Ang et al v. Bimbo Bakeries USA, Inc.

Filing 223

ORDER DIRECTING SUPPLEMENTAL FILING IN SUPPORT OF 217 MOTION FOR PRELIMINARY APPROVAL. Joint Statement due by 3/3/2020. Signed by Judge Haywood S. Gilliam, Jr. on 2/25/2020. (ndrS, COURT STAFF) (Filed on 2/25/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALEX ANG, et al.,
Plaintiffs,

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v.

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BIMBO BAKERIES USA, INC.,
Defendant.

United States District Court
Northern District of California

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Case No. 13-cv-01196-HSG
ORDER DIRECTING
SUPPLEMENTAL FILING IN
SUPPORT OF MOTION FOR
PRELIMINARY APPROVAL
Re: Dkt. No. 217

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Plaintiffs Alex Ang and Lynn Streit filed an unopposed motion for preliminary approval of

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class action settlement on December 13, 2019. See Dkt. No. 217. The Court held a hearing on the

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motion on February 13, 2020. See Dkt. No. 221. During the hearing on the motion for

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preliminary approval, the Court raised concerns about the scope of the absent class member

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releases contained in the proposed settlement agreement because they included claims that the

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Court did not certify in its order. Id. The parties subsequently filed a joint statement, attaching a

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revised settlement agreement for the Court’s consideration. See Dkt. No. 222, Ex. A (“revised

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SA”).

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Having reviewed the revised SA, the Court remains concerned about the structure of the

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settlement and the lack of notice to absent class members. Although the parties revised the

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language of the releases, under the settlement absent class members are still releasing “any Claims

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for injunctive, declaratory or other equitable relief that were certified for class treatment in the

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Class Certification Order.” SA at §§ 1.14, 8, 8.2. Under the parties’ proposal, however, absent

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class members will not receive any notice of this release and will not have any opportunity to

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object or opt out of the class should they find the injunctive relief somehow deficient. See Dkt.

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No. 217 at 7–8. The parties cite Grant v. Capital Mgmt. Servs., L.P., No. 10-CV-2471-WQH

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BGS, 2013 WL 6499698, at *6 (S.D. Cal. Dec. 11, 2013), in support of their contention that notice

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is not required under these circumstances. Yet critically, absent class members in Grant were not

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subject to any release of rights. It was because their legal rights remained unaffected that the court

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determined in its discretion that notice was not required. Id. (“In this case, the settlement

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agreement does not bind the unnamed class members . . . . The Court exercises its discretion and

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does not direct notice here because the settlement does not alter the unnamed class members’ legal

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rights.”); accord Kim v. Space Pencil, Inc., No. C 11-03796 LB, 2012 WL 5948951, at *4 (N.D.

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Cal. Nov. 28, 2012). By contrast, the current release is intended to strip absent class members of

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rights they otherwise would retain.

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Additionally, the Court has identified some ambiguity in the injunctive relief provided for

United States District Court
Northern District of California

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in the settlement. See SA at § 4.4. Defendant certified that “[s]oy flour [was] removed from

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ingredients list” for several products. Id. Part of Plaintiffs’ underlying allegations were that it was

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misleading to label products as “100% Whole Wheat” if they contained soy flour. However, there

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is not an accompanying assertion in the SA that soy flour is not—or is no longer—an ingredient in

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these products. Removing soy flour from the ingredients list if the products still contain soy flour

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does not solve the identified problem, but seemingly compounds it. Before the Court can properly

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evaluate the benefits of the proposed settlement, it needs more clarity on these product and label

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changes.

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Accordingly, the Court’s inclination is still to deny preliminary approval. In addition to

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clarifying the changes made to products containing soy flour, to move forward the parties may

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either remove any release from the SA as to absent class members or may propose a class notice

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plan. The parties are DIRECTED to file a supplemental joint statement addressing these issues

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and discussing how they would like to proceed. The parties shall file a joint statement of five

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pages or less by March 3, 2020.

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IT IS SO ORDERED.
Dated: 2/25/2020
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HAYWOOD S. GILLIAM, JR.
United States District Judge
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