Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 1 of 43
`
`Execution Copy
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NEW YORK
`(ROCHESTER DIVISION)
`
`MEGAN HOLVE, individually and on behalf
`of all others similarly situated,
`
`
`Plaintiff,
`
`
`
` against
`
`
`
`
`
`Civil Action No. 6:16-cv-06702-FPG
`
`
`
`
`
`
`
`
`
`
`
`MCCORMICK & COMPANY, INC.,
`
`
`
`
`
`Defendant.
`
`
`
`CLASS SETTLEMENT AGREEMENT
`
`
`
`1
`
`
`
`Execution Copy
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NEW YORK
`(ROCHESTER DIVISION)
`
`MEGAN HOLVE, individually and on behalf
`of all others similarly situated,
`
`
`Plaintiff,
`
`
`
` against
`
`
`
`
`
`Civil Action No. 6:16-cv-06702-FPG
`
`
`
`
`
`
`
`
`
`
`
`MCCORMICK & COMPANY, INC.,
`
`
`
`
`
`Defendant.
`
`
`
`CLASS SETTLEMENT AGREEMENT
`
`
`
`1
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 2 of 43
`
`Execution Copy
`
`TABLE OF CONTENTS
`
`I.
`II.
`III.
`
`IV.
`
`RECITALS
`DEFINITIONS
`CERTIFICATION OF THE SETTLEMENT CLASS AND PRELIMINARY
`APPROVAL
`SETTLEMENT CONSIDERATION AND BENEFITS
`4.1
`Settlement Fund
`4.2
`Eligibility and Process for Obtaining a Cash Payment
`4.3
`Distribution to Authorized Settlement Class Members
`4.4
`Excess or Insufficient Funds in the Settlement Fund
`4.5
`Injunctive Relief: Modification of Defendan
`
`Website
`
`V.
`
`
`NOTICE TO CLASS AND ADMINISTRATION OF PROPOSED
`SETTLEMENT
`VI. OBJECTIONS AND REQUESTS FOR EXCLUSION
`VII. RELEASES
`VIII.
`
`INCENTIVE AWARDS
`IX. NO ADMISSION OF LIABILITY
`X.
`TERMINATION OF SETTLEMENT
`XI. ADDITIONAL PROVISIONS
`
`
`
`Page
`
`1
`9
`
`16
`17
`17
`19
`23
`23
`
`24
`
`26
`32
`36
`
`37
`38
`39
`40
`
`
`
`2
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 3 of 43
`
`Execution Copy
`
`
`
`Exhibit A:
`
`Claim Form
`
`TABLE OF EXHIBITS
`
`Exhibit B:
`
`Class Notice or Long Form Notice
`
`Exhibit C:
`
`Notice Plan, Affidavit of Steven Weisbrot With Respect to Settlement Notice Plan
`
`Exhibit D: McCormick Products
`
`
`
`
`
`
`
`
`3
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 4 of 43
`
`Execution Copy
`
`
`
`
`CLASS SETTLEMENT AGREEMENT
`
`This Class Settlement Agreement is entered into this 5th day of May, 2021 by and
`
`between Plaintiff Megan Holve
`
`herself and each of the Settlement
`
`Class Members, on the one hand, and McCormick & Company, Inc. McCormick
`
`Parties intend for the Class Settlement Agreement to fully, finally, and forever resolve,
`
`discharge, and settle all released rights and claims, subject to the terms and conditions set forth
`
`herein.
`
`I.
`
`RECITALS
`
`1.1
`
`A putative class action was filed by Plaintiff against Defendant on October 27,
`
`2016 challenging the labeling, marketing, and advertising of certain of McCormick Products.
`
`(ECF No. 1). Plaintiff alleges that certain of McCormick
`
`. The action alleges the following causes of action: (1) unlawful
`
`Maryland Commercial Code §13-301; (2) violation of unjust enrichment under Maryland law;
`
`(3) unlawful and deceptive business practices in violation of New York General Business Law
`
` 349); (4) false advertising in the conduct of business in violation of New
`
`York General Business Law section
`
`
`
`5) unjust enrichment, all in
`
`connection with the composition of certain of McCormick
`
` and that contained ingredients that purportedly made the
`
`
`
`4
`
`
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 5 of 43
`
`Execution Copy
`
`1.2
`
`On January 9, 2017, Defendant filed a FRCP 12(b)(6) Motion to Dismiss
`
` (ECF No. 8). Plaintiff filed an opposition on February 10, 2017 (ECF No.
`
`10), and Defendant filed a reply on February 27, 2017 (ECF No. 11).
`
`1.3
`
`On August 14, 2018, the Court issued an order denying in part, and granting in
`
`See ECF No. 17. Specifically, the Court allowed for
`
`claims brought on behalf of the absent class members under GBL §§ 349-50, MCC § 13-301,
`
`and Maryland common law to proceed. However, in the same order, the Court stayed the matter
`
`
`
`1.4
`
`On February 1, 2019, a joint status report was filed by the Parties informing the
`
`Court that the FDA had not issued any rulemaking in the area. (ECF No. 18).
`
`1.5
`
`On November 6, 2019, the Court issued a text order asking for a status report by
`
`January 15, 2020. (ECF No. 22).
`
`1.6
`
`On January 15, 2020, the Parties filed a joint status report informing the Court
`
`that the FDA had not issued any rulemaking in the area. (ECF No. 24).
`
`1.7
`
`On October 9, 2020, the Court lifted the stay and ordered the Parties to file a joint
`
`status report by October 22, 2020. (ECF No. 25).
`
`1.8
`
`1.9
`
`On October 21, 2020, the Parties filed a joint status report.
`
`On November 25, 2020, the Court set a scheduling conference for December 29,
`
`2020. (ECF No. 30). The scheduling conference subsequently was rescheduled for January 13,
`
`2021.
`
`
`
`
`
`
`5
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 6 of 43
`
`Execution Copy
`
`1.10 On January 13, 2021, the Honorable Mark W. Pedersen held a scheduling
`
`conference. (ECF No. 38) On January 14, 2021, Judge Pedersen entered a scheduling order.
`
`(ECF No. 39). As part of the scheduling order, Judge Pedersen ordered that mediation occur by
`
`April 7, 2021.
`
`1.11 On March 9, 2021, a full day mediation session was held by the Honorable Arthur
`
`J. Boylan (Ret.). The mediation session resulted in a settlement.
`
`1.12 On March 10, 2021, the Parties alerted the Court that the matter had settled and
`
`respectfully requested the case management schedule be adjourned while the Parties prepared the
`
`settlement agreement and motion for preliminary approval to present to the Court. (ECF No. 42).
`
`1.13 On March 11, 2021, the Court granted the stay request and gave the Parties until
`
`May 7, 2021 to file a status report. (ECF No. 43).
`
`1.14 Before entering into this Settlement Agreement, Class Counsel conducted an
`
`extensive and thorough examination, investigation, and evaluation of the relevant law, facts, and
`
`allegations to assess the merits of the claims, potential claims, and potential defenses asserted in
`
`this Action. As part of that investigation, as well as through formal discovery, Class Counsel
`
`obtained documents and extensive information from Defendant through confidential, informal
`
`and formal discovery, including information concerning marketing, label design, product
`
`formulation, sales, and pricing.
`
`1.15 This Agreement is the product of extensive, arms-length, and vigorously
`
`contested motion practice through seasoned counsel, settlement negotiations and an exchange of
`
`information, including both informal and formal discovery. This Agreement was only achieved
`
`with the assistance of an esteemed neutral mediator
`
` the Honorable Arthur J. Boylan (Ret.)
`
`
`
`who conducted a full day mediation session with the Parties. This Settlement Agreement was
`
`
`
`6
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 7 of 43
`
`Execution Copy
`
`reached as a result of these hard-fought negotiations, including multiple post-mediation
`
`negotiation sessions to finalize the terms of the settlement.
`
`1.16 The Action has not been certified as a class action. Subject to the approval of the
`
`Court, the Parties agree that a class may be conditionally certified for purposes of this
`
`Settlement. Defendant agrees to class-action treatment of the claims alleged in this Action solely
`
`for the purpose of compromising and settling those claims on a class basis as set forth herein.
`
`1.17 Plaintiff, as the proposed Settlement Class representative, believes the claims
`
`settled herein have merit. Plaintiff and her counsel recognize, however, the litigation risk
`
`involved, including the expense and length of continued proceedings necessary to prosecute the
`
`claims through trial and appeal, and have taken into account those factors, as well as the
`
`Agreement confers substantial benefits upon the Settlement Class Members. They have
`
`evaluated the settlement set forth in this Agreement and have determined it as fair, reasonable,
`
`and adequate to resolve their grievances, and in the best interest of the Settlement Class.
`
`1.18 Defendant has denied, and continues to deny, that its marketing, advertising,
`
`and/or labeling of the Products is false, deceptive, or misleading to consumers or violates any
`
`legal requirement. Defendant
`
`embodied in this Agreement is based on, inter alia: (i) the time and expense associated with
`
`litigating this Action through trial and any appeals; (ii) the benefits of resolving the Action,
`
`including limiting further expense, inconvenience, and distraction, disposing of burdensome
`
`litigation, and permitting Defendant to conduct its business unhampered by the distractions of
`
`continued litigation; and (iii) the uncertainty and risk inherent in any litigation, regardless of
`
`legal merit.
`
`
`
`7
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 8 of 43
`
`Execution Copy
`
`
`
`
`1.19 This Agreement, any negotiations, proceedings, or documents related to this
`
`Agreement, its implementation, or its judicial approval cannot be asserted or used by any person
`
`to support a contention that class certification is proper or that liability does or does not exist, or
`
`for any other reason, in the above-captioned action or in any other proceedings, provided,
`
`however, that Settlement Class Members, Class Counsel, Defendant, other related persons, and
`
`any person or entity that is a beneficiary of a release set forth herein, may reference and file this
`
`Agreement, and any resulting Order or Judgment, with the Court, or any other tribunal or
`
`proceeding, in connection with the implementation or enforcement of its terms (including but not
`
`limited to the releases granted therein or any dispute related thereto).
`
`THEREFORE, in consideration of the mutual promises and covenants contained herein
`
`and of the releases and dismissals of claims described below, the Parties agree to this Settlement,
`
`subject to the Final Approval of the Court, upon the following terms and conditions set forth in
`
`this Class Settlement Agreement.
`
`
`
`
`
`
`
`8
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 9 of 43
`
`Execution Copy
`
`II.
`
`DEFINITIONS
`
`2.1
`
` Holve v. McCormick & Company, Inc.,
`
`6:16-cv-06702-FPG (W.D.N.Y.).
`
`2.2
`
`Settlement Agreement and its exhibits, attached hereto or incorporated herein, including any
`
`subsequent amendments agreed to by the Parties and any exhibits to such amendments.
`
`2.3
`
`Class Counsel, from the Settlement Fund, to compensate Class Counsel for the fees and expenses
`
`they have incurred or will incur in connection with this Action and Settlement, as described in
`
`expenses associated with the Class Notice or administration of the Settlement.
`
`2.4
`
`(by mail or online) by
`
`Claimants seeking payment pursuant to Section 4.2 of this Class Settlement Agreement. A link
`
`to the Claim Form will accompany the Class Notice and will be available online at the
`
`Settlement Website, substantially in the form of Exhibit A to this Class Settlement Agreement.
`
`2.5
`
`may submit a Claim Form to the Settlement Administrator for review. The Claim Period shall
`
`run for a period of time ordered by the Court, and last at least ninety (90) calendar days from the
`
`date Final Approval of the Settlement is granted by the Court.
`
`2.6
`
`as described in Section 4.2 of this Class Settlement Agreement.
`
`2.7
`
`
`
`Angeion Group - the company jointly selected by Class Counsel and
`
`9
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 10 of 43
`
`Execution Copy
`
`Defendant
`
`claims process.
`
`2.8
`
`ans REESE LLP, 100 West 93rd Street, 16th Floor, New York,
`
`New York 10025 and EGGNATZ PASCUCCI, P.A., 7450 Griffin Road, Suite 230, Davie,
`
`Florida 33314.
`
`2.9
`
`-
`
`Settlement terms, as approved by Defendant
`
`the Court, to be provided to potential members of the Settlement Class pursuant to Section 5.2
`
`below. The Class Notice shall be substantially in the form attached hereto as Exhibit B. Any
`
`changes to the Class Notice from Exhibit B must be jointly approved by Class Counsel and
`
`Defendant
`
`
`
`2.10
`
`2.11
`
`2.12
`
`York.
`
`
`
`
`
`January 1, 2013, up to and including the
`
`Western District of New
`
`(a)
`
`if no appeal is taken from the Order and Final Judgment, thirty-five (35)
`
`days after the Court enters the Order and Final Judgment of this Class Settlement Agreement; or
`
`(b)
`
`if an appeal is taken from the Order and Final Judgment, the date on which
`
`all appellate rights (including petitions for rehearing or re-argument, petitions for rehearing en
`
`banc, petitions for certiorari or any other form of review, and proceedings in the United States
`
`Supreme Court or any other appellate court) have expired, been exhausted, or been finally
`
`disposed of in a manner that affirms the Order and Final Judgment.
`
`
`
`10
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 11 of 43
`
`Execution Copy
`
`2.13
`
`Judgment is entered in this Action approving this Class Settlement Agreement.
`
`2.14
`
` Claim Amount
`
`the amount a Settlement Class Member shall
`
`receive as a cash payment after submission of a Claim Form that is timely, valid, and approved
`
`by the Settlement Administrator. The value of the Final Claim Amount shall be on the basis of
`
`the Initial Claim Amount as described in Section 4.2, subject to pro rata increase or decrease,
`
`depending on the value of all approved Claims submitted, pursuant to Section 4.4.
`
`2.15
`
`-party banking institution where the cash funds
`
`Defendant will pay under the terms of this Agreement will be deposited into an interest-bearing
`
`Qualified Settlement Fund account, specifically, the Settlement Fund, as defined herein.
`
`Pursuant to Section 4.1, Class Counsel will select the Fund Institution, and Defendant will
`
`approve it.
`
`2.16
`
` Megan Holve will
`
`petition the Court to receive for her service as class representatives, pursuant to Section 8.5.
`
`2.17
`
`cash payment on a Claim Form that is timely, valid, and approved by the Settlement
`
`Administrator. The value basis of the Initial Claim Amount is described in Section 4.2. The
`
`Initial Claim Amount is subject to pro rata increase or decrease, depending on the value of all
`
`approved Claims submitted, pursuant to Section 4.4.
`
`2.18
`
`Settlement Claim Administrator, attached hereto as Exhibit C, Affidavit of Steven Weisbrot With
`
`Respect to Settlement Notice Plan.
`
`
`
`11
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 12 of 43
`
`Execution Copy
`
`2.19
`
`approving the Settlement pursuant to the terms and conditions of this Agreement, dismissing the
`
`Action with prejudice, releasing claims, and otherwise directing as the Court or the Parties deem
`
`necessary and appropriate to effectuate the terms and conditions of this Agreement.
`
`2.20 Plaintiff s Counsel means REESE LLP, 100 West 93rd Street, 16th Floor, New
`
`York, New York 10025 and EGGNATZ PASCUCCI, P.A., 7450 Griffin Road, Suite 230, Davie,
`
`Florida 33314.
`
`2.21
`
`Settlement Agreement, preliminarily certifying the Settlement Class, approving the Notice of
`
`Proposed Settlement, and issuing any necessary related orders.
`
`2.22
`
`pursuant to 26 C.F.R. § 1.468B-1, that the Fund Institution will establish to receive payments
`
`under this Agreement.
`
`2.23
`
`-claim, liability, right, demand, suit,
`
`action, or cause of every kind and description that Plaintiff, the Settlement Class or any member
`
`thereof had or have, including assigned claims, whether in arbitration, administrative, or judicial
`
`proceedings, whether as individual claims, claims asserted on a class basis or on behalf of the
`
`general public, whether known or unknown, asserted or unasserted, suspected or unsuspected,
`
`latent or patent, that is, has been, could reasonably have been, or in the future might reasonably
`
`be asserted by Plaintiff or members of the Settlement Class either in the Action or in any action
`
`or proceeding in this Court or in any other court or forum, regardless of legal theory or the law
`
`under which such action may be brought, and regardless of the type or amount of relief or
`
`
`
`12
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 13 of 43
`
`Execution Copy
`
`damages claimed, against any of the Released Persons, arising out of or relating to the
`
`allegations in the Action or Defendant
`
`released
`
`Products as alleged in the Action. This includes, inter alia, and for the avoidance of doubt, all
`
`such claims that relate in any way to statements that are contained on the Products or otherwise
`
`. T
`
`Defendant
`
`labeling, marketing, and advertising of the released Products;
`
`not include release of any claims for personal injury. With respect to any and all Released
`
`Claims, the Parties stipulate and agree that, by operation of the Order and Final Judgment, upon
`
`the Effective Date, the releasing person(s) shall have expressly waived the provisions, rights and
`
`benefits of Cal. Civ. Code § 1542 or any federal, state or foreign law, rule, regulation, or
`
`common-law doctrine that is similar, comparable, equivalent or identical to, or that has the effect
`
`in whole or part of, Section 1542 of the California Civil Code, which provides:
`
`A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR
`OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
`HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF
`KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
`SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
`
`
`
`2.24
`
`Defendant and each of its affiliated
`
`entities, subsidiaries, predecessors, and successors, suppliers, distributors, retailers, customers,
`
`and assigns, including the present and former directors, officers, employees, shareholders,
`
`agents, insurers, partners, privies, representatives, attorneys, accountants, and all persons acting
`
`by, through, under the direction of, or in concert with them.
`
`
`
`13
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 14 of 43
`
`Execution Copy
`
`2.25
`
`Exhibit D of this Settlement Agreement, and that are included within the Settlement Class
`
`definition and the Released Claims.
`
`2.26
`
`
`
` means the value of funds remaining in
`
` Initial Claim Amounts; less Class Notice and
`
`administration costs; and less all
`
`to Court Order or otherwise specified in this Agreement.
`
`2.27
`
`who, during the Class Period, both resided in the United States, including, but not limited to its
`
`territories, and purchased in the United States any of the Defendant Products for their household
`
`use or personal consumption and not for resale. Excluded from the Settlement Class are: (a)
`
`Defendant
`
`r executive-level officers, including its attorneys; (b) governmental
`
`timely and properly excludes himself or herself from the Settlement Class in accordance with the
`
`procedures approved by the Court.
`
`2.28
`
`common fund valued at Three Million Dollars and
`
`No Cents ($3,000,000.00) that Defendant will pay in cash to the Settlement Fund to be used to
`
`pay Settlement Class Members who submit valid and timely Claim Forms, pursuant to Section
`
`4.2.
`
`Expenses that the Court orders, any Class Notice and administration costs, Incentive Awards,
`
`and other costs pursuant to the terms of Section 4.1(a) of this Agreement. All Settlement Class
`
`Member benefits shall be paid from the common Settlement Fund.
`
`
`
`14
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 15 of 43
`
`Execution Copy
`
`2.29
`
`determine whether it should approve the proposed settlement contained in this Class Settlement
`
`Agreement as fair, reasonable, and adequate, and whether it should enter Judgment approving the
`
`preliminary approval is granted, as the Court so orders.
`
`2.30
`
`include information about the Action and the Settlement, relevant documents, and electronic and
`
`printable forms relating to the Settlement, including the Claim Form. The Settlement Website
`
`shall be activated by the date of the first publication of the Summary Settlement Notice or Class
`
`Notice, whichever is earlier, and shall remain active until one hundred and twenty (120) calendar
`
`days after the Effective Date.
`
`2.31 Defendant
`
`Hogan Lovells US LLP, 390 Madison Avenue,
`
`New York, New York 10017.
`
`2.32
`
`
`
`Administrator shall provide to the Parties, which shall include the value, number, and type of
`
`timely, valid, and approved Claims. The Final Tally shall also include the amount due to the
`
`Settlement Fund in cash that Settlement Class Members timely and validly claimed. The
`
`Settlement Administrator shall give the Final Tally to the Parties no later than seven (7) calendar
`
`days after the close of the Claim Period.
`
`
`
`
`
`
`
`15
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 16 of 43
`
`Execution Copy
`
`III. CERTIFICATION OF THE SETTLEMENT CLASS AND PRELIMINARY
`APPROVAL
`
`3.1
`
`For the purposes of settlement and the proceedings contemplated herein, the
`
`parties stipulate and agree that a nationwide Settlement Class should be certified. Certification
`
`of the Settlement Class shall be for settlement purposes only and shall have no effect for any
`
`other purpose.
`
`3.2
`
`The certification of the Settlement Class shall be binding only with respect to this
`
`Class Settlement Agreement. In the event that Final Approval does not occur for any reason, the
`
`Preliminary Approval, and all of its provisions, shall be vacated by its own terms, and this
`
`Action shall revert to its status that existed prior to the date of this Class Settlement Agreement.
`
`3.3
`
`As part of the settlement process, Defendant consents to Plaintiff s application to
`
`the Court for entry of an order which, among other things: (a) preliminarily certifies the
`
`Settlement Class in accordance with the definition set forth in Section 2.27 of this Class
`
`Settlement Agreement; (b) preliminarily approves this Agreement for purposes of issuing Class
`
`Notice; (c) approves the timing, content, and manner of the Class Notice and Summary
`
`Settlement Notice or Short Form Notice; (d) appoints the Settlement Administrator; (e) appoints
`
`REESE LLP and EGGNATZ PASCUCCI, P.A. as Class Counsel and Plaintiff Megan Holve as
`
`the named Class Representative; and (f) makes such orders as are necessary and appropriate to
`
`effectuate the terms and conditions of this Agreement.
`
`
`
`
`
`
`
`16
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 17 of 43
`
`Execution Copy
`
`IV.
`
`SETTLEMENT CONSIDERATION AND BENEFITS
`
`The settlement relief includes three components to benefit the Settlement Class: (a) a
`
`common Settlement Fund from which Settlement Class Members who submit timely, valid, and
`
`approved claims will obtain refunds; (b) modifications to the Products labeling; and (c)
`
`modifications to the Products website.
`
`4.1
`
`Common Settlement Fund
`
`(a)
`
`Settlement Fund. Defendant shall establish a common Settlement Fund
`
`in the amount of Three Million Dollars ($3,000,000.00). Defendant shall pay all cash payments
`
`due per Section 4.1(b) by paying this amount into a Qualified Settlement Fund at the Fund
`
`Institution. The Settlement Fund shall be administered pursuant to this Agreement and subject to
`
` shall be applied to pay in
`
`full and in the following order:
`
`(i)
`
`any necessary taxes and tax expenses;
`
`(ii)
`
`all costs and expenses associated with disseminating notice to the
`
`Settlement Class, including but not limited to, the Class Notice and Summary Settlement Notice;
`
`(iii)
`
`all costs and expenses associated with the administration of the
`
`Settlement, including but not limited to, processing claims and fees of the Class Action
`
`Settlement Administrator.
`
`(iv)
`
`Class Counsel pursuant to Section VIII of this Class Settlement Agreement;
`
`(v)
`
`any Incentive Award made by the Court to Plaintiff under Section
`
`8.5 of this Class Settlement Agreement;
`
`
`
`17
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 18 of 43
`
`Execution Copy
`
`(vi)
`
`cash payments distributed to Settlement Class Members who have
`
`submitted timely, valid, and approved Claims pursuant to the Claims Process outlined in Section
`
`4.2 and the Monetary Relief outlined in Section 4.3 of this Agreement; and
`
`(vii)
`
`the Residual Funds, if any, pursuant to Section 4.4 of this
`
`Agreement.
`
`(b)
`
`Defendant
`
` Within ten (10) calendar
`
`days after the entry of the Preliminary Approval Order, Defendant shall fund the Settlement
`
`Fund by depositing Three Million Dollars and No Cents ($3,000,000) into the Settlement Fund
`
`account. This ten-day deadline may be extended by mutual consent of the Parties.
`
`(c)
`
`Class Counsel must approve any payment of costs or expenses under
`
`Sections 4.1(a)(i), 4.1 (a)(ii), and 4.1(a)(iii).
`
`(d)
`
`In no circumstances shall Defendant
`
`exceed Three Million Dollars ($3,000,000.00). Thus, under this Settlement Agreement, the
`
`Parties agree that the Settlement Fund encompasses the full extent of Defendant
`
`payment due under this Agreement. These payments, pursuant to the terms and conditions of
`
`this Agreement, and any other non-monetary obligations of and considerations due from
`
`Defendant set forth in this Agreement, will be in full satisfaction of all individual and class
`
`claims asserted in or that could have been asserted this Action.
`
`(e)
`
`Defendant and the Released Persons are not obligated (and will not be
`
`obligated) to compute, estimate, or pay any taxes on behalf of Plaintiff, Class Counsel, any
`
`Settlement Class Member, the Notice Administrator, or the Settlement Administrator.
`
`(f)
`
`All funds held by the Fund Institution shall be deemed and considered to
`
`be in custodia legis of the Court and shall remain subject to the jurisdiction of the Court, until
`
`
`
`18
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 19 of 43
`
`Execution Copy
`
`such time as such funds are either returned to Defendant pursuant to Section 10.2 of this
`
`Agreement or distributed pursuant to a plan of distribution approved by the Court or pursuant to
`
`other orders of the Court.
`
`4.2 Eligibility and Process for Obtaining a Cash Payment
`
`To be eligible for a cash payment, a Settlement Class Member must submit a timely and
`
`valid Claim Form, which will be evaluated by the Settlement Administrator.
`
`(a) Claim Form Availability. The Claim Form shall be in a substantially
`
`similar form to that attached as Exhibit A. The Claim Form will be: (i) included
`
`on the Settlement Website to be designed and administered by the Settlement
`
`Administrator; and (ii) made readily available from the Settlement
`
`Administrator, including by requesting a Claim Form from the Settlement
`
`Administrator by mail, e-mail, or calling a toll-free number provided by the
`
`Settlement Administrator.
`
`(b) Timely Claim Forms. Settlement Class Members must submit a timely
`
`Claim Form, which is one postmarked or submitted online before or on the
`
`last day of the Claim Period, the specific date of which will be prominently
`
`displayed on the Claim Form and Class Notice. For a non-online Claim
`
`Form, the Claim Form will be deemed to have been submitted on the date of
`
`the postmark on the envelope or mailer. For an online Claim Form and in
`
`all other cases, the Claim Form will be deemed to have been submitted on
`
`the date it is received by the Settlement Administrator.
`
`(c) Validity of Claim Forms. Settlement Class Members must submit a valid
`
`Claim Form,
`
`
`
`19
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 20 of 43
`
`Execution Copy
`
`mailing address, type(s) and number of Products purchased, approximate
`
`date of purchase, and location(s) of purchase(s). Claim Forms that do not
`
`meet the requirements set forth in this Agreement and in the Claim Form
`
`instructions may be rejected. The Settlement Administrator will determine a
`
`among other reasons, the following:
`
`1. Failure to attest to the purchase of the
`
`
`
`Products, or purchase of products that are not covered
`
`by the terms of this Settlement Agreement;
`
`2. Failure to provide adequate verification or additional
`
`information of the Claim pursuant to a request of the
`
`Settlement Administrator;
`
`3. Failure to fully complete and/or sign the Claim Form;
`
`4. Failure to submit a legible Claim Form;
`
`5. Submission of a fraudulent Claim Form;
`
`6. Submission of Claim Form that is duplicative of
`
`another Claim Form;
`
`7. Submission of Claim Form by a person who is not a
`
`Settlement Class Member;
`
`8. Request by person submitting the Claim Form to pay
`
`funds to a person or entity that is not the Settlement
`
`
`
`20
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 21 of 43
`
`Execution Copy
`
`Class Member for whom the Claim Form is
`
`submitted;
`
`9. Failure to submit a Claim Form by the end of the
`
`Claim Period; or
`
`10. Failure to otherwise meet the requirements of this
`
`Agreement.
`
`(d) Settlement
`
`.
`
`a. Tier 1: Class Members with Proof of Purchase may seek
`
`reimbursement as follows: Claimants with a receipt may seek
`
`reimbursement of $1.00 per unit bought, with no cap or limit.
`
`b. Tier 2: Class Members without Proof of Purchase may seek
`
`reimbursement of $1.00 per unit bought, up to a maximum recovery
`
`of 15 products (for $15.00) per consumer.
`
`(e) Claim Form Submission and Review. Claimants may submit a Claim
`
`Form either by mail or electronically. The Settlement Administrator shall
`
`review and process the Claim Forms pursuant to the process described in
`
`customary procedures and standards will be used by the Settlement
`
`Administrator to prevent the payment of fraudulent claims and to pay only
`
`legitimate claims. The Parties shall take all reasonable steps, and direct the
`
`Settlement Administrator to take all reasonable steps, to ensure that Claim
`
`Forms completed and signed electronically by Settlement Class Members
`
`
`
`21
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 22 of 43
`
`Execution Copy
`
`conform to the requirements of the federal Electronic Signatures Act, 15
`
`U.S.C. § 7001, et seq.
`
`(f) Claim Form Deficiencies. Failure to provide all information requested on
`
`the Claim Form will not result in immediate denial or nonpayment of a
`
`claim. Instead, the Settlement Administrator will take all adequate and
`
`customary steps to attempt to cure the defect and to determine the
`
`ibility for payment and the amount of
`
`payment based on the information contained in the Claim Form or otherwise
`
`submitted, including but not limited to attempting to follow up with the
`
`Claimant to gather additional information if necessary. If the Claim Form
`
`defect cannot be cured, the Claim will be rejected. Defendant is entitled to
`
`dispute claims if available records or other information indicate that the
`
`information on the Claim Form is inaccurate or incomplete, but
`
`determination by Settlement Administrator will be final.
`
`(g) Failure to Submit Claim Form. Unless a Settlement Class Member opts
`
`out pursuant to Section VI, any Settlement Class Member who fails to
`
`submit a timely and valid Claim Form shall be forever barred from receiving
`
`any payment pursuant to this Agreement and shall in all other respects be
`
`bound by all of the terms of this Agreement and the terms of the Order and
`
`Final Judgment to be entered in the Action. Based on the Release contained
`
`in the Agreement, any Settlement Class Member who does not opt out will
`
`be barred from bringing any action in any forum (state or federal) against
`
`
`
`22
`
`
`
`Case 6:16-cv-06702-FPG-MJP Document 44 Filed 05/07/21 Page 23 of 43
`
`Execution Copy
`
`any of the Released Persons concerning any of the matters subject to the
`
`Release.
`
`4.3 Distribution to Authorized Settlement Class Members
`
`The Settlement Administrator shall begin paying timely, valid, and approved Claims via first-
`
`class mail or other means no later than sixty (60) calendar days after the Effective Date. The
`
`Settlement Administrator may begin to pay timely, valid, and approved Claims sooner upon
`
`Defendant
`
` The Settlement
`
`Administrator shall have completed the payment to Settlement Class Members who have
`
`submitted timely, valid, and approved Claims pursuant to the Claim Process no later than one
`
`hundred (100) calendar days after the Effective Date.
`
`4.4 Excess or Insufficient Funds in the Settlement Fund
`
`4.4.1 Excess Funds. If, after the calculation of all valid Initial Claim Amounts,
`
`es, Incentive Awards, and any
`
`other claim, cost, or fee specified by this Agreement, value remains in the Settlement Fund, it
`
`shall be called the Residual Fund. Any value remaining in the Residual Fund shall increase
`
`the Residual Funds are depleted. The Settlement Administrator shall determine each authorized
`
`ief for their Final Claim Amounts on a pro rata basis until
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
