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Kumar v. Salov North America Corp.

United States District Court, N.D. California

July 7, 2017

Rohini Kumar, individually and on behalf of the general public and those similarly situated, Plaintiff,
Salov North America Corp., Defendants.


          Yvonne Gonzalez Rogers United States District Court Judge

         Plaintiff Rohini Kumar (“Plaintiff”) has moved the Court for final approval of a proposed class action settlement with defendant Salov North America Corporation (“Salov”), the terms and conditions of which are set forth in the Settlement Agreement filed with the Court on December 30, 2016.[1] On January 18, 2017, the Court granted Kumar's motion to approve the settlement preliminarily, conditionally certify the settlement class, appoint Kumar as class representative and her attorneys as class counsel, and direct that notice of the proposed settlement be disseminated to class members. (Dkt. No. 151.) Kumar thereafter filed the instant motion for final approval of the settlement, along with an award of attorneys' fees, costs, and an incentive payment to the class representative. (Dkt. No. 154.)

         Three individuals filed objections to the settlement: Pamela Sweeney and Bradley Griffin, both self-represented, and Theodore Frank, represented by William Chamberlain of the Competitive Enterprise Institute's Center for Class Action Fairness. (Dkt. No. 155, 157, 160.) The parties responded to the objections. (Dkt. No. 161, 162.)

         The Court held a hearing on May 30, 2017, and heard arguments from the parties and from Objector Theodore Frank, through his counsel.

         Having considered the briefing, the terms of the settlement agreement, the objections and response thereto, the arguments of counsel, and the other matters on file in this action, the Court Grants the motion for final approval. The Court finds the settlement fair, adequate, and reasonable. The provisional appointments of the class representative and class counsel are confirmed.

         The Application for Attorneys' Fees, Costs, and Incentive Awards is Granted. The Court Orders that Salov shall pay $874, 231.80 in attorneys' fees and $108, 268.20 in litigation costs to class counsel, and a $2, 500.00 incentive award to the class representative and named plaintiff, Rohini Kumar.

         I. Procedural History

         A. Complaint and Class Certification

         On March 21, 2014, Kumar filed a complaint against Salov, in which Kumar alleged that Salov had deceptively marketed and sold its Filippo Berio brand of olive oil with the representation “Imported from Italy” on the front label, although the back label stated that most of the oil was extracted in countries other than Italy from olives grown in those other countries. Kumar further alleged that, by marketing the Products as “Imported from Italy, ” Salov caused people to purchase the Products who would not otherwise have done so, and that the Products were sold at a higher retail price than they would have been sold without the misstatements.

         On January 20, 2016, Kumar moved to certify a class of all purchasers in California of Filippo Berio olive oil between May 30, 2010 and August 31, 2015, except purchases for purpose of resale, which Salov opposed.[2] On July 15, 2016, the Court certified a class of “All purchasers in California of liquid Filippo Berio brand olive oil of any grade except ‘Organic' between May 23, 2010 and June 30, 2015” (the “Certified California Class”). (Dkt. No. 127.)

         B. Settlement Agreement

         Following certification of the California Class, the Parties agreed to mediation before an experienced mediator, Randall Wulff, which ultimately led to the instant settlement.

         Pursuant to the terms of the Settlement Agreement, and with leave of this Court, Kumar filed the operative first amended complaint, amending the claims to be stated as claims for false advertising under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et. seq.; common law fraud, deceit, and misrepresentation; and violations of the New Jersey Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14, et seq., and amending the class definition to include “All natural persons in the United States who purchased Filippo Berio brand olive oil of any grade except ‘Organic' between May 23, 2010, and June 30, 2015, except for purposes of resale” (“Nationwide Class”). Kumar sought to recover, on behalf of the Nationwide Class, the dollar amount of the “premium” price that she contended was attributable to the alleged misrepresentations.

         Under the Settlement Agreement, members of the Nationwide Class may file a claim for each bottle or can of Filippo Berio Robusto Extra Virgin Olive Oil, Filippo Berio Extra Virgin Olive Oil, Filippo Berio Delicato Extra Virgin Olive Oil, Filippo Berio Organic Extra Virgin Olive Oil, Filippo Berio Olive Oil, or Filippo Berio Light Tasting Olive Oil (collectively, the “Products”) purchased between May 23, 2010 and June 30, 2015. Class members who file a timely claim receive a cash payment of $0.50 for each Product purchase during the class period, with a guaranteed minimum payment of $2.00 for any Household that submits a Valid Claim. There is no cap on the total amount paid to the class member for claimed purchases that are corroborated by Proof of Purchase.

         However, a maximum of $5.00 shall be paid to any Household for claimed purchases that are not corroborated by Proof of Purchase. Salov had the right to terminate the settlement if the total costs of notice, administration, and payment of valid claims exceeded $5 million. In addition, and as a result of the instant Litigation, Salov removed the phrase “Imported from Italy” from all Products imported into the United States, and it replaced that phrase with the word “Imported.” As part of the Settlement Agreement, Salov agreed to maintain these practices for at least three years after the Effective Date of the Settlement Agreement. Kumar's economics expert, Colin Weir, estimated the value of these practice changes to be approximately $19.9 million using a hedonic regression model.

         Finally, the Settlement Agreement provides that Kumar may seek an award of up to $982, 500.00 in attorneys' fees and costs, and up to $2, 500 as an incentive award.

         C. Class Notice and Claims Administration

         The Settlement Agreement is being administered by Heffler Claims Group (“Heffler”). Following the Court's preliminary approval and conditional certification of the nationwide settlement, Heffler established a settlement website (the “Settlement Website”) at, including the settlement notices, the procedures for class members to submit claims or exclude themselves, a contact information page that includes address and telephone numbers for the claim administrator and the parties, the Settlement Agreement, the signed order of preliminary approval, online and printable versions of the claim form and the opt out forms, answers to frequently asked questions, and a Product list. In addition, the motion for final approval and the application for attorneys' fees, costs, and incentive awards were placed on the website after they were filed. The claim administrator also operated a toll-free number for class member inquiries.

         Notice was published in multiple media, all of which referred class members to the settlement website. (Dkt. No. 154-9, Finegan Decl. ¶¶ 7-17 & Exh. A-E; Dkt. No. 161-5, Supp. Finegan Decl. ¶¶ 3-6.) Half-page ads were published in the March 17, 2017 print version of People magazine and the print version of Good Housekeeping that went on the market on March 14, 2017. (Dkt. No. 154-9, Finegan Decl. ¶¶ 8-9, Exh. A.) In addition, notice was published in two press releases issued through PR Newswire's USA 1 network, which distributes broadly to thousands of media outlets including newspapers, national wire services, television and radio station media websites. (Id. ¶ 17, Exh. D.) Online Notice comprised of 165.5 million impressions that were displayed on a variety of websites (both mobile and desktop) targeted at likely members of the Settlement Class based on demographic data, including to persons believed to have purchased Filippo Berio olive oil products, likely purchasers of olive oil in general, and adults over the age of 45, who are a primary demographic among Settlement Class Members. These ads were displayed on Facebook, Yahoo, AOL, and multiple other websites known to reach those demographic groups. The published notices pointed to, and all the online notices hyperlinked to, the Settlement Website. Kumar's counsel additionally made efforts to publicize the settlement by having the “Top Class Actions” website highlight the settlement, and by working with the claim administrator to retarget advertisements to demographics that were most responsive to the advertisements and making claims, and to direct targeting the IP addresses of individuals who visited the settlement website but had not yet filed a claim. (Id. ¶ 15.) In total, the notice program is estimated to have reached at least 71% of the settlement class members, and 76% of Filippo Berio principal shoppers, an estimated average of 2.6 times each. (Id. ¶¶ 12-13, 25.)

         Class members were given until May 2, 2017, to object to or exclude themselves from the Proposed Settlement. Out of millions of class members, a total of 20 persons filed timely requests to opt out of the Settlement Class. A total of 65, 048 claims were received by the administrator, of which 53, 030 were not duplicative (i.e., from unique households) and accepted as valid. The valid claims represented purchases of 406, 947 bottles of the Products, and the total value of the distribution to claimants will be $210, 985.00.

         II. Applicable Standards

         A certified class action may not be settled without court approval. Fed.R.Civ.P. 23(e). In order for approval to be granted, the court must find that the settlement is “fair, reasonable, and adequate, ” after holding a hearing on the matter. Fed.R.Civ.P. 23(e)(2). The parties seeking approval must file identify the details of any agreement made in connection with the proposed settlement. Fed.R.Civ.P. 23(e)(3). The Court must afford any person the opportunity to request exclusion from the class and to object to the terms of the settlement. Fed.R.Civ.P. 23(e)(4), (5).

         Attorneys' fees and costs may be awarded in a certified class action under Federal Rule of Civil Procedure 23(h). Such fees must be found “fair, reasonable, and adequate” in order to be approved. Fed.R.Civ.P. 23(e); Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To “avoid abdicating its responsibility to review the agreement for the protection of the class, a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement agreement.” Id. at 963. “[T]he members of the class retain an interest in assuring that the fees to be paid class counsel are not unreasonably high, ” since unreasonably high fees are a likely indicator that the class has obtained less monetary or injunctive relief than they might otherwise. Id. at 964.

         III. Objections To Final ...

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