Morales et al v. Unilever United States, Inc.

Filing 74


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 ALBA MORALES; LANIE COHEN; LINDA CLAYMAN; and KENNETH DREW, on behalf of themselves and all other similarly situated, 17 18 MEMORANDUM AND ORDER RE: FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND ATTORNEYS’ FEES Plaintiffs, 15 16 CIV. NO.: 2:13-2213 WBS EFB v. CONOPCO, INC., d/b/a Unilever, Defendant. 19 ----oo0oo---- 20 Plaintiffs Alba Morales, Lanie Cohen, Linda Clayman, 21 22 and Kenneth Drew brought this putative class action against 23 defendant Conopco, Inc., d/b/a Unilever, asserting claims arising 24 out of defendant’s alleged labeling of certain hair care products 25 as “TRESemmé Naturals” despite them containing synthetic 26 ingredients. 27 for final approval of the class action settlement and attorneys’ 28 fees. Presently before the court are plaintiffs’ motions (Docket Nos. 66-67.) 1 1 I. Factual and Procedural Background 2 Defendant is a multinational consumer goods company 3 whose products include food, beverages, cleaning agents, and 4 personal care products, including the TRESemmé brand. 5 Plaintiffs contend that defendant violated California’s 6 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et 7 seq., California’s Consumer Legal Remedies Act (“CLRA”), Cal. 8 Civ. Code § 1750 et seq., and various other state consumer 9 protection laws. (See Second Amended Complaint (Docket No. 30).) 10 Plaintiffs brought this lawsuit on behalf of a putative class of 11 consumers in the United States who have purchased TRESemmé 12 Naturals products. 13 Agreement”) at 2-3 (Docket No. 66-3).) 14 case for nearly two years before reaching a settlement agreement 15 on February 5, 2016 before mediator Jonathan Marks. 16 100.) (Stipulation of Settlement (“Settlement The parties litigated the (Id. ¶¶ 3- 17 After reaching settlement terms, the parties then filed 18 a motion for preliminary approval of a class action settlement on 19 May 27, 2016. 20 preliminary approval of the settlement, the court provisionally 21 certified the following class: “All individuals in the United 22 States who purchased the following TRESemmé Naturals products: 23 (a) Nourishing Moisture Shampoo; (b) Nourishing Moisture 24 Conditioner; (c) Radiant Volume Shampoo; (d) Radiant Volume 25 Conditioner; (e) Vibrantly Smooth Shampoo; and (f) Vibrantly 26 Smooth Conditioner.” 27 Cohen, Linda Clayman, and Kenneth Drew as class representatives, 28 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 2 1 firm of Bramson, Plutzik, Mahler & Birkhaeuser, LLP as liaison 2 counsel, and KCC Class Action Service LLC as claims 3 administrator. 4 opt-out form, and notice of settlement; directed the claims 5 administrator to publish notice pursuant to the action by August 6 11, 2016; directed class members to file objections, requests for 7 exclusion, and claim forms by September 19, 2016; directed 8 plaintiffs to file a motion for attorneys’ fees by September 12, 9 2016; and directed parties to file briefs in support of final The court also approved the class opt-in form, 10 approval of the settlement by September 12, 2016. The court set 11 the final fairness hearing for October 17, 2016, at 1:30 p.m. 12 After conducting the final fairness hearing and 13 carefully considering the settlement terms, the court now 14 addresses whether this class action should receive final 15 certification; whether the proposed settlement is fair, 16 reasonable, and adequate; and whether class counsel’s request for 17 attorneys’ fees and costs should be granted. 18 II. 19 Discussion The Ninth Circuit has declared that a strong judicial 20 policy favors settlement of class actions. 21 City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 22 Nevertheless, where, as here, “the parties reach a settlement 23 agreement prior to class certification, courts must peruse the 24 proposed compromise to ratify both [1] the propriety of the 25 certification and [2] the fairness of the settlement.” 26 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). 27 28 Class Plaintiffs v. Staton v. The first part of the inquiry requires the court “pay ‘undiluted, even heightened, attention’ to class certification 3 1 requirements” because, unlike in a fully litigated class action 2 suit, the court “will lack the opportunity . . . to adjust the 3 class, informed by the proceedings as they unfold.” 4 Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see Hanlon v. 5 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). 6 second stage, the court holds a fairness hearing where the court 7 entertains any putative class member’s objections to (1) the 8 treatment of this litigation as a class action and (2) the terms 9 of the settlement. Amchem In the See Diaz v. Tr. Territory of Pac. Islands, 10 876 F.2d 1401, 1408 (9th Cir. 1989) (holding that a court is 11 required to hold a hearing prior to final approval of a dismissal 12 or compromise of class claims to “inquire into the terms and 13 circumstances of any dismissal or compromise to ensure it is not 14 collusive or prejudicial”). 15 must reach a final determination as to whether the court should 16 allow the parties to settle the class action pursuant to the 17 terms agreed upon. 18 F.R.D. 523, 525 (C.D. Cal. 2004). 19 A. Following such a hearing, the court See Telecomms. Coop. v. DIRECTV, Inc., 221 Class Certification 20 A class action will be certified only if it meets the 21 four prerequisites identified in Rule 23(a) and fits within one 22 of the three subdivisions of Rule 23(b). 23 (b). 24 whether the moving party has satisfied each Rule 23 requirement, 25 the court must conduct a rigorous inquiry before certifying a 26 class. 27 28 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: 4 1 2 3 4 (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. 5 Fed. R. Civ. P. 23(a). In the court’s Order granting preliminary 6 approval of the settlement, the court found the putative class 7 satisfied the Rule 23(a) requirements. 8 unaware of any changes that would alter its Rule 23(a) analysis, 9 and because the parties indicated that they were unaware of any Since the court is 10 such developments, the court finds that the class definition 11 proposed by plaintiffs meets the requirements of Rule 23(a). 2. 12 13 Rule 23(b) Requirements An action that meets all the prerequisites of Rule 14 23(a) may be certified as a class action only if it also 15 satisfies the requirements of one of the three subdivisions of 16 Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th 17 Cir. 2013). Plaintiffs seeks certification under Rule 23(b)(3), 18 which provides that a class action may be maintained only if (1) 19 “the court finds that questions of law or fact common to class 20 members predominate over questions affecting only individual 21 members” and (2) “a class action is superior to other available 22 methods for fairly and efficiently adjudicating the controversy.” 23 Fed. R. Civ. P. 23(b)(3). 24 In its Order granting preliminary approval of the 25 settlement, the court found that both prerequisites of Rule 26 23(b)(3) were satisfied. 27 that would affect this conclusion, and the parties indicated that 28 they were aware of no such developments. The court is unaware of any changes 5 Accordingly, since the 1 settlement class satisfies both Rule 23(a) and 23(b)(3), the 2 court will grant final class action certification. 3 4 3. Rule 23(c)(2) Notice Requirements If the court certifies a class under Rule 23(b)(3), it 5 “must direct to class members the best notice that is practicable 6 under the circumstances, including individual notice to all 7 members who can be identified through reasonable effort.” 8 R. Civ. P. 23(c)(2)(B). 9 content of a proposed notice. Fed. Rule 23(c)(2) governs both the form and See Ravens v. Iftikar, 174 F.R.D. 10 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 11 417 U.S. 156, 172-77 (1974)). 12 “reasonably certain to inform the absent members of the plaintiff 13 class,” actual notice is not required. 14 1449, 1454 (9th Cir. 1994) (citation omitted). 15 Although that notice must be Silber v. Mabon, 18 F.3d As provided by the Settlement Agreement, KCC 16 administered the claims process. 17 Because defendant does not have records showing who purchased its 18 products, KCC used class demographics to develop a notice plan 19 that it estimated would reach over 70% of the class members. 20 (Id. Ex. D at 10.) 21 notice plan reached over 70% of the class members. 22 Decl. Ex. 2 (“Geraci Decl.”) ¶ 9 (Docket No. 66-4).) 23 (Settlement Agreement at 2.) Based on its research, KCC believes the (Kindall On July 25, 2016, KCC launched a dedicated settlement 24 website and toll-free line that class members could call for 25 information. 26 Notice, Complaint, the Settlement Agreement, the Plan of 27 Allocation, and the court’s Preliminary Approval Order. 28 It also had a page for class members to file claims online or (Id. ¶ 5.) The website included the Settlement 6 (Id.) 1 print out claim forms to submit by mail. 2 150 million banner advertisements on websites targeted to adults 3 over 18, with 105 million banner advertisements targeted to women 4 over 18. 5 2016, and lasted approximately one month. 6 Approval of Class Action Settlement (“Pls.’ Mot.”) at 5:2-3 7 (Docket No. 66); Geraci Decl. ¶ 5.) 8 embedded link to the settlement website. 9 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.) 10 People magazine and the online and print versions of the 11 Sacramento Bee on July 26, 2016, August 2, 2016, August 9, 2016, 12 and August 16, 2016. 13 (Id. ¶¶ 7-8.) As of September 6, 2016, there have been 249,742 14 website visitor sessions and 253 people have called the toll-free 15 number. 16 by purchasers of TRESemmé Naturals products.1 17 (Id. ¶ 10.) This has resulted in 179,676 claims filed (Id. ¶ 11.) The notice explains the proceedings; defines the scope 18 of the class; informs the class member of the claim form 19 requirement and the binding effect of the class action; describes 20 the procedure for opting out and objecting; provides the time and 21 date of the fairness hearing; and directs interested parties to 22 more detailed information on the settlement website. 23 Agreement Ex. E.) 24 recover for the purchase of up to ten bottles per household 25 without providing proof of purchase and can recover for more than 26 ten bottles if they submit adequate proof of a greater number of 27 28 1 class. (Settlement The notice makes clear that class members may This constitutes approximately seven percent of the (See Docket No. 69 at 2:15.) 7 1 purchases with their claim forms. 2 notice therefore satisfies Rule 23(c)(2)(B). 3 23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 4 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it 5 generally describes the terms of the settlement in sufficient 6 detail to alert those with adverse viewpoints to investigate and 7 to come forward and be heard.” (citation omitted)). 8 B. 9 (Id.) The content of the See Fed. R. Civ. P. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement 10 Having determined that class treatment is warranted, 11 the court must now address whether the terms of the parties’ 12 settlement appear fair, adequate, and reasonable. 13 this analysis, the court must balance several factors, including: 14 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. 15 16 17 18 In conducting 19 Hanlon, 150 F.3d at 1026. But see In re Bluetooth Headset Prods. 20 Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (“The factors in 21 a court’s fairness assessment will naturally vary from case to 22 case.”). 23 1. Strength of Plaintiffs’ Case 24 An important consideration is the strength of 25 plaintiffs’ case on the merits compared to the settlement amount 26 offered. 27 required to reach an ultimate conclusion of the merits “for it is 28 the very uncertainty of outcome in litigation and avoidance of DIRECTV, 221 F.R.D. at 526. 8 The court, however, is not 1 wastefulness and expensive litigation that induce consensual 2 settlements.” 3 & County of S.F., 688 F.2d 615, 625 (9th Cir. 1982). 4 Officers for Justice v. Civ. Serv. Comm’n of City Plaintiffs’ claims that defendant violated various 5 state consumer protection laws survived defendant’s motion to 6 dismiss, indicating plaintiffs’ claims as alleged may have merit. 7 (See April 9, 2014 Order (Docket No. 27).) 8 discovery has not commenced, it is unclear whether a reasonable 9 consumer would find defendant’s products were deceptive and However, since expert 10 whether a reasonable consumer paid a premium for the TRESemmé 11 Naturals label. 12 has ruled on is the motion to dismiss the First Amended 13 Complaint. 14 assessing the merits of plaintiffs’ case. 15 will not consider this factor for settlement purposes. 16 This limited record precludes the court from 2. 17 Further, the only substantive motion the court Accordingly, the court Risk, Expense, Complexity, and Likely Duration of Further Litigation 18 Although the court cannot assess the strength of 19 plaintiffs’ case from the record, the presence of substantially 20 disputed legal issues does serve to heighten the risk and 21 uncertainty that both parties would face if this action went to 22 trial. 23 whether reasonable consumers would be deceived by the labels. 24 (See April 9, 2014 Order at 14:14-19:20 (describing dispute 25 between plaintiffs and defendant over the reasonable consumer 26 test).) 27 28 See Hanlon, 150 F.3d at 1026. The parties disagree over Plaintiffs believe that the product labels are deceptive and would deceive reasonable consumers. 9 (Pls.’ Mot. at 1 13.) 2 establish whether defendant’s representations on its products 3 would deceive a reasonable consumer and whether these 4 representations were material to a reasonable consumer. 5 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025-26 (9th 6 Cir. 2008) (holding individual’s belief of deception was 7 insufficient to establish a reasonable consumer would be deceived 8 under the UCL). 9 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 10 deceived. The risk of this dispute weighs in favor of finding 11 this settlement fair. 12 08102 MMM RZX, 2013 WL 6531177, at *13 (C.D. Cal. Nov. 23, 2013) 13 (“The fact that this issue, which is at the heart of plaintiffs’ 14 case, would have been the subject of competing expert testimony 15 suggests that plaintiffs’ ability to prove liability was somewhat 16 unclear; this favors a finding that the settlement is fair.”). 17 Assuming the case progressed further, the complexity See Weeks v. Kellogg Co., Civ. No. 09- 18 and duration of the litigation would be considerable. With a 19 current stipulated class of over 179,000 members, completing 20 discovery in this case would be extremely costly. 21 No. 69 at 2:15.) 22 include a motion for class certification and a series of 23 dispositive motions. 24 plaintiffs filed the original Complaint, yet only one dispositive 25 motion has been resolved by the court and expert discovery has 26 not commenced. 27 litigation and likely expense and duration of further litigation 28 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 10 1 3. 2 3 Risk of Maintaining Class-Action Status Throughout Trial Defendant has stipulated to certification of a 4 nationwide class for settlement purposes only. (Settlement 5 Agreement ¶ 44.) 6 reason, class certification will be vacated. 7 Order at 21:27-22:1 (Docket No. 63).) 8 file a motion for class certification, which defendant would 9 almost certainly oppose. If the Settlement Agreement terminates for any (See July 12, 2016 Plaintiffs would have to Plaintiffs believe they would be able 10 to certify a class and maintain it throughout the litigation, but 11 this is not guaranteed. 12 court is unaware of any foreseeable difficulty the class might 13 have in maintaining the certification at trial. 14 certification is not guaranteed at trial, this factor weighs in 15 favor of accepting the final class action settlement. If the class was certified, however, the Since class 16 4. Amount Offered in Settlement 17 “In assessing the consideration obtained by the class 18 members in a class action settlement, it is the complete package 19 taken as a whole, rather than the individual component parts, 20 that must be examined for overall fairness.” 21 Zamora, 303 F.R.D. 356, 370 (E.D. Cal. 2014). 22 whether a settlement agreement is substantively fair to the 23 class, the court must balance the value of expected recovery 24 against the value of the settlement offer. 25 Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). 26 This inquiry may involve consideration of the uncertainty class 27 members would face if the case were litigated to trial. 28 Ontiveros, 303 F.R.D. at 370-71. 11 Ontiveros v. In determining See In re Tableware See 1 The settlement achieved a “key goal” of the litigation 2 in that it resulted in the discontinuance of the TRESemmé 3 Naturals products. 4 goal would be achieved regardless of whether the settlement is 5 approved. 6 brought and litigated this suit for nearly three years. 7 (Kindall Decl. ¶ 16 (Docket No. 66-2).) This However, plaintiffs achieved this goal because they The settlement also provides that defendant pay $3.25 8 million into an escrow account to pay for class claims, after 9 subtracting expenses, costs, and attorneys’ fees. (Settlement 10 Agreement ¶ 15.) 11 settlement amount was on the low-end of the expected recovery 12 range. 13 maximum amount of attorneys’ fees, litigation expenses, and costs 14 of Notice and Claims Administration, approximately $1.75 million 15 would remain in the class claims account. 16 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, 17 and plaintiffs’ analysis found the premium paid for a “Naturals” 18 product was approximately sixty-eight cents per product. 19 (Kindall Decl. ¶ 17.) 20 of defendant’s Naturals products filed claims under the 21 settlement with an aggregate claims value of $6,964,930. 22 No. 69 at 2:15.) 23 class counsel states each class member would receive $1.26 per 24 product purchased, up to ten products.2 25 26 27 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 12 1 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 4 5539863, at *2 (9th Cir. Sept. 30, 2016) (“[A] plaintiff cannot 5 be awarded a full refund unless the product she purchased was 6 worthless.”). 7 receive the same per-product amount if they provide proof of 8 purchase. 9 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 18 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. 23 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 9 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 13 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 16 obtaining exclusion from the settlement, and the date of the 17 final fairness hearing. It provided the best notice practicable under the 18 Of the 179,676 individuals who filled out the claim 19 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 25 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). 10 C. 11 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). 15 create “a common fund for the benefit of persons other than 16 himself or his client is entitled to a reasonable attorney’s fee 17 from the fund as a whole.” 18 472, 478 (1980). 19 assigning attorneys’ fees in common fund cases: percentage-of- 20 recovery and lodestar. 21 1043, 1047 (9th Cir. 2002). 22 fund cases, such as here, to choose either method. 23 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.’” 28 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. 4 Because of the ease of calculation and the pervasive use of the 5 percentage-of-recovery method in common fund cases, the court 6 thus adopts this method. 7 (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. 9 Vizcaino, 290 F.3d at 1047. The Ninth Circuit “has established 10 25% of the common fund as a benchmark award for attorney fees.” 11 Hanlon, 150 F.3d at 1029. 12 class counsel shall not apply for a fee award greater than 30%, 13 but class counsel only requests 25% of the total $3.25 million 14 settlement fund, or $812,500. 15 Mot. for Attorneys’ Fees at 1:11-13 (Docket No. 67).) 16 The parties negotiated and agreed (Settlement Agreement ¶ 56; Pls.’ As previously discussed, there were substantial risks 17 and delays inherent in this litigation and a possibility that 18 class members would not have recovered anything. 19 counsel took this case on a contingency basis, their risk of 20 recovery was the same as the class members and they have 21 aggressively litigated this case for three years. 22 not oppose class counsel’s application for fees. 23 Decl. ¶ 26.) 24 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. 28 (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 4 fees is fair, appropriate, and reasonable under the 5 circumstances. 6 counsel’s application for $812,500 in attorneys’ fees. 7 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 10 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, 14 expert fees, electronic research and discovery, transcripts, 15 mediation, travel, photocopying and printing, and postage and 16 delivery. (Kindall Decl. Ex. 8 (Docket No. 66-10).) 17 finds these are reasonable litigation expenses, and it therefore 18 will grant class counsel’s request for compensation in the amount 19 of $70,700.54. 20 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 22 incentive payments” to named plaintiffs if it does not undermine 23 the adequacy of the class representatives. 24 977-78; see Radcliffe v. Experian Info. Sys., Inc., 715 F.3d 25 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. 8 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 18 Based on the foregoing, the court grants final 19 certification of the settlement class and approves the settlement 20 set forth in the Settlement Agreement as fair, reasonable, and 21 adequate. 22 appropriate amount for attorneys’ fees and costs and an award of 23 $15,000 to be an appropriate amount for plaintiffs’ incentive 24 payments. 25 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. 28 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: 6 (1) Solely for the purpose of this settlement, and 7 pursuant to Federal Rule of Civil Procedure 23, the court hereby 8 certifies the following class: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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