LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON … · [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] LILACH HALPERIN (SBN 323202) [email protected]

Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK

PLAINTIFFS’ NOTICE OF MOTION AND UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS

ACTION SETTLEMENT

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LAW OFFICES OFRONALD A. MARRON RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] LILACH HALPERIN (SBN 323202) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiffs and the Class

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL GRAVES, KEITH GREN,

and MICHAEL WHEALEN, on behalf

of themselves, all others similarly

situated, and the general public,

Plaintiffs,

vs.

UNITED INDUSTRIES

CORPORATION,

Defendant.

CASE NO. 2:17-cv-06983-CAS-SK

CLASS ACTION

PLAINTIFFS’ NOTICE OF

MOTION AND UNOPPOSED

MOTION FOR FINAL

APPROVAL OF CLASS ACTION

SETTLEMENT

Date: February 24, 2020

Time: 10:00 a.m.

Ctrm: 8D

Judge: Hon. Christina A. Snyder

Case 2:17-cv-06983-CAS-SK Document 82 Filed 01/27/20 Page 1 of 3 Page ID #:2236

mailto:[email protected]

1 Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK


ACTION SETTLEMENT

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TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT on February 24, 2020 at 10:00 a.m., or

as soon thereafter as the matter may be heard, in Courtroom 8D of the United

States District Court for the Central District of California located at 350 W. First

Street, Los Angeles, California 90012, before the Honorable Christina A. Snyder,

presiding, Plaintiffs Michael Graves, Keith Gren, and Michael Whealen

(“Plaintiffs”) will and hereby do the Court, pursuant to Federal Rule of Civil

Procedure 23(e), for an Order Granting Final Approval of a Class Action

Settlement between Plaintiffs and Defendant United Industries Corporation

(“UIC”).

This Unopposed Motion is based on this Notice of Motion, Plaintiffs’

concurrently-filed Memorandum of Points and Authorities in Support of the

Unopposed Motion for Final Approval of Class Action Settlement, the

concurrently-filed Declaration of Ronald A. Marron in Support of the Unopposed

Motion for Final Approval of Class Action Settlement and Exhibit 1 attached

thereto, the Declaration of Gajan Retnasaba in Support of the Unopposed Motion

for Final Approval of Class Action Settlement and Exhibits A through E attached

thereto, all prior pleadings and proceedings in this matter, and all other evidence

and written and oral argument that will be submitted in support of the Motion.

DATED: January 27, 2020 Respectfully submitted,

/s/ Ronald A. Marron

RONALD A. MARRON

LAW OFFICES OF

RONALD A. MARRON

RONALD A. MARRON

[email protected]




ACTION SETTLEMENT

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Michael T. Houchin

[email protected]

Lilach Halperin

[email protected]

651 Arroyo Drive

San Diego, California 92103

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

Counsel for Plaintiffs and the Class



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION

FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] LILACH HALPERIN (SBN 323202) [email protected] 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Counsel for Plaintiffs and the Class







Plaintiffs,

vs.

UNITED INDUSTRIES

CORPORATION,

Defendant.


CLASS ACTION

MEMORANDUM OF POINTS

AND AUTHORITIES IN

SUPPORT OF PLAINTIFFS’

UNOPPOSED MOTION FOR

FINAL APPROVAL OF CLASS

ACTION SETTLEMENT


Time: 10:00 a.m.

Ctrm: 8D

Judge: Hon. Christina A. Snyder REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL

Case 2:17-cv-06983-CAS-SK Document 82-1 Filed 01/27/20 Page 1 of 33 Page ID #:2239

i Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................. 1

I. THE LITIGATION, SETTLEMENT NEGOTIATIONS, AND

PRELIMINARY APPROVAL .......................................................................... 2

II. NOTICE HAS BEEN FULLY DISSEMINATED TO THE CLASS. .............. 5

A. Publication Notice ......................................................................................... 6

B. Social Media Notice ...................................................................................... 6

C. Press Release ................................................................................................. 7

D. Settlement Website, Email, and Phone Line ................................................. 7

E. CAFA Notice ................................................................................................. 8

III. CLAIMS RATE, OPT-OUTS, AND OBJECTIONS ........................................ 8

IV. THE SETTLEMENT SHOULD RECEIVE FINAL APPROVAL. .................. 9

A. Plaintiffs and Class Counsel Have Adequately Represented the Class. .....11

B. The Settlement was Negotiated at Arm’s Length. ......................................13

C. The Relief Provided to the Class is Adequate. ............................................13

1. The Costs, Risks, and Delay of Trial and Appeal Support Final

Approval. ..........................................................................................................16

2. The Proposed Method of Distribution is Effective. .............................17

3. The Requested Attorneys’ Fees and Incentive Awards are Fair and

Reasonable. ......................................................................................................18

4. There Are No Side Agreements at Issue. .............................................18

D. The Proposed Settlement Treats Class Members Equitably Relative to Each

Other. ....................................................................................................................19

E. The Absence of Governmental Participation Supports Approval. ..............19

F. The Reaction of the Class Members to the Proposed Settlement Has Been

Favorable. .............................................................................................................19

V. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED. ......20

A. The Class Satisfies Rule 23(a). ...................................................................20


ii Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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1. Numerosity. ..........................................................................................20

2. Commonality. ......................................................................................21

3. Typicality. ............................................................................................22

4. Adequacy. ............................................................................................22

B. The Class Satisfies Rule 23(b)(3)................................................................23

1. Common Questions of Law and Fact Predominate. ...........................23

2. A Class Action Is the Superior Mechanism for Adjudicating this

Dispute. ............................................................................................................25

VI. CONCLUSION ................................................................................................25


iii Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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TABLE OF AUTHORITIES

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ...................................................................................... 20, 23

Arnold v. United Artists Theatre Circuit, Inc.,

158 F.R.D. 439 (N.D. Cal. 1994) .........................................................................21

Balderas v. Massage Envy Franchising, LLC,

2014 WL 3610945 (N.D. Cal. July 21, 2014) .....................................................15

Churchill Vill., L.L.C. v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004) ...............................................................................10

Curtis-Bauer v. Morgan Stanley & Co., Inc.,

2008 WL 4667090 (N.D. Cal. Oct. 22, 2008) .....................................................16

Downey Surgical Clinic, Inc. v. Optuminsight, Inc.,

2016 WL 5938722 (C.D. Cal. May 16, 2016) ....................................................15

Dupler v. Costco Wholesale Corp.,

705 F. Supp. 2d 231 (E.D.N.Y. 2010) .................................................................20

Garcia v. Pancho Villa's of Huntington Village, Inc.,

2012 WL 1843785 (E.D. N.Y. 2012) .................................................................... 6

Garner v. State Farm Mut. Auto. Ins. Co.,

2010 WL 1687832 (N.D. Cal. Apr. 22, 2010) ....................................................19

Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. 147 (1982). ............................................................................................22

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................................ 10, 11, 23

In re Anthem, Inc. Data Breach Litig.,

327 F.R.D. 299 (N.D. Cal. 2018) .........................................................................25

In re Extreme Networks, Inc. Securities Litigation,

2019 WL 3290770 (N.D. Cal. July 22, 2019) ....................................................10


iv Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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In re Hyundai & Kia Fuel Econ. Litig.,

926 F.3d 539 (9th Cir. 2019) ...............................................................................24

In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454, 462 (9th Cir. 2000) .......................................................................11

In re Netflix Privacy Litig.,

2013 WL 1120801 (N.D. Cal. Mar. 18, 2013) ............................................ 16, 19

In re Omnivision Techs., Inc.,

559 F. Supp. 2d 1036 (N.D. Cal. 2008) ........................................................ 12, 20

In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008) ............................................................................... 9

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, &

Prod. Liab. Litig., 2013 WL 3224585 (C.D. Cal. June 17, 2013) ......................17

LaGarde v. Support.com, Inc.,

2013 WL 1283325 (N.D. Cal. Mar. 26, 2013) ....................................................19

Lo v. Oxnard European Motors, LLC,

2012 WL 1932283 (S.D. Cal. 2012) ...................................................................... 6

Ma v. Covidien Holding, Inc.,

2014 WL 360196 (C.D. Cal. Jan. 31, 2014) ........................................................15

Mollicone v. Universal Handicraft,

2018 WL 3913689 (S.D. Fla. Aug. 14, 2018) .....................................................18

Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc.,

221 F.R.D. 523 (C.D. Cal. 2004) .................................................................. 13, 20

Rawa v. Monsanto Co.,

2018 WL 2389040 (E.D. Mo. May 25, 2018) .....................................................17

Rodriguez v. W. Publ'g Corp.,

563 F.3d 948 (9th Cir. 2009) ........................................................................ 12, 16

Singer v. Becton Dickinson & Co.,

2010 WL 2196104 (S.D. Cal. June 1, 2010)........................................................18


v Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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Slaven v. BP Am., Inc.,

190 F.R.D. 649 (C.D. Cal. 2000) .........................................................................21

Stovall-Gusman v. W.W. Granger, Inc.,

2015 WL 3776765 (N.D. Cal. June 17, 2015) .....................................................14

Sullivan v. DB Investments, Inc.,

667 F.3d 273 (3d Cir. 2011) .................................................................................25

Vasquez v. Coast Valley Roofing, Inc.,

266 F.R.D. 482 (E.D. Cal. 2010) .........................................................................18

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) .............................................................................................21

Weeks v. Kellogg Co.,

2013 WL 6531177 (C.D. Cal. Nov. 23, 2013) ....................................................18

Wren v. RGIS Inventory Specialists,

2011 WL 1230826 (N.D. Cal. Apr. 1, 2011) .......................................................18

Zamora Jordan v. Nationstar Mortg., LLC,

2019 WL 1966112 (E.D. Wash. May 2, 2019) ...............................................9, 10

Zinser v. Accufix Research Inst., Inc.,

253 F.3d 1180 (9th Cir. 2001) .............................................................................23

Statutes

28 U.S.C. § 1715 ........................................................................................................ 8

Mo. Rev. Stat. §§ 407.010 ......................................................................................... 3

Other Authorities

4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.) ..................................................11

4 NEWBERG ON CLASS ACTIONS § 13:49 (5th ed.) ...................................................12


4 NEWBERG ON CLASS ACTIONS § 13:51 (5th ed.) ...................................................14




vi Graves, et al. v. United Industries Corporation, No. 2:17-cv-06983-CAS-SK



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Rules

Fed. R. Civ. P. 23(a)...................................................................................... 5, 20, 23

Fed. R. Civ. P. 23(a)(1) ............................................................................................20

Fed. R. Civ. P. 23(a)(2) ............................................................................................21

Fed. R. Civ. P. 23(a)(3) ............................................................................................22

Fed. R. Civ. P. 23(a)(4) ............................................................................................22

Fed. R. Civ. P. 23(b) ................................................................................................23

Fed. R. Civ. P. 23(b)(2) .............................................................................................. 2

Fed. R. Civ. P. 23(b)(3) ................................................................................... 2, 5, 23

Fed. R. Civ. P. 23(e)(2) ................................................................................... 2, 9, 10

Fed. R. Civ. P. 23(e)(2)(B) ......................................................................................13

Fed. R. Civ. P. 23(e)(2)(C) ......................................................................................14

Fed. R. Civ. P. 23(e)(2)(D) ......................................................................................19

Fed. R. Civ. P. 23(e)(3) ............................................................................................18

Fed. R. Civ. P. 23(g) ................................................................................................11

Fed. R. Civ. P.. 23(e)(2)(A) .....................................................................................11





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I. INTRODUCTION

On September 18, 2019, this Court entered an Order preliminarily approving

a Class Action Settlement (“Settlement”) between Plaintiffs Michael Graves, Keith

Gren, and Michael Whealen (“Plaintiffs”), on behalf of the Class, and Defendant

United Industries Corporation (“Defendant” or “UIC”) (ECF No. 77). The Parties

reached the Settlement after protracted discussions over the course of several

months. The Settlement is memorialized in the Class Action Settlement

(“Agreement”) filed with this Court on August 19, 2019 (ECF No. 71-3), and

resolves all claims against Defendant in the litigation.1

The Settlement preliminarily approved by this Court will provide meaningful

monetary and other equitable relief to an estimated 67,976 class members who have

submitted validated claims as part of the claims process.2 See Declaration of Gajan

Retnasaba filed concurrently herewith (“Retnasaba Decl.”), ¶¶ 17-18. Although

Defendant continues to deny Plaintiffs’ allegations, it has agreed under the

Agreement to pay $2,500,000 into a settlement fund, which will be used to pay class

members’ claims. Agreement at § 7.4. In addition, if, with respect to any Product

manufactured by UIC after June 1, 2020, UIC elects to state on its Product label that

such Product "Makes Up to __ Gallons" of end-use herbicide, Defendant will include

on such labeling, mixing directions that are acceptable to EPA-equivalent agencies

of the State(s) in which the Product is registered for sale (such acceptability being

deemed by virtue of such agency(ies) registration of such Product). 3 Agreement at

1 Unless otherwise noted, capitalized terms in this Memorandum of Points and Authorities have the same meaning as in the Settlement Agreement. 2 The parties expect that the final number of approved claims will be lower than this number once the Settlement Administrator accounts for duplicate and/or fraudulent claims. Retnasaba Decl., ¶ 18. 3 The ultimate timing and content of any label changes shall be at the sole discretion of UIC. Nothing in the Agreement shall require UIC, or any third parties (including, without limitation, UIC’s resellers, retailers, customers, distributors, or sales





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§ 7.3.

The Settlement should now receive the Court’s final approval because it is

demonstrably “fair, reasonable, and adequate” under Federal Rule of Civil Procedure

23(e)(2). For the reasons below, and those stated in Plaintiffs’ Motion for

Preliminary Approval of Settlement (ECF No. 71-1), Plaintiffs ask that the Court

certify the Class for Settlement purposes under Rules 23(b)(2) and 23(b)(3), find that

the Settlement is fair, reasonable and adequate under Rule 23(e)(2), and thus grant

final approval of the Settlement.

I. THE LITIGATION, SETTLEMENT NEGOTIATIONS, AND

PRELIMINARY APPROVAL

On September 21, 2017, original plaintiff Gregory Arthur (“Arthur”) filed this

putative class action alleging violations of consumer protections laws against

Defendant and on November 27, 2017, Arthur filed a First Amended Class Action

Complaint. (ECF Nos. 1, 16). The First Amended Complaint alleged that the “Makes

Up To __ Gallons” representation on the Spectracide® Concentrate Products is

deceptive because UIC fails to disclose that “the Spectracide Concentrates were in

fact only capable of making a fraction of the number of gallons represented when

diluted to the same strength as ‘Ready-to-use’ Spectracide according to UIC’s own

instructions.” (Id. at ¶ 16).

On January 12, 2018, UIC moved to dismiss Arthur’s First Amended

Complaint (ECF No. 22). Then, on January 15, 2018, Arthur filed a Motion for Class

Certification and to appoint class counsel. (ECF No. 23). On March 23, 2018, the

Court entered an Order granting in part and denying in part UIC’s Motion to Dismiss

Arthur’s First Amended Complaint. (ECF No. 34). The Court dismissed Arthur’s

request for injunctive relief, but granted him leave to amend to file a Second

brokers) to remove from point of sale any Product manufactured prior to June 1, 2020 and nothing in the Agreement shall require UIC to make claims on any Product label with respect to the number of gallons of end-use herbicide that such Product will yield. Agreement at § 7.3.





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Amended Complaint. (ECF No. 34). On April 16, 2018, Arthur filed his Second

Amended Complaint (ECF No. 39), which UIC answered on April 30, 2018 (ECF

No. 40). On May 17, 2018, the Court entered an Order denying Arthur’s Motion for

Class Certification without prejudice, holding that Arthur could not adequately

represent the putative class. (ECF No. 47).

On June 25, 2018, Arthur and UIC filed a Joint Stipulation to dismiss Arthur

from the Litigation, for leave to substitute Michael Graves and Keith Gren as

plaintiffs and putative class representatives, and for leave for Graves and Gren to

file a Third Amended Complaint. (ECF No. 53). On June 26, 2018, the Court entered

an Order substituting Graves and Gren as named plaintiffs and proposed class

representatives, dismissing Arthur from the Litigation, and granting Graves and

Gren leave to file a Third Amended Complaint. (ECF No. 54). On June 28, 2018,

Graves and Gren filed their Third Amended Class Action Complaint against UIC

(ECF No. 55), which UIC answered on July 19, 2018. (ECF No. 59).

On July 12, 2018, the Court entered an Order staying the Litigation pursuant

to a Joint Stipulation filed by Graves, Gren, and UIC seeking time to allow them to

engage in settlement discussions (ECF No. 58). On September 7, 2018, Michael

Whealen sent UIC a consumer notice and demand letter on behalf of himself and a

proposed nationwide class concerning the Products. On May 15, Class Counsel filed

a Fourth Amended Complaint adding Whealen as a named Plaintiff in addition to

Graves and Gren. (ECF No. 63). The Fourth Amended Complaint also adds a cause

of action under the Missouri Merchandising Practices Act, Mo. Rev. Stat.

§§ 407.010, et seq. in addition to causes of action under California’s consumer

protection laws. (ECF No. 63 at ¶¶ 52-58).

Plaintiffs and UIC have engaged in substantial discovery. On October 26,

2017, Arthur served a first set of Interrogatories and a first set of Request for

Production of Documents on UIC. See Declaration of Ronald A. Marron filed

concurrently herewith (“Marron Decl.”), ¶ 3. In exchange for Arthur’s agreement to





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extend UIC’s time to serve written responses and objections, UIC produced several

documents that were crucial to Arthur’s claims in the litigation including the

suggested retail prices for the Products, annual sales of the Products, and Product

labels that were in use during the class period. Marron Decl., ¶ 3. On February 16,

2018, UIC served objections and responses to Arthur’s discovery requests. Marron

Decl., ¶ 4. UIC also produced a second batch of documents relating to Plaintiffs’

claims, including communications with the Environmental Protection Agency

(“EPA”) relating to the labels of the Products. Marron Decl., ¶ 4. Class Counsel sent

a meet and confer letter to UIC on March 23, 2018 regarding remaining deficiencies

with its written discovery responses. Marron Decl., ¶ 5. Following extensive meet

and confer efforts, the Parties reached an agreement on the scope of Plaintiff’s

discovery requests. Marron Decl., ¶ 5.

On January 26, 2018, UIC served a deposition notice on Gregory Arthur that

included several document requests. Marron Decl., ¶ 6. On January 31, 2018, Arthur

served objections and responses to UIC’s document requests. Marron Decl., ¶ 6. On

February 2, 2018, UIC then took the deposition of Gregory Arthur. In support of

Arthur’s Motion for Class Certification, Class Counsel submitted an expert report

from Charlene L. Podlipna, CPA detailing a proposed class wide damages model.

Marron Decl., ¶ 7. On January 26, 2018, UIC served a Notice of Deposition Duces

Tecum on Ms. Podlipna that contained several document requests. Marron Decl., ¶

7. On February 14, 2018, Class Counsel served objections and responses to the

document requests that were served on Ms. Podlipna. Marron Decl., ¶ 7. On

February 16, 2018, UIC took the deposition of Ms. Podlipna on topics relating to her

expert opinion and report. Marron Decl., ¶ 7. After Plaintiffs Graves and Gren filed

their Third Amended Complaint, UIC promptly began pursuing discovery from the

new named Plaintiffs. Marron Decl., ¶ 8. On June 29, 2018, UIC served a Notice of

Deposition Duces Tecum on Plaintiff Gren that contained several document

requests. Marron Decl., ¶ 8. UIC then took the deposition of Plaintiff Keith Gren on





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July 12, 2018. Marron Decl., ¶ 8. Plaintiff Gren’s deposition lasted more than five

hours. Marron Decl., ¶ 8.

Following Plaintiff Gren’s deposition, the Parties began engaging in

preliminary settlement discussions. During the course of several months the Parties

engaged in hard-fought settlement negotiations that resulted in the Settlement

Agreement. Marron Decl., ¶ 9. The several months that it took to work out significant

details and vigorous disagreements between the parties demonstrate that this

proposed resolution was the product of heavily disputed and arm’s length

negotiation. Marron Decl., ¶ 9.

On June 3, 2019, Plaintiffs filed an Unopposed Motion for Preliminary

Approval of the class action settlement with Defendant. (ECF No. 64-1). On June

27, 2019, the Court entered an Order Denying Plaintiffs’ Motion for Preliminary

Approval Without Prejudice, and ordered Plaintiffs to file an amended motion to

address the requirements of Rule 23(e)(3). (ECF No. 65). On August 19, 2019,

Plaintiffs filed a Renewed Motion for Preliminary Approval of the class action

settlement, which the Court granted on September 18, 2019. (ECF Nos. 71, 77). In

its preliminary approval order, the Court conditionally certified the nationwide

settlement class noting that the requirement of Federal Rules of Civil Procedure

23(a) and 23(b)(3) had been satisfied. (ECF No. 77 at 12-18). The Court also

preliminarily approved the settlement noting that the relevant factors weighed in

favor of approval. (ECF No. 77 at 4-12).

II. NOTICE HAS BEEN FULLY DISSEMINATED TO THE CLASS.

The Parties developed a notice program with the assistance of Classaura Class

Action Administration (“Classaura”), a firm that specializes in the development,

design, and implementation of class-action notice plans. The program was executed

in accordance with its design and the terms approved by the Court. In consultation

and collaboration with the parties, Classaura has taken steps to provide the Court-

ordered Notice to Class Members. These notice procedures are consistent with the





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class-action notice plan that was approved by this Court as being the best notice

practicable under the circumstances.

The costs of providing notice to the class members totals $129,432.4

Retnasaba Decl., ¶ 21. The cost of notice and administration account for just 5.18%

of the total settlement fund. The Court should find that these notice and

administration costs are reasonable and can be properly deducted from the

Settlement Fund.5 Below is a summary of the notice that was provided to the class

members.

A. Publication Notice

Notice was published in USA Today, a national magazine with a circulation

of approximately 600,000 and a reach of approximately 1,600,000 readers.

Retnasaba Decl., ¶ 3 & Ex. A. The notice was published Friday, November 1, 2019.

Retnasaba Decl., ¶ 3 & Ex. A.

B. Social Media Notice

On November 1, 2019, Classaura began an online advertising campaign on

Facebook.com. Retnasaba Decl., ¶ 4. The advertising targeted adults residing in the

United States who were identified as having an interest in gardening, landscaping,

or lawn. Retnasaba Decl., ¶ 4 & Ex. B. The Facebook advertising campaign

4 The costs incurred to provide notice of the settlement via publication, settlement website, Press Release, Online Notice, and CAFA is $70,000. The costs to administer the settlement, and process claims is $8,457 (assuming 84,572 claims). The cost to distribute payment to class members is $50,975 (assuming 67,967 approved claims). This brings the total cost to $129,432. Retnasaba Decl., ¶ 21. 5 See Lo v. Oxnard European Motors, LLC, 2012 WL 1932283, *1 n.1 (S.D. Cal. 2012) (deducting the cost of notice from the settlement fund created by defendant); Garcia v. Pancho Villa's of Huntington Village, Inc., 2012 WL 1843785, *2 (E.D. N.Y. 2012) (approving a settlement fund that included the costs of settlement notice).





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generated 13,069,323 impressions.6 Retnasaba Decl., ¶ 5. The Facebook advertising

campaign also had a reach7 of 11,360,237 unique users. Retnasaba Decl., ¶ 6. The

online advertising campaign also made submissions to Consumer Class Action

Websites, which are websites used by consumers to stay informed of class action

settlements that may apply to them. Consumer class action websites that displayed

a summary of the settlement included ClassActionRebates.com and

TopClassActions.com. Retnasaba Decl., ¶ 7.

C. Press Release

Classaura crafted a neutral informational press release, providing a summary

of the settlement. Retnasaba Decl., ¶ 8. On November 1, 2019, the press release was

released using the PR Newswire’s US1 National Newsline. Retnasaba Decl., ¶ 8 &

Ex. C. US1 National Newsline provides the press release to thousands of media

outlets across the country, including national and local newspapers, websites, and

television and radio stations. Retnasaba Decl., ¶ 8. The press release was picked up

and republished by 121 media outlets. Retnasaba Decl., ¶ 8.

D. Settlement Website, Email, and Phone Line

The Settlement Website (www.MakesUpToSettlement.com) was made

publicly accessible on November 1, 2019, providing information on the lawsuit and

access to case documents. Retnasaba Decl., ¶ 11. The website includes a summary

of the case, a list of important dates, answers to frequently asked questions, key case

filings (complaint, amended complaints, motion for preliminary approval, order

denying in part motion for preliminary approval, renewed motion for preliminary

6 An “impression” (in the context of online advertising) is the number of times an ad was displayed to an individual on any given site. The impression is displayed and gives an individual the opportunity to click on the advertisement and be directed to the Settlement Website for more information. Each time an ad is displayed to a visitor, it is counted as one impression. Retnasaba Decl., ¶ 5. 7 “Reach” is defined as the number of different people that the advertisement was exposed to. Each time an ad is displayed to a user that has not previously been exposed to the advertisement through that medium, it is counted as adding one to the reach. Retnasaba Decl., ¶ 6.





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approval, preliminary approval order, long and short form notice of class action

settlement, as well as the settlement agreement), and contact information. Retnasaba

Decl., ¶ 11. Plaintiffs’ fee motion was uploaded to the settlement website on January

7, 2020. Retnasaba Decl., ¶ 11. The Settlement Website also displayed the claim

filing deadline, the deadline to opt-out of the class settlement, the deadline to submit

an objection, and the date of the Fairness Hearing. Retnasaba Decl., ¶ 11. The

website address was set forth in all of the public notices described above, as well as

on the Claim Form. Retnasaba Decl., ¶ 11. To date the website has been visited

117,852 times. Retnasaba Decl., ¶ 11.

A dedicated email address ([email protected]) was also set

up on October 10, 2019 to answer questions from potential class members.

Retnasaba Decl., ¶ 12. To date, Classaura has received and answered 173 emails.

Retnasaba Decl., ¶ 12. A dedicated toll-free number (888-978-8269) was also set up

on October 20, 2019, providing pre-recorded information and allowing class

members to leave a voicemail requesting further information. Retnasaba Decl., ¶ 10.

To date, Classaura has received 85 phone calls and answered 14 voicemail calls.

Retnasaba Decl., ¶ 10.

E. CAFA Notice

In accordance with the Class Action Fairness Act (“CAFA”), 28 U.S.C.

§ 1715, Classaura compiled a CAFA Notice Packet containing a CD-ROM with the

necessary case documents as well as cover letter. Retnasaba Decl., ¶¶ 13-14 & Ex.

E. On August 29, 2019, CAFA Notice was mailed via United States Postal Service

(USPS), Priority Mail Service, to the U.S. Attorney General, the Attorneys General

of each of the 50 States and the District of Columbia, and the Attorneys General of

the 5 recognized U.S. Territories. Retnasaba Decl., ¶ 15.

III. CLAIMS RATE, OPT-OUTS, AND OBJECTIONS

To date, Classaura has received 84,572 claim forms from prospective class

members. Retnasaba Decl., ¶ 17. Out of the total claim forms received, Classaura





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has found 16,605 claim forms to be invalid due to being duplicative or not meeting

the settlement criteria. Retnasaba Decl., ¶ 18. Classaura estimates that there will be

approximately 67,967 valid claim forms. Retnasaba Decl., ¶ 18. Settlement Class

members are eligible to request payment for up to four purchases per household on

their claim forms. Retnasaba Decl., ¶ 19. The average claim for reported 3.6

purchases. Id. Thus, Classaura estimates that the total number of valid claims that

will be paid is 248,042. Id. In addition, there have been no requests for exclusion

from the settlement (Retnasaba Decl., ¶ 20) and no class members have objected to

the settlement.

IV. THE SETTLEMENT SHOULD RECEIVE FINAL APPROVAL.

“[T]here is a strong judicial policy that favors settlements, particularly where

complex class action litigation is concerned.” In re Syncor ERISA Litig., 516 F.3d

1095, 1101 (9th Cir. 2008). Approval of a proposed class action settlement is

governed by Federal Rule of Civil Procedure 23(e). “[T]he 2018 amendment to Rule

23(e) establishes core factors district courts must consider when evaluating a request

to approve a proposed settlement.” Zamora Jordan v. Nationstar Mortg., LLC, No.

2:14-CV-0175-TOR, 2019 WL 1966112, at *2 (E.D. Wash. May 2, 2019).

Rule 23(e) now provides that the Court may approve a class action settlement

“only after a hearing and only on a finding that it is fair, reasonable, and adequate

after considering whether: (A) the class representatives and class counsel have

adequately represented the class; (B) the proposal was negotiated at arm's length;

(C) the relief provided for the class is adequate, taking into account: (i) the costs,

risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of

distributing relief to the class, including the method of processing class-member

claims; (iii) the terms of any proposed award of attorney's fees, including timing of

payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.” Fed. R. Civ.

P. 23(e)(2).





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“Under Rule 23(e), both its prior version and as amended, fairness,

reasonableness, and adequacy are the touchstones for approval of a class-action

settlement.” Zamora, 2019 WL 1966112, at *2. “The purpose of the amendment to

Rule 23(e)(2) is establish [sic] a consistent set of approval factors to be applied

uniformly in every circuit, without displacing the various lists of additional approval

factors the circuit courts have created over the past several decades.” Id. Factors that

the Ninth Circuit have typically considered include (1) the strength of plaintiffs’

case; (2) the risk, expense, complexity, and likely duration of further litigation; (3)

the risk of maintaining class action status throughout the trial; (4) the amount offered

in settlement; (5) the extent of discovery completed and the stage of the proceedings;

and (6) the experience and views of counsel. Hanlon v. Chrysler Corp., 150 F.3d

1011, 1026 (9th Cir. 1998); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575

(9th Cir. 2004).

“While the Ninth Circuit has yet to address the amendment to Rule

23(e)(2)….the factors in amended Rule 23(e)(2) generally encompass the list of

relevant factors previously identified by the Ninth Circuit.” Zamora, 2019 WL

1966112, at *2 (alteration in original). Indeed, “[t]he goal of this amendment is not

to displace any factor, but rather to focus the court and the lawyers on the core

concerns of procedure and substance that should guide the decision whether to

approve the proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018

amendment. “Accordingly, the Court applies the framework set forth in Rule 23 with

guidance from the Ninth Circuit’s precedent, bearing in mind the Advisory

Committee’s instruction not to let ‘[t]he sheer number of factors’ distract the Court

and parties from the ‘central concerns’ underlying Rule 23(e)(2).” In re Extreme

Networks, Inc. Securities Litigation, No. 15-CV-04883-BLF, 2019 WL 3290770, at

*6 (N.D. Cal. July 22, 2019); see also Hefler v. Wells Fargo & Co., No. 16-CV-

05479-JST, 2018 WL 6619983, at *4 (N.D. Cal. Dec. 18, 2018).





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A. Plaintiffs and Class Counsel Have Adequately Represented the

Class.

Rule 23(e)(2)(A) requires the Court to consider whether “the class

representatives and class counsel have adequately represented the class.” Fed. R.

Civ. P. 23(e)(2)(A). This analysis is “redundant of the requirements of Rule 23(a)(4)

and Rule 23(g), respectively.” Final approval criteria—Rule 23(e)'s multifactor test,

4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.). A determination of adequacy of

representation requires that “two questions be addressed: (a) do the named plaintiffs

and their counsel have any conflicts of interest with other class members and (b) will

the named plaintiffs and their counsel prosecute the action vigorously on behalf of

the class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000), as

amended (June 19, 2000) (citing Hanlon, 150 F.3d at 1020); see also Hefler, 2018

WL 6619983, at *6.

The proposed class representatives in this action have no conflicts of interest

with other class members and each have prosecuted this action vigorously on behalf

of the Class.8 Each of the named Plaintiffs have suffered the same injuries as the

absent class members because each purchased a Spectracide® Concentrate product,

for personal and household use, in reliance on the “Makes Up To ___” gallons

statement on the front of the label which they took to mean would, in fact, make up

to the advertised amount of gallons when used as directed for general weed control.

(See Fourth Amended Complaint, ECF No. 63 at ¶¶ 30-32). Each of the named

Plaintiffs have been dedicated to vigorously pursuing this action on behalf of the

class and each have kept themselves informed about the status of the proceedings.

On July 12, 2018, UIC took the deposition of Plaintiff Keith Gren and the deposition

lasted for more than five hours. Marron Decl., ¶ 9. Plaintiffs Graves and Whealen

8 See Declarations of Michael Graves (Dkt. No. 71-7), Keith Gren (Dkt. No. 71-8),

and Michael Whealen (Dkt. No. 71-9) that were previously submitted in support of

Plaintiffs’ Unopposed Renewed Motion for Preliminary Approval.





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were similarly willing to sit for depositions and each of the named Plaintiffs were

fully prepared to testify at trial. Accordingly, the named Plaintiffs have adequately

represented the Class.

Class Counsel have also vigorously represented the Class and have no

conflicts of interest. The Settlement was negotiated by counsel with extensive

experience in consumer class action litigation. See Marron Decl., ¶¶ 17-36 & Ex. 1

(firm resume of Law Offices of Ronald A. Marron). Through the discovery process,

Class Counsel has obtained sufficient information and documents to evaluate the

strengths and weaknesses of the case. Marron Decl., ¶ 3. See Final approval

criteria—Rule 23(e)(2)(A): Adequate representation, 4 NEWBERG ON CLASS

ACTIONS § 13:49 (5th ed.) (“if extensive discovery has been done, a court may

assume that the parties have a good understanding of the strengths and weaknesses

of their respective cases and hence that the settlement's value is based upon such

adequate information.”). The information reviewed by class counsel includes sales

information for the Spectracide® Concentrate products during the class period, the

labels for the Spectracide® Concentrate products in use during the class period, and

Defendant’s communications with the Environmental Protection Agency (“EPA”)

relating to the labels of the Products. Marron Decl., ¶¶ 3-4. Based on their

experience, Class Counsel concluded that the Settlement provides exceptional

results for the class while sparing the class from the uncertainties of continued and

protracted litigation. Marron Decl., ¶ 16. See, e.g., In re Omnivision Techs., Inc., 559

F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) (“The recommendations of plaintiffs’

counsel should be given a presumption of reasonableness.”); Rodriguez v. W. Publ'g

Corp., 563 F.3d 948, 976 (9th Cir. 2009) (deference to Class Counsel’s evaluation

of the Settlement is appropriate because “[p]arties represented by competent counsel

are better positioned than courts to produce a settlement that fairly reflects each

party’s expected outcome in litigation.”). Accordingly, adequacy of representation

is satisfied.





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B. The Settlement was Negotiated at Arm’s Length.

Rule 23(e)(2)(B) requires the Court to consider whether “the proposal was

negotiated at arm's length.” Fed. R. Civ. P. 23(e)(2)(B). “This inquiry aims to root

out settlements that may benefit the plaintiffs' lawyers at the class's expenses,

sometimes called ‘collusive settlements.’” Final approval criteria—Rule

23(e)(2)(B): Arm's length negotiation, 4 NEWBERG ON CLASS ACTIONS § 13:50 (5th

ed.). Here, the settlement was negotiated at arm’s length after hard-fought litigation

and discovery. The Parties did not begin settlement discussions until after the Court

had ruled on Defendant’s Motion to Dismiss the First Amended Complaint (ECF

No. 190) and after the Parties had exchanged written discovery and documents,

which speaks to the fundamental fairness of the process. Marron Decl., ¶ 9. See Nat'l

Rural Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal.

2004) (“A settlement following sufficient discovery and genuine arms-length

negotiation is presumed fair.”).

The several months that it took to work out significant details and vigorous

disagreements between the parties demonstrate that this proposed resolution was the

product of heavily disputed and arm’s length negotiation. Marron Decl., ¶ 9. The

settlement negotiations were hard-fought, with both Parties and their counsel

thoroughly familiar with the applicable facts, legal theories, and defenses on both

sides. Marron Decl., ¶ 9. Accordingly, the Settlement is the product of genuine arms-

length negotiations.

C. The Relief Provided to the Class is Adequate.

Rule 23(e)(2)(C) requires that the Court consider whether “the relief provided

for the class is adequate, taking into account: (i) the costs, risks, and delay of trial

and appeal; (ii) the effectiveness of any proposed method of distributing relief to the

class, including the method of processing class-member claims; (iii) the terms of any

proposed award of attorney's fees, including timing of payment; and (iv) any

agreement required to be identified under Rule 23(e)(3).” Fed. R. Civ. P.





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23(e)(2)(C). “Before the Rule arrives at the articulation of sub-factors, its general

directive asks whether the class's relief is adequate.” Final approval criteria—Rule

23(e)(2)(C): Adequate relief, 4 NEWBERG ON CLASS ACTIONS § 13:51 (5th ed.). “In

evaluating the value of the class members' claims, the court need not decide the

merits of the case nor substitute its judgment of what the case might be worth for

that of class counsel; however, ‘the court must at least satisfy itself that the class

settlement is within the ‘ballpark’ of reasonableness.’” Id. (citation omitted).

UIC has agreed to settle this matter for a non-reversionary total of $2,500,000.

Agreement at § 7.4. During the class period, UIC sold retail units of

Spectracide® Concentrate products in the United States and UIC’s total sales of

Spectracide® Concentrate Products in the United States totals . Marron

Decl., ¶ 14. The $2,500,000 nationwide settlement amount is reasonable considering

that damages would be limited to a fraction of total sales if Plaintiffs were to prevail

at trial. As previously explained by Plaintiffs’ damages expert, Charlene L. Podlipna,

CPA, the Spectracide® Concentrate products are underfilled by 36% to 38% based

on Plaintiffs’ claims that reasonable consumers’ intend purpose for the Products is

“general weed control.” (ECF No. 23-14 [Podlipna Decl., ¶ 13]). Damages for the

nationwide class would be based on the Benefit of the Bargain method, which is

based on the difference between the amount Plaintiffs reasonably expected to receive

and the actual amount received. (ECF No. 23-14 [Podlipna Decl., ¶ 15]).

Accordingly, the projected maximum for nationwide class damages would be

approximately if Plaintiffs were to prevail at trial.

nationwide sales x .38 underfill percentage = ).

The $2,500,000 settlement fund accounts for % of total damages that

would be available at trial, which is well within the range of reason. See, e.g., Stovall-

Gusman v. W.W. Granger, Inc., No. 13-cv-02540-HSG, 2015 WL 3776765, at *4

(N.D. Cal. June 17, 2015) (granting final approval of a net settlement amount

representing 7.3% of the plaintiffs’ potential recovery at trial); Balderas v. Massage





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Envy Franchising, LLC, No. 12-cv-06327NC, 2014 WL 3610945, at *5 (N.D. Cal.

July 21, 2014) (granting preliminary approval of a net settlement amount

representing 5% of the projected maximum recovery at trial); Ma v. Covidien

Holding, Inc., No. SACV 12-02161-DOC (RNBx), 2014 WL 360196, at *5 (C.D.

Cal. Jan. 31, 2014) (finding a settlement worth 9.1% of the total value of the action

“within the range of reasonableness”); Downey Surgical Clinic, Inc. v.

Optuminsight, Inc., No. CV09-5457PSG (JCx), 2016 WL 5938722 at *5 (C.D. Cal.

May 16, 2016) (granting final approval where recovery was as low as 3.21% of

potential recovery at trial).

The amount of recovery per claimant is also adequate considering that

Settlement Class Members can claim $6.25 in cash from the Settlement Fund for

each Claim submitted by a household, with a limit of four (4) claims per household

(total payable per household in no event to exceed $25, unless distribution is

increased pro rata). Agreement at § 7.2.1. Here, approximately 67,967 valid claim

forms were submitted by settlement class members and 248,042 valid claims will be

paid by the settlement administrator. Retnasaba Decl., ¶¶ 18-19. Once notice and

administration costs along with Plaintiffs’ requested attorneys’ fees, costs, and

incentive awards are deducted from the $2,500,000 Settlement Fund, there will be

approximately $1,602,477.37 available for distribution to the Settlement Class.9 This

means that there will be a slight pro rata increase and $6.46 will be paid for each

valid and timely claim submitted. ($1,602,477.37 in available funds for distribution

/ 248,042 valid claims = $6.46 per claim). Because the average valid claim form

reported 3.6 purchases, average settlement class members will receive

9 Notice and Administration costs total $129,432. Retnasaba Decl., ¶ 21. Plaintiffs are also requesting $725,000 in attorneys’ fees, $32,090.63 in litigation costs, and $11,000 in total incentive awards. (See Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards, Dkt. No. 78-1). Once notice and administration costs and Plaintiffs’ requested attorneys’ fees, costs, and incentive awards are deducted from the $2,500,000 Settlement Fund, there will be $1,602,477.37 available for distribution to Settlement Class Members who submitted timely and valid claims.





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approximately $23.26. This recovery is significant considering that a 64-ounce bottle

of Spectracide® Concentrate, the most expensive bottle size, sells for approximately

$30.00 at retail stores. The approximately $6.46 recovery per claim is an excellent

result considering it will account for around 21.5% of total damages that would be

recoverable at trial per purchase. Marron Decl., ¶ 13. Moreover, the settlement

agreement provides for injunctive relief. Agreement at § 7.3. This is significant

because the Court previously dismissed Arthur’s claim for injunctive relief. (ECF

No. 34).

1. The Costs, Risks, and Delay of Trial and Appeal Support Final

Approval.

The costs, risks, and delay of trial and appeal further support final approval.

Proceeding in this litigation in the absence of settlement poses various risks such as

failing to certify a class, having summary judgment granted against Plaintiffs, or

losing at trial. Such considerations have been found to weigh heavily in favor of

settlement. See Rodriguez, 563 F.3d at 966; Curtis-Bauer v. Morgan Stanley & Co.,

Inc., No. C 06-3903 TEH, 2008 WL 4667090, at *4 (N.D. Cal. Oct. 22, 2008)

(“Settlement avoids the complexity, delay, risk and expense of continuing with the

litigation and will produce a prompt, certain, and substantial recovery for the

Plaintiff class.”). Even if Plaintiffs are able to certify a class, there is also a risk that

the Court could later decertify the class action. See In re Netflix Privacy Litig., No.

5:11-cv-00379 EJD, 2013 WL 1120801, at *6 (N.D. Cal. Mar. 18, 2013) (“The

notion that a district court could decertify a class at any time is one that weighs in

favor of settlement.”) (internal citations omitted). The Settlement eliminates these

risks by ensuring Class Members a recovery that is “certain and immediate,

eliminating the risk that class members would be left without any recovery . . . at

all.” Fulford v. Logitech, Inc., No. 08-cv-02041 MNC, 2010 U.S. Dist. LEXIS

29042, at *8 (N.D. Cal. Mar. 5, 2010).





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2. The Proposed Method of Distribution is Effective.

“[T]he goal of any distribution method is to get as much of the available

damages remedy to class members as possible and in as simple and expedient a

manner as possible.” Final approval criteria—Rule 23(e)(2)(C)(ii): Distribution

method, 4 NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.). The claims process here

was intentionally straightforward and has allowed Settlement Class members to

make a claim by submitting a valid and timely Claim Form to the Settlement

Administrator without complication. See In re Toyota Motor Corp. Unintended

Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., No. 8:10ML 02151 JVS,

2013 WL 3224585, at *18 (C.D. Cal. June 17, 2013) (“The requirement that class

members download a claim form or request in writing a claim form, complete the

form, and mail it back to the settlement administrator is not onerous.”).

The Settlement Agreement here provides for pro rata distribution to class,

which will ensure that class members receive as much as the settlement fund as

possible. Agreement at § 7.2.3. As discussed above, there will be a slight pro rata

increase and approximately $6.46 will be paid out for each of the estimated 248,042

valid claims submitted. Retnasaba Decl., ¶ 19. If any amounts remain in the

settlement fund following a pro rata distribution to class members, then the

remaining funds will thereafter be awarded cy pres to the National Advertising

Division of the Better Business Bureau (“NAD”). Agreement at § 7.2.3. The

proposed cy pres recipient will only receive funds that are no longer economically

feasible to distribute to the class after a pro rata distribution. Courts have previously

approved NAD as a suitable cy pres recipient. See Rawa v. Monsanto Co., No.

4:17CV01252 AGF, 2018 WL 2389040, at *11 (E.D. Mo. May 25, 2018) (approving

NAD as a cy pres recipient and noting that it “monitors national advertising in all

media for goods and services, enforce[es] high standards of truth and accuracy, and

accepts complaints from consumers”). Accordingly, the Court should find the

proposed distribution method to be effective.





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3. The Requested Attorneys’ Fees and Incentive Awards are Fair and

Reasonable.

Class Counsel has fully addressed the reasonableness of the fee request in

Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards that was filed

on January 6, 2020. (ECF No. 78-1). Class Counsel are seeking fees in the amount

of 29% of the total settlement fund. Although the “benchmark” for attorneys’ fees

in the Ninth Circuit is typically 25% of the common fund, Bluetooth, 654 F.3d at

942, Class Counsel’s fee request is within the range of what courts have approved

in other class action cases. See, e.g., Singer v. Becton Dickinson & Co., No. 08–CV–

821–IEG, 2010 WL 2196104 (S.D. Cal. June 1, 2010) (awarding 33.33% of $1

million settlement fund); Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482,

492 (E.D. Cal. 2010) (awarding 33.33% of $300,000 settlement fund); Weeks v.

Kellogg Co., No. CV 09-08102 MMM RZX, 2013 WL 6531177, at *30 (C.D. Cal.

Nov. 23, 2013) (awarding 30% of the $2.5 million settlement fund); Mollicone v.

Universal Handicraft, No. 17-21468-CIV, 2018 WL 3913689, at *3 (S.D. Fla. Aug.

14, 2018) (awarding Class Counsel fees in the amount of 31.9% of the settlement

fund). In addition, Plaintiffs Graves and Whealen are seeking incentive awards in

the amount of $3,000 each and Plaintiff Gren is seeking an incentive award in the

amount of $5,000. The requested incentive awards are reasonable considering

Plaintiffs’ substantial participation in the case. Wren v. RGIS Inventory Specialists,

No. C-06-05778 JCS, 2011 WL 1230826, at *36 (N.D. Cal. Apr. 1, 2011) (“there is

ample case law finding $5,000 to be a reasonable amount for an incentive

payment.”).

4. There Are No Side Agreements at Issue.

Rule 23(e)(3) requires that the Parties “must file a statement identifying any

agreement made in connection with the [settlement] proposal.” Fed. R. Civ. P.

23(e)(3). No agreements were made in connection with the settlement aside from the

settlement agreement itself. Marron Decl., ¶ 15.





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D. The Proposed Settlement Treats Class Members Equitably

Relative to Each Other.

Rule 23(e)(2)(D) requires the Court to consider whether the settlement

agreement “treats class members equitably relative to each other.” Fed. R. Civ. P.

23(e)(2)(D). “A distribution of relief that favors some class members at the expense

of others may be a red flag that class counsel have sold out some of the class

members at the expense of others, or for their own benefit.” Final approval

criteria—Rule 23(e)(2)(D): Intra-class equity, 4 NEWBERG ON CLASS ACTIONS §

13:56 (5th ed.). Here, the settlement treats each class member equally. As discussed

above, each valid claim submitted will be paid approximately $6.46 following a

slight pro rata increase. Because each class member is treated equally, the Court

should approve the settlement as fair, reasonable, and adequate.

E. The Absence of Governmental Participation Supports Approval.

Although CAFA does not create an affirmative duty for either state or federal

officials to take any action in response to a class-action settlement, CAFA presumes

that—once put on notice—state or federal officials will “raise any concerns that they

may have during the normal course of the class action settlement procedures.”

Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08-1365, 2010 WL 1687832, at

*14 (N.D. Cal. Apr. 22, 2010). see also LaGarde v. Support.com, Inc., No. C 12-

0609, 2013 WL 1283325, at *7 (N.D. Cal. Mar. 26, 2013) (same); In re Netflix

Privacy Litig., No. 5:11-cv-00379, 2013 WL 1120801 at *8 (N.D. Cal. Mar. 18,

2013) (same). To date, no state or federal official has raised any objection to the

settlement.

F. The Reaction of the Class Members to the Proposed Settlement

Has Been Favorable.

It is well established that “the absence of a large number of objections to a

proposed class action settlement raises a strong presumption that the terms of a

proposed class settlement action are favorable to the class members.” Nat’l Rural





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Telecomms. Coop., 221 F.R.D. at 529 (collecting cases). Here, the response from

Class members has been overwhelmingly positive.

There have been no requests for exclusion (Retnasaba Decl., ¶ 20), and no

objections have been filed. This positive reaction to the Settlement indicates the

Court should grant final approval, as the Court “‘may appropriately infer that a class

action settlement is fair, adequate, and reasonable when few class members object

to it.’” Garner, 2010 WL 1687832, at *14. The absence of objections is particularly

noteworthy here, where notice of the settlement was disseminated to millions of

consumers. See Section II., supra. “‘It is established that the absence of a large

number of objections to a proposed class action settlement raises a strong

presumption that the terms of a proposed class settlement action are favorable to the

class members.’” In re Omnivision Techs., Inc., 559 F. Supp. 2d at 1043 (quoting

Nat’l Rural Telecomms. Coop., 221 F.R.D. at 528-29); see also Dupler v. Costco

Wholesale Corp., 705 F. Supp. 2d 231, 239 (E.D.N.Y. 2010) (“[A] small number of

class members seeking exclusion or objecting indicates an overwhelming positive

reaction of the class.”). That presumption applies with full force here.

V. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED.

When presented with a proposed settlement, a court must first determine

whether the proposed settlement class satisfies the requirements for class

certification under Rule 23. In assessing those class certification requirements, a

court may properly consider that there will be no trial. Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 620 (1997). For the reasons below, the Class meets the

requirements of Rule 23(a) and (b).

A. The Class Satisfies Rule 23(a).

1. Numerosity.

Rule 23(a)(1) requires that “the class is so numerous that joinder of all

members is impracticable.” See Fed. R. Civ. P. 23(a)(1). “As a general matter, courts

have found that numerosity is satisfied when class size exceeds 40 members, but not





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satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 F.R.D. 649,

654 (C.D. Cal. 2000). Here, the proposed class is comprised of tens of thousands of

consumers who purchased the Class Products. To date, the settlement administrator

has received 67,967 valid claim forms. See Retnasaba Decl., ¶ 18. Accordingly, the

numerosity requirement is easily satisfied.

2. Commonality.

Rule 23(a)(2) requires the existence of “questions of law or fact common to

the class.” See Fed. R. Civ. P. 23(a)(2). Commonality is established if plaintiffs and

class members’ claims “depend on a common contention,” “capable of class-wide

resolution . . . [meaning] that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Because the commonality

requirement may be satisfied by a single common issue, it is easily met. 1 H.

Newberg & Conte, Newberg on Class Actions § 3.10, at 3-50 (1992).

There are ample issues of both law and fact here that are common to the

members of the Class. All of the Class Members’ claims arise from a common

nucleus of facts and are based on the same legal theories. Plaintiffs allege that UIC

“Makes Up To __” gallons statement on the Spectracide® Concentrate Product

labels is false and misleading because the Products yield only a fraction of the

advertised “Makes Up To” amount when mixed for “general weed control”

purposes. These alleged misrepresentations were made in a uniform manner to each

of the Class Members. Accordingly, commonality is satisfied by the existence of

these common factual issues. See Arnold v. United Artists Theatre Circuit, Inc., 158

F.R.D. 439, 448 (N.D. Cal. 1994) (commonality requirement met by “the alleged

existence of common discriminatory practices”).

Second, Plaintiffs’ claims are brought under legal theories common to the

Class as a whole. Alleging a common legal theory alone is enough to establish

commonality. See Hanlon, 150 F.3d at 1019 (“All questions of fact and law need not





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be common to satisfy the rule. The existence of shared legal issues with divergent

factual predicates is sufficient, as is a common core of salient facts coupled with

disparate legal remedies within the class.”). Here, all of the legal theories asserted

by Plaintiffs are common to all Class Members. Given that there are virtually no

issues of law which affect only individual members of the Class, commonality is

satisfied.

3. Typicality.

Rule 23(a)(3) requires that the claims of the representative plaintiffs be

“typical of the claims … of the class.” See Fed. R. Civ. P. 23(a)(3). “Under the rule’s

permissive standards, representative claims are ‘typical’ if they are reasonably

coextensive with those of absent class members; they need not be substantially

identical.” See Hanlon, 150 F.3d at 1020. In short, to meet the typicality requirement,

the representative plaintiffs simply must demonstrate that the members of the

settlement class have the same or similar grievances. Gen. Tel. Co. of the Sw. v.

Falcon, 457 U.S. 147, 161 (1982).

The claims of the named Plaintiffs are typical of those of the Class. Like those

of the Class, their claims arise out of the purchase of Spectracide® Concentrate

products for personal or household use after relying on UIC’s allegedly misleading

“Makes Up To __” gallons representations. The named Plaintiffs have precisely the

same claims as the Class and must satisfy the same elements of each of their claims,

as must other Class Members. Supported by the same legal theories, the named

Plaintiffs and all Class Members share claims based on the same alleged course of

conduct. The named Plaintiffs and all Class Members have been injured in the same

manner by this conduct. Therefore, Plaintiffs satisfy the typicality requirement.

4. Adequacy.

The final requirement of Rule 23(a) is set forth in subsection (a)(4) which

requires that the representative parties “fairly and adequately protect the interests of

the class.” See Fed. R. Civ. P. 23(a)(4). Plaintiffs have fully addressed the adequacy





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requirement in Section VI(A) above and the same arguments need not be repeated

here.

B. The Class Satisfies Rule 23(b)(3).

In addition to meeting the prerequisites of Rule 23(a), Plaintiffs must also

meet one of the three requirements of Rule 23(b) to certify the proposed class. See

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Under

Rule 23(b)(3), a class action may be maintained if “the court finds that the questions

of law or fact common to the members of the class 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.” See Fed.

R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) is appropriate and encouraged

“whenever the actual interests of the parties can be served best by settling their

differences in a single action.” Hanlon, 150 F.3d at 1022.

1. Common Questions of Law and Fact Predominate.

The proposed Class is well suited for certification under Rule 23(b)(3)

because questions common to the Class Members predominate over questions

affecting only individual Class Members. Predominance exists “[w]hen common

questions present a significant aspect of the case and they can be resolved for all

members of the class in a single adjudication.” Id. As the U.S. Supreme Court has

explained, when addressing the propriety of certification of a settlement class, courts

take into account the fact that a trial will be unnecessary and that manageability,

therefore, is not an issue. Amchem, 521 U.S. at 619-62.

In this case, common questions of law and fact exist and predominate over

any individual questions, including, in addition to whether this settlement is

reasonable (see Hanlon, 150 F.3d at 1026-27), inter alia: (1) whether UIC’s

representations regarding its “Makes up to ___” gallons claim were false and

misleading or reasonably likely to deceive consumers; (2) whether UIC violated the

CLRA, UCL, FAL and the MMPA; (3) whether UIC had defrauded Plaintiff and the





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Class Members; and (4) whether the Class has been injured by the wrongs

complained of, and if so, whether Plaintiffs and the Class are entitled to damages,

injunctive and/or other equitable relief, including restitution, and if so, the nature

and amount of such relief.

There are also no concerns here about certifying a nationwide settlement class.

Since the Court entered its Preliminary Approval Order, the Ninth Circuit issued its

en banc opinion in In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539 (9th Cir.

2019) (“Hyundai”). The Ninth Circuit in Hyundai made clear that it is “‘the foreign

law proponent’ who must ‘shoulder the burden of demonstrating that foreign law,

rather than California law, should apply to class claims.’” Id. at 561. This is

especially relevant here because UIC is not opposing the certification of a

nationwide class involving California and Missouri law. Consequently, UIC is

voluntarily subjecting itself to California and Missouri law, including California’s

Consumer Legal Remedies Act and Missouri’s Merchandising Practices Act, which

provide greater protections to consumers than other jurisdictions. Where, as here,

UIC’s products were widely distributed and there are significant contacts with

California residents, and where UIC does not oppose California law applying to the

nationwide class, the Mazza choice of law analysis is easily satisfied because the

interests of other states will not be impaired. In re Hyundai & Kia Fuel Econ. Litig.,

926 F.3d at 561. Missouri’s MMPA can also be applied to the nationwide Settlement

Class because UIC maintains its principal place of business in Missouri and Missouri

has significant contacts with the claims of each class member.

Moreover, the considerations driving the rest of the Mazza analysis are

inapplicable here. In the settlement context, other states’ interests would not be

undermined by the application of California and Missouri law because UIC is opting

into a regime that protects consumers more vigorously than other states. In Hanlon,

the Ninth Circuit also held that “the idiosyncratic differences between state

consumer protection laws are not sufficiently substantive to predominate over the





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shared claims.” Hanlon, 150 F.3d at 1022–23; In re Hyundai & Kia Fuel Econ.

Litig., 926 F.3d at 561 (“no party argued that California’s choice-of-law rules should

not apply to this class settlement”); Sullivan v. DB Investments, Inc., 667 F.3d 273,

301 (3d Cir. 2011) (“variations in the rights and remedies available to injured class

members under the various laws of the fifty states [do] not defeat commonality and

predominance.”); In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 315 (N.D.

Cal. 2018) (finding that differences between state consumer protection laws do not

defeat predominance and certifying nationwide settlement class). Accordingly, the

Court should find that common issues predominate.

2. A Class Action Is the Superior Mechanism for Adjudicating

this Dispute.

The class mechanism is superior to other available means for the fair and

efficient adjudication of the claims of the Class Members. Each individual Class

Member may lack the resources to undergo the burden and expense of individual

prosecution of the complex and extensive litigation necessary to establish

Defendant’s liability. Individualized litigation increases the delay and expense to all

parties and multiplies the burden on the judicial system. Individualized litigation

also presents a potential for inconsistent or contradictory judgments. In contrast, the

class action device presents far fewer management difficulties and provides the

benefits of single adjudication, economy of scale, and comprehensive supervision

by a single court. Accordingly, common questions predominate and a class action is

the superior method of adjudicating this controversy.

VI. CONCLUSION

For the reasons set forth above, the Court should grant final approval of

Plaintiffs’ class action settlement with Defendant United Industries Corporation.





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DATED: January 27, 2020 Respectfully submitted,


RONALD A. MARRON

LAW OFFICES OF

RONALD A. MARRON

Ronald A. Marron

[email protected]

Michael T. Houchin

[email protected]

Lilach Halperin

[email protected]

651 Arroyo Drive

San Diego, California 92103

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

Counsel for Plaintiffs and the Class



DECLARATION OF RONALD A. MARRON IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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LAW OFFICES OFRONALD A. MARRON RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] LILACH HALPERIN (SBN 323202) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiffs and the Class







Plaintiffs,

vs.

UNITED INDUSTRIES

CORPORATION,

Defendant.


CLASS ACTION

DECLARATION OF RONALD A.

MARRON IN SUPPORT OF

PLAINTIFFS’ UNOPPOSED

MOTION FOR FINAL


SETTLEMENT


Time: 10:00 a.m.

Ctrm: 8D

Judge: Hon. Christina A. Snyder REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL






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I, Ronald A. Marron, hereby declare as follows:

1. I am a member in good standing of the State Bar of California and of

the United States District Courts for the Central, Eastern, Northern, and Southern

Districts of California as well as the Ninth Circuit Court of Appeals and the United

States Supreme Court. I submit this Declaration in Support of Plaintiffs’

Unopposed Motion for Final Approval of Class Action Settlement. I make this

Declaration based on my personal knowledge and if called to testify, I could and

would competently testify to the matters contained herein.

2. This action was filed by original plaintiff Gregory Arthur (“Arthur”)

on September 21, 2017. Following the Court’s May 17, 2018 Order denying

Arthur’s Motion for Class Certification, Plaintiffs Michael Graves and Keith Gren

were added as the Plaintiffs and proposed class representatives. On September 7,

2018, Michael Whealen sent UIC a consumer notice and demand letter on behalf

of himself and a proposed nationwide class concerning the Spectracide®

Concentrate Products (the “Products”) at issue in this action. On May 15, 2019, a

Fourth Amended Class Action Complaint was filed adding Michael Whealen as a

named Plaintiff in addition to Graves and Gren.

3. Plaintiffs and UIC have engaged in substantial discovery, which has

allowed class counsel to evaluate the strengths and weaknesses of the case. On

October 26, 2017, Arthur served a first set of Interrogatories and a first set of

Request for Production of Documents on UIC. In exchange for Arthur’s agreement

to extend UIC’s time to serve written responses and objections, UIC produced

several documents that were crucial to Arthur’s claims in the litigation including

the suggested retail prices for the Products, annual sales of the Products, and

Product labels that were in use during the class period.

4. On February 16, 2018, UIC served objections and responses to

Arthur’s discovery requests. Around that same time, UIC also produced a second

batch of documents relating to Plaintiffs’ claims, including communications with





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the Environmental Protection Agency (“EPA”) relating to the labels of the

Products.

5. Class Counsel sent a detailed meet-and-confer letter to UIC on March

23, 2018 regarding remaining deficiencies with its written discovery responses.

Following extensive meet-and-confer efforts, the Parties reached an agreement on

the scope of Plaintiff’s discovery requests.

6. On January 26, 2018, UIC served a deposition notice on Gregory

Arthur that included several document requests. On January 31, 2018, Arthur

served objections and responses to UIC’s document requests. On February 2, 2018,

UIC then took the deposition of Gregory Arthur.

7. In support of Arthur’s Motion for Class Certification, Class Counsel

submitted an expert report from Charlene L. Podlipna, CPA, detailing a proposed

class wide damages model. On January 26, 2018, UIC served a Notice of

Deposition Duces Tecum on Ms. Podlipna that contained several document

requests. On February 14, 2018, Class Counsel served objections and responses to

the document requests that were served on Ms. Podlipna. On February 16, 2018,

UIC took the deposition of Ms. Podlipna on topics relating to her expert opinion

and report.

8. After Plaintiffs Graves and Gren filed their Third Amended

Complaint, UIC promptly began pursuing discovery from the new named

Plaintiffs. On June 29, 2018, UIC served a Notice of Deposition Duces Tecum on

Plaintiff Gren that contained several document requests. UIC then took the

deposition of Plaintiff Keith Gren on July 12, 2018. Plaintiff Gren’s deposition

lasted more than five hours.

9. Following Plaintiff Gren’s deposition, the Parties began engaging in

preliminary settlement discussions in July of 2018. During the course of several

months the Parties engaged in settlement negotiations that resulted in the

Settlement Agreement. The several months that it took to work out significant





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details and vigorous disagreements between the parties demonstrate that this

proposed resolution was the product of heavily disputed and arm’s length

negotiation. The settlement negotiations were hard-fought, with both Parties and

their counsel thoroughly familiar with the applicable facts, legal theories, and

defenses on both sides.

10. In the eyes of Class Counsel, the proposed Settlement provides the

Class with an outstanding opportunity to obtain significant relief at this stage in the

litigation. The Settlement also abrogates the risks that might prevent them from

obtaining any relief.

11. Settlement Class Members can claim $6.25 in cash from the

Settlement Fund for each Claim submitted by a household, with a limit of four (4)

claims per household (total payable per household in no event to exceed $25,

unless distribution is increased pro rata). Agreement at § 7.2.1. This recovery is

significant considering that a 64-ounce bottle of Spectracide Concentrate, the most

expensive bottle size, sells for approximately $30.00 at retail stores like Home

Depot. (See ECF No. 71-4).

12. Even if the Class were to prevail at trial, damages in this action would

not be the total purchase price of the Products. Instead, damages would be based

on a percentage of the total retail price for each of the Products based on the

alleged underfill amount. Plaintiffs’ damages expert has opined that the alleged

underfill amount ranges from 36% to 38% depending on the bottle size. (See ECF

No. 23-14 [Podlipna Expert Report at ¶13]). For example, the total amount of

recovery that would be available at trial would be approximately $10.80 for

purchasers of the 64-ounce bottle size ($30.00 x .36 = $10.80).

13. The amount of recovery per claimant is also adequate considering that








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forms were submitted by settlement class members and 248,042 valid claims will

be paid by the settlement administrator. See Declaration of Gajan Retnasaba filed

concurrently herewith (“Retnasaba Decl.”), ¶¶ 18-19. Once notice and

administration costs along with Plaintiffs’ requested attorneys’ fees, costs, and

incentive awards are deducted from the $2,500,000 Settlement Fund, there will be

approximately $1,602,477.37 available for distribution to the Settlement Class.1

This means that there will be a slight pro rata increase and $6.46 will be paid for

each valid and timely claim submitted. ($1,602,477.37 in available funds for

distribution / 248,042 valid claims = $6.46 per claim). Because the average valid

claim form reported 3.6 purchases, average settlement class members will receive

approximately $23.26. This recovery is significant considering that a 64-ounce

bottle of Spectracide® Concentrate, the most expensive bottle size, sells for

approximately $30.00 at retail stores. (See ECF No. 71-4). The approximately

$6.46 recovery per claim is an excellent result considering it will account for

around 21.5% of total damages that would be recoverable at trial per purchase.

14. The Settlement amount is also reasonable considering Defendant’s

total nationwide sales. During the class period, UIC sold retail units of

Spectracide concentrate products in the United States and UIC’s total sales of

Spectracide Concentrate Products in the United States totals . (See

ECF No. 71-5). A review of Defendant’s sales records show that the projected

maximum for nationwide class damages would be approximately

if Plaintiffs were to prevail at trial. ( nationwide sales x .38 underfill

1 Notice and Administration costs total $129,432. Retnasaba Decl., ¶ 21. Plaintiffs are also requesting $725,000 in attorneys’ fees, $32,090.63 in litigation costs, and $11,000 in total incentive awards. (See Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards, Dkt. No. 78-1). Once notice and administration costs and Plaintiffs’ requested attorneys’ fees, costs, and incentive awards are deducted from the $2,500,000 Settlement Fund, there will be $1,602,477.37 available for distribution to Settlement Class Members who submitted timely and valid claims.





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percentage = ). The $2,500,000 settlement fund accounts for

% of total damages that would be available at trial, which is well within the

range of reason.

15. No agreements were made in connection with the settlement aside

from the settlement agreement itself.

16. Based on my experience, I conclude that the Settlement provides

exceptional results for the Class while sparing the Class from the uncertainties of

continued and protracted litigation.

Ronald A. Marron Firm’s Qualifications and Experience Prosecuting

Consumer Class Action Lawsuits

17. My work experience and education began in 1984 when I enlisted in

the United States Marine Corps (Active Duty 1984-1988, Reserves 1988-1990) and

thereafter received my Bachelor of Science in Finance from the University of

Southern California (1991). While attending Southwestern University School of

Law (1992-1994), I also studied Biology and Chemistry at the University of

Southern California and interned at the California Department of Corporations

with emphasis in consumer complaints and fraud investigations. I was admitted to

the State Bar of California in January of 1995 and have been a member in good

standing since that time. In 1996, I started my own law firm with an emphasis in

consumer fraud. My firm currently employs six full-time attorneys, two law clerks,

three paralegals, and support staff. Attached hereto as Exhibit 1 is a true and

correct copy of my firm’s current resume.

18. Over the years I have acquired extensive experience in class actions

and other complex litigation, and have obtained large settlements as lead counsel.

In recent years, I devoted almost all of my practice to the area of false and

misleading labeling of food, nutrition or over-the-counter products, cases involving

violations of the Telephone Consumer Protection Act, and other privacy cases.





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19. Most recently, on November 29, 2018, the Honorable Gonzalo P.

Curiel of the United States District Court for the Southern District of California

granted in part and denied in part Plaintiff’s Motion for Class Certification and

appointed my law firm and the Law Office of David Elliot as class counsel in a

class action titled Hilsley v. Ocean Spray Cranberries, Inc., Case No. 3:17-cv-

02335-GPC-MDD (S.D. Cal.) (Dkt. No. 83). In the Hilsley case, the plaintiff

alleges that malic acid is used as an artificial flavoring ingredient in certain Ocean

Spray beverage products although the products are labeled as containing “No

artificial flavors.”

20. On September 20, 2017, the Honorable Cynthia A. Bashant of the

United States District Court for the Southern District of California granted

Plaintiff’s Motion for Class Certification and appointed my law firm as class

counsel in a class action titled Reyes v. Educational Credit Management

Corporation, Case No. 15-cv-00628-BAS-AGS (USDC S.D. Cal.) that involves

violations of California’s Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 630

et seq.

21. On January 27, 2017, my firm obtained final approval of a TCPA

class action against RBS Citizens, N.A. In granting final approval, the Honorable

Cynthia Bashant found that “Class Counsel [had] fairly and adequately represented

the Class for purposes of entering into and implementing the Settlement, and, thus,

continues to appoint . . . Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci

of the Law Offices of Ronald A. Marron as Class Counsel for the Settlement

Class.” Sanders v. RBS Citizens, N.A., No. 13-CV-3136-BAS-RBB, 2017 WL

406165, at *4 (S.D. Cal. Jan. 27, 2017).

22. On January 4, 2016, the Honorable Analisa Torres appointed the

Marron firm as Interim Lead Class Counsel over the opposition and challenge of

other plaintiffs’ counsel, noting that the Marron firm’s “detailed” complaint was

“more specifically pleaded, . . . assert[ing] a more comprehensive set of theories . .





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. [and was] more factually developed.” Potzner v. Tommie Copper Inc., No. 15

CIV. 3183 (AT), 2016 WL 304746, at *1 (S.D.N.Y. Jan. 4, 2016). Judge Torres

also noted that Mr. Marron and his firm’s attorneys had “substantial experience

litigating complex consumer class actions, are familiar with the applicable law, and

have the resources necessary to represent the class.” Id.

23. In addition to the above cases and the present action, my firm has an

in-depth knowledge of other consumer cases including litigating over-the-counter

(“OTC”) product cases, including the FDCA’s history, principles, and regulations,

and Courts have recognized my firms’ ability to litigate complex class actions. For

example, in Gallucci v. Boiron, Inc., Case No. 3:11-CV-2039 JAH NLS (S. D.

Cal.), we drafted a Complaint with five potential causes of action, and claims

under the CLRA, UCL and FAL with respect to OTC homeopathic drugs which

“concern[ed] novel legal theories in a specialized area of law.” See Delarosa v.

Boiron, Inc., 275 F.R.D. 582, 590 n. 4 (C.D. Cal. 2011). This action involved

extensive motion practice and my firm’s opposition brief was so persuasive that

defendants decided to withdraw their motion. My firm’s well-drafted briefing,

knowledge and experience resulted in a $5 million common fund plus injunctive

relief settlement in favor of Gallucci against French homeopathic giant, Boiron,

Inc. On April 25, 2012, the Honorable John A. Houston granted preliminary

approval, noting that:

During the pendency of the Litigation, Class Counsel conducted a

extensive examination and evaluation of the relevant facts and law to

assess the merits of the named plaintiffs’ and class claims to

determine how best to serve the interests of Plaintiffs and the Class. . .

. Class Counsel conducted thorough review of the Food, Drug and

Cosmetic Act, its numerous changes over the years, and the Act’s

implementing regulations. Class Counsel have carefully considered

the merits of Plaintiffs’ claims, and the defenses raised by defendants.

Gallucci Dkt. No. 89 at i.

24. Accordingly, Judge Houston appointed my firm as Class Counsel,





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finding that Class Counsel “will fairly and adequately protect the interests of the

Class . . . [and] are experienced and competent to prosecute this matter on behalf of

the Class.” Id. at iii-iv. The Fairness Hearing was held on October 1, 2012 and on

October 31, 2012, the court granted final approval. See Gallucci v. Boiron, Inc.,

2012 U.S. Dist. LEXIS 157039 (S.D. Cal. Oct. 31, 2012).

25. Further, on June 26, 2015, the Honorable Maxine M. Chesney of the

United States District Court for the Northern District of California granted

preliminary approval to a class action settlement with injunctive relief for class

wide claims of false representations regarding the defendant’s weight loss teas. See

Johnson v. Triple Leaf Tea Inc., Case No. 3:4-cv-01570 MMC (Dkt. No. 53)

(“Having considered the factors set forth in Rule 23(g)(1) of the Federal Rules of

Civil Procedures, the Court appoints Plaintiff’s counsel, the Law offices of Ronald

A. Marron APLC, to serve as Class Counsel.”).

26. On October 31, 2013, the Honorable Gonzalo P. Curiel of the United

States District Court for the Southern District of California granted preliminary

approval to a class action settlement of $1 million and injunctive relief for class

wide claims of false and deceptive advertising of OTC drugs negotiated by my

firm in Mason v. Heel, Inc., Case No. 3:12-cv-3056 GPC (KSC) (Dkt. No. 27),

also finding there was “sufficient basis . . . under the factors set forth in Rule

23(g)(1) of the Federal Rules of Civil Procedure” to appoint my firm as Class

Counsel. Id. at p. 5.

27. On October 23, 2013, the Honorable Michael M. Anello of the United

States District Court for the Southern District of California granted final approval

to a $1.2 million and injunctive relief class action settlement concerning false and

deceptive advertising of OTC drugs negotiated by my firm in Nigh v. Humphreys

Pharmacal, Inc., Case No. 3:12-cv-02714-MMA-DHB (Dkt. No. 30), finding that

“the Class was adequately represented by competent counsel.” Id. at p. 14.

28. On March 13, 2012, my firm settled a case against manufacturers of





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OTC dietary supplement products for $900,000 in a common fund plus injunctive

relief, styled Burton v. Ganeden Biotech, Inc. et al., Case No. 3:11-cv-01471 W

(NLS) (S.D. Cal.). Burton alleged that defendants falsely advertised their products

as containing “clinically proven” proprietary bacteria that improved and benefitted

the digestive and immune health of individuals when, in fact, no clinical proof

existed. Before this settlement was finalized, my firm rejected defendants’ coupon

settlement offer because we did not believe it constituted the best relief for the

class members. Instead, we continued extensive and lengthy rounds of negotiations

with the defendants to obtain the best result for the class. These months-long

negotiations included back and forth exchange of approximately twenty editions of

the Settlement Agreement, multiple conference calls (including on the weekends)

and e-mails. On March 14, 2012, the parties filed a Joint Motion for Preliminary

Approval of Settlement, (Dkt. No. 38) which the court granted on April 16, 2012

(Id. at 42). After the Fairness Hearing in this case on August 21, 2012, Judge

Whelan granted final approval on October 5, 2012. Dkt. Nos. 48, 52.

29. On March 1, 2012, the Honorable Janis L. Sammartino appointed my

firm Interim Class Counsel in an action styled Margolis v. The Dial Corporation,

Case No. 3:12-cv-288 JLS (WVG) (Dkt. No. 14). This case involved an OTC

pheromone soap product that its manufacturer alleges enhances a man’s sexual

attraction to women.

30. When my firm was appointed Interim Lead Class Counsel for a class

of consumers in a deceptive food labeling case back in March of 2011, the

Honorable Marilyn Huff recognized Class Counsel “appears to be well qualified to

represent the interest of the purported class and to manage this litigation.”

Hohenberg v. Ferrero U.S.A., Inc., 2011 U.S. Dist. LEXIS 38471, at *6 (S.D. Cal.

Mar. 22, 2011). Subsequently, when my firm obtained certification of the proposed

class, the court reaffirmed its finding that my firm is adequate Class Counsel. See

In re Ferrero Litig., 278 F.R.D. 552, 559 (S.D. Cal. 2011). Judge Huff gave Final





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Approval of a settlement on July 9, 2012. (Ferrero Dkt. No. 127).

31. On November 14, 2011 my firm obtained the certification of a

nationwide class of consumers who purchased Qunol CoQ10, a dietary supplement

making misleading efficacy claims. See Bruno v. Quten Research Inst., LLC, 2011

U.S. Dist. LEXIS 132323 (C.D. Cal. Nov. 14, 2011). My firm then successfully

defeated the defendants’ motion to decertify the class following the Ninth Circuit’s

decision in Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). See

Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012).

The case then settled on the eve of trial (originally scheduled for October 2, 2012).

32. On June 14, 2011, the Honorable Richard Seeborg appointed my firm

Interim Class Counsel, over a competing application from a former partner at the

New York law firm Milberg Weiss, regarding a deceptive food labeling case. See

Chacanaca v. Quaker Oats Co., 2011 U.S. Dist. LEXIS 65023, at *8-9 (N.D. Cal.

June 14, 2011) (since restyled as In re Quaker Oats Labeling Litig.) (“There is no

question here that both the Weston/Marron counsel…have ample experience

handling class actions and complex litigation. It is also clear that both have

particular familiarity with suits involving issues of mislabeling in the food

industry.”).

33. I was appointed class counsel in Peterman v. North American

Company for Life and Health Ins., et al., No. BC357194, (L.A. Co. Sup. Ct.),

which was litigated for over 4 years and achieved a settlement of approximately

$60 million for consumers. In granting preliminary approval of the settlement, the

Hon. Carolyn B. Kuhl noted that “the excellent work that the plaintiffs’ side has

done in this case has absolutely followed through to the settlement…The thought

and detail that went into the preparation of every aspect was very impressive to

me.”

34. I also served as class counsel in Clark v. National Western Life

Insurance Company, No. BC321681 (L.A. Co. Sup. Ct.), a class action that, after





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litigating the case for well over 6 years, resulted in a settlement of approximately

$25 million for consumers.

35. In Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.), I

was appointed class counsel on August 24, 2006, following class certification,

which was granted on July 25, 2006 by the Honorable Irma E. Gonzalez. Dkts.

Nos. 113 and 121. After nearly 6 years of intensive litigation, a settlement valued

at $110 million was reached in Iorio, supra, and approved on March 3, 2011, by

the Honorable Janis Sammartino. Dkt. No. 480. Co-counsel and I successfully

defended multiple motions brought by defendant in the Southern District of

California, including “challenges to the pleadings, class certification, class

decertification, summary judgment,…motion to modify the class definition, motion

to strike various remedies in the prayer for relief, and motion to decertify the

Class’ punitive damages claim,” plus three petitions to the Ninth Circuit attempting

to challenge the Rule 23(f) class certification. Iorio, Final Order Approving (1)

Class Action Settlement, (2) Awarding Class Counsel Fees and Expenses, (3)

Awarding Class Representatives Incentives, (4) Permanently Enjoining Parallel

Proceedings, and (5) Dismissing Action with Prejudice, entered on Mar. 3, 2011, at

6:9-15 (commenting that class counsel were “highly experienced trial lawyers with

specialized knowledge in insurance and annuity litigation, and complex class

action litigation generally” and “capable of properly assessing the risks, expenses,

and duration of continued litigation, including at trial and on appeal,” Id. at 7:18-

22). Judge Sammartino also noted “the complexity and subject matter of this

litigation, and the skill and diligence with which it has been prosecuted and

defended, and the quality of the result obtained for the Class.” Id. at 17:25-27.

36. Besides these cases, I have also represented plaintiffs victimized in

other complex cases such as Ponzi schemes, shareholder derivative suits, and

securities fraud cases. I have litigated hundreds of lawsuits and arbitrations against

major corporations; of these, approximately 30 cases against the likes of such





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corporate titans as Shell Oil, Citigroup, Wells Fargo, Morgan Stanley and Merrill

Lynch have gone through trial or arbitration. Many more have settled on the eve of

trial although I was fully prepared to proceed to trial.

I declare under penalty of perjury of the laws of the United States that the

foregoing is true and correct.

Executed on this 27th day of January, 2020 at San Diego, California.


Ronald A. Marron


EXHIBIT 1


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LAW OFFICES OF RONALD A. MARRON, APLC 651 Arroyo Drive

San Diego ▪ CA ▪ 92103

Tel.: (619) 696-9006

Fax: (619) 564-6665

Firm Resume

FIRM OVERVIEW

The Law Offices of Ronald A. Marron is a recognized class action and complex litigation firm based

out of San Diego, California, representing clients across the nation. Founded in 1996 with an

emphasis in consumer and securities fraud, the firm has expanded its practice to include complex

cases such as electronic privacy, banking regulations, antitrust, automatic renewals, Telephone

Consumer Protection Act and Government Environmental Law Litigation. The firm has skillfully

litigated hundreds of lawsuits and arbitrations against investment advisors and stockbrokers, such as

Morgan Stanley, LPL Financial, Merrill Lynch, Banc of America Securities, and Citigroup, who

placed clients into unsuitable investments, failed to diversify, and who violated the Securities Act of

1933 and/or 1934. Aptly and competently prepared to represent its clients, the firm has taken on

cases against the likes of Shell Oil, Citigroup, Wells Fargo, Union Bank of California, American

Express Advisors, Morgan Stanley and Merrill Lynch. Since 2004, the firm has devoted most of its

practice to the area of false and misleading labeling of Consumer Products and food, drug and over-

the-counter products, as well as seeking to protect consumers from unauthorized and unsolicited

telephone calls, SMS or text messages to cellular phones from corporations under the Telephone

Consumer Protection Act. The firm employs five attorneys, whose qualifications are discussed in

brief below.

THE MARRON FIRM’S ATTORNEYS:

Ronald A. Marron, Founder

As the founder of the Law Offices of Ronald A. Marron, APLC, Mr. Marron has been practicing law

for 25 years. He was a member of the United States Marine Corps from 1984 to 1990 (Active Duty

1984-1988, Reserves 1988-1990) and thereafter received a B.S. in Finance from the University of

Southern California (USC) in 1991. While attending Southwestern University School of Law (1992-

1994), he interned at the California Department of Corporations with emphasis in consumer

complaints and fraud investigations; and studied Bio-Chemistry at the University of Southern

California and was a member of the Trojan Chemistry Club. Mr. Marron has extensive experience

in class actions and other complex litigation and has obtained hundreds of millions of dollars on

behalf of consumers as lead counsel. Mr. Marron has represented plaintiffs victimized in TCPA

cases, Consumer Fraud, Antitrust, Broker-Dealer Liability, Ponzi schemes, shareholder derivative

suits, and securities fraud cases.

Mr. Marron has assisted two United States Senate Subcommittees and their staff in investigations of

financial fraud, plus the Senate Subcommittee on Aging relating to annuity sales practices by agents

using proceeds from reverse mortgages. Mr. Marron's clients have testified before the United States

Senate Subcommittee on Investigations relating to abusive sales practices alleged in a complaint he

filed against All-Tech Investment Group. The hearings resulted in federal legislation that: (a) raised

the minimum capital requirements, and (b) required written risk disclosure signed by consumer. The


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civil action resulted in return of client funds and attorneys’ fees pursuant to the private attorney

general statute and/or Consumers Legal Remedies Act. Mr. Marron conducted the legal research

and co-wrote the brief that resulted in the largest punitive damages award (500%) in NASD history

for aggrieved investors against Dean Witter Reynolds in securities arbitration. Mr. Marron's opinion

on deferred annuity sales practices targeting the elderly has often been sought by major financial

news organizations and publications such as Forbes, the Wall Street Journal, the Kiplinger's

Retirement Report, CNN, and FOX News affiliates. In addition, he has devoted significant energy

and time educating seniors and senior citizen service providers, legislators, and various non-profits

(including Elder Law & Advocacy) about deferred annuity sales practices targeting the elderly. Mr.

Marron had numerous speaking engagements at FAST (Fiduciary Abuse Specialist Team), which is

an organization devoted to the detection of, prevention, and prosecution of elder financial abuse;

Adult Protective Services; and Elder Law & Advocacy, a non-profit dedicated to assisting seniors

who have been the victims of financial fraud. He has litigated hundreds of lawsuits and arbitrations

against major corporations, such as Shell Oil, Citigroup, Wells Fargo, Morgan Stanley, and Merrill

Lynch. In recent years, Mr. Marron has devoted almost all of his practice to the area of TCPA and

Privacy Violations, false and misleading labeling of food, dietary supplements, and over-the-counter

products. He is a member in good standing of the State Bar of California; the United States District

Courts for the Eastern, Southern and Northern Districts of New York; the United States District

Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States

District Court for the Eastern District of Michigan; the United States District Court for the Eastern

and Western Districts of Wisconsin; the United States District Court of Colorado; the United States

Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States.

Alexis M. Wood, Senior Associate

Ms. Wood graduated cum laude from California Western School of Law in 2009, where she was the

recipient of the Dean’s Merit Scholarship for Ethnic & Cultural Diversity and also Creative Problem

Solving Scholarships. In addition, during law school, Ms. Wood was the President of the Elder,

Child, and Family Law Society, and participated in the study abroad program on international and

comparative human rights law in Galway, Ireland. Ms. Wood interned for the Alternate Public

Defender during law school, and also held a judicial externship with the San Diego Superior Court.

Upon graduation, Ms. Wood obtained her Nevada Bar license and worked at the law firm Alverson

Taylor Mortensen & Sanders in Las Vegas, Nevada where she specialized in medical malpractice.

Ms. Wood then obtained her license to practice law in California in 2010 and worked at the

bankruptcy firm Pite Duncan, LLP in San Diego, California, in which she represented financial

institutions in bankruptcy proceedings. She additionally worked for the national law firm Gordon &

Rees, LLP as an associate attorney in the professional liability defense and tort & product liability

practice groups. Ms. Wood was also selected to the 2015 and 2016 California Super Lawyers Rising

Star list (general category)—a research-driven, peer influenced rating service of outstanding lawyers

who have attained a high degree of peer recognition and professional achievement. No more than

2.5% of the lawyers in the state were selected for the Rising Stars list. Ms. Wood joined the Law

Office of Ronald Marron in September of 2012 and has dedicated her practice to consumer advocacy.

Ms. Wood is also a foster youth advocate with Voices for Children. She is a member in good standing

of the State Bar of California; the State Bar of Nevada; the United States District Courts for the

Central, Eastern, Northern, and Southern Districts of California; the United States District Court of

Nevada; the United States District Court for the Eastern and Western Districts of Wisconsin; the

United States District Court of Colorado; and the United States Court of Appeals for the Ninth

Circuit.


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Kas L. Gallucci, Senior Associate

Ms. Gallucci graduated cum laude from California Western School of Law in 2012, where she ranked

in the top 12% of her graduating class and was listed on the Dean’s Honor List for four terms. During

law school, Ms. Gallucci received the highest grade in her Legal Skills and Advanced Legal Research

classes. She also participated in the Capitals of Europe Summer Study Abroad Program, where the

Honorable Samuel A. Alito, Jr. was a Distinguished Guest Jurist. Ms. Gallucci has worked for the

firm since 2009 and has a number of years’ experience in consumer fraud cases and is currently

prosecuting violations of the Telephone Consumer Protection Act. Ms. Gallucci also regularly assists

with the firm’s food, drug, and cosmetic cases. She is a member in good standing of the State Bar of

California; the United States District Courts for the Central, Northern, and Southern Districts of

California; the United States District Court for the Eastern District of Michigan; the United States

District Court for the Eastern and Western Districts of Wisconsin; the United States District Court

for New Mexico; the United States District Court of Colorado; and the United States Court of

Appeals for the Ninth Circuit.

Michael Houchin, Associate

Mr. Houchin has been with the Law Offices of Ronald A. Marron since 2011. Prior to passing the

California bar exam, Mr. Houchin worked as a law clerk for the firm while he attended law school

courses in the evenings at the Thomas Jefferson School of Law. During law school, Mr. Houchin

received four Witkin Awards for the highest grade achieved in his Legal Writing, Constitutional

Law, American Indian Law, and California Civil Procedure courses. He also served as an editor on

the Thomas Jefferson Law Review and was a member of an editing team that prepared a student Note

for compliance with publishable quality standards. See I. Suruelo, Harmonizing Section 14(B) with

The Policy Goals of the NLRA on the Heels of Michigan's Enactment of Right-To-Work Laws, 36 T.

JEFFERSON L. REV. 427 (2014). Mr. Houchin graduated magna cum laude in May of 2015 and ranked

in the top 5% of his graduating class. Through his work at the Law Offices of Ronald A. Marron,

APLC, Mr. Houchin has gained substantial familiarity with multi-district litigation proceedings,

solutions for e-discovery management, and false advertising investigations. He is a member in good

standing of the State Bar of California; and the United States District Courts for the Central, Eastern,

Northern, and Southern Districts of California; the Western District of Wisconsin; the United States

Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States.

Lilach Halperin, Associate

Ms. Halperin graduated cum laude from the University of San Diego School of Law in 2018. During

law school, Ms. Halperin held a judicial externship with the San Diego Superior Court and

volunteered for numerous pro bono clinics, including the USD Entrepreneurship Clinic, the USD

State Sales and Use Tax Clinic, and the San Diego Clean Slate Clinic. In addition, Ms. Halperin was

the Chair of the USD Pro Bono Legal Advocates Consumer Affairs Clinic, where she worked with

the Legal Aid Society of San Diego to assist indigent clients with lawsuits in consumer protection

law. In her third year of law school, Ms. Halperin was hired as a law clerk for the Law Offices of

Ronald A. Marron and assisted in consumer fraud cases for the firm, including the areas of false and

misleading labeling of consumer products. Ms. Halperin recently passed the California Bar and will

continue working for the Marron firm as an Associate Attorney. She is a member of good standing

of the State Bar of California; the United States District Courts for the Southern, Northern, Eastern

and Central Districts of California; and the Western District of Wisconsin.


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Elisa Pineda, Associate

Ms. Pineda graduated magna cum laude from California Western School of Law in 2019, where she

was the recipient of the Dean’s Merit Scholarship for Ethnic & Cultural Diversity and ranked in the

top 3% of her graduating class. During law school, Ms. Pineda received an award for obtaining the

highest grade in the following classes: Property I, Torts I, Trusts & Estates, Professional Ethics, and

the Mediation Clinic. Ms. Pineda was listed on the Dean’s Honor List for three terms. In addition,

during law school, Ms. Pineda received an Outstanding Editor Award for her efforts as Senior Editor

for her law school’s International Law Journal. Ms. Pineda interned for both the San Diego District

Attorney’s Office and the San Diego Public Defender’s Office. She also held a judicial externship

with the Honorable United States Magistrate Judge Jill Burkhardt at the United States District Court

for the Southern District of California. Ms. Pineda recently passed the California Bar and is now

working as an Associate Attorney at the Law Offices of Ronald A. Marron. She is a member in good

standing of the State Bar of California and the United States District Court for the Southern District

of California.

Support Staff

The Marron Firm also employs a number of knowledgeable and experienced support staff, including

paralegals and legal assistants.

EXAMPLES OF MARRON FIRM’S SUCCESSES ON BEHALF OF CONSUMERS

Busch v. Bluestem Brands, Inc., No. 16-cv-0644(WMW/HB) (D. Minn.)

On October 11, 2019, the Honorable Judge Wilhelmina M. Wright granted final approval of a

nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as

co-lead class counsel. The settlement created a $5.25 million common fund.

Esparza v. Smartpay Leasing, Inc., No. 3:17-cv-03421-WHA (N.D. Cal.)

On September 12 2019, the Honorable William Alsup granted preliminary approval a nation-wide

certified class action settlement. The class included individuals who were texted on behalf of the

defendant, using its vendor Twilio, Inc.’s platform after texting the word “STOP”, between

September 29, 2015 to June 13, 2017. The Court also appointed Plaintiff Shawn Esparza as class

representative and Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of the Law Offices of

Ronald A. Marron as class counsel.

Medina v. Enhanced Recovery Company, LLC, No. 15-CV-14342-MARTINEZ-MAYNARD

(S.D. Fla.)

On September 12, 2019, the Honorable Judge Jose E. Martinez granted final approval of a

nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as

co-lead class counsel. The settlement created a $1.45 million common fund.

Littlejohn v. Ferrara Candy Company, No. 18-cv-0658-AJB-WVG (S.D. Cal.)

On June 17, 2019, the Honorable Anthony J. Battaglia granted final approval of a nationwide CLRA

class action settlement stating “Class Counsel has fully and competently prosecuted all causes of

action, claims, theories of liability, and remedies reasonably available to the Class Members.”

Littlejohn v. Ferrara Candy Co., No. 318CV00658AJBWVG, 2019 WL 2514720, at *3 (S.D. Cal.

June 17, 2019).


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Rwomwijhu v. SMX, LLC, No. BC634518 (L.A. Supr. Ct.)

On January 11, 2019, the Honorable Carolyn B. Kuhl granted final approval of case brought pursuant

to under California’s Private Attorneys General Act where the Law Offices of Ronald A. Marron

served as co-lead class counsel.

Jackson v. Lang Pharma Nutrition, Inc., No. 37-2017-00028196-CU-BC-CTL (S.D. Supr. Ct.)

On December 20, 2018, the Honorable Joel R. Wohlfeil of the California Superior Court granted

final approval to a nationwide labeling case settlement involving Co-q10 dietary supplements where

the Law Offices of Ronald A. Marron served as class counsel. The settlement created a fund in the

amount of $1,306,000 for which class members could elect to obtain cash or product vouchers.

Simms v. ExactTarget, LLC, No. 1-14-cv-00737-WTL-DKL (S.D. Ind.)

On October 19, 2018, the Honorable William T. Lawrence granted final approval of a nationwide

TCPA class action settlement where the Law Offices of Ronald A. Marron served as class counsel.

The settlement created a $6.25 million common fund.

Mancini v. The Western and Southern Life Insurance Company, et al., No. 16-cv-2830-LAB

(WVG) (S.D. Cal)

On September 18, 2018, the Honorable Larry Alan Burns granted final approval of settlement in the

amount of $477,500 to resolve claims under California’s Private Attorneys General Act.

Gonzales v. Starside Security & Investigation, No. 37-2015-00036423-CU-OE-CTL

(S.D. Supr. Ct.)

On September 7, 2018, the Honorable Gregory W. Pollack granted final approval of a wage and hour

class action settlement and where the Law Offices of Ronald A. Marron served as class counsel.

Mollicone v. Universal Handicraft, No. 17-21464-Civ-Scola (S.D. Fla.)

On August 10, 2018, the Honorable Robert N. Scola, Jr. granted final approval of class action

settlement regarding false advertising claims of Adore cosmetics products marketed as containing a

plant stem cell formula where in which the Law Offices of Ronald A. Marron served as class counsel.

In his Preliminary Approval Order, Judge Scola stated that the Marron Firm is “experienced and

competent in the prosecution of complex class action litigation.” (Dkt. No. 120).

Mason v. M3 Financial Services, Inc., No. 15-cv-4194 (N.D. Ill.)

On June 29, 2018, the Honorable Andrea R. Wood granted final approval of a nationwide TCPA

class action settlement in the amount of $600,000 in which the Law Offices of Ronald A. Marron

served as co-lead class counsel.

Lucero v. Tommie Copper, Inc., No. 15 Civ. 3183 (AT) (S.D. N.Y.)

On May 4, 2018, the Honorable Analisa Torres granted final approval of a false advertising class

settlement in the amount $700,000. This case involves allegations of false and deceptive advertising

and endorser liability for copper fabric compression clothing. On January 4, 2016, the Honorable

Analisa Torres appointed the Marron firm as Interim Lead Class Counsel over the opposition and

challenge of other plaintiffs’ counsel, noting that the Marron firm’s “detailed” complaint was “more

specifically pleaded, . . . assert[ing] a more comprehensive set of theories . . . [and was] more

factually developed.” Potzner v. Tommie Copper Inc., No. 15 CIV. 3183 (AT), 2016 WL 304746,


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at *1 (S.D.N.Y. Jan. 4, 2016). Judge Torres also noted that Mr. Marron and his firm’s attorneys had

“substantial experience litigating complex consumer class actions, are familiar with the applicable

law, and have the resources necessary to represent the class.” Id.

Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-cv-00182-H-BLM (S.D. Cal.)

On March 26, 2018, the Honorable Marilyn Huff granted final approval of a nationwide TCPA class

action settlement which provided monetary relief in the amount of $1,500,000, in addition to

significant injunctive relief. (Dkt. 67.) The Law Offices of Ronald A. Marron were appointed class

counsel. Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-CV-00182-H-BLM, 2018 WL 1470198,

at *2 (S.D. Cal. Mar. 26, 2018).

Thornton v. NCO Financial Systems, No. 16-CH-5780 (Cook County, Ill)

On October 31, 2017, the Honorable Tomas R. Allen of the Circuit Court of Cook County, Illinois,

granted final approval to a nationwide TCPA class which created a common fund in the amount of

$8,000,000 and also provided for injunctive relief. The Law Offices of Ronald A. Marron served as

co-lead class counsel.

Elkind v. Revlon Consumer Products Corporation, No. 14-cv-2484(JS)(AKT) (E.D.N.Y.)

On September 5, 2017, the Honorable A. Kathleen Tomlinson granted final approval of a nationwide

false advertising class action settlement which challenged Revlon’s advertising of its “Age Defying

with DNA Advantage” line of cosmetics in the amount of $900,000, and significant injunctive relief.

The Law Offices of Ronald A. Marron served as co-lead class counsel.

Sanders v. R.B.S. Citizen, N.A., No. 13-CV-03136-BAS (RBB) (S.D. Cal.)

On January 27, 2017 the Honorable Cynthia A. Bashant granted final approval of a nationwide

TCPA class action settlement in the amount of $4,551,267.50. Sanders v. R.B.S. Citizen, N.A., No.

13-CV-03136-BAS (RBB), 2017 WL 363536 (S.D. Cal. Jan. 25, 2017). On July 1, 2016, the

Honorable Cynthia A. Bashant certified a nationwide class, for settlement purposes, of over one

million persons receiving cell phone calls from Citizens made with an alleged automatic telephone

dialing system. Dkt. 107. The Court appointed the Law Offices of Ronald A. Marron as class

counsel, noting they have “significant experience in handling class actions.” Id.

In re Leaf123 (Augustine v. Natrol), No. 14-114466 (U.S. Bankruptcy Court for the District of

Delaware)

This action involved allegations of false and deceptive advertising of Senna Leaf tea products as

dietary aids. Plaintiff alleged Senna Leaf is nothing more than a stimulant laxative which does not

aid diets but hinders them. After a strong showing in the district court, and pursuant to other actions

against the defendant manufacturer, the defendant filed for bankruptcy. The Marron Firm followed

defendant to the federal bankruptcy court and retained bankruptcy counsel to assist. After a full day

mediation before a retired federal jurist, and months of follow up negotiations, a settlement was

reached. On August 7, 2015, in In re Leaf123 (adversary proceeding of Augustine v. Natrol), the

Honorable Brendan L. Shannon approved an injunctive relief-only settlement, finding it “fair,

reasonable and adequate.”

Johnson v. Triple Leaf Tea, Inc., No. 3:14-cv-01570-MMC (N.D. Cal.)

An injunctive relief class action settlement, requiring manufacturer of senna leaf diet teas to re-label

their products and remove ingredients based on alleged consumer confusion and harm, was filed in


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April 2014. The Marron firmed served as class counsel and the Honorable Maxine M. Chesney,

Senior U.S. District Court Judge granted final approval to a classwide settlement on November 16,

2015. Johnson v. Triple Leaf Tea Inc., No. 3:14-CV-01570-MMC, 2015 WL 8943150, at *3, *5

(N.D. Cal. Nov. 16, 2015) (“Class Counsel has fully and competently prosecuted all causes of action,

claims, theories of liability, and remedies reasonably available to the Class Members. The Court

hereby affirms its appointment of the Law Offices of Ronald A. Marron, APLC as Class Counsel . .

. . Class Counsel and Defendant's counsel are highly experienced civil litigation attorneys with

specialized knowledge in food and drug labeling issues, and complex class action litigation

generally.”).

Perry v. Truong Giang Corp., Case No. BC58568 (L.A. Supr. Ct.)

Plaintiff alleged defendant’s Senna Leaf teas, advertised as diet aids, were falsely or misleadingly

advertised to consumers. After an all-day mediation, a class wide settlement was reached. In

granting final approval to the settlement on August 5, 2015, the Honorable Kenneth Freeman noted

that class counsel’s hourly rates were “reasonable” and stated the Marron Firm’s lawyers used skill

in securing the positive results achieved on behalf of the class. The court also noted “this case

involved difficult legal issues because federal and state laws governing dietary supplements are a

gray area, . . . the attorneys displayed skill in researching and settling this case, which provides a

benefit not only to Class Members but to the public at large . . . .”

Carr v. Tadin, Inc., No. 3:12-cv-03040-JLS-JMA (S.D. Cal.)

An injunctive relief class action settlement, requiring manufacturer of diet teas and other health

supplements to re-label their products to avoid alleged consumer confusion, was filed in January 2014

before the Honorable Janis L. Sammartino. The Marron Firm was appointed as class counsel and the

classwide settlement was granted final approval on December 5, 2014.

Gallucci v. Boiron, Inc., No. 3:11-cv-2039-JAH (S.D. Cal.)

The firm was class counsel for consumers of homeopathic drug products in an action against

Boiron, Inc., the largest foreign manufacturer of homeopathic products in the United States,

involving allegations that Boiron’s labeling and advertising were false and misleading. We obtained

a nationwide settlement for the class which provided injunctive relief and restitution from a common

fund of $5 million. The settlement was upheld by the Ninth Circuit on February 21, 2015. The case

also set an industry standard for homeopathic drug labeling. See

www.homeopathicpharmacy.org/pdf/press/AAHP_Advertising_ Guidelines.pdf.

Red v. Kraft Foods Global, Inc., No. 2:10-1028-GW (C.D. Cal)

The firm represented consumers in a class action against one of the world’s largest food

companies and was appointed lead counsel in a consolidated putative class action. The action has

resulted in a permanent injunction barring the use of deceptive health claims on Nabisco packaged

foods containing artificial trans fat. The Court has also granted an interim award of attorneys’ fees.

Mason v. Heel, Inc., No. 3:12-cv-3056-GPC-KSC (S.D. Cal.)

Plaintiff alleged false and deceptive advertising of over-the-counter homeopathic drugs. On October

31, 2013, the Honorable Gonzalo P. Curiel granted preliminary approval to a nationwide class

settlement of $1 million in monetary relief for the class plus four significant forms of injunctive

relief. Final approval was granted on March 13, 2014. See Mason v. Heel, Inc., 3:12-CV-03056-

GPC, 2014 WL 1664271 (S.D. Cal. Mar. 13, 2014).


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Clark v. National Western Life Insurance Co., No. BC321681 (L.A. Co. Super. Ct.)

Class action involving allegations of elder financial abuse and fraud. After litigating the case for

well over six years, including Mr. Marron being appointed co-lead class counsel, the case resulted

in a settlement of approximately $25 million for consumers.

In re Quaker Oats Labeling Litig., No. 5:10-cv-00502-RS (N.D. Cal.)

False and deceptive advertising case concerning Instant Oats, Chewy Granola Bars and Oatmeal To

Go products, including use of partially hydrogenated vegetable oil while also representing the

products as healthy snacks. An injunctive relief class action settlement was granted preliminary

approval on February 2, 2014, with my firm being appointed Class Counsel. On July 29, 2014, the

court granted the final approval of the settlement.

Nigh v. Humphreys Pharmacal, Inc., No. 3:12-cv-02714-MMA-DHB (S.D. Cal.)

Case involving allegations of false and deceptive advertising of homeopathic over-the-counter drugs

as effective when they allegedly were not. On October 23, 2013, a global settlement was granted

final approved by the Honorable Michael M. Anello, involving a common fund of $1.4 million plus

five significant forms of injunctive relief for consumers.

Burton v. Ganeden Biotech, Inc., No. 3:11-cv-01471-W-NLS (S.D. Cal.)

Action alleging false and deceptive advertising of a dietary probiotic supplement. On March 13,

2012, the Marron Firm settled the case for $900,000 in a common fund plus injunctive relief in the

form of labeling changes. Final approval was granted on October 5, 2012.

Hohenberg v. Ferrero U.S.A., Inc., No. 3:11-CV-00205-H-CAB (S.D. Cal.)

This case involved false and deceptive advertising of sugary food product as a healthy breakfast food

for children. After successfully defeating a motion to dismiss, Hohenberg, 2011 U.S. Dist. LEXIS

38471, at *6 (S.D. Cal. Mar. 22, 2011), the Honorable Marilyn Huff certified a class on November

15, 2011, resulting in a published decision, In re Ferrero Litig., 278 F.R.D. 552 (S.D. Cal. 2011). A

final settlement consisting of injunctive relief labeling and marketing changes, plus a $550,000

common fund for monetary relief to the class was finally approved on July 9, 2012.

In re Qunol CoQ10 Liquid Labeling Litigation, No. 8:11-cv-173-DOC (C.D. Cal.)

This case involved false and deceptive consumer advertising of a dietary supplement. The Marron

Firm was appointed class counsel and successfully defeated defendants’ motion to decertify the class

following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir.

2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012); see

also Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal. Nov. 14, 2011).

The case settled on the eve of trial (originally scheduled for October 2, 2012) for cash payments to

the class and injunctive relief.

Iorio v. Asset Marketing Systems, Inc., No. 05cv00633-IEG-CAB (S.D. Cal.)

This action involved allegations of elder financial abuse and fraud. Mr. Marron was appointed class

counsel on August 24, 2006 and the Court certified a class on July 25, 2006. After nearly six years

of intensive litigation, including “challenges to the pleadings, class certification, class

decertification, summary judgment,…motion to modify the class definition, motion to strike various

remedies in the prayer for relief, and motion to decertify the Class’ punitive damages claim,” plus


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three petitions to the Ninth Circuit, attempting to challenge the Rule 23(f) class certification, a

settlement valued at $110 million was reached and approved on March 3, 2011. Iorio, Dkt. No. 480.

In granting final approval to the settlement, the Court noted that class counsel were “highly

experienced trial lawyers with specialized knowledge in insurance and annuity litigation, and

complex class action litigation generally” and “capable of properly assessing the risks, expenses,

and duration of continued litigation, including at trial and on appeal.” Id. at 7:18-22.

Martinez v. Toll Brothers, No. 09-cv-00937-CDJ (E.D. Penn.)

Shareholder derivative case alleging breach of fiduciary duty, corporate waste, unjust enrichment

and insider trading, filed derivatively on behalf of Toll Brothers and against individual corporate

officers. Under a joint prosecution agreement, this action was litigated along with other consolidated

and related actions against Toll Brothers in a case styled Pfeiffer v. Toll Brothers, No. 4140-VCL

in the Delaware Chancery Court. After extensive litigation, the case settled in September 2012 for

$16.25 million in reimbursement to the corporation.

Peterman v. North American Co. for Life & Health Insurance, No. BC357194, (L.A. Co. Super.

Ct.), involved allegations of elder financial abuse. This case was litigated for over four years and

achieved a settlement of approximately $60 million for consumers.

Vaccarino v. Midland Nat’l Life Ins. Co., No. 2:11-cv-05858-CAS (MANx) (C.D. Cal.)

This action involved allegations of elder financial abuse and fraud. On June 17, 2013, the Honorable

Christina A. Snyder appointed the Marron Firm as Class Counsel, and on February 3, 2014, the

Court certified a class of annuities purchasers under various theories of relief, including breach of

contract and the UCL. On September 22, 2014, the court granted final approval to a class action

settlement that achieved a settlement of approximately $5.55 million for consumers, including cy

pres relief to the Congress of California Seniors.

CURRENT AND NOTABLE APPOINTMENTS AS CLASS COUNSEL

Hilsley v. Ocean Spray Cranberries, Inc., No. 3:17-cv-02335(GPC) (S.D. Cal.)

A nationwide class of consumers brought this suit against Ocean Spray Cranberries, Inc. and Arnold

Worldwide LLC for violations of California’s Consumer Legal Remedies Act. Plaintiff alleges that

certain Ocean Spray products falsely state “no artificial flavors” when they in fact contain the

artificial flavoring agent, malic acid. On November 29, 2018, the Honorable Gonzalo P. Curiel

granted class certification, appointing Ronald A. Marron and Michael Houchin of the Marron Firm

as class counsel. On July 3, 2019, Judge Curiel denied Defendant’s Motion for Summary Judgment

and on July10, 2019 denied Defendant’s Motion to Decertify the Class.

Romero v. Securus Technologies, Inc. No. 3:16-cv-01283 (JM) (S.D. Cal.)

Plaintiffs Juan Romero, Kenneth Elliot, and Frank Tiscareno allege that Securus Technologies

illegally recorded telephone conversations between inmates and their counsel. On November 21,

2018, the Honorable Jeffrey Miller granted class certification in part, appointing the Law Offices of

Ronald A. Marron as co-lead class counsel.

O’Shea v. American Solar Solutions, Inc., No. 3:14-cv-00894-L-RBB (S.D. Cal.)

On March 3, 2017, the Honorable M. James Lorenz certified a TCPA class of all individuals in the

United States who were called on behalf of the defendant, using the ViciDial predictive dialers, on


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a cellular telephone number, between November 22, 2012 and August 22, 2015, and appointed

Ronald A. Marron, Alexis Wood and Kas Gallucci as class counsel.

Reyes v. Education Credit Management Corporation, No. 3:15-cv-00628-BAS-AGS (S.D. Cal.)

Plaintiff A.J. Reyes brought suit against Education Credit Management Corporation under

California’s Invasion of Privacy Act. Plaintiff alleges due to an error in the Defendant’s phone

system, inbound calls to ECMC were being recorded without their consent. On September 20, 2017,

the Honorable Cynthia Bashant certified a class of individuals who made inbound calls to lines with

the faulty setting, as well as granted certification of plaintiff’s demand for injunctive relief and

monetary damages. The Law Offices of Ronald A. Marron was appointed as class counsel. Currently

remanded back from 9th Circuit after vacating Class Certification, this case is back at the District

Court for further proceedings.

Robbins v. Gencor Nutrients, Inc., No. 16AC-CC00366 (Circuit Court, Cole Cty. Mo.).

On May 14, 2018, the Honorable Jon E. Beetem granted preliminary approval of a nationwide false

advertising class action settlement concerning testosterone boosting supplements and appointed the

Law Offices of Ronald A. Marron as co-lead class counsel.

Allen v. Hyland’s, Inc., No. 12-CV-1150 DMG (MANx) (C.D. Cal.)

Nationwide class of consumers certified for false and deceptive advertising against largest U.S.-

based manufacturer of homeopathic drugs, involving ten over-the-counter homeopathic drug

products. A nationwide class was certified after two years of vigorous litigation, including Marron

firm counsel surviving against two motions to dismiss, a motion for judgment on the pleadings, and

a motion to strike punitive damages. See 300 F.R.D. 643 (C.D. Cal. 2014). Following a thirteen-day

jury trial before the Honorable Judge Dolly M. Gee, a verdict was returned in favor of Hyland’s. The

Marron Firm timely appealed. On May 15, 2019, the Ninth Circuit reversed the judgment in part

holding that “the jury’s narrow findings as to deceptive advertising do not resolve [Plaintiffs’]

broader unfair practices theory” and that “the district court must engage in fact-finding to resolve

[the UCL claim], and erred in granting judgment to Hyland’s without doing so.” Allen v. Hylands,

Inc., No. 17-56184, 2018 WL 2142843, at *3 (9th Cir. May 15, 2019).

Allen v. Similasan Corp., No. 12-cv-376 BAS (JLB) (S.D. Cal.)

A California class of consumers alleging false and deceptive advertising of six homeopathic drugs

was certified by the Honorable Cynthia A. Bashant on March 30, 2015, with the Court noting that

the firm was experienced and competent to prosecute the matter on behalf of the Class. Judge

Bashant denied summary judgment on the class’ claims that the drug products were not effective, as

advertised, and certified claims under California’s Consumers Legal Remedies Act, Unfair

Competition Law, False Advertising Law, breach of express and implied warranty, and violation of

the federal Magnuson-Moss Warranty Act.

OTHER NOTABLE CASES

In re Santa Fe Natural Tobacco Company Marketing & Sales Practices Litig., No. 1:16-md-

02695-JB-LF (D.N.M.)

On May 24, 2016, Ronald A. Marron was appointed to the Executive Committee in a multidistrict

litigation labeling case. (Dkt. 24.)


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Henderson v. The J.M. Smucker Company, No. 2:10-cv-4524-GHK (C.D. Cal.)

This action was the catalyst forcing the defendant to reformulate a children’s frozen food production

to remove trans-fat. On June 19, 2013, the Honorable George H. King held the firm’s client was a

prevailing Private Attorney General and entitled to her costs and attorneys’ fees.

NINTH CIRCUIT CASES

Shyriaa Henderson v. United States Aid Funds, Inc., Case No. 17-55373 (9th Cir.)

On March 22, 2019, the Ninth Circuit reversed the District Court’s order granting summary

judgment in favor of Defendant, and remanded for further proceedings in a class action where debt

collectors acting on behalf of defendant were in violation of the Telephone Consumer Protection Act

(TCPA). The Ninth Circuit found that a reasonable jury could hold Defendant vicariously liable for

the alleged TCPA violations by debt collectors.

John Sandoval v. Pharmacare US, Inc., Case No. 16-56301 (9th Cir.)

On April 5, 2016, the Ninth Circuit reversed, in part, the District Court’s order granting summary

judgment in a false advertising class action concerning an aphrodisiac dietary supplement called

“IntenseX” The Marron Firm successfully argued that statements on the intensex.com website

showed that the defendant failed to obtain approval of IntenseX as an OTC aphrodisiac drug, thus

creating a basis for liability under California’s Unfair Competition Law.

Reid v. Johnson & Johnson, Case No. 12-56726 (9th Cir.)

On March 13, 2015, the Ninth Circuit reversed, in part, the District Court’s order granting the

defendant’s motion to dismiss in a false advertising class action concerning Benecol spread that was

allegedly falsely advertised as containing “No Trans Fat.” The Marron Firm successfully argued

that the plaintiff’s claims are not preempted by the Federal Food, Drug, and Cosmetics Act. Reid v.

Johnson & Johnson, 780 F.3d 952, 964 (9th Cir. 2015).


Graves, et al. v. United Industries Co., No. 2:17-cv-06983-CAS-SK

DECLARATION OF COMPLIANCE BY NOTICE ADMINISTRATOR GAJAN RETNASABA

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LAW OFFICES OF RONALD A.

MARRON, APLC

RONALD A. MARRON (SBN 175650)

[email protected]

MICHAEL T. HOUCHIN (SBN 305541)

[email protected]

LILACH HALPERIN (SBN 323202)

[email protected]

651 Arroyo Drive

San Diego, CA 92103

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

Attorneys for Plaintiffs and the Class


FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL GRAVES, KEITH GREN, and MICHAEL WHEALEN, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. UNITED INDUSTRIES CORPORATION, a Delaware Corporation,

Defendant.

Case No.: 2:17-cv-06983-CAS-SK

CLASS ACTION

DECLARATION OF COMPLIANCE BY

NOTICE ADMINISTRATOR GAJAN

RETNASABA

Date: February 24, 2020 Time: 10:00 AM Ctrm: 8D Judge: Hon. Christina A. Snyder


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I, Gajan Retnasaba, declare:

1. I am a Partner at Classaura LLC (“Classaura”), a class action

administration firm, located at 1718 Peachtree St #1080, Atlanta, Georgia. I am over

21 years of age and am not a party to this action. I have personal knowledge of the

facts set forth herein and, if called as a witness, could and would testify competently

thereto.

2. Classaura was retained by the parties, and appointed by this Court, to

serve as the Claims Administrator to, among other tasks, publish notice of the

proposed class action settlement; receive and process Claim Forms; respond to Class

Member inquiries; establish and maintain the settlement website

(makesuptosettlement.com) (hereinafter, “the Settlement Website”) and perform

other duties as specified in the Settlement Agreement preliminarily approved by this

Court on September 18, 2019.

PUBLICATION NOTICE

3. A notice was published in USA Today, a national magazine with a

circulation of approximately 600,000 and a reach of approximately 1,600,000

readers. The notice was published on Friday, November 1, 2019. A true and correct

copy of the notice and an affidavit of publication from the publisher is attached hereto

as Exhibit A.

ONLINE NOTICE PUBLICATION

4. On November 1, 2019, Classaura began an online advertising campaign

on the social media website Facebook.com. The advertising targeted adults residing

in the United States who were identified as having an interest in gardening,

landscaping, or lawn care. A true and correct copy of the advertisement is attached

hereto as Exhibit B.


http://www.q10settlement.com/

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5. The Facebook advertising campaign generated 13,069,323 impressions.

An “impression” (in the context of online advertising) is the number of times an

advertisement was displayed to an individual. The impression is displayed and gives

an individual the opportunity to click on the advertisement and be directed to the

Settlement Website for more information. Each time an ad is displayed to a visitor, it

is counted as one impression.

6. The Facebook advertising campaign had a reach of 11,360,237 unique

users. “Reach” is defined as the number of different people that the advertisement

was exposed to. Each time an ad is displayed to a user that has not previously been

exposed to the advertisement through that medium, it is counted as adding one to the

reach.

7. The online advertising campaign also made submissions to Consumer

Class Action Websites, which are websites used by consumers to stay informed of

class action settlements that may apply to them. Consumer class action websites that

displayed a summary of the settlement included ClassActionRebates.com and

TopClassActions.com.

PRESS RELEASE

8. Classaura crafted a neutral informational press release, providing a

summary of the settlement. On November 1, 2019, the press release was released

using the PR Newswire’s US1 National Newsline. US1 National Newsline provides

the press release to thousands of media outlets across the country, including national

and local newspapers, websites, and television and radio stations. The press release

was picked up and republished by 121 media outlets. A true and correct copy of the

press release along with a summary report of outlets that picked up the release is

attached hereto as Exhibit C.


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CLRA NOTICE

9. California’s Consumers Legal Remedies Act (Cal. Civ. Code §1781)

requires published notice in a newspaper of general circulation in the county of the

transaction, once a week for four consecutive weeks. Accordingly, we published

notice in the Daily Commerce on November 8, 2019, November 15, 2019, November

22, 2019, and November 29, 2019. A true and correct copy of the advertisements

and an affidavit of publication from the publisher are attached hereto as Exhibit D.

PHONE LINE

10. A dedicated toll-free number (888-978-8269) was set up on October 20,

2019, providing pre-recorded information and allowing class members to leave a

voicemail requesting further information. To date we have received 85 calls and

answered 14 voicemails calls.

WEBSITE & EMAIL

11. The Settlement Website (www.makesuptosettlement.com) was set up on

November 1, 2019, providing information on the lawsuit and access to case

documents. The website includes a summary of the case, a list of important dates,

answers to frequently asked questions, key case filings (complaint, amended

complaints, motion for preliminary approval, order denying in part motion for

preliminary approval, renewed motion for preliminary approval, preliminary

approval order, long and short form notice of class action settlement, Plaintiffs’ Fee

Motion as well as the settlement agreement), and contact information. Plaintiffs’ Fee

Motion was uploaded to the settlement website on January 7, 2020. The Settlement

Website also displayed the claim filing deadline; the deadline to opt-out of the class

settlement; the deadline to submit an objection; and the date of the Fairness Hearing.

The website address was set forth in all of the public notices described above, as well

as on the Claim Form. To date the website has been visited 117,852 times.


http://the/

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12. A dedicated email address ([email protected]) was set

up on October 10, 2019 to answer questions from potential class members. To date

we have received and answered 173 emails.

CAFA NOTICE

13. In compliance with the Class Action Fairness Act (“CAFA”), 28 U.S.C.

§ 1715, Classaura compiled a CD-ROM containing the following documents:

a. The complaint, amended complaints, and associated exhibits;

b. The Court's Order Granting in Part and Denying in Part Defendant's

Motion to Dismiss First Amended Complaint. The Court's Order

Denying Plaintiff Gregory Arthur's Motion for Class Certification. And

the Court's Order denying, without prejudice, Plaintiff's Motion for

Preliminary Approval of Class Action Settlement.

c. The Motion for Preliminary Approval of Settlement and the Renewed

Motion for Preliminary Approval of Settlement;

d. The Longform and Shortform notifications that are being provided to

class members to inform them of the proposed settlement and their right

to be excluded from the class;

e. The parties’ proposed class action Settlement Agreement and exhibits.

14. The CD-ROM was accompanied by a cover letter (collectively, the

“CAFA Notice Packet”). A true and correct copy of the cover letter is attached hereto

as Exhibit E.

15. On August 29, 2019, CAFA Notice was mailed via United States Postal

Service (USPS), Priority Mail Service, to the U.S. Attorney General, the Attorneys

General of each of the 50 States and the District of Columbia, and the Attorneys

General of the 5 recognized U.S. Territories.

16. We have retained copies of the CD. Copies of the CD will be made

available to the court on request.


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CLAIMS

17. To date we have received 84,572 claim forms from prospective class

members. Of these claims, 83,831 forms were submitted electronically, and 741

claim forms were submitted via mail.

18. Based on an initial review of claims submitted, we found 16,605 claim

forms to be invalid due to being duplicative or not meeting the settlement criteria. A

claim was judged duplicative if multiple identical or near identical claims were filed.

A claim was judged as not meeting the settlement criteria if the place of purchase or

product purchased stated on the claim form was not a place related to defendants or

where the defendants sold products. Thus, we estimate that there will be there

approximately 67,967 valid claim forms.

19. Claimants were eligible to request payment for up to 4 purchases per

household on their claim forms. The average valid claim form reported 3.6

purchases. Thus, the total number of valid claims that will be paid is approximately

248,042.

REQUESTS FOR EXCLUSION

20. The deadline for Class Members to request to be excluded from the class

was a postmarked deadline of January 20, 2020. We have received no requests to

opt-out of the settlement to date.

COSTS

21. The costs incurred to provide notice of the settlement via publication,

Settlement Website, Press Release, Online Notice, and CAFA is $70,000. The costs

to administer the settlement, and process claims is $8,457 (given 84,572 claims). The

cost to distribute payment to class members is $50,975 (assuming 67,967 approved

claims). This brings the total cost to $129,432.


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I declare under penalty of perjury of the laws of the United States that the

foregoing is true and correct. Executed on the 27th day of January, 2020 in Atlanta,

Georgia.

__________________

Gajan Retnasaba


Exhibit A




Exhibit B



Exhibit C


Classaura Announces Spectracide®Concentrate Class Action Settlement

NEWS PROVIDED BYClassaura

Nov 01, 2019, 09:00 ET

LOS ANGELES, Nov. 1, 2019 /PRNewswire/ -- A proposed settlement has been reached in a

class action lawsuit involving United Industries Corporation ("UIC"), manufacturer of

Spectracide® Concentrate herbicide products. The proposed class action settlement

establishes a $2,500,000 settlement fund. Class members may be eligible for cash payments

of up to $25 per household.

On September 18 , 2019, United States District Court for the Central District of California,

Judge Christina A. Snyder, preliminarily approved a settlement of a lawsuit between UIC and

purchasers of Spectracide Concentrate products.

The lawsuit alleges that UIC labeled its Spectracide® Concentrate herbicide products in a

manner that was misleading regarding the application rates of the products. UIC denies the

allegations and any wrongdoing. To avoid the expense and distraction of litigation, the

parties have reached a settlement that will provide monetary recovery as detailed below.

Class members who purchased any herbicide product sold under the "Spectracide®"

tradename in a "concentrate" product form (in other words, designed to be manually mixed

by consumers with water prior to use on targeted vegetation) on or after September 21, 2013

until November 1, 2019, purchased in any state, for personal or household use and not for

resale or distribution, may be eligible for a cash payment of up to $6.25 in cash from the

settlement fund for each valid claim submitted by a household, with a limit of four (4) claims

per household.

th


https://www.prnewswire.com/news/classaura

Claims can be submitted online at the class website

www.MakesUpToSettlement.com. Claims must be submitted by January 20, 2020. Class

members may request to be excluded from the class ("opt out" of the settlement),

comment on the settlement, or object to the settlement, but also must do so by January 20,

2020. Class members who do nothing will not receive any payment and will bound by the

Court's decision.

Your rights and options – and the deadlines to exercise them – are only summarized in this

press release. A Long Form Notice describes, in full, how to file a claim, object, or exclude

yourself, and provides other important information. For more information and to obtain a

Long Form Notice, claim form or other documents, visit www.MakesUpToSettlement.com.

You may also contact the Settlement Administrator by emailing

[email protected], or by writing to: Spectracide® Class Action

Settlement, 1718 Peachtree St NW #1080, Atlanta, GA 30309, or by calling 1-888-978-8269.

SOURCE Classaura

Related Links

http://www.MakesUpToSettlement.com


https://c212.net/c/link/?t=0&l=en&o=2616209-1&h=2114955130&u=http%3A%2F%2Fwww.makesuptosettlement.com%2F&a=www.MakesUpToSettlement.com

https://c212.net/c/link/?t=0&l=en&o=2616209-1&h=2114955130&u=http%3A%2F%2Fwww.makesuptosettlement.com%2F&a=www.MakesUpToSettlement.com


http://www.makesuptosettlement.com/

Classaura Announces Spectracide® Concentrate Class ActionSettlement

English PR Newswire ID: 2616209-1 Clear Time Nov 01, 2019 9:00 AM ET

Overview

Total Pickup Over TimeTotal pickup since your content was distributed

TOTAL PICKUP 121

Exact Match 121 postings

TOTAL POTENTIAL AUDIENCE 67M

Exact Match 67M visitors

Tota

l Pic

kup

Coun

t

121.0

2019-11-010

25

50

75

100

125

150


Total Pickup by Source Type

Broadcast Media (41/33.9%)Newspaper (38/31.4%)Online News Sites & Other Influencers (28/23.1%)Financial News Service (7/5.8%)News & Information Service (3/2.5%)Other (4/3.3%)

Total Pickup by Industry

Media & Information (96/79.3%)Financial (17/14.0%)Business Services (2/1.7%)Multicultural & Demographic (2/1.7%)Environment (1/0.8%)Other (3/2.5%)


http://www.marketwatch.com/press-release/classaura-announces-spectracide-concentrate-class-action-settlement-2019-11-01

https://www.morningstar.com/news/pr-newswire/20191101cl09389/classaura-announces-spectracide-concentrate-class-action-settlement

Classaura Announces Spectracide® Concentrate Class ActionSettlement

Exact Match PickupExact matches are full text postings of your content which we have found in the online andsocial media that we monitor. Understand how it is calculated. Your release has generated121 exact matches with a total potential audience of 67,075,556.

English PR Newswire ID: 2616209-1 Clear Time Nov 01, 2019 9:00 AM ET

Search:

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MarketWatch View Release

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PR Newswire View Release

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English Newspaper Media & Information 3,846,247visitors/month

KOTV-TV CBS-6 [Tulsa, OK] View Release

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English Broadcast Media Media & Information 2,056,942visitors/month

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The Roanoke Times [Roanoke, VA] View Release

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One News Page Global Edition View Release

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Canada English Newspaper Media & Information 132,751visitors/month

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Exhibit D


This space for filing stamp only

DC#:

(When required) RECORDING REQUESTED BY AND MAIL TO:

D A I L Y C O M M E R C E ~ SINCE 1917 ~

915 E. First Street, Los Angeles, California 90012

Mailing Address: P.O. Box 54026, Los Angeles, California 90054-0026 Telephone (213) 229-5300 / Fax (213) 680-3682

PROOF OF PUBLICATIONPROOF OF PUBLICATIONPROOF OF PUBLICATIONPROOF OF PUBLICATION

(2015.5 C.C.P.)

State of California ) County of Los Angeles ) ss

Notice Type:

Ad Description:

I am a citizen of the United States and a resident of the County of Los Angeles; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the printer and publisher of the DAILY COMMERCE, a daily newspaper published in the English language in the City of Los Angeles, and adjudged a newspaper of general circulation as defined by the laws of the State of California by the Superior Court of the County of Los Angeles, State of California, under date of June 17, 1952, Case No. 599,760. That the notice, of which the annexed is a printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit:

Executed on: 10/15/2004 At Los Angeles, California

I certify (or declare) under penalty of perjury that the foregoing is true and correct.

Signature

D A I L Y C O M M E R C E~ SINCE 1917 ~

915 E FIRST ST, LOS ANGELES, CA 90012

(213) 229-5300 (213) 229-5481

DC 3312624

CLASSURA LLC1718 PEACHTREE ST #1080ATLANTA, GA - 30309

CIV4 - CIVIL PUBLICATION

2:17-cv-06983-CAS-SK GRAVES, ET AL. V. UNITED INDUSTRIESCORPORATION

I am a citizen of the United States and a resident of the State of California; I amover the age of eighteen years, and not a party to or interested in the aboveentitled matter. I am the principal clerk of the printer and publisher of the DAILYCOMMERCE, a newspaper published in the English language in the city ofLOS ANGELES, county of LOS ANGELES, and adjudged a newspaper ofgeneral circulation as defined by the laws of the State of California by theSuperior Court of the County of LOS ANGELES, State of California, under date10/30/1981, Case No. 599760. That the notice, of which the annexed is aprinted copy, has been published in each regular and entire issue of saidnewspaper and not in any supplement thereof on the following dates, to-wit:

11/08/2019, 11/15/2019, 11/22/2019, 11/29/2019

12/02/2019

!A000005295511!Email

LEGAL NOTICE

If You Purchased Certain Spectracide®Concentrate Products, You May

Benefit From a Proposed Class ActionSettlement

GRAVES, ET AL. V. UNITEDINDUSTRIES CORPORATION

U.S. District Court for the Central Districtof California

Case No. 2:17-cv-06983-CAS-SK

A proposed settlement has been reachedin the above-referenced class actionlawsuit. The lawsuit alleges that UnitedIndustries Corporation ("UIC") labeled itsSpectracide® Concentrate herbicideproducts in a manner that was misleadingregarding the application rates of theproducts. UIC denies the allegations andany wrongdoing. To avoid the expenseand distraction of litigation, the partieshave reached a settlement.

AM I A MEMBER OF THE CLASS?You may be a class member if you are aUnited States resident who on or afterSeptember 21, 2013 until November 1,2019, purchased in any state, for personalor household use and not for resale ordistribution, any herbicide product soldunder the "Spectracide®" tradename in a"concentrate" product form.

BENEFIT TO CLASS:Class Members who file a valid ClaimForm will receive up to $6.25 in cash fromthe Settlement Fund for each valid claimsubmitted by a household, with a limit offour (4) claims per household (up to $25).

YOUR OPTIONS:File a ClaimIf you wish to receive benefits under thesettlement, you MUST submit a ClaimForm by no later than January 20, 2020.You can obtain and/or submit a ClaimForm: (1) online atwww.MakesUpToSettlement.com; or (2)by calling the Claims Administrator at888-978-8269; or (3) by mailing a writtenrequest for a Claim Form to the addressbelow.

Object or CommentWrite to the Court about why you do or donot like the settlement. If you want toobject, you must file a written statementwith the Court by January 20, 2020.

Exclude YourselfIf you do not object to the settlement butsimply do not want to participate in it ("optout" of the settlement), you must submit awritten request to be excluded by January20, 2020. You will not receive anybenefits under the settlement, but you willpreserve your right to bring your ownlawsuit.

Do NothingIf you do nothing, you will receive noreimbursement. You also give up yourright to sue on your own regarding anyclaims that are part of the settlement.

Your rights and options are onlysummarized in this notice. For moreinformation seewww.MakesUpToSettlement.com, call toll-

free 888-978-8269, or write toSpectracide® Class Action Settlement,1718 Peachtree St NW #1080, Atlanta,GA 30309.

www.MakesUpToSettlement.com11/8, 11/15, 11/22, 11/29/19

DC-3312624#


Exhibit E


1718 Peachtree St #1080 214.502.9376 Atlanta, GA 30309 [email protected]

By Priority Mail

The United States Attorney General, State Attorneys General, and Territory Attorneys General

August 29, 2019

Re: CAFA Notice of Renewed Proposed Settlement: Graves vs. United Industries Corp., United States District Court for the Central District of California,


Dear Sir or Madam:

Pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1711 et seq. (“CAFA”), and on behalf of the Defendant in the above-referenced action, this letter provides notice of the proposed settlement of the above-captioned matter. Toward that end, and in accordance with CAFA, please find enclosed a CD containing the following documents:

1. The complaint, amended complaints, and associated exhibits in the litigation;

2. The Court’s Order Granting in Part and Denying in Part Defendant's Motion to Dismiss First Amended Complaint. The Court’s Order Denying Plaintiff Gregory Arthur's Motion for Class Certification. And the Court’s Order denying, without prejudice, Plaintiff’s Motion for Preliminary Approval of Class Action Settlement.

3. The Renewed Motion for Preliminary Approval of Settlement;

4. The long-form and short-form notifications that will be provided to class members informing them of the proposed settlement and their right to be excluded from the class;

5. The parties’ Proposed Settlement Agreement and exhibits;

The proposed definition for the Settlement Class extends to “[a]ll persons in the United States who during the Class Period purchased in any state, for personal or household use and not for resale or distribution, any of the Products,” which encompass United Industries Corporation’s herbicide products that are (a) sold under the “Spectracide®” tradename and (b) are sold in a “concentrate” product form (in other words, designed to be manually mixed by consumers with water prior to use on the targeted vegetation).

The vast majority of sales of the subject products were made through independently operated retail stores and, thus, are not in Defendants’ possession, custody, or control. Accordingly, there is no precise tally of


http://www.classaura.com/

the number of class members in each state, nor is there available a list of class members in each state, nor is it feasible to provide an estimate of the number of class members residing in each state.

We hereby advise you that no agreements of any kind were made contemporaneously between class counsel and counsel for defendants.

A fairness hearing for the case has been scheduled for September 16, 2019 at 10:00am, at the U.S. District Court for the Central District of California, Courtroom 8D, 350 W. First Street, Los Angeles, California, 90012.

If you have questions about this notice, the lawsuit, or the enclosed materials, please contact me at the address below.

Sincerely,

Gajan Retnasaba

Graves v. United Industries Settlement Class Action Administrator

Classaura LLC 1718 Peachtree St #1080 Atlanta, GA 30309

214.502.9376 [email protected]


-1- Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK

[PROPOSED] ORDER GRATING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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MICHAEL GRAVES, KEITH GREN, and MICHAEL WHEALEN, on behalf of themselves, all others similarly situated, and the general public,

Plaintiffs,

vs.

UNITED INDUSTRIES CORPORATION,

Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


CLASS ACTION

[PROPOSED] JUDGMENT AND

ORDER (1.) GRANTING FINAL


SETTLEMENT, (2.) AWARDING

CLASS COUNSEL FEES AND

EXPENSES, (3.) AWARDING

CLASS REPRESENTATIVES

INCENTIVE AWARDS, AND (4.)

DISMISSING ACTION WITH

PREJUDICE REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL




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Plaintiffs Michael Graves, Keith Gren, and Michael Whealen (“Plaintiffs”),

individually and on behalf of the Class defined below, move this Court for final

approval of the proposed settlement in the above-captioned action. This Court has

reviewed and considered Plaintiffs’ Unopposed Motion for Final Approval of Class

Action Settlement and supporting materials along with Plaintiffs’ Motion for

Attorneys’ Fees, Costs, and Incentive Awards (“Fee Motion”) and supporting

materials. Now, having fully considered the record and the requirements of law, this

Court orders that the Motion for Final Approval and Fee Motion is GRANTED as

set forth below.

IT IS THIS ____ DAY OF ____________, 2020 ORDERED that the

settlement (including all terms of the Settlement Agreement and exhibits thereto) is

hereby GRANTED FINAL APPROVAL. The Court further finds and orders as

follows:

I. BACKGROUND

On September 21, 2017, original plaintiff Gregory Arthur (“Arthur”) filed this

putative class action alleging violations of consumer protection laws against

Defendant and on November 27, 2017, Arthur filed a First Amended Class Action

Complaint. (ECF Nos. 1, 16). The First Amended Complaint alleged that the “Makes

Up To __ Gallons” representation on the Spectracide® Concentrate Products is

deceptive because UIC fails to disclose that “the Spectracide Concentrates were in

fact only capable of making a fraction of the number of gallons represented when

diluted to the same strength as ‘Ready-to-use’ Spectracide according to UIC’s own

instructions.” (Id. at ¶ 16).

On January 12, 2018, UIC moved to dismiss Arthur’s First Amended

Complaint (ECF No. 22). Then, on January 15, 2018, Arthur filed a Motion for Class

Certification and to appoint class counsel. (ECF No. 23). On March 23, 2018, the

Court entered an Order granting in part and denying in part UIC’s Motion to Dismiss

Arthur’s First Amended Complaint. (ECF No. 34). The Court dismissed Arthur’s




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request for injunctive relief, but granted him leave to amend to file a Second

Amended Complaint. (ECF No. 34). On April 16, 2018, Arthur filed his Second

Amended Complaint (ECF No. 39), which UIC answered on April 30, 2018 (ECF

No. 40). On May 17, 2018, the Court entered an Order denying Arthur’s Motion for

Class Certification without prejudice, holding that Arthur could not adequately

represent the putative class. (ECF No. 47).

On June 25, 2018, Arthur and UIC filed a Joint Stipulation to dismiss Arthur

from the Litigation, for leave to substitute Michael Graves and Keith Gren as

plaintiffs and putative class representatives, and for leave for Graves and Gren to

file a Third Amended Complaint. (ECF No. 53). On June 26, 2018, the Court entered

an Order substituting Graves and Gren as named plaintiffs and proposed class

representatives, dismissing Arthur from the Litigation, and granting Graves and

Gren leave to file a Third Amended Complaint. (ECF No. 54). On June 28, 2018,

Graves and Gren filed their Third Amended Class Action Complaint against UIC

(ECF No. 55), which UIC answered on July 19, 2018. (ECF No. 59).

On July 12, 2018, the Court entered an Order staying the Litigation pursuant

to a Joint Stipulation filed by Graves, Gren, and UIC seeking time to allow them to

engage in settlement discussions (ECF No. 58). On September 7, 2018, Michael

Whealen sent UIC a consumer notice and demand letter on behalf of himself and a

proposed nationwide class concerning the Products. On May 15, Class Counsel filed

a Fourth Amended Complaint adding Whealen as a named Plaintiff in addition to

Graves and Gren. (ECF No. 63). The Fourth Amended Complaint also adds a cause

of action under the Missouri Merchandising Practices Act, Mo. Rev. Stat.

§§ 407.010, et seq. in addition to causes of action under California’s consumer

protection laws. (ECF No. 63 at ¶¶ 52-58).

Plaintiffs and UIC have engaged in substantial discovery. On October 26,

2017, Arthur served a first set of Interrogatories and a first set of Request for

Production of Documents on UIC. In exchange for Arthur’s agreement to extend




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UIC’s time to serve written responses and objections, UIC produced several

documents that were crucial to Arthur’s claims in the litigation including the

suggested retail prices for the Products, annual sales of the Products, and Product

labels that were in use during the class period. On February 16, 2018, UIC served

objections and responses to Arthur’s discovery requests. UIC also produced a second

batch of documents relating to Plaintiffs’ claims, including communications with the

Environmental Protection Agency (“EPA”) relating to the labels of the Products.

Class Counsel sent a meet and confer letter to UIC on March 23, 2018 regarding

remaining deficiencies with its written discovery responses. Following extensive

meet and confer efforts, the Parties reached an agreement on the scope of Plaintiff’s

discovery requests.

On January 26, 2018, UIC served a deposition notice on Gregory Arthur that

included several document requests. On January 31, 2018, Arthur served objections

and responses to UIC’s document requests. On February 2, 2018, UIC then took the

deposition of Gregory Arthur. In support of Arthur’s Motion for Class Certification,

Class Counsel submitted an expert report from Charlene L. Podlipna, CPA detailing

a proposed class wide damages model. On January 26, 2018, UIC served a Notice

of Deposition Duces Tecum on Ms. Podlipna that contained several document

requests. On February 14, 2018, Class Counsel served objections and responses to

the document requests that were served on Ms. Podlipna. On February 16, 2018,

UIC took the deposition of Ms. Podlipna on topics relating to her expert opinion and

report. After Plaintiffs Graves and Gren filed their Third Amended Complaint, UIC

promptly began pursuing discovery from the new named Plaintiffs. Marron Decl., ¶

9. On June 29, 2018, UIC served a Notice of Deposition Duces Tecum on Plaintiff

Gren that contained several document requests. UIC then took the deposition of

Plaintiff Keith Gren on July 12, 2018. Plaintiff Gren’s deposition lasted more than

five hours.

Following Plaintiff Gren’s deposition, the Parties began engaging in




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preliminary settlement discussions. During the course of several months the Parties

engaged in hard-fought settlement negotiations that resulted in the Settlement

Agreement. The several months that it took to work out significant details and

vigorous disagreements between the parties demonstrate that this proposed

resolution was the product of heavily disputed and arm’s length negotiation.

On June 3, 2019, Plaintiffs filed an Unopposed Motion for Preliminary

Approval of the class action settlement with Defendant. (ECF No. 64-1). On June

27, 2019, the Court entered an Order Denying Plaintiffs’ Motion for Preliminary

Approval Without Prejudice, and ordered Plaintiffs to file an amended motion to

address the requirements of Rule 23(e)(3). (ECF No. 65). On August 19, 2019,

Plaintiffs filed a Renewed Motion for Preliminary Approval of the class action

settlement, which the Court granted on September 18, 2019. (ECF Nos. 71, 77). In

its preliminary approval order, the Court conditionally certified the nationwide

settlement class noting that the requirement of Federal Rules of Civil Procedure

23(a) and 23(b)(3) had been satisfied. (ECF No. 77 at 12-18). The Court also

preliminarily approved the settlement noting that the relevant factors weighed in

favor of approval. (ECF No. 77 at 4-12).

II. SUMMARY OF SETTLEMENT

Plaintiffs now move for final approval of a Settlement Class defined as

follows:

All persons residing in the United States who during the Class Period1

purchased in any state, for personal or household use and not for resale

or distribution, any of the Products.2, 3

1 The term “Class Period” means September 21, 2013 to the date on which the Notice is disseminated to the Settlement Class. Agreement at § 2.7. 2 The term “Products” means UIC’s herbicide products that are (a) sold under the “Spectracide®” tradename and (b) are sold in a “concentrate” product form (in other words, designed to be manually mixed by consumers with water prior to use on targeted vegetation). Agreement at § 2.20. 3 The Settlement Class specifically excludes (1) any judicial officer presiding over the Litigation, (2) UIC and Released Parties, and each of their current or former officers, directors, and employees, (3) legal representatives, successors, or assigns




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The Settlement Agreement provides that UIC will pay $2,500,000.00 into a

settlement fund. Agreement at § 7.4. This fund will be used, among other things, to

pay authorized claims to the Settlement Class Members, to pay the costs of

settlement administration and notice to the Class Members, to pay Class Counsel’s

fees and expenses, and to pay incentive awards to the named Plaintiffs. Agreement

at § 7.6. For Authorized Claimants, UIC will provide $6.25 in cash from the

Settlement Fund for each Claim submitted by a household, with a limit of four (4)

Claims per household (total payable per household in no event to exceed $25, unless

distribution is increased pro rata). Agreement at § 7.2.1. The settlement provides for

a pro rata reduction if the claims exceed the amount in the settlement fund

(Agreement at § 7.2.3) or a pro rata increase if the settlement fund is not exhausted.

Agreement at § 7.2.3. If after all accepted Claims (plus other authorized fees, costs

and expenses) are paid and money remains in the Settlement Fund after pro rata

distribution to Authorized Claimants, any remaining settlement funds thereafter will

be awarded cy pres to the National Advertising Division of the Better Business

Bureau.

In addition to monetary relief, UIC agrees to the following injunctive relief:

If, with respect to any Product manufactured by UIC after June 1, 2020, UIC elects

to state on its Product label that such Product "Makes Up to __ Gallons" of end-use

herbicide, Defendant shall include on such labeling, mixing directions that are

acceptable to EPA-equivalent agencies of the State(s) in which the Product is

registered for sale (such acceptability being deemed by virtue of such agency(ies)

registration of such Product). The ultimate timing and content of any label changes

shall be at the sole discretion of UIC. Agreement at § 7.3.

III. NOTICE AND CLAIMS PROCESS

The Court finds that the Class has received the best notice practicable and that

the notice complies with due process requirements. The Parties’ selection and

of any such excluded person, and (4) any person who properly executes and files a timely Request for Exclusion. Ageement at § 2.26.




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retention of Classaura LLC as the Notice Administrator was reasonable and

appropriate. Based on the Declaration of Gajan Retnasaba, the Court hereby finds

that the Settlement Notices were published to the Class Members substantially in the

form and manner approved by the Court in its Preliminary Approval Order. The

Settlement Notices provided fair, effective and the best practicable notice to the

Class of the Settlement and the terms thereof. The Notices also informed the Class

of Plaintiff’s intent to seek attorneys’ fees, costs, and incentive payments, and set

forth the date, time, and place of the Fairness Hearing and Class Members’ rights to

object to the Settlement or Fee Motion and to appear at the Fairness Hearing. The

Court further finds that the Settlement afforded Class members a reasonable period

of time to exercise such rights. See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS

155472, at *82 (C.D. Cal. Nov. 23, 2011) (class members’ deadline to object or opt

out must arise after class counsel’s fee motion is filed); In re Mercury Interactive

Corp. Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010) (same). The Settlement Notices

fully satisfied all notice requirements under the law, including the Federal Rules of

Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ.

Code § 1781, and all due process rights under the U.S. Constitution and California

Constitutions. The Court also finds that Defendant has satisfied all notice

requirements of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715,

as attested to by the Retnasaba Declaration. The Court has received no objection or

response to the Settlement agreement by any federal or state official, including any

recipient of the foregoing notices.

To date, Classaura has received 84,572 claim forms from prospective class

members. Out of the total claim forms received, Classaura has found 16,605 claim

forms to be invalid due to being duplicative or not meeting the settlement criteria.

Classaura estimates that there will be approximately 67,967 valid claim forms.

Settlement Class members are eligible to request payment for up to four purchases

per household on their claim forms. The average claim form reported 3.6 purchases.




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Thus, Classaura estimates that the total number of valid claims that will be paid is

248,042. In addition, there have been no requests for exclusion from the settlement

and no class members have objected to the settlement.

IV. APPROVAL OF CLASS ACTION SETTLEMENT

Approval of a proposed class action settlement is governed by Federal Rule

of Civil Procedure 23(e). “[T]he 2018 amendment to Rule 23(e) establishes core

factors district courts must consider when evaluating a request to approve a proposed

settlement.” Zamora Jordan v. Nationstar Mortg., LLC, No. 2:14-CV-0175-TOR,

2019 WL 1966112, at *2 (E.D. Wash. May 2, 2019).

Rule 23(e) now provides that the Court may approve a class action settlement

“only after a hearing and only on a finding that it is fair, reasonable, and adequate

after considering whether:

(A) the class representatives and class counsel have adequately represented

the class;

(B) the proposal was negotiated at arm's length;

(C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to

the class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney's fees, including

timing of payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.”

Fed. R. Civ. P. 23(e)(2).

“Under Rule 23(e), both its prior version and as amended, fairness,

reasonableness, and adequacy are the touchstones for approval of a class-action

settlement.” Zamora, 2019 WL 1966112, at *2. “The purpose of the amendment to

Rule 23(e)(2) is establish [sic] a consistent set of approval factors to be applied




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uniformly in every circuit, without displacing the various lists of additional approval

factors the circuit courts have created over the past several decades.” Id. Factors that

the Ninth Circuit have typically considered include (1) the strength of plaintiffs’

case; (2) the risk, expense, complexity, and likely duration of further litigation; (3)

the risk of maintaining class action status throughout the trial; (4) the amount offered

in settlement; (5) the extent of discovery completed and the stage of the proceedings;

and (6) the experience and views of counsel. Hanlon v. Chrysler Corp., 150 F.3d

1011, 1026 (9th Cir. 1998); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575

(9th Cir. 2004).

“While the Ninth Circuit has yet to address the amendment to Rule 23(e)(2) .

. . the factors in amended Rule 23(e)(2) generally encompass the list of relevant

factors previously identified by the Ninth Circuit.” Zamora, 2019 WL 1966112, at

*2 (alteration in original). Indeed, “[t]he goal of this amendment is not to displace

any factor, but rather to focus the court and the lawyers on the core concerns of

procedure and substance that should guide the decision whether to approve the

proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment.

“Accordingly, the Court applies the framework set forth in Rule 23 with guidance

from the Ninth Circuit’s precedent, bearing in mind the Advisory Committee’s

instruction not to let ‘[t]he sheer number of factors’ distract the Court and parties

from the ‘central concerns’ underlying Rule 23(e)(2).” In re Extreme Networks, Inc.

Securities Litigation, No. 15-CV-04883-BLF, 2019 WL 3290770, at *6 (N.D. Cal.

July 22, 2019); see also Hefler v. Wells Fargo & Co., No. 16-CV-05479-JST, 2018

WL 6619983, at *4 (N.D. Cal. Dec. 18, 2018).

ADEQUATE REPRESENTATION

A determination of adequacy of representation requires that “two questions be

addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest

with other class members and (b) will the named plaintiffs and their counsel

prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec.




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Litig., 213 F.3d 454, 462 (9th Cir. 2000), as amended (June 19, 2000) (citing Hanlon,

150 F.3d at 1020); see also Hefler, 2018 WL 6619983, at *6.

The Court finds that Class Counsel and the Class Representatives have

adequately represented the Class. The proposed class representatives in this action

have no conflicts of interest with other class members and each have prosecuted this

action vigorously on behalf of the Class. Each of the named Plaintiffs have suffered

the same injuries as the absent class members because each purchased a

Spectracide® Concentrate product, for personal and household use, in reliance on

the “Makes Up To ___” gallons statement on the front of the label which they took

to mean would, in fact, make up to the advertised amount of gallons when used as

directed for general weed control. (See Fourth Amended Complaint, ECF No. 63 at

¶¶ 30-32). Each of the named Plaintiffs have been dedicated to vigorously pursuing

this action on behalf of the class and each have kept themselves informed about the

status of the proceedings.

Class Counsel have also vigorously represented the Class and have no

conflicts of interest. The Settlement was negotiated by counsel with extensive

experience in consumer class action litigation. Through the discovery process, Class

Counsel obtained sufficient information and documents to evaluate the strengths and

weaknesses of the case. The information reviewed by class counsel includes sales

information for the Spectracide® Concentrate products during the class period, the

labels for the Spectracide® Concentrate products in use during the class period, and

Defendant’s communications with the Environmental Protection Agency (“EPA”)

relating to the labels of the Products. Class Counsel have concluded that the

Settlement provides exceptional results for the class while sparing the class from the

uncertainties of continued and protracted litigation. See, e.g., In re Omnivision

Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) (“The recommendations

of plaintiffs’ counsel should be given a presumption of reasonableness.”); Rodriguez

v. W. Publ'g Corp., 563 F.3d 948, 976 (9th Cir. 2009) (Deference to Class Counsel’s




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evaluation of the Settlement is appropriate because “[p]arties represented by

competent counsel are better positioned than courts to produce a settlement that

fairly reflects each party’s expected outcome in litigation.”).

Accordingly, the Court finds that Class Counsel and the Class Representatives

have been diligent in their representation of the class.

ARM’S LENGTH NEGOTIATIONS

Regarding the negotiation process, the Court finds that the Settlement

Agreement is the result of an adversarial, non-collusive, and arms-length

negotiation. The Parties did not begin settlement discussions until after the Court

had ruled on Defendant’s motion to dismiss (ECF No. 34) and Plaintiff Arthur’s

motion for class certification (ECF No. 46). Settlement discussions also did not

begin until after the Parties had exchanged written discovery and documents, which

speaks to the fundamental fairness of the process. See Nat'l Rural

Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004)

(“A settlement following sufficient discovery and genuine arms-length negotiation

is presumed fair.”). The several months that it took to work out significant details

and vigorous disagreements between the parties demonstrate that this proposed

resolution was the product of heavily disputed and arm’s length negotiation. The

settlement negotiations were hard-fought, with both Parties and their counsel

thoroughly familiar with the applicable facts, legal theories, and defenses on both

sides.

Accordingly, the Court finds no signs of conflicts of interest, collusion, or bad

faith in the parties' settlement negotiation process.

ADEQUATE RELIEF

The Court concludes that the relief provided for the Class is adequate. UIC

has agreed to settle this matter for a non-reversionary total of $2,500,000. Agreement

at § 7.4. As explained in the Court’s Preliminary Approval Order (ECF No. 77), the




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$2,500,000 nationwide settlement amount is reasonable considering that damages

would be limited to a fraction of total sales if Plaintiffs were to prevail at trial.

As previously explained by Plaintiffs’ damages expert, Charlene L. Podlipna,

CPA, the Spectracide® Concentrate products allegedly are underfilled by 36% to

38% based on Plaintiffs’ claims that reasonable consumers’ intend purpose for the

Products is “general weed control.” (ECF No. 23-14 [Podlipna Decl., ¶ 13]).

Damages for the nationwide class would be based on the Benefit of the Bargain

method, which is based on the difference between the amount Plaintiffs reasonably

expected to receive and the actual amount received. (ECF No. 23-14 [Podlipna Decl.,

¶ 15]). Accordingly, the projected maximum for nationwide class damages would

be approximately if Plaintiffs were to prevail at trial. (

nationwide sales x .38 underfill percentage = ). The $2,500,000

settlement fund accounts for % of total damages that would be available at

trial, which is well within the range of reason. See, e.g., Stovall-Gusman v. W.W.

Granger, Inc., No. 13-cv-02540-HSG, 2015 WL 3776765, at *4 (N.D. Cal. June 17,

2015) (granting final approval of a net settlement amount representing 7.3% of the

plaintiffs’ potential recovery at trial); Balderas v. Massage Envy Franchising, LLC,

No. 12-cv-06327NC, 2014 WL 3610945, at *5 (N.D. Cal. July 21, 2014) (granting

preliminary approval of a net settlement amount representing 5% of the projected

maximum recovery at trial); Ma v. Covidien Holding, Inc., No. SACV 12-02161-

DOC (RNBx), 2014 WL 360196, at *5 (C.D. Cal. Jan. 31, 2014) (finding a

settlement worth 9.1% of the total value of the action “within the range of

reasonableness”); Downey Surgical Clinic, Inc. v. Optuminsight, Inc., No. CV09-

5457PSG (JCx), 2016 WL 5938722 at *5 (C.D. Cal. May 16, 2016) (granting final

approval where recovery was as low as 3.21% of potential recovery at trial).

The amount of recovery per class member is also adequate considering that






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increased pro rata). Agreement at § 7.2.1. This recovery is significant considering

that a 64-ounce bottle of Spectracide® Concentrate, the most expensive bottle size,

sells for approximately $30.00 at retail stores like Home Depot. The $6.25 recovery

per purchase (up to four purchases per household) for each Settlement Class member

is an excellent result considering it represents a large fraction of total damages that

would be recoverable at trial. Indeed, $6.25 represents approximately 57.8% of the

total potential recovery for purchasers of the 64-ounce bottle size ($30.00 x .36

underfill amount for 64-ounce bottle size = $10.80). Moreover, the settlement

agreement provides for injunctive relief, which further supports the adequacy of

relief to the class. Agreement at § 7.3.

The amount of recovery per claimant is also adequate considering that





forms were submitted by settlement class members and 248,042 valid claims will be

paid by the settlement administrator. Once notice and administration costs along

with Plaintiffs’ requested attorneys’ fees, costs, and incentive awards are deducted

from the $2,500,000 Settlement Fund, there will be approximately $1,602,477.37

available for distribution to the Settlement Class. This means that there will be a

slight pro rata increase and $6.46 will be paid for each valid and timely claim

submitted. ($1,602,477.37 in available funds for distribution / 248,042 valid claims

= $6.46 per claim). Because the average valid claim form reported 3.6 purchases,

average settlement class members will receive approximately $23.26. This recovery

is significant considering that a 64-ounce bottle of Spectracide® Concentrate, the

most expensive bottle size, sells for approximately $30.00 at retail stores.

Accordingly, the Court finds that the amount offered in the settlement is adequate.




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1. Costs, risks, and delay of trial and appeal

The Court concludes that the costs, risks, and delay of trial and appeal further

support final approval. Proceeding in this litigation in the absence of settlement

poses various risks such as failing to certify a class, having summary judgment

granted against Plaintiffs, or losing at trial. Such considerations have been found to

weigh heavily in favor of settlement. See Rodriguez, 563 F.3d at 966; Curtis-Bauer

v. Morgan Stanley & Co., Inc., No. C 06-3903 TEH, 2008 WL 4667090, at *4 (N.D.

Cal. Oct. 22, 2008) (“Settlement avoids the complexity, delay, risk and expense of

continuing with the litigation and will produce a prompt, certain, and substantial

recovery for the Plaintiff class.”). Even if Plaintiffs are able to certify a class, there

is also a risk that the Court could later decertify the class action. See In re Netflix

Privacy Litig., No. 5:11-cv-00379 EJD, 2013 WL 1120801, at *6 (N.D. Cal. Mar.

18, 2013) (“The notion that a district court could decertify a class at any time is one

that weighs in favor of settlement.”) (internal citations omitted). The Settlement

eliminates these risks by ensuring Class Members a recovery that is “certain and

immediate, eliminating the risk that class members would be left without any

recovery . . . at all.” Fulford v. Logitech, Inc., No. 08-cv-02041 MNC, 2010 U.S.

Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5, 2010).

2. Effectiveness of proposed method of distributing relief to the Class

The Court finds that the claims process was straightforward and allows

Settlement Class members to make a claim by submitting a valid and timely Claim

Form to the Settlement Administrator without complication. See In re Toyota Motor

Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., No.

8:10ML 02151 JVS, 2013 WL 3224585, at *18 (C.D. Cal. June 17, 2013) (“The

requirement that class members download a claim form or request in writing a claim

form, complete the form, and mail it back to the settlement administrator is not

onerous.”).




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The Settlement Agreement here provides for pro rata distribution to class,

which will ensure that class members receive as much as the settlement fund as

possible. Agreement at § 7.2.3. As discussed above, there will be a slight pro rata

increase and approximately $6.46 will be paid out for each of the estimated 248,042

valid claims submitted. If any amounts remain in the settlement fund following a pro

rata distribution to class members, then the remaining funds will thereafter be

awarded cy pres to the National Advertising Division of the Better Business Bureau

(“NAD”). Agreement at § 7.2.3. The proposed cy pres recipient will only receive

funds that are no longer economically feasible to distribute to the class after a pro

rata distribution. Courts have previously approved NAD as a suitable cy pres

recipient. See Rawa v. Monsanto Co., No. 4:17CV01252 AGF, 2018 WL 2389040,

at *11 (E.D. Mo. May 25, 2018) (approving NAD as a cy pres recipient and noting

that it “monitors national advertising in all media for goods and services, enforce[es]

high standards of truth and accuracy, and accepts complaints from consumers”).

Accordingly, the Court appoints NAD as the cy pres recipient and approves the

proposed method of distribution.

3. The Requested Attorneys’ Fees, Costs, and Incentive Awards Are Fair

and Reasonable

Class Counsel has fully addressed the reasonableness of the fee request in

Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards that was filed

on January 6, 2020. (ECF No. 78-1). Pursuant to Federal Rule of Civil Procedure

23(h), the Court orders that Class Counsel is entitled to reasonable attorneys’ fees

incurred in connection with the action in the amount of $725,000.00, to be paid at

the time and in the matter provided in the Settlement Agreement. (ECF No. 71-3).

The fee award sought in the present case is reasonable when judged by the standards

of this circuit. See, e.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,

941 (9th Cir. 2011). The $725,000.00 fee award accounts for 29% of the

$2,500,000.00 Settlement Fund and is well within the percentage range that courts




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have allowed in the Ninth Circuit. Id. at 942; see also Vasquez v. Coast Valley

Roofing, Inc., 266 F.R.D. 482, 491 (E.D. Cal. 2010) (“typical range of acceptable

attorneys’ fees in the Ninth Circuit is 20% to 33 1/3 % of total settlement value”);

Hopkins v. Stryker Sales Corp., No. 11-2786, 2013 WL 2013 WL 496358, at *1

(N.D. Cal. Feb. 6, 2013) (acknowledging same and awarding 30%); In re Activision

Sec. Litig., 723 F. Supp. 1373, 1377 (N.D. Cal. 1989) (“[a] review of recent reported

cases discloses that nearly all common fund awards range around 30%”); Pokorny

v. Quixtar, Inc., No. 07-00201 SC, 2013 WL 3790896, *1 (N.D. Cal. July 18, 2013)

(acknowledging same, stating 30% award is “the norm absent extraordinary

circumstances that suggest reasons to lower or increase the percentage” and granting

fee request of 27.3%); see also In re Pacific Enters. Sec. Litig., 47 F.3d 373, 379

(9th Cir. 1995) (award of 33% of settlement fund as fees affirmed).

Moreover, “in cases under $10 million, the awards more frequently will

exceed the 25% benchmark.” Lopez v. Youngblood, No. 07-474, 2011 WL

10483569, *13 (E.D. Cal. Sept. 1, 2011). Class Counsel’s fee request is also

reasonable under the lodestar method. Class Counsel’s total lodestar in this action

equals $545,052.50. Accordingly, the $725,000.00 fee award results in a positive

multiplier of 1.33. See Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 255

(2001) (“Multipliers can range from 2 to 4, even higher.”); Van Vranken v. Atlantic

Richfield Co., 901 F. Supp. 294, 298 (N.D. Cal. 1995) (3-4 are in the “range [of]

common” multipliers for sophisticated class actions). Moreover, the fee award is

justified based on the excellent results obtained, the experience and skill of Counsel,

the complexity of issues, the risk of non-payment, and the preclusion of other work.

Based on the declaration submitted by Class Counsel in support of the Fee

Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation

expenses (paid and un-reimbursed) in the amount of $32,090.63. Accordingly, the

Court further awards Class Counsel $32,090.63 in litigation costs, to be paid at the

time and manner provided in the Settlement Agreement.




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The Court finds that the Class Representatives in this action have actively

participated in and assisted Class Counsel with this litigation for the substantial

benefit of the Class. Each of the Class Representatives have reviewed material

filings; have had continuous communications with Class Counsel throughout the

litigation; have reviewed and approved the Settlement Agreement; and were

committed to securing substantive relief on behalf of the Class. The Court further

finds that the requested incentive awards are presumptively reasonable are in line

with Ninth Circuit authority. See Wren v. RGIS Inventory Specialists, No. C-06-

05778 JCS, 2011 WL 1230826, at *36 (N.D. Cal. Apr. 1, 2011) (“there is ample case

law finding $5,000 to be a reasonable amount for an incentive payment.”).

Accordingly, the Court awards incentive payments as follows: (a.) $3,000 incentive

payment to Plaintiff Michael Graves; (b.) $3,000 incentive payment to Plaintiff

Michael Whealen; and (c.) $5,000 incentive payment to Plaintiff Keith Gren. The

Court finds that the incentive payment to Plaintiff Keith Gren is reasonable in light

of the fact he sat for a deposition on July 12, 2018 and that he incurred additional

time and expense for appearing at the deposition.

4. Agreements required to be identified under Rule 23(e)(3)

The Court has not been advised of any side agreements made in connection

with the proposed settlement pursuant to Rule 23(e)(3). Thus, there is nothing for

the Court to consider.

The Settlement Agreement Treats Class Members Equitably

The Court finds that the apportionment of relief among Class Members treats

class members equitably. As discussed above, each valid claim submitted will be

paid approximately $6.46 following a slight pro rata increase. Because each class

member is treated equally, the Court approves the settlement as fair, reasonable, and

adequate.

The Absence of Governmental Participation Supports Final

Approval




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Although CAFA does not create an affirmative duty for either state or federal

officials to take any action in response to a class-action settlement, CAFA presumes

that—once put on notice—state or federal officials will “raise any concerns that they

may have during the normal course of the class action settlement procedures.”

Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08-1365, 2010 WL 1687832, at

*14 (N.D. Cal. Apr. 22, 2010); see also LaGarde v. Support.com, Inc., No. C 12-

0609, 2013 WL 1283325, at *7 (N.D. Cal. Mar. 26, 2013) (same); In re Netflix

Privacy Litig., No. 5:11-cv-00379, 2013 WL 1120801 at *8 (N.D. Cal. Mar. 18,

2013) (same). To date, no state or federal official has raised any objection to the

settlement.

The Reaction of the Class Has Been Favorable

It is well established that “the absence of a large number of objections to a

proposed class action settlement raises a strong presumption that the terms of a

proposed class settlement action are favorable to the class members.” Nat’l Rural

Telecomms. Coop., 221 F.R.D. at 529 (collecting cases). Here, the Court finds that

the response from Class members has been overwhelmingly positive. There have

been no requests for exclusion and no objections have been filed. This positive

reaction to the Settlement indicates that this Court “‘may appropriately infer that

[the] class action settlement is fair, adequate, and reasonable when few class

members object to it.’” Garner, 2010 WL 1687832, at *14.

V. CERTIFICATION OF THE SETTLEMENT CLASS

When presented with a proposed settlement, a court must first determine

whether the proposed settlement class satisfies the requirements for class

certification under Rule 23. In assessing those class certification requirements, a

court may properly consider that there will be no trial. Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only

class certification, a district court need not inquire whether the case, if tried, would

present intractable management problems . . . for the proposal is that there be no




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trial.”). For the reasons below, the Court finds that the Settlement Class meets the

requirements of Rule 23(a) and (b).

Rule 23(a)

1. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all

members is impracticable.” See Rule 23(a)(1). “As a general matter, courts have

found that numerosity is satisfied when class size exceeds 40 members, but not

satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 F.R.D. 649,

654 (C.D. Cal. 2000). Here, the proposed class is comprised of tens of thousands of

consumers who purchased the Class Products. To date, the settlement administrator

has received 67,967 valid claim forms. Accordingly, the Court finds that the

numerosity requirement is satisfied.

2. Commonality

Rule 23(a)(2) requires the existence of “questions of law or fact common to

the class.” See Rule 23(a)(2). Commonality is established if plaintiffs and class

members’ claims “depend on a common contention,” “capable of class-wide

resolution . . . [meaning] that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Because the commonality

requirement may be satisfied by a single common issue, it is easily met.

The Court finds that there are ample issues of both law and fact here that are

common to the members of the Class. All of the Class Members’ claims arise from

a common nucleus of facts and are based on the same legal theories. Plaintiffs allege

that UIC’s “Makes Up To __” gallons statement on the Spectracide® Concentrate

Product labels is false and misleading because the Products yield only a fraction of

the advertised “Makes Up To” amount when mixed for “general weed control”

purposes. These alleged misrepresentations were made in a uniform manner to each

of the Class Members. Accordingly, commonality is satisfied by the existence of




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these common factual issues. See Arnold v. United Artists Theatre Circuit, Inc., 158

F.R.D. 439, 448 (N.D. Cal. 1994) (commonality requirement met by “the alleged

existence of common discriminatory practices”).

Second, Plaintiffs’ claims are brought under legal theories common to the

Class as a whole. Alleging a common legal theory alone is enough to establish

commonality. See Hanlon, 150 F.3d at 1019 (“All questions of fact and law need not

be common to satisfy the rule. The existence of shared legal issues with divergent

factual predicates is sufficient, as is a common core of salient facts coupled with

disparate legal remedies within the class.”). Here, all of the legal theories asserted

by Plaintiffs are common to all Class Members. Given that there are virtually no

issues of law which affect only individual members of the Class, the Court finds that

commonality is satisfied.

3. Typicality

Rule 23(a)(3) requires that the claims of the representative plaintiffs be

“typical of the claims . . . of the class.” See Rule 23(a)(3). “Under the rule’s

permissive standards, representative claims are ‘typical’ if they are reasonably

coextensive with those of absent class members; they need not be substantially

identical.” See Hanlon, 150 F.3d at 1020. In short, to meet the typicality requirement,

the representative plaintiffs simply must demonstrate that the members of the

settlement class have the same or similar grievances. Gen. Tel. Co. of the Sw. v.

Falcon, 457 U.S. 147, 161 (1982).

The Court finds that the claims of the named Plaintiffs are typical of those of

the Class. Like those of the Class, their claims arise out of the purchase of

Spectracide® Concentrate products for personal or household use after relying on

UIC’s allegedly misleading “Makes Up To __” gallons representations. The named

Plaintiffs have precisely the same claims as the Class and must satisfy the same

elements of each of their claims, as must other Class Members. Supported by the

same legal theories, the named Plaintiffs and all Class Members share claims based




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on the same alleged course of conduct. The named Plaintiffs and all Class Members

have been injured in the same manner by this conduct. Therefore, the typicality

requirement is satisfied.

4. Adequacy

The final requirement of Rule 23(a) is set forth in subsection (a)(4) which

requires that the representative parties “fairly and adequately protect the interests of

the class.” See Rule 23(a)(4). As discussed above, the Court finds that Class Counsel

and the Class Representatives have adequately represented the Class. Accordingly,

the Court hereby appoints Plaintiffs Michael Graves, Keith Gren, and Michael

Whealen as Class Representatives for the Settlement Class. The Court also appoints

the Law Offices of Ronald A. Marron, APLC as Settlement Class Counsel to Federal

Rule of Civil Procedure 23(g).

Rule 23(b)(2)

In addition to meeting the prerequisites of Rule 23(a), Plaintiffs must also

meet one of the three requirements of Rule 23(b) to certify the proposed class. See

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Under

Rule 23(b)(3), a class action may be maintained if “the court finds that the questions

of law or fact common to the members of the class 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.” See Rule

23(b)(3). Certification under Rule 23(b)(3) is appropriate and encouraged “whenever

the actual interests of the parties can be served best by settling their differences in a

single action.” Hanlon, 150 F.3d at 1022.

1. Predominance

The Court finds that the proposed Class is well-suited for certification under

Rule 23(b)(3) because questions common to the Class Members predominate over

questions affecting only individual Class Members. Predominance exists “[w]hen

common questions present a significant aspect of the case and they can be resolved




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for all members of the class in a single adjudication.” Id. As the U.S. Supreme Court

has explained, when addressing the propriety of certification of a settlement class,

courts take into account the fact that a trial will be unnecessary and that

manageability, therefore, is not an issue. Amchem, 521 U.S. at 619-62. In this case,

common questions of law and fact exist and predominate over any individual

questions, including, in addition to whether this settlement is reasonable (see

Hanlon, 150 F.3d at 1026-27), inter alia: (1) whether UIC’s representations

regarding its “Makes up to ___” gallons claim were false and misleading or

reasonably likely to deceive consumers; (2) whether UIC violated the CLRA, UCL,

FAL and the MMPA; (3) whether UIC had defrauded Plaintiff and the Class

Members; and (4) whether the Class has been injured by the wrongs complained of,

and if so, whether Plaintiffs and the Class are entitled to damages, injunctive and/or

other equitable relief, including restitution, and if so, the nature and amount of such

relief.

There are also no concerns here about certifying a nationwide settlement class

under Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590 (9th Cir. 2012). In Mazza,

the Ninth Circuit held that, when certifying a nationwide class, the burden is on the

defendant to show “‘that foreign law, rather than California law, should apply to

class claims.’” See also In re MDC Holdings Securities Litigation, 754 F. Supp. 785,

803–04, 808 (S.D. Cal. 1990) (the “court presumes that California law controls

unless and until defendants show that choice of law problems render the common

law claims inappropriate for class treatment.”); In re Seagate Technologies Sec.

Litigation, 115 F.R.D. 264, 269, 274 (N.D. Cal. 1987) (applying California law to

nationwide class because “[a]bsent the defendant carrying [its] burden, California

law would govern the foreign state plaintiffs' claims” and noting several other

decisions reaching this conclusion).

The Ninth Circuit recently held that differences in state law do not defeat

predominance in the settlement class context. See In re Hyundai & Kia Fuel Econ.




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Litig., 926 F.3d 539, 561 (9th Cir. 2019). This is especially relevant here because

UIC is not opposing the certification of a nationwide class involving California and

Missouri law. Consequently, UIC is voluntarily subjecting itself to California and

Missouri law, including California’s Consumer Legal Remedies Act and Missouri’s

Merchandising Practices Act, which provide greater protections to consumers than

other jurisdictions. Where, as here, UIC’s products were widely distributed and there

are significant contacts with California residents, and where UIC does not oppose

California law applying to the nationwide class, the Mazza choice of law analysis is

easily satisfied because the interests of other states will not be impaired. In re

Hyundai & Kia Fuel Econ. Litig., 926 F.3d at 561. Missouri’s MMPA can also be

applied to the nationwide Settlement Class because UIC maintains its principal place

of business in Missouri and Missouri has significant contacts with the claims of each

class member.

Moreover, the considerations driving the rest of the Mazza analysis are

inapplicable here. In the settlement context, other states’ interests would not be

undermined by the application of California and Missouri law because UIC is opting

into a regime that protects consumers more vigorously than other states. In Hanlon,

the Ninth Circuit also held that “the idiosyncratic differences between state

consumer protection laws are not sufficiently substantive to predominate over the

shared claims.” Hanlon, 150 F.3d at 1022–23; In re Hyundai & Kia Fuel Econ.

Litig., 926 F.3d at 561 (“no party argued that California’s choice-of-law rules should

not apply to this class settlement”); Sullivan v. DB Investments, Inc., 667 F.3d 273,

301 (3d Cir. 2011) (“variations in the rights and remedies available to injured class

members under the various laws of the fifty states [do] not defeat commonality and

predominance.”); In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 315 (N.D.

Cal. 2018) (finding that differences between state consumer protection laws do not

defeat predominance and certifying nationwide settlement class). Accordingly, the

Court finds that common issues predominate.




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2. Superiority

The Court finds that the class mechanism is superior to other available means

for the fair and efficient adjudication of the claims of the Class Members. Each

individual Class Member may lack the resources to undergo the burden and expense

of individual prosecution of the complex and extensive litigation necessary to

establish Defendant’s liability. Individualized litigation increases the delay and

expense to all parties and multiplies the burden on the judicial system. Individualized

litigation also presents a potential for inconsistent or contradictory judgments. In

contrast, the class action device presents far fewer management difficulties and

provides the benefits of single adjudication, economy of scale, and comprehensive

supervision by a single court. Accordingly, the Court finds that common questions

predominate and a class action is the superior method of adjudicating this

controversy and that the requirements of Rule 23(b)(3) are satisfied.

Accordingly, the Court hereby CERTIFIES the Settlement Class.

VI. MISCELLANEOUS

Implementation of Settlement. The Parties are hereby directed to implement

the Settlement according to its terms and conditions.

Enforcement of Settlement. Nothing in this Final Approval Order shall

preclude any action to enforce or interpret the terms of the Settlement. Any action

to enforce or interpret the terms of the Settlement shall be brought solely in this

Court.

Retention of Jurisdiction. The Court expressly retains continuing

jurisdiction as to all matters relating to the Settlement, and this Final Order, and for

any other necessary and appropriate purpose. Without limiting the foregoing, the

Court retains continuing jurisdiction over all aspects of this case including but not

limited to any modification, interpretation, administration, implementation,

effectuation, and enforcement of the Settlement, the administration of the Settlement

and Settlement relief, including notices, payments, and benefits thereunder, the




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Settlement Notice and sufficiency thereof, any objection to the Settlement, any

request for exclusion from the certified Class, the adequacy of representation by

Class Counsel and/or the Class Representative, the amount of attorneys’ fees and

litigation expenses to be awarded Class Counsel, the amount of any incentive awards

to be paid to the Class Representatives, any claim by any person or entity relating to

the representation of the Class by Class Counsel, to enforce the release and

injunction provisions of the Settlement and of this Order, any remand after appeal

or denial of any appellate challenge, any collateral challenge made regarding any

matter related to this litigation or this Settlement or the conduct of any party or

counsel relating to this litigation or this Settlement, and all other issues related to

this action and Settlement. Further, the Court retains continuing jurisdiction to enter

any other necessary or appropriate orders to protect and effectuate the Court’s

retention of continuing jurisdiction provided that nothing in this paragraph is

intended to restrict the ability of the Parties to exercise their rights under the

Settlement Agreement.

Dismissal of Action With Prejudice. The claims against Defendant in this

action, including all individual and Class claims resolved in it, shall be dismissed on

the merits and with prejudice.

IT IS SO ORDERED.

DATED_______, 2020 ___________________________

HON. CHRISTINA A. SNYDER

United States District Judge
