Broadway v. Avent America Inc et al. ***DO NOT File in This Case. All documents and pleadings should be filed in the main case 08-md-01967-ODS.***

Filing 27

ORDER and OPINION granting motion for final approval of class action settlement, granting motion for approval of award of attorneys' fees, expenses, and incentive award payments, and entereing final judgment as to claims against Philips Electronics North America Corp., successor in interest to Avent America, Inc. Signed on 05/10/2011 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
In re: BISPHENOL-A (BPA)
POLYCARBONATE PLASTIC
PRODUCTS LIABILITY LITIGATION

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MDL No. 1967
Master Case No. 08-1967-MD-W-ODS
Applies to Case Numbers:
08-0997, 08-0309, 08-0418,
08-0618, 08-0619,
08-0620, 08-0692, 08-0693
08-0694, 08-0695, 08-0696
and 08-0792

ORDER AND OPINION (1) GRANTING MOTION FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT, (2) GRANTING MOTION FOR APPROVAL OF AWARD OF
ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD PAYMENTS, AND (3)
ENTERING FINAL JUDGMENT AS TO CLAIMS AGAINST PHILIPS ELECTRONICS
NORTH AMERICA CORPORATION, SUCCESSOR IN INTEREST TO AVENT
AMERICA, INC.
Pending is the joint motion from Plaintiffs and Defendant Philips Electronics
North America Corporation, Successor in Interest to Avent America, Inc. (“Philips”)
seeking final approval of a class action settlement and certification of a class for
settlement purposes. Plaintiffs also seek approval of an award of attorney fees,
expenses, and incentive awards. The two motions (Doc. # 619 and Doc. # 622) are
granted.

I. BACKGROUND

In this suit Class Plaintiffs asserted claims for unjust enrichment, consumer fraud
violations, and breach of implied warranty. Class Plaintiffs have sought certification of
two multi-state unjust enrichment classes (the” Unjust Enrichment Classes”), a multistate consumer protection act class (the “Consumer Protection Class”), and a multistate implied warranty class (the “Implied Warranty Class”) for litigation purposes, and
these motions have not been fully briefed and are still pending. Class Plaintiffs
proposed these litigation classes under a “groupings” approach, which was based upon
the similarity of legal theories supporting certification of class members in each

respective state. The only states in which Class Plaintiffs did not seek class certification
of their claims for trial purposes are Alabama, Mississippi, Ohio, Oregon, Texas, and
Wyoming. As set forth in detail in the briefing in support of Plaintiffs’ motion for class
certification, Class Plaintiffs chose not to move for certification in these states for trial
purposes due to manageability concerns arising from perceived peculiarities in those
states’ laws.
The Settlement achieved, however, eliminates any such manageability concerns
by eliminating issues that would otherwise impact any trial of these claims. In addition,
the Settlement achieved eliminates the need for the two separate unjust enrichment
groupings that were proposed for litigation purposes. Settlement Class Plaintiffs now
seek certification of a single Settlement Class that consolidates the following
“groupings” into a single settlement class, thereby eliminating any distinction between
them:

Unjust Enrichment Multistate Class. All persons who purchased or
acquired a new polycarbonate baby bottle or training/sippy cup in
Alabama, Alaska, Arkansas, California, Colorado, the District of Columbia,
Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine,
Maryland, Massachusetts, Missouri, Mississippi, Nevada, New Hampshire,
New Mexico, New York, Ohio, Oklahoma Oregon, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Washington, Wisconsin, West Virginia or Wyoming that was
manufactured, sold or distributed by Philips.
Consumer Fraud Multistate Class. All persons who purchased or
acquired a new polycarbonate baby bottle or training/sippy cup in Alaska,
Arkansas, Arizona, California, Colorado, Connecticut, Delaware, the
District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Missouri, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont,
Washington, West Virginia or Virginia that was manufactured, sold or
distributed by Philips.
Implied Warranty Multistate Class. All persons who purchased or
acquired a new polycarbonate baby bottle or training/sippy cup in Alaska,
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Colorado, Connecticut, Delaware, the District of Columbia, Hawaii,
Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Nebraska, Nevada, New Jersey, Oklahoma,
Pennsylvania, South Carolina, Virginia, and West Virginia that was
manufactured, sold or distributed by Philips.
The settlement proposes six categorizations of class members, with individual class
members qualifying for a particular categories based upon a combination of (1) actions
taken by the individual, (2) the individual’s motivations, and (3) the degree of proof
possessed by the individual. These categories were derived from the Court’s
November 9, 2009, Orders (Doc. # 261 and Doc. # 264), particularly Part II.F of Doc. #
261 which described the limited circumstances in which consumers would have
damages on a warranty claim. In rough summary, the categories and relief are as
follows:

Category A: People who
1.

Return the product OR provide proof of purchase and attest that the
product was destroyed or discarded,

2.

Attest or prove they purchased BPA-free products to replace
destroyed/discarded product, and

3.

Attest or prove they discarded or destroyed the BPA product
because of concerns about BPA

Category B: People who
1.

Return the product OR provide proof of purchase and attest that the
product was destroyed or discarded, and

2.

Attest or prove they discarded or destroyed the BPA product
because of concerns about BPA

Category C: People who
1.

Return the product OR provide proof of purchase and attest that the
product was destroyed or discarded

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Category D: People who
1.

Identify the products purchased and the date of purchase

2.

Attest or prove they purchased BPA-free products to replace
destroyed/discarded product

3.

Attest or prove they discarded or destroyed the BPA product
because of concerns about BPA

Category E: People who
1.

Identify the products purchased and the date of purchase

2.

Attest or prove they discarded or destroyed the BPA product
because of concerns about BPA

Category F: People who
1.

Identify the products purchased and the date of purchase

Members in each category receive the following:
A

100% refund in cash OR 125% of that value in vouchers

B

Vouchers for 80% of the value

C

Vouchers for 60% of the value

D

Vouchers for 50% of the value

E

Vouchers for 40% of the value

F

Vouchers for 30% of the value

The vouchers may be used toward the purchase of other products manufactured by
Philips.
On January 7, 2011, the Court conditionally certified the settlement class,
preliminarily approved the settlement, and directed distribution of notice to the class
members. Two objections were filed: one from Christi Weinstein and one from Max
Carapia. A hearing was held on May 2, 2011.

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II. DISCUSSION
A. Evaluation of the Settlement1

“The district court must consider a number of factors in determining whether a
settlement is fair, reasonable, and adequate: the merits of the plaintiff’s case, weighed
against the terms of the settlement; the defendant’s financial condition; the complexity
and expense of further litigation; and the amount of opposition to the settlement.” Van
Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988). The most important consideration is
a comparison between the merits of plaintiff’s case and the amount offered to settle. In
re Wireless Tele. Federal Cost Recovery Fees Litig., 396 F.3d 922, 933 (8th Cir. 2005).
The Court’s November 2009 Orders described rather narrow circumstances in
which individuals could assert warranty claims – and the damages for such claims
would be minimal given the products involved. The universe of unjust enrichment
claims (and corresponding damages) would also have been rather narrow, particularly
in light of the Court’s observation that the same issue limiting warranty claims might
become a jury issue for unjust enrichment claims.2 If the case(s) went to trial, victory for
Plaintiffs would also depend on the jury’s view of significant (and hotly contested)
scientific matters. Fraudulent omission3 claims – which, unlike the other claims, might
support an award of punitive damages – are fraught with problems relating to materiality
and reliance, which present problems of proof and further generally preclude

1

The Court elects to begin its discussion by evaluating the settlement, because
(1) the settlement sets the circumstances for evaluating Rule 23's requirements and (2)
if the settlement is deemed unfair, then there is no need to consider Rule 23.
2

“[T]he extent of any benefit received by Plaintiffs would be a factor in
determining whether and to what extent Defendants’ retention of money is unjust – but
this is a matter for a jury to resolve.” Doc. # 261 at 21.
3

The Court previously dismissed claims premised on fraudulent and negligent
misrepresentation and breach of expressed warranties.
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certification of claims. Given the uncertainty of success and the minimal damages that
are recoverable, the amount of the settlement is imminently reasonable.
The proposed Settlement was entered into at arm’s-length by experienced
counsel and only after extensive arm’s-length negotiations, including through mediation
supervised by a retired United States District Judge, the Honorable Nicholas Politan.
The proposed Settlement is not the result of collusion. The proposed Settlement bears a
probable, reasonable relationship to the claims alleged by Class Plaintiffs and the
litigation risks of the Settlement Class as well as Philips. The proposed Settlement was
entered into in good faith, is reasonable, fair and adequate, and is in the best interest of
the Settlement Class. Class Counsel and the Class Representatives have fairly and
adequately represented the Settlement Class for purposes of entering into and
implementing the Settlement Stipulation. The Court finds that the proposed Settlement
is sufficiently within the range of reasonableness and merits final approval.
Both objectors contend the settlement is a “coupon settlement” within the
meaning of 28 U.S.C. § 1712(a). The Court raised this issue before granting
preliminary approval and declared that it was “presently of the view that the settlement”
is not a coupon settlement. The term “coupon” is not statutorily defined, but the Court
notes the vouchers provided in this case are unique in that they do not necessarily
require the class members’ expend money of their own in order to realize the benefits of
the settlement. They are also unique in that they do not require class members to use
the vouchers on the same (or even similar) products to those that gave rise to this
litigation. Cf. Reibstein v. Rite Aid Corp., 2011 WL 192512 (E.D. Pa. 2011); Browning v.
Yahoo! Inc., 2007 WL 4105971 (N.D. Cal. 2007). Moreover, it should be noted that
section 1712 does not forbid approval of coupon settlements; they are subject to greater
scrutiny under section 1712(e) and may have an effect on attorney fees. The Court
discussed section 1712(e) in the order granting preliminary approval and stated as
follows:
The Court notes several factors that (preliminarily, at least) indicate “the
settlement is fair, reasonable, and adequate for class members.” The
vouchers contemplated by the settlement are transferable (theoretically
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making them convertible to cash) and in most instances will be sufficient in
amount to allow consumers to redeem them for products without the
expenditure of additional funds. Thus, class members will not have to
“pay” to enjoy the benefits of the settlement. The vouchers can be used
on a wide variety of products, which helps insure their utility and value.
The Court also notes that the products in question include products that
are not made of plastic and are not used orally, which further helps insure
the vouchers’ utility. For those who have the “best claims” (based on prior
orders of the Court that discuss the validity of various claims), an option
exists to receive money in lieu of vouchers. Finally, the settlement calls
for injunctive relief (although it should be noted that the injunctive relief
may not directly or specifically benefit class members).
Nothing presented by the Objectors suggests this statement was incorrect or should be
reconsidered, and the Court adheres to its preliminary view.

B. Other Objections to the Settlement
Ms. Weinstein4 presents several other arguments designed to demonstrate the
relief is illusory or that the settlement is otherwise ill-advised. The Court rejects all of
these arguments.
She first contends the injunctive relief is illusory. The injunctive relief prohibits
Philips from selling products containing BPA unless a “major manufacturer, including
any of the Defendants in this litigation,” sells BPA products. Ms. Weinstein points out
that Philips is a Defendant in this litigation and contends this means that Philips is
barred from selling BPA products unless a major manufacturer, including Philips,
decides to sell BPA products. This argument is frivolous for a variety of reasons,
including (1) it conflicts with the parties’ intent as stated during the hearings and in

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Mr. Carapia’s timely objection focused on his argument that the settlement is a
“coupon settlement.” He presented additional arguments, both in writing and at the
hearing, after the deadline for filing objections had passed. These arguments are the
subject of a Motion to Strike, which has not been fully briefed and, hence, has not been
ruled. While the Court has not decided whether to formally strike the late-filed
objections, the Court has decided that they should not be considered because they
were not timely filed.
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written documents and (2) suggests the Court would interpret the injunction as
permitting Philips to unilaterally ignore it.
Second, she argues the Most Favored Nation (“MNF”) Clause renders the
settlement unfair. This Clause generally provides some relief to Philips in the event that
another defendant settles on terms that are more favorable than the terms of this
settlement, in which case “Philips shall be entitled to a modification to the terms of this
Settlement Stipulation to obtain the full benefit of the more favorable settlement.”
However, nothing permits Philips to recoup any money or vouchers already distributed
to class members. Any dispute resolving whether another settlement is more favorable
or the relief due Philips is to be resolved by the mediator (Judge Politan). The MNF is
designed to assuage the first-settling defendant’s fears that it will lose the opportunity
for a favorable settlement by “settling first” or “settling early.” The Court simply does not
discern any unfairness to the class members.
Ms. Weinstein’s third argument contends the settlement does not clearly indicate
whether it applies to people who purchased used products manufactured by Philips.
Any confusion that might exist is insignificant because the parties do not contemplate
including purchasers of used products – so there is no prejudice if purchasers of used
products fail to submit claim forms. The argument ultimately has little real effect
because the Claim Forms approved by the Court do not require Settlement Class
Members to indicate whether the BPA Products purchased or acquired are new or used.
Thus, those individuals that submit a Claim Form based on used products will obtain
relief under the Settlement.
Fourth, Ms. Weinstein contends it is not clear whether people who purchased
from retailers are included in the class, or whether the class only covers people who
purchased directly from Philips. The argument focuses on the documents originally
submitted to the Court and does not account for subsequent changes. Specifically, the
Order granting preliminary approval directed that the class definition be amended so
that it “is consistently described as consisting of consumers who bought or acquired
BPA products manufactured by Philips.” Doc. # 577 at 9-10 (emphasis in original). This

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was intended, among other purposes, to alleviate the need to worry about who actually
sold the product to the consumer.
Finally, Ms. Weinstein argues the proposed class period – January 1, 2001, to
the present – is vague because “the present” is an undefined term. First of all, Philips
stopped selling products with BPA some time ago – so there are not likely any class
members who have recently bought such products. Moreover, it is customary for “the
present” to be the date of the judgment. This argument is frivolous.

C. Alabama, Mississippi, Ohio, Oregon, Wyoming and (Particularly) Texas

Ms. Weinstein presents several arguments designed to suggest certification
generally and the settlement specifically are unfair to residents of Alabama, Mississippi,
Ohio, Oregon, Texas, and Wyoming. (Ms. Weinstein is a resident of Texas). The Court
will address Rule 23's requirements in the next section, but in the interest of clarity all of
Ms. Weinstein’s arguments will be addressed in a single place.
Ms. Weinstein primary argument is that class members from these states are
inadequately represented by Class Plaintiffs and Plaintiffs’ Counsel and the settlement
is unfair because they are limited to Settlement relief Categories C and F. The Court
doubts Ms. Weinstein has standing to raise this objection because even if this limitation
on Texas residents did not exist she would still be limited to relief under Category F.
Thus, even if the objection has merit, Ms. Weinstein will not benefit. Nonetheless, the
Court will address this objection out of an abundance of caution.
Class Counsel’s legal assessment was that these states could not be included in
a litigation class. That being the case, Philips was less than willing to agree to a
formation of a settlement class that included these individuals when the alternative in
litigation would likely be individual suits. Class Counsel essentially used the bargaining
power created by the already-proposed class of people from forty-four states and
leveraged a settlement on behalf of people from the six states that could not be included
originally. In short, the settlement provides residents of these states with something
from the settlement instead of leaving them to face individual suits. The well-founded
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belief that the only alternative would be individual suits (because peculiarities of state
law would preclude their inclusion in a class for litigation purposes) justified both (1)
Philips’ unwillingness to agree to settle with these individuals on the same terms as
everyone else and (2) Class Counsel’s willingness to agree to the settlement,
recognizing that the likely alternative was probably no recovery at all.
In addition to this history, the Court notes Ms. Weinstein is the only resident of
these states to raise this objection (and, as stated, it does not benefit her anyhow). The
lack of objections is valid consideration in evaluating the fairness of a settlement. For
these reasons, the Court finds that the limitation on the relief available to class
Alabama, Mississippi, Ohio, Oregon, Texas, and Wyoming is fair and reasonable when
balancing the strengths of the case with the risks of continued litigation.
Ms. Weinstein’s remaining arguments require little attention. She contends that
the settlement would not be permitted under Texas law because Texas law has a
stronger prohibition on coupon settlements. She also argues that the attorney fees
sought would not be permitted under Texas law. Without deciding whether these
characterizations of Texas law are correct, the Court simply notes that Texas’
procedural rules do not apply in federal court.

D. Rule 23

With respect to the proposed Settlement Class as set forth in the Settlement
Stipulation, this Court has determined that, for purposes of a settlement of the Action
only, Plaintiffs have satisfied each of the Rule 23(a) Prerequisites. The Court finds that
the Class Members are so numerous that joinder of all members is impracticable. Fed.
R. Civ. P. 23(a)(1). The Court finds that there are questions of law or fact common to
the Settlement Class. Fed. R. Civ. P. 23(a)(2). Common questions of law or fact
include the following: (1) whether Philips failed to adequately disclose material facts
relating to BPA in the course of its sales of the BPA Products; (2) whether Philips’
conduct was unlawful; (3) whether the BPA products were merchantable, and (4) how
the resulting monetary damages to consumers should be calculated. The claims of the
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Class Plaintiffs are typical of the claims of the Settlement Class. Fed. R. Civ. P.
23(a)(3). Here, Plaintiffs have alleged that Philips sold unmerchantable products and
failed to disclose or adequately disclose material facts to members of the Settlement
Class. Plaintiffs assert that there was sufficient uniform treatment by Philips so that
each Class Plaintiff and Settlement Class Member states the same claim concerning
the same conduct and seeks the same relief from Philips. The ability of the parties to
achieve a settlement on terms applicable to the entire Settlement Class underscores the
finding of typicality. Finally, Class Plaintiffs will fairly and adequately protect the
interests of the Settlement Class. Fed. R. Civ. P. 23(a)(4). The Class Plaintiffs do not
have interests that are antagonistic to the Class and are fully aligned with the interests
of other Class Members. In addition, because Plaintiffs’ Counsel has and will continue
to fairly and adequately represent the interests of the Settlement Class, they are
qualified for appointment as class counsel for purposes of the Settlement under Rule
23(g). Accordingly, the Court finds that Class Plaintiffs have satisfied Rule 23(a) for
purposes of evaluating this Settlement.
With respect to the Settlement as contained in the Settlement Stipulation, the
Court also “finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members,” and “that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Here, Class Members share a common legal
grievance arising from Philip’s alleged failure to disclose or adequately disclose material
facts related to BPA to any of the purchasers of the BPA Products and the sale of what
Plaintiffs identify as unmerchantable products. There are also significant common
factual questions, including the health effects of BPA. The Common legal and factual
questions are central to all Class Members’ claims and predominate over any individual
questions that may exist for purposes of this Settlement, and the fact that the Parties
are able to resolve the case on terms applicable to all Settlement Class Members
underscores the predomination of common legal and factual questions for purposes of
this Settlement.
In concluding that the Settlement Class should be certified pursuant to Rule
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23(b)(3) for settlement purposes, the Court further finds that a class action is superior,
particularly in an effort to settle the Action, because individual class members have not
shown any interest in individually controlling the prosecution of separate actions.
Moreover, the cost of litigation far outpaces the individual recovery available to any
Plaintiffs. See Fed. R. Civ. P. 23(b)(3)(A). Accordingly, the Court finds that, for
purposes of this Settlement, Rule 23(b)(3) has also been satisfied.
The Court finds that the Notice Program (i) met the requirements of Rule 23(c)(3)
and due process; (ii) was the best practicable notice under the circumstances;
(iii) reasonably apprised Settlement Class Members of the pendency of the action and
their right to object to the proposed Settlement or opt out of the Settlement Class; and
(iv) was reasonable and constituted due, adequate and sufficient notice to all those
entitled to receive notice. Additionally, the proposed Class Notice adequately informed
Class Members of their rights in the Action. See Fed. R. Civ. P. 23(c)(2).
Consistent with the above, the Court finds that Class Plaintiffs are adequate
representatives to maintain their unjust enrichment, consumer fraud, and implied
warranty claims on behalf of class members in those states set forth above. The Court
further finds that Class Plaintiffs are adequate representatives to represent a nationwide
settlement class, consolidating the above listed classes. The Court hereby certifies the
following Settlement Class:
All persons who from January 1, 2001 to the present, purchased or
acquired (including by gift) a new BPA Product in the United States
manufactured by Philips Electronics or Avent America. Excluded from the
Settlement Class are: (1) any person that has already obtained any refund
from any retailer in connection with the BPA Product(s) for which the
Class Members seek relief in this case, (2) any Person who files a valid,
timely Request for Exclusion; (3) any Person who purchased a BPA
Product but gave away such product as a gift; and (4) any Judges to
whom this Action is assigned and any member of their immediate families.

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E. Dismissals

The Court hereby dismisses with prejudice the following actions or dismisses
Philips and Avent America from the Constituent Actions with prejudice:

1. Broadway, et al. v. Avent America, Inc., et al., Case No. 08-00997 (W.D.
Mo.);
2. Sullivan et al. v. Avent America, Inc. et al., Case No. 08-0309 (W.D. Mo.)
(as to Philips only);
3. Thornberry et al. v. Avent America, Inc. et al., Case No. 08-0418 (W.D.
Mo.) (as to Philips only);
4. Wilson et al. v. Avent America, Inc. et al., Case No. 08-0618 (W.D. Mo.)
(as to Philips only);
5. Jaynes et al. v. Avent America, Inc. et al., Case No. 08-0619 (W.D. Mo.)
(as to Philips only);
6. Gale et al. v. RC2 et al., Case No. 08-0620 (W.D. Mo.) (as to Philips only);
7. Broadway et al. v. Avent America, Inc. et al., Case No. 08-0692 (W.D.
Mo.) (as to Philips only);
8 Coyle v. Avent America, Inc. et al., Case No. 08-0693 (W.D. Mo.) (as to
Philips only);
9. Brady v. Avent America, Inc., Case No. 08-0694 (W.D. Mo.);
10.

Ginden v. Avent America, Inc. et al., Case No. 08-0695 (W.D. Mo.)
(as to Philips only);

11.

Collier et al. v. Avent America, Inc. et al., Case No. 08-0696 (W.D.
Mo.) (as to Philips only); and

12.

Barnes et al. v. Avent America, Inc. et al., Case No. 08-0792 (W.D.
Mo.) (as to Philips only).

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Final judgments will be entered accordingly. With respect to those cases in
which Philips is not the sole remaining defendant, pursuant to Fed. R. Civ. P. 54(b) the
Court concludes there is no just reason for delaying entry of final judgment as to the
claims against Philips.

F. Injunctive Relief

Having found that the Settlement is fair, reasonable and adequate, the Court
hereby enters the following injunction in accordance with the Parties’ approved
Settlement:
(a) From four years from the date of the Court’s Preliminary Approval Order,
Philips shall not knowingly sell baby bottles or “sippy” cups with materials containing
Bisphenol-A (“BPA”) for use in the United States (the “No Sale Bar”); provided however,
that if any of the following Trigger Events occur, as defined below, Philips may sell baby
bottles or “sippy” cups with materials containing BPA for use in the United States during
the remaining term of the No Sale Bar and thereafter, subject to the disclosure
obligation below.
(b) The Trigger Events are:
(i) any major manufacturer (including any of the Defendants other than
Philips) announces that it intends to sell baby bottles or “sippy cups” made of
polycarbonate plastic in the United States, or
(ii) any major manufacturer (including any of the Defendants other than
Philips), sells or offers for sale baby bottles or “sippy cups” made of polycarbonate
plastic.
(c) If either of the Trigger Events occur, Philips may sell baby bottles or “sippy
cups” with disclosure appearing on the packaging that indicates that the product is
made from “polycarbonate” or “polycarbonate plastic” and indicates in some manner
with equally legible print, that BPA is a part of polycarbonate or polycarbonate plastic.
This disclosure obligation shall last for one year following a Trigger Event.
(d) The Most Favored Nation Provision expressly applies to any injunctive relief.
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G. Releases and Further Relief

The Releases set forth in the Settlement Stipulation are hereby effective. As the
terms are defined in the Settlement Stipulation, each Released Party is released from
the Released Claims that any Releasing Party has, had, or may have in the future,
against each Released Party. The Releases are independent of the dismissals with
prejudice provided herein. However, nothing in these Releases shall be deemed a
release of a claim for personal injuries arising out of the use of a BPA Product. The
Covenant Not To Sue has been given by each Settlement Class Member in favor of
each Released Party, by which all Settlement Class Members are bound. Settlement
Class Members are barred and enjoined from asserting against any Released Party any
Released Claim.
Further, each Releasing Party and Settlement Class Member, and their
respective present and former parents, subsidiaries, divisions and affiliates, the present
and former partners, employees, officers and directors of each of them, the present and
former attorneys, accountants, experts, consultants and insurers, and agents of each of
them, each of the foregoing solely in their capacity as such, and the predecessors,
successors, heirs and assigns of each of them, are released from all claims of every
nature and description, known and unknown, that any Released Party has had, or may
in the future have relating to the initiation, assertion, prosecution, non-prosecution,
settlement and/or resolution of the Action or the Released Claims, and all Released
Parties are barred and enjoined from asserting the same.
Further, Avent America, Inc. and Philips Electronics North America Corporation
and their present and former parents, subsidiaries, divisions and affiliates, the present
and former partners, employees, officers, and directors of each of them, the present and
former attorneys, accountants, experts, consultants, insurers and agents of them, and
the predecessors, successors, heirs and assigns of each of them are released from all
claims of every nature and description, known and unknown, that any Releasing Party
has, had or may in the future have relating to the defense, settlement and/or resolution

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of the Action or the Released Claims, and all Releasing Parties are barred and enjoined
from asserting the same.
Finally, all Settlement Class Members are deemed to have waived and released
all claims relating to Philips’ disposal or destruction of BPA Product(s) pursuant to this
and previous orders of the Court and the terms of the Settlement Stipulation.

H. Opt-Outs

Only one member of the Class – Jon Eardley – timely elected to opt-out of the
Settlement and the Class, and is therefore are not bound by the Settlement, the
provisions of the Settlement Stipulation, and this Order. All other members of the Class
(as permanently certified herein) shall be subject to all of the provisions of the
Settlement, the provisions of the Settlement Stipulation, and this Order.
Notwithstanding the preceding paragraph, the two objectors – Ms. Weinstein and
Mr. Carapia – are granted additional time to opt out of the class. They shall have until
and including June 10, 2011, to file a notice of their desire to opt out of the class if they
desire to do so. If they choose not to do so, they will be bound by the Settlement, the
Settlement Stipulation, and this Order in the same manner as all other individuals who
chose not to opt out.

I. Attorneys’ Fees and Costs

Co-Lead Counsel requests approval by the Court of an award of attorneys’ fees
and costs in the total amount of $2,500,000. The Court concludes that an award of
$2,500,000 is fair and reasonable and hereby approves the award of attorneys’ fees
and costs in the amount of $2,500,000 and shall be paid by Philips within ten (10)
business days after entry of this Final Judgment and Order Approving Settlement,
subject to the terms of the Stipulation. In awarding these fees and costs, the primary
factors considered by the Court is the amount of time spent by counsel and the
attorneys’ reasonable hourly fees. The Court has also considered a number of other
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factors, including a) the size of the fund and number of persons benefitted; b) the small
number of objections by Settlement Class Members; c) the skill of the attorneys
involved; d) the complexity and duration of litigation; and e) the risk of nonpayment. CoLead Counsel, in their sole discretion, shall allocate and distribute this award of
Attorneys’ Fees and Expenses among Plaintiffs’ Counsel.
The objectors have taken issue with the attorney fee award, and most of their
objections arise from their characterization of the settlement as a coupon settlement. In
addition to the conclusions reached earlier, the Court holds that the fee award is proper
even if the settlement is a coupon settlement. 28 U.S.C. § 1712(b)(1) states that if a
coupon settlement is used to resolve a class action and “a portion of the recovery of the
coupons is not used to determine the attorney’s fee to be paid to class counsel,” the fee
award shall be based upon the lodestar. This provision supports the method used to
calculate the fee award: the award is based primarily on the time expended and the
attorneys’ reasonable hourly fees, not on a percentage of the recovery. The award is
proper even if the settlement is deemed to be a coupon settlement.

J. Incentive Fee

Class Counsel has requested approval by the Court for an award of an incentive
fee for each of the named Class Plaintiffs, in an amount of one thousand dollars
($1,000). Class Plaintiffs were instrumental in prosecuting this case, such as by
retaining counsel, reviewing and authorizing the filing of the complaint, submitting
information to counsel, and authorizing the proposed Settlement. Class Plaintiffs also
answered interrogatories, responded to document requests, and prepared for and gave
deposition testimony. The Court finds the award of $1,000 is justified in light of the total
settlement and the material support provided by the Class Plaintiffs to the prosecution of
the case.

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K. Continuing Jurisdiction

Without affecting the finality of this Order in any way, the Court hereby retains
jurisdiction over the Parties to the Settlement Stipulation, including all Settlement Class
Members and Class Counsel, to construe and enforce the Settlement Stipulation in
accordance with its terms and for the mutual benefit of the Parties.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: May 10, 2011

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