Gregory Arthur v. United Industries Corporation

1 JS-6 — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 MICHAEL GRAVES, KEITH GREN, ) Case No. 2:17-cv-06983-CAS-SKx and MICHAEL WHEALEN, on behalf of ) 12 themselves, all others similarly situated, ) and the general public, ) CLASS ACTION 13 ) 14 Plaintiffs, ) [PROPOSED] JUDGMENT AND ) vs. ORDER (1.) GRANTING FINAL 1 15 6 ) ) ) A SEP TP TR LO EV MA EL N O TF , (C 2L .) A AS WS AA RC DT II NO GN 17 ) CLASS COUNSEL FEES AND UNITED INDUSTRIES ) EXPENSES, (3.) AWARDING 18 CORPORATION, ) ) CLASS REPRESENTATIVES 19 Defendant. ) INCENTIVE AWARDS, AND (4.) ) DISMISSING ACTION WITH 20 ) PREJUDICE — 21 — ) ) 22 ) [REDACTED] — 23 — 24 Plaintiffs Michael Graves, Keith Gren, and Michael Whealen (“Plaintiffs”), 25 individually and on behalf of the Class defined below, move this Court for final 26 approval of the proposed settlement in the above-captioned action. This Court has 27 reviewed and considered Plaintiffs’ Unopposed Motion for Final Approval of 28 Class Action Settlement and supporting materials along with Plaintiffs’ Motion for 1 Attorneys’ Fees, Costs, and Incentive Awards (“Fee Motion”) and supporting 2 materials. Now, having fully considered the record and the requirements of law, this 3 Court orders that the Motion for Final Approval and Fee Motion is GRANTED as 4 set forth below. 5 IT IS THIS 24TH DAY OF FEBRUARY, 2020, THE COURT 6 ORDERED that the settlement (including all terms of the Settlement Agreement 7 and exhibits thereto) is hereby GRANTED FINAL APPROVAL. The Court 8 further finds and orders as follows: 9 I. BACKGROUND 10 On September 21, 2017, original plaintiff Gregory Arthur (“Arthur”) filed this 11 putative class action alleging violations of consumer protection laws against 12 Defendant and on November 27, 2017, Arthur filed a First Amended Class Action 13 Complaint. (ECF Nos. 1, 16). The First Amended Complaint alleged that the “Makes 14 Up To __ Gallons” representation on the Spectracide® Concentrate Products is 15 deceptive because UIC fails to disclose that “the Spectracide Concentrates were in 16 fact only capable of making a fraction of the number of gallons represented when 17 diluted to the same strength as ‘Ready-to-use’ Spectracide according to UIC’s own 18 instructions.” (Id. at ¶ 16). 19 On January 12, 2018, UIC moved to dismiss Arthur’s First Amended 20 Complaint (ECF No. 22). Then, on January 15, 2018, Arthur filed a Motion for Class 21 Certification and to appoint class counsel. (ECF No. 23). On March 23, 2018, the 22 Court entered an Order granting in part and denying in part UIC’s Motion to Dismiss 23 Arthur’s First Amended Complaint. (ECF No. 34). The Court dismissed Arthur’s 24 request for injunctive relief, but granted him leave to amend to file a Second 25 Amended Complaint. (ECF No. 34). On April 16, 2018, Arthur filed his Second 26 Amended Complaint (ECF No. 39), which UIC answered on April 30, 2018 (ECF 27 No. 40). On May 17, 2018, the Court entered an Order denying Arthur’s Motion for 28 / / / 1 Class Certification without prejudice, holding that Arthur could not adequately 2 represent the putative class. (ECF No. 47). 3 On June 25, 2018, Arthur and UIC filed a Joint Stipulation to dismiss Arthur 4 from the Litigation, for leave to substitute Michael Graves and Keith Gren as 5 plaintiffs and putative class representatives, and for leave for Graves and Gren to 6 file a Third Amended Complaint. (ECF No. 53). On June 26, 2018, the Court entered 7 an Order substituting Graves and Gren as named plaintiffs and proposed class 8 representatives, dismissing Arthur from the Litigation, and granting Graves and 9 Gren leave to file a Third Amended Complaint. (ECF No. 54). On June 28, 2018, 10 Graves and Gren filed their Third Amended Class Action Complaint against UIC 11 (ECF No. 55), which UIC answered on July 19, 2018. (ECF No. 59). 12 On July 12, 2018, the Court entered an Order staying the Litigation pursuant 13 to a Joint Stipulation filed by Graves, Gren, and UIC seeking time to allow them to 14 engage in settlement discussions (ECF No. 58). On September 7, 2018, Michael 15 Whealen sent UIC a consumer notice and demand letter on behalf of himself and a 16 proposed nationwide class concerning the Products. On May 15, Class Counsel filed 17 a Fourth Amended Complaint adding Whealen as a named Plaintiff in addition to 18 Graves and Gren. (ECF No. 63). The Fourth Amended Complaint also adds a cause 19 of action under the Missouri Merchandising Practices Act, Mo. Rev. Stat. 20 §§ 407.010, et seq. in addition to causes of action under California’s consumer 21 protection laws. (ECF No. 63 at ¶¶ 52-58). 22 Plaintiffs and UIC have engaged in substantial discovery. On October 26, 23 2017, Arthur served a first set of Interrogatories and a first set of Request for 24 Production of Documents on UIC. In exchange for Arthur’s agreement to extend 25 UIC’s time to serve written responses and objections, UIC produced several 26 documents that were crucial to Arthur’s claims in the litigation including the 27 suggested retail prices for the Products, annual sales of the Products, and Product 28 labels that were in use during the class period. On February 16, 2018, UIC served 1 objections and responses to Arthur’s discovery requests. UIC also produced a second 2 batch of documents relating to Plaintiffs’ claims, including communications with the 3 Environmental Protection Agency (“EPA”) relating to the labels of the Products. 4 Class Counsel sent a meet and confer letter to UIC on March 23, 2018 regarding 5 remaining deficiencies with its written discovery responses. Following extensive 6 meet and confer efforts, the Parties reached an agreement on the scope of Plaintiff’s 7 discovery requests. 8 On January 26, 2018, UIC served a deposition notice on Gregory Arthur that 9 included several document requests. On January 31, 2018, Arthur served objections 10 and responses to UIC’s document requests. On February 2, 2018, UIC then took the 11 deposition of Gregory Arthur. In support of Arthur’s Motion for Class Certification, 12 Class Counsel submitted an expert report from Charlene L. Podlipna, CPA detailing 13 a proposed class wide damages model. On January 26, 2018, UIC served a Notice 14 of Deposition Duces Tecum on Ms. Podlipna that contained several document 15 requests. On February 14, 2018, Class Counsel served objections and responses to 16 the document requests that were served on Ms. Podlipna. On February 16, 2018, 17 UIC took the deposition of Ms. Podlipna on topics relating to her expert opinion and 18 report. After Plaintiffs Graves and Gren filed their Third Amended Complaint, UIC 19 promptly began pursuing discovery from the new named Plaintiffs. Marron Decl., ¶ 20 9. On June 29, 2018, UIC served a Notice of Deposition Duces Tecum on Plaintiff 21 Gren that contained several document requests. UIC then took the deposition of 22 Plaintiff Keith Gren on July 12, 2018. Plaintiff Gren’s deposition lasted more than 23 five hours. 24 Following Plaintiff Gren’s deposition, the Parties began engaging in 25 preliminary settlement discussions. During the course of several months the Parties 26 engaged in hard-fought settlement negotiations that resulted in the Settlement 27 Agreement. The several months that it took to work out significant details and 28 vigorous disagreements between the parties demonstrate that this proposed 1 resolution was the product of heavily disputed and arm’s length negotiation. 2 On June 3, 2019, Plaintiffs filed an Unopposed Motion for Preliminary 3 Approval of the class action settlement with Defendant. (ECF No. 64-1). On June 4 27, 2019, the Court entered an Order Denying Plaintiffs’ Motion for Preliminary 5 Approval Without Prejudice, and ordered Plaintiffs to file an amended motion to 6 address the requirements of Rule 23(e)(3). (ECF No. 65). On August 19, 2019, 7 Plaintiffs filed a Renewed Motion for Preliminary Approval of the class action 8 settlement, which the Court granted on September 18, 2019. (ECF Nos. 71, 77). In 9 its preliminary approval order, the Court conditionally certified the nationwide 10 settlement class noting that the requirement of Federal Rules of Civil Procedure 11 23(a) and 23(b)(3) had been satisfied. (ECF No. 77 at 12-18). The Court also 12 preliminarily approved the settlement noting that the relevant factors weighed in 13 favor of approval. (ECF No. 77 at 4-12). 14 II. SUMMARY OF SETTLEMENT 15 Plaintiffs now move for final approval of a Settlement Class defined as 16 follows: All persons residing in the United States who during the Class Period1 — 17 — purchased in any state, for personal or household use and not for resale 18 or distribution, any of the Products.2, 3 19 The Settlement Agreement provides that UIC will pay $2,500,000.00 into a 20 settlement fund. Agreement at § 7.4. This fund will be used, among other things, to 21 pay authorized claims to the Settlement Class Members, to pay the costs of — 22 — 1 The term “Class Period” means September 21, 2013 to the date on which the 23 Notice is disseminated to the Settlement Class. Agreement at § 2.7. 24 2 The term “Products” means UIC’s herbicide products that are (a) sold under the “Spectracide®” tradename and (b) are sold in a “concentrate” product form (in 25 other words, designed to be manually mixed by consumers with water prior to use on targeted vegetation). Agreement at § 2.20. — 26 — — 27 — 3 The Settlement Class specifically excludes (1) any judicial officer presiding over the Litigation, (2) UIC and Released Parties, and each of their current or former 28 officers, directors, and employees, (3) legal representatives, successors, or assigns of any such excluded person, and (4) any person who properly executes and files a timely Request for Exclusion. Ageement at § 2.26. 1 settlement administration and notice to the Class Members, to pay Class Counsel’s 2 fees and expenses, and to pay incentive awards to the named Plaintiffs. Agreement 3 at § 7.6. For Authorized Claimants, UIC will provide $6.25 in cash from the 4 Settlement Fund for each Claim submitted by a household, with a limit of four (4) 5 Claims per household (total payable per household in no event to exceed $25, unless 6 distribution is increased pro rata). Agreement at § 7.2.1. The settlement provides for 7 a pro rata reduction if the claims exceed the amount in the settlement fund 8 (Agreement at § 7.2.3) or a pro rata increase if the settlement fund is not exhausted. 9 Agreement at § 7.2.3. If after all accepted Claims (plus other authorized fees, costs 10 and expenses) are paid and money remains in the Settlement Fund after pro rata 11 distribution to Authorized Claimants, any remaining settlement funds thereafter will 12 be awarded cy pres to the National Advertising Division of the Better Business 13 Bureau. 14 In addition to monetary relief, UIC agrees to the following injunctive relief: 15 If, with respect to any Product manufactured by UIC after June 1, 2020, UIC elects 16 to state on its Product label that such Product "Makes Up to __ Gallons" of end-use 17 herbicide, Defendant shall include on such labeling, mixing directions that are 18 acceptable to EPA-equivalent agencies of the State(s) in which the Product is 19 registered for sale (such acceptability being deemed by virtue of such agency(ies) 20 registration of such Product). The ultimate timing and content of any label changes 21 shall be at the sole discretion of UIC. Agreement at § 7.3. 22 III. NOTICE AND CLAIMS PROCESS 23 The Court finds that the Class has received the best notice practicable and that 24 the notice complies with due process requirements. The Parties’ selection and 25 retention of Classaura LLC as the Notice Administrator was reasonable and 26 appropriate. Based on the Declaration of Gajan Retnasaba, the Court hereby finds 27 that the Settlement Notices were published to the Class Members substantially in the 28 form and manner approved by the Court in its Preliminary Approval Order. The 1 Settlement Notices provided fair, effective and the best practicable notice to the 2 Class of the Settlement and the terms thereof. The Notices also informed the Class 3 of Plaintiff’s intent to seek attorneys’ fees, costs, and incentive payments, and set 4 forth the date, time, and place of the Fairness Hearing and Class Members’ rights to 5 object to the Settlement or Fee Motion and to appear at the Fairness Hearing. The 6 Court further finds that the Settlement afforded Class members a reasonable period 7 of time to exercise such rights. See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 8 155472, at *82 (C.D. Cal. Nov. 23, 2011) (class members’ deadline to object or opt 9 out must arise after class counsel’s fee motion is filed); In re Mercury Interactive 10 Corp. Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010) (same). The Settlement Notices 11 fully satisfied all notice requirements under the law, including the Federal Rules of 12 Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ. 13 Code § 1781, and all due process rights under the U.S. Constitution and California 14 Constitutions. The Court also finds that Defendant has satisfied all notice 15 requirements of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715 , 16 as attested to by the Retnasaba Declaration. The Court has received no objection or 17 response to the Settlement agreement by any federal or state official, including any 18 recipient of the foregoing notices. 19 To date, Classaura has received 84,572 claim forms from prospective class 20 members. Out of the total claim forms received, Classaura has found 16,605 claim 21 forms to be invalid due to being duplicative or not meeting the settlement criteria. 22 Classaura estimates that there will be approximately 67,967 valid claim forms. 23 Settlement Class members are eligible to request payment for up to four purchases 24 per household on their claim forms. The average claim form reported 3.6 purchases. 25 Thus, Classaura estimates that the total number of valid claims that will be paid is 26 248,042. In addition, there have been no requests for exclusion from the settlement 27 and no class members have objected to the settlement. — 28 — 1 IV. APPROVAL OF CLASS ACTION SETTLEMENT 2 Approval of a proposed class action settlement is governed by Federal Rule 3 of Civil Procedure 23(e). “[T]he 2018 amendment to Rule 23(e) establishes core 4 factors district courts must consider when evaluating a request to approve a proposed 5 settlement.” Zamora Jordan v. Nationstar Mortg., LLC, No. 2:14-CV-0175-TOR, — 6 — 2019 WL 1966112 , at *2 (E.D. Wash. May 2, 2019). 7 Rule 23(e) now provides that the Court may approve a class action settlement 8 “only after a hearing and only on a finding that it is fair, reasonable, and adequate 9 after considering whether: 10 (A) the class representatives and class counsel have adequately represented 11 the class; 12 (B) the proposal was negotiated at arm's length; 13 (C) the relief provided for the class is adequate, taking into account: 14 (i) the costs, risks, and delay of trial and appeal; 15 (ii) the effectiveness of any proposed method of distributing relief to 16 the class, including the method of processing class-member claims; 17 (iii) the terms of any proposed award of attorney's fees, including 18 timing of payment; and 19 (iv) any agreement required to be identified under Rule 23(e)(3); and 20 (D) the proposal treats class members equitably relative to each other.” 21 Fed. R. Civ. P. 23(e)(2). 22 “Under Rule 23(e), both its prior version and as amended, fairness, 23 reasonableness, and adequacy are the touchstones for approval of a class-action 24 settlement.” Zamora, 2019 WL 1966112 , at *2. “The purpose of the amendment to 25 Rule 23(e)(2) is establish [sic] a consistent set of approval factors to be applied 26 uniformly in every circuit, without displacing the various lists of additional approval 27 factors the circuit courts have created over the past several decades.” Id. Factors that 28 the Ninth Circuit have typically considered include (1) the strength of plaintiffs’ 1 || case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) 2 || the risk of maintaining class action status throughout the trial; (4) the amount offered 3 |{1n settlement; (5) the extent of discovery completed and the stage of the proceedings; 4 ||and (6) the experience and views of counsel. Hanlon v. Chrysler Corp., 150 F.3d 5 || 1011, 1026 (9th Cir. 1998); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 , 575 6 || (9th Cir. 2004). 7 “While the Ninth Circuit has yet to address the amendment to Rule 23(e)(2) . 8 ||. . the factors in amended Rule 23(e)(2) generally encompass the list of relevant 9 □□ factors previously identified by the Ninth Circuit.” Zamora, 2019 WL 1966112 , at 10 || *2 (alteration in original). Indeed, “[t]he goal of this amendment is not to displace 11 ||any factor, but rather to focus the court and the lawyers on the core concerns of 12 procedure and substance that should guide the decision whether to approve the 13 || proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment. 14 || “Accordingly, the Court applies the framework set forth in Rule 23 with guidance 15 |/from the Ninth Circuit’s precedent, bearing in mind the Advisory Committee’s 16 |/instruction not to let ‘[t]he sheer number of factors’ distract the Court and parties 17 || from the ‘central concerns’ underlying Rule 23(e)(2).” In re Extreme Networks, Inc. 18 || Securities Litigation, No. 15-CV-04883-BLF, 2019 WL 3290770 , at *6 (N.D. Cal. 19 ||July 22, 2019); see also Hefler v. Wells Fargo & Co., No. 16-CV-05479-JST, 2018 20 || WL 6619983, at *4 (N.D. Cal. Dec. 18, 2018). 21 A. ADEQUATE REPRESENTATION 22 A determination of adequacy of representation requires that “two questions be 23 || addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest 24 || with other class members and (b) will the named plaintiffs and their counsel 25 || prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec. 26 || Litig., 213 F.3d 454, 462 (9th Cir. 2000), as amended (June 19, 2000) (citing Hanlon, 27 || 150 F.3d at 1020 ); see also Hefler, 2018 WL 6619983 , at *6. — 28 — _8Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 The Court finds that Class Counsel and the Class Representatives have 2 adequately represented the Class. The proposed class representatives in this action 3 have no conflicts of interest with other class members and each have prosecuted this 4 action vigorously on behalf of the Class. Each of the named Plaintiffs have suffered 5 the same injuries as the absent class members because each purchased a 6 Spectracide® Concentrate product, for personal and household use, in reliance on 7 the “Makes Up To ___” gallons statement on the front of the label which they took 8 to mean would, in fact, make up to the advertised amount of gallons when used as 9 directed for general weed control. (See Fourth Amended Complaint, ECF No. 63 at 10 ¶¶ 30-32). Each of the named Plaintiffs have been dedicated to vigorously pursuing 11 this action on behalf of the class and each have kept themselves informed about the 12 status of the proceedings. 13 Class Counsel have also vigorously represented the Class and have no 14 conflicts of interest. The Settlement was negotiated by counsel with extensive 15 experience in consumer class action litigation. Through the discovery process, Class 16 Counsel obtained sufficient information and documents to evaluate the strengths and 17 weaknesses of the case. The information reviewed by class counsel includes sales 18 information for the Spectracide® Concentrate products during the class period, the 19 labels for the Spectracide® Concentrate products in use during the class period, and 20 Defendant’s communications with the Environmental Protection Agency (“EPA”) 21 relating to the labels of the Products. Class Counsel have concluded that the 22 Settlement provides exceptional results for the class while sparing the class from the 23 uncertainties of continued and protracted litigation. See, e.g., In re Omnivision 24 Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) (“The recommendations 25 of plaintiffs’ counsel should be given a presumption of reasonableness.”); Rodriguez 26 v. W. Publ'g Corp., 563 F.3d 948, 976 (9th Cir. 2009) (Deference to Class Counsel’s 27 evaluation of the Settlement is appropriate because “[p]arties represented by — 28 — 1 ||competent counsel are better positioned than courts to produce a settlement that 2 || fairly reflects each party’s expected outcome in litigation.”). 3 Accordingly, the Court finds that Class Counsel and the Class Representatives 4 ||have been diligent in their representation of the class. 5 B. ARM’S LENGTH NEGOTIATIONS 6 Regarding the negotiation process, the Court finds that the Settlement 7 ||Agreement is the result of an adversarial, non-collusive, and arms-length 8 negotiation. The Parties did not begin settlement discussions until after the Court 9 ||had ruled on Defendant’s motion to dismiss (ECF No. 34) and Plaintiff Arthur’s 10 ||motion for class certification (ECF No. 46). Settlement discussions also did not 11 || begin until after the Parties had exchanged written discovery and documents, which 12 ||speaks to the fundamental fairness of the process. See Natl Rural 13 || Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004) 14 ||(‘A settlement following sufficient discovery and genuine arms-length negotiation 15 ||is presumed fair.”). The several months that it took to work out significant details 16 ||and vigorous disagreements between the parties demonstrate that this proposed 17 |/resolution was the product of heavily disputed and arm’s length negotiation. The 18 || settlement negotiations were hard-fought, with both Parties and their counsel 19 || thoroughly familiar with the applicable facts, legal theories, and defenses on both 20 || sides. 21 Accordingly, the Court finds no signs of conflicts of interest, collusion, or bad 22 || faith in the parties’ settlement negotiation process. 23 C. ADEQUATE RELIEF 24 The Court concludes that the relief provided for the Class is adequate. UIC 25 || has agreed to settle this matter for a non-reversionary total of $2,500,000. Agreement 26 || at § 7.4. As explained in the Court’s Preliminary Approval Order (ECF No. 77), the 27 || $2,500,000 nationwide settlement amount is reasonable considering that damages 28 || would be limited to a fraction of total sales if Plaintiffs were to prevail at trial. -10Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 As previously explained by Plaintiffs’ damages expert, Charlene L. Podlipna, 2 CPA, the Spectracide® Concentrate products allegedly are underfilled by 36% to 3 38% based on Plaintiffs’ claims that reasonable consumers’ intend purpose for the 4 Products is “general weed control.” (ECF No. 23-14 [Podlipna Decl., ¶ 13]). 5 Damages for the nationwide class would be based on the Benefit of the Bargain 6 method, which is based on the difference between the amount Plaintiffs reasonably 7 expected to receive and the actual amount received. (ECF No. 23-14 [Podlipna Decl., 8 ¶ 15]). Accordingly, the projected maximum for nationwide class damages would 9 be approximately $[Redacted] if Plaintiffs were to prevail at trial. ($[Redacted] 10 nationwide sales x .38 underfill percentage = $[Redacted]). The $2,500,000 11 settlement fund accounts for [Redacted]% of total damages that would be available 12 at trial, which is well within the range of reason. See, e.g., Stovall-Gusman v. W.W. 13 Granger, Inc., No. 13-cv-02540-HSG, 2015 WL 3776765 , at *4 (N.D. Cal. June 17, 14 2015) (granting final approval of a net settlement amount representing 7.3% of the 15 plaintiffs’ potential recovery at trial); Balderas v. Massage Envy Franchising, LLC, 16 No. 12-cv-06327NC, 2014 WL 3610945 , at *5 (N.D. Cal. July 21, 2014) (granting 17 preliminary approval of a net settlement amount representing 5% of the projected 18 maximum recovery at trial); Ma v. Covidien Holding, Inc., No. SACV 12-0216119 DOC (RNBx), 2014 WL 360196 , at *5 (C.D. Cal. Jan. 31, 2014) (finding a 20 settlement worth 9.1% of the total value of the action “within the range of 21 reasonableness”); Downey Surgical Clinic, Inc. v. Optuminsight, Inc., No. CV0922 5457PSG (JCx), 2016 WL 5938722 at *5 (C.D. Cal. May 16, 2016) (granting final 23 approval where recovery was as low as 3.21% of potential recovery at trial). 24 The amount of recovery per class member is also adequate considering that 25 Settlement Class Members can claim $6.25 in cash from the Settlement Fund for 26 each Claim submitted by a household, with a limit of four (4) claims per household 27 (total payable per household in no event to exceed $25, unless distribution is 28 increased pro rata). Agreement at § 7.2.1. This recovery is significant considering 1 that a 64-ounce bottle of Spectracide® Concentrate, the most expensive bottle size, 2 sells for approximately $30.00 at retail stores like Home Depot. The $6.25 recovery 3 per purchase (up to four purchases per household) for each Settlement Class member 4 is an excellent result considering it represents a large fraction of total damages that 5 would be recoverable at trial. Indeed, $6.25 represents approximately 57.8% of the 6 total potential recovery for purchasers of the 64-ounce bottle size ($30.00 x .36 7 underfill amount for 64-ounce bottle size = $10.80). Moreover, the settlement 8 agreement provides for injunctive relief, which further supports the adequacy of 9 relief to the class. Agreement at § 7.3. 10 The amount of recovery per claimant is also adequate considering that 11 Settlement Class Members can claim $6.25 in cash from the Settlement Fund for 12 each Claim submitted by a household, with a limit of four (4) claims per household 13 (total payable per household in no event to exceed $25, unless distribution is 14 increased pro rata). Agreement at § 7.2.1. Here, approximately 67,967 valid claim 15 forms were submitted by settlement class members and 248,042 valid claims will be 16 paid by the settlement administrator. Once notice and administration costs along 17 with Plaintiffs’ attorneys’ fees, costs, and incentive awards are deducted from the 18 $2,500,000 Settlement Fund, there will be approximately $1,702,477.37 available 19 for distribution to the Settlement Class. This means that there will be a slight pro 20 rata increase and $6.86 will be paid for each valid and timely claim submitted. 21 ($1,702,477.37 in available funds for distribution / 248,042 valid claims = $6.86 per 22 claim). Because the average valid claim form reported 3.6 purchases, average 23 settlement class members will receive approximately $24.69. This recovery is 24 significant considering that a 64-ounce bottle of Spectracide® Concentrate, the most 25 expensive bottle size, sells for approximately $30.00 at retail stores. Accordingly, 26 the Court finds that the amount offered in the settlement is adequate. 27 / / / 28 / / / 1 1. Costs, risks, and delay of trial and appeal 2 The Court concludes that the costs, risks, and delay of trial and appeal further 3 support final approval. Proceeding in this litigation in the absence of settlement 4 poses various risks such as failing to certify a class, having summary judgment 5 granted against Plaintiffs, or losing at trial. Such considerations have been found to 6 weigh heavily in favor of settlement. See Rodriguez, 563 F.3d at 966 ; Curtis-Bauer 7 v. Morgan Stanley & Co., Inc., No. C 06-3903 TEH, 2008 WL 4667090 , at *4 (N.D. 8 Cal. Oct. 22, 2008) (“Settlement avoids the complexity, delay, risk and expense of 9 continuing with the litigation and will produce a prompt, certain, and substantial 10 recovery for the Plaintiff class.”). Even if Plaintiffs are able to certify a class, there 11 is also a risk that the Court could later decertify the class action. See In re Netflix 12 Privacy Litig., No. 5:11-cv-00379 EJD, 2013 WL 1120801 , at *6 (N.D. Cal. Mar. 13 18, 2013) (“The notion that a district court could decertify a class at any time is one 14 that weighs in favor of settlement.”) (internal citations omitted). The Settlement 15 eliminates these risks by ensuring Class Members a recovery that is “certain and 16 immediate, eliminating the risk that class members would be left without any 17 recovery . . . at all.” Fulford v. Logitech, Inc., No. 08-cv-02041 MNC, 2010 U.S. 18 Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5, 2010). 19 2. Effectiveness of proposed method of distributing relief to the Class 20 The Court finds that the claims process was straightforward and allows 21 Settlement Class members to make a claim by submitting a valid and timely Claim 22 Form to the Settlement Administrator without complication. See In re Toyota Motor 23 Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., No. 24 8:10ML 02151 JVS, 2013 WL 3224585 , at *18 (C.D. Cal. June 17, 2013) (“The 25 requirement that class members download a claim form or request in writing a claim 26 form, complete the form, and mail it back to the settlement administrator is not 27 onerous.”). 28 / / / 1 The Settlement Agreement here provides for pro rata distribution to class, 2 which will ensure that class members receive as much as the settlement fund as 3 possible. Agreement at § 7.2.3. As discussed above, there will be a slight pro rata 4 increase and approximately $6.86 will be paid out for each of the estimated 248,042 5 valid claims submitted. If any amounts remain in the settlement fund following a pro 6 rata distribution to class members, then the remaining funds will thereafter be 7 awarded cy pres to the National Advertising Division of the Better Business Bureau 8 (“NAD”). Agreement at § 7.2.3. The proposed cy pres recipient will only receive 9 funds that are no longer economically feasible to distribute to the class after a pro 10 rata distribution. Courts have previously approved NAD as a suitable cy pres 11 recipient. See Rawa v. Monsanto Co., No. 4:17CV01252 AGF, 2018 WL 2389040 , 12 at *11 (E.D. Mo. May 25, 2018) (approving NAD as a cy pres recipient and noting 13 that it “monitors national advertising in all media for goods and services, enforce[es] 14 high standards of truth and accuracy, and accepts complaints from consumers”). 15 Accordingly, the Court appoints NAD as the cy pres recipient and approves the 16 proposed method of distribution. 17 3. The Requested Attorneys’ Fees, Costs, and Incentive Awards Are Fair 18 and Reasonable 19 Class Counsel has fully addressed the reasonableness of the fee request in 20 Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards that was filed 21 on January 6, 2020. (ECF No. 78-1). Pursuant to Federal Rule of Civil Procedure 22 23(h), the Court orders that Class Counsel is entitled to reasonable attorneys’ fees 23 incurred in connection with the action in the amount of $625,000.00, to be paid at 24 the time and in the matter provided in the Settlement Agreement. (ECF No. 71-3). 25 The fee award sought in the present case is reasonable when judged by the standards 26 of this circuit. See, e.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 , 27 941 (9th Cir. 2011). The $625,000.00 fee award accounts for 25% of the 28 $2,500,000.00 Settlement Fund and is well within the percentage range that courts 1 have allowed in the Ninth Circuit. Id. at 942 ; see also Vasquez v. Coast Valley 2 Roofing, Inc., 266 F.R.D. 482, 491 (E.D. Cal. 2010) (“typical range of acceptable 3 attorneys’ fees in the Ninth Circuit is 20% to 33 1/3 % of total settlement value”); 4 Hopkins v. Stryker Sales Corp., No. 11-2786, 2013 WL 2013 WL 496358, at *1 5 (N.D. Cal. Feb. 6, 2013) (acknowledging same and awarding 30%); In re Activision 6 Sec. Litig., 723 F. Supp. 1373, 1377 (N.D. Cal. 1989) (“[a] review of recent reported 7 cases discloses that nearly all common fund awards range around 30%”); Pokorny 8 v. Quixtar, Inc., No. 07-00201 SC, 2013 WL 3790896 , *1 (N.D. Cal. July 18, 2013) 9 (acknowledging same, stating 30% award is “the norm absent extraordinary 10 circumstances that suggest reasons to lower or increase the percentage” and granting 11 fee request of 27.3%); see also In re Pacific Enters. Sec. Litig., 47 F.3d 373 , 379 12 (9th Cir. 1995) (award of 33% of settlement fund as fees affirmed). 13 Class Counsel’s fee request is also reasonable under the lodestar method. 14 Class Counsel’s total lodestar in this action equals $545,052.50. Accordingly, the 15 $625,000.00 fee award results in a positive multiplier of 1.146. See Wershba v. Apple 16 Computer, Inc., 91 Cal. App. 4th 224, 255 (2001) (“Multipliers can range from 2 to 17 4, even higher.”); Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 298 (N.D. 18 Cal. 1995 ) (3-4 are in the “range [of] common” multipliers for sophisticated class 19 actions). Moreover, the fee award is justified based on the excellent results obtained, 20 the experience and skill of Counsel, the complexity of issues, the risk of non21 payment, and the preclusion of other work. 22 Based on the declaration submitted by Class Counsel in support of the Fee 23 Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation 24 expenses (paid and un-reimbursed) in the amount of $32,090.63. Accordingly, the 25 Court further awards Class Counsel $32,090.63 in litigation costs, to be paid at the 26 time and manner provided in the Settlement Agreement. 27 The Court finds that the Class Representatives in this action have actively 28 participated in and assisted Class Counsel with this litigation for the substantial 1 || benefit of the Class. Each of the Class Representatives have reviewed material 2 filings; have had continuous communications with Class Counsel throughout the 3 || litigation; have reviewed and approved the Setthement Agreement; and were 4 ||committed to securing substantive relief on behalf of the Class. The Court further 5 || finds that the requested incentive awards are presumptively reasonable are in line 6 || with Ninth Circuit authority. See Wren v. RGIS Inventory Specialists, No. C-067 ||05778 JCS, 2011 WL 1230826 , at *36 (N.D. Cal. Apr. 1, 2011) (‘there is ample case 8 ||law finding $5,000 to be a reasonable amount for an incentive payment.”). 9 || Accordingly, the Court awards incentive payments as follows: (a.) $3,000 incentive 10 ||payment to Plaintiff Michael Graves; (b.) $3,000 incentive payment to Plaintiff 11 Michael Whealen; and (c.) $5,000 incentive payment to Plaintiff Keith Gren. The 12 || Court finds that the incentive payment to Plaintiff Keith Gren is reasonable in light 13 |jof the fact he sat for a deposition on July 12, 2018 and that he incurred additional 14 ||time and expense for appearing at the deposition. 15 4. Agreements required to be identified under Rule 23(e)(3) 16 The Court has not been advised of any side agreements made in connection 17 || with the proposed settlement pursuant to Rule 23(e)(3). Thus, there is nothing for 18 || the Court to consider. 19 D. The Settlement Agreement Treats Class Members Equitably 20 The Court finds that the apportionment of relief among Class Members treats 21 ||class members equitably. As discussed above, each valid claim submitted will be 22 || paid approximately $6.86 following a slight pro rata increase. Because each class 23 ||member is treated equally, the Court approves the settlement as fair, reasonable, and 24 || adequate. 25 E. The Absence of Governmental Participation Supports Final 26 Approval 27 Although CAFA does not create an affirmative duty for either state or federal 28 || officials to take any action in response to a class-action settlement, CAFA presumes -16Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 || that—once put on notice—state or federal officials will “raise any concerns that they 2 ||may have during the normal course of the class action settlement procedures.” 3 ||Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08-1365, 2010 WL 1687832 , at 4 ||*14 (N.D. Cal. Apr. 22, 2010); see also LaGarde v. Support.com, Inc., No. C 125 ||0609, 2013 WL 1283325 , at *7 (N.D. Cal. Mar. 26, 2013) (same); In re Netflix 6 || Privacy Litig., No. 5:11-cv-00379, 2013 WL 1120801 at *8 (N.D. Cal. Mar. 18, 7 ||2013) (same). To date, no state or federal official has raised any objection to the 8 || settlement. 9 F. The Reaction of the Class Has Been Favorable 10 It is well established that “the absence of a large number of objections to a 11 || proposed class action settlement raises a strong presumption that the terms of a 12 || proposed class settlement action are favorable to the class members.” Nat’! Rural 13 || Telecomms. Coop., 221 F.R.D. at 529 (collecting cases). Here, the Court finds that 14 ||the response from Class members has been overwhelmingly positive. There have 15 |}/been no requests for exclusion and no objections have been filed. This positive 16 ||reaction to the Settlement indicates that this Court “‘may appropriately infer that 17 || [the] class action settlement is fair, adequate, and reasonable when few class 18 |]members object to it.’” Garner, 2010 WL 1687832 , at *14. 19 ||V. CERTIFICATION OF THE SETTLEMENT CLASS 20 When presented with a proposed settlement, a court must first determine 21 whether the proposed settlement class satisfies the requirements for class 22 certification under Rule 23. In assessing those class certification requirements, a 23 ||}court may properly consider that there will be no trial. Amchem Prods., Inc. v. 24 || Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only 25 || class certification, a district court need not inquire whether the case, if tried, would 26 || present intractable management problems . . . for the proposal is that there be no 27 || trial.’’). For the reasons below, the Court finds that the Settlement Class meets the 28 ||requirements of Rule 23(a) and (b). -17Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 A. Rule 23(a) || J. Numerosity 3 Rule 23(a)(1) requires that “the class 1s so numerous that joinder of all 4 ||members is impracticable.” See Rule 23(a)(1). “As a general matter, courts have 5 ||found that numerosity is satisfied when class size exceeds 40 members, but not 6 || satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 F.R.D. 649 , 7 ||654 (C.D. Cal. 2000). Here, the proposed class is comprised of tens of thousands of 8 || consumers who purchased the Class Products. To date, the settlement administrator 9 ||has received 67,967 valid claim forms. Accordingly, the Court finds that the 10 |/numerosity requirement is satisfied. 11 |] 2. Commonality 12 Rule 23(a)(2) requires the existence of “questions of law or fact common to 13 ||the class.” See Rule 23(a)(2). Commonality is established if plaintiffs and class 14 ||members’ claims “depend on a common contention,” “capable of class-wide 15 |/resolution .. . [meaning] that determination of its truth or falsity will resolve an issue 16 || that is central to the validity of each one of the claims in one stroke.” Wal-Mart 17 || Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Because the commonality 18 || requirement may be satisfied by a single common issue, it is easily met. 19 The Court finds that there are ample issues of both law and fact here that are 20 ||common to the members of the Class. All of the Class Members’ claims arise from 21 ||acommon nucleus of facts and are based on the same legal theories. Plaintiffs allege 22 ||that UIC’s “Makes Up To __” gallons statement on the Spectracide® Concentrate 23 || Product labels is false and misleading because the Products yield only a fraction of 24 ||the advertised “Makes Up To” amount when mixed for “general weed control” 25 || purposes. These alleged misrepresentations were made in a uniform manner to each 26 || of the Class Members. Accordingly, commonality is satisfied by the existence of 27 these common factual issues. See Arnold v. United Artists Theatre Circuit, Inc., 158 28 |}/// -18Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 F.R.D. 439 , 448 (N.D. Cal. 1994) (commonality requirement met by “the alleged 2 existence of common discriminatory practices”). 3 Second, Plaintiffs’ claims are brought under legal theories common to the 4 Class as a whole. Alleging a common legal theory alone is enough to establish 5 commonality. See Hanlon, 150 F.3d at 1019 (“All questions of fact and law need not 6 be common to satisfy the rule. The existence of shared legal issues with divergent 7 factual predicates is sufficient, as is a common core of salient facts coupled with 8 disparate legal remedies within the class.”). Here, all of the legal theories asserted 9 by Plaintiffs are common to all Class Members. Given that there are virtually no 10 issues of law which affect only individual members of the Class, the Court finds that 11 commonality is satisfied. 12 3. Typicality 13 Rule 23(a)(3) requires that the claims of the representative plaintiffs be 14 “typical of the claims . . . of the class.” See Rule 23(a)(3). “Under the rule’s 15 permissive standards, representative claims are ‘typical’ if they are reasonably 16 coextensive with those of absent class members; they need not be substantially 17 identical.” See Hanlon, 150 F.3d at 1020 . In short, to meet the typicality requirement, 18 the representative plaintiffs simply must demonstrate that the members of the 19 settlement class have the same or similar grievances. Gen. Tel. Co. of the Sw. v. 20 Falcon, 457 U.S. 147, 161 (1982). 21 The Court finds that the claims of the named Plaintiffs are typical of those of 22 the Class. Like those of the Class, their claims arise out of the purchase of 23 Spectracide® Concentrate products for personal or household use after relying on 24 UIC’s allegedly misleading “Makes Up To __” gallons representations. The named 25 Plaintiffs have precisely the same claims as the Class and must satisfy the same 26 elements of each of their claims, as must other Class Members. Supported by the 27 same legal theories, the named Plaintiffs and all Class Members share claims based 28 on the same alleged course of conduct. The named Plaintiffs and all Class Members 1 ||have been injured in the same manner by this conduct. Therefore, the typicality 2 ||requirement is satisfied. 3 || 4. Adequacy 4 The final requirement of Rule 23(a) is set forth in subsection (a)(4) which 5 requires that the representative parties “fairly and adequately protect the interests of 6 || the class.” See Rule 23(a)(4). As discussed above, the Court finds that Class Counsel 7 |{and the Class Representatives have adequately represented the Class. Accordingly, 8 ||the Court hereby appoints Plaintiffs Michael Graves, Keith Gren, and Michael 9 || Whealen as Class Representatives for the Settlement Class. The Court also appoints 10 || the Law Offices of Ronald A. Marron, APLC as Settlement Class Counsel to Federal 11 □□ Rule of Civil Procedure 23(g). 12 B. Rule 23(b)(2) 13 In addition to meeting the prerequisites of Rule 23(a), Plaintiffs must also 14 □□ meet one of the three requirements of Rule 23(b) to certify the proposed class. See 15 || Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 , 1186 (9th Cir. 2001). Under 16 || Rule 23(b)(3), a class action may be maintained if “the court finds that the questions 17 || of law or fact common to the members of the class predominate over any questions 18 || affecting only individual members, and that a class action is superior to other 19 || available methods for fairly and efficiently adjudicating the controversy.” See Rule 20 || 23(b)(3). Certification under Rule 23(b)(3) is appropriate and encouraged “whenever 21 || the actual interests of the parties can be served best by settling their differences in a 22 single action.” Hanlon, 150 F.3d at 1022 . 23 || J. Predominance 24 The Court finds that the proposed Class is well-suited for certification under 25 || Rule 23(b)(3) because questions common to the Class Members predominate over 26 || questions affecting only individual Class Members. Predominance exists “[w]hen 27 ||common questions present a significant aspect of the case and they can be resolved 28 || for all members of the class in a single adjudication.” Jd. As the U.S. Supreme Court -20Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK 1 has explained, when addressing the propriety of certification of a settlement class, 2 courts take into account the fact that a trial will be unnecessary and that 3 manageability, therefore, is not an issue. Amchem, 521 U.S. at 619-62 . In this case, 4 common questions of law and fact exist and predominate over any individual 5 questions, including, in addition to whether this settlement is reasonable (see 6 Hanlon, 150 F.3d at 1026-27 ), inter alia: (1) whether UIC’s representations 7 regarding its “Makes up to ___” gallons claim were false and misleading or 8 reasonably likely to deceive consumers; (2) whether UIC violated the CLRA, UCL, 9 FAL and the MMPA; (3) whether UIC had defrauded Plaintiff and the Class 10 Members; and (4) whether the Class has been injured by the wrongs complained of, 11 and if so, whether Plaintiffs and the Class are entitled to damages, injunctive and/or 12 other equitable relief, including restitution, and if so, the nature and amount of such 13 relief. 14 There are also no concerns here about certifying a nationwide settlement class 15 under Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590 (9th Cir. 2012). In Mazza, 16 the Ninth Circuit held that, when certifying a nationwide class, the burden is on the 17 defendant to show “‘that foreign law, rather than California law, should apply to 18 class claims.’” See also In re MDC Holdings Securities Litigation, 754 F. Supp. 785 , 19 803–04, 808 (S.D. Cal. 1990) (the “court presumes that California law controls 20 unless and until defendants show that choice of law problems render the common 21 law claims inappropriate for class treatment.”); In re Seagate Technologies Sec. 22 Litigation, 115 F.R.D. 264, 269, 274 (N.D. Cal. 1987) (applying California law to 23 nationwide class because “[a]bsent the defendant carrying [its] burden, California 24 law would govern the foreign state plaintiffs' claims” and noting several other 25 decisions reaching this conclusion). 26 The Ninth Circuit recently held that differences in state law do not defeat 27 predominance in the settlement class context. See In re Hyundai & Kia Fuel Econ. 28 Litig., 926 F.3d 539, 561 (9th Cir. 2019). This is especially relevant here because 1 UIC is not opposing the certification of a nationwide class involving California and 2 Missouri law. Consequently, UIC is voluntarily subjecting itself to California and 3 Missouri law, including California’s Consumer Legal Remedies Act and Missouri’s 4 Merchandising Practices Act, which provide greater protections to consumers than 5 other jurisdictions. Where, as here, UIC’s products were widely distributed and there 6 are significant contacts with California residents, and where UIC does not oppose 7 California law applying to the nationwide class, the Mazza choice of law analysis is 8 easily satisfied because the interests of other states will not be impaired. In re 9 Hyundai & Kia Fuel Econ. Litig., 926 F.3d at 561. Missouri’s MMPA can also be 10 applied to the nationwide Settlement Class because UIC maintains its principal place 11 of business in Missouri and Missouri has significant contacts with the claims of each 12 class member. 13 Moreover, the considerations driving the rest of the Mazza analysis are 14 inapplicable here. In the settlement context, other states’ interests would not be 15 undermined by the application of California and Missouri law because UIC is opting 16 into a regime that protects consumers more vigorously than other states. In Hanlon, 17 the Ninth Circuit also held that “the idiosyncratic differences between state 18 consumer protection laws are not sufficiently substantive to predominate over the 19 shared claims.” Hanlon, 150 F.3d at 1022–23; In re Hyundai & Kia Fuel Econ. 20 Litig., 926 F.3d at 561 (“no party argued that California’s choice-of-law rules should 21 not apply to this class settlement”); Sullivan v. DB Investments, Inc., 667 F.3d 273 , 22 301 (3d Cir. 2011) (“variations in the rights and remedies available to injured class 23 members under the various laws of the fifty states [do] not defeat commonality and 24 predominance.”); In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299 , 315 (N.D. 25 Cal. 2018 ) (finding that differences between state consumer protection laws do not 26 defeat predominance and certifying nationwide settlement class). Accordingly, the 27 Court finds that common issues predominate. 28 / / / 1 2. Superiority 2 The Court finds that the class mechanism is superior to other available means 3 for the fair and efficient adjudication of the claims of the Class Members. Each 4 individual Class Member may lack the resources to undergo the burden and expense 5 of individual prosecution of the complex and extensive litigation necessary to 6 establish Defendant’s liability. Individualized litigation increases the delay and 7 expense to all parties and multiplies the burden on the judicial system. Individualized 8 litigation also presents a potential for inconsistent or contradictory judgments. In 9 contrast, the class action device presents far fewer management difficulties and 10 provides the benefits of single adjudication, economy of scale, and comprehensive 11 supervision by a single court. Accordingly, the Court finds that common questions 12 predominate and a class action is the superior method of adjudicating this 13 controversy and that the requirements of Rule 23(b)(3) are satisfied. 14 Accordingly, the Court hereby CERTIFIES the Settlement Class. 15 VI. MISCELLANEOUS 16 Implementation of Settlement. The Parties are hereby directed to implement 17 the Settlement according to its terms and conditions. 18 Enforcement of Settlement. Nothing in this Final Approval Order shall 19 preclude any action to enforce or interpret the terms of the Settlement. Any action 20 to enforce or interpret the terms of the Settlement shall be brought solely in this 21 Court. 22 Retention of Jurisdiction. The Court expressly retains continuing 23 jurisdiction as to all matters relating to the Settlement, and this Final Order, and for 24 any other necessary and appropriate purpose. Without limiting the foregoing, the 25 Court retains continuing jurisdiction over all aspects of this case including but not 26 limited to any modification, interpretation, administration, implementation, 27 effectuation, and enforcement of the Settlement, the administration of the Settlement 28 and Settlement relief, including notices, payments, and benefits thereunder, the 1 ||Settlement Notice and sufficiency thereof, any objection to the Settlement, any 2 ||request for exclusion from the certified Class, the adequacy of representation by 3 ||Class Counsel and/or the Class Representative, the amount of attorneys’ fees and 4 || litigation expenses to be awarded Class Counsel, the amount of any incentive awards 5 ||to be paid to the Class Representatives, any claim by any person or entity relating to 6 ||the representation of the Class by Class Counsel, to enforce the release and 7 ||injunction provisions of the Settlement and of this Order, any remand after appeal 8 ||or denial of any appellate challenge, any collateral challenge made regarding any 9 || matter related to this litigation or this Settlement or the conduct of any party or 10 |/counsel relating to this litigation or this Settlement, and all other issues related to 11 this action and Settlement. Further, the Court retains continuing jurisdiction to enter 12 |}any other necessary or appropriate orders to protect and effectuate the Court’s 13 ||retention of continuing jurisdiction provided that nothing in this paragraph is 14 |/intended to restrict the ability of the Parties to exercise their rights under the 15 ||Settlement Agreement. 16 Dismissal of Action With Prejudice. The claims against Defendant in this 17 || action, including all individual and Class claims resolved in it, shall be dismissed on 18 || the merits and with prejudice. 19 IT ISSO ORDERED. wos ® 20 Ved A ; bryde 21 || DATED: February 24, 2020 __ 09 HON. CHRISTINA A. SNYDER 33 United States District Judge — 24 — — 25 — — 26 — — 27 — — 28 — -24Graves, et al. v. United Industries Corporation, Case No. 2:17-cv-06983-CAS-SK