i

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (CINCINNATI)

SARA HAWES, et al.,

Plaintiffs,

v.

MACY’S WEST STORES, INC.,

Defendant.

CHIARALUCE, et al.,

Plaintiffs,

v.

MACY’S INC., et al.,

Defendants.

Civil Action: 1:17-CV-00754

Judge Douglas R. Cole

Civil Action: 2:20-CV-00081

Judge Douglas R. Cole

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY

APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .................................................................................... 1

II. STATEMENT OF FACTS ............................................................................................. 3

A. Plaintiffs’ claims......................................................................................................... 3

B. The Court denies Macy’s motion to dismiss............................................................... 3

C. Plaintiffs engaged in extensive discovery and expert analysis................................... 3

D. The Court grants class certification and the Sixth Circuit denies Macy’s Rule 23(f) 

petition ........................................................................................................................ 4

E. The parties negotiate the settlement............................................................................ 5

F. Settlement terms.......................................................................................................... 6

1. The Settlement Class................................................................................................... 6

2. The relief to Settlement Class Members..................................................................... 6

3. The proposed release................................................................................................... 7

4. The Proposed Settlement Claims Administrator, notice, and the claims process....... 7

i. Claims Administrator.............................................................................................. 7

ii. Notice...................................................................................................................... 7

iii. Requests for exclusion and objections.................................................................... 9

iv. CAFA notice ........................................................................................................... 9

v. Claims process...................................................................................................... 10

5. Attorneys’ fees and compensation for the Named Representatives.......................... 10

III. ARGUMENT................................................................................................................ 10

A. The proposed settlement meets the requirements for preliminary approval............. 10

1. The settlement is fair, reasonable, and adequate....................................................... 12

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2. Class Counsel and the Class Representatives adequately represented the Settlement 

Class...................................................................................................................... 13

3. The Settlement was negotiated without fraud or collusion at arm’s length after 

extensive discovery............................................................................................... 14

4. The relief provided by the proposed settlement is adequate..................................... 18

5. The costs, risks, and delay of trial and appeal favor preliminary approval .............. 20

6. The remaining Rule 23(e)(2)(c) factors weigh in favor of preliminary approval..... 22

7. The proposed relief treats Settlement Class members fairly relative to one another 

without preferential treatment to the Named Plaintiffs......................................... 22

8. The remaining traditional Sixth Circuit factors favor preliminary approval ............ 23

i. The opinions of Class Counsel and Class Representatives................................... 23

ii. Reaction of Class members................................................................................... 24

iii. Public interest........................................................................................................ 24

B. Preliminary approval is warranted because the court will likely be able to certify the 

Settlement Class........................................................................................................ 25

1. The Settlement Class meets the requirements of Rule 23(a) .................................... 25

i. Numerosity............................................................................................................ 25

ii. Commonality......................................................................................................... 26

iii. Typicality .............................................................................................................. 26

iv. Adequacy .............................................................................................................. 27

2. The Settlement Class meets the requirements of Rule 23(b)(3) ............................... 28

i. Predominance........................................................................................................ 28

ii. Superiority............................................................................................................. 29

3. Certification pursuant to Rule 23(b)(2) with respect to injunctive relief is proper... 30

C. The Court should direct notice to the Class.............................................................. 31

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D. The Court should approve Angeion as Notice and Claims Administrator ............... 34

E. A final fairness hearing should be scheduled and the court should provide a schedule 

leading up to the fairness hearing ............................................................................. 34

IV. CONCLUSION............................................................................................................. 35

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TABLE OF AUTHORITIES

Cases

Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997)........................................................... 29, 32

Amos v. PPG Indus, No. 2:05-cv-70, 2015 WL 4881459 (S.D. Ohio Aug. 13, 2015)11, 16, 20, 22

Amos v. PPG Indus., Inc., No. 2:05-CV-70, 2019 WL 3889621 (S.D. Ohio Aug. 16, 2019 ....... 15

Arbuthnot v. Pierson, 607 F. App’x 73 (2d Cir. 2015)................................................................. 31

Bartell v. LTF Club Operations Co., Inc., No. 2:14-CV-401, 2020 WL 7062834 (S.D. Ohio Aug. 

7, 2020) ......................................................................................................................... 16, 17, 21

Bautista v. Twin Lakes Farms, Inc., No. 104-CV-483, 2007 WL 329162 (W.D. Mich. Jan. 31, 

2007) ......................................................................................................................................... 11

Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) ............................................................ 29

Bert v. AK Steel Corp., No. 1:02-CV-467, 2008 WL 4693747 (S.D. Ohio Oct. 23, 2008)........... 17

Blasi v. United Debt Servs., LLC, No. 2:14-CV-83, 2019 WL 6050963 (S.D. Ohio Nov. 15, 

2019) ................................................................................................................................... 16, 21

Brotherton v. Cleveland, 141 F. Supp. 2d 894 (S.D. Ohio 2001); In re Southern Ohio Corr. 

Facility, 173 F.R.D. 205 (S.D. Ohio 1997)............................................................................... 12

Burgos v. Sunvalleytek Int’l, No. 18-cv-06910-HSG, 2021 U.S. Dist. LEXIS 132931 (N.D. Cal. 

May 10, 2021)........................................................................................................................... 19

Chiaraluce v. Macy’s Inc., No. 2:20-CV-081 (S.D. Ohio)............................................................. 3

Date v. Sony Elecs., Inc., No. 07-15474, 2013 WL 3945981 (E.D. Mich. July 31, 2013)........... 19

Day v. Air Methods Corp., No. 5:17-CV-183-CHB, 2019 WL 3976511 (E.D. Ky. Aug. 22, 2019)

................................................................................................................................................... 23

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Day v. AMC Corp., No. 5:17-CV-183-CHB-MAS, 2019 WL 3977253 (E.D. Ky. July 26, 2019)

................................................................................................................................................... 23

Dickman v. Banner Life Ins. Co., Civil Action No. 1:16-cv-00192-RDB 2019 WL 6716365 (D. 

Md. Oct. 17, 2019).................................................................................................................... 30

Doe v. Ohio, No. 2:91-CV-00464, 2020 WL 728276 (S.D. Ohio Feb. 12, 2020)...... 13, 14, 15, 20

Edwards v. N. Am. Power & Gas, LLC, No. 3:14-cv-01714(VAB), 2018 U.S. Dist. LEXIS 

130535 (D. Conn. Aug. 3, 2018) .............................................................................................. 21

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)..................................................................... 31

Fenley v. Wood Grp. Mustang, Inc., 325 F.R.D. 232 (S.D. Ohio 2018) ................................ 25, 27

Franks v. Kroger Co., 649 F.2d 1216 (6th Cir. 1981)................................................................... 10

Frost v. Household Realty Corp., 61 F. Supp. 3d 740 (S.D. Ohio 2004)..................................... 34

Givens v. Van Devere, Inc., 2012 WL 4092803 (N.D. Ohio 2012).............................................. 27

Guttmann v. Ole Mexican Foods, Inc., No. 14-cv-04845-HSG, 2015 U.S. Dist. LEXIS 154046 

(N.D. Cal. Nov. 13, 2015)......................................................................................................... 19

Hadix v. Johnson, 322 F.3d 895 (6th Cir. 2003)........................................................................... 23

Humphrey v. Stored Value Cards, No. 1:18-CV-01050, 2021 WL 110786 (N.D. Ohio Jan. 12, 

2021) ............................................................................................................................. 13, 15, 23

Hyland v. Homeservices of Am., Inc., No. 3:05-CV-612-R, 2009 WL 2525587 (Aug. 17, 2009)11

In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d Cir. 2013)................................................... 31

In re Broadwing, Inc. ERISA, 252 F.R.D. 369 (S.D. Ohio 2006) ................................................. 11

In re Countrywide Fin. Corp. Customer Data Sec. Breach Litig., No. 3:08-MD-01998, 2009 WL 

5184352 (W.D. Ky. Dec. 22, 2009).......................................................................................... 31

In re Ins. Broker Antitrust Litig., 297 F.R.D. 136 (D.N.J. 2013).................................................. 33

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In re Nat'l Football League Players Concussion Inj. Litig., 821 F.3d 410 (3d Cir. 2016)........... 31

In re Prandin Direct Purchaser Antitrust Litig., No. 2:10-CV-12141-AC-DAS, 2014 WL 

8335997 (E.D. Mich. Oct. 2, 2014) .......................................................................................... 12

In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998)..... 32

In re Skechers Toning Shoe Prod., No. 3:11-MD-2308-TBR, 2012 WL 3312668 (W.D. Ky. Aug. 

13, 2012) ............................................................................................................................. 12, 19

In re Sonic Corp. Customer Data Sec. Breach Litig., No. 1:17-MD-2807, 2019 WL 3773737 

(N.D. Ohio Aug. 12, 2019) ....................................................................................................... 13

In re Telectronics Pacing Systems, Inc., 137 F. Supp. 2d 985 (S.D. Ohio 2001)......................... 20

In re: Whirlpool Corp. Front-loading Washer Prod. Liab. Litig., No. 1:08-WP-65000, 2016 WL 

5338012 (N.D. Ohio Sept. 23, 2016)........................................................................................ 19

Intercommunity Justice & Peace Ctr. V. Registrar, Ohio Bureau of Motor Vehicles, No. 2:18-

CV-1247, 2020 WL 832815 ......................................................................................... 25, 26, 28

Kimber Baldwin Designs, LLC v. Silv Commc’ns, Inc., No. 1:16-CV-448, 2017 WL 5247538 

(S.D. Ohio Nov. 13, 2017).................................................................................................. 16, 21

Littlejohn v. Copland, 819 F. App’x 491 (9th Cir. 2020)............................................................. 20

Macy v. GC Servs. Ltd. P’ship, No. 3:15-CV-819-DJH-CHL, 2019 WL 6684522 (W.D. Ky. Dec. 

6, 2019) ............................................................................................................................... 12, 13

Miller v. Ghirardelli Chocolate Co., No. C 12-04936 LB, 2014 U.S. Dist. LEXIS 141111 (N.D. 

Cal. Oct. 2, 2014)................................................................................................................ 19, 20

Ostendorf v. Grange Indem. Ins. Co., No. 2:19-CV-1147, 2020 WL 5366380 (S.D. Ohio Sept. 8, 

2020) ............................................................................................................................. 13, 20, 24

Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th Cir. 1982).......................................................... 27

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Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ................................................................ 32

Rikos v. Proctor & Gamble Co., No. 1:11-CV-226, 2018 WL 2009681 (S.D. Ohio Apr. 30, 2018)

................................................................................................................................................... 19

Roland v. Convergys Customer Mgmt. Grp. Inc., No. 1:15-CV-00325, 2017 WL 977589 (S.D. 

Ohio Mar. 10, 2017).................................................................................................................. 17

Roland v. Convergys Customer Mgmt. Grp., Inc., No. 1:15-CV-00325, 2017 WL 4873343 (S.D. 

Ohio Jan. 10, 2017)................................................................................................................... 11

Ross v. Abercrombie & Fitch Co., 257 F.R.D. 435 (S.D. Ohio 2009).............................. 25, 26, 28

Rotondo v. JPMorgan Chase Bank, N.A., No. 2:19-CV-2328, 2019 WL 6167086 (S.D. Ohio 

Nov. 20, 2019) .......................................................................................................................... 21

Satterly v. Airstream, Inc., No. 3:19-CV-107, 2020 WL 6536342 (S.D. Ohio Sept. 25, 2020).. 16, 

23, 24

Senter v. Gen. Motors Corp., 531 F.2d 511 (6th Cir. 1976)......................................................... 27

Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998)...................................................... 29

Stanley v. Turner Oil & Gas Properties, Inc., No. 2:16-CV-386, 2018 WL 2928028 (S.D. Ohio 

June 12, 2018)........................................................................................................................... 15

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996)................................................. 32

Vassalle v. Midland Funding LLC, 708 F.3d 747 (6th Cir. 2013).......................................... 13, 22

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)............................................................ 26, 27

Ware v. CKF Enterprises, Inc., No. CV 5:19-183-DCR, 2020 WL 2441415 (E.D. Ky. May 12, 

2020) ......................................................................................................................................... 24

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012)............................................... 29

Yue v. Conseco Life Ins. Co., 282 F.R.D. 469 (C.D. Cal. 2012)................................................... 30

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Zehentbauer Family Land, LP v. Chesapeake Expl., L.L.C., 935 F.3d 496 (6th Cir. 2019) ........ 26

Rules

Fed. R. Civ. P. 23(a)(1)................................................................................................................. 25

Fed. R. Civ. P. 23(a)(2)................................................................................................................. 26

Fed. R. Civ. P. 23(a)(3)................................................................................................................. 26

Fed. R. Civ. P. 23(a)(4)................................................................................................................. 27

Fed. R. Civ. P. 23(b)(2)................................................................................................................. 30

Fed. R. Civ. P. 23(c)(2)(A) ........................................................................................................... 34

Fed. R. Civ. P. 23(c)(2)(B) ........................................................................................................... 33

Fed. R. Civ. P. 23(e)(1)(A) ........................................................................................................... 11

Fed. R. Civ. P. 23(e)(1)(B) ............................................................................................... 11, 12, 31

Fed. R. Civ. P. 23(e)(2)................................................................................................................. 12

Fed. R. Civ. P. 23(e)(2)(A)-(D) .................................................................................. 12, 13, 14, 22

Fed. R. Civ. P. 23(b)(3)................................................................................................................. 28

Fed. R. Civ. P. 23(e)(1)(B)(ii)....................................................................................................... 25

Fed. R. Civ. P. 23(e)(2)(c)(i)-(iv) ................................................................................................. 18

Treatises

David F. Herr, Annotated Manual for Complex Litigation, Fourth, § 21.662 (2012).................. 11

Manual for Complex Litigation, Fourth, § 21.632.................................................................. 10, 25

Manual for Complex Litigation, Fourth, § 21.633........................................................................ 34

Newberg on Class Actions § 13:10............................................................................................... 33

Newberg on Class Actions § 13:14. .............................................................................................. 15

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Plaintiffs Sara Hawes, Cassandra Chiaraluce, and Jonathan Fontaine (“Named Plaintiffs”)

reached an agreement with Defendants Macy’s Inc., Macy’s Retail Holdings, Inc. n/k/a Macy’s 

Retail Holdings, LLC, Macy’s West Stores, Inc. n/k/a Macy’s Retail Holdings, LLC, and 

Macy’s.com, LLC (“Defendant” or “Macy’s”) to settle this class action on the terms set forth in 

the Settlement Agreement. See Joint Declaration in Support of Plaintiffs' Motion for Preliminary 

Approval of Class Action Settlement (Joint Decl.), Exhibit 1 (“Settlement Agreement”).

Pursuant to Fed. R. Civ. P. 23(e), Named Plaintiffs, on behalf of themselves and the 

Settlement Class, respectfully move this Court to enter the proposed Preliminary Approval Order.

See concurrently filed Proposed Order.

Per Local Rule 7.3, Named Plaintiffs consulted with Defendant before filing this Motion, 

which is unopposed. See Joint Decl. ¶ 19. For the reasons stated below, the Court should grant 

preliminary approval of the proposed settlement of this class action, order the dissemination of 

notice, and schedule a final fairness hearing.

I. PRELIMINARY STATEMENT

Named Plaintiffs, through undersigned counsel, have secured a Proposed Settlement 

(“Settlement”) that provides substantial benefits to a nationwide class of all persons in the United 

States who purchased from Macy’s bed sheets and pillowcases comprised of a cotton and polyester 

blend (“CVC Sheets”) supplied by AQ Textiles, LLC between November 8, 2013, and the date of 

this filing.

The Settlement merits preliminary approval, given the substantial benefits provided to the 

class. The Settlement was carefully negotiated at arm’s length with the assistance of an 

experienced mediator, the Honorable Diane Welsh (Ret.), but only after the parties completed 

complex and substantial discovery (numerous depositions of fact witnesses, third-parties pursuant 

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to subpoenas, and experts who submitted reports that were later challenged), the Court granted 

class certification, denied Macy’s summary judgment motions, and the parties and their counsel

began trial preparations. Before going to trial, the parties decided to engage in mediation in an 

attempt to settle.

The parties engaged in two separate all-day mediation sessions with Judge Diane Welsh, a 

retired federal magistrate judge, as the mediator. See Joint Decl. ¶ 21. The mediation sessions were 

conducted in a hybrid fashion, with the mediator and some representatives of the Parties appearing 

in person while other representatives of the Parties participated remotely. Id. The parties also 

engaged in negotiations in-between the two mediation sessions, including the exchange of

important information about the claims and defenses present in the Litigation. Id. At the second 

mediation session with Judge Welsh in November 2022, the Parties finally reached a settlement in 

principle of this matter. Thereafter, the Parties continued to negotiate and finalize the settlement 

details resulting in the Agreement. Id. This resolution ensures that Settlement Class Members are 

compensated and eliminates the risk of trial and appeal.

This matter settled after almost five years of highly contested litigation. Given the 

substantial benefits available to Class Members under the Settlement, and the risks in establishing 

Defendant’s liability and proving damages at trial, the Plaintiffs respectfully submit that the 

proposed Settlement reflected in the Agreement is not only fair, reasonable, and adequate but that 

it represents an outstanding recovery on behalf of Class Members, as further described below.

Plaintiffs request that the Court grant the instant motion for preliminary approval, preliminarily 

certify the proposed national Settlement Class, approve the proposed notice plan, and schedule a 

final approval hearing.

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II. STATEMENT OF FACTS

A. Plaintiffs’ claims

Plaintiff Sara Hawes filed this class action lawsuit on November 8, 2017, alleging that 

CVC Sheets she purchased from Macy’s were falsely and deceptively labeled in that the thread 

count listed on the packaging was incorrect (higher than it actually was) and that as a result, she 

paid more for the CVC Sheets than they were worth. Dkt. Nos. 1, 44, and 64. After the filing of a 

third-amended complaint, Dkt. No. 64, the following six claims moved forward: (1) claims under 

the unlawful, unfair, and fraudulent prongs of the California Business and Professions Code § 

17200; (2) claims for deceptive advertising under the same code § 17500; (3) a consumer 

protection claim under the California Consumer Legal Remedies Act § 1750; (4) a breach of 

express warranty claim; (5) a fraud claim; and (6) an unjust enrichment. On February 12, 2020,

Plaintiffs’ counsel herein also filed the action styled as Chiaraluce v. Macy’s Inc., No. 2:20-CV081 (S.D. Ohio), which was then related to Hawes by Order of the Court. Chiaraluce Dkt. No. 4.

B. The Court denies Macy’s motion to dismiss

Macy’s filed a motion to dismiss on January 2, 2018. Dkt. No. 17. On September 28, 2018, 

the Court denied Macy’s motion and granted, in part, and denied, in part, the motion to dismiss.

Dkt. No. 39. On the same date, the Court granted a motion to dismiss filed by AQ Textiles’ on 

jurisdictional grounds, removing them from the case. Dkt. No. 38.

C. Plaintiffs engaged in extensive discovery and expert analysis

Prior to filing this matter, Plaintiffs’ Counsel undertook an extensive investigation of the 

alleged issues and prepared for protracted litigation. See Joint Decl. ¶ 7. Among other things,

Plaintiffs’ Counsel investigated differences between represented thread counts of the sheets made 

on Macy’s packaging and ASTM testing; Federal Trade Commission (FTC) investigations, 

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oversight, and actions related to thread counting and industry practices; the applicable legal 

standards for consumer cases; and relevant class action standards. Id.

Plaintiffs’ Counsel has substantial experience in prosecuting class actions, particularly 

those involving consumer claims as alleged here. Id. ¶ 25 As part of their investigation, Plaintiffs’

Counsel assembled a uniquely qualified team of experts in ASTM standards and damages to assist 

them with this litigation. Id. ¶ 8

The parties engaged in extensive discovery over several years. Plaintiffs served numerous 

interrogatories and requests for production on Macy’s and received thousands of pages of

documents in response. Id. ¶ 12.Macy’s has produced, among other things, sheet design 

specifications, including changes thereto, third-party audit and testing data, product marketing 

materials, sales data, and information, pricing data and information, and additional product 

information. Id.

The parties conducted at least ten depositions of Macy’s employees, fact witnesses, thirdparty witnesses, the Named Plaintiff, and experts. Id. ¶ 13. Plaintiffs served subpoenas on 

individuals and groups that assisted Macy’s along with Freedom of Information Act requests. Id.

Plaintiffs also retained and worked closely with several experts. Plaintiffs’ experts tested 

sheets in a laboratory using ASTM standards and examined sales records provided by Macy’s. Id.

¶ 14. Plaintiffs’ experts produced reports in support of Plaintiffs’ motion for class certification, 

were deposed, and survived Daubert challenges seeking to preclude their opinions and testimony.

Id.

D. The Court grants class certification and the Sixth Circuit denies Macy’s Rule 

23(f) petition

On February 1, 2021, Named Plaintiffs filed a motion for class certification. Dkt. No. 84.

Extensive briefing followed Named Plaintiffs’ certification motion. In May 2021, Macy’s opposed 

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Plaintiffs’ motion for class certification and moved to strike Named Plaintiffs’ experts’ testimony

under Daubert. Dkt. No. 87. On July 21, 2021, Named Plaintiffs filed a reply. Dkt. No. 112. On 

January 22, 2022, the Court granted Named Plaintiffs’ motion for class certification and certified 

the following California class:

Each person in California who purchased from Macy’s a CVC 

(cotton-polyester blend) sheet supplied by AQ between November 

8, 2013, and the present.

Dkt. No. 137.

On July 30, 2021, Macy’s filed a motion for summary judgment. Dkt. No. 117. On August 

23, 2021, Plaintiffs responded. Dkt. No. 124. On September 9, 2021, Macy’ filed its reply. Dkt. 

No. 131. On March 16, 2022, the Court denied in part Macy’s motion. Dkt. No. 139

After Plaintiffs’ motion for class certification was granted and Macy’s summary judgment 

motion was denied, Macy’s requested an interlocutory appeal under Rule 23(f). On June 22, 2022,

the Sixth Circuit denied Macy’s 23(f) petition for interlocutory appeal.

E. The parties negotiate the settlement

After a California class of purchasers of CVC sheets was certified and Macy’s motion for 

summary judgment was denied in part, the Parties engaged in two separate all-day mediation 

sessions with Judge Welsh as the mediator. Joint Decl. ¶ 21. The mediation sessions were 

conducted in a hybrid fashion, with the mediator and some representatives of all Parties attending 

in person while other representatives of the Parties participated remotely. Id. As part of mediation, 

the Parties prepared and exchanged detailed mediation statements addressing the case's facts, 

posture, liability, and damages. Id. The Parties also negotiated between the two mediation sessions, 

including by exchanging important information about the claims and defenses present in the 

litigation. Id. At the second mediation session with Judge Welsh in November 2022, the parties 

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reached a settlement in principle in this matter. Id. Thereafter, the Parties continued to negotiate 

and finalize the details of the Settlement resulting in the Agreement. Id.

F. Settlement terms

The terms of the settlement are memorialized in the Settlement Agreement.

1. The Settlement Class

Per the Settlement Agreement, the Settlement Class is defined as follows:

All persons in the United States who purchased from Macy’s one or 

more CVC Sheets supplied by AQ Textiles, LLC between 

November 8, 2013 and the date of the filing of the Motion for 

Preliminary Approval.

Settlement Agreement ¶ 1.36.

2. The Settlement Fund

A settlement fund of $10,500,000 will be created for the benefit of the class. The funds 

will be paid by Macy’s after the settlement is finalized. The funds will be used to pay class 

members claims, notice and administrative costs, attorneys fees and incentive awards. There is not 

any right to a reverter benefiting Macys.

3. The relief to Settlement Class Members

All members of the Settlement Class in one of the categories below who submit an Eligible 

Claim are eligible to receive monetary benefits as set forth below.

• Members of the Settlement Class verified from Defendants’ records as actual 

purchasers of CVC sheets will receive $7.50 per unit of CVC Sheets purchased 

unless reduced as described below.

• Members of the Settlement Class who provide proof of purchase through a 

receipt will receive $7.50 per unit of CVC Sheets for which proof of purchase 

is provided unless reduced as described below.

• Members of the Settlement Class who attest under penalty of perjury that they 

purchased a unit of CVC Sheets and who do not fall within bullets one and two 

above will receive $2.50 unless reduced as described below. That amount is 

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capped at $2.50 per Household. These members are not eligible to participate 

in any possible second distribution as described below.

See Settlement Agreement ¶¶ 6.1, 6.1.1, 6.1.2, 6.1.3.

All Eligible Claims will be paid in full or reduced pro-rata, depending on the number of 

claims paid and after the fund is reduced for administrative expenses, fees, costs, and incentive 

awards. Id. ¶ 6.2.

If monies remain in the fund after the initial distribution, a second payment will be made 

pro-rata if economically feasible. If a second payment is not feasible, the second payment will be 

made to a the Public Interest Research Group, a charitable organization which has its purpose the 

advancement of consumer protections and rights. Id. ¶ 6.4.

4. The proposed release

In exchange for receiving the settlement benefits, Settlement Class Members will release 

all claims asserted in this case or that they could have asserted or could in the future assert relating 

to the claims asserted in this case and their purchase and use of CVC Sheets. Id. ¶ 13.1.

5. The Proposed Settlement Claims Administrator, notice, and the claims 

process

i. Claims Administrator

The proposed settlement and notice Claims Administrator is Angeion Group. See Joint 

Decl. ¶ 22; see also Settlement Agreement Exhibit 3 [Declaration of Steven Weisbrot (“Angeion 

Decl.”).] The Claims Administrator and all costs of the Claims Program will be paid from the 

Settlement Amount. See Settlement Agreement ¶ 11.1.

ii. Notice

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A long-form notice will be mailed, first-class postage prepaid, to each ascertainable 

Settlement Class Member identified by the Parties through reasonable efforts. See Settlement 

Agreement ¶ 8.4; Settlement Agreement, Ex. 4 (Long Form Notice).

The Claims Administrator will promptly log each long-form notice returned as 

undeliverable and make the log available to counsel for the Parties. Settlement Agreement ¶ 8.5. 

The Claims Administrator will take reasonable steps to update undeliverable addresses, including 

the National Change of Address Database or other reasonable means, and send a second copy of 

the long-form notice. Id. If any long form notice is returned as undeliverable a second time, no 

further mailing is required. Id.

Prior to the Notice Date, the Claims Administrator will establish and maintain an ADAcompliant website regarding this Settlement, the contents of which will be approved by counsel 

for the Parties. Id. ¶ 8.6. The address for the website will be included in published notices. Id. The 

website will provide: (1) generalized information about the Agreement, its scope, its remedies with 

a clickable table of contents; answers to frequently asked questions; a Contact Information page 

that includes the address for the Claim Administrator and addresses and telephone numbers for 

Plaintiffs’ Counsel; (2) deadlines for opting out of or objecting to the Agreement, and the dates of 

relevant Court proceedings, including the Final Approval Hearing; (3) a downloadable and online 

version of the form by which Settlement Class Members may exclude themselves from the 

Settlement Class (4) information on making a claim and a downloadable and online version of the 

Claim Form; and (5) relevant legal documents. Id.

As part of the Notice Plan, the Claims Administrator will employ programmatic notice 

tools, including, inter alia, advertising on websites and Internet ad platforms similar to Google and 

Facebook. Id. ¶ 8.7 The advertising will be targeted to reach Settlement Class Members. Id. The 

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advertising and paid search campaign will also direct viewers to the Settlement website. Search 

keyword advertising may also be used. Id.

The Claims Administrator will set up a call center which will be included in the published 

notices. Id. ¶ 8.9. The call center will: (1) receive requests for any materials or available on the 

Settlement website; (2) provide information on deadlines to opt-out, object, file a claim, and 

relevant Court proceedings; and (3) mail requested materials to Settlement Class Members to file 

claims with the Claims Administrator. Id.

The Claims Administrator will make periodic reports available to counsel for the Parties 

that show: calls and inquiries made to the call center; logs of mail received, requested, and sent 

out; detailed activities on the Settlement website; and the response rates to all notice activities. Id.

¶ 8.11.

iii. Requests for exclusion and objections

Any member of the Settlement Class wishing to do so may opt out of the Settlement Class 

during the opt-out period. Id. ¶ 9.1. The opt-out period will be 60 days from the date notice is 

commenced. Id. ¶ 9.2. Those who wish to opt-out can do so by completing and signing an opt-out 

form and sending it using the directions on the form. Id. ¶ 9.3. Alternatively, Class members may 

file a notice of intent to object to the Settlement if they wish to do so. Id. Class members who wish 

to object must file a notice of intent with the Court, Plaintiffs’ Counsel, and Macy’s counsel by 

the date set by the Court and follow the specific instruction requirements set forth in the Settlement 

and referenced in the notice. Id. ¶ 9.7

iv. CAFA notice

This settlement is subject to the requirements of the Class Action Fairness Act of 2005, 

which requires that notice containing certain required information be served upon the appropriate 

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State and Federal officials within ten days of filing a proposed settlement. 28 U.S.C. § 1715(b). 

The Settlement Administrator will prepare and mail the CAFA notice. Id. ¶ 8.12.

v. Claims process

The Claims Administrator will determine whether: (1) the Claimant is a Settlement Class 

Member and (2) the Settlement Class Member has provided all information needed to complete 

the Claim Form. Id. ¶ 11.11. The Parties will be permitted to audit and review actual (or summary 

reports on) claims made, claims approved or denied, checks issued, calculation of benefits under 

the Settlement, returned checks, and uncashed checks to assist with (1) the effectuation of the 

Settlement and (2) the Parties’ respective desire to reasonably ensure that the benefits are 

administered in a manner to attempt to reach each Settlement Class Member. Id. ¶ 11.10.

6. Attorneys’ fees and compensation for the Named Representatives

Attorney’s fees and costs for Plaintiffs’ Counsel are subject to approval by the Court, to be 

paid from the settlement fund. Id. ¶ 10.2. The enforceability of the Settlement Agreement is not 

contingent on the amount of attorneys’ fees or costs awarded. The parties did not discuss the 

amount of attorneys’ fees and costs until after all of the material terms of the settlement were 

agreed upon. Joint Decl. ¶ 20. Class Counsel respectfully requests service awards for the Named 

Plaintiffs as follows: $3,500 to Ms. Hawes (deposed); and $1,500 each to Ms. Chiaraluce and Mr. 

Fontaine.

III. ARGUMENT

A. The proposed settlement meets the requirements for preliminary approval

Settlement of class actions is generally favored and encouraged. Franks v. Kroger Co., 649 

F.2d 1216, 1224 (6th Cir. 1981). Approval of a class action settlement generally involves two 

stages: (1) preliminary approval, whereby the court gives preliminary approval to the settlement 

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and directs notice of the settlement to be sent to class members; and (2) final approval of the 

settlement. Manual for Complex Litigation, Fourth, § 21.632; Roland v. Convergys Customer 

Mgmt. Grp., Inc., No. 1:15-CV-00325, 2017 WL 4873343, at *2 (S.D. Ohio Jan. 10, 2017); In re 

Broadwing, Inc. ERISA, 252 F.R.D. 369, 372 (S.D. Ohio 2006); Amos v. PPG Indus, No. 2:05-cv70, 2015 WL 4881459, at *1 (S.D. Ohio Aug. 13, 2015). Rule 23(e) sets forth a streamlined 

protocol for preliminary approval of class action settlements whereby the Court may authorize 

notice to be sent to class members. For the first step, the “parties must provide the court with 

information sufficient to enable it to determine whether to give notice of the proposal to the class.”

Fed. R. Civ. P. 23(e)(1)(A). The Court must direct notice if the parties have shown that the court 

“will likely be able to: (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for 

the purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B).

During the preliminary approval proceedings, “the questions are simpler, and the court is 

not expected to, and probably should not, engage in the analysis as rigorous as is appropriate for 

final approval.” David F. Herr, Annotated Manual for Complex Litigation, Fourth, § 21.662 

(2012). Instead, the Court should only evaluate whether the proposed settlement “appears to be the

product of serious, informed, non-collusive negotiation, has no obvious deficiencies, does not 

improperly grant preferential treatment to class representatives or segments of the class, and falls 

within the range of possible approval.” Hyland v. Homeservices of Am., Inc., No. 3:05-CV-612-R, 

2009 WL 2525587, at *2 (Aug. 17, 2009) (citing In re Nasdaq Market–Makers Antitrust Litig., 

176 F.R.D. 99, 102 (S.D.N.Y.1997)).1In essence, the Court must preliminarily determine that the 

settlement is sufficiently fair, reasonable, and adequate so that it can “direct the preparation of 

1 See also Bautista v. Twin Lakes Farms, Inc., No. 104-CV-483, 2007 WL 329162, at *4 (W.D. Mich. Jan. 31, 2007)

(“The court’s role in reviewing settlements must be limited to the extent necessary to reach a reasoned judgment that 

the agreement is not the 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.”) (internal quotes omitted).

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notice of certification, proposed settlement, and date of the final fairness hearing” to all those 

affected by it. In re Skechers Toning Shoe Prod., No. 3:11-MD-2308-TBR, 2012 WL 3312668, at 

*7 (W.D. Ky. Aug. 13, 2012).

2

Here, notice is warranted because the proposed Settlement meets the requirements of Rule 

23(e)(2) as it is fair, reasonable, and adequate; and this class action has already been certified and 

thus should be certified again for the purposes of the nationwide Settlement. Therefore, notice 

can be sent to Settlement Class Members.

1. The settlement is fair, reasonable, and adequate

Rule 23(e)(2) provides that the Court may finally approve a settlement only after “finding 

that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In determining the fairness, 

reasonableness, and adequacy of a settlement, Rule 23(e)—as amended December 1, 2018—

provides a court must consider whether: (a) “the class representatives and class counsel have 

adequately represented the class”; (b) “the proposal was negotiated at arm’s length”; (c) “the 

relief provided for the class is adequate”; and (d) “the proposal treats class members equitably 

relative to each other.” Fed. R. Civ. P. 23(e)(2)(A)-(D). At the preliminary approval stage, Named 

Plaintiffs need only demonstrate that the Court “will likely be able to” approve the settlement 

based on the Rule 23 factors. Fed. R. Civ. P. 23(e)(1)(B).

The factors contained in Rule 23(e)(2) were not intended “to displace any factor”

previously relied on by courts, and “the rule largely encompasses the factors that have been 

employed by the Sixth Circuit.” Macy v. GC Servs. Ltd. P’ship, No. 3:15-CV-819-DJH-CHL, 2019 

WL 6684522, at *2 (W.D. Ky. Dec. 6, 2019) (quotations omitted). “[S]o long as courts use the 

2 See also In re Prandin Direct Purchaser Antitrust Litig., No. 2:10-CV-12141-AC-DAS, 2014 WL 8335997, at *3 

(E.D. Mich. Oct. 2, 2014) (“The ultimate approval of a class action settlement requires a finding that the settlement 

is fair, adequate, and reasonable.”); Brotherton v. Cleveland, 141 F. Supp. 2d 894 (S.D. Ohio 2001); In re Southern 

Ohio Corr. Facility, 173 F.R.D. 205, 211 (S.D. Ohio 1997).

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23(e)(2) factors as the primary framework, courts may still consider circuit-specific factors in the 

analysis.” In re Sonic Corp. Customer Data Sec. Breach Litig., No. 1:17-MD-2807, 2019 WL 

3773737, at *5 (N.D. Ohio Aug. 12, 2019).

The factors traditionally used by this Court and the Sixth Circuit for determining whether 

a settlement is fair, reasonable, and adequate are as follows: “(1) the risk of fraud or collusion; (2) 

the complexity, expense, and likely duration of the litigation; (3) the amount of discovery 

completed; (4) the likelihood of success on the merits; (5) the opinion of class counsel and 

representatives; (6) the reaction of absent class members; and (7) public interest in the settlement.” 

See, e.g., Ostendorf v. Grange Indem. Ins. Co., No. 2:19-CV-1147, 2020 WL 5366380, at *2 (S.D. 

Ohio Sept. 8, 2020); Vassalle v. Midland Funding LLC, 708 F.3d 747, 754 (6th Cir. 2013).

However, “the Court need not make a determination as to every factor” at the preliminary approval 

stage. Ostendorf, 2020 WL 5366380, at *2.

“[I]n considering whether to approve the parties’ proposed settlement, a District Court in 

the Sixth Circuit should look to both the factors found in Rule 23 as well as the Sixth Circuit’s 

traditional factors.” Doe v. Ohio, No. 2:91-CV-00464, 2020 WL 728276, at *3 (S.D. Ohio Feb. 

12, 2020), report and recommendation adopted, No. 2:91-CV-464, 2020 WL 996561 (S.D. Ohio 

Mar. 2, 2020). Because of the “substantial overlap” between the Rule 23 and traditional Sixth 

Circuit factors, Macy, 2019 WL 6684522, at *2, Named Plaintiffs will be able to demonstrate that 

the proposed Settlement is fair, reasonable, and adequate under both sets of factors below, 

combining any that overlap. See Humphrey v. Stored Value Cards, No. 1:18-CV-01050, 2021 WL 

110786, at *4 (N.D. Ohio Jan. 12, 2021) (“The Court considers the Rule 23 and Sixth Circuit 

factors below, combining any that overlap.”).

2. Class Counsel and the Class Representatives adequately represented the 

Settlement Class

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Rule 23 requires courts to consider whether “the class representatives and class counsel 

have adequately represented the class.” Fed. R. Civ. P. 23(e)(2)(A). Named Plaintiffs and Class 

Counsel submit that, at final approval, Rule 23(e)(2)(A) will be satisfied because they have 

adequately—indeed, zealously—represented and pursued the best interests of the proposed 

Settlement Class at each stage of the respective litigations.

Class Counsel zealously represented Named Plaintiffs and the Settlement Class Members 

by researching the viability of asserting various claims against Macy’s; successfully opposing a 

contentious motion to dismiss; fully conducting discovery (consisting of reviewing tens of 

thousands of pages of documents, conducting depositions, engaging experts, and conducting 

written discovery); and fully briefing a class certification motion as well as a motion for summary 

judgment. Class Counsel has extensive experience in litigating class action cases and in nationwide 

complex-litigation practice. See supra Part II.

Likewise, the Named Plaintiffs vigorously prosecuted the claims on behalf of the Class 

throughout litigation and settlement negotiations. Ms. Hawes fully participated in the litigation by 

responding to written discovery, producing documents, making her sheets available for testing, 

sitting for a deposition, and remaining informed of the progress of the litigation and mediation, all 

of which weigh in favor of preliminary approval. See Doe, 2020 WL 728276, at *6. In addition, 

Ms. Chiaraluce and Mr. Fontaine fully participated and assisted counsel in the litigation by 

providing information regarding their purchases, producing documents, making their sheets 

available for testing, and remaining informed of the progress of the litigation and mediation. 

Therefore, the Named Plaintiffs and Class Counsel were equally diligent in prosecuting their 

actions to satisfy the adequate representation requirement.

3. The Settlement was negotiated without fraud or collusion at arm’s length 

after extensive discovery

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A proposed class-wide settlement is fair, reasonable, and adequate under the Rule 23 

factors, where the parties “negotiated at arm’s length,” Fed. R. Civ. P. 23(e)(2)(B), which overlaps 

with the Sixth Circuit’s “fraud or collusion” and “amount of discovery” factors. Doe, 2020 WL

728276, at *4; Humphrey, 2021 WL 110786, at *4. This Court “presume[s] the absence of fraud 

or collusion unless there is evidence to the contrary.” See, e.g., Stanley v. Turner Oil & Gas 

Properties, Inc., No. 2:16-CV-386, 2018 WL 2928028, at *5 (S.D. Ohio June 12, 2018). In all, 

“[w]here the proposed settlement was preceded by a lengthy period of adversarial litigation 

involving substantial discovery, a court is likely to conclude that settlement negotiations occurred 

at arms-length.” Newberg on Class Actions § 13:14.

First, the procedural posture of the case indicates the settlement arose out of arm’s-length, 

non-collusive negotiations. This case has been pending for over five years, with extensive 

discovery and motion practice during that time. Indeed, not only did Plaintiff Hawes file a 

Complaint (and multiple Amended Complaints), she also successfully opposed dispositive 

motions in the forms of a motion to dismiss and a motion for summary judgment. See herein. 

Plaintiff also fully briefed a motion for class certification, which the Court granted. Id. Also, the 

Parties engaged in months of adversarial settlement discussion and negotiation before reaching an 

agreement. Id. The advanced stage of the proceedings dispels any possibility of fraud or collusion.

Second, the extent of discovery conducted demonstrates that the relevant facts and damages 

have been sufficiently developed to permit an accurate assessment of the merits of the case and 

adequacy of the settlement. Traditionally, this Court has considered the amount of discovery in 

which the parties to a settlement engaged to confirm plaintiffs “have had access to sufficient 

information to evaluate their case and to assess the adequacy of the proposed Settlement.” Amos 

v. PPG Indus., Inc., No. 2:05-CV-70, 2019 WL 3889621, at *8 (S.D. Ohio Aug. 16, 2019), report 

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and recommendation adopted, No. 2:05-CV-70, 2019 WL 3980570 (S.D. Ohio Aug. 22, 2019) 

(citation omitted); Bartell v. LTF Club Operations Co., Inc., No. 2:14-CV-401, 2020 WL 7062834, 

at *4 (S.D. Ohio Aug. 7, 2020). Courts “take account not only of court-refereed discovery but also 

informal discovery in which parties engaged both before and after litigation commenced” when 

considering whether plaintiffs had sufficient information. Id. (citations omitted). Named Plaintiffs

here fully completed the discovery phase of litigation, which consisted of exchanging, reviewing, 

and analyzing tens of thousands of pages of documents as well as deposing numerous fact 

witnesses (including the third parties that imported the sheets) and Macy’s corporate 

representative. See herein. Further, Macy’s deposed Plaintiff Hawes, and Class Counsel defended

her deposition. Id. The Parties also engaged in expert discovery, which included the disclosure of 

economic and defect expert reports as well as depositions. Id. As such, the amount of discovery 

produced and examined in this litigation “coupled with expert and lay depositions, produced a 

well-developed factual record that enabled Class Counsel to make informed decisions about the 

Settlement.” Blasi v. United Debt Servs., LLC, No. 2:14-CV-83, 2019 WL 6050963, at *7 (S.D. 

Ohio Nov. 15, 2019); Satterly v. Airstream, Inc., No. 3:19-CV-107, 2020 WL 6536342, at *5 (S.D. 

Ohio Sept. 25, 2020) (granting approval where “the parties reached a settlement after an extensive 

review and computation of damages [and] substantial discovery [was] exchanged”).

Third, the circumstances surrounding settlement negotiations establish that the settlement 

was reached by well-informed counsel after arm’s-length negotiations. See Kimber Baldwin 

Designs, LLC v. Silv Commc’ns, Inc., No. 1:16-CV-448, 2017 WL 5247538, at *4 (S.D. Ohio Nov. 

13, 2017) (granting approval where a settlement “was the result of arm’s-length negotiations, free 

of collusion or fraud, conducted by experienced counsel on both sides, and achieved over the 

course of several months of negotiations”). Arm’s-length negotiations conducted by competent 

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counsel, especially given the assistance of an experienced and independent mediator, constitute 

prima facie evidence of fair settlements. See, e.g., Roland v. Convergys Customer Mgmt. Grp. Inc., 

No. 1:15-CV-00325, 2017 WL 977589, at *1 (S.D. Ohio Mar. 10, 2017) (noting that settlement 

was “reached after good faith, arms’ length negotiations, warranting a presumption in favor of 

approval”); Brotherton, 141 F. Supp. 2d at 906 (absence of any evidence suggesting collusion or 

illegality “lends toward a determination that the agreed proposed settlement was fair, adequate and 

reasonable”)

3

; Bert v. AK Steel Corp., No. 1:02-CV-467, 2008 WL 4693747, at *2 (S.D. Ohio Oct. 

23, 2008) (“[t]he participation of an independent mediator in settlement negotiations virtually 

insures that the negotiations were conducted at arm’s length and without collusion between the 

parties.”)

In this case, the Settlement was the result of intensive, arm’s-length negotiations between 

experienced attorneys who have extensive class action litigation experience and who have 

knowledge of the legal and factual issues of this case in particular. The Parties’ respective counsel 

are experienced in the litigation, certification, trial, and settlement of class action cases. There is 

no evidence that any collusion or illegality existed during the settlement process. Settlement 

negotiations, in this case. took place over the course of multiple mediation sessions with the 

assistance of the Honorable Diane Welsh (Ret.), a highly regarded and experienced mediator,

which weighs heavily in favor of approval. See, e.g., Bartell, 2020 WL 7062834, at *3

(“mediations facilitated by experienced and highly skilled mediators” favor approval).4 As part of 

mediation, the Parties prepared and exchanged detailed mediation statements addressing the facts, 

posture, liability, and damages of the case. See supra Part II. After reaching an agreement in 

3 See also Mangone v. First USA Bank, 206 F.R.D. 222, 226 (S.D. Ill. 2001); 1 Herbert B. Newberg & Alba Conte, 

Newberg on Class Actions § 11.41 at 90 (4th Ed. 2002).

4 See also Amos v. PPG Indus., 2015 WL 4881459, at *1 (noting that the Southern District of Ohio “recognizes that 

the settlement of class action is generally favored and encouraged”).

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principle, the Parties exchanged numerous drafts of the Settlement terms and the Settlement 

Agreement prior to entering a final agreement. Id.

Given the amount of discovery and the advanced stage of the proceedings, Class Counsel 

was well-positioned to assess the benefits of the Settlement balanced against the strengths and 

weaknesses of their claims and of Macy’s defenses, all of which was discussed during mediation 

facilitated by an experienced mediator. Thus, the Court will likely be able to approve the settlement 

because the Settlement was negotiated at arm’s length.

4. The relief provided by the proposed settlement is adequate

Under Rule 23(e)(2)(c), a court’s assessment of whether a proposed settlement is adequate 

takes into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any 

proposed method of distributing relief to the class, including the method of processing classmember claims; (iii) the terms of any proposed award of attorney’s fees, including timing of 

payment; and (iv) any agreement required to be identified under Rule 23(e)(3). Fed. R. Civ. P.

23(e)(2)(c)(i)-(iv). A preliminary consideration of these factors shows that it is likely that Named 

Plaintiffs will be able to satisfy this prong of Rule 23(e)(2) when seeking final approval.

Notably, the proposed Settlement provides for a non-reversionary common fund with cash 

benefits to class members as follows:

• Members of the Settlement Class verified from Defendants’ records as actual 

purchasers of CVC sheets will receive $7.50 per unit of CVC Sheets purchased 

unless reduced as described below.

• Members of the Settlement Class who provide proof of purchase through a 

receipt will receive $7.50 per unit of CVC Sheets for which proof of purchase 

is provided unless reduced as described below.

• Members of the Settlement Class who attest under penalty of perjury that they 

purchased a unit of CVC Sheets and who do not fall within bullets one and two 

above will receive $2.50 unless reduced as described below. That amount is 

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capped at $2.50 per Household. These members are not eligible to participate 

in any possible second distribution as described below

This result compares favorably to settlements courts have approved in similar consumer 

class actions in this circuit. See Date v. Sony Elecs., Inc., No. 07-15474, 2013 WL 3945981, at *3 

(E.D. Mich. July 31, 2013); In re: Whirlpool Corp. Front-loading Washer Prod. Liab. Litig., No. 

1:08-WP-65000, 2016 WL 5338012, at *1 (N.D. Ohio Sept. 23, 2016); In re Skechers Toning 

Shoes Prod. Liab. Litig., No. 3:11-MD-2308-TBR, 2013 WL 12321203, at *1 (W.D. Ky. May 13, 

2013); Rikos v. Proctor & Gamble Co., No. 1:11-CV-226, 2018 WL 2009681, at *11 (S.D. Ohio 

Apr. 30, 2018). Consequently, this Settlement is adequate and should be preliminarily approved.

In addition, Macy’s has agreed to make significant changes to its sales and marketing of 

the CVC sheets manufactured by AQ with respect to the thread count claims and representations—

the issue central to the lawsuit. This injunctive relief provided by the settlement is long-lasting and 

ensures that thread counts on Macy’s products made by AQ will be accurate. 

There is injunctive relief in the form of label and practice changes, and numerous courts 

have approved ‘label change’ settlements, with value assigned specifically to these reforms and 

their impact on consumers. See, e.g., Guttmann v. Ole Mexican Foods, Inc., No. 14-cv-04845-

HSG, 2015 U.S. Dist. LEXIS 154046 (N.D. Cal. Nov. 13, 2015) (approving injunctive relief 

settlement with full release for mislabeling case where ingredient not properly disclosed); Burgos 

v. Sunvalleytek Int’l, No. 18-cv-06910-HSG, 2021 U.S. Dist. LEXIS 132931 (N.D. Cal. May 10, 

2021) (granting final approval of misleading label change settlement); Miller v. Ghirardelli 

Chocolate Co., No. C 12-04936 LB, 2014 U.S. Dist. LEXIS 141111 (N.D. Cal. Oct. 2, 2014)

(assigning significant value to injunctive relief in a settlement). To be clear, when there are claims 

for the mislabeling of products—modification of the allegedly mislabeled packaging and 

advertising “adequately addresses the very claims raised in Plaintiffs’ Complaint, provid[ing] 

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value to the Class.” Littlejohn v. Copland, 819 F. App’x 491, 493 (9th Cir. 2020) (affirming 

preliminary approval of settlement that required removal of phrase “no artificial flavors” and the 

identification of a new ingredient, with no monetary relief involved).

The injunctive relief here provides that Macys will state the exact method used to count 

the threads in the sheets it sells. See, e.g., Littlejohn, 919 F. App’x at 492 (settlement providing for 

removal of “no artificial flavors” and addition of the artificial ingredient to the ingredient list).

And because Macy’s customers tend to be repeat customers that frequently shop for bed and bath 

products, Class members are likely to be exposed to AQ thread-count representations in the postapproval period when the injunctive relief is in force, see Dkt. 109-1, so the label change provides

significant value. Miller v. Ghirardelli Chocolate Co., No. 12-cv-04936-LB, 2015 U.S. Dist. 

LEXIS 20725, at *15 (N.D. Cal. Feb. 20, 2015) (label changes can hold significant value to a 

settlement class).

5. The costs, risks, and delay of trial and appeal favor preliminary approval

The costs, risks, and delay of trial and appeal factor of Rule 23(e)(2) are analogous to “the 

complexity, expense and likely duration of the litigation” and “the likelihood of success on the 

merits” factors generally used by this Court. See Ostendorf, 2020 WL 5366380, at *2. “The most 

important of the factors to be considered in reviewing a settlement is the probability of success on 

the merits. The likelihood of success, in turn, provides a gauge from which the benefits of the 

settlement must be measured.” Amos, 2019 WL 3889621, at *8 (citations omitted); Doe, 2020 WL

728276, at *5.

At the outset, “[m]ost class actions are inherently complex and settlement avoids the costs, 

delays, and multitude of other problems associated with them.” Amos, 2019 WL 3889621, at *7

(quoting In re Telectronics Pacing Systems, Inc., 137 F. Supp. 2d 985, 1013 (S.D. Ohio 2001)). 

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Here, the costs, risks, and potential delay all increase significantly with a complex class action of 

class members who have suffered monetary damages. Based on Macy’s vigorous defense through 

motion practice and Named Plaintiffs’ claims, Named Plaintiffs reasonably expect that this case 

will continue to be zealously contested through trial and appeal if not settled. See Kimber Baldwin 

Designs, 2017 WL 5247538, at *5 (likelihood of success “factor weighs in favor of approval 

because Defendant categorically denies Plaintiffs’ claims.”); Blasi, 2019 WL 6050963, at *7 (“the 

docket reflects that UDS has vigorously defended this action and would likely continue to do so. 

Certification is not certain, and even if granted, decertification remains a real possibility.”); Bartell, 

2020 WL 7062834, at *4 (“continued litigation in the face of strong opposition and the ‘substantial 

ground for disagreement’ that exists as to the merits of Plaintiffs’ claims creates substantial risk to 

the Class.”). Moreover, “the class’s likelihood of success on the merits remains uncertain,” which 

weighs in favor of preliminary approval. Rotondo v. JPMorgan Chase Bank, N.A., No. 2:19-CV2328, 2019 WL 6167086, at *5 (S.D. Ohio Nov. 20, 2019), report and recommendation adopted, 

No. 19-CV-02328, 2019 WL 6496806 (S.D. Ohio Dec. 2, 2019).

Named Plaintiffs have also expended significant expense through motion practice and 

discovery and would continue to incur significant expense if the case were to proceed to trial with 

the possibility of an appeal. Trial preparation would be lengthy, likely involve extended pre-trial 

motion practice, and would culminate in a multi-week, complex trial, which will undoubtedly be 

a battle of experts regarding the thread counting method and damages. Courts have acknowledged 

that reliance on expert testimony “often increases the risk that a jury may not find liability or would 

limit damages.” Edwards v. N. Am. Power & Gas, LLC, No. 3:14-cv-01714(VAB), 2018 U.S. Dist. 

LEXIS 130535, at *40 (D. Conn. Aug. 3, 2018) (granting final approval). As such, “there are 

multiple risks if litigation continues – including the chance to recover nothing.” Peck v. Air Evac 

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22

EMS, Inc., 2019 WL 3219150, at *6 (E.D. Ky. July 17, 2019). Yet, the Settlement provides 

substantial relief without the risks inherent in continued litigation, trial, and appeal. See also Amos, 

2019 WL 3889621, at *9 (“the risk of failure to Plaintiffs and the classes, weighed against the 

certainty of benefits provided by the Settlement Agreement, favors approval.”). Thus, the costs 

and risks involved in continuing to litigate this case are far outweighed by the relief provided under 

the Settlement.

6. The remaining Rule 23(e)(2)(c) factors weigh in favor of preliminary 

approval

As to the second Rule 23 adequacy factor, the effectiveness of distributing relief is sound. 

The claim’s administrator will distribute benefit awards to eligible claimants as set forth in the 

Settlement and their Declaration. Angeion Decl. Lastly, Settlement Class Members may opt out of 

the Settlement if they do not wish to obtain the remedies therein. Settlement Agreement. ¶ 9.1.

Finally, the Parties did not enter any agreement in connection to the Proposed Settlement 

other than the terms memorialized in the Settlement Agreement. As such, there are no other 

agreements that are required to be identified under Rule 23(e)(3). Thus, all the adequacy factors 

identified in Rule 23(e)(2)(c) favor preliminary approval.

7. The proposed relief treats Settlement Class members fairly relative to one 

another without preferential treatment to the Named Plaintiffs

The final element for consideration under Rule 23(e) is whether “the proposal treats class 

members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(A)-(D). Likewise, the Sixth 

Circuit has traditionally “looked to whether the settlement gives preferential treatment to the 

named plaintiffs while only perfunctory relief to unnamed class members.” Vassalle, 708 F.3d at

755 (internal quotations and citations omitted). Courts in the Sixth Circuit have held settlements 

treat class members where the amounts are proportional to the amount of purported damages each 

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member sustained (i.e., pro rata distributions), even where there is disparity in the amounts some 

class members receive. Day v. AMC Corp., No. 5:17-CV-183-CHB-MAS, 2019 WL 3977253, at 

*5 (E.D. Ky. July 26, 2019), report and recommendation adopted sub nom. Day v. Air Methods

Corp., No. 5:17-CV-183-CHB, 2019 WL 3976511 (E.D. Ky. Aug. 22, 2019); Humphrey, 20 WL 

110786, at *5.

Here, all Settlement Class Members are entitled to cash benefits. This relief treats all 

Settlement Class Members fairly and equitably and does not provide preferential treatment to the 

Named Plaintiffs at the expense of unnamed Class Members. See Humphrey, 2021 WL 110786, at 

*5 (internal quotations and citations omitted).

Rather, the Class Representative is also treated the same as every other member of the 

Settlement Class under the Settlement, with the lone exception of a proposed service awards of 

$3,500 to Class Representative Hawes and $1,500 each to Class Representatives Chiaraluce and

Fontaine. Hadix v. Johnson, 322 F.3d 895, 898 (6th Cir. 2003) (“when a class-action litigation has 

created a communal pool of funds to be distributed to the class members, courts have approved 

incentive awards to be drawn out of that common pool.”); Satterly, 2020 WL 6536342, at *8

(“Service awards to representative plaintiffs ‘are common in class action settlement and routinely 

approved.’”).

8. The remaining traditional Sixth Circuit factors favor preliminary approval

i. The opinions of Class Counsel and Class Representatives

“The recommendation of Class Counsel, skilled in class actions and consumer litigation, 

that the Court should approve the Settlement is entitled to deference.” See, e.g., Bartell, 2020 WL 

7062834, at *4 (citations omitted). Class Counsel are experienced in class actions, including 

deceptive advertising, are well-positioned to assess the strengths and weaknesses of this case after 

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substantial discovery, and have concluded the proposed Settlement is an excellent result that 

confers substantial benefits to the Settlement Class. See Joint Decl. ¶ 25. As such, they fully 

endorse and approve of the Settlement as fair, reasonable, and adequate, as well as in the best 

interest of the Settlement Class. Id. Further, the Named Plaintiffs remained informed of the 

litigation and likewise fully endorse the Settlement because it confers substantial monetary and 

non-monetary relief to the Settlement Class. As such, the opinions of Class Counsel and Class 

Representatives are entitled to deference and weigh in favor of preliminary approval.

ii. Reaction of Class members

A small number of class members objecting to a proposed class action settlement weighs 

in favor of the adequacy of a settlement. Peck, 2019 WL 3219150, at *8. However, at the 

preliminary, pre-notice stage, the Court cannot ascertain the reaction of class members such that 

this factor “does not yet weigh one way or the other in determining whether settlement is 

appropriate.” Id.; Ware v. CKF Enterprises, Inc., No. CV 5:19-183-DCR, 2020 WL 2441415, at 

*14 (E.D. Ky. May 12, 2020) (“The ‘reaction of absent class members’ is not relevant to the 

preliminary approval stage analysis.”).

iii. Public interest

Because “[m]ost class actions are inherently complex and settlement avoids the costs, 

delays, and multitude of other problems associated with them,” there is a “public interest favoring 

settlement . . . as the proposed settlement ends potentially long and protected litigation.” Ostendorf, 

2020 WL 5366380, at *3 (citations omitted and alterations in original). As demonstrated above, 

this case is no different. “The settlement provides relief to the class members, avoids further 

litigation in a complex set of cases, and frees the Court of judicial resources.” Satterly, 2020 WL 

6536342, at *7. Thus, public interest favors preliminary approval.

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B. Preliminary approval is warranted because the court will likely be able to certify 

the Settlement Class

An important consideration in assessing whether to authorize Notice to the proposed 

Settlement Class is whether the Named Plaintiffs can demonstrate that the Court will likely be able 

to certify the class for judgment and settlement purposes. Fed. R. Civ. P. 23(e)(1)(B)(ii). At this 

stage, the Court need only make a “preliminary determination that the proposed class satisfies the 

criteria set out in Rule 23(a) and at least one of the subsections of Rule 23(b).” Manual for Complex 

Litigation, Fourth, § 21.632. Here, because Settlement Class Members will receive monetary and 

injunctive relief under the Settlement, Named Plaintiffs seek certification under Rules 23(b)(3) 

and 23(b)(2). Notably, the Court has already certified a California class in this action. See Dkt. 

137. The Court will likely be able to certify the nationwide class as demonstrated below.

1. The Settlement Class meets the requirements of Rule 23(a)

A class action must comply with the four prerequisites established in Rule 23(a): (1) 

numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of claims; and (4) 

adequacy of representation. Ross v. Abercrombie & Fitch Co., 257 F.R.D. 435, 439 (S.D. Ohio 

2009). The proposed Settlement Class meets all four requirements; thus, the Court should grant 

preliminary approval.

i. Numerosity

Numerosity is satisfied when the class is “so numerous that joinder of all members would 

be impracticable.” Fed. R. Civ. P. 23(a)(1); see also Intercommunity Justice & Peace Ctr. V. 

Registrar, Ohio Bureau of Motor Vehicles, No. 2:18-CV-1247, 2020 WL 832815, at *7 (S.D. Ohio 

Feb. 20, 2020) (finding numerosity satisfied in class of 3,700 individuals); Fenley v. Wood Grp. 

Mustang, Inc., 325 F.R.D. 232, 249 (S.D. Ohio 2018) (“courts routinely hold that ‘a class of 40 or 

more members is sufficient to meet the numerosity requirement.’”). Here, numerosity for the 

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proposed class is clearly satisfied, as was established in the briefing regarding Class Certification. 

See Dkt. 137 at 30.

ii. Commonality

Commonality exists if there are questions of law or fact common to the class. Fed. R. Civ. 

P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members have 

suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011). The 

common legal or factual contention underlying the claims “must be of such a nature that it is 

capable of classwide resolution – which means that determination of its truth or falsity will resolve 

an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. “The 

claims of the potential class members need not be factually identical.” Ross, 257 F.R.D. at 442.

Here, the Court will likely find commonality again is satisfied based on the fundamental 

issue of whether the counting method employed by Macy’s and AQ differed from the ASTM 

standard counting method. And, because commonality does not require “the raising of common 

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate 

common answers apt to drive the resolution of the litigation.” Zehentbauer Family Land, LP v. 

Chesapeake Expl., L.L.C., 935 F.3d 496, 503 (6th Cir. 2019) (quoting Wal- Mart, 564 U.S. at 350). 

Common questions of fact and law exist as to the Settlement Class.

iii. Typicality

Rule 23’s typicality requirement is met where “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 typicality 

requirement ensures that the “representative’s interests [are] aligned with those of the represented 

group, and in pursuing his own claims, the named plaintiff will also advance the interests of the 

class members.” Intercommunity Justice & Peace Ctr., 2020 WL 832815, at *8. “The concepts of 

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commonality and typicality ‘tend to merge’ in practice because they both ‘serve as guideposts for 

determining whether under the particular circumstances maintenance of a class action is 

economical and whether the named plaintiff’s claim and the class claims are so interrelated that 

the interests of the class members will be fairly and adequately protected in their absence.’” Fenley, 

325 F.R.D. at 250 (quoting Dukes, 564 U.S. at 349 n.5).

Here, the Class Representatives' claims are typical of the claims of other class members 

because they “stem from a single event or are based on the same legal or remedial theory.” Paxton 

v. Union Nat’l Bank, 688 F.2d 552, 561-562 (8th Cir. 1982). Here, Macy’s use of the alternative 

counting method is a single course of conduct that applies to all class members, and the theory that 

such use deceives consumers is the same for all class members who are protected by the same state 

statutory and common laws. Indeed, since the “representative plaintiff would be able to prove other 

class members’ claims by proving [her] own claim,” Givens v. Van Devere, Inc., 2012 WL 

4092803, at *19 (N.D. Ohio 2012), their claims are typical of those of the class.

iv. Adequacy

Rule 23(a)(4)’s adequacy requirement is satisfied if “the representative parties will fairly 

and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Two criteria exist for 

determining the adequacy of representation: “(1) [t]he representative must have common interests 

with unnamed members of the class;” and (2) “it must appear that the representative will 

vigorously prosecute the interests of the class through qualified counsel.” Senter v. Gen. Motors 

Corp., 531 F.2d 511, 525 (6th Cir. 1976).

The first criterion overlaps with the commonality and typicality requirements and requires 

the class representative and “the class members have interests that are not antagonistic to one 

another.” Intercommunity Justice & Peace Ctr., 2020 WL 832815, at *10 (quoting In re Dry Max 

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Pampers Litig., 724 F.3d 713, 721 (6th Cir. 2013)). Here, the class representative’s interests are 

aligned with those of the Settlement Class. Specifically, Named Plaintiffs share an interest with 

Class Members in establishing that the counting method employed by Macy’s and AQ differs from 

the ASTM standard counting method, and thus that Macy’s made misrepresentations to customers 

regarding the thread count of sheet products.

As to the second criterion, Named Plaintiffs and Class Counsel have established adequacy 

through their prosecution of the claims to date, zealously litigating this matter since 2017, filing 

an extensive complaint and amending it twice, prevailing on motions to dismiss, defeating a 

motion for summary judgment, certifying a class, and vigorously pursuing discovery. Named 

Plaintiffs have overseen the litigation and maintained constant contact with counsel and their

attorneys are qualified, experienced, and competent, evidenced by their background in litigating 

class action cases. Joint Decl. ¶¶ 25, 27-31. Therefore, the adequacy requirement will likely be 

determined to be satisfied.

2. The Settlement Class meets the requirements of Rule 23(b)(3)

In addition to the requirements of Rule 23(a), Named Plaintiffs must meet the requirements 

for maintenance of a class imposed by Rule 23(b). Under Rule 23(b)(3), a class may be certified 

if “(1) ‘the questions of law or fact common to class members predominate over any questions 

affecting only individual members,’ and (2) ‘a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy.’” Ross, 257 F.R.D. at 451 (quoting Fed. R. 

Civ. P. 23(b)(3)).

i. Predominance

The predominance inquiry focuses on whether liability issues are subject to generalized 

proof and are applicable to the class as a whole or require individualized and fact-intensive 

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determinations. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th Cir. 2012). “[C]ommon 

issues may predominate when liability can be determined on a class-wide basis, even when there 

are some individualized damage issues.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 

2007). Under Rule 23(b)(3), the predominance inquiry tests whether the proposed class is 

sufficiently cohesive to warrant adjudication by representation. Id. Although the Rule “speaks of 

‘questions’ in the plural,” the Sixth Circuit has held that “one question common to the class”

satisfies this requirement. Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998).

Here, common questions will likely be found to predominate because the central question 

to be decided is whether the method, used by Macy’s and AQ, of counting untwisted polyester 

strands as individual threads accords with the industry standard of ASTM 3775. The central 

questions to be decided for the claims here all flow from that counting method, as has already been 

recognized by the court. See Dkt. 137 at 33.

ii. Superiority

The superiority inquiry asks whether “a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy.” Although Rule 23(b)(3) lists various 

superiority factors, the Court need not consider the manageability of a potential trial, because the 

Settlement, if approved, would obviate the need for a trial. Amchem Prods. Inc. v. Windsor, 521 

U.S. 591, 620 (1997). Nonetheless, the remainder of the factors enumerated in Rule 23(b)(3) 

demonstrate this Court will likely be able to conclude at final approval that the superiority 

requirement is met. Settlement Class Members have not manifested an interest in individually 

controlling the prosecution given that the amount in controversy each individual Settlement Class 

Member suffered would likely not justify the high costs of individual suits. Undoubtedly, class 

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certification is superior to thousands of costly individual lawsuits, which would impose 

unnecessary expense upon Settlement Class Members and the court system.

3. Certification pursuant to Rule 23(b)(2) with respect to injunctive relief is 

proper

A class may be certified under Rule 23(b)(2) where “the party opposing the class has acted 

or refused to act on grounds that apply generally to the class, so that final injunctive relief or 

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). As the Supreme Court stated in Dukes, “[t]he key to the (b)(2) class is ‘the indivisible 

nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that 

it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’”

564 U.S. at 360 (citation omitted). In other class actions involving mislabeling, courts have 

certified class under both Rule 23(b)(3) and Rule 23(b)(2).

Here, this Court will likely be able to conclude at final approval a nationwide settlement 

class is properly certified under Rule 23(b)(2) with respect to the non-monetary relief provided by 

the Settlement because the entire Settlement Class is treated alike: the labels changes will equally 

affect everybody purchasing the CVC Sheets at Macy’s. See Yue v. Conseco Life Ins. Co., 282 

F.R.D. 469, 479 (C.D. Cal. 2012) (“Class certification is appropriate because Defendant has acted 

on grounds that apply generally to the class, so that final injunctive relief or corresponding 

declaratory relief is appropriate respecting the class as a whole.”). Dickman v. Banner Life Ins. 

Co., Civil Action No. 1:16-cv-00192-RDB 2019 WL 6716365, at *2 (D. Md. Oct. 17, 2019)

(preliminary certifying a settlement class where “the actions by Defendants apply generally to the 

Settlement Class, so that the injunctive relief agreed upon is appropriate respecting the class as a 

whole”). Therefore, the Court will be likely to certify the Settlement Class pursuant to Rule 

23(b)(2) at the final approval stage.

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C. The Court should direct notice to the Class

Under Fed. R. Civ. P. 23(e), class members are entitled to notice of any proposed settlement 

before it is finally approved by the Court. Rule 23(e)(1)(B) requires the Court to “direct notice in 

a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. 

P.23(e)(1)(B). In an action certified under Rule 23(b)(3), the Court must “direct to class members 

the best notice that is practicable under the circumstances, including individual notice to all 

members who can be identified through reasonable effort.” Fed. R. Civ. P.23(c)(2)(B). “[B]est 

notice practicable” means “individual notice to all members who can be identified through 

reasonable effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). In order to satisfy 

these standards and “comport with the requirements of due process, notice must be ‘reasonably 

calculated to reach interested parties.’” In re Countrywide Fin. Corp. Customer Data Sec. Breach 

Litig., No. 3:08-MD-01998, 2009 WL 5184352, at *12 (W.D. Ky. Dec. 22, 2009). “Generally 

speaking, the notice should contain sufficient information to enable class members to make 

informed decisions on whether they should take steps to protect their rights, including objecting to 

the settlement or, when relevant, opting out of the class.” In re Nat'l Football League Players 

Concussion Inj. Litig., 821 F.3d 410, 435 (3d Cir. 2016), as amended (May 2, 2016) (quoting In 

re Baby Prods. Antitrust Litig., 708 F.3d 163, 180 (3d Cir. 2013)). “Although the Rule provides 

broad discretion to district courts with respect to the notice’s form and content, it must satisfy the 

requirements of due process.” In re Baby Prods. Antitrust Litig., 708 F.3d at 180. “The adequacy 

of a settlement notice in a class action under either the Due Process Clause or the Federal Rules is 

measured by reasonableness.” Arbuthnot v. Pierson, 607 F. App’x 73, 73 (2d Cir. 2015).)

Under Rule 23(e) and due process, adequate notice must be given to all absent class 

members and potential class members to enable them to make an intelligent choice as to whether 

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to opt-out of the class. In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 

283, 326–27 (3d Cir. 1998); Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996). 

However, the Supreme Court has not held that Rule 23 or due process requires the 

accomplishments of delivery of actual notice to every class member in every case, but the provision 

of “notice reasonably certain to reach most of those interested in objecting is likely to safeguard 

the interests of all.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Nevertheless, 

Named Plaintiffs’ notice plan has been developed with the thought of providing the most 

comprehensive notice possible, and a notice that will, in fact, “reach” all class members.

In addition, Rule 23(h)(1) requires that “[n]otice of the motion [for attorneys’ fees] must 

be served on all parties and, for motions by class counsel, directed to class members in a reasonable 

manner.” Class Counsel will file their Motion for Attorneys’ Fees and Expenses no later than 30 

days before the extension deadline as detailed herein and before the deadline for Class Members 

to object. The Motion will be available on the Settlement Website after it is filed to allow Class 

Members the opportunity to review it.

The Notice Plan, described above, and in the accompanying Angeion Decl., provides all 

information required under Rule 23(c)(2)(B) in plain language and is designed to be “the best . . . 

practicable under the circumstances, including individual notice to all members who can be 

identified through reasonable effort.” Amchem, 521 U.S. at 617. All Settlement Class Members for 

whom addresses are known to Macy’s or Class Counsel will receive direct notice. The proposed 

notice program provides for not only direct mail to all known Macy’s Customers but also media 

notice using the internet and social media, which is designed to reach the demographics of the 

Settlement Class Members. The planned media notice is an acceptable method of providing notice 

where the identity of specific Settlement Class Members is not reasonably available. In addition, 

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the settlement website will be a useful resource: It will post the claim form, the long form notice, 

and key pleadings in the case. The Settlement Administrator will also establish a toll-free number 

for class members to call with questions. This plan provides the best notice practicable under the 

circumstances. See generally Angeion Decl.; see also In re Ins. Broker Antitrust Litig., 297 F.R.D. 

136, 152 (D.N.J. 2013) (finding notice via postcards to be sufficient). This notice plan also 

safeguards class members’ due process rights and enables the Court to fulfill its role as the guardian 

of class interests. See Newberg on Class Actions § 13:10 (5th ed.).

The proposed Notice Plan complies with Fed. R. Civ. P. 23 and due process because, 

among other things, it informs Settlement Class Members of: (1) the nature of the action; (2) the 

essential terms of the settlement, including the definition of the Settlement Class, and the benefits 

offered; (3) the binding effect of a judgment if the Settlement Class Member does not request 

exclusion; (4) the process for objection and exclusion, including the time and method for objecting 

or requesting exclusion and that Settlement Class Members may make an appearance through 

counsel; (5) information regarding the Named Plaintiffs’ request for an incentive award and the 

payment of attorneys’ fees and expenses; and (6) how to make inquiries. Fed. R. Civ. P. 

23(c)(2)(B).

Accordingly, the Notice Plan and Settlement Notice “fairly apprise the prospective 

members of the class of the terms of the proposed settlement and of the options that are open to 

them in connection with the proceedings.” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 

114 (2d Cir. 2005). The manner of providing notice, which includes individual notice by direct 

mail and email to all Settlement Class Members, represents the best notice practicable under the 

circumstances and satisfies the requirements of due process and Rule 23. See Frost v. Household 

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34

Realty Corp., 61 F. Supp. 3d 740, 745 (S.D. Ohio 2004). Thus, the Notice Plan should be approved. 

Fed. R. Civ. P. 23(c)(2)(A).

D. The Court should approve Angeion as Notice and Claims Administrator

The Declaration of Steven Weisbrot, Notice and Claims Administration expert with 

Angeion Group, sets forth his and Angeion’s expertise and qualifications. Angeion Decl. Named 

Plaintiffs request that the Court approve and appoint Angeion as Notice and Claims Administrator 

in this action. Id.

E. A final fairness hearing should be scheduled and the court should provide a 

schedule leading up to the fairness hearing

The Court should schedule a final fairness hearing to obtain all required information to 

determine that class certification is proper and the Settlement should be approved. See Manual for 

Complex Litigation, Fourth, § 21.633. The fairness hearing will provide a forum for proponents 

and opponents to explain, describe, or challenge the terms and conditions of the class certification 

and Settlement, including the Settlement's fairness, adequacy, and reasonableness. Accordingly, 

Named Plaintiffs request that the Court set a schedule leading up to a Fairness Hearing that 

includes the following dates:

Date Event

No later than 45 days after the 

entry of the Preliminary Approval 

Order or thirty (30) days after 

April 24, 2023, whichever is later

Class Notice Disseminated (“Notice Date”)

No later than 30 days after the 

Notice Date

Motion for Approval of Attorneys’ Fees and Expenses 

and Service Awards filed

60 days after Notice Date Objection and Opt-Out Deadline

180 days after the Effective Date Claim Submission Deadline

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No later than 14 days before 

Fairness Hearing

Motion for Final Approval filed

IV. CONCLUSION

For the foregoing reasons, the Court should grant preliminary approval of the proposed 

settlement of this class action, order the dissemination of notice, and schedule a final fairness 

hearing.

Date: March 24, 2023 By: _s/ Michael McShane

Michael McShane

Ling Y. Kuang

Kurt D. Kessler

AUDET & PARTNERS, LLP

711 Van Ness Avenue Suite 500

San Francisco, CA 94102

Telephone: (415) 568-2555

Facsimile: (415) 568-2556

mmcshane@audetlaw.com

Drew Legando

MERRIMAN LEGANDO

WILLIAMS & KLANG, LLC

1360 West 9th Street, Suite 200

Cleveland, OH 44113

Telephone: 216-522-9000

drew@merrimanlegal.com

Charles LaDuca

Brendan Thompson

CUNEO GILBERT & LADUCA LLP

4725 Wisconsin Avenue, NW Suite 200

Washington, DC 20016

Telephone: (202)789-3960

Facsimile: (202) 789-1813

charles@cuneolaw.com

brendant@cuneolaw.com

Charles Schaffer

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36

LEVIN SEDRAN & BERMAN, LLP

510 Walnut Street, Suite 500

Philadelphia, PA 19106

Telephone: (877) 882-1011

Facsimile: (215) 592-4663

cschaffer@lfsblaw.com

Stuart Cochran

COCHRAN LAW PLLC

8140 Walnut Hill Lane, Suite 250

Dallas, TX 75231

Telephone: (469) 333-3405

stuart@scochranlaw.com

Erica Mirabella

MIRABELLA LAW LLC

132 Boylston Street, 5th Floor

Boston, MA 02116

Telephone: (855) 505-5342

erica@mirabellallc.com

Bruce Steckler

STECKLER WAYNE CHERRY & 

LOVE

12720 Hillcrest Road, Suite 1045

Dallas, TX 75230

Telephone: 972-387-4040

bruce@swclaw.com

Attorneys for Plaintiffs

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37

CERTIFICATE OF SERVICE

I certify that on March 24, 2023, I electronically filed the foregoing with the Clerk of Court 

using the CM/ECF system, which will send notification of such filing to counsel of record in this 

matter who are registered on the CM/ECF.

_s/ Michael McShane

Michael McShane

Case: 1:17-cv-00754-DRC Doc #: 143 Filed: 03/24/23 Page: 46 of 46 PAGEID #: 4090