1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

IN RE: SHOP-VAC MARKETING AND : 

SALES PRACTICES LITIGATION : MDL No. 2380 

_____________________________________ : 

 : No. 4:12-md-2380 

THIS DOCUMENT RELATES TO: : 

 : (Judge Kane) 

ALL CASES : 

 : 

MEMORANDUM

Before the Court is the parties’ joint motion for preliminary approval of their proposed 

settlement agreement, preliminary certification of a nationwide settlement class, and approval of 

proposed form of notice. (Doc. No. 160.) For the reasons that follow, the Court will grant the 

motion and schedule a fairness hearing. 

I. BACKGROUND

Pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation transferred 

multiple cases involving the marketing of Shop-Vac brand wet/dry vacuums to this Court for the 

coordination of pretrial proceedings. (Doc. Nos. 1, 9, 22.) Plaintiffs Andrew Harbut, Alan 

McMichael, and Kris Reid filed the first consolidated amended complaint in the above-captioned 

multidistrict litigation on February 19, 2013 (Doc. No. 62), and the second consolidated 

amended complaint (“SCAC”) on September 12, 2013 (Doc. No. 97). In the SCAC, Plaintiffs 

Harbut, McMichael, and Reid allege, inter alia, that Defendants Shop-Vac Corporation, Lowe’s 

Home Centers, Inc., and Lowe’s HIW, Inc. made fraudulent and misleading representations 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 1 of 14
2 

about the peak horsepower and tank capacity of Shop-Vac brand wet/dry vacuums.1

 (Doc. No. 

97; see Doc. No. 162-2 at 2.) 

On October 25, 2013, Defendants Shop-Vac Corporation, Lowe’s Home Centers, Inc., 

and Lowe’s HIW, Inc. moved to dismiss the SCAC pursuant to Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6). (Doc. No. 102.) This Court granted in part and denied in part 

Defendants’ motion to dismiss. (Doc. Nos. 115, 116.) Thereafter, on August 13, 2015, the 

parties entered into mediation with the Honorable Edward A. Infante, retired Chief Magistrate 

Judge of the United States District Court for the Northern District of California. (Doc. No. 140 ¶ 

2.) In September 2015, the parties reached an agreement in principle to settle, (Doc. Nos. 140 ¶ 

3; 161 at 16; 162-1 at 11, 43), and continued negotiating until March 2016 with the assistance of 

Judge Infante (Doc. No. 156). 

On April 1, 2016, Plaintiffs Andrew Harbut, Alan McMichael, Kris Reid, David 

Palomino, and Scott Giannetti and Defendants Shop-Vac Corporation and Lowe’s Home 

Centers, LLC jointly filed the present motion, requesting that the Court: (1) preliminarily 

approve their proposed settlement agreement; (2) “preliminarily” certify the proposed settlement 

class; (3) appoint representatives of the settlement class, liaison counsel, and class counsel for 

the settlement class; (4) approve the proposed form of notice; and (5) schedule a fairness 

                                                             1

 Plaintiffs David Palomino and Scott Giannetti brought a parallel, class action lawsuit 

against Defendant Shop-Vac for breach of the New Jersey Consumer Fraud Act and for breach 

of warranty in the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 

BER-L-1399-12 (the “New Jersey Action”). (Doc. No. 162-1 at 1-3; see Doc. No. 12-5 at 3-15.) 

On February 6, 2015, the New Jersey “state court certified a class of consumers who are New 

Jersey citizens who purchased Shop-Vac brand wet/dry vacuums in New Jersey between 

February 1, 2006 and May 8, 2015.” (Doc. No. 161 at 13.) The New Jersey Action is currently 

stayed pending the “completion of federal proceedings.” (Id.) The proposed settlement 

agreement would release claims against Defendant Shop-Vac in the New Jersey Action. (Doc 

No. 162-1 at 1.) 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 2 of 14
3 

hearing.2

 (Doc. No. 160.) In support thereof, the parties submitted a supporting brief (Doc. No. 

161), and attached a copy of the class action settlement agreement (Doc. No. 162-1). The Court 

addresses the parties’ requests in turn. 

II. DISCUSSION

Federal Rule of Civil Procedure 23(e) governs the settlement of class actions and the 

procedures that apply for review of a class settlement. Fed. R. Civ. P. 23(e); see In re Nat. 

Football League Players Concussion Injury Litig., 775 F.3d 570, 581 (3d Cir. 2014) (interior 

quotations omitted). The Court first undertakes a review of the proposed class settlement for 

preliminary approval. 

A. Preliminary approval of class settlement 

The parties jointly move this Court to grant preliminary approval of their proposed 

settlement agreement. (Doc. No. 160.) 

Preliminary approval of a proposed class action settlement “establishes an initial 

presumption of fairness,” In re Gen. Motors Corp., 55 F.3d 768, 785 (3d Cir. 1995) (citing 

Newberg on Class Actions § 11.41 (3rd ed.)), and guides “whether notice of the proposed 

settlement should be sent to the class.” Newberg on Class Actions § 13:13 (5th ed.). The 

purpose of this preliminary determination is “not to make a final determination of the 

settlement’s fairness,” id., or simply to issue a “judicial rubber stamp of the parties’ agreement.” 

In re Nat’l Football League Players’ Concussion Injury Litig., 961 F. Supp. 2d 708, 714 (E.D. 

Pa. 2014). As such, district courts examine whether the proposed agreement arose out of 

“serious, informed non-collusive negotiations,” has any “obvious deficiencies,” “improperly 

                                                             2

 The Court will refer to Plaintiffs Andrew Harbut, Alan McMichael, Kris Reid, David 

Palomino, and Scott Giannetti and Defendants Shop-Vac Corporation and Lowe’s Home 

Centers, LLC collectively as “the parties.” 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 3 of 14
4 

grant[s] preferential treatment to class representatives or segments of the class,” and “falls within 

the range of possible approval.” E.g., In re Nasdaq Market–Makers Antitrust Litig., 176 F.R.D. 

99, 102 (S.D.N.Y. 1997) (citing Manual for Complex Litigation § 30.41 (3rd ed.)); see In re Gen. 

Motors Corp., 55 F.3d at 785. 

Here, the Court is satisfied that the proposed settlement agreement arose out of “serious, 

informed, non-collusive negotiations.” In re Nasdaq, 176 F.R.D. at 102. The parties engaged in 

three years of discovery (Doc. No. 161 at 22), pursued significant motion practice prior to 

agreeing to mediation (Doc. Nos. 68, 77, 102, 107), entered into settlement discussions with a 

third-party mediator, Judge Infante (Doc. No. 161 at 23), and spent seven months negotiating the 

terms of the settlement agreement (id. at 24). The parties also emphasize, in their supporting 

brief, the scope of the discovery conducted. (Doc. No. 161 at 22-23.) Plaintiffs’ counsel 

describes having reviewed 22,000 pages of Defendants’ documents, taking and defending 

multiple depositions, and consulting with several experts. (Id.) Thus, the Court is persuaded that 

the proposed settlement agreement arose out of “serious, informed, non-collusive negotiations.” 

In re Nasdaq, 176 F.R.D. at 102; see In re Gen. Motors Corp., 55 F.3d at 785 (discussing the 

factors to consider at the preliminary approval stage). 

Similarly, as to the terms of the agreement, the Court is satisfied that the agreement has 

no “obvious deficiencies” and “falls within the range of possible approval.” In re Nasdaq, 176 

F.R.D. at 102. “To determine whether a settlement falls within the range of possible approval, a 

court must consider plaintiffs’ expected recovery balanced against the value of the settlement 

offer.” In re Nat’l Football League Players’ Concussion Injury Litig., 961 F. Supp. 2d 708, 714 

(E.D. Pa. 2014) (internal quotations and citations omitted). The proposed settlement amount 

does not have to be “dollar-for-dollar the equivalent of the claim,” In re Ionosphere Clubs, Inc., 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 4 of 14
5 

156 B.R. 414, 427 (S.D.N.Y. 1993), and a “satisfactory settlement” may only “amount to a 

hundredth or even a thousandth part of a single percent of the potential recovery.” City of 

Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir. 1974). 

The proposed settlement agreement provides, inter alia, for an extension of the 

manufacturer’s warranty on the motors of the Shop-Vac brand wet/dry vacuums by twenty-four 

months, requires Shop-Vac to change how it refers to “peak horsepower” on its marketing 

materials, and “alters the existing tank gallon legend” of the vacuums. (Doc. No. 162-1 at 12-

13.) Defendants agree not to oppose Faruqi & Faruqi, LLP, Lax LLP, Lite DePalma Greenberg, 

LLC, and Milberg LLP’s request for $4,250,000 in attorneys’ fees and expenses. (Doc. No. 162-

1 at 5, 18.) In exchange thereof, the proposed class settlement would release, inter alia, all 

claims that any member of the settlement class has or may have in the future against Defendants: 

(a) has alleged in the Lawsuits or (b) could have been alleged in the Lawsuits or 

in another action and relates (i) to any of the alleged inadequacies, misstatements, 

or issues of with the Vacuums alleged in the Lawsuits or (ii) to any act, omission, 

matter, cause, or event whatsoever arising out of or related to the initiation, or 

settlement of the Lawsuits or the claims or defenses asserted or that could been 

asserted in the Lawsuits. 

(Id. at 7-8, 19-20.) The settlement agreement also provides that counsel may submit to the Court 

an application “seeking awards to Plaintiffs not to exceed $5,000 each.” (Id. at 18.) 

In light of the risks faced by Plaintiffs in continuing litigation and the benefits provided 

under the proposed settlement agreement, the Court finds that the proposed settlement agreement 

falls within the range of possible approval for purposes of preliminary approval. The parties 

estimate the retail value of the extended warranties amount “well into the millions of dollars.” 

(Doc. No. 161 at 26.) The proposed payment of $4,250,000 in attorneys’ fees and expenses is 

“separate from and in addition to the relief afforded” to the settlement class. (Id. at 27.) 

Furthermore, proposed monetary awards to Plaintiffs represent incentive awards, which are 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 5 of 14
6 

permissible in class action litigation and appear reasonable at this stage. Sullivan v. DB Inv., 

Inc., 667 F.3d 273, 333 n.65 (3d Cir. 2011). Accordingly, the Court will preliminarily approve 

the proposed settlement agreement. 

B. Preliminary certification of a nationwide settlement class 

The parties also jointly move the Court to preliminarily certify a nationwide settlement 

class pursuant to Federal Rule of Civil Procedure 23(b)(3). (Doc. No. 161 at 7; see Doc. No. 

162-1 at 10, 43.) In support thereof, the parties represent that the proposed settlement class 

satisfies the requirements under Federal Rules of Civil Procedure 23(a) and 23(b)(3). (Doc. No. 

161 at 27.) 

At the preliminary approval stage of a class action settlement, a court may preliminarily 

certify the class for purposes of providing “notice to absent class members.” See In re NFL 

Players Litig., 775 F.3d at 584; In re: Amtrak Train Derailment in Phila., Pa., No. 15-2654, 2016 

WL 1359725, at *4 (E.D. Pa. Apr. 6, 2016). In making this preliminary determination, district 

courts examine whether “the proposed class satisfies the criteria set out in Rule 23(a) and at least 

one of the subsections of Rule 23(b).” E.g., Smith v. Prof’l Billing & Mgmt. Servs., Inc., No. 

06-4453, 2007 WL 4191749, at *2 (D.N.J. Nov. 21, 2007) (citing Manual for Complex 

Litigation § 21.632 (4th ed.)). This preliminary determination employs a “less rigorous analysis 

than that necessary for final certification” because courts conduct a “fairness hearing in order to 

issue a final class certification and approve the settlement.” See In re: Amtrak Train Derailment, 

2016 WL 1359725, at **2, 4 (E.D. Pa. Apr. 6, 2016). 

The Court addresses, in turn, Federal Rules of Civil Procedure 23(a) and 23(b)(3)’s 

requirements for maintaining a class action. Fed. R. Civ. P. 23(a), (b)(3). 

1. Proposed Settlement Class Definition 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 6 of 14
7 

The proposed settlement class corresponds to “each person in the United States and its 

territories who, from January 1, 2006 to the date of entry of the Preliminary Approval Order, 

either (1) purchased a Vacuum3

, or (2) received a Vacuum as a gift, or (3) acquired possession of 

a Vacuum through other lawful means.” (Doc. No. 162-1 at 9; see Doc. No. 161 at 17.) The 

proposed class definition excludes, inter alia, persons or entities who acquired a vacuum for the 

purpose of resale, Defendants’ employees, and putative settlement class members who properly 

and timely opt-out of the proposed settlement. (Doc. No. 162-1 at 9.) The Court considers this 

proposed class definition sufficiently “precise, objective and presently ascertainable” for 

purposes of this preliminary determination. Manual for Complex Litigation § 21.222 (4th ed.)

2. Numerosity 

Federal Rule of Civil Procedure 23(a) provides four prerequisites to maintaining a class 

action: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 

23(a). The numerosity requirement is satisfied if “the class is so numerous that joinder of all 

members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No minimum number of plaintiffs is 

required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that 

the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” 

Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). Here, the parties claim that millions 

of Shop-Vac vacuums were sold during the class period (Doc. Nos. 161 at 28, 37; see Doc. No. 

162-1 at 40), and submit testimony that “known Class Members will exceed 1 million” (Doc. No. 

162-1 at 80).4

 Therefore, Rule 23(a)’s numerosity requirement is met. 

                                                             3

 The proposed settlement agreement defines “Vacuums” as “Shop-Vac brand wet/dry 

vacuums sold in the United States and its territories during the Class Period.” (Doc. No. 162-1 at 

10.) 

4

 In the proposed order, the parties also agree that “persons and entities throughout the 

nation purchased thousands of [Shop-Vac] Vacuums.” (Doc. No. 162-1 at 40.) 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 7 of 14
8 

3. Commonality 

The second Rule 23(a) prerequisite requires that “there are questions of law or fact 

common to the class.” Fed. R. Civ. P. 23(a)(2). “A putative class satisfies Rule 23(a)’s 

commonality requirement if ‘the named plaintiffs share at least one question of fact or law with 

the grievances of the prospective class.’” Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d 

Cir. 2013) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). “Their claims must 

depend upon a common contention ... that it is capable of classwide resolution—which means 

that determination of its truth or falsity will resolve an issue that is central to the validity of each 

of the claims in one stroke.” In re Nat’l Football League Players Concussion Injury Litig., No. 

15-2206, 2016 WL 1552205, at *7 (3d Cir. Apr. 18, 2016) (quoting Wal-Mart Stores, Inc. v. 

Dukes, 564 U.S. 338, 350 (2011)). 

Here, the parties argue that a “common question that cuts across every claim of every 

Settlement Class Member is whether Defendants misrepresented the peak horsepower and tank 

capacity” of Shop-Vac vacuums. (Doc. No. 161 at 28.) The Court agrees. See Rodriguez v. 

Nat’l City Bank, 726 F.3d 372, 383 (3d Cir. 2013) (“[T]here may be many legal and factual 

differences among the members of a class, as long as all were subjected to the same harmful 

conduct by the defendant.”). For purposes of preliminary certification, the commonality 

requirement is satisfied. 

4. Typicality 

Rule 23(a)(3)’s typicality requirement demands that the “claims or defenses of the 

representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). 

The Third Circuit has “set a ‘low threshold’ for typicality. Even relatively pronounced factual 

differences will generally not preclude a finding of typicality where there is a strong similarity of 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 8 of 14
9 

legal theories’ or where the claim arises from the same practice or course of conduct.” In re NFL 

Players Litig., 2016 WL 1552205, at *8 (internal citations omitted). 

Here, the parties contend in their supporting brief that named “Plaintiffs’ claims and the 

claims of all other Settlement Class Members arise from the same conduct, Defendants’ pattern 

of overstating the ‘peak horsepower’ and tank capacity of the Vacuums.” (Doc. No. 161 at 30; 

see Doc. No. 12-5 at 5.) The Court finds that the typicality requirement is tentatively satisfied 

for purposes of providing “notice to absent class members.” See In re NFL Players Litig., 775 

F.3d at 584. 

5. Adequacy of representation 

The fourth Rule 23(a) prerequisite provides that “representative parties [must] fairly and 

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “This requires a 

determination of (1) whether the representatives’ interests conflict with those of the class and (2) 

whether the class attorney is capable of representing the class.” Newton v. Merrill Lynch, 

Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001). Upon review of the record, the 

Court is persuaded that the competence and experience evidenced by Plaintiffs’ interim counsel 

in this MDL satisfies Rule 23(a)’s adequacy requirement. 

6. Rule 23(b)(3): Common questions of law and fact predominate 

In addition to satisfying the four Rule 23(a) prerequisites, the parties must also 

demonstrate that the proposed class “satisf[ies] at least one of the three requirements listed in 

Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Here, the parties rely 

on Rule 23(b)(3), which applies when (1) “questions of law or fact common to class members 

predominate over any questions affecting only individual members,” and (2) when “a class 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 9 of 14
10 

action is superior to other available methods for fairly and efficiently adjudicating the 

controversy.” Fed. R. Civ. P. 23(b)(3); see Dukes, 564 U.S. at 345. 

The first inquiry – the “predominance inquiry” – tests “whether the defendant’s conduct 

was common as to all of the class members, and whether all of the class members were harmed 

by the defendant's conduct.” Sullivan v. DB Investments, Inc., 667 F.3d 273, 298 (3d Cir. 2011). 

The parties stress that “predominance is satisfied” for two reasons. First, the issues relevant to 

the settlement class center on Defendants’ conduct, rather than Plaintiff’s actions. (Doc. No. 161 

at 33.) Second, questions such as whether the Shop-Vac vacuums “reach their advertised ‘peak 

horsepower’” or tank capacity is an issue susceptible to generalized proof. (Id.) For purposes of 

preliminary certification, the Court is satisfied that common questions surrounding Defendants’ 

alleged misrepresentation and fraud appear to predominate over individual questions of law or 

fact. See Sullivan, 667 F.3d at 297-98; In re Linerboard Antitrust Litig., 305 F.3d 145, 163 (3d 

Cir. 2002). 

The second inquiry – the superiority inquiry – “asks a district court to balance, in terms 

of fairness and efficiency, the merits of a class action against those of alternative available 

methods of adjudication.” In re Cmty. Bank of N. Virginia Mortgage Lending Practices Litig., 

795 F.3d 380, 409 (3d Cir. 2015) (interior citation omitted). The parties argue that class 

treatment is superior because the “size of each Settlement Class Member’s alleged loss is too 

small to be economically litigated outside of a class action.” (Doc. No. 161 at 34.) The Court 

agrees. Considering the amount of the alleged loss, settlement appears to be “a more desirable 

outcome for the class than individualized litigation.” In re Gen. Motors Corp. Pick-Up Truck 

Fuel Tank Products Liab. Litig., 55 F.3d 768, 796 (3d Cir. 1995). 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 10 of 14
11 

Thus, having found preliminarily that predominance and superiority are satisfied, the 

Court will preliminarily certify the proposed class for purposes of providing “notice to absent 

class members.” See In re NFL Players Litig., 775 F.3d at 584. 

C. Proposed notice to class 

The parties also move the Court to approve the proposed means of notifying class 

members. (Doc. Nos. 161 at 36; 162-1 at 15). In doing so, the parties ask the Court to approve 

Epiq Systems Class Action and Claims Solutions (“Epiq Systems”) as the settlement 

administrator. (Doc. No. 162-1 at 9, 13, 48.) The parties submitted a proposed settlement notice 

(id. at 10, 56), posted notice (id. at 7, 58-68), publication notice (id. at 8, 70), and a proposed 

plan for disseminating the notice (id. at 72). 

Federal Rule of Civil Procedure 23(c)(2)(B) requires the “best notice that is practicable 

under the circumstances” to be given to potential members of a Rule 23(b)(3) class, “including 

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. 

P. 23(c)(2).5 Here, the parties seek to certify a settlement class pursuant to Federal Rule 

23(b)(3). Therefore, under Rule 23(c)(2)(B), “[t]he notice must clearly and concisely state in 

plain, easily understood language” the following: 

(i) the nature of the action; (ii) the definition of the class certified; (iii) the class 

claims, issues, or defenses; (iv) that a class member may enter an appearance 

through an attorney if the member so desires; (v) that the court will exclude from 

the class any member who requests exclusion; (vi) the time and manner for 

requesting exclusion; and (vii) the binding effect of a class judgment on members 

under Rule 23(c)(3). 

                                                             5

 Similarly, Federal Rule of Civil Procedure 23(e)(1) requires the court to “direct notice 

in a reasonable manner to all class members” of a proposed settlement agreement. Fed. R. Civ. 

P. 23(e)(1); see In re Prudential Ins., 148 F.3d at 326. “The Rule 23(e) notice is designed to 

summarize the litigation and the settlement and ‘to apprise class members of the right and 

opportunity to inspect the complete settlement documents, papers, and pleadings filed in the 

litigation.’” In re Prudential Ins., 148 F.3d at 327 (quoting 2 Newberg on Class Actions § 8.32). 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 11 of 14
12 

Fed. R. Civ. P. 23(c)(2)(B). “In addition to the requirements of Rule 23, due process 

further requires that notice be ‘reasonably calculated, under all the circumstances, to 

apprise interested parties of the pendency of the action and afford them an opportunity to 

present their objections.’” In re NFL Players Litig., 2016 WL 1552205, at *16 (quoting 

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 

The parties propose, in relevant part, that Epiq Systems would disseminate a copy of the 

settlement notice (Doc. No. 162-1 at 56), within twenty-one days to every member of the 

settlement class who “reasonably can be identified in Defendants’ records” by email address or 

mailing address (Doc. No. 162-1 at 15-17, 81-82). Defendants or Epiq Systems would further 

disseminate notices in People Magazine, Family Handyman, Facebook, and the Conversant Ad 

Network within twenty-one days. (See id.) The parties’ proposed notice plan also includes 

sponsoring search listings on Internet search engines, including Google, Yahoo! and Bing, 

establishing an informational website, www.ShopVacPHPSettlement.com, and providing a tollfree number for additional information. (Doc. No. 162-1 at 82-84.) The parties submitted expert 

input that the proposed notice targets “adults 18 years and older who shop at Lowes” and would 

“reach at least 70.2% of Settlement Class Members an average of 2.5 times each.” (Doc. No. 

162-1 at 80.) Defendants propose to pay for the costs of preparing and disseminating the notices. 

(Doc. No. 162-1 at 17.) 

 Having reviewed the proposed notices and the proposed notice plan, the Court is 

satisfied that the parties’ proposed notices and notice plan satisfy Federal Rules of Civil 

Procedure 23(c)(2)(B) and 23(e)(1) as well as due process. The proposed settlement notice is 

individualized in nature (Doc. No. 162-1 at 47, 77, 80), describes the nature of the action, defines 

the proposed settlement class, identifies the class claims, provides that class members may 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 12 of 14
13 

appear through an attorney, permits members to opt-out of the settlement, and addresses the 

binding effect of the judgment. Fed. R. Civ. P. 23(c)(2)(B) (id. at 56). The proposed “posted 

notice” further apprises class members of the opportunity to inspect settlement documents and 

pleadings filed in the above-captioned MDL. (Doc. No. 162-1 at 60, 68.) The proposed notices 

are altogether informative and easy to read; the notice plan appears designed to reach the class 

efficiently. 

Accordingly, the Court will approve the proposed settlement notice, publication notice, 

and proposed notice plan. The Court will also approve the proposed “posted notice,” (Doc. No. 

162-1 at 7, 58-68), excepting Section 13’s discussion of class counsel (id. at 64) for reasons 

discussed below, 6 and approve “Epiq Systems” to serve as the settlement administrator. 

D. Appointment of class counsel and class representatives 

On January 17, 2013, this Court appointed Milberg LLP, Lax LLP and Faruqi & Faruqi 

LLP as Plaintiffs’ interim class counsel, and Dilworth Paxson LLP as Plaintiffs’ interim liaison 

counsel. (Doc. No. 56.) The parties move the Court to appoint class counsel for the settlement 

class and representatives of the settlement class.7 

The application for class counsel “is generally submitted as part of the certification 

motion.” Manual Complex Lit. § 21.273 (4th ed.). In fact, the Third Circuit has stated that “a 

district court’s decision to certify a class must precede the appointment of class counsel.” 

Sheinberg v. Sorensen, 606 F.3d 130, 132 (3d Cir. 2010) (emphasis added); see Newberg on 

Class Actions § 3:84 (5th ed.) (“[I]t is clear that a court must appoint class counsel at the same 

                                                             6

 Section 13 of the proposed “posted notice,” (Doc. No. 162-1 at 64) should be amended 

in accordance with the Court’s decision declining to appoint class counsel at this preliminary 

stage. See Sheinberg v. Sorensen, 606 F.3d 130, 132 (3d Cir. 2010). 

7

 The parties request the additional appointment of Lite DePalma Greenberg, LLC, which 

was appointed as class counsel along with Milberg LLP and Lax LLP in the New Jersey Action. 

(Doc. No. 161 at 35 n.8.) 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 13 of 14
14 

time it certifies the class.”). Here, only the parties’ motion for preliminary certification is before 

the Court. (Doc. No. 160.) Therefore, the Court will decline to appoint class counsel, liaison 

counsel, or class representatives at this preliminary stage. See Sheinberg, 606 F.3d at 132. 

III. CONCLUSION

For the reasons stated above, the Court will grant the parties’ joint motion for preliminary 

approval of class settlement and for preliminary certification of a nationwide settlement class. 

(Doc. No. 160.) The Court will also approve the proposed settlement notice, publication notice, 

proposed notice plan, and amended posted notice. An order consistent with this memorandum 

follows. 

Case 4:12-md-02380-YK Document 164 Filed 05/26/16 Page 14 of 14