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`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 1 of 11
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF NEW YORK
`
`Lauren Biegel, Greg Maroney, Ryan
`Cosgrove, Clive Rhoden, Stephen Bradshaw,
`Angela Farve and Christina Henderson,
`individually and on behalf of all others
`similarly situated,
`
`Case N0.: 7:20-cv~03032—CS
`
`ORDER GRANTING PRELIMINARY
`APPROVAL OF SETTLEMENT,
`APPROVAL OF FORM NOTICE, AND
`SCHEDULING OF FINAL APPROVAL
`
`v.
`
`Plaintiffs,
`
`HEARING
`
`Blue Diamond Growers,
`
`Defendant.
`
`
`Upon consideration of the Motion by Plaintiffs Lauren Biege] (“Biegel”), Greg Maroney
`
`(“Maroney”), Stephen Bradshaw (“Bradshaw”), Angela Farve (“Farve”), Ryan Cosgrove
`
`(“Cosgrove”), Clive Rhoden (“Rhoden”), and Christina Henderson (“Henderson”) (collectively,
`
`the “Plaintiffs”)
`
`for Preliminary Approval of Settlement, Approval of Form Notice, and
`
`Scheduling of Final Approval Hearing, and the entire record herein, the Court grants preliminary
`
`approval of the Settlement contained in the Parties’ Class Settlement Agreement filed on April 19,
`
`2021 (“Settlement Agreement”), upon the terms and conditions set forth in this Order. Capitalized
`
`terms and phrases in this Order shall have the same meaning they have in the Settlement
`
`Agreement. The Court makes the following findings:
`
`FINDINGS OF FACT
`
`1.
`
`Plaintiffs bring their Motion for Preliminary Approval of Settlement, Approval of
`
`Form Notice, and Scheduling of Final Approval Hearing before the Court, with the consent of
`
`Defendant Blue Diamond Growers (“Defendant”, “BDG”, or the “Company”).
`
`2.
`
`The Parties, through their counsel, conducted an extensive and thorough
`
`examination, investigation, and evaluation of the relevant law, facts, and allegations to assess the
`
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 2 of 11
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`merits of the potential claims to determine the strength of both defenses and liability sought in
`
`the Action.
`
`3.
`
`The Parties engaged in discovery, where Defendant provided Class Counsel with
`
`extensive information and documents.
`
`4.
`
`In addition, Class Counsel evaluated the various state consumer protection laws,
`
`as well as the legal landscape, to determine the strength of the claims, the likelihood of success,
`
`and the parameters within which courts have assessed settlements similar to the proposed
`
`Settlement.
`
`5.
`
`The Parties entered into a Settlement Agreement pursuant to which they agreed to
`
`settle the Action, subject to the approval and determination by the Court as to the fairness,
`
`reasonableness, and adequacy of the Settlement, which, if approved, will result in dismissal of
`
`the Action with prejudice.
`
`6.
`
`The Court has reviewed the Settlement Agreement, including the exhibits
`
`attached thereto, and the Declarations of Spencer Sheehan and Steven Weisbrot, and exhibits
`
`attached thereto, and having found good cause based on the record,
`
`THEREFORE, iT IS ORDERED, ADJUDGED, AND DECREED as follows:
`
`1.
`
`Stay of the Action. All non-settlement-related proceedings in the Action are
`
`hereby stayed and suspended until further order of the Court.
`
`2.
`Preliminary Class Certification for Settlement Purposes Only. Having made
`the findings set forth above, the Court hereby preliminarily certifies a plaintiff class for
`
`settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2) and (b)(3),
`
`in accordance with the terms of the Settlement Agreement (the “Settlement Class”). The Court
`
`preliminarily finds, based on the terms of the Settlement described in the Settlement Agreement
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 2 of 11
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`

`

`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 3 of 11
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`and for settlement purposes only, that: (a) the Settlement Class is so numerous that joinder of all
`
`members is impracticable; (b) there are issues of law and fact that are typical and common to the
`
`Class, and that those issues predominate over individual questions; (0) a class action on behalf of
`
`the certified Class is superior to other available means of adjudicating this dispute; and (d) as set
`
`forth below, Plaintiffs and Class Counsel are adequate representatives of the Class. If the Court
`
`does not grant final approval of the Settlement set forth in the Settlement Agreement, or if the
`
`Settlement set forth in the Settlement Agreement is terminated in accordance with its terms, then
`
`the Settlement Agreement, and the certification of the Settlement Class provided for herein, will
`
`be vacated and the Action shall proceed as though the Settlement Class had never been certified,
`
`without prejudice to any party’s position on the issue of class certification or any other issue.
`
`Defendant retains all rights to assert that the Action may not be certified as a class action, other
`
`than for purposes of this Settlement.
`
`3.
`
`Class Definition. The Settlement Class is defined as All consumers in the United
`
`States who purchased the Products during the Class Period. The Settlement Class excludes the
`
`Released Parties, any government entities, persons who made such purchase for the purpose of
`
`resale, persons who made a valid, timely request for exclusion, and Hon. Cathy Seibel and
`
`Randall W. Wulff, and any members of their immediate family.
`
`4.
`
`Class Representatives and Class Counsel. The Court appoints Michael R. Reese
`
`of Reese LLP, Spencer Sheehan of Sheehan & Associates, P.C., and Kevin Laukaitis of Shub
`
`Law Firm LLC. as class counsel for the Settlement Class. Lauren Biegel, Greg Maroney, Stephen
`
`Bradshaw, Angela Farve, Ryan Cosgrove, Clive Rhoden, and Christina Henderson are hereby
`
`appointed as the Class Representatives.
`
`5.
`
`Preliminagy Settlement Approval. The Court preliminarily approves the
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 3 of 11
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`
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 4 of 11
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`Settlement set forth in the Settlement Agreement as being within the range of possible approval
`
`as fair, reasonable, and adequate, within the meaning of Rule 23 and the Class Action Fairness
`
`Act of 2005, subject to final consideration at the Final Approval Fairness Hearing provided for
`
`below. Accordingly, the Settlement Agreement is sufficient to warrant sending notice to the
`
`Class.
`
`6.
`
`Jurisdiction. The Court has subject-matter jurisdiction over the Action pursuant
`
`to 28 U.S.C. §§ 1332 and 1367 and personal jurisdiction over the Parties before it. Additionally,
`
`venue is proper in this District pursuant to 28 U.S.C. § 1391.
`
`7.
`
`Fairness Hearing. A Fairness Hearing shall be held on August 25, 2021 at the
`
`United States District Court for the Southern District Court of New York in the Courtroom 621
`
`at 300 Quarropas Street, White Plains, New York, to determine, among other things: (a) whether
`
`the Action should be finally certified as a class action for settlement purposes pursuant to Rule
`
`23(a), 23(b)(2) and (b)(3); (b) whether the Settlement of the Action should be finally approved as
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 4 of 11
`
`
`
`fair, reasonable, and adequate pursuant to Rule 23(e); (0) whether the Action should be dismissed
`
`with prejudice pursuant to the terms of the Settlement Agreement; ((1) whether Settlement Class
`
`Members should be bound by the releases set forth in the Settlement Agreement; (e) whether
`
`Settlement Class Members and related persons should be permanently enjoined from pursuing
`
`lawsuits based on the transactions and occurrences at issue in the Action; (f) whether the
`
`application of Class Counsel for an award of Attorneys” Fees and Expenses should be approved
`
`pursuant to Rule 23(h); and (g) whether the application of the named Plaintiffs for Class
`
`Representative Incentive Awards should be approved. The submissions of the Parties in support
`
`of the Settlement, including Class Counsel’s application for Attorneys’ Fees and Expenses and
`
`the Class Representative Incentive Awards, shall be filed with the Court no later than July 26,
`
`«5:33;
`
`
`
`

`

`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 5 of 11
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`2021, which is thirty (30) calendar days prior to the Fairness Hearing.
`
`8.
`
`Administration and Class Notice.
`
`a.
`
`The Court accepts the recommendations of Class Counsel and Defendant,
`
`and hereby appoints Angeion Group to serve as Settlement Administrator in accordance with the
`
`terms of the Settlement Agreement, and to help implement the terms of the Settlement
`
`Agreement.
`
`b.
`
`The proposed Class Notice, Summary Settlement Notice, and notice
`
`methodology described in the Settlement Agreement and in the Declaration of Steven Weisbrot
`
`(the “Weisbrot Declaration”) are hereby approved.
`
`c.
`
`No later than ten (10) calendar days after the entry of the Preliminary
`
`Approval Order, the Settlement Administrator shall cause the Notice Plan to commence as
`
`described in the Weisbrot Declaration. Prior to the Notice Date, the Settlement Administrator
`
`shall establish a website that will inform Settlement Class Members of the terms of the
`
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`
`Settlement Agreement, their rights, dates and deadlines, and related information. The website
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 5 of 11
`
`shall include materials agreed upon by the Parties and as further ordered by this Court.
`
`6.
`
`The Settlement Administrator shall disseminate any remaining notice, as
`
`stated in the Settlement Agreement and the Weisbrot Declaration.
`
`e.
`
`No later than seven (7) calendar days before the date of the Fairness
`
`Hearing, the Settlement Administrator shall file a declaration or affidavit with the Court that: (i)
`
`includes a list of those persons who have opted out or excluded themselves from the Settlement;
`
`and (ii) attests to the proper implementation of the Notice Plan.
`
`f.
`
`No later than ten (10) calendar days after the Settlement Agreement is
`
`filed with the Court, the Settlement Administrator, with assistance from the Parties as needed,
`
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 6 of 11
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`
`
`
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`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 6 of 11
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`shall mail or cause the items specified in 28 U.S.C. § 1715(b) to be mailed to each State and
`
`Federal official, as specified in 28 U.S.C. § 1715(a).
`
`9.
`
`Findings Concerning Notice. The Court finds that the form, content, and method
`
`of giving notice to the Class as described in paragraph 8 of this Order: (a) will constitute the best
`
`practicable notice; (b) are reasonably calculated, under the circumstances, to apprise the
`
`Settlement Class Members of the pendency of the Action, the terms of the proposed Settlement,
`
`and their rights under the proposed Settlement, including but not limited to their rights to object
`
`to or exclude themselves from the proposed Settlement and other rights under the terms of the
`
`Settlement Agreement; (0) are reasonable and constitute due, adequate, and sufficient notice to
`
`all Settlement Class Members and other persons entitled to receive notice; and (d) meet all
`
`applicable requirements of law, including but not limited to 28 U.S.C. § 1715, Rule 23(c) and
`
`(e), and the Due Process Clause(s) of the United States Constitution. The Court further finds that
`
`all of the notices are written in plain language, are readily understandable by Settlement Class
`
`Members, and are materially consistent with the Federal Judicial Center’s illustrative class action
`
`notices.
`
`10.
`
`Exclusion from Settlement Class. Any Settlement Class Member who wishes to
`
`be excluded from the Class may elect to opt out of the Settlement under this Agreement by
`
`completing the exclusion form at the Settlement Website; downloading and submitting to the
`
`Claim Administrator a completed exclusion form; or submitting a valid request to exclude
`
`themselves, as described in the Notice, to the Claim Administrator. Settlement Class Members
`
`who opt out of the Settlement will not release their claims for damages that accrued during the
`
`Class Period. Any request for exclusion must be delivered (not just postmarked) by the Opt-Out
`
`and Objection Deadline or they shall not be valid. A Settlement Class Member who elects to
`
`
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 7 of 11
`
`exclude themselves from this Settlement shall not be permitted to object to this Settlement or to
`
`intervene. Any Settlement Class Member who does not submit a timely request for exclusion
`
`shall be bound by all subsequent proceedings, orders, and the Final Approval in this Litigation
`
`relating to this Settlement Agreement, even if he or she has pending, or subsequently initiates
`
`litigation, arbitration, or any other proceeding against BDG relating to the Released Claims.
`
`11.
`
`Objections and Appearances. Any Settlement Class Member who wishes to
`
`object to the fairness of the Settlement must submit a written objection to the Claim
`
`Administrator. The written objection may be submitted by mail, express mail, electronic
`
`transmission, or personal delivery, but to be timely, it must be delivered to the Claim
`
`Administrator (not just postmarked or sent) prior to the Opt-Out and Objection Deadline. Each
`
`objection must include: (i) the case name and number: Biegel v. Blue Diamond Growers, Case
`
`No. 7:20-cv-03032-CS; (ii) the name, address and telephone number of the objector; (iii) the
`
`name, address, and telephone number of all counsel (if any) who represent the objector,
`
`including any former or current counsel who may be entitled to compensation for any reason if
`
`the objection is successful, and legal and factual support for the right to such compensation; (iv)
`
`documents or testimony sufficient to establish membership in the Settlement Class; (v) a detailed
`
`statement of any objection asserted, including the grounds therefor; (vi) whether the objector is,
`
`and any reasons for, requesting the opportunity to appear and be heard at the final approval
`
`hearing; (vii) the identity of all counsel (if any) representing the objector who will appear at the
`
`final approval hearing and, if applicable, a list of all persons who will be called to testify in
`
`support of the objection; (viii) copies of any papers, briefs, or other documents upon which the
`
`objection is based; (ix) a detailed list of any other objections submitted by the Settlement Class
`
`Member, or his/her counsel, to any class Litigations submitted in any state or federal court in the
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 7 of 11
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 8 of 11
`
`United States in the previous five (5) years (or affirmatively stating that no such prior objection
`
`has been made); and (x) the objector’s signature, in addition to the signature of the objector’s
`
`attorney (if any).
`
`Any Settlement Class Member who files and serves a written objection, as described in
`
`the preceding Section, may appear at the Final Approval Hearing, either in person or through
`
`counsel hired at the Settlement Class Member’s expense, to object to any aspect of the fairness,
`
`reasonableness, or adequacy of this Agreement, including Attorneys’ Fees and Expenses and
`
`Class Representative Incentive Awards. Settlement Class Members or their attorneys who intend
`
`to make an appearance at the Final Approval Hearing must serve a notice of intention to appear
`
`on the Class Counsel identified in the Class Notice, and to Defendant’s Counsel, and file the
`
`notice of appearance with the Court, no later than fourteen (14) calendar days before the Final
`
`Approval Hearing, or as the Court may otherwise direct.
`
`Class Counsel shall have the right, and Defendant shall reserve its right, to respond to any
`
`objection no later than fourteen (14) days before the Final Approval Hearing. The Party so
`
`responding shall file a copy of the response with the Court and shall serve a copy, by regular
`
`mail, hand or overnight delivery, to the objecting Settlement Class Member or to the
`
`individuallywhired attorney for the objecting Settlement Class Member, to alt Ciass Counsel, and
`
`to Defendant’s Counsel.
`
`12.
`
`Disclosures. The Settlement Administrator, Defendant’s Counsel, and Class
`
`Counsel shail promptly furnish to each other copies of any and all objections or written requests
`
`for exclusion that might come into their possession.
`
`13.
`
`Termination of Settlement. This Order shall become null and void and shall not
`
`prejudice the rights of the Parties, all of whom shall be restored to their respective positions
`
`
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`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 8 of 11
`
`

`

`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 9 of 11
`
`existing immediately before this Court entered this Order, if: (a) the Settlement is not finally
`
`approved by the Court or does not become final, pursuant to the terms of the Settlement
`
`Agreement; (b) the Settlement is terminated in accordance with the Settlement Agreement; or (c)
`
`the Settlement does not become effective as required by the terms of the Settlement Agreement
`
`for any other reason. In such event, the Settlement and Settlement Agreement shall become null
`
`and void and be of no further force and effect, and neither the Settlement Agreement nor the
`
`Court’s orders, including this Order, relating to the Settlement shall be used or referred to for any
`
`purpose.
`
`14.
`
`Effect of Settlement Agreement and Order. Class Counsei, on behalf of the
`
`Settlement Class, and Defendant entered into the Agreement solely for the purpose of
`
`compromising and settling disputed claims. This Order shall be of no force or effect if the
`
`Settlement does not become final and shall not be construed or used as an admission, concession,
`
`
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`or declaration by or against Defendant of any fauit, wrongdoing, breach, or liability. The
`
`Settlement Agreement, the documents relating to the Settlement Agreement, and this Order are
`
`not, and should not in any event be (a) construed, deemed, offered, or received as evidence of a
`
`presumption, concession, or admission on the part of Plaintiffs, Defendant, any member of the
`
`Settlement Class or any other person; or (b) offered or received as evidence of a presumption,
`
`concession, or admission by any person of any fault, wrongdoing, breach, or liability, or that the
`
`claims in the Action lack merit or that the relief requested is inappropriate, improper, or
`
`unavailable for any purpose in any judicial or administrative proceeding, whether in law or in
`
`equity.
`
`15.
`
`Retaining Jurisdiction. This Court shall maintain continuing jurisdiction over
`
`these settlement proceedings to assure the effectuation thereof for the benefit of the Class. If the
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 9 of 11
`
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`Case 7:20-cv-O3032-CS Document 53 Filed 05/17/21 Page 10 of 11
`
`Settlement receives final approval, this Court shall retain jurisdiction over any action to enforce
`
`the release provisions in the Settlement Agreement.
`
`16.
`
`Continuance of Hearing. The Court reserves the right to adjourn or continue the
`
`Final Approval Hearing without further written notice.
`
`The Court sets the following schedule for the Fairness Hearing and the actions which
`
`must precede it:
`
`a.
`
`Plaintiffs shall file their Motion for Final Approval of the Settlement by no
`
`later than July 26, 2021.
`
`b.
`
`Plaintiffs shall file their Motion for Attorneys’ Fees, Costs, and Expenses,
`
`and Motion for Incentive Award by no later than July 26, 2021.
`
`c.
`
`Settlement Class Members must file any objections to the Settlement and
`
`the Motion for Attorneys’ Fees, Costs, and Expenses, and the Motion for Incentive Award by no
`
`later than August 4, 2021.
`
`d.
`
`Settlement Class Members must exclude themselves, or opt-out, from the
`
`Settlement by no later than August 4, 2021.
`
`e.
`
`Settlement Class Members who intend to appear at the Final Fairness
`
`Hearing must file a Notice of Intention to Appear at the Final'Fairness Hearing by no later than
`
`August 1 l, 2021 .
`
`f.
`
`The Settlement Administrator shall file a declaration or affidavit with the
`
`Court that confirms the implementation of the Notice Plan pursuant to the Preliminary Approval
`
`Order by no later than August 18, 2021.
`
`g.
`
`Class Counsel and Defendant’s Counsel shall have the right to respond to
`
`any objection no later than August 11, 2021.
`
`
`
`
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`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 10 of 11
`
`

`

`Case 7:20-cv-03032—CS Document 53 Filed 05/17/21 Page 11 of 11
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`h.
`
`The Fairness Hearing will take place on August 25, 2021 at ('l H5
`
`.111 at the United States District Court for the Southern District Court ofNew York in the
`
`Courtroom 621 at 300 Quarropas Street, White Plains, New York.
`
`so ORDERED thisiirhday of
`
`[km ,2021:
`
`Honorable Cathy Seibel
`United States District Judge
`
`Case 7:20-cv-03032-CS Document 53 Filed 05/17/21 Page 11 of 11
`
`