Amy Friedman v. Guthy-Renker LLC

Filing 251

ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT by Judge Otis D. Wright, II, in favor of Amy Friedman, Judi Miller, Krystal Henry-McArthur, Lisa Rogers against Guthy-Renker LLC, Wen By Chaz Dean Inc.: NOW, THEREFORE, IT IS HEREBY ORDERED THAT: The Court has federal subject matter jurisdiction of this Lawsuit and jurisdiction to approve the settlement. The class period shall be November 1, 2007 to September 19, 2016. All references in the Settlement Agreement to a $5,000, 000 cap or allocation for Tier 1 claims are stricken or replaced. Incentive Awards to Named Plaintiffs. The Parties suggest that the incentive award for Amy Friedman and Judi Miller each be $20,000. Attorney's Fees and Costs. Class Coun sel fees shall be $5,500,000. The Special Master's fees shall be capped at $400,000. Administrative Costs and Expenses. Settlement Administration fees and costs (exclusive of Special Master fees and costs, and costs and fees associat ed with delays from any appeals) shall be capped at $2,524,859.00. The Court approves Incentive Award payments to Plaintiffs Friedman and Miller of $20,000 each, an incentive award f or Plaintiff Henry-McArthur of $5,000, and Plaintif f Rogers of $2,500. The Court approves the Opt-Out List (ECF No. 217-9 to 217-10) and determines that the Opt-Out List is a complete list of all potential Settlement Class members who have properly and timely requested exclusion from the Settlement Class (see document for further details) (MD JS-6, Case Terminated). (bm)

1

JS-6

2
3
4
5
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

7
8

9 AMY FRIEDMAN, JUDI
MILLER, KRYSTAL HENRY10 MCARTHUR, and LISA
ROGERS on behalf of themselves
11 and all others similarly situated,
Plaintiffs,

12
13

Case No. 2:14-cv-06009-ODW-AGR
ORDER GRANTING FINAL
APPROVAL AND ENTERING FINAL
JUDGMENT
Judge: Hon. Otis D. Wright II

v.

14 GUTHY-RENKER LLC and
WEN BY CHAZ DEAN, INC.,
15
Defendants.
16 ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND FINAL
17

JUDGMENT

18

On October 28, 2016, the Court entered an Order Granting Preliminary

19 Approval of Class Settlement and directing notice be sent to the class. In that same
20 Order, the Court set a Final Approval Hearing for June 5, 2017, for the purpose of
21 determining (1) whether the proposed settlement, on the terms set forth in the
22 Settlement Agreement and Release of Claims (“Agreement”), is fair, reasonable,
23 and adequate, and should be finally approved by the Court; (2) whether, pursuant
24 to the terms of the proposed settlement, a final order should be entered dismissing
25 defendants Guthy-Renker LLC (“Guthy-Renker”) and WEN by Chaz Dean, Inc.
26 (“WEN”) (collectively Guthy-Renker and WEN shall be referred to as
27 “Defendants”) and releasing Defendants from all Released Claims (as defined in
28 the Agreement); (3) whether to award attorneys’ fees and costs to Class Counsel;

1
2
3
4
5
6

and (4) whether to approve the Incentive Awards to Named Plaintiffs Amy
Friedman, Judi Miller, Krystal Henry-McArthur, and Lisa Rogers. The Final
Approval Hearing was held on June 5, 2017, at which time the Court addressed
three issues of concern with the proposed settlement, and further hearing was set
for July 24, 2017. This Order will refer to the Named Plaintiffs and Defendants as
the “Parties” to the Agreement.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

On or before February 10, 2017, Lindsey Buss, Christina Brown, Rosemary
Renz, Melissa Randolph, Kathleen Horn, Tremaine Charles, Pamela Sweeney,
Pamela Behrend, Ellen Bentz, Nadine Lindgren, Patricia Seastrom-Miller, and
Christy Whaley Sparks (collectively, the “Objectors”) filed objections to the
settlement. The Parties filed their respective responses to the objections on May 1,
2017.
The Court, having reviewed the Agreement and all proposed modifications
thereto, and all papers submitted in connection with the proposed settlement, and
having considered all arguments of the Parties’ counsel and the Objectors, finds
that the Parties have evidenced full compliance with the Preliminary Approval
Order, the Parties have addressed the three issues of concern expressed by the
Court on June 5, 2017, and there are substantial and sufficient grounds for entering
this Order Granting Final Approval of Settlement and Final Judgment ("Final
Order and Judgment").
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Court has federal subject matter jurisdiction of this Lawsuit and

jurisdiction to approve the settlement.
2. The Court has personal jurisdiction over the Named Plaintiffs, all
members of the Settlement Class, and the Defendants.
3.

The Court hereby directs the Parties and their counsel to implement

27
28

1
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

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

and consummate the Agreement as modified as follows and directs the
administration of the settlement in accordance with the terms and provisions of the
Agreement as modified as follows, pursuant to the agreement of the Parties and the
approval of this Court:
a. The class period shall be November 1, 2007 to September 19, 2016.
b. Section A(1) – Tier 1 Class-Wide Flat Rate Claims: The last
sentence of the first paragraph of this section is stricken. There
shall be no cap on the amount of funds available to pay Class
Members making Tier 1 claims.
c.

All references in the Settlement Agreement to a $5,000,000 cap or

allocation for Tier 1 claims are stricken or replaced, as illustrated
in the modified and redlined Agreement attached hereto as Exhibit
1 and incorporated by reference into this Order (unless otherwise
noted herein, all terms and phrases used in this Final Order and
Judgment shall have the same meaning as in the Agreement).
d. Section 8: Incentive Awards to Named Plaintiffs. The Parties
suggest that the incentive award for Amy Friedman and Judi Miller
each be $20,000.
e. Section 9: Attorney’s Fees and Costs. Class Counsel fees shall be
$5,500,000.
f. Section 14: Special Master. The Special Master’s fees shall be
capped at $400,000.
g. Section 17: Administrative Costs and Expenses. Settlement
Administration fees and costs (exclusive of Special Master fees
and costs, and costs and fees associated with delays from any
appeals) shall be capped at $2,524,859.00.

27
28

2
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

4.

Pursuant to Federal Rule of Civil Procedure 23, the Court finds that

(a) members of the proposed Settlement Class are so numerous as to make joinder
of all members impracticable; (b) there are questions of law or fact common to the
proposed Settlement Class; (c) the claims of the Named Plaintiffs are typical of the
claims of the proposed Settlement Class; (d) the Named Plaintiffs and Class
Counsel fairly and adequately protected and will continue to protect the interests of
the members of the Settlement Class; (e) questions of law or fact common to the
members of the Settlement Class predominate over any questions affecting only
individual members; and, (f) for settlement purposes, a class action is superior to
other available methods for the fair and efficient adjudication of the Lawsuit and
its resolution.
5.

The Court therefore finds that the requirements for certifying a

settlement class have been met and are appropriate under the circumstances of this
case pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court certifies for
settlement purposes only the following Settlement Class, with the Named Plaintiffs
representing the Settlement Class as follows:

17
18

All purchasers or users of WEN Hair Care Products in
the United States or its territories between November 1,
2007 and September 19, 2016, excluding (a) any such
person who purchased for resale and not for personal or
household use, (b) any such person who signed a release
of any Defendant in exchange for consideration, (c) any
officers, directors or employees, or immediate family
members of the officers, directors or employees, of any
Defendant or any entity in which a Defendant has a
controlling interest, (d) any legal counsel or employee of
legal counsel for any Defendant, and (e) the presiding
Judge in the Lawsuit, as well as the Judge’s staff and
their immediate family members.

19
20
21
22
23
24
25
26
27
28

6.

The Court gives final approval to the settlement as fair, reasonable,
3
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

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

and adequate to the Named Plaintiffs and to each member of the Settlement Class,
and the settlement is in their respective best interests, and is in full compliance
with all requirements of due process and federal law. The settlement is finally
approved in all respects.
7.

Neither the certification of the Settlement Class, nor the settlement of

this Lawsuit, shall be deemed to be a concession by Defendants of the propriety of
the certification of a litigation class, in this Lawsuit or any other lawsuit, and
Defendants shall retain all rights to assert that class certification for purposes other
than settlement is not appropriate. Furthermore, the Agreement shall not be
deemed to be an admission of liability or of unlawful conduct by or on the part of
any of the Defendants or their future, current, or former officers, agents, and
employees, and shall not serve as evidence of any wrongdoing by or on the part of
any of the Defendants or their future, current, or former officers, agents and
employees. However, reference may be made to the settlement and the Agreement
as may be necessary to effectuate the provisions of the Agreement.
8.

The Court finds that the U.S. Mail and Electronic Mail Notice,

Settlement Website Notice, Publication Notice, notice provided to the state
attorneys general and the United States Attorney General and the Notice Plan
implemented pursuant to the Agreement (i) constituted the best practicable notice;
(ii) constituted notice that is reasonably calculated, under the circumstances, to
apprise members of the Settlement Class of the pendency of the Lawsuit, of the
proposed settlement, of their right to object or to exclude themselves from the
proposed settlement and to appear at the Final Approval Hearing, and their right
to seek monetary relief; (iii) were reasonable and constituted due, adequate, and
sufficient notice to all persons entitled to receive notice; and (iv) met all applicable
requirements of due process and federal law.

27
28

4
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

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

9.

The Court finds that Class Counsel and the Named Plaintiffs

adequately represented the Settlement Class for the purpose of entering into and
implementing the Agreement. The Court further finds that Dahl Administration
LLC, the Settlement Administrator, and the Hon. Nan Nolan (Ret.), the Special
Master, have met all requirements of the Court as set forth in the Preliminary
Approval Order and Agreement.
10.

The Court has considered all properly raised objections. After

considering the objections and all briefing and oral argument offered in support of
or in opposition to the same, the Court finds that the objections are without merit.
Accordingly, all objections are hereby overruled.
11.

The Court further finds under Federal Rule of Civil Procedure 54(b)

there is no just reason for delay in entering final judgment, and therefore directs
that the judgment of dismissal shall be final and entered forthwith. Without
affecting the finality of this Final Order and Judgment for purposes of appeal, the
Court, by consent of the Parties, shall retain jurisdiction over the implementation
and enforcement of the Agreement. Except as set forth expressly in this Paragraph,
the case is dismissed with prejudice upon entry of this Final Order and Judgment.
12.

The Court finds that the Named Plaintiffs and each member of the

Settlement Class have conclusively compromised, settled, discharged, dismissed,
and released all Released Claims against Defendants and the other Released
Parties, as set forth in Section 16 of the Agreement.
13.

Accordingly, upon the Effective Date, the Named Plaintiffs and all

members of the Settlement Class who have not been excluded from the Settlement
Class, whether or not they returned a Claim Form within the time and in the
manner provided for, are barred from asserting any Released Claims against
Defendants and the other Released Parties, and any such members of the

27
28

5
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

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

Settlement Class are deemed to have released any and all Released Claims as
against Defendants and the other Released Parties. The settlement and this Final
Order and Judgment are binding on, and shall have res judicata and preclusive
effect in any pending and future lawsuits or other proceedings encompassed by the
Released Claims maintained by or on behalf of the Named Plaintiffs and all other
members of the Settlement Class.
14.

The Court approves Incentive Award payments to Plaintiffs Friedman

and Miller of $20,000 each, an incentive award for Plaintiff Henry-McArthur of
$5,000, and Plaintiff Rogers of $2,500.
15.

The Court, in light of the substantial work, considerable expense

expended, and substantial risks associated with prosecuting this Lawsuit, further
awards Class Counsel attorneys’ fees and costs in the amount of $5,500,000, which
equates to less than 21% of the Fund, and also approves the payment of all
Administrative Costs and Expenses consistent with the terms of the Agreement.
16.

To the extent that there are any residual funds left in the Fund at the

end of the claim period, those residual funds will revert to cy pres, as described in
Section 6 of the Agreement. The Parties select the American Academy of
Dermatology, Inc. (“AAD”) as cy pres recipient, and the Court directs that all
residual funds shall revert to AAD and shall be earmarked for scalp and hairrelated research and issues.
17.

This order and judgment shall bar all members of the Settlement

Class who have not been excluded from the Settlement Class from (i) filing,
commencing, prosecuting, intervening in, or participating as plaintiff, claimant, or
class member in any other lawsuit or administrative, regulatory, arbitration, or
other proceeding in any jurisdiction based on, relating to, or arising out of the
claims, assertions and causes of action raised in the Lawsuit and/or the Released

27
28

6
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Claims, or the facts and circumstances relating to any of them; and (ii) from filing,
commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration, or
other proceeding as a class action on behalf of members of the Settlement Class
who have not been excluded from the Settlement Class (including by seeking to
amend a pending complaint to include class allegations or seeking class
certification in a pending action), based on, relating to, or arising out the claims,
assertions and causes of action raised in the Lawsuit and/or the Released Claims,
or the facts and circumstances relating to any of them.
18.

The Court approves the Opt-Out List (ECF No. 217-9 to 217-10)

and determines that the Opt-Out List is a complete list of all potential Settlement
Class members who have properly and timely requested exclusion from the
Settlement Class and who therefore shall neither share in nor be bound by this
Final Order and Judgment. Notwithstanding the foregoing, the Court in its
discretion may grant requests by other class members to opt out of the settlement.

15
16
17 DATED:
18
19

August 21, 2017.

______________________________
HON. OTIS D. WRIGHT II
United States District Judge

20
21
22
23
24
25
26
27
28

7
ORDER GRANTING FINAL APPROVAL AND ENTERING FINAL JUDGMENT