Lisa Mollicone v. Universal Handicraft, Inc. et al

Filing 132

Amended Order Granting Joint Motion for Final Approval of Settlement, Plaintiffs Application for Service Awards, Class Counsels Application for Attorneys Fees and Expenses, and Final Judgment and Dismissal With Prejudice. Signed by Judge Robert N. Scola, Jr on 8/13/2018. See attached document for full details. (vmz) .

United States District Court
for the
Southern District of Florida
Lisa Mollicone, individually and on
behalf of all others similarly
situated, Plaintiffs,
v.
Universal Handicraft d/b/a Deep
Sea Cosmetics d/b/a Adore Organic
Innovations, and others,
Defendants.

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) Civil Action No. 17-21468-Civ-Scola
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Amended Order Granting Joint Motion for Final Approval of Settlement,
Plaintiffs’ Application for Service Awards, Class Counsel’s Application for
Attorneys’ Fees and Expenses, and Final Judgment and Dismissal With
Prejudice
On July 2, 2018, Plaintiffs Lisa Mollicone and Millie Land, on their own
behalf and on behalf of the Class defined below (hereafter collectively referred
to as “Plaintiffs” or “Class Representatives”) and Law Offices of Ronald A.
Marron, APLC and Cullin O’Brien Law, PA (together, “Class Counsel”) on behalf
of the Plaintiffs and by Defendants Universal Handicraft, Inc. and Shay Sabag
Segev (hereafter collectively referred to as “Defendants”) through their Counsel,
filed a Joint Motion for Final of the Settlement in this Action. (ECF No. 121.)
On July 2, 2018, Plaintiffs also filed an Unopposed Application for Service
Awards and for Class Counsel’s Attorneys’ Fees and Expenses. (ECF No. 122.)
Following notice to the Settlement Class, only six Settlement Class members
opted-out and one objection was filed by objector Pamela Sweeney. (ECF No.
123.)
This matter came before the Court on August 10, 2018 for a Final
Approval Hearing pursuant to the Court’s Preliminary Approval Order (ECF No.
120). The Court carefully reviewed all of the filings related to the Settlement
and heard argument on the Joint Motion for Final Approval and Plaintiffs’
Application for Service Awards and for Class Counsel’s Attorneys’ Fees and
Expenses.
After full consideration of the Motion for Final Approval and the
presentations of the Parties, the Court concludes that this Settlement provides

substantial recovery for the Settlement Class Members and is a good result
under the circumstances and challenges presented by the Action, and is not a
product of collusion. The Court specifically concludes that the Settlement is
fair, adequate, and reasonable compromise of the claims filed for the benefit of
the Settlement Class Members. The Settlement complies with Federal Rule of
Civil Procedure 23(e). Therefore, the Court grants the joint motion (ECF No.
121), and grants Final Approval of the Settlement, certifies the Settlement
Class, authorizes the payment of Service Awards in the reduced amount of
$3,500 to Lisa Mollicone and $1,500 to Millie Land, and awards attorneys’ fees
and costs to Class Counsel (“Final Approval Order”).
The Court now makes the findings of fact and conclusions of law set
forth in this Final Approval Order granting the Motion for Final Approval, and
ORDERS AND ADJUDGES as follows:
Final Approval of Settlement
1.
All of the definitions contained in the Parties Settlement Agreement
shall apply to this Final Approval Order and are incorporated by reference as if
fully set forth herein.
2.
This Court has jurisdiction over the subject matter of this Action,
the Settlement Class, and over individuals and entities undertaking affirmative
obligations under the Settlement.
3.
This Court approves the Settlement set forth in this Final Approval
Order and finds that the Settlement is, in all respects, fair, adequate, and
reasonable, and in compliance with all applicable requirements of Federal Rule
of Civil Procedure 23 and the United States Constitution (including the Due
Process Clause), and all other applicable law, including the six factors set forth
in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).1
Following the completion of the Notice Plan, there has been one objection by
Pamela Sweeney to the Settlement, which the Court finds lacks merit. In
addition, Ms. Sweeney did not submit a claim, and therefore lacks standing to
object. Accordingly, the objection (ECF No. 123) is overruled. As the
Settlement is in the best interests of the Parties and the Settlement Class, the
Court directs the Parties and their counsel to implement and consummate the

The Eleventh Circuit has identified six factors to be considered in analyzing the
fairness, adequacy, and reasonableness of a class action settlement under Rule 23(e):
(1) the existence of fraud or collusion behind the settlement; (2) the complexity,
expense, and likely duration of the litigation; (3) the stage of the proceedings and the
amount of discovery completed; (4) the probability of the plaintiffs’ success on the
merits; (5) the range of possible recovery; and (6) the opinions of the class counsel,
class representatives, and the substance and amount of opposition to the settlement.
1

Settlement in accordance with the terms and conditions of the Settlement
Agreement.
Certification of Settlement Class
4.
Pursuant to Federal Rule of Civil Procedure 23, the Settlement
Class consists of:
All persons in the United States who purchased, at any time
between September 29, 2012 and April 13, 2018, one or more of
the subject Adore Products marketed as containing a plant stem
cell formula. Excluded from the Settlement Class are: (1) all judges
and magistrates who have presided or are presiding over this
action (or the judge or Magistrate presiding over the action through
which this matter is presented for settlement); (2) the defendants,
defendants'
subsidiaries,
parent
companies,
successors,
predecessors, and any entity in which the defendants or their
parents have a controlling interest and their current or former
officers, directors, and employees; (3) retailers of the Adore
Products; (4) persons who properly execute and file a timely
Request for Exclusion from the class; and (5) legal representatives,
successors or assigns of any such excluded person.
5.
The Settlement Class, as previously provisionally certified, satisfies
all the requirements contained in Federal Rule of Civil Procedure 23, the
United States Constitution, and any other applicable law as more fully set forth
in the Court’s Preliminary Approval Order (ECF No. 120), which is incorporated
into this Final Approval Order by this reference.
6.
As such, the Court finds, for settlement purposes only, that: (a) the
Settlement Class as defined is so numerous that joinder of all members is
impracticable; (b) there are questions of law or fact common to the Settlement
Class; (c) the claims of the Plaintiffs are typical of the claims of the Settlement
Class; (d) the Class Representatives will fairly and adequately protect the
interests of the Settlement Class Members; (e) Plaintiffs allege that Defendants
have acted on grounds that apply generally to the class; (f) the questions of law
or fact common to the Settlement Class predominate over the questions
affecting on individual Settlement Class Members; and (g) certification of the
Settlement Class is superior to the other methods for the fair and efficient
adjudication of the controversy.
Dismissal and Release
7.
Except for the individual claims of those who duly opted-out of the
Settlement Class (identified in Exhibit 1 to this Final Approval Order), the

Court dismisses this Action on the merits and with prejudice as though after
trial and a final adjudication of the facts and the law as to all Settlement Class
Members and Releasing Parties (as defined in Paragraph 2.1(DD) of the
Agreement) for all Released Claims (as defined in Paragraph 2.1(CC) of the
Agreement) against Defendants and all Released Persons (as defined in
Paragraph 2.1(EE) of the Agreement). The detailed release language is found in
Section VII of the Agreement.
8.
The Settlement Class Notice Program was the best notice
practicable under the circumstances. The Notice Program provided due and
adequate notice of the proceedings and of the matters set forth therein,
including the proposed settlement set forth in the Settlement Agreement, to all
persons entitled to such notice and said notice fully satisfied the requirements
of the Federal Rules of Civil Procedure and the United States Constitution,
which include the requirement of due process.
9.
Members of the Settlement Class who the Settlement
Administrator has determined are Settlement Class Claimants shall be entitled
to receive their portion of the Settlement Fund, in accordance with the
procedures set forth in the Settlement Agreement.
Attorneys’ Fees and Service Awards
10. Class Counsel’s request for attorneys’ fees is granted as being both
appropriate and reasonable under the factors set forth in Camden I
Condominium Assn. v. Dunkle, 946 F.2d 768 (11th Cir. 1991). 2 The requested
percentage from the Settlement Fund is reasonable, considering the results
obtained, the nature of the case, and Class Counsel’s significant work in this
case and experience in litigating class actions. It was necessary for Class
Counsel, who undertook representation of the Plaintiffs and the putative class
on a purely contingent fee basis, to conduct research and discovery supporting
the claims asserted and the class-wide damages claimed, and to persuade
Defendants that class claims were meritorious despite Defendants’ planned
defenses. Prevailing in this case was by no means assured, given the
substantial defenses that Defendants would have pursued. Extensive
The Eleventh Circuit’s factors for evaluating the reasonableness of attorneys’ fees
awarded to class-action counsel are: (1) the time and labor required; (2) the novelty
and difficulty of the questions involved; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances; (8) the amount
involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and the length of the
professional relationship with the client; and (12) awards in similar cases.

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settlement negotiations occurred between the parties. Defendants are
represented by sophisticated counsel, who were zealously defending this case
and were prepared to continue to do so. Notwithstanding, Class Counsel
obtained a substantial settlement on behalf of the Settlement Class.
11. Therefore, Class Counsel is awarded $281,223.18 in attorneys’ fees
from the gross Settlement Fund, consisting of 31.9% of the total Settlement
Fund. This percentage accurately reflects the percentage figures of contingency
fees attorneys commonly received in the Southern District of Florida and the
Eleventh Circuit, and are within the range of reasonableness discussed in
Camden I. 946 F.2d at 774-75. See Allapattah Servs., Inc. v. Exxon Corp., 454
F. Supp. 2d 1185, 1210 (S.D. Fla. 2006) (emphasis added) (awarding fees
equaling 31⅓%); Legg v. Laboratory Corp. of America, 14-cv-61543-RLR, ECF
No. 227, p.7 (S.D. Fla. Feb. 18, 2016) (awarding one-third of gross recovery for
attorneys’ fees, plus expenses); Gevaerts v. TD Bank, N.A., No. 11:14-cv-20744RLR, 2015 U.S. Dist. LEXIS 150354, at *27 (S.D. Fla. Nov. 5, 2015) (finding
that a request for 30% of a $20 million dollar fund is justified); Wolff v. Cash 4
Titles, No. 03-22778- CIV, 2012 WL 5290155, at *5-6 (S.D. Fla. Sept. 26, 2012)
(“The average percentage award in the Eleventh Circuit mirrors that of awards
nationwide—roughly one-third.”) (citing Circuit case law and listing Southern
and Middle District of Florida attorneys’ fees awards).
12. Further, the Court finds that Class Counsel’s request for
reimbursement of $18,776.72 in expenses to be reasonable and that the
expenses were incurred in furtherance of the Action.
13. The Court also finds that Class Counsel’s request that Service
Awards be paid to the Class Representatives is appropriate, however, at a
slightly reduced amount. Therefore, Plaintiff Millie shall be paid a service award
of $1,500.00] from the Settlement Fund and Plaintiff Lisa Mollicone shall be
paid a service award of $3,500.00, consistent with the terms of the Settlement
Agreement.
Further Matters
14. Without affecting the finality of the Final Approval Order in any
way, this Court retains continuing jurisdiction over: (a) implementation of this
Settlement; (b) this Action until the judgment contemplated herein has become
effective and each and every act agreed to be performed by the Parties has been
performed; and (c) the Parties and all parties to the Settlement Agreement for
the purpose of enforcing and administering the Settlement Agreement. Neither
Plaintiffs nor Defendants shall be barred from pursuing claims for breach of
the Settlement before this Court.
15. Nothing in this Final Approval Order or the Agreement shall be
construed as an admission or concession by either Party. Defendants have

denied all of Plaintiffs’ allegations, continue to deny such allegations, and deny
any liability or wrongdoing of any kind in this matter. Plaintiffs continue to
believe their allegations have merit. The Agreement and this resulting Final
Approval Order represent a compromise of the vigorously disputed allegations.
16. Except as expressly provided herein, each Party is to bear its own
costs.
17. Pursuant to Federal Rule of Civil Procedure 58(a), the Court will
enter Final Judgment in a separate document. The Clerk of Court is directed to
close this case.
Conclusion
For the foregoing reasons, the Court: (1) grants Final Approval to the
Settlement; (2) appoints Plaintiffs Lisa Mollicone and Millie Land as Class
Representatives; (3) appoints as Class Counsel the Law Offices of Ronald A.
Marron, APLC and Cullin O’Brien Law, PA; (4) overrules the objection by
Pamela Sweeney; (5) awards a Service Award to Plaintiff Lisa Mollicone in the
amount of $3,500; (6) awards a Service Award to Plaintiff Millie Land in the
amount of $1,500; (7) awards Class Counsel attorneys’ fees in the amount of
$281,223.18, plus reimbursement of litigation costs and expenses in the
amount of $18,776.72; (8) directs Class Counsel, Plaintiffs, and Defendants to
implement and consummate the Settlement pursuant to its terms and
conditions; (9) retains continuing jurisdiction over Plaintiffs, the Settlement
Class Members, and Defendants to implement, administer, consummate and
enforce the Settlement and this Final Approval Order; and (10) will separately
enter Final Judgment dismissing the Action with prejudice.
Done and ordered at Miami, Florida, on August 13, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge

EXHIBIT 1
Karen Connelly
Warner Robins, GA
Pam Litke
Oakland, CA
Miguel Aguero
El Paso, TX
Alan Kirsch
Royal Palm Beach, FL
David Carter
Irvine, CA
Cindy Greco
Cos Cob, CT