MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

CLARKSON LAW FIRM, P.C.

Ryan J. Clarkson (SBN 257074)

rclarkson@clarksonlawfirm.com

Shireen M. Clarkson (SBN 237882)

sclarkson@clarksonlawfirm.com

Bahar Sodaify (SBN 289730)

bsodaify@clarksonlawfirm.com

9255 Sunset Blvd., Ste. 804

Los Angeles, CA 90069

Tel: (213) 788-4050

Fax: (213) 788-4070

Settlement Class Counsel

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THOMAS IGLESIAS, individually and on 

behalf of all others similarly situated,

Plaintiff,

vs.

FERRARA CANDY CO., and DOES 1 

through 10, inclusive,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 3:17-cv-00849-VC

[CLASS ACTION]

PLAINTIFF’S NOTICE OF MOTION 

AND MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND 

AUTHORITIES

[Concurrently served with:

Declaration of Ryan J. Clarkson;

Declaration of Mark Schey; 

Supporting Exhibits thereto; and

Proposed Order]

Hon. Judge Vince Chabbria

Complaint filed: February 21, 2017

Hearing Date: October 25, 2018

Hearing Time: 10:00 AM

Hearing Location: Courtroom 4

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 1 of 29
i

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on October 25, 2018 at 10:00 am, or as soon thereafter as 

the matter may be heard, in the courtroom of the Honorable Judge Vince Chhabria, United States 

District Court for the Northern District of California, located at 450 Golden Gate Avenue, San 

Francisco, California, 17th Floor, Courtroom 4, Plaintiff Thomas Iglesias (“Plaintiff”), on behalf 

of himself, the general public, and all others similarly situated, by and through his counsel Ryan J. 

Clarkson, Shireen M. Clarkson, and Bahar Sodaify of Clarkson Law Firm, P.C., shall and hereby 

does move the Court, pursuant to Federal Rule of Civil Procedure 23(e), for an order as follows: 

(1) Certifying the Settlement Class as defined in the Settlement Agreement;

(2) Granting final approval of the class action Settlement;

(3) Granting final approval of Plaintiff Thomas Iglesias as Class Representative;

(4) Granting final approval of Clarkson Law Firm, P.C. as Class Counsel for the 

Settlement Class;

(5) Granting final approval of a 25% benchmark award of attorneys’ fees in the amount 

of $625,000, and reimbursement of litigation expenses in the amount of 

$102,172.12; and

(6) Granting final approval of a service award of $5,000.00 to sole Class Representative 

and Plaintiff, Thomas Iglesias.

A more detailed proposed order granting final approval has been concurrently filed 

herewith.

This motion is made on the grounds that final approval of the proposed class action 

Settlement is proper, given that the Settlement is fair, reasonable, and adequate and that all

requirements of Rule 23(e) have been met.

This motion is based on Federal Rule of Civil Procedure 23, this notice of motion, the 

supporting memorandum of points and authorities, the declaration of Ryan J. Clarkson, the 

declaration of Mark Schey and exhibits thereto, all pleadings and papers on file herein; Plaintiff’s 

notice of motion and motion for preliminary approval of class action settlement and all supporting 

materials (“Preliminary Approval Motion”) (Dkt. 72); the settlement agreement (“Settlement 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 2 of 29
ii

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Agreement” or “Settlement”) (Dkt. 72-4); the Court’s order granting preliminary approval to 

proposed class action settlement (Dkt. 80); Plaintiff’s motion for award of attorneys’ fees, 

expenses, and service award and all supporting materials (Dkt. 83); the court record of this action; 

all matters of which the Court may take notice; and any oral and documentary evidence presented 

at the hearing on the motion.

Pursuant to Local Rule 7-4(a)(3), the statement of issue to be decided by the Court is as 

follows: Whether the Court should grant final approval of the proposed class action Settlement 

pursuant to Federal Rule of Civil Procedure 23(e).

DATED: September 20, 2018 CLARKSON LAW FIRM, P.C.

 /s/ Ryan J. Clarkson____________ Ryan J. Clarkson, Esq.

Shireen M. Clarkson, Esq.

Bahar Sodaify, Esq.

Settlement Class Counsel

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 3 of 29
iii

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

TABLE OF CONTENTS

Page(s)

I. INTRODUCTION ..................................................................................................................1

II. FACTUAL AND PROCEDURAL BACKGROUND............................................................2

A. Plaintiff’s Claims. .......................................................................................................2

B. Preliminary Approval of the Settlement and Conditional Class Certification............2

C. Material Settlement Terms..........................................................................................3

1. The Proposed Settlement Class.............................................................................3

2. The Settlement Benefits........................................................................................3

3. No Reversion to Defendant...................................................................................4

D. The Settlement Process Was Successfully Carried Out..............................................4

1. The Notice Requirements were Satisfied..............................................................4

2. CAFA’s Notice Requirement has been Satisfied..................................................5

3. There Have Been Zero Exclusions, Zero Opt-outs, and Only Two Objections ...6

III. ARGUMENT..........................................................................................................................7

A. The Settlement Meets the Standards Governing Final Approval ...............................7

1. The Settlement Was a Result of Arm’s-Length Negotiations ..............................8

2. The Settlement Passes the Bluetooth Test and Is Not a Product of Collusion .....9

3. The Settlement is Fair Under the Hanlon Factors.................................................9

B. The Best Practicable Notice of Settlement Has Been Provided to the Class..............9

C. Final Approval is Appropriate under Rule 23 because the Settlement is Fair, 

Reasonable, and Adequate ........................................................................................11

1. The Strength of Plaintiff’s Case..........................................................................12

2. The Risk, Expense, Complexity, and Delay of Further Litigation Supports Final Approval ....................................................................................................14

3. The Settlement Amount Will Fairly and Adequately Compensate the Class.....15

4. The Settlement was Finalized after Extensive Discovery and Investigation......17

5. Counsel’s Experience and Views Support Final Approval.................................18

6. The Parties Participated in Arm’s-Length Negotiations Before an Experienced 

Neutral Mediator.................................................................................................18

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 4 of 29
iv

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

7. No Government Participant ................................................................................19

8. Class Members Have Reacted Extremely Positively to the Settlement..............19

D. The Court Should Grant Final Class Certification....................................................20

IV. CONCLUSION.....................................................................................................................21

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 5 of 29
v

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Bedolla, 

787 F.3d 1218 (9th Cir. 2015) ..............................................................................................16

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997)..............................................................................................................21

Arthur v. Sallie Mae, Inc., 

2012 WL 4075238 (W.D. Wash. 2012)..................................................................................7

Barcia v. Contain-A-Way, Inc.,

2009 U.S. Dist. LEXIS 17118 (S.D. Cal. 2009)...................................................................20

Carter v. Anderson Merchandisers, LP, 

2010 U.S. Dist. LEXIS 55581 (C.D. Cal. 2010).....................................................................8

Chun-Hoon v. McKee Foods Corp., 

716 F. Supp. 2d 848 (N.D. Cal. 2010)..................................................................................20

Churchill Village, LLC v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004) ............................................................................................9, 11

Class Plaintiffs v. Seattle,

955 F.2d 1268 (9th Cir. 1992) ..........................................................................................8, 11

Cotter v. Lyft, Inc., 

193 F. Supp. 3d 1030 (N.D. Cal. 2016)........................................................................ passim

Curtis-Bauer v. Morgan Stanley & Co.,

2008 U.S. Dist. LEXIS 85028 (N.D. Cal. 2008) ..................................................................14

Ellis v. Naval Air Rework Facility, 

87 F.R.D. 15, 18 (N.D. Cal. 1980)........................................................................................18

Ellis v. Naval Air Rework Facility, 

661 F.2d 939 (9th Cir. 1981) ................................................................................................18

Ford v. CEC Entm’t Inc.,

2015 WL 11439033 (S.D. Cal. 2015)...................................................................................10

Fulford v. Logitech, Inc.,

2010 U.S. Dist. LEXIS 29042 (N.D. Cal. 2010) ..................................................................14

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ...................................................................................... passim

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 6 of 29
vi

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

In re Apple Computer Sec. Litig.,

1991 U.S. Dist. LEXIS 15608 (N.D. Cal. 1991) ..................................................................14

In re Austrian & German Bank Holocaust Litig.,

80 F. Supp. 2d 164 (S.D.N.Y. 2000).....................................................................................20

In re Bluetooth Headset Products Liability Litig.,

654 F.3d 935 (9th Cir. 2011) ..............................................................................................8, 9

In re Hyundai & Kia Fuel Econ. Litig., 

881 F.3d 679 (9th Cir. 2018) ................................................................................................20

In re Immune Response Sec. Litig.,

497 F.Supp.2d 1166 (S.D. Cal. 2007) ..................................................................................17

In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454 (9th Cir. 2000) ................................................................................................17

In re Mfrs. Life Ins. Co. Premium Litig.,

1998 U.S. Dist. LEXIS 23217 (S.D. Cal. 1998)...................................................................13

In re Netflix Privacy Litig., 

2013 U.S. Dist. LEXIS 37286 (N.D. Cal. 2013) ..................................................................14

In re Pacific Enters. Sec. Litig.,

47 F.3d 373 (9th Cir. 1995) ............................................................................................11, 18

In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008) ..............................................................................................11

Lane v. Facebook, Inc.,

2010 U.S. Dist. LEXIS 24762 (N.D. Cal. 2010) ..................................................................14

Lane v. Facebook, Inc.,

696 F.3d 811 (9th Cir. 2012) ................................................................................................16

Larsen v. Trader Joe’s Co.,

2014 WL 3404531 (N.D. Cal. 2014) ......................................................................................7

Linney v. Cellular Alaska Partnership,

151 F.3d 1234 (9th Cir. 1998) ....................................................................................9, 13, 15

Mathein v. Pier 1 Imps. (U.S.), Inc.,

2018 U.S. Dist. LEXIS 71386 (E.D. Cal. 2018)...................................................................19

Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc.,

221 F.R.D. 523 (C.D. Cal. 2004)....................................................................................13, 20

O’Keefe v. Mercedes Benz, U.S.A., LLC,

214 F.R.D. 266 (E.D. Pa. 2013)..............................................................................................7

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 7 of 29
vii

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Officers for Justice v. Civil Serv. Comm’n,

688 F.2d 615 (9th Cir. 1982) ...................................................................................11, 15, 18

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ...............................................................................................................8

Roberts v. Electrolux Home Prod.,

2014 U.S. Dist. LEXIS 130163 (C.D. Cal. 2014)...................................................................7

Rodriguez v. West Publishing Corp.,

563 F.3d 948 (9th Cir. 2009) ......................................................................................9, 18, 19

Stoetzner v. U.S. Steel Corp.,

897 F.2d 115 (3d Cir. 1990)..................................................................................................20

Valdez v. Neil Jones Food Co.,

2016 U.S. Dist. LEXIS 105839 (E.D. Cal. 2016).................................................................13

Van Bronkhorst v. Safeco Corp.,

529 F.2d 943 (9th Cir. 1976) ................................................................................................15

OTHER AUTHORITIES

4 A Conte & H. Newberg, Newberg on Class Actions, § 11:50 at 155 (4th ed. 2002)...................13

28 U.S.C. Section 1715.................................................................................................................5, 6

Fed.R.Civ.P.23 ........................................................................................................................ passim

Managing Class Action Litigation: A Pocket Guide for Judges, Rothstein & Willging, 3B5

(4th ed. 2005) ....................................................................................................................................7

Manual for Complex Litigation, Third, § 30.41 (1995)....................................................................7

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 8 of 29
1

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff Thomas Iglesias (“Plaintiff” or “Mr. Iglesias”) requests that this Court grant final 

approval of the Settlement1, which provides significant benefits to Class Members who purchased 

theater box candy Products manufactured by Defendant Ferrara Candy Co. (“Defendant” or 

“Ferrara”).

2 The Settlement is fair, reasonable, and adequate and has already been preliminarily 

approved by this Court (Dkt. 80). 

As part of the settlement, Defendant will pay $2.5 million into a Claim Fund. Each Class 

Member who made a claim may obtain a cash refund of 50 cents per box purchased. Class 

Members were able to submit claims for an unlimited number of purchases. Up to 15 claims, for a 

total of $7.50, will be paid without Proof of Purchase. These amounts will increase pro rata to 

ensure the Claim Fund is exhausted. As of September 18, 2018, the pro rata distribution of the 

Claim Fund is estimated to increase by more than 50% to $.82 per box with an average of $14.28

per claim.3 Defendant will also modify its fill level quality control procedures and target fill levels 

to at least 75% for theater box Products, and at least 50% for bag-in-a-box Products. 

The Class has responded very favorably to the Settlement. To date, there have been 80,208

submitted claims by Class Members. Schey Decl. ¶ 24. Indeed, the number of claims received has 

exceeded what DSG had estimated at the preliminary approval hearing.4 Notably, there have been 

0 opt-outs, 0 exclusions, and 2 objections.

5 Schey Decl. ¶¶ 20-23, Exs. B, C.

Furthermore, there is a presumption that the Settlement is fair and adequate because the 

Settlement was reached after substantial discovery, law and motion practice, including a strong

class certification motion supported by four retained experts who conducted full expert reports 

 1 Unless defined herein, all capitalized terms referenced in this motion are defined in the 

Settlement Agreement (Dkt. 72-4).

2 Plaintiff and Defendant are collectively referred to as the “Parties.”

3 See declaration of Mark Schey of Digital Settlement Group (“DSG”) (“Schey Decl.”) ¶ 25. This 

amount is subject to slightly change as the deadline for submitting a claim is September 20, 2018, 

the same date as the filing of this motion. Declaration of Ryan J. Clarkson (“RJC Decl.”) ¶ 3. 4 At the preliminary approval hearing, DSG estimated the number of claims would exceed 50,000. 

RJC Decl. ¶ 3.

5 This data is as of September 18, 2018. See Schey Decl.

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 9 of 29
2

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

based on a detailed slack-fill analysis and large-scale consumer survey, and after arm’s-length 

negotiations between experienced attorneys familiar with the legal and factual issues of this case, 

including two mediations with experienced neutrals. RJC Decl. ¶ 4. The Settlement is also 

reasonable given the risk, expense, complexity, and likely duration of further litigation.

Accordingly, final approval of the class action Settlement is warranted. 6

II. FACTUAL AND PROCEDURAL BACKGROUND7

A. Plaintiff’s Claims

This is a consumer class action brought on behalf of purchasers of various “theater box”

candy Products sold at retail outlets and movie theaters in California and nationwide (Dkt. 71). 

Plaintiff alleged that Defendant unlawfully packages each of its Products in opaque boxes too 

large for the amount of candy contained therein and contain nonfunctional empty space, or “slackfill,” in violation of California and federal packaging laws, as well as California’s consumer 

protection laws. Id. Plaintiff alleged that Defendant’s oversized packaging falsely represents to 

consumers the quantity of candy and is a material issue to consumers which can be fixed by 

simply shrinking the box, filling the box, or adding additional features to the box that eliminate the 

consumer deception. Id.

B. Preliminary Approval of the Settlement and Conditional Class Certification 

On June 26, 2018, after a preliminary approval hearing, the Court ruled that the Settlement 

was within the range of reasonableness and possible final approval (Dkt. 80). The Court 

preliminarily approved the Settlement, conditionally certified the Settlement Class, appointed

Plaintiff Thomas Iglesias as Class Representative, appointed Clarkson Law Firm, P.C. as Class 

 6 Pursuant to the Settlement Agreement (Dkt. 72-4) and the Court’s Preliminary Approval Order

(Dkt. 80), Plaintiff filed a separate motion for an award of attorneys’ fees, expenses, and service 

award on September 6, 2018 (Dkt. 83). 

7 Plaintiff refers the Court to this case’s detailed history and facts set out in the “Factual and 

Procedural Background” section of Plaintiff’s Motion for Attorneys’ fees, Expenses, and Service 

award filed on September 6, 2018 (Dkt. 83). See Northern District’s Procedural Guidance for 

Class Action Settlements (“Regardless of when they are filed, requests for attorneys’ fees must be 

noticed for the same date as the final approval hearing. If the plaintiffs choose to file two separate 

motions, they should not repeat the case history and background facts in both motions. The 

motion for attorneys’ fees should refer to the history and facts set out in the motion for final 

approval”) (emphasis added).

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 10 of 29
3

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Counsel, designated DSG as the Settlement Administrator, approved the forms of class notice, and 

set the final approval hearing (Dkt. 80).

C. Material Settlement Terms

1. The Proposed Settlement Class

The Settlement Class (or “Class”) is comprised of “All persons who between February 21, 

2013 and the date of Preliminary Approval [June 21, 2018], purchased, in the United States, one 

or more candy Products manufactured by Defendant and packaged for sale or resale to consumers 

in an opaque cardboard box (including bag-in-a-box Products), including Jujyfruits®, Jujubes®, 

Now and Later®, Lemonhead®, Applehead®, Cherryhead®, Grapehead®, RedHots®, Trolli®, 

Chuckles®, Black Forest®, Jawbuster®, Jawbreaker®, Brach’s®, Boston Baked Beans®, Super 

Bubble®, Rainblo®, Atomic Fireball®, and all flavors and varieties of those candies.” 8

2. The Settlement Benefits

Pursuant to the terms of the Settlement Agreement, Defendant will pay $2.5 million into a

Claim Fund, which will cover, upon final approval by the Court, all settlement payments to Class 

Members, notice and administration costs ($522,000)9, a service award to Class Representative 

Thomas Iglesias ($5,000), reimbursement of litigation expenses ($102,172.12), and a benchmark 

attorneys’ fee award ($625,000). The Settlement also includes Defendant providing the Class 

injunctive relief by way of modifying its fill level quality control procedures and target fill levels 

to at least 75% for theater box Products, excluding bag-in-a-box, and 50% for all other Products, 

including bag-in-a-box. Dkt. 72-4 ¶ 4.1. Notably, Plaintiff’s packaging design engineering expert 

estimated the actual fill level for theater box Products to range from 42.6% to 52.5% and for Trolli 

bag-in-a-box Products to be 27.2%. Dkt. 54-18 p. 30 tbl. 11.

 8 Excluded Persons from the Settlement Class are: (1) the Honorable Vince Chhabria (2) Mediator 

Martin Quinn; (3) the Honorable William Cahill; (4) any member of their immediate family; (5) 

any government entity, (6) Defendant; (7) any entity in which Defendant has a controlling interest; 

(8) any of Defendant’s subsidiaries, parents, affiliates, and officers, directors, employees, legal 

representatives, heirs, successors, or assigns; (9) counsel for the Parties; and (10) any persons who 

timely opt-out of the Settlement Class. 9 This amount does not include the cost for printing and mailing settlement checks to claimants, 

which DSG has agreed to provide “at cost,” which totals $100,260 as of September 18, 2018, and 

which is estimated to be $112,760 after the claim submission deadline of September 20, 2018. 

RJC Decl. ¶ 5.

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 11 of 29
4

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Pursuant to the terms of the Settlement Agreement, each Class Member who made a claim 

would obtain a cash refund of 50 cents per box purchased. Dkt. 72-4 at ¶ 4.2.2. A Class Member 

was allowed to submit claims for an unlimited number of purchases. Id. Up to 15 claims, for a 

total of $7.50, will be paid without Proof of Purchase. Id. There is no cap on the number or 

amount of claims submitted by Class Members with Proof of Purchase. Id. These amounts have 

significantly increased pro rata to ensure the Claim Fund is exhausted. Id. ¶ 4.2.6. As of 

September 18, 2018, the pro rata distribution of the Claim Fund is estimated at $.82 per box with 

an average of $14.28 per claim. Schey Decl. ¶ 25. In other words, claimants’ settlement checks

will be more than 75% higher than expected. Id. This pro rata increase also account for the initial 

Administration Fees, estimated check fees, all attorney’s fees, and the Plaintiff’s service award, 

but is prior to any additional Administrative or check fees, remaining claims within deadline, and 

invalid, duplicate or fraudulent claims. Id. The deadline to submit Claim Forms is September 20, 

2018 (the date of the final approval motion deadline), and the deadline to opt out or object is also 

September 20, 2018, which is 60 days after the initial mailing of the Notice. See Dkt. 80.

3. No Reversion to Defendant

It is an express term of the Agreement that none of the $2.5 million Claim Fund will revert 

to the Defendant. Dkt. 72-4 ¶ 4.2.7. Instead, as described above, the claim amounts will be 

increased pro rata to ensure the Claim Fund is exhausted. Id. at ¶ 4.2.6.; Schey Decl. ¶ 25.

D. The Settlement Process Was Successfully Carried Out 

1. The Notice Requirements were Satisfied

In compliance with the Settlement Agreement (Dkt. 72-4) and the Court’s Preliminary 

Approval Order (Dkt. 80), Plaintiff effected proper notice through DSG as class action Settlement 

Administrator. DSG has performed the following duties: (1) arranging for the distribution of the 

Class Notice and Claim Forms to Settlement Class Members; (2) arranging for publication of the 

Publication Notice; (3) answering written inquiries from Settlement Class Members and/or 

forwarding such inquiries to Class Counsel or their designee; (4) receiving and maintaining on 

behalf of the Court and the Parties any Settlement Class Member correspondence regarding 

requests for exclusion from the Settlement; (5) establishing the Settlement Website that posts 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 12 of 29
5

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

notices, Claim Forms, and other related documents; (6) establishing a toll-free telephone number; 

(7) receiving and processing claims; (8) submitting a declaration attesting to the dissemination of 

the Class Notice and the number of claims received; (9) distributing the CAFA notice; (10) 

providing timely reporting to Counsel throughout the notice and claims process to allow for 

thorough oversight. Schey Decl. ¶ 3.

The notice plan was designed to reach the largest target audience in a cost-efficient and

timely manner. Id. ¶ 34. Furthermore, the notice plan provided the best notice practicable, with 

reach similar to other court-approved notice plans in the same product category. Id. The entire 

campaign reached at least 70 percent of the adult Internet users who fell into the targeted group, 

delivering 111,619,999 targeted internet impressions, an amount more than twice what DSG had 

originally estimated. Id. ¶ 18. Over 3.7 million internet notice impressions were delivered to 

consumers who visited or searched the following popular Movie-goer websites including 

Fandango.com, Fandango App, RottenTomatoes.com, Movietickets.com and MovieFone.com. Id. 

¶ 32. The Published Notice appeared on Soap Opera Digest, Life & Style, and National Enquirer. 

Id. ¶ 27. The print portion alone reached an estimated 13.7 million adults in the United States. Id. 

¶ 23. The Press Release reached another 8.9 million. Id. ¶ 23. Ultimately, the Settlement Website 

received 6,883,148 hits. Id. ¶ 19.

2. CAFA’s Notice Requirement has been Satisfied 

In compliance with the Class Action Fairness Act (“CAFA”), 28 U.S.C. Section 1715, on 

May 18, 2018, DSG served CAFA Notice to the Attorney General of the United States, the 

Attorneys General of each of the 50 States and the District of Columbia, and the Attorneys 

General of the 5 recognized U.S. Territories. Id. ¶ 12. DSG’s CAFA notice consisted of a CDROM containing the Complaint, FAC, SAC, Motion for Preliminary Approval of Settlement and 

Memorandum of Law in Support, Declaration of Ryan J. Clarkson in Support of Preliminary 

Approval of Class Action Settlement, Class Action Settlement Agreement, Order Granting 

Preliminary Approval of Class Action Settlement, & Forms of Notice i.e. the Settlement Proof of 

Claim Form, Long Form Notice, and the Class Action Summary Notice. Id. ¶ 12, see Ex. A.

///

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 13 of 29
6

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

As of September 18, 2018, DSG had not received a response to the CAFA Notice from any 

of the recipients. Id. ¶ 14. Furthermore, the final approval hearing, set for October 25, 2018, is 

being held more than 90 days after the issuance of the CAFA notice, such that the final approval 

order may be entered in accordance with CAFA’s notice requirements if the Court finds that all 

other requirements are met. 28 U.S.C. Section 1715(d).

3. There Have Been Zero Exclusions, Zero Opt-outs, and Only Two Objections

During the Claims Period10, DSG received 80,208 valid claims seeking reimbursement for 

1,404,729 boxes of candy. Schey Decl. ¶ 24. Of those, 299 claims included proof of purchase. Id. 

DSG received zero opt-outs, zero exclusions, and two objections. Id. ¶ 20.

The first “objection” was emailed to info@ferraracandysettlement.com on August 26, 

2018. Id. ¶ 21, Ex. B. This “objection” did not meet the requisite criteria to file an objection to the 

Settlement as indicated in the Notice and the Settlement Agreement.

11 This “objection” was not

filed with the Court, sent to Class Counsel or Defendant, and did not provide the legal grounds for 

the objection.

The second objection was emailed to Class Counsel by Patrick Sweeney (“Mr. Sweeney”), 

pro se, on September 13, 2018. Id. ¶ 22; Ex. C. Mr. Sweeney filed his objection only to Plaintiff’s 

request for a 25% benchmark attorneys’ fee award, an amount supported by controlling Ninth 

 10 The Claims Period is July 16, 2018 to September 20, 2018; however, these numbers do not 

account for any submissions made after September 18, 2018. 

11 Dkt 72-4 ¶ 8.2.1 (“Settlement Class Members shall have the right to appear and show cause, if 

they have any reason why the terms of this Class Action Settlement Agreement should not be 

given Final Approval, subject to each of the subprovisions in Paragraph 8.2. Any objection to this 

Class Action Settlement Agreement, including any of its terms or provisions, must be in writing, 

filed with the Court, with a copy sent the Court and Class Counsel, Counsel for Defendant, and the

Claims Administrator at the addresses set forth in the Class Notice, and postmarked no later than

the Notice Response Deadline. Settlement Class Members may object either on their own or

through an attorney hired at their own expense. Pursuant to the Court’s standing order, the Court

will only require substantial compliance with these requirements from Class Members who wish 

to object, which shall be stated in the Class Notice.”); see also Id. at ¶ 8.2.3. (“Any objection 

regarding or related to the Class Action Settlement Agreement shall contain a caption or title that 

identifies it as “Objection to Class Settlement in Iglesias v. Ferrara, No. 3:17-cv-00849-VC” and 

also shall contain the following information... (iii) the factual basis and legal grounds for the 

objection, including any documents sufficient to establish the basis for their standing as a 

Settlement Class Member, e.g., Receipt, or verification under oath as to the approximate date(s) 

and location(s) of their purchase(s) of the Covered Products.”)

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 14 of 29
7

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

circuit authority. Id. As will be discussed in greater detail in Plaintiff’s response to Mr. Sweeney’s 

objection due on October 4, 2018 (Dkt. 80), Mr. Sweeney’s “canned” objection fails to provide 

any legal authority12 and appears to have been filed for the sole purpose of extracting an 

“incentive fee” in this case. As the Federal Judicial Center warns in its Pocket Guide for Judges 

for managing class action litigation, “[w]atch out, though, for ‘canned objections filed by 

professional objectors who seek out class actions to simply extract a fee by lodging generic, 

unhelpful protests.’” Managing Class Action Litigation: A Pocket Guide for Judges, Rothstein & 

Willging, 3B5 (4th ed. 2005) (citing O’Keefe v. Mercedes Benz, U.S.A., LLC, 214 F.R.D. 266, 295 

(E.D. Pa. 2013). Indeed, some courts have described Mr. Sweeney as a “serial” objector who 

makes “canned” objections like the one here. See e.g., Roberts v. Electrolux Home Prod., No. 

8:12-cv-01644, 2014 U.S. Dist. LEXIS 130163 (C.D. Cal. 2014) (finding that Sweeney “routinely 

files objections to class settlements” and is a “serial objector.”); Larsen v. Trader Joe’s Co., No. 

11-cv-05188, 2014 WL 3404531, *7 (N.D. Cal. 2014) (overruling objections and recognizing that 

“attorney Patrick Sweeney also has a long history of representing objectors in class action 

proceedings”); Arthur v. Sallie Mae, Inc., No. 10-cv-00198, 2012 WL 4075238, at *2 (W.D. 

Wash. 2012) (granting final approval and overruling Sweeney’s objection as “meritless”).

III. ARGUMENT 

A. The Settlement Meets the Standards Governing Final Approval

Federal Rule of Civil Procedure 23(e) provides that “[a] class action shall not be dismissed 

or compromised without the approval of the court.” Fed. R. Civ. P. 23(e). Approval under Rule 

23(e) involves a two-step process in which the Court first determines whether a proposed class 

action settlement deserves preliminary approval and then, after notice is given to class members, 

whether final approval is warranted. See Manual for Complex Litigation, Third, § 30.41, at 236-37 

(1995). The Court has broad discretion to grant approval of class actions and should do so where 

the proposed settlement is “fair, adequate, reasonable, and not a product of collusion.” Hanlon v. 

Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); Cotter v. Lyft, Inc., 193 F. Supp. 3d 1030, 

1036, 2016 U.S. Dist. LEXIS 184931 (N.D. Cal. 2016). In determining whether a proposed 

 12 Id. ¶ 8.2.3 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 15 of 29
8

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

settlement should be approved, the Ninth Circuit has a “strong judicial policy that favors 

settlements, particularly where complex class action litigation is concerned.” Class Plaintiffs v. 

Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)).

The court also examines the settlement terms for overall fairness by balancing these factors: 

“the strength of plaintiff’s case; the risk, expense, complexity and likely duration of further 

litigation; the risk of maintaining class action status throughout the trial; the amount offered in 

settlement; the extent of discovery completed; the stage of the proceedings; the experience and 

views of counsel; the presence of a governmental participant; the reaction of the class members to 

the proposed settlement.” Hanlon, 150 F.3d at 1026; Cotter, 193 F.Supp.3d at 1035.

Furthermore, the Ninth Circuit has articulated additional factors that must be considered, 

especially where, as here, a settlement has been reached prior to class certification. In re Bluetooth 

Headset Products Liability Litig. (“Bluetooth”), 654 F.3d 935, 946 (9th Cir. 2011). The three “red 

flags” Bluetooth instructs trial courts to look for are: “(1) When class counsel receives a 

disproportionate distribution of the settlement, or when the class receives no monetary distribution 

but counsel is amply rewarded; (2) When the parties negotiate a ‘clear sailing’ arrangement 

providing for the payment of attorney’s fees separate and apart from class funds without objection 

by defendant; (3) When the parties arrange for fees not awarded to revert to defendants rather than 

be added to the class fund” (internal citations omitted). Id. at 947. Examination of each of these 

factors favors final approval here.

1. The Settlement Was A Result of Arm’s-Length Negotiations

A settlement is considered fair and reasonable if it occurred as a result of arm’s-length 

negotiations before an experienced mediator. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 852 

(1999); Carter v. Anderson Merchandisers, LP, No. EDCV 08-0025, 2010 U.S. Dist. LEXIS 

55581, at *22 (C.D. Cal. 2010) (“The Court is...satisfied the Settlement Agreement is the product 

of arm’s-length negotiation” because it was reached through “formal mediation sessions presided 

over by an experienced mediator[.]”)

The case was not settled early on. It took over a year of litigation, two full-day mediations

with two experienced neutrals, and weeks of follow-up mediation discussions with the assistance 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 16 of 29
9

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

of Honorable William Cahill. RJC Decl. ¶ 6. The Parties also conducted ample discovery to allow

experienced class action attorneys representing both parties to consider the full range of possible 

outcomes. Id. As such, the Parties reached the proposed Settlement only after they were capable of 

a full and fair understanding of their case and their opponent’s case, having gone through 

significant discovery and motion practice. Id.; See also, Rodriguez v. West Publishing Corp., 563 

F.3d 948, 967 (9th Cir. 2009).

2. The Settlement Passes the Bluetooth Test and Is Not A Product of Collusion

This Settlement passes the three-part Bluetooth test. First, the Claim Fund is substantially

larger than the 25% benchmark fee award requested by Class Counsel (Dkt. 83). Second, there is 

no “clear sailing” provision in the Settlement Agreement. Defendant is free to oppose the 

requested fee if it so chooses. Third, there is no reversion here.

3. The Settlement is Fair Under the Hanlon Factors

In determining whether a settlement is fair, a court weighs the benefits for the class against 

the uncertainty of litigation and the possibility that the class members would obtain no relief in the 

absence of a settlement. See Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) 

(“...it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive 

litigation that induce consensual settlements.”); see also, Hanlon, 150 F.3d at 1026 (When 

considering the fairness of a proposed class settlement, courts considers many factors, including,

the strength of a plaintiff’s case against the risk, expense, complexity and likely duration of further 

litigation.). As discussed in detail in Section III(C), infra, the balancing of the Hanlon factors and

other considerations confirm the Settlement is fair, adequate, and reasonable.

B. The Best Practicable Notice of Settlement Has Been Provided to the Class

Under Rule 23(e), the Court “must direct notice in a reasonable manner to all Class 

Members who would be bound by the propos[ed settlement].” Fed. R. Civ. P. 23(e)(1). Class 

Members are entitled to receive the “best notice practicable” under the circumstances. Id. Notice is 

satisfactory “if it generally describes the terms of the settlement in sufficient detail to alert those 

with adverse viewpoints to investigate and to come forward and be heard.” Churchill Village, LLC 

v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 17 of 29
10

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

The Class Notice in this case satisfies these requirements and was carried out in 

compliance with the notice procedures set forth in the Settlement Agreement, which the Court 

approved in its preliminary approval order (Dkt. 80). See Ford v. CEC Entm’t Inc., No. 14 Civ. 

677, 2015 WL 11439033, at *3 (S.D. Cal. 2015) (finding notice standards satisfied when claims 

administrator provided notice in accordance with the procedures previously approved by the court 

in its preliminary approval order). 

DSG created the best practicable notice consisting of efficient media vehicles with the 

objective of reaching a substantial portion of Class Members. Schey Decl. ¶ 8. In fact, DSG 

created the best practicable plan because it was designed in the same way a company would

design an advertising campaign to sell that very same product at issue. Id. ¶ 11. 

As discussed supra, notice was published in several places, all of which referred Class 

Members to the dedicated Settlement Website. Id. ¶ 27. The Settlement Website set forth, in large 

text, the deadlines for claims, objections, and requests for exclusion from the Settlement Classes 

as well as the date of the Final Fairness Hearing. Id. ¶ 8. It also contained easily accessible links to 

the short- and long-form notices, Preliminary Approval Order, Settlement Agreement, Amended 

Settlement Agreement, Fourth Amended Class Action Complaint, and Motion for Attorneys’ Fees 

and supporting documents. Id.

Three print publications ran in the August 6, 2018 issue of Soap Opera Digest, in the 

August 13, 2018 issue of National Enquirer and the August 6, 2018 issue of Life & Style, using 

the short-form notice approved by the Court. Id. They reached approximately 13.7 Million adults 

in the United States. Id. The internet notice began on July 26, 2018 and continued for a period of 

30 days until August 25, 2018. Id. This campaign achieved approximately 111,619,999 display

and search impressions on top-tier networks, including Google, Facebook, Yahoo and Movie 

specific sites including Fandango, MovieTickets, Moviefone and RottenTomatoes. Id. The entire 

campaign reached at least 70 percent of the adult internet users who fell into the targeted group, 

13.7 million consumers through its print ads and 8.9 million through the Press Release. Id.

Additionally, the claims administrator operated a toll-free information line and email 

address to provide information about the case and settlement. Id. During the Claims Period, DSG 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 18 of 29
11

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

received 80,208 valid claims seeking reimbursement for 1,404,729 boxes of candy. Id. ¶ 24. 

Notably, the number of claims received vastly exceeded the 50,000 minimum number of claims 

DSG had estimated at preliminary approval. RJC Decl. ¶ 3. Accordingly, the notice plan fulfilled 

all requirements of adequate notice and should be duly approved. 

C. Final Approval is Appropriate under Rule 23 because the Settlement is Fair, 

Reasonable, and Adequate 

The “universally applied standard” in determining whether a court should grant final 

approval to a class action settlement is whether the settlement is “fundamentally fair, adequate, 

and reasonable.” 5 Moore Federal Practice, § 23.85 (Matthew Bender 3d ed.) (citing In re Pacific 

Enters. Sec. Litig., 47 F.3d 373, 377 (9th Cir. 1995)). In making this determination, “[a]t the final 

approval stage, the court must balance the following non-exhaustive factors to evaluate the 

fairness of the proposed settlement: the strength of the plaintiffs’ case; the risk, expense, 

complexity, and likely duration of further litigation; the risk of maintaining class action status 

throughout the trial; the amount offered in settlement; the extent of discovery completed and the 

stage of the proceedings; the experience and views of counsel; the presence of a governmental 

participant; and the reaction of the class members to the proposed settlement.” Cotter, 176 F. 

Supp. 3d at 931; Hanlon, 150 F.3d at 1026. In making an approval inquiry, the court must be 

mindful that the law favors the compromise and settlement of class action suits. See, e.g., In re 

Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008); Churchill Village, LLC., 361 F.3d at 

576; Class Plaintiffs, 955 F.2d at 1276; Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 

625 (9th Cir. 1982). 

Already applying a rigorous review at the preliminary stage, the Court found the settlement 

fair, reasonable, and adequate (Dkt. 80). However, because “further factual development[s]” 

between preliminary and final approval, as well as the comments of objectors, may reveal 

unfairness in the settlement, even a “rigorous inquiry” at the preliminary approval stage does not 

“convert final review to a mere formality.” Cotter, 193 F. Supp. 3d at 1036. Accordingly, Plaintiff 

reiterates and expands on the reasons why final approval is warranted.

///

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 19 of 29
12

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

1. The Strength of Plaintiff’s Case

The Parties have balanced “plaintiffs’ expected recovery . . . against the value of the 

settlement offer,” taking into account “the relative strengths and weaknesses of the plaintiffs’ 

case.” Cotter, 176 F. Supp. 3d at 935 (internal quotations omitted).

Plaintiff vigorously litigated this case with one goal in mind: to change Defendant’s 

deceptive product packaging and make consumers whole. In pursuit of his goal, Plaintiff and Class 

Counsel exhausted significant time and resources, including substantial law and motion work, 

review of over 6,000 pages of documents, conducting numerous Rule 30(b)(6) depositions, and

retaining four experts who conducted a large- scale consumer survey, detailed slack fill analysis, 

marketing analysis, and conjoint analysis, in support of Plaintiff’s motion for class certification, as 

well as attending two mediations in San Francisco. Id.

In line with Plaintiff’s goal, the Settlement provides Class Members both significant 

monetary relief and injunctive relief. In particular, the Settlement allows for a generous refund of 

50 cents per box purchased, or a two- to five-times multiplier of what class members could 

potentially recover at trial. Id. ¶ 3, Dkt. 72-4 ¶ 4.2.2. Plaintiff’s retained experts in economics and 

conjoint analysis, Dr. Justin Lenzo and Dr. Michael Bechtel, respectively, calculated the price 

premiums attributable to the challenged packaging. Dkt. 54-13. Based on the results of the 3,788-

participant consumer survey, which were applied to the results of a detailed slack-fill analysis of 

the Products completed by Plaintiff’s packaging design engineering expert, Dr. Claire Sand (Dkt. 

54-18), the price premium attributable to nonfunctional slack-fill in the retail channels equaled 

16.1% to 26.4% across the Products (Dkt. 54-13 ¶ 145). The price premium for the movie theater 

channel was slightly less, ranging from 9.9% to 16.6% across the Products. Id. Based on an 

average retail price of $1.00 per unit, the per-unit price premium would equal approximately 10 

cents to 26 cents. Id. Accordingly, the cash recovery that the Settlement offers is far greater on a 

per box basis than the amount class members could obtain at trial. Id. In fact, the pro rata 

distribution of the Claim Fund is estimated at $.82 per box with an average of $14.28 per claim, 

which is 3- to 8-times greater than the expected recovery at trial. RJC Decl. ¶ 3; Schey Decl. ¶ 25.

///

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 20 of 29
13

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

In addition to monetary relief, Defendant’s changed business practices will benefit Class 

Members, consumers, and the general public, by ensuring they receive an amount of candy 

commensurate with their expectation and thereby help dispel any deception. RJC Decl. ¶ 7. In 

particular, Defendant has agreed to modify its fill level quality control procedures and target fill 

levels to at least 75% for theater box Products. Id.; Dkt. 72-4 ¶ 4.1. Notably, Plaintiff’s experts 

estimated the actual fill level for theater box Products to range from 42.6% to 52.5% and for Trolli 

bag-in-a-box Products to be 27.2% (Dkt. 54-18 p. 30 tbl. 11), and found consumers on average 

expect the Products to be filled 67% based on the size of the Products’ box (Dkt. 54-13 ¶¶ 25, 99). 

Although Plaintiff believes he has a strong case with substantial supporting evidence, 

Plaintiff would have to overcome significant potential hurdles to recover a fraction of the benefits 

promised under the settlement. See Linney v. Cellular Alaska Partnership, 151 F.3d 1234 (9th Cir. 

1998) (approving $6 million settlement fund as fair, adequate, and reasonable, finding risk of 

going to trial “significant”); Valdez v. Neil Jones Food Co., No. 1:13-cv-00519, 2016 U.S. Dist. 

LEXIS 105839, at *21 (E.D. Cal. 2016) (“Given the uncertainty of ultimate success at trial, the 

proposed settlement provides the parties with a fair resolution of the issues presented which 

weighs in favor of settlement.”); Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 

523, 526 (C.D. Cal. 2004) (quoting 4 A Conte & H. Newberg, Newberg on Class Actions, § 11:50 

at 155 (4th ed. 2002)) (“In most situations, unless the settlement is clearly inadequate, its 

acceptance and approval are preferable to lengthy and expensive litigation with uncertain 

results.”); In re Mfrs. Life Ins. Co. Premium Litig., MDL No. 1109, No. 96-CV-230, 1998 U.S. 

Dist. LEXIS 23217, at *17 (S.D. Cal. 1998) (“There is easily enough uncertainty in the mix to 

support settling the dispute rather than risking no recovery in future proceeding.”).

Indeed, loss on any one of the following hurdles would eliminate or drastically reduce the 

recovery: (1) obtaining Rule 23 class certification; (2) maintaining Rule 23 class certification; (2) 

defeating prospective summary judgment; (3) establishing liability at trial; (4) overcoming

Daubert challenges; (5) engaging in a “battle of the experts”; and (5) even if Plaintiff was to 

prevail on all of these issues, the Ninth Circuit or Supreme Court could reverse any victory. RJC 

Decl. ¶ 8. 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 21 of 29
14

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

2. The Risk, Expense, Complexity, and Delay of Further Litigation Supports

Final Approval 

In applying this factor, a court should weigh the benefits of the settlement against the 

expense and delay involved in achieving an equivalent or even more favorable result at trial. Lane 

v. Facebook, Inc., No. C 08-3845, 2010 U.S. Dist. LEXIS 24762, at *16 (N.D. Cal. 2010); CurtisBauer v. Morgan Stanley & Co., No. C 06-3903, 2008 U.S. Dist. LEXIS 85028, at *13 (N.D. Cal.

2008) (“Settlement avoids the complexity, delay, risk and expense of continuing with the litigation 

and will produce a prompt, certain, and substantial recovery for the Plaintiff class.”).

Here, litigating the case through to trial would have been expensive, required extensive 

resources, involved substantial risk, and would not have been fully resolved for years. RJC Decl. ¶ 

9. Even if Plaintiff were to expend the time and resources litigating the case and prevailed at trial, 

the Class would face additional risks if Defendant appeals or moves for a new trial. See In re 

Apple Computer Sec. Litig., No. C-84-20148(A), 1991 U.S. Dist. LEXIS 15608 (N.D. Cal. 1991) 

(the jury rendered a verdict for plaintiffs exceeding $100 million, however, the court overturned 

the verdict and ordered a new trial with respect to the corporate defendant). In contrast, the 

Settlement provides significant and certain relief that is available now as opposed to a fraction of 

this recovery potentially and hypothetically in the distant future. 

Plaintiff also faces risks in certifying a class and maintaining that class status through trial. 

Indeed, even assuming that the Court were to grant Plaintiff’s March 5, 2018 motion for class 

certification, the class could still be decertified at any time. See In re Netflix Privacy Litig., No. 

5:11-CV-00379, 2013 U.S. Dist. LEXIS 37286, at *15-16 (N.D. Cal. 2013) (internal citations 

omitted) (“The notion that a district court could decertify a class at any time is one that weighs in 

favor of settlement.”). From their prior experience, Plaintiff’s counsel anticipates that Defendant

would oppose certification, seek interlocutory appeal pursuant to Rule 23(f), and move to

decertify at a later date. RJC Decl. ¶ 9. Settlement now eliminates these risks by ensuring Class 

Members a recovery that is “certain and immediate, and eliminates the risk that class members 

would be left without any recovery... at all.” Fulford v. Logitech, Inc., No. 08-cv-02041, 2010 

U.S. Dist. LEXIS 29042, at *8 (N.D. Cal. 2010).

///

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 22 of 29
15

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Furthermore, complex class actions can be expensive and time-consuming to prosecute. 

Indeed, the Parties’ additional expert costs would quickly accumulate as a result of expert 

depositions, rebuttal reports, oppositions to any Daubert challenges, testimony, and any associated 

costs such as travel expenses which could quickly lead to a scenario in which settlement might not 

be economically feasible for either party. RJC Decl. ¶ 10. The alternative to a class/collective 

settlement – i.e., individual litigation – fares no better as it would tax private and judicial 

resources over a period of years. As such, the Settlement in this case is consistent with the 

“overriding public interest in settling and quieting litigation” that is “particularly true in class 

action suits” and thus, provides another reason to approve the Settlement. Van Bronkhorst v. 

Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976).

Lastly, a trial would likely not commence until sometime in mid-2019 or later. RJC Decl. ¶ 

11. Thus, any monetary and injunctive relief, which is not guaranteed and likely would not be as 

substantial as what Plaintiff has achieved with this Settlement, would probably be delayed by at 

least a year. Id. In the meantime, Defendant would be permitted to continue to deceptively 

package the Products with impunity to the financial detriment of class members and consumers. 

3. The Settlement Amount Will Fairly and Adequately Compensate the Class 

The settlement amount, as with any settlement, represents a compromise between 

receiving full damages and penalties on the one hand, and total defeat (including possible 

imposition of defense costs) on the other. See Officers for Justice v. Civil Serv. Comm’n of City & 

Cty. of San Francisco, 688 F.2d 615, 624 (9th Cir. 1982) (“Naturally, the agreement reached 

normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the 

Parties each give up something they might have won had they proceeded with litigation.”) 

Accordingly, the settlement is not to be judged against a speculative measure of what might have 

been achieved. Linney, 151 F.3d at 1242. Rather, “[s]ettlement is the offspring of compromise; the 

question we address is not whether the final product could be prettier, smarter or snazzier, but 

whether it is fair, adequate and free from collusion.” Hanlon, 150 F.3d at 1027. Given the risks 

and complexity of litigation, and the cost savings obtained through settlement, the Settlement 

amount here is fair and adequate.

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 23 of 29
16

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

As discussed supra, Defendant will pay a total of $2.5 million in cash to a Claim Fund 

whereby each Class Member who made a claim may obtain a cash refund of 50 cents per box 

purchased for an unlimited number of purchases. Dkt. 72-4 ¶ 4.2.2. Up to 15 claims, for a total of 

$7.50, will be paid without proof of purchase. Id. There is no cap on the number or number of 

claims submitted by class members with proof of purchase. Id. No money will revert to 

Defendant. Id. ¶ 4.2.7. Accordingly, with 80,208 valid claims as of September 18, 2018, the pro 

rata distribution of the Claim Fund is estimated at $.82 per box with an average of $14.28 per 

claim13, which is over 75% higher than expected. Schey Decl. ¶ 25. Notably, this Settlement is the 

largest-ever slack-fill settlement on record and provides a superior recovery for the Class. RJC 

Decl. ¶ 12.

The Settlement also provides the Class with significant injunctive relief which requires 

Defendant to modify its fill level quality control procedures and target fill levels going forward to 

at least 75% for theater box Products, and 50% for all other Products, including bag-in-a-box. Dkt.

72-4 ¶ 4.1. The value of injunctive relief—including the benefit to consumers in the form of an 

improved marketplace that is not skewed by false advertising—can properly be considered when 

evaluating a settlement’s fairness. See, e.g., Allen v. Bedolla, 787F.3d 1218, 1224 (9th Cir. 2015) 

(explaining that in evaluating the fairness of a settlement, district courts should “make express 

findings about the value of the injunctive relief”); Lane v. Facebook, 696 F.3d 811, 826 (9th Cir. 

2012) (noting that a “judicially-enforceable agreement” to maintain changed practices may be 

considered in a fairness inquiry).

Assuming this case went to trial, Plaintiff’s counsel believes that the best-case recovery at 

trial would be approximately $20 million, based on applying Drs. Lenzo and Bechtel’s damages 

analysis (Dkt. 54-13) to nationwide sales figures. RJC Decl. ¶ 13. However, Defendant disputes 

any such premium exists, and expert testimony on the subject is likely to diverge wildly. Id.

Considering the foregoing, the Settlement fairly and adequately compensates Class 

Members. 

 13 This pro rata includes the initial Administration Fees, estimated check fees, all Attorney’s Fees, 

the Plaintiff’s service award, but is prior to any additional Administrative or check fees, remaining 

claims within deadline, invalid, duplicate or fraudulent claims. Schey Decl. ¶ 25. 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 24 of 29
17

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

4. The Settlement was Finalized after Extensive Discovery and Investigation

“[I]n the context of class action settlements, ‘formal discovery is not a necessary ticket to 

the bargaining table’ where the parties have sufficient information to make an informed decision 

about settlement.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (citation 

omitted); see also In re Immune Response Sec. Litig., 497 F.Supp.2d 1166, 1174 (S.D. Cal. 2007) 

(approving settlement where informal discovery gave parties clear view of strength and 

weaknesses of their cases).

Here, the Parties engaged in formal and informal discovery, pursued extensive written 

discovery, and thoroughly investigated Plaintiff’s claims. RJC Decl. ¶ 14. Indeed, Plaintiff 

dedicated considerable time, effort, and skill engaging in the following: (1) developing the causes 

of action in this case; (2) evaluating the likelihood of getting the matter certified and maintaining 

class status throughout the case; (3) appraising the strength of Plaintiff’s liability theory, the extent 

and range of class recovery against the risks of not obtaining and maintaining class certification 

status; (4) assessing the risks posed through the normal perils of litigation, including the defenses 

asserted by Defendant, Defendant’s proffered records, the difficulties of complex litigation, the 

lengthy process of establishing specific damages, and various possible delays and appeals; (5) 

engaging in rounds of interrogatories and requests for production; (6) reviewing over 6,000 

documents totaling thousands of pages14; (7) taking the depositions of Defendant’s Rule 30(b)(6) 

corporate designees; (8) serving third party subpoenas; (9) extensive discussions with Plaintiff’s 

four experts who conducted in-depth studies and analyses, produced thorough expert reports on 

product packaging design, marketing, and conjoint analysis/damages, as well as a large-scale 

consumer survey; and (10) significant legal research and briefing. Id. The Parties also attended 

two in-person mediations in San Francisco. Id. Accordingly, the Settlement Agreement is the 

result of fully-informed arm’s length negotiations based on a well of information obtained through 

discovery. Id.

///

 14 In fact, the actual amount of discovery materials exceeds this amount because many of these 

documents are actually voluminous Excel spreadsheets with multiple tabs of information and 

some of which are dozens if not hundreds of pages long when printed. RJC Decl. ¶ 14.

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 25 of 29
18

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

5. Counsel’s Experience and Views Support Final Approval

The judgment of experienced counsel regarding the settlement is entitled to great weight. 

Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff’d, 661 F.2d 939 (9th 

Cir. 1981). Reliance on such recommendations is premised on the fact that “[p]arties represented 

by competent counsel are better positioned than courts to produce a settlement that fairly reflects 

each party’s expected outcome in litigation.” Rodriguez, 563 F.3d at 967; In re Pac. Enters. Sec. 

Litig., 47 F.3d 373, 378 (9th Cir.1995) (“[p]arties represented by competent counsel are better 

positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in 

the litigation.”)

Class Counsel endorses the Settlement as fair, adequate, and reasonable. RJC Decl. ¶ 15.

Class Counsel has extensive experience in the litigation, certification, trial, and settlement of 

complex class action cases. See Dkt. 72-5. In negotiating the Settlement, Class Counsel benefited 

from their years of experience along with their intimate knowledge of the factual and legal issues 

in this case. Id. Thus, the experience of counsel, and the fact that counsel for both Parties support 

the Settlement, weighs in favor of final approval.

6. The Parties Participated in Arm’s-Length Negotiations Before an 

Experienced Neutral Mediator. 

As discussed supra, the Ninth Circuit has shown longstanding support of settlements 

reached through arms’ length negotiation by capable opponents. In Rodriguez, supra, 563 F.3d 

948, the Ninth circuit expressly opined that courts should defer to the “private consensual decision 

of the [settling] parties.” Id. at 965 (citing Hanlon, 150 F.3d at 1027). The primary reason for 

deferring to such settlements is the experience of counsel and the participation of a neutral, both of 

which factors are present here:

[T]he court’s intrusion upon what is otherwise a private consensual agreement 

negotiated between the parties to a lawsuit 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.

Id. at 965 (quoting Officers for Justice, 688 F.2d at 625).

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 26 of 29
19

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

The Rodriguez court “put a good deal of stock in the product of an arm’s-length, noncollusive, negotiated resolution, and [courts] have never prescribed a particular formula by which 

that outcome must be tested.” Rodriguez, 563 F.3d at 965 (citations omitted). As the Rodriguez 

court explained, “In reality, parties, counsel, mediators, and district judges naturally arrive at a 

reasonable range for settlement by considering the likelihood of a plaintiffs’ or defense verdict, 

the potential recovery, and the chances of obtaining it, discounted to present value.” Id. (citations 

omitted).

The proposed Settlement here is the product of arm’s-length negotiations between the 

Parties. RJC Decl. ¶ 16. As previously stated, Plaintiff conducted a significant investigation of the 

facts and law during the prosecution of this action, including (1) extensive discovery and law and 

motion practice; (2) obtaining and reviewing detailed records produced by Defendant; (3)

conducting a comprehensive analysis of the material issues in the case based on reports prepared 

by experts in survey design, damages, packaging engineering, and marketing; and (4) attending 

two mediations in San Francisco with the help of two experienced neutrals. Id. The Parties 

considered the strengths and weaknesses of Plaintiff’s claims and Defendant’s defenses. Id.

The Parties also considered the uncertainty and risk of the outcome of further litigation and 

the difficulties and delay inherent in such litigation. Id. ¶ 17. The Parties are also aware of the

burdens of proof necessary to establish the amount of damages for the Class Members, not to 

mention the strong likelihood that Defendant would appeal any court decision in Plaintiff’s favor.

Id. Considering the foregoing, final approval is warranted.

7. No Governmental Participant 

There is no governmental participant in this case. Therefore, this factor is neutral. See 

Mathein v. Pier 1 Imps. (U.S.), Inc., No. 1:16-cv-00087, 2018 U.S. Dist. LEXIS 71386, at *21 

(E.D. Cal. 2018) (“Because there are no separate governmental participants involved in the action, 

this factor is neutral in the court's analysis of the settlement agreement.”)

8. Class Members Have Reacted Extremely Positively to the Settlement 

“It is established that the absence of a large number of objections to a proposed class 

action settlement raises a strong presumption that the terms of a proposed class settlement action 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 27 of 29
20

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

are favorable to the class members.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 

523, 528-29 (C.D. Cal. 2004); see Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 852 

(N.D. Cal. 2010) (Walker, J.) (granting final approval where only 16 of 329 class members opted 

out, and explaining that where exclusions and opt-outs are low, there is presumption of favorable 

class reaction).

After this Court’s Preliminary Approval Order, the Parties implemented the Courtapproved Notice Plan. Class Members had until September 20, 2018, to object to the Settlement

(Dkt. 80). Notably, while more than 80,000 Class Members have chosen to participate in the 

Settlement, there have been 0 opt-outs, 0 exclusions, and only two objections (both of which are 

procedurally and substantively deficient). Schey Decl. ¶ 20; see National Rural Telecomm. Coop.

v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004) (“The absence of a single objection to 

the Proposed Settlement provides further support for final approval of the Proposed Settlement.”); 

Barcia v. Contain-A-Way, Inc., No. 07cv938, 2009 U.S. Dist. LEXIS 17118, at *12 (S.D. Cal. 

2009) (finding zero objections and 56 opt-outs out of 2,385 class members “strongly supports the 

fairness, reasonableness, and adequacy of the settlement.”); see also In re Austrian & German 

Bank Holocaust Litig., 80 F. Supp. 2d 164, 175 (S.D.N.Y. 2000) (“If only a small number of 

objections are received, that fact can be viewed as indicative of the adequacy of the settlement.”); 

Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118-119 (3d Cir. 1990) (finding 29 objections out of a 

281 member class “strongly favors settlement”). As such the overwhelmingly positive response of 

Class Members favors final approval.

D. The Court Should Grant Final Class Certification

The Court’s Preliminary Approval Order provisionally certified the Settlement Class 

pursuant to Rule 23 of the Federal Rules of Civil Procedure (Dkt. 80). The Court ruled that, for 

purposes of settlement, the Class meets the Rule 23 requirements. Id. No intervening case law or 

events have developed since then to disturb the Court’s ruling.

As part of its ruling, the Court stated that it considered differences in state laws as part of 

the predominance inquiry but that it need not consider “whether the case, if tried, would present 

intractable management problems, for the proposal is that there be no trial.” In re Hyundai & Kia 

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 28 of 29
21

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

Fuel Econ. Litig., 881 F.3d 679, 693 (9th Cir. 2018) (“Hyundai”) (quoting Amchem Prods., Inc. v. 

Windsor, 521 U.S. 591, 624, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997)). Dkt. 80. The Court ruled 

that Plaintiff has submitted extensive briefing and supplemental materials in support of his motion 

for preliminary approval identifying the similarities and differences among state laws and setting 

forth why the common issues predominate and why the differences are immaterial to this 

litigation. Id.; see Dkt. 72 at Section IV. For those reasons, the Court found that common issues 

predominate with respect to the Settlement Class. Dkt. 80. The Court also appointed Plaintiff

Thomas Iglesias as Class Representative and Plaintiff’s counsel, Clarkson Law Firm, P.C., as 

Class Counsel. Id.

Consistent with its preliminary findings, the Court should grant final class certification.

IV. CONCLUSION 

For the reasons stated above, and the reasons set forth in Plaintiff’s motion for preliminary 

approval of class action settlement (Dkt. 72), Plaintiff respectfully requests that this Honorable 

Court GRANT final approval of the class action Settlement.

DATED: September 20, 2018 CLARKSON LAW FIRM, P.C.

 /s/ Ryan J. Clarkson_________

Ryan J. Clarkson, Esq.

Shireen M. Clarkson, Esq.

Bahar Sodaify, Esq.

Settlement Class Counsel

Case 3:17-cv-00849-VC Document 84 Filed 09/20/18 Page 29 of 29