In re Pool Products Distribution Market Antitrust Litigation
In re Pool Products Distribution Market Antitrust Litigation
Opinion of the Court
ORDER AND REASONS
Indirect-Purchaser Plaintiffs (IPPs), together with Pentair Water Pool & Spa, Inc. (Pentair), move the Court to preliminarily approve a class action settlement between IPPs and Pentair.
I. Background
A. Factual Background
This is an antitrust case that direct-purchaser plaintiffs (DPPs) and indirect-purchaser plaintiffs (IPPs) filed against Pool and Manufacturer Defendants. Pool is the country’s largest distributor of products used for the construction and maintenance of swimming pools (Pool Products).
B. Procedural Background
On November 21, 2011, the Federal Trade Commission (FTC) announced that it conducted an investigation into unfair methods of competition by Pool and entered a consent decree with Pool resolving the matter. Shortly after the FTC’s announcement, several plaintiffs filed suit in this district and several others. On April 17, 2012, the Judicial Panel on Multidistrict Litigation consolidated the suits for pretrial purposes in this Court.
On September 5, 2012, IPPs filed their Second Amended Class Action Complaint (SCAC).
On May 24, 2013, the Court dismissed IPPs’ claims under the California Unfair Competition Law, Florida Deceptive and Unfair Trade Practices Act, and Missouri Merchandising Practices Act that were based on the theory that defendants engaged in fraud or misrepresentation.
The Court allowed IPPs to go forward with their Unfair Competition Law and rule of reason Cartwright Act claims involving three vertical conspiracies (one between Pool and each Manufacturer Defendant), to the extent that the claims were predicated on a national market.
The parties have participated in extensive fact discovery, including the deposition of over eighty fact witnesses. Fact and expert discovery is complete.
C. Settlement Agreement Background
Negotiations leading to the settlement agreement between IPPs and Pentair took place over the course of two years. Class Counsel for IPPs and counsel for Pentair mediated this action before the Honorable Layn Phillips, a former federal district judge and a respected mediator of antitrust disputes. Settlement negotiations included four full-day, in-person mediation sessions on July 22, 2013 in Chicago and March 20, 2014; October 1, 2014; and March 5, 2015 in New York. The parties reached an agreement at the March 5, 2015 mediation session and finalized the terms on March 31, 2015, as a result of follow-up email and telephone communications facilitated by Judge Phillips. IPPs and Pentair executed the Settlement Agreement on March 31, 2015. The parties represent that they have not entered into any side agreements.
On July 6, 2015, counsel for IPPs and Pentair submitted a joint motion asking the Court to (1) grant preliminary approval of a class action settlement, (2) certify a settlement class, (3) appoint class counsel, (4) authorize notice to the proposed class of the proposed settlements, (5) schedule a fairness hearing, (6) stay all claims against Pentair in the MDL, and (7) establish a schedule for hearing motions for attorneys’ fees, litigation expenses, and incentive awards for the named plaintiffs.
D. The Proposed Settlement Class
The Settlement Agreement defines the Settlement Class as:
all individuals residing or entities operating in Arizona, California, Florida, or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp (and not for resale) Pool Products in Arizona, California, Florida, or Missouri manufactured by Hayward, Pen-tair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, regardless of whether named as a Defendant in this Action, and governmental entities or agencies.19
“PoolCorp” is defined to include Pool Corporation and its subsidiaries, including SCP Distributors, LLC and Superior Pool Products, LLC.
the equipment, products, chemicals, parts, or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool*306 walls, and white goods (the parts necessary to maintain pool equipment manufactured by Defendants and sold directly or indirectly to Pool Corporation^])21
Class Members will include each member of the Settlement Class who does not timely elect to be excluded from the Settlement Class. The parties stipulate that certification of the Settlement Class is for settlement purposes only, and they retain all of their respective objections, arguments, and defenses regarding class certification in the event that settlement is not finalized.
E. The Settlement Agreement
Under the terms of the proposed Settlement Agreement, Pentair would pay a settlement amount of $600,000 into an Escrow Account pending the Court’s final approval of the settlement. The Agreement requires that Pentair wire transfer the settlement amount into the Escrow Account within ten business days of the Court’s entering a Preliminary Order approving the settlement. Interest from the account will accrue to the benefit of the Settlement Class.
The Agreement provides that the settlement amount is an “all-in” figure, meaning that $600,000 is the total amount Pentair will pay under the agreement in exchange for the Released Claims.
Pentair also agrees to assist plaintiffs’ counsel with document authentication and to answer plaintiffs’ questions about transactional data previously produced by Pentair during discovery.
The Agreement notes that IPPs and Pen-tair seek to re-confirm the appointment of Kevin Kistler, Jean Bove, Peter Moughey, and Ryan Williams as Settlement Class Representatives.
The Agreement provides that it is intended to forever and completely release Pentair from all “Released Claims,” which are defined as:
any and all claims, demands, actions, suits, proceedings, causes of action, damages, liabilities, costs, expenses, penalties, and attorneys’ fees, of any nature whatsoever, whether class, individual, or otherwise in nature (regardless of whether any person or entity has objected to the settlement or makes a claim upon or participates in the Settlement Fund), whether directly, repre-sentatively, derivatively, or in any other capacity that Releasors, or each of them, ever had, now has, or hereafter can, shall, or may have on account of, related to, or in any way arising out of, any and all known and unknown, foreseen and unforeseen, suspected and unsuspected injuries, damages, and the consequences thereof in any way arising out of or relating to the Action, which were asserted or that could have been asserted, including any claims arising under any federal or state antitrust, unjust enrichment, unfair competition, or trade practice statutory or common law, or consumer protection law[J28
Released Claims do not include claims against any Non-Settling Defendant.
In a subsequent motion filed on August 21, 2015, IPPs move the Court to appoint An-geion Group as the Claims Administrator and Notice Agent for the settlement and First NBC Bank as Escrow Agent.
F. Plan of Notice
The parties propose continuing to use An-geion Group, which the Court appointed as Claim Administrator for the Hayward and Zodiac settlements, as the Claims Administrator and Notice Agent for the Pentair settlement.
Because this identical class was already notified in accordance with a court-approved notice plan in the parallel class settlements between IPPs and Hayward and Zodiac, the parties propose a substantially similar version of the previous notice plan. The Claims Administrator will email a “Notice Package” comprised of the Class Settlement Notice-Long Format (“Long Form Notice”) and the Proof of Claim Form to the last known email address of all persons identified through Pentair’s warranty registration and rebate request databases.
G. Plan of Allocation and Claims Process
The Settlement Agreement provides that the settlement fund will be used to pay attorneys’ fees and expenses approved by the Court, all notice and settlement administration expenses and any other costs associated with the settlement. The proposed Notice explains that Class Counsel will ask the Court to approve an award of attorneys’ fees, costs, and expenses, not to exceed one-third
The Court also appointed a Special Master for the IPP settlement,
Consistent with the allocation protocol implemented in the IPP settlements with Hayward and Zodiac, the Special Master recommends apportioning the settlement fund among a single class of IPPs rather than separate apportionments among the settling jurisdictions.
II. Class Certification
A. Legal Standard
The certification requirements of Federal Rule of Civil Procedure 23 generally apply when certification is for settlement purposes. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). A district court need not consider “whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.” Id. (citing Fed.R.Civ.P. 23(b)(3)(D)). But the Court’s consideration of the other factors in Rule 23 is of “vital importance” because the Court will lack a later opportunity to make adjustments to the class. Id. The existence of a settlement class may even “warrant more, not less, caution on the question of certification.” Id.
To be certified under Rule 23, the class must first satisfy four threshold requirements. A court may certify a class only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). The party seeking certification bears the burden of establishing these requirements. Unger v. Amedisys, 401 F.3d 316, 320 (5th Cir. 2005) (citing Berger v.
In addition, a court that certifies a class must also appoint class counsel. Fed. R.Civ.P. 23(g). In appointing class counsel, the Court must consider:
(1) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class
Fed.R.Civ.P. 23(g)(1)(A).
B. Discussion
For the following reasons, the Court finds that the class may be certified for settlement purposes under Rule 23.
1. Rule 23(a) requirements
Numerosity
Rule 23(a)(1) requires that the class be so large that joinder of all members is impracticable. To satisfy the numerosity requirement, “a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981)).
Here, the proposed Settlement Class consists of persons and entities that purchased Pool Products in Arizona, California, Florida, or Missouri indirectly from Pool-Corp, during the time period between January 1, 2008 and July 16, 2013. Counsel estimates that there are more than 500,000 putative class members in each of the Settling Jurisdictions, except Missouri, where counsel estimates that there are as many as 23,000 putative class members.
Commonality
The commonality test of Rule 23(a)(2) requires that the class members “have suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The requirement that class members have all “suffered the same injury” can be satisfied by “an instance of the defendant’s injurious conduct, even when the resulting injurious effects — the damages — are diverse.” In re Deepwater Horizon, 739 F.3d 790, 810-11 (5th Cir. 2014).
The principal requirement of commonality is that class members raise “at least one contention that is central to the validity of each class member’s claims.” Id. at 810. This “common contention,” “must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 131 S.Ct. at 2551. Thus, “[wjhat matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers.” Id. “These ‘common
While “even a single common question” will satisfy the Rule 23(a)(2) commonality requirement, Wal-Mart Stores, 131 S.Ct. at 2556, the Rule 23(b)(3) predominance inquiry “is more demanding,” Ahmad v. Old Republic Nat. Title Ins. Co., 690 F.3d 698, 702 (5th Cir. 2012) (quoting Wilborn v. Wells Fargo Bank, N.A., 609 F.3d 748, 755 (5th Cir. 2010)). Because “[plaintiffs cannot satisfy Rule 23(b)(3)’s predominance requirement without satisfying Rule 23(a)’s commonality requirement,” the Court combines its commonality analysis with its predominance analysis, infra. See id. at 705 n. 25 (noting the commonality requirement is “subsumed under, or superseded by, the more stringent Rule 23(b)(3) [predominance] requirement” (quoting Amchem, 521 U.S. at 609, 117 S.Ct. 2231)).
Typicality
Rule 23(a)(3) requires that “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” The test for typicality is not demanding, and it focuses on the general similarity of the legal and remedial theories behind plaintiffs’ claims. Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997). Thus, “many courts have found typicality if the claims or defenses of the representatives and the members of the class stem from a single event or a unitary course of conduct, or if they are based on the same legal or remedial theory.” 7A Wright & Miller, Federal Practice and Procedure § 1764 (2014).
Here, the Class Representatives are the same as the Named Plaintiffs in the TCAC: Jean Bove (CA), Kevin Kistler (AZ), Peter Mougey (FL), and Ryan Williams (MO). The TCAC alleges that all of the plaintiffs purchased Pool Products indirectly from Pool during the class period, and that as a result of defendants’ alleged anticompetitive conduct, all plaintiffs suffered damages from paying supracompetitive prices and facing reduced product choice.
Adequacy
Rule 23(a) also requires that the representative parties must “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (citing Falcon, 457 U.S. at 158, n. 13, 102 S.Ct. 2364). Class representatives “must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26, 117 S.Ct. 2231 (citations and internal quotation marks omitted). The adequacy requirement “also factors in competency and conflicts of class counsel.” Id. at 626 n. 20, 117 S.Ct. 2231.
Here, as discussed in the Court’s analysis of typicality, the interests of the Class Representatives are aligned with the interests of the class, because Class Members all raise identical claims relating to the same alleged conduct and according to the same theory of damages. Thus, the Court sees no conflict of interest between the Class Representatives and the Settlement Class.
In addition, the parties have nominated experienced class action attorneys for Class Counsel. Tom Brill, the proposed Lead Counsel for the class, has already been appointed by the Court as IPPs’ Liaison Counsel, as well as Class Counsel for the settlement class in IPPs’ settlements with Hayward and Zodiac. He has close to four decades of experience as a trial lawyer, spe
2. Rule 23(b) requirement
For class actions seeking money damages, Rule 23(b)(3) imposes two prerequisites, predominance and superiority: “[Questions of law or fact common to the members of the class [must] predominate over any questions affecting only individual members, and ... a class action [must be] superior to the other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).
Predominance
The Court combines its analysis of commonality and predominance. While a single common question will satisfy commonality, to satisfy predominance, “common issues must constitute a significant part of the individual cases.” Mullen, 186 F.3d at 626. “This requirement, although reminiscent of the commonality requirement of Rule 23(a), is ‘far more demanding’ because it ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Unger, 401 F.3d at 320 (quoting Amchem, 521 U.S. at 623-24, 117 S.Ct. 2231).
To make a “meaningful determination” of whether an allegedly common contention satisfies commonality, a district court must “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law.’” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 841 (5th Cir. 2012) (quoting McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 (5th Cir. 2003)). Specifically, a district court should analyze how resolution of an allegedly common question of law or fact will decide an issue central to an element or defense of each of the class members’ claims at once. See id. at 841-42. Similarly, to determine whether the class claims meet the predominance requirement, the court must “identify the substantive issues that will control the outcome, assess[] which issues will predominate, and then determine] whether the issues are common to the class.” Bell Atl. Corp. v. AT & T Corp., 339 F.3d 294, 302 (5th Cir. 2003).
The requirement that “a court know which law will apply before making a predominance determination is especially important when there may be differences in state law.” Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996) (citation omitted). The Fifth Circuit has held that “in a class action governed by the laws of multiple states, ... ‘variations in state law may swamp any common issues and defeat predominance.’ ” Cole v. Gen. Motors Corp., 484 F.3d 717, 724 (5th Cir. 2007) (quoting Castano, 84 F.3d at 741). Nevertheless, courts tend to be much less concerned with variations in state law when certifying a settlement-only class. The Third Circuit describes the difference between liti
IPPs from California, Arizona, Florida, and Missouri bring claims under their respective state laws. In ruling on defendants’ last motion to dismiss, the Court recognized that the same alleged conduct could satisfy the requirements of each state’s antitrust or consumer protection laws. Specifically, the Court allowed California IPPs to proceed with claims of three vertical conspiracies (one between Pool and each Manufacturer Defendant), to the extent that the claims are predicated on a national market, under two different California laws: California’s antitrust law, the Cartwright Act, Cal Bus. & Prof. Code § 16720 et seq., and the California Unfair Competition Law, Cal. Bus. & Prof Code § 17200 et seq.
With respect to the alleged vertical agreements between Pool and the three Manufacturer Defendants, IPPs in all four states allege the same conduct and advance the same theory as to why that conduct violates the state antitrust or consumer protection laws of their respective states. The Court could list any number of common questions of fact critical to establishing these violations. For example:
1. Whether there was an anticompetitive agreement between Pool and each Manufacturer Defendant?
2. What was the scope of the alleged agreements?
3. What effect, if any, did the alleged agreements have on the Pool Products Distribution Market?
In addition, with the exception of California IPPs, plaintiffs also rely on the same allegedly anticompetitive single-firm conduct by Pool and the same theories as to why that conduct violates their respective state laws.
IPPs in all four states also share common questions of fact surrounding their ability to
To satisfy 23(b)(3), plaintiffs almost certainly must be able to establish injury using common proof. See Ala. v. Blue Bird Body Co., Inc., 573 F.2d 309, 324 (5th Cir. 1978) (“[I]f generalized proof of impact is in fact improper, then the district court must carefully consider whether this requirement of individual proof does not defeat the class certification on either predominance or manageability grounds.”). When indirect purchaser plaintiffs cannot demonstrate impact through common proof, the problem of individualized proof can threaten to overwhelm predominance. See, e.g., Somers, 258 F.R.D. at 361 (denying certification because indirect purchaser failed to establish a reliable method for proving common impact because purchaser’s expert proffered no specific economic model, and his testimony did not show how his method would address the problem of an overcharge pass-through from re-sellers to members of the putative class); In re Flash Memory Antitrust Litig., No. C 07-0086, 2010 WL 2332081, at *10, *19 (N.D.Cal. 2010) (denying certification because proposed indirect purchaser class could not show antitrust impact, specifically pass-through, by common evidence). Because this certification is for settlement purposes only, the Court need not consider whether individualized showings of proof of impact would cause problems for manageability, see Amchem, 521 U.S. at 620, 117 S.Ct. 2231, but it must still examine whether the need for individualized proof of impact would overwhelm predominance.
Here, Class Members have articulated a single theory of injury: defendants’ alleged anticompetitive conduct led to uniformly inflated Pool Product prices, and this overcharge was passed through from direct purchasers to indirect purchasers of Pool Products. IPPs rely on DPPs’ expert to establish the uniform overcharge to direct purchasers. According to DPPs’ expert, a uniform overcharge can be demonstrated for a nationwide class of direct purchasers using common evidence and regression analysis. IPPs’ economic expert asserts that under the circumstances presented here, accepted economic theory predicts that the Pool Product overcharge would be fully passed on to indirect purchasers over the long run.
In sum, although California plaintiffs cannot proceed with a claim based on Pool’s allegedly anticompetitive single-firm conduct, plaintiffs from all four states share many factual questions relevant to their claims based on the alleged anticompetitive vertical agreements between Pool and the three Manufacturer Defendants. With regard to these three alleged agreements, all plaintiffs rely on the same conduct and advance the same theory as to why that conduct violates their respective state antitrust or consumer protection statutes. Though there may be differences in the precise formulations of the legal standards applicable in each state,
Superiority
The Court finds that a class action is superior to other methods of adjudicating this case. As the Supreme Court explains:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
Amchem, 521 U.S. at 617, 117 S.Ct. 2231 (internal citation omitted). This logic applies here, where the amount at stake for any individual plaintiff would not make litigating a complex antitrust dispute worth the time, money, or effort. Certifying the case as a class action allows the claims of many indirect purchasers to be resolved efficiently at one time.
3. Rule 23(g)
Certifying a settlement class also requires appointing class counsel. IPPs nominate Tom Brill as Lead Counsel for the Settlement Class. For the reasons discussed in the Court’s analysis of adequacy, supra, Mr. Brill is an appropriate choice. The Court also finds the other proposed Class Counsel to be well qualified, again for the reasons discussed in the Court’s analysis of adequacy. Accordingly, the Court finds that each of the proposed firms are qualified to act as Settlement Class Counsel under Rule 23(g).
III. Preliminary Fairness Determination
A. Legal Standard
Federal Rule of Civil Procedure 23 governs the settlement of class actions. See Henderson v. Eaton, 2002 WL 31415728, at *2 (E.D.La. 2002) (citing Pearson v. Ecological Sci. Corp., 522 F.2d 171, 176-77 (5th Cir. 1975)). A class action may not be dismissed or compromised without the district court’s approval. See Fed.R.Civ.P. 23(e); see also Cope v. Duggins, 203 F.Supp.2d 650, 652-53 (E.D.La. 2002) (citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)).
The Court must “ensure that the settlement is in the interests of the class, does not fairly impinge on the rights and interests of dissenters, and does not merely mantle oppression.” Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (quoting Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978)). Because the parties’ interests are aligned in favor of settlement, the Court must take independent steps to ensure fairness in the absence of adversarial proceedings. Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 279-80 (7th Cir. 2002) (noting that the class action context “requires district judges to exercise the highest degree of vigilance in scrutinizing proposed settlements.”); see also Manual for Complex Litigation (Fourth) § 21.61 (2004). The Court’s duty of vigilance does not, however, authorize it to try the case in the settlement hearings. Cotton, 559 F.2d at 1330.
As this motion is for preliminary approval of a class action settlement, the standards are not as stringent as those applied to a motion for final approval. Karvaly v. eBay, Inc., 245 F.R.D. 71, 86 (E.D.N.Y. 2007); Manual, supra § 21.63 (“At the stage of preliminary approval, the questions are simpler, and the court is not expected to, and probably should not, engage in analysis as rigorous as is appropriate for final approval.”). If the proposed settlement discloses no reason to doubt its fairness, has no obvious
B. Discussion
The Court finds no reason to doubt the fairness of the process by which the parties arrived at a settlement agreement. IPPs and Pentair arrived at the agreement after four formal sessions of arm’s length mediation with the Honorable Layne Phillips. Settlement discussions lasted nearly two years, and settlement ultimately occurred after three years of litigation and extensive fact discovery. Thus, counsel for all parties were experienced and familiar with the factual and legal issues in the ease.
In addition, the settlement does not appear to give preferential treatment to the Class Representatives or any segment of the class. The Special Master has recommended a modest incentive award of $500 each for the Class Representatives, to compensate them for the assistance they have provided to Class Counsel in developing the facts of the case by reviewing the complaints, submitting to a multi-hour deposition, preparing for the deposition, and gathering and submitting documents to Class Counsel. The Special Master’s allocation plan also aims to avoid any claimant’s receiving a “double recovery,” as the Special Master recommends reducing the amount awarded to any Pentair claimant by any amount the claimant has already received from the Hayward/Zodiae fund. The Court finds this recommendation reasonable as long as the plaintiffs claim is paid in full by the Hayward/Zodiac settlement.
The Court does find problematic, however, the Special Master’s recommendation that any unclaimed funds from the Hayward/Zodiac settlement be reallocated to the Pentair settlement fund. This recommendation is untimely. In its order granting final approval of the Hayward/Zodiac settlements, the Court already determined that any unclaimed funds will be distributed in the form of a cy pres award. Excluding this recommendation from the Special Master’s preliminary proposal, the Court finds the remainder of this suggested allocation plan to be fair and unbiased.
Next, the Court has studied the “Released Claims” provision in the Settlement Agreement and finds it reasonable. The Agreement provides that it is intended to forever and completely release Pentair from all “Released Claims,” which are defined as:
any and all claims, demands, actions, suits, proceedings, causes of action, damages, liabilities, costs, expenses, penalties, and attorneys’ fees, of any nature whatsoever, whether class, individual, or otherwise in nature (regardless of whether any person or entity has objected to the settlement or makes a claim upon or participates in the Settlement Fund), whether directly, repre-sentatively, derivatively, or in any other capacity that Releasors, or each of them, ever had, now has, or hereafter can, shall, or may have on account of, related to, or in any way arising out of, any and all known and unknown, foreseen and unforeseen, suspected and unsuspected injuries, damages, and the consequences thereof in any way arising out of or relating to the Action, which were asserted or that could have been asserted, including any claims arising under any federal or state antitrust, unjust enrichment, unfair competition, or trade practice statutory or common law, or consumer protection law[.]59
Released Claims do not include any claims against any Non-Settling Defendant. Regarding unknown claims, the Settlement Agreement further specifies that these releases constitute a waiver of Section 1542 of the California Civil Code, which provides for a release against unknown claims, and “any other rights or benefits available under any law of any state or territory of the United States or District of Columbia, or by principle of common law, which is similar, compa-
The Court finds that this release is not impermissibly broad. Courts have consistently approved releases in class action settlements that discharge unknown claims relating to the factual issues in the complaint. See DeHoyos v. Allstate Corp., 240 F.R.D. 269, 311-12 (W.D.Tex. 2007) (finding that release of unknown claims was not impermissi-bly broad); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 221 (5th Cir. 1981) (“[A] court may release not only those claims alleged in the complaint and before the court, but also claims which could have been alleged by reason of or in connection with any matter or fact set forth or referred to in the complaint.” (internal citations omitted)); Zandford v. Prudential-Bache Sec., Inc., 112 F.3d 723, 727 (4th Cir. 1997) (noting that general releases are intended to “settle all matters forever” including “claims of every kind or character, known or unknown”). Because this release applies only to unknown claims arising from the facts related to this action, the Court does not see any obvious deficiency with the release.
The Court turns now to the economic fairness of the settlement and finds that the settlement amount is within the range of approval. The parties agreed to settle the case for $600,000. The settlement amount is an all-in figure, to be reduced by attorneys’ costs and expenses from this litigation and by all costs for providing notice and administering the settlement. The proposed notice forms indicate that Class Counsel plan to seek an award for attorneys’ fees, costs, and expenses not to exceed one-third of the total fund. The Court reserves judgment on final approval of costs and/or fees until presented with a request by Class Counsel. For purposes of preliminary approval, however, the Court finds that a sum for the attorneys’ fees and costs of one-third of the settlement fund is in keeping with practice in this circuit and is therefore within the limit of what the Court deems reasonable. See, e.g., Burford v. Cargill, Inc., CIV.A. 05-0283, 2012 WL 5472118 (W.D.La. Nov. 8, 2012) (approving 33.33 percent); Jenkins v. Trustmark Nat. Bank, 300 F.R.D. 291 (S.D.Miss. 2014) (approving 33.33 percent and explaining that it is “not unusual for district courts in the Fifth Circuit to award percentages of approximately one third”).
Finally, “[t]he settlement terms should be compared with the likely rewards the class would have received following a successful trial of the case.” Cotton, 559 F.2d at 1330. In making this comparison, “[practical considerations may be taken into account.” Id. “[PJroof difficulties” are “permissible factors” for a court to contemplate when evaluating the fairness of a settlement. In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 240 (5th Cir. 1982). In addition, “particularly in class action suits, there is an overriding public interest in favor of settlement,” partly because “[i]t is common knowledge that class action suits have a well deserved reputation as being most complex.” Cotton, 559 F.2d at 1331.
Applying these principles, the Court considers the merits of the $600,000 settlement fund in light of the universe of potential damages in this case, balanced against the risks present in this particular litigation. IPPs’ expert suggests that estimated damages for Class Members during the class period are $23,951,893.
IV. Notice
A. Content of the Notice
Federal Rule of Civil Procedure 23(e)(3) governs the notice requirements for class certification. Specifically, the notice must state:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed.R.Civ.P. 23(e)(3)(B).
The parties have submitted a Long Form Notice
B. Method of Notice
Under Rule 23(e)(1), when approving a class action settlement, the district court “must direct notice in a reasonable manner to all class members who would be bound by the proposal.” In addition, for classes certified under Rule 23(b)(3), courts must ensure that class members receive “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified by reasonable effort.” Fed.R.Civ.P. 23(c)(2)(B). The Due Process Clause also gives unnamed class members the right to notice of the settlement of a class action. Fidel v. Farley, 534 F.3d 508, 513-14 (6th Cir. 2008) (citing DeJulius v. New England Health Care Emps. Pension Fund, 429 F.3d 935, 943-44 (10th Cir. 2005)). The notice must be “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” DeJulius, 429 F.3d at 944 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Still, “the type of notice to which a member of a class is entitled depends upon the information available to the parties about that person.” In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1098 (5th Cir. 1977). Thus due process does not require actual notice to all class members who may be bound by the litigation. See Fidel, 534 F.3d at 514.
Here, the parties propose emailing the putative Class Members’ last known email addresses available through Pentair’s, Hayward’s, and Zodiac’s warranty registration and rebate request databases. These databases revealed the names and email addresses of over 250,000 people or entities.
Under this plan, only a fraction of the class will receive individualized notice: those who registered their products for purposes of warranty and/or submitted a rebate request. The lack of individualized notice to the remainder of the putative Class Members is not fatal to the Notice Plan, so long as there truly is no reasonable way to obtain email addresses for additional members of the class. See Montelongo v. Meese, 803 F.2d 1341, 1351-52 (5th Cir. 1986) (“The rule requires only that notice be mailed individually to all class members whose names and addresses may be ascertained through reasonable effort.”).
To make up for the lack of individual notice to the remainder of the class, the Settling Parties propose a print and web-based plan for publicizing notice. The Court welcomes the inclusion of web-based forms of communication in the plan. As the Seventh Circuit observed a full decade ago:
When individual notice is infeasible, notice by publication in a newspaper of national circulation ... is an acceptable substitute. Something is better than noting. But in this age of electronic communications, newspaper notice alone is not always an adequate alternative to individual notice. The World Wide Web is an increasingly important method of communication, and, of particular pertinence here, an increasingly important substitute for newspapers.
Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004) (internal citations omitted). The Court finds that the proposed method of notice satisfies the requirements of Rule 23(c)(2)(B) and due process. The direct emailing of notice to those potential Class Members for whom Pentair, Hayward, and Zodiac have a valid email address, along with publication of notice in print and on the web, is reasonably calculated to apprise Class Members of the settlement. See Kelly v. Phiten USA, Inc., 277 F.R.D. 564, 569-570 (S.D.Iowa 2011) (finding email notices and newspaper publications to be sufficient notice). Therefore, the Court approves the proposed notice forms and the plan of notice.
Y. Claims Administrator, Notice Agent, and Escrow Agent
Counsel moves to continue to use An-geion Group, the Court-appointed Claims Administrator for the Hayward and Zodiac settlements, as the Claims Administrator and Notice Agent for the Pentair settlement. Angeion would be responsible for (1) implementing and coordinating the notice plan and (2) managing, accounting for, and disbursing funds from the settlements, including tax reporting and disbursing. Counsel anticipates that $145,000 will be sufficient to cover these costs.
Counsel also moves to appoint First NBC Bank, the Court-appointed Escrow Agent for the Hayward and Zodiac settlements, as Escrow Agent for the Pentair settlement. First NBC Bank would be responsible for accepting deposit of, safeguarding, and disbursing the settlement funds consistent with the final settlement order and further orders from the Court. First NBC Bank’s fees will be capped at $2,500. The Court approves First NBC Bank as Escrow Agent.
VI. Conclusion
For the foregoing reasons, the Court GRANTS the Joint Motion for Preliminary Approval of Settlement and Certification of
. R. Doc. 659.
. R. Doc. 290 at ¶ 27.
. Id. at ¶ 22.
. Id. atHl.
. Id. aU31.
.Id. at ¶¶ 12-15.
. R. Doc. 1.
. R. Doc. 149.
. Id. at 2.
.R. Doc. 250 at 37-38.
. Id. at 19-20.
. Id. at 37-38.
. Id. at 21-22.
. Id. at 25-26.
. Id. at 29-30.
. Id. at 35.
. See R. Doc. 290.
. R. Doc. 659.
. R. Doc. 659-2 at ¶ 5.
. Id. at ¶ 3.
. Id.
. Id. atK5.
. Id. at ¶¶ 19-20.
. Id. at ¶ 19.
. Id.
. Id. atV31.
. Id. at ¶ 14.
. Id. atU 17.
. Id. at ¶ 32.
. Id. at V 18.
. Id.
. R. Doc. 670 at 1.
. See R. Doc. 659-10; R. Doc. 664.
. R. Doc. 659-6 at 1. The Settling Parties assert that Pentair's warranty registration and rebate request databases revealed addresses for more than 175,000 individuals and entities. This list does not, however, reveal whether any given product was sold through PoolCorp or some other distributor — that is, many of these purchasers likely do not fit within the Class Member definition of "all individuals [or] entities ... who or which ... purchased indirectly from Pool-Corp....” Because the Settling Parties know that numerous names on this list are not putative Class Members, they point out that the expense of first-class mailed notice to these individuals is impracticable and unreasonable given the total amount of the settlement. R. Doc. 659-1 at 31-32.
. R. Doc. 664 at 1.
. R. Doc. 659-6 at 1. Short Notice will be published once in a daily edition and once in a Sunday edition of the following newspapers: Arizona: The Arizona Republic, Arizona Daily Star; California: Los Angeles Times, The Sacramento Bee, San Jose Mercury News, The San Diego Union-Tribune; Florida: Miami Herald, Orlando Sentinel, Tampa Bay Times, Missouri: St. Louis Post-Dispatch, Kansas City Star, Springfield News-Leader. Id. at 1-2.
. R. Doc. 659-10 at 4.
. Id.
. R. Doc. 659-7 at 11.
. R. Doc. 659-1 at 9 n. 8.
. R. Doc.
. R. Doc. 673 at 2-3.
. See R. Doc. 673 at 1-2.
.See R. Doc. 673 at 2(recommending that the same protocols implemented in connection with the IPP settlements with Hayward and Zodiac apply to the Pentair settlement); R. Doc. 485 at 10-12 (Special Master’s Preliminary Allocation Report).
. Id. at 20.
. R. Doc. 290 at ¶¶ 119, 123-127.
. R. Doc. 659-4 at 1.
. R. Doc. 659-1 at 22.
. Id. at 23.
.R. Doc. 500-9 at 6.
. R. Doc. 500-10 at 2; R. Doc. 659-1 at 24.
. R. Doc. 659-1 at 24.
. R. Doc. 250 at 21-22.
. Id. at 25-26.
. Id. at 29-30.
. Id. at 35.
. R. Doc. 468-1 at 24 & n. 10.
. Id.
. R. Doc. 659-2 at V 17.
. Id. at ¶ 18.
. R. Doc. 500-1 at 27 n. 12 (memorandum in support of joint motion for preliminary approval of proposed Hayward and Zodiac settlements); See R. Doc. 139.
. R. Doc. 659-7.
. R. Doc. 659-8.
. See R. Doc. 659-1 at 31; R. Doc. 664 at 1.
. R. Doc. 659-6 at 1-2. Arizona: The Arizona Republic, Arizona Daily Star; California: Los An-geles Times, The Sacramento Bee, San Jose Mercu-iy News, The San Diego Union-Tribune; Florida:
. R. Doc. 659-1 at 9 n. 8.
Reference
- Full Case Name
- In re POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION
- Cited By
- 5 cases
- Status
- Published