Campbell v. AirTouch Cellular

Filed 3/24/06 Campbell v. AirTouch Cellular CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William C. Pate, Judge. Affirmed.

This appeal arises out of a nationwide class action settlement that resolved customers' claims against defendants AirTouch Cellular and Cellco Partnership, dba (doing business as) Verizon Wireless (collectively referred to as Verizon) for alleged improper and inadequately disclosed billing, sales, and marketing practices. The settlement was the product of a mediation before a retired federal judge, the Honorable J. Lawrence Irving, and was approved by a superior court judge, the Honorable William C. Pate.

Appellants Gifts N Books.com (GNB), Christina Nguyen (Nguyen), Michael Rinis, Babette Rinis, Paul Redd, John Davisson, Robert Falkner and James G. Henderson (collectively Rinis) objected to approval of the settlement.^[1] On appeal they assert that the court abused its discretion in approving the settlement because (1) the settlement was not fair, adequate and reasonable for the class members; (2) the release was too broad; (3) the court should have allowed more discovery before approving the settlement; (4) the court should have carved out of the settlement the claims of Nguyen and GNB; (5) and the class representatives were not adequate. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaints Filed Against Verizon

In July 2001 Marcy Campbell, individually and as a class representative (collectively, Campbell), filed this action in the San Diego County Superior Court. Verizon responded by filing a demurrer and motion to strike the monetary relief requested.

At that time Campbell and Verizon commenced mediation before Judge Irving. Campbell also commenced discovery of Verizon's contracts, sales, and marketing materials, as well as complaints and discovery materials from other lawsuits brought against Verizon that related to its billing, sales or marketing practices.

In November 2001 Campbell filed a first amended complaint (amended complaint). The complaint asserted six class action and private attorney general claims, asserting causes of action under Business and Professions Code sections 17200 and 17500, and for breach of contract and fraud. The complaint alleges that Verizon utilized a variety of deceptive and misleading marketing, advertising and billing practices in their cellular telephone service. The complaint identified 31 specific fact patterns under which Verizon was liable. The complaint claimed that Verizon failed "to adequately disclose and clearly explain the applicable fees and charges, billing and sales practices, communications security and service limitations, and other shortcomings of defendants' wireless phone network . . . ." Among other things, Campbell alleged that Verizon miscalculated airtime usage, made unauthorized changes in the terms of its customers' contracts, and assessed hidden fees on its customers' accounts.

B. The First Proposed Settlement

In April 2002, pursuant to the parties' mediation before Judge Irving, Campbell and Verizon entered into a class action settlement agreement. Pursuant to the settlement, Verizon agreed to provide a revised customer service agreement and user guide to all current customers. Verizon also agreed to provide a coupon to class members. The coupon could be used for (1) $15.00 off a one-year contract for wireless service with Verizon; (2) $30.00 off a two-year contract for wireless service with Verizon; (3) a 25 percent discount on Verizon merchandise, up to $15.00; or (4) a free "hands free earbud."

In exchange, Campbell agreed to a release that extinguished all claims against Verizon "that have been, could have been, may be, or could be alleged or asserted by any Class member . . . relating to, on the basis of, in connection with, or arising out of, in whole or in part, the subject matter of any of the claims alleged in the [First] Amended Complaint." (Italics added.)

In May 2002 Judge Pate preliminarily approved the proposed settlement, as amended in response to the intervention of class members that had been litigating similar claims in New Jersey, and certified a settlement class. Verizon then mailed over 23 million notices of the proposed settlement to potential class members.

During this time discovery continued, and by September 2002 Campbell had taken depositions of senior Verizon executives, had received over 60,000 pages of documents, and had obtained access to 20,000 more documents. In response to the notices mailed out concerning the proposed settlement, Verizon received 62 objections and approximately 4,300 requests to opt out. The objectors included three prominent consumer advocacy groups: Consumers Union of the United States, Inc. (Consumers Union), Utility Consumer Action Network (UCAN), and the Wireless Consumers Alliance (WCA).

On September 25, 2002, Judge Pate held a hearing to consider final approval of the settlement and the objections submitted. The objectors raised numerous concerns about the proposed settlement, the class notice and the breadth of the release. At the conclusion of the hearing, Judge Pate rejected the settlement primarily because it did not provide sufficient benefits to members of the proposed class and because of deficiencies in the class notice. The court also expressed concern about the inclusion of an entire customer agreement in the body of the settlement agreement, and the lack of an adequate valuation of the claims asserted by Campbell.

C. The Revised Settlement

Following the rejection of the first proposed settlement, Campbell and Verizon resumed negotiations before Judge Irving and attempted to revise the settlement agreement. Campbell also pursued further discovery and Verizon produced an additional 27,000 documents. Campbell's experts received further informal discovery, including interviews with additional senior executives, and a random sampling of customer bills to support their statistical valuation of the class members' claims.

In October 2003 Campbell, Verizon, and 26 new intervenors, including UCAN, and WCA, entered into a revised class action settlement agreement (the revised settlement), which was filed with the court. As with the prior settlement agreement, the release extinguished any claims "that have been, could have been, may be, or could be alleged or asserted by any Class member . . . relating to, on the basis of, in connection with, or arising out of, in whole or in part, the subject matter of any of the claims alleged in the [First] Amended Complaint." (Italics added.)

In exchange, Verizon agreed to injunctive relief, requiring it to change its disclosures and business practices. Specifically, Verizon was required to revise its customer service agreement and user guide for all current customers, including making specific disclosures. The revised settlement also required Verizon to make a customer agreement available in Spanish. As an example of the changes in business practices incorporated into its customer agreements, Verizon was required to double the time period within which customers could dispute their bills.

Verizon also agreed to provide two separate vouchers to class members. They were to be mailed to all class members who were Verizon customers as of November 2003 and to all other class members who requested them. According to the evidence presented at the final approval hearing, the vouchers' potential value ranged from $30 to more than $150.

The first voucher allowed class members to choose one of the following: (1) $15.00 off a one-year contract for wireless service with Verizon; (2) $30.00 off a two-year contract for wireless service with Verizon; (3) six months of limited free text messaging; (4) a 25 percent discount on wireless telephone accessories up to a maximum discount of $15.00; (5) 120 minutes of long distance via a third-party calling card; or (6) a $3 per bill credit for up to eight months over a two-year contract. The revised agreement also provided that obtaining these benefits "shall not require the user to enter into or renew" any contract with Verizon.

The second coupon could be used for either a "hands free earbud" or a $15.00 credit toward a different hands-free device. The hands-free devices were compatible with handsets sold by companies other than Verizon.

The revised settlement also provided for a 25 percent refund of early termination fees paid by class members whose service was (1) terminated by Verizon (or one of its predecessors) and (2) whose contract did not specifically permit Verizon (or one of its predecessors) to charge an early termination fee if it terminated the customer's service. Verizon agreed to provide either reprogramming of a wireless handset or a long distance calling card for 30 minutes of service to class members who had purchased a locked handset from a predecessor company called PrimeCo. Class members could also claim a partial refund if the class member's wireless service had properly terminated in the middle of a billing cycle and the class member did not receive a pro rata return of the last month's access fee. Finally, a class member could claim up to 600 minutes of additional wireless airtime or 300 minutes on a third-party long distance calling card if the class member paid more than a minimum amount in additional charges because of delayed billing of roaming charges on calling plans that did not disclose that issue.

D. Preliminary Approval/Notice and Opt-Out Period

Prior to the hearing to approve the revised settlement, Consumers Union joined in support of the revised settlement.

On December 1, 2003, the court entered an order certifying a new settlement class and preliminarily approving the revised settlement. As part of that order, the court enjoined any class members from "bringing any action or asserting any claim that . . . is or could have been asserted in this [a]ction" until "determination of final approval of settlement . . . ."

Verizon mailed or e-mailed over 27 million settlement notices to present and former customers in the class. It published settlement notices 11 separate times in USA Today, The Wall Street Journal, Parade magazine, and the Spanish language newspaper supplement Vista, which have a collective circulation of over 39 million. They also published the settlement notice on a website that included a toll-free number providing further information on the revised settlement.

In response to the notice, Verizon received 51 timely objections to the revised settlement. No consumer advocacy group or government agency objected to the revised settlement. Only 4,255 class members opted out, representing less than 0.016 percent of the notices sent.

Despite the court's prohibition on new lawsuits, two appellants, Nguyen and GNB filed lawsuits during the notice and opt-out period. In January 2004 Nguyen filed a a class action against Verizon in Alameda County, alleging claims of improper billing of early termination fees, and inadequate disclosure of "handset locking." In March 2004 GNB filed a class action lawsuit against Verizon in Los Angeles County, alleging claims of inadequate disclosure and improper billing of airtime.

E. Final Approval of Revised Settlement

Appellants Nguyen, GNB and Rinis opposed final approval of the revised settlement and extensively briefed their opposition to it. Nguyen objected that the revised settlement (1) sought to encompass the early termination fee and handset locking claims she asserted in her action although those claims were not asserted in Campbell's action; and (2) did not provide relief for class members on those claims. GNB objected on the basis that the revised settlement extinguished valuable claims without adequate representation, without the opportunity for discovery, without a fair assessment of the claims' value and without consideration. Rinis objected that (1) the court did not have sufficient evidence before it to value the class claims; and (2) the settlement's release was overbroad, unfair and unreasonable to the class.

In support of the revised settlement Campbell and Verizon submitted evidence and argument concerning the revised settlement's economic value, the broad remedial effect of its injunctive relief provisions, and the arm's-length procedure that had produced the agreement.

In April 2004 the court held a hearing to consider final approval of the revised settlement. After hearing arguments of counsel and taking the matter under submission, the court granted final approval of the revised settlement. In doing so, the court found that the certified settlement class was representative of the interests of all class members. The court further found that "[t]he settlement as taken as a whole is fair, adequate, and reasonable. It was a matter strongly contested by capable counsel on all sides. The settlement as now approved was reached as a result of arm's length negotiations assisted by mediation and was clearly not the product of collusion or any other improper purpose. The number of opt outs and the number of objections to the settlement were very small and the substance of the settlement is appropriate in light of the allegations and risks attendant to any litigation of this magnitude."

DISCUSSION

I

STANDARD OF REVIEW

In 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145-1146 (7-Eleven), the Court of Appeal set forth the standards for reviewing a trial court's settlement of a class action: "'Due regard' . . . 'should be given to what is otherwise a private consensual agreement between the parties. The inquiry "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." [Citation.] "Ultimately, the [trial] court's determination is nothing more than 'an amalgam of delicate balancing, gross approximations and rough justice.' [Citation.]"' [Citation.] [¶] A Ninth Circuit Court of Appeals panel has used even stronger language. 'Our task on appeal is a very limited one,' it wrote. '"The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge." [Citation.] We are not permitted to "substitute our notions of fairness for those of the district judge and the parties to the agreement."' [Citation.] 'Neither the trial court nor this court is to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements.' [Citation.] In other words, 'the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits.' [Citation.] [¶] Great weight is accorded the trial judge's views. The trial judge '"is exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly."' [Citation.] To merit reversal, both an abuse of discretion by the trial court must be 'clear' and the demonstration of it on appeal 'strong.' [Citations.]"

II

ANALYSIS

A. Court's Finding Settlement Was Fair, Adequate and Reasonable to Class

Appellants all assert that the revised settlement was not "fair, adequate, and reasonable" because it does not provide enough economic value compared to the claims asserted by the class. This contention is unavailing.

In addressing the standards to apply in determining if a class action settlement is fair, adequate, and reasonable to the class, the 7-Eleven court again emphasized the wide discretion given to trial courts in making that decision: "The trial court possesses a broad discretion to determine the fairness of the settlement, a discretion exercised through the application of a handful of identified criteria. Both the federal circuit courts and our Court of Appeal have adopted a mix of relevant considerations, including '[1] the strength of plaintiffs' case, [2] the risk, expense, complexity and likely duration of further litigation, [3] the risk of maintaining class action status through trial, [4] the amount offered in settlement, [5] the extent of discovery completed and the stage of the proceedings, [6] the experience and views of counsel, . . . and [7] the reaction of the class members to the proposed settlement.' [Citation.] The list of factors is not exhaustive and 'should be tailored to each case.' [Citation.] According to [one Court of Appeal], 'a presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.'" (7-Eleven, supra, 85 Cal.App.4th at p. 1146; accord, Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, 244-245 (Wershba).)

In applying the factors listed above, we first turn to the strengths, weaknesses and risks of litigation. In seeking approval of the revised settlement, Campbell and Verizon identified several weaknesses in the class members' claims and a number of substantial risks of continued litigation. These included the risk that no class could be maintained through trial because of manageability issues.

As to the amount of the settlement, Campbell and Verizon provided substantial evidence that the settlement vouchers were worth from $30 to over $150. By comparison, Campbell's experts valued the class's claims, even if they prevailed on all damages claims, at approximately $13 per month.

Appellants object that the settlement may not have included all possible damages that had been sought. However, this objection is of no moment. "A settlement need not obtain 100 percent of the damages sought in order to be fair and reasonable." (Wershba, supra, 91 Cal.App.4th at p. 250.) Although, contrary to appellants' assertions, the proponents of the settlement did provide extensive evidence of the value of the settlement and of the plaintiffs' claims, the trial court was not required to judge the settlement "against a hypothetical or speculative measure of what might have been achieved had plaintiffs prevailed at trial." (Id. at p. 246.) All the trial court was required to have before it was a picture of "'"gross approximations and rough justice."'" (7-Eleven, supra, 85 Cal.App.4th at p. 1145.)

Further, the trial court was not required, as appellants assert, to calculate the true value of the settlement in dollars. A settlement can be proper even if it "amount[s] to only 'a fraction of the potential recovery.'" (Wershba, supra, 91 Cal.App.4th at p. 250.) Settlement relief may be substantially narrower than the claimed damages because "'the public interest may indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation.' [Citation.]" (Ibid.)

Indeed, the evidence before Judge Pate entitled the revised settlement to a presumption of fairness. As stated ante, a presumption of fairness arises when four criteria are met: "(1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small." (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802 (Dunk).)

Appellants do not challenge the third or fourth factors, leaving only the questions of whether the record shows that the settlement was not the product of arm's-length bargaining and that discovery was insufficient to make an intelligent assessment of the reasonableness of the settlement. Appellants have failed to demonstrate either factor applies here.

The record shows that the negotiations for the revised settlement involved the counsel to this action, counsel in several actions pending nationwide that raised similar claims, as well as several persons who objected to the original settlement. Further, UCAN, Consumers Union and WCA, all of whom objected to the original proposed settlement, participated in the negotiations for the revised settlement.

Numerous mediation sessions were conducted before Judge Irving and were held, telephonically and in person, in San Diego, Washington, D.C., and New York. UCAN and Consumers Union concluded and stated to the court that the product of the negotiations was an arm's-length, collusion-free settlement. There is nothing in the record to support appellants' claims that the revised settlement was in any manner collusive.

Further, there was "investigation and discovery . . . sufficient to allow counsel and the court to act intelligently . . . ." (Dunk, supra, 48 Cal.App.4th at p. 1802.) As discussed in the background section, ante, and as we separately address, post, the parties obtained over 100,000 pages of document discovery from Verizon, deposed its employees, and interviewed its executives.

The evidence presented to the trial court was more than sufficient to allow it to exercise its discretion and approve the settlement. (See Dunk, supra, 48 Cal.App.4th at p. 1804 [rejecting claim of insufficient evidence on the value of settlement].) Further, it would serve no purpose, as appellants request, for us to compare appellants' expert evidence to the plaintiffs' expert evidence as to the value of the settlement. "[W]e do not reweigh [the evidence] or substitute our notions of fairness for those of the trial court." (Wershba, supra, 91 Cal.App.4th at p. 245.)

GNB asserts that trial court "rubber-stamp[ed]" the settlement, "breached[ed] . . . [its] fiduciary duties", and "abandoned" its obligations by "shift[ing] the burden to the objectors" to demonstrate the settlement was far, adequate and reasonable. The record in fact shows that the court acted reasonably and protected the interests of the class, even refusing to approve the initial proposed settlement.

Further, contrary to Rinis's contention, the trial court was not required to provide for a minimum volume of redemptions or calculate the redemption rates of the settlement coupons. In support of this assertion, Rinis cites Wershba, supra, 91 Cal.App.4th 224. However, in that case the court did not have coupon redemption rates before it. Rather, it had an estimate of the number of settlement coupons that would be issued, not redeemed. (Id. at pp. 246-247.) Here, the record demonstrates that all class members who were sent notice will be issued two settlement vouchers.

GNB asserts that the settlement was not fair and reasonable with regard to its claim of accelerated reduction of minutes, pointing to its expert's reliance on a one month overcharge of $47.50. However, as explained by Campbell's experts, who studied at least three months of bills for 722 former and current customers over a 10-year period, the mean monthly charges associated with the airtime depletion and improper billing allegations of the amended complaint were approximately $13.05, and that is based upon a finding of 100 percent liability against Verizon. This is to be compared to GNB's expert who based his conclusion on only that one month of billing. As Campbell's experts explained, the analysis was fatally flawed because that one-month billing experience was not representative of other class members' billing experiences. Campbell's expert opined that this one-month bill was aberrational because it was more than two and one-half times higher than the average Verizon customer bill during the same time period. Using the same methodology as for other Verizon customers, GNB's mean monthly challenged charges for its subscription period were only $8.88.

Nguyen challenges the fairness of the settlement by asserting that there was no consideration for early termination and handset locking charges. However, Nguyen does not point to anything in the record to demonstrate that the settlement provides inadequate compensation for these claims.

Moreover, Nguyen's primary concern on appeal is that the release of early termination fee claims will impair her class action claim that asserts they were illegal under Civil Code section 1671. However, in the revised settlement Verizon has agreed not to assert the settlement's release as a defense to Nguyen's claim that the early termination fees violate Civil Code section 1671.

With or without the presumption of fairness, the record in this matter does not show that the settlement was not fair and reasonable and that the court abused its discretion in approving the settlement.

B. The Release

Appellants assert that the court should have rejected the settlement based upon the language of the release. GNB and Nguyen contend that the release is overly broad because it may impair claims asserted by them in cases they filed after the court's injunction against commencement of such further litigation. Rinis attacks the release as being so broad that it includes claims outside the complaint. These contentions are unavailing.

As stated, ante, the release covers "any and all causes of action; claims . . . that have been, could have been, may be, or could be alleged or asserted . . . relating to, on the basis of, in connection with, or arising out of, in whole or in part, the subject matter of any of the claims alleged in the Complaint."

The release is a standard release envisioned by Civil Code section 1542, which allows parties to waive its terms and release "claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." (San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1053-1054.) Appellants have not identified any California case overturning a class action settlement as an abuse of discretion because it contained this type of release.

Rinis asserts that Trotsky v. Los AngelesFed. Sav. & Loan Assn. (1975) 48 Cal.App.3d 134 stands for the proposition that broad general releases should be avoided in class actions. However, in Trotsky the Court of Appeal overturned a settlement because it released a claim not alleged in the complaint. (Id. at pp. 142, 148.) Along these lines, Rinis contends that the original proposed settlement limited its terms to claims alleged in the complaint, while the new release does not. However, the release is limited to claims related to "the subject matter of any of the claims alleged in the Complaint" and is identical in language to the original proposed settlement with the exception of the words "Amended Complaint" instead of "Complaint" and the statement "[e]xcept to the extent reserved in paragraph XXX."^[2]

Nguyen again asserts that because this case involves charges of "handset locking," the release will "extinguish[] most of her claims" in her separate action. However, as discussed, ante, the record shows that Nguyen's "principal challenge" to Verizon is that its early termination fees violate Civil Code section 1671, subdivision (d). Verizon has made it clear that it will not raise the release in this case as a bar to Nguyen's claim under Civil Code section 1671, subdivision (d) that the early termination provisions of Verizon's contracts are void. Further, to the extent that Nguyen's lawsuit asserts claims related to handset locking, as does this case or other types of early termination fee claims, Nguyen has pointed to no evidence in the record that the settlement provides inadequate consideration for this item. The same applies to GNB's claim regarding accelerated reduction in customer minutes, as more thoroughly discussed, ante.

The court did not abuse its discretion by approving the release contained in the revised settlement.

C. Failure To Order Further Discovery

GNB and Nguyen contend that the court abused its discretion in refusing to allow further discovery before approving the revised settlement. GNB asserts that discovery was necessary to "quantify the class-wide value of their released claims," while Nguyen contends that "nothing in the record shows that Plaintiffs took any discovery regarding early termination fees or handset locking." These contentions are unavailing.

A class member may request leave of court to conduct an oral or written deposition or a deposition for the production of business records and things. (Cal. Rules of Court, rule 1858(a).) A court ruling on a request for discovery "must consider, among other relevant factors: [¶] (1) The timing of the request; [¶] (2) The subject matter to be covered; [¶] (3) The materiality of the information being sought; [¶] (4) The likelihood that class members have such information; [¶] (5) The possibility of reaching factual stipulations that eliminate the need for such discovery; [¶] (6) Whether class representatives are seeking discovery on the subject to be covered; and [¶] (7) Whether discovery will result in annoyance, oppression, or undue burden or expense for the members of the class." (Id., rule 1858(d).) We review a trial court's ruling granting or denying discovery under the abuse of discretion standard. (Wershba, supra, 91 Cal.App.4th at p. 235; Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.)

First, substantial discovery was conducted on the claims asserted in this action. The materials were made available to those objecting to the settlement, and they were allowed to conduct discovery upon a showing of good cause and an agreement to be bound by a protective order. However, GNB and Nguyen did not timely seek additional discovery, instead only objecting to approval of the settlement on this basis. Objectors are "not automatically entitled to discovery or 'to question and debate every provision of the proposed compromise.' [Citation.]" (Hemphill v. San Diego Ass'n of Realtors, Inc. (S.D.Cal. 2005) 225 F.R.D. 616, 619.) If an objector desires discovery it must make a properly supported motion, not simply object to the settlement on that basis. (See Wershba, supra, 91 Cal.App.4th at p. 241.)

GNB also asserts that further discovery was necessary because the valuation conducted by Campbell's experts was inadequate. However, as discussed ante, the experts did a detailed valuation analysis based upon extensive discovery and investigation. As part of this process the consumer groups UCAN, Consumers Union and WCA had access to the methodology utilized by the experts to determine the value of the claims being released and the settlement and were independently involved in monitoring the results. These consumer groups concluded that their own evaluation of the claims was comparable to the results of the experts' analysis.

In essence, the challenge is that appellants, and their own expert, disagree with the conclusions of Campbell's experts. It is not an abuse of discretion for the trial court to believe one expert and reject the conclusion of another. (People v. Venghiattis (1986) 185 Cal.App.3d 326, 333; Bullock's, Inc. v. Security-First Nat. Bank of Los Angeles (1958) 160 Cal.App.2d 277, 285.)

The cases cited by appellants also do not support the conclusion that the court abused its discretion in refusing to order further discovery. Nguyen cites Plummer v. Chemical Bank (2d Cir. 1982) 668 F.2d 654. However, in that case the court denied approval of the settlement in part because no formal discovery had been conducted. (Id. at pp. 658-659.) GNB and Nguyen cite Saylor v. Lindsley (2d Cir. 1972) 456 F.2d 896. However, the settlement there was not approved because the named plaintiff had to fire his attorney and hire new counsel to oppose a settlement he never authorized. (Id. at p. 898.) Nguyen and Rinis cite In re General Motors Corp. Engine Interchange Litig. (7th Cir. 1979) 594 F.2d 1106. However, in that case counsel violated a court order in arranging the settlement. (Id. at p. 1126.) Thus, these cases do not support Nguyen and GNB's claim the court should have allowed further discovery.

The court did not abuse its discretion in refusing to allow further discovery.

D. Refusal To Carve Out Nguyen and GNB Claims from Settlement

Similar to their arguments concerning the scope of the release, GNB and Nguyen assert that the court abused its discretion in failing to carve out their particular claims from the settlement. We reject this contention.

The court-approved settlement appropriately carved out from its terms cases that preceded this action where a class had already been certified. Paragraph XXX of the settlement carves out from the settlement's terms "any claim . . . with respect to a landline fee of 8.2 cents per call paid . . . in Michigan from March, 1993 to April, 2000" because there was a preexisting certified class on that issue in the case Yaldo v. AirTouch Communications, Inc. (Cir.Ct. Mich.), No. 99-909694-CP. GNB and Nguyen's actions, by contrast, did not have class certification and were filed after this action; indeed, after the court issued an order barring any further cases on the subject matter of this litigation. Moreover, as discussed, ante, the court did not abuse its discretion in determining that the settlement is fair and reasonable as to their claims. Thus, the court did not abuse its discretion in refusing to carve out GNB's and Nguyen's claims from the settlement.

E. Adequacy of Class Representatives

GNB contends that the court abused its discretion in finding that the class representatives in this action were adequate. We reject this contention.

"In order to be deemed an adequate class representative, the class action proponent must show it has claims or defenses that are typical of the class, and [that] it can adequately represent the class. . . . '"[A] class representative must . . . possess the same interest and suffer the same injury as the class members."'" (J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 212.) This is another subject committed to the trial court's discretion. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327.)

The adequacy inquiry focuses on potential conflicts between the named plaintiffs and the other class members. The law allows differences in situation, interest, and proof of damage among class members. (Wershba, supra, 91 Cal.App.4th at pp. 238-239.) "'"[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party's claim of representative status."' [Citation.]" (Id. at p. 238.)

Here, the nationwide class representatives reflected substantial geographic diversity. Their home states included Arizona, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Washington and Wisconsin. This was more that an adequate geographical representation. (See Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 800-801, 808, fn. 1 [affirming adequacy of nationwide class even though named plaintiffs were residents of only two states].)

The class plaintiffs consisted of the principal plaintiffs in multiple lawsuits separately brought against Verizon, as well as numerous persons and entities that had originally objected to the original settlement but later intervened in this action. UCAN and WCA were also named as class representatives.

An analysis of the claims litigated by the class plaintiffs and interveners reflect that they experienced 29 out of the 31 airtime depletion, billing and service quality fact patterns alleged in the amended complaint.

GNB objects to the fact no class representative suffered an accelerated reduction of minutes precisely like it did. However, "[t]he fact that the class representatives had not personally incurred all of the damages suffered by each different class member does not necessarily preclude their providing adequate representation to the class." (Wershba, supra, 91 Cal.App.3d at p. 238.) Moreover, according to Campbell's experts, the type of fact pattern alleged by GNB was an extremely rare anomaly that was not representative of the type of charges experienced by other class members, and there is no indication that any other claimant suffered that type of injury.

GNB contends that the case Amchem Products, Inc. v. Windsor (1997) 521 U.S. 591 supports its claim that the class is not representative. However, in that case the United States Court of Appeals for the Third District decertified a large settlement class on the ground that class representatives with current asbestos injuries could not adequately represent future claimants with latent asbestos injuries. The United States Supreme Court agreed with this conclusion. (Id. at pp. 619-620.) Here, however, there is no conflict between present claimants and those whose injuries are "latent."

GNB has not established that the court "clearly" abused its discretion in determining the class adequately represented the plaintiffs. (Dunk, supra, 48 Cal.App.4th at p. 1801.)

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] Jerilyn Marlowe and Molly White also objected to the settlement and appealed the judgment, but voluntarily dismissed their appeal by order dated November 4, 2004, as did William Munro and Johnny Smith, who voluntarily dismissed their appeal by order dated August 26, 2005. Accordingly, we do not address their claims made on appeal.

^[2] As discussed, post, the reserved claims involved claims that had received class certification before the Campbell action was filed.