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IN THE 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. 

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

[CLASS ACTION]

DECLARATION OF MARK 

SCHEY IN SUPPORT OF 

PLAINTIFF’S MOTION FOR 

PRELIMINARY APPROVAL

 

Case 3:17-cv-00849-VC Document 72-6 Filed 05/10/18 Page 1 of 9
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DECLARATION OF MARK SCHEY 

I, MARK SCHEY, hereby declare under penalty of perjury as follows: 

1. I am a founding partner of Digital Settlement Group, LLC (“DSG”), a 

company that provides class action notice and claims administration. The following 

statements are based on my personal knowledge and information provided by other 

DSG principals and employees working under my supervision, and if called upon to 

do so, I could and would testify competently about these issues. 

2. DSG was retained to provide notice and claims administration services for the 

proposed settlement in this action. 

3. Digital Settlement Group has served as a court-approved notice provider in 

over a dozen state and federal court class actions and has worked in the class action 

category for over eight years and provided expertise in Internet notice to some of the 

largest class action administration companies in the industry, including the following 

class actions: Keller v. Gaspari Nutrition, No. CV11-06158 (U.S. Dist. Ct., Central 

Dist.); Taromina, v. Gaspari Nutrition, No. CV12-05424 (U.S. Dist. Ct., Central 

Dist.); Wike v. HCG Platinum, LLC, No. BC451080 (Los Angeles County Superior 

Court). Most recently, DSG managed notice and administration for Garcia v. Iovate 

Health Sciences USA Inc. (Santa Barbara Superior Court) (National indirect 

purchaser class of a consumer product at retail). 

4. In approving In Re: Wellnx Marketing & Sales Practices (a national, 18 state 

multidistrict class action litigation with a substantial indirect purchaser class), the 

Court noted: “the effort to provide notice to the class went well beyond what due 

process would require at its minimum. In fact, it was both an intelligent and effusive, 

if I can use that word, notification process, which has given me some new ideas for 

similar cases in the future for the proper way of giving notice in a case like this 

where it is hard to otherwise ascertain the identity of the class members.” 

/// 

/// 

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5. Additionally, Digital Settlement Group has over twenty years of marketing 

experience with a specialty in television and Internet advertising, including 

managing the official online sites for 20th Century Fox on behalf of News 

Corporation from 1993 to 1996. Our founders have served as a marketing consultant 

to a variety of consumer product companies, where responsibilities included creative 

directing national marketing campaigns and producing and directing national 

television commercials (which have been featured in trade magazines, like 

Advertising Age, and generated hundreds of millions of dollars in retail revenue). 

Digital Settlement Group personally managed tens of millions of dollars in Internet 

advertising for consumer products. Due to the extensive Internet marketing 

experience, our area of specialty is providing class notice in cases where the 

identities of individual Class Members are not known, including classes comprised 

of purchasers of consumer products. See Arreguin v. Telebrands, No. 

CIVRS1307798 (Superior Court of California, San Bernardino County) (Indirect 

purchaser class of nationwide Pocket Hose consumer product.); and Eggnatz et al v. 

The Kellogg Company et al, S.D. Fla., Case No. 1:12-cv-21678 (Indirect purchaser 

class of nationwide Kashi products with no direct mail component). 

6. DSG has provided class action settlement services in cases of varying sizes 

and complexity. DSG is comprised of Internet marketing and class action noticing 

experts, each with between ten to twenty years of experience. The principals have 

provided Internet marketing for clients including Fortune 500 companies. The 

principals of DSG have successfully executed hundreds of television and Internet 

campaigns. This experience is leveraged to execute the most efficient notice 

strategies and administration. For example, DSG is currently serving as the courtappointed notice provider and administrator in a matter similar to the Litigation here. 

See Stephen Inocencio, et al. v. Telebrands Corporation, Docket No. L-4378-16 

(Superior Court of New Jersey, Law Division, Bergen County) (consumer product 

sold predominantly at retail that utilized a similar notice plan methodology). 

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7. This declaration will describe the notice program that my colleagues and I 

suggest using in this matter, including the considerations that informed the 

development of the plan and why it will provide Due Process of Law to the Class 

Members. 

8. Attached hereto as Exhibit A is a true and correct copy of DSG’s Class Notice 

Program and Plan for Claims Administration. 

SUMMARY OF NOTICE PROGRAM 

9. This Litigation involves Products sold predominantly at retail outlets and 

movie theaters and, so the identity of purchasing Class Members is not readily 

known. In such cases, Internet and publication notice is the best way to inform Class 

Members about the Settlement. Digital Settlement Group relies heavily on 

recommendations from the Federal Judicial Center's Judges’ Class Action Notice and 

Claims Process Checklist and Plain Language Guide (“Claims Guide”) in designing 

its notice plans. 

10. DSG developed a comprehensive notice program consisting of efficient media 

vehicles with the objective of reaching a substantial portion of Class Members. A 

detailed breakout of the notice plan is outlined in the Service Agreement. DSG 

believes this provides the best practicable methods to reach potential class members 

and has seen successful results in similar plans with similar class members. 

11. Before any of the notices begin, DSG will review all materials and work with 

Counsel to help comply with Claims Guide recommendations and timelines. All the 

advertisements will direct potential Class Members to the Settlement Website, where 

they will be able to download all important documents, review frequently asked 

questions, and file a claim either online and/or postal as stated in the agreement. 

Administration will notify claimants of any missing or invalid claim information 

after the Approval Hearing. The print advertisements will also have address, email 

and phone in case individuals cannot access a computer. A toll-free number with an 

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Interactive Voice Response (“IVR”) system will also be available to answer potential 

questions. 

12. One of the concerns noted in the Claims Guide is that claims administrators 

are “often accountants by training and may lack personal knowledge or the training 

to conduct reach analyses.” Digital Settlement Group, however, has extensive 

expertise in marketing and media-planning that is essential to conducting reach 

analysis that has been approved by Courts in similar cases with a large indirect 

purchaser class. 

13. The notice plan is supported by “unbiased evidence supporting the plan's 

adequacy” as recommended by the Claims Guide. DSG uses industry-standard 

reporting tools from GfK MRI and comScore. GfK MRI is part of the GfK Group, 

the fourth largest market research organization worldwide. They’re a leader in 

supplying the audience data for almost all national print campaigns in the country 

and their Survey of the American Consumer produces one of the country's largest 

and most current database of consumer behavior, media usage and consumer 

motivations. comScore is the leading cross-platform measurement company that 

provides independent data, metrics, products and services to clients in the media, 

advertising and marketing industries. They provide digital media analytics that help 

advertisers understand the composition, reach, and frequency of consumer media 

audiences. The accuracy of reporting from both GfK MRI and comScore has been 

approved by Courts in previous notice plans we’ve developed. 

14. Our notice programs create the best practicable plan because they are 

designed in the same way a company would design an advertising campaign to sell 

that very same product. Specifically, we used industry standard advertising tools to 

identify media properties where purchasers of candy were most likely to be located. 

In addition, the methods used have been approved in multiple cases with a 

substantial indirect purchaser class (See Arreguin v. Telebrands and Eggnatz et al v. 

The Kellogg Company). 

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CLASS DEFINITION 

15. The “Settlement Class” is defined as: “All persons who between February 21, 

2013 and the date of Preliminary Approval, 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.” 

SETTLEMENT WEBSITE 

16. Digital Settlement Group will create and maintain a dedicated web site for the 

Class Members to learn about the Settlement. It will feature the ability to download 

all relevant documents (in industry standard PDF format), including Claim Forms, 

Important Dates, Frequently Asked Questions, Long Form Notice, and the Short 

Form notice. The site will be designed for broad compatibility with browsers and 

platforms using best practices. 

17. All traffic to the site will be monitored with proprietary fraud detection 

systems, similar to those used on e-commerce platforms, to help ensure legitimate 

Class Members receive the maximum benefit. A third party monitoring service will 

check the site at regular intervals to ensure the site is functioning properly and, if 

required, provide an independent report on the total up-time of the site. The 

Settlement Web Site will be updated in a timely manner, based upon the Courtapproved schedule. For example, when the deadline for filing a claim has passed, 

that option will be removed from the site. 

CONSUMER PUBLICATION 

18. Print publications were selected for their efficiency and reach with the 

targeted class. While the Internet has a high saturation of consumer product 

customers (and continues to grow), a targeted print publication element has been 

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proposed to ensure potential class members with limited Internet access or usage 

aren't neglected. To develop the print notice, both proprietary data from previous 

notice plans and GfK MRI was used to evaluate the reach to the class. As noted 

earlier, the goal of the campaign is to reach the defined class. In addition to raw data, 

an extensive marketing analysis was performed to ensure publications targeted this 

class. By targeting widely read publications with a high index the print publication 

portion is designed to effectively supplement the Internet notice portion of the plan 

and help provide additional reach especially to consumers that are less likely to be 

online. 

19. The print publications selected include: Soap Opera Digest, Life & Style, and 

the National Enquirer. All of these publications are likely to have candy consumers 

as readers. They will be presented in 1/3-page vertical format. 

20. DSG will release a press release, with language to be agreed upon by 

Counsel, through PR Newswire. PR Newswire is the industry’s largest content 

distribution network reaching nearly 4,500 US websites, more than 33,000-member 

journalists and 48 industry-specific Twitter feeds. 

INTERNET ADVERTISEMENTS 

21. The Internet is an extremely powerful tool for reaching potential class 

members and driving them to the settlement website. According to Pew Research 

(2016)1

, 87% of all adults in the United States use the Internet, up from 79% in 2010. 

Over a decade of Internet marketing experience has been leveraged to design the 

most effective plan. 

22. DSG will target Class Members with impressions on the ComScore Ranked 

Tier 1 websites over the course of 30 days defined in the agreement. An impression 

is defined as when the internet ad is shown or loaded on a Website. The sites selected 

for the Internet notice reach at least 75% or higher of the Internet population and are 

the most popular on the United States Internet, based upon comScore data. This 

 

1

 Data Source: http://www.pewresearch.org/fact-tank/2016/09/07/some-americans-dont-use-the-internetwho-are-they/

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notice plan will deliver impressions using interest and/or behavioral targeting. 

Whenever possible and cost effective, behavioral and “transactional targeting” from 

the site, networks or 3rd party data sources will be used to deliver banner 

advertisements to users who have purchased the product or shown interest in a 

specific product or category. Digital Settlement Group will also use targeted native 

ads to help provide information to those individuals that may not fall into the other 

behaviorally targeted segments. Unlike traditional media (like print publications), 

this allows a notice plan to target potential class members more accurately with 

significantly less “wasted” impressions. 

23. In addition, targeted “search terms” advertisements on popular search engines 

and networks will be incorporated into the plan. Per the Claims Guide, this is to help 

satisfy “extra effort” where the class is “highly concentrated.” Whenever possible 

and cost effective, settlement notice advertisements will be targeted based on past 

user behavior. In addition, contextual, in-market, topic and affinity targeting are used 

to ensure the most relevant audience is reached. This type of advertising targets the 

right potential class members at the right time. 

24. The notice program will consist of over 52 million targeted Internet 

impressions on Tier 1 properties (e.g. Yahoo, Google, Facebook), using 3rd party 

tools to verify reach and frequency. Behaviors, interests, and topics will be used to 

target the notice in the most efficient manner. For example, targeting will include 

adults in the United States who are known to have purchased “gum or candy,” while 

excluding “health and fitness” consumers. 

25. The notice advertisements are designed to “command class members' 

attention” and “are written in a clear, concise and easily understood language.” 

Clicking on the links will direct the Class Member to the Settlement Website where 

they will have quick access to a printable and online Claim Form. Digital Settlement 

Group will regularly report detailed statistics to Counsel and adjust the notice plan 

on an as needed basis. 

Case 3:17-cv-00849-VC Document 72-6 Filed 05/10/18 Page 8 of 9


DECLARATION OF MARK SCHEY 

























































CONCLUSION 

26. The notice plan has been designed to reach the largest target audience in a 

cost-efficient and timely manner. Furthermore, the notice plan provides the best 

notice practicable, with similar reach to other Court-approved notice plans in the 

same product category. It has been designed to reach at least 70% of the class, 

allowing for duplication across medium and utilizing third party-reporting tools that 

have been accepted in similar cases. 

27. Based on Digital Settlement Group’s class action notice planning experience, 

described above in Paragraphs above the methods utilized in this Notice Program 

will be consistent with other effective class action settlement notice plans that our 

team has developed. And it is my professional opinion that the Class Action Notice 

Plan will provide the best notice practicable and meets the desire to actually inform. 

Furthermore, it provides the same reach and frequency evidence that Courts have 

approved in previous settlements. 

28. It is my opinion that the Notice Program provides Class Members Due 

Process of Law and is the best notice that is practicable under the circumstances and 

is fully compliant with Rule 23 of the Federal Rules of Civil Procedure. 

29. DSG’s cost to manage and effect Class Notice, Claims Administration and 

distribution is $522,000, plus any unanticipated postage overage. Unanticipated 

overages will be correlated to the number of overall claims filed. Additionally, 

postage and distribution of check-based payments to Class Members will be 

provided at DSG’s cost. 

I declare under penalty of perjury under the laws of the United States and the 

State of California that the foregoing is true and correct. 

Executed on ___________________ 2018 at ______________________. 

 (date) (city, state) 

 

 Mark Schey 

0D\WK 'HQYLOOH1-

 Mark Schey 

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