In re VNGR Beverage, LLC Litigation

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2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 Case No. 24-cv-03229-HSG

8 ORDER GRANTING PRELIMINARY

In re VNGR BEVERAGE, LLC APPROVAL

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LITIGATION

Re: Dkt. No. 55

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11

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13 Before the Court is Plaintiffs’ unopposed motion for preliminary approval of class action

14 settlement. See Dkt. No. 55. The Court held a hearing on the motion, Dkt. No. 59, and now

15 GRANTS it.

16 I. BACKGROUND

17 A. Factual Allegations

18 This is a putative class brought on behalf of purchasers of Poppi Prebiotic Soda (“Poppi”).

19 See Dkt. No. 54 (“TAC”) ¶ 1. Plaintiffs allege that Defendant VNGR Beverage, LLC markets

20 Poppi as “gut healthy” due to its inclusion of prebiotic dietary fiber, but that this representation is

21 misleading, as Poppi actually harms gut health. Id. ¶ 5. Plaintiffs allege that Poppi is harmful due

22 to its low fiber content, high sugar content, and use of agave inulin, a type of prebiotic fiber that,

23 according to Plaintiffs, is less effective for promoting gut health and has been linked to adverse

24 health effects. Id. ¶¶ 3–4. Specifically, Plaintiffs claim that because Poppi products contain at

25 most two grams of prebiotic fiber, consumers would need to drink more than four Poppi sodas per

26 day for 21 consecutive days in order to notice any positive “prebiotic” effects. Id. ¶ 61. However,

27 Plaintiffs allege that any such benefits would be offset by the simultaneous consumption of an

1 consumers reasonably relied on Defendant’s “gut healthy” representations in paying a premium

2 for Poppi products, and thus suffered economic injuries due to those misrepresentations. Id.

3 ¶¶ 68–71.

4 Plaintiff Kristin Cobbs filed an initial complaint in May 2024. Dkt. No. 1. The Cobbs

5 action was eventually related to and consolidated with another class action against Defendant in

6 June 2024. Dkt. Nos. 18, 22. Plaintiffs filed an amended consolidated complaint in July 2024.

7 Dkt. No. 29. After a third case was related and consolidated, Dkt. No. 31, Plaintiffs filed a second

8 amended consolidated complaint in August 2024. Dkt. No. 35. Defendant then filed a motion to

9 dismiss the second amended complaint. Dkt. No. 37. A fourth case was related and consolidated

10 in October 2024. Dkt. No. 42. The consolidated action was then stayed while the parties

11 negotiated and finalized a settlement agreement. Dkt. Nos. 49, 51. The Court granted the parties’

12 request to file a third amended consolidated complaint ahead of filing a motion for preliminary

13 approval, and accordingly terminated the pending motion to dismiss. Dkt. No. 53. In March

14 2025, Plaintiffs filed a third amended consolidated complaint, Dkt. No. 54, and an unopposed

15 motion for preliminary approval, Dkt. No. 55. The Court held a hearing on the motion on May 8,

16 2025. Dkt. No. 59.

17 The operative complaint asserts the following causes of action against Defendant:

18 violations of the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq.

19 (“CLRA”); violations of the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500,

20 et seq.; common law fraud, deceit, and/or misrepresentation; violations of the California Unfair

21 Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (“UCL”); unjust enrichment; breach

22 of express warranty; and breach of implied warranty. See TAC ¶¶ 99–164.

23 B. Settlement Agreement

24 In December 2024, the parties participated in a full-day mediation with Judge Jay C.

25 Gandhi (Ret.). See Dkt. No. 55-1 (“Fisher Decl.”) ¶ 15. The parties ultimately entered into a

26 settlement agreement. See id., Ex. 1 (“Settlement Agreement,” or “SA”). The key terms are as

27 follows:

1 between January 23, 2020 and the Settlement Notice Date, purchased in the United States, for

2 household use and not for resale or distribution, one or more of the Products.” SA § Definitions, I.

3 “Products” is defined as “all flavors and package sizes of Poppi’s beverages sold between January

4 23, 2020 and the Settlement Notice Date.” Id. § Definitions, JJ.

5 Settlement Benefits: Defendant will make a $8,900,000 non-reversionary payment. SA

6 § ¶ 1.1. This gross settlement fund will cover Court-approved attorneys’ fees and costs, settlement

7 administration fees, incentive payments to the named Plaintiffs, and payments to Class Members

8 for approved claims. Id. § 1.3. To receive settlement benefits, Class Members must fill out and

9 submit a claim form, online or in hard copy, certifying under penalty of perjury which and how

10 many units of the Product they purchased since January 23, 2020, and that they purchased the

11 Products for personal or household use only. Id. § 6.1.2. Class Members will be asked to provide

12 Proof of Purchase if they have any, but they are not required to do so in order to submit a claim

13 form. Id. at § 6.1.3. “Proof of Purchase” means a receipt or other documentation from a third-

14 party commercial source (i.e., a store or online retailer) that reasonably establishes the fact and

15 date of purchase of the Products by a Class Member. Id. § Definitions, II. Only one claim form

16 may be submitted per Household, which is defined as “any number of persons occupying the same

17 dwelling unit.” Id. § 6.1.6; Definitions, H. However, if more than one claim is submitted per

18 Household, those claims will be combined and treated as a single claim. See id. § 6.1.6

19 The Settlement Administrator will review all claims to determine their validity, and will

20 reject any claim that is untimely, does not comply with instructions on the claim form, or is

21 identified as fraudulent. Id. § 6.3. Class Members who submit an approved claim will receive

22 $0.75 per single can of Product purchased, $3.00 per 4-pack of the Products purchased, $6.00 per

23 8-pack of the Products purchased, or $9.00 per 12-pack or 15-pack of the Products purchased. Id.

24 § 6.1.5. The minimum class payment for any approved claim is $5.00 per Household (subject to

25 availability of funds), and the maximum class payment for any approved claim without proof of

26 purchase is $16.00 per Household. Id.

27 If the total value of all approved claims either exceeds or falls short of the funds available

1 increased pro rata. SA § 1.6. If there is an upward adjustment, the maximum amount a person

2 who submits a claim without a proof of purchase may receive is $80. Id. § 6.4. The parties

3 propose that any remaining funds would go to Feeding America as the cy pres recipient. Id. § 1.6.

4 Release: According to the Settlement Agreement, “the Releasing Persons,” meaning

5 Plaintiffs and all Class Members and their successors, shall

6 “release and forever discharge and covenant not to sue, and are permanently enjoined from

suing the Released Persons and including Poppi’s past, present or future direct or indirect

7 parents, subsidiaries, divisions, affiliates and related entities, stockholders, shareholders,

officers, directors, partners, insurers, investors, employees, agents, attorneys, advisors,

8 consultants, joint venturers, independent contractors, wholesalers, resellers, distributors,

retailers, related companies, divisions, and any of their legal representatives (and the

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predecessors, heirs, executors, administrators, successors, purchasers, and assigns of each

10 of the foregoing) from the Released Claims.”

11 SA § 9.1. Further, “Released Claims” means:

“any and all claims, demands, actions, causes of action, lawsuits, arbitrations, damages,

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liabilities, or penalties, whether federal or state, known or unknown, asserted or unasserted,

13 regardless of legal theory, legal, equitable, or otherwise, that were or could have been

asserted in the Consolidated Action or that arise out of or relate to the labeling, advertising,

14 or formulation of the Products between January 23, 2020 and the Settlement Notice Date.”

15 Id. § Definitions, LL. The definitions of “Released Claims” does not include any Class Members’

16 personal injury claims. Id.

17 Notice by email and publication to Class Members will include the following language:

18 “If you do not Opt-Out, you give up your right to bring a separate lawsuit. To object, you

must file a written Objection that complies with the requirements in the Long Form Notice

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available at www.poppisettlement.com. . . . Do nothing, and you will not receive a Class

20 Payment and you will release the Released Claims against Defendant that relate to the

allegations in the lawsuits.”

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22 SA, Ex. B, C. The settlement website also will include the following language:

23 “If you are a Class Member and you do not Opt-Out from the Settlement, you will be

legally bound by all orders and judgments of the Court, and you will also be legally bound

24 to release the Released Claims as provided in the Settlement, even if you do not file an

Approved Claim or receive a Class Payment. This means that in exchange for being a

25 Class Member and being eligible for the Class Payment, you will not be able to sue,

continue to sue, or be part of any other lawsuit against VNGR Beverage, LLC d/b/a Poppi

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and/or any of the Released Persons that involves the marketing, labeling, or formulation of

27 the Products from January 23, 2020 to the present.”

1 Incentive Awards: According to the Settlement Agreement, Class Counsel may apply for

2 an incentive award for each of the named Plaintiffs of no more than $5,000. SA § 8.2. The

3 proposed class notice further states that the combined total amount of awards sought may not

4 exceed $20,000. See SA, Ex. D at 3.

5 Attorneys’ Fees and Costs: The Settlement Agreement provides that Class Counsel will

6 apply for an award of up to 30% of the gross settlement amount. SA § 8.1. Defendant reserves

7 the right to oppose the fee application at its discretion. Id.

8 Opt-Out Procedure: Class members must object to the Settlement Agreement or opt out

9 (via regular mail only) within 60 days after the date that the notice plan commences. SA §§ 4.3,

10 4.4, 5.2, 5.4.

11 II. PROVISIONAL CLASS CERTIFICATION

12 The plaintiff bears the burden of showing by a preponderance of the evidence that class

13 certification is appropriate under Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v.

14 Dukes, 564 U.S. 338, 350–51 (2011). Class certification is a two-step process. First, a plaintiff

15 must establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality,

16 typicality, and adequacy of representation. Id. at 349. Second, it must establish that at least one of

17 the bases for certification under Rule 23(b) is met. Where, as here, a plaintiff seeks to certify a

18 class under Rule 23(b)(3), it must show that “questions of law or fact common to class members

19 predominate over any questions affecting only individual members, and that a class action is

20 superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.

21 R. Civ. P. 23(b)(3).

22 “The criteria for class certification are applied differently in litigation classes and

23 settlement classes.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019)

24 (“Hyundai II”). When deciding whether to certify a litigation class, a district court must consider

25 manageability at trial. Id. However, this concern is not present in certifying a settlement class.

26 Id. at 556–57. In deciding whether to certify a settlement class, a district court “must give

27 heightened attention to the definition of the class or subclasses.” Id. at 557.

1 A. Rule 23(a) Certification

2 The Court finds that all the requirements of Rule 23(a) are met:

3 • Numerosity. Joinder of the hundreds of thousands of estimated Class Members

4 would be impracticable. See Dkt. No. 55 (“Mot.”) at 26 (estimating over 400,000

5 Class Members, based on the number of customer email addresses in Defendant’s

6 records).

7 • Commonality. Common questions of law and fact include whether Defendant’s

8 claims about the “gut health” of the Products are false, misleading, deceptive,

9 and/or unlawful, and whether such claims were likely to deceive reasonable

10 customers. See Mot. at 27.

11 • Typicality. Plaintiffs’ claims are both factually and legally similar to those of the

12 putative class because all Class Members purchased the Products and were exposed

13 to the same representations by Defendant. See SA § Definitions, I; Mot. at 27–28.

14 • Adequacy of Representation. The Court is unaware of any actual conflicts of

15 interest in this matter and no evidence in the record suggests that either Plaintiffs or

16 counsel have a conflict with other class members. Plaintiffs’ counsel has been

17 appointed class counsel in numerous federal and state class actions. See Dkt. No.

18 55-1 ¶ 26; id. Ex 2; Dkt. No. 55-2 ¶ 26; id., Ex 1. The Court finds that proposed

19 Class Counsel and Plaintiffs have prosecuted this action vigorously on behalf of the

20 class to date and will continue to do so.

21 B. Rule 23(b)(3)

22 The Court also finds that the predominance and superiority requirements of Rule 23(b)(3)

23 are met:

24 • Predominance. The Court concludes that for purposes of settlement, common

25 questions predominate here because Plaintiffs and the settlement Class Members all

26 purchased the same products from Defendant that allegedly included the same

27 product label misrepresentations. In addition, the Court at this stage need not

1 claims prevent provisional class certification. See Hyundai II, 926 F.3d at 561–62

2 (holding that district courts do not need “to address choice-of-law issues beyond

3 those raised by objectors” before certifying a settlement class).

4 • Superiority. Especially given the relatively modest value of the individual claims

5 here, class action enables the most efficient use of Court and attorney resources and

6 reduces costs to the class members by allocating costs among them. Further, this

7 forum is appropriate, and there are no obvious difficulties in managing this class

8 action.

9 C. Class Representative and Class Counsel

10 Because the Court finds that the Plaintiffs meet the commonality, typicality, and adequacy

11 requirements of Rule 23(a), the Court appoints Plaintiffs as Class Representatives. When a court

12 certifies a class, it must also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B). Counsel have

13 investigated and litigated this case throughout its existence and have submitted declarations

14 detailing their expertise in representing plaintiffs in consumer class action suits. See Dkt. No. 55-

15 1 ¶ 26; id. Ex 2; Dkt. No. 55-2 ¶ 26; id., Ex 1. Accordingly, the Court appoints Bursor & Fisher,

16 P.A. and Gutride Safier LLP as Class Counsel. See Fed. R. Civ. P. 23(g)(1)(A) (listing factors

17 courts must consider when appointing class counsel).

18 III. PRELIMINARY SETTLEMENT APPROVAL

19 Finding that provisional class certification is appropriate, the Court considers whether it

20 should preliminarily approve the parties’ class action settlement.

21 A. Legal Standard

22 Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a

23 certified class—or a class proposed to be certified for purposes of settlement—may be settled . . .

24 only with the court’s approval.” Fed. R. Civ. P. 23(e). “The purpose of Rule 23(e) is to protect

25 the unnamed members of the class from unjust or unfair settlements affecting their rights.” In re

26 Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). Accordingly, before a district court

27 approves a class action settlement, it must conclude that the settlement is “fundamentally fair,

1 Where the parties reach a class action settlement prior to class certification, district courts

2 apply “a higher standard of fairness and a more probing inquiry than may normally be required

3 under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (quotations omitted).

4 Such settlement agreements “‘must withstand an even higher level of scrutiny for evidence of

5 collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing

6 the court’s approval as fair.’” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048–49 (9th Cir.

7 2019) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011)). A

8 more “exacting review is warranted to ensure that class representatives and their counsel do not

9 secure a disproportionate benefit at the expense of the unnamed plaintiffs who class counsel had a

10 duty to represent.” Id. (quotations omitted).

11 Courts may preliminarily approve a settlement and notice plan to the class if the proposed

12 settlement: (1) appears to be the product of serious, informed, non-collusive negotiations; (2) does

13 not grant improper preferential treatment to class representatives or other segments of the class;

14 (3) falls within the range of possible approval; and (4) has no obvious deficiencies. In re Lenovo

15 Adware Litig., No. 15-MD-02624-HSG, 2018 WL 6099948, at *7 (N.D. Cal. Nov. 21, 2018)

16 (citation omitted). Courts lack the authority, however, to “delete, modify or substitute certain

17 provisions. The settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026.

18 B. Analysis

19 i. Evidence of Conflicts and Signs of Collusion

20 The first factor the Court considers is whether there is evidence of collusion or other

21 conflicts of interest. See Roes, 944 F.3d at 1049. The Ninth Circuit has directed district courts to

22 look for “subtle signs of collusion,” which include whether counsel will receive a disproportionate

23 distribution of the settlement, whether the parties negotiate a “‘clear sailing’ arrangement (i.e., an

24 arrangement where defendant will not object to a certain fee request by class counsel),” and

25 whether the parties agree to a reverter that returns unclaimed funds to the defendant. Id.

26 The Settlement Agreement provides that Class Counsel will apply for an award of up to

27 30% of the gross settlement amount. SA § 8.1. This amount is larger than the Ninth Circuit’s

1 942 (“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award,

2 providing adequate explanation in the record of any ‘special circumstances’ justifying a

3 departure.”). However, there is no clear sailing agreement, as Defendant reserves the right to

4 oppose the fee application for any reason at its discretion. See SA § 8.1. And the proposed

5 settlement is non-reversionary. See id. § Definitions, V. The agreement provides that any

6 unclaimed funds remaining after the final distribution of the settlement fund, and taking into

7 account any increased payments to Class Members, will first be used to pay unanticipated

8 additional costs of settlement administration, and the remainder will be paid to the cy pres

9 recipient. See id. § 1.6. The Court will determine the appropriate amount of fees and awards at

10 the final approval stage, but finds that the proposed fee amount is not so disproportionate to raise

11 concerns at this approval stage.

12 To justify their above-benchmark fee request, Plaintiffs argue that a 30% award “reflects

13 standard awards in other common fund settlements,” and cite Williams v. MGM-Pathe

14 Communications Corp., 129 F.3d 1026 (9th Cir. 1997). See Mot. at 16. The cited case does not

15 accord with more recent Ninth Circuit authority confirming that the benchmark is 25%. See In re

16 Bluetooth, 654 F.3d at 942; see also In re Facebook, Inc. Internet Tracking Litig., No. 22-16903,

17 2024 WL 700985, at *2 (9th Cir. Feb. 21, 2024), cert. denied sub nom. Isaacson v. Meta

18 Platforms, Inc., 145 S. Ct. 1138 (2025) (referring to “25-percent benchmark” for common fund

19 cases). In addition, the Court notes that although Plaintiffs’ preliminary approval motion states

20 that the reasonableness of the attorneys’ fees request is discussed in a later section of the motion,

21 see Mot. at 16, the cited section only discusses the reasonableness of the settlement amount, not

22 the requested fee award. See id. at 20–21. The Court reminds counsel that any request for fees,

23 especially one seeking an upward adjustment from the benchmark, must be sufficiently justified

24 on specific grounds. See, e.g., In re Facebook, Inc. Internet Tracking Litig., 2024 WL 700985, at

25 *2 (upholding district court’s approval of fee award seeking upward departure of four percentage

26 points above benchmark because an increased fee was justified by “class counsel’s creation of new

27 law in the Ninth Circuit and its attainment of substantial monetary and injunctive relief for the

ii. Cy Pres Distribution

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The Court must also evaluate whether the parties’ proposed cy pres recipient is

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appropriate. A cy pres award must qualify as “the next best distribution” to giving the funds to

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class members. Dennis, 697 F.3d at 865. “Not just any worthy recipient can qualify as an

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appropriate cy pres beneficiary,” and there must be a “‘driving nexus between the plaintiff class

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and the cy pres beneficiaries.’” Id. (citation omitted). That is to say, a cy pres award must be

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“‘guided by (1) the objectives of the underlying statute(s) and (2) the interests of the silent class

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members, and must not benefit a group too remote from the plaintiff class[.]’” Id. (citations

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omitted). A cy pres distribution is not appropriate if there is “‘no reasonable certainty’ that any

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class member would benefit from it.” Id. (citation omitted).

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Here, the parties have selected Feeding America to receive any remaining funds, including

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those resulting from uncashed checks. SA § 1.6. Feeding America is a non-profit organization

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that provides free meals and nutrition education, and advocates for access to food and nutrition

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assistance programs. See Mot. at 16. Class Counsel states that Feeding America’s “mission of

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providing nutrition education is in line with the gut health benefit representations and ‘healthier’

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soda representations at issue in this case.” Fisher Decl. ¶ 15.

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The Court preliminarily finds that Feeding America shares the interests of the Settlement

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Class Members, who purchased products marketed as healthy, in promoting accurate nutrition and

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health information to the public. Accordingly, the Court preliminarily finds that there is a

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sufficient nexus between the cy pres recipient and the Settlement Class.

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iii. Preferential Treatment

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The Court next considers whether the Settlement Agreement provides preferential

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treatment to any Class Member. The Ninth Circuit has instructed that district courts must be

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“particularly vigilant” for signs that counsel have allowed the “self-interests” of “certain class

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members to infect negotiations.” In re Bluetooth, 654 F.3d at 947. For that reason, courts in this

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district have consistently stated that preliminary approval of a class action settlement is

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inappropriate where the proposed agreement “improperly grant[s] preferential treatment to class

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representatives.” Lenovo, 2018 WL 6099948, at *8 (quotations omitted).

1 The Settlement Agreement authorizes Class Counsel to apply for incentive awards for each

2 of the Class Representatives of no more than $5,000. SA § 8.2. The Court will ultimately

3 determine whether any of these individuals are entitled to such an award and the reasonableness of

4 the amount requested. Incentive awards “are intended to compensate class representatives for

5 work done on behalf of the class, to make up for financial or reputational risk undertaken in

6 bringing the action.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009).

7 Plaintiffs must provide sufficient evidence to allow the Court to evaluate their awards

8 “individually, using ‘relevant factors includ[ing] the actions the plaintiff has taken to protect the

9 interests of the class, the degree to which the class has benefitted from those actions, . . . [and] the

10 amount of time and effort the plaintiff expended in pursuing the litigation . . . .’” Stanton v.

11 Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003). The Court will consider the evidence presented at

12 the final fairness hearing and evaluate the reasonableness of any incentive award request.

13 Nevertheless, because incentive awards are not per se unreasonable, the Court finds that this factor

14 weighs in favor of preliminary approval. See Rodriguez, 563 F.3d at 958 (finding that “[i]ncentive

15 awards are fairly typical in class action cases” and “are discretionary” (emphasis omitted)).

16 iv. Settlement within Range of Possible Approval

17 The third factor the Court considers is whether the settlement is within the range of

18 possible approval. To evaluate whether the settlement amount is adequate, “courts primarily

19 consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” Lenovo,

20 2018 WL 6099948, at *8. This requires the Court to evaluate the strength of Plaintiffs’ case.

21 Plaintiffs’ counsel argues that a comparison of settlement amount to the expected recovery

22 at trial supports the reasonableness of the settlement here. Mot. at 20. Plaintiffs’ counsel

23 estimates, based on their experience in comparable litigation, that the price premium associated

24 with Defendant’s alleged gut health claims is between five and ten percent. Fisher Decl. ¶ 19.

25 Given that single cans of the Product retail for approximately $2.50, Class Members would

26 recover approximately between $0.13 and $0.25 per can under the price premium model. Mot.

27 at 21. Under the Settlement Agreement, Class Members with approved claims will thus receive a

1 $6.00 per 8-pack, and $9.00 per 12- or 16-pack. SA § 6.1.5. Further, each claimant will receive a

2 minimum payment of $5.00. Id. § Definitions, Y. At the hearing, counsel also estimated that the

3 settlement amount constitutes approximately 25 to 50 percent of the maximum alleged damages.

4 Finally, Plaintiffs argue that continuing the litigation would pose significant risks to their

5 ability to certify the settlement class and prevail at trial because Defendant strongly denies liability

6 and would mount a rigorous defense to Plaintiffs’ claims. Mot. at 18–20.

7 Given that the settlement amount enables Class Members to receive a higher monetary

8 payment per can of the Products than they likely would receive following a trial, and the

9 substantial risks that Plaintiffs identify if the case were to go forward, the Court finds that the

10 settlement amount is reasonable and weighs in favor of granting preliminary approval.

11 v. Obvious Deficiencies

12 The Court also considers whether there are obvious deficiencies in the Settlement

13 Agreement. The Court finds no obvious deficiencies, and therefore finds that this factor weighs in

14 favor of preliminary approval.

15 * * *

16 Having weighed the relevant factors, the Court preliminarily finds that the Settlement

17 Agreement is fair, reasonable, and adequate, and GRANTS preliminary approval. The Court

18 DIRECTS the parties to include both a joint proposed order and a joint proposed judgment when

19 submitting their motion for final approval. The proposed order should thoroughly address all of

20 the topics set forth in the Northern District’s Procedural Guidance for Class Action Settlements.1

21 The parties should also review this Court’s recent orders granting final approval of class action

22 settlements and draft their proposed order accordingly.2

23

24

1 See N.D. Cal. Procedural Guidance for Class Action Settlements,

https://www.cand.uscourts.gov/forms/procedural-guidance-for-class-action-settlements/ (updated

25

Sept. 5, 2024).

26

2 See, e.g., Smith v. Apple, Inc., No. 21-CV-09527-HSG, 2025 WL 1266927, at *1 (N.D. Cal. May

1, 2025); Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2023 WL 2250264

27

(N.D. Cal. Feb. 27, 2023); Chess v. Volkswagen Grp. of Am., Inc., No. 17-CV-07287-HSG, 2022

1 IV. PROPOSED CLASS NOTICE PLAN

2 For Rule 23(b)(3) class actions, “the court must direct to the class members the best notice

3 that is practicable under the circumstances, including individual notice to all members who can be

4 identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Individual notice must be sent

5 to all class members “whose names and addresses may be ascertained through reasonable effort.”

6 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). District courts have “broad power and

7 discretion vested in them by [Rule 23]” in determining the contours of appropriate class notice.

8 See Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979).

9 With respect to the content of the notice itself, the notice must clearly and concisely state

10 in plain, easily understood language:

11 (i) the nature of the action;

(ii) the definition of the class certified;

12 (iii) the class claims, issues, or defenses;

(iv) that a class member may enter an appearance through an attorney if

13 the member so desires;

(v) that the court will exclude from the class any member who requests

14 exclusion;

(vi) the time and manner for requesting exclusion; and

15 (vii) the binding effect of a class judgment on members[.]

16 Fed. R. Civ. P. 23(c)(2)(B).

17 The parties have agreed that a third-party settlement administrator, Verita Global, LLC

18 (“Verita”), will send the class notice. SA § F.1; Definitions, QQ. Defendant will provide Verita

19 with the names and valid email addresses for Class Members it may have in its records. Id. § 7.2.

20 Verita will then send these Class Members the class notice via email. Id. § 7.4.1. It will also

21 implement a digital media campaign to distribute the class notice via programmatic advertising

22 across popular websites, mobile applications, and social media outlets Facebook and Instagram to

23 achieve approximately 29,415,000 impressions, targeted to “the most appropriate users.” Dkt. 55-

24 3 (“Reed Decl.”) ¶ 24.3 Verita will also publish the class notice four times in the Los Angeles,

25 San Francisco, and Phoenix regional editions of USA Today. Id. ¶¶ 28–29. Finally, Verita will

26

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3 To identify the target digital audience, Verita used “a research definition of all adults who have

1 maintain a website that will include the class notice, publicly filed papers related to the case, and

2 additional information, and will establish a toll-free phone number and email address that Class

3 Members can contact. Id. ¶¶ 29–31.

4 The Court finds that the proposed notice process is “reasonably calculated, under all the

5 circumstances, to apprise all class members of the proposed settlement.” Roes, 944 F.3d at 1045

6 (quotation omitted).

7 As to the substance of the notice, the parties have attached a copy of claim form, see Dkt.

8 No. 55-1, Ex. A, and the full proposed class notice to the Settlement Agreement, see id., Ex. D.

9 This notice will be posted on the settlement website. SA § 7.4.4. The parties have also provided

10 copies of the proposed email notice. See id., Ex. B, and proposed publication notice, see id., Ex.

11 C. All of the notices explain the nature of the action and claims, define the class, and inform Class

12 Members about what payment they will receive and how to opt out of or object to the Settlement

13 Agreement. See id.

14 However, as the Court noted at the hearing on the motion, the original proposed claim

15 form and notices use the term “Household” without defining it. See Dkt. No. 55-1 at 33, 36, 39,

16 42, 46. Further, the notices do not clarify that, per the terms of the Settlement Agreement, “[i]f

17 more than one Claim is submitted per Household, all such Claims shall be combined and treated as

18 a single Claim for purposes of the limits set forth herein.” See SA § 6.1.6. The Court explained at

19 the hearing that this information should be included in the notices so that Class Members fully

20 understand the meaning of the term “Household” for purposes of the settlement and are not

21 discouraged from submitting claims. Consequently, the Court directed Plaintiffs’ counsel to

22 submit updated notices that define “Household” and explain that claims from individuals in the

23 same Household will be combined rather than rejected. See Dkt. No. 59. Counsel timely filed

24 revised versions of the claim form and notices, and the Court finds that the updated versions

25 adequately reflect the changes discussed. See Dkt. Nos. 60-1, 60-2, 60-3, 60-4.4

26

4 Counsel also updated the notices to reflect that Plaintiff Carol Lesh is no longer serving as Class

27

Representative. See Dkt. No. 60 at 2. Accordingly, the updated notices state that Class Counsel

1 In addition, none of the notices, including the updated versions, inform class members that

2 they may object specifically to the motion for attorneys’ fees and motion for incentive awards.

3 For example, the full class notice only states that a copy of the attorneys’ fees motion will be

4 available on the website, and that “the Court will determine what amounts of fees, costs, expenses,

5 and Service Awards to award.” See Dkt. No. 60-4 at 7. Similarly, the section of the full class

6 notice regarding objections informs Class Members that they generally “can ask the Court to deny

7 approval of the Settlement by timely filing an Objection,” without also explaining that they may

8 also object to the award of attorneys’ fees and incentives. See id. at 10 (emphasis added). To

9 better enable Class Members to understand that they may specifically object to these motions in

10 addition to the proposed settlement, Class Counsel shall include language in all notices:

11 (1) specifically stating that Class Members may object to the attorneys’ fees motion and request

12 for Plaintiffs’ incentive awards; and (2) specifically stating the deadlines for filing these motions

13 and for any class member objections to them. See In re Mercury Interactive Corp. Sec. Litig., 618

14 F.3d 988, 993–94 (9th Cir. 2010) (holding that under Rule 23(h), class members must be given a

15 full and fair opportunity to examine and object to attorneys’ fees motion).

16 The Court finds that with these changes, the content of the updated versions of the

17 proposed claim form and notices provides sufficient information about the case and thus conforms

18 with due process requirements. See Hyundai II, 926 F.3d at 567 (“Notice is satisfactory if it

19 generally describes the terms of the settlement in sufficient detail to alert those with adverse

20 viewpoints to investigate and to come forward and be heard.” (quotation omitted)).

21 //

22 //

23 //

24 //

25 //

26 //

27 //

1 V. CONCLUSION

2 The Court GRANTS the motion for preliminary approval. Dkt. No. 55. The parties are

3 DIRECTED to meet and confer and stipulate to a schedule of dates for each event listed below,

4 || which shall be submitted to the Court within seven days of the date of this Order.

°

6 Deadline for Settlement Administrator to mail

notice to all putative Class Members

7 Filing deadline for attorneys’ fees andcosts motion | = ititi‘isSCSY

Filing deadline for incentive payment motion Ps

8 Deadline for Class Members to opt-out or object to

9 settlement and/or application for attorneys’ fees and

costs and incentive payment, at least 45 days after

10 the filing of the motion for attorneys’ fees and

incentive payments

11 Filing deadline for final approval motion Po

Db Final fairness hearing and hearing on motions PO

13 The parties are further DIRECTED to implement the proposed class notice plan with the edits

14 || identified above.

15

16 IT IS SO ORDERED.

|| Dated: 5/23/2025

Z 18 Abesprerel 8 hb |p.

HAYWOOD S. GILLIAM, JR.

19 United States District Judge

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