Allen v. Similasan Corporation et al
Filing
268
ORDER Granting 261 Joint Motion for Final Approval of Class Action Settlement. Signed by Judge Cynthia Bashant on 8/17/2017. (knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KIM ALLEN, LAINIE RIDEOUT and
KATHLEEN HAIRSTON, on behalf
of themselves, all others similarly
situated, and the general public,
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Plaintiffs,
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Case No. 12-cv-00376-BAS-JLB
ORDER GRANTING JOINT
MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT
v.
SIMILASAN CORPORATION,
Defendant.
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Plaintiffs filed this class action Complaint back in 2012, alleging that Similasan
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Corporation (“Similasan”) engaged in false or deceptive labeling of its homeopathic
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products. (ECF No. 58, Third Amended Complaint (“TAC”) (“the Action”)). Plaintiff
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Kim Allen withdrew as a named plaintiff leaving Lainie Rideout and Kathleen
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Hairston as the remaining two named plaintiffs. (ECF No. 69.)
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Now pending before the Court is the parties’ joint motion for final approval of
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class action settlement. (ECF No. 261.) The matter came on for hearing on August 7,
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2017. The Court has considered the Settlement Agreement and Release attached as
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Exhibit 1 to the Declaration of Deborah Dixon in Support of Joint Motion for Order
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Granting Preliminary Approval filed on April 8, 2017 (ECF No. 257-4 (“Settlement”
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or “Settlement Agreement”)), the record in the above-entitled lawsuit and the
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arguments and authorities of counsel. For the reasons stated below, the Court
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GRANTS this Motion. (ECF No. 261.)
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I.
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PROPOSED SETTLEMENT
The proposed Settlement Agreement applies to class members (“Class” or
“Class Members”) defined as:
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purchasers of all Similasan Corporation homeopathic Products
nationwide for personal or household use and not for resale, as listed in
Exhibit A to this Agreement from February 10, 2008 to the present.
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(Settlement § 2.6.)
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The Settlement contemplates that Similasan will establish a fund of $700,000.
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(Settlement Agreement § 5.1.2.) Class members may submit a claim form with a
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declaration that they purchased a class product that did not provide any relief. (Id. §
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6.2.) Alternatively, class members may submit a proof of purchase for each class
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product purchased. (Id.) Claimants without a proof of purchase are limited to one
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claim. Claimants with a valid proof of purchase may submit a claim for each class
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product purchased. (Id.)
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Claimants submitting a proof of purchase are entitled to full repayment of their
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purchase price. Claimants submitting a declaration are entitled to reimbursement
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which counsel estimates will be at least $3.50. (Decl. of Deborah Dixon in Support of
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Joint Motion for Order Granting Final Approval of Class Action Settlement (ECF No.
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261-2) ¶ 5.) This amount is just under the national average for each product. (Id.) In
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addition to monetary consideration for the Settlement, Similasan has agreed to make
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label changes to its products, providing more information to future purchasers of the
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products, something Plaintiffs have sought since the outset of the case. (Settlement
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Agreement § 5.2.)
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In return for these benefits, Plaintiffs and Settlement Class Members will
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release Defendant from any claims arising from the allegations in the operative
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complaint concerning the class products. (Settlement Agreement § 8.) Class members
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will not waive any right to pursue personal injury claims or redress their claims, if
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any, with any governmental agency. (Id.)
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II.
ANALYSIS
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The Ninth Circuit maintains a “strong judicial policy” that favors the settlement
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of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).
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However, Federal Rule of Civil Procedure 23(e) first “require[s] the district court to
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determine whether a proposed settlement is fundamentally fair, adequate, and
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reasonable.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000)
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(citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). Where the
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“parties reach a settlement agreement prior to class certification, courts must peruse
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the proposed compromise to ratify both the propriety of the certification and the
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fairness of the settlement.” Stanton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003).
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In these situations, settlement approval “requires a higher standard of fairness and a
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more probing inquiry than may normally be required under Rule 23(e).” Dennis v.
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Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (internal quotation marks omitted).
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Before granting preliminary approval of a class-action settlement, the Court must first
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determine whether the proposed class can be certified. Amchem Prods., Inc. v.
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Windsor, 521 U.S. 591, 620 (1997) (indicating that a district court must apply
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“undiluted, even heightened, attention [to class certification] in the settlement
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context” in order to protect absentees).
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For the reasons outlined in the Court’s Order Granting Joint Motion for
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Preliminary Approval of Class Action Settlement (ECF No. 258), the Court concludes
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that class certification under Rules 23(a) and (b)(3) of the Federal Rules of Civil
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Procedure is appropriate in this case.
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The Court further finds that the Proposed Settlement is “fair, adequate and
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reasonable” under Rule 23(e) of the Federal Rules of Civil Procedure. “It is the
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settlement taken as a whole, rather than the individual component parts, that must be
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examined for overall fairness.” Hanlon, 150 F.3d at 1026. A court may not “delete,
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modify or substitute certain provisions” of the settlement; rather, “[t]he settlement
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must stand or fall in its entirety.” Id.
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“[S]ettlement approval that takes place prior to formal class certification
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requires a higher standard of fairness.” Hanlon, 150 F.3d at 1026. Consequently, a
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district court “must be particularly vigilant not only for explicit collusion, but also for
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more subtle signs that class counsel have allowed pursuit of their own self-interests
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and that of certain class members to infect the negotiations.” In re Bluetooth Headset
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Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). Other relevant factors to this
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determination include, among others, “the strength of the plaintiffs’ case; the risk,
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expense, complexity, and likely duration of further litigation; the risk of maintaining
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class-action status throughout the trial; the amount offered in settlement; the extent of
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discovery completed and the stage of the proceedings; the experience and views of
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counsel; the presence of a governmental participant; and the reaction of the class
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members to the proposed settlement.” Hanlon, 150 F.3d at 1026; see also Churchill
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Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). Here, as outlined in
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the Court’s Order Granting Preliminary Approval of the Class Action Settlement (ECF
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No. 258), the parties’ Joint Settlement Agreement complies with all of these
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requirements.
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The Court previously approved the form and manner of Notice to the class
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members. (ECF No. 258.) The Court now finds the Class Notice program was
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executed as previously detailed in its Order. (Declaration of Michelle Gillette in
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Support of Joint Motion for Order Granting Final Approval of Class Action
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Settlement–CAFA Compliance (ECF No. 262); Declaration of Compliance by Class
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Action Administrator Gajan Retnasaba (ECF No. 263.). The Court finds the class
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notice satisfies due process. The Settlement Administrator has received no objections
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to the settlement or requests for exclusion (Id.)
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Although the settlement may not result in a full refund to every Class Member,
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the Court finds it is fundamentally fair, given the harm that was alleged. See Lane v.
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Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (“[T]he question whether a
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settlement is fundamentally fair within the meaning of Rule 23(e) is different from the
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question whether the settlement is perfect in the estimation of the reviewing court.”)
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III.
CONCLUSION
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For the reasons stated both in this Order as well as its previous Order Granting
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Preliminary Approval of the Class Action Settlement, the Court GRANTS the parties’
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Joint Motion for Final Approval of Class Action Settlement. (ECF No. 261.)
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The Court ORDERS as follows:
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1. The Judgment incorporates by reference the definitions in the Settlement,
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including its exhibits, and all terms used herein shall have the same meanings
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as set forth in the Settlement;
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2. The Court has jurisdiction over the subject matter of this Action and all Parties
to the Action, including all Settlement Class members;
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court certifies
the following Class for settlement purposes:
purchasers of all Similasan Corporation homeopathic Products
nationwide for personal or household use and not for resale, as listed in
Exhibit A to this Agreement from February 10, 2008 to the present.
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4. Pursuant to Rule 23(c)(3) of the Federal Rules of Civil Procedure, all such
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persons who satisfy the Class definition above, except those Class Members
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who timely and validly excluded themselves from the Settlement Class, are
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Settlement Class Members bound by this Judgment.
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5. Pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, the Court finds
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that the named plaintiffs in this Action, Lainie Rideout and Kathleen Hairston
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are members of the Settlement Class, his/her claims are typical of the Settlement
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Class, and he/she fairly and adequately protected the interests of the Settlement
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Class throughout the Proceedings in the Action. Accordingly, the Court
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appoints Lainie Rideout and Kathleen Hairston as Class Representatives.
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6. The Court finds that the Settlement Class meets all requirements of Rules 23(a)
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and (b)(3) of the Federal Rules of Civil Procedure for certification of the class
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claims alleged in the Complaint, including: (a) numerosity; (b) commonality;
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(c) typicality; (d) adequacy of the Class Representative and Class Counsel; (e)
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predominance of common questions of fact and law among the Class; and (f)
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superiority;
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7. Having considered the factors set forth in Rule 23(g)(1) of the Federal Rules of
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Civil Procedure, the Court finds that the Law Offices of Ronald A. Marron,
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APLC; Gomez Trial Attorneys; and the Law Offices of Dean Goetz have fairly
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and adequately represented the Class for purposes of entering into and
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implementing the Settlement, and thus appoints these lawyers as Class Counsel
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for the Settlement Class;
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8. In accordance with the Court’s Preliminary Approval Order and the Court-
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approved notice program, the Claims Administrator caused the Class Notice to
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be disseminated as ordered. The Class Notice advised Class Members of the
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terms of the Settlement, of the Final Approval Hearing, and their right to appear
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at such hearing, of their rights to remain in or opt out of the Settlement Class
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and to object to the Settlement, procedures for exercising such rights, and the
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binding effect of this Judgment to the Settlement Class;
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9. The distribution of the Class Notice constituted the best notice practicable under
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the circumstances, and fully satisfies the requirements of Rule 23 of the Federal
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Rules of Civil Procedure, the requirements of due process, 28 U.S.C. §1714,
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and any other applicable law;
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10. The Settlement proposed by the parties is fair, reasonable and adequate. The
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terms and provisions of the Settlement are the product of lengthy, arms-length
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negotiations conducted in good faith. Approval of the Settlement will result in
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substantial savings of time, money and effort to the Court and the parties, and
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will further the interests of justice;
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11. No Class Members have timely or validly submitted requests for exclusion
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from the class. Therefore, all Settlement Class Members are bound by this
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Judgment and by the terms of the Settlement;
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12. The Court awards attorney’s fees, costs and an incentive service award to
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Class Counsel and the named Plaintiffs as set forth in the Court Order submitted
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simultaneously with this Order;
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13. The Court dismisses with prejudice the Action and all released claims set forth
in the Settlement Agreement;
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14. Without affecting the finality of this Judgment, the Court reserves jurisdiction
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over the implementation, administration and enforcement of this Judgment and
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the Settlement;
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15. There is no just reason for delay in the entry of this Final Judgment and Order
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approving Settlement and immediate entry by the Clerk of the Court is
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expressly directly pursuant to Rule 54(b) of the Federal Rules of Civil
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Procedure.
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IT IS SO ORDERED.
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DATED: August 17, 2017
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