2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 “LILY,” JANE DOE, as court appointed Case No.: 19cv745-DMS(AGS) conservator for “SKYLAR” and 12 “SAVANNAH,” minors, JOHN DOE, as REPORT AND RECOMMENDATION FOR 13 court appointed conservator for “SALLY” ORDER GRANTING JOINT MOTION FOR and “SIERRA,” JANE ROE as next friend for APPROVAL OF MINOR SETTLEMENTS 14 minor, “PIA,” and “JENNY.” 15 [ECF No. 36] Plaintiffs,

16 v. (Unredacted Version Filed Under Seal) 17 TAY CHRISTOPHER COOPER, 18 Defendant. 19 20 21 Before the Court is the parties’ “Joint Motion to Approve Minor Settlements” 22 (“Joint Motion”). (ECF No. 36 (“J. Mot.”).) This Report and Recommendation is 23 submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. 24 § 636(b)(1) and Local Civil Rule 17.1 of the United States District Court for the Southern 25 District of California. After reviewing the Joint Motion and all supporting documents, 26 and for the reasons discussed below, the Court RECOMMENDS that the District Court 27 GRANT the motion. 2 Plaintiffs were granted leave to proceed with pseudonyms in this action. (See ECF 3 No. 5). According to the Complaint filed on April 12, 2019, Plaintiff “Lily” is an adult; 4 Plaintiffs “Skylar” and “Savannah” are minors appearing by and through their mother 5 and court-appointed conservator “Jane Doe”; Plaintiffs “Sally” and “Sierra” are minors 6 appearing by and through their father and court-appointed conservator “John Doe”; 7 Plaintiff “Pia” is a minor appearing by and through her next friend, “Jane Roe”; and 8 Plaintiff “Jenny” is an adult.1 (ECF No. 1 at 2-3.) All Plaintiffs were minors when they 9 were depicted in multiple series of images and videos containing child rape and sexual 10 exploitation. (Id. at 4.) The images and videos in the series constitute child 11 pornography within the meaning of

(8), and were “widely traded—by 12 barter and commercial transaction—over the internet.” (Id. at 5; see also

.) 13 Defendant possessed the child pornography that depicted Plaintiffs and pleaded guilty 14 to violating the federal child pornography statute

(a)(4). (Id. at 4-8, 11; 15 see also

.) 16 Plaintiff’s Complaint brings one cause of action for civil remedies under 18 U.S.C. 17 § 2255(a). (Id. at 10-11.) Plaintiffs allege to have “suffered personal injury as a result of 18 the Defendant’s violation of

(a)(4).” (Id. at 11.) Specifically, Plaintiffs 19 contend that they have suffered and will continue to suffer personal injury by the 20 “distribution and possession of child pornography” depicting them. (Id. at 5-8.) They 21 further allege that 22 [t]he permanent harm [they] have proximately suffered includes but is not limited to extreme and permanent emotional distress with physical 23 manifestations, interference with their normal development and 24 25 1 The Court notes that the Complaint named three additional Plaintiffs: Sarah, Mya, and Ava. (See ECF 26 No. 1.) On April 2, 2020, the parties filed a Joint Motion to Dismiss those three Plaintiffs because their images were not involved in this case. (ECF No. 28; see also J. Mot. at 2.) On the same day, District 27 Judge Sabraw granted the motion and dismissed Plaintiffs Sarah, Mya, and Ava with prejudice from all 2 atrneda tfmuteunret, wloasgs eosf, epnajsoty amnedn ftu otuf rleif ee,x apnedn soetsh feorr l omsesedsic taol abned d pesscyrcihboeldo gaincda l 3 proven at trial of this matter.

4

5 (Id.) The Complaint seeks liquidated and punitive damages, reasonable attorney’s fees, 6 pre-judgment and post-judgement interest, and other related relief. (Id. at 11-12.) 7 Magistrate Judge Andrew G. Schopler held an Early Neutral Evaluation Conference 8 and a Case Management Conference on October 10, 2019, and issued a Scheduling 9 Order Regulating Discovery and Other Pretrial Proceedings on October 11, 2019. (See 10 ECF Nos. 18 & 19.) On February 12, 2020, Judge Schopler held a Settlement Conference, 11 during which the case settled. (ECF No. 27.) 12 On May 8, 2020, the parties filed the instant motion, which was referred to 13 Magistrate Judge Michael S. Berg for purposes of Report and Recommendation. (See 14 ECF Nos. 34-36.) The parties state in their Joint Motion that at the time of filing of the 15 Complaint, the following five of the seven remaining Plaintiffs were minors: Skylar, 16 Savannah, Sally, Sierra, and Pia. (J. Mot. at 2.) Although Sierra has reached the age of 17 majority since the filing of the Complaint, she is still the subject of a conservatorship in 18 her home state, and the parties therefore ask the Court to approve “[Sierra’s] 19 settlement as well as that of the four remaining minors.” (Id. at 2-3.) 20 On August 7, 2020, the Court issued an order requiring the parties to provide 21 additional briefing regarding their calculations of total costs advanced by Plaintiffs’ 22 counsel. (ECF No. 39.) Plaintiffs timely filed the requested brief, which included the 23 declaration of Plaintiff’s counsel, Carol L. Hepburn. (Decl. of Carol L. Hepburn, ECF No. 24 40 at 2-3 (“Hepburn Supplemental Decl.”).) 25 / / / 26 / / / 27 / / / 2 Civil Local Rule 17.1 governs settlements for minors. It provides that “[n]o action 3 by or on behalf of a minor . . . or in which a minor . . . has an interest, will be settled, 4 compromised, voluntarily discontinued, dismissed or terminated without court order or 5 judgment.” S.D. Cal. Civ. R. 17.1(a). It further mandates that “[a]ll settlements and 6 compromises must be reviewed by a magistrate judge before any order of approval will 7 issue.”

8 It is well settled that district courts have a “special duty to safeguard the interests 9 of minor plaintiffs.” Robidoux v. Rosengren,

(9th Cir. 2011). “In the 10 context of proposed settlements in suits involving minor plaintiffs, this special duty 11 requires a district court to ‘conduct its own inquiry to determine whether the 12 settlement serves the best interests of the minor.’”

at 1181 (quoting Dacanay v. 13 Mendoza,

(9th Cir. 1978)); see also Salmeron v. United States, 724

, 1353 (9th Cir. 1983) (“a court must independently investigate and evaluate 15 any compromise or settlement of a minor’s claims to assure itself that the minor’s 16 interests are protected, . . . even if the settlement has been recommended or 17 negotiated by the minor’s parents or guardian ad litem.”). 18 District courts reviewing the settlement of a minor’s federal claim should “limit 19 the scope of their review to the question whether the net amount distributed to each 20 minor plaintiff in the settlement is fair and reasonable, in light of the facts of the case, 21 the minor’s specific claim, and recovery in similar cases.” Robidoux,

- 22 82. Courts should “evaluate the fairness of each minor plaintiff’s net recovery without 23 regard to the proportion of the total settlement value designated for adult co-plaintiffs 24 or plaintiffs’ counsel—whose interests the district court has no special duty to 25 safeguard.”

at 1182 (citing Dacanay,

). “So long as the net recovery 26 to each minor plaintiff is fair and reasonable in light of their claims and average recovery 27 in similar cases, the district court should approve the settlement as proposed by the 2 Pursuant to the terms of the proposed settlement, Plaintiffs will receive an equal 3 pro-rata portion of the gross proceeds of the settlement and will be responsible for an 4 equal pro-rata share of the costs of this litigation. (J. Mot. at 6.) Specifically, the 5 proposed settlement entails even distribution of $165,000 among Plaintiffs, including 6 minors, and offers each Plaintiff $23,571.42 in gross settlement proceeds. (Id.) The 7 proposed settlement includes $7,857.14 in fees per Plaintiff, and $548.40 in costs per 8 Plaintiff, which renders a net settlement of $15,165.46 for each Plaintiff, including each 9 minor. (Id.; Hepburn Supplemental Decl. at 2.) No medical or counseling expenses, or 10 other subrogated expenses, will be paid from the settlement funds. (J. Mot. at 6.) 11 Defendant Cooper is legally separating from his wife, and the Coopers’ main asset 12 is the equity in their family home. (Id. at 5.) Defendant’s wife is essentially “‘loaning’ 13 [Defendant] the liquid funds to consummate this settlement,” and the funds account for 14 a “substantial portion” of Defendant and his wife’s liquid accounts. (Id.) The proposed 15 settlement requires Defendant Cooper to pay $165,000 within thirty days into his 16 counsel’s attorney trust account. (Id.) The settlement funds are to remain in defense 17 counsel’s trust account pending the outcome of the minor settlement process. (Id.) 18 Plaintiffs Skylar, Savannah, Sally, and Sierra are the subject of conservatorship 19 proceedings in their home states, and the parties propose that all funds obtained as a 20 result of this settlement be placed in blocked accounts for the minors’ benefit and not 21 be subject to any withdrawals absent further order of this Court or a court of competent 22 jurisdiction in the minors’ home state. (See id. at 3; see also Decl. of Jane Doe; Decl. of 23 John Doe, ECF No. 36.) Pia is a resident of Canada, and her next friend is her mother 24 who is her custodial parent. (J. Mot. at 3.) According to the proposed settlement, Pia’s 25 settlement funds will be placed in a separate blocked account, no withdrawal of 26 principal or interest will be made without court order until Pia turns 18, and Pia’s 27 mother/next friend will be allowed to select the bank or credit union where the funds 2 five days file with the Court a declaration verifying the opening of the blocked account. 3 (Id.) Finally, pursuant to the terms of the proposed settlement, any bond will be 4 waived. (Id.) 5 After considering the Joint Motion and the supplemental brief filed by Plaintiffs in 6 support of the Joint Motion, the Court concludes that the proposed settlement is fair 7 and reasonable under Robidoux. Plaintiffs’ sole cause of action in this case seeks civil 8 remedies under

(a). (ECF No. 1 at 10-11.) Section 2255(a) provides the 9 victim of a child sex offense with a civil remedy for personal injury suffered as a result of 10 enumerated offenses related to the sexual exploitation of children, and provides the 11 following: 12 [a]ny person who, while a minor, was a victim of a violation of section . . . 2252 . . . and who suffers personal injury as a result of such violation . . . 13 shall recover the actual damages such person sustains or liquidated 14 damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred. 15

16

(a). 17 Defendant pleaded guilty to and was convicted of violating the federal criminal 18 child pornography statute

(a)(4). (See ECF No. 1 at 10-11.) Further, 19 each Plaintiff, including minor Plaintiffs, appeared in the child pornography Defendant 20 possessed, and suffered injury as a result. See Paroline v. United States,

, 21 457 (2014) (“[T]he victim suffers continuing and grievous harm as a result of her 22 knowledge that a large, indeterminate number of individuals have viewed and will in the 23 future view images of the sexual abuse she endured[]”; further stating that “every 24 viewing of child pornography is a repetition of the victim’s abuse” and “[t]he unlawful 25 conduct of everyone who . . . possesses the images of the victim’s abuse . . . plays a part 26 in sustaining and aggravating” the victim’s injury.). 27 With respect to attorney’s fees and costs, Plaintiffs’ counsel advanced all of the 2 sex abuse image crimes and far fewer have been litigated or tried.” (J. Mot. at 4; see 3 also id. at 6.) Plaintiffs’ attorneys seek $7,857.14 in fees per Plaintiff, a sum that 4 represents 33 1/3% of the gross settlement. (Id. at 6-7.) Plaintiff’s counsel, Ms. 5 Hepburn, Ms. Bianco, and Mr. Kawai possess unique knowledge and skill representing 6 victims of child sex abuse image exploitation crimes in civil matters, and have jointly 7 expended over 120.30 hours in litigating this matter before settling the case. (See id.; 8 see also Decl. of John A. Kawai; Decl. of Carol L. Hepburn; Decl. of Deborah A. Bianco, 9 ECF No. 33.) Plaintiffs’ counsel also seek reimbursement of costs they incurred in this 10 litigation, which include travel expenses and out-of-pocket costs, totaling $3,838.80, or 11 $548.40 per Plaintiff. (See id.; Hepburn Supplemental Decl. at 2.) 12 Having considered the facts of this case, including the amount of Defendant’s 13 available assets, the minor Plaintiffs’ claims, as well as recoveries in similar cases, the 14 Court concludes that the proposed settlement is fair and reasonable, and in the best 15 interests of minor Plaintiffs and Plaintiff Sierra. See Robidoux,

; see also 16

(a); Lora v. Boland, Case No. 1:07 CV 2787,

, at *1-2 17 (N.D. Ohio, Jan. 18, 2012) (finding $41,700 in attorney’s fees and $1,514.11 in costs “fair 18 and reasonable,” in a case involving an award of $150,000 to each minor plaintiff 19 under

(a).). The Court therefore RECOMMENDS granting the parties’ 20 Joint Motion. 21 IV. CONCLUSION AND RECOMMENDATION 22 For the reasons discussed above, IT IS HEREBY RECOMMENDED that the District 23 Court issue an order: (1) adopting this Report and Recommendation; (2) GRANTING the 24 “Joint Motion to Approve Minor Settlements”; and (3) requiring the following: 25 1. The conservators for Sierra, Sally, Skylar and Savannah, and the next friend 26 for Pia are authorized to execute the settlement documents in the form agreed to by 27 counsel of the minors’ claims; upon payment by Defendant Tay Christopher Cooper 2 to the terms of this Order; 3 2. The costs and attorney’s fees incurred herein are found to be reasonable and 4 approved as set forth in the itemizations included in counsels’ declarations: 5 A. Costs—Costs advanced totaling $3,838.80 are approved and may be 6 reimbursed to counsel; 7 B. Attorney’s Fees—Attorney’s Fees of 33 1/3% of Gross Settlement are 8 approved and may be disbursed to counsel; 9 All funds payable for benefit of the minors shall be disbursed on a pro rata basis 10 as set forth in the parties’ Joint Motion and shall be placed in blocked accounts for the 11 minors’ benefit, and shall not be subject to any withdrawals absent further order of this 12 Court or a court of competent jurisdiction in the minor’s home state. Pia’s next 13 friend/mother may choose the financial institution for her blocked account. 14 3. Counsel shall, within 45 days after approval of the minors’ compromise, file 15 with the Clerk of Court proof of deposit of funds payable for the minors’ benefit into 16 blocked accounts as required by this Order. 17 4. No bond shall be required. 18 IT IS ORDERED that no later than October 2, 2020, any party to this action may 19 file written objections with the Court and serve a copy on all parties. The document 20 should be captioned “Objections to Report and Recommendation.” 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 2 Court and served on all parties no later than October 9, 2020. The parties are advised 3 || that failure to file objections within the specified time may waive the right to raise those 4 || objections on appeal of the Court’s order. See Turner v. Duncan,

(9th 5 || Cir. 1998). 6 IT IS SO ORDERED. 7 ||Dated: September 23, 2020 —

_ 2 FZ — 9 Honorable Michael S. Berg United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28