Dei Rossi, et al v. Whirlpool Corporation, et al
Filing
176
ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT signed by District Judge Troy L. Nunley on 6/27/2016 GRANTING 173 Preliminary approval to the Settlement provided for in the Settlement Agreement; all defined terms in this Order shall have the same definitions and meanings as those set forth in the Agreement; Fairness Hearing set for 5/18/2017 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KYLE DEI ROSSI and MARK
LINTHICUM, on behalf of themselves
and those similarly situated,
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Plaintiffs,
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Case No: 2:12-CV-00125-TLN-CKD
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
vs.
WHIRLPOOL CORPORATION,
Defendant.
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On February 5, 2016, Plaintiffs Kyle Dei Rossi and Mark Linthicum (“Plaintiffs”), on behalf
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of themselves and the Settlement Class, as defined below, and Defendant Whirlpool Corporation
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(“Whirlpool”) (together, the “Parties”) executed a Settlement Agreement and Release of All Claims
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(“Agreement”). Pursuant to the Agreement, the Parties have jointly moved for entry of an order
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granting preliminary approval to the Settlement provided for in the Settlement Agreement (the
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“Settlement”). All defined terms in this Order (that is, all capitalized words or phrases) shall have
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the same definitions and meanings as those set forth in the Agreement.
Case No. 2:12-CV-00125-TLN-CKD
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Having reviewed the Agreement and having considered the Parties’ submissions in support
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of preliminary approval of the Settlement, the Court now FINDS, CONCLUDES, AND ORDERS as
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follows:
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I.
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CERTIFICATION OF THE SETTLEMENT CLASS
This Court takes note of its prior certification order of April 28, 2015, in which this Court
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certified a class of all persons who purchased KitchenAid-brand KSRG25FV** and KSRS25RV**
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model refrigerators in California. In doing so, this Court considered the allegations, information,
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arguments, and authorities provided by the Parties and found as follows: that the requirements of
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numerosity, commonality, typicality, and adequacy had been established for a California class; that
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the California class was ascertainable; and that questions of law and fact common to all Class
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Members predominated over questions affecting only individual members. For purposes of
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implementing this Agreement, and for no other purpose, this Court notes that Whirlpool has
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conditionally withdrawn its objections to the April 28, 2015 Order, and it has stipulated that it will
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not challenge, appeal, or otherwise oppose that prior order certifying the California class.
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The Agreement settles all Released Claims, as defined below, that have been or could have
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been brought on behalf of that class, here called the Settlement Class, defined to mean all residents
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of the State of California who (a) bought a new Class Refrigerator, (b) acquired a Class Refrigerator
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as part of the purchase or remodel of a home, or (c) received as a gift, from a donor meeting the
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requirements of either subsection (a) or subsection (b), a new Class Refrigerator not used by the
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donor or by anyone else after the donor bought or acquired the Class Refrigerator and before the
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donor gave the Class Refrigerator to the California resident.
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The Court appoints Plaintiffs Kyle Dei Rossi and Mark Linthicum as the Class
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Representatives of the Settlement Class. The Court appoints Scott A. Bursor, L. Timothy Fisher,
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and Annick M. Persinger of the law firm Bursor & Fisher, P.A., and Antonio Vozzolo of the law
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firm Faruqi & Faruqi, LLP as Class Counsel for the Settlement Class. The Court also appoints
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Kurtzman Carson Consultants, LLC (“KCC”) as Settlement Administrator.
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If for any reason the Agreement does not become effective, Whirlpool’s conditional
withdrawal of its objections shall be null and void in its entirety, the Parties shall return to their
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ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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respective positions in this Action as those positions existed immediately before the Parties executed
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the Agreement, and nothing stated in the Agreement or in this Order shall be deemed an admission
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or waiver of any kind by any of the Parties or used as evidence against, or over the objection of, any
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of the Parties for any purpose in this Action or in any other action or proceeding of any kind.
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II.
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PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT
Whirlpool has at all times disputed, and continues to dispute, Plaintiffs’ allegations in this
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Action, denies any liability for any of the claims that have or could have been alleged by Plaintiffs or
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other members of the Settlement Class, and maintains that the Class Refrigerators were, at all
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relevant times, compliant with the Energy Star program’s standards for energy efficiency and
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marketed in accordance with the Energy Star program’s requirements.
The Settlement requires Whirlpool to provide specified compensation to each Class Member
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who meets certain eligibility requirements and who timely submits a valid, completed Claim Form,
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with or without specified supporting documentation depending on whether the Class Member is a
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Prequalified Class Member or a Non-Prequalified Class Member, as set forth in the Agreement. All
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Class Members are entitled to elect to receive either a $55 cash payment, less any voluntary payment
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paid by Whirlpool through Whirlpool’s Voluntary Customer Satisfaction Program, or a 10% rebate
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of the purchase price of a New KitchenAid-brand Major Appliance, without any cap as to the
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maximum amount of the rebate.
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On a preliminary basis, therefore, taking into account (1) the defenses asserted by Whirlpool,
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(2) the risks to the members of the Settlement Class that Whirlpool would successfully defend
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against claims arising out of the facts and legal theories pled and asserted in this case, whether
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litigated by members of the Settlement Class themselves or on their behalf in a class action, and (3)
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the length of time that would be required for members of the Settlement Class, or any group of
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members of the Settlement Class, to obtain a final judgment through one or more trials and appeals,
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the Settlement appears fair, reasonable, and adequate. Further, the Parties reached the Settlement
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Agreement without reaching any agreement regarding the reasonable amount of attorneys’ fees and
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costs to be awarded to Class Counsel, which helps to confirm that the Settlement is the product of an
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arms-length negotiation process. For all these reasons, the Settlement falls within the appropriate
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ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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range of possible approval and does not appear in any way to be the product of collusion.
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Accordingly, it is ORDERED and ADJUDGED that the Agreement and corresponding
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Settlement are hereby preliminarily approved.
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III.
APPROVAL OF THE PREQUALIFIED NOTICE, THE “FAQ,” THE
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PUBLICATION NOTICE, THE CLAIM FORM, AND THE PLANS FOR
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DISTRIBUTION AND DISSEMINATION OF THE SETTLEMENT NOTICES
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As provided for in the Agreement, the Parties have submitted: (i) a proposed Prequalified
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Notice to be mailed and emailed to Prequalified Class Members; (ii) a plan for distributing the
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Prequalified Notice to Prequalified Class Members; (iii) a proposed long-form settlement notice in
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the form of Frequently Asked Questions or “FAQ,” which will be published on the Settlement
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Website and mailed to those Class Members who request a hardcopy of the Claim Form; (iv) a
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proposed Publication Notice; (v) a plan for the Publication Notice’s publication to provide additional
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notice to the Settlement Class, if necessary; (vi) a proposed Claim Form; (vii) a plan for allowing
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Class Members to file Claim Forms by email, U.S. Mail, or through the Settlement Website and for
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mailing a Claim Form to Class Members who contact the Settlement Administrator by telephone,
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mail, or email requesting a Claim Form be sent to them; and (viii) a plan for establishing a
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Settlement Website, with the FAQ and other information and documents that the Parties jointly
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agree to post concerning the nature of the case and the status of the Settlement, including a copy of
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the Claim Form, information relating to relevant deadlines, and a copy of the Settlement Agreement
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and orders of the Court.
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The proposed plan for distributing and publishing the Prequalified Notice, FAQ, Publication
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Notice, Claim Form, and Settlement Website appears reasonably likely to notify members of the
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Settlement Class of the Settlement and there appears to be no additional mode of distribution that
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would be reasonably likely to notify members of the Settlement Class who will not receive notice
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pursuant to the proposed distribution plans. The proposed plan also satisfies the notice requirements
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of Federal Rule of Civil Procedure 23(e) and all applicable federal law.
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The Prequalified Notice, FAQ, Publication Notice, and Settlement Website will fairly,
accurately, and reasonably inform members of the Settlement Class of (1) appropriate information
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about the nature of this litigation and the essential terms of the Agreement; (2) appropriate
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information about how to obtain additional information regarding this matter and the Agreement; (3)
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appropriate information about, and means for obtaining, a Claim Form; (4) appropriate information
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about, and means for submitting, a Claim Form for compensation under the Settlement; and (5)
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appropriate information about how to challenge, or exclude themselves from, the Settlement, if they
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wish to do so. The notices and Settlement Website also fairly and adequately inform members of the
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Settlement Class that failure to complete and submit a claim in the manner and time specified in the
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notices, Settlement Website, and Claim Form shall constitute a waiver of any right to obtain any
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compensation under the Settlement. The notices and Settlement Website also fairly and adequately
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inform members of the Settlement Class that if they do not comply with the specified procedures and
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the deadline for objections, they will lose any opportunity to have any objection considered at the
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Fairness Hearing or otherwise to contest certification of the Settlement Class or approval of the
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Settlement or to appeal from any order or judgment entered by the Court in connection with the
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Settlement.
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The proposed Claim Form provided for in the Agreement fairly, accurately, and reasonably
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informs members of the Settlement Class of (1) appropriate information about the nature of the
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litigation and the essential terms of the Agreement; (2) appropriate information about, and means
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for, submitting a claim for compensation under the Settlement; and (3) the fact that failure to
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complete and submit a Claim Form, in the manner and time specified in the notices, Settlement
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Website, and Claim Form, shall constitute a waiver of any right to obtain any compensation under
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the Settlement. The proposed plan for publishing the Claim Form on the Settlement Website and for
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mailing or emailing the Claim Form to Class Members who contact the Settlement Administrator by
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telephone, mail, or email requesting a Claim Form be sent to them is fair and reasonable.
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The Court, having reviewed the proposed Prequalified Notice, FAQ, Publication Notice,
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Claim Form, and the proposed plan for distributing and disseminating each of them, finds and
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concludes that the proposed plan for distributing and disseminating each of them will provide the
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best notice practicable under the circumstances and satisfies all requirements of federal and
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California laws and due process. Accordingly, the Court hereby ORDERS as follows:
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A.
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The form and content of the proposed Prequalified Notice, FAQ, Publication Notice,
and Claim Form are hereby approved.
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Promptly following the entry of this Order, the Parties and Settlement Administrator
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shall prepare final versions of (i) the Prequalified Notice, (ii) FAQ, (iii) Publication
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Notice, and (iv) Claim Form, incorporating into each of them the Fairness Hearing
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date and deadlines set forth in paragraph IV of this Order.
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C.
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Within 10 days of the entry of this Order, Whirlpool shall comply with the notice
requirements of the Class Action Fairness Act, 28 U.S.C. § 1715.
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Within 70 days after the Court’s entry of this Order, Whirlpool will file with the
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Court a declaration of compliance with this plan of notice, including a statement on
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the number of persons to whom the Prequalified Notice was mailed.
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E.
Kurtzman Carson Consultants, LLC is appointed as the Settlement Administrator.
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F.
The Settlement Administrator shall perform the following functions in accordance
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with the Settlement Agreement, this Order, and subsequent orders that may be entered
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by this Court in this case:
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1.
Within 60 days after entry of this Order, mail or email the Prequalified
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Notices to each address of record for identifiable members of the Settlement
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Class and to all members of the Settlement Class for whom valid email
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addresses are known to Whirlpool;
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2.
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Perform a national change of address search and forward notices that are
returned by the U.S. Postal Service with a forwarding address;
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Create a Settlement Website that will include all necessary and pertinent
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information for Class Members, including Claim Forms, a copy of the FAQ,
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and information relating to relevant deadlines;
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4.
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Within 65 days after entry of this Order, cause to be published the Publication
Notice according to the proposed notice plan;
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Accept online/electronic as well as paper Claim Forms;
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6.
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Allow Class Members to electronically submit documents supporting their
Claim Forms;
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Receive, evaluate, and either approve completed Claim Forms as meeting the
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requirements of the Settlement Agreement or disapprove as failing to meet
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those requirements sent by Persons seeking to receive compensation;
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8.
30 days before mailing Notices of Claim Denial, provide to Whirlpool’s
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counsel and Class Counsel (i) a list of the names and addresses of all Class
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Members who have submitted Claim Forms and whose Claim Forms the
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Settlement Administrator has determined to be Valid Claims, by category of
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benefit; and (ii) a separate list of the names and addresses of all Persons who
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have submitted Claim Forms and whose Claim Forms the Settlement
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Administrator has determined not to be Valid Claims, by category of benefit.
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Class Counsel shall then have an opportunity to review the Notices of Claim
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Denial and request a meet and confer with Whirlpool’s counsel should they
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decide to challenge any of the Notices of Claim Denial; in the event Class
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Counsel challenges a Notice of Claim Denial, that Notice shall not be sent to
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the Claimant until Class Counsel and Whirlpool’s counsel meet and confer to
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arrive at a resolution;
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9.
Send, by first-class United States Mail, to each Person who has submitted a
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Claim Form that the Settlement Administrator has determined not to be a
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Valid Claim, and which has not been challenged by Class Counsel, a Notice
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of Claim Denial;
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Process requests for exclusion from the Settlement;
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Process objections to the Settlement;
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12.
Provide to Class Counsel and Whirlpool’s counsel periodic status reports
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regarding claims; and
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13.
Within 30 days after the payment of all Valid Claims by the Settlement
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Administrator, provide to Whirlpool’s counsel and Class Counsel a statement
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of the total number of claims submitted (in total and by category of benefit),
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the total number of claims adjudicated as Valid Claims (in total and by
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category of benefit), and the total dollar amount paid to Class Members (in
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total and by category of benefit).
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IV.
PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT
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A.
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The Court hereby schedules a Fairness Hearing on May 18, 2017, at 2:00pm, at the Robert
Fairness Hearing
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T. Matsui United States Courthouse, 501 I Street, Sacramento, California 95814, Courtroom 2, 15th
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Floor, to determine whether the appointments of Class Representatives, the appointment of Class
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Counsel, the Agreement, and the Settlement should receive final approval. At that time, the Court
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also will consider any request that may be made by Class Counsel for an award of attorneys’ fees
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and reimbursement of litigation expenses to Class Counsel and for service awards to each Plaintiff,
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all in accordance with the terms of the Agreement.
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B.
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Deadline for Members of the Settlement Class to Request Exclusion from the
Settlement
Members of the Settlement Class who wish to be excluded from the Settlement must mail by
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first-class United States Mail or email their requests for exclusion to the Settlement Administrator,
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postmarked or timestamped by no later than 255 days after entry of this Order.
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C.
Deadline for Filing Objections to Matters to be Heard at the Fairness Hearing
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and for Filing Requests to Appear and Present Argument or Evidence
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All objections to designating Plaintiffs as Class Representatives, the appointment of Class
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Counsel, the Settlement, the Agreement, or the amount of fees and expenses that Class Counsel may
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apply for at the Fairness Hearing, shall be made in writing and, no later than 255 days after entry of
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this Order, filed with this Court, at the Robert T. Matsui United States Courthouse, 501 I Street,
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Sacramento, California 95814, Courtroom 2, 15th Floor. Any papers not filed and served in the
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prescribed manner and time will not be considered at the Fairness Hearing, and all objections not
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made in the prescribed manner and time shall be deemed waived.
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All persons wishing to appear at the Fairness Hearing, either in person or by counsel, for the
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purpose of objecting to any aspect of the designation of Class Representatives as representatives of
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the Settlement Class, the appointment of Class Counsel, the Settlement, the Agreement, or the
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amount of fees and expenses or service awards that Class Counsel apply for, must file with the
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Court, no later than 255 days after entry of this Order, a notice of their intention to appear setting
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forth the basis of their objections and summarizing the nature and source of any evidence they intend
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to present at the Fairness Hearing.
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D.
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Deadline for Submitting Claim Forms
Class members will have up to 180 days after the Notice Date to submit a Claim Form for
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benefits.
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V.
CLASS COUNSEL’S APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES
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AND COSTS AND FOR SERVICE AWARDS TO PLAINTIFFS
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Class Counsel will move the Court for entry of a separate order approving attorneys’ fees and
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reimbursement of litigation expenses to Class Counsel in an amount to be agreed by the Parties or,
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absent agreement, to be determined by the Court. Class Counsel also will move the Court to
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approve service awards to each Class Representative. Whirlpool shall pay any final awards to Class
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Counsel and Plaintiffs separate from the benefits to Class Members and in accordance with the
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Settlement Agreement.
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VI.
ABSENCE OF ANY ADMISSION; DENIAL OF ANY WRONGFUL ACT OR
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OMISSION AND OF ANY LIABILITY
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The Parties entered into the Settlement Agreement solely for the purpose of settling disputed
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claims. Whirlpool has at all times denied, and continues to deny, any wrongful act or omission
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alleged by Plaintiffs in this action and any liability of any sort to Plaintiffs or any member of the
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Settlement Class. Nothing contained in the Settlement Agreement, in the documents relating to the
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Settlement Agreement, or in this Order, shall be construed, deemed, or offered as an admission by
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any of the Parties, or by any member of the Settlement Class, for any purpose in any judicial or
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administrative action or proceeding, whether in law or in equity. In entering this Order with this
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provision and other limiting provisions, this Court specifically refers to and invokes the Full Faith
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and Credit Clause of the United States Constitution and the doctrine of comity and requests that any
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court in any other jurisdiction reviewing, construing, or applying this Order implement and enforce
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each such limiting provision.
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IT IS SO ORDERED.
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Dated: June 27, 2016
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Troy L. Nunley
United States District Judge
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