Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 1 of 52 PAGEID #: 7128 1 BLOOD HURST & O’REARDON, LLP TIMOTHY G. BLOOD (CA 149343) 2 LESLIE E. HURST (CA 178432) THOMAS J. O’REARDON II (CA 247952) 3 501 West Broadway, Suite 1490 San Diego, CA 92101 4 Telephone: 619/338-1100 619/338-1101 (fax) 5 [email protected] [email protected] 6 [email protected] 7 Attorneys for Plaintiffs and the Class 8 [Additional counsel appear on signature page.] 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF OHIO LLP , 12 DINO RIKOS, TRACEY BURNS, and Case No. 11-CV-00226-TSB LEO JARZEMBROWSKI, On Behalf of 13 Themselves, All Others Similarly Situated EARDON CLASS ACTION and the General Public, O’R 14 PLAINTIFFS’ MOTION FOR FINAL & Plaintiffs, APPROVAL OF CLASS ACTION 15 SETTLEMENT AND REQUEST FOR URST v. AWARD OF ATTORNEYS’ FEES AND H 16 EXPENSES THE PROCTER & GAMBLE 17 COMPANY, LOOD LOOD B Date: April 16, 2018 18 Defendant. Time: 10:00 a.m. Judge: Hon. Timothy S. Black 19 Courtroom: 815 20 21 22 23 24 25 26 27 28 No. 1:11-cv-226-TSB 00131658 PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 2 of 52 PAGEID #: 7129 1 Pursuant to Fed. R. Civ. P. 23, Plaintiffs Dino Rikos, Tracey Burns, and Leo 2 Jarzembowski, move for entry of a judgment and final approval order consistent with the terms 3 of the Parties’ Stipulation of Settlement, including its exhibits: 4 (1) Confirming the appointment of Dino Rikos, Tracey Burns, and Leo 5 Jarzembowski as the Class Representatives for the Settlement Class; 6 (2) Confirming certification of the Settlement Class; 7 (3) Confirming the appointment as Class Counsel of Timothy G. Blood and 8 Thomas J. O’Reardon II of Blood Hurst and O’Reardon, LLP; 9 (4) Granting final approval of the Settlement, including the Settlement Agreement 10 and its exhibits (the “Settlement”), and finding the Settlement to be fair, reasonable, and 11 adequate; LLP , 12 (5) Finding that the form, content, and methods of disseminating Class Notice of 13 the Settlement constituted the best notice practicable under the circumstances and satisfied the EARDON O’R 14 requirements of Fed. R. Civ. P. 23(c) and the United States Constitution (including the due & 15 process clause); URST H 16 (6) Awarding Attorneys’ Fees and Expenses, and Class Representative service 17 awards; and LOOD LOOD B 18 (7) Dismissing the Action with prejudice as provided for by the Settlement. 19 This Motion is based on the proposed Settlement, the accompanying Memorandum of 20 Points and Authorities submitted by Plaintiffs, the supporting declarations and exhibits, all 21 pleadings and documents on file (including, but not limited to, Plaintiffs’ Motion for 22 Preliminary Approval (Doc. No. 166) and the Court’s Preliminary Approval Order (Doc. 23 No. 167)), and upon such evidence and arguments as may properly come before the Court at 24 the time of the hearing. 25 /// 26 /// 27 /// 28 /// i No. 1:11-cv-226-TSB 00131658 PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 3 of 52 PAGEID #: 7130 1 A proposed Final Judgment and Order Approving Settlement is attached as Exhibit 2 to 2 the Declaration of Timothy G. Blood in Support of Motion for Preliminary Approval of Class 3 Action Settlement. See Doc. No. 166-2 at PageID 6927. 4 Dated: March 2, 2018 BLOOD HURST & O’REARDON, LLP TIMOTHY G. BLOOD (CA 149343) 5 LESLIE E. HURST (CA 178432) THOMAS J. O’REARDON II (CA 247952) 6 By: s/ Timothy G. Blood 7 TIMOTHY G. BLOOD 8 501 West Broadway, Suite 1490 San Diego, CA 92101 9 Tel: 619/338-1100 619/338-1101 (fax) 10 [email protected] [email protected] 11 [email protected] LLP , Attorneys for Plaintiffs and the Class 12 FUTSCHER LAW PLLC 13 EARDON DAVID A. FUTSCHER 913 N. Oak Drive O’R 14 Villa Hills, KY 41017 & Tel: 859/912-2394 15 [email protected] URST H 16 NICHOLAS & TOMASEVIC, LLP CRAIG M. NICHOLAS (178444) 17 ALEX M. TOMASEVIC (245598) LOOD LOOD B 225 Broadway, 19th Floor 18 San Diego, CA 92101 Tel: 619/325-0492 19 619/325-0496 (fax) [email protected] 20 [email protected] MORGAN & MORGAN, P.A. 21 RACHEL L. SOFFIN One Tampa City Center 22 201 N. Franklin St., 7th Floor Tampa, FL 33602 23 Tel: 813/223-5505 813/223-5402 (fax) 24 [email protected] 25 O’BRIEN LAW FIRM, PC EDWARD K. O’BRIEN 26 One Sundial Avenue, 5th Floor Manchester, NH 03103 27 Tel: 603/668-0600 603/672-3815 (fax) 28 [email protected] ii No. 1:11-cv-226-TSB 00131658 PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 4 of 52 PAGEID #: 7131 1 SAMUEL ISSACHAROFF 40 Washington Square South 2 New York, NY 10012 Tel: 212/998-6580 3 [email protected] BONNETT, FAIRBOURN, FRIEDMAN 4 & BALINT, P.C. ANDREW S. FRIEDMAN 5 ELAINE A. RYAN PATRICIA N. SYVERSON (203111) 6 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 7 Tel: 602/274-1100 602/798-5860 (fax) 8 [email protected] [email protected] 9 [email protected] 10 Additional Attorneys for Plaintiffs 11 LLP , 12 13 EARDON O’R 14 & 15 URST H 16 17 LOOD LOOD B 18 19 20 21 22 23 24 25 26 27 28 iii No. 1:11-cv-226-TSB 00131658 PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 5 of 52 PAGEID #: 7132 1 S.D. OHIO CIV. R. 7.2(a)(3) MEMORANDUM SUMMARY 2 Pursuant to S.D. Ohio Civ. R. 7.2(a)(3) and this Court’s Civil Procedures, plaintiffs 3 Dino Rikos, Tracey Burns, and Leo Jarzembowski (“Plaintiffs”) respectfully submit this 4 summary regarding their over length memorandum in support of their motion for final 5 approval of class action settlement and request for an award of attorneys’ fees and expenses. 6 Plaintiffs and P&G seek final approval of a nationwide class action settlement. This 7 memorandum is filed on behalf of Plaintiffs. The proposed Settlement has been reached after 8 seven years of litigation that included extensive motion practice before this Court, the Sixth 9 Circuit and the U.S. Supreme Court, fact and expert discovery involving over 770,000 pages 10 of documents, subpoenas to more than 30 third-parties, 19 depositions, 14 testifying experts, 11 21 expert declarations and reports, and protracted settlement negotiations with three different LLP , 12 mediators before and after rulings on class certification. The proposed settlement is fair, 13 reasonable and adequate and readily meets the standards for final approval. Furthermore, EARDON O’R 14 Plaintiffs’ Counsel’s request for an award of attorneys’ fees and expenses, and for Class & 15 Representative service awards are fair, reasonable and well within the ranges set by governing URST H 16 case law. 17 Section I (pages 1-2) is a brief introduction that summarizes the primary reasons why LOOD LOOD B 18 the proposed settlement should receive final approval and the proposed fee award should be 19 granted, including outlining the Settlement’s benefits, and the successful Class Notice 20 Program. 21 Section II (page 2) sets forth the general history of the litigation, including the 22 substantial motion practice, appeal, and party, third-party and expert discovery. Further detail 23 is provided in the Declaration of Timothy G. Blood in Support of Motion for Preliminary 24 Approval of Class Action Settlement. See Doc. No. 166-1 25 Section III (pages 3-8) discusses the terms of the Settlement. Under the Settlement, 26 P&G will provide up to $15 million in cash refunds, plus at least $5 million and up to $10 27 million in Digestive Health Improvement Contributions that will directly benefit the 28 Settlement Class. To obtain the cash payments, Settlement Class Members need only return a iv No. 1:11-cv-226-TSB 00131658 PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:11-cv-00226-TSB Doc #: 170 Filed: 03/02/18 Page: 6 of 52 PAGEID #: 7133 1 simple Claim Form, and no proof of purchase is required. P&G will separately pay all notice 2 and settlement administration expenses, awards of Plaintiffs’ Counsel’s attorneys’ fees and 3 costs, and Class Representative service awards. P&G agrees to not make the “clinically 4 proven” five symptom relief advertising claims absent new supporting clinical data or analysis, 5 or a change in the product formula. 6 Section IV (pages 8-15) discusses application of the requirements of final settlement 7 approval, and factors considered by courts in this Circuit. At final approval, the court’s role is 8 to determine whether the settlement is not collusive and, “taken as a whole, is fair, reasonable 9 and adequate to all concerned.” Clark Equipment Co. v. International Union, Allied Industrial 10 Workers, 803 F.2d 878, 880 (6th Cir. 1986); see also Fed. R. Civ. P. 23(e)(2). The Settlement 11 is fair, reasonable, and adequate, and should be finally approved. LLP , 12 Section V (pages 15-18) sets forth and applies Rule 23’s certification requirements to 13 the Settlement Class. With one exception, the proposed Settlement Class is identical to the one EARDON O’R 14 certified by this Court and affirmed by the Sixth Circuit: the Settlement Class is nationwide.