EXHIBIT A

**E-Filed 4/7/2010**

Case 3:09-cv-00670-JSW Document 154 Filed 04/07/10 Page 1 of 22
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858179.1 [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

Jonathan D. Selbin (State Bar No. 170222) 

jselbin@lchb.com 

Nimish R. Desai (State Bar No. 244953) 

ndesai@lchb.com 

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 

275 Battery Street 

San Francisco, CA 94111-3336 

Telephone: (415) 956-1000 

Facsimile: (415) 956-1008 

Elizabeth A. Alexander (pro hac vice) 

ealexander@lchb.com 

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 

One Nashville Place 

150 Fourth Avenue, North 

Suite 1650 

Nashville, TN 37219-2423 

Telephone: (615) 313-9000 

Facsimile: (615) 313-9965 

Attorneys for Plaintiffs and the Proposed Class 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

ERIC ROSS and BRADLEY S. HURETH, 

Plaintiffs, 

v. 

TREX COMPANY, INC., a Delaware 

corporation, 

Defendant. 

Case No. 5:09-CV-00670-JF 

[SECOND REVISED PROPOSED] FINAL 

ORDER APPROVING CLASS ACTION 

SETTLEMENT, AND DISMISSING 

RELEASED CLAIMS WITH PREJUDICE 

DATE: October 30, 2009 

TIME: 9:00 a.m. 

COURTROOM: Courtroom 3, 5th Floor 

JUDGE: Hon. Jeremy Fogel 

WHEREAS, Plaintiffs and Trex have entered into a class action Settlement Agreement, 

signed by all Parties and filed with the Court on May 26, 2009; and 

WHEREAS, the Court entered an Order dated July 30, 2009, preliminarily certifying the 

putative Class in this Action for settlement purposes under Fed. R. Civ. P. 23(b)(3), ordering 

notice to potential Class Members, scheduling a Fairness Hearing for October 30, 2009, at 

**E-Filed 4/7/2010**

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858179.1 - 2 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

9:00 a.m., and providing those persons with an opportunity either to exclude themselves from the 

settlement Class or to object to the proposed Settlement (the “Preliminary Approval Order”); and 

WHEREAS, on September 1, 2009, Trex provided notice of the proposed Settlement 

under 28 U.S.C. § 1715 to the appropriate state and federal government officials; and 

WHEREAS, the Court held a Fairness Hearing on October 30, 2009, at 9:00 a.m., to 

determine whether to give final approval to the proposed Settlement; and 

WHEREAS, the Parties have complied with the Preliminary Approval Order and the 

Court is of the opinion that the Settlement Agreement is fair, adequate, and reasonable, and that it 

should be approved. 

NOW THEREFORE, based on the submissions of the Parties and Class Members, the 

testimony adduced at the Fairness Hearing, any comments or objections filed by objectors, the 

pleadings on file, and the argument of counsel, the Court hereby finds, and it is hereby 

ORDERED as follows: 

1. Incorporation of Defined Terms and the Settlement Agreement. Except where 

otherwise noted, all capitalized terms used in this Final Order Approving Class Action Settlement 

and Dismissing Class Action with Prejudice (the “Final Order and Judgment”) shall have the 

meanings set forth in the Amended Stipulation of Settlement and Release (“Settlement 

Agreement”). The Settlement Agreement (and any attachments thereto) is expressly incorporated 

by reference into this Final Order and Judgment and made a part hereof for all purposes. 

2. Jurisdiction. The Court has personal jurisdiction over the Parties and all Class 

Members, and has subject-matter jurisdiction over this Action, including, without limitation, 

jurisdiction to approve the proposed Settlement, to grant final certification of the Settlement 

Class, to settle and release all claims arising out of the transactions alleged in Plaintiffs’ 

Complaint and Amended Complaint, and to dismiss this Action on the merits and with prejudice. 

3. Final Class Certification. The Settlement Class this Court preliminarily certified 

in its Preliminary Approval Order is hereby finally certified for settlement purposes under Fed. R. 

Civ. P. 23(b)(3). The Settlement Class consists of: all Persons in the United States or its 

Territories who own or owned decks or other structures composed of Trex Product manufactured 

Case 3:09-cv-00670-JSW Document 154 Filed 04/07/10 Page 3 of 22
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858179.1 - 3 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

at Trex’s Fernley, Nevada plant between January 1, 2002 and December 31, 2007. Included 

within the Settlement Class are the legal representatives, heirs, successors in interest, transferees, 

and assignees of all such foregoing holders and/or owners, immediate and remote. 

Notwithstanding the foregoing, the following Persons shall be excluded from the Class: Trex and 

its subsidiaries and affiliates; all Persons who, in accordance with the terms of this Agreement, 

properly execute and timely file during the Opt-Out Period a request for exclusion from the 

Settlement Class; all governmental entities and the judge(s) to whom the case is assigned and any 

immediate family members thereof. A list of those persons who have timely excluded themselves 

from the Class, and who therefore are not bound by this Final Order and Judgment, is attached 

hereto as Appendix A, which is incorporated herein and made a part hereof for all purposes. 

4. Adequacy of Representation. The Court appoints Eric Ross and Bradley Hureth to 

serve as Settlement Class representatives. The Court appoints Lieff Cabraser Heimann & 

Bernstein, LLP; Tousley, Brain & Stephens, PLLC; Hausfeld, LLP; Gary, Naegele & Theado, 

LLC; Audet and Partners, LLP; Cuneo, Gilbert & LaDuca, LLP, and Lockridge Grindal Nauen, 

PLLP to serve as Class Counsel. The appointment of Class Counsel, and the appointment of the 

Plaintiffs as the Settlement Class representatives, is fully and finally confirmed. The Court finds 

that Class Counsel and Plaintiffs have fully and adequately represented the Settlement Class for 

purposes of entering into and implementing the Settlement Agreement and have satisfied the 

requirements of Fed. R. Civ. P. 23(a)(4). 

5. Class Notice. The Court finds that the direct mail notice and publication of the 

Notice in accordance with the terms of the Settlement Agreement and this Court’s Preliminary 

Approval Order, and as explained in the declarations filed before the Fairness Hearing: 

a. constituted the best practicable notice to Class Members under the 

circumstances of this Action; 

b. were reasonably calculated, under the circumstances, to apprise Class 

Members of (i) the pendency of this class action, (ii) their right to exclude themselves from the 

Settlement Class and the proposed Settlement, (iii) their right to object to any aspect of the 

proposed Settlement (including final certification of the Settlement Class, the fairness, 

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858179.1 - 4 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

reasonableness or adequacy of the proposed Settlement, the adequacy of the Settlement Class’s 

representation by Plaintiffs or Class Counsel, and/or the award of attorneys’ and representative 

fees), (iv) their right to appear at the Fairness Hearing (either on their own or through counsel 

hired at their own expense), and (v) the binding effect of the orders and Final Order and Judgment 

in this Action, whether favorable or unfavorable, on all persons who do not request exclusion 

from the Settlement Class; 

c. was reasonable and constituted due, adequate, and sufficient notice to all 

persons entitled to be provided with notice; and 

d. fully satisfied the requirements of the Federal Rules of Civil Procedure, 

including Fed. R. Civ. P. 23(c)(2) and (e), the United States Constitution (including the Due 

Process Clause), the Rules of this Court, and any other applicable law. 

6. Class Action Fairness Act Notice. The Court finds that Trex provided notice of 

the proposed Settlement to the appropriate state and federal government officials pursuant to 

28 U.S.C. § 1715. Furthermore, the Court has given the appropriate state and federal government 

officials the requisite 90 day time period (pursuant to 28 U.S.C. § 1715) to comment or object to 

the proposed Settlement before entering its Final Order and Judgment and no such objections or 

comments were received. 

7. Class Findings. For purposes of the settlement of this Action (and only for such 

purposes, and without an adjudication of the merits), the Court finds that the requirements of the 

Federal Rules of Civil Procedure, the United States Constitution, the Rules of this Court and any 

other applicable law have been met in that: 

a. The Settlement Class consists of thousands of Persons who own decks or 

other structures composed of Trex Product as defined in the Settlement Agreement. The 

Settlement Class is so numerous that their joinder before the Court would be impracticable. 

b. The commonality requirement of Fed. R. Civ. P. 23(a) generally is satisfied 

when members of the proposed Settlement Class share a common factual or legal issue. Here, the 

Court finds for settlement purposes that Plaintiffs have alleged at least one question of fact and 

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858179.1 - 5 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

law purportedly common to the Settlement Class. Plaintiffs complain of alleged common 

misrepresentations by Trex and an alleged common condition of the product in question. 

c. The Court finds for settlement purposes that the claims of the named 

Plaintiffs are typical of the claims of the Settlement Class that are being settled. The named 

Plaintiffs are adequate representatives of the Settlement Class they represent, since their interests 

are reasonably co-extensive with those of Settlement Class members, and the Plaintiffs have 

retained experienced counsel to represent them. The named Plaintiffs and Class Counsel will 

fairly and adequately protect the interests of the Settlement Class. 

d. The Court finds for settlement purposes that a resolution of this Action in 

the manner proposed by the Settlement Agreement is superior to other available methods for a 

fair and efficient adjudication of the Action and that common issues predominate over individual 

issues. Common questions include whether Trex products manufactured during the relevant time 

period are defective by design or manufacture. Class treatment here, in the context of the 

Settlement, will facilitate the favorable resolution of all Settlement Class members’ claims. The 

proposed resolution of this Action involves a Claims Program which will identify and resolve 

complaints without burdening the courts or regulators and which will result in the replacement of 

any defective Trex Product (i.e., Trex Product exhibiting the Surface Flaking defect) or a cash 

equivalent at retail price and a partial labor stipend. Given the number of Class Members, use of 

the class device will offer a more efficient and fair means of adjudicating the claims at issue, 

conserve judicial resources, and will promote consistency and efficiency of adjudication by 

avoiding multiple individual suits or piecemeal litigation. The Court also notes that, because this 

Action is being settled rather than litigated, the Court need not consider manageability issues that 

might be presented by the trial of a nationwide class action involving the issues in this case. See 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). 

In making these findings, the Court has considered, among other factors: (i) the interests 

of Class Members in individually controlling the prosecution or defense of separate actions; 

(ii) the impracticability or inefficiency of prosecuting or defending separate actions; (iii) the 

extent and nature of any litigation concerning these claims already commenced; and (iv) the 

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858179.1 - 6 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

desirability of concentrating the litigation of the claims in a particular forum. The Court takes 

guidance in its consideration of certification issues from Hanlon v. Chrysler Corp., 150 F.3d 1011 

(9th Cir. 1998). 

8. Final Settlement Approval. The terms and provisions of the Settlement 

Agreement, including any and all amendments and exhibits, have been entered into in good faith 

and are hereby fully and finally approved as fair, reasonable and adequate as to, and in the best 

interests of, the Plaintiffs and the Class Members, and in full compliance with all applicable 

requirements of the Federal Rules of Civil Procedure, the United States Constitution (including 

the Due Process Clause), and any other applicable law. 

The Court finds that the Settlement Agreement is fair, adequate and reasonable based on 

the following factors, among other things. First, there is no fraud or collusion underlying this 

Settlement, and it was reached after good faith, arms-length negotiations, warranting a 

presumption in favor of approval. Officers for Justice v. Civil Serv. Comm’n., 688 F.2d 688 F.2d 

615, 625 (9th Cir. 1982). Second, the complexity, expense and likely duration of the litigation 

favor settlement on behalf of the Settlement Class, which provides meaningful benefits on a much 

shorter time frame than otherwise possible. Based on the stage of the proceedings and the amount 

of investigation and informal discovery completed, the Parties had developed a sufficient factual 

record to evaluate their chances of success at trial and the proposed Settlement. Third, the 

support of Class Counsel, who are highly skilled in class action litigation such as this, and the 

Plaintiffs, who have participated in this litigation and evaluated the proposed Settlement, also 

favors final approval. See Boyd v. Bechtel Corp., 485 F.Supp. 610, 622 (N.D. Cal. 1979); Class 

Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992). Fourth, the Settlement provides 

meaningful relief to the Settlement Class, including replacement product or a cash equivalent at 

retail price for any defective Trex Product (i.e., Trex Product exhibiting the Surface Flaking 

defect) as well as a partial labor payment for replacement of any defective Trex Product, and 

certainly falls within the range of possible recoveries by the Settlement Class. 

Finally, the positive response to the Settlement by the Settlement Class – evidenced by a 

very small percentage of opt-outs and objections – further supports final approval. Of the 17,240 

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858179.1 - 7 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

direct notice recipients, only 117 opted out. The Court also received 18 objections, four of which 

were untimely and a fifth which suffered from other procedural deficiencies. These are modest 

numbers for both categories. Compare Churchill Vill., L.L.C. v. GE, 361 F.3d 566, 575 (9th Cir. 

2004). Moreover, no government agent has responded to the proposed Settlement despite the 

notifications sent to the appropriate state and federal government officials. 

The Court has considered the objections and hereby overrules them. The objectors 

generally argue that the Settlement could have been better by providing different or additional 

relief. However, as the Ninth Circuit has made clear, the Court’s inquiry “is not whether the final 

product could be prettier, smarter or snazzier, but whether it is fair, adequate and free from 

collusion.” Hanlon, 150 F.3d at 1027. The Court finds that the Settlement meets this standard. 

The objections filed by Mark Okano and Sharon Ding (“Okano Objectors”) and Joe and 

Clara Marotto, Helen Strausser, Robert Kimmerling, and Johnnie Schmidbauer (“Marotto

Objectors”), both through counsel with competing cases on file, primarily focus on what results 

could have been obtained through successful litigation. Notably, the Okano Objectors raised 

essentially the same objections at the preliminary approval stage and the Court found then that the 

objections were insufficient to warrant disapproval of the Settlement. After careful consideration, 

the Court reaches the same conclusion today. Accordingly, the Okano and the Marotto objections 

are overruled. 

The Okano Objectors contend that the labor payment under the Settlement is inadequate. 

While they acknowledge that the warranty expressly excludes any labor costs, they argue that the 

limitation is unenforceable. However, as the Court previously found, the alleged unenforceability 

is far from certain. Limitations on consequential economic damages for consumers are not prima 

facie unconscionable, U.C.C. § 2-719(3), and such disclaimers in consumer warranties have been 

upheld where there is no great disparity of bargaining power. E.g., Zaremba v. Marvin Lumber 

and Cedar Co., 458 F.Supp.2d 545 (N.D. Ohio 2006). Thus, the Okano Objectors fail to 

acknowledge the inherent risks of their approach, for it is possible that continued litigation would 

lead to negligible or no benefit to consumers. The Court is mindful that one Class member who 

opted out and pursued litigation in California small claims court was denied any recovery on the 

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858179.1 - 8 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

basis of the warranty exclusion. (Alexander Decl., Docket No. 115, Ex. A.) Moreover, given the 

inherent variation in purchase transactions among Class members, this argument may have 

complicated class certification. In light of the significant risks of pursuing the Okano Objectors’ 

proposed strategy, the Court finds that the Plaintiffs’ decision to settle for a partial labor stipend 

was reasonable, and that the labor recovery, along with the other benefits of the Settlement, fall 

well within the range of reasonableness. 

Okano Objectors also fault Plaintiffs for failing to bring Magnusson-Moss Warranty Act 

claims. However, the Act provides no remedies or damages independent of state law (which 

Plaintiffs adequately pled), and thus its inclusion would not have enhanced the recovery for Class 

members. Further, the inclusion of a Magnusson-Moss claim could have potentially complicated 

class certification due to its exclusive reliance on state law remedies. See In re Mexico Money 

Transfer Litig., 267 F.3d 743, 747 (7th Cir. 2001) (“It is best to bypass marginal theories [of 

recovery] if their presence would spoil the use of an aggregation device that on the whole is 

favorable to holders of small claims.”); Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 

1986). Accordingly, the decision to exclude the Magnusson-Moss claim was entirely sensible, 

and does not in any way render the Settlement unfair, inadequate, or unreasonable. 

The Okano Objectors further argue that the lack of a demand for treble damages renders 

the Settlement inadequate. (Okano Mem. at 22.) Again, this argument is based on what could 

have been achieved following a potentially lengthy and costly trial. Without deciding the issue, 

the facts of this case –an unintentional manufacturing defect that causes no personal or property 

injury – do not suggest punitive damages would be warranted. Further, the Court need not 

evaluate this Settlement based upon the potential recovery of punitive damages following 

potentially protracted litigation. See Rodriguez v. West Publishing Corp., 563 F.3d 948, 954 (9th 

Cir. 2009). 

The Okano Objectors’ argument that the reference to the Fernley, Nevada plant renders 

the notice defective has previously been rejected, and is overruled again. As the Court previously 

explained, Trex has stated it will presume that any Trex Product exhibiting the surface flaking 

failure at issue in this case was manufactured at the Fernley plant during the relevant time period. 

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858179.1 - 9 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

(Fairbanks Decl. at ¶ 7.) 

Objections regarding the lack of formal discovery are similarly overruled. As stated in the 

order granting preliminary approval, the process by which the Settlement was negotiated is 

unobjectionable. The evidence shows that the parties engaged in extensive, arms-length 

negotiation. There is simply no evidence of collusion between the parties. There was substantial 

investigation and informal discovery, including expert investigation of the defects, and review of 

a voluminous production of documents. Class counsel are experienced in class action litigation, 

specifically product defect cases, and there is nothing to suggest the process by which the 

Settlement was negotiated was anything less than adversarial. 

Finally, objections regarding the size of attorneys’ fees are overruled. As is evident from 

the evidence submitted, counsel invested a significant amount of time investigating the case, 

retaining experts, and engaging in informal discovery and negotiations with Trex. The Settlement 

obtained confers a substantial, immediate benefit on members of the Class and Class counsel 

undertook a significant financial risk in proceeding in contingency-based class litigation. As 

such, the objectors have failed to make a showing that the attorneys’ fees of $1,250,000 is 

unjustified. 

Following on their substantive critiques, Okano Objectors claim that the alleged 

shortcomings identified above also make the named Plaintiffs inadequate class representatives. 

For the same reasons, then, the “failure” to allege Magnusson-Moss claims or seek punitive 

damages do not make the Plaintiffs inadequate representatives. Further, the Objectors’ critique 

that the Plaintiffs are not “typical” under Rule 23(a)(3) because of the size of the class 

representative stipends is unfounded. These stipends are commonly awarded in class litigation to 

reward and incentivize efforts which benefit a large pool of absent Class members, and the $7,500 

stipends here are in line with those of similar cases. Compare Pelletz v. Weyerhaeuser Corp., 255 

F.R.D. 537, 546 (W.D. Wash. 2009). Furthermore, the stipends are not disproportionate to Class 

members’ recovery. All Class members will be eligible for thousands of dollars in replacement 

product or cash reimbursement, in some instances for their entire decks. 

As part of their adequacy of representation arguments, Okano Objectors claim that the 

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858179.1 - 10 - [SECOND REVISED PROPOSED] ORDER GRANTING 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 5:09-CV-00670-JF 

failure to plead the case under the laws of the 51 jurisdictions led the parties to undervalue the 

Settlement. The logic of this objection is unclear, since Nevada and California law provide the 

full range of remedies available in warranty actions, including attorneys’ fees and punitive 

damages. The Court overrules this speculative objection, particularly since nationwide classes 

are frequently certified under one state’s law (as Plaintiffs have done here), and because the 

Objectors’ strategy itself contains serious risks. At any rate, this difference in strategy certainly 

does not render the Settlement unfit for approval. 

Finally, though not mentioned in their opposition brief, Okano Objectors argued at the 

fairness hearing that the Settlement does not account for alleged structural integrity problems with 

the decking material. The Okano Objectors offered no specific evidence of this alleged problem. 

The Marotto Objectors joined this argument and provided a single anecdote in support. The 

Court finds this objection unavailing. The only competent evidence in the record, strength testing 

conducted by Plaintiffs’ expert wood scientist, demonstrates that product exhibiting the surface 

flaking defect does not have structural integrity problems. (Selbin Decl., Doc. No. 90, Ex. B.) 

Nevertheless, out of an abundance of caution, the parties excluded any structural integrity claims 

from the Settlement. (Docket No. 78, Ex. A at 8-9.) Furthermore, the Settlement does not 

encompass any claims for personal injury. (Id.) Since the vast majority of Class members have 

apparently not suffered any structural issues with their decks, this approach allows them to begin 

claiming the substantial Settlement benefits. At the same time, homeowners with more extensive 

problems, if any, are free to pursue their own remedies. 

The Marotto Objectors largely mirror the Okano Objectors in their challenge of the 

adequacy and typicality of the class representatives, the size of attorneys’ fees, and their view on 

the informal discovery process used by Class counsel. These objections are overruled for the 

reasons stated above. 

The Marotto Objectors further contend that the Settlement “provides no additional benefit 

whatsoever to homeowners” beyond what Trex has always provided. This is incorrect. It is clear 

from the record that, in the past, Trex provided labor or “goodwill” payments to warranty 

claimants infrequently and on an uneven basis, and that such payments ceased altogether in 

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858179.1 - 11 - [SECOND REVISED PROPOSED] ORDER GRANTING 

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January 2009. Further, as the Court found at the preliminary approval stage, the Settlement 

provides benefits above and beyond the product’s warranty in the form of the labor payment, 

shipping costs, and additional recovery for more than fifty percent failure of the product. The 

Settlement also provides an enforcement mechanism such that homeowners are able to obtain 

meaningful and timely relief without the risk of no recovery. See Hanlon, 150 F.3d at 1027. 

It is also Marotto Objectors’ view that continued litigation poses no risks to the Class and 

that the only legal issue is damages. This argument ignores the realities of litigating class actions 

and product defect cases. Continued litigation would present a host of issues relating to class 

certification, causation, and liability. Further, continued litigation would incur substantial costs, 

years of delay, and an uncertain outcome. See In re NVIDIA Corp. Derivative Litig., No. C-06-

06110-SBA (JCS), 2009 U.S. Dist. LEXIS 24973, at *16-17 (N.D. Cal. Mar. 18, 2009). During 

these years of delay, Class members would have recovered nothing. This Settlement allows for 

immediate and substantial relief to Class members. Again, the Court finds that the Settlement is 

fair, adequate, and reasonable under the circumstances. 

Objections were also filed by pro se Class members Edward and Deanna Ater, Wayne and 

Karen Harrison, Michael Capelle,1

 William and Esperanza G. Langan, Marvin Linville, Gary and 

Diane Russel, Terri E. Jones, William D. and Kathleen Carpenter, Richard Southern, John Coxe, 

Thomas S. Feusi, and Conrad B. and Sandra K. Rogers.2 (See Docket Nos. 117, 121 and 144.) 

These objections are overruled. 

The primary grievance of the pro se objectors is that the amount of labor payment 

included in the Settlement is inadequate. Specifically, the objectors contend that the formula of 

$0.18 per linear foot is too small in that it will not result in full payment of labor costs associated 

with replacing their decks. In addition, Mr. Langan objects that the $225 limit on the labor 

 1

 Mr. Capelle was the only pro se objector to appear at the fairness hearing. 

2

 A number of these suffered from procedural deficiencies. The objections of Southern, Coxe, 

Feusi, and Rogers were untimely. Additionally, Messrs. Southern and Feusi timely opted out of 

the settlement, and therefore may not also object. Finally, the Carpenters failed to submit their 

objections to counsel for Trex and the Class. The Court will consider these objections despite 

their procedural deficiencies. 

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858179.1 - 12 - [SECOND REVISED PROPOSED] ORDER GRANTING 

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CASE NO. 5:09-CV-00670-JF 

payment for those who have prior compensated claims is not fair because other Class Members 

may receive more in labor costs under the Settlement, and Ms. Jones and the Rogers object that 

Trex’s right to elect whether to provide replacement product or cash equivalent in its sole 

discretion is unfair. 

In other words, the objectors complain that, by way of Settlement, they will not obtain all 

of the relief (and perhaps more) they could hope to recover after potentially years of successful 

litigation. That is not a realistic goal, and it is not the standard by which final approval of a 

settlement is measured. Instead, these objections “offer nothing more than speculation about 

what damages ‘might have been’ won had they prevailed at trial.” Linney v. Cellular Alaska 

P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (quoting Officers for Justice, 688 F.2d at 625). As 

the Ninth Circuit has repeatedly held, “it 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.” Id. (quoting Officers for Justice, 688 F.2d at 625). The Court 

explained, “the very essence of a settlement is compromise, a yielding of absolutes and an 

abandoning of highest hopes.” Id. Although the Settlement terms reached here provide a 

significant benefit, “[t]he fact that a proposed settlement may only amount to a fraction of the 

potential recovery does not, in and of itself, mean that the proposed settlement is grossly 

inadequate and should be disapproved.” Id. (citations and quotations omitted). 

This Court has previously recognized that “a settlement by definition requires 

compromise, and Plaintiffs cannot expect to make a full recovery in the absence of litigation.” 

(Docket No. 81 at 7.) There is no guarantee that, if the warranty limitations had been contested in 

litigation, they would be found unconscionable, as explained above. Moreover, the labor costs, 

shipping, and enhanced recovery for decks with more than fifty percent failure exceed the basic 

entitlement of the warranty and represent value gained through the Settlement. Class Counsel, 

after investigation and in light of their broad experience with consumer class actions, decided that 

a compromise was appropriate, and the Court agrees. 

Finally, the Carpenters argue that the settlement is inadequate because it is not on par with 

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a prior settlement in Kanefsky v. Trex Company, Inc., et al., No. L-7347-00 (N.J. Sup. Ct.). 

However, their comparison of the two settlements is incomplete. While Kanefsky offers labor 

reimbursement under some circumstances, it also allows Trex to invoke numerous exclusions to 

avoid honoring a settlement claim altogether, it releases claims (including mold claims) that are 

not compensated under its terms, and it apparently provides for no oversight of the claims process 

by class counsel. None of these limitations are present in the instant Settlement. Moreover, 

Kanefsky incorporated claims regarding structural integrity problems, whereas in this case the 

only expert to test the product has demonstrated there is no problem with the product’s structural 

integrity. (Selbin Decl., Doc. No. 90, Ex. B.) Both Kanefsky and the instant case show the give 

and take that is crucial to all class action settlements. 

Accordingly, the Court overrules all objections and approves the Settlement Agreement as 

fair, adequate, and reasonable. The Parties and Class Members are hereby directed to implement 

and consummate the Settlement Agreement according to its terms and provisions. 

9. Binding Effect. The terms of the Settlement Agreement, and of this Final Order 

and Judgment shall be forever binding on Plaintiffs and all other Class Members, as well as their 

heirs, executors, administrators, representatives, agents, successors and assigns, and those terms 

shall have res judicata and other preclusive effect in all pending and future claims, lawsuits or 

other proceedings maintained by or on behalf of any such persons, to the extent those claims, 

lawsuits or other proceedings involve matters that were or could have been raised in this Action 

or are otherwise encompassed by the Release described in the next paragraph of this Final Order 

and Judgment. 

10. Release. The release language contained in the Settlement Agreement (including 

but not limited to § A, ¶ 27 and § I of the Settlement Agreement) is expressly incorporated herein 

in all respects, is effective as of the date of this Final Order and Judgment, and forever discharges 

the Released Parties as set forth therein. 

11. Permanent Injunction. All Class Members who have not been timely excluded 

from the Settlement Class (by filing and serving a properly executed request for exclusion by 

October 29, 2009) are hereby permanently barred and enjoined from (a) filing, commencing, 

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asserting, prosecuting, maintaining, pursuing, continuing, intervening in, participating in (as Class 

members or otherwise), or receiving any benefits or other relief from, any other lawsuit, 

arbitration, or administrative, regulatory or other proceeding or order in any jurisdiction based on 

or relating to the claims and causes of action, or the facts and circumstances relating thereto, in 

this Action and/or the matters released in the Released Claims section of the Settlement 

Agreement (§ A, ¶ 27), and (b) organizing or soliciting the participation of any Class Members in 

a separate class for purposes of pursuing as a purported class action (including by seeking to 

amend a pending complaint to include class allegations, or by seeking class certification in a 

pending action) any lawsuit or other proceeding based on or relating to the claims and causes of 

action, or the facts and circumstances relating thereto, in this Action and/or the matters released in 

the Released Claims section of the Settlement Agreement (§ A, ¶ 27). The Court finds that 

issuance of this permanent injunction is necessary and appropriate in aid of the Court’s 

jurisdiction over this Action and to protect and effectuate the Court’s Final Order and Judgment. 

12. Enforcement of Settlement. Nothing in this Final Order and Judgment shall 

preclude any action to enforce the terms of the Settlement Agreement; nor shall anything in this 

Final Order and Judgment preclude Plaintiffs or Class Members from participating in the Claims 

Program described in § E of the Settlement Agreement if they are entitled to do so under the 

terms of the Settlement Agreement. 

13. Attorneys’ and Class Representative’s Fees and Expenses. The Settlement 

Agreement provides for attorneys’ fees and reimbursement of their expenses in the amount of 

$1,250,000.00, and stipends to the Class representatives as follows: $7,500.00 each to Eric Ross 

and to Bradley S. Hureth. The Court will issue a separate order addressing these fees and stipend 

requests. 

14. No Other Payments. The preceding paragraph of this Final Order and Judgment 

covers, without limitation, any and all claims for attorneys’ fees and expenses, representative 

fees, costs or disbursements incurred by Class Counsel or any other counsel representing the 

Plaintiffs or Class Members, or incurred by the Plaintiffs or the Class Members, or any of them, 

in connection with or related in any manner to this Action, the settlement of this Action, the 

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administration of such Settlement, and/or the matters released in the Released Claims section of 

the Settlement Agreement (§ A, ¶ 27) except to the extent otherwise specified in this Final Order 

and Judgment and the Settlement Agreement. Trex shall not be liable to Plaintiffs and the Class 

Members for any additional attorneys’ fees, representative fees, or expenses. All costs of court 

are taxed against the Parties incurring same. 

15. Retention of Jurisdiction. The Court has jurisdiction to enter this Final Order and 

Judgment. Without in any way affecting the finality of this Final Order and Judgment, this Court 

expressly retains exclusive and continuing jurisdiction over the Parties, including the Settlement 

Class, and all matters relating to the administration, consummation, validity, enforcement and 

interpretation of the Settlement Agreement and of this Final Order and Judgment, including, 

without limitation, for the purpose of: 

a. enforcing the terms and conditions of the Settlement Agreement and 

resolving any disputes, claims or causes of action that, in whole or in part, are related to or arise 

out of the Settlement Agreement, and/or this Final Order and Judgment (including, without 

limitation, whether a person or entity is or is not a Class Member; whether claims or causes of 

action allegedly related to this Action are or are not barred or released by this Final Order and 

Judgment, whether persons or entities are enjoined from pursuing any claims against Trex, etc.); 

b. entering such additional orders, if any, as may be necessary or appropriate 

to protect or effectuate this Final Order and Judgment and the Settlement Agreement (including, 

without limitation, orders enjoining persons or entities from pursuing any claims against Trex), or 

to ensure the fair and orderly administration of the Settlement; and 

c. entering any other necessary or appropriate orders to protect and effectuate 

this Court’s retention of continuing jurisdiction over the Settlement Agreement, the Parties, and 

the Class Members. 

16. No Admissions. Neither this Final Order and Judgment nor the Settlement 

Agreement (nor any other document referred to herein, nor any action taken to negotiate, 

effectuate and implement the Settlement) is, may be construed as, or may be used as an admission 

or concession by or against Trex as to the validity of any claim or any actual or potential fault, 

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wrongdoing or liability whatsoever. Additionally, neither the Settlement Agreement, nor any 

negotiations, actions, or proceedings related to them, shall be offered or received in evidence in 

any action or proceeding against Trex in any court, administrative agency or other tribunal for 

any purpose whatsoever, except to enforce the provisions of this Final Order and Judgment and 

the Settlement Agreement. This Final Order and Judgment and the Settlement Agreement may be 

filed and used by Trex or the Released Parties to seek an injunction and to support a defense of 

res judicata, collateral estoppel, estoppel, release, waiver, good-faith settlement, judgment bar or 

reduction, full faith and credit, or any other theory of claim preclusion, issue preclusion or similar 

defense or counterclaim. 

Certification shall be automatically vacated and this Final Order and Judgment shall 

become null and void if the Settlement Agreement is disapproved by any appellate court and/or 

any other court of review, or if Trex invokes its right to terminate this Settlement Agreement 

(pursuant to § P of the Settlement Agreement), in which event this Final Order and Judgment, the 

Settlement Agreement and the fact that they were entered into shall not be offered, received or 

construed as an admission or as evidence for any purpose, including the “certifiability” of any 

class as further discussed in § B of the Settlement Agreement. The Settlement Agreement itself, 

actions in conformance with the Settlement, and the other documents prepared or executed by any 

party in negotiating or implementing the Settlement called for by the Settlement Agreement, 

including any of the terms of any such documents, shall not be construed as an admission, waiver 

or estoppel by Trex and shall not be offered in evidence in or shared with any party to any civil, 

criminal, administrative, or other action or proceeding without Trex’s express written consent. 

17. Dismissal of Action. This action is dismissed to the extent it alleges Released 

Claims as defined in the Settlement Agreement. Dismissal of the Released Claims is on the 

merits and with prejudice against Plaintiffs and all other Class Members, without fees or costs to 

any party except as otherwise provided in this Final Order and Judgment and the Court’s separate 

order regarding attorneys’ fees and costs and class representative stipends. 

18. Final Judgment. This is a Final Judgment disposing of all Released Claims and all 

parties to the extent they assert those Released Claims. 

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SIGNED this ______ day of _________________________, 2009. 

 

 

The Honorable Jeremy Fogel 

UNITED STATES DISTRICT JUDGE 

7th April, 2010 -------

**Nunc Pro Tunc to March 15, 2010**

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APPENDIX A 

LIST OF OPT-OUTS EXCLUDED FROM THE CLASS

Case No. 5:09-CV-00670-JF (N.D. Ca.) 

Appendix A: Final List of Opt-Outs 

 Name Date State 

1 Adams, Gary 9/17/2009 CA 

2 Aitcheson, Wanda 9/9/2009 WV 

3 Alpert, Robert Lee 10/27/2009 CA 

4 Anderson, Richard M. 9/2/2009 CA 

5 Baker, James R. 9/7/2009 CA 

6 Baptista, Stephanie 10/20/2009 CA 

7 Barney, Nancy and Robert M. 9/1/2009 CA 

8 Baylis, David J. and Susan M. 10/25/2009 CA 

9 Bechtel, Henry W. 10/27/2009 CA 

10 Binder, Max 9/29/2009 CA 

11 Bogart, John C. 9/3/2009 AZ 

12 Bohannan, William and Martha 9/2/2009 CA 

13 Boise Central Park, LLC 10/12/2009 ID 

14 Brandt, Helen I. 9/12/2009 WA 

15 Bugna, Christine 9/14/2009 CA 

16 Carpenter, William 10/22/2009 CA 

17 Church, Ladonna and Bobby 10/27/2009 CO 

18 Clark, George 9/28/2009 CA 

19 Colasurdo, James 10/7/2009 WA 

20 Collom, Kurt S. and Darlene M. 9/4/2009 CA 

21 Colt, Doug 10/27/2009 CA 

22 Crawford, Alice 10/27/2009 CA 

23 Crisp, Ira 9/2/2009 OR 

24 Davey, William and Marcella 10/13/2009 CA 

25 De Benedetti, Tom 10/16/2009 CA 

26 Dexheimer, Monica 10/1/2009 OR 

27 Di Cristina, Marie and Ronald 9/22/2009 WA 

28 Dirksen, Josh 10/27/2009 OR 

29 Dolan, Karyn Foster 9/26/2009 CA 

30 Doty, James and Nancy 10/2/2009 ID 

31 Easton, Grant 8/31/2009 CA 

32 Etter, Larry and Mary 9/15/2009 CO 

33 Farnell, R. Richard 10/20/2009 CA 

34 Fernandes, Gary A. 10/28/2009 CA 

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35 Feusi, Thomas 10/27/2009 CA 

36 Firth, Sean D. 10/27/2009 UT 

37 Foxley, Cecelia H. 10/26/2009 UT 

38 Frankkamp, Leon H. 10/27/2009 CA 

39 Gilchrist, Jane 10/27/2009 CA 

40 Gregory, Duane 10/11/2009 WA 

41 Guthrie, Sharon and Ed 8/28/2009 CA 

42 Hanson, Clyde A. 10/17/2009 ID 

43 Hara, Kathryn 10/14/2009 WA 

44 Hardt, Robert and Lori 9/22/2009 AZ 

45 Hendrix, Tammy 9/24/2009 CA 

46 Hickam, James L. and Joanne M. 10/10/2009 WA 

47 Hill, Daniel A. 10/29/2009 OR 

48 Holm, Richard F. 9/25/2009 CA 

49 Horell, Carmelita and Archie 9/18/2009 WA 

50 Iker, Gilber H. and Thelma P. 9/2/2009 UT 

51 Inger, Ivan and Jeri 9/4/2009 OR 

52 James, Tommy L. 9/1/2009 UT 

53 Johnson, Andrew and Katherine 9/24/2009 CO 

54 Johnson, Walter and Helen 9/15/2009 WA 

55 Kaeske, Michael and Joanne 9/16/2009 UT 

56 Kaye, Anthony M. 10/25/2009 CA 

57 

Kensington-Fair Oaks Associates Joint 

Venture 10/15/2009 CA 

58 Klein, Arthur 8/28/2009 AZ 

59 Knox, William H. 10/9/2009 CO 

60 Kranser, Leonard 10/16/2009 CA 

61 Krauser, Sheryl and Larry B. 9/21/2009 WA 

62 Laing, Lawrence and Pamela 10/24/2009 WA 

63 Livermore Corners, L.P. 10/23/2009 CA 

64 Livermore Corners, LLC 10/23/2009 CA 

65 Lomagno, Mike 9/23/2009 CA 

66 Loucks, David C. and Sally K. 10/19/2009 CA 

67 Louis, John and Susan K.Rentz 9/23/2009 OR 

68 Ludemann, Mary B. 9/17/2009 WY 

69 Lynchild, Nancy 9/12/2009 OR 

70 Lyons, James E. and Mary Jane 10/20/2009 CA 

71 MacIvor, Evan and Mitsuko 8/25/2009 CA 

72 McCausland, Dave 10/9/2009 CA 

73 McConville, Robert B. and Virginia J. 10/27/2009 OR 

74 McCroy David and Roger Raiche 10/29/2009 

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75 Montana, Richard A. and Carmen H. 9/19/2009 OR 

76 Moore, Chuck 10/24/2009 OR 

77 Moore, Jerry 10/27/2009 CA 

78 Morris Kenneth E. and Jeanette E. 10/29/2009 CA 

79 Morrison, Joseph 10/26/2009 CA 

80 Neufeld, Gerald and Gail 8/31/2009 OR 

81 Parker, Rick K. 9/13/2009 CA 

82 Powell, Daniel and Lynne 9/1/2009 CA 

83 Press, Stanley 9/12/2009 CA 

84 Quinn, George and Weber, Mary 10/6/2009 OR 

85 Reynolds, Douglas 8/25/2009 CA 

86 Roberts, Whitney 10/30/2009 CA 

87 Rudd, Dorothy 9/4/2009 CA 

88 Rusca, John A. 8/31/2009 CA 

89 Sage, Russ 9/2/2009 CA 

90 Salerno, Darren J. and Constance J. 10/23/2009 NV 

91 Sand Bay Isle Homeowners 10/22/2009 CA 

92 Schmelzer, Randy 10/27/2009 OR 

93 Seikel, John A. and Paula 9/19/2009 ID 

94 Smith, Jeffrey D. 10/29/2009 CA 

95 Snyder, Bill 10/15/2009 AZ 

96 Southern, Richard 10/27/2009 CA 

97 Sperling, Sharol 10/20/2009 CA 

98 Stevens, Charles D. and Kathleen I 10/3/2009 CA 

99 Stone, Robert 9/13/2009 CO 

100 Susini, Reginald 10/5/2009 CA 

101 Swanson, Art 8/31/2009 OR 

102 Sweigart, Ruth 10/19/2009 OR 

103 The Tahoe Water World Family Trust 10/5/2009 NV 

104 Thornberry, R.C. and Linda 10/28/2009 CA 

105 Todd, Ken 10/10/2009 CA 

106 Trenner, Susan 9/1/2009 CA 

107 Unmack, Frank and Marilyn 10/22/2009 CA 

108 Vogt, Axel Lee 10/15/2009 CA 

109 Warner, Bruce E. 10/28/2009 CA 

110 Waters, Richard X. 9/30/2009 CA 

111 Welker, Mary Louise 10/23/2009 WA 

112 Wescott, Gordon L. 10/6/2009 OR 

113 Wetter, Tom and Gayle 9/11/2009 CA 

114 Wexler, Bruce D. and Dana M. 9/8/2009 CA 

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115 Witt, Jack 8/26/2009 NV 

116 Woolmington-Smith, Barbara and Craig 9/2/2009 CA 

117 Zazzu, Rosalie H. 9/25/2009 CA 

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