Miller v. Ghirardelli Chocolate Company

Filing 170

ORDER by Judge Laurel Beeler granting 148 Motion for Settlement; granting 148 Motion for Attorney Fees (lblc1S, COURT STAFF) (Filed on 2/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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SCOTT MILLER, et al.,

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Case No. 12-cv-04936-LB

Plaintiffs,
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v.

FINAL ORDER APPROVING CLASS
SETTLEMENT

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GHIRARDELLI CHOCOLATE
COMPANY,

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[ECF No. 148]

Defendant.

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INTRODUCTION

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The parties have agreed to settle this class action. This lawsuit challenges defendant Ghirardell

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Chocolate Company‘s labeling of some of its products. (See 3d Am. Compl. – ECF No. 43.)1 The

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court previously approved the settlement preliminarily and conditionally certified a settlement

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class. (ECF No. 141.) The court has scrutinized the parties‘ proposed settlement under the

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controlling law. The court finds the settlement fair, adequate, and reasonable. The court therefore

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certifies a Rule 23(b)(3) class and approves the parties‘ settlement. The court maintains its

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previous appointment of class counsel and representatives, awards the plaintiffs $5000 each in

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incentives, and awards their attorneys $1,575,000 in fees and $87,572.15 in litigation costs.

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Record citations are to material in the Electronic Case File (―ECF‖); pinpoint citations are to the
ECF-generated page numbers at the tops of the documents.
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

FACTS

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This is a food-labeling case. The plaintiffs claim that defendant Ghirardelli Chocolate

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Company falsely labeled a number of its products. Plaintiffs Scott Miller and Steve Leyton sue for

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themselves and for a nationwide consumer class. They make two basic claims. They first contend

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that Ghirardelli mislabeled its ―White Chips‖ and several other products in a way that would

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mislead consumers into believing that the products contained white chocolate. They also claim

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that Ghirardelli sold products as ―all natural,‖ even though (according to the plaintiffs) ―they

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contained genetically modified, hormone-treated . . . or chemically extracted ingredients.‖ (ECF

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No. 148 at 8-9; see ECF No. 143 at 2, ¶ 1.) Ghirardelli denies the plaintiffs‘ allegations. (See, e.g.,

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United States District Court
Northern District of California

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ECF No. 166 at 9.) The products at issue are listed in Appendix A to this order.
For more than two years, the parties conducted discovery and vied over substantive motions.

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Late 2013 brought them to mediation before the Honorable Edward Infante. Their first all-day

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session ended without resolution; but from a second effort in June 2014, and ultimately after

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―many rounds‖ of discussion, the parties crafted the settlement that they now propose. (ECF No.

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148 at 9-10.)

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The full settlement agreement appears at ECF No. 129-2. Its essential terms are as follows.

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Ghirardelli will pay $5.25 million into a common fund. The fund will be used to pay the

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following: all costs of notice and administration; any fees and costs awarded to Plaintiffs‘ counsel;

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any incentive award to the named Plaintiffs; and class members‘ claims. (ECF No. 129-2 at 11,

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§ 3.3.) Each class member who makes a claim will obtain $1.50 per purchase of the White Chips

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and $0.75 per purchase of any of the other products labeled ―All Natural.‖ There will be no cap on

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the total amount paid to a claimant for purchases that are corroborated by a Proof of Purchase. (Id.

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at 12-13, § 3.7.) (A ―Proof of Purchase‖ is an itemized retail sales receipt showing, at a minimum,

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the purchase of a Product, the purchase price, and the date and place of the purchase. (Id. at 9 §

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2.26.)) For claims that are not corroborated by a Proof of Purchase, a maximum of $24.00 will be

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paid to any Household. (Id. at 12-13, § 3.7.) (―Household‖ means any number of persons

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occupying the same dwelling unit. Id. at 8, § 2.14.) Awards may be reduced pro rata if the total

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value of claims exceeds the amount of the common fund after payment of notice and
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

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administration costs, fees, costs, and incentive awards. (Id. at 11, § 3.3.) If money remains in the

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common fund after paying all claims, incentive awards, and fees and costs, the money will be

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donated cy pres, in equal amounts, to four charitable organizations. (Id., § 3.4.) Finally,

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Ghirardelli has agreed to maintain for three years certain labeling changes to all the products at

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issue, changes that it implemented during this lawsuit. (Id. at 14, § 3.10.) These changes will more

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specifically consist of Ghirardelli‘s agreement:

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a) not to use the phrase ―all natural‖;

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b) not to use the phrase ―Classic White‖ with respect to the White Chips except as part of the
phrase ―Classic White Chips‖; and

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c) not to use the phrases ―baking chocolate‖ or ―chocolate indulgence‖ on the packaging for

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the White Chips, even in referring to other products.

United States District Court
Northern District of California

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(Id.)
The court preliminarily approved this settlement in early October 2014. (ECF No. 141.) It

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formed a conditional settlement class, appointed Messrs. Miller and Leyton as class

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representatives, named their attorneys as class counsel, and approved a class-notice plan. (ECF

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No. 141 at 9-11 (describing notice plan).
Three people filed objections to the settlement. (ECF Nos. 146, 153, 159.) The parties

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responded to the objections. (ECF Nos. 160, 164.) The Plaintiffs also moved to strike two of the

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objections — by Brittany Ference (ECF No. 153) and Michael Narkin (ECF No. 159) — for

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failure to demonstrate class membership. (ECF No. 165. ) One of the objections challenged the

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lawsuit essentially on the defendant‘s behalf, urging the court to dismiss the case entirely. (ECF

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No. 146.)
The court held a hearing on February 19, 2015. (See ECF No. 168.) No objector attended.

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Having considered the parties‘ arguments, the evidence, and the settlement itself, the court

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approves the settlement as follows.

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///

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///

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///
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ANALYSIS

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I. JURISDICTION
This court has jurisdiction under 28 U.S.C. § 1132(d)(2).
II. CLASS CERTIFICATION
For the reasons and under the law set out in the court‘s preliminary-approval order (ECF No.

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141 at 3-6), the court holds that the proposed settlement class meets all the requirements of

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procedural Rules 23(a) and 23(b)(3). The settlement class is hereby formed and is defined as: All

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persons (other than Excluded Persons) who, between August 17, 2008 and October 2, 2014,

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purchased, in the United States, except for purposes of resale, any of the Products listed in

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United States District Court
Northern District of California

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Appendix A to this order.
Excluded Persons means: (1) the Honorable Laurel Beeler and any member of her immediate

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family; (2) the Honorable Edward Infante and any member of his immediate family; (3) any

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government entity; (4) any of the Released Parties; and (5) any persons who timely opted out of

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the Settlement Class — a complete list of whom appears as Appendix B to this order.

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The court appoints plaintiffs Scott Miller and Steve Leyton as class representatives, and

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Gutride Safier LLP as class counsel. This, too, is for the reasons given in the preliminary-approval

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order. (See ECF No. 141 at 4-6.)

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III. NOTICE

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The parties complied in all material respects with the notice plan contained in the settlement

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agreement and preliminarily approved by the court. The declaration of the claim administrator

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(The Garden City Group) confirms this. (See ECF No. 148-3 at 1-8.)

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Following the court‘s preliminary approval and conditional certification of the settlement

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class, the claim administrator established a settlement website that contained: the settlement

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notices; a contact-information page that includes address and telephone numbers for the claim

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administrator and the parties; the settlement agreement; the signed order of preliminary approval;

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online and printable versions of the claim form and the opt-out forms; answers to frequently asked

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questions; and a list of the affected products. The motion for final approval and application for

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attorney‘s fees, costs, and incentive awards were also placed on the website. Notice was published
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in several places, all of which referred class members to the settlement website. (Dowd Decl. –

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ECF No. 148-3, ¶¶ 8, 17 & Ex. A-E.) One half-page ad was published in the November 10, 2014,

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print version of People magazine. (Id. ¶ 5.) An additional eighth-page ad was published in the

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Oakland Tribune on October 22 and 29 and November 5 and 12, 2014. (Id. ¶ 6.) Online notice was

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published for a total of 316 million impressions on various websites, including Facebook, Yahoo!

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network, MSN network, and a website group that include cooking and baking websites. (Id. ¶ 7.)

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The ad also appeared more than 2 million times through an MSN mobile service. (Id. ¶ 9.)

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The claim administrator sent direct notice to each of the approximately 21,358 settlement class
members for whom Ghirardelli had names and addresses because they purchased through the

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Ghirardelli website or phone system. The email notice described the settlement and provided a

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United States District Court
Northern District of California

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link to the settlement website. Clicking on the link provided in the email brought class members to

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a pre-populated claim form with the records of their purchases and informed them that Proof of

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Purchase for those items had been submitted. The email notice was sent twice. In cases where

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Ghirardelli did not have an email address for a buyer (approximately 133 persons), or the initial

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email notice was returned as undeliverable (approximately 2040 persons), the claim administrator

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sent postcard notice by first-class mail to the settlement class member‘s address based on

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Ghirardelli‘s records as updated through the National Change of Address Database. (Id. ¶¶ 10-14.)

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Just over 200 postcards were returned as undeliverable, and the claims administrator undertook a

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more detailed search for new addresses and re-mailed 110 of the cards. (Id. ¶ 15.)

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The court finds that this delivered absent class members the best notice practicable under the

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circumstances, sufficiently advised class members of this action and the terms of the proposed

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settlement, and informed unnamed members of their right to opt out of the class and object to the

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settlement. The notice plan, in short, met all legal requisites.

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IV. COMPLIANCE WITH CLASS ACTION FAIRNESS ACT

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The class-notice plan has met the requirements of 28 U.S.C. § 1715. The Claims Administrator

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notified the appropriate state and federal officials of the settlement and filed proof of compliance

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with § 1715. (See ECF No. 139.) The notices contained the documents required by 28 U.S.C.

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§ 1715(b)(1)-(8). (Id.) The claims administrator mailed the § 1715 notices on August 27, 2014,
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and filed its certificate of compliance (ECF No. 139) on October 1, 2014. This final approval of

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the parties‘ settlement thus follows the § 1715 service by more than 90 days. See 28 U.S.C.

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§ 1715(d).

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V. FINAL APPROVAL OF SETTLEMENT

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Settlement is a strongly favored method for resolving disputes, particularly ―where

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complex class action litigation is concerned.‖ Class Plaintiffs v. City of Seattle, 955 F.2d 1268,

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1276 (9th Cir. 1992); see, e.g., In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.

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1995). A court may approve a proposed class-action settlement only ―after a hearing and on

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finding that it is fair, reasonable, and adequate.‖ Fed. R. Civ. P. 23(e)(2). The court need not ask
whether the proposed settlement is ideal or the best possible; it determines only whether the

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United States District Court
Northern District of California

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settlement is fair, free of collusion, and consistent with the named plaintiffs‘ fiduciary obligations

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to the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998). In Hanlon, the Ninth

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Circuit identified factors relevant to assessing a settlement proposal: (1) the strength of the

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plaintiff‘s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the

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risk of maintaining class-action status throughout trial; (4) the amount offered in settlement; (5)

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the extent of discovery completed and the stage of the proceeding; (6) the experience and views of

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counsel; (7) the presence of a government participant; and (8) the reaction of class members to the

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proposed settlement. Id. at 1026 (citation omitted).

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―Where a settlement is the product of arms-length negotiations conducted by capable and

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experienced counsel, the court begins its analysis with a presumption that the settlement is fair and

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reasonable.‖ Garner v. State Farm Mut. Auto Ins. Co., 2010 WL 1687832, *13 (N.D. Cal. Apr. 22,

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2010); see, e.g., Rodriguez v. West Pub’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (―We put a

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good deal of stock in the product of an arms-length, non-collusive, negotiated resolution . . .

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.‖); Nat’l Rural Telecomm. Coop. v. DirecTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004).

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The court finds the proposed settlement fair, adequate, and reasonable under the Hanlon

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factors. The settlement itself is the product of non-collusive, arm‘s-length negotiations conducted

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by experienced counsel with the help of a private mediator. (See Gutride Decl. – ECF No. 148-1,

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¶¶ 47-52, 55-56.)
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The court has overseen this case since its beginning and has no difficulty confirming that this

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has been a hard-fought affair. The parties engaged in substantial discovery and litigated numerous

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motions. On the plaintiffs‘ side, for example, class counsel propounded substantial written

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discovery on Ghirardelli; was in the process of obtaining third-party discovery from Ghirardelli‘s

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retailers and suppliers; obtained and reviewed more than 20,000 pages of documents; and took

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depositions of the six 30(b)(6) witnesses that Ghirardelli designated. (Id. ¶¶ 30-41.)

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Considering the strength of the plaintiffs‘ case, the risk, expense, complexity, and likely
duration of further litigation — including the risk of maintaining class action status throughout the

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trial, to say nothing of successfully proving liability — the court finds that these factors all weigh

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in favor of approving the settlement. Ghirardelli has always maintained that its products were not

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United States District Court
Northern District of California

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mislabeled or misleading and denies any liability for the class members‘ claims. Ghirardelli

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asserts that had litigation proceeded, the plaintiffs would have faced an uphill battle in certifying

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any class — let alone a nationwide one; could not have proved that the company‘s labels were

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deceptive or violated any law; and would have failed to establish damages (specifically,

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Ghirardelli maintains that no premium exists for either the white chips or the All Natural products

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because, among other things, sales at the same price rose after the allegedly deceptive information

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on labels was changed or removed). Ghirardelli calls the settlement a ―win for the class.‖ (ECF

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No. 166 at 15.) The defendant writes: ―This case is not and was never . . . even a $5.25 million

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case. Ghirardelli settled to buy peace . . . .‖ (Id.)

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Absent settlement, the plaintiffs faced the real possibility of failing to certify a class or

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establish liability. This case presents numerous complex and novel issues, which almost certainly

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would have proved costly to litigate and could have easily lead to protracted appellate litigation.

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The settlement represents a substantial benefit to the class. A $5.25-million common fund has

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been established for the class‘s benefit, and Ghirardelli has agreed to adhere to labeling changes

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for three years. Taking all this into consideration, the court concludes that the settlement is ―fair,

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free of collusion, and consistent with the named plaintiffs‘ fiduciary obligations to the class.‖

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Hanlon, 150 F.3d at 1027. The court addresses objections to the settlement below (Part X, infra)

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because they implicate (among other issues) the cy pres distribution and the award of attorney‘s
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

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fees.

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VI.

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ATTORNEY’S FEES
Class counsel requests an award of $1,575,000 in attorney‘s fees and $87,572.15 in costs. (See

ECF No. 148 at 20-28.) This Part VI addresses fees; Part VII, infra, addresses costs.
Rule 23(h) of the Federal Rules of Civil Procedure provides: ―In a certified class action, the

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court may award reasonable attorney‘s fees and nontaxable costs that are authorized by law or by

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the parties‘ agreement.‖ Fee provisions included in proposed class-action settlements must be

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―fundamentally fair, adequate and reasonable.‖ In re Bluetooth Headset Prods. Liab. Litig., 654

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F.3d 935, 941 (9th Cir. 2011). The court is not bound by the parties‘ settlement agreement as to
the amount of attorneys' fees. Id. at 943. The Ninth Circuit has instructed district courts to review

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United States District Court
Northern District of California

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class fee awards with special rigor:

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Because in common fund cases the relationship between
plaintiffs and their attorneys turns adversarial at the fee-setting
stage, courts have stressed that when awarding attorneys‘ fees from
a common fund, the district court must assume the role of fiduciary
for the class plaintiffs. Accordingly, fee applications must be closely
scrutinized. Rubber-stamp approval, even in the absence of
objections, is improper.
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1052 (9th Cir. 2002) (quotation omitted).
In the Ninth Circuit, the benchmark for an attorney‘s-fee award is 25% of the total settlement

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value. See Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.

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1990). The requested fee here is 8.9% of the total settlement value.

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In common-fund cases, the Ninth Circuit requires district courts to assess proposed fee awards

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under either the ―lodestar‖ method or the ―percentage of the fund‖ method. Fischel v. Equitable

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Life Ass. Soc’y of the U.S., 307 F.3d 997, 1006 (9th Cir. 2002); Hanlon, 150 F.3d at 1029. This

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court finds that the fee request here is reasonable under both approaches.

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Where the settlement involves a common fund, courts typically award attorney‘s fees based on

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a percentage of the total settlement. The Ninth Circuit has established a ―benchmark‖ that fees

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should equal 25% of the settlement, although courts diverge from the benchmark based on a

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variety of factors, including ―the results obtained, risk undertaken by counsel, complexity of the

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issues, length of the professional relationship, the market rate, and awards in similar cases.‖
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Morales v. Stevco, Inc., 2013 WL 1222058, at *2 (E.D. Cal. Mar. 25, 2013); see also Six Mexican

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Workers, 904 F.2d at 1311; State of Fla. v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990); In re Pac.

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Enters. Secs. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming fee award of 33% of the

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recovery); Morris v. Lifescan, Inc., 54 F. App‘x 663, 664 (9th Cir. 2003) (affirming 33% fee

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award).

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When determining the value of a settlement, courts consider both the monetary and non-

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monetary benefits that the settlement conferrs. See, e.g., Staton v. Boeing Co., 327 F.3d 938, 972-

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74 (9th Cir. 2003; Hartless v. Clorox Co., 273 F.R.D. 630, 645 (S.D. Cal. 2011), aff’d, 473 F.

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App‘x 716 (9th Cir. 2012); Pokorny v. Quixtar, Inc., 2013 WL 3790896, *1 (N.D. Cal. July 18,
2013), appeal dismissed (Sept. 13, 2013) (―The court may properly consider the value of

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United States District Court
Northern District of California

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injunctive relief obtained as a result of settlement in determining the appropriate fee.‖); In re

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Netflix Privacy Litig., 2013 WL 1120801, at *7 (N.D. Cal. Mar. 18, 2013) (settlement value

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―includes the size of the cash distribution, the cy pres method of distribution, and the injunctive

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relief‖), appeal dismissed (Dec. 19, 2013).

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Finally, Ninth Circuit precedent requires courts to award class counsel fees based on the total

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benefits being made available to class members rather than the actual amount that is ultimately

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claimed. Young v. Polo Retail, LLC, 2007 U.S. Dist. LEXIS 27269, *23 (N.D. Cal. Mar. 28, 2007

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(citing Williams v. MGM-Pathe Commc’ns Co., 129 F.3d 1026 (9th Cir. 1997) (―district court

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abused its discretion in basing attorney fee award on actual distribution to class‖ instead of amount

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being made available)).2

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To support their request for fees, the plaintiffs have proffered the declaration of Colin Weir,

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whose expert testimony on the analysis of pricing differences arising from various consumer-label

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claims has been accepted by other courts. (ECF No. 149-3 at 13-17.) Mr. Weir opines that the

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changed practices required by the settlement for the next three years can be expected to eliminate

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various premiums associated with ―white chocolate‖ and ―all natural‖ labeling and save class

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To the extent that Ms. Ference‘s objection suggests that fees should be based on amounts
claimed, that objection is therefore overruled. (See ECF No. 153 at 3.)
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members at least at $13.46 million. (ECF No. 148-2.) The plaintiffs argue that taking into account

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the $5.25-million cash payment and value of the injunctive relief, the requested fee is 8.9% of the

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total settlement value, almost 16 percentage points below the Ninth Circuit benchmark. Ghirardelli

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dispute the plaintiffs‘ estimate of the settlement‘s overall value (see ECF No. 166 at 2) — but the

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court finds that the requested fee is appropriate even if Mr. Weir‘s estimate is deeply discounted.

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Even if the value of the changed practices is only half of what Mr. Weir opines, for instance, the

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requested fee represents 13% of the total settlement value; if the changed practices are worth only

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10% of what he opines, the requested fee is less than 24% — still below the Ninth Circuit

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benchmark. Even if the court considers only the monetary relief of $5.25 million, the requested fee
reflects 30% of that benefit; this remains consistent with awards that have been approved in

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United States District Court
Northern District of California

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similar cases: Where a common fund is under $10 million, a fee award of this amount is often held

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appropriate, and the court finds it appropriate here. See Van Vranken v. Atl. Richfield Co., 901 F.

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Supp. 294, 297-98 (N.D. Cal. 1995) (collecting cases); see also Johnson v. Gen. Mills, Inc., 2013

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WL 3213832, at *6 (C.D. Cal. June 17, 2013) (awarding a fee of 30% of settlement fund in food-

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labeling class action).

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Finally, after applying the percentage method, courts typically roughly calculate the lodestar as

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a ―cross-check to assess the reasonableness of the percentage award.‖ E.g., Weeks v. Kellogg Co.,

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2013 WL 6531177, *25 (C.D. Cal. Nov. 23, 2013); see also Serrano v. Priest, 20 Cal. 3d 25, 48-

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49 (1977) Melnyk v. Robledo, 64 Cal. App. 3d 618, 624-25 (1976); Clejan v. Reisman, 5 Cal. App.

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3d 224, 241 (1970); Fed-Mart Corp. v. Pell Enterprises, 111 Cal. App. 3d 215 (1980). ―The

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lodestar . . . is produced by multiplying the number of hours reasonably expended by counsel by a

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reasonable hourly rate.‖ Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19, 26 (2000).

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Once the court has fixed the lodestar, it may increase or decrease that amount by applying a

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positive or negative ―multiplier to take into account a variety of other factors, including the quality

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of the representation, the novelty and complexity of the issues, the results obtained and the

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contingent risk presented.‖ Id.

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Based on the detailed declarations submitted by the plaintiffs‘ counsel, the court finds that
lodestar is approximately $1,711,710. (See Gutride Decl. – ECF No. 148-1, ¶ 70 (table of hours
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

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worked by timekeeper); Safier Decl. – ECF No. 164-1, ¶ 5.) The plaintiffs‘ attorneys have detailed

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their efforts to date extensively, and, again, the court is familiar with the hard-fought nature of this

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litigation. (See ECF No. 148-1, ¶¶ 4-61.) The rates they have used are their 2014 rates; this is

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appropriate given the deferred and contingent nature of counsel‘s compensation. See LeBlanc-

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Sternberg v. Fletcher, 143 F.3d 748, 764 (2nd Cir. 1998) (―[C]urrent rates, rather than historical

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rates, should be applied in order to compensate for the delay in payment . . . .‖) (citing Missouri v.

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Jenkins, 491 U.S. 274, 283-84 (1989)); In re Washington Pub. Power Supply Sys. Sec. Litig., 19

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F.3d 1291, 1305 (9th Cir. 1994) (―The district court has discretion to compensate delay in

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payment in one of two ways: (1) by applying the attorneys‘ current rates to all hours billed during
the course of litigation; or (2) by using the attorneys‘ historical rates and adding a prime rate

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United States District Court
Northern District of California

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enhancement.‖).3

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Counsels‘ lodestar of $1,711,710 exceeds the requested fee award of $1,575,000. Were it in

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question, the court notes that other factors here, ―including the quality of the representation, the

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novelty and complexity of the issues, the results obtained, and the contingent risk presented‖

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would likely support awarding a multiplier. Lealao, 82 Cal. App. at 26; see also Walsh v. Kindred

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Healthcare, 2013 WL 6623224, *3 (N.D. Cal. Dec. 16, 2013) (citing Lealao method with

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approval). Thus, the court finds the fee request reasonable under both the ―percentage of the fund‖

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approach and the lodestar cross-check.

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VII.

Class counsel are entitled to reimbursement of reasonable out-of-pocket expenses. Fed. R. Civ.

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LITIGATION COSTS

P. 23(h); see Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (holding that attorneys may

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Plaintiff‘s counsel calculated their lodestar using their regular billing rates, which for the
attorneys involved range from $450 to $750 per hour. (Gutride Decl. – ECF No. 148-1, ¶ 70.)
These hourly rates are equal to market rates in San Francisco for attorneys of plaintiff‘s counsel‘s
background and experience. (Id., ¶¶ 72); see also Wren v. RGIS Inventory Specialists, 2011 U.S.
Dist. LEXIS 38667 (N.D. Cal. Apr. 1, 2011) (finding as reasonable $650 per hour for a 1993
graduate); Californians for Disability Rights v. Cal. DOT, 2010 U.S. Dist. LEXIS 141030 (N.D.
Cal. Dec. 13, 2010) (finding as reasonable $570 per hour for a 2000 graduate, $350 per hour for a
2007 graduate, and $475 per hour for a 2005 graduate); Suzuki v. Hitachi, 2010 U.S. Dist. LEXIS
22908, 2010 WL 956896 *3 (N.D. Cal. March 12, 2010) (finding as reasonable rates of $650 for
partner services, $500 for associate services and $150 for paralegal services).
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

11

1

recover reasonable expenses that would typically be billed to paying clients in non-contingency

2

matters.); Van Vranken, 901 F. Supp. at 299 (approving reasonable costs in class action

3

settlement). Costs compensable under Rule 23(h) include ―nontaxable costs that are authorized by

4

law or by the parties‘ agreement.‖ Fed. R. Civ. P. 23(h).

5

Here, class counsel seeks reimbursement of $87,572.15 in litigation expenses. They have

6

provided records that document their claim. (See Gutride Decl. – ECF No. 148-1, ¶ 75.) The costs

7

will be paid from the common fund and will not reduce the amounts paid to class members who

8

made valid claims. The court therefore finds that these submissions support an award of

9

$87,572.15 in costs.

10

VIII. INCENTIVE AWARDS

United States District Court
Northern District of California

11

The settlement would also award each named plaintiff $5000 in incentives. District courts

12

must evaluate proposed incentive awards individually, using relevant factors that include, ―the

13

actions the plaintiff has taken to protect the interests of the class, the degree to which the class has

14

benefitted from those actions, . . . [and] the amount of time and effort the plaintiff expended in

15

pursuing the litigation.‖ Staton, 327 F.3d at 977. ―Such awards are discretionary . . . and are

16

intended to compensate class representatives for work done on behalf of the class, to make up for

17

financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their

18

willingness to act as a private attorney general.‖ Rodriguez, 563 F.3d at 958-959.

19

The Ninth Circuit has ―noted that in some cases incentive awards may be proper but [has]

20

cautioned that awarding them should not become routine practice.‖ Radcliffe v. Experian Info.

21

Solutions, 715 F.3d 1157, 1163 (9th Cir. 2013) (discussing Staton, 327 F.3d at 975). The Ninth

22

Circuit has also emphasized that district courts ―must be vigilant in scrutinizing all incentive

23

awards to determine whether they destroy the adequacy of the class representatives.‖ Radcliffe,

24

715 F.3d at 1164.

25

The incentives proposed here are within the range of such awards that the Ninth Circuit has

26

either affirmed or cited with approval. See In re Mego Fin. Corp. Secs. Litig., 213 F.3d 454, 463

27

(9th Cir. 2000) (approving $5000 incentive to each named representative of potentially 5400-

28

member class in settlement of $1.725 million); In re U.S. Bancorp Litig., 291 F.3d 1035, 1038 (8th
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

12

1

Cir. 2002) (approving $2000 incentive award to five named plaintiffs; class numbered potentially

2

more than 4 million; settlement value of $3 million) (cited in Staton). The purported absent class

3

members who have objected to the proposed settlement did not include the incentive among their

4

concerns. (See ECF Nos. 146, 153, 159.)
The named plaintiffs merit this incentive. Their lawyer has explained the efforts they

5
6

personally made in pursuing this lawsuit. (See Gutride Decl. – ECF No. 148-1.) They both worked

7

with counsel to provide declarations and other information throughout the litigation. They

8

conducted ―lengthy‖ searches of their personal records. They spent time preparing for and being

9

deposed. They both responded to interrogatories and requests for production. They either attended
the mediation sessions or remained available for consultation, and were consulted. According to

11
United States District Court
Northern District of California

10

their lawyer, both plaintiffs stayed actively involved in this case before and after the settlement.

12

(See id. at 12, ¶¶ 65-66.) In principle, too, and though the risk may have been small, the plaintiffs

13

did take on the risk of potentially bearing Ghirardelli‘s costs in a losing effort.

14

IX.

15

CY PRES AWARD
The settlement agreement provides that if, after payment of notice, administration, fees, costs,

16

incentives and valid claims, there remains a balance in the common fund, the plaintiffs will ask the

17

court to approve a list of charitable organizations to receive any balance remaining in the

18

settlement fund. The parties have selected the following organizations: Consumers Union,

19

Yonkers, NY; National Consumer Law Center, Washington, DC; University of California, Davis,

20

Food Science & Technology Department; and Florida State University, Food & Nutrition Science

21

Department. The parties argue that these entities are reasonably connected to this litigation, in that

22

they work on advancing the rights of consumers and the information available to food consumers.

23

The cy pres doctrine is appropriate for a case like this one, where class members who did not

24

make claims cannot be easily located or identified, in order to ―put the unclaimed fund to its next

25

best compensation use, e.g., for the aggregate, indirect, prospective benefit of the class.‖ Nachshin

26

v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011) (citing Masters v. Wilhelmina Model Agency,

27

Inc., 473 F.3d 423, 436 (2d Cir.2007)). A cy pres remedy must ―bear[] a substantial nexus to the

28

interests of class members.‖ Lane v. Facebook, 696 F.3d 811, 821 (9th Cir. 2012) cert. denied,
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

13

1

134 S. Ct. 8 (2013). In evaluating the cy pres component of a class settlement, courts look to

2

factors set forth in Six Mexican Workers, 904 F.2d at 1305. Specifically, the cy pres remedy ―must

3

account for the nature of the plaintiffs‘ lawsuit, the objectives of the underlying statutes, and the

4

interests of the silent class members . . . .‖ Nachshin, 663 F.3d at 1036 (citing Six Mexican

5

Workers, 904 F.2d at 1307).

6

The cy pres plan in this case would distribute equal sums to the following organizations:

7

Consumers Union (Yonkers, NY). Consumers Union is a non-profit organization with a

8

mission ―to work for a fair, just and safe marketplace for all consumers and to empower

9

consumers to protect themselves.‖ (Gutride Decl. – ECF No. 148-1, ¶ 79.) It publishes Consumer
Reports magazine and website (www.consumerreports.org), as well as The Consumerist Blog

11
United States District Court
Northern District of California

10

(www.consumerist.com), both of which provide information of interest to consumers, such as

12

product reviews and information about false-advertising scams. Consumers Union is also active in

13

educating consumers about food labeling. It operates the website Not In My Food

14

(www.notinmyfood.org), which provides information to consumers about the presence of

15

genetically modified organisms (GMOs) and other controversial ingredients in food. It also

16

lobbies for better food-labeling laws. In October 2014, Consumer Union published an article in

17

Consumers Reports entitled, ―GMOs and Food: Do you know what you‘re eating?‖ (See

18

http://www.consumerreports.org/cro/news/2014/10/gmos-and-food-do-you-know-what-you-are-

19

eating/index.htm, last accessed December 20, 2014.) Consumers Union has been approved as a cy

20

pres recipient in numerous false-advertising lawsuits. See, e.g. Nigh v. Humphreys Pharmacal,

21

Inc., 2013 WL 5995382, *9 (S.D. Cal. Oct. 23, 2013) (―the Court finds that this cy pres

22

distribution to Consumers Union reflects the objectives of the UCL and CLRA; reflects the

23

interests of silent Class Members; and benefits the Plaintiff Class, who are consumers that

24

purchased Products based on false and misleading representations‖); Dennis v. Kellogg Co., 2013

25

WL 6055326, *1 (S.D. Cal. Nov. 14, 2013), appeal dismissed (May 15, 2014) (approving

26

Consumers Union as a cy pres recipient in food-labeling class action).

27
28

National Consumer Law Center (Washington, DC). The National Consumer Law Center
(NCLC) advocates on behalf of consumers, providing legal services and aid, and representing
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

14

them on matters of interest before Congress and state legislatures and by filing amicus briefs in

2

courts. (Gutride Decl. – ECF No. 148-1, ¶ 80.) In 2009, it published ―Consumer Protection in the

3

States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes,‖ which analyzed

4

and summarized the unfair-and-deceptive-acts-and-practices (UDAP) laws that protect consumers

5

in each state and the District of Columbia, spotlighted limitations in these laws and in their

6

enforcement, and made proposals for reform. It also provides help to litigation counsel

7

representing persons with incomes below 200% of the federal poverty line in matters involving

8

consumer sales and services. NCLC has been approved as a cy pres recipient in other consumer

9

class actions, including recent food-labeling cases. See, e.g., Johnson, 2013 WL 3213832, at *1

10

(N.D. Cal.); Custom LED, LLC v. eBay, Inc, 2014 WL 2916871, *10 (N.D. Cal. June 24, 2014).

11
United States District Court
Northern District of California

1

University of California, Davis – Food Science & Technology Department. The Food

12

Science & Technology Department of UC Davis is an internationally recognized program that

13

researches food safety and quality. Its scientists work on food chemistry, food processing, and

14

food microbiology. It also operates the August A. Busch III Brewing and Food Science

15

Laboratory, where research is performed into issues relating to the processing of many fruits,

16

dairy, and beverage products. For example, the department has conducted studies into the presence

17

of GMOs and hormones in food. UC Davis is part of the publicly funded University of California

18

system. (Gutride Decl. – ECF No. 148-1, ¶ 81.)

19

Florida State University – Nutrition, Food & Exercise Science Department. Florida State

20

University‘s Department of Nutrition, Food and Exercise Sciences offers undergraduate and

21

graduate degrees in Dietetics and Food & Nutrition and conducts research in human nutrition and

22

food science, as well as sports nutrition, sports sciences, and exercise physiology. The department

23

facilitates integrative studies on diet and physical activity in the maintenance of health and the

24

prevention and treatment of selected chronic disease states, as well as studies on the quality and

25

safety of food and on optimal human performance. The department‘s Nutrition and Food

26

Instrument Laboratory provides a setting for chemical, analytical, and microbiology testing.

27

Florida State University is publicly funded. (Id., ¶ 82.)

28

There is the required geographic nexus between these organizations and the nationwide class.
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

15

1

See Nachshin, 663 F.3d at 1039-40 (cy pres award in nationwide class suit must serve

2

―geographically diverse‖ area). The organizations were chosen to meet the legal needs of

3

consumers nationwide. All four organizations serve consumers nationally. The University of

4

California and Florida State University were chosen because of their geographic diversity and

5

impact, which will benefit class members nationwide. Cf. In re EasySaver Rewards Litig., 921 F.

6

Supp. 2d 1040, 1052 (S.D. Cal. 2013) (finding that donations to Los Angeles-based organizations

7

for the creation of educational materials will benefit a nationwide class because ―the internet is not

8

limited by geographic boundaries, and the educational impact of the funded academic programs

9

will have a nation-wide impact‖).

10

X. OBJECTIONS TO THE SETTLEMENT

United States District Court
Northern District of California

11

A. Preliminary Questions: The Objectors Lack Standing

12

The first objector, Carol Dierkes, urges the court to ―dismiss‖ the case as ―frivolous‖ because

13

no physical injury befell plaintiffs. (ECF No. 146.) Physical injury is not required where the harm

14

complained of is economic. See, e.g., Kosta v. Del Monte Corp., 2013 WL 2147413, *11-12 (N.D.

15

Cal. May 15, 2013) (―Plaintiffs allege that Del Monte has created misleading labeling and

16

advertising . . . that . . . caused them to purchase products or pay premiums they would not have

17

otherwise.‖). Because Ms. Dierkes does not complain about the terms of the settlement itself, there

18

is nothing more in her objection for the court to consider.

19

The plaintiffs have asked the court to strike the remaining two objections, those by Michael

20

Narkin (ECF No. 159; in pro per) and Brittany Ference (ECF No. 153; represented by Matthew

21

Kurlich). The plaintiffs argue that Mr. Narkin and Ms. Ference have not complied with the stated

22

procedures for establishing membership in the class. In the preliminary approval order, which was

23

posted on the Settlement Website, this court ordered:

24
25
26
27
28

Each such objection must include the following: (1) the name,
address, and telephone number of the Settlement Class Member; (2)
documents or testimony sufficient to establish membership in the
Settlement Class; and (3) a detailed statement of any objection
asserted, including the grounds therefor and reasons, if any, and for
requesting the opportunity to appear and be heard at the fairness
hearing. Failure to include the foregoing information will constitute
grounds for striking an objection.
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

16

1

(ECF No. 141, at 14.) The court finds that, in fact, all three objectors have failed to establish their

2

standing to challenge the settlement. Ms. Ference and Mr. Narkin have not complied with these

3

procedures and so have not established that they are class members. Ms. Ference did not provide

4

her address, nor did she provide any documents or testimony to establish that she is a class

5

member. Nothing in her objection states that she bought any Ghirardelli products.4 Nothing in Ms.

6

Diereke‘s short letter states that she bought a Ghirardelli product. (ECF No.146.) While Mr.

7

Narkin, a former California-licensed attorney, did state, ―I declare that I purchased, in the United

8

States, at least one of the covered Ghirardelli products during the class period,‖ he does not

9

identify which product he bought, or when, nor does he make the statement under penalty of
perjury, so it does not constitute ―testimony.‖ See Fed. R. Evid. 603 (requiring oath or

11
United States District Court
Northern District of California

10

affirmation); 28 U.S.C. § 1746 (allowing substitute testimony by declaration under penalty of

12

perjury). It is therefore proper for the court to strike their objections. See, e.g., In re Hydroxycut

13

Mktg. & Sales Practices Litig., 2013 WL 5275618, at *2 (S.D. Cal. Sept.17, 2013) (striking

14

objection because objector had not ―carried his burden of proving standing as a class member‖); In

15

re Korean Air Lines Co. Antitrust Litig., 2013 WL 7985367, at *2 (C.D. Cal. Dec. 23, 2013)

16

(finding objectors lack standing for failure to show class membership); Kent v. Hewlett-Packard

17

Co., 2011 U.S. Dist. LEXIS 106825 *7 (N.D. Cal. Sept. 20, 2011) (―Because they are not

18

members of the class, the Ziegenfelders lack standing to object.‖); San Francisco NAACP v. San

19

Francisco Unified School Dist., 59 F. Supp. 2d 1021, 1032 (N.D. Cal. 1999) (―nonclass members

20

have no standing to object to the settlement of a class action‖); Tarlecki v. Bebe Stores, Inc., 2009

21

U.S. Dist. LEXIS 102531 (N.D. Cal. Nov. 3, 2009) (―Since she is not a class member, she has no

22

standing to object to the settlement.‖); Glass v. UBS Fin. Servs., Inc., 2007 U.S. Dist. LEXIS

23

8476, 2007 WL 221862, at *8 (N.D. Cal. Jan. 26, 2007) (same); see also Feder v. Elec. Data Sys.

24

Corp., 248 Fed. Appx. 579 *2 (5th Cir. 2007) (objectors have burden of proving standing;

25
4

26
27
28

Her attorney has provided this type of information in support of other objections. See, e.g., Roos,
et al. v. Honeywell International, Inc., CGC-04-436205 (S.F. Superior Court), available at
file:///Documents/Plaintiffs'%20Response%20to%20Objections%20(00042458-3).PDF; Stanley
Nader v. Capital One Bank USA, N.A. et al, Case No., 2:12-cv-01265-DSF (C.D. Cal) Dkt.# 160,
filed Sept. 2, 2014).
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

17

1

―unsupported assertions of class membership‖ do not suffice).

2

The court therefore finds that all three objectors lack standing and strikes their objections.

3

B. The Objections Lack Merit

4

Even if the objectors had proven their membership in the class, the challenges they raise do not

5

persuade the court that the settlement should not be approved as ―fair, adequate, and reasonable.‖

6

Their objections touch on three topics.

7
8
9

1. Collusion
First, both objectors refer to perceived collusion, but this court finds no evidence of collusion.
Ms. Ference‘s objection about collusion is too unspecific to impugn the settlement. Mr. Narkin
contends that the entry of the protective order governing confidential documents indicates

11
United States District Court
Northern District of California

10

unfairness and collusion and deprives him of his purported right as a class member to view all the

12

documents submitted in the litigation. (ECF No. 159 at 1-3.) There is no evidence that Mr. Narkin

13

has ever asked to see any particular document. And objectors do not have an unfettered right to

14

discovery. See In re Wachovia Corp. Pick-A-Payment Mortgage Mktg. & Sales Practices Litig.,

15

2011 WL 1496342, *1 (N.D. Cal. Apr. 20, 2011) (―While objectors are entitled to meaningful

16

participation in the settlement proceedings, and leave to be heard, they are not automatically

17

entitled to discovery or to question and debate every provision of the proposed compromise.‖).

18

The court finds no indication of collusion anywhere in this lawsuit and cannot accept these

19

objections.

20
21

2. Cy pres distribution
Ms. Ference and Mr. Narkin raise several objections to the cy pres distributions, but they are

22

not well taken. For example, Ms. Ference objects that cy pres is inappropriate because the

23

remainder could instead be distributed as a ―pro-rata increase‖ to class members who made claims.

24

No authority is provided for the argument, which would not only give claimants a windfall

25

(perhaps entitling them to refunds exceeding their purchase price), but would also disadvantage

26

the large majority of the class members who did not make claims. Instead, the cy pres awards

27

ensure that non-claiming class members also receive benefits through the services provided by the

28

named organizations, such as advocacy, enforcement, representation, information, education and
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

18

1

research. See Hayes v. Arthur Young & Co., 1994 WL 463493, at *17 (9th Cir. 1994)

2

(―Distributing the unclaimed funds pro rata would thus give the claiming class members a windfall

3

. . . . Thus, any excess unclaimed damages should not be distributed among the claiming

4

plaintiffs.‖); In re EasySaver Rewards Litig., 921 F. Supp. 2d 1040, 1053 (S.D. Cal. 2013)

5

(approving cy pres award because absent class members would not benefit from further

6

distribution to claimants).
Ms. Ference next argues that the cy pres payments might reduce Ghirardelli‘s preexisting

8

charitable contributions or obligations. Ghirardelli has stated that it has not donated money to

9

these organizations in recent years. (Isip Decl. – ECF No. 161 at 2-3, ¶ 5.) And Ms. Ference‘s

10

argument does not logically apply to a non-reverting common-fund settlement, where no one

11
United States District Court
Northern District of California

7

knows at the outset how much money might be left unclaimed. Furthermore, this court is unaware

12

of any authority that suggests that a defendant‘s preexisting charitable contributions should be a

13

factor in analyzing a cy pres portion of a common-fund settlement.

14

Finally, Mr. Narkin contends, without explanation, that the cy pres provision is inappropriate,

15

because the charities that would receive the money were not injured, and the cy pres distribution

16

―may violate the rule against perpetuities.‖ The court finds these objections unconvincing.

17
18

3. Attorney’s fees
Mr. Narkin and Ms. Ference object to the proposed fee award. First, Mr. Narkin objects that

19

―the amount of the proposed attorney fees of up to $1,575,000 constitutes over reaching [sic] and

20

represents unjust enrichment.‖ (ECF No. 159 at 1.) He offers no further explanation or analysis.

21

Such ―[c]onclusory and unsubstantiated objections are not sufficient to warrant a reduction in

22

fees.‖ Lucas v. White, 63 F. Supp. 2d 1046, 1057 (N.D. Cal.1999) (holding that ―The party

23

opposing the fee application has a burden of rebuttal that requires submission of evidence to the

24

district court challenging the accuracy and reasonableness of the hours charged or the facts

25

asserted by the prevailing party in its submitted affidavits.‖); accord In re Toyota Unintended

26

Acceleration, 2013 WL 8541175 (C.D. Cal. July 24, 2013) (rejecting unsupported objections to a

27
28
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

19

1

proposed fee award); EnPalm, LLC v. Teitler, 162 Cal.App.4th 770, 775 (2008) (same).5
Ms. Ference makes two comments on the value of the changed labeling practices. First, she

2
3

claims that the labeling changes have no value because they will only be maintained for three

4

years. The court finds that three years is significant. As Ghirardelli asserts, there is currently a lack

5

of regulatory guidance as to the definition of the term ―all natural,‖ and Ghirardelli is bound to

6

keep the label changes in place for the next three years regardless of changes in the regulatory

7

environment during that time — even if those regulatory changes make clear that Ghirardelli‘s use

8

of the term was correct. (ECF No. 149-3, ¶¶3, 13.)
Ms. Ference then claims that, if after three years Ghirardelli reverts to the old packaging, class

9

members will have released claims for subsequent purchases. That argument evinces a

11
United States District Court
Northern District of California

10

misunderstanding of the law and the terms of the release, as there is no release of claims about

12

future conduct or injuries that have not yet occurred. See Ball v. Johanns, 2007 WL 3124962, at

13

*4 (E.D. Cal. Oct. 24, 2007) (full release under Civil Code section 1542 did not bar claims based

14

on subsequent injury, as statute ―relates only to those claims that ‗exist ... at the time of executing

15

the release‘‖). Instead, the settlement agreement expressly releases only claims that actually were,

16

or could have been, asserted in this lawsuit. (ECF No. 129-2, § 8.2.) Accordingly, the objections

17

are overruled.

18

XI.

RELEASES AND EFFECT OF THIS ORDER
By operation of this Final Approval Order and entry of judgment, Plaintiffs on the one hand,

19
20

and the Released Parties6 on the other hand, shall have unconditionally, completely, and

21

irrevocably released and forever discharged each other from and shall be forever barred from

22

instituting, maintaining, or prosecuting:

23
24
25
26

5

Mr. Narkin has made the same, identically phrased objection in the past, where it was also
overruled. Arnold v. Fitflop USA, LLC, 2014 WL 1670133, *8 (S.D. Cal. Apr. 28, 2014) (finding
―claim of an indicia of a consciousness of unfairness and collusion‖ without merit), appeal
dismissed (Oct. 20, 2014).
6

27
28

―Released Parties‖ means Defendant and its present and former subsidiaries, parents, affiliates,
divisions, officers, directors, members, managers, shareholders, insurers, suppliers (including, but
not limited to, Kerry, Inc.), manufacturers, re-sellers, distributors, brokers, service providers,
employees, agents, legal representatives, heirs, predecessors, successors, or assigns.
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB
20

1) any and all claims, liens, demands, actions, causes of action, obligations, damages or

1
2

liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or

3

unknown, that actually were, or could have been, asserted in this litigation, based upon any

4

violation of any state or federal statutory or common law or regulation, and any claim

5

arising directly or indirectly out of, or in any way relating to, the claims that actually were,

6

or could have been, asserted in this litigation, that Plaintiffs on the one hand, and

7

Defendant on the other hand, have had in the past, or now have, related in any manner to

8

the Released Parties‘ products, services or business affairs; and
2) any and all other claims, liens, demands, actions, causes of action, obligations, damages or

10

liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or

11
United States District Court
Northern District of California

9

unknown, that Plaintiffs on the one hand, and Defendant on the other hand, have had in the

12

past or now have, related in any manner to any and all Released Parties‘ products, services

13

or business affairs, or otherwise.
By operation of this Final Approval Order and entry of judgment, Settlement Class Members

14
15

shall have unconditionally, completely, and irrevocably released and discharged the Released

16

Parties from any and all claims, rights, demands, actions, causes of action, suits, debts, liens,

17

contracts, liabilities, agreements, costs, expenses, or losses of any kind whatsoever, including any

18

known or unknown claims, which actually were, or could have been, asserted in the Litigation or

19

that relate to: (1) the Romance Language; (2) allegations that the names Ghirardelli has used for its

20

White Chips, including ―Premium Baking Chips- Classic White‖ and ―Classic White Chips‖ are

21

confusing or misleading, or violate any FDA regulations or applicable laws; (3) allegations that

22

the White Chips are marketed in a manner that suggests or indicates that they are white chocolate

23

or chocolate, or that the White Chips contain white chocolate, chocolate, or cocoa butter; (4)

24

inaccuracies in the ingredient list on the White Chips labels; (5) allegations that the Products

25

contain ingredients that are not ―natural‖ or ―all natural‖ or that that Products themselves are not

26

―natural‖ or ―all natural;‖ or (6) allegations that the manufacturing process used in the Products or

27

ingredients for the Products renders the Products not ―natural‖ or not ―all natural.‖

28

///
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

21

1

Plaintiffs and Settlement Class Members shall, by operation of this Final Approval Order and

2

entry of judgment, be deemed to have waived the provisions, rights and benefits of California

3

Civil Code § 1542, and any similar law of any state or territory of the United States or principle of

4

common law. Section 1542 provides:

5
6
7

A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
Nothing herein shall bar any action or claim to enforce the terms of the Settlement Agreement.

8
No action taken by the Parties, either previously or in connection with the negotiations or
9
proceedings connected with the Settlement Agreement, shall be deemed or construed to be an
10
admission of the truth or falsity of any claims or defenses heretofore made or an acknowledgment
11
United States District Court
Northern District of California

or admission by any Party of any fault, liability or wrongdoing of any kind whatsoever to any
12
other Party. Neither the Settlement Agreement nor any act performed or document executed
13
pursuant to or in furtherance of the Settlement: (a) is or may be deemed to be or may be used as an
14
admission of, or evidence of, the validity of any claim made by the Settlement Class Members or
15
Class Counsel, or of any wrongdoing or liability of the persons or entities released under this
16
Order and the Settlement Agreement, or (b) is or may be deemed to be, or may be used as an
17
admission of, or evidence of, any fault or omission of any of the persons or entities released under
18
this Order and the Settlement Agreement, in any proceeding in any court, administrative agency,
19

or other tribunal. Defendant‘s agreement not to oppose the entry of this Final Approval Order shall

20
not be construed as an admission or concession by Defendant that class certification was
21
appropriate in the Litigation or would be appropriate in any other action.

22
Except as provided in this Order, Plaintiffs shall take nothing against Defendant by their
23
Complaint. This lawsuit is hereby dismissed on the merits and with prejudice and final judgment
24
shall be entered thereon, as set forth in this Order.
25
Without affecting the finality of the judgment hereby entered, the Court reserves jurisdiction
26
over the implementation of the Settlement Agreement.
27
28
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

22

CONCLUSION

1
2

The court hereby confirms its provisional appointments of class representatives and class

3

counsel as reflected in its preliminary approval order, grants final approval of the settlement and

4

directs the parties and the claim administrator to comply with the terms of the settlement and to

5

distribute the common fund as reflected in the settlement and this order.

6

This disposes of ECF No. 148.

7

IT IS SO ORDERED.

8

Dated: February 20, 2015
______________________________________
LAUREL BEELER
United States Magistrate Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
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FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

23

APPENDIX A - List of Products

1

The following products are covered by this settlement:
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11

PRODUCT
Gourmet 100% Unsweetened Baking Chocolate Chips
Gourmet 58% Semisweet Chocolate for Baking Chips
Gourmet 72% Extra Bittersweet Baking Chocolate Chips
Gourmet Milk 32% Creamy Devotion

TYPE
Chips
Chips
Chips
Bag

Gourmet Milk 32% Creamy Devotion
Gourmet Milk 32% Creamy Devotion
Gourmet Milk 32% Creamy Devotion
Gourmet Milk Assorted

Bar
Square
Square
Bar

Gourmet Milk Sea Salt & Almonds
Gourmet Milk Sea Salt Escape

Bar
Bag

Gourmet Milk Toasted Coconut
Intense Dark Assorted

Bar
Bag

Intense Dark Cabernet Matinee
Intense Dark Cherry Tango
Intense Dark Espresso Escape
Intense Dark Espresso Escape
Intense Dark Evening Dream 60%
Intense Dark Evening Dream 60%
Intense Dark Hazelnut Heaven
Intense Dark Holiday Assorted
Intense Dark Midnight Reverie 86%

Bar
Bar
Bag
Bar
Bar
Squares
Bar
Bag
Bag

Intense Dark Midnight Reverie 86%
Intense Dark Midnight Reverie 86%
Intense Dark Mint Bliss
Intense Dark Mint Bliss
Intense Dark Sea Salt Soiree

Bar
Squares
Bag
Bar
Bag

Intense Dark Sea Salt Soiree
Intense Dark Sea Salt Soiree
Intense Dark Toffee Interlude
Intense Dark Twilight Citrus Sunset
Intense Dark Twilight Delight 72%

Bar
Squares
Bar
Bar
Bag

Intense Dark Twilight Delight 72%
Intense Dark Twilight Delight 72%

Bar
Squares

12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27

SIZE
10 oz
10 oz
10 oz
5.25 oz; 6
oz
3.5 oz
Bulk
Bulk
Mixed (72
ct)
3.5 oz
4.5 oz; 5.25
oz
3.5 oz
6.38 oz; 4.5
oz; 19.14
oz; 15.01
oz
3.5 oz
3.5 oz
4.87 oz
3.5 oz
3.5 oz
Bulk
3.5 oz
7.13 oz
4.12 oz;
4.87 oz
3.17 oz
Bulk
4.87 oz
3.5 oz
4.12 oz;
4.87 oz
3.5 oz
Bulk
3.5 oz
3.5 oz
4.87 oz;
5.62 oz
3.5 oz
Bulk

28
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

24

PRODUCT
Intense Dark Valentines Assorted

TYPE
Bag

Luxe Milk
Luxe Milk
Luxe Milk
Luxe Milk Almond
Luxe Milk Almond
Luxe Milk Almond
Luxe Milk Assorted

Bag
Bar
Squares
Bag
Bar
Squares
Bag

Luxe Milk Crisp
Luxe Milk Crisp
Luxe Milk Crisp
Luxe Milk Dark Duet
Luxe Milk Hazelnut
Luxe Milk Hazelnut
Luxe Milk Hazelnut
Luxe Milk Holiday Assorted
Luxe Milk Holiday Assorted (Premium)

Bag
Bar
Squares
Bar
Bag
Bar
Squares
Bag
Bag

Luxe Milk Toffee
Luxe Milk Valentine‘s Heart

Bar
Squares

Luxe Milk Valentines Assorted
Luxe Milk Valentines Assorted (Premium)
Premium Baking Bar - 100% Cacao Unsweetened
Premium Baking Bar - 60% Cacao Bittersweet Chocolate
Premium Baking Bar - 70% Cacao Extra Bittersweet Baking Bar
Premium Baking Bar - Milk Chocolate
Premium Baking Bar - Semi Sweet Chocolate
Premium Baking Bar - White Chocolate
Premium Baking Chips - 60% Cacao

Bag
Bag
Bar
Bar
Bar
Bar
Bar
Bar
Chips

Premium Baking Chips - 60% Cacao Bittersweet Chocolate

Chips

26

Premium Baking Chips - Classic White
Premium Baking Chips - Classic White Chips
Premium Baking Chips - Double Chocolate Bittersweet Chips

Chips
Chips
Chips

27

Premium Baking Chips - Milk Chocolate

Chips

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25

28
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

SIZE
7.13 oz; 4.5
oz
5.25 oz
3 oz; 3.5 oz
Bulk
4.75 oz
3 oz; 3.5 oz
Bulk
22.38 oz;
8.11 oz;
8.28 oz
4.69 oz
2.81 oz
Bulk
3 oz
4.75 oz
3 oz
Bulk
8.44 oz
8.64 oz;
9.64 oz;
10.64 oz
3 oz; 3.5 oz
6.17 oz;
8.28 oz ;
Mixed 6.1
oz
8.44 oz
8.64 oz
4 oz
4 oz
4 oz
4 oz
4 oz
4 oz
11.5 oz; 8.8
oz; 11 oz;
10 oz
3.5 lb; 3.0
lb; 30 oz
11 oz
11 oz
3.0 lb; 3.5
lb
32 oz; 11.5
oz
25

PRODUCT
Premium Baking Chips - Semi Sweet Chocolate

TYPE
Chips

3

Premium Baking Chips – Semi Sweet Mini

4

Mini
chips

Premium Baking Cocoa - Sweet Ground Chocolate
Premium Baking Cocoa - Unsweetened Cocoa
Sublime White Cookies Jubilee
Sublime White Vanilla Dream
Sublime White Vanilla Dream
Sublime White Vanilla Dream

1
2

5
6
7

Bar
Bag
Bar
Squares

SIZE
36 oz; 12
oz; 11.5 oz;
10 oz
10 oz
16 oz
10 oz
3.17 oz
4.12 oz
3.17 oz
Bulk

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

26

APPENDIX B

1
2

Requests for Exclusion Received Timely as of February 18, 2015

3

#

Name

City

State

GCG ID#

5

1

Ada Diane Rico

Chicago

IL

L01044741

6

2

Adam Roberts

Indianapolis

IN

Y32682D678

3

Alex Morrow

Fresno

CA

YEE195C746

9

4

Amy K. Lawther

Manchester

MI

L01002353

10

5

Andrea Bunch

Roseville

CA

L01003424

11

6

Anne B. Young

Arroyo Grande

CA

L01008957

7

Ashley Holland

Olive Branch

MS

Y813393180

14

8

Belinda Willis

Forrest City

AR

YC4DE8EE4E

15

9

Brandy Spry

Yakima

WA

771E1027AF

16

10

Cheryl A. Borrelli

Trappe

PA

L01020765

11

Christine Sellard

Denver

CO

2988570F2D

19

12

Dale W. Johnson

Edinboro

PA

L01033652

20

13

David Henry Shanken

Millsboro

DE

Y99153A05C

21

14

Freder Lockett

Schererville

IN

Y9B6FE82D2

15

Gregory Andrews

Belfry

KY

Y02C7A51E0

24

16

Henry Padilla

San Tan Vly

AZ

L01003000

25

17

Isaac C. Sparks

Reisterstown

MD

Y9F6940DB1

26

18

Janice Lovekamp

Jackson

MO

Y8805AAFCC

19

Jason Pampena

Pittsburgh

PA

Y0C609E053

4

7

United States District Court
Northern District of California

8

12
13

17
18

22
23

27
28

FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

27

1

20

Jerald Wesley Depew

Levittown

PA

Y30325D129

2

21

John Seales

Ponca City

OK

L01001150

3

22

Jose Aguirre

Loveland

CO

Y0DD88BA90

23

Joseph Christopher
Pianta

Erie

PA

YC461E62FF

24

Joseph P. Best

Nashville

IN

Y561C111D4

8

25

Justin Silverman

Johns Island

SC

L01035063

9

26

Kallyne Jeffries

Albany

NY

YA6CDACFCF

27

Katie McGuire

Palm Bay

FL

Y60D76EE97

28

Broken Arrow

OK

L01024888

Suisun City

CA

Y2F10D0D33

Madison Ark
Forrest City
Reno
Euclid
Independence
Snohomish
Temperance
Charlotte

AR
AR
NV
OH
MO
WA
MI
NC

YC2EC6271D
Y3E6C7228D
YFE1280E5A
Y0D9E214A1
L01012253
YC567915BC
YCBEAD423D
Y6823FD4A4

Clermont

FL

2B375E984D

Los Angeles
Elizabeth
Pine Ridge
San Francisco
Southaven
Beaverton
Baden
Manhattan
Beach
Des Moines

CA
NJ
SD
CA
MS
OR
PA

Y8E4CE7C56
L01002595
Y8AE0050AA
L01014591
YB3F834200
L01028872
Y99F3C153F

CA

Y5D4CFEF0D

IA

YA46EA92AE

4
5
6
7

10

United States District Court
Northern District of California

11

19

30
31
32
33
34
35
36
37

20

38

21

39
40
41
42
43
44
45

Kevin Beck
Lakeitha BradshawMacias
Landy Willis
Larry Hodges
Linda Eller
Lisa M. Lacey
Lisa McDonald
Loren Jones
Marc Sidoti
Marcella Ray
Mary Wadulack
Rodriguez
Michelle Patterson
Mikhail Nesterovich
Norton Richards
Philip Buonadonna
Porcia Hopkins
Robyn Darbyshire
Sandra Chidester

46

Sara James

47

Shawn Bowersock

12
13
14
15
16
17
18

22
23
24
25
26
27
28

29

FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

28

1

48
49

Sheila Byrns
Suzanne Mackillop

Laredo
Hemet

TX
CA

YBEACA1435
Y3E18B44E1

2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
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FINAL ORDER APPROVING SETTLEMENT – 12-4936 LB

29