Morales et al v. Unilever United States, Inc.

Filing 74

MEMORANDUM AND ORDER RE: FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND ATTORNEYS' FEES signed by Senior Judge William B. Shubb on 10/18/16. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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ALBA MORALES; LANIE COHEN;
LINDA CLAYMAN; and KENNETH
DREW, on behalf of themselves
and all other similarly
situated,

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MEMORANDUM AND ORDER RE: FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT AND ATTORNEYS’ FEES

Plaintiffs,

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CIV. NO.: 2:13-2213 WBS EFB

v.
CONOPCO, INC., d/b/a
Unilever,
Defendant.

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----oo0oo----

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Plaintiffs Alba Morales, Lanie Cohen, Linda Clayman,

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and Kenneth Drew brought this putative class action against

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defendant Conopco, Inc., d/b/a Unilever, asserting claims arising

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out of defendant’s alleged labeling of certain hair care products

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as “TRESemmé Naturals” despite them containing synthetic

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ingredients.

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for final approval of the class action settlement and attorneys’

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fees.

Presently before the court are plaintiffs’ motions

(Docket Nos. 66-67.)
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I.

Factual and Procedural Background

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Defendant is a multinational consumer goods company

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whose products include food, beverages, cleaning agents, and

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personal care products, including the TRESemmé brand.

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Plaintiffs contend that defendant violated California’s

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Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et

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seq., California’s Consumer Legal Remedies Act (“CLRA”), Cal.

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Civ. Code § 1750 et seq., and various other state consumer

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protection laws.

(See Second Amended Complaint (Docket No. 30).)

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Plaintiffs brought this lawsuit on behalf of a putative class of

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consumers in the United States who have purchased TRESemmé

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Naturals products.

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Agreement”) at 2-3 (Docket No. 66-3).)

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case for nearly two years before reaching a settlement agreement

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on February 5, 2016 before mediator Jonathan Marks.

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100.)

(Stipulation of Settlement (“Settlement
The parties litigated the

(Id. ¶¶ 3-

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After reaching settlement terms, the parties then filed

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a motion for preliminary approval of a class action settlement on

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May 27, 2016.

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preliminary approval of the settlement, the court provisionally

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certified the following class: “All individuals in the United

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States who purchased the following TRESemmé Naturals products:

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(a) Nourishing Moisture Shampoo; (b) Nourishing Moisture

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Conditioner; (c) Radiant Volume Shampoo; (d) Radiant Volume

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Conditioner; (e) Vibrantly Smooth Shampoo; and (f) Vibrantly

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Smooth Conditioner.”

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Cohen, Linda Clayman, and Kenneth Drew as class representatives,

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the law firm of Kindall & Raabe, LLP as class counsel, the law

(Docket No. 57.)

In its Order granting

The court appointed Alba Morales, Lanie

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firm of Bramson, Plutzik, Mahler & Birkhaeuser, LLP as liaison

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counsel, and KCC Class Action Service LLC as claims

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administrator.

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opt-out form, and notice of settlement; directed the claims

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administrator to publish notice pursuant to the action by August

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11, 2016; directed class members to file objections, requests for

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exclusion, and claim forms by September 19, 2016; directed

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plaintiffs to file a motion for attorneys’ fees by September 12,

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2016; and directed parties to file briefs in support of final

The court also approved the class opt-in form,

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approval of the settlement by September 12, 2016.

The court set

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the final fairness hearing for October 17, 2016, at 1:30 p.m.

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After conducting the final fairness hearing and

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carefully considering the settlement terms, the court now

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addresses whether this class action should receive final

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certification; whether the proposed settlement is fair,

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reasonable, and adequate; and whether class counsel’s request for

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attorneys’ fees and costs should be granted.

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II.

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Discussion
The Ninth Circuit has declared that a strong judicial

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policy favors settlement of class actions.

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City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

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Nevertheless, where, as here, “the parties reach a settlement

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agreement prior to class certification, courts must peruse the

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proposed compromise to ratify both [1] the propriety of the

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certification and [2] the fairness of the settlement.”

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Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003).

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Class Plaintiffs v.

Staton v.

The first part of the inquiry requires the court “pay
‘undiluted, even heightened, attention’ to class certification
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requirements” because, unlike in a fully litigated class action

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suit, the court “will lack the opportunity . . . to adjust the

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class, informed by the proceedings as they unfold.”

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Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see Hanlon v.

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Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

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second stage, the court holds a fairness hearing where the court

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entertains any putative class member’s objections to (1) the

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treatment of this litigation as a class action and (2) the terms

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of the settlement.

Amchem

In the

See Diaz v. Tr. Territory of Pac. Islands,

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876 F.2d 1401, 1408 (9th Cir. 1989) (holding that a court is

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required to hold a hearing prior to final approval of a dismissal

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or compromise of class claims to “inquire into the terms and

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circumstances of any dismissal or compromise to ensure it is not

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collusive or prejudicial”).

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must reach a final determination as to whether the court should

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allow the parties to settle the class action pursuant to the

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terms agreed upon.

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F.R.D. 523, 525 (C.D. Cal. 2004).

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A.

Following such a hearing, the court

See Telecomms. Coop. v. DIRECTV, Inc., 221

Class Certification

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A class action will be certified only if it meets the

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four prerequisites identified in Rule 23(a) and fits within one

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of the three subdivisions of Rule 23(b).

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(b).

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whether the moving party has satisfied each Rule 23 requirement,

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the court must conduct a rigorous inquiry before certifying a

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class.

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Fed. R. Civ. P. 23(a)-

Although a district court has discretion in determining

See Califano v. Yamasaki, 442 U.S. 682, 701 (1979).
1.

Rule 23(a) Requirements

Rule 23(a) restricts class actions to cases where:
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(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.

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Fed. R. Civ. P. 23(a).

In the court’s Order granting preliminary

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approval of the settlement, the court found the putative class

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satisfied the Rule 23(a) requirements.

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unaware of any changes that would alter its Rule 23(a) analysis,

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and because the parties indicated that they were unaware of any

Since the court is

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such developments, the court finds that the class definition

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proposed by plaintiffs meets the requirements of Rule 23(a).
2.

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Rule 23(b) Requirements

An action that meets all the prerequisites of Rule

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23(a) may be certified as a class action only if it also

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satisfies the requirements of one of the three subdivisions of

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Rule 23(b).

Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th

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Cir. 2013).

Plaintiffs seeks certification under Rule 23(b)(3),

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which provides that a class action may be maintained only if (1)

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“the court finds that questions of law or fact common to class

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members predominate over questions affecting only individual

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members” and (2) “a class action is superior to other available

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methods for fairly and efficiently adjudicating the controversy.”

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Fed. R. Civ. P. 23(b)(3).

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In its Order granting preliminary approval of the

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settlement, the court found that both prerequisites of Rule

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23(b)(3) were satisfied.

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that would affect this conclusion, and the parties indicated that

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they were aware of no such developments.

The court is unaware of any changes

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Accordingly, since the

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settlement class satisfies both Rule 23(a) and 23(b)(3), the

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court will grant final class action certification.

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3.

Rule 23(c)(2) Notice Requirements

If the court certifies a class under Rule 23(b)(3), it

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“must direct to class members the best notice that is practicable

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under the circumstances, including individual notice to all

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members who can be identified through reasonable effort.”

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R. Civ. P. 23(c)(2)(B).

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content of a proposed notice.

Fed.

Rule 23(c)(2) governs both the form and
See Ravens v. Iftikar, 174 F.R.D.

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651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin,

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417 U.S. 156, 172-77 (1974)).

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“reasonably certain to inform the absent members of the plaintiff

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class,” actual notice is not required.

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1449, 1454 (9th Cir. 1994) (citation omitted).

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Although that notice must be

Silber v. Mabon, 18 F.3d

As provided by the Settlement Agreement, KCC

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administered the claims process.

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Because defendant does not have records showing who purchased its

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products, KCC used class demographics to develop a notice plan

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that it estimated would reach over 70% of the class members.

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(Id. Ex. D at 10.)

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notice plan reached over 70% of the class members.

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Decl. Ex. 2 (“Geraci Decl.”) ¶ 9 (Docket No. 66-4).)

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(Settlement Agreement at 2.)

Based on its research, KCC believes the
(Kindall

On July 25, 2016, KCC launched a dedicated settlement

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website and toll-free line that class members could call for

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information.

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Notice, Complaint, the Settlement Agreement, the Plan of

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Allocation, and the court’s Preliminary Approval Order.

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It also had a page for class members to file claims online or

(Id. ¶ 5.)

The website included the Settlement

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(Id.)

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print out claim forms to submit by mail.

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150 million banner advertisements on websites targeted to adults

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over 18, with 105 million banner advertisements targeted to women

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over 18.

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2016, and lasted approximately one month.

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Approval of Class Action Settlement (“Pls.’ Mot.”) at 5:2-3

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(Docket No. 66); Geraci Decl. ¶ 5.)

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embedded link to the settlement website.

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KCC also placed class notices in the August 22, 2016, edition of

(Id. ¶ 6.)

(Id.)

KCC placed over

The advertisement campaign began July 26,
(Pls.’ Mot. for Final

Each banner included an
(Geraci Decl. ¶ 6.)

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People magazine and the online and print versions of the

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Sacramento Bee on July 26, 2016, August 2, 2016, August 9, 2016,

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and August 16, 2016.

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(Id. ¶¶ 7-8.)

As of September 6, 2016, there have been 249,742

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website visitor sessions and 253 people have called the toll-free

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number.

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by purchasers of TRESemmé Naturals products.1

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(Id. ¶ 10.)

This has resulted in 179,676 claims filed
(Id. ¶ 11.)

The notice explains the proceedings; defines the scope

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of the class; informs the class member of the claim form

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requirement and the binding effect of the class action; describes

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the procedure for opting out and objecting; provides the time and

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date of the fairness hearing; and directs interested parties to

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more detailed information on the settlement website.

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Agreement Ex. E.)

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recover for the purchase of up to ten bottles per household

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without providing proof of purchase and can recover for more than

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ten bottles if they submit adequate proof of a greater number of

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class.

(Settlement

The notice makes clear that class members may

This constitutes approximately seven percent of the
(See Docket No. 69 at 2:15.)
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purchases with their claim forms.

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notice therefore satisfies Rule 23(c)(2)(B).

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23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen. Elec., 361

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F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it

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generally describes the terms of the settlement in sufficient

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detail to alert those with adverse viewpoints to investigate and

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to come forward and be heard.” (citation omitted)).

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B.

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(Id.)

The content of the
See Fed. R. Civ. P.

Rule 23(e): Fairness, Adequacy, and Reasonableness
of Proposed Settlement

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Having determined that class treatment is warranted,

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the court must now address whether the terms of the parties’

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settlement appear fair, adequate, and reasonable.

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this analysis, the court must balance several factors, including:

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the strength of the plaintiffs’ case; the risk,
expense, complexity, and likely duration of further
litigation; the risk of maintaining class action status
throughout the trial; the amount offered in settlement;
the extent of discovery completed and the stage of the
proceedings; the experience and views of counsel; the
presence of a governmental participant; and the
reaction of the class members to the proposed
settlement.

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In conducting

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Hanlon, 150 F.3d at 1026.

But see In re Bluetooth Headset Prods.

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Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (“The factors in

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a court’s fairness assessment will naturally vary from case to

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case.”).

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1.

Strength of Plaintiffs’ Case

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An important consideration is the strength of

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plaintiffs’ case on the merits compared to the settlement amount

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offered.

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required to reach an ultimate conclusion of the merits “for it is

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the very uncertainty of outcome in litigation and avoidance of

DIRECTV, 221 F.R.D. at 526.

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The court, however, is not

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wastefulness and expensive litigation that induce consensual

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settlements.”

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& County of S.F., 688 F.2d 615, 625 (9th Cir. 1982).

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Officers for Justice v. Civ. Serv. Comm’n of City

Plaintiffs’ claims that defendant violated various

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state consumer protection laws survived defendant’s motion to

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dismiss, indicating plaintiffs’ claims as alleged may have merit.

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(See April 9, 2014 Order (Docket No. 27).)

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discovery has not commenced, it is unclear whether a reasonable

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consumer would find defendant’s products were deceptive and

However, since expert

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whether a reasonable consumer paid a premium for the TRESemmé

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Naturals label.

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has ruled on is the motion to dismiss the First Amended

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Complaint.

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assessing the merits of plaintiffs’ case.

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will not consider this factor for settlement purposes.

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This limited record precludes the court from

2.

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Further, the only substantive motion the court

Accordingly, the court

Risk, Expense, Complexity, and Likely Duration of
Further Litigation

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Although the court cannot assess the strength of

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plaintiffs’ case from the record, the presence of substantially

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disputed legal issues does serve to heighten the risk and

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uncertainty that both parties would face if this action went to

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trial.

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whether reasonable consumers would be deceived by the labels.

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(See April 9, 2014 Order at 14:14-19:20 (describing dispute

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between plaintiffs and defendant over the reasonable consumer

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test).)

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See Hanlon, 150 F.3d at 1026.

The parties disagree over

Plaintiffs believe that the product labels are
deceptive and would deceive reasonable consumers.
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(Pls.’ Mot. at

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13.)

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establish whether defendant’s representations on its products

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would deceive a reasonable consumer and whether these

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representations were material to a reasonable consumer.

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Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025-26 (9th

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Cir. 2008) (holding individual’s belief of deception was

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insufficient to establish a reasonable consumer would be deceived

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under the UCL).

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testimony to determine whether a reasonable consumer would be

However, their individual testimony is insufficient to

See

This would lead to competing surveys and expert

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deceived.

The risk of this dispute weighs in favor of finding

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this settlement fair.

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08102 MMM RZX, 2013 WL 6531177, at *13 (C.D. Cal. Nov. 23, 2013)

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(“The fact that this issue, which is at the heart of plaintiffs’

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case, would have been the subject of competing expert testimony

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suggests that plaintiffs’ ability to prove liability was somewhat

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unclear; this favors a finding that the settlement is fair.”).

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Assuming the case progressed further, the complexity

See Weeks v. Kellogg Co., Civ. No. 09-

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and duration of the litigation would be considerable.

With a

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current stipulated class of over 179,000 members, completing

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discovery in this case would be extremely costly.

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No. 69 at 2:15.)

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include a motion for class certification and a series of

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dispositive motions.

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plaintiffs filed the original Complaint, yet only one dispositive

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motion has been resolved by the court and expert discovery has

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not commenced.

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litigation and likely expense and duration of further litigation

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favor approval of the settlement.

(See Docket

Further litigation of this action would likely

It has been nearly three years since

Accordingly, the court finds that the risk of

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3.

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Risk of Maintaining Class-Action Status Throughout
Trial

Defendant has stipulated to certification of a

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nationwide class for settlement purposes only.

(Settlement

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Agreement ¶ 44.)

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reason, class certification will be vacated.

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Order at 21:27-22:1 (Docket No. 63).)

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file a motion for class certification, which defendant would

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almost certainly oppose.

If the Settlement Agreement terminates for any
(See July 12, 2016

Plaintiffs would have to

Plaintiffs believe they would be able

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to certify a class and maintain it throughout the litigation, but

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this is not guaranteed.

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court is unaware of any foreseeable difficulty the class might

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have in maintaining the certification at trial.

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certification is not guaranteed at trial, this factor weighs in

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favor of accepting the final class action settlement.

If the class was certified, however, the

Since class

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4.

Amount Offered in Settlement

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“In assessing the consideration obtained by the class

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members in a class action settlement, it is the complete package

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taken as a whole, rather than the individual component parts,

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that must be examined for overall fairness.”

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Zamora, 303 F.R.D. 356, 370 (E.D. Cal. 2014).

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whether a settlement agreement is substantively fair to the

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class, the court must balance the value of expected recovery

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against the value of the settlement offer.

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Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007).

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This inquiry may involve consideration of the uncertainty class

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members would face if the case were litigated to trial.

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Ontiveros, 303 F.R.D. at 370-71.
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Ontiveros v.
In determining

See In re Tableware

See

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The settlement achieved a “key goal” of the litigation

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in that it resulted in the discontinuance of the TRESemmé

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Naturals products.

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goal would be achieved regardless of whether the settlement is

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approved.

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brought and litigated this suit for nearly three years.

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(Kindall Decl. ¶ 16 (Docket No. 66-2).)

This

However, plaintiffs achieved this goal because they

The settlement also provides that defendant pay $3.25

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million into an escrow account to pay for class claims, after

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subtracting expenses, costs, and attorneys’ fees.

(Settlement

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Agreement ¶ 15.)

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settlement amount was on the low-end of the expected recovery

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range.

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maximum amount of attorneys’ fees, litigation expenses, and costs

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of Notice and Claims Administration, approximately $1.75 million

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would remain in the class claims account.

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In its previous Order, the court found the

(July 12, 2016 Order at 18:2-3.)

After subtracting the

(Kindall Decl. ¶ 29.)

Defendant’s line of products only cost several dollars,

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and plaintiffs’ analysis found the premium paid for a “Naturals”

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product was approximately sixty-eight cents per product.

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(Kindall Decl. ¶ 17.)

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of defendant’s Naturals products filed claims under the

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settlement with an aggregate claims value of $6,964,930.

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No. 69 at 2:15.)

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class counsel states each class member would receive $1.26 per

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product purchased, up to ten products.2

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26
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28

2

As of October 6, 2016, 179,676 purchasers

(Docket

Based on the value of claims made to date,

(Id. at 3:16-20.)

This

The $1.26 per product recovery was calculated by
dividing the estimated $1.75 million to be distributed to class
members after fees, costs, and expenses by the estimated $7
million aggregate value of the class members’ claims and then
multiplying that number by the $5 per product limit. Class
counsel provided an updated calculation of $1.14 per product at
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is almost double the estimated sixty-eight cents premium each

2

consumer paid for each Naturals product.

3

Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL

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5539863, at *2 (9th Cir. Sept. 30, 2016) (“[A] plaintiff cannot

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be awarded a full refund unless the product she purchased was

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worthless.”).

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receive the same per-product amount if they provide proof of

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purchase.

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amount, facilitating such small claims is “[t]he policy at the

(Id. at 3:19-20); see

Class members claiming more than ten products will

(Settlement Agreement ¶ 29.)

While this is a nominal

10

very core of the class action mechanism.”

11

617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th

12

Cir. 1997)).

13

Windsor, 521 U.S. at

This recovery weighs in favor of approving the

14

settlement because class members receive an amount greater than

15

the economic damages suffered per product purchased.

16

finds no reason to doubt class counsel’s assertion that a per-

17

product recovery greater than the premium paid for the products

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is a good result.

19

The court

Given the risk and uncertainty of the litigation, the

20

overall terms of the settlement appear fair.

21

F.R.D. at 527.

22

favors approving the settlement.

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24
25
26

5.

Accordingly, the court finds the amount offered

Extent of Discovery Completed and the Stage of the
Proceedings

“A settlement that occurs in an advance stage of the
proceedings indicates the parties carefully investigated the

27
28

See DIRECTV, 221

the final fairness hearing.
13

1

claims before reaching a resolution.”

2

371.

3

(See Docket No. 1.)

4

case, briefed several motions, engaged in extensive discovery,

5

and participated in lengthy mediation and settlement discussions.

6

(Kindall Decl. ¶¶ 6-12.)

7

the strengths and weaknesses of this case when plaintiffs

8

accepted the terms of the settlement agreement.

9

15.)

10

Ontiveros, 303 F.R.D. at

Plaintiffs first filed their Complaint three years ago.
Both parties have aggressively litigated the

Plaintiffs’ counsel was informed about

(Kindall Decl. ¶

Accordingly, the court finds the extent of discovery and

stage of the proceedings favors approving the settlement.

11

6.

Experience and Views of Counsel

12

“When approving class action settlements, the court

13

must give considerable weight to class counsel’s opinions due to

14

counsel’s familiarity with the litigation and its previous

15

experience with class action lawsuits.”

16

Elec. Co., Civ. No. 2:08-1974 WBS GGH, 2010 WL 2889728, at *8

17

(E.D. Cal. July 21, 2010).

18

colleagues at Izard, Kindall & Raabe, LLP have significant

19

experience with litigating class action suits and have been

20

appointed as lead or co-counsel in over sixty class actions.

21

(See Kindall Decl. Ex. 3 at 1 (Docket No. 66-5).)

22

counsel Bramson, Plutzik, Mahler & Birkhaeuser, LLP is similarly

23

experienced, having recovered hundreds of millions of dollars in

24

class action settlements as lead or co-counsel.

25

for Preliminary Class Action Settlement Ex. 4 at 1 (Docket No.

26

57-5).)

27

settlement.

28

approval of the settlement.

Murillo v. Pac. Gas &

Class counsel Mark Kindall and his

Liaison

(See Pls.’ Mot.

Both lead and liaison counsel strongly support the
(Pls.’ Mot. at 19:3-13.)

14

Thus, this factor supports

1

7.

2

No government party participated in this matter; this

3

Presence of a Government Participant

factor, therefore, is irrelevant to the court’s analysis.

4

8.

5

Reaction of the Class Members to the Proposed
Settlement

6

“[T]he absence of a large number of objections to a

7

proposed class action settlement raises a strong presumption that

8

the terms of a proposed class settlement action are favorable to

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the class members.”

DIRECTV, 221 F.R.D. at 529.

The notice

10

complied with Federal Rules of Civil Procedure 23(c)(2) and

11

23(e).

12

circumstances, and it informed potential class members of the

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settlement amount, the basis of the lawsuit, the definition of

14

the class, the procedure for and consequences of opting-in to the

15

settlement, the procedure for and consequences of objecting or

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obtaining exclusion from the settlement, and the date of the

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final fairness hearing.

It provided the best notice practicable under the

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Of the 179,676 individuals who filled out the claim

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form online or by mail, only one individual requested to opt-out

20

and one objected to the settlement.

21

One individual asked to be excluded due to a mistaken belief

22

about who is in the class, stating:

23

[sic] shampoo and conditioner in the past.

24

evaluation, [the class action] only pertains to the naturals

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selection.

26

action.”

27

individual realized she had not purchased a covered product until

28

after filing the claim form.

(Docket No. 69 at 2:20-24.)

“I have purchased tressme
But after further

Therefore, I resign my submition [sic] to this
(Id. Ex. 1.)

This is not an opt-out, instead the

(Kindall Decl. ¶ 26; Geraci Decl.
15

1

Ex. 1.)

2

in the Settlement Agreement, but later withdrew the objection

3

after realizing the release did not include release of personal

4

injury claims.

5

Docket No. 70 Ex. A.)

6

weighs in favor of settlement.

A second individual objected to the scope of the release

7

(Docket No. 69 Ex. A (“Helfand Objection”) at 1;
Therefore, the court finds this factor

Having considered the foregoing factors, the court

8

finds the settlement is fair, adequate, and reasonable pursuant

9

to Rule 23(e).

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C.

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Attorneys’ Fees
If a negotiated class action settlement includes an

12

award of attorneys’ fees, that fee award must be evaluated in the

13

overall context of the settlement.

14

312 F.3d 1123, 1126 (9th Cir. 2002).

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create “a common fund for the benefit of persons other than

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himself or his client is entitled to a reasonable attorney’s fee

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from the fund as a whole.”

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472, 478 (1980).

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assigning attorneys’ fees in common fund cases: percentage-of-

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recovery and lodestar.

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1043, 1047 (9th Cir. 2002).

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fund cases, such as here, to choose either method.

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Kinsley v. Network Assocs.,
Class counsel whose efforts

Boeing Co. v. Van Gemert, 444 U.S.

The Ninth Circuit has approved two methods of

Vizcaino v. Microsoft Corp., 290 F.3d
The court has discretion in common
Id.

“Despite this discretion, use of the percentage method

24

in common fund cases appears to be dominant.”

In re Omnivision

25

Techs., Inc., 559 F. Supp. 2d 1036, 1046 (N.D. Cal. 2008) (citing

26

cases).

27

where, as here, ‘the benefit to the class is easily quantified.’”

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Syed v. M-I LLC, Civ. No. 1:14-742 WBS BAM, 2016 WL 310135, at *9

It is “particularly appropriate in common fund cases

16

1

(E.D. Cal. Jan. 26, 2016) (quoting Bluetooth, 654 F.3d at 942).

2

Here, class counsel agreed to represent plaintiffs on a wholly

3

contingent basis.

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Because of the ease of calculation and the pervasive use of the

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percentage-of-recovery method in common fund cases, the court

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thus adopts this method.

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(Pls.’ Mot. for Attorneys’ Fees at 7-8.)

Under the percentage-of-recovery method, the court may

8

award class counsel a percentage of the total settlement fund.

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Vizcaino, 290 F.3d at 1047.

The Ninth Circuit “has established

10

25% of the common fund as a benchmark award for attorney fees.”

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Hanlon, 150 F.3d at 1029.

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class counsel shall not apply for a fee award greater than 30%,

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but class counsel only requests 25% of the total $3.25 million

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settlement fund, or $812,500.

15

Mot. for Attorneys’ Fees at 1:11-13 (Docket No. 67).)

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The parties negotiated and agreed

(Settlement Agreement ¶ 56; Pls.’

As previously discussed, there were substantial risks

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and delays inherent in this litigation and a possibility that

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class members would not have recovered anything.

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counsel took this case on a contingency basis, their risk of

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recovery was the same as the class members and they have

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aggressively litigated this case for three years.

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not oppose class counsel’s application for fees.

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Decl. ¶ 26.)

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maximum class counsel could request under the Settlement

25

Agreement.

26

Since class

Defendant does
(Id.; Kindall

Further, class counsel seeks a percentage below the

One class member objects to class counsel’s hourly rate

27

and hours worked in class counsel’s lodestar cross-check.

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(Helfand Objection at 2.)

As previously discussed, the court is
17

1

applying the percentage-of-recovery method and thus the hourly

2

rate and hours worked do not affect the percentage of recovery.

3

The court thus finds that class counsel’s request for attorney’s

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fees is fair, appropriate, and reasonable under the

5

circumstances.

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counsel’s application for $812,500 in attorneys’ fees.

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D.

8
9

Accordingly, the court will approve class

Expenses
“There is no doubt that an attorney who has created a

common fund for the benefit of the class is entitled to

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reimbursement of reasonable litigation expenses from that fund.”

11

In re Heritage Bond Litig., No. 02-1475, 2005 WL 1594403, at *23

12

(C.D. Cal. June 10, 2005).

13

itemized costs relating to court costs, service of process fees,

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expert fees, electronic research and discovery, transcripts,

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mediation, travel, photocopying and printing, and postage and

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delivery. (Kindall Decl. Ex. 8 (Docket No. 66-10).)

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finds these are reasonable litigation expenses, and it therefore

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will grant class counsel’s request for compensation in the amount

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of $70,700.54.

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21

E.

Class counsel has submitted a list of

The court

Incentive Payment to Named Plaintiffs
The Ninth Circuit has approved the award of “reasonable

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incentive payments” to named plaintiffs if it does not undermine

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the adequacy of the class representatives.

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977-78; see Radcliffe v. Experian Info. Sys., Inc., 715 F.3d

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1157, 1163 (9th Cir. 2013).

26

incentive payments are reasonable.

27

Civ. No. 08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal. Apr. 3,

28

2009) (citing In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,

Staton, 327 F.3d at

Courts have found that $5,000

18

Hopson v. Hanesbrands Inc.,

1

463 (9th Cir. 2000)).

2

Here, the incentive awards are to be paid by defendant

3

separately and apart from the settlement fund.

(Settlement

4

Agreement ¶ 60.)

5

involvement in the case.

6

66-9).)

7

based on their involvement in the litigation.

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4 ¶ 10 (Docket No. 66-6); Kindall Decl. Ex. 6 ¶ 10 (Docket No.

9

66-8).)

Clayman seeks an award of $1,000 based on her
(Kindall Decl. Ex. 7 ¶ 10 (Docket No.

Plaintiffs Drew and Cohen each seek an award of $4,000
(Kindall Decl. Ex.

Morales seeks an award of $6,000 based upon her enhanced

10

case involvement and travel.

(Kindall Decl. Ex. 5 ¶ 10 (Docket

11

No. 66-7).)

12

$5,000 benchmark, this increase is due to missing three days of

13

work as a result of traveling for her deposition.

14

Defendant does not oppose the incentive awards for named

15

plaintiffs.

16

12, 2016 Order, the court orders that incentive payments be paid

17

to the named plaintiffs.

While Morales seeks an award above the general

(Id. ¶¶ 7-8.)

For reasons discussed above and in the court’s July

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Based on the foregoing, the court grants final

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certification of the settlement class and approves the settlement

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set forth in the Settlement Agreement as fair, reasonable, and

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adequate.

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appropriate amount for attorneys’ fees and costs and an award of

23

$15,000 to be an appropriate amount for plaintiffs’ incentive

24

payments.

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terms and provisions of the Settlement Agreement is therefore

26

approved, and the definitions provided in the Settlement

27

Agreement shall apply to the terms used herein.

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Agreement shall be binding upon all class members who did not

The court finds an award of $883,200.54 to be an

Consummation of the settlement in accordance with the

19

The Settlement

1
2

timely file a claim and opt-out of the settlement.
IT IS THEREFORE ORDERED that plaintiffs’ motion for

3

final approval of the class action settlement be, and the same

4

hereby is, GRANTED.

5

IT IS FURTHER ORDERED THAT:

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(1) Solely for the purpose of this settlement, and

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pursuant to Federal Rule of Civil Procedure 23, the court hereby

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certifies the following class:

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All individuals in the United States who purchased the
following TRESemmé Naturals products: (a) Nourishing
Moisture Shampoo; (b) Nourishing Moisture Conditioner;
(c)
Radiant
Volume
Shampoo;
(d)
Radiant
Volume
Conditioner; (e) Vibrantly Smooth Shampoo; and (f)
Vibrantly Smooth Conditioner.
Specifically excluded
from the Class are (1) defendant, (2) the officers,
directors,
or
employees
of
defendant
and
their
immediate family members, (3) any entity in which
defendant
has
a
controlling
interest,
(4)
any
affiliate, legal representative, heir, or assign of
defendant, (5) all federal court judges who have
presided over this action and their immediate family
members, (6) all persons who submit a valid request for
exclusion from the class, and (7) those who purchased
the products for the purpose of resale.
(2) the court appoints the named plaintiffs Alba
Morales, Lanie Cohen, Linda Clayman, and Kenneth Drew as
representatives of the class and finds that they meet the
requirements of Rule 23;
(3) the court appoints Mark Kindall of Izard, Kindall &
Raabe, LLP as counsel to the settlement class, appoints Alan
Plutzik and Michael Strimling of Bramson, Plutzik, Mahler &
Birkhaeuser, LLP as liaison counsel, and finds that they meet the
requirements of Rule 23;
(4) the Settlement Agreement’s plan for class notice is
the best notice practicable under the circumstances and satisfies
20

1

the requirements of due process and Rule 23.

2

approved and adopted;

3

The plan is

(5) the parties have executed the notice plan in the

4

court’s Preliminary Approval Order, in response to which 179,676

5

class members submitted an opt-in form, and one class member of

6

the settlement submitted an opt-out form.

7

parties and their counsel took extensive efforts to locate and

8

inform all class members of the settlement, given that no class

9

members or opt-outs have filed any objections to the settlement,

10

and having found that the number of individuals who opted in and

11

opted out to be reasonable, the court finds and orders that no

12

additional notice to the class is necessary;

13

Having found that the

(6) as of the date of the entry of this Order,

14

plaintiff and all individuals who have not opted-out hereby do

15

and shall be deemed to have fully, finally, and forever released,

16

settled, compromised, relinquished, and discharged defendant of

17

and from any and all settled claims;

18
19
20

(7) class counsel and liaison counsel are entitled to
fees and costs in the amount of $883,200.54;
(8) plaintiff Clayman is entitled to an incentive award

21

in the amount of $1,000.00, plaintiff Drew is entitled to an

22

incentive award in the amount of $4,000.00, plaintiff Cohen is

23

entitled to an incentive award in the amount of $4,000.00, and

24

plaintiff Morales is entitled to an incentive award in the amount

25

of $6,000.00; and

26

(9) the action is dismissed with prejudice; however,

27

without affecting the finality of this Order, the court shall

28

retain continuing jurisdiction over the interpretation,
21

1

implementation, and enforcement of the Settlement Agreement with

2

respect to all parties to this action, and their counsel of

3

record.

4

Dated:

October 18, 2016

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