Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`STEPHEN HADLEY, et al.,
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`Plaintiffs,
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`v.
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`KELLOGG SALES COMPANY,
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`Defendant.
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`Case No. 16-CV-04955-LHK
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`ORDER GRANTING MOTION FOR
`PRELIMINARY APPROVAL OF
`CLASS ACTION SETTLEMENT
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`Re: Dkt. No. 377
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`On June 10, 2021, a hearing was held on Plaintiffs’ instant motion for preliminary
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`approval of class action settlement. ECF No. 377. The instant motion is Plaintiffs’ first motion for
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`preliminary approval of the parties’ second Settlement Agreement, ECF No. 378-1 (operative
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`Settlement Agreement dated March 9, 2021).
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`Previously, Plaintiffs filed three motions as to the first settlement agreement: two motions
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`for preliminary approval, ECF Nos. 325, 347; and a motion for settlement enforcement, ECF No.
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`346. The Court denied those motions and directed the parties to cure defects in the notice forms
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`and settlement. See, e.g., ECF Nos. 339 (denying first motion for preliminary approval), 361
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`(denying second motion). The instant motion shows that the parties have cured the defects.
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`Accordingly, having considered all the briefing, the arguments of counsel, the relevant law,
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`Case No. 16-CV-04955-LHK
`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 2 of 6
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`and the record in this case, the Court GRANTS the parties’ instant motion for preliminary
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`approval.
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`Moreover, the Court schedules the hearing on final approval of the parties’ proposed class
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`action settlement (“Final Approval Hearing”) on November 18, 2021, at 1:30 p.m.
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`1.
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`Settlement Terms. All capitalized terms herein have the same meanings ascribed
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`to them in the Settlement Agreement, ECF No. 378-1 (hereafter, “Settlement Agreement”).
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`2.
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`Jurisdiction. The Court has jurisdiction over the subject matter of the action and
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`over all parties to the action, including all members of the Settlement Class.
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`3.
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`Preliminary Approval of Settlement Agreement. The Court finds that, subject to
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`the Final Approval hearing, the Settlement Agreement is fair, reasonable, adequate, and within
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`the range of possible approval considering the possible damages at issue and defenses to
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`overcome. The Court also finds that the Settlement Agreement: (a) is the result of serious,
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`informed, non-collusive, arms-length negotiations, involving experienced counsel familiar with
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`the legal and factual issues of this case and made with the assistance and mediation services of
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`Mark Petersen, Hon. James F. Holderman (Ret.), and United States Magistrate Judge Nathanael
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`Cousins; and (b) meets all applicable requirements of law, including Federal Rule of Civil
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`Procedure 23, and the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. Therefore, the
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`Court grants preliminary approval of the class action settlement.
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`4.
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`Class Certification for Settlement Purposes Only. The Court conditionally
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`certifies, for settlement purposes only, a Settlement Class defined as all persons who, between
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`August 29, 2012 and May 1, 2020 (the “Class Period”), purchased in the United States, for
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`household use and not for resale or distribution, any of the Class Products which include the
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`following:
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`a.
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`Kellogg’s Original Raisin Bran and Kellogg’s Raisin Bran Crunch cereals
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`in a package stating “heart healthy.”
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`b.
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`Kellogg’s Smart Start Original Antioxidants cereal in package stating
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`“heart healthy” and/or “lightly sweetened.”
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`2
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`Case No. 16-CV-04955-LHK
`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`Northern District of California
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`United States District Court
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`Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 3 of 6
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`c.
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`Kellogg’s Frosted Mini-Wheats Bite Size (Original, Maple Brown Sugar,
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`Strawberry, or Blueberry varieties), Big Bites (Original variety), Little Bites (Chocolate or
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`Cinnamon Roll varieties), or Touch of Fruit in the Middle (Mixed Berry and Raspberry
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`varieties) cereals in a package stating “heart healthy.”
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`5.
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`The Court finds, for settlement purposes only, that class certification under
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`Federal Rule of Civil Procedure 23(b)(3) is appropriate in the settlement context because (a) the
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`Settlement Class Members are so numerous that joinder of all Settlement Class Members is
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`impracticable; (b) there are questions of law and fact common to the Settlement Class which
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`predominate over any individual questions; (c) the claims of the Plaintiffs and proposed Class
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`Representatives are typical of the claims of the Settlement Class; (d) the Plaintiffs and proposed
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`Class Representatives and their counsel will fairly and adequately represent and protect the
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`interests of the Settlement Class Members; (e) questions of law or fact common to the Settlement
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`Class Members predominate over any questions affecting only individual Settlement Class
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`Members; and (f) a class action is superior to other available methods for the fair and efficient
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`adjudication of the controversy.
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`6.
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`Class Representatives. The Court appoints Plaintiffs Stephen Hadley, Melody
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`DiGregorio, Eric Fishon, Kerry Austin, and Nafeesha Madyun as Class Representatives.
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`7.
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`Class Counsel. The Court appoints The Law Office of Jack Fitzgerald, PC and
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`Jackson and Foster, LLC as Class Counsel.
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`8.
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`Settlement Class Administrator. The Court hereby approves Postlethwaite &
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`Netterville (“P&N”) to act as Class Administrator. P&N shall be required to perform all the
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`duties of the Class Administrator as set forth in the Agreement and this Order.
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`9.
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`Class Notice. The Court approves the form and content of the Class Notice in the
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`long form attached to the Settlement Agreement as Exhibit 1, the short form attached to the
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`Settlement Agreement as Exhibit 2, and the other forms of notice submitted with Plaintiffs’
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`Motion for Preliminary Approval. The Court finds that dissemination of the Class Notice as
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`proposed in the Settlement Agreement and in P&N’s Notice Plan as set forth in the March 10,
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`Case No. 16-CV-04955-LHK
`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`Northern District of California
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`Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 4 of 6
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`2021 Declaration of Brandon Schwartz meets the requirements of Federal Rule of Civil
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`Procedure 23(c)(2), and due process, and further constitutes the best notice practicable under the
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`circumstances. Accordingly, the Court hereby approves the Notice Plan.
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`10.
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`Objection and Exclusion Deadline. Settlement Class Members who wish either to
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`object to the Settlement or to exclude themselves from the Settlement must do so by the
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`Objection Deadline and Exclusion Deadline of September 7, 2021. Settlement Class Members
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`may not both object to and exclude themselves from the Settlement. If a Settlement Class
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`Member submits both a Request for Exclusion and an Objection, the Request for Exclusion will
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`be controlling.
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`11.
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`Exclusion from the Settlement Class. To submit a Request for Exclusion,
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`Settlement Class Members must follow the directions in the Notice and submit the Request for
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`Exclusion online at the Settlement Website by the Exclusion Deadline, or send a compliant
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`request to the Class Administrator at the address designated in the Class Notice, postmarked by
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`the Exclusion Deadline. No Request for Exclusion may be made on behalf of a group of
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`Settlement Class Members.
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`12.
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`All Settlement Class Members who submit a timely, valid Request for Exclusion
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`will be excluded from the Settlement and will not be bound by the terms of the Settlement
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`Agreement and any determinations and judgments concerning it. All Settlement Class Members
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`who do not submit a valid Request for Exclusion by September 7, 2021 in accordance with the
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`terms set forth in the Settlement Agreement, will be bound by all determinations and judgments
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`concerning the Settlement Agreement.
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`13.
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`Objections to the Settlement. To object to the Settlement, Settlement Class
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`Members should follow the directions in the Notice and file with the Court or mail to the Class
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`Administrator a written Objection by the Objection Deadline. In the written Objection, the
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`Settlement Class Member should include (i) a caption or title that clearly identifies the Action
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`and that the document is an objection, (ii) the Settlement Class Member’s name, current address,
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`and telephone number, or—if objecting through counsel—his or her lawyer’s name, address, and
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`Case No. 16-CV-04955-LHK
`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`Northern District of California
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`Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 5 of 6
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`telephone number, (iii) the Class Product(s) the Settlement Class Member bought during the
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`Class Period, (iv) a clear and concise statement of the Class Member’s objection, as well as any
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`facts and law supporting the objection, (v) the objector’s signature, and (vi) the signature of the
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`objector’s counsel, if any.
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`14.
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`If a Settlement Class Member does not submit a written Objection to the
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`Settlement or to Class Counsel’s application for attorneys’ fees and costs or the Service Awards
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`in accordance with the deadline and procedure set forth in the Notice and this Order, but the
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`Settlement Class Member wishes to appear and be heard at the Final Approval Hearing, the
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`Settlement Class Member may do so provided the Objector satisfies the requirements of Federal
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`Rule of Civil Procedure 23(e)(5)(A) at the Final Approval Hearing.
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`15.
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`Objecting Settlement Class Members may appear at the Final Approval Hearing
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`and be heard. Such Class Members are requested, but not required, in advance of the Final
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`Approval Hearing, to file with the Court or mail to the Class Administrator a Notice of Intent to
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`Appear.
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`16.
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`All Members of the Settlement Class, except those who submit timely Requests
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`for Exclusion, will be bound by all determinations and judgments regarding the Settlement,
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`whether favorable or unfavorable to the Settlement Class.
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`17.
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`Submission of Claims. To receive a Cash Award, Settlement Class Members must
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`follow the directions in the Notice and file a claim with the Class Administrator by the Claims
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`Deadline of September 7, 2021. Settlement Class Members who do not submit a claim will not
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`receive a Cash Award, but will be bound by the Settlement.
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`18.
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`Schedule of Future Events. The Court adopts the following schedule (with Day
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`“0” the date of this Order):
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`Event
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`Day
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`Approximate Weeks
`After Preliminary
`Approval
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`Date of Preliminary Approval Order
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`0
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`-
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`Case No. 16-CV-04955-LHK
`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`Case 5:16-cv-04955-LHK Document 395 Filed 06/15/21 Page 6 of 6
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`Event
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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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`Approximate Weeks
`After Preliminary
`Approval
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`3 weeks
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`7 weeks
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`Day
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`21
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`49
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`Notice completion date, and deadline to make a claim,
`opt out, and object
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`84
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`12 weeks
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`Deadline for Plaintiffs to file Motion for Final
`Approval
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`103
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`15 weeks
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`19.
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`Final Approval Hearing. A Final Approval Hearing is scheduled for November 18,
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`2021, at 1:30 p.m., for the Court to determine whether the Settlement on the terms and conditions
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`set forth in the Settlement Agreement is fair, reasonable, and adequate to the Settlement Class
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`and should be finally approved by the Court; whether a Judgment should be entered; and to
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`determine any amount of fees, costs, and expenses that should be awarded to Class Counsel and
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`the amount of any service awards to Plaintiffs. The Court reserves the right to adjourn the date of
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`the Final Approval Hearing without further notice to the members of the Settlement Class. The
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`Court may approve the Settlement, with such modifications as may be agreed to by the settling
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`Parties, if appropriate, without further notice to the Settlement Class.
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`20.
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`Retention of Jurisdiction. The Court retains jurisdiction over the Action to
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`consider all further matters arising out of or connected with the Settlement Agreement and the
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`Settlement described therein.
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`IT IS SO ORDERED.
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`Dated: June 15, 2021
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`______________________________________
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`LUCY H. KOH
`United States District Judge
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`ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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