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Declaration of Adam J. Gutride in Support of Plaintiffs' Motion For

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Declaration of Adam J. Gutride in Support of Plaintiffs' Motion For 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 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:17-cv-00603-EJD Document 84-3 Filed 05/09/19 Page 2 of 231 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.
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