Solar, Inc.

Background

The parties renewed their request for preliminary approval of a class-action settlement after the court had identified deficiencies in the settlement agreement and class notice. They filed amended versions, but the court concluded that they had not addressed all of its concerns.

The court’s primary concern was the scope of the settlement. The settlement involved modifying one provision in class members’ Purchase Power Agreements: the buy-out clause. The court explained that class members who accepted the settlement would be bound only regarding that clause. They would give up claims under California Civil Code section 1671 and claims under California’s Unfair Competition Law and Consumer Legal Remedies Act insofar as those claims were based on section 1671. They would not give up claims based on other provisions of their agreements. The court found that the amended settlement and notice did not explain this limitation clearly enough for class members to understand without reviewing legal documents or statutes.

Required Revisions

The court directed the parties to revise the class notice’s section titled “What Are My Options?” to explain that the settlement would provide no money to class members, would modify one provision of their agreements, and would release only the specified claims based on that provision. The settlement agreement also had to reflect those changes.

The court further identified these issues:

- Section 2.5’s statement about the parties’ intent remained ambiguous and could contradict the release. The court said the language should be revised so that the release covered claims that “were” asserted in the action, rather than claims that “could have been asserted.” - Section 9.8 concerning communications between defendants and class members had to require defendants to promptly notify class counsel about the identity of class members who contacted defendants about the lawsuit and the content of those communications. Class counsel would then respond as necessary and appropriate. - Section 3.4’s skip-tracing provision had to cover notices returned as undeliverable both without a forwarding address and from a forwarding address. - The parties had to make the agreement internally consistent regarding whether class members whose notices remained undeliverable would be excluded from the class or nevertheless bound by the settlement. - The parties had to resolve different proposed maximum settlement-administration costs stated in Sections 3.1 and 6.4.

Ruling and Scheduling

The court did not grant preliminary approval. It allowed the parties one more opportunity to renew their request and amend the settlement agreement and class notice by January 19, 2023, at 12:00 p.m. The court continued the final approval hearing to July 12, 2023, at 8:00 a.m. The order was signed by William Alsup, United States District Judge.