United States District Court, S.D. Ohio, Western Division
DINO RIKOS, TRACEY BURNS, and LEO JARZEMBROWSKI, On behalf of themselves and all others similarly situated, Plaintiffs,
THE PROCTOR & GAMBLE COMPANY, Defendant.
GRANTING DEFENDANT'S MOTION FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT (Doc. 169); GRANTING PLAINTIFFS' MOTION
FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND REQUEST FOR
AWARD OF ATTORNEYS' FEES AND EXPENSES (Doc. 170); and
TERMINATING THIS CASE FROM THE DOCKET
Timothy S. Black United States District Judge.
civil case is before the Court on the motion of Defendant,
The Proctor & Gamble Company, for final approval of class
action settlement (Doc. 169), the motion of Plaintiffs for
final approval of class action settlement and request for
award of attorneys' fees and expenses (Doc. 170), and the
oral arguments presented by counsel at the fairness hearing
on April 16, 2018.
case concerns Defendant's labeling and advertising of
Align, an over-the-counter probiotic supplement. Align is
promoted as helping to build and maintain a healthy digestive
system, restore natural digestive balance, and protect
against occasional digestive upsets. (Doc. 165 at ¶ 1).
allege Align does not deliver the advertised benefits. (Doc.
165 at ¶¶ 1-3). On September 21, 2010, Plaintiff
Dino Rikos filed a class action complaint challenging
Align's labeling and advertising. (Doc. 1). On August 17,
2012, Plaintiff Rikos filed a Second Amended Class Action
Complaint that added Tracey Burns and Leo Jarzembowski as
named Plaintiffs and proposed Class Representatives. (Doc.
85). Plaintiffs alleged five single-state classes consisting
of consumers who purchased Align in California, Florida,
Illinois, New Hampshire, and North Carolina.
January 13, 2014, Plaintiffs moved to certify five classes
pursuant to Rules 23(a) and 23(b)(3) and to appoint Plaintiff
Dino Rikos as Class Representative of the California and
Illinois classes, Plaintiff Tracey Burns as Class
Representative of Florida and North Carolina classes, and
Plaintiff Leo Jarzembowski as Class Representative of a New
Hampshire class. (Docs. 108, 110). On June 19, 2014, the
Court granted Plaintiffs' motion for certification. (Doc.
appealed the certification order to the United States Court
of Appeals for the Sixth Circuit, which affirmed this
Court's order. See Rikos v. P&G, 799 F.3d
497 (6th Cir. 2015). Defendant petitioned the
Supreme Court for writ of certiorari. Plaintiffs
opposed the petition, which the Supreme Court denied. (Doc.
166-1 at ¶¶ 17-19).
litigation in this case was contentious and extensive.
Counsel negotiated confidentiality and ESI protocols. (Doc.
166-1 at ¶ 25). Plaintiffs' counsel obtained,
reviewed and analyzed approximately 752, 341 pages of
hard-copy and electronic documents produced by Defendant and
an additional 20, 280 pages of documents produced in response
to over 30 subpoenas served by Plaintiffs on third-parties.
(Id. at ¶¶ 24, 27-31). The parties deposed
19 witnesses, including Defendant's scientists and
marketing personnel, third-party scientists, and two of
Defendant's primary scientific experts. (Id. at
¶¶ 30-32). Defendant deposed each of the named
Plaintiffs. (Id. at ¶ 32). The parties
exchanged 21 reports from 14 retained experts on issues
relating to advertising, marketing, gastroenterology,
microbiology, biostatistics, FDA regulations, and damages.
(Id. at ¶¶ 22, 34-37).
parties have participated in multiple mediations over the
course of this lawsuit. On September 19, 2011, the parties
participated in an all-day mediation with Mark D. Peterson of
Farella Braun & Martel LLP. (Doc. 166-1 at ¶ 40). No
settlement was reached.
parties participated in a second mediation with mediator
David P. Kamp in Cincinnati, Ohio. (Doc. 166-1 at ¶ 41).
Following this mediation, Mr. Kamp met with the parties
separately in Cincinnati and San Diego. (Id.)
March 13, 2017, the parties participated in an all-day
mediation in San Francisco, California, conducted by Antonino
Piazza. (Doc. 166-1 at ¶ 42). Although no settlement was
reached, the parties continued discussing settlement
including with the assistance of Mr. Piazza. (Id.)
The parties' settlement discussions occurred over
telephone and electronic mail and were numerous, lengthy, and
complex. (Id.) On May 1, 2017, the parties agreed to
a settlement term sheet. (Id.) The
proposed attorneys' fees and
expenses were negotiated after the parties agreed on the
principal terms of the settlement and with the assistance of
the mediator. (Id.). Over the course
of the next four months, the parties negotiated all aspects
of the settlement (“Settlement”) and eventually
executed the settlement agreement (“Settlement
Agreement”). (Id. at ¶ 43).
The Settlement Agreement.
the Settlement Agreement, Defendant will pay up to about
$30.3 million in settlement benefits, with a minimum of $20.3
million in benefits. (Doc. 170 at 18).
under the Settlement, Settlement Class Members may receive a
Cash Refund of up to $49.26 for three purchases of Align.
(Settlement Agreement, § IV(A)(2)). The Cash Refund
amount represents 50% of Align's average retail price.
(Doc. 170 at 20). Defendant will pay out up to $15 million in
Cash Refunds. (Settlement Agreement, § IV(A)(2)).
in addition to Cash Refunds, Defendant will contribute a
minimum of $5 million and up to $10 million worth of
Digestive Health Improvement Contributions
(“DHIC”). (Doc. 170 at 21; Settlement Agreement,
§ IV(A)). The DHIC are in addition to and do
not reduce the $15 million available for Cash
Refunds. (Settlement Agreement, §
IV(A)(1)(b)). The DHIC will be in the form of: (1)
intellectual property and/or know-how; (2) research and/or
education grant(s); and/or (3) product donations to research
and/or educational institutions and/or programs working to
improve digestive heath. (Settlement Agreement, §
IV(A)(1)(a)). Defendant will have discretion to select the
recipients, and form, of the DHIC subject to prior review and
approval by Class Counsel. (Id.)
the Settlement Agreement provides injunctive relief by
prohibiting Defendant from making the “clinically
proven” five symptom relief claims contained on the
Align packaging sold to consumers from approximately March 1,
2009 through October 31, 2009, absent new supporting clinical
data and/or analysis or a change in product formula.
(Settlement Agreement at § IV(B)(1)).
Defendant agrees to pay all Notice and Claim Administration
Expenses separate and apart from any other consideration paid
under the Settlement. (Settlement Agreement, §
Class Counsel, on behalf of all Plaintiffs' Counsel, will
apply for an award of Attorneys' Fees and Expenses not to
exceed $4.5 million. (Settlement Agreement, § IX(A)).
Defendant agrees not to oppose an application for these
amounts (the “Clear Sailing” provision).
Class Counsel will apply for service awards of $2, 500 each
for the Class Representatives for their time invested in
connection with this case. (Settlement Agreement, §
in consideration for the foregoing, the Settlement Class
Members release Defendant from the following claims:
[W]ith the exception of claims for personal injury, all
claims, demands, actions, suits, and/or causes of action that
have been brought or could have been brought, are currently
pending or were pending, or are ever brought in the future,
by any Settlement class Member against P&G or any
Released Party, in any forum in the United States and its
territories, whether known or unknown, asserted or
unasserted, under or pursuant to any statute, regulation,
common law or equity, that relate in any way, directly or
indirectly, to facts, acts, events, transactions,
occurrences, courses of conduct, representations, omissions,
circumstances or other matters related to or referenced in
any claim raised (including, but not limited to, any claim
that was raised against any Released Party) in this Action,
including damages, costs, expenses, penalties, and
(Settlement Agreement, §§ II(A)(28), VIII).
Class Notice Program.
Settlement Agreement provides for notice primarily through
print and digital publication. (Settlement Agreement, §
VI(C)(1)). This is because Align was sold over-the-counter at
retail stores and Defendant does not have contact information
for Settlement Class Members. (See Doc. 166 at 24).
notice was provided in the following print publications:
Cooking Light, Men's Health,
People, and Woman's Day. (Doc. 170-9 at
¶ 5). These particular print publications were chosen
because of the likelihood they will reach probiotics
consumers. (Doc. 166-5 at ¶ 20).
January 10, 2018, a settlement website
(www.AlignSettlement.com) was established. (Doc.
170-9 at ¶ 16). The website provides notice of the
Settlement, the Settlement Agreement, answers to frequently
asked questions, the Third Amended Class Action Complaint,
the Order Preliminarily Approving Class Action Settlement,
Plaintiffs' Motion for Preliminary Approval, and Claim
Form Instructions. (Id.) The website also allows
Settlement Class Members to submit a Claim Form online.
notice was provided via internet banner ads, sponsored
advertising in the “Top Class Actions” website
and newsletter, paid search efforts, and internet
“lookalike” targeting efforts. (Doc. 170-9 at
the Class Notice Program, notice reached more than 80% of
Settlement Class Members, on average, 2.7 times. (Doc. 170-9
at ¶ 25). As of March 1, 2018, the Claims Administrator
had not received any requests for exclusion. (Doc. 170-9 at
¶ 19). Five individuals filed written objections to the
Settlement. (Docs. 171, 173, 174, 175).The deadline for
Settlement Class Members to submit or file a claim form is
May 16, 2018; as of February 28, 2018, the Claims
Administrator had processed 151, 445 Claim Forms. (Doc. 170-9
at ¶ 21).
The Settlement Class is appropriate for Rule 23
motion for final approval asks the Court to certify the
Settlement Class pursuant to Federal Rule of Civil Procedure
23. (Doc. 170 at 32-36). The Settlement Class is defined as:
all persons who purchased within the United States and its
territories P&G's Align, other than solely for
purposes of resale, from March 1, 2009 to June 6, 2016.
Excluded from the Settlement Class are: (i) Defendant and its
officers, directors, and employees; (ii) any person who files
a valid and timely Request for Exclusion; and (iii) judicial
officers and their immediate family members and associated
court staff assigned to the case.
(Settlement Agreement, § II(34)).
benefits of a settlement can be realized only through the
final certification of a settlement class. Wess v.
Storey, Case No. 2:08-cv-623, 2011 U.S. Dist. LEXIS
41050, at * 17 (S.D. Ohio Apr. 14, 2011). The Court maintains
broad discretion in deciding whether to certify a class.
Settlement Class is substantially similar to the five
single-state classes already certified by this Court and
affirmed by the Sixth Circuit, with the exception that it is
expanded to a nationwide class. Upon an additional
consideration of the Rule 23 factors, the Court finds it
appropriate to certify the Settlement Class for reasons
similar to those stated in its previous certification order.
See In re Whirlpool Corp. Front-Loading Washer Prods.
Liab. Litig., Case No. 1:08-WP-65000 (MDL 2001), 2016
U.S. Dist. LEXIS 130467, at * 23 (N.D. Ohio Sept. 23, 2016)
(certifying a nationwide class for settlement purposes
because “[t]hat the settlement class is modestly
broader than the certified litigation does not undermine the
fundamental cohesion” among the class).
23(a)(1) requires a plaintiff to demonstrate that “the
class is so numerous that joinder of all members is
impracticable.” While no specific number of class
members is required to maintain a class action, “[w]hen
class size reaches substantial proportions . . . the
impracticability requirement is usually satisfied by the
numbers alone.” In re Am. Med. Sys. Inc., 75
F.3d 1069, 1079 (6th Cir. 1996) (citation
Settlement Class is substantial. Between 2009 and 2013,
Defendant sold over 9.5 million packages of Align. (Doc. 140
at 16). The Court finds the size of the Settlement Class in
this case easily satisfies the numerosity requirement.
23(a)(2) requires “questions of law or fact common to
the class.” This requirement is interdependent with the
impracticability of joinder requirement. In re Am. Med.
Sys., Inc., 75 F.3d at 1080. Together, these
tests form the conceptual basis for class actions.
Id. The Sixth Circuit has explained:
The class-action was designed as an exception to the usual
rule that litigation is conducted by and on behalf of the
individual named parties only. Class relief is particularly
appropriate when the issues involved are common to the class
as a whole and when they turn on questions of law applicable
in the same manner to each member of the class. In such
cases, the class-action device saves the resources of both
the courts and the parties by permitting an issue potentially
affecting every class member to be litigated in an economical
fashion under Rule 23.
Id. at 1076 (quoting General Telephone v.
Falcon, 457 U.S. 147, 155 (1982)).
the commonality requirement is easily met. Determining
whether Align provides any digestive health benefit is a
common question that will advance the litigation. See
Wiener v. Dannon Co., 255 F.R.D. 658, 667 (C.D. Cal.
2009) (proposed class members in a consumer protection claim
regarding digestive health benefits of probiotics
“clearly share common legal issues regarding
[Defendant's] alleged deception and misrepresentations in
its advertising and promotion of the Products”);
see also Fitzpatrick v. General Mills,
Inc., 635 F.3d 687, 696 (S.D. Fla. 2010) (“Whether
General Mills' claim that YoPlus aids in the promotion of
digestive health is ‘deceptive' is a mixed question
of law and fact common to every class member”).
23(a)(3) provides that “the claims or defenses of the
representative parties [shall be] typical of the claims or
defenses of the class.” The typicality element is
designed to assess “whether a sufficient relationship
exists between the injury to the named plaintiff and the
conduct affecting the class, so that the court may properly
attribute a collective nature to the challenged
conduct.” Sprague v. General Motors Corp., 133
F.3d 388, 399 (6th Cir. 1998). A plaintiff's
claim is typical if it arises from the same event or practice
or course of conduct that gives rise to the claims of other
class members, and if the named plaintiff's claims are
based on the same legal theory. In re Am. Med. Sys.,
Inc., 75 F.3d at 1082.
Plaintiffs and the proposed class assert the same claims,
premised on the same legal theories, arising from the same
course of conduct-Defendant's representations about the
digestive health benefits of Align. For each class member to
recover under the claims at issue, each must prove the same
elements as the named Plaintiffs. Accordingly the typicality
element is satisfied.
Adequacy of Representation.
23(a)(4) requires that “the representative parties will
fairly and adequately protect the interest of the
class.” The Sixth Circuit has counseled that there are
two criteria for determining this element: (1) the
representatives must have common interests with the unnamed
class members, and (2) it must appear that the
representatives will vigorously prosecute the class action
through qualified counsel. See Senter v. Gen. Motors
Corp., 532 F.2d 511, 524-25 (6th Cir. 1976)
Plaintiffs and the Class Members possess the same interest
and suffered the same injury: each of them purchased Align
and were subject to the same allegedly false advertising.
Accordingly, Plaintiffs are adequate Class Representatives
and satisfy the first prong of the adequacy requirement.
See Int'l Union, United Auto., Aerospace & Agr.
Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d
615, 626 (6th Cir. 2007) (“Class
representatives are adequate when it appears that they will
vigorously prosecute the interest of the class through
qualified counsel . . . which ...