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Rossi v. Whirlpool Corp.

United States District Court, E.D. California

June 27, 2016

KYLE DEI ROSSI and MARK LINTHICUM, on behalf of themselves and those similarly situated, Plaintiffs,
v.
WHIRLPOOL CORPORATION, Defendant.

          ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

          TROY L. NUNLEY UNITED STATES DISTRICT JUDGE

         On February 5, 2016, Plaintiffs Kyle Dei Rossi and Mark Linthicum (“Plaintiffs”), on behalf of themselves and the Settlement Class, as defined below, and Defendant Whirlpool Corporation (“Whirlpool”) (together, the “Parties”) executed a Settlement Agreement and Release of All Claims (“Agreement”). Pursuant to the Agreement, the Parties have jointly moved for entry of an order granting preliminary approval to the Settlement provided for in the Settlement Agreement (the “Settlement”). All defined terms in this Order (that is, all capitalized words or phrases) shall have the same definitions and meanings as those set forth in the Agreement.

         Having reviewed the Agreement and having considered the Parties’ submissions in support of preliminary approval of the Settlement, the Court now FINDS, CONCLUDES, AND ORDERS as follows:

         I. CERTIFICATION OF THE SETTLEMENT CLASS

         This Court takes note of its prior certification order of April 28, 2015, in which this Court certified a class of all persons who purchased KitchenAid-brand KSRG25FV** and KSRS25RV** model refrigerators in California. In doing so, this Court considered the allegations, information, arguments, and authorities provided by the Parties and found as follows: that the requirements of numerosity, commonality, typicality, and adequacy had been established for a California class; that the California class was ascertainable; and that questions of law and fact common to all Class Members predominated over questions affecting only individual members. For purposes of implementing this Agreement, and for no other purpose, this Court notes that Whirlpool has conditionally withdrawn its objections to the April 28, 2015 Order, and it has stipulated that it will not challenge, appeal, or otherwise oppose that prior order certifying the California class.

         The Agreement settles all Released Claims, as defined below, that have been or could have been brought on behalf of that class, here called the Settlement Class, defined to mean all residents of the State of California who (a) bought a new Class Refrigerator, (b) acquired a Class Refrigerator as part of the purchase or remodel of a home, or (c) received as a gift, from a donor meeting the requirements of either subsection (a) or subsection (b), a new Class Refrigerator not used by the donor or by anyone else after the donor bought or acquired the Class Refrigerator and before the donor gave the Class Refrigerator to the California resident.

         The Court appoints Plaintiffs Kyle Dei Rossi and Mark Linthicum as the Class Representatives of the Settlement Class. The Court appoints Scott A. Bursor, L. Timothy Fisher, and Annick M. Persinger of the law firm Bursor & Fisher, P.A., and Antonio Vozzolo of the law firm Faruqi & Faruqi, LLP as Class Counsel for the Settlement Class. The Court also appoints Kurtzman Carson Consultants, LLC (“KCC”) as Settlement Administrator.

         If for any reason the Agreement does not become effective, Whirlpool’s conditional withdrawal of its objections shall be null and void in its entirety, the Parties shall return to their respective positions in this Action as those positions existed immediately before the Parties executed the Agreement, and nothing stated in the Agreement or in this Order shall be deemed an admission or waiver of any kind by any of the Parties or used as evidence against, or over the objection of, any of the Parties for any purpose in this Action or in any other action or proceeding of any kind.

         II. PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT

         Whirlpool has at all times disputed, and continues to dispute, Plaintiffs’ allegations in this Action, denies any liability for any of the claims that have or could have been alleged by Plaintiffs or other members of the Settlement Class, and maintains that the Class Refrigerators were, at all relevant times, compliant with the Energy Star program’s standards for energy efficiency and marketed in accordance with the Energy Star program’s requirements.

         The Settlement requires Whirlpool to provide specified compensation to each Class Member who meets certain eligibility requirements and who timely submits a valid, completed Claim Form, with or without specified supporting documentation depending on whether the Class Member is a Prequalified Class Member or a Non-Prequalified Class Member, as set forth in the Agreement. All Class Members are entitled to elect to receive either a $55 cash payment, less any voluntary payment paid by Whirlpool through Whirlpool’s Voluntary Customer Satisfaction Program, or a 10% rebate of the purchase price of a New KitchenAid-brand Major Appliance, without any cap as to the maximum amount of the rebate.

         On a preliminary basis, therefore, taking into account (1) the defenses asserted by Whirlpool, (2) the risks to the members of the Settlement Class that Whirlpool would successfully defend against claims arising out of the facts and legal theories pled and asserted in this case, whether litigated by members of the Settlement Class themselves or on their behalf in a class action, and (3) the length of time that would be required for members of the Settlement Class, or any group of members of the Settlement Class, to obtain a final judgment through one or more trials and appeals, the Settlement appears fair, reasonable, and adequate. Further, the Parties reached the Settlement Agreement without reaching any agreement regarding the reasonable amount of attorneys’ fees and costs to be awarded to Class Counsel, which helps to confirm that the Settlement is the product of an arms-length negotiation process. For all these reasons, the Settlement falls within the appropriate range of possible approval and does not appear in any way to be the product of collusion.

         Accordingly, it is ORDERED and ADJUDGED that the Agreement and corresponding Settlement are hereby preliminarily approved.

         III. APPROVAL OF THE PREQUALIFIED NOTICE, THE “FAQ, ” THE PUBLICATION NOTICE, THE CLAIM FORM, AND THE PLANS FOR DISTRIBUTION AND DISSEMINATION OF THE SETTLEMENT NOTICES

         As provided for in the Agreement, the Parties have submitted: (i) a proposed Prequalified Notice to be mailed and emailed to Prequalified Class Members; (ii) a plan for distributing the Prequalified Notice to Prequalified Class Members; (iii) a proposed long-form settlement notice in the form of Frequently Asked Questions or “FAQ, ” which will be published on the Settlement Website and mailed to those Class Members who request a hardcopy of the Claim Form; (iv) a proposed Publication Notice; (v) a plan for the Publication Notice’s publication to provide additional notice to the Settlement Class, if necessary; (vi) a proposed Claim Form; (vii) a plan for allowing Class Members to file Claim Forms by email, U.S. Mail, or through the Settlement Website and for mailing a Claim Form to Class Members who contact the Settlement Administrator by telephone, mail, or email requesting a Claim Form be sent to them; and (viii) a plan for establishing a Settlement Website, with the FAQ and other ...


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