Fisk et al v. Board of Trustees of the California State University et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MADISON FISK, RAQUEL CASTRO,
GRETA VISS, CLARE BOTTERILL,
MAYA BROSCH, HELEN BAUER,
CARINA CLARK, NATALIE
FIGUEROA, ERICA GROTEGEER,
KAITLIN HERI, OLIVIA PETRINE,
AISHA WATT, KAMRYN
WHITWORTH, SARA ABSTEN,
ELEANOR DAVIES, ALEXA DIETZ,
and LARISA SULCS, individually and on
behalf of all those similarly situated,
Plaintiffs,
v.
BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY
and SAN DIEGO STATE UNIVERSITY,
Defendants.
Case No.: 3:22-cv-173-TWR (MSB)
ORDER (1) GRANTING THE JOINT
MOTION FOR PRELIMINARY
APPROVAL OF CLASS
SETTLEMENT AND
CONDITIONAL CLASS
CERTIFICATION,
(2) APPROVING OF CLASS
NOTICE, AND
(3) SCHEDULING A FAIRNESS
HEARING FOR FINAL APPROVAL
OF SETTLEMENT
(ECF No. 159)
Presently before the Court are the Parties’ Joint Motion for Preliminary Approval of
Class Action Settlement and Class Certification (“Joint Mot.,” ECF No. 159), the proposed
Settlement Agreement (“Settlement Agreement,” ECF No. 159-2), and the proposed Class
Notice (“Class Notice,” ECF No. 159-3). The Court held oral argument on the Joint Motion
on December 17, 2025. (See ECF No. 164.) Having carefully considered the Joint Motion,
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the Settlement Agreement, the Class Notice, the Parties’ arguments, and the relevant law,
the 	Court 	GRANTS 	the 	Motion 	for 	Preliminary 	Approval 	and 	Conditional 	Class
Certification, APPROVES of Class Notice, and SETS a Fairness Hearing for Final
Approval of the Settlement Agreement.
FACTUAL BACKGROUND
I. 	Plaintiffs’ Claims
Plaintiffs, “past and current female varsity student-athletes at SDSU,” initiated this
lawsuit against Defendants on February 7, 2022, alleging SDSU—a recipient of federal
funding—has engaged in intentional discrimination based on sex in its athletic programs
in violation of Title IX. (ECF No. 50 (“TAC”) ¶¶ 1, 17, 298–99, 332, 371); see also 20
U.S.C. §§ 1681, 1687. 	Plaintiffs specifically claim SDSU has violated, and is violating,
Title IX and its guiding regulations by (1) “depriving its female varsity student-athletes of
equal financial aid”; (2) “denying them equal athletic benefits and treatment”; and
(3) “retaliating against them because some of them sued SDSU for violating Title IX.”
(TAC ¶ 1.)
II. 	Settlement
Following extensive discovery by both parties, Plaintiffs filed for class certification
on November 22, 2024, which SDSU contested. (See ECF No. 115 (“Class Cert. Mot.”).)
On March 7, 2025, while Plaintiffs’ motion was pending, the Parties participated in a full-
day settlement conference with Magistrate Judge Michael S. Berg. 	(See ECF No. 133.)
The Parties continued to engage in settlement negotiations with Judge Berg serving as the
neutral mediator until August 13, 2025, when the Parties engaged in another half-day
settlement conference with Judge Berg and were able to reach an agreement. 	(See ECF
No. 153.)
III. 	The Proposed Classes
The Proposed Settlement Agreement provides two classes, and only members of
Class 2 are eligible for monetary relief. The proposed classes are as follows:
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Class 1: All female students who participate in intercollegiate varsity athletics
through the termination of the Settlement Agreement or, since February 7,
2022, participated in intercollegiate varsity athletics at San Diego State
University.
Class 2: All female students who participated in intercollegiate varsity
athletics at San Diego State University from the 2018-2019 academic year
through the 2024-2025 academic year and did not receive all of the athletic
financial aid they could have received
(Settlement Agreement ¶ 4.) These proposed classes are virtually the same as the classes
proposed in Plaintiffs’ Motion for Class Certification. (See generally Class Cert. Mot.)1
IV. 	The Proposed Settlement Agreement
The Settlement Agreement provides injunctive relief for all class members and
monetary relief for the members of Class 2.
A. 	Monetary Relief for Class 2 Members
Under the Settlement Agreement, SDSU agrees to pay a total, gross amount of
$300,000 to members of Class 2. 	(See Settlement Agreement ¶ 27.) 	Proposed Class
Counsel is responsible for proposing an allocation of these funds that is fair to the class
and for administering the distribution. 	(See id. ¶ 29.) 	Proposed Class Counsel has
identified 826 female student-athletes as members of Class 2. 	(See ECF No. 159-4
(“Bullock Decl.”) ¶ 5.) SDSU will play no role in determining the proposed allocation of
these funds. (See Settlement Agreement ¶ 29.)
B. 	Injunctive Relief
Under the Settlement Agreement, SDSU agrees to hire a mutually agreeable neutral
third-party to conduct a Gender Equity Review of its athletic department using the process
consistent with the U.S. Department of Education’s Office for Civil Rights’ 1990 Title IX
Investigator’s Manual. (See id. ¶¶ 8–13.) SDSU further agrees it will use the findings from
1 	The Motion for Class Certification also included a “Retaliation Class” that was defined as “[a]ll
female students who participated in intercollegiate varsity athletics at San Diego State University from
the 2018-2019 academic year to the present.” (Id. at 5.)
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the Gender Equity Review to implement a Gender Equity Plan. (See id.) The third-party
Title IX Reviewer must be satisfied that, once implemented, SDSU’s athletic department
will be in compliance with Title IX’s requirements regarding athletic financial aid and
athletic treatment and benefits by the end of the 2026-2027 academic year. 	(See id.
¶¶ 14–18.) 	To monitor compliance, the proposed Settlement Agreement provides that,
from July 31, 2026, through July 31, 2028, SDSU will provide an annual summary update
regarding its implementation of the Gender Equity Plan. 	(See id. ¶ 21.) 	To maintain
transparency, SDSU will post the Gender Equity Plan and its annual summary reports on
the university’s varsity athletics website. (See id. ¶¶ 18, 22.)
SDSU also agrees to provide specific relief including: (1) providing equitable
nutrition to a comparable number of male and female student-athletes; (2) providing
coaches for men’s and women’s teams the option of having their teams travel by airplane
to competitions more than a 6-hour drive away from the SDSU campus in an equitable
manner; (3) providing coaches for men’s and women’s teams the opportunity to have their
teams stay in hotels before competitions in the San Diego area in an equitable manner;
(5) making repairs to the women’s outdoor track, which are anticipated to be completed in
the 2025-2026 academic year, and continue to assess the track facility for additional
repairs; (6) replacing the turf on the field used by the women’s varsity lacrosse team for
practices and competitions no later than the 2027-2028 academic year; (6) providing a
person who is not a coach or a member of the team to record and/or stream home
competitions equitably for men’s and women’s teams; and (7) providing professional
photography services and publicity equitably to men’s and women’s teams. 	(See id.
¶ 24(a–f).)
C. 	Attorneys’ Fees and Costs
“SDSU agrees to pay a sum of $1,300,000 as a negotiated sum for the reasonable
attorneys’ fees, costs, and expenses Plaintiffs incurred pursuing this litigation.” (Id. ¶ 31.)
/ / /
/ / /
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D. 	Notice to Class Members
The Parties agree “SDSU shall timely send an email to the last known SDSU email
address assigned to all female students” that fall within the scope of the definition of both
Classes, which will include a link to the notice and Settlement Agreement posted on the
University’s athletics website. 	(Id. ¶ 33.) 	The Parties state they will “make reasonable
efforts to provide notice to any Class members whose emails ‘bounceback’ as not
received.” (Id.) Further, the Parties “will detail the number of ‘bounceback emails’ and
the Parties efforts to provide notice to those individuals in their Motion for Final
Approval.” (Id.)
E. 	Release of Claims
The Parties agree “all claims asserting violations of Title IX regarding athletic
financial aid, athletic treatment and benefits, and retaliation that were asserted or that could
have been asserted in this case are forever and irrevocably released by Plaintiffs,
individually and on behalf of the class.” (Id. ¶ 37.)
SETTLEMENT PRELIMINARY APPROVAL
I. 	Legal Standard
Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses
of a certified class may be settled, voluntarily dismissed, or compromised only with the
court’s approval.” 	“[S]trong judicial policy . . . favors settlements, particularly where
complex class action litigation is concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d
1268, 1276 (9th Cir. 1992). “The purpose of Rule 23(e) is to protect the unnamed members
of the class from unjust or unfair settlements affecting their rights.” 	In re Syncor ERISA
Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). The Court’s review of the settlement is meant
to be “extremely limited,” and the Court should consider the settlement as a whole. 	See
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on other grounds
by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
For approval of a class settlement, the Court determines whether the proposed
settlement is “fair, reasonable, and adequate.” 	Fed. R. Civ. P. 23(e)(2). 	Preliminary
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approval of a settlement and notice to the proposed class is appropriate if: (i) the proposed
settlement appears to be the product of serious, informed, non-collusive negotiations; and
(ii) the settlement falls within the range of possible approval, has no obvious deficiencies,
and does not improperly grant preferential treatment to class representatives or segments
of the class. 	See Pipich v. O’Reilly Auto Enters., LLC, No. 3:21-CV-01120-AHG, 2024
WL 2885342, at *4 (S.D. Cal. June 7, 2024) (citing In re Tableware Antitrust Litig., 484
F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). To determine whether a settlement agreement
meets the above standards, a district court may consider some, or all, of the following
factors:
(1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and
likely duration of further litigation; (3) the risk of maintaining class action
status throughout the 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; (7) the presence of a governmental participant; and (8)
the reaction of the class members of the proposed settlement.
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (quoting
Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); see also Officers for
Just. v. Civ. Serv. Com’n of City & Cnty. of S.F., 688 F.2d 615, 625 (9th Cir. 1982) (noting
the list of factors is “by no means an exhaustive list of relevant considerations”). Because
not all of the eight In re Bluetooth factors can be fully assessed at the preliminary approval
stage, the Court should focus on an assessment of if the proposed settlement (1) appears to
be the product of serious, informed, non-collusive negotiations, (2) falls within the range
of possible approval, (3) has no obvious deficiencies, and (4) does not improperly grant
preferential treatment to class representatives or segments of the class. 	See Zwicky v.
Diamond Resorts Mgmt. Inc., 343 F.R.D. 101, 119 (D. Ariz. 2022).
I. 	Serious, Informed, Non-Collusive Negotiations
This settlement is the product of a full-day settlement conference and an additional
half-day settlement conference with Magistrate Judge Michael S. Berg. 	(See ECF Nos.
133, 153.) 	The Parties state the “negotiations involved months of efforts and settlement
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conferences” and the Settlement Agreement “is the product of arm’s-length negotiations
between the Parties and their experienced counsel at a point when both the Plaintiffs and
SDSU possessed more than sufficient evidence and knowledge to allow them to make
informed decisions.” (Joint Mot. at 19.) Given the extent of litigation pre-settlement, (see
generally Docket), and the fact that the Settlement Agreement was negotiated with the
oversight of a federal magistrate judge, the Court finds the negotiations were serious, well-
informed, and negotiated at arm’s length.
II. 	Range of Possible Approval
To determine whether a settlement “falls within the range of possible approval,” a
court must focus on “substantive fairness and adequacy” and “consider plaintiffs’ expected
recovery balanced against the value of the settlement offer.” 	In re Tableware Antitrust
Litig., 484 F. Supp. 2d at 1080. Here, the Court’s analysis is focused on whether Class 2’s
monetary recovery under the Settlement Agreement is adequate. 	The Third Amended
Complaint (“TAC”) states that female student athletes should be entitled between $3,531
to $6,343 per qualifying academic year. (See TAC ¶¶ 351–54.) In comparison, under the
Settlement Agreement, members of Class 2 will receive $172.12 per qualifying academic
year in the Class Period. 	(See Joint Mot. at 23.) 	The below chart illustrates the total
monetary damages for Class 2 members based on number of qualifying years.
Number of Years
in Class 2
Estimated Total
Payment Amount
1 year 	$172.12
2 years 	$344.23
3 years 	$516.35
4 years 	$688.47
5 years 	$860.59
(See Bullock Decl. ¶ 19.) To explain this reduction, the Parties’ Joint Motion states “while
Plaintiffs are optimistic about their chances of success at trial, they also recognize there are
a number of significant obstacles they would still have to overcome to achieve success on
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behalf of the Classes.” 	(See Joint Mot. at 20, 23 (“The fact that Class 2 members will
receive cash relief without the attendant delays, risks, uncertainties, and costs posed by
continued litigation is significant.”).) However, the Joint Motion did not explain the extent
of the reduction, given $172.12 is 2.71% of $6,343 and 4.8% of $3,531. 	The lack of
information on the reduction of Class 2’s monetary recovery in the Settlement Agreement
initially appeared problematic. 	See Cotter v. Lyft, Inc., 176 F. Supp. 3d 930, 935 (N.D.
Cal. 2016) (explaining the importance of balancing the potential recovery against the
amount offered in settlement). 	But the Court’s discussion with counsel at the hearing
provided sufficient information on why the TAC’s potential monetary damages differ from
the settlement monetary award for Class 2 members. (See ECF No. 164.) First, the values
in the TAC were based on Equity in Athletics Disclosure Act (“EADA”) data and post-
discovery Plaintiffs had access to financial distribution data that reduced potential
recovery. (See id.) Second, the values in the TAC did not account for maximum financial
aid limits. 	(See id.) 	Third, potential recovery of any monetary damages at trial were
uncertain because Defendant SDSU maintained that Plaintiffs would only be entitled to
equitable relief. (See id.) Lastly, there have been no similar financial aid Title IX lawsuits
resulting in monetary damages for plaintiffs. 	(See id.) 	With this information, the Court
finds the Settlement Agreement’s terms fall within the range of an acceptable recovery.
III. 	No Obvious Deficiencies
Obvious deficiencies in a settlement agreement include “any subtle signs that class
counsel have allowed pursuit of their own self-interests to infect the negotiations.”
McKinney-Drobnis v. Oreshack, 16 F.4th 594, 607 (9th Cir. 2021) (citation omitted). The
Ninth Circuit has identified three such subtle signs: “(1) when counsel receives a
disproportionate distribution of the settlement; (2) when the parties negotiate a clear-sailing
arrangement, under which the defendant agrees not to challenge a request for an agreed-
upon attorney’s fee; and (3) when the agreement contains a kicker or reverter clause that
returns unawarded fees to the defendant, rather than the class.” 	Id. at 607–08 (citation
omitted). The Proposed Settlement Agreement does not contain a reverter clause, so the
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Court need only consider the clear sailing agreement and the potentially disproportionate
distribution of the settlement to Class Counsel. (See generally Settlement Agreement.)
A. 	Disproportionate Distribution of the Settlement
“Where a settlement produces a common fund for the benefit of the entire class,
courts have discretion to employ either the lodestar method or the percentage-of-recovery
method.” 	In re Bluetooth, 654 F.3d at 942. 	“Though courts have discretion to choose
which calculation method they use, their discretion must be exercised so as to achieve a
reasonable result.” 	Id. 	The Ninth Circuit has recognized that “several courts have
embraced the constructive common fund approach” which treats a settlement agreement
with a settlement fund and a separate amount for attorney fees as a “constructive common
fund.”2 Id. at 943. 	In common fund cases, there is a presumptive 25% benchmark on
attorneys’ fees. Id.
At the final approval stage, the Court must “(1) decide whether to treat the settlement
as a common fund; (2) choose the lodestar or percentage method for calculating a
reasonable fee and make explicit calculations; (3) ensure that the fee award is reasonable
considering, inter alia, the degree of success in the litigation and benefit to the class; and
(4) if standard calculations yield an unjustifiably disproportionate award, adjust the
lodestar or percentage accordingly.”3 Id. at 945. But at the preliminary approval stage, the
Court need only determine whether the settlement falls within the range of possible
approval. See Pipich, 2024 WL 2885342 at *4. Here, the Settlement Agreement provides
that SDSU will pay the total, gross sum of $1,300,000 to Plaintiffs’ counsel for Plaintiffs’
2 	The Ninth Circuit stated, “[a]lthough we do not go so far as to hold that the district court must treat
the package as a constructive common fund for purposes of analyzing the reasonableness of the fee award,
assessment of the settlement’s overall reasonableness must take into account the defendant’s overall
willingness to pay.” Id.
3 	The Ninth Circuit has “encouraged courts to guard against an unreasonable result by cross-
checking their calculations against a second method.” 	Id. at 944. 	Further, “[i]f the lodestar amount
overcompensates the attorneys according to the 25% benchmark standard, then a second look to evaluate
the reasonableness of the hours worked and rates claimed is appropriate.” Id. (citing In re Coordinated
Pretrial Proc. in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir. 1997)).
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proposed reasonable litigation costs, and attorneys’ fees. (See Settlement Agreement ¶ 31.)
The Settlement Agreement also provides Plaintiffs in Class 2 with a fund of $300,000 to
be distributed by Class Counsel. 	(Id. ¶ 27.) 	As explained below, at the preliminary
approval stage, the Court finds the payment of $1,300,000 to Class Counsel falls within
the range of possible approval.
1. 	Common Fund Analysis
Viewing SDSU’s agreed upon payments as a constructive common fund, see In re
Bluetooth, 654 F.3d at 943, the attorneys’ fees portion represents 81.25% of the total
monetary payment. 	This percentage greatly exceeds the 25% benchmark for attorneys’
fees in a common fund. Id.
However, the Ninth Circuit has provided “several factors courts may consider in
assessing a request for attorneys’ fees that was calculated using the percentage-of-recovery
method. . . . includ[ing] the extent to which class counsel ‘achieved exceptional results for
the class,’ whether the case was risky for class counsel, whether counsel’s performance
‘generated benefits beyond the cash settlement fund,’ the market rate for the particular field
of law (in some circumstances), the burdens class counsel experienced while litigating the
case (e.g., cost, duration, foregoing other work), and whether the case was handled on a
contingency basis.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954–55 (9th
Cir. 2015) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047–50 (9th Cir. 2002)).
While the Parties did not provide the Court with an analysis based on these factors, the
Court takes note of the injunctive relief provided in the Settlement Agreement and the fact
that the monetary payment to Class 2 members is the first of its kind in Title IX litigation.
Thus, at the preliminary approval stage, this is sufficient to conclude that the distribution
to Class Counsel falls within the within the range of possible approval. 	See Pipich, 2024
WL 2885342 at *4.
2. 	Lodestar Analysis
“The lodestar figure is calculated by multiplying the number of hours the prevailing
party reasonably expended on the litigation (as supported by adequate documentation) by
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a reasonable hourly rate for the region and for the experience of the lawyer.” 	In re
Bluetooth, 654 F.3d at 941–42 (citation omitted). While the lodestar calculation is
presumptively reasonable, “the court may adjust it upward or downward by an appropriate
positive or negative multiplier reflecting a host of reasonableness factors, including the
quality of representation, the benefit obtained for the class, the complexity and novelty of
the issues presented, and the risk of nonpayment” with the foremost consideration being
“the benefit obtained for the class.” Id. (internal quotations omitted).
Here, Class Counsel alleges the $1,300,000 fee is a “significant reduction from the
lodestar calculated by Class Counsel (hours expended multiplied by their usual hourly
rates).” (Joint Mot. at 4) (citing Bullock Decl. ¶ 27.) In a similar case, Anders v. California
State Univ., Fresno, the court approved a class settlement providing $900,000 in attorneys’
fees and no monetary damages for the plaintiffs. 	No. 1:21-CV-00179-KJM-BAM, 2025
WL 3228123 (E.D. Cal. Nov. 19, 2025), at *2. The court reasoned that the fee award was
“reasonable given the long-running and hard-fought nature of th[e] case, which included
extensive pretrial litigation and appellate practice” and the fact that the “total proposed
award [was] less than half of the ‘lodestar’ award.” Id. During Anders, the class counsel
“litigated the case for four years by defending three motions to dismiss, preparing written
discovery, analyzing over 6,000 pages of data received in discovery, defending multiple
depositions of the Class Representatives, submitting two expert reports, advancing multiple
motions for class certification (ultimately granted), attending numerous hearings and
pursuing a successful appeal at the Ninth Circuit.” 	Anders v. California State Univ.,
Fresno, No. 1:21-CV-00179-KJM-BAM, 2025 WL 2701718, at *8 (E.D. Cal. Sept. 23,
2025).
Similarly, here, Class Counsel engaged in “three and a half years of hard-fought
litigation.” (Joint Mot. at 18.) During these years Class Counsel engaged in the following:
Conducting 	pre-suit 	investigation, 	preparing 	four 	detailed 	complaints,
successfully 	defending 	three 	motions 	to 	dismiss, 	preparing 	written
discovery, analyzing over 57,000 pages of discovery, defending and taking
31 depositions, including those of 16 members of SDSU’s financial aid
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office and athletic department, submitting two expert reports, advancing a
motion for class certification, attending numerous hearings (contributing to
156 	docket 	entries 	in 	the 	District 	Court), 	attending 	several
settlement/mediation 	conferences, 	and 	most 	recently, 	negotiating 	and
documenting the settlement itself.
(Id.) (citing Bullock Decl. ¶ 11.) 	Given the extensive litigation that preceded this
settlement, the $1,300,000 fee award is significantly less than Class Counsel’s estimated
lodestar calculation of $3.2 million. (See ECF No. 164.) Thus, at the preliminary approval
stage, the distribution to Class Counsel also falls within the range of possible approval
using the lodestar method. 	See Pipich, 2024 WL 2885342 at *4. Class Counsel SHALL
SUBMIT detailed billing records before the final approval hearing so the Court may
determine an appropriate lodestar figure. See In re Bluetooth, 654 F.3d at 944–45.
B. 	Clear-sailing Arrangement
There is a “clear sailing” arrangement in the Proposed Settlement Agreement. (See
Settlement Agreement ¶ 31.) A “clear sailing” arrangement provides for the payment of
attorneys’ fees separate and apart from class funds, which carries “the potential of enabling
a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting
an unfair settlement on behalf of the class.” In re Bluetooth, 654 F.3d at 941–42 (citation
omitted). 	“[W]hen confronted with a clear sailing provision, the district court has a
heightened duty to peer into the provision and scrutinize closely the relationship between
attorneys’ fees and benefit to the class, being careful to avoid awarding ‘unreasonably high’
fees simply because they are uncontested.” 	Id. (citation omitted). 	At the preliminary
approval stage, even examining the attorneys’ fee award with scrutiny, the fee award falls
within the range of possible approval. See Pipich, 2024 WL 2885342 at *4.
IV. 	No Preferential Treatment to Class Representatives or Segments of the Class
District courts must be “particularly vigilant” for signs counsel has allowed the “self-
interests” of “certain class members to infect negotiations.” 	In re Bluetooth, 654 F.3d at
947. 	For that reason, preliminary approval of a class action settlement is inappropriate
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where 	the 	proposed 	agreement 	“improperly 	grants 	preferential 	treatment 	to 	class
representatives.” In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1079.
The Joint Motion states “Plaintiffs are not receiving any additional relief (or even a
service award) that would suggest that their agreement to the terms of the proposed
settlement is motivated by anything other than what is in the best interests of the Classes.”
(Joint Mot. at 21.) While the preferential treatment analysis typically focuses on incentive
payments, here, the Court was initially concerned with the Named Plaintiffs individually
settling their retaliation claims which were being released by the class. (See Joint Mot. at
4, n.2; Settlement Agreement ¶ 37.) However, as discussed at the hearing, the individual
settlements are purely injunctive in nature. 	(See ECF No. 164.) 	Because the individual
settlements do not provide the Named Plaintiffs with any additional monetary award, there
is no evidence the Named Plaintiffs are receiving any preferential treatment.
* 	* 	*
In light of the foregoing, the Court GRANTS the Parties’ Motion for Preliminary
Approval of the Class Settlement.
CLASS NOTICE
I. 	Legal Standard
For any class certified under Rule 23(b)(3), “class members must be afforded the
best notice practicable under the circumstances, which includes individual notice to all
members who can be identified through reasonable effort.” 	Fed. R. Civ. P. 23(c)(2)(B).
The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the
member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Id.
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II. 	Analysis
After a review of the Proposed Class Notice, for the most part, the Class Notice
clearly explains the information required by Rule 23(c)(2)(B), using a question-and-answer
format. 	(See generally Class Notice.) 	However, while the Proposed Class Notice notes
class members “may choose to appear before the Court or have [their] own attorney appear
as Class Counsel will not be representing your individual interests” (Class Notice at 14),
the Class Notice should more clearly explain “that a class member may enter an appearance
through an attorney if the member so desires” by including this information in the answer
to question number 13 “Do I have a lawyer representing me in this case?” 	See Loreto v.
Gen. Dynamics Info. Tech., Inc., No. 319CV01366GPCMSB, 2021 WL 3141208, at
*10–11 (S.D. Cal. July 26, 2021) (conditioning approval of the proposed class notice on
the class counsel adding clarity on class members’ ability to enter an appearance through
an attorney). The Court ORDERS Class Counsel to update the language in the answer to
Proposed Class Notice Question 13 to include “that a class member may enter an
appearance through an attorney if the member so desires.” Fed. R. Civ. P. 23(c)(2)(B)(iv).
Contingent on the change to the answer to Question 13, the Court APPROVES of the
proposed Class Notice.
CONDITIONAL CLASS CERTIFICATION
I. 	Legal Standard
Confronted with a request for settlement-only class certification, the district court
must pay “undiluted, even heightened, attention” to class certification requirements
“designed to protect absentees by blocking unwarranted or overbroad class definitions.”
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). To obtain class certification,
Plaintiffs must satisfy the four prerequisites identified in Rule 23(a) as well as one of the
three subdivisions of Rule 23(b). See id. at 614. “The four requirements of Rule 23(a) are
commonly referred to as ‘numerosity,’ ‘commonality,’ ‘typicality,’ and ‘adequacy of
representation’ (or just ‘adequacy’), respectively.” 	United Steel, Paper & Forestry,
Rubber, 	Mfg. 	Energy, 	Allied 	Indus. 	& 	Serv. 	Workers 	Int’l 	Union, 	AFL–CIO 	v.
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ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). Rule 23(b) requires a plaintiff to
establish one of the following: (1) that there is a risk of substantial prejudice from separate
actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be
appropriate; or (3) that common questions of law or fact predominate and the class action
is superior to other available methods of adjudication. Fed. R. Civ. P. 23(b)(1)–(3). “Ninth
Circuit precedent indicates that the court can separately certify an injunctive relief class
and if appropriate, also certify a Rule 23(b)(3) damages class.” In re ConAgra Foods, Inc.,
302 F.R.D. 537, 573 (C.D. Cal. 2014).
II. 	Analysis
For the reasons explained below, the Court finds the proposed Settlement Classes
satisfy the requirements of Federal Rule of Civil Procedure 23. Pursuant to Rule 23(b)(2),
the Court PRELIMINARILY CERTIFIES the Injunctive Relief Class (“Class 1”): “All
female students who participate in intercollegiate varsity athletics through the termination
of the Settlement Agreement or, since February 7, 2022, participated in intercollegiate
varsity athletics at San Diego State University.” And pursuant to Rule 23(b)(3), the Court
PRELIMINARILY CERTIFIES the Financial Aid Class (“Class 2”): “All female
students who participated in intercollegiate varsity athletics at San Diego State University
from the 2018-2019 academic year through the 2024-2025 academic year and did not
receive all of the athletic financial aid they could have received.”
A. 	Rule 23(a) Requirements
1. 	Numerosity
The numerosity 	requirement under Rule 23(a) requires parties seeking 	class
certification to establish that the class is so large that joinder of all members is
impracticable. 	Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011).
“Impracticable” does not mean that joinder is a “literal impossibility,” but instead asks
whether joinder of all class members is “‘practicable’—i.e., ‘reasonably capable of being
accomplished.’” A.B. v. Haw. State Dep’t of Educ., 30 F.4th 828, 837 (9th Cir. 2022). The
Ninth Circuit has instructed that “where a class is large in numbers, joinder will usually be
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impracticable.” 	Id. at 835; see also Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir.
2010) (explaining that numerosity is typically satisfied “when a class includes at least 40
members”).
Here, the Parties assert that for Class 1 “during the 2023-24 academic year alone,
there were 225 female student[] athletes” and each year more women were added to the
class. (Joint Mot. at 7.) Further, for Class 2, the Parties state “there are over 800 women.”
(Id. at 8.) Both Class 1 and Class 2 are sufficiently numerous to make joinder impracticable
and thus numerosity is established.
2. 	Commonality
Rule 23(a)(2)’s commonality requirement is satisfied where “there are questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Common questions need not
address every aspect of the claims, but they must “generate common answers apt to drive
the resolution of the litigation.” 	Alcantar v. Hobart Serv., 800 F.3d 1047, 1052 (9th Cir.
2015) (emphasis in original) (citation omitted). 	A single common question is sufficient.
See id. Here, “the claims of all proposed Class Members include the same legal questions:
whether SDSU engaged in sex discrimination and violated Title IX through (1) the
allocation of athletic financial aid to varsity student-athletes and (2) the allocation of
benefits and treatment to varsity student-athletes.” 	(Joint Mot. at 8.) 	Because common
answers to these questions would apply to all class members, commonality is satisfied.
3. 	Typicality
The typicality requirement considers whether, in comparison to the representative
parties, “other members have the same or similar injury, whether the action is based on
conduct which is not unique to the named plaintiffs, and whether other class members have
been injured by the same course of conduct.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir.
2014). 	Commonality and typicality “‘tend to merge’ in practice because both of them
‘serve 	as 	guideposts 	for 	determining 	whether 	under 	the 	particular 	circumstances
maintenance of a class action is economical and whether the named plaintiff’s claim and
the class claims are so interrelated that the interests of the class members will be fairly and
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adequately protected in their absence.’” Meyer v. Portfolio Recovery Associates, LLC, 707
F.3d 1036, 1041 (9th Cir. 2012) (quoting Wal-Mart, 564 U.S. at 349).
The Ninth Circuit’s test for typicality is (1) “whether other members have the same
or similar injury”; (2) “whether the action is based on conduct which is not unique to the
named plaintiffs”; and (3) “whether other class members have been injured by the same
course of conduct.” 	Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168,
1175 (9th Cir. 2010) (citation and internal quotation marks omitted). 	Here, the Parties
allege “the named Plaintiffs’ claims are not just typical of the class claims; they are
identical” because Named Plaintiffs and class members both allege they “(1) have been
denied or imminently will be denied an equal allocation of the benefits and treatment
provided to varsity male student athletes at SDSU and (2) have been denied an equal
allocation of athletic financial aid provided to male student-athletes at SDSU.” (Joint Mot.
at 9.) 	Because the claims of the putative class are fairly encompassed by the Named
Plaintiff’s claims, typicality is satisfied.
4. 	Adequacy
Rule 23(a)(4) requires the representatives to “fairly and adequately protect the
interests of the class.” 	Fed. R. Civ. P. 23(a)(4). 	Adequacy involves a two-part inquiry:
“(1) do the named plaintiffs and their counsel have any conflicts of interest with other class
members and (2) will the named plaintiffs and their counsel prosecute the action vigorously
on behalf of the class?” Hanlon, 150 F.3d at 1020.
a. 	Class Representatives
The Court finds no conflict of interest for the class representatives and is assured
that the class representatives participated vigorously in this litigation.
b. 	Class Counsel
Class Counsel alleges they have “devoted substantial and sufficient efforts to
investigating the facts and identifying the potential claims in this action, have detailed
knowledge of the applicable law, and have sufficient resources to commit to representing
this putative class.” 	(Joint Mot. at 10.) 	The Court finds no conflict that would prevent
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Casey Gerry Blatt LLP, Bullock Law PLLC, Arthur Bryant Law, P.C., and Haeggquist &
Eck, LLP from adequately representing the class members in this case.
B. 	Injunctive Relief Class Under 23(b)(2)
Certification under Rule 23(b)(2) is appropriate where defendants have “acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” 	Fed. R.
Civ. P. 23(b)(2). “The key to the (b)(2) class is ‘the indivisible nature of the injunctive or
declaratory remedy warranted – the notion that the conduct is such that it can be enjoined
or declared unlawful only as to all of the class members or as to none of them.’” 	Wal-
Mart, 564 U.S. at 360. “The fact that some class members may have suffered no injury or
different injuries from the challenged practice does not prevent the class from meeting the
requirements of Rule23(b)(2).” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010),
abrogated on other grounds as recognized by Rodriguez Diaz v. Garland, 53 F.4th 1189,
1199 (9th Cir. 2022). Here, because SDSU acted in a way that is generally applicable to
the class and injunctive relief will apply equally for all class members, Rule 23(b)(2) is
satisfied.
C. 	Financial Aid Class Under Rule 23(b)(3)
Rule 23(b)(3) requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action
is 	superior 	to 	other 	available 	methods 	for 	fairly 	and 	efficiently 	adjudicating 	the
controversy.”
1. 	Predominance
First, certification under Rule 23(b)(3) is appropriate where “questions of law or fact
common to the class members predominate over any questions affecting only individual
members.” 	Fed. R. Civ. P. 23(b)(3). 	The Ninth Circuit has held that “there is clear
justification for handling the dispute on a representative rather than individual basis” if
“common questions present a significant aspect of the case and they can be resolved for all
members of the class in a single adjudication.” 	Hanlon, 150 F.3d at 1022. A question is
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common where “the same evidence will suffice for each member to make a prima facie
showing [or] the issue is susceptible to generalized, class-wide proof.” Tyson Foods, Inc.
v. Bouaphakeo, 577 U.S. 442, 453 (2016) (alteration in original). The proper question is
thus “whether the method of proof would apply in common to all class members . . . not
whether the method of proof would or could prevail.” Lytle v. Nutramax Lab’ys, Inc., 114
F.4th 1011, 1026 (9th Cir. 2024) (citing In re Celexa & Lexapro Mktg. & Sales Pracs.
Litig., 915 F.3d 1, 12 (1st Cir. 2019)). To determine whether common evidence can supply
classwide answers, the predominance inquiry “begins . . . with the elements of the
underlying cause of action.” 	Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
809 (2011).
Here, the Parties allege “[c]ommon questions of law and fact predominate in the
matter sub judice: the legal determination of whether SDSU discriminated against female
student-athletes by failing to give substantially proportional financial aid as given to their
male counterparts is common to every member of Class 2.” (Joint Mot. at 13.) Further,
the Parties argue there are common facts because the financial aid analysis is “numbers-
driven based on data SDSU maintains and is not subsumed by issues of individualized
perception or experience.” 	(Id. at 14.) 	The Parties cite to Rapuano v. Trustees of
Dartmouth College, 334 F.R.D. 637, 652 (D.N.H. 2020) as an illustrative example. (See
id.) 	In Rapuano, the court found that the subjective element of a Title IX claim did not
defeat predominance because common questions predominated over any individualized
aspects. 	Rapuano, 334 F.R.D. at 637. 	Similarly, here, the common question of whether
SDSU proportionally spent more money on men’s financial aid predominates over any
individualized aspects of the claims. 	See Beasley v. Alabama State Univ., 966 F. Supp.
1117, 1122 (M.D. Ala. 1997) (explaining that the relevant question is whether “male
athletes . . . overall, receive dollar amounts of scholarship support, relative to their actual
participation level in athletics, greater than women receive”) (emphasis in original).
/ / /
/ / /
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2. 	Superiority
Second, Rule 23(b)(3) requires Plaintiffs to demonstrate that a “class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). 	Rule 23(b)(3) enumerates a list of non-exhaustive factors
pertinent to class certification, including: the class members’ interests in individually
controlling the prosecution or defense of separate actions; the extent and nature of any
litigation concerning the controversy already begun by or against class members; the
desirability or undesirability of concentrating the litigation of the claims in the particular
forum; and the likely difficulties in managing a class action. 	Id. 	The superiority
requirement “tests whether class litigation of common issues will reduce litigation costs
and promote greater efficiency.” In re Ferrero Litig., 278 F.R.D. 552, 561 (S.D. Cal. 2011)
(quoting Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). Further,
for a “request for settlement-only class certification, a district court need not inquire
whether the case, if tried, would present intractable management problems . . . for the
proposal is that there be no trial.” Amchem, 521 U.S. at 620.
Here, the Parties submit that “there is no indication that Class Members have
expressed an interest in controlling separate actions.” (Joint Mot. at 15.) Further, “no other
suits involving the same controversy have been initiated.” (Id.) The Court finds classwide
resolution is superior to other methods of adjudicating this controversy given the
unlikelihood that individual class members would pursue individual lawsuits and the
ability for the injunctive relief to provide “future programmatic measures . . . without the
need for further long and protracted litigation.” (Id.)
CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. 	The requirements of Federal Rules of Civil Procedure 23(a), 23(b)(2), and
23(b)(3) are satisfied and thus the Court PRELIMINARILY AND CONDITIONALLY
CERTIFIES, for settlement purposes only, the following settlement classes:
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Pursuant to Rule 23(b)(2):
Class 1: All female students who participate in intercollegiate varsity
athletics through the termination of the Settlement Agreement or, since
February 7, 2022, participated in intercollegiate varsity athletics at San
Diego State University.
Pursuant to Rule 23(b)(3):
Class 2: All female students who participated in intercollegiate varsity
athletics at San Diego State University from the 2018–2019 academic
year through the 2024–2025 academic year and did not receive all of
the athletic financial aid they could have received.
2. 	The Court 	APPOINTS 	Plaintiffs 	Madison 	Fisk, Carina Clark, Natalie
Figueroa, Olivia Petrine, Kamryn Whitworth, and Kaitlin Heri as Class Representatives,
finding that they will fairly, adequately, and vigorously represent the interests of the classes.
3. 	The Court APPOINTS Casey Gerry Blatt LLP, Bullock Law PLLC, Arthur
Bryant Law, P.C., and Haeggquist & Eck, LLP as Class Counsel, finding that they will
fairly, adequately, and vigorously represent the classes. 	Although the Court harbors
reservations regarding the size of the Class Counsel Fees Award relative to the monetary
damages secured for the Class Members, the Court PRELIMINARILY APPROVES a
Class Counsel Fees Award not to exceed $1,300,000. The Class Counsel Fees Award will
be subject to final approval of the Court, and Class Counsel should be prepared to justify
the requested fee award both in their motion for Class Counsel Fees Award and at the Final
Approval Hearing.
4. 	The Court has considered the proposed settlement of the claims asserted in
this matter on behalf of the Class Members. Based upon the Court’s review, it appears that
the settlement is fair, reasonable, and adequate, and that each of the following is true:
a. 	the proposed settlement was negotiated at arm’s length;
b. 	the relief provided for the Settlement Classes is adequate, taking into
account:
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i. 	the costs, risks, and delay of trial and appeal;
ii. 	the terms of the settlement, including the implementation of a
Title IX Gender Equity Review and Gender Equity Plan and the damages to
the members of Class 2;
iii. 	the terms of the proposed award of attorneys’ fees and costs; and
iv. 	that there is no other agreement required to be identified by Rule
23(e)(3);
c. 	the proposed settlement treats Class Members equitably relative to each
other.
5. 	The Court finds the proposed Plan of Allocation for Class 2 is fair, reasonable,
and adequate and APPOINTS CPT Group to serve as the Disbursement Administrator.
The Court also PRELIMINARILY APPROVES CPT Group’s fees, estimated to be
$9,750, to be paid by Class Counsel.
6. 	The Court has reviewed the proposed manner of giving notice as set forth in
the Settlement Agreement and FINDS that the proposed Class Notice and the notice plan
satisfy the requirements of Rule 23 and due process, constitute the best notice practicable
under the circumstances, and shall constitute due and sufficient notice to all persons entitled
thereto, SUBJECT TO THE CHANGE to the answer for Question 13 noted in this Order.
7. 	No later than fourteen (14) days after the date of this Order, SDSU SHALL
SEND an email to the last known SDSU email address assigned to all female students who
fall within the scope of the definitions of Class 1 and Class 2. The email WILL INCLUDE
a link to the notice and the full Settlement Agreement that is posted on the University’s
athletics website. SDSU WILL MAINTAIN a link that will be posted on SDSU’s varsity
athletic website to provide notice to all class members, and Class Counsel will also
maintain a Settlement Website until the Final Approval Hearing.
8. 	SDSU 	SHALL NOTIFY 	Class Counsel of all “bounceback emails” it
receives within fourteen (14) days of issuing the Class Notice. For bounceback emails for
Class 	2 	members, 	the 	Disbursement 	Administrator 	WILL 	UTILIZE 	appropriate,
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commercially reasonable steps to provide notice to those class members. 	For Class 1, if
SDSU 	receives 	more 	than 	a 	de 	minimis 	amount 	of 	“bounceback 	emails” 	due 	to
undeliverable emails, the Parties WILL UNDERTAKE reasonable steps to provide notice
to those class members. 	The Parties WILL INFORM the Court of the number of
“bounceback email” responses received, and the efforts undertaken to address “bounceback
emails.”
9. 	The Court SETS a Final Approval Hearing pursuant to Rule 23(e) on April
16, 2026, at 1:30 PM, in Courtroom 14A of the James M. Carter & Judith N. Keep
Courthouse, located at 333 West Broadway, San Diego, CA 92101, for the following
purposes:
a. 	To determine whether the proposed settlement is fair, reasonable, and
adequate and should be granted final approval by the Court;
b. 	To determine whether a final judgment should be entered dismissing
the claims of the Class Members with prejudice while maintaining jurisdiction over
the Settlement Agreement, as required by the Settlement Agreement;4
c. 	To consider the request of Class Counsel for an award of attorney’s fees
and expenses; and
d. 	To rule upon other such matters as the Court may deem appropriate.
10. 	Members of Class 1 MAY OBJECT to the Settlement.
a. 	To exercise this right to object, the Class Member MUST PROVIDE
a Notice of Objection via First-Class Mail to the Clerk of Court. The Court will not
accept notice by email. Notice of Objection shall also be sent to Class Counsel and
Defendant’s Counsel by First-Class Mail and/or email. Notice of Objection may be
sent to Class Counsel with instruction for Class Counsel to provide the Notice to the
4 	To the extent the Parties intend for the Court to retain jurisdiction after final approval of the
Settlement Agreement, in accordance with Section V of the undersigned’s Standing Order for Civil Cases,
the Parties SHALL EMAIL a completed Consent to Jurisdiction by a United States Magistrate Judge
form to efile_robinson@casd.uscourts.gov.
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Court via e-filing. The Notice of Objection must be postmarked no later than March
17, 2026.
b. 	For an objection to be considered by the Court, such objection SHALL
BE PERSONALLY SIGNED by the Class Member or her attorney and SHALL
STATE:
i. 	the Class Member’s full name, mailing address, and telephone
number;
ii. 	a statement that they are commenting on or objecting to the
proposed Settlement in Fisk, et al. v. California State University, San Diego
State University, et al., Case No. 3:22-cv-00173-TWR-MSB.
iii. 	the factual and/or legal reasons for the comment or objection to
the proposed Settlement;
iv. 	any documents supporting the comment or objection; and
v. 	whether they would like to speak at the Final Approval Hearing.
11. 	Members of Class 2 MAY OPT OUT OF the Settlement.
a. 	To exercise the right to opt out of the Settlement for Class 2, the
members of Class 2 MUST FILL OUT AND SEND the “Opt Out Form” included
in the Class Notice via Email or First-Class Mail to Class Counsel. 	The Opt Out
Form must be sent via email or postmarked no later than March 17, 2026.
b. 	Class Counsel SHALL INFORM the Court of all individuals who opt
out of the settlement in the Parties’ briefing for final approval of the Settlement.
12. 	The right to object MUST BE EXERCISED INDIVIDUALLY by an
individual Class Member, not as a member of a group and, except in the case of a deceased
or incapacitated Class Member, not by the act of another person acting or purporting to act
in a representative capacity.
13. 	The Parties SHALL FILE all papers in support of final approval of the
Settlement by March 19, 2026.
Case 3:22-cv-00173-TWR-MSB Document 165 Filed 01/07/26 PageID.<pageID>
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1 	14. 	Class Counsel SHALL FILE their motion fo r the Class Counsel Fees Award
2 	no later than April 2, 2026.
3 	15. 	The Court reserves the right to continue the date of the Final Approval Hearing
4 	without further notice to Class Members.
5 	16. 	Pending further Order of this Court, all proceedings in this ac ti on except those
6 	contemplated herein and in the Settlement are STAYED.
7 	17. 	As discussed above, the Court SETS the fo llowing schedule fo r the Final
8 	Approval Hearing and the ac ti ons that must take place before it:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EVENT
SDSU will send an email to the last known
SDSU email address assigned to all female
students within Class 1 and Class 2, with a
link to the notice and the full Settlement
Agreement that is posted on the University 's
athleti cs website.
SDSU will noti fy Class Co unsel of all
"bounceback emails" it receives.
Last day fo r Class 1 members to provide a
Notice of Objection via First-Class Mail to
the Clerk of Court or to Class Counsel with
instruction fo r Class Counsel to provide the
Notice to the Court via e-filing.
Last day fo r Class 2 members to send the
"Opt Out Form" included in the Notice, via
Email or First-Class Mail to Class Counsel.
25
TRIGGERING
EVENT
14 days after
the date of this
Order
Within 14 days
of issuing
Notice
30 days before
Final Approval
Hearing
DATE/DEADLINE
January 21, 2026
February 4, 2026
March 17, 2026
3 :22-cv-173- TWR (MSB)
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26
3:22-cv-173-TWR (MSB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Last day for all papers to be filed in support
of final approval of the Settlement.
28 days before
Final Approval
Hearing
March 19, 2026
Last day for Class Counsel to file their
motion for the Class Counsel Fee Award.
14 days before
Final Approval
Hearing
April 2, 2026
Final Approval Hearing 	April 16, 2026, at
1:30 PM in
Courtroom 14A
IT IS SO ORDERED.
Dated: January 7, 2026
~,~¼~
Honorable Todd W. Robinson
United States District Judge
Case 3:22-cv-00173-TWR-MSB Document 165 Filed 01/07/26 PageID.<pageID>
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