Ross et al v. Trex Company, Inc.
Filing
276
ORDER REGARDING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. Motion Hearing set for 7/26/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 5/28/13. (jjoS, COURT STAFF) (Filed on 5/28/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ERIC ROSS, et al,
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For the Northern District of California
United States District Court
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Plaintiffs,
No. C 09-00670 JSW
v.
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TREX COMPANY, INC.,
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Defendant.
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ORDER REGARDING MOTION
FOR PRELIMINARY APPROVAL
OF CLASS ACTION
SETTLEMENT
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Now before the Court is the motion for preliminary approval of class action settlement.
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The Court has some questions regarding the proposed settlement. In particular, the Court is
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concerned that notice may not be sufficient, but does not have sufficient information to make
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this determination. Plaintiffs and defendant Trex Company, Inc. (“Trex”) have not yet provided
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the Court with an estimate of the number of purported class members, as well as an estimate of
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how many purported class members for whom Trex has either a direct mailing or email address.
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Additionally, it seems likely Trex could discover the identity of additional purported class
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members by seeking such information from TrexPRO contractors and from Trex’s financing
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partner, GE Capital. The parties shall address whether they would object to this additional step
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and estimate for how many additional purported class members they would obtain contact
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information through this additional step.
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Moreover, the Court notes the concerns stated in Fraser v. Asus Computer Internat’l.,
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2012 WL 6680142 (N.D. Cal. Dec. 21, 2012). In Fraser, the initial retail price of the product at
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issue was $499 and the proposed settlement for claims made was $17, plus a free device. Id.,
2012 WL 6680142 at *1. The Court noted that the amount of the settlement was so small per
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class member that there was a large risk that class members, even if they learned of the
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settlement, would not get around to completing the claim form in time. Id., 2012 WL 6680142
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at *3. In light of these concerns, the court held that it would have been fairer to limit the release
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to those who actually submitted claims or if the settlement included a cy pres solution. The
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Court here has similar concerns with respect to the $20 settlement for tier 1. Moreover, in order
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to even file a claim for the $20, purported class members must obtain a claim form and then
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submit documentary proof that they own the property, documentary proof that they purchased
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the decking materials, and pictures or videos of the decking. Such extensive requirements are
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likely discourage purported class members from submitting a claim for a mere $20, which is
less than the value of the settlement for claims made in Fraser. Accordingly, the Court agrees
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For the Northern District of California
United States District Court
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with Fraser that the broad release would be more palatable if the release were limited to class
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members who submitted a claim or if the proposed settlement included a cy pres benefit for the
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amount of the unclaimed funds.
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Additionally, the Court notes that the proposed publication program does not appear to
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be sufficient. In light of the likely large percentage of purported class members who may be
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receiving notice only by publication, posting the notice in only three publications on one day
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does not appear to be sufficient.
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Finally, the Court notes the concerns raised regarding obtaining tier 2 relief. It is not
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clear why purported class members would be limited to two months, as opposed to three
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months, if they submitted photographs instead of videos. More significantly, obtaining relief
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under tier 2 depends upon the mold reappearing. As noted by one of the objectors’ briefs, the
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appearance and regrowth of mold can be affected or repressed by conditions such as drought or
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seasonal temperature changes. Would the parties be opposed to extending the time for proving
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the appearance and regrowth of mold if warranted by weather conditions?
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The parties shall submit a supplemental brief to address the Court’s concerns by no later
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than June 14, 2013. The Court HEREBY CONTINUES the hearing on the motion for
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preliminary approval of the class action settlement to July 26, 2013 at 9:00 a.m.
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IT IS SO ORDERED.
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Dated: May 28, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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