Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 1 of 231

GUTRIDE SAFIER LLP 1 ADAM J. GUTRIDE (State Bar No. 181446) SETH A. SAFIER (State Bar No. 197427) 2 MARIE A. MCCRARY (State Bar No. 262670) 100 Pine Street, Suite 1250 3 San Francisco, CA 94111 Telephone: (415) 271-6469 4 Facsimile: (415) 449-6469

5 MATTHEW T. MCCRARY (admitted pro hac vice) 265 Franklin St, Suite 1702 6 Boston, MA 02110 Telephone: (214) 502-2171 7 Counsel for Plaintiffs and Plaintiffs-in-Intervention 8 UNITED STATES DISTRICT COURT FOR THE 9 NORTHERN DISTRICT OF CALIFORNIA 10 JACKIE FITZHENRY-RUSSELL, on Case No. 5:17-cv-00603-EJD 11 behalf of herself, the general public and those similarly situated, DECLARATION OF ADAM J. GUTRIDE 12 IN SUPPORT OF PLAINTIFFS’ MOTION Plaintiff, FOR APPROVAL OF CLASS ACTION 13 SETTLEMENT v. 14 The COCA-COLA COMPANY, Date: June 13, 2019 15 Time: 9:00 a.m. Defendant. Courtroom: 4 16 Judge: Honorable Edward J. Davila

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1 I, Adam Gutride, declare and state that: 2 1. I am an attorney licensed to practice law in the State of California and in this Court, 3 and a partner in Gutride Safier LLP (“GSLLP” or “Firm”). My firm is counsel of record for Plaintiff 4 Jackie Fitzhenry-Russell and Proposed Intervenors David Swartz, Ashley Salcedo, Scott Miller, 5 Isabelo Pascual, Florin Carlin and Kristina Hoffman (collectively, “Plaintiffs”) in the above 6 captioned matter against The Coca-Cola Company (“Coca-Cola” or “Defendant”). I submit this 7 declaration in support of Plaintiffs’ Motion for Approval of Class Settlement. Unless otherwise 8 noted, I have personal knowledge of the facts set forth in this declaration and could and would

9 testify competently to them if called upon to do so. I discuss, in the following order, (a) the history 10 of this litigation, which includes a summary description of the legal services provided by GSLLP in 11 this litigation to date; (b) evaluation of the proposed settlement; (c) the risks borne by GSLLP; (d) 12 the lodestar of GSLLP; and (e) GSLLP’s continuing obligations in this litigation and under the 13 Settlement Agreement, a true and corect copy of which is attached hereto as Exhibit 1. Counsel for 14 Coca-Cola represented in writing that her client has agreed to the terms of the Settlement, but that it 15 was not possible to secure a signatory by today and that a signature will be provided early next 16 week. In addition, GSLLP was unable to secure Ms. Hoffman’s signature yet. GSLLP will file an 17 errata to this declaration attaching the final signature pages after we receive it. 18 A. History of This Litigation and the Similar Canada Dry Litigation 19 2. Cola-Cola manufacturers and markets the soft drink beverage Seagrams ginger ale.

20 Coca-Coca’s largest competitor is Canada Dry ginger ale, which is manufactured and marketed by 21 Keurig Dr Pepper, Inc. (“KDP”). 22 3. On December 28, 2016, Jackie Fitzhenry-Russell, through her counsel Gutride Safier 23 LLP (“GSLLP”), initiated this litigation against The Coca-Cola Company (“Coca-Cola” or 24 “Defendant”) by filing a Class Action Complaint in Santa Cruz County Superior Court. Jackie 25 Fitzhenry-Russell alleged that Defendants had deceptively marketed and sold its Seagrams Ginger 26 Ale products with the representation “Made with Real Ginger” on the front label, when in fact it 27 does not contain “real ginger” as reasonable consumers understand that term, nor does it provide the 28 1 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 3 of 231

1 health benefits that consumers reasonably expect from real ginger. Fitzhenry-Russell further alleged 2 that, as a result of the deceptive label, Defendants caused the Products to be sold at a higher retail 3 price. Fitzhenry-Russell alleged claims for violations of the California Consumer Legal Remedies 4 Act, Civil Code § 1780 et seq. (“CLRA”), false advertising under California Business and 5 Professions Code § 17500 et seq.; unfair business practices under California Business and 6 Professions Code § 17200 et seq.; and misrepresentation. Fitzhenry-Russell sought to pursue these 7 claims on behalf of herself and all purchasers of Seagrams Ginger Ale in the United States (other 8 than resellers) between December 23, 2012 and the present. Plaintiff sought an injunction to require

9 Defendant to cease using the phrase “Made with Real Ginger” in labeling and marketing. Plaintiff 10 also sought to recover, on behalf of the class of all purchasers, the dollar amount of the “premium” 11 price attributable to the alleged misrepresentations. GSLLP also drafted and sent a demand letter to 12 Coca-Cola pursuant to the CLRA on or about December 29, 2018. Defendant timely removed the 13 action to the Northern District of California on February 6, 2017. (Dkt. #1.) 14 4. Also on December 28, 2016, Jackie Fitzhenry-Russell, through her counsel GSLLP, 15 filed a class action lawsuit against KDP entitled Fitzhenry-Russell v. Keurig Dr. Pepper, Inc., Case 16 No. 5:2017-cv-00564-NC (the “Canada Dry case”). In the Canada Dry case, Fitzhenry-Russell 17 alleged that KDP had deceptively marketed and sold its Canada Dry Ginger Ale products with the 18 representation “Made from Real Ginger” on the front label, when in fact it does not contain “real 19 ginger” as reasonable consumers understand that term, nor does it provide the health benefits that

20 consumers reasonably expect from real ginger. Fitzhenry-Russell alleged the same legal claims 21 against KDP that she alleged against Coca-Cola. Additionally, Fitzhenry-Russell sought to pursue 22 these claims on behalf of herself and all Canada Dry purchasers between December 28, 2012 and 23 the present. Finally, Fitzhenry-Russell sought the same relief against KDP as she sought against 24 Coca-Cola: (i) an injunction to require KDP to cease using the phrase “Made from Real Ginger” in 25 labeling and marketing and (ii) refunds to consumer of the “premium” price attributable to the 26 alleged misrepresentations. 27 28 2 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 4 of 231

1 5. GSLLP drafted and filed the Complaint against Coca-Cola and caused it to be 2 served. Prior to doing so, GSLLP spent time communicating with Plaintiff concerning her claims, 3 gathering her documentation, and negotiating with her an engagement agreement. GSLLP also 4 undertook extensive pre-filing investigation, including without limitation, researching, tracking, and 5 analyzing Coca-Cola’s marketing, advertising, and product packaging, and reviewing Coca-Cola’s 6 websites and online documents. GSLLP spent additional time analyzing Food and Drug 7 Administration (“FDA”) regulations and the California Health and Safety Code. Throughout this 8 litigation, GSLLP has continued to monitor, research, and review such materials.

9 6. On March 13, 2017, Defendant filed a motion to dismiss and a request for judicial 10 notice. (Dkt. ##25, 26.) Defendants argued, inter alia, that Plaintiff Fitzhenry-Russell failed to plead 11 a claim for relief. Coca-Cola’s arguments were similar to those raised by KDP in its motions to 12 dismiss the Canada Dry original and amended complaints. (Canada Dry case Dkt. ##16, 74.) 13 GSLLP reviewed Coca-Cola’s arguments in the motion to dismiss and request for judicial notice, 14 researched the issues, and drafted the oppositions to the motion to dismiss and objections to the 15 request for judicial notice. (Dkt. ##27, 28.) 16 7. On September 22, 2017, Judge Cousins denied KDP’s motion to dismiss Fitzhenry- 17 Russell’s amended complaint in the Canada Dry case without oral argument. (Canada Dry case Dkt. 18 #87.) Then, on October 18, 2017, this Court denied Coca-Cola’s motion to dismiss without oral 19 argument. (Dkt. #48.)

20 8. On November 8, 2017, the Court entered a case management order, which set 21 Plaintiff’s deadline to file a class certification motion on August 16, 2018. (Dkt. #51.) The Court 22 did not set a trial date. (Id.). This schedule set a significantly longer time to trial than in the Canada 23 Dry case, which had been set by Judge Cousins on September 6, 2017. (Canada Dry case Dkt. #80.) 24 In the Canada Dry case, Fitzhenry-Russell’s motion for class certification was initially due on 25 March 9, 2018 and a trial date was set for January 7, 2019. (Id.) The class certification deadline was 26 later extended to April 9, 2018. (Canada Dry case Dkt. #128.) 27 28 3 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 5 of 231

1 9. Beginning in mid-2017, Fitzhenry-Russell and Coca-Cola engaged in discovery. 2 GSLLP drafted and served Fitzhenry-Russell’s discovery requests on Coca-Cola and served 3 subpoenas on third parties, including Safeway and the supplier of the flavorings used in Seagrams 4 ginger ale. In particular, Plaintiff propounded a lengthy set of requests for production and 5 interrogatories on Coca-Cola. Further, GSLLP drafted electronic search terms and a protocol so that 6 Coca-Cola could gather relevant electronically stored information. Defendant responded to 7 Plaintiff’s discovery requests, initially refusing to produce basic categories of information and 8 utilizing lengthy objections. Multiple rounds of meet and confer efforts between GSLLP and

9 Defendant’s counsel were required. Ultimately, GSLLP drafted and filed three joint discovery 10 disputes in this matter. From Fitzhenry-Russell’s perspective, the most critical dispute related to 11 Defendant’s refusal to produce documents and interrogatories relating to Seagram’s formula and 12 ingredients on grounds of relevance and protection of trade secrets. (Dkt.# 60.) The Court agreed 13 with Plaintiff that this information was critical to whether Seagram’s was “Made with Real Ginger,” 14 and ordered Defendant to produce documents and answer interrogatories. (Dkt.# 63.) 15 10. GSLLP also led met-and-confer efforts with Coca-Cola’s counsel regarding other 16 more general discovery matters, such as the scope of discovery, the retention of electronic 17 documents, Coca-Cola’s searches for electronically stored information, the terms and scope of a 18 stipulated protective order, the terms and scope of a stipulated order regarding the production of 19 electronically stored information, and the timing of production and depositions.

20 11. Coca-Cola also served discovery requests, including numerous document requests 21 and interrogatories on Plaintiff. GSLLP drafted Plaintiff’s responses, worked with Plaintiff to gather 22 and produce responsive documents, and addressed concerns by Coca-Cola in its meet and confer 23 efforts. 24 12. In total, over 12,000 pages of documents were produced in this case, and GSLLP 25 conducted all document review. Among other things, Plaintiffs received extensive information 26 relating to the formulation of Seagram’s ginger ales and documents relating to Coke’s strategy for 27 marketing Seagram’s ginger ale. 28 4 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 6 of 231

1 13. 13. GSLLP then took a two day Rule 30(b)(6) deposition, questioning three 2 corporate representatives on such topics as marketing, product formulation, and customer 3 comments. GSLLP also defended the deposition of Fitzhenry-Russell. 4 14. Throughout the litigation, GSLLP consulted with various experts and worked with 5 the experts to prepare three expert reports. For example, GSLLP retained and worked with Dr. 6 Michael Dennis, a survey expert to conduct surveys of California consumers regarding what they 7 understood the phrase “Made with Real Ginger” to mean and how the inclusion of the phrase 8 affected the price of Seagrams Ginger Ale. GSLLP worked with Dennis to prepare an opening and

9 rebuttal expert report. GSLLP also retained and worked with Colin Weir, an economist, who 10 estimated classwide damages. Weir opined that based on the survey results, Class members had 11 paid a price premium for the Seagrams Ginger Ale purchased during the class period averaging 12 approximately 6% of the purchase price. This equates to an average of $0.14 per product purchase. 13 GSLLP worked with Weir to prepare his opening and rebuttal report. Further, GSLLP defended the 14 depositions of Dennis and Weir. GSLLP additionally worked with three other experts: a chemist 15 who used gas chromatography/mass spectrometry to analyze the amount of ginger compounds in 16 Seagrams as compared to competing brands, a flavor scientist who was also a certified nutritionist, 17 and a marketing professor. GSLLP consulted with Plaintiffs’ experts frequently. 18 15. Defendant retained several experts of its own: Hal Poret and Dr. Kent Van Liere 19 (consumer surveys) and Dr. Denise Martin (damages). Dr. Martin opined that that there was no

20 price premium, the Products were lined priced, and damages were $0.00. Defendant’s survey 21 experts opined that the claim at issue, “Made with Real Ginger,” was not material to consumers and 22 that Plaintiff’s expert’s survey methodology was unreliable. GSLLP reviewed their lengthy reports, 23 consulted with Plaintiff’s experts about those reports, and deposed Dr. Van Liere. 24 16. GSLLP attended several case management conferences, and drafted and filed 25 numerous case management statements for these events. 26 17. GSLLP drafted and filed an amended class action complaint on January 5, 2018. 27 (Dkt. #53.) The only substantive amendment to the complaint was Fitzhenry-Russell’s request for 28 5 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 7 of 231

1 damages on her CLRA claim, because more than thirty days had passed since she had made a 2 demand that Coca Cola remedy its unlawful practices. 3 18. During mid-2017 to early 2018, Fitzhenry-Russell was also engaged in extensive 4 discovery efforts in the Canada Dry case. On April 9, 2018, Fitzhenry-Russell filed her motion for 5 class certification. (Dkt. #154.) On June 26, 2018, Judge Cousins granted the motion and certified a 6 class of “all persons who, between December 28, 2012 and the present, purchased any Canada Dry 7 Ginger Ale products in the state of California” and appointed Fitzhenry-Russell and Margaryan as 8 class representatives and GSLLP and the Margarian Law Firm as class counsel. (Dkt. #199.)

9 19. On May 19, 2018, when Fitzhenry-Russell’s motion for class certification in the 10 Canada Dry case was pending, the parties in this case filed a stipulation to extend the deadlines in 11 the case management order in this case by thirty days. (Dkt. #65.) The court entered an order 12 granting the stipulation. (Dkt. #66.) 13 20. Then again, on June 28, 2018, after Judge Cousins certified the Canada Dry case, the 14 parties in this case filed a stipulation to extend the deadlines in the case management order in this 15 case by forty-five days. (Dkt. # 68.) The court entered an order granting the stipulation. (Dkt. #69.) 16 21. On September 7, 2018, KDP moved for summary judgment in the Canada Dry case 17 on the ground that no reasonable consumer could be misled by the phrase “Made from Real 18 Ginger.” (Canada Dry case Dkt. #226.) KDP simultaneously moved to strike reports of several of 19 Plaintiffs’ experts. (Canada Dry case Dkt. #225.) The Canada Dry plaintiffs opposed both motions,

20 proffering three theories of how the Canada Dry label was misleading. (Canada Dry case Dkt. #235, 21 237.) 22 22. On September 27, 2018, while KDP’s motion for summary judgment was pending, 23 the parties in this case filed a stipulation to extend the deadlines in the case management order. 24 (Dkt. # 70.) The court entered an order granting the stipulation. (Dkt. #71.) 25 23. On November 2, 2018, Judge Cousins granted summary judgment in part as to one 26 of the three theories of deception and denied summary judgment as to others. (Canada Dry case 27 Dkt. #261.) Judge Cousins also granted in part and denied in part KDP’s motion to strike, striking 28 6 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 8 of 231

1 the testimony of Plaintiffs’ marketing expert, but permitting the remainder of Plaintiffs’ experts to 2 testify. (Canada Dry case Dkt. #260.) In these rulings, Judge Cousins ruled that KDP’s “Made from 3 Real Ginger” statement was literally true, in that the product contained a ginger extract. He also 4 rejected Plaintiffs’ claims that the statement implied a particular amount of ginger, for example, an 5 amount sufficient to provide the “ginger flavor.” But Plaintiffs were permitted to proceed to trial to 6 determine whether the statement was likely to mislead reasonable consumers as to the form of the 7 ginger or the health benefits of drinking the beverage. 8 24. On November 14, 2018, after Judge Cousins had denied KDP’s motion for summary

9 judgment in part, the parties in this case filed a stipulation to extend the deadlines in the case 10 management order in light of the upcoming January 7, 2019 trial in the Canada Dry case. (Dkt. # 11 72.) The court entered an order granting the stipulation. (Dkt. #73.) 12 25. After Judge Cousins’ order on summary judgment in the Canada Dry case, the 13 parties in that case began trial preparations in earnest, including filing a joint pretrial statement, 14 proposed jury instructions and verdict forms. 15 26. On December 11, 2018, a consolidated complaint involving four copycat lawsuits 16 against KDP asserting the same claims relating to Canada Dry’s “Made from Real Ginger” 17 statement was filed in Missouri. The lawyers for the copycat plaintiffs and KDP had reached a 18 settlement on behalf of a 49-state class (excluding California). Thus, on December 11, the copycat 19 plaintiffs and KDP simultaneously filed a proposed 49-state settlement and motion for preliminary

20 approval. On December 19, the Missouri court entered an order of preliminary approval. 21 27. After GSLLP learned of the proposed 49-state settlement on December 19, it 22 communicated with two JAMS mediators, Robert Meyer and Judge Wayne Andersen (Ret.). A 23 series of mediated negotiations followed, which led to an agreement to settle Fitzhenry-Russell’s 24 Canada Dry case on behalf of the certified California class. Fitzhenry-Russell filed notice of the 25 settlement and a motion for preliminary approval on January 4, 2019. (Canada Dry case Dkt. #325.) 26 28. To settle the Canada Dry cases, KDP entered into two separate settlement 27 agreements: one with a putative class of Canada Dry Ginger Ale consumers in California, and one 28 7 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 9 of 231

1 with a putative class of Canada Dry Ginger Ale consumers in the other 49 states. Under these 2 settlement agreements, KDP agreed to entry of a permanent injunction barring use of the 3 unmodified phrase “Made from Real Ginger” on its Canada Dry labeling or marketing, but 4 permitting use of certain variations on that phrase. KDP also agreed to allow consumers in both 5 classes to submit monetary claims for purchases of Canada Dry Ginger Ale for payment of $0.40 6 per unit purchased, for a total of up to $5.20 per consumer with no proof of purchase and $40.00 per 7 consumer with proof of purchase. KDP agreed to pay valid claims on these terms up to a cap of 8 $11.2 million. The 49-state settlement (excluding California) received final approval on April 8,

9 2019 and the California settlement was finally approved on April 10, 2019. 10 29. Under the Canada Dry settlements, GSLLP and three other plaintiffs’ firms were 11 awarded attorneys’ fees totaling approximately $2.58 million, which was the maximum amount 12 KDP had agreed to pay in settlement. This award, however, represented only 59% of Plaintiffs’ 13 counsel’s lodestar, as determined by Judge Cousins. Thus GSLLP did not recover 41% of its 14 incurred fees in that case, or more than $1.69 million. 15 30. GSLLP anticipated that media attention for the Canada Dry settlement would result 16 in the filing of copycat cases against Coca-Cola. Accordingly, GSLLP researched, drafted, and filed 17 a motion to appoint GSLLP interim lead counsel in this case on January 29, 2019. (Dkt. # 74.) 18 Further, because GSLLP has been contacted by additional purchasers of Seagrams that wanted to 19 serve as class representatives in this case, GSLLP researched, drafted, and filed a motion to

20 intervene on behalf of the Plaintiffs-in-Intervention, David Swartz, Ashley Salcedo, Scott Miller, 21 Isabelo Pascual, Florin Carlin and Kristina Hoffman, on January 29, 2019, along with a proposed 22 amended complaint on behalf of a nationwide class. (Dkt. #75.) 23 31. Following the Canada Dry settlement and the filing of the motion to intervene, Coca- 24 Cola and the Plaintiffs agreed to participate in private mediation of this case. Accordingly, on 25 February 1, 2019, the parties filed a stipulation to stay the deadlines in the case management order. 26 (Dkt. #77.) The court entered an order granting the stipulation. (Dkt. #78.) 27 28 8 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 10 of 231

1 32. On February 19, 2019, the parties participated in mediation with the Honorable 2 Wayne Andersen (retired) at JAMS in Chicago, Illinois since he had successfully mediated the 3 Canada Dry case. At that mediation, Judge Anderson proposed the material terms of the settlement, 4 to which the parties subsequently agreed. The settlement agreement was modeled in part on the 5 settlement reached in the Canada Dry case. In particular, Coca-Cola agreed to the same injunctive 6 relief (i.e., label changes) that KDP agreed to in the Canada Dry settlement agreement. Further, 7 Coca-Cola agreed to a common fund (instead of the claims made structure in the KDP settlement) 8 and Coca-Cola agreed to pay consumers up to $0.80 per purchase, which would be reduced pro-rata

9 if too many claims were received, but which, based on information received from claims 10 administrators, would lead to at least a $0.40 per purchase recovery (rather than fixed $0.40 per 11 purchase in the KDP settlement). One difference, however, was that the parties agreed on a 12 common fund settlement, meaning that Coca-Cola would be required to pay a fixed amount of 13 $2,450,000, regardless of the number of claims, and GSLLP’s fees and expenses would be paid only 14 out of the fund. This structure meant that GSLLP had an incentive to maximize the size of the fund 15 for the benefit of class members. After the mediation, the parties spent a great deal of time 16 negotiating and drafting the detailed settlement documents, which were finalized on May 8, 2019.1 17 B. Evaluation of the Proposed Settlement Agreement 18 33. A true and correct copy of GSLLP’s resume is attached as Exhibit 2. As can be seen 19 from the resume, GSLLP has substantial experience in the litigation, certification, and settlement of

20 class action cases. Indeed, as is further detailed in the resume, GSLLP has been appointed as class 21 counsel in more than 25 consumer cases and has overseen more than a dozen large class action 22 settlements. Numerous judges in this District and other jurisdictions have commended GSLLP for 23 its vigorous and effective advocacy and for the results achieved to curb false advertising and to 24 recover damages and obtain injunctive relief to benefit consumers. Some of these commendations 25 are recited in Exhibit 2.

26 1 27 The capitalized terms used herein are defined in and have the same meaning as used in the Settlement Agreement unless otherwise stated. 28 9 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 11 of 231

1 34. Based on my experience, Coca-Cola’s counsel are also highly experienced in this 2 type of litigation. It is thus my considered opinion that counsel for each side have fully evaluated 3 the strengths, weaknesses, and equities of the parties’ respective positions and believe that the 4 proposed settlement fairly resolves their respective differences. 5 35. This Litigation involved sharply opposed positions on several fundamental legal and 6 factual issues. The parties engaged in extensive, highly adversarial discovery, including numerous 7 fact and expert depositions, document production, interrogatories, and non-party discovery. In 8 addition, GSLLP had litigated the same issues, and the parties had the benefit of rulings from Judge

9 Cousins, in the Canada Dry litigation. The record was thus sufficiently developed that the parties 10 were fully informed as to the viability of the claims and able to adequately evaluate the strengths 11 and weaknesses of their respective positions and risks to both sides if the case did not settle. 12 36. Plaintiffs maintain that their claims are meritorious; that the Court would certify the 13 proposed class; that they would establish liability and recover substantial damages if the case 14 proceeded to trial; and that the final judgment recovered in favor of Plaintiffs and the certified 15 California class would be affirmed on an appeal. But Plaintiffs’ ultimate success would require 16 them to prevail, in whole or in part, at all of these junctures. Conversely, Coca-Cola’s success at any 17 one of these junctures could or would have spelled defeat for Plaintiffs and the Settlement Class. 18 Thus, continued litigation posed significant risks and countless uncertainties, as well as the time, 19 expense and delays associated with trial and appellate proceedings.

20 37. On the basis of my investigation into this case and experience with and knowledge of 21 the law and procedure governing the claims of Plaintiffs and the Settlement Class, it is my belief 22 that it is in the best interests of the class to enter into this Settlement. Indeed, in light of the risks, 23 uncertainties and delays associated with continued litigation, the Settlement represents a significant 24 achievement by providing guaranteed benefits to class members in the form of changed practices 25 and direct cash compensation. 26 38. Using information provided by Coca-Cola in connection with settlement discussions 27 and point of sale data obtained from Information Resources Inc. in connection with this litigation, I 28 10 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 12 of 231

1 have determined that Coca-Cola sold Products nationwide during the relevant periods, and that the 2 total retail sales for those Products was approximately $970 million (which resulted from the sales 3 of tens of millions of the Products). At trial, Plaintiff might, in the best-case scenario, obtain a 100% 4 refund of the price “premium” charged by Defendant for each Product, calculated as the difference 5 between the retail price of Products with and without the alleged “Made from Real Ginger” 6 misrepresentations. Plaintiff’s economics expert, Colin Weir, opined that the associated price 7 premiums are equal to between 6.00 and 6.33 percent of the purchase price of each package of 8 ginger ale, depending on the product type. This is approximately an average of $0.14 per product

9 purchased. Thus, even if successful at trial, the class as a whole would recover at most $58 million 10 to $62 million. 11 39. Coca-Cola has agreed to pay $2,450,000 under the settlement into a non-reverting 12 common fund. Although this is only 4% of the total possible “best-case” monetary recovery, it still 13 represents a reasonable result in light of the risks of proceeding. Trial would be a battle of the 14 experts, on survey methodologies, economics, flavor science, and nutrition. If this Court followed 15 Judge Cousins’ reasoning, then the jury here would be told that the the Court already found that the 16 claim “Made with Real Ginger” was literally true. There was no guarantee that a jury would believe 17 that the “Made with Real Ginger” representation implied health benefits or connoted ginger root 18 instead of ginger extract. Indeed, I knew from my experience presenting the Canada Dry case to a 19 mock jury that it would be exceedingly difficult to convince a majority of jurors that there was

20 actionable misconduct and that any monetary relief should be awarded. Even if the jury believed the 21 representation was likely to mislead reasonable persons, there is no guarantee it would believe the 22 named Plaintiffs’ testimony about their reliance on the label, or that they would believe the level of 23 deception justified a lawsuit. 24 40. Each of these risks, by itself, could have impeded Plaintiffs’ and the Settlement 25 Class’ successful prosecution of their claims at trial and in an eventual appeal. There was a 26 substantial risk that class members would recover only nominal damages, or nothing at all. Even in 27 the best case, it could take years to get relief for class members. The Settlement provides substantial 28 11 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 13 of 231

1 relief to the certified class without further delay. 2 41. It was also far from clear that a full damage award after trial would result in greater 3 monetary relief to any individual class member as compared to this settlement. The average 4 premium that could be proven in the best case was only $0.14 per product. Because the identities of 5 class members are not known, individuals would still have to make claims to obtain monetary 6 compensation. The case law is unclear as to whether each individual could recover more than the 7 6% premium per product (i.e., $0.14). In addition, Coca-Cola might be able to assert defenses to 8 indivdual recoveries, as contemplated by Ninth Circuit case law. It also could likely insist on a more

9 onerous claims process than the one agreed in this settlement, which does not even require proof of 10 purchase for the first 13 products, and which guarantees payment for five products even if fewer 11 than five purchases were made. A large class damage award thus might have resulted in less money 12 being paid to individual class members, with the overwhelming majority of class members (the 13 persons who lack proof of purchase) receiving nothing. The bulk of the money would only be 14 awarded cy pres, or under some reading of the case law, might revert to the Defendant. In this 15 settlement, there is no reversion to Defendant. 16 42. Moreover, the $2,450,000 figure does not include the value of the injunctive relief, 17 which includes removing the “Made from Real Ginger” phrase from its product labeling. Even if 18 Plaintiff succeeded at trial there is no guarantee that the Court would issue a permanent injunction 19 with the scope of the agreed injunction here. For example, the Court might have permitted Coca-

20 Cola to continue using the challenged phrase as long as it provided additional qualifying 21 information in small print on a back panel. Due to the agreed injunctive relief, Coca-Cola will incur 22 costs in removing the “Made With Real Ginger” phrase from its Seagrams Labeling. Further, if 23 Plaintiffs’ theories are correct, the sales price will decrease, or the number of units sold will 24 decrease, or one or both of those things will, at least, not increase as much as they would have in the 25 presence of the claim. Thus, in addition to the monetary relief provided by the Settlement, 26 Defendant’s changed practices will benefit class members and other consumers by (1) saving them 27 money on future purchases and (2) allowing them more complete information when they make 28 12 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 14 of 231

1 decisions between Seagrams and other competing products, which may in fact be made with real 2 ginger. 3 43. Under the circumstances, Plaintiffs and GSLLP appropriately determined that the 4 Settlement outweighs the gamble of continued litigation. While I firmly believe in the merits of this 5 litigation and that Plaintiffs would ultimately win at trial, I also believe that recovery is far from 6 guaranteed and that the benefits of settlement in this case outweigh the risks and uncertainties of 7 continued litigation, as well as the attendant time and expenses associated with possible 8 interlocutory appellate review, pretrial motion practice, trial, and final appellate review.

9 C. The Risks Borne by GSLLP 10 44. In accepting this case, GSLLP bore considerable risk. GSLLP took this case on a 11 fully contingent basis, meaning that we were not paid for any of our time, and that we paid all costs 12 and out of pocket expenses without any reimbursement to date. In evaluating the case at the outset, I 13 concluded that there was a significant possibility that the total amount of classwide damages we 14 would recover would be insufficient for GSLLP to be compensated for all the time it would expend, 15 if GSLLP was limited to recovering a percentage of those classwide damages. However, because 16 the statutes under which the plaintiff would be suing authorized fee-shifting to a prevailing plaintiff 17 who achieved a benefit for the class members/general public (a.k.a. “private attorney general fees”), 18 I concluded that GSLLP could accept the engagement. Further, I recognized that GSLLP would be 19 contributing a substantial amount of time and advancing significant costs in prosecuting a class

20 action, with no guarantee of compensation or recovery, in the hopes of prevailing against a well- 21 funded defense. During the course of the litigation, GSLLP turned away other cases due to its 22 involvement with this matter. Among these were cases that were subsequently filed by other firms. 23 45. Because Coca-Cola was represented by a large, highly-skilled and well-resourced 24 litigation firm, there was increased risk that Plaintiffs would not certify a class and/or receive a 25 verdict for the Defense after a prolonged trial. 26 D. Lodestar and Expenses for GSLLP 27 46. Throughout the duration of this litigation, GSLLP has maintained contemporaneous 28 13 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 15 of 231

1 billing records for this case. Based on GSLLP’s time records, GSLLP has spent approximately 2 892.5 hours prosecuting this litigation, although some timekeepers have not yet input time for the 3 current month and their totals are current only through April 31, 2019. (Thus, this total does not 4 include all work finalizing the settlement papers or the motion to approve and supporting 5 declarations.) The total number of hours, as well as the lodestar computed at our 2019 rates, is 6 shown in the following table: 7

8 Timekeeper Hours Rate Total

9 Adam J. Gutride 87.8 $1025 $89,995.00

10 Seth A. Safier 158.7 $1025 $162,667.50

11 Marie McCrary 133.7 $900 $120,330.00

12 Todd Kennedy 6.7 $850 $5,695.00

13 Kristen Simplicio 10.6 $825 $8,745.00

14 Anthony Patek 6.2 $825 $5,115.00

15 Steven Raab 4.6 $825 $3,795.00 16 Matt McCrary 308.1 $825 $254,182.50 17 Rajiv Thairani 0.7 $600 $420.00 18 Jessica Kagansky 118.2 $550 $65,010.00 19 Ashley Garcia 57.2 $275 $15,730.00 20 Jennifer Gardner 6.5 $225 $1,462.50 21 TOTAL 892.5 $731,685.00 22

23 47. The hourly rates shown for the attorneys and paralegals at GSLLP are the same as 24 the regular rates charged in 2019 for their services in other litigation. The persons shown above are 25 all attorneys, except for Ashley Garcia and Jennifer Gardner, who are legal assistants. 26 48. I have reviewed the hours worked by the attorneys and legal assistants in this 27 litigation and I estimate that our time can be divided as follows: 28 14 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 16 of 231

1 • Adam Gutride: case initiation (including initial factual research into ginger ale labelling and 2 manufacturing processes and interviewing of consumers regarding the challenged claim and 3 5.8 hours), case management and strategy (supervising the work of the team and 4 strategizing all aspects of the case; discussing strategy in light of Canada Dry case) (18.5 5 hours); discovery (reviewing hot documents, strategizing regarding depositions and 6 deposition corrections, editing motions to compel) (10.1 hours); motion practice (editing 7 opposition to motion to dismiss and motion to appoint lead counsel) (3.4 hours); expert 8 work (interviewing possible experts; working with experts to design conjoint and materiality

9 surveys and to edit draft reports; consulting and working with experts about ginger ale 10 manufacturing, testing, tasting and health benefits of ginger) (42.5 hours); settlement 11 (discussing settlement strategy; preparing and reviewing term sheets, reviewing and editing 12 settlement agreement and exhibits; interviewing potential claims administrators and 13 reviewing bids, and drafting motion and supporting documents) (14.9 hours). Grand Total: 14 87.8 hours.

15 • Seth Safier: case initiation (including initial factual and legal research; interview of Plaintiff 16 Fitzhenry-Russell, intake interviews of all plaintiffs in intervention, and preparation of 17 motion to intervene and proposed amended complaint (27.3 hours), case management and 18 strategy (maintaining contact with Plaintiff throughout case, supervising the work of the 19 team and strategizing all aspects of the case, participating in Rule 26 conference and ADR

20 conference calls and preparing initial disclosures) (26.1 hours); discovery (reviewing 21 documents, strategizing regarding depositions, reviewing all transcripts, preparing 22 Fitzhenry-Russell for deposition (including trips to her home in Santa Cruz) and defending 23 deposition, reviewing corrections, preparing for and attending all in person meet-and- 24 confers, and editing dispute letters and motions to compel re same) (38.3 hours); motion 25 practice (editing opposition to motion to dismiss and drafting motion to appoint lead 26 counsel) (10.3 hours); expert work (interviewing possible experts, reviewing expert 27 conclusions (8.5 hours); settlement (discussing settlement strategy, telephonic negotiations 28 15 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 17 of 231

1 with opposing counsel, preparing and reviewing term sheets, attending mediation, including 2 travel to Chicago, and reviewing and editing settlement agreement and exhibits) (48.2 3 hours). Grand Total: 158.7 hours.

4 • Marie McCrary: case initiation (including including potential plaintiff vetting, drafting of 5 amended complaint, communications with potential witnesses, and investigation) (3.8 6 hours); case management and strategy (drafting case management statements and 7 stipulations, conferring with Coca-Cola’s counsel regarding the same, participating in calls 8 regarding case strategy and case management issues, participating in ADR teleconference,

9 and supervising case activities) (11.1 hours); discovery (drafting protective order, electronic 10 service stipulation, and order on electronic stored information, conferring with Coca-Cola’s 11 counsel regarding the same, drafting Plaintiffs’ initial disclosures, drafting discovery 12 requests to Coca-Cola, drafting responses to Coca-Cola’s discovery requests, preparing 13 subpoenas to non-parties, corresponding with non-parties to obtain documents, drafting meet 14 and confer letters regarding discovery disputes, participating in calls with Coca-Cola’s 15 counsel regarding the same, drafting deposition notices, corresponding with Coca-Cola’s 16 counsel regarding the scheduling of depositions, preparing for and deposing Coca-Cola’s 17 consumer survey expert, drafting joint discovery dispute statements, supervising document 18 review, and reviewing hot documents) (89.4 hours); expert work (interview and retain 19 experts, working with experts in performing surveys and drafting expert initial and

20 supplemental reports, including preparing critiques of opposing experts, and working with 21 expert to test ginger compounds in Seagrams ginger ale) (6.5 hours); settlement (strategy 22 discussion related to settlement, participate in drafting mediation statement, participate in 23 drafting settlement agreement and exhibits, corresponding with Coca-Cola’s counsel 24 regarding the same, comunicating with potential claims administrators, and drafting motion 25 for preliminary approval and supporting documents) (22.9 hours). Grand Total: 133.7 26 hours. 27 • Todd Kennedy: case initiation (including potential plaintiff vetting and investigation) (5.7 28 16 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 18 of 231

1 hours); case management and strategy (participate in calls regarding case strategy) (0.8 2 hours); discovery (assistance with document review platform) (.2 hours). Grand Total: 6.7 3 hours. 4 • Kristen Simplicio: case initiation (including including potential plaintiff vetting, drafting of 5 complaint, drafting of engagement letter, drafting of CLRA letter, communications with 6 potential witnesses, and investigation) (6.1 hours); case management and strategy 7 (participate in calls regarding case strategy and case management issues) (1.9 hours); 8 discovery (assist with meet and confer efforts on discovery disputes) (1.9 hours); motion 9 practice (strategy discussions related to motion practice) (0.6 hours); settlement (strategy 10 discussion related to settlement) (0.1 hours). Grand Total: 10.6 hours. 11

12 • Anthony Patek: case management and strategy (participate in calls regarding case strategy 13 and case management issues) (1.1 hours); discovery (participate in drafting meet and confer 14 letter regarding deficient discovery responses) (5.1 hours). Grand Total: 6.2 hours. 15 • Stephen Raab: case initiation (including including potential plaintiff vetting, 16 communications with potential witnesses, and investigation) (4 hours); case management 17 and strategy (participate in calls regarding case strategy and case management issues) (.6 18 hours). Grand Total: 4.6 hours. 19

20 • Matt McCrary: case initiation (including including potential plaintiff vetting, drafting of 21 first and second amended complaints, drafting of motion to intervene, drafting of 22 engagement letters, communications with potential witnesses, and investigation) (12.9 23 hours); case management and strategy (drafting case management statements and 24 stipulations, conferring with Coca-Cola’s counsel regarding the same, and participating in 25 calls regarding case strategy and case management issues) (10.5 hours); discovery 26 (participating in Rule 26(f) conference, drafting discovery requests to Coca-Cola, drafting 27 amended responses to Coca-Cola’s discovery requests, drafting letters and participating in 28 17 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 19 of 231

1 meet and confer with Coca-Cola’s counsel regarding discovery issues, developing strategy 2 for joint discovery dispute statements, corresponding with Coca-Cola’s counsel regarding 3 ESI search terms and protocol, corresponding with Coca-Cola’s counsel regarding the 4 scheduling of depositions, preparing for and deposing Coca-Cola’s 30(b)(6) witnesses, 5 defending the deposition of Colin Weir, supervising document review, and reviewing hot 6 documents) (139.0 hours); motion practice (researching, drafting, and filing opposition to 7 motion to dismiss and request for judicial notice and notice of recent decision) (33.5 hours); 8 expert work (interview and retain experts, work with experts to performing surveys and

9 drafting expert initial and supplemental reports, including preparing critiques of opposing 10 experts, and working with expert to test ginger compounds in Seagrams ginger ale) (6.5 11 hours); settlement (strategy discussions related to settlement, drafting mediation statement, 12 attending mediation, participate in drafting settlement agreement and exhibits, 13 corresponding with Coca-Cola’s counsel regarding the same, and drafting motion for 14 preliminary approval and supporting documents) (80.4 hours). Grand Total: 308.1 hours. 15 • Rajiv Thairani: case management and strategy (participate in calls regarding case strategy 16 and case management issues) (0.7 hours). Grand Total: 0.7 hours. 17

18 • Jessica Kagansky: case initiation (including including potential plaintiff vetting and 19 investigation) (1.0 hours); case management and strategy (participate in calls regarding

20 case strategy and case management issues) (0.6 hours); discovery (including, document 21 review, assist with 30(b)(6) depositions in Atlanta, assist with meet and confer efforts on 22 discovery disputes, and legal research on discovery-related issues) (74.5 hours); motion 23 practice (draft motion for appointment of interim lead counsel and supporting papers) (6.0 24 hours); expert issues (work with testing expert, marketing expert, and nutrition expert in 25 drafting initial reports and participate in strategy discussions regarding experts) (36.1 hours). 26 Grand Total: 118.2 hours. 27 • Ashley Garcia: assisisting with case initiation tasks (25.7 hours); assisting with discovery 28 18 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 20 of 231

1 tasks (26.8 hours); assisting with filings relating to motion practice (1.5 hours); assisting 2 with miscellaneous tasks (3.2 hours). Grand Total: 57.2 hours. 3 • Jennifer Gardner: assisisting with case initiation (2.0 hours); assisting with discovery tasks 4 (4.5 hours). Grand Total: 6.5 hours. 5 6 49. The rates charged by my firm have been deemed reasonable in connection with the 7 approval of my firm’s fee applications in at least seven recent matters. On April 10, 2019, Judge 8 Cousins in Fitzhenry-Russell et al. v. Dr Pepper Snapple Group, Inc. et al. 5:17-cv-00564 approved

9 GSLLP’s regular 2018 billing rates of $975 for me, $925 for Seth Safier, $850 for Marie McCrary, 10 $800 for Todd Kennedy, $800 for Kristen Simplicio, $775 for Matt McCrary, $500 for Jessica 11 Kagansky, $260 for Ashley Garcia, and $200 for Jennifer Gardner. On March 29, 2019, in Pettit et 12 al. v. Procter & Gamble Co., Case No. 3:15-cv-02150-RS, and on August 29, 2018, in Koller et al. 13 v. Med Foods, Inc., et al., Case No. 3:14-CV-2400-RS, Judge Richard Seeborg approved GSLLP’s 14 regular 2018 billing rates of $975 for me, $950 for Seth Safier, $800 for Kristen Simplicio, $850 for 15 Marie McCrary, $775 for Matt McCrary, $850 for Todd Kennedy, and $200 for Ashley Garcia. On 16 March 16, 2018, Judge Winifred Smith of the Alameda County Superior Court approved GSLLP’s 17 regular 2017 billing rates of $950 for me, $925 for Seth Safier, $775 for Kristen Simplicio, $750 for 18 Marie McCrary, and $725 for Matt McCrary, in a similar food labeling matter in Kumar v. Safeway, 19 Inc., Case No. RG 14726707. These 2017 rates were also approved on July 7, 2017 by Judge

20 Gonzales Rogers in Kumar v. Salov North America Corp., Case No. 14-cv-2411 (N.D.Cal.). On 21 December 5, 2017, Judge Claudia Wilken approved GSLLP’s 2017 rates in Rainbow Business 22 Solutions v. MBF Leasing, Case No. 10-cv-1993 (N.D.Cal.). On February 24, 2016, Judge Peter 23 Kirwan of the Santa Clara County Superior Court approved rates GSLLP’s 2015 rates of $825 for 24 me and $800 for Seth Safier in Mackinnon v. IMVU, Inc., Case No. 111 CV 193767. 25 50. I am a 1994 graduate from Yale Law School. Seth Safier is a 1998 graduate from 26 Harvard Law School. Ms. Simplicio is 2007 graduate of the American University, Washington 27 College of Law. Ms. McCrary is a 2008 graduate of New York University Law School. Mr. Raab is 28 19 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 21 of 231

1 a 2005 graduate of New York University Law School. Mr. McCrary is a 2009 graduate of 2 University of Texas Law School. Mr. Thairani is a 2013 graduate of Duke University School of 3 Law. Ms. Kagansky is a 2016 graduate of Northwestern University School of Law. Mr. Kennedy is 4 a 2003 graduate of Yale Law School. Mr. Patek is a 2003 graduate of the UC Berkeley Boalt School 5 of Law. 6 51. I and Mr. Safier were previously attorneys at the law firm of Orrick Herrington & 7 Sutcliffe. It is my understanding that attorneys at that firms in the litigation departments, with the 8 same number of years of experience as myself and Mr. Safier are currently billing at hourly rates in

9 excess of $1000 for law school graduates from 1994 and 1998. Similarly, the billing rates of Mr. 10 McCrary, Ms. McCrary, Mr. Patek, Mr. Kennedy and Mr. Raab would all be higher had they 11 remained at their prior firms, which include Quinn Emanuel, Cooley, and Baker & Mckenzie. I also 12 believe the rates paid by Coca-Cola to its firm in this case meets or exceeds the rates requested for 13 GSLLP. I believe that my firm’s hourly rates are below market for attorneys with similar 14 backgrounds and experience. 15 52. The reasonableness of my firm’s hourly rates is also supported by several surveys of 16 legal rates, including the following:

17 i. In an article entitled “On Sale: The $1,150-Per Hour Lawyer,” written by Jennifer Smith and published in the Wall Street Journal 18 on April 9, 2013, the author describes the rapidly growing number of lawyers billing at $1,150 or more revealed in public filings and 19 major surveys. The article also notes that in the first quarter of 2013, the 50 top-grossing law firms billed their partners at an 20 average rate between $879 and $882 per hour. A true and correct copy of this article is attached hereto as Exhibit 3. 21 ii. In an article published April 16, 2012, the Am Law Daily 22 described the 2012 Real Rate Report, an analysis of $7.6 billion in legal bills paid by corporations over a five-year period ending in 23 December 2011. A true and correct copy of that article is attached hereto as Exhibit 4. That article confirms that the rates charged 24 by experienced and well- qualified attorneys have continued to rise over this five-year period, particularly in large urban areas 25 like the San Francisco Bay Area. It also shows, for example, that the top quartile of lawyers bill at an average of “just under $900 26 per hour.” 27 iii. Similarly, on February 25, 2011, the Wall Street Journal published an on-line article entitled “Top Billers.” A true and 28 20 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 22 of 231

correct copy of that article is attached hereto as Exhibit 5. That 1 article listed the 2010 and/or 2009 hourly rates for more than 125 attorneys, in a variety of practice areas and cases, who charged 2 $1,000 per hour or more. Indeed, the article specifically lists eleven (11) Gibson Dunn & Crutcher attorneys billing at $1,000 3 per hour or more. 4 iv. On February 22, 2011, the ALM’s Daily Report listed the 2006- 2009 hourly rates of numerous San Francisco attorneys. A true 5 and correct copy of that article is attached hereto as Exhibit 6. Even though rates have increased significantly since that time, my 6 firm’s rates are well within the range of rates shown in this survey. 7 v. The Westlaw Court Express Legal Billing Reports for May, 8 August, and December 2009 (attached hereto as Exhibit 7) show that as far back as 2009, attorneys with as little as 19 years of 9 experience were charging $800 per hour or more, and that the rates requested here are well within the range of those reported. 10 Again, current rates are significantly higher. 11 vi. The National Law Journal’s December 2010, nationwide sampling of law firm billing rates (attached hereto as Exhibit 8) 12 lists 32 firms whose highest rate was $800 per hour or more, eleven firms whose highest rate was $900 per hour or more, and 13 three firms whose highest rate was $1,000 per hour or more. 14 vii. On December 16, 2009, The American Lawyer published an online article entitled “Bankruptcy Rates Top $1,000 in 2008- 15 2009.” That article is attached hereto as Exhibit 9. In addition to reporting that several attorneys had charged rates of $1,000 or 16 more in bankruptcy filings in Delaware and the Southern District of New York, the article also listed 18 firms that charged median 17 partner rates of from $625 to $980 per hour. 18 viii. According to the National Law Journal’s 2014 Law Firm Billing Survey, law firms with their largest office in New York have 19 average partner and associate billing rates of $882 and $520, respectively. Karen Sloan, $1,000 Per Hour Isn’t Rare Anymore; 20 Nominal Billing Levels Rise, But Discounts Ease Blow, National Law Journal, Jan. 13, 2014. The survey also shows that it is 21 common for legal fees for partners in New York firms to exceed $1,000 an hour. Id. A true and correct copy of this survey is 22 attached hereto as Exhibit 10. 23 ix. According to a February 9, 2016 article from the Wall Street Journal, “Kirkland & Ellis LLP’s top hourly billing rate is now 24 $1,445.” A true and correct copy of this article is attached hereto as Exhibit 11. 25 x. According to a May 11, 2018 article from the New York Times, 26 Kirkland & Ellis was “charging as much as $1,745 an hour” in the Toys ‘R’ Us bankruptcy case. A true and correct copy of this 27 article is attached hereto as Exhibit 12. 28 21 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 23 of 231

1 53. Expenses are accounted for and billed separately and are not duplicated in my 2 professional billing rate. GSLLP has not received reimbursement for expenses incurred in 3 connection with this litigation. As of April 31, 2019, GSLLP incurred a total of $70,805.52 in 4 unreimbursed actual third-party expenses in connection with the prosecution of these cases. The 5 actual expenses incurred in the prosecution of these cases are reflected on the computerized 6 accounting records of my firm prepared by bookkeeping staff, based on receipts and check records, 7 and accurately reflect all actual expenses incurred. Some of the expenses included below are known 8 to us but yet to be invoiced or have been invoiced but not yet paid. The expenses that have yet to be

9 invoiced, for example, include expenses for courtesy copies of this Motion and expenses associated 10 with traveling to the final approval hearing and are estimated based on my experience. A complete 11 breakdown of all expenses is attached as Exhibit 13. 12 E. GSLLP’s Continuing Obligations to Class Members 13 54. If this Court grants preliminary approval to the Settlement, GSLLP will establish 14 standardized procedures to ensure that all inquiries from Settlement Class Members are timely and 15 accurately handled. GSLLP will also work with the Settlement Administrator to assure that 16 settlement website functions properly (i.e., is easy to use and properly designed). GSLLP will also 17 work with the Settlement Administrator to assure that notice is disseminated in accordance with the 18 terms of the Settlement Agreement. GSLLP will receive weekly updates from the Settlement 19 Administrator regarding the administration of the settlement. GSLLP will continue in this capacity

20 should the settlement be finally approved. GSLLP will prepare for and appear at the fairness 21 hearing. If the settlement is approved and fees awarded, GSLLP also will oppose any appeals that 22 may be filed. Based on my experience with class actions, I additionally anticipate that there will be 23 another 50-75 hours of work before this Litigation is entirely complete and an estimated 175-250 24 hours of work if this Court’s judgment is appealed. 25 C. Service Awards To Named Plaintiffs 26 55. Plaintiff Fitzhenry-Russell is requesting a Representative Service Award of $5000 27 and the Plaintiffs-in-Intervention, David Swartz, Ashley Salcedo, Scott Miller, Isabelo Pascual, 28 22 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 24 of 231

1 Florin Carlin, and Kristina Hoffman are requesting a Representative Service Award of $1000 each. 2 To date, Plaintiffs’ involvement in this litigation has been excellent. Fitzhenry-Russell, for example, 3 reviewed many documents, conducted investigation, appeared for deposition, and responded to 4 written discovery. Each of the Plaintiffs took on substantial risk, most importantly the risk of 5 publicity and notoriety. For example, there were online postings criticizing Fitzhenry-Russell for 6 her role in this suit. Had the case gone forward, all the Plaintiffs would have been subject to 7 possible ridicule for being unreasonable consumers with the temerity to assert that they were misled 8 into thinking they were getting a health benefit from drinking soda. Plaintiffs are also entering into a

9 broader release than the other class members. Further, Plaintiffs assumed the risk of bearing 10 Defendant’s costs should the litigation have ultimately been unsuccessful. In my opinion, Plaintiffs’ 11 participation in this litigation have been exemplary. 12 D. Selection Of Claims Administrator 13 56. The proposed settlement administrator is RG/2 Claims Adminstration. Before 14 selecting RG/2, I solicited the bids of it and three other administrators: JNDLA Legal 15 Administration, Heffler Claims Group, and Angeion Group. I have previously worked with each of 16 the three other administrators on class settlements but have not previously worked with RG/2. All 17 four administrators proposed similar notice programs with similar reach and frequency, although 18 RG/2 had the highest reach at 80% of the class. In addition there was a variance of approximately 19 $120,000 among the four bids, with RG/2 offering the lowest bid, approximately $25,000 below the

20 next lowest bid. I interviewed the RG/2 principals who would be involved in the administration and 21 concluded that they had the requisite expertise to properly administer it. In particular, the notice 22 team has a long experience working with Dahl Administration, which was a well-known class 23 administrator. Because the costs of notice and administration are being borne by the common fund, 24 I decided that it was in the best interests of the class to retain RG/2 for this administration. Based on 25 my investigation, I believe that RG/2 will adequately and professionally discharge its duties as 26 settlement administrator. 27 57. Pursuant to N.D. Cal. Procedural Guidance for Class Action Settlements (“N.D. Cal. 28 23 GUTRIDE DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 25 of 231

1 Guide”) ¶1(g), GSLLP estimate, based on their experiences with recent settlements in other food 2 labeling cases and the input of the claims administrator, there will be approximately 75,000 to 3 100,000 claims. The information requested by N.D. Cal. Guide ¶11 regarding past comparable class 4 settlements obtained by GSLLP is provided in the chart attached hereto as Exhibit 14. 5 6 I declare under penalty of perjury under the laws of the state of California that the foregoing 7 is true of my own personal knowledge. 8 Executed at Berkeley, California, this 9th day of May, 2019.

9 /s/ Adam J. Gutride Adam J. Gutride, Esq. 10 11 12 13 14 15 16 17 18 19

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Exhibit 1 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 27 of 231

CLASS ACTION SETTLEMENT AGREEMENT

This Class Action Settlement Agreement is entered into this 9th day of May, 2019, between Plaintiffs and Defendant, as defined herein.

I. RECITALS

1.1. On December 23, 2016, Jackie Fitzhenry-Russell (“Fitzhenry-Russell”), through her counsel Gutride Safier LLP (“GSLLP”), filed a Class Action Complaint in Santa

Cruz County Superior Court alleging Defendant deceptively marketed and sold its Seagram’s®

Ginger Ale products by including the words “Made with Real Ginger” on the front label.

Fitzhenry-Russell alleged claims for violations of the California Consumer Legal Remedies Act,

Civil Code § 1780, et seq. (“CLRA”), false advertising under California Business and

Professions Code § 17500, et seq.; unfair business practices under California Business and

Professions Code § 17200 et seq.; and fraud, seeking damages, an injunction and other relief.

Fitzhenry-Russell sought to pursue these claims on behalf of herself and all purchasers of

Seagram’s Ginger Ale in the United States (other than resellers) between December 23, 2012, and the present. Defendant timely removed the action to the Northern District of California on

February 6, 2017.

1.2. On March 13, 2017, Defendant moved to dismiss. On October 18, 2017, the Court denied Defendant’s motion to dismiss in its entirety.

1.3. On November 8, 2017, Defendant answered the complaint, denying

Fitzhenry-Russell’s allegations and asserting several affirmative defenses. Fitzhenry-Russell filed an amended complaint on January 8, 2018, which Defendant answered on January 22, 2018.

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1.4. Beginning in late 2017, the Parties engaged in extensive discovery.

Defendant produced over 12,000 pages of corporate documents and deposed Fitzhenry-Russell.

Plaintiff deposed Defendant’s Rule 30(b)(6) witnesses regarding, among other topics, marketing, product formulation, and customer inquiries. In addition, Plaintiffs’ Counsel retained and worked with an expert to conduct consumer surveys. Plaintiffs’ Counsel also engaged a damages expert, who opined that Class members paid a price premium for the Seagram’s Ginger Ale purchased during the class period, in the amount of an average of approximately 6% of the purchase price.

1.5. Defendant engaged two survey experts. The first designed and conducted a nationwide consumer survey, and opined, based on that survey’s results, that the “Made With

Real Ginger” claim did not have a material impact on consumers’ interest in purchasing

Seagram’s Ginger Ale or the price they were willing to pay for it. The second expert opined that

Plaintiff’s expert’s consumer survey was designed in a biased manner and did not support the conclusion that consumers were willing to pay a premium for Seagram’s Ginger Ale as a result of the “Made With Real Ginger” claim. Defendant also retained an economist, who opined that there was in fact no price premium charged for Seagram’s Ginger Ale during the class period as a result of the “Made with Real Ginger” claim.

1.6. Defendant also produced documents and other evidence establishing that labeling and marketing materials for Seagram’s Ginger Ale that used the phrase “Made with Real

Ginger” first appeared in the marketplace on or about April 1, 2013.

1.7. In late 2018, the parties agreed to stay the case pending the trial of Jackie

Fitzhenry-Russell v. Keurig Dr. Pepper, Inc., Case No. 5:2017-cv-00564-NC (the “California

Canada Dry case”), in which Plaintiff Fitzhenry-Russell, represented by Plaintiffs’ Counsel, asserted substantially similar claims against Keurig Dr Pepper, the manufacturer of Canada Dry

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Ginger Ale, regarding the claim “Made from Real Ginger” on that product. That trial was scheduled to begin on January 7, 2019. The California Canada Dry Case was one of several putative class actions, in various states, in which consumers asserted these claims against Keurig

Dr Pepper. To settle these cases, Keurig Dr Pepper entered into two separate settlement agreements: one with a putative class of Canada Dry Ginger Ale consumers in California, and one with a putative class of Canada Dry Ginger Ale consumers in the other 49 states. Under these settlement agreements, Keurig Dr Pepper agreed to entry of a permanent injunction barring use of the unmodified phrase “Made from Real Ginger” on its Canada Dry labeling or marketing, but permitting use of certain variations on that phrase. Keurig Dr Pepper also agreed to allow consumers in both classes to submit monetary claims for purchases of Canada Dry Ginger Ale for payment of $0.40 per unit purchased, for a total of up to $5.20 per household with no proof of purchase and $40.00 per household with proof of purchase. Keurig Dr Pepper agreed to pay valid claims on these terms up to a cap of $11.2 million. The 49-state settlement (excluding California) received final approval on April 8, 2019 and the California settlement was approved on April 10,

2019.

1.8. On January 29, 2019, in this case, David Swartz, Ashley Salcedo, Scott

Miller, Isabelo Pascual, Florin Carlin and Kristina Hoffman (collectively with Jackie Fitzhenry-

Russell, “Plaintiffs”), filed a motion to intervene, and sought leave to file a complaint in intervention. Fitzhenry-Russell joined in the motion, and also sought leave to file a proposed amended complaint (identical to the complaint in intervention) seeking to expand the proposed class to a class of nationwide consumers and to assert claims under the laws of all states.

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1.9. On February 19, 2019, the Parties participated in a mediation conducted by the Honorable Wayne Andersen (retired) at JAMS in Chicago, Illinois. That mediation resulted in the settlement memorialized in this Agreement.

1.10. Defendant denies all of Plaintiffs’ allegations and charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions that were or could have been alleged in the Litigation as defined below. Defendant also denies that Plaintiffs, the Settlement Class, or any member of the Settlement Class suffered damage or harm by reason of any alleged conduct, statement, act or omission of Defendant. Defendant further denies that the evidence is sufficient to support a finding of liability on any of Plaintiffs’ claims in the

Litigation.

1.11. Plaintiffs’ Counsel has analyzed and evaluated the merits of the Parties’ contentions and this Settlement as it impacts all the Parties and the Settlement Class Members.

Among the risks of continued litigation for Plaintiffs are the risks of failing to prove liability or restitution and damages on a class-wide or individual basis. In particular, there may be difficulties establishing: (1) that Defendant’s statements on the product labels (and other advertising and marketing materials), as challenged by Plaintiffs, were likely to deceive reasonable persons; (2) that the alleged misrepresentations and omissions were material to reasonable persons; and (3) that damages or restitution should be awarded or, if so, that the amount of the award would be more than nominal. No class has been certified. Plaintiffs and

Plaintiffs’ Counsel, after taking into account the foregoing along with other risks and the costs of further litigation, are satisfied that the terms and conditions of this Agreement are fair, reasonable, adequate and equitable, and that a settlement of the Litigation and the prompt

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provision of effective relief to the Settlement Class are in the best interest of the Settlement Class

Members.

1.12. Defendant, while continuing to deny all allegations of wrongdoing and disclaiming any liability with respect to any and all claims, considers it desirable to resolve the

Litigation on the terms stated herein, in order to avoid further burden, expense, inconvenience, and interference with its ongoing business operations. Therefore, Defendant has determined that settlement of this Litigation on the terms set forth herein is in its best interests.

1.13. This Agreement reflects a compromise between the Parties, and shall in no event be construed as or be deemed an admission or concession by any Party of the truth of any allegation or the validity of any purported claim or defense asserted in any of the pleadings in the

Litigation, or of any fault on the part of Defendant, and all such allegations are expressly denied.

Nothing in this Agreement shall constitute an admission of liability or be used as evidence of liability, by or against any Party hereto.

1.14. This Agreement is contingent upon the issuance by the Court of both the

Preliminary Approval Order and the Final Approval Order. Should the Court not issue the

Preliminary Approval Order and Final Approval Order, Defendant does not waive, and expressly reserves, all rights to defend against the claims in this Litigation. Should the Court issue the

Preliminary Approval Order and Final Approval Order, the undersigned parties agree that the

Litigation between Plaintiffs, on the one hand, and Defendant, on the other hand, shall be fully and finally compromised, settled and released on the terms and conditions set forth in this

Agreement.

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NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, and of the releases and dismissals of claims described below, the Parties agree to this settlement, subject to Court approval, under the following terms and conditions:

II. DEFINITIONS

Capitalized terms in this Agreement shall be defined as follows:

2.1. “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For purposes of the definition, “control” means (a) with respect to any corporation or other entity having voting shares or the equivalent and elected directors, managers, or Persons performing similar functions: (i) the ownership or power, directly or indirectly, to vote more than fifty percent (50%) of shares or the equivalent, or (ii) the ability to exercise primary control over its business and affairs, and (b) with respect to any other

Person: the ability to exercise primary control over its business and affairs.

2.2. “Agreement” means this Class Action Settlement Agreement, including all exhibits thereto.

2.3. “Allegations” means any and all allegations asserted by any Plaintiff in this litigation, including those in the proposed Second Amended Complaint; and claims that could be pursued under the laws of the United States or any state, subidivision or territory, on the basis of one or more of those allegations.

2.4. “Claim Administrator” means, subject to Court approval, RG2.

2.5. “Claim Filing Deadline” means 28 days prior to Final Approval.

2.6. “Claim Period” means the period beginning on the Notice Date and continuing until the Claim Filing Deadline.

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2.7. “Claim Form” means a claim form in substantially the same form as

Exhibit A.

2.8. “Class Period” means the period of April 1, 2013, through the date of

Preliminary Approval.

2.9. “Class Representatives” means Plaintiffs.

2.10. “Common Fund” or “Settlement Fund” means the Two-Million-Four-

Hundred-Fifty-Thousand Dollars ($2,450,000.00) that is discussed further in Sections 3.1 and 3.2 below.

2.11. “Defendant” means The Coca-Cola Company.

2.12. “Defendant’s Counsel” means the law firm of Patterson Belknap Webb &

Tyler LLP.

2.13. “Effective Date” means the date on which the last of the following events occurs: (a) all Parties and their counsel have executed this Settlement; (b) the Court has entered the Final Approval Order approving the Agreement and entering judgment thereon; (c) the date on which the time to appeal or to seek permission to appeal from the Court’s approval of the

Settlement Agreement has expired; (d) if timely appealed, the date on which approval of the

Settlement Agreement has been affirmed in its entirety by the Court of last resort to which such appeal has been taken and the mandate has issued, such that the affirmance is no longer subject to further appeal or review; and (e) if writ of certiorari is timely sought, the date upon which the writ is denied or dismissed or the order of the appellate court is affirmed and the mandate has issued, thus making the Final Approval Order a final, non-appealable judgment. However, with respect to clauses (d) and (e) above, an appeal or petition for certiorari directed only at the Fee

Award shall not prevent this Settlement from becoming final and effective, and a modification or

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reversal on appeal of any Fee Award shall not prevent this Settlement from becoming final and effective if all other aspects of the Final Approval Order have been affirmed.

2.14. “Excluded Persons” means (1) the Honorable Edward J. Davila, the

Honorable Virginia K. DeMarchi, the Honorable Howard R. Lloyd, the Honorable Wayne

Andersen (Ret.), and any member of their immediate families; (2) any government entity; (3)

Defendant; (4) any entity in which Defendant has a controlling interest; (5) any of Defendant’s subsidiaries, parents, affiliates, and officers, directors, employees, legal representatives, heirs, successors, or assigns; and (6) any persons who timely opt-out of the Settlement Class.

2.15. “Exclusion Deadline” means twenty-eight (28) days prior to the initially scheduled hearing date on Final Approval.

2.16. “Fee Award” means the attorneys’ fees and expenses awarded by the

Court to Plaintiffs’ Counsel for all the past, present, and future attorneys’ fees, costs (including court costs), expenses, and disbursements incurred by them and their experts, staff, and consultants in connection with the Litigation.

2.17. “Final Approval” means entry of a judgment, substantially in the form of

Exhibit D, granting final approval of this Agreement as binding upon the Parties, which shall constitute a judgment respecting the Litigation.

2.18. “Household” means any number of persons occupying the same dwelling unit.

2.19. “Incentive Award” means any award sought by application to and approval by the Court that is payable to any Plaintiff to compensate him or her for efforts in bringing this Litigation and/or achieving the benefits of this Settlement on behalf of the

Settlement Class, as further discussed in section 6.2.

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2.20. “Labeling” means the display of written, printed, or graphic matter upon the packaging of the Products (as defined in Paragraph 2.35), as well as written, printed, or graphic matter or audio designed or disseminated by Defendant or its agents for use in the marketing, advertising, distribution or sale of the Products.

2.21. “Litigation” means Fitzhenry-Russell, et al. v. The Coca-Cola Company,

United States District Court for the Northern District of California, Case No. 5:17-CV-00603-

EJD.

2.22. “Long Form Notice” means a notice in substantially the same form as

Exhibit B1.

2.23. “Notice Date” means the day on which the Claim Administrator initiates the Online Notice, the Summary Published Notice, or the Press Release, whichever comes first.

2.24. “Notice Plan” means the procedure for providing notice to the Settlement

Class, as set forth in Exhibit B.

2.25. “Objection Deadline” means twenty-eight (28) days prior to the initially scheduled hearing date on Final Approval.

2.26. “Online Notice” means notice to Settlement Class Members in substantially the same form as Exhibit B3.

2.27. “Parties” means Plaintiffs and Defendant, collectively.

2.28. “Party” means either Defendant or any Plaintiff.

2.29. “Permanent Injunction” means an order of the Court requiring Defendant to undertake the actions set forth in sections 3.11 through 3.15.

2.30. “Person” means any natural person, corporation, partnership, business organization or association, or other type of legal entity.

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2.31. “Plaintiffs” means Jackie Fitzhenry-Russell, David Swartz, Ashley

Salcedo, Scott Miller, Isabelo Pascual, Florin Carlin, and Kristina Hoffman, collectively.

2.32. “Plaintiffs’ Counsel,” “Class Counsel” or “Settlement Class Counsel” means the law firm of Gutride Safier LLP.

2.33. “Preliminary Approval” means issuance of an order, substantially in the form of Exhibit C, granting preliminary approval of the settlement described in this Agreement.

2.34. “Products” means any Seagram’s brand ginger ale beverage, including but not limited to Seagram’s Ginger Ale, Seagram’s Diet Ginger Ale, Seagram’s Raspberry Ginger

Ale, and Seagram’s Diet Raspberry Ginger Ale.

2.35. “Proof of Purchase” means a receipt or other documentation from a third- party commercial source that reasonably establishes the fact and date of purchase of any Product during the Class Period in the United States.

2.36. “Published Notice” means a notice substantially in the form of Exhibit B2.

2.37. “Released Claims” means the claims released as set forth in Part VIII of this Agreement.

2.38. “Released Parties” means Defendant and its present and former subsidiaries, parents, affiliates, divisions, officers, directors, members, managers, shareholders, insurers, suppliers, manufacturers, re-sellers, distributors, brokers, service providers, employees, agents, legal representatives, heirs, predecessors, successors, or assigns.

2.39. “Settlement” means the terms of this Agreement.

2.40. “Settlement Class” or “Settlement Class Members” means all Persons, other than Excluded Persons, who purchased, in the United States and during the Class Period, any of the Products, except for purpose of resale.

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2.41. “Settlement Website” means an internet website created and maintained by the Claim Administrator for the purpose of disseminating notice and administering Claims.

The URL of the Settlement Website shall be provided in the Notice Plan.

2.42. “Undertaking” means an undertaking, substantially in the form of Exhibit

E.

2.43. “Unit” means any Product unit sold individually at retail (e.g., one 12- pack of 12-ounce cans, one 24-pack of 12-ounce cans, one 2-liter bottle, etc.).

2.44. “Valid Claim” means a claim submitted in compliance with Part III of this

Agreement, and as further described in that Part.

III. SETTLEMENT BENEFITS, CLAIMS ADMINISTRATION AND CHANGED PRACTICES

3.1. The Settlement Fund shall be maintained as a qualified settlement fund pursuant to 26 CFR 1.468B-1 et seq., in an interest-bearing account at a financial institution approved by Plaintiffs’ Counsel and subject to the oversight of the Claim Administrator (the

“Settlement Fund Account”).

3.2. Defendant shall pay the amount of the Settlement Fund ($2,450,000.00) into the Settlement Fund Account, by wire transfer, according to the following schedule: (a) the costs of notice and administration through the date of Final Approval, as estimated by the Claim

Administrator, within seven (7) days of an Order granting Preliminary Approval; (b) the balance of the Settlement Fund within seven (7) days of an Order granting Final Approval. The payment of the Settlement Fund is the Defendant’s only monetary obligation under the Settlement.

3.3. The Settlement Fund shall be applied to pay, in the following order: (i) all costs and payments associated with the Notice Plan and administration of the Settlement,

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including all payments to the Claim Administrator; (ii) any necessary taxes and tax expenses on the Settlement Fund; (iii) any award of attorneys’ fees and costs made by the Court to Plaintiffs’

Counsel under this Agreement; (iv) any Incentive Awards made by the Court; and (v) Valid

Claims.

3.4. The per-Unit payment amount for each Valid Claim shall be $0.80, except that such amount shall be reduced pro-rata if the total value of Valid Claims exceeds the amount of the Settlement Fund less items (i) through (iv) in Section 3.3.

3.5. Based on estimations provided by the Claim Administrator, the Parties anticipate that the amount paid for each Valid Claim described in Section 3.4, combined with items (i) through (iv) in Section 3.3, will exhaust the monies in the Settlement Fund. If, however, after the payment of Valid Claims, there still remains money in the Settlement Fund, then upon approval by the Court, pursuant to the cy pres doctrine, the remaining amount shall be paid in equal shares to:

(a) National Consumers’ League, Washington, DC; and

(b) Better Business Bureaus Institute for Marketplace Trust.

Cy pres payments shall be used for purposes consistent with the aims of the Litigation, and shall not be used by the recipients to fund any litigation activities against Defendant or Plaintiffs.

3.6. Every Settlement Class Member shall have the right to submit a claim for a cash payment as set forth below. A claim shall be a Valid Claim only if submitted on the Claim

Form pursuant to, and in compliance with, the procedures set forth herein.

3.7. Claim Forms may be submitted in paper via first class mail or online at the

Settlement Website. Claim Forms must be received by the Claim Administrator (not just postmarked) or submitted online no later than the Claim Filing Deadline, and Claim Forms

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submitted after that date will not be Valid Claims. For Claim Forms that are submitted online, the Settlement Class Member shall have the opportunity to upload Proof of Purchase image files

(e.g. jpg, tif, pdf); to review, prior to submitting the claim, a page that redisplays all information entered in the Claim Form and the names of image files uploaded; and to print, immediately after the Claim Form has been submitted, a page showing the information entered, the names of image files uploaded, and the date and time the Claim Form was received. If the Settlement Class

Member attempts to submit an online claim for more than 13 Product units, the Settlement Class

Member shall be required to upload an image file in order to complete the Claim Form submission. In addition, for Claim Forms that are submitted online, the Settlement Class Member shall be sent an email confirmation of the submitted claim that shows the information entered, the names of image files uploaded, and the date and time the Claim Form was submitted.

3.8. On the Claim Form and Settlement Website, the Settlement Class Member must certify the truth and accuracy of the following under the penalty of perjury:

(a) The Settlement Class Member’s name and mailing address;

(b) The Settlement Class Member’s email address, if the Settlement

Class Member elects to provide the information;

(c) The number of Products purchased during the Class Period, the

approximate dates of purchase, and (if the Settlement Class

Member elects to provide the information) the store where

purchased; and

(d) That the claimed purchases were not made for the purpose of

resale.

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A Claim not complying with all of the elements listed in this Section 3.8 is not a Valid Claim.

Only Valid Claims will be paid.

3.9. Each Settlement Class Member who provides a Valid Claim Form, as determined by the Settlement Administrator, shall recover the per-Unit payment amount for each

Unit purchased in the United States during the Class Period, to be determined as set forth in

Paragraph 3.4, and subject to the following provisos and limitations:

(a) A Settlement Class Member who submits a Valid Claim for

purchases of one (1) to five (5) Product Units shall recover the per-

Unit payment for five Product Units.

(b) A Settlement Class Member who does not provide valid Proof of

Purchase may recover the per-Unit payment for a maximum of

thirteen (13) Product Units per Household.

(c) A Settlement Class Member who provides valid Proof of Purchase

may recover the per-Unit payment for a maximum of one hundred

(100) Product Units per Household. Thus, each Household may

recover the per-Unit payment for a maximum of thirteen (13)

Product Units without valid Proof of Purchase and a maximum of

eighty-seven (87) additional Product Units with valid Proof of

Purchase.

3.10. The Claim Administrator shall be responsible for processing Claim Forms and administering the Settlement Website, opt-out process, and Settlement Benefit claims process described herein. The Claim Administrator will follow its ordinary course of practice regarding approval of claims, subject to all Parties’ right to audit claims and challenge the Claim

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Administrator’s decision. If the Parties and the Claim Administrator cannot collectively agree how to resolve disputed claims, then such disputes shall be resolved by the Court. Within thirty

(30) days after the Effective Date, the Claim Administrator shall email all Settlement Class

Members whose claims are denied to state the reasons for denial, at the email address (if any) provided by the Settlement Class Member on the Claim Form. If no email address is provided by the Settlement Class Member on the Claim Form, the Administrator shall not have an obligation to provide the class member any notification of the reasons for denial of the claim. The Claim

Administrator’s determination of whether a claim is a Valid Claim, if not disputed by the Parties, shall be final and not subject to further review. No person shall have any claim against Plaintiffs,

Defendant, Plaintiffs’ Counsel, Defendant’s Counsel, or the Claim Administrator based on any determination of a Valid Claim, distributions, or awards made in accordance with this

Agreement and the Exhibits hereto.

3.11. Claims shall be paid by check mailed to the Settlement Class Member, or at the election of the Settlement Class Member on the Claim Form, by direct deposit into the

Class Member’s bank account, or another form of electronic transfer (such as Paypal, Venmo,

Google Wallet, or Square Cash) to be chosen at the discretion of the Claim Administrator. All

Valid Claims shall be paid by the Claim Administrator within sixty (60) days after the Effective

Date.

3.12. Subject to the rights and limitations set forth in Paragraph 3.15 and 3.16,

Defendant agrees that, upon Final Approval, the Court shall enter a Permanent Injunction, which shall become effective on the Effective Date, requiring Defendant to permanently remove the phrase “Made with Real Ginger” from all Labeling of the Products as described in Paragraph

3.15.

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3.13. Notwithstanding the provisions of section 3.12, Defendant shall be permitted, at its option, to use any of the following words and phrases: “ginger,” “real ginger,” or

“natural ginger,” in combination with one of the following three words: “taste,” “extract,” or

“flavor.” For example, the words “taste,” “extract,” or “flavor” may be used, preceding, or following, the words “ginger,” “real ginger,” or “natural ginger” (the “Approved Permitted Label

Claim”).

3.14. By way of example, Approved Permitted Label Claims include, but are not limited to, the following: “real ginger taste,” “made with real ginger extract,” “real ginger flavor,” “flavor from real ginger extract,” and “natural ginger flavor.” The Permanent Injunction shall not preclude the use of the phrases “ginger extract,” “natural ginger flavor extract,” “natural ginger extract,” “natural ginger flavor,” or “ginger flavor” in the ingredient statement on the

Labeling of the Products. These are offered by way of example and do not set forth an exhaustive list of the phrases that shall be permissible on Product Labeling after entry of the Permanent

Injunction.

3.15. Nothing herein shall limit the ability of the U.S. Food and Drug

Administration (“FDA”) to enforce FDA regulations. Further, it shall not be a breach of this

Agreement for Defendant to make any statement or representation on its Product Label that is mandated or expressly approved by FDA regulations or by any other applicable federal, state, or local law. The Permanent Injunction shall not be construed to prohibit any such statement or representation.

3.16. It shall not be a violation of the Permanent Injunction for Defendant and its packaging suppliers, bottlers, distributors, wholesalers and retailers of the Products to sell-

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through all remaining stock using the pre-existing Product Labeling and introduce the new

Labeling as they sell through existing stock. The sell-through shall not require the withdrawal or destruction of any existing labels or recall of Product. Defendant shall begin production of the new Labeling on or about 120 days after the Effective Date (the “Initiation Date”). Defendant shall complete the transition to new Labeling, such that all Product Labeling designs or templates

Defendant transmits to its Product packaging vendors reflect the Labeling change, no later than

365 days after the Effective Date; provided, however, that because Defendant cannot control all sources of old stock in the market, neither Defendant nor any bottler, distributor, wholesaler or retailer shall be penalized or be liable for sales of old stock after that date. Defendant shall not create other marketing collateral (e.g. advertisements, websites) containing the phrase “Made with Real Ginger” on the Products after the Initiation Date.

IV. NOTICE

4.1. Prior to the Notice Date, the Claim Administrator shall establish a toll-free number to call to obtain additional information and to request a mailed version of the Long Form

Notice Claim Form. Prior to the Notice Date, the Claim Administrator also shall establish the

Settlement Website, which shall contain the Long Form Notice in both downloadable PDF format and HTML format with a clickable table of contents; answers to frequently asked questions; a Contact Information page that includes the address for the Claim Administrator and addresses and telephone numbers for Plaintiffs’ Counsel and Defendant’s Counsel; the

Agreement; the signed order of Preliminary Approval and the publicly filed motion papers and declarations in support thereof; a downloadable and online version of the Claim Form; a downloadable and online version of the form by which Settlement Class Members may exclude themselves from the Settlement Class; and (when they become available) the publicly filed

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motion for final approval and Plaintiffs’ application(s) for a Fee Award and an Incentive Award, with supporting declarations.

4.2. The Settlement Website shall remain accessible until one hundred eighty

(180) days after all settlement benefits are distributed.

4.3. Notice shall be provided as described in the Notice Plan.

4.4. The Parties shall supervise the Claim Administrator in the performance of the notice functions set forth in this Section IV.

4.5. CAFA Notice. The Claim Administrator shall provide notice in compliance with 28 U.S.C. § 1715.

4.6. At least fourteen (14) days prior to the Final Approval hearing referenced in Section VII of this Agreement, the Claim Administrator shall certify to the Court that it has complied with the notice requirements set forth herein.

4.7. All costs of notice as set forth in this Section IV and all costs of the Claim

Administrator in processing objections and exclusion requests as set forth in Sections 7.4 through

7.10 shall be paid from the Settlement Fund and Defendant shall have no responsibility for paying such costs.

V. CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS AND FILING OF

SECOND AMENDED COMPLAINT

5.1. Solely for the purpose of effectuating the Settlement set forth in this

Agreement and subject to Court approval, the Parties stipulate that a Settlement Class shall be certified in accordance with the definition set forth in this Agreement, that the Class

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Representatives shall represent the Settlement Class for settlement purposes, and that Plaintiffs’

Counsel shall be appointed as counsel for the Settlement Class. The Parties also stipulate that the

Second Amended Complaint, previously submitted as Dkt. No. 75-1, shall be filed on consent of the Parties and treated as the operative complaint.

5.2. In the event that the Court declines to enter the Preliminary Approval order or to grant Final Approval of this Agreement in its entirety (or enters any order that increases the cost or burden of the settlement to Defendant beyond what is set forth in this

Agreement), the Parties may, but are not required to, modify this Agreement. Such a modification shall be binding only if it is in writing and executed by the Parties, Plaintiffs’

Counsel, and Defendant’s Counsel.

5.3. In the event that this Agreement (including the Settlement provided for herein) is not finally approved, is terminated, cancelled, or fails to become effective for any reason whatsoever, the conditional class certification and leave to file the Second Amended

Complaint, to which the Parties have stipulated solely for the purpose of the settlement of the

Litigation, shall be null and void, Defendant will not be deemed to have either consented to the filing of the Second Amended Complaint or missed a deadline to respond to the same, and the

Litigation shall revert to its status as it existed prior to the date of this Agreement. In that event, the Parties shall confer on a case schedule and endeavor to submit a joint proposal to the Court setting a schedule for outstanding case deadlines. Also, in that event, the Claim Administrator shall return to Defendant such portion of the amounts deposited pursuant to Section 3.2 that are not required to pay for notice and administration then-completed. In such event, neither this

Agreement nor any document filed or created in connection with this Settlement may be used as an admission or as evidence for any purpose.

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VI. ATTORNEYS’ FEES, COSTS, AND EXPENSES, AND INCENTIVE AWARDS

6.1. Plaintiffs’ Counsel may apply to the Court for payment from the

Settlement Fund of their out-of-pocket expenses. Plaintiffs’ Counsel may additionally apply to the Court for payment from the Settlement Fund of an amount equal to up to 30% of the

Settlement Fund, as their attorneys’ fees. Any motion for attorneys’ fees and costs and expenses must be filed at least twenty-one (21) days before the deadline for objecting to the Settlement.

Any award of attorneys’ fees, costs, or expenses, shall come solely from the Settlement Fund, and Defendant shall have no obligation to pay any portion of Plaintiffs’ or Plaintiffs’ Counsel’s fees, costs, or expenses.

6.2. Each Plaintiff may additionally apply to the Court for an Incentive Award as compensation for the time and effort undertaken in and risks of pursuing this Litigation, including the risk of liability for the Parties’ costs of suit, and for agreeing to the general release set forth in Section 8.1. The Incentive Award to Fitzhenry-Russell shall not exceed $5,000, and the Incentive Award to each of the other Plaintiffs shall not exceed $1,000. Such Incentive

Awards shall come solely from the Settlement Fund.

6.3. Defendant covenants and agrees on behalf of itself and Released Parties that, provided Plaintiffs’ application for attorneys’ fees is consistent with Section 6.1, Defendant and Released Parties shall not (a) oppose or submit any evidence or argument challenging or undermining Plaintiffs’ application for attorneys’ fees and costs, except to respond to any argument raised in Plaintiffs’ application for attorneys’ fees and costs that disparages

Defendant’s honesty or integrity; (b) encourage or assist any person to oppose or submit any evidence or argument challenging or undermining Plaintiffs’ application for attorneys’ fees and costs; or (c) encourage or assist any person to appeal from an order awarding attorneys’ fees and

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costs. Defendant also covenants and agrees on behalf of itself and Released Parties that, provided

Plaintiffs’ application for Incentive Awards is consistent with Section 6.2, it and Released Parties shall not (a) oppose or submit any evidence or argument challenging or undermining Plaintiffs’ application for Incentive Awards; (b) encourage or assist any person to oppose or submit any evidence or argument challenging or undermining Plaintiffs’ application for Incentive Awards or

(c) encourage or assist any person to appeal from an order making an Incentive Award.

6.4. Plaintiffs’ Counsel and Plaintiffs agree that the denial of, reduction or downward modification of, or failure to grant any application for attorneys’ fees, costs, and expenses or incentive awards, shall not constitute grounds for modification or termination of this

Agreement, including the Settlement and releases provided for herein.

6.5. Upon Final Approval of the Settlement and Fee Award, the Claim

Administrator shall pay from the Settlement Fund the Fee Award, or such portion thereof as

Plaintiffs’ Counsel may request, to Gutride Safier LLP within fourteen (14) days of the request, subject to the provision of security at least equal in value to the payment, and Plaintiffs’ Counsel providing all payment routing information and the tax I.D. numbers for Class Counsel. Any disputes regarding the distribution of fees or the reasonableness or adequacy of the security to be provided by counsel shall be mediated and, if necessary, finally decided by the Hon. Wayne R.

Andersen, and payment to Plaintiffs’ Counsel pursuant to this paragraph shall be postponed pending resolution. If Final Approval or the award of attorneys’ fees, costs or expenses is later reversed on appeal then, within seven (7) days of such order, all such distributions shall be repaid to the Claim Administrator, along with interest as stated in the Undertaking. If Gutride Safier fails to make such repayment in full, the Claim Administrator may recover the amount owed plus interest.

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6.6. Within seven (7) days after the Effective Date, the Claim Administrator shall pay the Court-approved Incentive Awards from the Settlement Fund to the respective

Plaintiffs.

6.7. Except as set forth in this Agreement, each Party shall bear his, her or its own fees, costs and expenses.

VII. CLASS SETTLEMENT PROCEDURES

7.1. Stipulation of Class Representation. Within fourteen (14) days of the execution of this Agreement, the Parties shall sign, and Plaintiffs shall file in the Court, a stipulation that, for settlement purposes only, a Settlement Class shall be certified in accordance with the definition set forth in this Agreement, that the Class Representatives shall represent the

Settlement Class for settlement purposes, and that Plaintiffs’ Counsel shall be appointed as counsel for the Settlement Class.

7.2. Leave to File Second Amended Complaint. The Parties shall also file with the Court a stipulation providing for the filing of the Second Amended Complaint. The stipulation shall further provide that Defendant’s deadlines and any other obligations to respond to Plaintiffs’ outstanding motions shall be held in abeyance and, if Preliminary Approval is denied, Final Approval is denied, or a mandate is issued reversing an award of Final Approval, the stipulation to file the Second Amended Complaint shall be immediately and automatically deemed withdrawn, and the Litigation shall continue in the same position as if the stipulation were never filed and the Settlement Class never certified, with Plaintiffs’ motion for leave to file the Second Amended Complaint still pending.

7.3. Any certification of a conditional, preliminary, or final Settlement Class pursuant to the terms of this Settlement shall not constitute, and shall not be construed as, an

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admission on the part of Defendant that this Litigation, or any other proposed or certified class action, is appropriate for class treatment pursuant to the Federal Rules of Civil Procedure or any analogous state or federal class action statute or rule. This Settlement Agreement shall be without prejudice to the rights of Defendant to: (1) move to dismiss or stay this Litigation on any applicable basis; (2) oppose certification in this Litigation should Final Approval not be granted for any reason; or (3) oppose certification in any other proposed or certified class action. Neither the fact of this Settlement nor this Settlement Agreement shall be used in connection with efforts in any proceeding to seek certification of any claims asserted against Defendant.

7.4. Settlement Approval. As soon as practicable after the signing of this

Agreement, Plaintiffs shall move, with the support of Defendant, for a Preliminary Approval order, substantially in the form of Exhibit C, conditionally certifying the Settlement Class; preliminarily approving this Agreement and this Settlement as fair, just, reasonable and adequate; approving Class Notice to the Settlement Class Members as described in Part IV above; and setting a hearing to consider Final Approval of the Settlement and any objections thereto. In that same motion, Plaintiffs shall further move, with the support of Defendant, that the Court enter an order of Final Approval, substantially in the form of Exhibit D, after expiration of the Obejction Deadline, which order shall grant final approval of this Settlement and adjudge this Agreement to be final, fair, reasonable, adequate, and binding on all Settlement

Class Members who have not excluded themselves from the Settlement Class as provided below; ordering that the settlement relief be provided as set forth in this Agreement and giving effect to the releases as set forth in Part VIII, below; and entering judgment in the Litigation. The parties shall request a hearing on final approval to occur in the fall of 2019.

23 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 50 of 231

7.5. Exclusions and Objections. The Long Form Notice and the Print

Publication Notice shall advise prospective Settlement Class Members of their rights to forgo the benefits of this Settlement and pursue individual claims; to object to this settlement individually or through counsel; and/or to appear at the Final Approval hearing.

7.6. If any Settlement Class Member wishes to object to the Settlement and/or to be heard at the Final Approval hearing, the Settlement Class Member may submit a written objection, in compliance with the requirements set forth in the Long Form Notice and the

Preliminary Approval Order.

7.7. If any Settlement Class Member wishes to be excluded from this

Settlement and the Settlement Class, the Settlement Class Member may do so by completing and submitting the online form at the Settlement Website or by mailing a valid request to opt out, as described in the Long Form Notice, to the Claim Administrator. Requests to opt out must be submitted online by the Exclusion Deadline, or if mailed must be received by the Claim

Administrator (not just postmarked) by the Exclusion Deadline, or they shall not be valid. For exclusion requests that are submitted online, the Settlement Class Member shall have the opportunity to print a page immediately after submission showing the information entered and the date and time the request for exclusion was received. A Settlement Class Member who elects to opt out of this Settlement and the Settlement Class shall not be permitted to object to this

Settlement or receive any of the benefits of the Settlement. Settlement Class Members shall be encouraged, but not required, to provide their email addresses in their requests for exclusion.

7.8. At least fourteen (14) days prior to the hearing on Final Approval, the

Claim Administrator shall prepare a list of the names of the persons who have excluded

24 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 51 of 231

themselves from the Settlement Class in a valid and timely manner, and Plaintiffs’ Counsel shall file that list with the Court, with service on Defendant’s Counsel.

7.9. Right To Terminate Settlement Agreement. If more than 5000 persons submit a timely and valid request to opt out of the Settlement Class, Defendant shall have the unilateral right to terminate this Agreement (and any obligations thereunder) within three (3) business days of the filing with the Court of the opt-out list described in Section 7.7 of this

Agreement. Furthermore, except for changes to the time periods set forth in Parts IV and VII, and except as set forth in Section 6.3 of this Agreement, all other terms and limitations set forth in this Agreement and in the documents referred to or incorporated herein (including but not limited to the Long Form Notice, the Print Publication Notice, the Online Notice and the Claim

Form) shall be deemed material to the Parties’ agreement, and in the event any such other term is altered or amended by the Court (including if the Court refuses to certify the Settlement Class and/or modifies the definition of the class), or any other court, or if any federal or state authority objects to or requires modifications to the Agreement, any Party whose rights or obligations are affected by the alteration or amendment may terminate this Agreement upon written notice to the other Parties.

7.10. Stay of the Litigation. The Parties shall request that the Court, in connection with Preliminary Approval, issue an immediate stay of all proceedings in this

Litigation other than those necessary for obtaining Final Approval.

7.11. Effect if Settlement Not Approved or Agreement is Terminated. This

Agreement was entered into only for purposes of settlement. In the event that Preliminary or

Final Approval of this Agreement does not occur for any reason, including without limitation termination of this Agreement pursuant to Section 7.7, or if Final Approval is reversed on appeal,

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then no term or condition of this Agreement, or any draft thereof, or discussion, negotiation, documentation, or other part or aspect of the Parties’ settlement discussions shall have any effect.

All drafts, discussions, negotiations, documentation or other information prepared in relation to this Agreement, and the Parties’ settlement discussions, shall be treated as strictly confidential and may not, absent a court order, be disclosed to any person other than the Parties’ counsel, and only for purposes of the Litigation; provided, however, that they shall not be admissible as evidence in the Litigation. In such event, the Claim Administrator shall return to Defendant such portion of the amounts deposited pursuant to Section 3.2 that are not required to pay for notice and administration then-completed, plus accrued interest.

7.12. The proposed Preliminary Approval order and Long Form Notice will provide that any Settlement Class Members wishing to object or exclude themselves who fail to properly or timely file or serve any of the requested information and/or documents will be precluded from doing so.

7.13. If any objection is received by the Claim Administrator, the Claim

Administrator shall forward the objection and all supporting documentation to counsel for the

Parties. At least fourteen (14) days prior to the hearing on Final Approval, Plaintiffs’ Counsel shall file all such objections and supporting documentation with the Court. The failure of the

Settlement Class Member to comply with the filing requirements of Section 7.4 shall be grounds for striking and/or overruling the objection, even if the objection is submitted to the Claim

Administrator.

7.14. If a Settlement Class Member submits both a Claim Form and an exclusion request, the Claim Form shall take precedence and be considered valid and binding, and the exclusion request shall be deemed to have been sent by mistake and rejected.

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7.15. A Settlement Class Member who objects to the settlement may also submit a Claim Form on or before the Claim Filing Deadline, which shall be processed in the same way as all other Claim Forms. A Settlement Class Member shall not be entitled to an extension to the Claim Filing Deadline merely because the Settlement Class Member has also submitted an objection.

VIII. RELEASES

8.1. Releases Regarding Plaintiffs and Released Parties. Upon Final Approval,

Plaintiffs on the one hand, and Defendant on the other hand, shall have unconditionally, completely, and irrevocably released and forever discharged each other from and shall be forever barred from instituting, maintaining, or prosecuting (1) any and all claims, liens, demands, actions, causes of action, rights, duties, obligations, damages or liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or unknown, that actually were, or could have been, asserted in the Litigation, whether based upon any violation of any state or federal statute or common law or regulation or otherwise, or arise directly or indirectly out of, or in any way relate to, the allegations, claims, or contentions that Plaintiffs, on the one hand, and

Defendant, on the other hand, have had in the past, or now have, related in any manner to the

Defendant’s products, services or business affairs; and (2) any and all other claims, liens, demands, actions, causes of action, rights, duties, obligations, damages or liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or unknown, that Plaintiffs, on the one hand, and Defendant, on the other hand, have had in the past or now have, related in any manner to any and all Released Parties’ products, services or business affairs, or otherwise.

8.2. Releases Regarding Settlement Class Members and Released Parties.

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Upon Final Approval, Settlement Class Members shall have unconditionally, completely, and irrevocably released and discharged the Released Parties from any and all claims, liens, demands, actions, causes of action, rights, duties, obligations, damages or liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or unknown, whether arising under any international, federal, state or local statute, ordinance, common law, regulation, principle of equity or otherwise, that were, or could have been, asserted in the Litigation and that arise out of or relate to the Allegations; or that could have been asserted in the Litigation regarding the

Labeling, advertising, or formulation of the Products (the “Released Claims”), except that there shall be no release of claims for personal injury allegedly arising out of use of the Products.

Upon Final Approval, Settlement Class Members shall be forever barred from initiating, maintaining, or prosecuting any Released Claims against Released Parties.

8.3. Waiver of Provisions of California Civil Code § 1542. Plaintiffs and

Defendant shall, by operation of Final Approval, be deemed to have waived the provisions, rights and benefits of California Civil Code § 1542, and any similar law of any state or territory of the United States or principle of common law. In addition, Settlement Class Members shall, by operation of Final Approval, be deemed to have waived the provisions, rights and benefits of

California Civil Code § 1542, and any similar law of any state or territory of the United States or principle of common law, but only with respect to the matters released as set forth section 8.2.

Section 1542 provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

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8.4. Effectuation of Settlement. None of the above releases includes releases of claims to enforce the terms of the Settlement provided for in this Agreement.

8.5. Protective Order. The Parties and their Counsel remain bound by, and do not release in this Agreement, their respective rights and obligations under the September 6,

2017 Stipulated Protective Order (Dkt. No.44) in the Litigation.

8.6. No Admission of Liability. This Agreement reflects, among other things, the compromise and settlement of disputed claims among the Parties hereto, and neither this

Agreement nor the releases given herein, nor any consideration therefor, nor any actions taken to carry out this Agreement are intended to be, nor may they be deemed or construed to be, an admission or concession of liability, or the validity of any claim, or defense, or of any point of fact or law (including but not limited to matters respecting class certification) on the part of any

Party. Defendant expressly denies the allegations of the complaints in the Litigation. Neither this

Agreement, nor the fact of settlement, nor the settlement proceedings, nor settlement negotiations, nor any related document, shall be used as an admission of any fault or omission by the Released Parties, or be offered or received in evidence as an admission, concession, presumption, or inference of any wrongdoing by the Released Parties in any proceeding, except that this Agreement may be offered or received in evidence in such proceedings as may be necessary to consummate, interpret, or enforce this Agreement.

IX. ADDITIONAL PROVISIONS

9.1. Best Efforts. The Parties’ counsel shall use their best efforts to cause the

Court to approve of this Agreement and Settlement as promptly as practicable, and shall take all steps contemplated by this Agreement to effectuate the Settlement on the stated terms and conditions.

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9.2. Change of Time Periods. The time periods and/or dates described in this

Agreement with respect to the giving of notices and hearings are subject to approval and change by the Court or by the written agreement of Plaintiffs’ Counsel and Defendant’s Counsel, without notice to Settlement Class Members.

9.3. Time for Compliance. If the date for performance of any act required by or under this Agreement falls on a Saturday, Sunday or court holiday, that act may be performed on the next business day with the same effect as if it had been performed on the day or within the period of time specified by or under this Agreement.

9.4. Governing Law. This Agreement is intended to and shall be governed by the laws of the State of California, without regard to conflicts of law principles.

9.5. Representations Regarding Changed Practices. Plaintiffs and Plaintiffs’

Counsel represent that the Labeling changes required in sections 3.11 through 3.13 satisfy their concerns regarding the misrepresentations as alleged in the complaints.

9.6. Entire Agreement. The terms and conditions set forth in this Agreement constitute the complete and exclusive statement of the agreement between the Parties hereto relating to the subject matter of this Agreement, superseding all previous negotiations and understandings, and may not be contradicted by evidence of any prior or contemporaneous agreement. The Parties further intend that this Agreement constitute the complete and exclusive statement of its terms as between the Parties, and that no extrinsic evidence whatsoever may be introduced in any agency or judicial proceeding, if any, involving the interpretation of this

Agreement. Any amendment or modification of the Agreement must be in writing signed by

Plaintiffs’ Counsel and Defendant’s Counsel.

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9.7. Advice of Counsel. The determination of the terms of, and the drafting of, this Agreement have been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. The presumption found in California Civil Code section 1654 that uncertainties in a contract are interpreted against the party causing an uncertainty to exist is hereby waived by all Parties.

9.8. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the Parties.

9.9. No Waiver. The waiver by any Party of any provision or breach of this

Agreement shall not be deemed a waiver of any other provision or breach of this Agreement.

9.10. Requirement of Execution. This Agreement shall be valid and binding as to Plaintiffs, Plaintiffs’ Counsel, the Settlement Class and Defendant upon (1) signature by

Plaintiffs, (2) signature by an authorized representative of Defendant, and (3) signature as to form by an authorized representative of each of the law firms defined as Plaintiffs’ Counsel and

Defendant’s Counsel.

9.11. Execution in Counterparts. This Agreement shall become effective upon its execution by all of the undersigned. The Parties may execute this Agreement in counterparts and/or by fax or electronic mail, and execution of counterparts shall have the same force and effect as if all Parties had signed the same instrument.

9.12. Extensions of Time. The Parties reserve the right, by agreement and subject to the Court’s approval, to grant any reasonable extension of time that might be needed to carry out any of the provisions of this Agreement.

9.13. Enforcement of this Agreement. The Court shall retain jurisdiction to enforce, interpret, and implement this Agreement.

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9.14. Notices. All notices to the Parties or counsel required by this Agreement, shall be made in writing and communicated by mail and fax or email to the following addresses:

If to Plaintiffs or Plaintiffs’ Counsel:

Seth Safier, Esq. Gutride Safier LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 639-9090 Fax: (415) 449-6469 Email: [email protected]

If to Defendant or Defendant’s Counsel:

Steven A. Zalesin Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036 Telephone : 212-336-2110 Fax: 212-336-2111 Email: [email protected]

9.15. Confidentiality. The Parties, Plaintiffs’ Counsel, and Defendant’s Counsel agree to keep this Agreement confidential until the filing of the motion for Preliminary

Approval.

9.16. Exhibits. The Exhibits to the Agreement are an integral part of the

Settlement and are hereby incorporated and made part of the Agreement.

9.17. Complete Resolution. The Parties intend for this Agreement to be a complete and final resolution of all disputes between them with respect to the Litigation.

32 DocuSign Envelope ID: 73CEAFC3-547E-49E3-A275-E6924783E658Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 59 of 231

IN WITNESS HEREOF the undersigned, being duly authorized, have caused this

Agreement to be executed on the dates shown below and agree that it shall take effect on the first

date it has been executed by all of the undersigned.

APPROVED AS TO FORM:

DATED: ___, 2019 GUTRIDE SAFIER LLP

______Adam Gutride, Esq. Seth Safier, Esq. Attorneys for Plaintiffs

DATED: ___, 2019 PATTERSON BELKNAP WEBB & TYLER LLP

______Steven A. Zalesin, Esq. Attorneys for Defendant

APPROVED AND AGREED:

DATED: ___, 2019 JACKIE FITZHENRY-RUSSELL 5/9/2019

______Jackie Fitzhenry-Russell

33 11060827v.2 DocuSign Envelope ID: 73CEAFC3-547E-49E3-A275-E6924783E658Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 60 of 231

DATED: ___, 2019 DAVID SWARTZ 5/9/2019

______David Swartz

DATED: ___, 2019 ASHLEY SALCEDO 5/9/2019

______Ashley Salcedo

DATED: ___, 2019 SCOTT MILLER 5/8/2019

______Scott Miller

DATED: ___, 2019 ISABELO PASCUAL 5/8/2019

______Isabelo Pascual

DATED: ___, 2019 FLORIN CARLIN 5/9/2019

______Florin Carlin

DATED: ___, 2019 KRISTINA HOFFMAN

______Kristina Hoffman

34 11060827v.2 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 61 of 231

DATED: ___, 2019 THE COCA-COLA COMPANY.

By:______

Name:______

Its: ______

35 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 62 of 231

Exhibit A

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 63 of 231 IMPORTANT LEGAL MATERIALS

CLAIM FORM

GENERAL INSTRUCTIONS

You can submit a Claim for a payment under this Settlement if you purchased any Seagram’s Ginger Ale Product (including Seagram’s Ginger Ale, Diet Ginger Ale, Raspberry Ginger Ale, and Diet Raspberry Ginger Ale) in the United States between April 1, 2013, and [date of preliminary approval].

To obtain payment from the Settlement you must complete and return this Claim Form. Completed Claim Forms must be mailed to the Settlement Administrator at [address/telephone number] or can be submitted via the Settlement Website, www.gingeralesettlement.com. Claim Forms must be DELIVERED TO, AND RECEIVED BY, THE SETTLEMENT ADMINISTRATOR or SUBMITTED ONLINE NO LATER THAN [30 days before final approval hearing].

Before you complete and submit this Claim Form by mail or online, you should read and be familiar with the Settlement Notice (“the Notice”) available at www.gingeralesettlement.com. Defined terms (with initial capitals) used in these General Instructions have the same meaning as set forth in the Settlement Agreement. By submitting this Claim Form, you acknowledge that you have read and understand the Notice for the Settlement at issue, and you agree to the Release(s) included as a material term of the Settlement Agreement. If you fail to timely submit a Claim Form, you may be precluded from any recovery from the Settlement. If you are a member of the Settlement Class and you do not timely and validly seek to Opt-Out from the Class, you will be bound by any judgment entered by the Court approving the Settlement regardless of whether you submit a Claim Form. To receive the most current information and regular updates, please submit your Claim Form on the Settlement Website at www.gingeralesettlement.com. The information you provide will not be disclosed to anyone other than the Court, the Settlement Administrator, and the Parties in this case, and will be used only for purposes of administering this Settlement (such as to audit and review a claim for completeness, truth, and accuracy).

Claimant Information

Claimant Name: ______First Name MI Last Name Street Address: ______

Street Address2: ______

City: ______State: ______Zip Code: ______

[optional] Daytime Phone Number: ( ______) ______- ______

[optional] Evening Phone Number: ( ______) ______- ______

[optional for paper claims] E-mail Address: ______

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 64 of 231

Benefit Information

All claimants may receive a Benefit of up to $0.80 per Unit purchased, with a minimum payment of 5 Units (up to $4.00), for personal use between April 1, 2013 and [date of preliminary approval]. The Benefit value may be less than $0.80 per Unit, depending on the number of Valid Claims and on the cost of other expenses paid out of the settlement fund, such as attorneys’ fees, but it will not be greater than $0.80 per Unit. The parties predict that each claim will be paid at least $0.40 per Unit, and more if there are fewer claims than expected.

If you do not provide Proof of Purchase, you can claim the Benefit for up to 13 Units (for a maximum payment of $10.40) per Household. If you claim the Benefit for 1-5 Units, you will receive the Benefit for 5 Units (up to $4.00).

If you do provide Proof of Purchase, you can claim the Benefit for up to 100 Units (for a maximum payment of $80.00) per Household, provided you present Proof of Purchase for at least 87 of those Units.

“Proof of Purchase” means a receipt or other documentation from a third-party commercial source (such as a store) that reasonably establishes the fact and date of purchase of the Product between April 1, 2013 and [date of preliminary approval] in the United States.

“Unit” means any Product unit purchased individually at retail. For example, a 2-liter bottle, 20-ounce bottle, 1-liter bottle, 12-pack of 12- ounce cans, or 10-pack of 7.5-ounce cans would each be a single Unit. A single 12-ounce or 7.5-ounce can is not a Unit because it is not individually purchased at retail.

Purchase Information

1. Did you purchase Seagram’s Ginger Ale Products in the United States between April 1, 2013, and [date of preliminary approval]?

Yes No 2. How many Unit(s) did you purchase? ______(If you are claiming more than 13 Units, you must provide Proof of Purchase.)

To provide Proof of Purchase, attach it to this form and sign where marked on the last page of the form.

If you are not providing Proof of Purchase, you must answer questions 3 through 5. Then sign where marked on the last page of the form:

3. Please identify the Seagram’s Product(s) you purchased. (Complete this section if you are not including proof of purchase). Seagram’s Approximate Place of Purchase Number of Product Month & Year of (optional) Units Purchase Purchased

[drop-down of [drop-down] [text field] [drop-down Regular Ginger 1-13] Ale; Diet Ginger Ale; Raspberry Ginger Ale; Diet Raspberry Ginger ale]

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 65 of 231

TOTAL

I wish to receive my payment by: [ ] Check made out to me as an individual at the address above. [ ] Direct deposit to Bank Name:______ABA Routing No. ______Account No.______[ ] (other payment methods enabled by Claim Administrator, e.g. PayPal, Venmo, Google Wallet, Square Cash)

Certification under Penalty of Perjury

I hereby certify under penalty of perjury that:

1. The information provided in this Claim Form is accurate and complete to the best of my knowledge, information, and belief; 2. The additional documentation information provided to the Settlement Administrator to support my Claim is original or else a complete and true copy of the original(s); 3. I am not (a) a Person who purchased or acquired the Product for resale; (b) an employee, principal, legal representative, successor, or and assign of Defendants or their affiliated entities; (c) a government entity; nor (d) a judge to whom this Action is assigned, or any member of the judge’s immediate family; 4. I have not submitted any other Claim for the same purchases and have not authorized any other Person or entity to do so, and know of no other Person or entity having done so on my behalf; 5. I understand that by not opting out of the Settlement, I have given a complete Release of all Released Claims; and 6. I understand that Claims will be audited for veracity, accuracy, and fraud. Claims Forms that are not valid and/or illegible can be rejected.

Signature: Dated: ______/ ______/ ______

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Exhibit B Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 67 of 231

EXHIBIT B - NOTICE PLAN

SETTLEMENT WEBSITE

Prior to the Notice Date, the Claim Administrator shall establish the Settlement Website, at the web address www.gingeralesettlement.com, in compliance with the Settlement Agreement and enable the Parties to test the operation of the Settlement Website, including the online Claim Form and Opt-Out Form. The Settlement Administrator shall fix any problems identified in the course of such testing and make the Settlement Website live and publicly available at least three business days prior to the intitation of any notice described in this Notice Plan. The website will be established and optimized for mobile visitors so that information loads on their mobile device quickly. The website will serve as a landing page for the banner advertising, where Class Members may continue to obtain further information about the class action, their rights, and related information, including the Settlement Agreement, Plaintiffs’ Motion for Approval of the Settlement, and court orders. The website address will be prominently displayed in the publication notice and is accessible 24-hours a day, 7-days a week.

NOTICE PROGRAM

The notice described herein shall be designed to reach at least 80 percent of the Settlement Class Members, on average notice 2-2.5 times each. Such reach and frequency shall be measured using reasonably relied upon media research data, validation and reach and frequency tools such as GfK Mediamark Research and Intelligence LLC, comScore, or their equivalents.

All notices shall point to (and in the case of online notices shall hyperlink to) the Settlement Website.

PRINT ADVERTISEMENTS

The Settlement Administrator will cause the Publication Notice, in the form attached hereto as Exhibit B2 to be published once no later than 30 days after Preliminary Approval, in the following:

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 68 of 231

EXHIBIT B - NOTICE PLAN People Magazine has a circulation of 3,031,829 with more than 30,954,974 readers. A 1/3 page, black and white ad will be published once in the national edition of this magazine. The Notice Date shall be set as the day on which the first of these magazines is made available at newsstands or otherwise delivered to readers. For avoidance of doubt, the that availability date may be earlier than the issue date printed on the magazine.

INTERNET ADVERTISEMENT

As soon as reasonably practicable, but beginning not later than twenty-one (21) days following Preliminary Approval, and continuing for at least twenty-eight (28) days thereafter, the Claim Administrator shall cause the Online Notice, in the form attached hereto as Exhibit B3, to be published on internet sites through an appropriate programmatic network, for a total of at least 10 million combined impressions (including both desktop and mobile impression, utilizing standard IAB sizes (160x600, 300x250, 728x90, 300x600, 320x50, 300x50). The online notice program shall include the following: --Initial A/B testing of versions of the advertisements to determine versions that generate highest click-though rate and conversion rate (i.e., completion of a claim form or request for exclusion), using the higher performing versions for subsequent impressions. --Tracking which webpages and times of day are generating the highest click-though rate and conversion rate, and to the extent practicable, redirecting future impressions to those higher-peforming locations instead of lower-performing locations. --Multiple targeting layers will be implemented to help ensure delivery to the most appropriate users, inclusive of search targeting, category contextual targeting, keyword contextual targeting, and site retargeting. --Monitoring placement of advertisements and sources of traffic to prevent impression fraud and click fraud --Search terms will be relevant to soda and ginger ales, including, by way of example, Seagram’s Ginger Ale, ginger ale, Seagram’s coupons, Canada Dry Ginger Ale, among others. Targeting users who are currently browsing or have recently browsed content in categories such as ginger ale will also help qualify impressions to ensure messaging is Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 69 of 231

EXHIBIT B - NOTICE PLAN served to the most relevant audience. Where available, purchase data will be utilized to further qualify the audience. -- Banner advertising on Facebook, targeting people who have liked or followed Seagram’s pages as well as other ginger ale brands such as Canada Dry and Schwepps as well as adults 18-44. --Using cookies or similar technology to identify persons who have visited the Settlement Website but not completed the Claim Form or Exclusion Form, and targeting additional impressions or other communications to such persons to encourage them to return to the Settlement Website to complete a Claim Form. PRESS RELEASE The Published Notice will be issued as a press release through PR News Wire’s network.

TOLL FREE INFORMATION LINE A toll free telephone helpline will be established and maintained by the Claim Administrator. It will be available 24-hours a day where callers may obtain information about the class action. Those who call the toll-free information line or who write to Claim Administrator may request a printed copy of the Long Form Notice and Claim Form, which the Claim Administrator shall provide by first class mail.

NOTICES Within ten (10) days after this settlement is filed in court, the Claim Administrator shall provide the notices to the appropriate state and federal officials as required by the Class Action Fairness Act, 28 U.S.C. § 1715, et seq.

At least fourteen (14) days prior to the hearing on Final Approval, the Claim Administrator and Defendant shall certify to the Court that they have complied with the notice requirements set forth herein. Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 70 of 231

Exhibit B-1 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 71 of 231

Attention purchasers of Seagram’s Ginger Ale Between April 1, 2013 and [Date of Preliminary Approval]

This notice may affect your rights. Please read it carefully.

A court has authorized this notice. This is not a solicitation from a lawyer.

• The notice concerns a case called Fitzhenry-Russell, et al. v. The Coca-Cola Company, Case No. 5:17-CV-00603-EJD, filed in the United States District Court for the Northern District of California.

• This class action Settlement will completely resolve this lawsuit against The Coca-Cola Company (“Defendant”), on behalf of all individuals who purchased any Seagram’s Ginger Ale Product (collectively the “Products”) for personal use between April 1, 2013 and [date of preliminary approval]. The Settlement affects all persons in that category (the “Settlement Class Members”).

• The lawsuit contends that the Products were inappropriately labeled as “Made with Real Ginger.” The lawsuit seeks a court order prohibiting such labeling and requiring Defendant to repay consumers for a portion of the Products’ purchase price.

• Defendant denies the claims in the lawsuit. It contends that the Products have always been truthfully marketed and labeled, and that they were and are “Made with Real Ginger.” The Court has not decided who is correct, but the plaintiffs who brought the lawsuit (acting on behalf of all Settlement Class Members) and Defendant have reached an agreement to settle the case.

• To settle the case, Defendant has agreed to comply with a court order that will prohibit it from using the phrase “Made with Real Ginger” on future Product labels or marketing materials. The injunction requires Defendant to introduce new packaging and marketing materials, which do not contain the phrase, within a year of final approval of the Settlement.

• In addition, Defendant will pay $2,450,000 into a settlement fund. Each Settlement Class Member who submits a valid claim form will receive a cash payment from the fund of up to eighty cents ($.80) for each Unit purchased during the applicable time period (the “Benefit”), with a minimum payment of 5 Units (up to $4.00), subject to the restrictions set forth below. The Benefit may be less than $0.80 per Unit depending on (1) the number of Settlement Class Members who submit Valid Claims and (2) the amount of the settlement fund directed to other costs, such as attorneys’ fees, class administration, and payments to the individual plaintiffs who brought the lawsuit.

• A Settlement Class Member who submits a Valid Claim for 1-5 purchased Units shall recover the Benefit for five (5) purchased Units, for a payment of up to four dollars ($4.00). A Settlement Class Member who does not provide valid Proof of Purchase may recover the Benefit for up to thirteen purchased (13) Units per Household, for a payment of up to ten dollars and forty cents ($10.40). A Settlement Class Member who does provide valid Proof of Purchase may recover the Benefit for up to one hundred (100) Units, for a maximum payment of eighty dollars ($80.00) per Household, assuming Proof of Purchase is furnished for at least 87 of those Unit purchases. If more than one Valid Claim is submitted per Household, all such claims shall be combined and treated as a single claim for purposes of the Household limits.

• Any leftover funds after payment of attorneys’ fees, payments to the class representatives, class notice and administration expenses, and payment of Valid Claims will be divided between two

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nonprofit organizations: (1) the National Consumers League (www.nclnet.org); and (2) the Better Businesses Bureaus Institute for Marketplace Trust (www.bbbmarketplacetrust.org). These organizations are devoted to educating and helping consumers so that they can make informed purchasing decisions.

• The parties predict that each claim will be paid at least $0.40 per Unit, and more if there are fewer claims than expected.

• The lawyers who brought the lawsuit will ask the Court to set aside some of the settlement fund for reimbursement of their out-of-pocket expenses of approximately $80,000 and up to $735,000 in fees for investigating the facts, litigating the case, and negotiating the Settlement. They will additionally ask for up to $11,000 total for the Plaintiffs who brought this lawsuit. These payments are called “Class Representative Service Awards.” If the Court approves, these amounts would be paid to Plaintiffs and the lawyers out of the settlement fund.

• The parties will also ask the Court to set aside approximately $361,213 of the settlement fund to pay the Claims Administrator, RG/2, for the costs of administering the settlement (e.g., disseminating notice of the settlement, processing claims, and distributing payments).

• Your legal rights are affected whether you act or don’t act. Read this notice carefully.

This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the settlement agreement available at www.gingeralesettlement.com. Alternatively, you can contact the claim administrator at _____ or class counsel at Gutride Safier LLP, 100 Pine Street, Suite 1250, San Francisco, CA 94111.

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS.

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YOUR RIGHTS AND OPTIONS IN THIS SETTLEMENT DEADLINE

[28 days before Submit a Claim The only way to receive payment under the initially scheduled Form Settlement for your purchases. Final Approval Hearing]

Get out of the lawsuit and the Settlement. This is the [28 days before only option that allows you to ever bring or join initially scheduled Opt-Out another lawsuit raising the same legal claims against Defendant. You will receive no payment from this Final Approval Settlement. Hearing]

Write to the Court about any aspect of the Settlement [28 days before you don’t like or you don’t think is fair, adequate, or initially scheduled File Objection reasonable. (If you object to any aspect of the Settlement, you must submit a written Objection by Final Approval the Objection Deadline.) Hearing]

Speak in Court about the Settlement. (If you object to any aspect of the Settlement, you must submit a October 3, 2019 at Go to a Hearing written Objection by the Objection Deadline noted 9:00 a.m. above.)

You will receive the benefit of labeling changes but you will not receive any payment; also, you will have Do Nothing no right to sue later for the claims released by the Settlement.

• These rights and options—and the deadlines to exercise them—are explained in this notice.

• The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be sent to Settlement Class Members only if the Court approves the Settlement. If there are appeals, payments will not be made until the appeals are resolved and the Settlement becomes effective. Please be patient and continue to check the settlement website for updates.

• Fairness Hearing On October 3, 2019, at 9:00 a.m., the Court will hold hearings to determine (1) whether the proposed settlement is fair, reasonable and adequate and should receive final approval; (2) whether to grant the applications for attorneys’ fees and/or expenses brought by the Plaintiffs’ lawyers; and (3) whether to grant the application for Class Representative Service Awards to the Plaintiffs who brought the lawsuit. The hearing will be held in the United States District Court of the Northern District of California, before the Honorable Edward J. Davila, in the San Jose Courthouse, 280 South 1st Street, San Jose, CA 95113, in courtroom 4 on the 5th Floor. This hearing date may change without further notice to you. Consult the settlement website at www.gingeralesettlement.com, or the Court docket in this case available through Public Access to Court Electronic Records (“PACER”) (http://www.pacer.gov), for updated information on the hearing date and time.

Questions? Visit www.gingeralesettlement.com or call [telephone number]. 3

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Important Dates [28 days before Final Approval] Claims Deadline [28 days before initially scheduled Final Approval Objection Deadline Hearing] [28 days before initially scheduled Final Approval Opt-Out Deadline Hearing] October 3, 2019 at 9:00 a.m. Fairness Hearing

Table of Contents

1. How Do I Know If I Am Affected By The Settlement? ...... 1 2. What Is The Lawsuit About? ...... 1 3. Why Is There A Lawsuit? ...... 1 4. Why Is This Case Being Settled? ...... 1 5. What Can I Get In The Settlement? ...... 2 6. How Do I Make A Claim? ...... 3 7. When Do I Get My Benefits? ...... 4 8. What Do Plaintiffs And Their Lawyers Get? ...... 4 9. What Happens If I Do Not Opt-Out From The Settlement? ...... 4 10. How Do I Opt-Out From The Settlement? ...... 6 11. How Do I Object To The Settlement? ...... 6 12. When Will The Court Decide If The Settlement Is Approved? ...... 7 13. How Do I Get More Information? ...... 7

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1. How Do I Know If I Am Affected By The Settlement?

This case involves all Seagram’s Ginger Ale Products, including Seagram’s Ginger Ale, Seagram’s Diet Ginger Ale, Seagram’s Raspberry Ginger Ale, and Seagram’s Diet Raspberry Ginger Ale (the “Products”) purchased for personal use in the United States between April 1, 2013, and [date of preliminary approval]. For purposes of settlement only, the Court has conditionally certified the following Settlement Class: “All persons who, between April 1, 2013 and the date of Preliminary Approval, purchased any Seagram’s Ginger Ale Product in the United States.” Excluded from the Class are: (a) all Persons who purchased or acquired the Product for resale; (b) The Coca-Cola Company, and its directors, officers, employees, principals, affiliated entities, legal representatives, successors and assigns; (c) any Person who files a valid, timely Opt-Out request; (d) federal, state, and local governments (including all agencies and subdivisions thereof, but excluding employees thereof); (e) counsel for the Parties; and (f) the Honorable Edward J. Davila, the Honorable Virginia K. DeMarchi, the Honorable Howard R. Lloyd, the Honorable Wayne Andersen (Ret.), and any member of their immediate families.

If the Settlement does not become effective (for example, because it is not finally approved, or the approval is reversed on appeal), then this lawsuit will continue.

2. What Is The Lawsuit About?

Plaintiffs brought this lawsuit against Defendant for the marketing and labeling of its Products as “Made with Real Ginger.” Plaintiffs contend that Defendant’s marketing and labeling of its Products misleads consumers about the form of ginger in the beverage and the beverage’s health properties. Plaintiffs contend that Defendant caused consumers to purchase the Products when they would not otherwise have done so and/or that consumers paid more for the Products as a result of the “Made with Real Ginger” claim. Defendant denies that there is any factual or legal basis for Plaintiffs’ allegations. Defendant contends that its Product labeling as “Made with Real Ginger” is and always has been accurate, denies making any misrepresentations, and therefore denies any liability. Defendant also denies that Plaintiffs or any other members of the Class were misled into paying too much for the Products, that they are entitled to any monetary relief, or that they have suffered any injury. The Court has not determined who is correct.

3. Why Is There A Lawsuit?

The lawsuit seeks to recover, on behalf of all Class Members, money damages and an injunction to stop Defendant from marketing the Products with the claim “Made with Real Ginger.”

4. Why Is This Case Being Settled?

Plaintiffs filed their original lawsuit on December 23, 2016 in Santa Cruz Superior Court. This lawsuit was removed to the United States District Court of the Northern District of California on February 6, 2017. Since then, Plaintiffs’ Counsel have investigated the manufacturing, marketing, and labeling of the Products. Plaintiffs’ Counsel has reviewed thousands of pages of documents produced

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by Defendant and served subpoenas on third parties. Witnesses from each party have given deposition testimony under oath, and each party has retained experts who have prepared written reports and given deposition testimony. Counsel for both Plaintiffs and Defendant have determined that there is significant risk in continuing the litigation. For Plaintiffs, the risks are there may be substantial difficulties establishing: (1) that Defendant’s packaging and/or labeling of the Products were false or likely to deceive or confuse reasonable consumers; (2) that the Products’ “Made with Real Ginger” representation was material to reasonable consumers; (3) that any price premium can be attributed to the representation; and/or (4) that damages or restitution should be awarded or the amount of such award. In particular, it may be difficult to establish that different marketing and labeling would have changed the volume of sales or the pricing of the Products. On February 19, 2019, the Parties participated in an all-day mediation conducted by The Honorable Wayne Andersen (Ret.), at JAMS in Chicago, Illinois. After considering the risks and costs of further litigation, the parties have concluded that it is desirable that the Plaintiffs’ claims be settled and dismissed on the terms of the Settlement Agreement.

Plaintiffs and their Counsel believe that the terms and conditions of the Settlement are fair, reasonable, adequate, and equitable, and that the Settlement is in the best interest of the Class Members. Plaintiffs’ experts have testified that the “Made with Real Ginger” representation led Class Members to pay an approximately 6% price premium for the Products. Based on this testimony and Product sales data, Plaintiffs estimate that they could recover up to $58 million in damages on behalf of purchasers nationwide if they were completely successful at trial. By contrast, Defendant’s experts have testified that there was no price premium, the Products were priced identically to other soft drinks, and Plaintiffs’ alleged damages are $0.00. The Settlement creates a common fund of $2.45 million and allows Settlement Class Members to obtain a refund of up to $0.80 per Product Unit purchased, up to a maximum of 13 Product Units per household without Proof of Purchase, and 100 Product units per household if Proof of Purchase is furnished for at least 87 Units. This exceeds the damages that might be recovered at trial on a per-Unit basis. If Plaintiffs proved a 6% price premium at trial, a Settlement Class Member who purchased 10 Units at $1.50 each would be eligible for only $0.90, but under the Settlement the same individual may receive up to $8.00. Furthermore, even if Plaintiffs succeeded at trial, it would be necessary for Class Members to make claims, because Defendant does not have records identifying the Class Members.

5. What Can I Get In The Settlement?

Settlement Class Members may file claims for Products purchased between April 1, 2013, and [date of preliminary approval], regardless of the price the Settlement Class Member paid. Valid Claims will be paid according to the following procedures:

(a) Settlement Class Members who submit Valid Claims shall receive up to $0.80 per Product Unit (the “Benefit”), subject to the restrictions set forth below, though the Benefit may be reduced depending upon the number of Valid Claims and the amount of the settlement fund devoted to other costs, such as attorneys’ fees, administration costs, and payments to the Class Representatives. A Product Unit is any unit in which a Product was individually sold at retail during the Settlement Class Period. Thus, for

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example, a 2-liter bottle, a 20-ounce bottle, a 12-pack of 12-ounce cans, or a 10-pack of 7.5-ounce cans would each be a single Product Unit.

(b) A Settlement Class Member who submits a Valid Claim for purchases of one (1) to five (5) Product Units shall recover the Benefit for five Product Units, for a payment of up to $4.00.

(c) A Settlement Class Member who does not provide valid Proof of Purchase may recover the Benefit for up to thirteen (13) Product units, for a payment of up to ten dollars and forty cents ($10.40), per Household.

(d) A Settlement Class Member who does provide valid Proof of Purchase may recover the Benefit for up to eighty-seven (87) additional Product Units per Household. Thus, a Settlement Class Member with valid Proof of Purchase may recover the Benefit for up to one hundred (100) Product Units, for a maximum payment of eighty dollars ($80.00) per Household, provided that Proof of Purchase is furnished for at least 87 of those Product Units.

(e) All Claims submitted from the same Household shall be treated as a single Claim including for the purposes of meeting these maximums and the Proof of Purchase requirements.

(f) The Settlement also provides for a permanent injunction that requires Defendant to phase out, and eventually stop using, the claim “Made with Real Ginger,” but permits the labeling of Seagram’s Ginger Ale Products to include statements such as “real ginger taste,” “made with real ginger extract,” “real ginger flavor,” “flavor from real ginger extract,” “natural ginger flavor,” “ginger flavor,” and combinations of those words or phrases.

“Proof of Purchase” means a receipt or other documentation, produced by a third-party commercial source (such as a store), that reasonably establishes the fact and date of purchase of the Product during the Class Period.

Claims will be paid only if deemed valid and only after the Court approves the Settlement. The parties predict that each claim will be paid at least $0.40 per Unit, and more if there are fewer claims than expected.

6. How Do I Make A Claim?

To make a Claim, you must fill out the Claim Form available on this Settlement Website, www.gingeralesettlement.com. You can submit the Claim Form online, or you can print it and mail it to the Settlement Administrator at: [address]. If submitted online, claim forms must be submitted no later than [28 days before the initially scheduled hearing on final approval]. If mailed, claim forms must be received by the Claim Administrator (not just postmarked), no later than [28 days before the initially scheduled hearing on final approval]. Payments will be issued only if the Court gives final approval to the proposed Settlement and after the final approval is no longer subject to appeal. Please be patient as this may take months or even years in the event of an appeal.

Questions? Visit www.gingeralesettlement.com or call [telephone number]. 3

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7. When Do I Get My Benefits?

Filing a Claim does not provide a guaranteed benefit. A Final Approval Hearing will be held on October 3, 2019 at 9;00 a.m.. If the Court approves the Settlement and there are no appeals, then Payments will be distributed within 60 days after the Settlement is no longer subject to appeal or review, unless otherwise ordered by the Court. If the Court does not approve the Settlement, or if the Settlement is overturned on appeal, no Payments will be issued.

8. What Do Plaintiffs And Their Lawyers Get?

To date, Plaintiffs’ lawyers have not been compensated for any of their work on this case. Plaintiff’s lawyers will present evidence to the Court that they have spent nearly 900 hours litigating this case. In addition, Plaintiffs’ lawyers will present evidence that they have paid out-of-pocket expenses (including deposition transcript fees, court reporter fees, filing fees, service costs, copying costs, and travel expenses) of more than $80,000. None of these expenses has yet been reimbursed. As part of the settlement, Plaintiff’s lawyers may apply to the Court to award them up to $735,000 to pay their attorneys’ fees and approximately $80,000 in out-of-pocket expenses. In addition, each of the named Plaintiffs in this case may apply to the Court for incentive awards of between $1,000 and $5,000 each, for a combined total of not more than $11,000. These payments are designed to compensate the Plaintiffs for the time, effort, and risks they undertook in pursuing this litigation and for executing a broader release of claims than other Settlement Class members. Plaintiffs and their lawyers have filed a motion with the Court in support of their applications for attorneys’ fees, costs, and expenses and payments to the Plaintiffs. A copy of that motion is available on the settlement website. The Court will determine what amounts of fees, costs, expenses, and class representative payments to award. The award of attorneys’ fees, costs and expenses will be paid to Plaintiffs’ lawyers within seven days after the Court grants final approval to the settlement. If the order finally approving the settlement is later reversed on appeal, Plaintiffs’ lawyers will be required to repay to the settlement fund the previously awarded fees, costs and expenses, plus interest.

9. What Happens If I Do Not Opt-Out From The Settlement?

If you are a Settlement Class Member and you do not Opt-Out from the Settlement, you will be legally bound by all orders and judgments of the Court, and you will also be legally bound to the Releases of the Claims in the Settlement, even if you do not file a Valid Claim or receive a cash payment. This means that in exchange for being a Settlement Class Member and being eligible for the cash payments of the Settlement, you will not be able to sue, continue to sue, or be part of any other lawsuit against The Coca-Cola Company and/or any of the Released Parties that involves the marketing, labeling or formulation of Seagram’s Ginger Ale Products from April 2013 to the present. You will not be responsible for any out-of-pocket costs or attorneys’ fees concerning this case if you stay in the class. Staying in the class means that you agree to the following terms of the Settlement that describe

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exactly the legal Claims that you give up: a) Upon Final Approval, Settlement Class Members shall have unconditionally, completely, and irrevocably released and discharged the Released Parties from any and all claims, liens, demands, actions, causes of action, rights, duties, obligations, damages or liabilities of any nature whatsoever, whether legal or equitable or otherwise, known or unknown, whether arising under any international, federal, state or local statute, ordinance, common law, regulation, principle of equity or otherwise, that were, or could have been, asserted in the Litigation and that arise out of or relate to the Allegations in the Litigation, and all claims could have been asserted in the Litigation regarding the labeling, advertising, or formulation of the Products during the Class Period (the “Released Claims”), except that there shall be no release of claims for personal injury allegedly arising out of use of the Products. Upon Final Approval, Settlement Class Members shall be forever barred from initiating, maintaining, or prosecuting any Released Claims against Released Parties.

b) With respect to the released claims set forth in the preceding paragraph, each Settlement Class Member shall be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits conferred by any law of any state of the United States, or principle of common law or otherwise, which is similar, comparable, or equivalent to section 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

The Settlement Class Members understand and acknowledge the significance of these waivers of California Civil Code section 1542 and any other applicable federal or state statute, case law, rule or regulation relating to limitations on releases. In connection with such waivers and relinquishment, the Settlement Class Members acknowledge that they are aware that they may hereafter discover facts in addition to, or different from, those facts that they now know or believe to be true with respect to the subject matter of the Settlement, but that it is their intention to release fully, finally, and forever all Released Claims with respect to the Released Parties, and in furtherance of such intention, the release of the Released Claims will be and remain in effect notwithstanding the discovery or existence of any such additional or different facts.

c) The Settlement Class Members shall be deemed to have agreed that the release set forth herein will be and may be raised as a complete defense to and will preclude any action or proceeding based on the Released Claims.

d) Nothing in this release shall operate to bar or release any claim for personal injury or property damage arising out of the use of the Product, nor shall anything in this release operate to bar any defense, cross-claim or counter-claim in any action initiated by any of the Released Parties against any Settlement Class Member.

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10. How Do I Opt-Out From The Settlement?

You can Opt-Out if you wish to retain the right to sue Defendant separately for the Released Claims. If you Opt-Out, you cannot file a Claim or Objection to the Settlement. You need not exclude yourself if you merely want to retain a right to sue for personal injury arising out of your use of the Products. To Opt-Out, you must complete the online form at the Settlement Website or mail an Opt-Out request to the Settlement Administrator at [address], with copies mailed to Class Counsel and counsel for Defendant. If mailed, the Opt-Out request must be signed by you, contain your full name, address, and phone number(s), and the following statement: “I/We request to Opt-Out from the settlement in the Seagram’s Ginger Ale Class Action.” The Opt-Out request must be submitted online or delivered to, and received by, the Settlement Administrator by the Opt-Out Deadline set forth above.

11. How Do I Object To The Settlement?

You can ask the Court to deny approval of the Settlement by timely filing an Objection with the Court. You can’t ask the Court to order a larger Settlement; the Court can only approve or disallow the Settlement. If the Court denies approval to the entire Settlement, no Payments will be sent out, and the lawsuit will continue. If that is what you want to happen, you must object. You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. If you want to raise an objection to the Settlement at the Final Approval Hearing, you must submit that objection in writing, by the Objection Deadline. If you want to raise an Objection to the Settlement at the Final Approval Hearing, you must submit that Objection in writing to the Class Action Clerk, United States District Court for the Northern District of California, by the Objection Deadline set forth above. Any Objection must include: (1) a reference at the beginning to this case, Fitzhenry-Russell, et al. v. The Coca-Cola Company, Case No. Case No. 5:17-CV-00603-EJD; (2) your name, address, telephone number, and, if available, email address; (3) documents or testimony sufficient to establish that you are a member of the Settlement Class; (4) a detailed statement of your objection(s), including the grounds and legal support for those objection(s); (5) a statement as to whether you are requesting the opportunity to appear and be heard at the final approval hearing; (6) the name(s) and address(es) of all lawyers (if any) who (a) are representing you in making the objection, (b) may be entitled to compensation in connection with your objection, and/or (c) will appear on your behalf at the final approval hearing; (7) the name(s) and address(es) of all persons (if any) who will be called to testify in support of your objection; (8) copies of any papers, briefs, or other documents upon which your objection is based if not already in the court file; (9) a detailed list of any other objections you or your counsel have submitted to any class action in any state or federal court in the United States in the previous five years (or affirmatively stating that no such prior objection has been made); and (10) your signature as objector, in addition to the signature of your attorney, if an attorney is representing you with the objection. Failure to include this information and documentation may be grounds for overruling and rejecting your objection. All the information listed above must be filed as a written objection with the Clerk of the Court, postmarked by mail, express mail, or personal delivery, such that the Objection is postmarked, and received by, the Clerk on or before the Objection Deadline. By filing an objection, you consent to the

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jurisdiction of the Court, including to any order of the Court to produce documents or provide testimony prior to the Final Fairness Hearing. If you file an Objection to the Settlement but still want to submit a Claim in the event the Court approves the Settlement, you must still timely submit a Claim Form according to the instructions described above.

12. When Will The Court Decide If The Settlement Is Approved?

The Court will hold a hearing on October 3, 2019 at 9:00 a.m., to consider whether to approve the Settlement. The hearing will be held in the United States District Court of the Northern District of California, before the Honorable Edward J. Davila, in the San Jose Courthouse, 280 South 1st Street, San Jose, CA 95113, in courtroom 4 on the 5th Floor, or such other judge assigned by the Court. The hearing is open to the public. This hearing date may change without further notice to you. For updated information on the hearing date and time, consult the Settlement Website at www.gingeralesettlement.com or the Court docket in this case available for a fee through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, San Jose Courthouse, 280 South 1st Street, San Jose, CA 95113, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.

13. How Do I Get More Information?

You can inspect many of the court documents connected with this case on the Settlement Website. Other papers filed in this lawsuit are available by accessing the Court docket in this case available for a fee through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, San Jose Courthouse, 280 South 1st Street, San Jose, CA 95113, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays. PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS. You can contact the Settlement Administrator at [address] or by telephone at [number]. You can also obtain additional information by contacting Class Counsel:

Marie McCrary GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: 415-639-9090 [email protected] www.gutridesafier.com

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Exhibit B-2 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 83 of 231

______If you purchased Seagram’s Ginger Ale Products, a class action Settlement may affect you.

A proposed class action Settlement has been reached in a case alleging Seagram’s Ginger Ale Products were inaccurately labeled as “Made with Real Ginger.” Defendant denies that the label was inaccurate or that it did anything wrong. The parties have agreed to settle the case, and Defendant has agreed to change its labeling and provide cash payments to Settlement Class Members. The case is Fitzhenry-Russell et al. v. The Coca-Cola Company, United States District Court for the Northern District of California, Case No. 5:17-CV-00603-EJD.

Does The Class Include Me? You are A Settlement Class Member if you purchased any Seagram’s Ginger Ale Product (including Seagram’s Ginger Ale, Seagram’s Diet Ginger Ale, Seagram’s Raspberry Ginger Ale, and Seagram’s Diet Raspberry Ginger Ale) for personal use in the United States between April 1, 2013, and [date of preliminary approval].

What are the Settlement Benefits ? To settle the case, Defendant will create a settlement fund of $2,450,000.00. If you make a Valid Claim in the settlement, you will receive a cash payment for each Unit of any Seagram's Ginger Ale Product that you purchased, subject to the maximums and minimums set forth below. A Unit is any unit of the Product purchased individually at retail. For example, a 2-liter bottle, a 1-liter bottle, a 20-ounce bottle, a 12-pack of 12-ounce cans, or a 10-pack of 7.5-ounce cans would each be one Unit. A single 12-ounce can is not a Unit because it is not individually available for purchase at retail.

If you make a Valid Claim you may receive up to $0.80 per Unit purchased (the Benefit), with a minimum payment of 5 Units (up to $4.00), though the Benefit may be less than $0.80 per Unit depending upon, among other things, the number of Valid Claims received, the amount of attorneys’ fees and expenses paid to the Plaintiffs’ lawyers, and the costs of administering the Settlement. The parties predict that each claim will be paid at least $0.40 per Unit, and more if there are a smaller than expected number of claims. If you do not have proof of purchase, you may claim the Benefit for up to 13 Unit purchases per Household (for a maximum Household payment of $10.40). If you submit a Valid Claim for the purchase of 1-5 Units, you will receive the Benefit for five (5) Units. If you do have proof of purchase, you may claim the Benefit for up to 87 additional Unit purchases per Household for which you have proof of purchase, for a total maximum of 100 Units per Household (or a maximum Household payment of $80.00). “Proof of Purchase” means a receipt or other documentation from a third-party commercial source (such as a store) that reasonably establishes the fact and date of purchase of the Product during the relevant period in the United States.

The Settlement also requires Defendant to permanently remove the label claim “Made with Real Ginger” from all Seagram’s Ginger Ale Products. It permits labeling that includes statements such as “real ginger taste” and “made with real ginger extract,” among other combinations of those label claims.

If there is money left over in the settlement fund after payment of Valid Claims, attorneys’ fees, administration costs, and class representative service awards, the money will be donated to two nonprofits whose work focuses on educating consumers to make informed choices: (1) the National Consumers League; and (2) the Better Business Bureaus Institute for Marketplace Trust.

How Do I Make A Claim? To file a claim, click here and fill out the form. You can also obtain a claim form by contacting the Claim Administrator.

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 84 of 231

What are my rights? You may make a Claim, Object, Opt-Out, or do nothing. To receive a payment, you must submit a Claim, online or by mail, by [30 days before preliminary approval hearing]. If you Opt-Out of the Settlement, you may pursue a separate lawsuit, but you will receive no payment. Your Opt-Out request must be received by the Settlement Administrator by [30 days before preliminary approval hearing]. If you do not Opt-Out, you give up your right to bring a separate lawsuit. To object, you must submit a written Objection that complies with the requirements in the applicable Settlement Notice available at www.gingeralesettlement.com. Your Objection must be filed with the Court by [30 days before preliminary approval hearing] . Do nothing, and you will not receive a payment and you will be release claims against Defendants that relate to the allegations in the lawsuits.

What will happen next? The Court will hold a hearing on October 3, 2019 at 9:00 a.m. to consider whether to approve the settlement. The attorneys for the class will ask the court to award them up to $735,000 in fees and approximately $80,000 in out of pocket expenses and up to $11,000.00 total in incentives to the individuals who pursued the suit, out of the settlement fund. Note that the hearing date may change without further notice to you. Consult the settlement website at www.gingeralesettlement.com or for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, for updated information on the hearing date and time.

How can I get more information? For more information, please visit www.gingeralesettlement.com or contact the Settlement Administrator [telephone and address]. Please do not telephone the Court or the Court's Clerk’s Office to inquire about this settlement. Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 85 of 231

Exhibit B-3 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 86 of 231

Online Banner Ad

Seagram’s Ginger Ale Purchasers: You Could Get a Cash Payment from a Class Settlement Click Here To Learn More

Mobile Banner Ad

Seagram’s Ginger Ale Purchasers: You Could Get a Cash Payment from a Class Settlement

EXHIBIT B3 – ONLINE NOTICE

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 87 of 231

Exhibit C

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page88of231 The COCA situated, herself FITZHENRY JACKIE

, the general public and those similarly v.

- COLA COMPANY COLA Defendant. Plaintiffs, - RUSSELL, on behalf of RUSSELL, onbehalf of NORTHERN DISTRICT OF DISTRICT NORTHERN UNITED STATES DISTRI STATES UNITED

,

DATE: SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY GRANTING ORDER [PLAINTIFFS JUDGE: CTRM: TIME:

C ase 5:17 No.

CALIFORNIA CT

COURT COURT

’ June 13 Hon. Hon. 4 9:00 a.m. -

UNOPPOSED PROPOSED] PROPOSED] UNOPPOSED , cv 5 - th

00603

Edward Davila J. Floor

-

EJD

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page89of231 the California Consumer Legal Remedies Act (“CLRA”) the also contend Defenda health properties. this claim misleads consumers aboutginger thein of the form Product (“Products”) May 9,2019 terms and conditions which are of in set the forth Settlement Agreement filed with the Court proposed class action sett or “Plaintiffs” Salcedo, Scott Miller, Isabelo Pascual, Florin Carlin orany classPlaintiffs members have s had any onthe effect Products’price. disputes that the with “Made Real Ginger” claim induced consumers to purchase the Productsor claim onthe Product labeling is,and hasalways been, truthful and not withProducts as“Made Real Ginger.” seek moneyPlaintiffs damages and an i alleging similar claims under various the states,purchasers nationwide. laws of onbehalf of Products sought to pursuethese claims onbehalf of Code sections 17200, andBusiness Professions Busi [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] “Made with“Made Real Ginger” claim. ness and Professions Code sections 17500, andness Professions Plaintiffs contendPlaintiffs that the Productsare mislabeled with as“Made Real Ginger,” and that This case concerns the marketing and labeling Seagram’s of Plaintiff Defendant den nt .

The Plaintiffs

caused people to purchase the

that the from from (“Settlement Agreement”). “Class Representatives”)“Class have moved the preliminary Court for approval a of

Jackie Fitzhenry

Plaintiffs contendPlaintiffs that, April 1,2013 Products ies - in

lement with Defendant Plaintiff - Intervention have soughtleave to file a Second Amended Complaint

were soldat a higher price than they wouldhave been soldwithout

to the date of - Russell s ’

allegations.

Plaintiff Plaintiff

Defendant uffered injury asa injury the result Products’labeling of uffered

njunction prohibiting marketing Defendant from the

, by marketing the Products

and RECITALS herself Fitzhenry Plaintiffs this order

et seq. et seq. It 1

The Coca therefore denies any liability, and denies that

and contends who wouldnotwho otherwise have done so. ,

and Kristina Hoffman

; and practices; business unfair under California a nationwide c -

- Russell In (“Class ;

false advertisingfalse under California - - Products as “Made withProducts as“Made Real Ginger,”

Intervention Cola Company that common law

alleged claims violations for of the with “Made Real Ginger” Period”).

Ginger Ale Products lass of s ands about the Products’ misleading. David Swartz

misrepresentation

(“Defendant”),

( purchasers of thepurchasers of collectively

Defendant also , Ashley

the They .

All She on

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page90of231 Plaintiffs’ claimPlaintiffs’ a price of premium. and sales data the from Productsand comparable drinksduring the soft ClassPeriod refuted consumers’ purchasing decisions orthe prices they were w expertsDefendants’ countered with survey premium” throughout the ClassPeriod asa the result With “Made of Real Ginger” claim. experts, relying onconjoint analysis, opined that the Productscomm relevantissues to class certification andclaim to Plaintiffs’ money damages. for Russ deposed three Defendant’s of discovery. counsel the Plaintiffs’ reviewed pagesdocuments Defendants’ of thousandsof and in October 2017. in February 2017 this case filed was Civ. 23 P. Defendant denies further that this case meets the requirements class certification for under Fed.R. Canada Case Dry one with a putative class of against KeurigPepper. Dr severalone of putative class actions, in various states, in which consumers asserted these claims action, and trial the claim Real from “Made Ginger” onthat product. That case had been certified asa class similar claims against Keurig Pepper, Dr the manufacturer Canada Ginger of Dry Ale, regarding JackiePlaintiff Fitzhenry Inc. application to stay the case pending the trial of [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] , Case5:2017 No. ell. The parties also exchanged expert reports, and deposed one another’s experts, regarding In late 2018,while expert discovery ongoing, was this Court approved the parties’ jo The this litigation history of issummarized in Part I To settle these cases, KeurigPepper Dr entered into twoseparate settlement agreements: , except for purposes of settlement., except of purposes for was scheduledwas to begin

. , and one with a putative Canada class Ginger of Dry Ale consu Betwe

Shortly thereafter, Defendant filed a motion to dismiss,which the Court denied on

- December 23,2016in California Superior Court, and removed to this Court cv en October 2017and fall 2018,the parties engaged in significant - - 00564

Russell, represented C byPlaintiffs’

California corporate representatives - NC

(N.D. Cal.)(N.D.

Canada Ginger Dry Ale consumers

on January 7,2019. - based evidence that the claim did not affect

Jackie Fitzhenry

2 (the “

California . Defendant deposedFitzhenry Plaintiff illing to pay, and opined that pricing of the Settlementof Agreement. The California Canada case Dry was ounsel, asserted substantially -

Russell v.Pepper, Keurig Dr. Canada case”), Dry anded a 6percent “price in the California

Plaintiffs’ Plaintiffs’ mers in the other in which

In brief, In brief, int -

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page91of231 mediation resulted in the settleme conducted bythe Honorable Wayne Andersen(Ret.)in Chicago, at JAMS Illinois. settlements received final approval in April 2019. million valid claims been filed. However,neither these capstriggered, of was and bo Canada case, Dry but KeurigPepper Dr could have terminated the settlement had more than one these terms upt purchase. of total uptopurchase $5.20per consumerand of $40.00per withconsumer noproof with proof claims Canada purchases Ginger of Dry for Canada labeling Dry ormarketing, but permitting certain useof variations onthat phrase. a permanent injunction the barring unmodifie useof State Canada case”). Dry 49 states. subject to the limitations: following to which consumerssubmit $2,450,000from who Valid of Fund Claims can receive similar terms the to those Canada of settlements. Dry alternatives as, phrase with “Made Real Ginger” onthe Products’labels while permitting such the useof Keurig Pepper Dr agreed to in the Canada settlements, Dry Defendant Settlement ClassMembers, which isattached

$0. [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] 8 0 per Unit purchased The the terms settlement of are summarized in the proposedLong FebruaryOn 19,2019,the parties to this case participated in an all Keurig Pepper Dr also agreed to allow consumers in both classes to submit monetary

Defendant hasalso agreed to make cash payments to Settlement ClassMembers on See has agreed to •

In the 49

George v.Pepper, Keurig Dr. In.c expenses deducted the from Settlement ( Fund The Benefit inter alia o a $11.2million. cap of - State Canada case, Dry

, “Made , “Made a permanent nationwide Under these settlement agreements, KeurigPepper Dr agreed to entry of

may be reduced ona pro

(the “Benefit”), with a minimum payment 5Units(upto $4.00), of with Real Ginger Flavor” and “Real Ginger Taste nt that isthe this Order. subject of

There nosettlement was

Ale for paymentAle $0.40per for unit of a purchased, for as Exhibit B1to the Settlement Keurig Pepper Dr agreed to pay valid claims on , No. 1822 , No. 3

inju

- d phrase “Made from Reald phrase from “Made Ginger” onits rata after accounting basisif, all for other

nction Defendant -

prohibiting the useof Defendant’s CC11811 (Mo. Cir.CC11811 (Mo. Ct.) (the “49 substantially similar to the one e.g ., attorneys’ and fees has agreed - value cap in the California

Form Notice to - day mediation

to

Agreemen

create a Settlement

a payment of

. That ”

th

t.

-

up

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page92of231 although the $2.45million common is lessthan the fund total $58 receive proved their Plaintiffs only $0.90if a theory 6percent of “price premium” at trial. Pr wouldbeat awarded successful Plaintiffs trial: if (currently estimated at $80,000.00) $ informed choices. 501(c)(3) organizations nonprofit devoted to empowering and educating consumers to make Consumers’ League and the Better Bureaus Business Institute Marketplace for Trust. value $0.80,the remainder of the Settlement of will Fund be divided betwee would likely be lower. to receive compensation Moreover, even could at recover successful fully trial, if it isreasonable inproceeding light the of risks of to trial. 735,000.00 oduct Units for $1.50eachoduct Unitsfor may receive upto $8.00under the proposedsettlement, but would [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] If thereIf are Valid too Claims few to exhaust the Settlement at Fund a per The amountper claimed offered purchase As part of the part settlement,As of Plaintiffs • • • •

from thefrom Settlement to Fund pay their attorneys’ plustheir fees, actual expenses administration costs),there in the are Settlement insufficientfunds to Fund pay a A “Unit” isanyA product unit purchased individually at retail. will receive the 5 Benefit for Settlement ClassMemberssubmit who a Valid Claim to have purchased 1 at purchase least for those of Units. provided 87of proof they furnish a for Settlement purchase may of ClassMembersprovide who claim proof the Benefit $10.40. aBenefit maximum for 13Units of Settlement purchase ClassMembersdonotmay of who provide claim proof the $0.80perBenefit Unit onea of

if Plaintiffs won at won trial, Plaintiffs if class members would still need to make claim

maximum 100Units of

as Defendant hasnorecords , as well as ’

att per Household Units. ch Valid Claim. orneys may apply to this Court to award them upto up to $ 4

a Settlement ClassMember purchased who 10 exceeds, ona per

per Household

of individualof purchases, and the recovery 11 ,000 from the,000 from Settlement Fund , for a maximum, for payment $80.00, of

, for a maximum, for payment of

million damages Plaintiffs - Unit basis,the payments that

n the National

- Unit Benefit

Both are s in

in order -

5 Units And, And,

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page93of231 attesting to the impressions number delivered of and the click number of the hearing onFinal Approval, the Claim Administrator shall submit a declaration to the Court request a printed the version claim of and notice. form Class Members. chosen based apprise Settlement (including the Online Notice including social media sites suchasFaceb Additional online and white the version Print of Publication Notice will be published provided ona Settlement Website action administrator. plan designed by Court will any defer ruling onthe appropriateness suchawardsuntil of the final approval hearing payments to the Class in the Settlement hereby f including the complete this record action, of and good cause appearing therefore, the Court connection with the settlement. settlement orobject, aswell the asa copy Settlement of Agreement and motion papers class notice, including the class procedures members for to exclude themselves the from Settlement Website [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED]

All of th All of Notice isto be provided asdescribed in the Settlement Agreement consistent with a n Having considered all matters submitted to it at the hearing onthe motion and otherwise, the Settlement ClassMembers inds and concludes 2. 1. on reliable demographic information about those media and about likely Settlement

e notices will link orpoint to the Settlement Website, which contains a detailed There will be a toll The Court preliminarily approves the Settlement Agreement aslikely to be The capitalized terms usedin this Ordershall have the same meaning asdefined RG/2 Claims Administration (“RG/2”) Agreement notice .

RG/2

Representatives. Suchamounts shall be provided onwebsites accessible to desktop and mobile users,

also will receive and processClaim Forms. as follows:

except asotherwise expressly provided. FINDINGS AND CONCLUSIONS AND FINDINGS

, located at www.gingeralesettleme - free number for people numberfree for to obtain more information and

of the settlementof

and ook and Instagram,

Print Publication Notice) isreasonably 5

must be approved bythe Court, and the No laterNo than forty .

, a well A n a

ppropriate so thatso overall notice the of - known andknown experienced class in

nt.com

People Magazine In brief, noticeIn brief, will be online - throughs to the - two (42)daysprior to .

In addition, a platform calculated to filed in .

has

black be otice

en

.

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page94of231 https://www.cand.uscourts.gov/ClassActionSettlementGuidance Procedural Guidance ClassAction Settlements, for Considering the in set factors Rule forth 23(e)(2), the Court preliminarily asfollows: finds approved under Rule 23(e)(2) and asmeriting subsidiaries, parents, directors, affiliates, and officers, employees, legal representatives, heirs, Defendant; (5)any entity in which Defendant has a controlling interest; Defendant’s (6)any of Andersen (Ret.) Honorable “Excluded the from Settlement Persons” Classesare Preliminary Approval, purchased, in the United States, any Settlement Class, pending a final ruling on 76),and deadline(Dkt. No. staysDefendant’s to respondto the Second Amended Complaint Motion to Intervene Leave 75)and (Dkt.No. Motion for to File a Second Amended Complaint [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] Virginia DeMarchi K 5. 4. 3.

; (2)any member their of immediate families; (3)

For purposes of the settlement of purposes For only, the Court provisionally certifies the the settleme of purposes For The Settlement also complies with the Northern District California’s of which consistsof e. d. c. b. a.

The proposal treats all c litigation. The attorneys’ proposedawardisreasonable of fees given the twoyears of evidencePlaintiffs’ wouldhave allowed at trial. for recovery bythe Settlement offered ishigher ona per Unit basisthan relief isadequate given the and risks uncertainty of The relief provided to the classinjunctive in the of and form monetary well The Settlement negotiated was at arm’s length with the assistance of Cl Class Representatives and ClassCounsel have adequately represented the

ass. the settlement. - respected and experienced

; the Honorable R.Lloyd; Howard the Honorable Wayne

a ll between who persons

nt only, the Court provisionally grants the pending notice to its the consideration. Classfor lass members equally relative to each other. 6

: (1) private mediator. the Honorable Seagram’s Ging

April 1,2013 .

any government entity, (4) Edward Davila J.

trial; the monetary

and the date of er Ale

Products , the

.

a

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page95of231 attorneys’ costs,and a fees, Final Approval Ordershouldbe entered, and (b)whether ClassCounsel’sapplication for proposed settlement shouldbe finally approved reasonable, asfair, and adequate, and whether the District California, of 280SouthFirstStreet, October 3 resolving the claims and Settlement ClassMembers; and that a settlement class issuperior to alternative means of that the Class claims the ClassRepresentative of joined in a single action; satisfied, including t Settlement Class orassigns;(7)counsuccessors, Miller, Isabelo Pascual, Florin Carlin Settlement ClassCounsel and the Parties and this Court asdescribed in the Settlement Agreement. and related procedures, shall be performed bythe Claim Administrator Notices. Parties States Constitution, the Rule Civil Rules 23of of Procedure, and any other applicable law comprehend, and Agreement substantially similar to attached the forms as hat the requirements of [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] shall have discretion to jointly make non

Responsibility regarding settlement administration, including, but not limited to, notice , 2019 .

8. 7. 6. 9. The Claim Formand

R epresentative , in .

The Court approves, FinalA Approval Hearing shall be held this before The Court preliminarily considering of this purposes solelysettlement, for finds, T fully complyfully with the requirements the the Clause DueProcess of United of

he Court conditionally designates the Gutride LLP law Safier of as firm

r Courtroom equirements that the Settlement ClassMembers are too numerous to be

Rule 23 of theRule Federal 23of Civil Rules of Procedure

d t hat law common and fact of exist issues and predominate; that the isputes a payment to the ClassRepresentative shouldbe approved. s

Jackie Fitzhenry and ClassCounsel can adequately protect the interests the of sel for thesel Parties; for andtimely (8)anywho persons opt 4 , all the notices of are written in plain English, are easy to Fifth s t issuein this Litigation.

are ,

and Kristina Hoffman a

Floor, of the UnitedFloor, of States District the Court Northern for typical the cl of s to form and to content,s form the Claim Formand the Notices,

Exhibits and A B1to B San Jose - Russell - 7 material minor revisions to the Claim Formor

, CA 95113,to, CA address: (a) whether the , aims of theaims Settlement of ClassMembers; David Swartz

as ClassRepresentatives for

3 Court at

, AshleySalcedo, to the Settlement , subject to the oversight of are conditionally 9:00 a.m.

- out of theout of

on Scott .

The

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page96of231 the Claim Administrator nolater than [ than [ Notice. exclusionfor to the Claim Administrator, pursuant to the instructions in set the forth Long Form therefore not be boundbythe the terms Settlement of Agreement, must submit a timely request Agreement and this Order. Administrator shall comply with the Notice Plan and other deadlines in asset the forth Settlement the Civil Rulesof of withfully the requirements the the Clause DueProcess of United of States Constitution, Rule 23 the Settlementof Agreement, the Final Approval hearing, and applicable deadlines, and complies Notice Plan) isreasonably calculated to provide notice t Class Members. The Court designates, and approves, Class Counsel fairly and adequately this settlement. of purposes have nostanding to object to the settlement orintervene in the Litigation. thebenefits settlement, of shall not be boundbythe the terms Settlement of Agreement, and shall re manner, Counsel andshall Plaintiff’s file that list with the Court. The Court retains jurisdiction to described herein, have excluded themselves the from Settlement Classin a valid and timely Administrator shall prepare a the list thepursuant names of who, to persons the of within the Classasa group,class, orin the aggregate. conservatorship, trusteeship, orother legal authorization, a representative another of orotherwise, a exceptlegal of attorney, uponproof powerof permitted to exercise any exclusion any rightsother onbehalf of person,whether asan agent or solve any disputed exclusion requests. [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] 28 days before Final28 daysbefore Approval Hearing

The 12. 11. 10. 13. request must be received bythe Claim Ad

No laterNo than memberAny the desires Classwho to of be excluded the from Sett The that Court finds the Parties’ providing plan notice for to the Class(the Any membAny Procedure, and any other applicable law.

The Court preliminarily that finds the ClassRepresentatives and er of the electser Class who of to be excluded shall not receive any fourteen represent and protect the int 28 days before Final28 daysbefore Approval Hearing (

14 ) days before the) daysbefore Final Approval Hearing, the Claim ], or if mailed,], orif must be delivered to and received by, 8

RG/2

ministrator (not o the Class of theo the pendency Classof the terms of nd noone may exclude other persons

to

serve asClaim Administrator. The Parties and the Claim erests of theerests absent of Settlement

just

Members of theMembers C of

postmarked) nolater ]. No one ]. No Class Notice lement, and

shall be lass

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page97of231 documentation shall be posted to the Settlement Website within filing. one day of later attorneys’ costsand a fees, class representative payment objection in compliance with the requirements referenced in the pri Hearing (either personally orthrough counsel), the ClassMember must submit a timely written expense. Approval hearing, either personally orthrough an attorney retained at the ClassMember’s own Objection Deadline delivery, suchthat the Objection ispostmarked, written objection with the the Clerk Court, of postmarked bymail, expressmail, orpersonal Objection the must satisfy requirements in set the forth Long FormNotice and exclusionrequest for may submit an objection to the Settlement Agreement ( themselves the from Litigation. donottowho wish be oragainst boundbya judgment of inthe favor Classmust exclude become null and void, and shallforce nofurther effect, shall be not of be usedorreferred to terms, this Preliminary Approval Orderand all ordersentered in connection in the event that the Settlement Agreement becomes null and void orterminates pursuant to its Settlement Agreement and asto the shall provide a declaration to the Court regarding the Final Approval Hearing] it must be delivered to, and received by,the Claim Administrator bynolater than must be submitted online bynolater than Claim Administrator, pursuant to the instructions in set the forth [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] than [

However, if theHowever, if ClassMember to wishes object to the Settlement at the Final Approval 14 days before Final14 daysbefore Approval Hearing 16. 15. 14. 18. 17.

Any ClassMemberAny wishingto make a claim must submit a Claim Formto the shallPlaintiff file ClassMemberAny shall have the right to appear and be heard at the Final In the event that the proposedsettlement isnot finally approved bythe Court, or laterNo than

or

it will be rejected. .

[14 days before Final[14 daysbefore Approval Hearing]

Any ClassMemberAny doesnot who submit a valid and timely any reply in support of number and dollar amount claims of received.

[28 days before Final[28 daysbefore Approval Hearing]

and received by,the Clerk the onorbefore 9

] .

All and suchfilings provision of noticeprovision of and asrequired bythe (including to responses objections) Final any Approval award and of for Settlement Notice. The request or paragraph this Order. of , the Claim Administrator supporting herewith shall “Objection”). must be filed asa

[28 days before [28 daysbefore

, or, if mailed,, or,if

The no

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Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page98of231 claims therein. asset forth the Settlement Agreement orsubmitted a Valid Claim, shall be deemed to have released their Class Membershave who no Settlement Website, be continued the Court. byOrderof w posted to the Settlement Website. The Final Approval Hearing may, time from to time and Order without notice further to the any truthof allegations of made liability bythe orof Plaintiff any kind. orfault of Settleme their respective the positions date asof and time immediately preceding the execution the of deemed to be without prejudice to the any and rights all of the Parties, of shall who be restored to the Settlement Agreement and all negotiatio anywhatsoever purposes infor this Litigation orin any other case orcontroversy, in suchevent those required to effectuate the Settlement Agreement and this Order. either this Orderorthe the terms Settlement of Agreement. in connection with the administration the settlement of which are not materially inconsistent with ithout notice further to [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ACTION CLASS OF APPROVAL PRELIMINARY FOR MOTION GRANTING ORDER [PROPOSED] IT IS SO ORDERED IS IT nt Agreement. 23. 22. 21. 20. 19.

All proceedings further and deadlines in this action are hereby stayed except fo theCounsel Parties for are hereby authorized to utilize all reaso the CourtIf grants Final Approval to the Settlement Agreement, then The Court goodcause, may, extend for the any deadlines of in set this forth This Ordershall not be construed asan admission orconcession byDefendant

Settlement

t timely requested to be excluded including objected who persons to

this ______,2019. ____th day of Settlement Class Members beyond updates to the Court’sdocket and the

Class Members, though suchextensions shall be ns andns proceedings directly related thereto shall be

10 UNITED STATES UNITED HON. ______

EDWARD J. DAVILA J. EDWARD

DISTRICT COURT

nable procedures

Settlement

JUDGE

r

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 99 of 231

Exhibit D

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page100of231 situated, herself FITZHENRY JACKIE The COCA [PROPOSED] ORDER GRANTING MOTION FOR FOR MOTION GRANTING ORDER [PROPOSED] , the general public and those similarly v.

- COLA COMPANY COLA Defendant. Plaintiffs, - RUSSELL, on behalf of RUSSELL, onbehalf of NORTHERN DISTRICT OF DISTRICT NORTHERN UNITED STATES DISTRI STATES UNITED

FEES AND FEES COSTS; AND ENTE AND

.,

FINAL APPROVAL OF CLASS ACTION SETTLEMENT; AWARDING OF FINAL CLASS ACTION SETTLEMENT; AWARDING APPROVAL

JUDGE: CTRM: TIME: DATE: SE APPROVAL OFCLASSACTION ORDERGRANTINGFINAL [PROPOSED] Case No. R T ING JUDGMENT ING

CALIFORNIA TLEMENT CT

COURT

5:17 Hon. Hon. 4 - , cv 5

- th

00603

Edward Davila J. Floor

-

EJD

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page101of231 ntrl ginger,” “natural following the of any Seagram’s permanently summarized in the OrderGranting Preliminary Approval (Dkt.__.) April 1,2013 below,fully thefinal approval the Court GRANTS Settlement. of with the Court (“Defendant”), final approval a proposedclass action of settlement with Pascual, F 1 Purchase of Purchase of without Proof guaran receive a cash payment $0. of between Class Members resale of purposes for preliminary approval] “flavor

Capitalized terms herein have the same meaning in asset the forth Settlement Agreement. teed minimum any paymentHouseholdthat $2.00for submits of a Valid Claim , Plaintiffs JackiePlaintiffs Fitzhenry The Settlement Agreement, Settlement the Under This case concerns the marketing and labeling of ”

April 1,2013 all asmore described fully herein. lorin Carlin

Ginger Ale Ginger

[PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] and

precluding

to

on

the terms and conditions which are of in set the forth Settlement

may a $40.00 (100Unit) [date preliminary of approval]

[date] n obnto wt oe f h floig he wrs “at, “xrc, or “extract,” “taste,” words: three following the of one with combination in

file a c .

, purchased

od ad phrases and words

and and Kristina Hoffman (collectively, the “Products”) the (collectively, Class The Settlement

it (“Settlement Agreement”)

. from using the phrase “ phrase the using from SUMMARY OF TERMS SETTLEMENT SUMMARY

[ laim date preliminary of approval] There isa $10 comprises: 4

0 for each0 for Product purchase

to receive a refund in the United States - PROCEDURAL HISTORY PROCEDURAL Russell cap on creates $2,450,000 of a fund

A AND JUDGMENT

. David Swartz ll perso on 0

Defendant

recovery 0 (

(“Class Representatives”)(“Class have moved the

25 (“Class Period”)(“Class 1

Unit) cap onrecovery claims for without Proof ns who between who ns Made with Real Ginger Real with Made Products

(Dkt. for eachfor , but permitting, at permitting, but , VAL OF CLASS ACTION SETTLEMENT

for claimedfor purchases any

is , AshleySalcedo, Scott Miller, Isabelo

Defendant Seagram’s

. _____ Seagram’s

stipulat Those d ’

during the class period, with a Unit labeling ). . The procedural history is

1

who file who

n t a to ing

of of For theFor reasonsdescribed more April 1,2013

The Coca g

against which the Products Ginger Ale “igr” ra gne, or ginger,” “real “ginger,” : inger ale

Defendant’s d ” in any Labeling of any of Labeling any in ”

a timely claim nationwide with - Cola Company (“Products”)

Agreement filed P and a valid

purchased roducts

Settlement

the Court for option [date of

even

injunction Proof of of Proof

except will

from from use

of

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page102of231 online and printable the claim versions of and the form o administrator and the parties, the themselves, the settlement notices, settlement website conditional certification administrator, Representative attorneys’ fees and aminimumof$10.00perclaim). $50 amounts willbeincreasedpro Purchase. demographic data, including to websites (both mobile and desktop) targeted at likely members the Classbas of ______settlement website. ( were filed. application attorneys’ costs,and for incentive fees, awardswere placed onthe website after they questions, and a Product list. Inaddition, the final papers approval in supportof and the .00 perHouseholdwithoutProofofPurchase,$ Notice published was in The Settlement Agreement isbeing administered bya well Finally, the settlement provides that may Plaintiff seek upto an award of Online Notice comprised of .

( F

[ urther, iftherearetoofewclaimstoexhausttheSettlementFund,allabove record cites The claim [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] a contact information page that includes addressand tel and , respectively, with total readership the print of editions of [claims administrator name] , $85,000in s

magazine .

______

(the “Settlement Website”) NOTICE AND SETTLEMENT ADMINISTRATION ADMINISTRATION SETTLEMENT AND NOTICE [ record citations administrator also operated a toll including the class procedures members for to submit claims ] ) of the nationwideof settlement,

These magazines have circulations approximately of and the

costs, and upto $ , respectively - rata, uptofivetimesthestatedamou persons believedpersons to have purchased multiple

Settlement Agreement print version of ______]

)

Half

media AND JUDGMENT . . -

Following page a 20

at http://www. ,

, all which refered class of members to the 0 impressions 2 00

______d 200.00 perHouseholdwithProofofPurchase, in total s VAL OF CLASS ACTION SETTLEMENT

w [claims administrator name] the Court - ere , the preliminary signed order of approval, free number for class numberfree member for inquiries.

pt out forms, answers to answers frequentlypt outasked forms,

published in the incentive award

that ______’s preliminary’s approval and were displayed ona variety of - known, independentknown, claims Seagram’s nts (i.e.to$2.00perUnit, e

phone numbers for thephone numbers claim for that went onthe market

approximately .com s _____

for Class for

______products, likely ed on , which contained $

735,000 established a print version of

or

exclu

in de

and on

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page103of231 ___ units, ora total dollar value to be paid administrator themselves the Settlement. from Proposed an all the online notices hyperlinked to, the Settlement Website other Settlement ClassMembers purchasers of nationwide class appropriate. Inparticular, the identi the variouslaws of states, law common and fact of predominate, issues making certification a of the parties’ preliminary motions for and final approval, that despite anyamong differences the and efficient resolution this matter. of the Settlement Classissuperior to individual litigation and/or settlement asa method the fair for the Settlement Classsufficientlycohe fact predominate over questions affectingonly individual Settlement Class Members, rendering with regard to the claims the Settlement of Classthey represent; common law and questions of Class Representatives are typical the claims of the Settlement of and defenses Classthey represent; the quest Settlement ClassMembers are numerous so that all joinder of members isimpracticable; there are have beencertification satisfied for the Settlement of settlement Classfor because: purposes II. I.

average of

ions of law and factions of common to the Settlement Class; the claims the Class of and defenses

websites Representatives have fairly and adequately protected the inte The that Court finds the prereq OF SET CERTIFICATION This court hasjurisdiction §1332(d)(2). under 28U.S.C. JURISDICTION Class members were given until In total, the notice program isestim [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] , for a total, for of ginger ale [

2 known toknown reach those demographic The groups. published notices pointed to, and ]

ti mes

each

in general, and adults

. These adswere displayed onFacebook, ______

( [ record cite

Units. TLEMENT CLASS

sive to uisites of Rule 23 of the Ruleuisites Federal 23of of Civil Rules of Procedure The Court additionally the reasonsset for fo finds, [ 28 days before Final28 daysbefore Approval ] AND JUDGMENT ) A ANALYSIS

to claima Of these, ____c Of ated to have reached at warrant a class settlement; and the certification of total of 18 3 -

44 nts of $______. nts of , who are, who a primary demographic among VAL OF CLASS ACTION SETTLEMENT _____ cal challenged marketing and labelling was

laims were deemed valid, a total for of claims were received bythe .

least rests of the Settlementrests of Class

Instagram ] [

75 to object to orexclude ] % of % of , and Class Members multiple

rth in

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page104of231 timely opt representatives, heirs,orassigns;(7)counsel successors, subsidiaries,Defendant’s parents, directors, affiliates, and officers, employees, legal (4) Defendant; (5)any entity in which Defendant hasa controlling interest; (6)any of Wayne Andersen(Ret.) Davila Al and hereby f the Second Amended Complaint can who represent each suchsubclass. that similarly situated states can be combined into subclassesand there exist named in plaintiffs predominate; to the extent the asserted claims in the Second Amended Complaint and common under issues those laws provided to all class members; the various states require similar elementswith respect proof to of physical location due to process”); issufficient satisfy routinely held that notice by (recognizing that Rule not insist 23“does onactual notice to all class members;” and have “courts practicable wholesaler. or contact informationclass members, for asthe purchases were made at retail and Defendant isa this isappropriate here where as Settlement ClassCounsel. and Kristina Hoffman Fitzhenry III. e

Products [

the date Preliminary of Approval , the Honorable NOTICE AND CLAIMS AD CLAIMS AND NOTICE this the settlement,For purposeof the Court hereby finally certifies the of purposes For The Notice Plain provides inally certifies the Settlement following Class: - - Russell . out of theout Settlement of Class

See, e.g.

[PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] Under these circumstances, .

“Excluded the from Settlement Persons” Classesare , David Swartz , Briseno v. ConAgra Foods,Inc.

as ClassRepresentatives Virginia DeMarchi K ; (2)any member their of immediate families; (3)any

there are among differences the states, have plaintiffs demonstrated settlement and this Final Approval Orderand Judgment, the Court

publication in a periodical, ona website, oreven at an appropriate

the , AshleySalcedo, Scott Miller, Isabelo Pascual, Florin

evidence isundisputed that notice to class members . ] MINISTRATION

, purchased, in the United States, any individualized not AND JUDGMENT ; the Honorable R.Lloyd; Howard the Honorable and 4

designates theGutride LLP lawSafier of firm VAL OF CLASS ACTION SETTLEMENT , 844 F.3d 1121,1129(9th, 844F.3d Cir. 2017)

In re Toys RIn reToys Us A

ll between who persons for the Parties;for and (8)anywho persons

ice not was required by publication, rather than directly, b

the parties donotthe know names : (1) - Delaware, Inc. FACTA

the Honorable Plaintiffs Plaintiffs Seagram’s Ginger government entity,

or reasonably

April 1,2013 Jackie

Edward J.

Carlin ,

ut

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page105of231 action regarding shoes). 11 No. publication notice plan in class action regarding grocery store item); Co. reaching approximately 77.5percent ClassMembers); of No. notice plan reaching 77%); Ltd. each. ( reached at due process.The provided the best practicable notice to the members the of the it finding made in the order granting preliminary approval that the published notice plan addressesare whose noticepersons unknown, bypublication isreasonable.”). Litigation factors:following “ Churchill Vill., v. Gen.Elec. L.L.C. enumerated a similar to factors listc of 2 members equitably relative to each other (iv) any agreement required to be identified under Rule 23(e)(3); andthe (D) pr claims; (iii) including the fees, attorney's any terms proposedaward timing of of payment; of and method distr of account: (i) the and costs,risks, delay trial of and appeal; (ii) any the proposed effectivenessof negotiatedwas at arm’s length; (C)the relief the provided class for isadequate, taking into class representatives and class counsel have adequa hearing and that onfinding it reasonable, isfair, and adequate

IV. Prior to the amendments to Rule 23,which tookDecember effect 1,2018,the Ninth Circuit had , No. 12 , No.

, No. CV115935PSGAGRX, 2013WL 12124432,at Cal. *3(C.D. May7,2013)(approving CV115935PSGAGRX, a, No. 1:08

- [ A courtA may approve a proposedclass action settlement a certified of class onlya “after OF SE APPROVAL FINAL CV record cite - WP , 295 F.R.D. 438, 449 (C.D. Cal. 438,449(C.D. 2014)(“When the, 295F.R.D. court certifies a nationwide cl least 7 - - 0973 W KSC, 2014 WL0973 W KSC, 1670133,atCal. class 28, 2014)(same *5(S.D. Apr. for [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] CV - 65000, 2016WL 5338012,atOhioSept. 23,2016)(approving *9(N.D. notice plan ibuting relief to the class, including the method processing class of - 04936 5 C % of the settlement% of class mem ] ourt also finds, basedourt onthe also finds, evidence described above, that the ) Thi (1) the the strength of - LB, 2015WL 758094,atCal. *3(N.D. Feb.20,2015

s notices comports with due process.

In re:Whirlpool Front Corp.

, 361 F.3d 566,575(9th, 361F.3d Cir. 2004) TTLE onsider in evaluating a proposedclass settlement. .” Fed.R.Civ.23(e)(2). P. AND JUDGMENT plaintiffs’ MENT AGREEMENT 5 bers an estimated average of

tely represented the class; (B)the proposal

case; (2)the risk, VAL OF CLASS ACTION SETTLEMENT

– see also

loading Prod.Liab.Litig. Washer class and satisfied the requirements of See, e.g.,

after considering whether: the (A) Miller v. Ghirardelli Chocolate 2

In reviewing the proposed Arnold v. Fitflop USA,LLC

expense, complexity, and

Ellison v. Steven Madden, (enumerating the ) (approving similar

at least The oposal treats class -

C notice plan member ourt reaffirms ourt reaffirms 2

times See ass of of ass , ,

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page106of231 dismiss identified. process wouldbe required even after trial, because best guarante expert opined damages were zero. the purchase price the Products(averaging of appr damages regarding thethe ginger of form this case iswhether the the proposedsettlement fiduciary obligations to the class. determines only whether the settlement isfa settlement, 16 No. guidance proposal. core were accompanying participant; and (8)the reaction the proceedings; (6)the trial; (4)the amountin offered likely du self supported the settlement both partiesfor were of

pages of documents,pages of interrog - -

dealing. case concerns of procedureconcerns of and substance that shouldguide not designed "to displace any fac - For theFor detailed reasonsfurther below and discussedat oral argument, t , cv ed; , if any , if contested discovery motions, ration further of ” Accordingly, this Court applies Rule the 23while of framework “continuing to draw from thefrom Ninth Circuit’s and factors relevant precedent.” recovery p - consumer understanding and 05479 The settlement occurred only after the Court

and there the was possibility protracted of appeals. Even Plaintiff if [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

the Rule 23 .

- For example,For expert Plaintiffs’ opined that damages were approximately JST, 2018 U.S. Dist. LEXIS 213045 *13 (N.D. Cal. Dist. LEXIS 213045*13(N.D. Dec. 17,2018). 2018 U.S. JST, er

highly need not addresswhether the settlement isideal orthe best outcome, but

in the beverage Unit

“ experience counsel; and viewsof (7)t is fair andis fair appropriate under the , and there isnofactual basisto supportany allegation

Made with Real Ginger litigation; maintaining (3)the riskof class action

amendments, the Committee Advisory

after trial experi

settlement; (5)the extent discovery completed of

atories, admission, requests for of the classof mem See Hanlonv. ChryslerCorp.

enced; they

P roceeding to trial would have been costly

was lessthanwas the amount offered or its health benfits. numer tor, but materiality the representation of and the AND JUDGMENT ir, free of collusion,ir, of free and consistent with plaintiff’s ous fact andous expert depositions

extensive litigation rather the to court focus and the lawyers onthe provided detailed declarations explaining they why ” 6 bers to the proposedsettlement”).

was false, orlikely false, was to mislead consumers oximately $0.14per Unit), class members

VAL OF CLASS ACTION SETTLEMENT

Rule 23(e)(2) There wouldbe a battl

the decision whether to approve the he presence

and , 150 F.3d at, 150F.3d 1027.

including a contes

could not otherwise be explained that the amendments Hefler v. Wells Co. Fargo&

third

factors. factors. in settlement, and a claims - party discovery.

of a governmentalof status throughout the ,

review of review of and ;

he The main issuein recovery not was of collusionof or

s computation of

and the stage of succeded, e of thee experts of Defendant’s C

In the notes ourt finds thatourt finds ted motion to

thousands

Counsel 6% of 6% of the about

,

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page107of231 experienced mediator in the settlement that processconfirms the settlement isnon Cty mediator negotiations byexperienced 213045 *18. information to make an informed decision about settlement.” Canada Ginger Dry Ale, which settled onthe eve of Counsel also prosecuted a similar class action relating to theReal from “Made Ginger” on this action through dispositive motion practice, extensive discovery, contradict my previous and finding, reconfirm it here. and ClassCounsel adequately represented the interested the Class.Ihave of seen noevidence to case did not settle. evaluate the their strengths and weaknesses of respective positions andto the risks both sidesif that the par informed their viewsabout the claims in this case. The record thussufficientlydeveloped was ginger ale litigation dismiss. discovery. expert depositions, document production of settlement, the parties engaged in extensive factual investigation, which includ District U.S. former JudgeLayn Phillips.”). negotiations Hefler ., 2015WL 4606078,atCa *13(N.D. , 2018 U.S. Dist.LEXIS213045*19(“[T]he Settlement, 2018U.S. length the was arm's product of T In my order In addition, Fitzhe Ms. Plaintiff , his Court finds thathis Court finds the settlement isthe serio product of former U.S. District U.S. former JudgeWayne Andersen The parties also briefed various important legal in issues connection with the motion to ties were informed fully asto the viability the claims of and able to adequate [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

through twofull A. B.

, which settled trial daysbefore scheduled was to begin preliminarily approving the Settlement Represented theClass Have Counsel Adequately Class Representatives and Class The Settlement Was Negotiated at The Settlement Was counsel with the assistance of - day mediation and multiple sessions follow nry l. July30,2015)(noting that “[t]he assistance an of AND JUDGMENT - thousands of

Russell and her counsel have experience in other Further, .

7

trial. Counsel VAL OF CLASS ACTION SETTLEMENT before agreeingbefore uponthe the terms of

Class Counsel hasvigoro ,

of JAMS of

pages, interrogatories, and third , I found that, Ifound the ClassRepresentatives

a well Arm’s Length Arm’s Hefler . - us, non us,

respected and experienced

See, e.g, therefore “possessed sufficient sufficient therefore “possessed , 2018 U.S. Dist.LEXIS , 2018U.S. and formal mediation. Class - collusive, arms’ length - up calls supervised by

. , G. F.G. v. ContraCosta

that ed usly prosecuted

has further has further seven - collusive”)

ly fact and -

party ;

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page108of231 1026). in settlement.’”offered advisory committee is expected to provide to class members higher fees. thatfinds Classcounsel did not compromise the and self with Unitedsession former States District Nathanael this District of Cousins Real from “Made Ginger” claim onCanada Ginger Dry Ale, whichapproved was byJudge extract ginger real from “flavor flavor,” ginger “real extract,” state not, need but may, packaging, future example, in used extract flavor the that evidence thre following the of one with combination in ginger,” “natural or ginger,” “real “ginger,” phrases: and words following reached and for bargained parties any of Labeling practices labelling Court relief.” ancillary of form a is restitution while practices, business unfair from ,

51 Cal. 4th 310, 337 (2011). 337 310, 4th Cal. 51 Further, the Court notes that this settlement follows “Injunctions are the primary form of relief available under the UCL to protect consumers protect to UCL the under available relief of form primary the are “Injunctions Although not T - dealing he Court hasindependently and carefully reviewed collusion the anyof record signs for [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

C. Defendant’s

, and finds that, and finds nocollusion Seagram’s

’ n precludes and s notes to 2018amendment. “The Court therefore examines ‘the amount 1. articulated The Relief Hefler e words e

Seagram’s

supplier, Givaudan Flavors Corpo Flavors Givaudan supplier, Ginger Ale. Ale. Ginger a) Recovery totheClass

, 2018 U.S. Dist.LEXIS213045*18(quoting, 2018U.S.

as a separate factor in Rule 23(e), : “taste,” “extract,” or “flavor.” or “extract,” “taste,” :

, which to theClass agreement that the that agreement it

T

Injunctive R Injunctive Ginger Ale. Thus, under the terms of the injunction, as an as injunction, the of terms the under Thus, Ale. Ginger he from is a central concern. S Consistent with the evidence discovered in the case, the case, the in discovered evidence the with Consistent AND JUDGMENT also ettlement requires ettlement Judge Wayne Andersen sn te hae “ phrase the using or self was thewas negotiations product of and mediation

is Adequate

8 claims the settlement of class in exchange for

- elief dealing VAL OF CLASS ACTION SETTLEMENT

Defendant “

rea

l ginger taste,” “made with real ginger real with “made taste,” ginger l

occurred. Specifically, the Court a similar settlement involving the

”

Defendant to permanently change permanently to Defendant

ration, utilized ginger root to make to root ginger utilized ration, Fed. R.Civ.23(e)(2)(C) P. ,” ae ih el Ginger Real with Made

may or All of this is consistent w consistent is this of All . “

[t]he relief that the settlement

“natural ginger flavor.” ginger “natural , at , its

option, use any of the of any use option, Hanlon Kwikset v. Superior v. Kwikset , 150 F.3d at, 150F.3d

- i any in ” (D) (D) ith the ith

The its

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page109of231 Household, and upto $ makea Class Membersmay significant value both class members for and the general pub 112 F. t court opportunity to make about expressfindings value that of relief. valuableafford relief, much byinjunction, that will benefit the class;” remanding to allow district the class. All Claim Label Permitted Approved the of combinations s that agree Parties The line. ingredient “na extract,” flavor court include also shall Injunction Permanent andi Defendant challengesthe methodology simulator thatdetermines thevalueconsumersplaceon“ productattributes),andtheresultsareinput intoamarket the claim(amongothervarying thatshows survey period for average of$0. as described below. after the payment all of claims, the residual shall be paid Set increased pro purchase of $40.00 (100Units)with proof he value goesto the general public. tlement all If valid Fund. claims are increased pro of this isconsistentof with the Court’sunderstanding the discovery of and evidence in the case.

Supp. Defendant It isappropriate for Plaintiff’s evidenceshowedthatits See Allen

expert discovery [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

- 3d 993, 1005 (N.D. Cal.3d 993,1005(N.D. 2015 rata, upto times five the original amount, there if are claims too few to exhaust the 14

per

also respondents hypothetical productsatdifferingprices, somewithandwithout respondents hypothetical , 787 F.3d at, 787F.3d 1225(citin

tural ginger extract,” “natural ginger flavor,” or “ginger flavor” in the label the in flavor” “ginger or flavor,” ginger “natural extract,” ginger tural Unit

agree 10 , whichisbasedona . 0

the 0 ( in connectionwith b)

d to claim forrestitutionof twen

C ourt create asettlementfundof$2,450,000againstwhichSettlement ty See, e.g. - to consider Monetary Recovery five five uch AND JUDGMENT . Units ) g l ikely ikely

As statedAs earlier, these payment amounts will be ts expertstestifiedthatbecause sodasare“line (“The Court finds that(“The Court finds the injunctive relief will have

, Bluetooth approved examples shall not limit other usages and usages other limit not shall examples approved In reTracFone Unlimited Service Plan Litigation, - class certification conjoint approved use of “ginger extract,” “natural ginger “natural extract,” “ginger of use approved ) per Household without proof of purchase ) per of Householdwithout proof 9

the injunctive relief inthe assessing benefit to “best case” recovery attrialwouldbean “best case”recovery

$0.40 VAL OF CLASS ACTION SETTLEMENT -

rata and there still remains money left over in conjunction with other wo other with conjunction in ) (“As a whole, the) (“As settlement appears to

model

cy pres per

lic.”). Made withRealGinger Unit prof

. Theconjointmodelusesa to twocharitable organizations , with a minimum $2.00per of f

ered by Plaintiffs ered by This istrue even some of if rds or phrases or rds ” cla

during the

im.

- and

.

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page110of231 the settlement, aswell could certified amount the award of wouldbe more than nominal. reasonable persons;and (3)that damages orrestitution shouldbe that awarded so, or,if the reasonable persons;(2) that the alleged misrepresentations and omissionswer other advertising and marketing materials), as challenged were likely byPlaintiffs, to deceive there letalonethebest recovery, there weresubstantialobstaclestoany afraction Although the$2.45millionSettlementFundisonly Defendant didnotpossessrecordsthatidentifiedtheretailpurchasers. totheactualclassmembers,as touseaclaimprocessdirecttherecovery would benecessary the of priced,” therecouldbenopremium,sodamageswere$0.00. products, including retail thefrom criticism cross of consumers misleading, material to consumer purchasing decisions, and caused a price premium at a trial. Each required expert analysis to establish that the “ states had not yet faced sucha motion, norhad a class been certified. to trial, and adequate, claims in and this defenses case, the that Court finds this

would

state $

Based onthe The total“best Although Plaintiffs 0. and the , and the Court had not yet decided whether cl Defendant’s 14 . As detailed. As motion, in Plaintiffs’ each these expert of

a claim relief. for

[PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] be dif best particularly given the amou - - case examination and could have been discounted bythe jury ficulties establishing: (1)that statements Defendant’s onthe product labels (and 2. record nt made ava

own expertsown regarding the real worldpricing of - damages

as case” scenariofordamageson - the familiarity line pricing, cas Litigation The S ’

evidence California

set forth by Plaintiffs’ expert byPlaintiffs’ set forth t r ilable to claimants. ength of Plaintiffs’ Case and Risk of Continuing ofContinuing Risk ofPlaintiffs’ength and Case overall claimed actual damages amount

and argument submitted bythe parties in connection with claims survived the Court t market doubt onPlaintiffs’ AND JUDGMENT 10

has developed over the past twoyears with th Also, priorAlso, to settlement, n VAL OF CLASS ACTION SETTLEMENT

a nationwidebasiswas aimants in states other than California a motion to dismiss

monetary recovery s. s. Made with Real Ginger Thus, the recovery here Thus, therecovery (

4.2 Even afterasuccessfulverdict,it - methodologies subject to was %) case recovery.

Seagram’s of thisbest

- Plaintiffs faced Plaintiffs simulation method of . , Further, evidence , risks of proceeding of , risks

the claims other from is fair, reasonableis fair, e material to $58 o class

-

Ginger Ale In particular, case number, million.

paid by ” claim was had

serious is in excess been

risk e

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page111of231 23(e)(3). The parties have reasonable. identifying retail thandifferent that simple claim with basic form questions about class membership reasonable. establishing class appropriately that a class action settlement adequate, isfair, and reasonable class whenfew v. GeneralLLC Electric, Settlement Administrator objections. Incomparison, there were ____ the namedawards for are plaintiffs appropriate the for they each paid for purchase and makes the settlement administratively efficient. size orretail location, the relief uniform makes it claimants unnecessary for to much testify how overpaid by6 alleged price premium per product.damages Plaintiffs’ theory isthat every class member andfair equita All class members are entitled to the same relief under the Settlement. This proposal is The notedAs As Out of an Out of noted above

Class Membersseek who benefits u Court [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] D. E. % or ble because the $0.40per product ref

- in section - purchasing class members. estimated

wide damages. is required to consi required after trial, asDefendant isa wholesaler and directly hasnomeans of 6 . 5. 4. 3. 33 Other The ProposalMembers TreatsRelative Class Equitably toEach The Response of Class Members ofClass The Response , the Court concludes that the %. Even though products may have been soldat prices different bas

. This is 361 F.3d 566,577(9th361 F.3d Cir. 2004)(explaining that a court may infer Other Agreements Fees ofAttorneys’ The Terms oftheProposedAward Effectiveness Method. ofDistribution not identified any suchagreements. IV ____

below, the the attorneys’ Court proposedaward finds of fees

million class members, there were __opt

an overwhelmingly positive response. der agreements “any required to be AND JUDGMENT

Valid C .

nder the Settlement 11

und is far greaterund isfar than the $0. laims VAL OF CLASS ACTION SETTLEMENT distribution method and claims process

reasons stated below.

.

, according to the the report of

.

The processwouldbe no

must only submit a relatively identified under Rule See - outs and __

Churchill Village,

14 The incentive

average

ed on is

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page112of231 amounts are reasonable and authorizes payment the invoices, of the in from full, Settlement Fund. this invoice isthe amount all for taxes the due from Settlement The that Fund. Court finds such expected to be incurred through the completion itsin work, the of amount 9.378 where notice relied onmedia notice exclusively, the claims rate ranged between 0.002%and 2016 WL 4474366,atCal. *4(N.D. Aug class membersfew object to it.”) court may appropriately that infer a class action settlement adequate, isfair, and reasonable when been favorable); a basisuponwhich sufficient a court may conclude that the reaction to sett 2017) (holding “the indisputably objections lownumber and of opt members on a percen that the settlement isnon 2015) (noting that “[t]he assistance an experienced of mediator in the settlement processconfirms Members’ detriment.”); application does not evidence collusion andnot was obtained byClassCounsel to Class agreement1047834, atCal., *4(N.D. Mar.17,2017(“Volkswagen’s not to opposethe “Clean Diesel” Marketing, Sales Practices, andProducts Liability Litigation their asa percentage fees recovery of Plaint fund, overseen by does not opposethe request. fee The record isundisputed that the VI. V.

%, Class counsel requests a fee FEES ATTORNEY’S The Claim Administrator hassubmitted an invoice its expenses incurred for to date and OFCOSTS ADMISTERING Where a settlement involves a common courts typically fund, award attorneys’ based fees with amedian rate of0.023% object to it) tage the total of settlement. iffs’ counsel had an incentiveiffs’ to maximize the class recovery in order to maximize [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] two

Cruz v. SkyCruz Chefs, Inc. experienced mediator ; Zepeda v. PayPal, Inc G. F.G. v. ContraCostaCty - collusive”).

; s e award of $ award of e . (

also

s

”) THE SETTLEMENT Anderson

, 2014WL 7247065,atCal. *5(N.D. Dec. 19,2014)(“A See State of Fla. v. Dunne and that were coming asfees the only from settlement . 25,2016

(emphasis added). AND JUDGMENT , e.g., In re Carrier IQ, Inc., Consumer Privacy Inc.,, e.g.,IQ, Consumer InreCarrier Litig ., 2017WL 1113293,atCal. *16(N.D. Mar.24, 735,000 12

Decl. ., 2015WL 4606078,at *13(N.

)

(stating that, an “[i]n settlements analysis of VAL OF CLASS ACTION SETTLEMENT

in attorneys’ and costs.Defendant fees ¶¶

____

.)

See, e.g., InreVolkswagen , 915 F.2d 542,545(9th, 915F.2d Cir. settlement - outs, standing alone, presents of $___ of lement bythe class has

negotiation was , 2 017 WL __. Included D. Cal.D. July30,

., in

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page113of231 based onthe total benefits being made available to class members rather than the amount actually determination). consider“should the value the injunctive of relief asa ‘relevant circumstance’” in its fee inj aterms settlement of agreement, especially one in which, ashere, the settlement provides for relief. To the contrary, wehave stated that courts cannot with ‘judge confidence the value the of 2014) (“[W]e have never required a dist N. Am.,Inc. need not determine a specific monetary value associated with that relief. 2012) v.Hartless Clorox Co., the settlement terms. the settlement,of courts consider both the monetary and non Cir. 2003) theattorney’s recovery); 33%of award fee of 1990) 268,272(9thF.2d Cir. 1989). any unusual circumstances involved in the case.” . applyingsuch relief the aspartof the purposes value of a percentage common for of fund method benefits deriving injunctive from relief can be accurately ascertained .courts [may] include 1311; value, including the monetary and non instead amount of being made available)). “district court abused its discretion in basing attorney award fee onactual distribution to class” 2007) claimed.

. .”). unctive relief.’”); . ; see also (citing

The Court shouldtake into account the value injunctive of see alsoInrePac. Enter In the Ninth Circuit, the benchmark an attorney the for total is25%of fee settlement

The benchmark percentage “can then be to adjusted upwardor downward account for Young v.Young Polo Retail, LLC

(affirming attorney’s fee award of 33% of the attorney’s(affirming 33%of award fee of , 753 F.3d 918,924(9th, 753F.3d Cir. 2014) [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] Williams v. MGM

Staton

Additionally, Ninth Circuit precedent requires Staton v. Boeing Co. , 327 F.3d , 327F.3d See, e.g. 273 F.R.D. 630, 645 (S.D. Cal. 630,645(S.D. 2011), 273 F.R.D.

, Many cases that have found between the 30%and 50%of - Staton v. Boeing Co., s. Sec.s. Litig. at 974(“[W]here the value to individual class members of Pathe Co. Commc’ns , 2007 U.S. Dist.LEXIS27269,atCal., 2007U.S. *23(N.D. Mar.28, - monetary recovery. rict court to assigna monetary value to purely injunctive , 327 F.3d 938,974 (9th, 327F.3d Cir. 2003)(a district court still AND JUDGMENT

, 47 F.3d 373,379(9th, 47F.3d Cir. 1995)

Morris v. Lifescan,Morris Inc. vacated onother grounds 13 Paul, Johnson,Al

VAL OF CLASS ACTION SETTLEMENT 327 F.3d 938,972 327 F.3d , 129 F.3d 1026(9th, 129F.3d Cir. 1997)

recovery). When determining the value See Six Mexican Workers - monetary benefits conferred under aff’d,

courts to award class counsel fees relief whe

ston & Huntv. Graulty,ston & 88 473 F. App’x. 716(9th App’x. Cir.473 F. , 54 F. App’x 663,664(9th App’x , 54F. - 74 (9th Cir. 2003) , 772 F.3d 608(9th, 772F.3d Cir. See n assessing fees n assessing

Laguna v.Laguna Coverall

(affirming (affirming

, 904 F.2d at, 904F.2d (finding (finding

; , but 6

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page114of231 5700403, at *5(N entirely discretionary ..”) v. NobelYamada Biocare Holding AG 2017) (noting that district court did b awarded via a cross obligated to consider ClassCounsel’slodestar in evaluating the percentage to the be fund of total relief in the settlement but isdifficultto value monetarily. here isagreeing to a permanent million, but the relief primary under of the form UCLis the benchmarkthis to 25%,Ifind be reasonable. of The total monetary relief isunder $10 request the settlement 30%of awardfee of labeling in a food fund class action). also Johnsonv. Gen.Mills, In Vranken v. Atl. Richfield Co. common isan appropriate fund range whenthe settlement islessthan ten fund million. 4th 615, 622 III Serrano complexity the the issues, of results obtained and the contingent riskpresented.” account a variety other including factors, of the quality the representation, of the novelty and it may increase ordecrease that amount byapp Beneficial California, Inc. the reasonably hours number expended of bycounsel reasonable. discretion to class and can encouraged and work protracting unjustified the litigation.” necessarily achieve the proportionality, stated of purposes predictability and protection the of

Under the lodestar approach, “[t]he lodestar (ortouchstone) isproduced by multiplying cross A amounts the to monetary 30%of value the settlement. of , 20Cal. 3dat 48

[PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

; perform aperform cross Beasley v. Wells FargoBank, - check on .D. Cal..D. Oct. 18,2013) - check. Class , 82Cal. 4th App. 19,26(2000) In reGoogle Referrer HeaderPrivacy Litig. ; - - , 901 F. Supp. 29 Supp. , 901F. 49 check and determine Bolton Corp. v.Nursing U.S. c. Counsel’s lodestar alsothe supports f ; , 2013WL 3213832,at Cal. *6(C.D. June17,2013) injunction to change its Ramos v.Ramos Countrywide Inc Loans, Home ut not was required to doa lodestar method cross , 825 F.3d 536, 547 (9th Cir. 2016) (“[A] cross 536,547 (9th, 825F.3d Cir. 2016)(“[A]

(“I AND JUDGMENT 235 Cal. 3d1407,1418(1991) App. n a common case, a fund lodestar method does not 4, 297 lying a positive ornegative “multiplier to take into 14

Class Counsel’s fee hereClass Counsel’sfee iseminently - VAL OF CLASS ACTION SETTLEMENT 98 (N.D. Cal.98 (N.D. 1995) by a reasonable hourly rate.” label. That isa significant the portion of

an injunction, not . Once the court the hasfixed lodestar, , No. C12 , No.

Although a slight increase on ee award. - 4466 LB, 2013WL

, 869 F.3d 737(9th, 869F.3d Cir. Here Plaintiffs’ Here Plaintiffs’

). . (2000)82Cal. App. (collecting cases); restitution.

Nevert

The Court isnot

(multipliers are Id heless, Iretain . Lealao v. ;

(awarding a -

see also

- check is Defendant check); See fee Van see

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page115of231 “Affidavits of the attorney plaintiff[’s] of and other“Affidavits attorneys regarding prevailing in the fees rates, the which attorneys for involved range $___to $___per from hour.( Plaintiffs’ preparations, allowed Counsel the trial eve of and Decl., __ ¶¶ does not include activities byClassCounsel in related the settlement reviewed bythis Court. disputes; expert discovery; negotiating the settlement and preparing the necessary papers to have management; substantial discovery including document review, depositions, and discovery investigating and filing the complaint; motion opposingDefendant’s to di $_____. that benefit the public interest). used to compensate and loss, to the counselencourage riskof for counsel to undertake actions associate attorney services paralegal and $150for services). March 12,2010) graduate); a 2000graduate,per hourfor a 2007graduate, $350 per hourfor a and 2005 $475per hourfor Cal. DOT as reasonable(finding $650per Wren v. RGISInventory Specialists Counsel’s backgroundattorneys Plaintiffs’ and experience. of ( sta Steelworkers of Am. v. Phelps DodgeCorp. attorney,plaintiff[’s] are satisfactory evidence the prevailing of market rate.” community, and rate determi ff at the Gutrideff these firm, Safier hourly rates are equal to market rates in SanFrancisco for Plaintiffs’ Counsel calculatedPlaintiffs’ their lodestar usingPl Pl

(Safier Decl.(Safier ¶ aintiffs’ Counsel’slodestaraintiffs’ through the date this application of isapproximately , 2010 U.S. Dist. LEXIS 141030 (N.D. Cal. Dist.LEXIS141030(N.D. Dec. 13,2010) , 2010U.S. Counsel isrecovering their lessthan 60%of lodestar there. Suzuki v. Hitachi ) [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] .

That case involved very similar legal claims to those at issuehere. It settled only on

(finding asreasonable(finding attorneys Plaintiffs’ Plaintiffs’

______). This includes, without limitation, in Counsel efforts Plaintiffs’ , 201 nations in other cases, particularly those setting a rate the for Counsel

to gain expertise and litigate this matter more effi

hour for a 1993graduate);hour for 0 U.S. Dist.LEXIS 22908,2010WLCal.0 U.S. 956896*3(N.D. , 2011 U.S. Dist.LEXIS38667 , 2011U.S.

’s vigorousprosecution’s o (Safier Decl.(Safier ¶¶ AND JUDGMENT , 896 F.2d 403,407 (9th, 896F.2d Cir. 1990) 15 ’

fees rates of $650 for partner $650 for rates services,fees of $500for VAL OF CLASS ACTION SETTLEMENT

ginger ale _____)

Californians forDisability Rights v. aintiffs’ Counsel’sregularaintiffs’ billing

. Of further note,lodestar further Plaintiffs Of f thatf case, including trial Safier

litigation in (N.D. Cal. 1,2011) (N.D. Apr.

(finding as reasonable(finding $570

Decl., __); ¶¶ smiss; case Safier Decl.,Safier __). ¶¶ this District United . For attorneys. For and ciently. see also

Further, .

(

Safier

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page116of231 multiplier to account various including, factors, for compensate the the risks for regularly firm undertakes. This Court hasdiscretion to apply amount it had worked.Where doessucceed, afirm plaintiff’s therefore, a multiplier servesto case. Frequently, it gets because a law that firm oncontingent focuses in Cal. 294,298(N.D. 1995) (“Multipliers Supp. 901 F. Ninth Circuit’s presumptively acceptable 1.0 range of Fargo Bank, N.A. multipliers ashigh as5.2among “theacceptable range of lodestar multipliers”); common cases”); fund at290 F.3d 3.65multiplier 1051(finding to be “within the r deserved and at the what courts lowend in of this Circuit routinely award. $ thatfinds Plaintiff experience who the rates charged are reasonable and commensurate with those charged byattorneys with similar IV) (Serrano v.Serrano Unruh Riles Downey Community Dev. Comm’n Moses importance other injunctive of relief obtained. value class benefits obtained, of the efficiency and skill displayed byclass counsel, and the establishing eligibility an award), the for novelty and compl award theeventual (both from view point of of victory onthe merits and the view point of of 735,000

lodestar , 43Cal. 3d 1281,1294n8(1987) , 24Cal. 4th 1122,1132(2001) Plaintiffs’ Counsel’scurrentPlaintiffs’ combined lodestar is$______.ClassCounsel’srequeste Multipliers are appropriate in contingent T he Court finds thathe Court finds the hours

fee thusincludesfee a slight lodestar multiplier ___.This small of multiplier iswell

awards for lengt awards for [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] appear , 303 F.R.D. 326,334(N.D , 303F.R.D. ’ s counsels represented their clients with skill and diligence and obtained an Noll v. eBay, Inc. in this Court, and that the slight multiplier iswarranted.

nothing orisawarded equal fees to only a small percentage the of hy and complex class action litigation.”). , 32Cal.3d 621,625n6(1982) , 196Cal. 3d983(1987) App.

; Class Counsel City of Oakland ; , 309 F.R.D. 593, 610 (N.D. Cal. 593,610(N.D. 2015) (listing, 309F.R.D. Press v.Press Lucky Stores,Inc AND JUDGMENT . Cal. 2014) (“A 2.83multiplier. Cal. 2014)(“A within falls the - fee classfee action cases doesnot get paid in every See III Serrano 16 - fee classfee action cases like this one. That is

inter alia

VAL OF CLASS ACTION SETTLEMENT claimed were reasonably workedand that

– in the 3 4.0.”); , 203Cal. 3dat App. 78

exity the questions of involved, the ange of multipliersange of applied in , the contingent nature the fee of – . Each these exists factors of here. Van Vranken v. Atl. Richfield Co. , 20Cal. 3dat 49 4

range , 995n11; ., 34Cal. 3d 311,(1983)

are common

See, e.g. see al ;

; Dow The Court also Dyer v. Wells Ketchum v. so MariaP.so v. , Vizcaino ney v. Cares

a , 322; , d ,

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page117of231 $ cost item oramount. Accordingly, records that document their claim. (Gutride Decl. Ex. 23(h). inc (approving reasonable costsin class action settlement). compensable Costs under Rule 23(h) contingency matters.); attorneys may recover reasonable e Fed. R.Civ.23(h); P. asattorneys’Fund, pursuant to fees the the terms Settlement of Agreement to, trial. excellent the result class, for taking into account the possible outcomes at, and Fitzhenry Plaintiff $5,000 for Info. Solutions determine whether they destroy the adequacy the class of representatives.” Circuit recently emphasized that district courts must “scrutiniz[e] all general.” bringing the done work onbehalfclass, of to makefor financial upfor orreputational riskundertaken in awardsare2003). “Such discretionary .and are intended to compensate class representatives plaintiff expended in pursuingthe litigation to which the class hasbenefitted those actions, from .[and] the amount time the of and effort includingfactors “the actions the plaintiffhastaken to protect the interests the class, of the degree VIII. VII. ______lude “nontaxable coststhat are authorized by law orbythe parties’ agreement.” Fed.R. Civ. P.

The district court must evaluate named awardsindividually, plaintiffs’ usingrel REPRESENTATIVE CLASS Here, class counsel seeks reimbursement Class counsel also are entitled to reimbursement reasonable of out COSTS LITIGATION

Accordingly, the amount following shall be paid to ClassCounsel

the action, and, sometimes, to recognize their willingness to act asa private attorney Rodriguez v. West Publishing Corp.

in costs. [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] , 715F.

see Harris v. Marhoefersee Harris 3d 1157,1163(9th Cir. 2013). Van Vranken v. Atl. Richfield Co. - Russell, a

xpenses that wouldtypically be billed to paying clients in non the Court

SERVICE nd $2,500 for the remainingnd $2,500for a total named for Plaintiffs, AND JUDGMENT .”

finds thatfinds these supportan submissions award , 563 F.3d 948,958 , 563F.3d Staton v. Boeing Co. , 24 F.3d 16,19(9th, 24F.3d Cir. 1994)(holding that 17 of $ of

AWARD VAL OF CLASS ACTION SETTLEMENT ______Here Plaintiffs areHere Plaintiffs seeking an inventive of __ ). No obj ). No

, 901 F. Supp. 294, 299 (N.D. Cal. 294,299(N.D. 1995) Supp. , 901F. S

in litigation expenses and provide

- ection hasbeen made to any 959 (9th Cir. 2009).The Ninth , 327 F.3d 938,977(9th, 327F.3d Cir. incentive awardsto - of : from thefrom Settlement Radcliffe v. Experian $______- pocket expenses. risks of proceeding of risks

evant

-

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page118of231 Fund reached.was Decl., __.) ¶ experiences and claims to enable them to this join case and represent a nationwide class. other named all Plaintiffs provided Class Counsel withinformation sufficient regarding their conducted searches of Decl., __.) ¶ information throughout the litigation, over whichprogressedfor hasnow costs. Defendant’s $20,000in incentives.of benefit ofthe class.” unclaimed fundtoitsnext best class memberswhodidnot makeclaims and pursuant to the cy presdoctrine, in equal sharesto Settlement Agreement, of IX. Valid ______

: If If

CY PRES PRES CY theFor reasonsstated Plaintiff after

Claims

[PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED]

payment of And allAnd remained Plaintiffs actively involved in the litigation after the Settlement She (Safier Decl.,(Safier __.) ¶

Fitzhenry (including pro g. f. e. d. c. b. a.

answered interrogatories production. and requests for

(Safier Decl.,(Safier __.) ¶ Nachshin v. AOL, LLC her to Plaintiff to Plaintiff to Plaintif to Plaintiff to Plaintiff to Plaintiff money remains in the Settlement Fund, to Plaintiff

the amounts in set forth

- personal records Russell above . The - compensation rata increase of f

took onsubstantial risk,most importantly bearing the riskof Kristina Hoffman Florin Carlin Isabelo Pascual Scott Miller Ashley Salcedo David Swartz Jackie Fitzhenry cy pres , the amounts following shall be paid

Fitzhenry cannot be easily located oridentified,inorderto“putthe cannot beeasily AND JUDGMENT

doctrine isappropriateforacaselikethisone,where and , 663F.3d1034, 1038(9thCir.2011) (citing

use, :

such payment) the in asset Part forth IIIof : sat for a deposition.sat for 18 $______:

$______

sections $______: - :

e.g., National ConsumersLeague

Russell $______$______- : Russell VAL OF CLASS ACTION SETTLEMENT

$______

for theaggregate,indirect, pr

VI

also workedwith cou

: $_____ -

VIII

that remainder shall be paid

,

above, (Safier Decl.,(Safier __.) ¶

(Safier Decl.,(Safier __.) ¶ from thefrom Settlement two

as well as the payment

years. , Washington, DC nsel to provide ospective (Safier (Safier

The Masters (Safier (Safier ,

She

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page119of231 behalf ofaggrievedconsumers. cases, includingpetitioningagenciestotakeactionagainstproductmislabeling,andfilingsuiton https://www.nclnet.org/food_policy?page=3 their families”andtoencourage“honestlabeling”( According toitswebsite“NCLisworkinghardhelpconsumersmakesmartdecisionnourish organization, representingconsumersonmarketplaceissues at 1307). interests ofthesilentclassmembers....”663F.3dat1036(citing statutes,andthe account forthenatureofplaintiffs’lawsuit,objectivesunderlying Citrus Growers class actionsettlement,courtslooktofactorssetforthin 821 (9thCir.2012) asubstantialnexustotheinterestsofclassmembe “bear[] v. Wilhelmina ModelAgency,Inc., following, “flavor.” “natural ginger,” Defendant in any Labeling any of on theEffectiveDateandcontinuingthereafter,from § §1715,with the 2005,28U.S.C. documentationFairness Act of required by28U.S.C. XI. X.

1715(b)(1

______National ConsumersLeague The record establishes that counsel served the required notices under the ClassAction CLAS WITH COMPLIANCE Pursuant tothetermsof INJUNCTION

For example,For the words The Court finds the cy presrecipientsappropriateforthefollowingreasons. The Courtfindsthecy

, at the words - [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] 8). its

, 904F.2d is anon

option in combination the with onethree following of “taste,” words: “extract,” or cert. denied,

“ginger,” “real ginger,” or“natural ginger” (the Permitted “Approved Label Seagram’s

, to useany - profit organizationthatstatesit“

1301, 1305(9thCir.1990).

134 S.Ct.8(U.S.2013

“taste,” “extract,” or“flavor”

Ginger Ale.

(“NCL”) 473 F.3d423,436(2dCir.2007)) of the following of Settlement S ACT S AND JUDGMENT

is ) . NCLalso

the “nation’soldest”

A ION FAIRNESS ACT FAIRNESS ION This injunction hereby expressly permits 19 greement, Defendantshallbeenjoinedbeginning

see words and words VAL OF CLASS ACTION SETTLEMENT using the phrase “

Specifically, the Specifically,

)

Six (6) MexicanWorkers v.Arizona .

rs.” performs leg In evaluating a cy prescomponentofa In evaluatingacy

such as ______Lane v.Facebook phrases may be used, Six MexicanWorker consumer advocacy consumer advocacy food healt . A cy pres remedy must presremedy A cy :

al workonfoodlabeling cy pres cy

Made with Real Ginger “ginger,” “real ginger,” or prece

h andlabeling remedy “must remedy , 696F.3d811, ding, or s,

904 F.2d

.

”

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page120of231 the Effective Date the newlabel shall begin to be phased into the market onorabout the shall not require the withdrawal ordestruction any existing of labels the existing label and introduce the newlabel asthey sell through existing stock. The sell wholesalers a injunction hereby California and other states, in conjunction with otherorphrases words examples shall not limit other usagesand combinations the Approved Permitted of Label Claim extract,” “natural hereby expressly permits “ginger extract,” useof “natural ginger extract,” flavor “natural ginger realginger from flavor,”ginger “flavor extract,” examples permissible of label claims: “real Claim”). product orproductsotherthan manufacture, marketing, labeling,advertising,and/orsaleofany issued pursuantheretoshall beinterpretedt neithertheSettlementAgreement northeinjunction setforthinthis section.Similarly, expressly limitationsonthefuture marketingorsaleoftheProductsexceptas interpreted toimposeany the Effective Date containing the phrase “ printingfrom labels creating and from other marketing liable de minimis for o sales of neither provided, however, that because United States andAdministration’s Food Drug deadline newnutrition for fact panel changes); later of Finally, n Finally, Because this isa nationally Defendant

By way of example,By wayof the injunction shall include these ApprovedPermitted Label Claim

120 daysafte [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] nd retailers of or either theSettlementAgreementnorinjunction issuedpursuanth

ginger flavor,” or“ginger flavor” in the label ingredient line.

June 1 expressly allow nor any bottler, distributor, wholesaler orretailer wouldbe penalized orbe or or June 1,2019 Made with Real Ginger , 2019 r the Effective Date Defendant Seagram’s , and the transition to newlabels shall be completed nolater than ld stock after that date. Defendant s . -

Defendant distribute

need Ginger Ale Productsto sell AND JUDGMENT .

s

o impose any limitations onthecomposition, o imposeany ginger cannot control all old stock in sources of the m

a reasonable time transition. for Accordingly, this d and sold set of Productsbyretailersd and soldset of across or

and ” onthe Productsafter the

20 January 1,2020 and

its tast

VAL OF CLASS ACTION SETTLEMENT

“natural ginger flavor.” packaging suppliers, bottlers, distributors,

e,” “made with real ginger extract,” “real

This i collateral (e.g. advertisements, websites)

njunction (or any extension further the of - through all remaining stock of

or recall Product of later of

does later of

prohibit

The injunction 120 daysafter the S uch 120 daysafter

ereto shallbe Defendant approved

.

-

through Instead, arket,

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page121of231 Defendant’s products,andDefendant’s services (2)any affairs; and orbusiness all other claims, liens, Defendant, onthe other hand, have had in the past,have, ornow related in any manner to t in any wayrelate to, the allegations, claims, orcontentions that onthe Plaintiffs, one hand, and federal statute orcommon law orreg could have been, asserted in the Litigation, whether based uponany violation any state of or whatsoever, whether legal orequitable orotherwise,that orunknown, known actually were, or actions, action, causes of rights, duties, obligations, damag barred instituting, from maintaining, orprosecuting (1)any and all claims, liens, demands, completely, and irrevocably released and discharged forever each other and shall from be forever and federallaws. shall beint those fallingwithinthedefinitionof“Products”setforthinthisorder. in the Litigation and that arise or relate out of to the Allegations, orto any similar allegations or common law, regulation, principle equity of orotherwise, th whetherunknown, arising under any international, federal, state orlocal statute, ordinance, or liabilities any nature of whatsoever, whether legal or equitable orotherwise, or known any and all claims, liens, demands, actions, action, causes of rights, duties, obligation unconditionally, completely, and irrevocably released and discharged the Released Parties from manner to any and all Released Parties’ orotherwise. products, services affairs, orbusiness one hand, and Defendant, onthe other hand, have had in the pasthave, ornow related in any whatsoever, whether legal orequitable orotherwise, known demands, actions, action, causes of rights, duties, obligations, damages orliabilities any nature of XII.

Plaintiffs onthePlaintiffs one hand, and Defendant onthe other hand, shall have unconditiona By op RELEASES; EFFECT OF RELEASES; erpreted tointerferewith eration this Orderand Judgment, of [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] B. A.

Releases by Releases by Class RepresentativesClass Class MembersClass Defendant’s THIS ORDER THIS ulation orotherwise, orarise directly orindirectly or out of, AND JUDGMENT 21 Settlement Class Members shall have

obligations to comply withallapplicablestate obligations tocomply

VAL OF CLASS ACTION SETTLEMENT

es orliabilities any nature of

at were, orcould have been, asserted or unknown, thator unknown, onthe Plaintiffs,

Nothing inthisparagraph s, damagess,

lly, he

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page122of231 Plaintiffs, Defendant and Plaintiffs, similar, comparable, orequivalent to section the California 1542of Civil Code, which provides: anyby any state lawthe of Unite of relinquished, to the fullest extent above, Defendant, and Settlement Plaintiffs, Released Claims against Released Parties. Settlement ClassMem shall be norelease claims personal of allegedly injury for the arisingProducts. useof out of formulation the Produ of claims Judgment and the Settlement Agreement, or(b)is any wrongdoingor liabilityCounsel, orof the orentities persons of released under this Orderand orevidenceadmission of, of, pursuant to orin furthe other Party. Neither the Settlement Agreement norany act performed ordocument executed or admission any byany fault, Partyliability of orwron theadmission truthany of claims orfalsity of heretofore ordefenses made oran acknow pr federal orstate statute, case law, rule orregulation relating to limitations onreleases. significance these Califor waivers of of o ceedings connected with the Settlement Agreement, shall be deemed orconstrued to be an By operation this Orderand Judgment, of that No actionNo taken bythe Parties, either previously orin connection with the negot OR HERSETTLEMENTWITHTHEDEBTOR. HIS AFFECTED MATERIALLY HAVE MUST HER OR HIM BY KNOWN AT FAVOR HER OR HIS IN EXIST TO SUSPECT OR KNOW NOT DOES CREDITOR THE WHICH CLAIMS TO EXTEND NOT DOES RELEASE GENERAL A

could have been asserted in the Action regarding the labeling, advertising, or [PROPOSED] ORDER GRANTING FINAL APPRO FINAL GRANTING ORDER [PROPOSED] D. C.

H TM O EEUIG H RLAE WIH IF WHICH RELEASE, THE EXECUTING OF TIME THE Other EffectsOrder ofThis Waiver ofProvisions ofCalifornia Civil §1542. Code bers shall be barred forever initiating, from maintiaing, orprosecuting any r ance the settlement: of (a) isormay be deemed to be ormay be usedasan cts

Settlement Class

during the ClassPeriod (the Released Claims”), except that there the validity any claim of made bythe ClassMe

permitted bylaw, the provisions,rights and d States, orprincip n ia Civil Code section 1542 and any other applicable AND JUDGMENT

Members understand and acknowledge the Class Member 22 w ith respect to

VAL OF CLASS ACTION SETTLEMENT may le of commonle of law orotherwise, which is gdoing of any kindgdoing wha of

be deemed to be, ormay be usedasan s

shall be deemed to have waived and the released claims set m benefits conferred bers orClass

t soever to any

forth forth iations or l edgment

16 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 6 5 4 3 2 1 9 8 7

Case 5:17-cv-00603-EJDDocument84-3Filed05/09/19Page123of231 void and the Parties shall be returned to their respective positions all ordersand judgments entered and releases delivered in connection judgment entered thereon shall be rendered null and void and shall be vacated, and in suchevent, does not j be entered thereon, in asset this forth Order. with respect to this Li Complaint. certification appropriate was in the Litigation orwouldbe appropriate in any other a Order and Judgment shall not be construed asan admission orconcession by administrative agency, orother trib this Orderand Judgment and the Settlement Agreement, in any proceeding in any court, a theClerk Court of isexpressly directed. carry the out any Settlement provisions of Agreement. u dmission of, orevidence thedmission orentities of, any persons faultof oromission of, of released under risdiction over the implementation the Settlement of Agreement. Inthe event the Effective Date There delay reason for isnojust in the this entry Judgment, of and imm Without the order further Court, of the parties may agree to reasonable time extensions of to Without affectingthe finalitythe judgment of hereby entered, the Court reserves The Litigation ishereby dismissed onthe merits and with prejudice and fin Except asprovided in this Order,Plain

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this ____ day of ______,201 this ____day of u nal.

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Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 124 of 231

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Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 131 of 231

Exhibit 2 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 132 of 231

GUTRIDE SAFIER LLP RESUME

Gutride Safier LLP represents investors, small businesses, consumers and employees in a wide-array of class action litigation throughout the country. The attorneys of GSLLP are skilled litigators with years of experience at all levels of federal and state court. GSLLP is based in San Francisco, California, and has an office in Boston, Massachusetts. Members of the firm are also licensed to practice in Texas and the District of Columbia.

As described in detail below, GSLLP attorneys have represented consumers and small businesses in appeals to the Ninth Circuit (Section A), have obtained important victories on legal issues at the district court level (Section B), achieved settlements in class action cases to make available to class members over $500 million in cash and other settlement benefits (Section C), and have won praise from numerous judges (Section D). As shown in the individual attorney biographies, GSLLP attorneys have strong academic credentials and extensive experience litigating complex cases (Section E). GSLLP has been appointed as class counsel in over a dozen cases (Appendix A) and is currently counsel for plaintiffs in many other cases asserting class claims that have not yet been certified in both federal and state court (Appendix B).

A. Key Appellate Cases

• Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) The Ninth Circuit ruled in favor of our client, reversing the district court. It held that our client had Article III standing to seek injunctive relief regarding the false labeling of “flushable wipes,” even though she was already on notice of the misrepresentation. This ruling resolved a split among the district courts. The en banc petition was denied.

• Just Film, Inc. v. Buono, 847 F.3d 1108 (9th Cir. 2017) The Ninth Circuit ruled in favor of our client, affirming the district court order certifying two nationwide classes of small business owners defrauded in a scheme that involved equipment leases and credit card processing services. The Ninth Circuit upheld certification despite differences between claims of named plaintiffs and certain absent class members and even though assessment of damages would require individual inquiry.

• Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) The Ninth Circuit ruled in favor of our clients, reversing district court orders that had dismissed certain claims and denied class certification on other claims. The Ninth Circuit held that our clients had pled viable claims that they were deceived into registering for a coupon program with a paid monthly subscription by a website “click through” and that the defendant was liable to all consumers, even those who may have wanted to enroll. The Court held that a showing of class- wide reliance was not required for certification of a UCL claim and established the standard that “California has created what amounts to a conclusive presumption that when a defendant puts out tainted bait and a person sees it and bites, the defendant has caused an injury; restitution is the remedy.”

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• Just Film, Inc. v. Merch. Servs., Inc., 474 F. App’x 493 (9th Cir. 2012) The Ninth Circuit ruled in favor of our client, affirming a district court’s order issuing a preliminary injunction prior to class certification, to prevent further collection activities in connection with equipment leases. The Ninth Circuit held that the district court “did not abuse its discretion by finding sufficient evidence to support its preliminary injunction, which was carefully tailored to maintain the status quo where class certification is pending and the plaintiff has shown that a class-wide injunction is necessary to remedy the alleged class-wide harm.”

• Chavez v. Blue Sky Nat. Bev. Co., 340 F. App’x 359 (9th Cir. 2009) The Ninth Circuit ruled in favor of our client, reversing a district court order that had dismissed a case involving soda labeling. The Ninth Circuit recognized the “benefit of the bargain” theory for standing in consumer class actions and held that plaintiff stated a claim based on his allegations that “he purchased beverages that he otherwise would not have purchased in absence of the alleged misrepresentations [and] lost the purchase price, or part thereof, that he paid for those beverages.” After the case was remanded, it was eventually certified and became one of the first food and beverage labeling cases certified in the Northern District of California. Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365 (N.D.Cal. 2010) (certifying nationwide class).

B. Important Recent District Court Cases

• Certification of Nationwide Settlement Class GSLLP represents consumers in the first, or nearly the first, cases to propose a methodology for establishing predominance in a nationwide class settlement after the Ninth Circuit’s decision in In re Hyundai and Kia Fuel Economy Litig., No. 15-65014 (9th Cir. Jan. 23, 2018). The district court accepted the methodology and certified a nationwide class where the class representatives were from a variety of states that collectively represented the variations among the laws of all states. Judge Seeborg granted final approval of the settlement. Koller v. Med Foods, Inc., No. 14-cv-02400-RS (Dkt. #169).

• Arbitration and Public Injunctive Relief GSLLP represents consumers in the first, or nearly the first, case to apply McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017) to invalidate an arbitration agreement that contained a waiver of public injunctive relief. McArdle v. AT&T Mobility LLC, et al., Case No. CV-09-01117 (N.D. Cal) (Dkt. #287). This was also the first case to rule that AT&T’s arbitration provision was invalid, after the U.S. Supreme Court had upheld the enforceability of that exact provision in an earlier case. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (examining class action waiver). The district court held in McArdle that, despite Concepcion, the McGill ruling was not preempted by the Federal Arbitration Act, and it invalidated the arbitration agreement which purported to waive public injunctive relief in all forums. AT&T’s appeal of the district court’s order is currently pending.

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• Pleading and Certification of Claims Where Product Quality Varies GSLLP represents consumers in two cases that were the first (or among the first) in the Northern District of California in which courts found that the named plaintiffs had standing, and then later, met the requirements for class certification, where the plaintiffs had alleged that some, but not necessarily all, of the products (olive oil) failed to meet the represented grade (extra virgin). In Koller v. Med Foods, et al., 3:14-cv-02400-RS (N.D. Cal. Jan. 6, 2015) (Dkt. #49), the defendant moved to dismiss based on its argument that the plaintiff lacked standing because he did not allege he tested the quality of the olive oil that he purchased and it was theoretically possible that the oil he purchased met the standard for extra virgin. The court rejected the argument, finding that “[i]n the event [plaintiff] is able to prove his allegations that the oil generally does not warrant that label because of its quality when first bottled and/or because of [defendant’s] packaging and handling practices, it would hardly be a defense that some bottles may nevertheless meet the minimum standards when purchased.” Id. at 6; see also Kumar v. Salov N. Am. Corp., No. 14-CV-2411-YGR, 2015 U.S. Dist. LEXIS 12790, at *13 (N.D. Cal. Feb. 3, 2015) (denying dismissal based on standing and holding that “[w]hether some bottle of olive oil might not have degraded, despite the mixing, packaging, and shipping defects alleged, does not defeat the claim.”). The defendant in one of the cases raised similar unsuccessful arguments in opposition to certification. Koller v. Med Foods, Inc., No. 14-cv- 02400-RS, 2017 U.S. Dist. LEXIS 141025, at *6 (N.D. Cal. Aug. 24, 2017) (finding common questions predominate and rejecting defendant’s argument that “putative class member only has claims if the specific bottle he or she purchased no longer met EVOO standards, and as a result, the liability inquiry is inherently individual and not subject to class-wide resolution”).

C. Examples of Settlements Obtained by GSLLP in Class Actions

• Fitzhenry-Russell, et al. v. Keurig Dr Pepper Inc., et al., 17-cv-00564-NC (N.D. Cal. Jan. 10, 2019) ($0.40 per unit purchased with a guaranteed minimum of $2.00 per claimant)

• Pettit v. Procter & Gamble Company, Case No. 15-cv-02150-RS (N.D. Cal. Mar. 29, 2019) ($0.60 per package purchased)

• Koller v. Med Foods Inc., et al., Case No. 3:14-cv-02400 (N.D. Cal. Aug. 29, 2018) (Dkt. #169) (olive oil) ($7 million non-reverting common fund)

• Kumar v. Safeway Inc., Case No. RG 14726707 (Alameda County Sup. Ct. Mar. 16, 2018) (olive oil) ($0.50 in cash or $1.50 in vouchers per bottle purchased)

• Rainbow Business Solutions, Inc., et al. v. MBF Leasing LLC, et al., Case No. 10- cv-01993-CW (N.D. Cal., Dec. 5, 2017) (Dkt. #730) (credit card terminal leases) (refunds of overcharged property taxes and improper debits up to $9.2 million)

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• Kumar v. Salov North America Corp., Case No. 14-cv-2411-YGR (N.D. Cal. July 7, 2017) (Dkt. #173) (olive oil) (per-purchase payments of $0.50 per bottle on a claims-made basis up to $5 million) (settlement upheld on appeal)

• Machlan v. Nehemiah Manufacturing Co., et al., Case No. CGC-14-538168 (San Francisco Sup. Ct., June 5, 2017) (flushable wipes) ($1 per package purchased)

• Mackinnon v. IMVU, Inc., Case No. 111-cv-193767 (Santa Clara Sup. Ct. Feb. 24, 2016) (online music purchases) (automatic 60% refund of amounts paid)

• Miller, et al. v. Ghirardelli Chocolate Company, Case No. 12-cv-04936-LB (N.D. Cal. Feb. 20, 2015) (Dkt. #170) (white chocolate) ($5.25 million non-reverting common fund)

• Rainbow Business Solutions, Inc., et al. v. Merchant Services, Inc., et al., Case No. 10-cv-01993-CW (N.D. Cal., Dec. 11, 2013) (Dkt. # 578) (credit card processing services) ($350 per claimant)

• Mancini, et al v Ticketmaster, et al., Case No. 07-cv-01459-DSF-JTL (C.D. Cal. Aug. 2, 2013) (Dkt. #510) (monthly coupon subscription service) ($23 million reverting common fund)

• Chavez v. Blue Sky Natural Beverage Co., et al., 3:06-cv-06609-JSW (N.D. Cal., June 1, 2012) (Dkt. #318) (soda) (50% refund of purchase price up to maximum of $100 per claimant)

• Embry v. Acer America Corp., Case No. 09–01808 JW (N.D. Cal. Feb. 4, 2012) (Dkt. #218) (computer operating system software) (cash refunds up to $50, new operating software, and/or repairs at defendant expense, to claimants)

• Witthoff v. Honest Tea, Inc., Case No. CGC-10-504987 (San Francisco Sup. Ct. Jan. 10, 2012) (kombucha) (100% cash refunds to class members with proof of purchase; up to $6 in coupons to those without proof of purchase)

• Gauss v. Millennium Products, Inc., Case No. CGC-10-503347 (San Francisco Sup. Ct. Nov. 22, 2011) (kombucha) (same as Witthoff)

• Cho v. Seagate Technology (US) Holdings, Inc., Case No. CGC-06-453195 (San Francisco Sup. Ct. June 22, 2010) (hard disk capacity) (refunds to claimants of 5% of purchase price or drive management software valued at $40)

• Deaton et al. v. Hotwire, Case Number CGC-05-437631 (San Francisco Sup. Ct., December 24, 2009) (online hotel reservation taxes and fees) (refunds on claims- made basis up to $5,490,000)

• Nelsen v. PeoplePC, Case No. CGC-07-460240 (San Francisco Sup. Ct. Aug. 8, 2008) (subscription to dial-up Internet) (refunds up to $30 per claimant)

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• Siemers v. Wells Fargo & Co. et al., 05-cv-04518 (N.D. Cal. Feb. 5, 2008) (Dkt. # 408) (securities fraud regarding mutual fund fees) (common fund of $1,098,500)

• Vroegh v. Eastman Kodak Co. et al., Case No. CGC-04-428953 (San Francisco Sup. Ct. Nov. 20, 2006) (flash memory capacity) (cash refunds to claimants of 5% of purchase price or 10% discount off future purchases)

• Chavez v. Netflix, Inc., Case No. CGC-04-434884 (San Francisco Sup. Ct. April 28, 2006) (DVD rental subscriptions) (free month of membership for former subscribers (retail value up to $17.99) and free month subscription upgrade for current subscribers (retail price $6.00)

• Safier v Western Digital, Case No. 3:05-cv-03353-BZ (N.D. Cal June 15, 2006) (Dkt. #45) (hard disk capacity) (hard drive management software valued at $30)

D. Selected Praise for GSLLP’s Work

Many judges have commended GSLLP’s work as class counsel. See, e.g., Fitzhenry- Russell et al. v. Keurig Dr. Pepper, Inc., et al., Case No.17-cv-00564-NC (N.D. Cal. April 10, 2019) (Cousins, J.) (finding that GSLLP “achieved a strong result through skillful litigation and settlement negotiation”); Pettit v. Procter & Gamble Company, Case No. 15-cv-02150-RS (N.D. Cal. Mar. 29, 2019) (Dkt. #135) (Seeborg, J.) (finding that GSLLP “represented their clients with skill and diligence and obtained an excellent result for the class”); Kumar v. Salov North America Corp., Case No. 14-cv-2411-YGR (N.D. Cal. July 7, 2017) (Dkt. # 173) (Gonzales- Rogers, J.) (same); Koller v. Med Foods Inc., et al., Case No. 3:14-cv-02400 (N.D. Cal. Aug. 29, 2018) (Dkt. #169) (Seeborg, J.) (finding that GSLLP were “highly qualified counsel who, throughout this case, vigorously and adequately represented their [clients’] interests”); Kumar v. Safeway Inc., Case No. RG 14726707 (Alameda County Sup. Ct. March 16, 2018) (Smith, J.) (same); Rainbow Business Solutions, Inc., et al. v. MBF Leasing LLC, et al., Case No. 10-cv- 01993-CW (N.D. Cal., Dec. 5, 2017) (Dkt. #730) (Wilken, J.) (same); Mackinnon v. IMVU, Inc., Case No 111-cv-193767 (Santa Clara Sup. Ct. Feb. 24, 2016) (Kirwan, J.); Chavez v. Blue Sky Natural Beverage Co., et al., 3:06-cv-06609-JSW (N.D. Cal., June 1, 2012) (Dkt. #318) (White, J.); Embry v. Acer America Corporation, Case No. 09–cv-01808-JW (N.D. Cal. Feb. 4, 2012) (Dkt. #218) (Ware, J.) (same); Mancini, et al v Ticketmaster, et al., Case No. 07-cv-01459-DSF- JTL (C.D. Cal. August 2, 2013) (Dkt. #510) (Fischer, J.) (similar).

E. The Lawyers of Gutride Safier LLP

Adam J. Gutride

Mr. Gutride is a founding partner of Gutride Safier LLP and has served as co-lead counsel in each of the cases litigated by the firm.

Mr. Gutride has successfully argued several of the seminal consumer class action cases in the United States Court of Appeals for the Ninth Circuit. These include Just Film v. Buono, 847 F.3d 1108 (2017), which established that a class could be certified to pursue claims under the federal Racketeering and Corrupt Practices Act even though class members suffered

5 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 137 of 231 different injuries; Stearns v. Ticketmaster, 655 F.3d 1015 (2011), which established that a class can be certified even without proof that all persons in the class were misled; and Chavez v. Blue Sky, 340 Fed. Appx. 359 (2009), apparently the first food labeling case decided in the Ninth Circuit, which affirmed that deceptive statements on a soda can were actionable if they motivated the purchase.

Mr. Gutride also has defeated motions to dismiss and obtained class certification and in most cases multi-million dollar settlements in numerous other nationwide and multistate class actions involving product mislabeling, false advertising and unfair practices. His cases have involved olive oil, white chocolate, ginger ale, flushable wipes, flash memory, hard disk drives, computer operating systems, and video rentals by mail. Mr. Gutride spoke at the 2013 National Institute on Class Actions regarding food mislabeling.

Previously, Mr. Gutride litigated at the San Francisco based law firms of Keker & Van Ness and Orrick Herrington & Sutcliffe. During that period, Mr. Gutride represented the governor of California before the California Supreme Court and handled a nationwide securities class action against Merrill Lynch. Mr. Gutride also has served as an Instructor in Legal Research and Writing at the Hastings Law School of the University of California.

Mr. Gutride is a member of the state bar of California and several federal courts. Mr. Gutride received his juris doctorate from Yale Law School and his bachelor of arts from the University of Chicago.

Seth A. Safier

Mr. Safier is a founding partner of Gutride Safier LLP and has served as co-lead counsel in each of the cases listed above. Prior to founding Gutride Safier LLP with Mr. Gutride, Mr. Safier was general counsel at an internet company and also worked as a litigator at Orrick Herrington & Sutcliffe. Mr. Safier also has served as an Instructor of Legal Research and Writing at the Hastings Law School of the University of California.

Mr. Safier is a member of the California State Bar and numerous federal courts. Mr. Safier received his juris doctorate from Harvard Law School and his bachelor of arts from Brandeis University.

Marie A. McCrary

Marie McCrary is a partner at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Ms. McCrary worked on complex litigation at Bell Nunnally & Martin LLP in Dallas and Carroll Burdick & McDonough, LLP in San Francisco. Prior to that, Ms. McCrary was an attorney at Quinn Emanuel Urquhart & Sullivan, LLP. Ms. McCrary has experience in complex matters involving contract disputes and business torts, patent and trade dress litigation, class actions, and creditors’ rights issues.

Ms. McCrary is a member of the California, Massachusetts, Texas, and Colorado bar associations. She is admitted to practice in the United States District Court in each of the following districts: the Northern District of California, the Central District of California, the Eastern District of California, the Northern District of Texas, the Southern District of Texas, the

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Eastern District of Texas, and the District of Massachusetts. Ms. McCrary received her juris doctorate from New York University and her bachelor of science degree from Truman State University. Ms. McCrary was the 2004 and 2005 national champion in parliamentary debate (NPDA, NPTE).

Todd Kennedy

Mr. Kennedy is a partner at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Mr. Kennedy conducted complex litigation for Quinn Emanuel Urquhart & Sullivan, LLP. At Quinn, Todd successfully litigated some of the world’s largest patent cases, for both plaintiffs and defendants. He helped achieve complete defense jury verdicts for Google in the company’s only two patent trials—both of which were in the Eastern District of Texas, the favored venue for plaintiffs. On the plaintiffs’ side, Mr. Kennedy successfully represented Sony Electronics in enforcing ten digital television patents in a series of lawsuits spanning five jurisdictions.

Mr. Kennedy clerked for one year on the Eighth Circuit U.S. Court of Appeals, and two years on the U.S. District Court for the Western District of Missouri.

Mr. Kennedy is a member of the California State Bar and numerous federal courts. He received his juris doctorate from the Yale Law School. He received his bachelor of arts from University of Missouri.

Kristen G. Simplicio

Ms. Simplicio is an attorney at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Ms. Simplicio was employed by the United States Department of Labor as an ERISA specialist.

Ms. Simplicio is a member of the California State Bar as well as the bar of the District of Columbia. She received her juris doctorate from American University, Washington College of Law, in 2007. She received her bachelor of commerce from McGill University.

Anthony J. Patek

Mr. Patek is an attorney at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Mr. Patek conducted complex litigation for Cooley, LLP and HelixIP LLP. At Cooley and HelixIP, Anthony represented Ronald A. Katz Technology Licensing, Inc. and Zenith Electronics in their efforts to enforce their patent portfolios against numerous infringers. Representing patent owner Evolutionary Intelligence, he defeated seven petitions for inter partes reviews, and won an eighth petition on the merits at trial before the Patent Trial and Appeal Board. He has also represented major pharmaceutical and software companies and prestigious research universities in multi-million dollar lawsuits. He has also handled significant pro bono litigation and was the lead attorney for the petitioner in Mengstu. v. Holder, 560 F.3d 1055 (9th Cir. 2009), a decision establishing that victims of ethnicity-based civil wars are eligible for asylum.

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Mr. Patek clerked for the United States District Court for the District of Nevada, the Hon. Edward C. Reed. Anthony is a former Co-Chair of the American Bar Association’s Sub- Committees on Patent Infringement and Non-Practicing Entity Litigation.

Mr. Patek is a member of the California State Bar and numerous federal courts. He received his juris doctorate from the University of California, Berkeley, Boalt Hall School of Law. He received a master of science from Stanford University and his bachelor of science from University of Michigan.

Matthew T. McCrary

Matthew McCrary is an attorney at Gutride Safier LLP. Prior to working with Gutride Safier, Mr. McCrary conducted complex litigation for McDermott, Will, and Emery, LLP and Baker & McKenzie, LLP. Mr. McCrary has experience litigating complex matters involving contract disputes and business torts, white collar crime, class actions, securities and antitrust issues.

Mr. McCrary is a member of the Massachusetts and Texas bar associations. He is admitted to practice in the United States District Court in each of the following districts: the Northern District of Texas, the Eastern District of Texas, the District of Massachusetts, and the District of Colorado. Mr. McCrary received his juris doctorate from the University of Texas at Austin School of Law and his bachelor of arts degree from the University of North Texas. Following law school, Mr. McCrary clerked for the Ninth Circuit Court of Appeals, the Honorable Carlos T. Bea.

Mr. McCrary successfully argued the seminal consumer class action case, Davidson et al. v. Kimberly-Clark Corporation, et al., 873 F.3d 1103, in the United States Court of Appeals for the Ninth Circuit, which established that a putative class representative had Article III standing to pursue injunctive relief even though she was already on notice of the misrepresentation.

Stephen Raab

Mr. Raab is an attorney at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Mr. Raab handled litigation and insurance matters in the Pacific Northwest, at Forsberg & Umlauf, P.S. and Gordon & Polscer, L.L.C. Before that, Mr. Raab was a member of the Trial group in the New York office of Dorsey & Whitney LLP.

Mr. Raab has represented insurance companies regarding coverage and exposure in complex cases, including class actions, environmental investigations and cleanups, product liability claims, medical malpractice claims, food contamination claims, software disputes, and potential bad faith liability. Mr. Raab has litigated both on behalf of and against sophisticated companies, and he has prevailed for his clients on dispositive motions and on appeals, including in the Second Circuit over the arguments of substantial banking interests represented by The Clearing House Association, L.L.C. and the Federal Reserve Bank of New York.

Mr. Raab is licensed in New York, Oregon, and Washington and practices in federal and state courts. He received his juris doctorate from New York University and his bachelor of arts degree from Amherst College.

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Rajiv Thairani

Mr. Thairani is an attorney at Gutride Safier LLP. Prior to working with Gutride Safier LLP, Mr. Thairani was a litigation associate at Latham & Watkins LLP. Mr. Thairani has experience litigating complex matters involving human trafficking, white collar crime, SEC violations and consumer class actions.

While at Latham & Watkins, Mr. Thairani helped represent 47 plaintiffs in the largest human trafficking civil action in United States history. The clients were among more than 500 Indian laborers whom Signal International illegally recruited to conduct post-Hurricane Katrina repair work in the Gulf of Mexico. After Signal International won the initial class certification battle, Latham & Watkins joined a team of firms coordinated by the Southern Poverty Law Center that filed individual suits on behalf of the plaintiffs. The action resulted in a $20 million settlement for the victims.

Mr. Thairani is a member of the New York State Bar. He received his juris doctorate from Duke University School of Law where he was awarded the Frank Warren Snepp Jr. Scholarship and was a staff editor on the Duke Journal of Constitutional Law and Public Policy. He obtained his bachelor of arts from the University of California, Los Angeles in political science.

Kyle Wilson

Kyle Wilson is an attorney at Gutride Safier LLP. Prior to joining Gutride Safier LLP, Mr. Wilson worked as an attorney at the Sonoma County District Attorney’s Office, where he prepared appellate and habeas corpus briefs in numerous felony cases.

Mr. Wilson is a member of the State Bar of California. He received his juris doctorate from Columbia Law School, and his bachelor of science from the University of California, Los Angeles.

As a student at Columbia Law School, Mr. Wilson was named a Harlan Fiske Stone Scholar for his academic achievement. Mr. Wilson also volunteered as a policy intern for the Neighborhood Defender Service of Harlem, where he worked to assess the collateral consequences of criminal convictions in New York City, and provided pro bono legal services to indigent tenants as part of the Tenants’ Rights Project.

F. Trial Experience of Gutride Safier LLP Attorneys

This section summarizes the trial experience in class and complex litigation of the attorneys in Gutride Safier LLP.

While Mr. Gutride was a student at Yale Law School, he was a member of the trial team in a class action against the U.S. Government on behalf of Haitian refugees intercepted at sea and detained at the U.S. Naval Base in Guantanamo Bay, Cuba. That case, Haitian Centers Council et al. v. Sale, 823 F. Supp. 1028 (E.D.N.Y 1993), included an 11-day bench trial. Although Mr. Gutride was a junior member of the trial team, he conducted the direct examination of a U.S.

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Government contractor regarding the conditions at Guantanamo and objected to the cross- examination by the Assistant U.S. Attorney. Mr. Gutride also assisted in setting trial strategy and in drafting motions in limine and proposed findings of fact. Mr. Gutride travelled to Guantanamo to interview the clients and to negotiate with U.S. Government officials about conditions.

More recently, Mr. Gutride assisted in the jury trial in the case of Western MacArthur Co. et al, v. USF&G, Inc., Alameda County Sup. Ct. Case No. 721595, an insurance coverage case that involved underlying claims by tens of thousands of injured persons. Mr. Gutride supervised the drafting of and argued all or substantially all the motions in limine. Mr. Gutride also supervised the culling and introduction into evidence of deposition testimony from dozens of witnesses, both by way of video recordings and live readings, as well as the evidentiary objections pertaining thereto. Mr. Gutride was present at trial each day and was involved in strategy regarding jury selection, expert testimony, and other issues. The trial, before Judge Bonnie Sabraw, lasted for six weeks before the case settled for more than $900 million.

In June 2016, Mr. Gutride and Mr. Safier tried to an arbitrator the case of McArdle v. AT&T, Inc., a case alleging that AT&T violated California’s consumer protection statutes concerning the international roaming fees imposed on mobile phone subscribers for incoming calls that were not answered. The case was pled as a class action, and a motion for class certification was briefed, but Judge Claudia Wilken denied the motion without prejudice, ordered that the plaintiff arbitrate his individual claims and stayed the litigation pending arbitration.

Mr. Kennedy served on the trial teams on behalf of Google in Bright Response v. Google Inc. et al., 2:07-cv-00279 (E.D. Tex.) and Function Media, L.L.C. v. Google, Inc. et al., 2:07-cv- 00371 (E.D. Tex.), which involved highly technical cases of patent infringement. In both cases, he and his team achieved complete jury verdicts of invalidity and non-infringement for Google. Mr. Kennedy prepared the expert and fact witnesses for direct and cross-examination, drafted the cross-examination of the inventor, drafted motions in limine and responses and objections to exhibits, made deposition designations, and drafted and assisted in the preparation of the closing statement.

Ms. McCrary was second-chair on the trial team in Freight Train Advertising, LLC v. Chicago Rail Link, L.L.C., Case No. 11-cv-2803 (N.D. Ill.), a contract and false representations case, in which both parties alleged breach of a multi-million dollar contract involving outdoor advertising. The case proceeded to a bench trial at which Ms. McCrary conducted cross- examination and argued to the court.

Mr. McCrary served on the trial team in Adams v. Pilgrim’s Pride Corp., No. 2:09-CV- 397 (E.D. Tex.), a mass action involving thousands of poultry growers who brought federal antitrust claims under the Packer’s and Stockyard’s Act against Pilgrim’s Pride Corporation, as well as claims under various state deceptive trade practices acts. The case proceeded in three separate trials, all to the bench. At the trials, Mr. McCrary cross-examined multiple adverse witnesses, made objections to opposing counsel's direct examinations, prepared motions for judgment as a matter of law, responded to a motion to strike the economics expert, and prepared trial briefs on various legal issues.

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APPENDIX A

Gutride Safier LLP was appointed class counsel to represent consumers, small businesses, employees and investors in each of the following cases:

Food and Beverage Labeling

• Fitzhenry-Russell, et al. v. Dr. Pepper Snapple Group, Inc., et al., 4:17-cv-00564- NC (N.D. Cal.) (plaintiffs alleged violation of California’s consumer protection laws for the false advertising of Canada Dry ginger ale as “made from real ginger”)

• Koller v. Med Foods Inc., et al., Case No. 3:14-cv-02400 (N.D. Cal.) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of the Bertolli and Carapelli brand olive oils as “extra virgin” and “imported from Italy” when the olive oils do not originate from Italy and do not meet the requirements for “extra virgin” olive oil)

• Kumar v. Salov North America Corp., Case No. 14-cv-2411-YGR (N.D. Cal.) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of the Filippo Berio brand olive oils as “imported from Italy” when the olive oils do not originate from Italy)

• Kumar v. Safeway Inc., Case No. RG 14726707 (Alameda County Superior Court) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of Safeway Select brand olive oils as “extra virgin” and “imported from Italy” when the olive oils do not originate from Italy and do not meet the requirements for “extra virgin” olive oil)

• Miller, et al. v. Ghirardelli Chocolate Company, Case No. 12-cv-04936-LB (N.D. Cal.) (plaintiffs alleged violation of California’s consumer protection laws for the false advertising of baking chips as containing white chocolate even though they did not, and falsely labeling some products as “all natural” though they were made with non-natural ingredients)

• Witthoff v. Honest Tea, Inc., Case No. CGC-10-504987 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of the kombucha beverages, a fermented tea drink, as a non- alcoholic beverage despite the fact that the beverage continued to ferment after leaving the factory, allowing the alcohol content of the beverage to be as high as 3%)

• Gauss v. Millennium Products, Inc., Case No. CGC-10-503347 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of the “GT’s Kombucha” and “Synergy” brands of kombucha beverages, fermented tea drinks, as a non-alcoholic beverage despite the fact that the beverages continued to ferment after leaving the factory, allowing the alcohol content of the beverage to be as high as 3%)

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• Chavez v. Blue Sky Natural Beverage Co., et al., 3:06-cv-06609-JSW (N.D. Cal.) (plaintiff alleged violation of California’s consumer protection laws for the false advertising of the Blue Sky beverages as made in and/or originated from Santa Fe, New Mexico when the beverages were not manufactured in Santa Fe or New Mexico)

Product Labeling

• Pettit v. Procter & Gamble Company, Case No. 15-cv-02150-RS (N.D. Cal.) (plaintiff alleged violation of California’s consumer protection laws for false advertising of the Charmin Freshmates flushable wipes as being “flushable” when the wipes are not suitable for flushing and clog household plumbing and city sewers)

• Machlan v. Nehemiah Manufacturing Co., et al., Case No. CGC-14-538168 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws for false advertising of Kandoo flushable wipes advertising as being “flushable” when the wipes are not suitable for flushing and clog household plumbing and city sewers)

• Miller v. Fuhu, Inc., Case No. 15-bk-12465 (Del. Bankruptcy Court) (plaintiff alleged violation of California’s consumer protection laws related to the Nabi tablets, which were sold with defective power adapters that did not recharge the tablets)

• Embry v. Acer America Corporation, 09-cv-01808-JW (N.D. Cal.) (plaintiff alleged violation of California’s consumer protection laws for false advertising of its computers as including a specified version of Microsoft Windows despite the computers not including the software, which resulted in users typically losing their user-installed applications and user files if the computer’s hard drive failed)

• Cho v. Seagate Technology (US) Holdings, Inc., Case No. CGC-06-453195 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to Seagate overstating the storage capacity of its computer hard drives by approximately 7 percent)

• Vroegh v. Eastman Kodak Co. et al., Case No. CGC-04-428953 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to Eastman Kodak Co. overstating the storage capacity of flash memory drives by approximately 4 percent)

• Safier v Western Digital, Case No. 3:05-cv-03353-BZ (N.D. Cal) (plaintiff alleged violation of California’s consumer protection laws related to Western Digital overstating the storage capacity of hard disk drives by approximately 4 percent)

Subscriptions and Online Purchasing Fraud

• Mackinnon v. IMVU, Inc., Case No. 1-11-cv-193767 (Santa Clara County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to

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the limited playback of audio products that consumers purchased for real money to play in the IMVU virtual universe).

• Deaton v. Hotwire, Inc., Case No. CGC-05-437631 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to Hotwire’s added “service fees” to each hotel reservation made on its website for “taxes and fees” that were actually variable amounts designed to disguise the true cost of the room)

• Nelsen v. PeoplePC, Inc., Case No. CGC-07-460240 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to PeoplePC’s practice of continuing to charge customers for its dialup Internet service even when they requested cancellation)

• Mancini, et al. v. Ticketmaster et al., 2:07-cv-01459-DSF-JTL (C.D. Cal.), (plaintiff alleged violation of the federal Electronic Funds Transfer Act and consumer protection laws related to Defendants failure to disclose to customers on Ticketmaster’s website that they would be enrolled in an online coupon service with reoccurring charges)

• Chavez v. Netflix, Inc., Case No. CGC-04-434884 (San Francisco County Superior Court) (plaintiff alleged violation of California’s consumer protection laws related to Netflix advertising its online video rental service)

Securities

• Siemers v. Wells Fargo & Co. et al., Case No. 05-4518 WHA (N.D. Cal.) (plaintiff alleged violation of §12(a)(2) of the Securities Act of 1933 and §10(b) of the Securities Exchange Act of 1934 related to an undisclosed kickback scheme)

Employment

• Haven v Betz & Sons, Case No. CGC-05-438719 (San Francisco County Superior Court) (plaintiff alleged violation of California’s wage and hour laws)

Toll Processing/Government

• Saliani et al. v. Bay Area Toll Authority, et al., Case Nos. CGC-14-540384; CGC- 15-549048; CGC-16-550947 (San Francisco County Superior Court) (plaintiffs allege violation of the California Due Process Clause and California’s consumer protection law related to unlawful penalties charged for toll invoices that were not receive and the denial of administrative review)

Small Business Leasing and Credit Card Processing

• Rainbow Business Solutions, Inc., et al. v. MBF Leasing LLC, et al., Case No. 10-cv- 01993-CW (N.D. Cal.) (plaintiffs alleged violation of state and federal laws including violations of the Racketeer Influenced and Corrupt Organizations Act and

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Fair Credit Reporting Act relating to the illegal collection of taxes on leased equipment, resulting in small businesses being overcharged)

Undisclosed Charges

• McArdle v. AT&T Mobility LLC, et al., Case No. CV-09-01117 (N.D. Cal) (plaintiff alleges violation of California’s consumer protection laws related to AT&T Mobility’s practice of unlawfully charging customers exorbitant international roaming rates for calls they did not answer and voicemails they did not check while traveling abroad)

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APPENDIX B

In addition, Gutride Safier LLP is currently serving as plaintiffs’ counsel of record in each of the following cases with class allegations in which a class has not yet been certified:

Food and Beverage Labeling

• Niles v. Beverage Marketing USA, Inc., Case No. 2:19-cv-01902-EJD (E.D.N.Y.) (plaintiffs allege violations of consumer protection laws for the false advertising of Arizona Green Tea with Ginseng and Honey as containing “ginseng for energy”)

• Lockhart v. Beverage Marketing USA, Inc., Case No. 3:19-cv-01711-JSC (N.D. Cal.) (plaintiffs allege violations of California’s consumer protection laws for the false advertising of Arizona Green Tea with Ginseng and Honey as containing “ginseng for energy”)

• Reed v. General Mills, Inc., Case No. 2:19-cv-00005-JCC (W.D. Wash.) (plaintiffs allege violations of consumer protection laws for the false advertising of Cascadian Farm products as purportedly grown on a farm in Skagit Valley)

• Pardini v. Unilever United States, Inc., Case No. 3:13-cv-01675-JSW (N.D. Cal.) (plaintiff alleges violation of California’s consumer protection laws for the false advertising of “I Can’t Believe It’s Not Butter” spray)

• Allen v. Conagra Foods Inc., Case No. 3:13-cv-01279-WHO (N.D. Cal.) (plaintiff alleges violation of California’s consumer protection laws for the false advertising of Parkay spray butter)

Product Labeling

• Colgate et al. v. Juul Labs, Inc. et al., Case No. 4:18-cv-02499-WHO (N.D. Cal.) (plaintiff alleges violation of violation of California’s consumer protection laws related to the e-cigarettes)

• Miller v. Peter Thomas Roth, LLC, Case No. 5:19-cv-00698-WHA (N.D. Cal.) (plaintiffs allege violations of California’s consumer protection laws for the false advertising of “Water Drench” and “Rose Stem Cell” skin care products)

• Hicks v. HP Inc., Case No. 5:19-cv-02050-SVK (N.D. Cal.) (plaintiff alleges violation of California’s consumer protection laws for the false advertising of HP laptop as having a USB 3.0 when the USB ports are incapable of transferring data at anywhere near the speeds advertised)

• Carlotti v. ASUS Computer International et al., 4:18-cv-03369-DMR (N.D. Cal.) (plaintiff alleges violation of violation of California’s consumer protection laws related to manufacturing and designs defects in ASUS gaming laptops)

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• Gonzales et al. v. TP- Link USA Corp., CGC-18-568950 (San Francisco Superior Court) (plaintiff alleges violation of California’s consumer protection laws for the false advertising of wireless routers as capable of providing bandwidth at a particular speeds when the routers are incapable of achieving the advertised speed)

Subscriptions and Online Purchasing Fraud

• Moretti v. The Hertz Corporation, et al., Case No. 1:14-cv-00469-LPS (Del.) (plaintiff alleges violation of consumer protection laws related to Hertz, Dollar, Thrifty and Firefly brand rental cars advertising in rates in U.S. dollars during the online reservation process and advertising insurance as “optional,” but converting the cost to pesos at an inflated exchange rate and charging a mandatory insurance fee when consumers pick up the cars in Mexico)

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Exhibit 3 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 149 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 150 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 151 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 152 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 153 of 231

Exhibit 4 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 154 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 155 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 156 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 157 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 158 of 231

Exhibit 5 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 159 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 160 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 161 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 162 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 163 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 164 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 165 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 166 of 231

Exhibit 6 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 167 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 168 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 169 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 170 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 171 of 231

Exhibit 7 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 172 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 173 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 174 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 175 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 176 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 177 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 178 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 179 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 180 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 181 of 231

Exhibit 8 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 182 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 183 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 184 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 185 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 186 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 187 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 188 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 189 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 190 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 191 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 192 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 193 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 194 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 195 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 196 of 231

Exhibit 9 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 197 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 198 of 231 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 199 of 231

Exhibit 10 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 200 of 231

$1,000 Per Hour Isn't Rare Anymore; Nominal billing levels rise, but discounts ease blow. The National Law Journal January 13, 2014 Monday

Copyright 2014 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited

The National Law Journal

January 13, 2014 Monday

SECTION: NLJ'S BILLING SURVEY; Pg. 1 Vol. 36 No. 20

LENGTH: 1860 words

HEADLINE: $1,000 Per Hour Isn't Rare Anymore; Nominal billing levels rise, but discounts ease blow.

BYLINE: KAREN SLOAN

BODY:

As recently as five years ago, law partners charging $1,000 an hour were outliers. Today, four- figure hourly rates for indemand partners at the most prestigious firms don't raise eyebrows-and a few top earners are closing in on $2,000 an hour.

These rate increases come despite hand-wringing over price pressures from clients amid a tough economy. But everrising standard billing rates also obscure the growing practice of discounts, falling collection rates, and slow march toward alternative fee arrangements.

Nearly 20 percent of the firms included in The National Law Journal's annual survey of large law firm billing rates this year had at least one partner charging more than $1,000 an hour. Gibson, Dunn & Crutcher partner Theodore Olson had the highest rate recorded in our survey, billing $1,800 per hour while representing mobile satellite service provider LightSquared Inc. in Chapter 11 proceedings.

Of course, few law firm partners claim Olson's star power. His rate in that case is nearly the twice the $980 per hour average charged by Gibson Dunn partners and three times the average $604 hourly rate among partners at NLJ 350 firms. Gibson Dunn chairman and managing partner Ken Doran said Olson's rate is "substantially" above that of other partners at the firm, and that the firm's standard rates are in line with its peers.

"While the majority of Ted Olson's work is done under alternative billing arrangements, his hourly rate reflects his stature in the legal community, the high demand for his services and the unique value that he offers to clients given his extraordinary experience as a former solicitor general of the United States who has argued more than 60 cases before the U.S. Supreme Court and has counseled several presidents," Doran said. Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 201 of 231

In reviewing billing data this year, we took a new approach, asking each firm on the NLJ 350-our survey of the nation's 350 largest firms by attorney headcount-to provide their highest, lowest and average billing rates for associates and partners. We supplemented those data through public records. All together, this year's survey includes information for 159 of the country's largest law firms and reflects billing rates as of October.

The figures show that, even in a down economy, hiring a large law firm remains a pricey prospect. The median among the highest partner billing rates reported at each firm is $775 an hour, while the median low partner rate is $405. For associates, the median high stands at $510 and the low at $235. The average associate rate is $370.

Multiple industry studies show that law firm billing rates continued to climb during 2013 despite efforts by corporate counsel to rein them in. TyMetrix's 2013 Real Rate Report Snapshot found that the average law firm billing rate increased by 4.8 percent compared with 2012. Similarly, the Center for the Study of the Legal Profession at the Georgetown University Law Center and Thomson Reuters Peer Monitor found that law firms increased their rates by an average 3.5 percent during 2013.

Of course, rates charged by firms on paper don't necessarily reflect what clients actually pay. Billing realization rates-which reflect the percentage of work billed at firms' standard rates- have fallen from 89 percent in 2010 to nearly 87 percent in 2013 on average, according to the Georgetown study. When accounting for billed hours actually collected by firms, the realization rate falls to 83.5 percent.

"What this means, of course, is that- on average-law firms are collecting only 83.5 cents for every $1.00 of standard time they record," the Georgetown report reads. "To understand the full impact, one need only consider that at the end of 2007, the collected realization rate was at the 92 percent level."

In other words, law firms set rates with the understanding that they aren't likely to collect the full amount, said Mark Medice, who oversees the Peer Monitor Index. That index gauges the strength of the legal market according to economic indicators including demand for legal services, productivity, rates and expenses. "Firms start out with the idea of, 'I want to achieve a certain rate, but it's likely that my client will ask for discounts whether or not I increase my rate,'" Medice said.

Indeed, firms bill nearly all hourly work at discounts ranging from 5 percent to 20 percent off standard rates, said Peter Zeughauser, a consultant with the Zeughauser Group. Discounts can run as high as 50 percent for matters billed under a hybrid system, wherein a law firm can earn a premium for keeping costs under a set level or for obtaining a certain outcome, he added. "Most firms have gone to a two-tier system, with what is essentially an aspirational rate that they occasionally get and a lower rate that they actually budget for," he said.

Most of the discounting happens at the front end, when firms and clients negotiate rates, Medice said. But additional discounting happens at the billing and collections stages. Handling alternative fee arrangements and discounts has become so complex that more than half of the law firms on the Am Law 100-NLJ affiliate The American Lawyer's ranking of firms by gross revenue-have created new positions for pricing directors, Zeughauser said.

THE ROLE OF GEOGRAPHY

Unsurprisingly, rates vary by location. Firms with their largest office in New York had the highest average partner and associate billing rates, at $882 and $520, respectively. Similarly, TyMetrix has reported that more than 25 percent of partners at large New York firms charge $1,000 per Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 202 of 231 hour or

Washington was the next priciest city on our survey, with partners charging an average $748 and associates $429. Partners charge an average $691 in Chicago and associates $427. In Los Angeles, partners charge an average $665 while the average associate rate is $401.

Pricing also depends heavily on practice area, Zeughauser and Medice said. Bet-the-company patent litigation and white-collar litigation largely remain at premium prices, while practices including labor and employment have come under huge pressure to reduce prices.

"If there was a way for law firms to hold rates, they would do it. They recognize how sensitive clients are to price increases," Zeughauser said. But declining profit margins-due in part to higher technology costs and the expensive lateral hiring market-mean that firms simply lack the option to keep rates flat, he said.

BILLING SURVEY METHODOLOGY

The National Law Journal's survey of billing rates of the largest U.S. law firms provides the high, low and average rates for partners and associates.

The NLJ asked respondents to its annual survey of the nation's largest law firms (the NLJ 350) to provide a range of hourly billing rates for partners and associates as of October 2013.

For firms that did not supply data to us, in many cases we were able to supplement billing-rate data derived from public records.

In total, we have rates for 159 of the nation's 350 largest firms.

Rates data include averages, highs and low rates for partners and associates. Information also includes the average full-time equivalent (FTE) attorneys at the firm and the city of the firm's principal or largest office.

We used these data to calculate averages for the nation as a whole and for selected cities.

Billing Rates at the Country's Priciest Law Firms

Here are the 50 firms that charge the highest average hourly rates for partners.

Billing Rates at the Country's Priciest Law Firms FIRM NAME LARGEST AVERAGE PARTNER ASSOCIATE U.S. FULL-TIME HOURLY HOURLY OFFICE* EQUIVALENT RATES RATES ATTORNEYS* AVERAGE HIGH LOW AVERAGE HIGH LOW * Full-time equivalent attorney numbers and the largest U.S. office are from the NLJ 350 published in April 2013. For complete numbers, please see NLJ.com. ** Firm did not exist in this form for the entire year. Debevoise & New York 615 $1,055 $1,075 $955 $490 $760 $120 Plimpton Paul, Weiss, New York 803 $1,040 $1,120 $760 $600 $760 $250 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 203 of 231 Rifkind, Wharton & Garrison Skadden, New York 1,735 $1,035 $1,150 $845 $620 $845 $340 Arps, Slate, Meagher & Flom Fried, Frank, New York 476 $1,000 $1,100 $930 $595 $760 $375 Harris, Shriver & Jacobson Latham & New York 2,033 $990 $1,110 $895 $605 $725 $465 Watkins Gibson, Dunn New York 1,086 $980 $1,800 $765 $590 $930 $175 & Crutcher Davis Polk & New York 787 $975 $985 $850 $615 $975 $130 Wardwell Willkie Farr & New York 540 $950 $1,090 $790 $580 $790 $350 Gallagher Cadwalader, New York 435 $930 $1,050 $800 $605 $750 $395 Wickersham & Taft Weil, Gotshal New York 1,201 $930 $1,075 $625 $600 $790 $300 & Manges Quinn New York 697 $915 $1,075 $810 $410 $675 $320 Emanuel Urquhart & Sullivan Wilmer Cutler Washington 961 $905 $1,250 $735 $290 $695 $75 Pickering Hale and Dorr Dechert New York 803 $900 $1,095 $670 $530 $735 $395 Andrews Houston 348 $890 $1,090 $745 $528 $785 $265 Kurth Hughes New York 344 $890 $995 $725 $555 $675 $365 Hubbard & Reed Irell & Manella Los 164 $890 $975 $800 $535 $750 $395 Angeles Proskauer New York 746 $880 $950 $725 $465 $675 $295 Rose White & Case New York 1,900 $875 $1,050 $700 $525 $1,050 $220 Morrison & San 1,010 $865 $1,195 $595 $525 $725 $230 Foerster Francisco Pillsbury Washington 609 $865 $1,070 $615 $520 $860 $375 Winthrop Shaw Pittman Kaye Scholer New York 414 $860 $1,080 $715 $510 $680 $320 Kramer Levin New York 320 $845 $1,025 $740 $590 $750 $400 Naftalis & Frankel Hogan Lovells Washington 2,280 $835 $1,000 $705 - -- Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 204 of 231 Kasowi $200 Benson, Torres & Friedman

Kirkland & Ellis Chicago 1,517 $825 $995 $590 $540 $715 $235 Cooley Palo Alto 632 $820 $990 $660 $525 $630 $160 Arnold & Washington 748 $815 $950 $670 $500 $610 $345 Porter Paul Hastings New York 899 $815 $900 $750 $540 $755 $335 Curtis, Mallet- New York 322 $800 $860 $730 $480 $785 $345 Prevost, Colt & Mosle Winston & Chicago 842 $800 $995 $650 $520 $590 $425 Strawn Bingham Boston 900 $795 $1,080 $220 $450 $605 $185 McCutchen Akin Gump Washington 806 $785 $1,220 $615 $525 $660 $365 Strauss Hauer & Feld Covington & Washington 738 $780 $890 $605 $415 $565 $320 Burling King & Atlanta 838 $775 $995 $545 $460 $735 $125 Spalding Norton Rose N/A** N/A** $775 $900 $525 $400 $515 $300 Fulbright DLA Piper New York 4,036 $765 $1,025 $450 $510 $750 $250 Bracewell & Houston 432 $760 $1,125 $575 $440 $700 $275 Giuliani Baker & Chicago 4,004 $755 $1,130 $260 $395 $925 $100 McKenzie Dickstein Washington 308 $750 $1,250 $590 $475 $585 $310 Shapiro Jenner & Chicago 432 $745 $925 $565 $465 $550 $380 Block Jones Day New York 2,363 $745 $975 $445 $435 $775 $205 Manatt, Los 325 $740 $795 $640 - -- Phelps & Angeles Phillips Seward & New York 152 $735 $850 $625 $400 $600 $290 Kissel O'Melveny & Los 738 $715 $950 $615 - -- Myers Angeles McDermott Chicago 1,024 $710 $835 $525 - -- Will & Emery Reed Smith Pittsburgh 1,468 $710 $945 $545 $420 $530 $295 Dentons N/A** N/A** $700 $1,050 $345 $425 $685 $210 Jeffer Mangels Los 126 $690 $875 $560 - -- Butler & Angeles Mitchell Sheppard, Los 521 $685 $875 $490 $415 $535 $275 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 205 of 231 Mullin, & Hampton Alston & Bird Atlanta 805 $675 $875 $495 $425 $575 $280

THE FOUR-FIGURE CLUB

These 10 firms posted the highest partner billing rates.

THE FOUR-FIGURE CLUB Gibson, Dunn & Crutcher $1,800 Dickstein Shapiro $1,250 Wilmer Cutler Pickering Hale and Dorr $1,250 Akin Gump Strauss Hauer & Feld $1,220 Kasowitz, Benson, Torres & Friedman $1,195 Morrison & Foerster $1,195 Skadden, Arps, Slate, Meagher & Flom $1,150 Baker & McKenzie $1,130 Bracewell & Giuliani $1,125 Paul, Weiss, Rifkind, Wharton & Garrison $1,120

Contact Karen Sloan at [email protected]

LOAD-DATE: January 13, 2014

Source: Legal > / . . . / > The National Law Journal Terms: "isn't rare anymore" (Suggest Terms for My Search) View: Full Date/Time: Friday, August 15, 2014 - 6:12 PM EDT

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Exhibit 11 9/18/2018 Case 5:17-cv-00603-EJD DocumentLegal Fees Cross 84-3 New Mark: Filed $1,500 05/09/19 an Hour - WSJ Page 207 of 231 DOW JONES, A N

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https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708

LAW Legal Fees Cross New Mark: $1,500 an Hour Billing rates for partners at elite corporate law irms keep rising, despite low inlation, weak demand

Documents iled in chapter 11 bankruptcy cases oer a rare public glimpse at the mounting hourly fees of law partners at elite corporate law irms. Above, the U.S. Bankruptcy Court in New York. PHOTO: BRENDAN MCDERMIDREUTERS

By Sara Randazzo and Jacqueline Palank Updated Feb. 9, 2016 1011 a.m. ET

The day of the $1,500-an-hour lawyer has arrived.

Partners at some of the nation’s top law firms are approaching—and, in a few cases, surpassing —that watershed billing rate, making the $1,000-an-hour legal fees that once seemed so steep look quaint by comparison.

Despite low inflation and weak demand for legal services, rates at large corporate law firms have risen by 3% to 4% a year since the economic downturn, according to Citi Private Bank’s Law Firm Group.

“We just raise them every year,” said John Altorelli, a finance lawyer at DLA Piper LLP in New York, who says the firm has set his rate at more than $1,500 an hour. Mr. Altorelli, who filed for personal bankruptcy in 2014 to halt a legal battle with the estate of his former law firm, Dewey & LeBoeuf LLP, cracked the $1,000-an-hour mark a decade ago. His fees have risen steadily ever since.

To soften the blow to clients, Mr. Altorelli does more than half his work on some kind of fixed- fee basis. “Using hourly rates is really anachronistic, but we still do it,” he said.

Raising rates ensures that law firms keep up with the competition and helps them wrest more money from clients, who routinely demand discounts for all but the most sensitive work.

“If you think of the rules of supply and demand, how in the world can they keep raising their rates?” said Jeff Carr, a former general counsel of oil-and-gas services and equipment company FMC Technologies who for years has been an outspoken opponent of hourly legal rates.

https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708?shareToken=st6e611c3936874addada61f4d0c84d264&ref=ar… 1/4 9/18/2018 Case 5:17-cv-00603-EJD DocumentLegal Fees Cross 84-3 New Mark: Filed $1,500 05/09/19 an Hour - WSJ Page 208 of 231 The rate creep from lower-cost legal-service providers and corporate clients that are keeping more legal work in-house. Revenue at law firms rose 4% last year, according to Wells Fargo Private Bank’s Legal Specialty Group, though demand rose just 0.5%.

“Lots of law firms will charge whatever the market can bear,” said the head of one of the nation’s 200 largest law firms.

Documents filed in chapter 11 bankruptcy cases offer a rare public glimpse at mounting fees. These court filings show the rates of partners specializing in corporate restructuring, as well as those with specialties like tax, litigation and corporate law.

A review of filings over the past three months in about two dozen bankruptcy cases shows that senior partners routinely charge between $1,200 and $1,300 an hour, with top rates at several large law firms exceeding $1,400.

Proskauer Rose LLP’s hourly partner billing rate has climbed as high as $1,475, while Ropes & Gray LLP’s tops out at $1,450, court papers show.

Kirkland & Ellis LLP’s top hourly billing rate is now $1,445. And rates at two firms—Akin Gump Strauss Hauer & Feld LLP and Skadden, Arps, Slate, Meagher & Flom LLP—peak at $1,425 an hour.

Representatives of the law firms declined to comment.

Martin Bienenstock, who leads Proskauer’s restructuring practice, called the $1,225 an hour he billed clients last year “a market rate similar to my peers at other firms,” and said he charges the same rate for nonbankruptcy work.

“The clients have kept coming back and growing during my 38- year career,” he said in an email, adding that clients generally prefer dealing directly with senior lawyers versus younger associates with lower rates.

In disclosing their firmwide rate increases, many firms tell the courts it is a standard way of keeping pace with “economic and other conditions.” These include rising fixed costs, such as real estate and salaries.

In theory, a law-firm partner’s pay rises and falls with the success of the firm. But, as competition for top talent increases, many firms feel the need to guarantee salaries or ensure a partner’s pay doesn’t fall, even in down years. https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708?shareToken=st6e611c3936874addada61f4d0c84d264&ref=ar… 2/4 9/18/2018 Case 5:17-cv-00603-EJD DocumentLegal Fees Cross 84-3 New Mark: Filed $1,500 05/09/19 an Hour - WSJ Page 209 of 231 Still, only elite t exclusively in New York and other major markets, and only in the least price-sensitive fields like mergers and acquisitions, restructuring, tax, antitrust and high-stakes litigation and appeals.

For lawyers at the very top of those fields, hourly rates can hit $1,800 or even $1,950.

“You have a very few people at the very top where price is almost no object,” said legal consultant Bruce MacEwen, who likens it to the way celebrities, sports stars and best-selling authors are paid. “It is a talent market.”

Most lawyers in the U.S. fall well below those high marks. In a survey of in-house legal departments by BTI Consulting Group, the average highest rate paid for law-firm partners was $875 an hour in 2015, up more than 27% from three years earlier. Of the respondents, 38% had paid more than $1,000 an hour for a lawyer, and the highest rate those in the survey paid was $1,600 an hour.

For many firms, the stated rate is simply a starting point in discussions with corporate law departments. As a result, said legal consultant Ward Bower of Altman Weil, “sophisticated” law firms tend to implement annual rate increases to offset clients’ requests for discounts.

Such discounts are becoming more commonplace. A decade ago, law firms could typically get clients to pay around 92% of their stated rates, according to Thomson Reuters Peer Monitor. Last year, that fell to less than 83%.

Smaller companies can get squeezed the most on fees, because they don’t send enough work to any one law firm to get the best deals.

–– ADVERTISEMENT ––

Companies with $4 billion or more in annual revenue were twice as likely as those with less than $100 million in revenue to use some form of alternative fee, according to a survey from industry trade group the Association of Corporate Counsel.

Some industry watchers view the raise-and-discount approach with skepticism.

“If clients are pushing back on rates, the answer isn't to raise them” and then ask for a discount, Mr. MacEwen said. “The answer is to provide better total value.”

Write to Sara Randazzo at [email protected] and Jacqueline Palank at [email protected]

Appeared in the February 9, 2016, print edition as 'Legal Fees Cross New Mark: $1,500 an Hour.'

https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708?shareToken=st6e611c3936874addada61f4d0c84d264&ref=ar… 3/4 9/18/2018 Case 5:17-cv-00603-EJD DocumentLegal Fees Cross 84-3 New Mark: Filed $1,500 05/09/19 an Hour - WSJ Page 210 of 231

Lawyers' Rising Hourly Fees

The hourly rates for many top attorneys in the U.S. rise annually, though client pressure often results in discounting. Below is a snapshot of hourly legal rates over $1,200 at elite corporate law irms. The igures are gleaned from legal bills iled in recent bankruptcy cases. Listed lawyers didn't comment on their fees,

except where noted. SEARCH

NAME FIRMPRACTICE

Weise, Proskauer Corporate Steven Rose LLP

Rocap, Kirkland Tax Donald & Ellis LLP

Maynes, Kirkland Tax Todd & Ellis LLP

Wolko, Ropes & Litigation Harvey Gray LLP

Goman, Skadden, Bankruptcy/restructuri Jay Arps, Slate, Meagher & Flom LLP

Goldring, Weil, Tax Stuart Gotshal & Manges LLP

Copyright ©2017 Dow Jones & Company, Inc. All Rights Reserved

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https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708?shareToken=st6e611c3936874addada61f4d0c84d264&ref=ar… 4/4 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 211 of 231

Exhibit 12 9/19/2018 Case 5:17-cv-00603-EJDAt Toys ‘R’ Us, a $200 Million Document Debt Problem 84-3 Could FiledLead to 05/09/19$348 Million in FeesPage - The 212 New ofYork 231 Times

At Toys ʻRʼ Us, a $200 Million Debt Problem Could Lead to $348 Million in Fees

By Michael Corkery

May 11, 2018

Last spring, Toys “R” Us, struggling in the face of competition, wanted to refinance about $200 million in debt.

A year and a messy bankruptcy later, Toys “R” Us is expected to pay as much as $348 million for the dozens of bankers, lawyers and consultants that tried to fix its problems.

The giant payout, detailed in company documents released on Friday, shows how lucrative corporate bankruptcies can be for professionals, while leaving many workers and creditors with scraps.

Toys “R” Us’ swift downfall has been particularly painful for the company’s more than 30,000 employees, who are losing their jobs as the company shuts its doors across the United States in the next few weeks.

The store workers say they will not receive severance, even though many say they were originally promised modest payouts. In the final days, Toys “R” Us is paying many employees for full-time work, but not requiring them to come into the office if they aren’t needed.

“This aggravates me so much,” said Tracy Forbes, a manager at a Babies “R” Us store in Phoenix. “These people are getting rich, and we are getting nothing after keeping this company going for 60 years.”

For creditors, it is all about the pecking order.

Vendors are fighting to get paid for their toys and landlords are scrambling to find new tenants for the hulking stores that Toys “R” Us is leaving behind. Bankruptcy professionals typically sit near the top and are largely assured of getting paid.

The high cost of bankruptcy has been an issue for years. The fees in the Lehman Brothers case topped $1 billion two years after the investment bank filed the largest corporate bankruptcy case in history and help set off the global financial crisis in 2008.

https://www.nytimes.com/2018/05/11/business/toys-r-us-bankruptcy.html 1/3 9/19/2018 Case 5:17-cv-00603-EJDAt Toys ‘R’ Us, a $200 Million Document Debt Problem 84-3 Could FiledLead to 05/09/19$348 Million in FeesPage - The 213 New ofYork 231 Times “The fees e e nn LoPucki, a bankruptcy professor at the University of California, Los Angeles.

Companies can choose where they want to file for bankruptcy. And Mr. LoPucki said bankruptcy judges were reluctant to push back on fees, fearing lawyers would choose to file big cases elsewhere.

Toys “R” Us, based in Wayne, N.J., filed its Chapter 11 case in federal court in Richmond, Va., which has a reputation for approving large professional fees.

Toys “R” Us bankruptcy lawyers from Kirkland & Ellis said in a court filing last year that they were charging as much as $1,745 an hour in the case. That was 25 percent more than the average highest rate in 10 of the largest bankruptcies in 2017, according to an analysis by The New York Times.

Bankruptcy professionals say that working to reorganize or liquidate a company is time- consuming, complicated and intense. Toys “R” Us is made up of multiple corporate entities — in the United States and internationally — that have hired lawyers and advisers.

All of that has added up to a big bill. So far, the company said, it has shelled out $108 million on professional fees. It expects to spend as much as $348 million as a result of the bankruptcy, according to the company documents.

Toys “R” Us collapsed quickly, going from a potential turnaround play to a costly liquidation.

With cash tight, the company wanted last spring to take some of the pressure off by refinancing about $200 million of its total $5 billion in debt. But when word got out that Toys “R” Us had hired restructuring advisers, the company’s vendors were spooked heading into the crucial Christmas season.

By September, Toys “R” Us said it had no choice but to file for bankruptcy.

The company had originally hoped to shed some of its debt and keep operating. But after dismal holiday sales, the Toys “R” Us lenders began to question whether the company had a future and threatened to pull back on financing.

In March, the company said it would close hundreds of United States stores and lay off all its workers.

Toys “R” Us problems date to 2005, when the private equity firms Bain Capital and Kohlberg Kravis Roberts and the real estate firm Vornado Realty Trust acquired the company in a $6.6 billion leveraged buyout.

https://www.nytimes.com/2018/05/11/business/toys-r-us-bankruptcy.html 2/3 9/19/2018 Case 5:17-cv-00603-EJDAt Toys ‘R’ Us, a $200 Million Document Debt Problem 84-3 Could FiledLead to 05/09/19$348 Million in FeesPage - The 214 New ofYork 231 Times Saddled w mazon. Loan payments were sapping cash that it could have spent on updating its cavernous stores and building out its website.

Ms. Forbes’s last day at the Phoenix store is on June 30. The company, she says, will stop contributing to her 401(k) account next week. Ms. Forbes says she is also owed six weeks of vacation, but will not be paid for it.

This week, she traveled to Washington D.C. with the labor advocacy group OUR to lobby members of Congress on the need to protect severance in bankruptcy cases. “If we can’t get severance from Toys ʻR’ Us, we have to stop it from happening to someone else,” Ms. Forbes said.

A version of this article appears in print on May 11, 2018, on Page B1 of the New York edition with the headline: At Toys ʻRʼ Us, Bankruptcy Was Painful, But Not for All

https://www.nytimes.com/2018/05/11/business/toys-r-us-bankruptcy.html 3/3 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 215 of 231

Exhibit 13 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 216 of 231

Expenses for Fitzhenry-Russell v. The Coca-Cola Company

Arbitrators/Mediators (E121) 7,775.00 2/4/19 JAMS mediation 7,500.00 2/20/19 JAMS mediation 275.00 7,775.00

Court Fees (E112) 761.66 12/28/16 Santa Cruz e-file K. Simplicio - e-file fee 16.66 12/28/16 CA e-file Complaint Filing 435.00 4/21/17 US Disrict Court NDCA ND Cal Fee for pro hac vice application 310.00 761.66

Delivery Svcs & Msgrs (E107) 639.75 1/10/17 S&R Services Service of Complaint 65.00 USDC Filing of Pl's Opp to Def Mot to Dismiss and Pl's Opp to Def's REq for 3/31/17 S&R Services Judicial Notice 50.00 6/19/17 S&R Services Delivery of Chamber's Copy 45.00 Marie McCrary - shipping product for 8/11/17 UPS Store testing 47.00 Sub to Prod Doc, Info, or Objects or to 9/29/17 S&R Services Permit Inspection 65.00 2/15/18 S&R Services Joint Disputes: #1-3 to Judge Lloyd 152.00 3/22/18 S&R Services Served Givaudan Flavors Corp 135.00 1/31/19 S&R Services Mot to Appt Interim Counsel 80.75 639.75

Deposition Transcripts (E115) 6,252.90 9/27/18 Veritext Corp Depo of J Fitzhenry-Russell 1,100.55 10/3/18 Veritext Corp Depo of Colin B. Weir 1,188.60 10/11/18 Nogara Reporting Service Kevin Hamilton and Melissa Abbott 1,537.70 10/12/18 Nogara Reporting Service Dorlisa Bacote 1,418.40 11/8/18 VS Video Productions Video Deposition of Kent Van Liere, Ph.D. 331.00 11/8/18 Nogara Reporting Service Kent Van Liere, Ph.D 676.65 6,252.90

Experts (E119) 44,557.37

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 217 of 231

Economics and Technology 1/8/18 Inc. Economics expert, Colin Weir 337.50 Economics and Technology 2/2/18 Inc. Economics expert, Colin Weir 759.37 Economics and Technology 3/6/18 Inc. Economics expert, Colin Weir 615.62 3/26/18 Information Resources, Inc. Sales data for economics expert 3,933.00 Economics and Technology 4/9/18 Inc. Economics expert, Colin Weir 2,109.38 4/11/18 JMDSTAT Consulting Survey expert, Michael Denis 7,340.00 5/29/18 JMDSTAT Consulting Survey expert, Michael Denis 7,100.00 Economics and Technology 6/5/18 Inc. Economics expert, Colin Weir 3,712.50 8/2/18 JMDSTAT Consulting Survey expert, Michael Denis 7,100.00 Economics and Technology 8/2/18 Inc. Economics expert, Colin Weir 3,375.00 10/2/18 JMDSTAT Consulting Survey expert, Michael Denis 6,175.00 Economics and Technology 12/6/18 Inc. Economics expert, Colin Weir 2,000.00 44,557.37

Litigation Sup Vendors (E118) 855.48 12/12/17 CS Disco data management 300.00 2/2/18 CS Disco data management 38.21 4/4/18 CS Disco data management 7.10 4/9/18 CS Disco data management 9.25 6/2/18 CS Disco data management 52.44 7/2/18 CS Disco data management 13.63 8/2/18 CS Disco data management 14.06 9/2/18 CS Disco data management 45.25 10/2/18 CS Disco data management 14.45 11/2/18 CS Disco data management 35.48 12/2/18 CS Disco data management 108.71 1/2/19 CS Disco data management 39.93 2/2/19 CS Disco data management 40.56 3/2/19 CS Disco data management 103.60 4/2/19 CS Disco data management 32.81 855.48 Local Travel (E109) 125.13 9/26/18 S. Safier, Auto Mileage Travel, Pltf's Deposition 98.10 Uber to in person meet and 1/23/18 confer on discovery disputes S. Safier 10.35

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 218 of 231

Uber to in person meet and 1/23/18 confer on discovery disputes S. Safier 5.00 Lyft from in person meet and confer on discovery 1/23/18 disputes S. Safier 11.68 125.13

Meals (E111) 602.84 9/26/18 Santa Cruz Diner S. Safier, Pltif's Depo 33.63 9/27/18 Andersen Bkry-Crocker S. Safier, Pltif's Depo 3.12 9/27/18 Marlowe San Francisco A.Gutride, Dennis depo prep 10.10 10/2/18 Ben & Jerry's Matt McCrary - Colin Weir depo 7.80 Kitchens of the Bay Stat 10/2/18 Boston, MA Matt McCrary - Colin Weir Deposition 12.07 10/3/18 CVS Pharmacy - Boston Matt McCrary - Colin Weir depo 14.24 10/3/18 Wendy's Boston Matt McCrary - Colin Weir depo 11.44 10/3/18 Brueggers, Boston Matt McCrary - Colin Weir depo 7.68 10/10/18 South City Kitchen J. Kagansky - 30b6 Depos 30.05 10/10/18 Courtyard by Marriott Matt McCrary, 30b6 deposition 40.02 Boardwalk Burgers, Austin, 10/10/18 TX Matt McCrary, 30b6 deposition 12.61 10/11/18 Courtyard by Marriott J. Kagansky - 30b6 depos 2.48 10/11/18 Barcelona Ironworks J. Kagansky - 30b6 Depos 69.45 10/11/18 Courtyard by Marriott J. Kagansky - 30b6 Depos 10.26 10/12/18 Atlanta City Daily World J. Kagansky - 30b6 Depos 3.88 10/12/18 Courtyard by Marriott J. Kagansky - 30b6 Depos 10.26 10/12/18 Chick Fil A Atlanta J. Kagansky - 30b6 Depos 8.72 10/12/18 Burger King, Atlanta Matt McCrary, 30b6 deposition 8.52 10/13/18 Courtyard by Marriott Matt McCrary, 30b6 deposition 6.04 10/13/18 Courtyard by Marriott Matt McCrary, 30b6 deposition 3.52 11/7/18 The Kitchen, Denver Marie McCrary - Depo of Van Liere 43.18 11/8/18 Starbucks Marie McCrary - Depo of Van Liere 7.99 2/18/19 Maple and Ash, Chicago, IL S. Safier - mediation 218.86 2/18/19 KFC Pizza Hut Denver Matt McCrary - mediation 9.39 2/19/19 Hudson News Matt McCrary - mediation 17.53 602.84

Online Research (E106) 39.66 7/11/17 Pacer Service Center Marie McCrary 15.45 11/7/17 Pacer Service Center Marie McCrary 1.70 2/26/18 Pacer Service Center Marie McCrary 3.05 1/14/19 Pacer Service Center S. Safier 19.46

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 219 of 231

39.66

Other (E124) 1,133.25 9/30/16 Facebook Advertising Case Investigation 46.49 10/31/16 Facebook Advertising Case Investigation 84.27 8/1/17 King Soopers Product for Testing 4.01 8/1/17 Hays Market, Inc. Product for Testing 23.73 8/2/17 Walmart.com Product for Testing 10.50 8/2/17 Walmart.com Product for Testing 9.49 8/3/17 Walmart.com Product for Testing 11.07 8/8/17 Amazon.com shipping boxes 11.45 8/12/17 Amazon Marketplace Pmts Product for Testing 13.29 8/24/17 Walmart.com Reed's Ginger Ale for Testing 17.11 8/24/17 Walmart.com Vernors Ginger Ale for testing 6.29 8/24/17 Walmart.com Seagrams Ginger Ale for Testing 11.92 8/24/17 Walmart.com Schwepps Ginger Ale for Testing 12.35 8/24/17 Amazon Marketplace Pmts Ginger Ale for testing 8.20 8/25/17 Walmart.com Reeds Ginger Ale for Testing 17.11 8/1/17 Whole Foods Product for Testing 5.67 10/10/18 Fedex Office Supplies for 30b6 Depos 13.47 10/11/18 Fedex Office Supplies for 30b6 Depos 6.50 10/21/18 Facebook Advertising Case Investigation 500.00 11/28/18 Facebook Advertising Case Investigation 320.33 1,133.25

Out -of-Town Travel (E110) 6,727.74 9/25/18 SWA Earlybird Matt McCrary - Travel to Weir Deposition 25.00 9/25/18 SWA Earlybird Matt McCrary - Weir Deposition 25.00 9/25/18 Southwest Airlines Matt McCrary - Weir Deposition 524.97 9/27/18 J Fitzhenry-Russell Plaintiff's Travel to Depo 420.00 10/1/18 Hotels.com Matt McCrary - Weir Deposition 754.22 10/2/18 Uber Matt McCrary - Weir Deposition 18.77 10/2/18 Uber Matt McCrary - Weir Deposition 2.00 10/3/18 Uber Matt McCrary - Weir depo 16.29 10/3/18 Uber Matt McCrary - Weir depo 3.00 10/4/18 Jessica Kagansky Airline Reimbursement - 10/10-10/11/18 835.53 10/4/18 DIA Parking Operations Matt McCrary - Weir depo 50.00 Matt McCrary - Atlanta, 30(b)(6) 10/5/18 Delta Airlines deposition 605.40 Matt McCrary - Atlanta, 30(b)(6) 10/6/18 Hotels.com deposition 486.95 10/10/18 Lyft J. Kagansky - 30b6 Depos 56.99

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 220 of 231

10/10/18 Lyft J. Kagansky - 30b6 Depos 25.00 10/10/18 Uber Matt McCrary, 30b6 deposition 21.94 10/10/18 Uber Matt McCrary, 30b6 deposition 3.00 10/11/18 Lyft J. Kagansky - 30b6 Depos 7.60 10/11/18 Lyft J. Kagansky - 30b6 Depos 9.60 10/11/18 Lyft J. Kagansky - 30b6 Depos 10.60 10/11/18 SWA Inflight J. Kagansky - 30b6 Depos 8.00 10/12/18 Lyft J. Kagansky - 30b6 depos 9.60 10/12/18 NYC - Taxi J. Kagansky - 30b6 Depos 43.16 10/13/18 Lyft J. Kagansky - 30b6 Depos 23.39 10/13/18 DIA Parking Operations Matt McCrary, 30b6 deposition 75.00 Mileage to Airport, Colin Weir Depo in 10/16/18 Matt McCrary Boston 54.50 10/16/18 Matt McCrary Mileage to Airport, 30b6 depo in Atlanta 54.50 11/8/18 The Curtis Marie McCrary - Depo of Van Liere 390.19 11/29/18 Marie McCrary mileage to Denver, Depo of Van Liere 46.92 2/4/19 Southwest Airlines M. McCrary - mediation 105.00 2/4/19 Southwest Airlines M. McCrary - mediation 395.96 2/8/19 SWA Earlybird Matt McCrary - mediation 20.00 2/8/19 Southwest Airlines Matt McCrary - mediation 128.98 2/12/19 American Airlines S. Safier - mediation 178.30 2/12/19 United Airlines S. Safier - mediation 198.30 2/17/19 Uber S. Safier - mediation 19.98 2/18/19 Uber S. Safier - mediation 34.24 2/18/19 Uber S. Safier - mediation 36.63 2/18/19 Uber Matt McCrary - mediation 5.00 2/18/19 Uber Matt McCrary - mediation 25.76 2/19/19 United Airlines S. Safier - mediation 75.00 2/19/19 United Airlines S. Safier - mediation 7.99 2/19/19 Uber S. Safier - mediation 8.03 2/19/19 Uber S. Safier - mediation 11.02 2/19/19 Uber S. Safier - mediation 8.04 2/19/19 Uber S. Safier - mediation 35.88 2/19/19 Southwest Airlines Matt McCrary - mediation 317.00 2/19/19 Uber Matt McCrary - mediation 3.00 2/19/19 Uber Matt McCrary - mediation 5.00 2/19/19 Uber Matt McCrary - mediation 26.98 2/20/19 Loews Hotel, Chicago S. Safier - mediation 163.19 2/20/19 Loews Hotel, Chicago Matt McCrary - mediation 168.50 2/20/19 Uber S. Safier - mediation 34.73 2/20/19 Matt McCrary Mileage to Airport, - Mediation 58.11 2/20/19 DIA Parking Operations Matt McCrary - mediation 50.00 6,727.74

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 221 of 231

Outside Printing (E102) 1,270.71 9/27/18 Fedex Office A. Gutride, Dennis Depo Prep 271.09 9/27/18 Fedex Office A. Gutride, Dennis Depo Prep 14.30 9/27/18 Fedex Office A. Gutride, Dennis Depo Prep 7.64 10/9/18 Fedex Office J. Kagansky - Depo of 30b6 Witnesses 471.17 10/11/18 Fedex Office J. Kagansky - 30b6 Depos 3.96 10/11/18 Fedex Office J. Kagansky - 30b6 Depos 93.55 10/11/18 Fedex Office J. Kagansky - 30b6 Depos 125.34 10/11/18 Fedex Office J. Kagansky - 30b6 depos 96.86 10/11/18 Fedex Office J. Kagansky - 30b6 Depos 90.57 10/15/18 Fedex Office J. Kagansky - 30b6 Depos 96.23 1,270.71

Postage (E108) 64.03 12/28/16 USPS S. Safier 16.51 8/10/17 UPS Store Ship to Dr. Culp 24.97 1/22/18 USPS S. Safier 22.55 64.03

Total Expenses 70,805.52

Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 222 of 231

Exhibit 14 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 223 of 231

Recent GSLLP Settlements in Product Labeling Cases

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company CASE BACKGROUND Case No. 3:15-cv-2150 4:14-cv-2400 (N.D. RG 14-726707 4:14-cv-2411 (N.D. GCG 14- 3:12-cv-4936 (N.D.Cal.) Cal.) (Alameda Sup. Cal.) 538168 (San (N.D. Cal.) Ct.) Francisco Sup. Ct.) Issue Wipes were Olive oil falsely Olive oil falsely Olive oil falsely Wipes were falsely Products falsely falsely advertised as “extra advertised as advertised as advertised as advertised as advertised as virgin” and “extra virgin” and “Imported from Italy” “flushable” and safe “white chocolate” “flushable” and “Imported from “Imported from for sewers and septic and “all natural” safe for sewers Italy” Italy” systems and septic systems Date Filed April 6, 2015 May 23, 2014 May 23, 2014 May 23, 2014 March 21, 2014 August 17, 2012 Date of March 29, 2019 August 29, 2018 March 16, 2018 July 7, 2017 June 6, 2017 February 20, 2015 Final Approval Settlement All consumers All consumers in the All consumers in All consumers in the All consumers in All consumers in Class who United States who the United States United States who California who the United States purchased the purchased the extra who purchased purchased the purchased the who purchased the challenged virgin olive oil the extra virgin challenged products challenged products challenged product in the products between olive oil products between May 23, between March 21, products between United States May 23, 2010 and between May 23, 2010 and June 30, 2010 and December August 17, 2008 between April April 16, 2018, 2010 and 2015 9, 2016 and October 2, 6, 2011 and and/or who December 16, 2014 November 26, purchased any of the 2016, and/or who 2018, challenged olive oil purchased any of excluding products between the challenged purchases in the May 23, 2010 and olive oil products Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 224 of 231

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company State of New December 31, 2015 between January York and 1, 2012 and July purchases for 31, 2015 purposes of resale.

NOTICE Print People San Francisco East County People Magazine, Press release through People Magazine, Notice Magazine, Chronicle, People Times Good Housekeeping PR News Wire Oakland Tribune Good Magazine, press Magazine Housekeeping, release through PR National News Wire Geographic, press release through PR News Wire Online 101 million 58 million 89.3 million 165.5 million 11.1 million 316 million Notice impressions impressions targeted impressions impressions targeted impressions targeted impressions targeted at at likely class targeted at likely at likely class at likely settlement targeted at likely likely class members class members members class members class members members Direct None None Notice provided None Direct notice sent to Direct notice sent Notice at point of sale to 10 class members for to 21,358 class past purchasers whom the defendant members who had using club card had contact purchased purchase history information products from the defendant’s website Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 225 of 231

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company Other None Publication on Publication on Publication on None None Notice www.topclassactions www.topclassacti www.topclassactions. .com ons.com com Cost of Unknown $432,700 Unknown Unknown Unknown $765,002.15 Notice

CLAIMS Total Value Claims Made $7 million common Claims Made Claims Made Claims Made $5.3 million fund common fund Claims 137,068 valid 255,581 valid claims 15,164 valid 53,030 valid claims 19,077 valid claims 83,783 valid Received claims claims claims Total Value $537,879 $3,996,336.81 $46,335.50 $210,985.00 $170,436 $902.907.63 of Claims Claim Cap $4.20 $25 $1.25-$7.50, $5 $50 $24 Without depending on Proof of product Purchase purchased and whether class member elected cash or Safeway gift card Claim Cap $30.00 None (unlimited) None (unlimited) None (unlimited) None (unlimited) None (unlimited) With Proof of Purchase Other None If money is left in Class members None None None Monetary fund, the claim could receive Relief amount will be three times as increased pro rata, much if they up to five times the elected to receive Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 226 of 231

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company initial amount the funds in the form of a Safeway gift card (approximately two-thirds of claimants elected the gift card) Average $3.92 Not yet calculated $3.05 $3.98 $8.93 $10.78 Recovery Per Claimant Approxima 3,900,000 39,340,000 Unknown 3,679,000 Unknown Unknown te Size of Class Approxima 2,000,000 20,174,359 Unknown 1,886,667 Unknown Unknown te Number of Households 1 Household 6.8% .85%* Unknown 2.8% Unknown Unknown Claims Rate

OTHER RELIEF Injunctive Changes to Changes to labeling, Changes to Changes to labeling Changes to labeling Changes to Relief labeling; changes to labeling; changes labeling

1 The Census Bureau reports that there is an average of 1.95 adults per household in the United States. See https://www.census.gov/data/tables/2018/demo/families/cps-2018.html (Table AVGI), last accessed January 4, 2019. Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 227 of 231

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company improved packaging, changing to packaging product design to testing and testing methodologies methodologies Value of No monetary Estimated to save Estimated to save Estimated to save No monetary estimate Estimated to save Injunctive estimate class members $68.3 class members class members $19.9 provided class members Relief provided million $5,279,450 million $13.46 million Cy Pres None Consumers Union None None None Consumers Union; and Center for Food National Safety Consumer Law Center; University of California, Davis, Food Science & Technology Department; Florida State University, Food & Nutritional Science Department

FEES, COSTS, AND INCENTIVES Lodestar $2,574,041.83 $2,2257,030.29 $1,792,602.80 $1,470,507.50 $927,975 $1,711,710

Total Fees $2,150,000 $2,250,319.73 $1,426,500 $982,500 (costs: $650,000 (costs: $1,662,572.12 & Costs (costs: (costs: $150,319.73) (costs: $108,268.20) $29,065.60) (costs: $87,572.15) Awarded $261,611.11) $119,325.45) (Costs) Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 228 of 231

Case Pettit v. Procter Koller v. Deoleo Kumar v. Kumar v. Salov Machlan v. Procter Miller v. Name & Gamble USA, Inc. Safeway, Inc. North America & Gamble Company, Ghirardelli Company Corporation et al Chocolate Company Incentive $1,000-$5,000 $1,000-$5,000 $6,490 $2,500 $5,000 $10,000

*These numbers are based on a preliminary analysis; the final analysis has not been received as of the May 9, 2019. Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 229 of 231

Recent GSLLP Settlements in Product Labeling Cases

Case Name Fitzhenry-Russell v. Keurig Dr. Pepper, Inc. CASE BACKGROUND Case No. 17-cv-00564-NC (N.D.Cal.) Issue False advertising of Canada Dry ginger ale as “made from real ginger”) Date Filed December 28, 2016 Date of Final April 10, 2019 Approval Settlement All persons who, Class between December 28, 2012 and June 26, 2018, purchased any Canada Dry Ginger Ale Products in the state of California.

NOTICE Print Notice People Magazine, Good Housekeeping, and press release through PR News Wire Online Notice 37.8 million impressions targeted at likely class members Direct Notice Direct notice sent to Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 230 of 231

Case Name Fitzhenry-Russell v. Keurig Dr. Pepper, Inc. class members for whom the defendant had contact information Other Notice Publication on www.topclassactions.c om Cost of Notice Unknown

CLAIMS Total Value Claims Made Claims 92,048* Received Total Value of $443,344.40* Claims Claim Cap $5.20 Without Proof of Purchase Claim Cap $40.00 With Proof of Purchase Other none Monetary Relief Average $4.82* Recovery Per Claimant Approximate 2,380,000* Size of Class Approximate 78,268* Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 231 of 231

Case Name Fitzhenry-Russell v. Keurig Dr. Pepper, Inc. Number of Households2 Household 1.18* Claims Rate

OTHER RELIEF Injunctive Changes to labeling Relief Value of No monetary estimate Injunctive provided Relief Cy Pres None

Lodestar $4,364,398.50

Total Fees & $2,250,000 Costs Awarded (costs: $ $407,611.95) (Costs) Incentive $5,000

*These numbers are based on a preliminary analysis; the final analysis has not been received as of the May 9, 2019.

2 The Census Bureau reports that there is an average of 1.95 adults per household in the United States. See https://www.census.gov/data/tables/2018/demo/families/cps-2018.html (Table AVGI), last accessed January 4, 2019.