FILED

NOT FOR PUBLICATION

JUN 04 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: TOYOTA MOTOR CORP. No. 16-55327

UNINTENDED ACCELERATION

MARKETING, SALES PRACTICES, D.C. No. AND PRODUCTS LIABILITY 8:10-ml-02151-JVS-FMO

LITIGATION,

------------------------------ MEMORANDUM*

CASSANDRA MCNAIR-STEPNEY,

Movant-Appellant,

v.

TOYOTA MOTOR CORPORATION, a Japanese Corporation / a foreign corporation, DBA Toyota Motor North America, Inc.; TOYOTA MOTOR SALES, U.S.A., INC., a California corporation / a foreign corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4

Argued and Submitted November 9, 2017 Pasadena, California

Before: LINN,** BERZON, and WATFORD, Circuit Judges.

The district court did not abuse its discretion by denying Cassandra McNair-

Stepney’s motion for relief from judgment under Federal Rule of Civil Procedure

60(b). McNair-Stepney contends that both her right to due process and Federal

Rule of Civil Procedure 23 were violated because neither she nor her attorney

received actual notice of the class action settlement, thereby depriving her of an

opportunity to opt out. But neither due process nor Rule 23 require that each

individual class member receive actual notice. Briseno v. ConAgra Foods, Inc.,

844 F.3d 1121, 1128–29 (9th Cir. 2017); Silber v. Mabon, 18 F.3d 1449, 1453–54

(9th Cir. 1994). Due process instead requires notice “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.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Fed. R. Civ. P.

23(c)(2)(B). Here, that standard was met.

** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. Page 3 of 4 The claims administrator mailed individual notices to more than 22 million

class members. The notice sent to McNair-Stepney’s attorney contained a

typographical error in the address, but the notice was not returned as undeliverable,

so there was no reason for the claims administrator to take additional steps to

ensure that the notice was actually delivered. The claims administrator did take

additional steps to send notice to the roughly one million class members whose

notices were returned as undeliverable. But with a class of more than 22 million

members, it would simply not have been feasible for the claims administrator to

independently verify that every one of the individual notices had in fact reached its

intended recipient.

The notice program approved by the district court provided adequate

protection against the isolated failure of an individual notice to reach its intended

recipient, due to mistake or otherwise. In addition to mailing notices, Toyota

planned and executed a comprehensive notice-by-publication campaign, which

included settlement advertisements in 1,300 newspapers, at least ten national

consumer magazines, and internet banners on popular and highly trafficked

websites. As the district court noted, given the widespread publicity surrounding

the class action litigation and the publication notice actually provided, “it is

difficult to believe that an attorney involved in this massive litigation would not Page 4 of 4 have learned of the proposed settlement and opportunity to opt-out, even if notice

was not sent to his postal address.”

Because the notice provided to the class was constitutionally adequate,

McNair-Stepney’s due process rights were not violated. The notice also comported

with the requirements of Rule 23. The district court therefore permissibly

exercised its discretion by denying her motion to opt out of the settlement long

after final judgment had been entered.

AFFIRMED.