|A. The Gobernación Claims Program in 2005 Provides a Useful Benchmark for Gauging the Number of Claims Filed During the Claims Period.
In appraising the volume of claims made in the United States during the claims period as a result of this Settlement, it is useful to compare the totals for claims received in Mexico during the 2005 Goberación Claim Program. That program ran exclusively in Mexico, from November 18, 2005 until March 10, 2006. As reported to us by defense counsel, the claim totals during that process were as follows:
Applications with Compliant Documentation
By comparison, claims filed in the U.S. during the claims period in this case, according to defense counsel, total as follows:
Applications with Compliant Documentation
The comparison between these sets of numbers is instructive in at least two regards. First, the numbers from the 2005 Gobernación Claim Program show 916 fully-documented claims from 1942-1946 era braceros. That information was provided to class counsel before any agreement was reached on settlement terms in this case and was material to the settlement of this case because it demonstrated that, notwithstanding extremely stringent documentation requirements, nearly 1,000 1942-1946 era braceros in Mexico had compiled all required documents to submit fully-documented claims. It could be done.
Next, the comparison between the numbers also shows that at the end of the 2005 Gobernación Claim Program, the ratio between fully-documented 1942-1946 era claims to fully-27 documented 1947-64 era claims was 45 to 1. The ratio of 1942-1946 era class member claims to 1947-1964 era claims submitted during the claims period in this case is more favorable: 35 to 1. In both cases, the volume of 1947-1964 era claims far outnumbers the volume of 1942-1946 era claims.[FN5] The higher volume of claims in Mexico is expected, since many more ex-braceros reside in Mexico than in the United States. The volume of 1942-1946 era claims in this case is in line with expectations in light of the results of the 2005 program in Mexico.
FN5. The far greater number of claims from the 1947-1964 era braceros is, of course, to be expected given (1) the much larger number of bracero workers who entered the United States during the later seventeen year period between 1947 and 1964, compared to the much shorter four-year period between 1942 and 1946, and (2) the greater effects of mortality and loss of documentation among 1942-1946 era braceros.
IV. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE, AND THE COURT THEREFORE SHOULD BOTH GRANT IT FINAL APPROVAL AND ENTER JUDGMENT IN ACCORDANCE WITH THE SETTLEMENT AGREEMENT.
A. Both the Settlement Terms and the Actual Notice of the Settlement Provided to the Class Satisfy All Relevant Legal Standards.
Before final approval, a class action settlement must be reviewed to assure its terms are “fair, reasonable and adequate.” Fed. R. Civ. Proc. 23(e)(2). See also Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980) (“The sole question before the district court in reviewing a settlement agreement is whether the agreement is fundamentally fair or just”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (“It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness.”).
To guide district courts in conducting this review, the Ninth Circuit has identified a non-exhaustive list of factors to balance, including: “the strength of 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 ... and the reaction of the class to the proposed settlement.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).[FN6]
FN6. The Ninth Circuit has also instructed that a “court's intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” Hanlon, 150 F.3d at 1027. This principle of limited intrusion is consistent with the overarching public policy that “voluntary conciliation and settlement are the preferred means of dispute resolution,” especially in complex class actions. Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982).
The Court must also review class notice, as provided, to assure its compliance with due process and Rule 23(e) (1) (“notice in a reasonable manner”).
Both the success of class notice and each of the settlement-review factors identified by the Ninth Circuit in Class Plaintiffs are discussed below. Both separately and together, the settlement review factors identified in Class Plaintiffs factors tilt heavily in favor of final approval of the settlement in this case. And notice to the class has been exemplary.
1. Notice To The Class Satisfied Due Process.
Rule 23 and the due process clause require that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”' In re Cement and Concrete Antitrust Litig., 817 F.2d 1433, 1440 (9th Cir. 1987) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). That standard has been more than satisfied here. Class counsel implemented a vast, multi-faceted notice campaign rivaled by very few other class notice efforts ever undertaken.
The class notice campaign began in June of 2008, even before preliminary approval. At that time, class counsel retained the services of Rail Ross Pineda. Mr. Ross was the most prominent advocate for Mexican “double nationality” and coordinator of the related successful effort by which Mexicans outside Mexico established and obtained the right both to vote and run for office in Mexican elections. From his work as an electoral reformer and long involvement in community-based organizing in Mexican communities in the United States, Mr. Ross has compiled a uniquely thorough database of more than 3,500 contacts, consisting of what is likely by far the best available list of contact information for community leaders and community-based organizations serving Mexicans across the United States. He deployed that list on behalf of the class to publicize the litigation and to prepare class members for potentially stringent claim documentation requirements. Ross Decl. ¶¶ 3-5. As a result of his years of advocacy for those communities and his successful campaign for dual nationality and electoral rights Mr. Ross is a very prominent and admired person in Mexican communities throughout the United States (and in Mexico as well). That the pre-settlement communications and follow-up provision of information came from such a trusted and recognized source was undoubtedly a great benefit.
A conventional notice campaign limited to direct mail, tombstone ads and a website would have been ineffectual in this case. Therefore, at the same time Class Counsel hired Mr. Ross, we also retained the services of Estrada Communications Group (“ECG”), one of the leading public relations firms specializing in the Hispanic market in the United States. We formulated, with the assistance of ECG, a mass-media campaign to reach class members much in the way a brand wanting to market itself would try to reach or enlarge its customer base through advertising. The result was a very sophisticated and large-scale campaign to publicize the fact and terms of the settlement and provide instructions for submitting claims for settlement payments.[FN7]
FN7. One data point used by public relations professionals to evaluate the effectiveness of a public relations campaign is the number of “media impressions” - a count of the number of times a media message may have been seen as a printed article, heard on the radio, viewed on television, or read on a web page or blog. This measure is usually calculated by using readership, listenership, viewership, circulation, or subscriber numbers provided by media outlets and/or media monitoring services. This is a more accurate measure than just counting “clips” or mentions because the calculations allow for giving more weight to articles or mentions in outlets with higher circulation numbers than those with smaller circulation numbers. A count of media impressions does not provide the number of unique persons who may have been reached by a media campaign, as some people may have been reached more than once and each time they were reached is counted as a separate impression. On the other hand, many of the media monitoring do not measure media in smaller markets, particularly Spanish-language outlets, so that media impressions are generally undercounted. ECG estimates that the media campaign in support of the bracero class action settlement resulted in at least 329,900,562 media impressions. Estrada Decl. ¶14.
a. The success of the toll-free braceros settlement hot line.
Throughout the class claims period, a team of three paralegals, fluent in Spanish and English, worked full time receiving and returning calls made by class members and others to the dedicated, toll-free braceros settlement hot line number, 1-877-436-9359. This team responded to more than 12,000 calls, providing information about the settlement and the claims process. Virtually all calls were returned within 24 hours and most sooner. Cristancho Decl. ¶¶ 4-5.
b. The success of internet notice.
During the claims period, the dedicated braceros settlement website, www. - casobracero.com was visited more than 21,000 times. More than 700 different newspaper, television and radio station websites carried news stories and information about the settlement. (Copies of these web postings are presented as Exhibit 4 to the Declaration of Jim Estrada). More than 700 separate websites posted links to www.casobracero.com. Cristancho Decl. ¶ 9.
c. The success of published notice.
Between October 14, 2008 and January 5, 2009, hundreds of news stories regarding the Settlement appeared in more than 222 separate issues of more than 137 different newspapers in at least 31 states -- Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, New Mexico, Nevada, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Wisconsin, and Washington -- and the District of Columbia. Estrada Declaration ¶¶ 8-9. Copies of many of these newspaper articles are attached as Exhibit 1 to Mr. Estrada's Declaration.
These stories appeared both in the Spanish-language press, including La Opinión, the largest Spanish daily newspaper in the U.S. (circulation 496,031); HOY-New York, the second largest U.S. Spanish-language daily (with a daily circulation of 94,000); and the ImpreMedia and National Association of Hispanic Publishers' networks of newspapers throughout the nation. They also appeared in English-language papers, both nationally and regionally, including USA Today, the New York Times and the Los Angeles Times. Estrada Decl. ¶ 9. News stories and paid advertising also appeared in five nationally distributed, monthly magazines, which were chosen for their popularity and coverage of key Latino markets, including VISTA (circulation of 947,265/readership of 2,791,000), Hispanic Magazine (circulation of 280,000/readership of 700,000), and Latino Future Magazine (circulation of 25,000/readership of 142,500). Estrada Decl. ¶ 10.
d. The success of televised notice.
TV newscasts in four states (Arizona, California, Florida and Texas) and the District of Columbia covered the Settlement on at least 37 different broadcasts, on 22 different stations in 11 separate markets. Additionally, class counsel and staff and class members or braceros appeared on televised national network public affairs and news magazine programs, including: Despierta America (Univisión), Adelante Hispanos (LATV) and Agenda Washington (Entravisión). Estrada Decl. ¶ 11.
e. The success of radio notice.
A national radio campaign was initiated October 17, 2008, with an Audio News Release (ANR) story in Spanish that was broadcast in 33 of the 50 states and Washington D.C., featuring class counsel Beatriz Sandoval. This ANR resulted in 290 separate airings on 234 different radio stations in 163 U.S. markets. Estrada Decl. ¶ 12.
f. The success of direct-mail notice.
Direct, first-class mail notice was sent by class counsel to 2,165 persons. Cristancho Decl. ¶ 10; Hutchinson Decl. ¶¶ 5, 10. In addition, notice was provided by class counsel by email to more than 2,200 leaders and organizations serving Mexican communities in the United States. Cristancho Decl. ¶ 10; Ross Decl. ¶ 5.
g. The success of grassroots community outreach.
Between June 20 and December 19, 2008, Mr. Ross met in person or held phone conferences with more than 250 Mexican leaders and organizations serving Mexicans throughout the United States. Ross Decl. ¶ 6.
In sum, exemplary notice was given.[FN8]
FN8. Exemplary notice was successfully provided notwithstanding the obstacles to effective notice interposed by the Mexican government, which posted both tardy and incorrect information on consular websites and failed to properly train consular officials who distressingly often provided class members with inaccurate or no information. Even as late as the end of the claim period, Mexican government officials were still calling the Class Toll Free Hotline for advice due to the inadequate training and information provided them by the Mexican Government which, whether by omission or commission, acted in ways that may have suppressed class member claims. Cristancho Decl. ¶¶ 6-8.
2. The Monumental Legal Risks Posed By This Case Support Final Approval of the Settlement Agreement.
Myriad substantive and procedural hurdles stood between plaintiffs and a judgment in their favor. The court has dismissed claims twice in this case. Proof, both testimonial and documentary, has been lost to history as the braceros have aged and their documentation has disappeared through the years, creating difficulties for compiling proof to the standards normally applicable in judicial proceedings. Legal obstacles, including defendants' defenses based on personal jurisdiction, subject matter jurisdiction, sovereign immunity, statute of limitations, international comity and the act-of-state doctrine, among others, were formidable. This litigation is almost eight years old and still mired in preliminary dispositive motion practice and an interlocutory appeal from rulings on those motions, while the population of still surviving 1942-1946 era braceros is declining. All of these factors favor granting final approval to the Settlement.
3. The Significant Monetary Relief Created by the Settlement Supports Final Approval of the Settlement Agreement.
Under the Settlement, eligible class members will receive payments of: (a) 38,000 Mexican pesos or (b) United States dollars in the greater of $3,455 or the then-current interbank exchange-rate equivalent of 38,000 pesos.[FN9]
FN9. If the award is made in Mexican pesos, the Mexican Defendants will assist Eligible Class Members in converting the award to United States dollars, if they wish to do so, in a cost effective manner. Agreement § 9.
This payment is identical to the amount made available during the 2005 Gobernación Claim Program. It is also the same amount paid both to 1942-1946 and 1947-1964 era braceros in the renewed Gobernación Claim Program right now under way in Mexico.
The settlement payments in this case compare favorably to the $3,000 payments to deported forced laborers under the Additional Labor Distribution Fund created as part of the Holocaust Claims Conference Program for Former Slave and Forced Laborers. See Conference on Jewish Material Claims Against Germany, Inc., Payments Under Additional Labor Distribution Fund, at http: // tinyurl.com/84e44e. They obviously also compare favorably to the failed restitution claims brought against a foreign sovereign by Korean “comfort women” in Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), and against foreign corporations by U.S. and Allied POWs in Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003).[FN10]
FN10. Interned Japanese Americans fared better through legislative rather than judicial resolution of their claims with passage of the 1988 Civil Liberties Act.
For many if not most class members, the settlement payments in this case do not reflect 100% recovery of all amounts lost.[FN11] Settlements almost never do. But both as an independent matter and as against the risk of a zero recovery if further litigation were pursued, the settlement amount of 38,000 Mexican pesos per eligible class member is prompt and certain rather than contingent, substantial rather than insignificant, and well within the range of reasonableness and adequacy.
FN11. Among the many insurmountable challenges in this case was the question of how to accurately estimate the actual losses suffered by each class member. Braceros worked for many different periods of time and at many different locations, and in spite of years of effort, class counsel were unable to locate any documentation allowing reliable individual, or even aggregate, calculations of lost wages.
4. The Factual and Legal Investigation Completed and the Stage of Proceedings At the Time of Settlement Likewise Support Final Approval.
Over the past nearly eight years, class counsel have undertaken extensive archival historical research, interviewed countless former braceros, and analyzed available causes of action and defenses under U.S. and Mexican law, with the assistance both of experts in Mexican law and experts in foreign sovereign immunity and choice of law. As a result, counsel are aware of the strengths and weaknesses of their claims and were therefore well prepared to reliably gauge the reasonableness of the Settlement. Baller Decl. ¶ 14; Piers Decl. ¶¶ 10-11.
5. The Experience and Views of Class Counsel Support Final Approval.
Class counsel are experienced, accomplished class action litigators. Baller Decl. ¶¶ 4-6; Piers Decl. ¶¶ 4-6. Lee Decl. ¶¶ 4-14; Dermody Decl. ¶¶ 4-30.[FN12] In their considered opinion, the Settlement achieves the best possible result for Class Members under the circumstances. Their recommendation, while not conclusive, “should be given a presumption of reasonableness,” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979), and is entitled to significant weight. Hanlon, 150 F.3d at 1026.
FN12. The Baller, Lee, and Dermody Declarations were submitted with and in support of Plaintiffs' Motion for Preliminary Approval of the Settlement. Doc. #252-3, -4 & -5. They are not re-submitted with the present Motion but are incorporated by reference.
6. That the Settlement is the Product of Extensive, Arms-Length Negotiations Should Be a Significant Factor Favoring Final Approval.
This settlement is the non-collusive result of protracted, contentious, arm's-length negotiations between experienced counsel that spanned almost three years, beginning in December 2005. Piers Suppl. Decl. ¶ 8.
7. The Objection Letters Sent to the Court Are Without Merit.
Sagas of the braceros have inspired protest songs and poems by Phil Ochs, http://tinyurl.com/7ylv9b, and Woodie Guthrie, http://tinyurl.com/8hb3qf. Braceros' oral histories have been recorded and archived. http:// braceroarchive.org/. Braceros protesters have been arrested in protests while demonstrating for the cause. See 8/18/05 Orlando Sentinel A9, 2005 WLNR 23693297. Given the position of this case at the confluence of charged political, historical and emotional debates that have raged for decades, the modest number of opt outs and objectors to this settlement cannot obscure the very substantial accomplishment that this settlement represents.[FN13] Forty-eight letters of objection have been received, forty-three of them identically worded form letters, apparently circulated under questionable circumstances. Doc. # 268-310; Ross. Decl. ¶¶ 11-13. All of the letters are conclusory. The vast majority provide no basis for concluding or inferring that the “signer” is in fact a member of the class. None of the letters of objection addresses the fundamental question of the strength of plaintiffs' case.
FN13. It is “extremely unusual” not to encounter objections or requests for exclusion to proposed class action settlements, In re Anthracite Coal Antitrust Litig., 79 F.R.D. 707, 712-13 (M.D. Pa. 1978), aff'd in part 612 F.2d 576 (3rd Cir. 1979), and even in a case with significant numbers of objections, it is the content not volume of the objections that matters. See County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1428, 1437 (E.D.N.Y, 1989), aff'd in part 907 F.2d 1295 (2d Cir. 1990) (“[O]pposition to a class settlement - even by a majority of the class - is not a bar to court approval if the settlement is fair”); TBK Partners, Ltd. v. Western Union Corp:, 675 F.2d 456, 462 (2d Cir. 1982) (same); Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) (approving settlement over objections of counsel purporting to represent almost 50 percent of the class); Reed v. General Motors Corp., 703 F.2d 170 (5th Cir. 1983) (affirming district court's approval of proposed class settlement despite objections by 23 of 27 named plaintiffs and nearly 40% of the class).
Only three Class members have requested exclusion from the class. Doc. # 311, 314 & 315.
Reading them generously, we construe every letter that has been filed with the court and/or received by class counsel and not requesting exclusion as stating an objection. We treat each letter of the letters of objection, in turn, below.
a. The 43 Identical Form Letter Objections.
Forty-three copies of an identical form-letter objection were filed with the Court as part of an organized campaign. Doc. #268-310.
As we read it, this form letter states dissatisfaction with a settlement achieved through judicial or legal process when in Mexico, by contrast, claims may be filed under the Gobernación Claims Program, as the letter states, “without having to deal with any legal opinion.” Doc. #268-310.
This objection appears to arise from a misunderstanding. Claims of 1942-1946 era braceros submitted in the United States do indeed fall under this Settlement, involving lawyers and judicial process. Claims, however, of 1947-1964 era braceros or their spouses or children submitted in the United States, though made possible only by this Settlement, are not governed by this Settlement and are not extinguished by the terms of the settlement upon final approval. In addition, the Settlement does not decrease the opportunities of any bracero claimant, class members or others, to avail themselves of the Gobernación Claims Program in Mexico. Any claimant from either era can travel to Mexico and file a claim there as part of the current Gobernación Claims Program rather than filing in the United States. If it is their preference, there is nothing in the Settlement that should deter these objectors from traveling to Mexico to submit claims without invoking any legal or judicial process.