Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 1 of 35
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`STEVE HESSE and ADAM BUXBAUM, on behalf
`of themselves and all others similarly situated,
` Plaintiffs,
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`GODIVA CHOCOLATIER, INC.,
` Defendant.
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`No. 1:19-cv-0972-LAP
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`ORDER GRANTING FINAL
`APPROVAL OF CLASS ACTION
`SETTLEMENT AND AWARDING
`ATTORNEYS’ FEES AND COSTS
`AND CLASS REPRESENTATIVE
`SERVICE AWARDS
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`Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 2 of 35
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`Plaintiffs Steve Hesse and Adam Buxbaum (“Plaintiffs”) and Defendant Godiva
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`Chocolatier, Inc. (“Defendant” or “Godiva”) have entered into a Settlement Agreement, which,
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`together with the exhibits attached thereto, sets forth the terms and conditions for a proposed
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`settlement and dismissal of the Action with prejudice as to Godiva, upon the terms and conditions
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`set forth therein (the “Settlement Agreement”).
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`On October 26, 2021, the Court granted Plaintiffs’ Motion for Preliminary Approval of
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`Class Action Settlement, provisionally certifying the Settlement Class. ECF No. 72 (“Preliminary
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`Approval Order”).
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`Pursuant to the notice requirements set forth in the Settlement Agreement and in the
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`Preliminary Approval Order, the Class was notified of the terms of the proposed Settlement, of the
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`right of members of the Class to opt-out or exclude themselves, and of the right of members of the
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`Class to be heard at a Final Approval Hearing to determine, inter alia, (a) whether the terms and
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`conditions of the Settlement Agreement are fair, reasonable, and adequate for the release of the
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`claims contemplated by the Settlement Agreement, and (b) whether judgment should be entered
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`dismissing this Action with prejudice.
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`The Court has before it Plaintiffs’ Motion for Final Approval of Class Action Settlement
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`(“Motion for Final Approval”) and Motion for Attorneys’ Fees and Costs and Class Representative
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`Service Awards (“Fee Application”). The Court has also received a letter from the State Attorneys
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`General of Florida, Idaho, Maryland, New Jersey, Ohio, and Utah, expressing concerns with the
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`Settlement (ECF No. 98), along with three Objections to the Settlement from Kristen Arntzen
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`(ECF No. 73), Shiyang Huang (ECF No. 92), and Eli Lehrer (ECF No. 93).
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`After reviewing the motions; the memoranda of law, and evidence in support, the
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`Settlement Agreement and exhibits thereto; all concerns, oppositions, and objections to the Motion
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`Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 3 of 35
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`for Final Approval and the Fee Application; all supporting declarations from the Settlement
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`Administrator; and the arguments and authorities presented by the Parties and their counsel at the
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`Final Approval Hearing held on March 28, 2022, and the record in the Action, and good cause
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`appearing,
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`IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
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`1.
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`Terms and phrases in this Order shall have the same meaning as ascribed to them
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`in the Settlement Agreement, unless otherwise defined herein.
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`2.
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`This Court has jurisdiction over the subject matter of the Action and over all Parties
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`to the Action, including all Class Members.
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`NOTICE TO THE CLASS WAS APPROPRIATE
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`3.
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`Notice of the settlement must comply with both the Due Process Clause and with
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`Fed. R. Civ. P. 23(c)(e). Due process requires only that notice be “reasonably calculated, under all
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`the circumstances, to apprise interested parties of the pendency of the action and afford them an
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`opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
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`306, 314 (1950); Weinberger v. Kendrick, 698, F.2d 61, 70 (2d Cir. 1982) (requiring a “very
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`general description[s] of the proposed settlement”). Rule 23 requires “best notice that is practicable
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`under the circumstances, including individual notice to all members who can be identified through
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`reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); see also Fed. R. Civ. P. 23(e).
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`4.
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`The notice provided to the Class pursuant to the Settlement Agreement and
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`Preliminary Approval Order—including (i) repeated direct notice to the Class via email, (ii) the
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`creation of the Settlement Website, and (iii) the dissemination of notice via publication and digital
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`media notice—fully complied with the requirements of Fed. R. Civ. P. 23 and due process, was
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`reasonably calculated under the circumstances to apprise the Class of the pendency of the Action,
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`Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 4 of 35
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`their right to object or exclude themselves from the Settlement Agreement, and their right to appear
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`at the Final Approval Hearing. In particular, through a multi-media channel approach to notice,
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`which employed direct notice, digital, social and mobile media, an estimated 82 percent of targeted
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`Class Members were reached by the notice program, on average 2.8 times. Declaration of Jeanne
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`C. Finegan (“Finegan Decl.”) ¶33 (ECF No. 86). Godiva possessed email addresses for 8,235,538
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`potential class members. Finegan Decl. ¶ 17. Accordingly, Kroll Settlement Administration
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`(“Kroll”) emailed direct notice to each of these individuals, i.e., approximately 46% of the Class.
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`It then sent another 7,692,027 reminder emails. Id. ¶ 20. In conjunction with this direct notice,
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`Kroll implemented a state-of-the-art publication notice plan, which consisted of 35 million media
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`impressions, including on Facebook and Instagram, and the creation of a settlement website and
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`IVR phone support for Class Members to contact if they had any questions about the Settlement
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`or the case. Id. ¶¶ 21-25.
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`5.
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`The Parties properly and timely notified the appropriate government officials of the
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`Settlement Agreement, pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. §
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`1715. Finegan Decl. ¶ 25. More than ninety days have elapsed since Kroll Settlement
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`Administration (“Kroll”), the Settlement Administrator, served notice pursuant to CAFA,
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`rendering this Order on Final Approval appropriate under 28 U.S.C. § 1715(d).
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`6.
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`Messrs. Huang and Lehrer and the State Attorneys General argue that notice was
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`insufficient. The strongest critique argues that notice should have been posted on Godiva’s
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`website. While that is an additional method of notice, considering that Godiva has already sent out
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`over 8.2 million emails, with approximately 7.7 million reminder emails, including emails from
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`online sales on the website, requiring supplemental notice on the website would not, in the Court’s
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`view, meaningfully increase the claims rate.
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`7.
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`The State Attorneys General also argue that the claims rate would have been
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`improved if the Parties had informed “class members of the number of Godiva chocolates they
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`purchased,” or, at a minimum, informed class members that they could have used online records
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`to support their claims. The Parties argue that this procedure, of sending copies of receipts from
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`online records, would raise concerns about preferential treatment because it would give class
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`members who made online purchases an advantage over class members who did not. In addition,
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`they argue that the time-consuming and complex procedure would be costly and error-prone and
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`would do little to improve the claims rate. In the Court’s view, that procedure would indeed be
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`costly and error prone, considering the lengthy Class Period. As counsel for Godiva points out, the
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`percentage of online purchases is approximately 15 percent, and accordingly, this additional notice
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`would not materially increase the claims rate.
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`8.
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`The State Attorneys General also argue that the Parties could have searched the
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`sales records of online retailers—that is, non-Godiva sellers—to identify additional Class
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`Members. Mr. Huang raises a similar complaint about the lack of direct notice to every single
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`Class Member, in particular, to in-store purchasers. The Parties argue that such notice likely would
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`have required a subpoena and likely would raise privacy concerns with respect to that customer
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`data. Plaintiffs cite two examples from the Western District of Missouri and the Middle District of
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`Florida of courts rejecting similar efforts “as difficult, expensive, and essentially fruitless.”
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`Poertner v. Gillette Co., 2014 WL 4162771, at *3 (M.D. Fla. Aug. 21, 2014), aff’d, 618 F.App’x
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`624 (11th Cir. 2015); see also Jones v. Monsanto Co., 2021 WL 2426126, at *5 (W.D. Mo. May
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`13, 2021). Godiva argues that the cases cited by Mr. Huang as examples where third-party
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`subpoenas were used to collect class member information are distinct because they involved
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`manufacturers, not retailers, and those manufacturers had little to no consumer data to begin with,
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`Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 6 of 35
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`unlike here. And any consumer data would almost certainly overlap among the third-party retailers,
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`adding to the difficulty of processing and utilizing the consumer data as part of the notice program.
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`In the Court’s view, attempting to access third-party retailer information would be an unreasonable
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`effort to demand for this Settlement.
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`9.
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`Finally, the State Attorneys General questioned the efficacy of the digital notice
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`campaign. They say they did not see any ads about the settlement when they searched for Godiva-
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`related terms. Godiva reports that the ad campaign ended on January 12, 2022, and the Attorneys
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`General tried to search after the campaign was ended. Thus, the Court rejects this concern.
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`10. Mr. Huang objects to the fact that Godiva paid the notice costs, relying on Eisen v.
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`Carlisle & Jacqueline, 417 U.S. 156 (1974). But as the Plaintiffs note, Eisen involved notice
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`pursuant to Rule 23(c)(2) in the certification context, rather than conditional certification in the
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`settlement context. And the Court notes that in more recent times, it is quite common for
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`defendants to pay notice costs during settlement.
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`11. Mr. Huang also argues that the notice was “cheap,” but, as the Parties note, they
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`have spent close to a million dollars on the costs of notice and administration (and that number is
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`expected to increase as Kroll has yet to complete the deficiency letter and payment processes)—
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`hardly cheap in anyone’s book.
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`12. Mr. Lehrer objects that the claims process had an early and arbitrary deadline before
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`the objection and opt-out deadlines. But the point of the staggered deadlines is to allow potential
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`objectors to consider the most current claims data before the objection deadline. In any event, the
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`120-day period for claims is consistent, and sometimes greater than, the typical claims period for
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`consumer class actions.
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`13.
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`Accordingly, the Court finds that the notice procedures were reasonable in this case.
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`Case 1:19-cv-00972-LAP Document 135 Filed 04/20/22 Page 7 of 35
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`THE SETTLEMENT CLASS IS CERTIFIED
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`14.
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`The Settlement Class is defined as:
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`All Persons who purchased any Godiva Chocolate Product in the United States during the
`Class Period. Excluded from the Settlement Class are: (a) Godiva and any of its parents’,
`affiliates’, or subsidiaries’ employees, officers and directors, (b) distributors, retailers or
`re-sellers of Godiva Chocolate Products, (c) governmental entities, (d) the Court, the
`Court’s immediate family, Court staff, (e) the mediator and her staff and immediate family,
`(f) counsel of record for the Parties, and their respective law firms, and (g) all Persons who
`timely and properly exclude themselves from the Settlement Class.
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`Settlement Agreement ¶ 65.
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`15.
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`The Settlement Class is certified because it satisfies the requirements of Rule 23(a)
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`and Rule 23(b)(3) of the Federal Rules of Civil Procedure.
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`16.
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`Rule 23(a) imposes four threshold requirements for class certification: (1)
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`numerosity (“the class is so numerous that joinder of all members is impracticable”), (2)
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`commonality (“there are questions of law or fact common to the class”), (3) typicality (“the claims
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`or defenses of the representative parties are typical of the claims or defenses of the class”), and (4)
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`adequacy of representation (“the representative parties will fairly and adequately protect the
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`interests of the class”). Fed. R. Civ. P. 23(a).
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`17.
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`Numerosity is met if “the class is so numerous that joinder of all members is
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`impracticable[.]” Fed. R. Civ. P. 23(a)(1). In the Second Circuit, “numerosity is presumed at a
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`level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
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`Because the Settlement Class consists of several hundred thousand Class Members, the numerosity
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`requirement is satisfied. Supplemental Declaration of James R. Prutsman (“Supp. Prutsman
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`Decl.”) ¶ 13 (ECF No. 105).
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`18.
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`The commonality requirement under Fed. R. Civ. P. 23(a)(2) examines whether the
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`Class’s claims “depend upon a common contention ... capable of classwide resolution” such that
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`“its truth or falsity will resolve an issue that is central to the validity of each one of the claims in
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`one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). There are clear common
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`questions of law or fact in this case, including whether the challenged representations are likely to
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`have deceived reasonable consumers into believing that the Godiva Chocolate Products are from
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`Belgium. Accordingly, the commonality requirement is satisfied.
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`19.
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`The typicality requirement under Rule 23(a)(3) is satisfied when “each class
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`member’s claim arises from the same course of events and each class member makes similar legal
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`arguments to prove the defendant’s liability.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574
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`F.3d 29, 35 (2d Cir. 2009). Here, each Class Members’ claims and legal arguments arise out of the
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`same theory of liability—namely, that they were allegedly deceived into believing the Godiva
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`Chocolate Products are sourced from Belgium based on the representations made on the
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`packaging. The same is true for Plaintiffs. Accordingly, the typicality requirement is satisfied.
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`20.
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`The adequacy requirement under Fed. R. Civ. P. 23(a)(4) is satisfied if the plaintiff:
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`(1) is represented by counsel who is “qualified, experienced and able to conduct the litigation[;]”
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`and (2) does not possess interests “antagonistic to the interest of other members of the class[.]”
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`Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, Plaintiffs’
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`interests are aligned with those of the Class, and they have provided significant, valuable assistance
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`in the investigation and prosecution of this matter, and helped to bring about this Settlement.
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`Declaration of Steve Hesse (“Hesse Decl.”) ¶¶ 3, 5; Declaration of Adam Buxbaum (“Buxbaum
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`Decl.”) ¶¶ 3, 5. Plaintiffs are therefore “adequate” class representatives within the meaning of Rule
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`23(a)(4). Baudin v. Res. Mktg. Corp., No. 1:19-cv-386 (MAD/CFH), 2020 WL 4732083, at *5
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`(N.D.N.Y. Aug. 13, 2020). Class Counsel is also “adequate” because they have extensive
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`experience in class action litigation and have vigorously pursued these claims throughout this
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`litigation. Declaration of Timothy J. Peter In Support Of Plaintiffs’ Motion For Final Approval
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`and Motion For Attorneys’ Fees and Costs and Class Representative Service Awards (“Peter
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`Decl.”) ¶¶ 41-44; Declaration of Aubry Wand In Support Of Plaintiffs’ Motion For Final Approval
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`and Motion For Attorneys’ Fees and Costs and Class Representative Service Awards (“Wand
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`Decl.”) ¶¶ 10-15; see also Vaccaro v. New Source Energy Partners L.P., No. 15 CV 8954 (KMW),
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`2017 WL 6398636, at *3 (S.D.N.Y. Dec. 14, 2017) (adequacy requirement met where class
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`counsel “litigated dozens of class actions in the United States” and recovered substantial monetary
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`relief for class members). Accordingly, the adequacy requirement is satisfied.
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`21.
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`To meet the requirements of Rule 23(b)(3), the Court must conclude “that the
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`questions of law or fact common to class members predominate over any questions affecting only
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`individual members, and that a class action is superior to other available methods for fairly and
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`efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
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`22.
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`“As long as a sufficient constellation of common issues binds class members
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`together, variations in the sources and application of a defense will not automatically foreclose
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`class certification” under Rule 23(b)(3). Brown v. Kelly, 609 F.3d 467, 483 (2d Cir. 2010) (internal
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`quotations omitted). Here, the common issue which binds the Class together is whether the
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`packaging of the Godiva Chocolate Products would likely deceive a reasonable consumer into
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`believing the products are from Belgium. This systematic course of conduct, which could be
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`proven through common evidence, overrides any potential individual inquiries relating to proof.
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`Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Trust Co., No. 14-CV-4394 (AJN), 2018 WL
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`1750595, at *14 (S.D.N.Y. Apr. 11, 2018). Moreover, in the settlement context, the Court need
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`not inquire whether the case, if tried, would present trial management problems. See Ferrick v.
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`Spotify USA Inc., No. 16-cv-8412 (AJN), 2018 WL 2324076, at *2 (S.D.N.Y. May 22, 2018).
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`23.
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`Furthermore, a class action is superior to other forms of litigation, as “proceeding
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`individually would be prohibitive due to the minimal recovery.” Seijas v. Republic of Argentina,
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`606 F.3d 53, 58 (2d Cir. 2010). Here, the only method to ensure the fair and efficient adjudication
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`of this Action is through a class action, which will allow individual Settlement Class Members to
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`bring together claims that would be economically infeasible to litigate on an individual basis.
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`24.
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`Accordingly, the Rule 23(b)(3) predominance requirement is satisfied.
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`THE SETTLEMENT IS FINALLY APPROVED
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`25.
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`The Court now gives final approval to the Settlement Agreement, and finds that the
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`Settlement Agreement is fair, reasonable, adequate, and in the best interests of the Class. The
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`monetary consideration provided under the Settlement constitutes fair value given in exchange for
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`the release of the Released Claims against the Released Parties. The Court finds that the
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`consideration to be paid to members of the Settlement Class is reasonable, and in the best interests
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`of the Settlement Class Members, considering, inter alia, the total value of their claims compared
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`to (i) the disputed factual and legal circumstances of the Action, (ii) affirmative defenses asserted
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`in the Action, and (iii) the potential risks and likelihood of success of pursuing litigation on the
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`merits. The complex legal and factual posture of this case, the amount of discovery completed,
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`and the fact that the Settlement is the result of arm’s-length negotiations between the Parties all
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`support this finding. The Court finds that these facts, in addition to the Court’s observations
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`throughout the litigation, demonstrate that there was no collusion present in the reaching of the
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`Settlement Agreement, implicit or otherwise. Further, as explained below, this Court finds that the
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`Settlement Agreement meets all applicable requirements of law, including Federal Rule of Civil
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`Procedure 23(e) and the criteria articulated in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d
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`Cir. 1974).
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`26.
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` As the Court noted in its Preliminary Approval Order, a class action settlement is
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`evaluated for procedural and substantive fairness. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396
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`F.3d 96, 116 (2d Cir. 2005).
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`27.
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`Alongside the fairness inquiry, when evaluating the terms of a proposed class
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`settlement, this Court is guided by the factors enumerated in Grinnell, 495 F.2d 448, abrogated on
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`other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). These “Grinnell
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`factors” are:
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`(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class
`to the settlement; (3) the stage of the proceedings and the amount of discovery completed;
`(4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of
`maintaining the class action through the trial; (7) the ability of the defendants to withstand
`a greater judgment; (8) the range of reasonableness of the settlement fund in light of the
`best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a
`possible recovery in light of all the attendant risks of litigation[.]
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`Id. at 463 (citations omitted). The Rule 23(e) fairness inquiry requires this Court to consider
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`whether the settlement is “fair, reasonable, and adequate” after considering additional factors1
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`which “clarify[] and supplement[] the Grinnell factors.” Rosenfeld, 2021 WL 508339, at *3; see
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`also In re Payment Card Interchange Fee & Merch. Discount Antitrust Litig., 330 F.R.D. 11, 29
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`(E.D.N.Y. Jan. 28, 2019) (new Rule 23(e) factors “add to, rather than displace, the Grinnell
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`factors.”).
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`1 Fed. R. Civ. P 23(e)(2) states in pertinent part that “[i]f the proposal would bind class members,
`the court may approve it only after a hearing and only on finding that it is fair, reasonable, and
`adequate after considering whether: (A) the class representatives and class counsel have
`adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief
`provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and
`appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including
`the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s
`fees, including timing of payment; and (iv) any agreement required to be identified under Rule
`23(e)(3); and (D) the proposal treats class members equitably relative to each other.”
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`28.
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`The Grinnell and amended Rule 23(e) factors weigh in favor of granting final
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`approval. The Court first explains why the Settlement Agreement is procedurally and substantively
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`fair under Rule 23(e), and then addresses the additional Grinnell factors which are not otherwise
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`encompassed by the Rule 23(e) factors.
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`29.
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`Procedural Fairness - Rule 23(e)(2)(A-B). With respect to the procedural fairness
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`elements, the Court reiterates its preliminary findings that the Settlement terms comply with those
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`requirements. “Rule 23(e)(2)(A), which requires adequate representation, and Rule 23(e)(2)(B),
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`which requires arm’s-length negotiations, constitute the procedural analysis of the fairness
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`inquiry.” Christine Asia Co., v. Yun Ma, No. 1:15-md-02631, 2019 WL 5257534, at *9 (S.D.N.Y.
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`Oct. 16, 2019) (internal quotations omitted). The Court finds both elements met and thus, the
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`Settlement procedurally fair. A proposed settlement is presumed fair, reasonable, and adequate if
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`it culminates from “arm’s-length negotiations between experienced, capable counsel after
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`meaningful discovery.” McReynolds v. Richards-Cantave, 588 F.3d 790, 803 (2d Cir. 2009)
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`(quotation omitted). Additionally, “the quality of representation is best measured by results.”
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`Goldberger, 209 F.3d at 55 (quotation omitted). Here, the Settlement was negotiated by counsel
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`experienced in litigating these types of cases through the assistance of an experienced mediator
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`over the course of two full-day mediation sessions and months’ worth of subsequent
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`communications. Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 618 (S.D.N.Y. 2012)
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`(involvement of experienced mediator “strong indicator of procedural fairness”). Class Counsel
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`conducted substantial discovery before the mediations and before executing the Settlement
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`Agreement. Peter Decl. ¶ 12. Class Counsel also consulted with experts in the fields of economics
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`and statistics regarding damages, and the chocolate industry, before the mediation sessions. Id. ¶¶
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`13-16. Moreover, the amount of Class relief in this Settlement given the nature of the claims at
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`issue is enough to overcome any doubts regarding procedural fairness.
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`30.
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`Substantive Fairness - Rule 23(e)(2)(C-D) and Grinnell Factors. With respect to
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`substantive fairness, the Court also reiterates its preliminary findings that the substantive fairness
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`factors in Grinnell have been met. The substantive fairness inquiry of Rule 23, covered under Rule
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`23(e)(2)(C-D), considers the following: (i): the costs, risks, and delay of trial and appeal; (ii) the
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`effectiveness of any proposed method of distributing relief to the class, including the method of
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`processing class member claims; (iii) the terms of any proposed award of attorney’s fees, including
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`timing of payment; (iv) whether the proposed settlement treats class members equitably relative to
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`each other; and (v) any agreement required to be identified under Rule 23(e)(3).
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`31.
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`Rule 23(e)(2)(C)(i) / Grinnell Factors Nos. 1, 4, 5 and 6 - The Costs, Risks, and
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`Delay of Trial and Appeal. The Court finds that these factors, individually and weighed together,
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`militate in favor of granting final approval of the Settlement. Rule 23(e)(2)(C)’s first factor, the
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`“costs, risks, and delay of trial and appeal, subsumes several Grinnell factors, including the
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`complexity, expense and likely duration of litigation, the risks of establishing liability, the risks of
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`establishing damages, and the risks of maintaining the class through trial.” Rosenfeld, 2021 WL
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`508339, at *5–6 (citing Payment Card, 330 F.R.D at 36). Class action lawsuits have a “reputation
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`as being most complex.” Id. at *5 (internal quotation marks omitted). Indeed, absent the instant
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`Settlement, Plaintiffs would have had to “to survive summary judgment, prevail at trial, and secure
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`an affirmance of their victory on appeal in order to recover damages. Moreover, they would also
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`need to certify and maintain the class, over the [] Defendants’ possible opposition.” Id. Instead,
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`the Parties were able to craft a settlement providing substantial monetary benefits to the Class
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`while avoiding the expense and delay of continued litigation. Courts have consistently held that,
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`unless the proposed settlement is clearly inadequate, its acceptance and approval are preferable to
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`the continuation of lengthy and expensive litigation with uncertain results. See Velez v. Novartis
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`Pharm. Corp., No. 04 Civ. 09194(CM), 2010 WL 4877852, at *14 (S.D.N.Y. Nov. 30, 2010) (“As
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`federal courts in this Circuit have consistently recognized, litigation inherently involves risks, and
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`the purpose of settlement is to avoid uncertainty.”). This case is no exception.
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`32.
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`Rule 23(e)(2)(C)(ii) - Effectiveness of Proposed Method of Distributing Relief.
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`Pursuant to Rule 23(e)(2)(C)(ii), the Court should “consider the effectiveness of the parties’
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`“proposed method of distributing relief to the class, including the method of processing class-
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`member claims.” Rosenfeld, 2021 WL 508339, at *6 (internal quotation marks omitted). “[A] plan
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`of allocation need not be perfect,” In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ.
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`10240(CM), 2007 WL 2230177, at *11 (S.D.N.Y. July 27, 2007), and instead “need only have a
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`reasonable, rational basis, particularly if recommended by experienced and competent class
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`counsel.” In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 344 (S.D.N.Y. 2005). The plan
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`of allocation here is straightforward and the result of extensive negotiation between highly
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`competent counsel, with the input of the experienced mediator Jill R. Sperber. Under the
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`Settlement, Class Members will each be entitled to a payment of $1.25 per qualifying purchase,
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`up to $15 or $25, depending on whether or not the Class Member has Proof of Purchase. Settlement
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`Agreement ¶ 68 (a)-(b). The Claim Form is written in clear and concise language and could be
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`submitted through the settlement website or Class Members could print and mail the Claim Form
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`to the Settlement Administrator. Id. ¶ 70. All Settlement Benefits to Class Members will be in the
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`form of cash payments via a check or electronic payment, whichever option the Settlement Class
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`Member elects. Id. ¶¶ 82-83. This procedure is claimant-friendly, efficient, proportional, and
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`reasonable. Therefore, the allocation plan is effective and is “rational and fair, as it treats class
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`members equitably while taking into account variations in the magnitude of their injuries.”
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`Rosenfeld, 2021 WL 508339, at *6.
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`33. Mr. Lehrer objects that relief is not “effectively” distributed. He generally objects
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`to the size of the pot and that this is a claims-made settlement. He raises fears that a substantial
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`number of the claims will be invalid. But the final number of valid claims was over 500,000 and
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`over $7.5 million will be paid to the Class, so these fears do not appear to have been realized.
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`Supp. Prutsman Decl. ¶ 13.
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`34. Mr. Lehrer also objects to the cy pres provision. First, he objects that funds
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`remaining from uncashed checks and PayPal payments will not be available for a second
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`distribution to class members, and instead will be distributed to a cy pres recipient. Second, he
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`objects to the identity of the cy pres recipient, Public Justice Foundation (“Public Justice”),
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`because it works on “polarized issues,” such as promoting abortion access, fighting against
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`employers’ ability to subject employee claims to arbitration, and fighting school dress codes on
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`behalf of non-binary children. While the money can be earmarked for consumer fraud work, the
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`foundation can move money to work on these more controversial issues. Mr. Lehrer argues that
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`using funds that “belong to class members” in this manner violates the First Amendment.
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`35.
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`Plaintiffs contend that cy pres is appropriate because providing additional
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`compensation to class members would be a windfall. Moreover, it would be economically
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`unfeasible to redistribute unclaimed funds. Plaintiffs estimate that no more than $567,951 will go
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`unclaimed, which would result in approximately a $1.11 to each class member. The Parties argue
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`that it is reasonable for Godiva to retain unclaimed settlement dollars because otherwise
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`“participating class members [would] receive a windfall . . .” The Court agrees.
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`36.
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`The next question is whether it would be reasonable to order distribution of the
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`$1.11 to the non-paper claimants. While the Court could order the Settlement Administrator to
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`conduct a second distribution, the administrative costs would outweigh the benefits of such
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`distribution, especially in light of the administration costs already expended. See In re Visa
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`Check/MasterMoney Antitrust Litig., 2011 WL 5029841, at *9 (E.D.N.Y. Oct. 24, 2011) (“An
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`additional distribution in this case would involve prohibitively high administrative costs. Checks
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`that would be sent to class members in connection with such distribution would be de minimis.
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`Therefore ... a cy pres award is a more appropriate manner by which to dispose of the remaining
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`settlement funds than would be an additional distribution.”). The Court agrees.
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`37.
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`The next question is whether Public Justice is an appropriate cy pres recipient.
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`According to its website, “Public Justice pursues high impact lawsuits to combat social and
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`economic injustice, protect the Earth’s sustainability, and challenge predatory corporate conduct
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`and government abuses.” See