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1 Anthony J. Orshansky, SBN 199364 [email protected] 2 Alexandria R. Kachadoorian, SBN 240601 [email protected] 3 Justin Kachadoorian, SBN 260356 [email protected] 4 COUNSELONE, P.C. 9301 Wilshire Boulevard, Suite 650 5 Beverly Hills, California 90210 Telephone: (310) 277-9945 6 Facsimile: (424) 277-3727

7 Attorneys for Plaintiffs OSIE MARSHALL, YASNA CUEVAS, 8 and JOHN VAN ES, on behalf of themselves and others similarly situated 9

10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 OSIE MARSHALL, YASNA Case No. 14-cv-06311-MMM (PLAx) CUEVAS, and JOHN VAN ES, on 15 behalf of themselves and others PLAINTIFFS’ NOTICE OF similarly situated, MOTION AND MOTION FOR 16 PRELIMINARY APPROVAL OF Plaintiffs, CLASS SETTLEMENT 17 v. 18 Date: January 25, 2016 MONSTER ENERGY COMPANY, Time: 10:00 a.m. 19 D/B/A HANSEN BEVERAGE COMPANY, AND DOES 1 Hon. Margaret M. Morrow 20 THROUGH 50, INCLUSIVE, Courtroom 780

21 Defendant. Complaint Filed: April 4, 2014 Trial Date: April 12, 2016 22

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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 TO THE PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on January 25, 2016 at 10:00 a.m., or as 3 soon thereafter as counsel may be heard in Courtroom 780 of the above-referenced 4 court, located at 255 East Temple Street, Los Angeles, California, 90012, Plaintiffs 5 Osie Marshall, Yasna Cuevas, and John Van Es (“Plaintiffs”) will, and hereby do, 6 move this Court for an order granting preliminary approval of a class-wide 7 settlement reached in the above-captioned action, as well as for conditional 8 certification of the Class defined in the Settlement Agreement and Release 9 (“Agreement”). This motion is filed pursuant to the Court’s Minute Order dated 10 October 20, 2015 [ECF No. 69]. 11 This Motion is made pursuant to Federal Rule of Civil Procedure 23 and is 12 based on this Notice of Motion, the accompanying Memorandum of Points and 13 Authorities, the Declarations of Anthony J. Orshansky and Justin Kachadoorian 14 filed concurrently herewith, all of the pleadings and other documents on file in this 15 case, all other matters of which the Court may take judicial notice, and any further 16 argument or evidence that may be received by the Court. 17 The required meet and confer pursuant to Local Rule 7-3 took place 18 throughout the settlement negotiations, and, in particular, the filing of this Motion 19 is contemplated by the Agreement and is unopposed by Monster Energy.

20 21 Dated: December 28, 2015 COUNSELONE, P.C. 22 23 By: /s/ Anthony J. Orshansky Anthony J. Orshansky 24 ATTORNEYS FOR PLAINTIFFS 25 OSIE MARSHALL, YASNA CUEVAS, AND JOHN VAN ES 26 27 28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 TABLE OF CONTENTS 2 3 PAGE NO.

4 5 I. INTRODUCTION...... 1

6 II. FACTUAL AND PROCEDURAL HISTORY...... 2

7 A. Plaintiffs’ Demand Letter and Initiation of the Action...... 2

8 B. Litigation and Discovery...... 2

9 C. Settlement Discussions...... 3 10 III. SUMMARY OF THE PROPOSED SETTLEMENT AGREEMENT...... 4 11 A. The Class Definition...... 4 12 B. Monetary Benefit and Claim Form...... 4 13 14 C. Injunctive Relief...... 5

15 D. Incentive and Attorneys’ Fee Awards...... 5

16 E. Release and Discharge of Claims...... 6

17 IV. STANDARD FOR PRELIMINARY APPROVAL…………………...... …. 6

18 V. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED...... 7

19 A. The Class Satisfies Rule 23(a)(1)’s “Numerosity” Requirement...... 8 20 B. The Class Satisfies Rule 23(a)(2)’s Commonality Requirement.…………8 21

22 C. The Class Satisfies Rule 23(a)(3)’s Typicality Requirement…….………10

23 D. The Class Satisfies Rule 23(a)(4)’s Adequacy Requirement…….………10 24 E. The Class Satisfies the Requirements of Rule 23(b)(3)...………...………11 25

1. Common Questions of Law and Fact Predominate...………...... ………11 26 2. A Class Action Is the Superior Mechanism...………………...... ………12 27

28 i Plaintiffs’ Notice of Motion and Motion for Preliminary Approval of Class Settlement Case No. 14-cv-06311-MMM (PLAx)

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1 VI. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED……. 12

2 A. The Proposed Settlement Should Be Presumed to Be Fair...... 13 3 B. Other Factors Demonstrate the Fairness of the Settlement……….………14 4 1. The Strengths of Plaintiffs’ Case and Risks of Litigation..…….………14 5 2. The Likely Duration of Continued Litigation………..………....………15 6 3. The Benefits Obtained through the Proposed Settlement………………15 7 VII. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED……...... …. 16 8 A. Settlement Administration and Contents of Class Notice...... 16 9 1. The Manner in Which Notice Will Be Disseminated…………..………17 10 VIII. THE COURT SHOULD ENJOIN OVERLAPPING LITIGATION…...…. 19 11 12 A. Summary of Overlapping State Court Actions...... 19

13 1. Krinsk: The Copy Cat Case……………………………….……………19

14 2. Cuzakis: The Subsumed Case………..………....………………………22

15 B. The Court Should Enjoin the Overlapping Actions...... 22 16 IX. PROPOSED SCHEDULE OF FURTHER PROCEEDINGS...... …. 24 17 X. CONCLUSION…...... …. 25 18 19

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1 TABLE OF AUTHORITIES 2 3 CASES Page No.

4 Amchem Prods. Inc. v. Windsor 521 U.S. 591 (1997)…………...... 7, 12 5 Baghdasarian v. Amazon.com, Inc. 6 2009 WL 2263581 (C.D. Cal. Jul. 7, 2009)…………...... 12

7 Browning v. Yahoo! Inc. 2006 WL 3826714 (N.D. Cal. Dec. 27, 2006)…………...... 12 8 Caiafa Prof’l Law Corp. v. State Farm Fire & Cas. Co. 9 15 Cal. App.4th 800 (1993)…………...... 23

10 Celano v. Marriott Intern., Inc. 242 F.R.D. 544 (N.D. Cal. 2007)…………...... 8 11 Churchill Village LLC v. Gen. Elec. 12 361 F. 3d 566 (9th Cir. 2004)…………...... 16

13 Class Plaintiffs v. Seattle 955 F.2d 1268 (9th Cir. 1992)…………...... 6, 16 14 Dawson v. Mahoney 15 451 F. 3d 550 (9th Cir. 2006)…………...... 20

16 Dunleavy v. Nadler 213 F.3d 454 (9th Cir. 2000)…………...... 7 17 Gallardo v. Dicarlo 18 203 F.Supp.2d 1160 (C.D. Cal. 2002)…………...... 20

19 Gallucci v. Gonzales 603 Fed.App’x 533 (9th Cir. 2015)…………...... 11, 14 20 Hanlon v. Chrysler Corp. 21 150 F.3d 1011 (9th Cir. 1998)………………………...... passim

22 In re Abbott Laboratories Norvir Anti-Trust Litigation 2007 WL 1689899 (N.D. Cal. 2007)…………...... 8 23 In re Clorox Consumer Litig. 24 301 F.R.D. 436 (N.D. Cal. 2014)…………...... 14

25 In re Google Referrer Header Privacy Litig. 2014 WL 1266091 (N.D. Cal. Mar. 26, 2014)…………...... 18 26 In re Immune Response Securities Litig. 27 497 F. Supp. 2d 1166 (S.D. Cal. 2007)…………...... 13

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1 In re NVIDIA Corp. Derivative Litig. 2008 WL 5382544 (N.D. Cal. Dec. 22, 2008)…………...... 13 2 In re Paxil Litig. 3 212 F.R.D. 539 (C.D. Cal. 2003)…………...... 8

4 In re Tableware Antitrust Litig. 484 F. Supp. 2d 1078 (N.D. Cal. 2007)…………...... 16, 18 5 In re Veritas Software Corp. Sec. Litig. 6 496 F.3d 962 (9th Cir. 2007)…………………………………..…...... 6, 13

7 Jacobs v. CSAA Inter-Insurance 2009 WL 1201996 (N.D. Cal. May 1, 2009)…………...... 23 8 Lee v. City of Los Angeles 9 250 F.3d 668 (9th Cir. 2001)…………...... 20

10 Monterrubio v. Best Buy Stores, L.P. 291 F.R.D. 443 (E.D. Cal. 2013)…………...... 7 11 Nat’l Rural Telcomms. Coop. v. DIRECTV, Inc. 12 221 F.R.D. 523 (C.D. Cal. 2004)…………...... 13

13 Negrete v. Allianz Life Ins. Co. 523 F.3d 1091 (9th Cir. 2008)…………...... 23 14 Officers for Justice v. Civil Service Comm’n of the City and County of San Francisco 15 688 F.2d 615 (9th Cir. 1982)…………...... 12, 13, 15

16 Rodriguez v. West Publ. Corp. 2007 U.S. Dist. LEXIS 74767 (C.D. Cal. August 10, 2007)…………...... 5 17 Rosenburg v. I.B.M. 18 2007 WL 128232 (N.D. Cal. Jan. 11, 2007)…………...... 16

19 Sethavanish v. ZonePerfect Nutrition Co. 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014)…………...... 14 20 Simmons v. Superior Court 21 96 Cal.App.2d 119 (1950)…………...... 23

22 Slaven v. BP Am., Inc. 190 F.R.D. 649 (C.D. Cal. 2000)…………...... 8 23 Staton v. Boeing Co. 24 327 F.3d 938 (9th Cir. 2003)…………...... 6, 10

25 Van Bronkhorst v. Safeco Corp. 529 F.2d 943 (9th Cir. 1976)…………...... 6 26 Wal-Mart Stores, Inc. v. Dukes 27 529 F.2d 943 (9th Cir. 1976)…………...... 8

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1 Walters v. Reno 145 F.3d 1032 (9th Cir. 1998)…………...... 9 2 Weeks v. Kellogg Co. 3 2013 WL 6531177 (C.D. Cal. Nov. 23, 2013)………………………...... 17, 18

4 West v. Circle K Stores, Inc. 2006 WL 1652598 (E.D. Cal. June 13, 2006)…………...... 13 5 Williams v. Mohawk Indus., Inc. 6 568 F.3d 1350 (11th Cir. 2009)…………...... 9

7 Zinzer v. Accufix Research Inst., Inc. 253 F.3d 1180 (9th Cir. 2001)…………...... 11 8 STATUTES AND RULES 9 California Business and Professions Code § 17200 et seq. (“UCL”)…...... 2, 9, 21 10 California Business and Professions Code § 17500 et seq. (“FAL”)…...... 2, 9, 21 11 California Civil Code § 1750 et seq. (“CLRA”)…...... 2, 9, 21 12 21 C.F.R. § 101.22…...... 5 13 21 C.F.R. § 101.30…...... 5 14 21 C.F.R. § 101.54…...... 5 15 21 C.F.R. § 101.60…...... 5 16 21 C.F.R. § 102.33…...... 5 17 21 C.F.R. § 104.20…...... 5 18 Fed. R. Civ. P. 23(a)…...... 7, 8, 9, 10 19 Fed. R. Civ. P. 23(b)…...... 7, 11, 12 20 Fed. R. Civ. P. 23(c)…...... 16, 17 21 Fed. R. Civ. P. 23(e)…...... 12, 17, 19 22 Fed. R. Civ. P. 23(h)…...... 24 23 Federal Rule of Evidence 201…...... 20 24 28 U.S.C. § 1651(a)…...... 22 25 28 U.S.C. § 1715 (“CAFA”)…...... 24 26 28 U.S.C. § 2283…...... 22 27

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1 OTHER

2 Federal Judicial Center, Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges (3d ed. 2010)...... 19 3 Newberg on Class Actions (4th ed. 2002) § 3.3…………...... 8 4 Newberg on Class Actions (4th ed. 2002) § 11.28…………...... 11 5 Newberg on Class Actions (4th ed. 2002) § 11.50…………...... 15 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 I. INTRODUCTION 2 After almost two years of informal negotiations and litigation, Plaintiffs Osie 3 Marshall, Yasna Cuevas, and John Van Es present for the Court’s consideration an 4 agreement to settle this consumer class action pursuant to the terms set forth in the 5 accompanying Settlement Agreement and Release (the “Agreement”).1 6 This case was brought by Plaintiffs against Defendant Monster Energy 7 Company for relief associated with labeling violations relating to certain juice and 8 soda products developed, marketed, and sold by Monster Energy. After Plaintiffs 9 sent their demand letter in September 2013, the parties participated in a formal, 10 unsuccessful mediation with the assistance of the Hon. Steven Stone of JAMS 11 (Ret.). Once Plaintiffs filed suit, the parties engaged in informal and formal 12 discovery, and Monster Energy produced documents addressing the labeling, 13 packaging, advertising, sales, and pricing of the products at issue. These efforts, 14 combined with Class Counsel’s independent investigation and analysis, have 15 afforded the parties an in-depth understanding of the respective strengths and 16 weaknesses of Plaintiffs’ claims and of Monster Energy’s defenses. 17 Based on arm’s-length negotiations, the parties have reached an Agreement 18 that provides substantial monetary and injunctive relief to California consumers. 19 Class Members have the option to choose either: (i) a $0.50 Cash Payment per 20 purchase for up to 20 purchases (maximum value of $10.00) or (ii) a $1.00 Off 21 Merchandise Certificate per purchase for up to 20 purchases (maximum value of 22 $20.00). Monster Energy has already revised labels for several Hansen’s products, 23 particularly with respect to “No Sugar Added” representations. Monster Energy 24 has further committed to ensure that the labels for any accused product it is 25 responsible for developing and marketing comply with U.S. Food and Drug 26

1 27 All capitalized terms have the same meaning as those defined terms in the Agreement. (Declaration of Anthony J. Orshansky, Ex. A.) 28 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Administration (FDA) labeling regulations, guidance, and policies. Class Members 2 will be notified of the settlement through published and banner ad notice, and will 3 have sufficient opportunity to submit claims or object to or opt out of the 4 settlement. The Agreement is fair and achieves meaningful relief for the Class. To 5 facilitate the settlement, Plaintiffs respectfully request that the Court grant 6 preliminary approval of the Agreement and conditional class certification. 7 II. FACTUAL AND PROCEDURAL HISTORY

8 A. Plaintiffs’ Demand Letter and Initiation of the Action 9 On September 16, 2013, Plaintiffs’ counsel sent a demand letter to Monster 10 Beverage Corporation (“MBC”) for relief associated with various labeling 11 violations on a range of Hansen’s products. Following that demand letter, the 12 parties attempted to reach a pre-litigation resolution, including by engaging in 13 formal mediation. When those discussions failed to resolve the dispute, on April 4, 14 2014, Plaintiffs filed a putative class action complaint against MBC in the Superior 15 Court of the State of California, County of San Francisco, entitled Osie Marshall, et 16 al. v. Monster Beverage Corporation, Case No. CGC-14-538447 (“Action”). 17 Plaintiffs asserted claims for violation of California’s Unfair Competition Law 18 (Cal. Bus. & Prof. Code § 17200, et seq.), False Advertising Law (Cal. Bus. & Prof. 19 Code § 17500, et seq.), and Consumers Legal Remedies Act (Cal. Civ. Code 20 § 1750, et seq.), and for restitution based on quasi-contract/unjust enrichment. 21 B. Litigation and Discovery 22 On May 13, 2014, pursuant to the Class Action Fairness Act of 2005, MBC 23 removed the Action to the United States District Court for the Northern District of 24 California (Case No. 3:14-CV-02203-JD). [ECF No. 1.] On June 25, 2014, MBC 25 moved to transfer the Action to the United States District Court for the Central 26 District of California, and on August 6, 2014, the Hon. James Donato granted 27 MBC’s motion (Case No. 2:14-cv-06311-MMM (PLAx)). [ECF Nos. 15, 27.] On 28 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 September 29, 2014, Plaintiffs filed a First Amended Complaint (“FAC”), which, 2 among other things, substituted Monster Energy for MBC as the defendant. [ECF 3 No. 38.] Monster Energy answered the FAC on October 31, 2014. [ECF No. 40.] 4 Over the past nearly two years, Plaintiffs have conducted extensive 5 investigation regarding the labeling, ingredients, and pricing of the accused 6 products. (Orshansky Decl., ¶ 4.) The parties have also engaged in informal and 7 formal discovery and have served initial disclosures pursuant to Federal Rule of 8 Civil Procedure 26(a). (Id.) In addition, all Plaintiffs have responded to Monster 9 Energy’s requests for production of documents, and Monster Energy has responded 10 to almost 200 requests for production of documents and over 20 interrogatories. 11 (Id.) Monster Energy has also produced documents addressing the labeling, 12 packaging, advertising, sales, and pricing of the products at issue. (Id.) 13 C. Settlement Discussions 14 On November 20, 2013, the parties participated in a mediation before the 15 Hon. Steven J. Stone (Ret.) of JAMS. The parties were unable to resolve the claims 16 at the mediation. With the benefit of discovery to inform their understanding of the 17 asserted claims and likely defenses, the parties reengaged discussions concerning a 18 resolution of the action. The parties reached agreement regarding the class benefit 19 afforded by the proposed settlement prior to Plaintiffs’ June 8, 2015 deadline to 20 move for class certification. (Orshansky Decl., ¶ 7.) Plaintiffs were prepared to file 21 a timely motion for class certification but declined to do so in view of the advanced 22 stage of settlement negotiations as the deadline approached. (Id.) After the parties 23 finalized the terms of a settlement in principle, Plaintiffs promptly filed a Notice of 24 Conditional Class Settlement on June 16, 2015. [ECF No. 49.] 25 /// 26 /// 27 /// 28 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 III. SUMMARY OF THE PROPOSED SETTLEMENT AGREEMENT

2 A. The Class Definition 3 The proposed Class consists of “all residents of California who, between 4 June 27, 2009 and entry of the Preliminary Approval Order, purchased one or more 5 Qualifying Products from an authorized retailer in California.” (Agreement, 6 § 1.7.)2 The Qualifying Products are all: (i) Hansen’s®-brand Sodas, Juices, Junior 7 Juices, Smoothie Nectars, Energy, and Fruit & Tea Stix; (ii) Blue Sky® products; 8 (iii) Angeleno™ Aguas Frescas products; (iv) Hubert’s® Lemonade products; 9 (v) Vidration products; and (vi) Peace Tea products. (Id. § 1.26.) 10 B. Monetary Benefit and Claim Form 11 Class Members have the option to choose either: (i) a $0.50 Cash Payment or 12 (ii) a $1.00 Off Merchandise Certificate. (Id. § 2.3.) The $0.50 Cash Payment is a 13 payment by check of $0.50 for each Purchase made by an Authorized Claimant for 14 up to 20 purchases (total maximum value of $10.00). (Id. § 1.12.) The $1.00 Off 15 Merchandise Certificate is a single-use merchandise certificate per Purchase for up 16 to 20 purchases (total maximum value of $20.00), valid for six (6) months, entitling 17 the Authorized Claimant to $1.00 off a purchase of two 64-ounce Hansen’s® juice 18 products or two multi-packs of any other Qualifying Products from an authorized 19 retailer in California. (Id. § 1.11.) 20 To elect either option, a Class Member must accurately complete and submit 21 a Claim Form via the Settlement Website no later than ninety (90) calendar days 22 after the Notice Date (or other date required by the Court). (Id. § 3.5, Ex. D.)3 23 Class Members will identify a physical mailing address on the Claim Form, which 24 2 Excluded from this definition are: (1) officers, directors, and employees of 25 Monster Energy; (2) any judicial officer presiding over the Action and the members of his or her immediate family and judicial staff; and (3) persons who submit a 26 valid and timely Request for Exclusion. (Agreement, § 1.7.) 3 27 The “Notice Date” is fourteen (14) days after notice of entry of the Preliminary Approval Order. (Agreement, § 1.21.) 28 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 will be used to distribute the $1.00 Off Merchandise Certificate or $0.50 Cash 2 Payment. (Id. § 2.3.) If a Class Member submits a timely and otherwise proper 3 Claim Form, but: (1) chooses more than one option; (2) fails to choose any option; 4 or (3) submits multiple claim forms that choose different options, the Class 5 Member will receive a $1.00 Off Merchandise Certificate. (Agreement, § 3.5.) 6 C. Injunctive Relief 7 Since filing of the Action, Monster Energy has revised the labels of several 8 Hansen’s Products, particularly to address “No Added Sugar” representations. (Id. 9 § 2.4.) Monster Energy will also ensure that, as of the Effective Date of the 10 Agreement, the labels for any Qualifying Products it is responsible for developing 11 and marketing comply with all then-current FDA labeling regulations, guidance, 12 and policies, including, without limitation, 21 C.F.R. § 101.22, 21 C.F.R. § 101.30, 13 21 C.F.R. § 101.54, 21 C.F.R. § 101.60, 21 C.F.R. § 102.33, and 21 C.F.R. 14 § 104.20, as applicable. (Id.) That notwithstanding, Monster Energy is permitted 15 to distribute any Qualifying Product inventory that has already been manufactured 16 as of the Effective Date. (Id.) Class Members do not need to complete a Claim 17 Form to obtain the benefits of this injunctive relief.

18 D. Incentive and Attorneys’ Fee Awards 19 Prior to the Fairness Hearing, each of the Plaintiffs, in their capacity as Class 20 Representatives, may request the Court to issue an incentive award not to exceed 21 $1,000. (Id. § 2.6.) See Rodriguez v. West Publishing Corp., 563 F.3d 948, 958 22 (9th Cir. 2009) (“Incentive awards are fairly typical in class action cases.”). This 23 compensation recognizes the efforts expended by Plaintiffs as the class 24 representatives in bringing and prosecuting this Action. (Id.) Class Counsel will 25 also apply to the Court, prior to the Fairness Hearing, for an award of attorneys’ 26 fees and expenses incurred in prosecuting this action, not to exceed $282,000.00. 27 (Id. § 2.5.) Significantly, the effectiveness of the Agreement is not conditioned 28 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 upon the Court’s approval of the incentive awards or the fee application. 2 E. Release And Discharge of Claims 3 The Agreement provides for the release of all claims or causes of action 4 relating to the allegations that underlie or relate to the Action. (Agreement, § 4.) 5 The release will finally resolve Plaintiffs’ and Class Members’ claims against 6 Monster Energy and other Monster Energy Released Parties upon entry of the Final 7 Approval Order and Judgment. (Id. § 4.3.)

8 IV. STANDARD FOR PRELIMINARY APPROVAL 9 A “strong judicial policy” favors settlement of class actions. Class Plaintiffs 10 v. Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). The decision as to whether to grant 11 preliminary approval is left to the discretion of the district court. See In re Veritas 12 Software Corp. Sec. Litig., 496 F.3d 962, 972 (9th Cir. 2007) (“[T]he district court 13 has substantial discretion in approving the details of a class action settlement”). In 14 exercising that discretion, “there is an overriding public interest in settling and 15 quieting litigation,” and this is “particularly true in class action suits.” Van 16 Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976); Hanlon v. Chrysler 17 Corp., 150 F.3d 1011, 1027 (9th Cir. 1998) (district courts should give “proper 18 deference to the private consensual decision of the parties”). 19 Where, as here, “parties reach a settlement agreement prior to class 20 certification, courts must peruse the proposed compromise to ratify both the 21 propriety of the certification and the fairness of the settlement.” Staton v. Boeing

22 Co., 327 F.3d 938, 952 (9th Cir. 2003). There are therefore two parts to the Court’s 23 inquiry. “First, the district court must assess whether a class exists.” Id. “Second, 24 the district court must carefully consider whether a proposed settlement is 25 fundamentally fair, adequate, and reasonable, recognizing that [i]t is the settlement 26 taken as a whole, rather than the individual component parts, that must be examined 27 for overall fairness.” Staton, 327 F.3d at 952 (internal quotations omitted). 28 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 However, at the preliminary approval stage, the Court must determine only if the 2 settlement falls within the “range of possible judicial approval.” Monterrubio v. 3 Best Buy Stores, L.P., 291 F.R.D. 443, 448 (E.D. Cal. 2013). 4 Here, the two-part inquiry dictates that the Court should: (1) conditionally 5 certify the class; and (2) preliminarily approve the Agreement. 6 V. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED 7 Class actions may be certified for the purpose of settlement only. See 8 Hanlon, 150 F.3d at 1019 (discussing “proposed settlement class”); Amchem Prods. 9 Inc. v. Windsor, 521 U.S. 591, 620 (1997) (discussing approval of settlement class). 10 The Court has wide discretion in certifying a class for settlement purposes and will 11 be reversed “only upon a strong showing that [its] decision was a clear abuse of 12 discretion.” Dunleavy v. Nadler, 213 F.3d 454, 461 (9th Cir. 2000). 13 Rule 23(a) sets forth the four prerequisites to class certification: (1) the class 14 must be so numerous “that joinder of all members is impracticable,” (2) there must 15 be “questions of law or fact common to the class,” (3) the claims of the class 16 representative must be “typical of the claims . . . of the class,” and (4) the class 17 representative must show that he “will fairly and adequately protect the interests of 18 the class.” Fed. R. Civ. P. 23(a). These requirements are commonly referred to as 19 “numerosity,” “commonality,” “typicality,” and “adequacy of representation.” 20 Hanlon, 150 F.3d at 1019. One of the factors in Rule 23(b) must also be satisfied. 21 The class should be certified under Rule 23(b)(3), which requires that “questions of 22 law or fact common to class members predominate over any questions affecting 23 only individual members, and that a class action is superior to other available 24 methods for fairly and efficiently adjudicating the controversy.” 25 Under these standards, for settlement purposes, the Court should 26 conditionally certify a class consisting of “all residents of California who, between 27 June 27, 2009 and entry of the Preliminary Approval Order, purchased one or more 28 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Qualifying Products from an authorized retailer in California.” 2 A. The Class Satisfies Rule 23(a)(1)’s “Numerosity” Requirement 3 Rule 23(a)(1) requires that “the class is so numerous that joinder of all 4 members is impracticable.” See Fed. R. Civ. P. 23(a)(1). “As a general matter, 5 courts have found that numerosity is satisfied when class size exceeds 40 members, 6 but not satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 7 F.R.D. 649, 654 (C.D. Cal. 2000); Celano v. Marriott Intern., Inc., 242 F.R.D. 544, 8 548-49 (N.D. Cal. 2007). Here, because Monster Energy does not directly sell 9 Qualifying Products to consumers and maintains no records regarding the identities 10 of Class Members, the parties do not know the precise size of the Class. That 11 notwithstanding, the proposed Class is unquestionably numerous because it is 12 comprised of California resident purchasers of approximately 170 different 13 Qualifying Products sold in California over more than six years. See In re Abbott 14 Laboratories Norvir Anti-Trust Litigation, Nos. C 04-1511 CW, C 04-4203 CW, 15 2007 WL 1689899, at *6 (N.D. Cal. 2007) (“Where ‘the exact size of the class is 16 unknown, but general knowledge and common sense indicate that it is large, the 17 numerosity requirement is satisfied.’”) (quoting 1 Alba Cone & Herbert B. 18 Newberg, Newberg on Class Actions § 3.3 (4th ed. 2002)).

19 B. The Class Satisfies Rule 23(a)(2)’s Commonality Requirement 20 Rule 23(a)(2) requires the existence of “questions of law or fact common to 21 the class.” See Fed. R. Civ. P. 23(a)(2). Commonality is established if class 22 members’ claims “depend upon a common contention,” “capable of class-wide 23 resolution . . . mean[ing] that determination of its truth or falsity will resolve an 24 issue that is central to the validity of each one of the claims in one stroke.” Wal- 25 Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). The commonality 26 requirement may be satisfied if the claims of the prospective class have even one 27 significant issue common to the class. See, e.g., In re Paxil Litig., 212 F.R.D. 539, 28 8 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 549 (C.D. Cal. 2003) (“[T]he commonality requirement is interpreted to require 2 very little.”); Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1356 (11th Cir. 3 2009) (finding that Rule 23(a)(2)’s “common question” requirement creates only a 4 “low hurdle” to class certification). 5 Here, all Class Members’ claims arise from a common nucleus of facts— 6 whether, and to what extent, the Qualifying Products bear labels that do not comply 7 with FDA regulations and mislead consumers. See Walters v. Reno, 145 F.3d 1032, 8 1047 (9th Cir. 1998) (“It is sufficient if class members complain of a pattern or 9 practice that is generally applicable to the class as a whole.”) The action also 10 hinges on common legal questions and theories, including: 11 (1) whether the labeling of the Qualifying Products is a “fraudulent practice” 12 under the UCL, in that it is likely to mislead consumers; 13 (2) whether the labeling of the Qualifying Products is an “unfair practice” 14 under the UCL, in that it offends public policy and is immoral, unethical, 15 oppressive, unscrupulous or substantially injurious to consumers; 16 (3) whether the labeling of the Qualifying Products is an “unlawful” practice 17 under the UCL; 18 (4) whether the labeling of the Qualifying Products is likely to deceive a 19 consumer acting reasonably in the same circumstances; 20 (5) whether Monster Energy advertises or markets the Qualifying Products in 21 a way that is false or misleading to the reasonable consumer; 22 (6) whether Monster Energy violated the FAL or CLRA through its labeling 23 of the Qualifying Products; 24 (7) whether Plaintiffs and Class Members are entitled to restitution, 25 injunctive, declaratory, and/or other equitable relief; and 26 (8) whether Plaintiffs and Class Members have sustained monetary loss as a 27 result of Monster Energy’s labeling of the Qualifying Products. 28 There is no question that common questions of fact and law predominate. 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 C. The Class Satisfies Rule 23(a)(3)’s Typicality Requirement 2 Rule 23(a)(3) requires that the claims of the representative plaintiff be 3 “typical of the claims . . . of the class.” See Fed. R. Civ. P. 23(a)(3). “Under the 4 rule’s permissive standards, representative claims are ‘typical’ if they are 5 reasonably co-extensive with those of absent class members; they need not be 6 substantially identical.” See Hanlon, 150 F.3d at 1020; see also Staton, 327 F.3d at 7 957 (“[T]ypicality does not mean that the claims of the class representative[s] must 8 be identical or substantially identical to those of the absent class members.” 9 (internal citations omitted)). 10 Plaintiffs’ claims are typical because they arise from the same labeling 11 practices and legal theories that allegedly give rise to the claims of the Class 12 Members. Plaintiffs and Class Members have all purchased one or more of the 13 Qualifying Products. Based on these purchases, Plaintiffs and the Class assert the 14 same statutory and common law claims based on alleged mislabeling, and must 15 prove the same elements of those claims. Plaintiffs and all Class Members also 16 allege the same injuries based on the same alleged course of conduct. Plaintiffs’ 17 claims are therefore the same (not just typical) as those of the other Class Members. 18 D. The Class Satisfies Rule 23(a)(4)’s Adequacy Requirement 19 Rule 23(a)(4) requires that the representative parties “fairly and adequately 20 protect the interests of the class.” Adequacy is established where: (1) plaintiffs and 21 their counsel do not have conflicts of interests with other class members; and 22 (2) plaintiffs and their counsel prosecute the action vigorously on behalf of the 23 class. See Staton, 327 F.3d at 957. 24 Plaintiffs and Class Counsel have vigorously and competently pursued the 25 Class Members’ claims over the past nearly two years, and they have no conflicts of 26 27 28 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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4 1 interests with absent Class Members. Plaintiffs share with each Class Member the 2 same interest in proving that the labeling of the Qualifying Products violated then- 3 current FDA regulations and misled consumers. Moreover, the arm’s-length 4 settlement negotiations that led to the proposed settlement demonstrate that Class 5 Counsel adequately represent the interests of the Class. See 2 Newberg on Class 6 Actions, supra, § 11.28, at 11-59 (adequacy is presumed where a fair settlement was 7 negotiated at arm’s-length). The overlapping and duplicative Krinsk and Cuzakis 8 Actions (see section VIII.A, infra) had no bearing on the proposed settlement’s 9 timing or terms. There is no evidence of a reverse auction. Gallucci v. Gonzales, 10 603 Fed.App’x 533, 535 (9th Cir. 2015) (Absent “evidence suggesting that a 11 bidding war between the various potential class counsel actually occurred . . . if the 12 mere existence of multiple potential classes were sufficient to prove collusion, the 13 reverse auction argument would lead to the conclusion that no settlement could ever 14 occur in the circumstances of parallel or multiple class actions.”). 15 E. The Class Satisfies the Requirements of Rule 23(b)(3) 16 Plaintiffs seek certification under Rule 23(b)(3), which is appropriate 17 “whenever the actual interests of the parties can be served best by settling their 18 differences in a single action.” Hanlon, 150 F.3d at 1022. That is the case here.

19 1. Common Questions Of Law And Fact Predominate 20 Predominance exists “[w]hen common questions present a significant aspect 21 of the case and they can be resolved for all members of the class in a single 22 adjudication.” Hanlon, 150 F.3d at 1022. Here, the common questions of law and 23 fact identified in Section V.B predominate over any individual questions. Because 24 a “common nucleus of facts and potential legal remedies dominates this litigation,” 25 judicial economy will be served through a single proceeding. Id; Zinzer v. Accufix 26

4 27 Class Counsel has extensive experience and expertise in prosecuting complex class actions. (Orshansky Decl., ¶¶ 19-21.) 28 11 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001). 2 2. A Class Action Is The Superior Mechanism 3 The class action mechanism is superior to other available means for the fair 4 and efficient adjudication of Class Members’ claims. Individualized litigation 5 increases the delay and expense to all parties and multiplies the burden on the 6 judicial system presented by the complex legal and factual issues of this case. 7 Here, the de minimis recovery each Class Member can expect in connection with 8 purchases of Qualifying Products is outweighed by the considerable expense of 9 proving the underlying claims. See Baghdasarian v. Amazon.com, Inc., No. CV 05- 10 8060 AG (CTx), 2009 WL 2263581, at *7 (C.D. Cal., Jul. 7, 2009) (the superiority 11 inquiry addresses “the problem that small recoveries do not provide the incentive 12 for any individual to bring a solo action prosecuting his or her rights”). The class 13 action device presents far fewer management difficulties and ensures that all claims 14 and claimants are before this Court for consistent adjudication of the issues.5

15 VI. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED 16 Under Rule 23(e), a class settlement should be approved if it is “fair, 17 reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Officers for Justice v. Civil 18 Service Comm’n of the City and County of San Francisco, 688 F.2d 615, 625 (9th 19 Cir. 1982) (“the universally applied standard is whether the settlement is 20 fundamentally fair, adequate and reasonable”). “At this first step of preliminary 21 approval, the Court must conduct a prima facie review of the relief and notice 22 provided by the [Agreement], before the Court orders notice sent to the tentative 23 Settlement Class Members.” Browning v. Yahoo! Inc., No. C04-01463 HRL, 2006 24 25 5 In view of the proposed settlement, the Court need not consider issues of 26 manageability relating to trial. See Amchem, 521 U.S. at 620 (“Confronted with a request for settlement-only class certification, a district court need not inquire 27 whether the case, if tried, would present intractable management problems, see Fed. R Civ. P. 23(b)(3)(D), for the proposal is that there be no trial.”). 28 12 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 WL 3826714, at *4 (N.D. Cal. Dec. 27, 2006). “The initial decision to approve or 2 reject a settlement proposal is committed to the sound discretion of the trial judge.” 3 Officers for Justice, 688 F.2d at 625; In re Veritas Software Corp. Sec. Litig., 496 4 F.3d 962, 972 (9th Cir. 2007) (“[T]he district court has substantial discretion in 5 approving the details of a class action settlement.”). 6 In conducting this analysis, the Court may look to the factors relevant to final 7 approval of the settlement. See West v. Circle K Stores, Inc., No. CIV. S-04-0438, 8 2006 WL 1652598, at *9 (E.D. Cal. June 13, 2006). Among these are: (1) the 9 strength of Plaintiffs’ case, (2) the risk, expense, complexity, and likely duration of 10 further litigation, (3) the risk of maintaining class action status throughout the trial, 11 (4) the amount offered in settlement, (5) the extent of discovery completed and the 12 stage of the proceedings, (6) the experience and views of counsel, (7) the presence 13 of a governmental participant, and (8) the reaction of the proposed class members 14 to the proposed settlement. Id. (citing Hanlon, 150 F.3d at 1026). But, “[g]iven 15 that some of these factors cannot be fully assessed until the court conducts its 16 fairness hearing, a full fairness analysis is unnecessary at this stage.” Id. 17 A. The Proposed Settlement Should be Presumed to be Fair 18 “[T]he fact that the settlement agreement was reached in arm’s length 19 negotiations after relevant discovery [has] taken place create[s] a presumption that 20 the agreement is fair.” In re Immune Response Securities Litig., 497 F. Supp. 2d 21 1166, 1171 (S.D. Cal. 2007) (quotations omitted); Nat’l Rural Telcomms. Coop. v. 22 DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004). The proposed settlement 23 here is the product of extensive arm’s-length negotiations conducted by 24 experienced counsel after significant discovery and independent investigation by 25 Class Counsel. In re NVIDIA Corp. Derivative Litig., No. C-06-06110-SBA (JCS), 26 2008 WL 5382544, at *4 (N.D. Cal. Dec. 22, 2008) (“[S]ignificant weight should 27 be attributed to counsel’s belief that the settlement is in the best interest of those 28 13 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 affected by the settlement.”). The settlement was not the result of collusion or a 2 reverse auction; it was negotiated independently of the overlapping Krinsk and 3 Cuzakis actions. See Gallucci, 603 Fed.App’x at 535. 4 B. Other Factors Demonstrate the Fairness of the Settlement

5 1. The Strengths of Plaintiffs’ Case and Risks of Litigation 6 This factor requires the Court to balance the strength of Plaintiffs’ case on 7 the merits against the amount offered in settlement. See DirecTV, 221 F.R.D. at 8 526. “[A] proposed settlement is not to be judged against a speculative measure of 9 what might have been awarded in a judgment in favor of the class.” Id. 10 Monster Energy continues to vigorously deny any wrongdoing and denies 11 any liability to the Plaintiffs or any Class Members. Although Plaintiffs believe 12 their claims have merit, they face significant legal, factual, and procedural obstacles 13 to recovery, including establishing that: (1) Monster Energy’s marketing and 14 advertising of the Qualifying Products was likely to deceive reasonable consumers; 15 (2) alleged labeling misrepresentations and omissions were material to reasonable 16 consumers; (3) common questions predominate over individual issues, particularly 17 with respect to Class Members’ understanding of product labels; (4) an 18 ascertainable class exists, given that Monster Energy does not sell directly to 19 consumers; 6 and (5) damages or restitution should be awarded or, if so, that any 20 such award should be more than nominal. The recovery and certainty achieved 21 through settlement, as opposed to the uncertainty inherent in class certification and 22 the trial and appellate process, weigh heavily in favor of settlement. Simply put, 23 the immediate, concrete benefits of the settlement outweigh the uncertainties of 24 obtaining no class relief at all. 25 26 6 See, e.g., In re Clorox Consumer Litig., 301 F.R.D. 436 (N.D. Cal. 2014); 27 Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014). 28 14 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 2. The Likely Duration of Continued Litigation 2 “In most situations, unless the settlement is clearly inadequate, its acceptance 3 and approval are preferable to lengthy and expensive litigation with uncertain 4 results.” DirecTV, 221 F.R.D. at 526 (quoting 4 A. Conte & H. Newberg, Newberg 5 on Class Actions, § 11:50 at 155 (4th ed. 2002)). Here, even if judgment were 6 ultimately entered against Monster Energy, any appeal would likely take years to 7 resolve. By settling, Plaintiffs and Class Members avoid the delays and 8 uncertainties of protracted litigation. Id. (“It has been held proper to take the bird in 9 hand instead of a prospective flock in the bush.”).

10 3. The Benefits Obtained Through the Proposed Settlement 11 This factor “assess[es] the consideration obtained by the class members in a 12 class action settlement.” DirecTV, 221 F.R.D. at 527. “[I]t is the complete package 13 taken as a whole, rather than the individual component parts, that must be examined 14 for overall fairness.” Officers for Justice, 688 F.2d at 628. “In this regard, it is 15 well-settled law that a proposed settlement may be acceptable even though it 16 amounts to only a fraction of the potential recovery that might be available to the 17 class members at trial.” DirecTV, 221 F.R.D. at 527. 18 The Agreement provides Class Members with meaningful monetary relief 19 (up to $20.00 in Merchandise Certificates or $10.00 in Cash Payment) and 20 injunctive relief (already-implemented labeling changes and commitments to ensure 21 labels for Qualifying Products comply with FDA regulations). (Agreement, §§ 2.3, 22 2.4.) The monetary benefit represents a significant percentage of the retail price of 23 the Qualifying Products. Class Counsel’s investigation reveals the following 24 average retail prices for the Qualifying Product lines:

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1 Product Line Average Retail Price Hansen’s Juices (64 ounce) $4.11 2 Hansen’s Sodas (eight pack) $4.24 3 Junior Juices (four pack) $1.79 4 Hubert’s Lemonade (single) $2.14 Blue Sky Sodas (6 pack) $4.99 5 Peace Time (single) $1.34 6 Hansen’s Energy Item not found Hansen’s Juice Boxes Item not found 7 Hansen’s Smoothie Nectar Item not found 8 Hansen’s Fruit & Tea Stix Item not found Vidration Enhanced Item not found 9 (Declaration of Justin Kachadoorian ¶ 2.) A $0.50 Cash Payment ranges from 10 ranges from 10 to 37 percent of the average retail price of Qualifying Products, and 11 the Merchandise Certificate option confers a savings of up to 12 percent off the 12 average retail price of two 64-ounce Hansen’s juice products and of up to 28 13 percent off the average retail price of two multi-packs of other Qualifying Products. 14 (Id.) 15 In light of the relief obtained and the magnitude and risks of the litigation, 16 the Court should conclude that the Agreement’s terms are well “within the range” 17 of being “fair, adequate, and reasonable.” Class Plaintiffs, 955 F.2d at 1276; In re 18 Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079-80 (N.D. Cal. 2007). 19 20 VII. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED 21 A. Settlement Administration and Contents of Class Notice 22 Due process requires that class members receive notice of the settlement and 23 an opportunity to be heard and participate in the litigation. See Fed. R. Civ. P. 24 23(c)(2). “Notice is satisfactory if it generally describes the terms of the settlement 25 in sufficient detail to alert those with adverse viewpoints to investigate and to come 26 forward and be heard.” Churchill Village LLC v. Gen. Elec., 361 F.3d 566, 575 27 (9th Cir. 2004) (quotations omitted); Rosenburg v. I.B.M., No. CV06-00430PJH, 28 2007 WL 128232, at *5 (N.D. Cal. Jan.11, 2007) (notice should inform class 16 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 members of essential terms of settlement, including claims procedure and rights to 2 object or opt-out of settlement). 3 Here, Monster Energy will work with a claims administrator (the “Settlement 4 Administrator”) to effectuate notice to the Class and administer the settlement. 5 (Agreement, § 3.2.) The Settlement Administrator is responsible for: (a) arranging 6 for and overseeing publication of the Class Notice through USA Today and Internet 7 banner advertisements; (b) creating and maintaining a Settlement Website and toll- 8 free number through which information about the Agreement can be obtained; 9 (c) receiving requests for exclusion, or opt-outs, from the Class and compiling 10 records relating to those requests; and (d) receiving and compiling objections to the 11 Agreement. (Id.) 12 The proposed Notice provides a definition of the Class, highlights the terms 13 of the settlement, and summarizes instructions for requesting exclusion from the 14 Class and objecting to the Agreement. (Agreement, Exs. B and C.) The forms of 15 Notice also set forth the date, time, and place of the final approval hearing, and 16 include the addresses of the Court, Class Counsel, and the Settlement 17 Administrator. (Id.) The forms of Notice provide information to Class Members 18 regarding their rights under the proposed settlement. 19 1. The Manner In Which Notice Will Be Disseminated 20 “The court must direct to class members the best notice that is practicable 21 under the circumstances, including individual notice to all members who can be 22 identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). In addition, the 23 Court must “direct notice in a reasonable manner to all class members who would 24 be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). 25 Where, as here, a class “consists of persons with unknown addresses, notice 26 by publication is reasonable.” Weeks v. Kellogg Co., No. CV 09-08102-MMM 27 (RZx), 2013 WL 6531177, at *11 (C.D. Cal. Nov. 23, 2013) (Morrow, M.); In re 28 17 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Google Referrer Header Privacy Litig., No. 5:10-cv-04809 EJD, 2014 WL 2 1266091, at *7 (N.D. Cal. Mar. 26, 2014) (where individual notice is not practical, 3 “publication or something similar is sufficient to provide notice”); In re Tableware, 4 484 F. Supp. 2d at 1080 (absent records identifying individual class members, 5 publication notice is “reasonable”). 6 In Weeks, this Court approved a notice plan for a class of cereal purchasers 7 that consisted of: (i) notice published in online versions of newspapers, websites 8 sponsored by television stations, parenting websites, and consumer affairs blogs; 9 (ii) the creation of a website specifically addressing the settlement; and (iii) the 10 establishment of a toll-free number to obtain information regarding the settlement. 11 2013 WL 6531177, at *1, *11. Here, the proposed Notice Plan applies a similar 12 (but more extensive) three-pronged approach to target consumers who have 13 purchased Qualifying Products during the putative class period (Agreement, § 3.2.): 14  Published Notice. Monster Energy will publish the notice twice in a 15 1/4-page advertisement in the California edition of USA Today. 16  Internet Banner Ad Notice. Monster Energy will publish notice on 17 an array of online websites that includes sites in the genres of arts & entertainment, 18 automotive, business, personal finance, careers & jobs, community, family & 19 parenting, food & drink, health, home & garden, news & media, pets, politics, 20 education, shopping, and sports. These online advertisements will take the form of 21 “banners,” that when clicked will take Class Members to the Settlement Website. 22 Cf. Weeks, 2013 WL 6531177, at *4 (approving banner ads that redirect consumers 23 to a settlement website). Banner ads provides flexibility during the notice period 24 to, if necessary, increase total reach or focus on a particular segment of the Class. 25  Settlement Website and Toll-Free Number. The Settlement 26 Administrator will set up and maintain the Settlement Website and a toll-free 27 number to advise Class Members regarding various aspects of the settlement. The 28 Settlement Website will be accessible through the banner ad, as well as through 18 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 routine Internet searches like those at google.com. 2 The parties are currently evaluating notice proposals from various claims 3 administrators. These proposals contemplate a total reach that meets or exceeds the 4 70 percent threshold recognized by the Federal Judicial Center. See Federal 5 Judicial Center, Barbara J. Rothstein & Thomas E. Willging, Managing Class 6 Action Litigation: A Pocket Guide for Judges, at p. 27 (3d ed. 2010). This multi- 7 pronged Notice Plan remains the best notice practicable, and is reasonably designed 8 to reach Class Members within the meaning of Rule 23(e). 9 VIII. THE COURT SHOULD ENJOIN OVERLAPPING LITIGATION 10 As part of the Preliminary Approval Order, Plaintiffs respectfully request that 11 the Court enjoin Class Members from prosecuting, continuing, or asserting any 12 action with regard to the claims asserted in this Action. (Agreement, § 4.2.) 13 Specifically, the Court should exercise its discretion to enjoin two overlapping 14 actions pending in California state courts, the Krinsk Action and Cuzakis Action. 15 The respective Superior Courts have stayed both actions pending approval of the 16 proposed settlement, given: (i) the risk of inconsistent rulings in duplicative, 17 parallel proceedings; and (ii) the fact that named plaintiffs in both actions have 18 moved to intervene in this case [ECF Nos. 53, 63]. (Declaration of Purvi G. Patel 19 Regarding Motion for Preliminary Approval of Class Settlement ¶¶ 6, 8.)

20 A. Summary of Overlapping State Court Actions 21 1. Krinsk: The Copy Cat Case 22 Krinsk, et al. v. Monster Beverage Corporation, San Diego Superior Court, 23 Case No. 37-2014-20192-CU-BT-CTL, was filed on June 19, 2014, more than two 24 months after Plaintiffs filed their complaint. Krinsk essentially plagiarized the 25 complaint filed in this case.7 (Patel Decl., Exs. A, B (“Krinsk FAC”).)8 There is a 26 7 The Krinsk plaintiffs assert claims against both Monster Energy and 27 Monster Beverage Corporation (“MBC”). Plaintiffs in this case originally named MBC as a defendant, but after meet and confer, substituted in the correct defendant, 28 (Footnote continues on next page.) 19 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 near-perfect overlap between the two cases (the original Krinsk complaint copied 2 the original Marshall complaint down to its typographical errors): 3 (1) the case description and specific factual allegations pled in Krinsk are 4 identical in all material respects to those pled here (though Krinsk 5 encompasses fewer accused product families); 6 (2) the Krinsk FAC repeats almost verbatim each and every cause of 7 action and purported injury asserted in this case; 8 (3) the relief sought in both cases is identical; and 9 (4) the putative California-only class in Krinsk is duplicative of, and fully 9 10 subsumed by, the class alleged in this case. 11 The chart below summarizes the key areas of overlap: 12 Marshall FAC Krinsk FAC 13 Gravamen “Hansen deceptively labels and “Hansen deceptively labels and of FAC advertises the Misbranded Products advertises the Misbranded 14 . . . [to] create the impression that Products . . . [to] create the 15 the Misbranded products are impression that the Misbranded natural, healthy beverages.” (¶ 8) products are natural, healthy 16 beverages.” (¶ 8) 17 18 19 (Footnote continued from previous page.) 20 Monster Energy. The proposed settlement includes a release of claims against 21 Monster Energy and its parent, MBC. 8 Pursuant to Federal Rule of Evidence 201, a court may take judicial notice 22 of “matters of public record,” including complaints filed in other courts. See e.g., Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), overruled on 23 other grounds as discussed in Gallardo v. Dicarlo, 203 F.Supp.2d 1160, 1162 n.2; Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). 24 9 The Krinsk action was originally brought by a single named plaintiff, 25 Marcy Krinsk, who is the wife of one of the name partners of Finkelstein & Krinsk, the law firm representing Mrs. Krinsk and the putative class. (Patel Decl. ¶ 3.) In 26 response to MBC’s motion to disqualify Finkelstein & Krinsk, Mrs. Krinsk filed an amended complaint in which she remained in the case in her individual capacity 27 only and substituted in two new named plaintiffs (including proposed intervenor Mayan Mooney) as proposed class representatives. (Id. ¶¶ 4, 5, Ex. B.) 28 20 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Marshall FAC Krinsk FAC Accused 2  Hansen’s Juice or Juice Box  Hansen’s Juice or Juice Box Products  Hansen’s Smoothie Nectar  Hansen’s Smoothie Nectar 3  Hubert’s Lemonade  Hubert’s Lemonade (¶ 1) 4  Angeleno Agua Frescas  Fruit & Tea Stix 5  Vidration 6  Hansen’s Sodas, 7  Blue Sky Sodas,  Hansen’s Energy (¶ 2) 8 Proposed “All persons in the United States “All persons who were residents 9 Class or, alternatively, California who in California when they purchased one or more of the purchased one or more of the 10 Misbranded Products from four Misbranded Products from four 11 years prior to the filing of the years prior to the filing of the Complaint and continuing to the Complaint and continuing to the 12 present.” (¶ 91) present.” (¶ 54) 13 Types of  “All Natural” (¶¶ 9-31)  “All Natural” (¶¶ 9-25) Alleged  “No Preservative” (¶¶ 32-41)  “No Preservative” (¶¶ 26-31) 14 Mislabelin  “100% Juice” (¶¶ 42-48)  “100% Juice” (¶¶ 32-34) 15 g  “No Added Sugar” (¶¶ 49-57)  “No Added Sugar” (¶¶ 35-37) 16  “Made From Concentrate”  “Made From Concentrate” (¶¶ 58-63) (¶¶ 38-39) 17  “Sweetened With Splenda”  “Sweetened With Splenda” 18 (¶¶ 64-71) (¶¶ 40-42)  “Fortification” (¶¶ 72-80)  “Fortification” (¶¶ 43-46) 19 Claims  UCL  UCL 20  FAL  FAL  CLRA  CLRA 21  Quasi-contract / Unjust  Quasi-contract / Unjust 22 Enrichment Enrichment 23 Injury Plaintiffs “did not receive the Plaintiffs “did not receive the Alleged products [] bargained for and [] lost products [] bargained for and [] 24 money as a result . . . of paying lost money as a result . . . of 25 money to Defendants and paying a paying money to Defendants premium for Defendants’ products and paying a premium for 26 owing to the misrepresentations.” Defendants’ products owing to 27 (¶¶ 31, 41, 48, 57, 63, 71, 80) the misrepresentations.” (¶ 53) Relief  Damages  Damages 28 21 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 Marshall FAC Krinsk FAC Requested 2  Restitution  Restitution  Injunctive Relief  Injunctive Relief 3  Attorneys’ fees  Attorneys’ fees 4 2. Cuzakis: The Subsumed Case 5 Cuzakis, et al. v. Monster Energy Company, et al., Los Angeles Superior 6 Court, Case No. BC513620 was filed in June 2013, shortly before the pre-litigation 7 discussions between the parties in this matter. The asserted claims, accused 8 products, and putative classes at issue in the operative Third Amended Complaint 9 are entirely subsumed by those in this case. (Patel Decl., Ex. C (“Cuzakis TAC”).) 10 Specifically, the Cuzakis TAC: (i) alleges California-only classes (¶ 47); 11 (ii) addresses only the “no sugar added” claims that are also asserted in this case 12 (¶ 2); (iii) concerns only Hansen’s-brand juices (i.e., Natural Apple Grape Juice, 13 Natural Pineapple Juice, Natural Apple Strawberry Juice, and Natural Organic 14 100% Apple Juice), which are also at issue here (¶ 15); and (iv) seeks the same 15 relief that is sought in this case (¶ 103). The proposed settlement of this case 16 eclipses all claims that are at issue in Cuzakis. 17 B. The Court Should Enjoin the Overlapping Actions 18 The Court is authorized to, and should, enjoin the Krinsk and Cuzakis actions 19 in order to protect its jurisdiction to oversee and enforce this settlement pursuant to 20 the All Writs Act, 28 U.S.C. § 1651(a), and the “necessary-in-aid-of-jurisdiction” 21 exception to the Anti-Injunction Act, 28 U.S.C. § 2283. The All Writs Act grants 22 the authority to federal courts to issue “all writs necessary or appropriate in aid of 23 their respective jurisdictions.” 28 U.S.C. § 1651(a). This authority is restricted by 24 the Anti-Injunction Act, which is designed to preclude federal court interference 25 with state court proceedings. 28 U.S.C. § 2283. But under the Anti-Injunction Act, 26 a federal court may issue an injunction to stay state court proceedings when 27 (1) expressly authorized by Act of Congress, (2) where necessary in aid of its 28 22 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 jurisdiction, or (3) to protect or effectuate its judgments. Id. 2 Here, the “necessary-in-aid-of-jurisdiction” exception applies. See Negrete 3 v. Allianz Life Ins. Co., 523 F.3d 1091, 1102 (9th Cir. 2008) (“Courts have held that 4 the existence of advanced federal in personam litigation may, in some instances, 5 permit an injunction in aid of jurisdiction.”). Jacobs v. CSAA Inter-Insurance, No. 6 C 07-00362 MHP, 2009 WL 1201996, at *3 (N.D. Cal. May 1, 2009) is instructive. 7 In Jacobs, the parties requested a preliminary injunction against named and absent 8 members of a federal class action from responding to or otherwise communicating 9 with plaintiff’s counsel in the state class action after the Court granted preliminary 10 approval of the settlement and conditionally certified three subclasses. Id. at *1. 11 The district court agreed, holding that “enjoining class members from participating 12 in a state action relating to claims that are similarly asserted in the federal action is 13 necessary and appropriate to preserve this court’s jurisdiction.” Id. at *3. 14 As in Jacobs, the Court should enjoin the state court proceedings in Krinsk 15 and Cuzakis because those actions implicate the same rights of the Class Members. 16 If the stays currently in place are lifted, there is a material risk that the courts in 17 those cases could issue rulings on class certification or the merits while the 18 settlement remains pending in this Court. These determinations could be 19 inconsistent with the terms of the proposed settlement, imperiling both the 20 jurisdiction of this Court and the benefits to be received by the conditional 21 settlement class. See Caiafa Prof’l Law Corp. v. State Farm Fire & Cas. Co., 15 22 Cal.App.4th 800, 807 (1993) (if the broader federal action proceeds and resolves 23 issues in the state court action, “‘[u]nseemly conflict’ will have been avoided and 24 the interest in judicial economy well served”].); Simmons v. Superior Court, 96 25 Cal.App.2d 119, 130 (1950) (“Equity abhors a multiplicity of actions . . . . A 26 conflict of authority should not occur if it can be avoided.”). While Class Members 27 who opt-out may still pursue related litigation on an individual basis, enjoining 28 Class Members who have not opted-out will best preserve the proposed 23 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 settlement’s chances of success and protect this Court’s jurisdiction. 2 IX. PROPOSED SCHEDULE OF FURTHER PROCEEDINGS 3 The Court should set a final approval hearing date, as well as dates for 4 providing Notice to the Class and objecting to or opting out of the Agreement.10 5 Rule 23(h)(1) requires that “[n]otice of the motion [for attorneys’ fees] must be 6 served on all parties and, for motions by class counsel, directed to class members in 7 a reasonable manner.” Fed. R. Civ. P. 23(h)(1). 8 Here, the Notice and Agreement satisfy the requirements of CAFA and Rule 9 23(h)(1). The parties can adjust the schedule proposed below, subject to Court 10 approval, based on the date the Preliminary Approval Order is entered. The 11 “Notice Date” is 14 days after notice of entry of the Preliminary Approval Order. 12 Event Deadline 13 Publication of Class Notice in USA In the 14-day period following the 14 Today and via banner ads on the Internet Notice Date 15 No later than ninety (90) calendar days Deadline for submitting a Claim after the Notice Date 16 Deadline for requesting exclusion from 17 the Class, objecting to the Agreement, or Postmarked no later than sixty (60) serving notice of appearance at Fairness calendar days after the Notice Date 18 Hearing 19 Motion for attorneys’ fees and 30 calendar days after the Notice Date 20 costs to be filed Deadline for filing motion for final 30 days after the claims submission 21 approval of the Settlement Agreement deadline 22 Deadline for filing response to any 30 days after the claims submission 23 objections to the Settlement Agreement deadline Fairness Hearing (motions for final Within 30 days after Plaintiffs file their 24 approval and attorney’s fees and costs) motion for final approval 25 26 10 Notice of the settlement has already been provided to certain state and 27 federal officials in compliance with CAFA (28 U.S.C. § 1715). (Patel Decl. ¶ 9.) 28 24 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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1 X. CONCLUSION 2 Plaintiffs respectfully request that the Court grant preliminary approval of the 3 Agreement, provisionally certify the Class, approve the proposed notice plan and 4 enter the Preliminary Approval Order submitted concurrently herewith. 5 Dated: December 28, 2015 COUNSELONE, P.C. 6 7 By: /s/ Anthony J. Orshansky Anthony J. Orshansky 8 Attorneys for Plaintiffs Osie Marshall, Yasna Cuevas, 9 and John Van Es 10

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