BI

NA RADOSTI , et al. , Plaintiffs,

v. ENVI SI ON EMI , L L C, Def endant. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-887 ( CKK)

MEMORAN DUM OP INION (June 8, 2010) This is a class ac tion lawsuit arising out of a series of y outh confe renc es sponsored by Def endant Envision EMI , L L C (“Envision”) in a nd around Washing ton, D.C. surroundingthe inauguration of Pre sident Ba rac k Obama in January

2009. Plaintiffs Bina Radosti, J oshua Rottm an, Sally

Rife, Hea

ther Ke rn, Z acha

ry J ohnson Bur

ton, and L atiana Ca

rter ( collectively , “Plaintiffs”) br ing this ac tion on behalf of the mselves and a ll those simi larly situated alleg ing brea ch of c ontrac t, neg lige nt misreprese ntation, and violations of state consumer protec tion laws by Envision. After a

succe ssful mediation, the parties r eac hed a se ttlement, which they have submitt ed to this Court for approva l pursuant to Fe dera l Rule of Civil Procedur e 23(e ). On Dec ember

17, 2009, the Court preliminarily approve d the settlement agree ment, conditionally

cer tified the settlement cla ss, and appr oved proc edure s to notify members of

the settlement cla ss of their r ight to objec t to or opt out of the settlement. After objections and opt-out notices w ere

rec eived, the pa

rties filed their [24] J oint Moti on for F inal Approva l of Class Action Settlement, which is prese ntly

pendingbefor e the Court. Plaintiffs also filed a [25] Motion for Attorney s’ Fe es, Expenses, and Class Repre sentative Servic e Awa rds. The A ttorney s Gene ral of twe nty -twodiffer ent states (inc luding the D istrict of Columbia) filed a [35] Brief Amicus Curiae Opposing

Final Appr oval of the Propose d Settlement Ag ree ment, to which the par ties filed a joint response

. On May 25, 2010, the Court held a F airne ss Hear ing to c onsider whe ther the pr oposed settlement ag ree ment is “fair , rea sonable, a nd adequa

te.” The arguments and re prese ntations made on the

rec ord duringthat Fa irness He aringare expressly incorporated and made a par t of this Memorandum Opinion. Upon a se arc hing r eview of the par ties’ pre liminary

and fina l motions for a

pproval of the settlement ag ree ment and ce rtification of the settlement class, the f ilings submitted in connection with the objections and opt-outs, the brie f amicus curiaeof the Attorne y s Gene ral a nd the response there to, the arguments and re prese ntations made duringthe Fa irness He aring , the rele vant statutes and c ase la w, and the e ntire re cord he rein, the Court finds that the te rms of the settlement ag ree ment, excluding the potential cy pre s fund for later e valuation, ar e fa ir,

rea sonable, a

nd adequa

te and should be a

pproved. A s expl ained be low, the Court makes the followingfinding s: the Court has jurisdiction over this action; the class may be ce rtified for settlement purposes; the se ttlement ag ree ment was ne g otiated at ar ms-leng th by

experience d counsel with the a ssistance of a n experience d mediator a fter a n appropr iate amount of investigation and informal discove ry , and it is the opinion of the experience d counsel a nd mediator that the se ttlement is fair, ade quate, a nd rea sonable; the vouc hers to be a war ded under the settlement agree ment provide mea ningf ul value to class membe rs bec ause of their hig h fac e value, their

transfe rability , and their se ven-year duration; choice -of- law issues and Envision’s financ ial condition significa ntly undermine Plaintiffs’ likelihood of obtainingmeaning ful classwide re lief at trial; the se ttlement is supported by the class, a s demonstrated by the low number of

2objectors a nd opt-outs; and the cy pre s fund established by

the settlement agree ment—if proper ly administered—will ensure that Envision substantially disgor g es the prof

its from its allege d misconduct. Acc ording ly , the Court shall GRANT the pa rties’ [24] J oint Moti on for F inal Approva l of the Settlement Ag ree ment, HOL D I N AB EYANCE a

pproval of the proposed cy pres fund, and H OL D I

N AB EYANCE Plaintiffs’ [25] Motion for Attorney s’ Fe es, Ex penses, and Class Repre sentative Servic e Awa rds. I. BACKG ROUND A. Factual and Proce dural Background Envision is a Virg inia limit ed liability company that sponsors educa tional confe renc es 1 for youth. This lawsuit pertains to three stude nt confe renc es sponsored by Envision in

connec tion with the inaugur ation of President B ara ck Obama in Washington, D.C. in J anuar y 2009. The thre e conf

ere nces w ere desig nated by ag e g roup: (1) the J unior Presidential Youth Inaugural Confe renc e, for students in the fifth throug h eig hth gr ades at the time of the inauguration; (2) the Presidential Youth Inaugural Confe renc e, for high sc hool students; and (3) the Univer sity

Presidential Inaugural Confe renc e, for colleg e students over

the ag e of 18 (collec tively , the “Confe renc es”) . Envision beg an soliciting pa rticipation in the Confere nces in J anuar y 2008. Plaintiffs alleg e that Envision repr esente d to potential participants that they would be pre sent for the inauguration of the Pre sident and Vice President, witness the inaugural pa rade , and attend a

black tie g ala inaugural ba ll. See First Am. Compl. ¶ 41. Plaintiffs also alleg e that Envision repre sented that pa rticipants would, amongother thing s, have “ private a cce ss” to the Although Plaintiffs a lleg e in the F irst Amended Complaint that Envision is 1 headqua rtere d in the District of Columbia, the parties a g ree d duringthe Fa irness He aringthat Envision is based in Vienna, Vir g inia. 3Smit hsonian Institut ion on the National Mall, hea r a ke y note spee ch fr om famed c y clist L ance Armstrong , and mee t historians, polit ical experts, leadingdecision make rs, and White House officia ls. See id. ¶¶ 41- 42. Envision also alleg edly informed invitees that they wer e amonga “fe w selec t students” invited to attend one of the Confere nces. See id. ¶ 43. Approximately 15,000 students paid betwee n $2380 and $2729 in tuition costs to attend the Confere nces. Plaintiffs alleg e that the many of the promises made by Envision were not delivere d duringthe Confer ence s. They claim that Envision “uniformly failed to provide acc ess to witness the inauguration and/or pr ovide spec ial acc ess to the Mall for the inauguration and instea d told students they

wer e ‘on the ir own.’” First Am. Compl. ¶ 53. They also claim that Envision failed to provide tickets to the inaugural pa rade or to an off

icial B lack Tie Gala ina

ugural ba ll, deliver many of the promised spe aker s, and provide a dequate housing a nd transporta

tion to the over 15,000 students who attended the Confere nces. Id. ¶¶ 54- 57. Envision also alleg edly failed to disclose mater ial fac ts reg ardingthe Confer ence s, including: that Envision had made no

arr ang ements to provide ticke ts so that Conferenc e attende es could a ctually witness the inauguration or the ina

ugural pa rade ; that the “B lack Tie Gala I naugural B all” had no a ffiliation with any of the off icial inaugural ba lls held in W ashing ton, D.C. and would be he ld in school g y mnasium-style fa cilities where no formal we ar w as re quired; and that the Confere nces w ere not “selec tive” or “ exclusive.” Id. ¶ 60. Plaintiffs contend that if the y had known these fac ts, they would not have made the dec ision to pay Envision to attend the Confere nces. After many Confere nce attendees c omplained about their e x perie nces, Envision established an inf

ormal cla ims procedur e. Envision sent a c laim form to approximately 2000 individuals who had contac ted Envision to ex press a conce rn about the Confe renc es. The c laim

4form allowe d eac h attendee to indicate which e vents they had missed duringthe Confer ence s, and Envision assig ned a r eimbursement va lue to eac h missed event. On avera g e, ea ch cla imant

rec eived a

bout $400 in cash compe nsation. Each c laimant also rec eived a voucher worth $750 that could be a

pplied toward tuition at future Envision prog rams. In addition, Envision paid 2 cash se ttlements (rang ing f rom approximately

$500 to full refunds) to about 150 individuals, some of whom had f

iled lawsuits in small claims courts. Two individuals also rece ived settlements worth appr ox imately $6000, one of whom alleg edly suffe red f

rom phy sical injuries and emotional tra

uma and the othe r of whom f iled a lawsuit in NewYork Supreme Court. Envision spent approxim ately $900,000 on all of these c laims and settlements and issued voucher s worth appr ox imately $1,458,000. No deter

mination as to liabili ty

has eve r bee n made. 3 On Marc h 19, 2009, sever al attende es at the Confe renc es brought a class a ction lawsuit in the United States District Court for the Norther n District of I llinois ag ainst Envision and Congr essional Youth L eade rship Council (“CYL C”), an e ntity whose a ssets were purcha sed by Envision in 2007, allegingbrea ch of c ontrac t. See Complaint, Bowman v. Cong. Y outh Leadership Council , Civ. No. 09-1727 (N.D. I ll. filed Mar. 19, 2009). A fter E nvision made offe rs of judg ment under Rule 68 to the named plaintiffs in that ac tion, Envision and CYL C moved to dismiss the class a ction as moot. The plaintiffs then f iled an ame nded complaint 4

Alternatively , claimants could e lect to fore g o their ca sh compensation and r ece ive 2 double the value of their se ttlement as a vouc her. Roug hly twenty perc ent of c laimants opted for a vouche r-only

settlement. The fa cts in this parag raph a re de rived fr om repre sentations made by Envision’s counsel 3 duringthe Fa irness He aring , as we ll as from information provided by the par ties and the objectors. Envision paid $5000 to each of the Bowman class re prese ntatives to settle their cla ims. 4 5substitut ing f our other c lass members a s class re prese ntatives. Envision filed an answ er to the amende d complaint, and the pa rties made Rule 26 initial disclosures a nd beg an discussingthe timing and log istics of discovery . In addition, the plaintiffs filed a motion for c lass cer tification, which wa s opposed by

Envision. The instant ac tion was broug ht separately by Bina Radosti, on her own be half a nd as next friend of Dash Radosti, and Joshua Rott man on May 13, 2009, ag ainst Envision and CYL C, alleg ing thr ee c auses of

action: (1) violations of the D .C. Consum er Protec tion Procedure s Act (“CPPA”), D.C. Code §§ 28-3901 et seq. ; (2) neg lige nt misreprese ntation; and (3) br eac h of contra ct. See Compl. ¶¶ 91-109. The Radostiplaintiffs filed a motion bef ore the J udicial Panel on Multidi strict L itigation see king to tra nsfer the Bowman case to this C ourt, and Envision filed a separ ate motion to transfe r the Bowman case to this C ourt for c onsolidated proce eding s. B. Settlement Negotiations Shortly afte r this action was f

iled, the par

ties in both thi s case and the Bowman case beg an to eng ag e in forma l and informal se ttlement neg otiations. The parties he ld in-person meeting s in W ashing ton, D.C. and Chicag o, I llinois and par ticipated in numerous tele phone confe renc e ca lls. I n addition, Envision provided informal discover y to Plainti ffs re g ardingits insurance cover ag e, the number of complaints it had re ceive d and re solved, the nature of the Confere nces, a

nd the cur rent fina ncial condition of the c ompany . On August 4, 2009, the parties c onducted a formal media

tion session before the Honora ble Danie l Weinst ein (Ret.) of J udicial Arbitration and Mediation Service s. See J oint Mot. for F inal Approva l, Aff. of Hon. Danie l Weinst ein ¶ 3. The mediation lasted for approximately

14 hours, duringwhich time the par ties eng ag ed in extensive and sometimes
6contentious neg otiations. See id. ¶ 6. Although the mediator be lieved at se vera l times that no

settlement would be re ache d, the par ties ultim ately

rea ched a

n ag ree ment to compromise the litigation. Id. The pa

rties fully neg otiated and a g ree d to the relief to be af forde d the class members pr ior to beg inning a ny discussions about attorney s’ fe es, costs, or c lass repr esentative incentive a

war ds. Id. ¶ 8. Followingthe mediation, the Bowman plaintiffs agree d to voluntarily dismiss their pendingcase and consolidate their cla ims in t his action. On Aug ust 13, 2009, the Bowman action wa s dismis sed without prejudice pursuant to the settlement a g ree ment. On Novembe r 19, 2009, the Plaintiffs filed an Ame nded Complaint ag ainst Envision incorporatingthe re maining class re prese ntatives from th e Bowman action (Sally Rife, on her

own beha lf and a s nextfriend of F ranc hesca

Rife, Hea

ther Ke rn, Z acha

ry J ohnson Bur

ton, and L atiana Ca

rter) . The pa

rties eng ag ed in detailed ne g otiations and exchang ed numer ous draf ts of the settlement agree ment befor e pre sentingit to thi s Court for pre liminary approva l on Dece mber 10, 2009. C. The Terms of the Settlement Agre eme nt The settlement a g ree ment provides re lief to the settlement cla ss in the form of vouc hers that can be used towar ds tuiti on at future Envision prog rams. The settlement c lass is defined a s 5 all individuals who attended one of the Confe renc es (or , for those individuals under 18 y ear s of ag e, their pa

rent or le g al guardia

n) who have not, prior to the c ertification of the settlement class,

rec eived f rom Envision any

ref und, voucher , or other c ompensation in settlement of a c laim arisingout of the Confer ence s. See J oint Mot. for Prelim. Approval, Class Action Settlement Although the parties use the term “ tuition” in the settlement ag ree ment, Envision has 5 explained that for most of its prog rams, the tuition fee includes lodg ing a nd meals for

program attendee s. 7Ag ree ment (“Settlement Agree ment”) at 3-4. The se ttlement ag ree ment establishes a se ttlement

claims proce dure in whic h class member s may apply for a settlement pay

ment consisting of

two voucher s worth $625 ea ch (f or a total va lue of $1250). T he vouche rs may be used w ithin seven y ear s of the date of issuance toward pa y ment of tuition for a futur e Envision confe renc e or prog ram. The voucher s must be used one at a time unless tuition for a program is $3500 or more, in which c ase both vouc hers may be used tog ether

. The vouc hers a re f ully assig nable a

nd 6 transfe rable to anyone, but they may only be re deeme d by

(a) a fa mily member of a c lass

7 member or

(b) a ny other student who ha s a 3.5 or hig her grade point avera g e or who rec eives a teac her r ecommenda

tion at the time of enrollment in the Envision confe renc e or pr og ram. In a 8 First Amendme nt to the Settlement Agr eeme nt, Envision agr eed to maintain a pag e on its website that de scribes howto rede em the vouche rs and f urther e x plains that voucher s are fully transfe rable

. See J oint Response to Br. Amicus Curiae , First Amendme nt to Cl ass Action Settlement Ag ree ment (“Settlement Agree ment Amendment”) at 2. As ame nded, the se ttlement 9 ag ree ment also provides that at least ten per cent of all attendee s enrollingin any future E nvision

The c ost of tuition for Envision progr ams rang es fr om approxim ately $1400 to $5200, 6 meaningthat the discount value of the vouche rs towar d any particula r program ra

ng es fr om approximately

18% to 45%. The Settlement Ag ree ment does not define “fa mily member,” althoug h the par ties 7 explained at the Fa irness He aringthat they intended the ter

m to apply

only to immediate family members, suc h as siblings or ste psiblings, and not to more distant re latives such as c ousins. Envision avers that this is a standar d elig ibilit y require ment for attendance at its 8 prog rams. The Settlement Ag ree ment Amendment strikes pa ragraphs 10- 14 of the orig inal 9 Settlement Ag ree ment and substitutes new par ag raphs 10- 14. Ex cept whe re othe rwise noted, the Court’s discussion of the settlement incorpor ates the la nguag e of the Settlement Ag ree ment Amendment. 8confe renc e or pr og ram may use such vouc hers. Id. at 1. In the orig inal settlement ag ree ment, a cla ss member see king to qua lify for the vouc hers would have to c omplete and submit to Envision (within 90 day s of the ef fec tive date of

the settlement ag ree ment) a ve rification form indicatingthat the student who attende d one of the Confere nces involuntarily missed one or more of the thre e key inaugural e vents (i.e., the inauguration, the inaugural pa rade , and the blac k tie inaugural ba ll). As amende d in response to objections, the Settlement Ag ree ment require s eac h class member to verify only that the student who attende d one of the Confere nces w as “unsatisfied” with his or her experience

. See Settlement Ag ree ment Amendment at 2. Envision will provide monthly repor ts to class counsel indicatingthe number of

claims rec eived, Envision’s dete rmination on eac h claim, and the

rea sons supporting e ach de termination duringthe claims per iod; Envision wil l also provide a final re port within 30 day s after the claims period. Id. at 3-4. In the eve nt that a dispute arise s as to whether

a cla ss member prope rly submitt ed a ve rification, Envision s hall indicate that information in its mont hly repor t, and Envision will attempt to resolve the dispute in g ood faith with class counse l. Id. at 2. I f the dispute ca nnot be re solved, class c ounsel may seek intervention fr om this C ourt. Id. The settlement a g ree ment also provides that if Envision does not distribute at lea st $8 milli on worth of vouc hers to cla ss members, Envision shall establish a “Class Settlement Scholarship Fund” (“CSSF”) in an amount equivale nt to the differ ence betwee n the vouche r pay ments and $8 million. I n eff ect, this provision cre ates a potential cy pre

s fund and e nsures 1 0

The cy pre

s doctrine, a s used in the class a ction context, permits unclaimed funds to be 1 0 distributed to the “next best” class, thus maxi miz ing the number of individuals compe nsated. See D emoc ratic Cent. Comm. v. W ash. Metro. Area Transit Comm’n , 84 F.3d 451, 455 ( D.C. Cir.

9that Envision will di stribute at least $8 million in di scounts off f uture programs. As amended, the settlement agree ment provides that Envision shall awa rd par tial or total scholarships fr om the CSS F to an a cade mically qualified a

pplicant to attend an E nvision progr am base d on economic or other c onsiderations. Envision shall be re quired to distribute scholar ships totaling at lea st 15% of the CSSF ea ch year until the CS SF is depleted, which must occur w ithin seven y ear s of its creation. I n order

to deplete the CSSF, the schola rships must not onl y

be distributed but actua lly rede emed by

individuals attending Envision programs. Envision may , in its di scre tion, distribute additional scholarships ea ch year totaling up to 5% of

the CSS F to indepe ndent, nationally rec og nized org anizations that focus on educ ation and/or lea dership skills such as the National 4-H Council, Boy Scouts of Americ a, and the Girl Scouts of the USA. Envision shall include on all program we bsites information about how students may apply for sc holarships, and class member s will be elig ible for these scholarships. Envision shall administer the CSSF separ ately from any other tuition assistance or scholarship program, a

nd Envision will notbe require d to include in or add to the CSSF any amounts for unused vouc hers distributed to class members. The settlement ag ree ment calls for Envision to provide semiannual re ports to class counsel on the a dminist ration of the CSSF, includingamounts awa rded a nd rede emed a

nd an

acc ounting of

any balanc e re maining until the CSSF is depleted. As part of the settlement agree ment, class member s agree to unconditionally rele ase a ny and all cla ims ag ainst Envision, whether known or unknown, ar ising out of the Confe renc es and the alleg ations in the Radostiand Bowman complaints. Class members furthe r agree that the voucher pay ments are their exclusive reme dy for their claims. The a g ree ment provides that in 1996). 10addition to the voucher pay ments, Envision ag ree s to provide $2500 to eac h of the six named class re prese ntatives, subject to cour t approva l. Envision also ag ree s to pay , subject to court approva l, a total awa

rd to class c ounsel of $1,455,000 for expenses and fe es. The a g ree ment 1 1 states that no portion of the se ttlement pay ments shall be re duced in a ny way to pay class repr esentatives or class c ounsel. C. Form and Manne r of Noti ce to the Class, Objec tions & Opt-Outs On Dec ember

17, 2009, this Court gra

nted pre liminary

approva l of the settlement ag ree ment and conditionally cer tified the settlement cla ss. Pursuant to the settlement agree ment, notice wa s provided to 13,415 class membe rs by elec tronic mail and 343 c lass members by mail. See J oint Mot. for Final Appr oval, Aff . of Jennifer M. Ke oug h ¶ 3. Envision’s notice provide r also hosted a we bsite with information reg ardingthe settlement agree ment that rec eived 1125 hits through Ma

rch 11, 2010. See id. Class members we re infor med of their oppor

tunity to reque st ex clusion from the settlement c lass, i.e., opt out, or object to the ter ms of the settlement ag ree ment. Objections and opt-outs we re due within 45 day s after notice wa s sent. Class counsel re ceive d 15 total objections, one of whic h was untimely

. This repre sents 1 2 approximately

one tenth of one perc ent of the se ttlement class. Many of the objec tors indicated that they wer e dissatisfied with their e x perie nce at the Confere nces a nd would never

attend another Envision prog ram. Seve ral objec tors indicated that it would be impossible or imprac tical

In its Order Pre liminarily ApprovingClass Action Settlement Ag ree ment, 1 1 Conditi onally

Certifying Settlement Class and A pprovingClass Action Notice Plan, the Court appointed James Piz zirusso, Esq., and Robert Coleman, Esq., as cla ss counsel to repr esent the settlement class. See Docke t No. [19] ¶ 11. The Court has c onsidered a ll of the objections, but the Court notes that the untimely 1 2 objection was substantially simil ar to the vie ws expressed by timely objectors. 11to attend a f uture Envision prog ram, e ither bec ause the y would no longe r be e ligible students or beca use interna

tional travel would be require d in order to attend. These obje ctors g ener ally 1 3 expressed a pr efe renc e for a ca sh settlement in lieu of a vouc her tha t they would be unlikely

to use. Sever al objector s also expressed conc ern that the voucher s would only cover a portion of the tuition at future programs, so they would be re quired, by

their ca lculations, to spend hundreds, if not thousands, of a dditional dollars in order to take advanta g e of the voucher s. Severa l objectors complaine d that even though the vouche rs would be tra nsfer able to fa

mily members or

other qua lified attende es, they did not have elig ible family members a

nd it would be difficult or burde nsome for the m to locate other qualified individuals who might be interested in purcha sing a

voucher . One objec tor expressed conc ern that named cla ss repre sentatives and Class Counsel rece ive ca sh while class membe rs only qualify for tuition voucher s. Severa l objectors c omplained that the settlement a g ree ment did not sufficiently punish Envision for its misconduct and sug g ested that Envision be re quired to provide at least a pa rtial ref und. Class counsel also re ceive d 25 total opt-outs. Severa l of the individuals seeking 1 4 exclusion from the settlement class indicate d that they enjoy ed their e x perie nce a t the Confere nces a

nd did not want to be a pa rt of this liti g ation, while others g ave no r eason f or opting out. Only

two of the opt-outs indicate d that they wer e displease d with the settlement.

Some of the students attendingthe Confer ence s were from over seas, a nd two objections 1 3 came from individuals in the United King dom. The pa rties indicated tha

t one of the opt-out notice s was untimely filed; howeve r, the 1 4 parties c onfirmed at the Fa irness He aringthat they will acce pt the untimely

opt-out and exclude that individual from the settlement cla ss. 12D. Joint Motion for Final Approval and Fairness Hearin g

On Marc h 12, 2010, afte r the objec tions and opt-outs were rec eived, the pa rties filed their J oint Moti on for F inal Approva l of the Class Action Settlement. On Marc h 16, 2010, Plaintiffs filed a Motion for A ttorney s’ Fe es, Expenses, and Class Repre sentative Servic e Awa rds. On April 14, 2010, the Attorney s Gene ral of twe nty -two states (inc luding the D istrict of Columbia) filed a B rief Amicus Curiae OpposingFinal Appr oval of the Propose d Settlement Ag ree ment. The Attorne y s Gene ral c ontend that the settlement a g ree ment should be subjected to he ighte ned scrutiny as a c oupon settlement pursuant to the Class Action F airne ss Act of 2005, Pub. L . No. 109-2, 119 Stat. 4 (codifie d in scattere d sections of title 28 of the United States Code) (“CAF A”)

. The Attorne y s Gene ral a lso argue that the vouc her pa y ments offe r low value compar ed to disproportionate attorney and ince ntive fee s and do not repr esent a rea sonable settlement in lig ht of the stre ng th of Plaintiffs’ ca se. The A ttorney s Gene ral a lso criticize the Class Settl ement Scholarship Fund be cause unlike a true cy pre s fund, Envision retains c ontrol over the f und and has nea rly complete discr etion over howto disperse the f unds. The Court orde red the parties to file a brief in r esponse to the Attorne y s Gene ral’s opposition, which they

filed on April 30, 2010. In their re sponse brief , the par ties noted that they had ame nded the se ttlement ag ree ment so as to provide that a ny class member

who was dissatisfied could obtain vouche rs, whethe r or not he or she missed any

of the thre e key

inaugural events. The amende d settlement ag ree ment also clar ified some aspe cts of how the CSSF would be administere d to addre ss some of the Attorne y s Gene ral’s c oncer ns. The re sponse brief

also addre ssed other a

rguments raised by

the Attorney s Gene ral, whic h shall be addr essed be low. The Court held a

Fa irness He aringon May 25, 2010, with counsel for the par ties as well
13as a le g al re prese ntative of the A ttorney s Gene ral pre sent. None of the potential class membe rs soug ht permission to speak at the F airne ss Hear ing. II. LEGAL STANDARD Fe dera l Rule of Civil Procedur e 23(e ) provides that “[t] he cla ims, iss ues, or de fense s of a

cer tified class may

be settled . . . only

with the court’s a

pproval.” A class may

be ce rtified for settlement purposes only , and such “ settlement-only” cla sses have become incre asing ly prominent. See A mche m Prods., Inc. v . W indsor , 521 U.S. 591, 618 (1997). When ce rtifying a class for settlement purposes only , a cour t must consider whethe r the propose d class mee ts the require ments of Fe dera l Rule of Civil Procedur e 23, althoug h the cour t need not dete rmine whether the ca se, if tried, w ould present intra ctable ma nag ement proble ms. Id. at 620; Thomas v. Albright , 139 F.3d 227, 234 ( D.C. Cir. 1998). As proponents of c lass cer tification, Plaintiffs have the burden of establishing that eac h of the e lements of Rule 23(a ) ar e met and that the class is maintainable pursua

nt to one of Rule 23(b)’ s subdivisi ons. Amche m , 521 U.S. at 614; Fed. R. Civ. P . 23; Richards v. De lta Air L ines, Inc. , 453 F.3d 525, 529 ( D.C. Cir. 2006). The four prer equisites to a class a ction lawsuit under Rule 23(a ) ar e: (1) the class is so numerous that joinder of a ll members is impractica ble; (2) ther e ar e questions of lawor fa ct common to the class; (3) the claims or def enses of the re prese ntative par

ties are ty pical of the claims and defe nses of the c lass; and (4) the repr esentative parties will fa irly and ade quately

protec t the interests of the c lass. See Fe d. R. Civ. P . 23(a) . These f our re quirements ar e re fer red to a s numerosity , commonality , ty picality , and ade quacy

of re prese ntation. In addition, Plainti ffs must demonstrate that the class is maintainable unde r Rule 23(b). I n the instant case , Plaintiffs seek

cer tification under Rule 23( b)(3) and, as suc h, must show that “questions of law or f act c ommon 14to class member s predominate ove r any questions only

aff ectingindividual members, and that a class ac tion is superior to other ava ilable methods for f airly and ef ficiently adjudicatingthe controve rsy .” F ed. R. Civ. P. 23(b)(3). The se re quirements ar e re fer red to a s predominanc e and superiority . Amongthe fa ctors that may be conside red a

re ( a) the class member s’ intere st in individually

controllingthe prosec ution of separ ate a ctions; (b) the e x tent and natur e of a ny litigation alre ady

begun by class member s; and (c) the desira bility or undesira

bility of

conce ntratingthe litigation of the claims in the particula r for um. Id. Approva l of a propose d class ac tion settlement lies within t he discre tion of the District Court. In re Vitamins Antitrust L itig. , 305 F. Supp. 2d 100, 103 (D.D .C. 2004) (“ Vitamins II ”). Pursuant to Fede ral Rule of Civil Procedure 23(e) , a cour t may approve a settlement that would bind class member s “only afte r a he aringand on findingthat it is fair, rea sonable, a nd adequate.” Fe d. R. Civ. P . 23(e) (2). “ In a propose d settlement under which class membe rs would be

awa rded c oupons, the court may approve the proposed se ttlement only afte r a he aringto deter mine whether , and makinga wr itten finding that, the settlement is fair, r easona ble, and adequate for c lass members.” 28 U.S.C. § 1712(e). In consideringwhether to approve a proposed c lass action settlement, the c ourt must strike a balanc e betwe en a r ubber stamp approva l and “the de tailed and thorough investigation that it would undertake if it wer e ac tually trying the case .” United States v. District of Columbia , 933 F. Supp. 42, 47 (D.D .C. 1996). Fur thermore , there is a long -standingjudicial attitude favor ing c lass action settlements, and the court’s “ discretion is constra ined by the ‘princ iple of pre fer ence ’ favoringand enc ourag ing settlement in appropr iate ca ses.” Vitamins II , 305 F. Supp. 2d at 103 (quoting Pigford v. Glickman , 185 F.R.D. 82, 103 (D .D.C. 1999).
15III. DISCUSS ION

The Court shall beg in its analy sis with the topic of class ce rtification, since the settlement class must comport with the re quirements of Rule 23. The Court shall then addre ss the

rea sonablene ss of the Settlement Ag ree ment, takinginto consideration the objec tions filed by the class member s, the opposition of the Attorney s Gene ral a s amici curiae , and the pa rties’ brie fs in support of final a

pproval. It is undisput ed that the Court has jurisdiction over this class action under the diversity

statute as ame nded by

CAFA. See 28 U.S.C. § 1332(d). A. Certification of

the Settleme nt Class This Court conditionally

cer tified the settlement cla ss in its preliminary approva l order. At the final a

pproval stag e, the Court now pr ovides a more detailed a naly sis of the Rule 23 require ments for c ertifica tion of a settlement cla ss. 1. Rule 23(a) Requirements

a. Numerosity

. Rule 23(a) (1) r equire s that the class be “so numerous that joinder of all member s is impractica

ble.” F ed. R. Civ. P. 23(a)(1). T he numer osity require ment “imposes no absolute limit ations,” but rathe r “r equire s examination of the specific f acts of e ach c ase.” Gen. Tele. Co. of the Nw., Inc. v. EEO C , 446 U.S. 318, 330 (1980). Courts in this Dist rict have g ener ally found that the numerosity

require ment is satisfied and that joinder is imprac ticable whe re a proposed class has at least forty

members. Bynum v . District of Columbia , 214 F.R.D. 27, 32 (D .D.C. 2003); Thomas v. Christopher , 169 F.R.D. 224, 237 (D .D.C. 1996), aff’d in part and rev’d in part , 139 F.3d 227 ( D.C. Cir. 1998). A plaintiff nee d not provide the e x act number of potential class member s to satisfy

the re quirement, so longas there is a rea sonable ba sis for the estimate

16provided. Bynum , 214 F.R.D. at 32-33; Pigford , 182 F.R.D. at 347. Here , the par ties ag ree that the number of

class member s is approxi mately 13,500. The Court there fore easily finds that joinder would be impra cticable and that the numer osity require ment of Rule 23(a )(1) is satisfied. b. Commonalit y Rule 23(a) (2) r equire s that there be questions of law or f act c ommon to the class. Fe d. R. Civ. P . 23(a) (2). “ The c ommonality test is met when there is at least one issue, the r esolution of which will aff

ect a ll or a sig nificant number of the putative c lass members.” In re Lorazepam & Clorazepate Antitrust

Liti g. , 202 F.R.D. 12, 26 (D .D.C. 2001) (“ Lorazepam I

”) ( quoting Lightbour n v. County of El Paso , 118 F.3d 421, 426 ( 5th Cir. 1997)); see also Garc ia v. Johanns , 444 F.3d 625, 631 ( D.C. Cir. 2006). Significa ntly , “fa ctual var iations amongthe class membe rs will not defeat the commonality require ment, so long a s a sing le aspe ct or fe ature of the c laim is common to all proposed cla ss members.” Bynum , 214 F.R.D. at 33. Here , there are many common fac tual and leg al issues amongthe class membe rs. For example, all members of the settlement class pa id tuiti on to attend the Confer ence s, and Envision made the same or substantially

simil ar r epre sentations to all class member s reg ardingthe servic es that would be provided at the Confere nces. Common leg al issues include whe ther Envision’s adve rtisements

or asse rtions were false a

nd misleadingand whe ther they wer e mater ial, as we ll as whether Envision breac hed its contrac ts with the class members by failingto provide the promised service s. The Court there fore conclude s that the commonality require ment of Rule 23(a )(2) is met.

c. Ty picality

. Rule 23(a) (3) r equire s a findingthat “the c laims or defe nses of the r epre sentative pa rties
17are ty

pical of the claims or def

enses of the class.” Fe d. R. Civ. P . 23(a) (3). The ty picality require ment is “intended to asse ss whether the ac tion can be e fficie ntly maintained as a

class and whether the named pla intiffs have inc entives that alig n with those of the abse nt class member s so as to assure that the abse ntees’ inter ests will be fairly repr esente d.” Lorazepam I , 202 F.R.D. at 27 (citations omitted). The f acts a nd claims of ea ch cla ss member do not have to be identical to support a findingof ty

picality ; rather , “[t] y

picality ref ers to the nature of the claims of the repr esentative, not the individual chara cter istics of the plaintiff,” In re Cardizem CD Antitrust Liti g. , 200 F.R.D. 297, 304 (E .D. Mich. 2001). The ty picality require ment is satisfied “if e ach class member ’s claim ar ises from the same cour se of e vents that led to the cla ims of the repr esentative parties a

nd eac h class member

makes similar leg al ar guments to prove the defe ndant’s liability .” Lorazepam I , 202 F.R.D. a

t 27 (quoting Pigford , 182 F.R.D. at 349). Her e, the c laims of the named pla intiffs and those of the absente e member s of the settlement class ar ise from the sa

me eve nts and involve the same le g al theory and ele ments of proof. Named pla intiffs and cla ss members ar e individuals who attende d the Confer ence s and who have not previously

settled their cla ims with Envis ion. There is at least one c lass repr esenta tive who attended e ach of

the three Confere nces, a

nd there fore the three student g roups (i.e., junior hig h, high sc hool, and colleg e) a re r epre sented. As their

claims ca n only be desc ribed a s ty

pical of the Settlement Class, the Court finds that the ty picality require ment is satisfied. d. Adequa cy

of re prese ntation. Rule 23(a) (4) r equire s a findingthat “the r epre sentative pa rties will fairly

and ade quately protec t the interests of the c lass.” F ed. R. Civ. P. 23(a)(4). “ Two cr iteria for deter mining the adequa cy of re prese ntation are g ener ally rec og nized: (1) the named r epre sentative must not have
18antag onistic or competinginterests with the unname d members of the class, a

nd (2) the repr esentative must appear able to vig orously

prosec ute the intere sts of the class through qualified c ounsel.” Twelve John D oes v. D istrict of Columbia , 117 F.3d 571, 575 ( D.C. Cir. 1997) (inter

nal quotation omitted). The only evidenc e the Court has be en pre sented with that sug g ests that the named pla intiffs’ intere sts are in a ny way antag onistic to those of absentee members of

the settlement cla ss is the fact that unde r the Settlement Agree ment, the par ties ag ree that the class r epre sentatives should rec eive c ash ince ntive awa rds in the amount of $2500 e ach. Howeve r, the Court notes that it is within t he Court’s discre tion to gra nt the incentive a

war ds, and the c lass repr esentatives had no assura nce of rec eivingsuch aw ards dur ing the pendenc y of this li tigation. Moreover , it appear s that throug hout this l itigation, the named plaintiffs and the absente e cla ss members shar ed the identica l objectives of e stablishing liability and obtaining damag es. The Court is satisfied that the na med plaintiffs’ c ounsel have adequa tely prosec uted the intere sts of the class. Plaintiffs’ attorney s have de monstrated experienc e handling class action lawsuits and have under taken a substantial investigation into t he mer its of claims that could be a sserted by

the class a

nd the financ ial condition of Envision to satisfy a judg ment. See generally J oint Mot. for Final Appr oval, Dec l. of J ames J. P izz irusso & D ecl. of Robert F. Coleman. Ther efor e, the Court finds that the a dequac y require ment is satisfied. 2. Rule 23(b) Require ments In order to cer tify the settlement cla ss pursuant to Rule 23(b)(3) , the Court must find that questions of law or f

act c ommon to class members pre dominate over questions affe ctingonly individual members and that a class ac tion is superior to other ava ilable methods for r esolving the controve rsy . 19a. Predominance

.

“The re is no def

initive test for deter

mining whe ther c ommon issues predominate, howeve r, in g ener al, pre dominance is met whe n there exis ts ge nera liz ed evide nce which prove s or disproves a

n element on a

simult aneous, c lass-wide ba sis, since such proof obviates the ne ed to examine each c lass member’ s individual posit ion.” Cohen v. W arner Chilcott Public Lt d. Co. , 522 F. Supp. 2d 105, 116 (D.D .C. 2007) (quotation marks a nd citations omitt ed). Common issues must predominate but nee d not be dispositive. Id. Her e, Plaintiffs alleg e that Envision made misleadingor neg lige nt misreprese ntations in their adver tising and pr omotional materials for the Confe renc es, which e very class member

rec eived a

nd relied on in de cidingto pay tuition and attend the Confere nces. Plaintiffs fur ther a lleg e that Envision brea ched its contra ct with Plaintiffs by

failingto deliver on spec ific promises about what would be provided a t the Confere nces. A ll of these issues involve sing le ac ts or omissions by Envision that pertain to ea ch member of

the class. Althoug h there may be some individualized questions relatingto damag es for the br eac h of contra ct claim, this does not defe at class c ertification under Rule 23(b)( 3). See Johnson v. D istrict of Columbia , 248 F.R.D. 46, 57 (D .D.C. 2008) (“ [T] he mer e existence of individual damag es issues in a Rule 23(b) (3) c lass does not ca use individual issues to predominate over c ommon issues on li ability or ca usation.”) B eca

use Plaintiffs’ cla ims pertain larg ely to actions taken by

Envision vis-a-vis the class, the Court f inds that the predominanc e require ment of Rule 23(b)( 3) is satisfied.

b. Superiority

. “The superiority

require ment ensure s that resolution by class ac tion will ‘achieve economies of

time, effor

t, and expense, and pr omote . . . uniformity of dec ision as to persons
20simil arly

situated, without sacrific ing pr ocedur al fa irness or br ingingabout other unde sirable conseque nces.” Cohen , 522 F. Supp. 2d at 117 (quoting Amche m , 521 U.S. at 615). The superiority

require ment is easily

met here . The number

of member s in the settlement class is approximately

13,500, and this class ac tion settlement would resolve the r emainingclaims of all of the Confe renc es attende es. B eca use the amount of damag es for eac h class member

is relatively small compare d to the cost of litigating a n individual claim, resolution by class ac tion provides a supe rior method of a djudication and ensur es that cla ss members will rec eive e qual treatment. Accor dingly , the Court finds that the superior ity require ment of Rule 23(b)( 3) is satisfied. Be cause the class is beingcer tified for pur

poses of settlement only , the Court need not consider whether

the ca se, if tried, w ould present intra ctable ma nag ement proble ms. Amche m , 521 U.S. at 620. Howeve r, the Court has c onsidered a ll of the other r eleva nt fac tors under Rule 23(a) and Rule 23(b) (3). The Court notes that since the se ttlement class was c onditionally

cer tified and the se ttlement was pre liminarily approve d, none of the objectors have argued that class ce rtification is improper. Acc ording ly , the Court is satisfied that the proposed se ttlement 1 5 class satisfied the require ments of Rule 23, and ther efor e the Court shall ce rtify the settlement class. 3. Class Counsel Pursuant to Rule 23(g ), the Court is require d to appoint class counse l to repre sent the settlement class. In doing so, the Court must consider the work c ounsel has done in identify ing

Although the Attorney s Gene ral a rgue that heightened sc rutiny should apply

to the 1 5 settlement, they

do not argue that ce rtification of the settlement class is improper. 21or investig atingpotential claims in the ac tion, counsel’s experienc e in handlingclass ac tions,

other c omplex litigation, and the ty pes of c laims asserted in this ac tion, counsel’s knowledg e of the applica

ble law, a nd the re source s that counsel will commit to represe nting the c lass. See Fe d. R. Civ. P . 23(g )(1) (A). T he Court finds that Messrs. Pizz irusso and Coleman have adequately repr esente d the intere sts of class member s and should be appointed c lass counsel. B. The Fairness, Adequac y, and Re asonableness of the Settleme nt Pursuant to Rule 23(e), the Court must determine whethe r the propose d settlement is “fa ir, ade quate a

nd rea sonable a

nd is not the product of c ollusion between the pa rties.” Thomas v. Albright , 139 F.3d 227, 231 ( D.C. Cir. 1998) (citation omitted). Ther e is no single test in this Circuit for dete rmining whether a propose d class ac tion settlement should be approve d under Rule 23(e)

. Meijer, I

nc. v. W arner Chilcott Holdings Co. III , Ltd. , 565 F. Supp. 2d 49, 55 (D.D.C. 2008); Pigford , 185 F.R.D. at 98. Howeve r, in makingsuch a de termination, courts in this Ci rcuit have considere d the followingfac tors, amongothers: (1) whether the settlement is the re sult of arm’s-le ng th neg otiations; (2) the terms of the se ttlement in relation to the streng th of plaintiffs’ c ase; (3) the status of the litigation at the time of the settlement; (4) the rea ction of the class; and ( 5) the opinion of experienc ed counse l. Vitamins II , 305 F. Supp. 2d at 104 (c iting

numerous ca ses); In re Baan Co. Sec s. Lit ig. , 284 F. Supp. 2d 62, 64-67 (D .D.C. 2003). In their brief amicus curiae , the Attorney s Gene ral c ontend that the Class Action F airne ss Act (“ CAFA” ) mandates heig htened sc rutiny of so-c alled “c oupon settlements.” CAFA 1 6 Although Congress did not define the term “ coupon” in the statute, courts have 1 6 g ener ally considere d a coupon se ttlement to be one that provide s benef its to class members in the form of a discount towards the f

uture purc hase of

a produc t or servic e off

ere d by the def endant. See, e .g. , Fleury v . Richem ont N. Am., Inc. , No. C-05-4525, 2008 WL3287154, at *2 (N.D . Cal. Aug . 6, 2008) (“ Whil e CAF A does not expressly define what a c oupon is, the leg islative history 22establishes the followingstandard f or judicial scr

utiny of coupon se ttlements: In a proposed settlement under which class members would be awa rded coupons, the court may approve the proposed settlement only afte r a hear ing to deter mine whether , and making a written finding that, the settlement is fair, rea sonable, and adequate for class members. The court, in i ts discretion, may also require that a proposed settlement ag ree ment provide for the dist ri b u t i o n of a portion of the value of unclaimed coupons to 1 or more char itable or g overnme ntal org anizations, as ag ree d t o b y the parties. The distribution and rede mption of any proce eds under th i s subsection shall not be used to ca lculate attorney s’ fe es under this section. 28 U.S.C. § 1712(e). The “fa ir, rea sonable, a nd adequate” standa

rd imposed by

CAFA is identical to the languag e in Rule 23(e) , and the only additional require ment expli cit in the statute is that the Court must hol d a hea ringand make a written finding that the settlement meets that standard. CAF A also plac es other r estrictions on coupon settlements, such a s requiringthat attorney s’ fe e aw ards a

ttributable to the value of coupons be ba sed on the va lue of the c oupons actua lly rede emed. See 28 U.S.C. § 1712(a). The Attorne y s Gene ral a

rgue that base d on the leg islative history of CAFA , which includes many

statements cr itical of coupon se ttlements, Congre ss intended § 1712(e ) to requir e heig htened sc rutiny

of propose d coupon settlements. In addition, the Attorney s Gene ral c ite three fede ral de cisions purportedly rec og nizi ngthis heighte ned scr utiny , rely

ing most hea

vily on Figueroa v. Sharpe r Image Corp. , 517 F. Supp. 2d 1292, 1321 (S.D. F la. 2007). In Figueroa , the court he ld that “bec ause the CAFA r equire ment in section 1712(e) applies only to coupon settlements, and bec ause it is codified to fur ther Cong ress’ obje ctives and c oncer ns reg arding

the fairne ss vel non of coupon se ttlements in particular, the [court] interpre ts the statutory direc tive

sug g ests that a coupon is a discount on another product or se rvice offe red by the def endant in the lawsuit.”) The parties do not dispute that the vouc hers f or future Envision prog rams qualify as coupons for

purposes of CAF A. 23to imply

the application of a g rea

ter leve l of scrutiny

to the exis ting c riteria tha n exis ted pre

CAFA.” The Figueroa court a lso noted that the CAFA sta ndard is identica l to that of Rule 23 and that coupon se ttlements have be en extensively criticized eve n befor e CAF A. Ther efor e, it is unclea r as to what deg ree of adde d scrutiny the Figueroa court “ implied” from CAF A. Def endants a lso cite Synfuel Technologies, I nc. v. D HL Express (

USA) , Inc. , 463 F.3d 646, 654 (7th Cir. 2006), a c ase that arose be fore CAFA in whic h the Seventh Circuit in dictum “note[d] that in [ CAFA] Congr ess re quired he ighte ned judicial scr utiny of coupon- based se ttlements”; and Kearns v. Ford Motor Co. , No. CV 05-5644, 2005 WL3967998, at *1 (N.D . Cal. Nov. 21, 2005), in which the c ourt said that CAFA“put sig nificant limits on so-called ‘c oupon settlements’ which pr oduce ha rdly any tang ible benef

its for the member s of the plaintiff c lass, but ge nerate hug e fe es for class attorne y s.” Ne ither of these case s provides any meaning ful discussion of what “he ighte ned scr utiny ” under

CAFA a ctually

means. This Court finds that the judicial scrutiny called f or by § 1712(e) is indist inct from the scrutiny require d by

Rule 23(e) , with the understandingthat coupon settlements pose a particula r risk of unfa irness and unr easona bleness bec ause of

the incre ased possibility

that the bene fits aff orded to c lass members will neve r be r ealized, since c lass members a re pr ovided with a future discount on a produc t or servic e with which they wer e pre viously

dissatisfied. See F

igueroa , 517 F. Supp. 2d at 1302 (“ [There a re] three major problems with coupon se ttlements: they often do not provide mea

ningf ul compensation to class membe rs; they often fa il to dis g org e ill-g otten g ains from the de fenda

nt; and they

often re quire c lass members to do future business with the defe ndant in order

to rec eive c ompensation.”) T his is consistent with t he findingof the c ourt in True v. Ame rican Honda Motor Co. , No. EDCV 07-287, 2010 WL707338, at *12 (C.D. Cal.

242010) (F eb. 26, 2010). In True , the cour t acknowle dg ed the wide rang e of judicia l and scholar ly criticism of coupon se ttlements and noted that the c ourt’s role in e valuatingcoupon settlements is to discern whe ther the va lue of a specific coupon settlement is re asonable in relation to the value of the claims surre ndere d. Wit h that standard in the mind, the Court shall re view the proposed se ttlement ag ree ment in light of the f actor s enumera

ted above and the objec tions that have be en re ceive d.

1. Arm’s-L eng th Neg otiation and the Opinion of Experience d Counsel “A pr esumption of fairne ss, adequa cy , and re asonable ness may attach to a

class settlement rea ched in a

rm’s-leng th neg otiations between e x perie nced, c apable counsel a fter meaning ful discover

y .” Vitamins II

, 305 F. Supp. 2d at 104. In this case, the pa rties re ache d a settlement only

afte r a le ng thy

mediation session that was pre sided over by an experienc ed mediator. Althoug h the mediation occ urre d befor e for mal fac t discovery

beg an in this action, Plaintiffs’ counsel ha d alre ady conducte d a substantial fa ctual investig ation into the experience of many class member s at the Confer ence s, conductinginterviews with dozens of cla ss members and collec ting va

rious newspa

per a rticles, interne t weblog s, and other r eports about the Confere nces. See Mem. in Supp. of J oint Mot. for Final Appr oval at 10. In addition, Envision provided Plaintiffs’ Counsel with signif icant informa l discovery

relating to its financia l condition, insurance cover ag e, and r esolution of previous complaints by attendee s at the Confere nces. The ref

ore, it appe ars that the pa rties wer e we ll-positioned to mediate their cla ims, and all the e vidence befor e the Court indicate s that this settl ement is the produc t of arm’ s-leng th neg otiation between e x perie nced c ounsel. The opinion of experienc ed counse l “should be af forde d substantial consideration by a 25court in eva luating the rea sonablene ss of a propose d settlement.” Cohen , 522 F. Supp. 2d at 121

(citation omitted). In this case, Class Counsel has substantial experienc e litigating c onsumer class ac tions and are of the opinion that the settlement is fair , rea sonable, a nd in the best interests of the settlement c lass. See J oint Mot. for Final Appr oval, Dec l. of Robert Coleman ¶ 17 & Dec l. of James Pi zz irusso ¶ 20. In addition, the mediator ha s opined that the settlement is fair and

rea sonable, ba sed on “the signific ant re cover y that the settlement af

fords the me mbers of the settlement class, Envision’s cur rent a nd fore seea

ble ec onomic condition, the difficulties inhere nt in prosecutingany

class ac tion of this si ze, Envision’s defense s to Pl aintiffs’ c laims, and the risks and expenses to Envision to defend Plaintiffs’ c laims.” See J oint Mot. for Final Appr oval, Dec l. of Hon. Da

niel Weinstein ¶ 9. The opinion of the mediator and experienc ed Class Counsel weig h in favor of

approvingthe settlement agree ment. 2. The Te rms of the Settlement in Relation to the Streng th of Plaintiffs’ Case The Settlement Ag ree ment provides a be nefit to class membe rs in the form of two $625 transfe rable voucher s for tuition at future Envision programs, and it re quires Envision to establish a schola

rship fund if less than $8 million worth of vouche rs ar e cla imed. I f eve ry class member c laims vouchers, Envision will pay out approxim ately

$17 milli on worth of vouc hers. Plaintiffs contend that this settlement repr esents a substantial r ecove ry in light of the r isks and costs of continuinglitigation.

a. The va lue of the se ttlement. The va lue of the se ttlement to each c lass member c an be qua ntified in terms of the va lues of the vouc hers, whic h is a total of $1250. These voucher s repr esent a n aver ag e saving s of about 18%-41% off tuition for future Envision prog rams and a 45%-54% ref

und of the tuition paid for
26the Confer ence s. Howeve r, a numbe r of c ourts have r ecognized that the actual va lue of a coupon to a class membe r may

be less than its fac e value

. See, e .g. , In re M exic o Money

Transfer L itig. , 267 F.3d 743, 748 ( 7th Cir. 2001) (“[C] ompensation in kind is worth less than cash of the same nominal value.”) Her e, the pa rties have structure d the settlement agree ment in a manner that seeks to maximi ze the value of the vouche rs to class member s. First, the vouc hers a re va lid for a period of se ven year s, duringwhich time Envision plans to offer approximately

2450 confe renc es attended by

approximately

340,000 students. See J oint Response to Br. Amicus Curiae at 6. Second, the vouc hers a

re f ully transfe rable to other qualify ing stude nts, as well as to family members of

the class membe r (whe ther or not they otherwise qua lify

for e nrollment at an Envision prog ram). T here fore , if a c lass member is unable to attend another prog ram, he or she may g ive it to a y oung er siblingor attempt to sell it to another student who qualifie s to attend an Envision confer ence . The Attorne y s Gene ral a nd some objectors a

rgue that the se condar

y marke t for these voucher s is not established and there fore class member s may have dif ficulty finding a buy er f or unused vouc hers. Plaintiffs ac knowledg ed at the F airne ss Hear ing that no seconda ry marke t y et exist s for these voucher s and that it is difficult to predict the e ase w ith which they may be re sold. Pl aintiffs ar gue, howe ver, that class member s should be able to utiliz e the internet to find intere sted buy ers, a nd Envision will m aintain a we bsite that expl ains that voucher s are transfe rable . The Court re cog nizes that class members see king to se ll their voucher s to unknown third parties may encounte r some diffic ulties, but the Court also notes that most class members a

re students who ha

ve a natural networ

k of cla ssmates to whom voucher s might be sold, a

nd the larg e number

of programs that ar e off

ere d duringthe seve n-y ear period makes it more likely

that buy ers c an be f

ound. The re latively

high va lue of the vouc hers a lso
27makes it more likely that class member s will be willing to bea r the c omparatively

minimal transac tion costs associated with sellingthem. The Attorne y s Gene ral a lso contend that the vouc hers do not provide meaning ful compensation to the class members in lig ht of the fa ct that a pa rty seekingto utili ze a vouche r by their ca lculation must also spend hundreds, if not thousands, of dollar s on tuiti on (which ty pically includes lodg ing a

nd meals) a

nd transportation to the location of the program. The y note that althoug h 28 U.S.C. § 1712(d) permits the Court to hear expert testimony

on the ac tual value of coupons aw arde d, no expert testimony has bee n proff

ere d by the par ties. Duringthe Fa irness He aring , class counse l indicated that they asked the ir administrative notice pr ovider to g ive an e stimate as to the re demption value of the voucher s but that the provider w as unable to g ive an e stimate due to the var iety of conf ere nces pr ovided by

Envision. I t is clear, how ever , that the vouche rs will provide mea ningf ul value to those cla ss members who do wish to attend f uture Envision prog rams. Envision has noted that a pproxi mately

95% of the a

ttendees at the Confere nces ha d attended a prior program, a

nd Envision’s counsel re prese nted at the F airne ss Hea ringthat about ten per cent of students attendingEnvision confer ence s eac h y ear are prog ram alumni. Envision also noted that 20% of the vouc hers issued to cla imants who settled prior to this lawsuit have alre ady

been r edee med, sug g estingthere is significa nt interest amongthe class in attendingfuture pr og rams. Indeed, two of the putative cla ss members sent a n email to Class Counsel expressing hope that their vouche rs would be available in time for use with an Envision prog ram they

would like to attend this summer. See J oint Response to Br. Amicus Curiae , Ex s. D-E. This sug g ests that the vouche rs do provide me aning ful value to the c lass members. The va lue of these voucher s also compar es favorably to other coupon se ttlements that
28have c ome bef ore the fede ral c ourts for a pproval. F or example, in In re W estern Union Mone

y Transfer L itigati on , No. CV-01-0335, 2004 WL3709932 (E.D.N.Y . Oct. 19, 2004), the court approve d a settlement that a war ded coupons pr oviding a 13%-40% discount on fee s for money transfe rs. The c oupons were fre ely transfe rable , could be use d at over 170,000 locations worldwide, r emained va lid for 35 months, and could be c ombined with any other discount. Id. at *12-13. He re, the voucher s repr esent a n 18%-45% discount off tuition costs for future prog rams,

are fre ely transfe rable , rema in valid for seve n y ear s, and ca n be used a

t thousands of future prog rams. I t is also significa

nt that under the te rms of the settlement, Envision will have to off er at least $8 million worth of discounts on future programs, re prese nting a substantial disgorg ement of prof its obtained from the Confe renc es. The pa rties agree d to the $8 milli on figure be cause this was the ne t profit that Envision realized from the Confe renc es, ac cordingto its financial statements. This completely addre sses the Figueroa court’s c oncer n that coupon settlements do not force defe ndants to “disg org e ill-g otten g ains.” 517 F . Supp. 2d at 1302. Thus, in addition to the per sonal bene fit rec eived by class member s throug h the vouche rs, they will rece ive the benef it of knowingthat Envision will nothave pr ofited fr om any wrong doing. The Attorne y s Gene ral note that if at least 6400 cla ss members cla im their voucher s, no cy pre s fund will be cr eate d, and it is theref ore possible that Envision will end up paying le ss than $8 million i f a substantial number of the vouc hers c laimed by those class membe rs ar e neve r rede emed. Althoug h there is no gua rante e, the Court thinks this is unlikely , for two r easons. First, cla ss members with no intere st in the vouchers a re unlikely

to claim them in the first place

. Second, the hig h fac e value of the vouc hers make s it li kely that class member s who do claim
29voucher s will either use them or be motivated enoug h to find a willing buyer who plans to attend

an Envision prog ram. The ref ore, the Court expects that most of the vouchers that are distributed will be rede emed within the seve n-y ear period. I n any event, the he art of the settlement is the value a ffor ded to the cla ss members, which c ould be as hig h as $17 million, rather than the $8 milli on “guara

nteed” pay

ment by Envision. 1 7 b. Streng th of Plaintiffs’ claims and likelihood of succ ess at trial. The va lue of the se ttlement must be balance d ag ainst the likelihood of obtaining a substantial rec overy

at trial. Plaintiffs have a sserted thre e cla ims in t his action: (1) violations of the D.C. Consumer Protection Proce dures Ac t (“CPPA”); (2) ne g lige nt misreprese ntation; and (3) br eac h of contra ct. The A ttorney s Gene ral c ontend that liability “appe ars likely

to be established” on Plaintiffs’ CPPA claims, and the CPPA allows private plaintiffs to re cover , inter alia , treble da

mag es or $1500 pe r violation, whicheve r is g reater, re asonable attorney s’ fe es, and punitive damag es. See Br

. Amicus Curiae at 14; D.C. Code § 28-3905(k) (1). Thus, the Attorney s Gene ral a

rgue that Plaintiffs are likely to obtain substantially

g reater re lief at trial than is provided by

the vouche rs. Howe ver, liability cannot be assumed whe n evaluating a proposed settlement, and Envision has def enses to this action that it would continue to asser t if the settlement is rejec ted. Even se tting aside the fa cts of the c ase, the re a re pr actica l and proc edura l obstacles that stand in the w ay of succ ess at trial. First, and pe rhaps most signif icantly , it is notclea

r that D.C. law would a

pply to

The Court also notes that it would not be pra ctical to re quire Envision to add the va lue 1 7 of unre deeme d voucher s to the CSS F since this value would not be known until the end of the seven- y ear

period, whic h is also when the CSSF must be depleted unde r the ter ms of the Settlement Ag ree ment. 30Plaintiffs’ claims. When exercisingits diversity jurisdiction, the Court applies the choice -of- law rules of the forum jurisdiction. Klaxon Co. v. Stentor Elec. M fg. Co. , 313 U.S. 487, 496 (1941). Under District of Columbia law, cour ts employ a “modifie d g overnme ntal interests ana ly sis which see ks to identify

the jurisdiction with the most si g nificant re lationship to t he dispute.” W ashkoviak v. Student Loan Marke ting Ass’n , 900 A.2d 168, 180 (D.C. 2006) ( quotation marks and citation omitted). Unde r this analy sis, the court eva luates the g overnme ntal policies underlying the applicable laws and de termines which jur isdiction’s policy would be most advanc ed by

the application of its law to the fac ts of the ca se, takinginto consideration (1) the place wher e the injury

occur red; (2) the place wher e the c onduct ca using the injury

occur red; (3) the domicile, re sidence , nationality , place of incorpor ation and plac e of business of the par ties; and (4) the place wher e the r elationship is center ed. Id. (quoting District of Columbia v. Coleman , 667 A.2d 811, 816 (D.C. 1995)) . These f actor s g ener ally

point to the application of either the law of V irg inia, wher e Envision is located a nd made the r epre sentations, or the lawof

eac h class member ’s home state, where he or she would have r ece ived the alleg ed misrepre sentations and paid f or the Confe renc es. See id. at 180-82; see also Shaw v. Marriott Int’l, Inc

. , 570 F. Supp. 2d 78, 86-88 (D .D.C. 2008) (discussingchoice of law a naly sis in misrepre sentation ca ses), aff’d in part, rev’d in part , ___ F.3d ___, 2010 WL2134277 (D.C. Cir. May 28, 2010). Although the choice -of- law ana ly sis for the bre ach of contra ct claims mig ht 1 8 favor application of D istrict of Columbia law beca use the plac e of pe rfor

mance was, in most instances, the D istrict of Columbia, see Ste phen A. Goldbe rg Co. v. Remse n Partners, Ltd. , 170

The pa rties have indicated that only 24 members of

the class a

re D istrict of Columbia 1 8 residents. 31F.3d 191, 198 ( D.C. Cir. 1999), that conclusion is not cer tain. In any

event, Plaintiffs’ br eac h of contra ct claims ar e more individualiz ed, since they are based not on the r epre sentations made to all class member s but the class member s’ individual experience s at the Confer ence s, which varie d. There fore , the bre ach of contra ct claims ar e less likely to lead to substantial class-w ide relief

. This uncer

tainty reg ardingthe choice -of- law ana ly sis significa ntly undermines the streng th of Plaintiffs’ claims ag ainst Envision and lowers the c hance of a substantial re cover y at trial. I f D.C. law c annot be unifor mly applied to the cla ss members’ c laims, then Plainti ffs will be unable to a larg e extent take adva ntag e of the CPP A’s fa

vorable provisions for consumer s, which include the possibili ty of treble and punitive damag es. Of e ven greater c oncer n is that signific ant choice -of- law proble ms make it less likely that a cla ss could be ce rtified for trial purposes. B efor e a g lobal settlement was r eac hed, the Bowman plaintiffs had filed a motion to

cer tify the class, a

nd Envision vigorously

opposed that motion, arguing that the requisite choic eof-law analy sis would require the court to apply the law of

fifty differ ent states to re solve the

case , makingclass ce rtification imprac ticable. See J oint Response to Br. Amicus Curiae , Ex . C (De fenda nts’ Opp’n to Mot. for Class Certification). Many courts have found that nationwide class ac tions raise sig nificant mana g eability problems when the law fr om multi ple states must be applied to deter

mine liability

. See, e .g. , In re Bridgestone /Firestone, Inc. , 288 F.3d 1012, 1018- 19 (7th Cir. 2002); W

alsh v. Ford Motor Co. , 807 F.2d 1000, 1012 ( D.C. Cir. 1986) (re manding class ce rtification question to district court to consider whether variations in st ate law

prohibit a findingof pre domination for common questions of law) . Although this Court nee d not consider the manag eability

of a c lass action whe n cer tifying a class for settlement purposes, the Court
32notes that choice -of- law questions may rende r the c lass action unmana g eable such that no cla sswide re cover

y would be possible without a settlement. This fac tor weighs in favor of approving the par ties’ agree ment. Another f actor to take into considera

tion is Envis ion’s ability

to pay a judg ment even if Plaintiffs successf

ully prosec uted their c laims at trial. The pa rties have indicated that, a fter Envision alrea dy

paid out approximately

$1 milli on to settle prior cla ims arising out of the Confere nces, Envision would fa ce se vere financ ial difficulties if for ced to pr ovide ca sh ref unds to all the class member s. Class counsel indicated at the Fa irness He aringthat, based on the financ ial discovery

provided be fore the mediation, Envision was in defa ult on its bank obligations when neg otiations beg an. Ac cordingto the mediator, Envision’s financ ial condition was “ at the for efr ont of the settlement discussions,” and E nvision’s Chief Financ ial Offic er w as prese nt at the mediation. SeeJ oint Response to Br. Amicus Curiae , Ex . H (Af f. of Hon. D aniel Weinstein) ¶ 12. Be cause Plaintiffs did not want to bankrupt the company throug h a lawsuit (depr iving themse lves and other s of the opportunity to partake in future e ducational pr og rams as well as potentially

beingunable to collec t any judgme nt), they

agree d to the voucher

pay ment sy stem ref

lected in the se ttlement ag ree ment, which allows Envision to pay over time. Plaintiffs’ desire to obtain immediate a nd cer tain relief weig hs in favor of

approvingthe settlement. 1 9

The Attorne y s Gene ral c ontend that “other fede ral c ourts have r ejec ted . . . ar guments 1 9 that the def

endant’ s purported pr eca

rious financ ial condition should just ify a coupon se ttlement,” citing Figueroa

. See Br

. Amicus Curiae at 15. Howe ver, the Figueroa court did not say that financ ial condition could not be consider ed as a fac tor in evaluating se ttlements, and many fede ral c ourts have e x plicitly considere d this. See, e .g. , In re W ireless Telephone Fe d. Cost Rec overy Fee s Lit ig. , 396 F.3d 922, 932- 33 (8th Cir. 2005) (re quiringdistrict courts to consider a defe ndant’s fina

ncial condition when e valuatingclass ac tion settlement agree ments). 333. Reac tion of the Class

There are fiftee n objectors to the Settlement Agree ment, repr esentingapproximatelyonetenth of one pe rce nt of the entire class. This re latively low rate of objec tion weig hs in favor of approva l of the settlement. See Thomas v . Albright , 139 F.3d at 232 (“[A] settl ement ca n be fa ir even though a sig nificant portion of the class and some of the named plaintiffs objec t to it.”) Many of the objec tors expressed conc ern that they could not or would not use the vouc hers to attend a f uture Envision prog ram. Howeve r, that conc ern is addr essed by the fa ct that the voucher s are transfe rable to family members or

to any other qua lifying stude nt and there fore have a nonneg ligible r esale value. Other obje ctors expressed c oncer n that the vouche rs cove red only partial tuition, and many

objectors g ener ally

expressed a pr efe renc e for cash. The most vocife rous objector s demande d that Envision provide a full re fund of the tuition paid for the Confere nces. The se objec tions essentially amount to a complaint that the settlement doe s not provide e noug h benef

its. However , “[t] he cour t should not reject a se ttlement merely beca use individual class members c omplain that they would have r ece ived more ha d they preva iled afte r a trial.” Thomas , 139 F.3d at 231. Severa l objectors complaine d that the Settlement Agree ment did not sufficiently

punish Envision for its mi sconduct a nd sug g ested that Envision be re quired to provide at least a pa

rtial ref und. As noted above , howeve r, a c ash settlement to all class members would not have been f easible in light of Envision’s financia l condition, and the scholarship fund pr ovision in t he Settlement Ag ree ment ensure s that Envision will disgor g e substantially

all of the prof

its that itear

ned fr om the Confere nces. One objec tor expressed conc ern that named cla ss repre sentatives and c lass counsel

rec eive c ash while c lass members only qualify for tuition voucher s. Howeve r, that conc ern is
34larg ely

addre ssed by

sever al fa cts about the ne g otiation of the settlement. Fir st, the attorney s’ fe e and cla ss repre sentative ince ntive awa rds wer e neg otiated sepa

rate ly by the par ties after a settlement was r eac hed, and the Settlement Ag ree ment expressly states that no portion of the settlement pay

ment shall be re duced to pa y attorney s’ fe es or ince ntive awa rds. Second, the actua l amounts awar ded will be dete rmined by the Court in ruling on the Plaintiffs’ Motion for Attorney s’ Fe es, Expenses, and Class Repre sentative Servic e Awa rds, not by

the par ties. Third, Envision’s insurers we re w illing to provide some c ompensation for c lass counsel’s f ees be cause they wer e alr eady

paying E nvision’s outside counsel to defe nd this case unde r a r eser vation of rig hts, and a settlement would a void additional defe nse costs. See J oint Response to Br. Amicus Curiae , Ex . H (Af

f. of Hon. D aniel Weinstein) ¶ 13. Envision’s counsel re prese nted at the Fa irness He aringthat its insurers would pay $935,000 for a

ttorney s’ fe es (r oughly

65% of the total), with Envision paying $535,000 ( roug hly 35%). Eve n if that $535,000 ca sh pay ment wer e to be re distributed to class members a s part of a cash se ttlement, eac h class member would

rec eive less than $40. It is doubtful that the class members would pr efe r such a small cash settlement to the $1250 in transfe rable voucher s they will rece ive under

the settlement ag ree ment. Whatever the marke t value of two $625 vouc hers may be, it is surely

g reater than $40. The Court also notes that none of the objec tors expressed a de sire to appe ar at the Fa irness He aring . The Attorne y s Gene ral, who did a ppear at the F airne ss Hear ing thr oug h a repr esentative, argue that their opposition to the Settlement Ag ree ment should counsel ag ainst approva l of the settlement. While the Court is not convinced that the Attorne y s Gene ral’s appea ranc e as amici curiaealone we ighs a g ainst approva l, the Court has substantively
35considere d the detailed opposition of the Attorne y s Gene ral in eva luating the fairne ss of the

settlement ag ree ment and does so f urther be low. 4. The Status of the L itigation at the T ime of Settlement “In deter mining whe ther a

proposed c lass action settlement is fa ir, ade quate, a nd

rea sonable, c ourts consider whether counsel ha d sufficie nt information, through adequate discovery , to rea sonably

assess the r isks of liti g ation vis-a-vis the pr obability of succ ess and rang e of r ecove ry .” Meijer , 565 F. Supp. 2d at 57 (quotation marks and citation omitted); see also Vitamins II

, 305 F. Supp. 2d at 105 (statingthat settlement agree ments should “not come too

ear ly to be suspicious nor too late to be a waste of resour ces” ). In this case, the pa rties re ache d a settlement ag ree ment befor e for mal discovery

beg an. Howe ver, a s noted above , Plaintiffs’ counsel c onducted sig nificant fa ctual investig ation into possibl e cla ss claims and the fina ncial situation of Envision prior to the mediation. In addition, the parties ha d fully briefe d Envision’s motion to di smiss i n the Bowman action, and E nvision had filed its brief in opposition to class

cer tification. The Attorne y s Gene ral a rgue that the f

act that se ttlement was re ache d prior to class

cer tification weighs ag ainst approva l of the Settlement Ag ree ment. Howeve r, in light of the obstacles that Plaintiffs fa ced in e stablishing cla ss cer tification and the infor

mation they

obtained about Envision’s financ ial condition, the timing of the se ttlement ag ree ment raises no c ause f or

conce rn. 5. Analy sis The discussion above shows that the par ties have r eac hed a se ttlement that: (1) provides class member s with an immediate bene fit that may be of substantial va lue (re prese nting a 45%- 54% re fund and a

discount of 18%-45% on future pr og rams); (2) disgorg es substantially all of
36the profits ea rned by Envision during the Confere nces; (3) avoids the costs of f uture litigation; (4) e liminates a substantial risk of no class- wide re cover y g iven choice -of- law proble ms and Envision’s financia l condition; (5) was re ache d duringan ar ms-leng th neg otiation by

wellinformed a

nd experience d counsel; (6) has the a pproval of e x perie nced c lass counsel a nd an experience d mediator; and ( 7) has the g ener al support of the se ttlement class, as de monstrated by the ver y small number of objec tors and the inter est amongclass member s to imm ediately rec eive their bene fits under the se ttlement. In the light of the above analy sis, the settlement ag ree ment appea rs to be a r easona

ble compromise of

Plaintiffs’ claims. In their brief amicus curiae , the Attorney s Gene ral a rgue that this voucher

settlement is compar able to the one that was disappr oved by the cour t in Figueroa v. Sharpe r Image Corporati on , 517 F. Supp. 2d 1292 (S.D. F la. 2007). In that case , the plaintiffs brought claims ag ainst Sharper

Imag e for

brea ch of c ontrac t, brea ch of w arr anty , unjust enrichment, and unf air business prac tices re lating to r epre sentations made r eg ardingthe company ’s I onic B ree ze air purifier s, for whic h plaintiffs had e ach pa id hundreds of dollar s. 517 F. Supp. 2d at 1300. The settlement ca lled for the pla intiffs to rece ive a $19 c oupon, valid for two year s, that could be used towards the pur chase of any product at a Sharpe r Imag e re tail store. Id. at 1303, 1305. On those terms alone, it is clea

r that the vouc hers of

fer ed by Envision provide substantially more va lue than the coupons at issue in Figueroa . In addition, the Figueroa court’s disappr oval of the settlement was ba sed primar ily on the fa ct that plaintiffs’ c ounsel had ne g otiated the settlement from an e x tremely

wea k position (on the eve of

a rulingthat would potentially stay the ca se) a

nd did so without conducting a rea sonable a ssessment of streng th and value of the plaintiffs’ c laims. Id. at 1321-23. The Figueroa court a lso found that the plaintiffs’ c laims were strongand that the
37plaintiffs could re asonably expect to rec over more than $19 per plaintiff at trial, making

the cost of proc eedingto trial worth the small risk of no re cover y . Id. at 1327. The pa

rties in Figueroa had also c onducted discove ry relating to jurisdiction and cla ss cer tification and re tained experts, minimi zing the adde d expense of proc eedingto trial. Id. at 1328. All of these f actor s distinguish Figueroa from this case , wher e the Plaintiffs compromised a n uncer tain case in exchang e for valuable c onsideration during an ar ms-leng th neg otiation. The pa rties’ settlement in this case is also disti nguishable fr om two other coupon settlement ca ses cited by

the Attorney s Gene ral, True v. Ame rican Honda Motor Co. , No. EDCV 07-287, 2010 WL707338, at *12 (C.D. Cal. 2010) ( Fe b. 26, 2010), and Clement v. Am erican Honda FinanceCorp. , 176 F.R.D. 15 (D . Conn. 1997). In True , the cour t disapproved a settlement that would have awa rded c lass members a

non-transf

era ble $500 or $1000 vouc her toward the purcha se of a

new Honda , findingthat it repre sented “ at best, a 6.5% discount off the purcha se of a

new c ar, r edee mable only within the nextnineteen months, just a fe w y ear s after they purcha sed or lea sed a ne w Honda.” 2010 WL707338 at *21. The True court a lso criticized the settlement for

offe ringcash pa

y ments to only

a ce rtain subclass of

plaintiffs whose pr ior complaints could be doc umented and note d that the settlement wa s worth substantially less than settlements obtained by

simil ar c laimants. See id. at *10, *14. Simil arly , in Clement , the cour t disapproved a

settlement that would have awa rded c oupons of $75 or $150 towa rd the fina

ncing of a ne w ca

r throug h Americ an Honda Financ e Corp. See 176 F.R.D. at 26-28. The c ourt found that the coupons we re “ essentially worthless” be cause they

expired in two or three y ear s, were not transfe rable to third parties, and w ere virtually worthless compa

red to the pur chase price of a

new c ar. Id. at 27. Her e, by contra st, the voucher s repr esent a substantial discount towards
38tuition at future prog rams and a re f ree ly transfe rable to other elig ible students. And althoug h Envision prog rams ar e re latively “bigticket” items for

consumers, the y

are not like car s and other dura

ble g oods that are ty

pically only purcha sed whe n a new

model is neede d to replac e an older one . Unlike a discount on a new c ar issued to a

person who just purc hased a new c ar, the voucher s in this s ettlement have immediate value. Ultimately , the re asonable ness of the se ttlement ag ree ment must be considere d in the context of this case, not in comparison to terms of othe r coupon se ttlements. Although a cash settlement would have been pr efe rable to voucher s, Envision is notprese ntly in a position to give cash to a ll class members, a nd their ability

to do so after

judgme nt is also doubtful. I t is true that Envision paid out nearly

$1 milli on to settle claims and complaints that it rec eived in the immediate af

termath of the Confere nces. H oweve r, once those funds we re e x hausted, the company ’s financ ial situation prevented it fr om continuing to make cash pa y ments. The fa ct that

ear ly claimants re ceive d cash doe s not make this settlement unfair. The rec ord sug g ests, and it is

rea sonable to assume, that the individuals who filed ear ly complaints and re ceive d ear ly settlements had strong er c laims overall than the me mbers of the settlement class (the vast majority of whom have never

formally complained to Envision about their e x perie nce at the Confere nces) . The avera g e settlement obtaine d by the ea rly claimants (r oug hly

$400 cash plus $750 in voucher s) is actua lly not far of f fr om the $1250 in voucher s that will be paid to members of the settlement c lass. And re lief is more wide ly available under the settlement agree ment: wher eas e arly

claimants had to indicate that they missed parts of the Confe renc es involuntarily in order to rec eive a

settlement, class membe rs nee d only verify that they wer e “unsatisfied” with their experienc es. It is also important to not e that none of the ea rly claims filed ag ainst Envision
39resulted in a judicia l determination as to liability , so there is no be nchmar k judgme nt ag ainst which to assess Plaintiff’s c laims. The pa rties cr afte d the settlement agree ment in a manner that would provide mea

ningf ul relief to the class member s while ensuringthat Envision could continue to operate while also disgor g ing the profits from the Confe renc es over time. Accor ding to the e x perie nced me diator, “the sig nificant va lue of the vouc hers, their full transfe rability , the longduration of the time in which they

may be re deeme d, and the sc holarship fund set this settlement apa rt from other coupon settlements.” Joint R esponse to B r. Amicus Curiae , Ex . H (Af f. of the H on. Daniel Weinstein) ¶ 15. Ba sed on the significant re cover y that the settlement af

fords the me mbers of the settlement class, the diff

iculties fac ed by

the Plaintiffs in lit iga

ting this class a ction, the inhere nt risks, costs, and time associated with continued litigation, and Envision’s financia l condition, the Court finds that the settlement is fair, r easona ble, and a dequate under Rule 23( e) a nd 28 U.S.C. § 1712(e) . There fore , the Court shall g rant the pa rties’ JointMotion for Fina l Approval, e x cept as to the potential cy pre

s fund. The Court is troubled by

the lack of

standards g overningthe distribution of the money from the Class Settlement Scholarship F und, the potential cy pre s fund. Althoug h the par

ties have a mended the se ttlement agree ment to provide that cla ss counsel shall re ceive semiannual repor ts on the administration of the CSS F, the f und is to be administered by Envision with nearly complete discr etion. I f the amount of money in the CSS F is substantial, there is a risk that Envision will us e the sc holarships as a pr omotional tool. At t he F airne ss Hear ing, c lass counsel ag ree d to the Court’s proposal that the Court would conditionally approve the CSS F pr ovisions of the settlement a g ree ment until class members filed the ir claims for vouc hers a nd the exact
40amount of the CSSF could be de termined, at which point the parties c ould submita plan of

distribution wit h more de tailed elig ibilit y criter ia. The Court shall follow that a pproac h and HOL D I N AB EYANCE fina l approva l as to the plan of distribution of funds in the CSSF until the amount of such f

unds are known. IV. CONCLUSION Havingconsidere d all of the a bove-listed fa ctors, the objec tions, the oppositi on of the Attorney s Gene ral, a

nd the re cord a s a whole, the Court finds that the terms of the se ttlement ag ree ment are fair, r easona ble, and a dequate and should be a pproved. The Court finds that it has jurisdiction over this action, and ther e is no dispute that class may be ce rtified for

settlement purposes. The Court finds that the settlement agree ment was ne g otiated at ar ms-leng th by experience d counsel with the a ssistance of a n experience d mediator a fter a n appropr iate amount of investig ation and informa l discovery , and it is the opinion of the experience d counsel a nd mediator that the se ttlement is fair, ade quate, a nd rea sonable. The Court finds that the voucher s to be awa rded unde r the settlement a g ree ment provide mea ningf ul value to class membe rs beca use of their

high f ace value ( $1250, repr esentinga 45%- 54% re fund and a n 18%-45% discount toward f

uture programs), the ir transfe rability , and their se ven-year duration. The Court also finds that choice -of- law issues and Envision’s fina ncial condition sig nificantly undermine Plaintiffs’ likeilhood of obtaining me aning ful class-w ide re lief at trial. The Court finds that the settlement is supported by the class, a s demonstrated by the low number of

objectors a

nd optouts. The Court also finds that the cy pre s fund, if prope rly

administered, will ensure that Envision substantially

disgorg es the prof

its from its allege d misconduct. There fore , the Court shall overr ule the objec tions to t he settlement a g ree ment and

41GRANT the pa rties’ [24] J oint Moti on for F inal Approva l of the Settlement Ag ree ment. Be cause the Court has conc erns a bout the distribution of procee ds from the propose d cy pre s fund, the Court shall HOL D I N AB EYANCE a

pproval of the Class Settl ement Scholar ship Fund and re visit t hat issue af

ter the c lass members have submitted their claims for voucher s and the amount of money

to be deposited into the CSSF is determined. The Court shall order the parties to file a JointStatus Report after the claims per iod has ende d and all cla ims have bee n rec eived so that the Court may

make a final rulingat that time. The Court shall also HOL D I N AB EYANCE Plaintiffs’ [25] Motion for Attorney s’ Fe es, Ex penses, a nd Class Representative Service Awar ds and addr ess those issues at a later date. An appr opriate O rder acc ompanies this Memorandum Opinion.

/s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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