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Sinanyan v. Luxury Suites International, LLC

United States District Court, D. Nevada

February 8, 2018

ALICE SINANYAN, an individual; JAMES KOURY, an individual and trustee of the Koury Family Trust; and SEHAK TUNA, an individual, on behalf of themselves and others similarly situated, Plaintiffs,
v.
LUXURY SUITES INTERNATIONAL, LLC, a Nevada limited liability company; RE/MAX PROPERTIES, LLC, a Nevada limited liability company; JETLIVING HOTELS, LLC, a Nevada limited liability company; and DOES 1 through 100, inclusive, Defendants.

          WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Royi Moas, Esq., DON SPRINGMEYER, ESQ. JORDAN BUTLER, ESQ Attorneys for Plaintiffs and the Class

          Cam Ferenbach, Magistrate Judge.

          [PROPOSED] ORDER GRANTING (1) PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS, AND INCENTIVE AWARD TO CLASS REPRESENTATIVE SINANYAN; AND (2) PARTIES' JOINT UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

          Honorable Gloria M. Navarro, Chief Judge United-States District Judge.

         ORDER

         This action involves claims brought by Plaintiff/Class Representative Alice Sinanyan (“Sinayan” or “Plaintiff”), individually and on behalf of a putative class of 123 condominium owners, against property rental manager JetLiving Hotels, LLC (“JetLiving” or “Defendant”). Plaintiff's Complaint (ECF No. 1-1) alleged that JetLiving violated its contractual, statutory, and common law duties by failing to disclose its collection of a “resort fee” from rental guests-all of which JetLiving disputed and denied. On January 12, 2018, this Court held a Final Fairness Hearing regarding the parties' Joint Unopposed Motion for Final Approval of Class Action Settlement (ECF No. 125), and Plaintiff's Motion for Attorney's Fees and Costs and Incentive Award to Class Representative Alice Sinanyan (ECF No. 122).

         For the reasons stated herein, both Motions are GRANTED.

         I. BACKGROUND

         On February 9, 2015, Plaintiff filed the instant action alleging various state law violations on behalf of a putative class comprising of all condominium owners at the Signature at MGM Grand (“The Signature”) who contracted with JetLiving to manage the rental of their condominium units after January 5, 2009 (the “Class.”) Specifically, the Complaint alleged that, pursuant to the JetLiving Rental Agreement, members of the Class were entitled to 65% of a “resort fee” collected by JetLiving from rental guests. According to Plaintiff, not only did JetLiving retain all resort fees, it further failed to disclose that it was collecting the resort fees. Based on these allegations, the Complaint alleged causes of action for (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation; (4) fraudulent concealment; (5) negligent misrepresentation; (6) violation of Nevada Revised Statutes § 41.600; (7) breach of fiduciary duty; and (8) unjust enrichment.

         As a result of successful mediation with Hon. Philip M. Pro (Ret.) on January 14, 2016, the parties reached a class-wide settlement (the “JetLiving Settlement") based on a total settlement amount and/or common fund sum of $250, 000, allocated as follows: (1) attorney's fees not to exceed $100, 000; (2) costs not to exceed $10, 000; (3) Class Representative Incentive Award not to exceed $10, 000; (4) Administrative expenses not to exceed $9, 000; and (5) remaining to the Class on a pro rata basis based on the total resort fees collected by JetLiving from the rental of the individual Class member's unit(s) divided by the total resort fees collected by JetLiving from the rental of all non-opt out Class member's units. (See Order, ECF No. 120 at p. 2:15-25). On July 20, 2017, pursuant to the Parties' Second Renewed Motion for an Order (ECF No. 111), this Court by Order dated July 20, 2017 (the “Preliminary Approval Order”), (a) conditionally certified the Action to proceed as a class action on behalf of a class of individuals consisting of any and all individuals who own or owned a condominium at The Signature at MGM Grand and contracted with JetLiving to manage the rental of their condominium from January 5, 2009 to and including the date of preliminary approval of this class action settlement; (b) preliminarily approved the Settlement; (c) appointed Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP as Class Counsel; (d) ordered that Notice of the proposed Settlement be provided to potential Class Members; (e) provided Class Members with the opportunity to: (i) opt in to or out of the Class or (ii) object to the proposed Settlement; and (f) scheduled a hearing regarding final approval of the Settlement. (ECF No. 120). The Court also granted preliminary approval of Plaintiff's attorneys' fee request, finding that the renewed and lowered proposed award of 25% of the common fund aligned with Ninth Circuit benchmarks. Id. at p. 5. Therein, Court further ordered separate, bifurcated briefing regarding (1) Class Counsel's attorneys' fees and costs, and incentive award to the Class Representative; and (2) Final Approval of Class Action Settlement. Pursuant to that Order, the Final Fairness Hearing was held on January 12, 2018. Pursuant to this Court's Order dated July 20, 2017, the Notice of Proposed Class Action Settlement (the “Class Notice”) was mailed to potential members of the Class to notify them of, among other things: (i) the Action pending against JetLiving; (ii) the certification of the Action by the Court to proceed as a class action on behalf of the Court-certified Class; and (iii) their right to opt in to the Settlement, their right to request to be excluded from the Class, the effect of remaining in the Class or requesting exclusion, and the requirements for requesting exclusion.

         On November 13, 2017, Class Counsel filed a Motion for Attorneys' Fees and Costs, and Incentive Award to Class Representative Sinanyan relating to Settlement with Defendant JetLiving, (ECF No. 122). Thereafter, on December 11, 2017, the Parties filed a Joint Motion for Final Approval of Class Action Settlement;

         The Court conducted a hearing on January 12, 2018 (the “Fairness Hearing”) to consider, among other things: (i) whether the terms and conditions of the Settlement are fair, reasonable and adequate, and in the best interests of the Settlement Class Representative and the other Class Members, and should therefore be approved; and (ii) whether a judgment should be entered dismissing the Action with prejudice against JetLiving. In addition, the Court heard Class Counsel's Motion for Attorneys' Fees and Costs, and Incentive Award to Class Representative Sinanyan relating to Settlement with Defendant JetLiving.

         II. LEGAL STANDARD

         The Ninth Circuit has declared that a strong judicial policy favors settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). However, a class action may not be settled without court approval. Fed.R.Civ.P. 23(e). When the parties to a putative class action reach a settlement agreement prior to class certification, “courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). At the preliminary stage, the court must first assess whether a class exists. Id. (citing Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997)).

         Second, the court must determine whether the proposed settlement "is fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Pre-class certification settlements “must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011). This heightened scrutiny “ensure[s] that class representatives and their counsel do not secure a disproportionate benefit ‘at the expense of the unnamed plaintiffs who class counsel had a duty to represent.'” Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (quoting Hanlon, 150 F.3d at 1027). As such, courts must evaluate the settlement for evidence of collusion. Id.

         If the court preliminarily certifies the class and finds the proposed settlement fair to its members, the court schedules a fairness hearing when it makes a final determination as to the fairness of the class settlement. Finally, the court must “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed.R.Civ.P. 23(e)(1).

         III. ...


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