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Hartless v. Clorox Co.

August 13, 2010


The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge


Plaintiff Shawndee Hartless ("Plaintiff") and Defendant Clorox Company ("Defendant") filed a joint motion requesting that the Court conditionally certify a settlement class; appoint Blood Hurst and O'Reardon, LLP and Bonnett, Fairbourn, Friedman & Balint, P.C. as counsel for the Class; grant preliminary approval of a class action settlement; set a final fairness approval hearing; and approve notice to the class. [Doc. No. 78.] This Court has reviewed the joint motion, Plaintiff's memorandum in support of the joint motion for preliminary approval, the declaration of Timothy G. Blood in support of the joint motion, the Stipulation of Settlement, the proposed order granting preliminary approval, the claim administration protocols, the publication notice, the notice plan, the notice of class action settlement, the settlement claim forms, the proposed final settlement order and judgment, and the record in this action. [Doc. Nos. 77 and 78.]

The Court hereby GRANTS the Joint Motion. The Court finds and concludes that the proposed settlement, as set forth in the Stipulation of Settlement [Doc. No. 77], should be and is preliminary approved as fair, reasonable and adequate, free of collusion or indica of unfairness, and within the range of possible final judicial approval. The Stipulation of Settlement, [Doc. No. 77], is incorporated by reference and hereby made a part of this preliminary approval Order. The Court further finds, concludes, and orders as follows:

A. Definitions

The capitalized terms used in this preliminary approval Order shall have the meanings and or definitions given to them in the Stipulation of Settlement, or if not defined therein, the meanings and/or definitions given to them in this preliminary approval Order.

B. Background of the Action

1. Plaintiff filed this class action on December 13, 2006. The original complaint alleged claims under the Consumer Legal Remedies Act, California Civil Code section 1750 et seq.; California's Unfair Competition Law, California Business & Professions Code section 17200 et seq.; and for breach of the implied warranty of merchantability. Plaintiff subsequently filed a First Amended Complaint for violation of California's Unfair Competition Law and the Consumer Legal Remedies Act. Plaintiff alleges that chemicals from the Clorox Automatic Toilet Bowl Cleaner with Bleach ("CATBC") tablets cause damage to the flush mechanism's flapper and the statement on the CATBC label that the tablet "Does not harm plumbing" is false, misleading and likely to deceive the public.

2. Defendant maintains that CATBC is a safe product when used as directed and denies that the CATBC label was false or misleading. Defendant asserts that the studies conducted in the 1990s on the effects of chlorinated in-tank cleaners tested toilet flappers under extreme conditions and that is it unaware of any study that indicates CATBC exposure accelerates harm to toilet tank components when the product is used as directed. Additionally, Defendant contends that the class alleged by Plaintiff could not be certified outside a settlement context.

3. During the almost four-year pendency of this Action and prior to initiating the action, Class Counsel conducted an extensive examination and evaluation of the relevant facts and law to assess the merits of the claims and potential claims and to determine how best to serve the interests of Plaintiff and the Class. Class Counsel retained consultants, conducted laboratory testing of the product, obtained documents from industry officials, interviewed industry consultants and representatives of the industry committees formed to investigate the allegedly damaging effects of chlorinated in-tank cleaners, reviewed approximately 42,000 pages of documents, served written discovery requests and deposition notices, conducted an informal interview of a former Clorox employee, and engaged and worked with an expert to review and analyze testing documents produced by Clorox. Thus, Class Counsel have carefully considered the merits of Plaintiff's claims and the defenses raised by Defendant to those claims.

4. At the time that the Parties reached an agreement in principle to settle this Action, they had engaged in significant litigation and discovery and conducted a thorough investigation of the facts relating to the claims asserted in the Action.

C. The Background of the Proposed Settlement

1. The Parties began preliminary negotiations for a settlement at an Early Neutral Evaluation Conference on February 7, 2008, before this Court. After significant discovery, the Parties participated in a full day mediation before the Honorable Gary Taylor (Retired) and arrived at an agreement in principle for settlement. The proposed settlement was reached only after extensive investigation and litigation in the Action, and was the result of a protracted mediation conducted by the Parties with the assistance of a professional mediator. The Parties negotiated the details of the proposed settlement over a period of seven months.

2. Plaintiff and Class Counsel maintain that the Action and the claims asserted therein are meritorious and that Plaintiff and Class Counsel would have prevailed at trial. Notwithstanding, Plaintiff and Class Counsel have agreed to settle the Action pursuant to the provisions of the Stipulation, after considering, among other things: (a) the substantial benefits to Plaintiff and the Class under the terms of the Stipulation; (b) the expense and risks of litigation, trial and appeal, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (c) the desirability of providing prompt and effective relief to Plaintiff and the Class.

3. Defendant denies any wrongdoing alleged in the pleadings in the Action. Defendant, however, considers it desirable to settle the Action because the proposed settlement will:

(a) provide substantial benefit to Clorox, including the avoidance of a protracted and expensive defense of the Action; (b) finally and fully resolve Plaintiff's and Class claims and the underlying matters; and (c) avoid the substantial burdens, uncertainties and risks inherent in any litigation.

D. Conditional Certification of Class.

Parties may settle a class action before class certification and stipulate that a defined class be conditionally certified for settlement purposes. See, e.g., Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) (overruled on other grounds). A conditionally-certified class must still satisfy Rule 23(a) and (b) requirements. See id. A court must look at these factors when considering class certification:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. Proc. 23(a). In addition, the plaintiff must establish one of the following: (1) there is a risk of inconsistent or unfair adjudication if parties proceed with separate actions; (2) the defendant acted on grounds generally applicable to the class, making injunctive or declaratory relief appropriate to the class as a whole; or (3) common questions of law or fact predominate and class resolution is superior to other available methods for fair and efficient adjudication of the controversy. Fed. R. Civ. Proc. 23(b).

1. The parties seek to certify the following class:

All persons or entities in the United States who purchased, used, or suffered any property damage from the use of Clorox Automatic Toilet Bowl Cleaner with Bleach from December 13, 2002, to _____ [the date notice to the class is first published].

2. From December 1, 2002 through February 29, 2009, Defendant sold approximately 146,894,272 units of the product. In California, Defendant sold approximately 18,938,000 units of the product from 2004 through April 16, 2009. Therefore, the numerosity requirement is satisfied as the class is so numerous that joinder of all members would be impracticable.

3. This class action is based upon allegations that the standard labeling language used on all CATBC product packages is a misrepresentation. The core question of whether the labeling language was a misrepresentation is common to the entire ...

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