United States District Court, S.D. California
SHERRY HUNTER, on behalf of herself, all others similarly situated and the general public, Plaintiffs,
v.
NATURE'S WAY PRODUCTS, LCC, and SCHWABE NORTH AMERICA, INC., Defendants.
ORDER
Hon.
William Q. Hayes, United States District Court Judge.
The
matter pending before the Court is the Motion for Settlement
Final Approval, and for Attorneys' Fees, Costs, and
Incentive Award filed by Plaintiff Sherry Hunter. (ECF No.
116).
PROCEDURAL
BACKGROUND
On
January 28, 2016, Plaintiffs Sherry Hunter and Malia Levin,
on behalf of herself and all others similarly situated and
the general public, initiated this action by filing a Class
Action Complaint against Defendants Nature's Way
Products, LLC (“Nature's Way”) and Schwabe
North America, Inc. (“Schwabe”) in the Superior
Court of California, County of San Diego. (ECF No. 1-5 at
2-3). Plaintiff alleges that Defendants misleadingly market
Nature's Way coconut oil products as inherently healthy
and healthy alternatives to butter, margarine, shortening,
and other cooking oils. (ECF No. 1-5 at 3; ECF No. 96 at 2).
Plaintiff alleges that Nature's Way coconut oil products
are inherently unhealthy and less health options compared to
the alternatives. (ECF No. 1-5 at 3; ECF No. 96 at 2).
Plaintiff alleges that she was harmed as a result of her
reliance upon Defendants' misleading and unlawful claims
when purchasing Nature's Way coconut oil products. (ECF
No. 1-5 at 3; ECF No. 96 at 2). Plaintiff brings claims for
violations of the California Consumer Legal Remedies Act
(Cal. Civ. Code § 1750), violations of Unfair
Competition Law (Cal. Bus. & Prof. Code § 17200),
violations of False Advertising Law (Cal. Bus. & Prof.
Code § 17500), breach of express warranties (Cal. Com.
Code § 2313(1)), and breach of implied warranty of
merchantability (Cal. Com. Code § 2314). (ECF No. 1-5 at
3; ECF No. 96 at 2). Plaintiff seeks an order compelling
Defendants to cease marketing Nature's Way coconut oil
products using allegedly misleading and unlawful tactics; to
destroy all allegedly misleading, deceptive, and unlawful
materials; to conduct a corrective advertising campaign; to
restore amounts by which Defendants have been unjustly
enriched; and to pay restitution, damages, and attorneys'
fees. (ECF No. 1-5 at 3; ECF No. 96 at 2).
On
March 2, 2016, Defendants removed the action to this Court.
(ECF No. 1).
On
August 12, 2016, this Court issued an Order granting in part
and denying in part Defendants' Motion to Dismiss (ECF
No. 12) and denying Defendants' Motion to Strike (ECF No.
13). (ECF No. 28).
On
September 2, 2016, Defendants filed an Answer to the
Complaint. (ECF No. 31).
On
March 23, 2017, this Court issued an Order dismissing
Plaintiff Malia Levin's individual claims without
prejudice. (ECF No. 49).
On
January 9, 2018, this Court issued an Order denying
Plaintiff's Motion for Class Certification (ECF No. 60)
as moot; granting Plaintiff's Motions to File Documents
Under Seal (ECF Nos. 61 and 77); and granting Plaintiff's
Motion for Reconsideration (ECF No. 85). (ECF No. 90).
On
January 30, 2018, Plaintiff filed the First Amended Complaint
(“FAC”). (ECF No. 95). On February 12, 2018,
Plaintiff filed the Second Amended Complaint
(“SAC”). (ECF No. 96).
On
February 21, 2018, the Court held an Early Neutral Evaluation
during which the parties reached a settlement. (ECF No. 97).
On
February 26, 2018, Defendants filed an Answer to
Plaintiff's SAC. (ECF No. 98).
On July
3, 2018, this Court issued an Order granting the parties'
Joint Motion to Stay (ECF No. 103). (ECF No. 104). On June
27, 2019, this Court issued a Minute Entry lifting the stay.
(ECF No. 110).
On
August 30, 2019, this Court issued an Order granting
Plaintiff's Motion for Preliminary Approval of Class
Settlement (ECF No. 111). (ECF No. 113). On September 5,
2019, this Court issued an Amended Order granting
Plaintiff's Motion for Preliminary Approval of Class
Settlement. (ECF No. 115). In the Amended Order, this Court
preliminarily approved the settlement agreement;
provisionally certified the Class; appointed Plaintiff as
Class Representative; appointed The Law Office of Paul K.
Joseph, PC, and The Law Office of Jack Fitzgerald, PC as
Class Counsel; approved RG2[1] to act as Claims Administrator;
and approved the form and content of the Class Notice in the
form attached to the Settlement Agreement as Exhibit A.
Id. at 2-3.
On
November 15, 2019, Plaintiff filed a Motion for Settlement
Final Approval, and for Attorneys' Fees, Costs, and
Incentive Award. (ECF No. 116). On December 2, 2019,
Plaintiffs filed a Supplemental Declaration. (ECF No. 117).
RG/2 states that it has received zero valid requests to
opt-out as of December 2, 2019. Id. at 5. RG/2
states that “both RG/2 and the attorneys of record have
not received or been made aware of any objections to the
settlement” as of December 2, 2019. Id. On
December 5, 2019, Defendants filed Notice of Non-Opposition.
(ECF No. 118). On December 13, 2019 this Court held a final
approval hearing. (ECF No. 119). No Class member appeared.
TERMS
OF THE PROPOSED SETTLEMENT
I.
The Class
The
proposed settlement class (the “Class”) consists
of “all persons in the United States who purchased
during the Class Period, for personal or household use, any
Nature's Way coconut oil product bearing at least one of
the challenged labeling claims, and including specifically
the 16-ounce or 32-ounce jar of Nature's Way Extra Virgin
Coconut Oil, and any bottle of Nature's Way Liquid
Coconut Oil, including the 10-ounce and 20-ounce
bottles.” (ECF No. 116-1 at 9) (citing Settlement
Agreement ¶¶ 1.3, 1.10, Ex. 1 to Fitzgerald Decl.,
ECF No. 111-2 at 8, 9-10). The Class Period began on January
18, 2012 to August 30, 2019, the date this Court issued
preliminary approval. Id.
II.
Class Benefits
“For
a period of five years following Final Approval, Defendants
will not advertise (including in print, online, on Coconut
Oil Product labels or packaging, and in sales pitches or
public statements) the Nature's Way Coconut Oil Products
using the following terms and phrases, or substantially
similar terms or phrases: ‘Healthy'; ‘Ideal
for Exercise and Weight Loss Programs';
‘Recommendation: Take 1 tablespoon (14 g) up to 4 times
daily'; ‘Non-hydrogenated, no trans fat'
(unless the statement is made with the disclosures required
by the FDA).” Id. at 9-10 (citing Settlement
Agreement ¶ 2.2; Ex. 1 to Fitzgerald Decl., ECF No.
111-2 at 11). “Defendants have established a
non-reversionary $1, 850, 000 common fund to pay Class Member
claims and all Settlement expenses, namely notice and
administration, and any incentive award and attorneys'
fees and costs awarded by the Court. Id. at 10
(citing Settlement Agreement ¶ 2.3; Ex. 1 to Fitzgerald
Decl., ECF No. 111-2 at 11-12).
III.
Class Notice
“On
July 31, 2019, RG/2 caused to be served by Federal Express or
Certified Return Receipt Requested First-Claim mail, where
applicable, a Notice of Proposed Settlement to the United
States Attorney General and 57 State and Territory Attorney
Generals.” (Boub Decl. ¶ 4, ECF No. 116-5 at 2; Ex
A. to Boub Decl., ECF No. 116-5 at 7-193).
On
September 16, 2019, the website
www.natureswaycoconutoilsettlement.com went live. (Boub Decl.
¶ 5, ECF No. 116-5 at 3). “The
‘Homepage' contains a brief summary of the
Settlement and advises potential Class Members of their
rights under the Settlement.” Id. “The
‘Notice/Claim Form' page contains a pdf copy of the
Court-Ordered Notice and Settlement Claim Form.”
Id. “The ‘File a Claim' page []
[sic] contains a link to the Claims online filing
portal.” Id. “The ‘Court
Documents' page contains[: the] [sic] Initial Complaint,
[t]he First Amended Complaint, [t]he Second Amended
Complaint, [t]he Stipulation of the Class Action Settlement,
the Order Granting Motion for Preliminary Approval, and the
Amended Order Granting Motion for Preliminary
Approval.” Id. “The ‘Contact'
page contains the contact information of the Claims
Administrator and Plaintiffs' Counsel.”
Id.
On
September 16, 2019, RG/2 arranged for the launching of a
29-day media campaign. Id. at ¶ 6, ECF No.
116-5 at 3. The media plan consisted of
a) A Facebook campaign where potential Class Members could
click on ads posted in Facebook and associated platforms,
such as Instant Articles and Messenger. The clicked ad is
linked to the case website;
b) A banner ad campaign in which banner ads were created and
appeared on various sites based on topics being searched.
Class Members who saw the ads were able to click on the ad
and be linked directly to the case website;
c) Bing and Good Adwords pay per click campaigns in which
various search words/phrases produced an ad in which Class
Members could click and be linked to the case website.
Id., ECF No. 116-5 at 3-4; Ex B. to Boub Decl., ECF
No. 116-5 at 194-209.
RG/2
also arranged for the Short Form Notice to be published in
the San Diego Union-Tribune. (Boub Decl. ¶ 7, ECF No.
116-5 at 4; Ex C. to Boub Decl., ECF No. 116- 5 at 211-12).
“The Short Form Notice was published on September 16,
2019; September 23, 2019; September 30, 2019; and October 7,
2019.” (Boub Decl. ¶ 7, ECF No. 116-5 at 4).
IV.
Opt-Outs and Objections to Settlement
“The
Short Form Notice advised Class Members of their right to
exclude themselves from the Settlement, provided that their
request be postmarked by October 31, 2019.” (Boub Decl.
¶ 8, ECF No. 116-5 at 4). As of December 2, 2019,
“RG/2 has received 0 valid requests” to opt-out.
Id. (Boub Decl. ¶ 4, ECF No. 117 at 5).
“The
Short Form Notice advised Class Members of their right to
object to the Settlement, provided that their objection be
filed with the Court by November 25, 2019.” (Boub Decl.
¶ 9, ECF No. 116-5 at 4). As of December 2, 2019,
“both RG/2 and the attorneys of record have not
received or been ...