Choi v. Mario Badescu Skin Care CA2/3 ( 2016 )

Filed 4/29/16 Choi v. Mario Badescu Skin Care CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
WANKYU CHOI et al., B257480
Plaintiffs and Respondents; (Los Angeles County
Super. Ct. No. BC501173)
MARY RESTAINO et al.,
Plaintiffs and Appellants,
v.
MARIO BADESCU SKIN CARE, INC.,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
William F. Highberger, Judge. Affirmed.
The C2 Law Group, Erica E. Hayward; The Rudd Law Firm, Christopher L. Rudd;
Whitfield Bryson & Mason, Gary E. Mason and Esfand Y. Nafisi for Plaintiffs and
Appellants Mary Restaino, Geoffrey Yu, Theresa Stern Valentic, Betty Huang and
Zoe Herold.
Law Offices of Ronald A. Marron, Ronald A. Marron, Skye Resendes; and
C. Benjamin Nutley for Plaintiff and Appellant Donna McLaren.
Law Office of Young W. Ryu, Young W. Ryu; Law Offices of Gerald S. Ohn and
Gerald S. Ohn for Plaintiffs and Respondents.
Tucker Ellis, Ronie M. Schmelz and Rebecca A. Lefler for Defendants and
Respondents.
_________________________
INTRODUCTION
Jae K. Lee and Wankyu Choi sued Mario Badescu Skin Care, Inc. and Mario
Badescu for marketing and labeling two face creams without disclosing all of the
ingredients. Plaintiffs sought economic damages and equitable relief on behalf of
themselves and a nationwide class of face cream purchasers. Before the class was
certified, defendants agreed to settle the action by providing class members with
certificates for $45 off a purchase of any of defendants’ products and by ceasing to sell or
advertise the creams without disclosing all of the ingredients. The settlement’s release
excluded all claims for personal injury. Nine class members who timely objected appeal
contending that the trial court abused its discretion in approving the class because the
representatives did not meet the adequacy requirement and because notice given to class
members was deficient. They also challenge the trial court’s finding that the settlement
was fair, adequate, and reasonable, and its order awarding attorney’s fees. Appellants
have demonstrated no abuse of discretion. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The complaint
In December 2012, the Korean Ministry of Food and Drug Safety suspended the
sales of defendants’ Healing Cream after testing revealed the product contained two
unlabeled corticosteroids, hydrocortisone and triamcinolone acetonide. The recall
advised consumers to cease using the cream and warned that long-term use of steroids
could lead to skin atrophy and enlarged capillaries.
Plaintiffs Lee and Choi (together plaintiffs, the named plaintiffs, or class
representatives) purchased defendants’ Healing Cream and used it.1 Their attorneys had
1
The two named plaintiffs attached declarations to their response to objections, in
which they stated they “personally used Mario Badescu Healing Cream” after receiving
it.
2
the purchased creams tested by an independent laboratory and discovered the presence of
2610 µg/g of hydrocortisone and 1899 µg/g of triamcinolone acetonide. The named
plaintiffs filed this consumer class action against defendants on behalf of all persons
residing in the United States who purchased defendants’ Healing Cream.
The operative complaint alleged that defendants represented through marketing,
advertising, labeling, and other forms of promotion, that the Healing Cream prevented
acne scars and speeded up the healing process for irritated or acne-erupted skin,2 but
“failed to disclose that [defendants’] Healing Cream products contain levels of
Hydrocortisone and Triamcinolone Acetonide, which are steroid substances with serious
side effects. [¶] . . . [¶] Triamcinolone is a synthetic corticosteroid used to treat various
skin conditions. . . . Triamcinolone Acetonide . . . is a DOCTOR’S PRESCRIPTION
ONLY medicated cream . . . .” The complaint alleged that the class overpaid for the
product because its value was diminished at the time it was sold to consumers. Had the
class members been aware that the cream contained hydrocortisone and triamcinolone
acetonide, they would not have purchased the product, would have paid less for it, or
would have purchased another competing product.
The complaint asserted causes of action for violation of the Consumers Legal
Remedies Act (Civ. Code, § 1750 et seq., (CLRA); fraudulent concealment; false
advertising in violation of Business and Professions Code section 17500 (FAL), all of
which violated Business and Professions Code section 17200 (UCL); breach of express
and implied warranties; and false and misleading advertisement in violation of the
Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.). Plaintiffs sought an order
certifying a nationwide class and a California subclass, and sought injunctive relief,
restitution, monetary damages, punitive damages, and attorney fees. Defendants stopped
selling the creams after the complaint was filed.
2
Plaintiffs alleged that the Healing Cream’s label listed the ingredients as “ ‘Balsam
(Myroxylon Pereirae Resin) Peru, Polyglycerlmenthacrylate (and) Propylene Glycol,
Herbal Extract, Bismuth Subgallate,’ ” but that “[d]efendants did not disclose that the
Healing Cream contained STEROIDS.”
3
2. The litigation
In April 2013, the parties filed a joint initial status conference and class action
response statement. Defendants anticipated moving for summary judgment to address
preemption, standing, causation, and damages. Commencing in May 2013, after
demurrers, motions to strike, and amendments to the complaint, plaintiffs served
defendants with approximately 300 discovery requests in the form of multiple sets of
interrogatories, demands for production, and requests for admission. Defendants
submitted multiple responses and supplemented responses. Also in May 2013 when
plaintiffs served their first round of discovery, their attorneys began preparing for a
settlement meeting and interviewed a class action administrator about settlement issues.
Pursuant to trial court order, in August 2013, the parties negotiated a protective
order under which defendants produced 359 pages of documents concerning the revenue
from the sale of their cream. Based on defendants’ discovery responses, plaintiffs added
to their motion for final approval claims that in addition to the Healing Cream,
defendants failed to disclose that their Control Cream also contained levels of
hydrocortisone and triamcinolone acetonide. Defendants reported that they sold
approximately 160,000 units of creams, more than half of which sales were made to
retailers. Plaintiffs learned from defendants’ supplemental responses to plaintiffs’ second
and third sets of special interrogatories that defendants’ revenue from the sale of both
creams during the class period was approximately $2.5 million.
3. The settlement
The parties underwent mediation before the Honorable Louis M. Meisinger (Ret.),
and conducted settlement discussions that continued after mediation. The parties reached
a settlement of the action on behalf of the class (the settlement agreement). On
November 20, 2013, they moved the trial court for preliminary certification of the class
and approval of the stipulation of settlement.
a. the settlement’s quid pro quo
The settlement agreement identified one class, defined as “all persons in the
United States who purchased one or more of Defendants’ Healing Cream or Control
4
Cream from February 15, 2009 up to and including the Notice Date.” Defendants agreed
to an injunction under which they would no longer market, advertise or sell either cream
unless the labels and all descriptions and advertisements of the products disclosed all of
the ingredients contained therein. Defendants also agreed to provide each class member,
who submitted a timely claim form, with a certificate entitling the claimant to $45 off any
purchase of any of defendants’ products. Class members who demonstrated they had
purchased both creams would be entitled to two certificates. The coupons could not be
redeemed for cash, were nontransferable, and expired in 180 days. Defendants agreed
not to oppose an attorney fee application for $1.2 million, and incentive payments of
$3,000 to plaintiff Lee, and $2,000 to plaintiff Choi.
b. the settlement’s release
The settlement agreement provided that the class would release all claims and
causes of action “arising from or related to the Products and claims at issue in the Action”
that were asserted or could reasonably have been asserted in the lawsuit, and that the
release would be construed as broadly as possible. Expressly excluded from the release
were all claims for personal injuries. The stipulation of settlement stated,
“Notwithstanding any other provision of this Stipulation of Settlement . . . Plaintiffs and
Class Members are not releasing any claims, demands, rights, damages, obligations,
suits, debts, liens, and causes of action relating to personal injuries arising from their use
of any of the Products.” (Italics added.)
The trial court provisionally certified the class for settlement purposes and
preliminarily approved the settlement. The court modified the notice methodology to
require that the e-mail notices include hyperlinks to the long form notice and the claim
form. The court approved appointment of the settlement administrator agreed to by the
parties, and ordered that notice of pendency and settlement be given to the proposed class
according to the agreement.
4. The notification
After notice as approved by the trial court was sent, the named plaintiffs moved
for final approval of the class settlement. Plaintiffs’ attorney declared that based on
5
available information, approximately 36,954 class members, purchased about 65,495
units of the creams through defendants’ website or at their New York spa during the class
period, indicating a purchasing pattern under which each member bought 1.8 units of the
cream. The settlement administrator received from defendants the names and addresses
or e-mails for class members who purchased products through defendants’ website or at
their spa. After culling duplicates, the settlement administrator identified 33,331 valid
e-mail addresses to which it sent summary notices, and 3,623 valid street addresses to
which it sent long form notices, pursuant to the trial court’s preliminary approval order.
The settlement administrator sent 32,092 reminder notices in March 2014. After tracking
248 addressees whose mail was undeliverable, the administrator sent new notices by
April 2014. The administrator established a Post Office Box address and a website to
answer questions and provide additional information about the settlement.
In addition to the website and spa sales, another approximately 91,000 units of the
creams were shipped by defendants to retailers. On January 26, 2014, the settlement
administrator published the summary notice in Parade Magazine, which has a circulation
of more than 32 million and is distributed to 600 newspapers nationwide. The
administrator also activated a toll free telephone number.
As of April 29, 2014, two months after the deadline for opting out of the class, the
parties estimated the class size to be around 86,000 members of which 42 requested
exclusion, nine filed objections to the settlement, and two others objected but filed
nothing with the court. All but three objectors are parties to this appeal.3
Of the 11,942 submitted claim forms, the settlement administrator determined that
11,620 were valid. This yielded a claim rate of nearly 14 percent, or almost three times
the typical consumer class action claim-rate of 5 percent, according to the parties. The
total estimated value of the claims was $895,365. Coupled with the costs charged by the
3
Dawn Weaver filed a timely objection in the trial court and an appeal from the
order approving the settlement class. However, at her request, we dismissed Weaver’s
appeal on June 25, 2015.
6
settlement administrator and attorney fees, the total economic value of the settlement,
plaintiffs asserted, was $2,413,338.40.
5. The objections
Mary Restaino, Geoffrey Yu, Theresa Stern Valentic, Betty Huang, and Zoe
Herold, each of whom claimed to have suffered physical injury from defendants’ creams,
filed objections to the preliminary approval of the class and the settlement agreement
(the Restaino Objectors). The Restaino Objectors noted that the class definition included
those who suffered physical injury but the named plaintiffs did not allege they suffered
physical injury and sought only economic damages. Thus, the Restaino Objectors argued
first that the settlement class was improperly certified because the named plaintiffs did
not adequately represent class members who sustained personal injury. The Restaino
Objectors also challenged the settlement as neither fair, reasonable, nor adequate because
the certificates were not appropriate compensation for those class members who suffered
personal injuries. The certificates also were nontransferable with the result they were
worthless to class members who no longer wished to do business with defendants.
Another group of class members, Donna McLaren, Rebecca McDonald, and
Howard Clark, objected that the notice was deficient and precluded assumption of
jurisdiction over the absent class members for two reasons: First, the notice failed to
mention that the creams contained prescription-only steroids as alleged in the complaint,
in violation of California Rules of Court, rule 3.766. Second, the notice was published
only a quarter of the times required by the CLRA. (Civ. Code, § 1781, subd. (d).) The
McLaren Objectors also argued that the settlement was not fair, reasonable, or adequate
in light of the strength and value of plaintiffs’ claims that steroids are serious and
harmful. They also argued that the release was ambiguous as it inartfully excluded
personal injury claims. Finally, the McLaren Objectors took exception to class counsel’s
$1.2 million attorney fee award and the incentive award for the named plaintiffs.
In response to the objections, the parties amended the proposed judgment to make
the certificates transferable.
7
6. The trial court’s ruling
In May 2014, the trial court entered a final order approving the class and
stipulation of settlement. The court found that the settlement was fair, reasonable, and
adequate. The final order recognized that class members were given the opportunity to
opt out and that the releases excepted from their ambit all “personal injury claims that
Class Members may have arising from their use of the Products, which are expressly
exempt from the Released Claims.” The final order stated under “9. Binding Effect” that
the terms of the stipulation and the final order and judgment would be forever binding on
the parties and all class members, and that “Plaintiffs and Defendants agree, however,
that neither the terms of the Stipulation of Settlement, this Final Order, nor the
accompanying Final Judgment bind Class Members to the extent they may have personal
injury claims arising from their use of the Healing Cream or Control Cream. All such
personal injury claims are not being settled in this Action.” (Italics added.) Section “12.
Release,” read, under “(b)” “Plaintiffs and Defendants agree that the Release set forth in
this Paragraph 12 and the Released Claims do not mean or include any claims a Class
Member may have relating to personal injuries they may have suffered as a result of their
use of the Products.” (Italics added.)
The court granted plaintiffs’ motion for incentive awards of $2,000 for plaintiff
Choi and $3,000 for plaintiff Lee, and granted class counsel’s attorney fee motion in part,
by approving a multiplier of 1.8 over the lodestar, for a total of $864,324, plus $9,472 in
costs. The Restaino and McLaren Objectors filed their timely appeals.
7. The New Jersey lawsuit filed by the Restaino Objectors’ attorneys
We have taken judicial notice that two months after filing their notice of appeal, in
September 2014, attorney Gary E. Mason, on behalf of all but one of the Restaino
Objectors (Restaino, Yu, Huang and Valentic)4 and numerous other plaintiffs, some of
whom had opted out of the California settlement class, filed a personal injury action
against defendants in New Jersey. The complaint asserts violation of the New Jersey
4
Zoe Herold, a Restaino objector, is not a plaintiff in the New Jersey lawsuit.
8
product liability and consumer fraud acts, fraudulent concealment, strict liability, and
negligence, among other causes of action. The complaint alleges that defendants failed to
disclose that the creams contained corticosteroids which caused the plaintiffs to suffer
physical injuries. The New Jersey complaint seeks personal injury as well as economic
and punitive damages.
Defendants moved to dismiss the New Jersey complaint or to stay the lawsuit
pending resolution of the appeal in this case on the ground, among others, that those class
members who opted out of the California settlement could pursue both personal injury
and non-personal injury damages in New Jersey, but the three plaintiffs who did not
exclude themselves from the California settlement could only seek personal injury
damages in New Jersey. At the hearing in New Jersey, counsel for defendants
“maintain[ed] that personal injury claims are not part of the California action and
settlement.” (Italics added.) Attorney Mason argued on behalf of the New Jersey
plaintiffs that “we were told . . . you can go because [the California] settlement doesn’t
release personal injuries” and so the New Jersey plaintiffs “are not seeking personal
injuries in California. There is no pending complaint on their behalf for personal
injuries in California.” (Italics added.) The New Jersey court noted that the plaintiffs
there “conceded on the record that certain plaintiffs will not be bringing economic claims
in this action” and denied defendants’ motion to dismiss the complaint there.
CONTENTIONS
The Restaino Objectors contend that the trial court erred in certifying a settlement
class because the named plaintiffs were inadequate class representatives.
The McLaren Objectors contend the notice of settlement was constitutionally and
statutorily deficient, the settlement is not fair or adequate, the release is overly broad, and
the attorney fee and incentive awards indicate collusion.
DISCUSSION
1. Standing
As a preliminary matter, Betty Huang, a Restaino objector, does not have standing
to participate in this appeal, despite her inclusion with the Restaino Objectors’
9
February 26, 2014 filing. Appeals may be taken only by aggrieved parties. (Code Civ.
Proc., § 902.) Appellants’ “rights or interests must be injuriously affected by the
judgment. [Citation.]” (Rebney v. Wells Fargo Bank (1990) 220 Cal. App. 3d 1117,
1128.) The settlement agreement permitted class members to opt out of the class. On
February 23, 2014, three days before the Restaino objections were filed, Huang sent a
timely exclusion (opt out) request and is a plaintiff in the New Jersey action seeking
damages for personal injuries as well as non-personal injuries. Having opted out, Huang
is not bound by the judgment here and is not a party to, much less aggrieved by, the
settlement. Huang cannot be permitted to opt out, bring a separate action for personal
injury damages, and simultaneously be part of the Restaino Objectors’ appeal from the
denial of their objections.
2. Standard of review of the class action settlement
Generally, “questions whether a settlement was fair and reasonable, whether
notice to the class was adequate, whether certification of the class was proper, and
whether the attorney fee award was proper are matters addressed to the trial court’s broad
discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 234-235
(Wershba).) In cases where there has been no antecedent certification of an adversarial
class, trial courts should scrutinize class actions settlements more carefully (Dunk v. Ford
Motor Co. (1996) 48 Cal. App. 4th 1794, 1803, fn. 9 (Dunk)) to ensure that absent class
members’ rights are adequately protected. (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2015) ¶ 14:138:20, p. 14-101.) However,
“these concerns are satisfied by a careful fairness review of the settlement by the trial
court.” (Wershba, supra, at p. 240.)
Although the trial court’s “inquiry must ‘be especially careful and penetrating in a
case such as this where class certification is deferred to the settlement stage.’
[Citation.] . . . we . . . review the trial court’s decision to approve a settlement
[class] . . . under the ‘abuse of discretion’ standard.” (Carter v. City of Los Angeles
(2014) 224 Cal. App. 4th 808, 820 (Carter).) Our review “is narrowly
circumscribed. . . . ‘and we afford that decision great deference on appeal, reversing only
10
for a manifest abuse of discretion: . . . unless (1) it is unsupported by substantial
evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.
[Citations.]’ [Citations.]” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal. 4th 1004, 1022 (Brinker).) “To the extent that it appears the trial court’s decision
was based on improper criteria or rests upon erroneous legal assumptions, these are
questions of law warranting our independent review. [Citations.]” (Wershba, supra,
91 Cal.App.4th at p. 235.)
3. Certification of the class
a. The named plaintiffs were adequate class representatives.
Code of Civil Procedure section 382 authorizes class actions in California. To
certify a class, courts must determine whether there is “an ascertainable and sufficiently
numerous class, a well-defined community of interest, and substantial benefits from
certification that render proceeding as a class superior to the alternatives. [Citations.] ‘In
turn, the “community of interest requirement embodies three factors: (1) predominant
common questions of law or fact; (2) class representatives with claims or defenses typical
of the class; and (3) class representatives who can adequately represent the class.” ’
[Citations.]” (Brinker, supra, 53 Cal.4th at p. 1021, italics added; Code Civ. Proc., § 382;
Civ. Code, § 1781, subd. (b); Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435.)
The third factor, adequacy, is the result of due process and the res judicata effect
of the class judgment on absent members. (City of San Jose v. Superior Court (1974)
12 Cal. 3d 447, 463 (City of San Jose).) “To satisfy constitutional due process concerns,
absent class members must be afforded adequate representation before entry of a
judgment which binds them.” (Hanlon v. Chrysler Corporation (9th Cir. 1998) 150 F.3d
1011, 1020 (Hanlon), citing Hansberry v. Lee (1940) 311 U.S. 32, 42-43.) Toward that
end, courts consider two questions: (1) whether the class representatives are part of the
class and possess the same interest and suffer the same injury as the class members, i.e.,
whether the class representatives have no conflict of interest with other class members
(J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal. App. 4th 195, 212), and
(2) whether the representative will “ ‘vigorously and tenaciously’ ” prosecute the interests
11
of the absent class members. (Simons v. Horowitz (1984) 151 Cal. App. 3d 834, 846; Weil
& Brown, Cal. Practice. Guide: Civil Procedure Before Trial, supra, ¶ 14:36, p. 14-38.)
A “party’s claim of representative status will only be defeated by a conflict that ‘ “goes to
the very subject matter of the litigation.” ’ [Citation.]” (Capitol People First v. State
Dept. of Developmental Services (2007) 155 Cal. App. 4th 676, 697.)
The Restaino Objectors contend that the named plaintiffs are inadequate class
representatives because these plaintiffs did not suffer personal injury from the creams and
so their interests conflict with those of the class, which as defined, includes purchasers
who do claim to have experienced such injuries. The Restaino Objectors are concerned,
because they fall within the class definition, that they will be barred by res judicata and
the prohibition against claim splitting from bringing personal injury lawsuits against
defendants in the future.
At bottom, all objectors insist on characterizing this lawsuit as one seeking
remedies for personal injuries arising from use of the creams. However, notwithstanding
such claims may fall within the sweep of the class definition, they were withdrawn from
adjudication by the settlement’s releases, rendering this case nothing other than a garden
variety non-personal injury consumer class action.
(i) The settlement preserved class members’ personal injury claims for future
litigation with the result there is no conflict of interest that would render the named
plaintiffs inadequate as representatives.
“Under federal and California law, res judicata generally precludes parties or their
privies from litigating in a second lawsuit issues that were or could have been litigated in
a prior suit. [Citation.]” (Louie v. BFS Retail & Commercial Operations, LLC (2009)
178 Cal. App. 4th 1544, 1554 (Louie).) It is likewise settled that a court-approved
settlement pursuant to a final consent decree in a class action is considered a final
adjudication and “ ‘will operate to bar subsequent suits by class members.
[Citations.] . . . “A judgment entered . . . by consent or stipulation, is as conclusive a
. . . bar as a judgment rendered after trial.” [Citations.]’ [Citations.]” (Id. at p. 1555,
italics added.)
12
However, “ ‘[i]t is axiomatic that [a stipulated judgment’s] res judicata effect
extends only to those issues embraced within the consent judgment. [Citations.] Thus,
while a stipulated judgment normally concludes all matters put into issue by the
pleadings, the parties can agree to restrict its scope by expressly withdrawing an issue
from the consent judgment. [Citations.]’ ” (Louie, supra, 178 Cal.App.4th at p. 1559,
italics added.) Res judicata will not apply to claims that the parties agreed in a court-
approved stipulation to reserve for later litigation. (Ellena v. State of California (1977)
69 Cal. App. 3d 245, 260-261.)
In Louie, the trial court sustained the defendant’s demurer to the plaintiffs’
complaint alleging violation of California’s Disabled Persons Act on the ground that res
judicata barred the action based on a consent decree in a Florida class action lawsuit
alleging the defendant violated the Americans with Disabilities Act. The appellate court
in Louie reversed because the final judgment in Florida approving the class certification
and consent decree did not refer to state law and explained in a footnote that it “ ‘reflects
the deletion of damage claims that the parties voluntarily excised from the Proposed
Consent Decree . . . [and that] the issue of damages had been voluntarily excised and the
case was limited to injunctive/declaratory relief.’ ” (Louie, supra, 178 Cal.App.4th at pp.
1547, 1557, italics added.) Louie discussed both federal and state law. (Id. at pp. 1558-
1559.) It “observe[d] the commonsense statement in a plurality opinion” in United States
v. Seckinger (1970) 397 U.S. 203 at page 206, footnote 6, agreeing that res judicata did
not bar certain claims in a Georgia Federal District Court based on a prior judgment of a
South Carolina District Court, because the latter court expressly left open the option for
the claims to be pursued at a later time. (Louie, supra, at p. 1557.) California law is the
same. (Id. at p. 1559, citing Ellena v. State of California, supra, 69 Cal. App. 3d 245
[where parties expressly agree to withdraw issue from court, issue not adjudicated and
not res judicata] & Miller & Lux, Inc. v. James (1919) 180 Cal. 38, 44-46 [stipulation not
to offer certain evidence at trial amounted to “withdrawal of an issue from the
consideration of the court” and so court’s decision was not res judicata as to withdrawn
issue].) Although Louie involved the question of whether an earlier lawsuit barred
13
Louie’s present California complaint, the appellate court in Louie held that under both
federal and California law, the plaintiff’s state law claims and damages were withdrawn
from adjudication by consent of the parties. (Louie, supra, 178 Cal.App.4th at pp. 1558
& 1562.)
Hanlon, supra, 150 F.3d 1011, analyzed the binding effect of a present settlement.
The Hanlon complaint in California asserted various causes of action arising from an
alleged defect in the rear liftgate latches of the defendant’s minivans. The parties
submitted a settlement agreement for approval. (Id. at p. 1018.) As here, the district
court issued an order granting preliminary approval of the settlement and certifying the
nationwide class of owners of the defendant’s minivan, but excluding from the settlement
all personal injury and death cases. (Id. at pp. 1018 & 1020.) The Ninth Circuit rejected
the challenge to the adequacy of representation finding no conflict of interest between the
named plaintiffs on the one hand and class members with personal injury claims on the
other. Any differences in severity of injury or in treatment of the class members, Hanlon
held, was avoided because “[n]o personal injury or wrongful death claims were included,
and any class member who wished to do so could opt out of the settlement class.” (Id. at
p. 1021.)
Louie and Hanlon teach us that res judicata does not bar future litigation of claims
and damages that are expressly excluded by the contracting parties from the release of
claims in a stipulated class action settlement. The parties to the settlement agreement
here expressly excluded from the agreement’s release all claims for personal injury
arising from the use of defendants’ two creams. Thus, they withdrew such claims from
adjudication in this lawsuit and from the court-approved settlement. Accordingly, no
conflict of interest exists between the class representatives and the class members on the
basis of personal injury, let alone a conflict that “ ‘ “goes to the very subject matter of the
litigation.” ’ ” (Capitol People First v. State Dept. of Developmental Services, supra,
155 Cal.App.4th at p. 697.) Personal injury claims and the damages flowing therefrom
were not extinguished by the judgment approving the stipulated settlement and so class
members may pursue recovery on that basis in another lawsuit. (See In re Toyota Motor
14
Corp. Unintended Acceleration, Marketing, Sales Practices and Products Liability
Litigation (C.D.Cal. June 17, 2013, No. 8:10ML 02151 JVSFMOx) 2013 WL 3224585,
[*14] [proposed settlement by “Economic Loss” class does not apply to personal injury,
wrongful death, and physical property damage claims because those claims were carved
out of the settlement for later litigation].)5
The McLaren Objectors argue that the release is susceptible of misinterpretation
and hence inadequately protects the rights of class members with personal injuries. They
observe that at the hearing on the settlement, plaintiffs and defendants were required to
clarify their own understanding of the effect of the release. We disagree. The exclusion
from the release here is similar to that deemed effective to preserve causes of action in
Louie, which provided, “ ‘The release does not include claims for individual damages,
that otherwise might be available under state law or local ordinance.’ ” (Louie, supra,
178 Cal.App.4th at p. 1561, italics omitted.)6 7
Nor does the settlement agreement improperly force class members to split their
personal injury claims. “ ‘The rule against splitting a cause of action . . . is in part a rule
of abatement and in part a rule of res judicata.’ [Citation.]” (Grisham v. Philip Morris
U.S.A., Inc. (2007) 40 Cal. 4th 623, 642.) While “[a] long-established rule prohibits the
splitting of a single cause of action so as to permit successive actions on parts of the
claim” for the same injury (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 406,
p. 1041), a generally recognized exception occurs when the defendant, “by acquiescing in
5
Unpublished federal cases may be cited and found persuasive, although they are
not precedential authority. (Haligowski v. Superior Court (2011) 200 Cal. App. 4th 983,
990, fn. 4.)
6
We reject the McLaren Objector’s argument based on Molski v. Gleich (9th Cir.
2003) 318 F.3d 937, for the same reason that Louie rejected the defendant’s reliance on
Molski. (Louie, supra, 178 Cal.App.4th at pp. 1561-1562.) Molski did not involve res
judicata, but was a direct appeal from the certification of a class based on notice issues,
among other things.
7
We are unpersuaded by the unpublished federal cases and cases from outside of
California cited by the Restaino Objectors.
15
the procedure in the first action, [is] estopped to object in the second action. [Citations.]”
(Id., § 405, at p. 1040, citing United Bank & Trust Co. v. Hunt (1934) 1 Cal. 2d 340, 345
[“The course pursued by the court and counsel … was tantamount to an express
determination … to reserve the issues involved for future adjudication,” italics added].)
In light of the fact that all personal injury claims and compensation therefore were not
adjudicated in this case and have been reserved for future litigation, no splitting of
personal injury claims is threatened. Unlike in City of San Jose, where the class action
sought only one of many available measures of damages for nuisance (City of San Jose,
supra, 12 Cal.App.4th at p. 464), here, all personal-injury damages, which are necessarily
based on causes of action not alleged, have been withdrawn from adjudication and
settlement, with the result that no splitting has occurred. The named plaintiffs are not
inadequate representatives merely because class members might also have individual
causes of action for such injury in another lawsuit. (Beck-Ellman v. Kaz USA, Inc.
(S.D.Cal. 2012) 283 F.R.D. 558, 566-567.) As the Southern District of California noted,
“ ‘[d]efendant[s] cannot claim that Plaintiff is inadequate because [she] declines to assert
a theory that could unravel the putative class.’ [Citation.]” (Id. at p. 566 [noting courts
routinely certify diminished value/overpayment claims where the underlying product also
causes personal injury or property damage]; see also In re Conseco Life Ins. Co.
LifeTrend Ins. Sales (N.D.Cal. 2010) 270 F.R.D. 521, 531-532.)8
Lest there be any doubt about the result, defendants’ attorneys stated at oral
argument in the trial court, “we made it absolutely clear [in the settlement agreement]
that the personal injuries will not be settled.” Defendants always understood that the
8
The Restaino Objectors’ reliance on Cholakyan v. Mercedes-Benz USA, LLC (C.D.
Cal. 2012) 281 F.R.D. 534, is unavailing. There, the court declined to certify an
adjudicatory class seeking an injunction and declaration that the defendant’s cars
possessed a defectively designed water management system because it might defeat a
class member’s effort to obtain compensatory damages for that very same defect. (Id. at
p. 564.) That case did not involve a settlement class. Here, by contrast, nothing related
to physical injury has been adjudicated or settled, and so that issue would not be
precluded in a later suit.
16
release excluded all personal injury claims. Although the res judicata effect can only be
tested in a subsequent action (Louie, supra, 178 Cal.App.4th at p. 1560), “it would be
unjust to allow [defendants] to invoke res judicata to bar [personal injury] claims.” (Id. at
p. 1562.) Having agreed to exclude personal injury claims from the releases, and having
represented as much both here and in the New Jersey court, defendants will not be heard
to raise a res judicata or collateral estoppel bar to such claims. (See 7 Witkin, supra,
Judgment, § 405, p. 1040; Louie, supra, at p. 1562.) Similarly, three of the Restaino
Objectors, who are plaintiffs seeking personal injury damages in the New Jersey class
action, represented to the New Jersey court that plaintiffs “are not seeking personal
injuries in California. There is no pending complaint on their behalf of personal injuries
in California.” (Italics added.) The New Jersey court agreed and denied defendants’
motion to dismiss the complaint.9 Therefore, all parties are estopped to argue that
personal injury claims were adjudicated in this lawsuit.
(ii) The named plaintiffs protected the class members’ interests and so they were
adequate representatives.
Turning to the second adequacy inquiry, the vigor with which the named
representatives and class counsel pursued the common claims (Simons v. Horowitz,
supra, 151 Cal. App. 3d 834, 846), the Restaino Objectors argue that the class
representatives did not protect the interests of those who suffered personal injury in that
the representatives made no effort to obtain discovery relevant to personal injury or of the
9
We disagree with defendants that the Restaino Objectors lack standing and are
estopped from arguing that their personal injury claims will be improperly compromised
by the stipulated settlement here because of the statements their attorneys made in the
New Jersey proceeding. First, one Restaino objector, Zoe Herold is not a party to the
New Jersey action. Second, general releases are common in class action settlements.
(Carter, supra, 224 Cal.App.4th at pp. 820-821.) Class members unhappy with the scope
of the release can seek to rectify it through objection or intervention, and appeal if not
satisfied with the result. (Ibid.) The Restaino Objectors appeared at the fairness hearing
and objected to the proposed settlement with the result they have standing to appeal.
(Wershba, supra, 91 Cal.App.4th at p. 235.) Accordingly, we reject the suggestion that
the Restaino Objectors’ appeal is frivolous.
17
underlying claims, and rushed to settlement by beginning negotiations three months after
filing the complaint. We disagree.
During discovery, plaintiffs and class counsel were able to obtain a settlement
term excluding personal injury claims from the release and so individual, personal-injury
claims were not litigated in this case with the result no investigation into such claims was
required. Hence, the concerns of the Supreme Court in City of San Jose are not
implicated. (City of San Jose, supra, 12 Cal.3d at p. 464 [holding inadequate
representation where named plaintiffs failed to raise claims reasonably expected to be
raised by members of class thereby depriving class of some elements of damage].)
Otherwise, the record shows that the named plaintiffs and class counsel engaged in
extensive discovery, both before and during the settlement negotiations, aimed at the
complaint’s allegations that were not ultimately excluded from the releases. Counsel
tested the product, mailed notice letters to defendants, engaged in motion practice and
formal and informal discovery that included three sets of interrogatories, and numerous
document demands and requests for admission, some of which was ordered by the trial
court upon motion by class counsel, that uncovered, among other things, a second cream
containing hydrocortisone and triamcinolone acetonide. The settlement was the product
of extensive negotiations both before a neutral mediator and in independent sessions.
The trial court was well aware of the battle waged between plaintiffs and defendants.
We disagree with the Restaino Objectors’ suggestion that, because no depositions
were taken, the lawsuit was not vigorously prosecuted and more discovery should have
been conducted before the parties settled. “[T]hat no class action can be settled until the
last particle of discovery has been completed and analyzed is not the law. ‘[I]n the
context of class action settlements, “formal discovery is not a necessary ticket to the
bargaining table” where the parties had sufficient information to make an informed
decision about settlement. . . . [Citation.] . . . . “[N]otwithstanding the status of
discovery, plaintiffs’ negotiators had access to a plethora of information regarding the
facts of their case.” ’ [Citations.]” (7-Eleven Owners for Fair Franchising v. Southland
Corp. (2000) 85 Cal. App. 4th 1135, 1150 (7-Eleven Owners).) If the parties and the court
18
have sufficient information to act intelligently (Wershba, supra, 91 Cal.App.4th at
p. 245), requiring additional discovery would only undermine California’s strong public
policy favoring settlement of disputes (Kaufman v. Goldman (2011) 195 Cal. App. 4th
734, 745), even in large class action litigation. (7-Eleven Owners, supra, at p. 1151.)
The trial court did not abuse its discretion in concluding that the named plaintiffs
adequately represented the class.
b. Notice
(i) The content of the notice was not deficient.
The McLaren Objectors challenge the content of the notice contending that it was
deficient and violated California Rules of Court, rule 3.766(d),10 because it failed to
include “the basic contention” that the creams contained corticosteroids.11 They note that
the word “steroids” is absent from the stipulation of settlement, the claim form, and the
settlement documents. Only by reading the complaint itself would class members
comprehend that the lawsuit involved allegations that the ingredients that defendants
failed to disclose were steroids. The McLaren Objectors argue, as the result of the
notice’s deficiency, that some class members could read the entire notice and make a
claim without understanding that the symptoms they were suffering might have been
caused by defendants’ products, thus defeating the purpose of notice.
10
California Rules of Court, rule 3.766(d) reads: “The content of the class notice is
subject to court approval. If class members are to be given the right to request exclusion
from the class, the notice must include the following: [¶] (1) A brief explanation of the
case, including the basic contentions or denials of the parties; [¶] (2) A statement that the
court will exclude the member from the class if the member so requests by a specified
date; [¶] (3) A procedure for the member to follow in requesting exclusion from the
class; [¶] (4) A statement that the judgment, whether favorable or not, will bind all
members who do not request exclusion; and [¶] (5) A statement that any member who
does not request exclusion may, if the member so desires, enter an appearance through
counsel.” (Italics added.)
11
The description of the lawsuit in the summary notice and in the long form notice
state variously that defendants violated state and federal marketing laws by “fail[ing] to
disclose all of the ingredients used in the . . . products” and “failing to disclose all of their
ingredients.”
19
The trial court “ ‘has virtually complete discretion as to the manner of giving
notice to class members.’ ” (7-Eleven Owners, supra, 85 Cal.App.4th at p. 1164.) In the
context of a settlement, “[t]he purpose of a class notice . . . is to give class members
sufficient information to decide whether they should accept the benefits offered, opt out
and pursue their own remedies, or object to the settlement. [Citation.]” (Wershba, supra,
91 Cal.App.4th at p. 252; Litwin v. iRenew Bio Energy Solutions, LLC (2014)
226 Cal. App. 4th 877, 883, citing Cal. Rules of Court, rule 3.769(f).) We conclude that
the absence of the word “steroid” from the notices does not render them deficient.
First, the steroid allegations were available to class members. All forms of notice
directed the class members who wanted additional information to the settlement website
and the toll free number for more detailed information. The website contained links to
the complaint itself with all of its references to steroids. Utilizing a summary notice that
directs class members to a website containing more detailed notice and information has
been approved by courts in California. (Chavez v. Netflix, Inc. (2008) 162 Cal. App. 4th
43, 58; accord, Cellphone Termination Fee Cases (2010) 186 Cal. App. 4th 1380, 1392.)
The McLaren Objectors disagree that the complaint’s presence on the settlement
website was sufficient, arguing that there was no evidence to support the conclusion that
class members had internet access, given that more than 50 percent of defendants’ sales
were to retailers and some portion of the remaining direct sales occurred at defendants’
spa. However, both the case law and the rules of court recognize that posting notice on
the internet is acceptable. (Cal. Rules of Court, rule 3.766(f) [listing as “means of notice
reasonably calculated to apprise the class members,” “broadcasting on . . . the Internet”];
Chavez v. Netflix, Inc. supra, 162 Cal.App.4th at p. 58 & Cellphone Termination Fee
Cases, supra, 186 Cal.App.4th at p. 1392.) Moreover, for those who did not have
internet access, a toll free telephone number was prominently listed on all notices.
Second and more important, the tone of notice must be impartial. “As a general
rule, class notice must strike a balance between thoroughness and the need to avoid
unduly complicating the content of the notice and confusing class members.” (Wershba,
supra, 91 Cal.App.4th at p. 252.) Trial courts evaluating the content of a settlement-only
20
class notice must “ ‘assure that the notice be “neutral and objective in tone, neither
promoting nor discouraging the assertion of claims.” [Citation.] [¶] . . . “It is essential
that the class members’ decision to participate or to withdraw be made on the basis of
independent analysis of [their] own self-interest. . . . [¶] The . . . class notice . . . is
designed to present the relevant facts in an unbiased format.” ’ [Citation.]”
(Hernandez v. Vitamin Shoppe Industries Inc. (2009) 174 Cal. App. 4th 1441, 1454-1455.)
Here, advising the class members that the undisclosed ingredients were certain forms of
corticosteroids is certainly important to class members who suffered personal injury.
Yet, this case does not involve personal injury claims. The effect of inserting the word
“steroids” in the notices would be to unnecessarily confuse class members in a case
related only to labeling and marketing issues where the identity of the omitted ingredients
is not the point, and where compensation was for non-personal injury. The only purpose
served by including the word “steroid” in the notice therefore would be to educate class
members about a ground for bringing an entirely new personal injury suit against
defendants. Such an advertisement for new lawsuits is neither neutral, objective, nor
unbiased in tone. (Ibid.)
(ii) The method of giving notice was not deficient.
The McLaren Objectors next contend that the method of giving notice was
constitutionally infirm because the court was not free to disregard the notice requirement
in CLRA, Civil Code section 1781, subdivision (d). They do not challenge the selection
of Parade Magazine as an appropriate publication. Instead, they argue that the court’s
error lay in allowing publication only once.
“We exercise our independent judgment in the review of pure questions of law,
such as the interpretation of statutes, and application of a statute to undisputed facts.
[Citations.]” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A.
(2013) 221 Cal. App. 4th 867, 877.) “ ‘ “It is a settled principle in California law that
‘When statutory language is . . . clear and unambiguous there is no need for construction,
and courts should not indulge in it.’ ” [Citation.]’ [Citation.]” (California Ins.
Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2004) 117 Cal. App. 4th 350, 355.)
21
Subdivision (d) of section 1781 of the Civil Code reads, “If the action is permitted
as a class action, the court may direct either party to notify each member of the class of
the action. The party required to serve notice may, with the consent of the court, if
personal notification is unreasonably expensive or it appears that all members of the class
cannot be notified personally, give notice as prescribed herein by publication in
accordance with Section 6064 of the Government Code in a newspaper of general
circulation in the county in which the transaction occurred.” (Italics added.) Section
6064 of the Government Code in turn, reads in part that “Publication of notice pursuant to
this section shall be once a week for four successive weeks.” (Italics added.)
Clearly, subdivision (d) of section 1781 of the Civil Code does not apply to this
case involving a settlement class. By its terms, subdivision (d) concerns notice when a
class action is “permitted” -- i.e., when a court certifies a class for adjudication. To
“permit” means “[t]o suffer, allow, consent, let; to give leave or license; to acquiesce, by
failure to prevent, or to expressly assent or agree to the doing of an act.” (Black’s Law
Dict. (6th ed. 1990) p. 1140, col. 1; accord, Webster’s 3d New Internat. Dict. (1971)
p. 1683, col. 3.)
Notice of a proposed class action settlement, in contrast, is governed by
subdivision (f) of section 1781 of the Civil Code, which reads, “[a] class action shall not
be dismissed, settled, or compromised without the approval of the court, and notice of the
proposed dismissal, settlement, or compromise shall be given in such manner as the court
directs to each member who was given notice pursuant to subdivision (d) and did not
request exclusion.” (Italics added; cf. Rebney v. Wells Fargo Bank, supra,
220 Cal.App.3d at p. 1138, fn. 6. [noting in dicta that Civ. Code, § 1781, subd. (d) applies
when a class action is permitted, whereas subd. (f) governs notice of a proposed
settlement].) Unlike subdivision (d) of section 1781 of the Civil Code, subdivision (f)
mandates that notice of a settlement class be given “as the court directs,” thus granting
the trial court discretion to fashion notice of a settlement class, provided the court orders
that notice be sent “to each member who was given notice pursuant to subdivision (d).”
(Civ. Code, § 1781, subd. (f).) As notice was not given pursuant to subdivision (d) here,
22
the court had “ ‘virtually complete discretion as to the manner of giving notice to class
members.’ ” (7-Eleven Owners, supra, 85 Cal.App.4th at p. 1164; Gainey v. Occidental
Land Research (1986) 186 Cal. App. 3d 1051, 1057.)
Furthermore, it is infeasible to comply with the requirement in Civil Code
section 1781, subdivision (d) to give notice in “a newspaper of general circulation in the
county in which the transaction occurred.” Determining in which counties around the
United States the sales of the creams occurred in this case would be impossible. Civil
Code section 1781 does not appear to govern nationwide consumer class actions. The
McLaren Objectors have not demonstrated that Civil Code section 1781, subdivision (d)
applies to require four-times notice to a nationwide settlement class, particularly where
other class claims were alleged and all of the remedies were obtained under causes of
action other than the CLRA.
California has abundant authority to provide guidance to trial courts when
fashioning notices of class action settlements. (See generally Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial, supra, ¶ 14:117 et seq., pp. 14-86 et seq.;
Cal. Rules of Court, rule 3.766; see also 7-Eleven Owners, supra, 85 Cal.App.4th at
p. 1164; accord, Cellphone Fee Termination Cases, supra, 186 Cal.App.4th at pp. 1390-
1393.) The McLaren Objectors do not challenge the constitutionality of notice of any of
the other causes of action alleged in the complaint. Therefore, where Civil Code
section 1781, subdivision (d) is inapplicable, the McLaren Objectors have not
demonstrated that notice was rendered constitutionally infirm merely because publication
was made once in Parade Magazine rather than four times.
4. Approval of the settlement
“ ‘ “ ‘[T]o prevent fraud, collusion or unfairness to the class, the settlement or
dismissal of a class action requires court approval.’ ” ’ [Citations.] The court must
determine the settlement is fair, adequate, and reasonable. [Citations.]” (Dunk, supra,
48 Cal.App.4th at pp. 1800-1801.) “ ‘Due regard,’ . . . ‘should be given to what is
otherwise a private consensual agreement between the parties. The inquiry “must be
limited to the extent necessary to reach a reasoned judgment that the agreement is not the
23
product of fraud or overreaching by, or collusion between, the negotiating parties, and
that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”
[Citation.] . . . .’ ” (7-Eleven Owners, supra, 85 Cal.App.4th at p. 1145, quoting from
Dunk, supra, at p. 1801.)
Factors the trial court should consider in assessing whether a class settlement is
fair, adequate, and reasonable include, “ ‘[(1)] the strength of plaintiffs’ case, [(2)] the
risk, expense, complexity and likely duration of further litigation, [(3)] the risk of
maintaining class action status through trial, [(4)] the amount offered in settlement,
[(5)] the extent of discovery completed and the stage of the proceedings, [(6)] the
experience and views of counsel, [(7)] the presence of a governmental participant, and
[(8)] the reaction of the class members to the proposed settlement.’ [Citations.]”
(Wershba, supra, 91 Cal.App.4th at pp. 244-245, quoting from Dunk, supra,
48 Cal.App.4th at p. 1801.) This is not an exclusive list of considerations. “[T]he court
is free to engage in a balancing and weighing of factors depending on the circumstances
of each case. [Citation.]” (Wershba, at p. 245.)
Our review remains limited. (Munoz v. BCI Coca-Cola Bottling Co. of
Los Angeles (2010) 186 Cal. App. 4th 399, 407 (Munoz).) “Great weight is accorded the
trial judge’s views.” (7-Eleven Owners, supra, 85 Cal.App.4th at p. 1145.) “[B]ecause
so many imponderables enter into the evaluation of a settlement, we continue to review
the trial court’s decision to approve a settlement in such a case under the ‘abuse of
discretion’ standard.” (Carter, supra, 224 Cal.App.4th at p. 820.) We do not reweigh the
factors the trial court should consider, “or substitute our notions of fairness for those of
the trial court. [Citation.]” (Wershba, supra, 91 Cal.App.4th at p. 245.) Our task is
“only to determine whether the trial judge . . . acted within its discretion. [Citation.]”
(Munoz, supra, at p. 410.)
Relying in large part on Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th
116 (Kullar), the factors the McLaren Objectors focus on are the first and fourth, namely
the “ ‘ “strength of the case for plaintiffs on the merits, balanced against the amount
offered in settlement.” ’ ” (Id. at p. 130.) They argue that the parties and the court
24
misconceived the nature and magnitude of plaintiffs’ case which undermined the trial
court’s ability to evaluate the risk of continued litigation against the value of the relief in
settlement. Instead, they contend there was (1) “almost certain liability on Plaintiffs’
claims,” (2) class members were entitled to “full restitution of all amounts class members
paid,” and (3) there was a “strong possibility of exemplary damages.”
Kullar explained that “ ‘to protect the interests of absent class members, the court
must independently and objectively analyze the evidence and circumstances before it.’ ”
(Kullar, supra, 168 Cal.App.4th at p. 130.) “ ‘[T]he factual record before the . . . court
must be sufficiently developed’ [citation],” and show that the trial court “independently
satisf[ied] itself that the consideration being received for the release of the class
members’ claims is reasonable in light of the strengths and weaknesses of the claims and
the risks of the particular litigation.” (Id. at pp. 129-130.) Kullar reversed the class
settlement approval because the record contained no evidence that the trial court had
conducted its evaluation independently. The supporting information was exchanged in
confidential mediation and so the papers submitted to the trial court “provided no
specificity.” (Id. at pp. 129 & 131; compare 7-Eleven Owners, supra, 85 Cal. App. 4th
1135, [trial court record contained extensive evidence of fairness and adequacy after
years of litigation and days of hearing, and the trial court was informed of details, dollar
value of claims, defenses, and counsels’ evaluation of the strengths of claims].)
There is a presumption of fairness, however, on which plaintiffs rely in defending
the settlement. This presumption arises when “(1) the settlement is reached through
arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel
and the court to act intelligently; (3) counsel is experienced in similar litigation; and
(4) the percentage of objectors is small.” (Dunk, supra, 48 Cal.App.4th at p. 1802.) As
we have analyzed, all four of the factors are indisputably present in this case giving rise
to the presumption of fairness.
Focusing particularly on the “ ‘ “ ‘strength of the case for plaintiffs on the merits,
balanced against the amount offered in settlement’ ” ’ ” (Munoz, supra, 186 Cal.App.4th
at pp. 407-408; Kullar, supra, 168 Cal.App.4th at p. 130), the factual record before the
25
trial court was more than adequately developed to allow the court independently and
objectively to satisfy itself about the fairness and adequacy of the settlement. The record
contains reams of discovery and motion papers showing the extent to which the issues
were contested. The record shows the details of the lawsuit. The complaint alleges that
the class members overpaid for the creams because, had they been aware of the
ingredients, they would not have purchased cream, would have paid less, or would have
purchased a competing product. The record shows the amount in controversy. (Munoz,
supra, at p. 409.) Extensive discovery was made of defendants’ revenue from each type
of cream at each point of sale during the class period. The court also had information
about the range of outcomes of litigation (ibid.) having heard about the need for expert
witnesses and the defenses defendants intended to raise if the case went to trial, along
with the evaluation of the strengths of plaintiffs’ position. The court evaluated the case
and concluded it is a consumer class action seeking economic damages only for use of
cosmetics, but excluding all personal injury claims. It was the court’s assessment that “it
is far from clear that this would be a slam dunk winner to get a full recompense for the
full price paid.”
The McLaren Objectors argue that the error in approving the settlement was a
legal one in that the trial court misconceived the law concerning the strength of plaintiffs’
case and the defenses defendants threatened to raise. As for the strength, the McLaren
Objectors cite a raft of state and federal statutes covering adulteration, false advertising
labeling of cosmetics, and dispensing of drugs, which statutes they believed support their
view of the case. They argue, “if true, the factual allegations” mean “almost certain
liability” because defendants’ conduct of adulterating the creams with drugs was flatly
illegal, and offset is not an applicable defense. (Italics added.) We disagree. First, many
of the statutes the McLaren Objectors cite are redundant of those alleged in the complaint
or are not applicable here. Hydrocortisone and triamcinolone acetonide are not
Schedule III controlled substances (Health & Saf. Code, § 11056; 21 U.S.C. § 812)
whose use without a prescription would be illegal. Indeed, hydrocortisone does not
require a prescription. Second, the trial court did not misunderstand the scope of this
26
case. It reasonably assessed, given the personal injury claims were not adjudicated here,
that the parties were not litigating or settling the physical consequences of adulterating
the creams with drugs, and so the damages were purely economic. Third, as the McLaren
Objectors were well aware, there is no certainty in litigation and defendants remain
adamant that the complaint’s allegations are not true. “[T]he merits of the underlying
class claims are not a basis for upsetting the settlement of a class action; the operative
word is ‘settlement.’ [Citations.]” (7-Eleven Owners, supra, 85 Cal.App.4th at p. 1150.)
“ ‘[I]t is the very uncertainty of outcome in litigation and avoidance of wasteful and
expensive litigation that induce consensual settlements. The proposed settlement is not to
be judged against a hypothetical or speculative measure of what might have been
achieved by the negotiators.’ ” (Linney v. Cellular Alaska Partnership (9th Cir. 1998)
151 F.3d 1234, 1242.)12
Turning to the amount offered in settlement, the parties hotly disputed the measure
and extent of the recovery. Plaintiffs sought restitution of all amounts paid for the creams
based on defendants’ revenue from the sale of the products, which could require expert
evaluation and testimony. (See Colgan v. Leatherman Tool Group, Inc. (2006)
135 Cal. App. 4th 663, 700.) In contrast, defendants took the position that the recovery
must be discounted by the benefit derived by consumers of the product. (See, e.g., Ries v.
Arizona Beverages USA LLC (N.D.Cal. 2012) 287 F.R.D. 523, 532 [proper measure of
restitution is difference between value of AriZona Iced Tea billed as all-natural and value
12
The McLaren Objectors argue, citing Steroid Hormone Product Cases (2010)
181 Cal. App. 4th 145, that the trial court erred in concluding that the creams were
beneficial to some class members while being harmful to others because this is an
irrelevant factor. Their argument is unavailing. The court in that case examined a
challenge to the typicality requirement of class certification of a CLRA cause of action
and explained where the plaintiff was seeking restitution, he “correctly argues that he is
entitled to show that [the defendant’s] alleged deceptive conduct caused the same damage
to the class by showing that the alleged misrepresentation was material, even if
[defendant] might be able to show that some class members would have bought the
products even if they had known they were unlawful to sell or possess without a
prescription.” (Id. at pp. 156-157.)
27
of comparable beverage not marketed or sold at premium because of those claims]; In re
Facebook, Inc., PPC Advertizing Litigation (N.D.Cal. 2012) 282 F.R.D. 446, 461
[restitution under UCL is difference between what plaintiffs paid and the value of what
plaintiffs received].) The settlement provided for the recovery plaintiffs sought. Also,
the record indicates that the face value of the certificates is worth more than the purchase
price of the creams. Therefore, not only is the settlement very generous, it is better than
that which the McLaren Objectors urge.
In any event, a review of the record reveals that the McLaren Objectors raised
these same arguments in the trial court, both in their papers and at oral argument. The
court engaged in a long discourse with the McLaren Objectors’ attorney about counsel’s
view of nature of the case. The court found that “[t]he undisclosed steroid component
appears to have made the product more dangerous for some users and more beneficial for
others” and rejected the McLaren Objectors’ invitation to view this case as a guaranteed
win for plaintiffs. The record was sufficiently developed to enable the trial court, as it
did, to exercise its discretion in evaluating the fairness and reasonableness of the
settlement.
Finally, the McLaren Objectors challenge the certificates. They contend the
certificates do not compare favorably to defendants’ “actual potential exposure” because
the coupons are negotiable only at defendants’ store, are not transferrable, cannot be
redeemed for cash, and customers do not get cash back if their purchase is under $45.
The certificates are transferrable. Also, settlements that provide for a coupon or
certificate are not inappropriate in California. (Chavez v. Netflix, Inc., supra,
162 Cal.App.4th at pp. 53-54.) To paraphrase Chavez, although the certificates might
induce a class member to make a purchase he or she might not otherwise make, which
would provide a net benefit to defendants, here class members are not being offered a
discount that requires them to make a new purchase. Rather, the $45 certificates, which
are worth more than the typical purchase price of either the Healing or Control Cream,
can be transferred or used to obtain up to $45 worth of a wide variety of replacement
products at no charge. We also disagree with the McLaren Objectors that the injunctive
28
relief portion of the settlement had no value. Defendants stopped selling the creams after
the lawsuit was filed and the permanent injunction ensures that in the future, the public
will no longer be exposed to this sort of misleading labeling and advertising.
5. The attorney fee award
The McLaren Objectors challenge the attorney fees awarded to class counsel.
Their sole contention is that the clear sailing provision was excessive and a red flag
signaling collusion. They rely on In re Bluetooth Headset Products Liability (9th Cir.
2011) 654 F.3d 935, which said that “clear sailing” provisions and clauses reverting
unpaid attorney’s fees to the defendant deserve heightened scrutiny to avoid collusion.
(Id. at p. 947.)
Generally, a clear sailing agreement is one in which the defendant agrees not to
contest the amount to be awarded by the trial court so long as the award falls beneath a
negotiated ceiling. (Cellphone Termination Fee Cases (2009) 180 Cal. App. 4th 1110,
1120.) There is no absolute prohibition on clear sailing agreements in California, where
they are common. (See Consumer Privacy Cases (2009) 175 Cal. App. 4th 545, 553
[“commentators have agreed that such an agreement is proper”].) Trial courts peruse fee
provisions in class action settlement agreements for the reasonableness of the award and
for evidence of fraud or collusion. (Cellphone Termination Fee Cases, supra, at
p. 1119.) “From the class members’ perspective, review of the reasonableness of the fee
award is a safeguard against the possibility of collusion.” (Ibid.) We review the attorney
fee award in the settlement of a class action under the abuse of discretion standard.
(7-Eleven Owners, supra, 85 Cal.App.4th at p. 1164.)
Here, the trial court expressly found that the fee award was reasonable under the
circumstances. When the court made this determination, it had extensive documentation
and heard argument. The court also addressed the possibility of collusion raised by the
presence of a clear sailing clause in the fee agreement. The court explained, had the class
been a smaller 20,000 members with coupons worth $1.2 million, then the clear sailing
provision of $1.2 million in attorney fees “would be excessive.” But the class was more
than four times that number. The court independently evaluated the fee request and only
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granted the attorney fee motion in part, by awarding fees based on a loadstar of $600 per
hour and a multiplier of 1.8 for a total of $864,342 -- or 72 percent of the request -- which
amount it deemed was reasonable. Alert to its responsibility, the court properly exercised
its discretion and examined the fee request.
DISPOSITION
The judgment is affirmed. Appellants to bear costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
LAVIN, J.
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