NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN RUSSELL, individually and on 

behalf of all others similarly situated and 

DONNA CAFFEY, 

Plaintiffs-Appellees, 

ANNE CARD, 

Objector-Appellant, 

 v. 

KOHL’S DEPARTMENT STORES, INC., a 

Delaware Corporation and DOES, 1 through 

100, inclusive, 

Defendants-Appellees.

No. 16-56493 

D.C. No. 

5:15-cv-01143-RGK-SP 

MEMORANDUM*

SARAH MCDONALD, 

Objector-Appellant, 

BARBARA COCHRAN; et al., 

Objectors, 

No. 16-56650 

D.C. No. 

5:15-cv-01143-RGK-SP 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

NOV 5 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

 v. 

STEVEN RUSSELL, an individual; 

DONNA CAFFEY, 

Plaintiffs-Appellees, 

and 

KOHL’S DEPARTMENT STORES, INC., a 

Delaware Corporation, 

Defendant-Appellee, 

and 

DOES, 1-100, inclusive, 

Defendant.

STEVEN RUSSELL, individually and on 

behalf of all others similarly situated and 

DONNA CAFFEY, 

Plaintiffs-Appellees, 

BOBBI CECIO, 

Objector-Appellant, 

 v. 

KOHL’S DEPARTMENT STORES, INC., a 

Delaware Corporation and DOES, 1 through 

100, inclusive, 

No. 16-56696 

D.C. No. 

5:15-cv-01143-RGK-SP 
3 

Defendants-Appellees.

STEVEN RUSSELL, individually and on 

behalf of all others similarly situated and 

DONNA CAFFEY, 

Plaintiffs-Appellees, 

BARBARA S. COCHRAN, 

Objector-Appellant, 

 v. 

KOHL’S DEPARTMENT STORES, INC., a 

Delaware Corporation and DOES, 1 through 

100, inclusive, 

Defendants-Appellees.

No. 16-56764 

D.C. No. 

5:15-cv-01143-RGK-SP 

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 17, 2018

San Francisco, California

Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,** Chief 

District Judge.

When the parties settled this class action regarding alleged false advertising 

by Kohl’s Department Stores, several objectors raised concerns about the 

 

** The Honorable Barbara M. G. Lynn, Chief United States District Judge for 

the Northern District of Texas, sitting by designation.
4 

settlement—challenging Plaintiffs’ Article III standing, the notice to class 

members, the overall fairness of the settlement, and the award of attorney’s fees to 

class counsel. The district court overruled the objections and approved the 

settlement and attorney’s fees, and four objectors appealed. We conclude that

Plaintiffs had Article III standing and that the district court properly approved the 

class notice and settlement. But we vacate the award of attorney’s fees and remand

for the district court to consider objections to the fee award and provide a renewed 

opportunity for Objector Cecio to raise such objections.

As a threshold matter, Plaintiffs had Article III standing to bring and to settle 

their claims. Plaintiffs had standing to pursue restitution for misleading 

promotions. See Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011). And 

because they declared that they would purchase products from Kohl’s again if the 

store changed its pricing practices, Plaintiffs also had standing to seek injunctive 

relief. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969-70 (9th Cir.

2018).

The district court did not abuse its discretion in concluding that Plaintiffs 

were typical members of the settlement class they sought to certify under Federal 

Rule of Civil Procedure 23(b)(3). Only one named plaintiff must be a typical class 

member to satisfy the requirements for class certification. See Rodriguez v. W.

Publ’g Corp., 563 F.3d 948, 961 (9th Cir. 2009). In moving for class certification 
5 

for the purposes of settlement, Plaintiffs submitted evidence that Russell was a 

typical member of the class that would receive gift cards because he had made 

several purchases at Kohl’s that would place him in the class. And it appears that 

Caffey was probably a member of the class as well, even though she may have 

received refunds for some of her purchases.

Notice of the settlement to the settlement class was adequate even though it 

did not include an estimate of the amount that each claimant would receive and 

even though Objector Bobbi Cecio says she did not receive notice. We have 

explained that “the aggregate amount of the proposed settlement and the formula 

for computing recoveries [is] all that [is] required” to be included in the notice 

because class members’ potential recovery is “a matter of conjecture since it [is] 

unknown [when notice is distributed] how many class members w[ill] opt out or 

submit claims.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1374 (9th Cir.

1993) (quoting Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1177-78 (9th Cir.

1977)). The notice in this case included the required information. Although Cecio

asserts that she did not receive notice of the settlement and should have, she does 

not identify any deficiency in the plan for notice approved by the district court. 

Merely asserting a failure to receive notice is not sufficient to show that the notice 

plan was inadequate in this case because Federal Rule of Civil Procedure 23(c) 

requires the best notice practicable under the circumstances, not actual notice to 
6 

every class member.1 See Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994).

The district court did not err in holding that this was not a coupon 

settlement. Several Objectors asserted that the district court should have treated 

the settlement in this case as a “coupon settlement” under the Class Action 

Fairness Act (“CAFA”). But the gift cards in this settlement were similar to gift 

cards we held were not coupons under CAFA in In re Online DVD-Rental Antitrust 

Litigation, 779 F.3d 934 (9th Cir. 2015), whose factors we re-emphasized in 

Romero v. Provide Commerce, No. 16-56307. The gift cards in this case were 

transferrable, stackable, usable with other Kohl’s promotions, and large enough to 

allow class members to buy more than 1750 items from Kohl’s without spending 

their own money. All of these considerations weigh in favor of treating the gift 

cards as a non-coupon settlement in this case. See id. at 951-52.

And the district court did not abuse its discretion in deciding that the overall 

settlement was fair, reasonable, and adequate. See Fed R. Civ. P. 23(e). We have

explained that district courts deciding whether a settlement submitted for approval 

is fair, reasonable, and adequate should discuss their application of several factors: 

 

1

It is concerning that the briefs and record do not reflect any investigation 

by class counsel into why Cecio did not receive notice and whether her apparent 

lack of notice was indicative of a broader problem with notice in this case. But we 

do not see other indications that the distribution of notice was deficient. And the 

district court was in the best position in this case to consider whether Cecio’s 

objection that she did not receive notice was symptomatic of a larger problem.
7 

[T]he strength of the plaintiffs’ case; the risk, expense, complexity, and 

likely duration of further litigation; the risk of maintaining class action 

status throughout the trial; the amount offered in settlement; the extent 

of discovery completed and the stage of the proceedings; the experience 

and views of counsel; the presence of a governmental participant; and 

the reaction of the class members to the proposed settlement.

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The district court 

does not need to include a detailed analysis of the factors in the final judgment if it 

discusses them elsewhere in the record. See In re Online DVD, 779 F.3d at 948. 

In its preliminary approval order and at the hearing on final settlement approval, 

the district court properly considered the Hanlon factors in deciding that the 

settlement was fair, reasonable, and adequate.2

We have identified indicia of collusion among named plaintiffs, class 

counsel, and defendants that district courts should consider in assessing 

settlements. See In re Bluetooth Headset Prods. Liab. Litig. (In re Bluetooth), 654 

F.3d 935, 947 (9th Cir. 2011). Although the settlement here contained a “clear 

sailing” provision under which Kohl’s agreed not to challenge a request for 

attorney’s fees up to a certain amount, see id. at 940 n.6, the provision raises fewer 

 

2 Objector Cecio raises several specific concerns about the substance of the 

settlement, but none are sufficient to show that the district court abused its 

discretion. Although analysis of a settlement may involve consideration of similar 

settlements in other cases, the relative settlement distribution among class 

members, and the sufficiency of discovery conducted before settlement, these 

considerations do not compel a conclusion that the district court abused its 

discretion here.
8 

concerns about collusion than the one at issue in In re Bluetooth because class 

counsel’s fees here would come from a common fund. Compare id. at 947. And 

the remaining indicia of collusion that In re Bluetooth identified do not appear to 

be present in this case. Class counsel sought the benchmark percentage of the total

monetary recovery. And the fees not awarded to counsel in this case would not 

revert to Kohl’s.

Although notice of the settlement was sufficient and the district court did not 

abuse its discretion in concluding that the settlement was fair, reasonable, and 

adequate, the class received an insufficient opportunity to examine and oppose 

class counsel’s fee motion as required by Federal Rule of Civil Procedure 23(h).

Under In re Mercury Interactive Corporation Securities Litigation, 618 F.3d 988 

(9th Cir. 2010), class counsel needed to file the motion for attorney’s fees before 

the deadline for objections, to provide an opportunity for class members to object 

to the fee request. Id. at 993; see also Fed. R. Civ. P. 23(h)(2). Counsel did not do 

so in this case. The district court invited Objector Sarah McDonald and Plaintiffs 

to file supplemental briefs with respect to the reasonableness of the fees request. 

But this supplemental opportunity for an existing objector to file additional 

briefing did not bring the proceeding into compliance with In re Mercury. See 

Allen v. Bedolla, 787 F.3d 1218, 1226 (9th Cir. 2015) (“Upon remand, the district 

court must give the entire class—and not just the Objectors-Appellants here—the 
9 

opportunity to review class counsel’s completed fee motion and to submit 

objections if they so choose.”).

Under the circumstances of this case, however, and particularly given the 

comprehensive objections that Cecio filed in the briefing on appeal, the In re 

Mercury error is harmless so long as Cecio’s objections are addressed on remand. 

Cecio identified new, substantial objections to the fees request on appeal, several 

of which raise serious concerns about the fee awarded here. Plaintiffs did not 

respond to many of Cecio’s objections on appeal, and because McDonald’s 

objections in the district court did not encompass all of Cecio’s objections, the 

district court did not address them either. Because those objections are 

comprehensive enough that they seem to encompass any objection absent class 

members may have made if they had received the notice required by In re 

Mercury, we conclude that the In re Mercury error is harmless so long as the 

district court provides a renewed opportunity for Cecio to raise objections on 

remand. We therefore vacate the district court’s order awarding attorney’s fees

and remand for consideration of Cecio’s objections to the fee award.

The district court’s approval of the settlement can otherwise stand, however, 

because vacating the award of attorney’s fees will not render the overall settlement 

unfair, unreasonable, or inadequate. The settlement agreement in this case 

specifically separated the approval of fees from the rest of the settlement. And the 
10 

district court originally awarded the maximum available fees under the settlement 

agreement. Any fees not awarded to counsel on remand will go to the class, so the 

remand in this case can only benefit the class.3 See, e.g., In re Mercury, 618 F.3d 

at 995 (reversing approval of attorney’s fees award but otherwise affirming 

approval of a settlement where fees would come out of a common fund that also 

provided monetary relief to class members); Rodriguez, 563 F.3d at 968-69 (same). 

We therefore affirm the district court’s approval of the settlement while remanding

for further proceedings on attorney’s fees.

AFFIRMED in part, VACATED in part, and REMANDED. The parties 

shall bear their own costs on appeal.

 

3

If the district court enters a smaller fee award on remand, it is possible that 

class members may receive gift cards worth more than $10, which will then not be 

exchangeable for cash under California Civil Code § 1749.5(b)(2). But given how 

flexible these gift cards are and given that Kohl’s sells a very large number of 

items for less than the value of the approximately $10 gift card, our determination 

that this was not a coupon settlement under CAFA does not depend on the 

availability of a cash alternative. And class members could not have relied on the 

availability of an opportunity to exchange the gift cards for cash when deciding 

whether to opt out or object, because it was not known at the time those decisions 

were made how many class members would submit claims, and thus it was not 

known whether the value of the gift cards awarded would be more or less than $10.