United States District Court, E.D. California
ALBA MORALES; LANIE COHEN; LINDA CLAYMAN; and KENNETH DREW, on behalf of themselves and all others similarly situated, Plaintiffs,
CONOPCO, INC., d/b/a UNILEVER, Defendant.
MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Alba Morales, Lanie Cohen, Linda Clayman, and Kenneth Drew
brought this putative class action against defendant Conopco,
Inc., d/b/a Unilever, asserting claims arising out of
defendant's alleged labeling of certain hair care
products as "TRESemmé Naturals" despite them
containing synthetic ingredients. Presently before the court
is plaintiffs' motion for preliminary approval of the
class action settlement. (Docket No. 57.)
Factual and Procedural Background
is a multinational consumer goods company whose products
include food, beverages, cleaning agents, and personal care
products, including the TRESemmé brand.
contend that defendant violated California's Unfair
Competition Law ("UCL"), Cal. Bus. & Prof. Code
§ 17200 et seq., California's Consumer Legal
Remedies Act ("CLRA"), Cal. Civ. Code § 1750
et seq., and various other state consumer protection laws.
(See Second Amended Complaint ("SAC") (Docket No.
30).) The parties litigated the case for nearly two years
before reaching a settlement agreement on February 5, 2016
before mediator Jonathan Marks. (Stipulation of Settlement
("Settlement Agreement") ¶¶ 3-10 (Docket
brought this lawsuit on behalf of a putative class of
consumers in the United States who have purchased
TRESemmé Naturals products. (Id. at 2-3.)
Plaintiffs now seek preliminary approval of the parties'
stipulated class-wide settlement, pursuant to Federal Rule of
Civil Procedure 23(e). (Id. at 4.)
23(e) provides that "[t]he claims, issues, or defenses
of a certified class may be settled . . . only with the
court's approval." Fed.R.Civ.P. 23(e).
"Approval under 23(e) involves a two-step process in
which the Court first determines whether a proposed class
action settlement deserves preliminary approval and then,
after notice is given to class members, whether final
approval is warranted." Nat'l Rural Telecomms.
Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal.
2004) (citing Manual for Complex Litig., Third, § 30.41
Order is the first step in that process and analyzes only
whether the proposed class action settlement deserves
preliminary approval. See Murillo v. Pac. Gas & Elec.
Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010). Preliminary
approval authorizes the parties to give notice to putative
class members of the settlement agreement and lays the
groundwork for a future fairness hearing, at which the court
will hear objections to (1) the treatment of this litigation
as a class action and (2) the terms of the settlement.
See id.; Diaz v. Trust Territory of Pac. Islands,
876 F.2d 1401, 1408 (9th Cir. 1989) (stating that a district
court's obligation when considering dismissal or
compromise of a class action includes holding a hearing to
"inquire into the terms and circumstances of any
dismissal or compromise to ensure that it is not collusive or
prejudicial"). The court will reach a final
determination as to whether the parties should be allowed to
settle the class action on their proposed terms after that
Ninth Circuit has declared a strong judicial policy favoring
settlement of class actions. Class Plaintiffs v. City
of Seattle, 955 F.2d 1268, 1276 (9th Cir.
1992). Nevertheless, where, as here, "the parties reach
a settlement agreement prior to class certification, courts
must peruse the proposed compromise to ratify both  the
propriety of the certification and  the fairness of the
settlement." Staton v. Boeing Co., 327 F.3d
938, 952 (9th Cir. 2003).
first part of this inquiry requires the court to "pay
‘undiluted, even heightened, attention' to class
certification requirements" because, unlike in a fully
litigated class action suit, the court "will lack the
opportunity . . . to adjust the class, informed by the
proceedings as they unfold." Amchem Prods. Inc. v.
Windsor, 521 U.S. 591, 620 (1997); see Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1019 (9th
Cir. 1998). The parties cannot "agree to certify a class
that clearly leaves any one requirement unfulfilled, "
and consequently the court cannot blindly rely on the fact
that the parties have stipulated that a class exists for
purposes of settlement. See Windsor, 521 U.S. at 621-22
(stating that courts cannot fail to apply the requirements of
Rule 23(a) and (b)).
second part of this inquiry obliges the court to
"carefully consider ‘whether a proposed settlement
is fundamentally fair, adequate, and reasonable, '
recognizing that ‘[i]t is the settlement taken as a
whole, rather than the individual component parts, that must
be examined for overall fairness . . . .'" Staton,
327 F.3d at 952 (quoting Hanlon, 150 F.3d at 1026); see also
Fed.R.Civ.P. 23(e) (outlining class action settlement
action will be certified only if it meets the four
prerequisites identified in Rule 23(a) and additionally fits
within one of the three subdivisions of Rule 23(b).
Fed.R.Civ.P. 23(a)-(b). Although a district court has
discretion in determining whether the moving party has
satisfied each Rule 23 requirement, the court must conduct a
rigorous inquiry before certifying a class. See Califano
v. Yamasaki, 442 U.S. 682, 701 (1979); Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 161 (1982).
23(a) Requirements Rule 23(a) restricts class actions to
(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. P. 23(a). These requirements are more commonly
referred to as numerosity, commonality, typicality, and
adequacy of representation.
the first requirement, "[a] proposed class of at least
forty members presumptively satisfies the numerosity
requirement." Avilez v. Pinkerton Gov't
Servs., 286 F.R.D. 450, 456 (C.D. Cal. 2012); see also,
e.g., Collins v. Cargill Meat Solutions
Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wanger, J.)
("Courts have routinely found the numerosity requirement
satisfied when the class comprises 40 or more
members."). Here, plaintiffs estimate that the proposed
class will contain thousands of members because thousands of
people purchased TRESemmé Naturals products. (Kindall
Decl. ¶ 21 (Docket No. 57-1).) This easily satisfies the
requires that the class members' claims "depend upon
a common contention" that is "capable of classwide
resolution--which means 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, 131 S.Ct. 2541, 2550 (2011).
"[A]ll questions of fact and law need not be common to
satisfy the rule, " and 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." Hanlon, 150 F.3d at
proposed class includes "all individuals in the United
States who purchased the following TRESemmé Naturals
products: (a) Nourishing Moisture Shampoo; (b) Nourishing
Moisture Conditioner; (c) Radiant Volume Shampoo; (d) Radiant
Volume Conditioner; (e) Vibrantly Smooth Shampoo; and (f)
Vibrantly Smooth Conditioner" while they were still
being sold. (Pls.' Mot. for Prelim. Approval
("Pls.' Mot.") at 2, 18 (Docket No. 57).) The
class would be comprised of individuals alleging, like the
named plaintiffs, that they purchased a Unilever product
labeled "TRESemmé Naturals" that contained
synthetic ingredients in violation of state consumer
protection laws. Due to the common core of salient facts and
legal contentions, the proposed class meets the commonality
requires that named plaintiffs have claims "reasonably
coextensive with those of absent class members, " but
their claims do not have to be "substantially
identical." Hanlon, 150 F.3d at 1020. The test for
typicality "is whether other members have the same or
similar injury, whether the action is based on conduct which
is not unique to the named plaintiffs, and whether other
class members have been injured by the same course of
conduct." Hanon v. Dataproducts Corp., 976 F.2d
497, 508 (9th Cir. 1992) (citation omitted).
putative class members allege a simple set of facts that is
essentially identical to those alleged by the named
plaintiffs. Both the class members and the named plaintiffs
were allegedly injured by paying a premium for the
TRESemmé Naturals products over comparable products
that are not represented to be natural. (SAC ¶ 63.)
Although class members may have purchased varying amounts of
the products and therefore have claims for different amounts,
the class members' claims appear to be reasonably
coextensive with those of the named plaintiffs. Moreover, the
differences in amounts purchased are taken into account by
the settlement agreement's "Plan of Allocation,
" which allots payments based on ...