McMorrow et al v. Mondelez International, Inc.

Filing 197

Order: (1) Granting Motion for Preliminary Approval of Class Settlement; and (2) Setting Final Approval Hearing for February 28, 2022, at 3:00 PM (ECF No. 196 ). Final Approval Hearing set for 2/28/2022 at 03:00 PM in Courtroom 4B before Judge Cynthia Bashant. Signed by Judge Cynthia Bashant on 11/17/21. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PATRICK MCMORROW, et al.,
Plaintiffs,

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Case No. 17-cv-02327-BAS-JLB
ORDER:

v.

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MONDELEZ INTERNATIONAL, INC.,

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(1) GRANTING MOTION FOR
PRELIMINARY APPROVAL OF
CLASS SETTLEMENT; AND

Defendant.

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(2) SETTING FINAL APPROVAL
HEARING FOR FEBRUARY 28,
2022, AT 3:00 p.m.

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(ECF No. 196)

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Plaintiffs Patrick McMorrow, Marco Ohli, and Melody DiGregorio brought this

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class action against Defendant Mondelez International, Inc., alleging that Mondelz labeled

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the belVita breakfast biscuits as “nutritious,” despite the biscuits’ high added sugar content.

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(Compl., ECF No. 1.) Plaintiffs now move unopposed, pursuant to Federal Rule of Civil

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Procedure 23(e), for preliminary approval of a settlement reached between the parties and

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for certification of a settlement class. (Mot., ECF No. 196.) The Court finds this motion
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suitable for determination on the papers submitted and without oral argument. See Fed. R.

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Civ. P. 78(b); Civ. L.R. 7.1(d)(1). Having read and considered the Settlement Agreement,

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Plaintiffs’ Motion, and the arguments of counsel, the Court GRANTS Plaintiffs’ motion

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for preliminary approval of class action settlement.

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The Court hereby finds and orders as follows:

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1. Settlement Terms. All capitalized terms herein have the same meanings ascribed

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to them in the Settlement Agreement (ECF No. 196-2).
2. Jurisdiction. The Court has jurisdiction over the subject matter of the action and
over all parties to the action, including all members of the Settlement Class.

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3. Preliminary Approval of Proposed Settlement Agreement. The Court finds that,

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subject to the Final Approval hearing, the proposed Settlement Agreement is fair,

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reasonable, adequate, and within the range of possible approval considering the possible

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damages at issue and defenses to overcome. The Court also finds that the Settlement

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Agreement: (a) is the result of serious, informed, non-collusive, arms-length negotiations,

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involving experienced counsel familiar with the legal and factual issues of this case and

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made with the assistance and mediation services, Hon. Charles W. McCoy, Jr. (Ret.); and

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(b) meets all applicable requirements of law, including Federal Rule of Civil Procedure 23,

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and the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. Therefore, the Court

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grants preliminary approval of the Settlement.

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4. Class Certification for Settlement Purposes Only. The Court conditionally

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certifies, for settlement purposes only, a Settlement Class defined as all persons who,

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between November 16, 2013, and November 17, 2021 (the “Class Period”), purchased in

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the United States, for household use and not for resale or distribution, any of the Class

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Products which include Mondelez’s belVita Crunchy Biscuits, Soft Baked Biscuits, Bites,

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and Sandwiches Breakfast products (the “Class Products”).

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5. The Court finds, for settlement purposes only, that class certification under

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Federal Rule of Civil Procedure 23(b)(3) is appropriate in the settlement context because

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(a) the Settlement Class Members are so numerous that joinder of all Settlement Class
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Members is impracticable; (b) there are questions of law and fact common to the Settlement

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Class which predominate over any individual questions; (c) the claims of the Plaintiffs and

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proposed Class Representatives are typical of the claims of the Settlement Class; (d) the

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Plaintiffs and proposed Class Representatives and their counsel will fairly and adequately

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represent and protect the interests of the Settlement Class Members; (e) questions of law

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or fact common to the Settlement Class Members predominate over any questions affecting

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only individual Settlement Class Members; and (f) a class action is superior to other

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available methods for the fair and efficient adjudication of the controversy.

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6. Class Representatives. The Court appoints Plaintiffs Patrick McMorrow, Marco
Ohlin, and Melody DiGregorio as Class Representatives.

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7. Class Counsel. The Court appoints Fitzgerald Joseph LLP as Class Counsel.

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8. Settlement Class Administrator. The Court hereby approves Postlethwaite &

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Netterville (“P&N”) to act as Class Administrator. P&N shall be required to perform all

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the duties of the Class Administrator as set forth in the Agreement and this Order.

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9. Qualified Settlement Fund. P&N is authorized to establish the Settlement Fund

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under 26 C.F.R. §§ 1.468B-1(c) and (e)(1), to act as the “administrator” of the Settlement

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Fund pursuant to 26 C.F.R. § 1.468B-2(k)(3), and to undertake all duties as administrator

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in accordance with the Treasury Regulations promulgated under § 1.468B of the Internal

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Revenue Code of 1986. All costs incurred by the Class Administrator operating as

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administrator of the Settlement Fund shall be construed as costs of Claims Administration

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and shall be borne solely by the Settlement Fund. Interest on the Settlement Fund shall

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inure to the benefit of the Class.

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10. Class Notice. The Court approves the form and content of the Class Notice in

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the long form attached to the Settlement Agreement as Exhibit 1,1 the short form attached

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to the Settlement Agreement as Exhibit 2,2 and the other forms of notice submitted with

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Plaintiffs’ Motion for Preliminary Approval. The Court finds that dissemination of the

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(ECF No. 196-2 at 21–31)
(ECF No. 196-2 at 32–33)

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Class Notice as proposed in the Settlement Agreement and in P&N’s Notice Plan as set

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forth in the Declaration of Brandon Schwartz3 meets the requirements of Federal Rule of

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Civil Procedure 23(c)(2), and due process, and further constitutes the best notice

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practicable under the circumstances. Accordingly, the Court hereby approves the Notice

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Plan.

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11. Objection and Exclusion Deadline. Settlement Class Members who wish either

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to object to the Settlement or to exclude themselves from the Settlement must do so by the

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Objection Deadline and Exclusion Deadline of January 19, 2022. Settlement Class

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Members may not both object to and exclude themselves from the Settlement. If a

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Settlement Class Member submits both a Request for Exclusion and an Objection, the

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Request for Exclusion will be controlling.

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12. Exclusion from the Settlement Class. To submit a Request for Exclusion,

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Settlement Class Members must follow the directions in the Notice and submit online at

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the Settlement Website by the Exclusion Deadline, or send a compliant request to the Class

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Administrator at the address designated in the Class Notice, postmarked by the Exclusion

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Deadline. No Request for Exclusion may be made on behalf of a group of Settlement Class

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Members.

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13. All Settlement Class Members who submit a timely, valid Request for Exclusion

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will be excluded from the Settlement and will not be bound by the terms of the Settlement

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Agreement and any determinations and judgments concerning it. All Settlement Class

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Members who do not submit a valid Request for Exclusion by January 19, 2022, in

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accordance with the terms set forth in the Agreement, will be bound by all determinations

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and judgments concerning the Agreement.

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14. Objections to the Settlement. To object to the Settlement, Settlement Class

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Members should follow the directions in the Notice and file with the Court or mail to the

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Class Administrator a written Objection by the Objection Deadline. In the written

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(ECF No. 196-7)

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Objection, the Settlement Class Member should include (i) a caption or title that clearly

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identifies the Action and that the document is an objection, (ii) the Settlement Class

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Member’s name, current address, and telephone number, or—if objecting through

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counsel—his or her lawyer’s name, address, and telephone number, (iii) the Class

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Product(s) the Settlement Class Member bought during the Class Period, (iv) a clear and

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concise statement of the Class Member’s objection, as well as any facts and law supporting

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the objection, (v) the objector’s signature, and (vi) the signature of the objector’s counsel,

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if any. Upon the Court’s Order at the parties’ request, the Parties will have the right to

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obtain document discovery from and take depositions of any objecting Settlement Class

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Member on topics relevant to the Objection.

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15. If a Settlement Class Member does not submit a written Objection to the

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Settlement or to Class Counsel’s application for attorneys’ fees and costs or the Service

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Awards in accordance with the deadline and procedure set forth in the Notice and this

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Order, but the Settlement Class Member wishes to be appear and be heard at the Final

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Approval Hearing, the Settlement Class Member may do so provided the Objector satisfies

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the requirements of Federal Rule of Civil Procedure 23(e)(5)(A) at the Final Approval

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Hearing.

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16. Objecting Settlement Class Members may appear at the Final Approval Hearing

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and be heard. Such Class Members are requested, but not required, in advance of the Final

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Approval Hearing, to file with the Court or mail to the Class Administrator a Notice of

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Intent to Appear.

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17. All Members of the Settlement Class, except those who submit timely Requests

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for Exclusion, will be bound by all determinations and judgments regarding the Settlement,

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whether favorable or unfavorable to the Settlement Class.

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18. Submission of Claims. To receive a Cash Award, Settlement Class Members

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must follow the directions in the Notice and file a claim with the Class Administrator by

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the Claims Deadline of January 19, 2022. Settlement Class Members who do not submit a

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claim will not receive a Cash Award, but will be bound by the Settlement.
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19. Schedule of Future Events. The Court adopts the following schedule (with Day
“0” being the date of this Order):
Day

Approximate Weeks After
Preliminary Approval

Date of Preliminary Approval Order

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Deadline to commence 63-day notice period

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3 weeks

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Deadline for Plaintiffs to file Motion for
Attorney’s Fees, Costs, and Incentive Awards

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7 weeks

Notice Completion date, and deadline to make
a claim, opt out, and object

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9 weeks

Deadline for Plaintiffs to file Motion for Final
Approval

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12 weeks

Final Approval Hearing

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14 weeks

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Event

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20. Final Approval Hearing. A Final Approval Hearing is scheduled for February

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28, 2022, at 3:00 p.m., in Courtroom 4B, for the Court to determine whether the proposed

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settlement of the Action on the terms and conditions provided for in the Settlement

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Agreement is fair, reasonable, and adequate to the Settlement Class and should be finally

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approved by the Court; whether a Judgment should be entered; and to determine any

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amount of fees, costs, and expenses that should be awarded to Class Counsel and the

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amount of any service awards to Plaintiffs. The Court reserves the right to adjourn the date

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of the Final Approval Hearing without further notice to the members of the Settlement

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Class, and retains jurisdiction to consider all further applications arising out of or connected

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with the proposed Settlement.

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modifications as may be agreed to by the settling Parties, if appropriate, without further

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notice to the Settlement Class.

The Court may approve the Settlement, with such

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21. Stay of Proceedings. All proceedings in this action are stayed until further order

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of this Court, except as may be necessary to implement the Settlement or comply with the

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terms of the Settlement Agreement.

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22. Pending the final determination of whether the Settlement should be approved,

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the Settlement Class Representatives and all Settlement Class Members are hereby stayed

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and enjoined from commencing, pursuing, maintaining, enforcing, or prosecuting, either

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directly or indirectly, any Released Claims in any judicial, administrative, arbitral, or other

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forum, against any of the Released Parties. Such injunction will remain in force until Final

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Approval or until such time as the Parties notify the Court that the Settlement has been

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terminated. Nothing herein will prevent any Settlement Class Member, or any person

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actually or purportedly acting on behalf of any Settlement Class Member(s), from taking

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any actions to stay or dismiss any Released Claim(s). This injunction is necessary to

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protect and effectuate the Agreement, this Preliminary Approval Order, and the Court’s

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flexibility and authority to effectuate the Agreement and to enter Judgment when

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appropriate, and is ordered in aid of this Court’s jurisdiction and to protect its judgments.

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This injunction does not apply to any person who files a Request for Exclusion.

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23. If the Settlement is not approved or consummated for any reason whatsoever,

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the Settlement and all proceedings in connection with the Settlement will be without

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prejudice to the right of Defendant or the Class Representatives to assert any right or

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position that could have been asserted if the Agreement had never been reached or proposed

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to the Court, except insofar as the Agreement expressly provides to the contrary. In such

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an event, the certification of the Settlement Class will be deemed vacated. The certification

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of the Settlement Class for settlement purposes will not be considered as a factor in

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connection with any subsequent class certification issues.

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24. No Admission of Liability. By entering this Order, the Court does not make any

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determination as to the merits of this case. Preliminary approval of the Settlement

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Agreement is not a finding or admission of liability by Defendant. Furthermore, the

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Agreement and any and all negotiations, documents, and discussions associated with it will
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not be deemed or construed to be an admission or evidence of any violation of any statute,

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law, rule, regulation, or principle of common law or equity, or of any liability or

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wrongdoing by Defendant, or the truth of any of the claims. Evidence relating to the

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Agreement will not be discoverable or used, directly or indirectly, in any way, whether in

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this Action or in any other action or proceeding, except for purposes of demonstrating,

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describing, implementing, or enforcing the terms and conditions of the Agreement, this

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Order, the Final Approval Order, and the Judgment.

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25. Retention of Jurisdiction. The Court retains jurisdiction over the Action to

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consider all further matters arising out of or connected with the Settlement Agreement and

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the settlement described therein.
IT IS SO ORDERED.

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DATED: November 17, 2021

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