Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 5:16-cv-04958-WHO
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`[PROPOSED] ORDER GRANTING
`PLAINTIFF’S MOTION FOR
`PRELIMINARY APPROVAL OF CLASS
`SETTLEMENT
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`Judge: Hon. William H. Orrick
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`Plaintiffs,
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`DEBBIE KROMMENHOCK and STEPHEN
`HADLEY, on behalf of themselves, all others
`similarly situated, and the general public,
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`POST FOODS, LLC,
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`Defendant.
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 2 of 8
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`WHEREAS, the above-entitled action is pending before this Court (the “Action”);
`WHEREAS, Plaintiffs Debbie Krommenhock and Stephen Hadley have moved, pursuant to Federal
`Rule of Civil Procedure 23(e), for an order approving the Settlement of this Action in accordance with the
`Class Action Settlement Agreement (“Settlement Agreement”) attached as Exhibit A to the Declaration of
`Jack Fitzgerald in Support of Plaintiffs’ Motion for Preliminary Approval of Class Settlement (the
`“Motion”), which Settlement Agreement sets forth the terms and conditions for a proposed classwide
`settlement of the Action;
`WHEREAS, the Court, has read and considered the Settlement Agreement, Plaintiffs’ Motion, and
`the arguments of counsel;
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`NOW, THEREFORE, THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:
`Settlement Terms. All capitalized terms herein have the same meanings ascribed to them in
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`the Settlement Agreement.
`Jurisdiction. The Court has jurisdiction over the subject matter of the action and over all
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`parties to the action, including all members of the Settlement Class.
`Preliminary Approval of Proposed Settlement Agreement. The Court finds that, subject to
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`the Final Approval hearing, the proposed Settlement Agreement is fair, reasonable, adequate, and within the
`range of possible approval considering the possible damages at issue and defenses to overcome. The Court
`also finds that the Settlement Agreement: (a) is the result of serious, informed, non-collusive, arms-length
`negotiations, involving experienced counsel familiar with the legal and factual issues of this case and made
`with the assistance and mediation services of Hon. Edward A. Infante (Ret.), Hon. James F. Holderman
`(Ret.), and Chief Magistrate Judge Joseph C. Spero; and (b) meets all applicable requirements of law,
`including Federal Rule of Civil Procedure 23, and the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
`1715. Therefore, the Court grants preliminary approval of the Settlement.
`Class Certification for Settlement Purposes Only. The Court conditionally certifies, for
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`settlement purposes only, a Class defined as all persons in the United States who, between August 29, 2012
`and November 2, 2020 (the “Class Period”), purchased in the United States, for household use and not for
`resale or distribution, any of the Class Products identified in Appendix 1 to the Settlement Agreement.
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 3 of 8
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`The Court finds, for settlement purposes only, that class certification under Federal Rule of
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`Civil Procedure 23(b)(3) is appropriate in the settlement context because (a) the Settlement Class Members
`are so numerous that joinder of all Settlement Class Members is impracticable; (b) there are questions of
`law and fact common to the Settlement Class which predominate over any individual questions; (c) the
`claims of the Plaintiffs and proposed Class Representatives are typical of the claims of the Settlement Class;
`(d) the Plaintiffs and proposed Class Representatives and their counsel will fairly and adequately represent
`and protect the interests of the Settlement Class Members; (e) questions of law or fact common to the
`Settlement Class Members predominate over any questions affecting only individual Settlement Class
`Members; and (f) a class action is superior to other available methods for the fair and efficient adjudication
`of the controversy.
`Class Representatives. The Court appoints Plaintiffs Debbie Krommenhock and Stephen
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`Hadley as Class Representatives.
`Class Counsel. The Court appoints The Law Office of Jack Fitzgerald, PC and Jackson and
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`Foster, LLC as Class Counsel.
`Settlement Class Administrator. The Court hereby approves Postlethwaite & Netterville
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`(“P&N”) to act as Class Administrator. P&N shall be required to perform all the duties of the Class
`Administrator as set forth in the Agreement and this Order.
`Qualified Settlement Fund. P&N is authorized to establish the Settlement Fund under 26
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`C.F.R. §§ 1.468B-1(c) and (e)(1), to act as the “administrator” of the Settlement Fund pursuant to 26 C.F.R.
`§ 1.468B-2(k)(3), and to undertake all duties as administrator in accordance with the Treasury Regulations
`promulgated under § 1.468B of the Internal Revenue Code of 1986. All costs incurred by the Class
`Administrator operating as administrator of the Settlement Fund shall be construed as costs of Claims
`Administration and shall be borne solely by the Settlement Fund. Interest on the Settlement Fund shall inure
`to the benefit of the Class.
`Class Notice. The Court approves the form and content of the Class Notice in the long form
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`attached to the Settlement Agreement as Exhibit 1, the short form attached to the Settlement Agreement as
`Exhibit 2, and the other forms of notice submitted with Plaintiffs’ Motion for Preliminary Approval. The
`Court finds that dissemination of the Class Notice as proposed in the Settlement Agreement and in P&N’s
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 4 of 8
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`Notice Plan as set forth in the January 18, 2021 Declaration of Brandon Schwartz meets the requirements
`of Federal Rule of Civil Procedure 23(c)(2), and due process, and further constitutes the best notice
`practicable under the circumstances. Accordingly, the Court hereby approves the Notice Plan.
`The Court recognizes that Defendant Post Foods, LLC (“Post”) has collected approximately
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`68,400 individual customer email addresses that that likely include some Settlement Class Members. The
`Court further recognizes that Post’s privacy policy generally prohibits it from sharing personal information,
`such as these names and emails, to unrelated third parties, but allows for disclosure “required by law” or “in
`response to a lawful request by public authorities.” In order to achieve “the best notice that is practicable
`under the circumstances, including individual notice to all members who can be identified with reasonable
`effort,” Fed. R. Civ. P. 23(c)(2), the Court orders that: (i) Post produce the approximately 68,400 individual
`customer names and email addresses that it has collected to P&N; (ii) P&N use the individual customer
`names and email addresses solely for the purpose of disseminating Class Notice in this case and no other
`purpose; and (iii) P&N maintain the confidentiality of the individual customer names and email addresses
`and not disclose them to any person outside of P&N except as necessary to disseminate Class Notice in this
`case.
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`Objection and Exclusion Deadline. Settlement Class Members who wish either to object to
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`the Settlement or to exclude themselves from the Settlement must do so by the Objection Deadline and
`Exclusion Deadline of ___________, 2021 both of which are sixty-three (63) calendar days after the
`Settlement Notice Date. Settlement Class Members may not both object to and exclude themselves from the
`Settlement. If a Settlement Class Member submits both a Request for Exclusion and an Objection, the
`Request for Exclusion will be controlling.
`Exclusion from the Settlement Class. To submit a Request for Exclusion, Settlement Class
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`Members must follow the directions in the Notice and send a compliant request to the Class Administrator
`at the address designated in the Class Notice, postmarked by the Exclusion Deadline. To be valid, the
`Request for Exclusion must (i) be in writing and mailed; (ii) contain the name of this Action, Krommenhock
`v. Post Foods, LLC, No. 5:16-cv-04958-WHO, (iii) contain the full name and address of the Settlement
`Class Member; (iv) state that the Settlement Class Member wishes to be excluded by the Settlement; and
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 5 of 8
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`(v) be signed individually by the Settlement Class Member or his or her attorney. No Request for Exclusion
`may be made on behalf of a group of Settlement Class Members.
`All Settlement Class Members who submit a timely, valid Request from Exclusion will be
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`excluded from the Class and will not be bound by the terms of the Settlement Agreement and any
`determinations and judgments concerning it. All Settlement Class Members who do not submit a valid
`Request for Exclusion by _________, 2021 in accordance with the terms set forth in the Agreement, will be
`bound by all determinations and judgments concerning the Agreement.
`Objections to the Settlement. To object to the Settlement, Settlement Class Members are
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`encouraged to follow the directions in the Notice and file or mail to the Court a written Objection by the
`Objection Deadline. In the written Objection, the Settlement Class Member should include (i) a caption or
`title that clearly identifies the Action and that the document is an objection, (ii) the Settlement Class
`Member’s name, current address, and telephone number, or—if objecting through counsel—his or her
`lawyer’s name, address, and telephone number, (iii) the Class Product(s) the Settlement Class Member
`bought during the Class Period, (iv) a clear and concise statement of the Class Member’s objection, as well
`as any facts and law supporting the objection, (v) if the Class Member (or his or her lawyer) wishes to appear
`and speak at the Final Approval Hearing, a statement to that effect, (v) the objector’s signature, and (vi) the
`signature of the objector’s counsel, if any. The Parties will have the right to obtain document discovery from
`and take depositions of any objecting Settlement Class Member on topics relevant to the Objection.
`If a Settlement Class Member does not submit a written Objection to the Settlement or to
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`Class Counsel’s application for attorneys’ fees and costs or the Service Awards in accordance with the
`deadline and procedure set forth in the Notice and this Order, but the Settlement Class Member wishes to
`be appear and be heard at the Final Approval Hearing, the Settlement Class Member may do so provided
`the Objector satisfies the requirements of Federal Rule of Civil Procedure 23(e)(5)(A) at the Final Approval
`Hearing.
`Objecting Settlement Class Members may appear at the Final Approval Hearing and be
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`heard. If an objecting Class Member chooses to appear at the Final Approval Hearing, a notice of intention
`to appear should be filed with the Court or postmarked no later than the Objection Deadline.
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 6 of 8
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`All members of the Settlement Class, except those who submit timely Requests for
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`Exclusion, will be bound by all determinations and judgments in this Action, whether favorable or
`unfavorable to the Settlement Class.
`Submission of Claims. To receive a cash award, Settlement Class Members must follow the
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`directions in the Notice and file a claim with the Class Administrator by the Claims Deadline of ________,
`2021, which is sixty-three (63) calendar days after the Settlement Notice Date. Settlement Class Members
`who do not submit a claim will not receive a cash award but will be bound by the Settlement.
`Schedule of Future Events. The Court adopts the schedule proposed by Plaintiff, as follows
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`(with Day “1” the date of this Order):
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`Event
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`Date of Preliminary Approval Order
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`Deadline to commence 63-day notice period
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`Deadline for Plaintiffs to file Motion for Attorneys’ Fees,
`Costs, and Incentive Awards
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`Notice completion date, and deadline to make a claim, opt
`out, and object
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`Deadline for Plaintiffs to file Motion for Final Approval
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`Final Approval Hearing
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`Day
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`102
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`Approximate Weeks After
`Preliminary Approval
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`3 weeks
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`7 weeks
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`12 weeks
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`15 weeks
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`17 weeks
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`Final Approval Hearing. A Final Approval Hearing is scheduled for ______, 2021, at 2:00
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`p.m., for the Court to determine whether the proposed settlement of the Action on the terms and conditions
`provided for in the Settlement Agreement is fair, reasonable, and adequate to the Settlement Class and
`should be finally approved by the Court; whether a Judgment should be entered; and to determine any
`amount of fees, costs, and expenses that should be awarded to Class Counsel and the amount of any service
`awards to Plaintiffs. The Court reserves the right to adjourn the date of the Final Approval Hearing without
`further notice to the members of the Settlement Class, and retains jurisdiction to consider all further
`applications arising out of or connected with the proposed Settlement. The Court may approve the
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 7 of 8
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`Settlement, with such modifications as may be agreed to by the settling Parties, if appropriate, without
`further notice to the Settlement Class.
`Stay of Proceedings. All proceedings in this action are stayed until further order of this Court,
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`except as may be necessary to implement the Settlement or comply with the terms of the Settlement
`Agreement.
`Pending the final determination of whether the Settlement should be approved, the
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`Settlement Class Representatives and all Settlement Class Members are hereby stayed and enjoined from
`commencing, pursuing, maintaining, enforcing, or prosecuting, either directly or indirectly, any Released
`Claims in any judicial, administrative, arbitral, or other forum, against any of the Released Parties. Such
`injunction will remain in force until Final Approval or until such time as the Parties notify the Court that
`the Settlement has been terminated. Nothing herein will prevent any Settlement Class Member, or any
`person actually or purportedly acting on behalf of any Settlement Class Member(s), from taking any actions
`to stay or dismiss any Released Claim(s). This injunction is necessary to protect and effectuate the
`Agreement, this Preliminary Approval Order, and the Court’s flexibility and authority to effectuate the
`Agreement and to enter Judgment when appropriate, and is ordered in aid of this Court’s jurisdiction and to
`protect its judgments. This injunction does not apply to any person who files a Request for Exclusion.
`If the Settlement is not approved or consummated for any reason whatsoever, the Settlement
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`and all proceedings in connection with the Settlement will be without prejudice to the right of Defendant or
`the Class Representatives to assert any right or position that could have been asserted if the Agreement had
`never been reached or proposed to the Court, except insofar as the Agreement expressly provides to the
`contrary. In such an event, the certification of the Settlement Classes will be deemed vacated. The
`certification of the Settlement Classes for settlement purposes will not be considered as a factor in
`connection with any subsequent class certification issues.
`No Admission of Liability. By entering this Order, the Court does not make any
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`determination as to the merits of this case. Preliminary approval of the Settlement Agreement is not a finding
`or admission of liability by Defendant. Furthermore, the Agreement and any and all negotiations,
`documents, and discussions associated with it will not be deemed or construed to be an admission or
`evidence of any violation of any statute, law, rule, regulation, or principle of common law or equity, or of
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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`Case 3:16-cv-04958-WHO Document 285-1 Filed 01/18/21 Page 8 of 8
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`any liability or wrongdoing by Defendant, or the truth of any of the claims. Evidence relating to the
`Agreement will not be discoverable or used, directly or indirectly, in any way, whether in this Action or in
`any other action or proceeding, except for purposes of demonstrating, describing, implementing, or
`enforcing the terms and conditions of the Agreement, this Order, the Final Approval Order, and the
`Judgment.
`Retention of Jurisdiction. The Court retains jurisdiction over the Action to consider all further
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`matters arising out of or connected with the Settlement Agreement and the settlement described therein.
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`IT IS SO ORDERED.
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`Dated: ______________, 2021
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`_______________________
`Hon. William H. Orrick
`United States District Judge
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`Krommenhock v. Post Foods, LLC, No. 16-cv-4958-WHO
`ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT
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