United States District Court, N.D. California
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND GRANTING MOTION FOR ATTORNEYS' FEES
AND COSTS RE: DKT. NOS. 54, 55
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
the Court are Plaintiff Victor Guttman’s
(“Plaintiff”) motions for final approval of class
action settlement, Dkt. No. 54 (“Mot.”), and for
attorneys’ fees and costs, Dkt. No. 55 (“Fees
Mot.”). Defendant Ole Mexican Foods, Inc.
(“Defendant”) does not oppose either motion.
reasons set forth below, the Court GRANTS Plaintiff’s
motions for final approval of class action settlement and for
attorneys’ fees and costs.
filed this food-labeling class action on October 31, 2014.
Dkt. No. 1 (“Compl.”). Plaintiff alleges that
Defendant failed to properly disclose that its “Xtreme
Wellness” line of tortillas contain
partially-hydrogenated oil, an artificial trans-fat food
additive. Id. ¶¶ 5, 9, 11. On that basis,
Plaintiff asserts six causes of action against Defendant for
violating California’s unfair competition law (Cal.
Bus. & Prof. Code § 17200, et seq.)
(“UCL”), False Advertising Law, (Cal. Bus. &
Prof. Code § 17500, et seq.)
(“FAL”), and Consumer Legal Remedies Act (Cal.
Civ. Code § 1750, et seq.)
(“CLRA”), and for breaching express warranties.
Id. ¶¶ 123-76.
filed a motion to dismiss on federal preemption grounds, Dkt.
No. 12, and a motion to stay discovery pending resolution of
that motion, Dkt. No. 24. But Defendant withdrew both after
new case law emerged from the Ninth Circuit addressing the
preemption issue. Dkt. No. 37. The parties agreed to settle
the case on a classwide basis shortly thereafter. Dkt. No.
41. Before the parties ceased active litigation, Plaintiff
served some written discovery on Defendant, to which
Defendant served objections and responses. Mot. at 10.
filed a motion for preliminary approval of the class action
settlement on July 2, 2015. Dkt. No. 48. The proposed
settlement would enjoin Defendant from using any
partially-hydrogenated oils in their Xtreme Wellness line of
tortillas for a period of ten years. Id. at 2. In
exchange, the putative class would release their claims
against Defendant regarding, among other things, the
manufacturing, advertising, sale, labeling, and the
ingredients of these tortilla products, excepting personal
injury claims. Id. Defendant agreed to pay for class
notice, which included: (1) publishing a long-form class
notice in USA Today; (2) displaying banner
advertisements on Facebook (at least 25, 000 times); and (3)
creating a bilingual website that provided the settlement
agreement and other case-related documents. Id. And,
upon final approval, the parties agreed that Plaintiff could
seek up to $1, 800 as an incentive and Plaintiff’s
counsel could seek up to $85, 000 in fees and costs without
opposition from Defendant. Id. The Court granted
preliminary approval, provisionally certifying the proposed
nationwide injunctive-relief class under Federal Rule of
Civil Procedure 23(b)(2) and directing class notice as agreed
by the parties. Dkt. No. 52.
December 31, 2016, Plaintiff filed the instant motions for
final approval of class action settlement and for
attorneys’ fees and costs. In his final approval
motion, Plaintiff represents that the class notice program
was implemented as the Court directed. Mot. at 5-6. The
settlement administrator received no objections to the
proposed settlement from class members. Dkt. No. 56.
Court held a final fairness hearing on February 11, 2016.
Dkt. No. 58. At the hearing, no class members objected,
commented, or otherwise appeared. The Court took the matter
under submission, but also ordered that: (1) Defendant file a
declaration confirming that the Facebook component of the
notice plan was performed, which was not apparent from the
moving papers; and (2) Plaintiff file a declaration setting
forth what Plaintiff did to assist this case and the hours he
spent doing so. Id. Both declarations were timely
filed as requested. Dkt. Nos. 59 & 60.
Motion for Final Approval of Class Action Settlement
Court now considers whether final approval of the proposed
class action settlement is appropriate. Finding that the
parties performed the class notice program as directed and
that there were no objections to the proposed settlement, the
Court grants final approval.
Adequacy of Class Notice
Rule of Civil Procedure 23(e) governs class action
settlements, including notice. When any certified class
settles its claims, courts “must direct notice in a
reasonable manner to all class members who would be bound by
the proposal.” Fed.R.Civ.P. 23(e)(1); see also
William B. Rubenstein, Newberg on Class Actions § 4:36
(5th ed. rev. June 2016) (“Rule 23(c) makes notice of a
class certification decision discretionary [for Rule
23(b)(2) class actions], but Rule 23(e) requires that (b)(2)
class members receive notice of any proposed
settlement[.]”) (emphasis original). Additionally,
Rule 23(h) requires that class members receive notice of any
claim for an award of attorneys’ fees and costs.
Fed.R.Civ.P. 23(h)(1); see also Rubenstein,
supra, § 4:36.
order granting preliminary approval, the Court directed a
three-part notice plan. That plan included: (1) publishing a
long-form, one-time class notice in USA Today; (2)
displaying banner advertisements on Facebook at least 25, 000
times; and (3) creating a bilingual website that provided the
settlement agreement and other case-related documents to
interested persons. Id. Plaintiff’s counsel
has submitted a declaration attesting that the newspaper
notice was published and that the settlement website was
properly created. Dkt. No. 54-1 ¶¶ 3, 5-8. Rust
Consulting, the settlement administrator, has also submitted
a declaration, attesting that the Facebook notice was
published in the manner and frequency directed. Dkt. No. 60.
The Court finds that the class notice delivered complied with
the preliminary approval order, Rule 23(e), and Rule 23(h).
Fairness, Reasonableness, and Adequacy of Settlement
Rule of Civil Procedure 23(e) requires that “[t]he
claims, issues, or defenses of a certified class may be
settled . . . only with the court’s approval.”
Courts may approve of a class action settlement “only
after a hearing and on finding that it is fair, reasonable,
and adequate.” Fed.R.Civ.P. 23(e)(2); Hanlon v.