MEMORANDUM AND ORDER
Before’" me, following a fairness hearing and the submission of various post-hearing materials as I directed, is a proposed settlement agreement between the defendants, Vibram USA Inc. and Vibram Five-Fingers LLC (collectively, “Vibram”), both Massachusetts residents, and a nationwide class of consumers who purchased Five-Fingers “barefoot” footwear directly from the defendants or through authorized retailers between March 21, 2008, and May 27, 2014. The plaintiffs in these consolidated actions allege that the defendants misrepresented in their advertising and marketing that this footwear provides certain health benefits to wearers.
The plaintiffs have moved for approval of the proposed settlement agreement, which would establish a $3,750,000 non-reversionary settlement fund to provide refunds to eligible class members and cover the costs associated with this litigation, including administrative costs, attorneys’ fees and expenses, and incentive awards for the named plaintiffs. The agreement also provides that Vibram will refrain from making representations of health benefits associated with FiveFingers unless it has reliable evidence to support those representations.
In connection with settlement approval, class counsel for the plaintiffs seek $937,500 in attorneys’ fees, $61,674.44 in expenses,
This memorandum sets forth in detail my reasons for finding that the proposed settlement agreement is fair, reasonable and adequate as required by Fed.R.Civ.P. 23(e). Accordingly, I will approve the class with finality and also approve the settlement agreement involving the class, Dkt. No. 80. I further award the attorneys’ fees, expenses, and incentive awards requested.
I. BACKGROUND
A. Procedural History
1. Underlying Actions
In mid-2012, plaintiffs in three states filed putative class action complaints alleging that the defendants engaged in deceptive marketing of FiveFingers footwear by advertising through in-store and online mechanisms, as well as through product packaging, that wearing Five-Fingers provides certain “health benefits,” including muscle strengthening and more natural movement and alignment, and representing that these health benefits are supported by scientific research.
On March 21, 2012, Bezdek filed the first of the complaints in this court on behalf of a proposed nationwide class, alleging violations of Mass. Gen. Laws ch. 266, § 91 (untrue and misleading advertising), Mass. Gen. Laws ch. 93A, §§ 2, 9 (unfair and deceptive practices), and Florida Statutes § 501.201 et seq. (on behalf of an alternative Florida-based class), as well as unjust enrichment. Bezdek purchased a pair of FiveFingers footwear in April 2011 for $104.90 through the defendants’ website, purportedly relying on the representations of health benefits associated with the footwear. She claims that if she, and other reasonable consumers, had known there was no scientific evidence supporting those benefits, she would not have purchased the footwear, and that she has suffered an economic loss attributable to the defendants’ conduct.
The defendants moved to dismiss Bez-dek’s complaint, and on June 25, 2012, Bezdek responded by filing an amended complaint, which the defendants challenged through a renewed motion to dismiss. On February 20, 2013, I denied the initial motion to dismiss as moot, and de
The second relevant complaint was filed on July 9, 2012 in the United States District Court for the Central District of California by Safavi, represented by the same counsel as Bezdek. See Safavi v. Vibram USA Inc., No. 12-cv-05900-BRO-JCG (C.D.Cal.) (Compl., July 9, 2012, ECF No. 1). Safavi purchased a pair of FiveFing-ers footwear in July 2011 from an REI store in California for $92.96, also purportedly relying on the representations of health benefits associated with the footwear. . Id. ¶ 11. On behalf of a proposed class of California consumers, Safavi alleges violations of the California Unfair Competition Law, Business and Professions Code § 17200 et seq., the California Consumers Legal Remedies Act, Civil Code § 1750 et seq., and breach -of express warranty. Id. ¶¶ 66-92. On September 24, 2012, the Safavi action was stayed pending a ruling on class certification in the Bezdek action. Safavi, No. 12-cv-05900-BRO-JCG (Order, Sept. 24, 2012, ECF No. 24). If the settlement is approved, Safavi and the defendants agree to file a stipulation of dismissal of that action in the Central District of California.
The third relevant complaint was filed on August 13, 2012 in Illinois state court by DeFalco. See De Falco v. Vibram USA, LLC, No. 12-cv-07238,
I stayed the Bezdek matter from March to May 2013 to allow for the transfer of the. De Falco matter from the Northern District of Illinois, and for the disposition of the motion to transfer the Safavi matter from the Central District of California. The Safavi matter was ultimately stayed rather than transferred. Following the transfer of the De Falco matter in April 2013, I consolidated it with the Bezdek action.
2. Discovery and-Settlement Negotiations
In July 2013, I set deadlines for discovery and motions for certification of the class in the now consolidated Bezdek/De Falco actions, anticipating that fact discovery would be completed by April 21, 2014. Counsel represent that over the course of the summer and fall of 2012, the parties engaged in extensive written discovery efforts, through written requests made by each party of the other, and through third-party document subpoenas.
Although mediation efforts in January 2013 failed, sometime in the fall of 2013 the parties resumed settlement negotiations and reached an agreement in principle on December 12, 2013. On December
3. Proposed Settlement and Preliminary Review
On April 30, 2014, the parties submitted a proposed settlement agreement which was shortly thereafter replaced by a joint amended settlement agreement. The plaintiffs thereafter moved for preliminary review, authorization of class notice, and scheduling of a final fairness hearing.
Following a hearing, on May 12, 2014,
I then approved deadlines that would govern the class notice, and periods for submitting claims, opt-outs, and objections. On August 1, 2014, the plaintiffs filed a motion for final approval of.the proposed settlement agreement and award of attorneys’ fees, out-of-pocket expenses, and incentive awards for the named plaintiffs. I held a fairness hearing on October 29, 2014, as a result of which I directed further submissions.
B. The Proposed Settlement Agreement
1. Key Settlement Terms
The agreement creates a non-reversion-ary settlement fund of $3,750,000, out of which will be paid the administrative costs (covering notice and claim processing expenses, and fees for the notice and settlement administrator’s services); attorneys’ fees and expenses; incentive awards for the plaintiffs; necessary taxes and fees; and finally payments to class members who submit valid and timely claims.
The class that stands to benefit from the agreement, briefly defined and discussed in greater detail below, includes all individuals who purchased certain FiveFingers footwear in the United States from Vibram and/or its authorized retailers between “March 21, 2008, up to and including the date of the first dissemination of the Summary Settlement Notice or Class Notice, whichever is earlier,” which has since been defined as May 27, 2014.
Class members may request a refund for each pair of eligible FiveFingers foot
The agreement also provides for in-junctive relief in the form of restrictions on Vibram’s advertising and marketing campaigns for its FiveFingers footwear. Specifically, Vibram agrees “to take commercially reasonable efforts to discontinue certain aspects of its advertising and marketing campaign,” including not making, or assisting others in making, claims that the footwear is “effective in strengthening muscles or preventing injury,” or provides any health benefit, unless such claims are based on competent and reliable scientific evidence and are true and non-misleading. Vibram also agrees to refrain from misrepresenting, and assisting others in misrepresenting, “the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research relating to Vibram’s FiveFingers footwear or products similar to the Fivefingers footwear.”
2. Notice
Notice was distributed to the Class pursuant to my order of authorization between May 27 and July 28, 2014. The plan provided for direct notice to individuals where practicable through e-mail and postal mail, as well as summary notice through publication in newspapers, magazines, and other media outlets; publication of banner advertisements on various informational and social media websites; and maintenance of a settlement website and toll-free telephone number providing information to class members.
On May 12, 2014, the notice administrator established a website, www.fiveflngers settlement.com, to inform class members about the settlement. As of September 24, 2014, the claim filing deadline, more than 321,000 new first-time users had visited the site, with over 465,000 sessions. Twenty percent of this Internet traffic originated from RunnersWorld.com and its mobile counterpart, and the rest from social media and news websites.
The direct notice program was substantially completed by July 8, 2014. E-mail notice was delivered successfully (that is, not'returned as bounced or undeliverable) to 195,674 unique e-mail addresses of people who had purchased Vibram products. Postcard notice was sent successfully to 64,962 addresses of unique class members.
The notice administrator published the summary settlement notice in the August 2014 print and online versions of the national magazine, Runner’s World, which has “an estimated print circulation of approximately 673,000 and readership of 2.86 million.” Banner advertisements ran for four weeks in June 2014 on Facebook (targeting class members’ demographics) and RunnersWorld.com, as well as through
In addition to this intentional distribution of notice, the notice administrator observed more than 900 online news mentions, including 124 blog posts, and continued coverage on local, regional, national, and • international media outlets through the claims deadline, which the administrator and class counsel have characterized as unusual unsolicited attention for a class action settlement of this nature.
3. Claims, Opt-Outs, and Objectors
The settlement administrator received 154,927 timely claims, representing 279,570 pairs of FiveFingers footwear, prior to the closing of the claim period on September 24, 2014. Of these claims, approximately 28% were for one pair, 67% were for two pairs, and 3% were for three or more pairs. The administrator anticipates that 4-5% of these claims will be rejected as invalid, leaving approximately 268,570 pairs for which the fund will provide a refund.
Written opt-out requests, objections, and notices of appearance at the fairness hearing were to be submitted by August 15, 2014. Prior to this deadline, the notice administrator received a total of 23 opt-out ■requests. In addition, three individuals filed objections to the settlement: Madeline Monti Cain, Justin Ference, and Michael Narkin. The plaintiffs ask that I simply overrule these objections — rather than considering the challenges they raise to the proposed settlement — on three grounds: first, because the objectors each have an improper purpose for pursuing his or her objection; second, because none has complied with the requirement in the agreement and communicated in the notice that proof of purchase must be submitted with an objection to establish membership in the class;
It is my role “to distinguish between the meritorious objections and those advanced for improper purposes.” Manual for Complex Litigation (Fourth) § 21.643. I am persuaded there are genuine questions as to the status of the objectors as class members. Nonetheless, I have considered the merits of the objectors’ assertions to the extent they raise questions that I would ask independently in my own review of the proposed settlement.
A. Adequacy of Notice
Settlement approval requires confirmation that notice was conducted in a reasonable manner, consistent with Fed. R.Civ.P. 23 and diie process concerns. Notice of a class action settlement must be “reasonably calculated to reach the absent class members.” Reppert v. Marvin Lumber & Cedar Co.,
The putative objectors contend that they were not provided with sufficient information in the notice to assess the proposed settlement and their participation in it adequately. Despite these objections, on independent review I find that the notice program was robust, particularly in its online presence, and implemented as directed in my order authorizing notice. The notice documents issued, including the • claim form, class notice, summary settlement notice, and postcard notice, comport with those I approved in the order authorizing notice. The settlement received an unusual amount of coverage beyond the administrator’s efforts. Although details would by definition have provided additional instruction regarding the proposed settlement, such detail was not required to be provided in the notice. I find that notice was given to settlement class members by the best means “practicable under the circumstances.” Fed.R.Civ.P. 23(c)(2).
B. Final Class Certification
Before I. may determine whether the class settlement is fair, I must certify the class definitively. The class was preliminarily certified as: “all persons that, during the Class Period, purchased in the United States certain FiveFingers footwear from Vibram and/or its authorized retailers including, without limitation, vi-bramfivefingers.com.”
Certification of a class requires “a rigorous • analysis of the prerequisites established by Rule 23” of the Federal Rules of Civil Procedure. Smilow v. Southwestern Bell Mobile Sys., Inc.,
To obtain class certification, the plaintiffs must establish each of the four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Smilow,
C. Analysis
1. Numerosity
Under Rule 23(a)(1), the class must be “so numerous that joinder of all members is impracticable.” The plaintiffs contend that “millions” of pairs of Five-Fingers footwear were sold in the United States by Vibram and its authorized retailers during the relevant period, from March 2008 through May 2014. Even if this is a high estimate, plainly the class is sufficiently numerous for certification purposes. Cf. In re Lupron Mktg. & Sales Practices Litig.,
2. Commonality
Under Rule 23(a)(2), there must be “questions of law or fact common to the class.” This requirement carries a low threshold and “requires only that resolution of the common questions affect all or a substantial number of the class members.” Lupron,
The class members would be required to establish several common issues of fact and law to prove the defendants’ liability and their entitlement to damages.
There are, of course, likely differences between class members within several of these categories, most importantly with regard to injury. Class members may have purchased different types of FiveFingers footwear for very different purposes, and they may have seen and been influenced (or not influenced at all) by different advertising and assertions by Vibram, although the plaintiffs have demonstrated that at least some of the advertising at issue was national in scope. Nonetheless, the core issues of fact and law in this case regarding alleged misrepresentation of health benefits are common to all class members and present “a need for combined treatment and a benefit to be derived therefrom.” Lupron,
3. Typicality
Under Rule 23(a)(3), “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class.” This element is satisfied “if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Lupron,
The claims of the class members here arise from the allegedly false and misleading advertising and marketing materials for Vibram’s FiveFingers footwear
¡¡,. Adequate Representation
Under the last required element of Rule 23(a), I must determine that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R.Civ.P. 23(a)(4). This requirement, along with those of commonality and typicality, “serve[s] as [a] guidepost[] for determining whether ... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Falcon,
This is a two-part requirement. First, the plaintiffs must establish “that the interests of the representative party will not conflict with the interests of any of the class members.” Andrews v. Bechtel Power Corp.,
The first prong is addressed in large part by my conclusion that Mass. Gen. Laws ch. 93A provides a serviceable and appropriate cause of action common to all class members. Bezdek’s interests align with those of the class as a whole, because all seek redress from the same injury: the purchase of FiveFingers footwear based on Vibram’s misrepresentation of its health benefits. Cf. M3 Power Razor,
The second prong pertains to the qualifications of lead class counsel, Wolf Halden-stein Adler Freeman &■ Herz LLP. The plaintiffs have submitted significant documentation indicating the firm’s experience in complex consumer class action litigation and its efforts in advancing this matter in
5. Rule 23(b)
Under Rule 23(b)(3), class certification is appropriate if I find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
a. Predominance
The predominance requirement is similar to but more demanding than the commonality requirement. See Comcast,
The core questions in this case— whether Vibram’s advertising was false or misleading, whether its conduct violated the causes of action identified in Bezdek’s amended complaint, and whether the class members suffered injury and are entitled to damages as a result of this conduct— are common to all class members. Cf. M3 Power Razor,
In this case, I have narrowed the theory of injury to one of a price premium paid. The plaintiffs have not proffered any fully developed and particularized methodology for calculating damages using this theory and have instead merely recognized the difficulty in identifying such a methodology. The plaintiffs’ deflection does not, however, lead me to ignore the Supreme Court’s direction in Amchem to review class certification at the settlement stage with greater, not lesser, scrutiny than on a motion for class certification anticipating trial. Settling prior to formal class certification does.not permit the parties to avoid these challenges to the certification process.
Nevertheless, although Comcast heightens the evidentiary burden on plaintiffs seeking class certification in certain circumstances, I do not believe it is fatal to the certification sought here. While the plaintiffs have not provided chapter and verse to address the Comcast requirement of presenting a methodology that would allow damages to be calculated with precision on a class-wide basis, they have tendered an acceptable general damages theory. I do not employ a different standard for considering class certification where a settlement agreement has been reached, but I do adopt a common sense approach to the Comcast dimension to the settlement and what it offers.
At trial, class members would be required to prove an injury resulting in economic loss. The class as defined does not limit membership to individuals who relied on the alleged health benefits in purchasing the shoes — indeed, such a provision in the definition would render it subjective and questionable for other reasons. As a result, however, there may be class members who did not rely on the representation of health benefits, or who purchased the footwear for other reasons entirely. Those class members might therefore be said to stand apart from those who relied on the representations in choosing to pay the price for FiveFingers footwear,, because they could not establish causation under certain legal theories.
By employing a broad definition of the class that includes individuals who purchased FiveFingers footwear during the relevant time period for any reason (other than resale), the settlement provides relief to the broadest class of individuals to whom relief would potentially be available. As I noted in MS Power Razor, “the protections provided by ... Mass. Gen. Laws ch. 93A, § 9, are quite robust and arguably more consumer friendly” than any other state consumer protection provision. M3 Power Razor,
Courts must, of course, exercise caution in certifying a class “when individual stakes are high and disparities among class members great.” Amchem, 521 U.S.
This analysis is consistent with that reached in two similar cases. In Arnold v. Fitflop USA, LLC, No. 11-CV-0973W(KSC),
In another similar case regarding the alleged misrepresentation of health benefits associated with certain footwear in violation of California consumer protection laws on behalf of a nationwide class, Judge Russell noted the potential class certification problems that this case shares and after considering them ruled in favor of settlement. See In re Skechers Toning Shoe Prods. Liability Litig., MDL No. 2308,
I conclude that no “[questions of individual [injury and] damage calculations” are present here that would “inevitably overwhelm questions common to the class,” and consequently that the predominance requirement is satisfied. Comcast,
b. Superiority
A class action is a superior means for adjudicating this issue fairly and effectively. Where there are thousands of class members, each of whom have small individual claims that may not be worth pursuing independently, “a class action is the only feasible mechanism for resolving the dispute efficiently,” M3 Power Razor,
The District of Massachusetts is also the superior forum for this class action. As in MS Power Razor, a consumer class action against a Massachusetts corporate defendant alleging misrepresentations made in advertising and promotional materials in violation of Chapter 93A, the Massachusetts consumer protection statute, pursued on a consolidated basis in this district “is superior to any other mechanism for adjudicating the case.” M3 Power Razor,
D. Conclusion
Based on the above analysis, I conclude that the plaintiffs have met their burden of establishing compliance with each of the requirements of Rule 23(a) and of Rule 23(b)(3). Accordingly, I certify the class, as defined above, with finality for the purpose of settlement.
III. FAIRNESS DETERMINATION
A. Legal Standard
Under Federal Rule of Civil Procedure 23(e)(2), a settlement must be “fair, reasonable, and adequate.” See Nat’l Ass’n of Chain Drug Stores v. New Eng. Carpenters Health Benefits Fund,
As the First Circuit has observed, the case law “offers laundry lists of factors” for conducting this inquiry, “most of them intuitively obvious and dependent largely on variables that are hard to quantify.” Nat’l Ass’n,
One list of factors often employed in this district in conducting a final review of a proposed settlement is that provided by the Second Circuit in Detroit v. Grinnell Corp.,
Variations on and abbreviations of this list can also be found. See, e.g., In re Tyco Int’l, Ltd. Multidistrict Litig.,
B. Fairness Analysis
1. Prospects of the Case
I consider first the likely complexity, expense, and duration of the litigation, were this case to proceed to trial, as well as the plaintiffs’ likelihood of success on the merits. As for the likely complexity and expense, the plaintiffs have identified meaningful concerns with class certification and would need to litigate these issues more fully in order to proceed to trial. Both parties would conduct further discovery, including extensive expert discovery, followed very likely by a motion for summary judgment and renewed settlement discussions. All of these efforts would extend the litigation and associated costs further, decreasing the net benefit of any damages award obtained at trial.
As for the merits of the plaintiffs’ case, the documentary evidence demonstrates that the defendants did indeed promote health benefits associated with wearing Fi-veFingers footwear and running “barefoot,” and the plaintiffs have made plausible allegations that these benefits are not supported by scientific research. These strengths in the plaintiffs’ case must confront two sizable hurdles as to injury and damages.
As I discussed in my ruling on the motion to dismiss in the Bezdek action, the alleged injury is one of economic loss: that the plaintiffs would not have purchased the footwear had they known it would not provide the advertised health benefits, or that the footwear was not worth what the plaintiffs paid for it. See Bezdek,
The plaintiffs would also need to provide specific calculations for damages. Class counsel has represented that it could either isolate the value of the challenged benefits or prove the premium the plaintiffs paid for the deceptively advertised health benefits, but has not presented any fully developed proxies helpful in running these calculations or detailed any mechanisms for quantifying the necessary variables other than suggesting that Hedonic regression or conjoint analysis could prove
It is clear, then, that the plaintiffs have some, but not an entire, likelihood of success on the merits, and that pursuing this case to trial would require the plaintiffs to conduct extensive expert discovery (likely at great cost) in order to establish the materiality of the challenged advertising and prove their theory and an adequate calculation for recoverable damages. This added cost of litigation, combined with the risks inherent in pursuing a claim based on a price premium theory of injury, demonstrate palpable uncertainty that a more favorable result could be obtained through litigation. This factor thus weighs in favor of settlement for the benefit of the class 'overall.
2. Value of the Settlement
I next consider the value of the settlement to the class members. The key question is whether the relief provided by the settlement is reasonable in relation to the likely outcome were the case to proceed to trial. In assessing the reasonableness of a proposed settlement, “the present value of the damages plaintiffs would likely recover if successful, appropriately discounted for the bisk of not prevailing,. should be compared with the amount of the proposed settlement.” Gen. Motors,
The terms of the agreement provided for a refund of up to $94, the average manufacturer’s suggested retail price of FiveFingers footwear, per pair of eligible footwear purchased, to class members who submit valid claim forms during the claim period.
It is impossible for me to determine with certainty at this stage what the price premium paid by consumers for the purported health benefits of FiveFingers footwear could be. However, it is not unreasonable to think that the price premium could be in
Settlement is, of course, “a compromise, a yielding of the highest hopes in exchange for certainty and resolution,” Gen. Motors,
The proposed agreement also provides for injunctive relief in the form of the defendants’ discontinuance of aspects of their advertising and marketing campaigns promoting the health benefits of FiveFing-ers footwear, unless the defendants obtain “competent and reliable scientific evidence to substantiate” such claims as true. The objectors contend that this constitutes an illusory promise of no value to class members, as the defendants are merely promising to make honest representations, as they are required by law.to do regardless, and such changes in advertising do not undo the damage that class members may have suffered in relying on previous false advertising by the defendants. In response, the plaintiffs contend that “the veracity of Vibram’s advertising was the most hotly contested issue in this litigation” and that this relief prevents the defendants from engaging in precisely the conduct that caused the alleged injury in the first place.
Injunctive relief has been recognized as a meaningful component of a settlement agreement, particularly where it mimics the injunctive relief that the plaintiffs could achieve following trial. See Nilsen v. York Cnty.,
S. Reaction of the Class to the Settlement
The reaction of the class to the settlement has been overwhelmingly positive. The settlement produced a far higher claim submission rate than the parties expected, yielding 154,927 claims for 279,570 pairs, and only 23 opt-outs and 3 objections.
k- Stage of the Proceedings, Quality of Counsel, and Conduct of Negotiations
I next consider whether the discovery and other proceedings leading up to the proposed settlement agreement provided the parties with adequate information as to their respective litigation positions in order to act intelligently in negotiations. See M3 Power Razor,
Bezdek’s complaint was filed in March 2012, and the parties first discussed settlement September of that year.
Following these document disclosures, the defendants served a request for production on the plaintiffs, to which the plaintiffs provided written responses. The parties also both served deposition notices in November and December 2013. At that time, the parties resumed settlement discussions. Between December 6 and December 12, 2013, counsel engaged in significant communication about the possibility of settlement, reaching an agreement in principle on December 12. The parties thereafter successfully sought to stay further discovery, although they had not yet completed written discovery or conducted any depositions.
However, the question is only incidentally answered quantitatively by the number of pages in the documents that were produced or witnesses who were deposed. Rather, the answer must ultimately be a qualitative one: whether the parties conducted sufficient discovery “to make an intelligent judgment about settlement.” Hochstadt v. Boston Scientific Corp.,
I find that the parties had a sufficient understanding of the merits of the case in order to engage in informed negotiations, particularly where plaintiffs’ counsel are skilled and experienced in consumer class action litigation, including class actions involving alleged misrepresentation of the health benefits of footwear. See New Eng. Carpenters,
C. The Release Provision
One of the objectors challenges the release provision on the basis that it is not readable by laypeople and includes unnamed parties. “[I]n order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.” City P’ship,
The release in the agreement applies to “Vibram, its parents ... officers, directors, employees, stockholders, agents, attorneys, administrators, successors, reor
D. Conclusions
I am satisfied that counsel has worked diligently to achieve a favorable settlement agreement for the plaintiffs and the class overall in light of the anticipated challenges of taking this case to trial. I find the agreement to be fair, reasonable, and adequate under Rule 23.
IV. REQUEST FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARDS
A. Request for Attorneys ’ Fees
On behalf of all plaintiffs’ counsel, lead class counsel has requested attorneys’ fees of $937,500, equivalent to 25% of the settlement fund, and reimbursement for actual expenses of $61,674.44.
Attorneys in a certified class action may be awarded reasonable fees and costs,'subject to the wide discretion of the trial judge. Fed.R.Civ.P. 23(h). See In re Thirteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig.,
The First Circuit recognizes two methods for calculating attorneys’ fees in the class action context. See Thirteen Appeals,
Although the POF method is generally favored in the class action context because it is less burdensome and “better approximates the workings of the marketplace,” the First Circuit also recognizes the “lodestar” method for calculating attorneys’ fees. Thirteen Appeals,
Regardless of the calculation method employed, the touchstone of the inquiry is reasonableness. See In re Fidelity/Micron Sec. Litig.,
The plaintiffs’ requést for 25% of the settlement fund in fees falls squarely within what is recognized in this circuit as the range of reasonable POF amounts. See Latorraca,
Weighing in favor of the requested fee is the skill of the attorneys involved, whom I acknowledge as being nationally known for and greatly experienced in representing plaintiffs in such consumer class action lawsuits. I also credit the efforts that plaintiffs’ counsel has made during the course of this litigation. This action began in March 2012 with Plaintiff Bezdek, and has expanded to include other plaintiffs and other counsel over time. The case has involved some significant motion practice, including motions to dismiss in each of the three actions, as well as an attempt at mediation in January 2013. I acknowledge
The relief afforded by the settlement (approximately $8.44 per pair and injunc-tive relief) is reasonable in relation to the uncertainty of success at trial. The reaction of the class to the settlement has been overwhelmingly positive, as evidenced by the quite high number of claims filed and the quite low number of opt-outs.
B. Request for Expenses
Plaintiffs’ counsel also requests reimbursement for actual expenses of $61,674.44 incurred during litigation. See Fidelity,
C. Request for Incentive Awards
Finally, I address the request for incentive awards for the plaintiffs. Incentive awards serve to promote class action settlements by encouraging named plaintiffs to participate actively in the litigation in exchange for reimbursement for their pursuits on behalf of the class overall. See Celexa,
These awards are equivalent to those approved in Compact Disc,
V. CONCLUSION
For the reasons set forth above, I ALLOW the plaintiffs’ motion for final approval of the proposed class action settlement, ALLOW the plaintiffs’ motion for attorneys’ fees, expenses, and service awards, as refined by class counsels’ subsequent revision to the requested expenses, and DENY the plaintiffs’ motion for discovery of objectors.
Notes
. Class counsel initially requested $62,133.68, anticipating certain expenses related to attending the fairness hearing. Because the actual expenses incurred were slightly lower, counsel has decreased its request.
. The cy pres provision proved to be moot, however, because the settlement fund will be completely exhausted and consequently no cy pres award will be made. See note 5, infra.
. Specifically, the defendants have represented that wearing FiveFingers will (1) strengthen muscles in the feet and lower legs, (2) improve range of motion in the ankles, feet, and toes, (3) stimulate neural function important to balance and agility, (4) eliminate heel lift to align the spine and improve posture, and (5) allow the foot and body to move naturally. One marketing document, for example, attests that "[w]earing FiveFingers for fitness training, running, or just for fun will make your feet stronger and healthier-naturally.”
. That same day, the parties submitted a joint second amended settlement agreement, Dkt. No. 77, which I consider to be the proposed settlement for the purposes of my review here.
. The agreement provides that if the expenses and claims do not exhaust the settlement fund, a cy pres beneficiary would be designated to receive the residual funds. After all fees, awards, and claims have been paid, the settlement administrator would distribute any residual funds "to the American Heart Association with specific earmark relating to research regarding health benefits associated with running or exercise or substantially similar research, or such other beneficiary as the Parties and the Court shall agree.” The parties have informed me that the fund will be exhausted from the claims, and therefore that this provision is moot. See note 2, supra.
. Although there is no limit on the number of pairs for which a class member may seek a refund, a refund request for more than two pairs of footwear requires proof of purchase. Otherwise, proof of purchase is not necessary unless requested by the settlement administrator.
.This "defect rate” is said to be lower than a typical 10% defect rate because claimants were not required to provide receipts for claims of one or two pairs of footwear. The total claim rate was apparently higher than anticipated. This may be attributable to the unusual level of media attention to the settlement.
. The plaintiffs note that only one of the three objectors, Ference, even submitted a claim form.
. After the objections were filed, the plaintiffs moved for leave to conduct limited discovery of the objectors, apparently in order to provide further support for their assertions that
. Excluded from the Class are "(a) Vi-bram's Board members, executive-level officers, or employees, including its attorneys; (b) persons or entities who purchased the Fi-veFingers footwear primarily for the purpose of resale; (c) any claims for personal injury relating to the use of the FiveFingers footwear; (d) distributors or re-sellers of the Fi-veFingers footwear; (e) the judge and magistrate judge presiding over the Actions and their immediate families; (£) governmental entities; and (g) persons or entities who timely and properly exclude themselves from the Class as provided in the Settlement Agreement.”
. The fact that the class members are unidentifiable to the defendants does not render the class unascertainable. See Kent v. Sun-America Life Ins. Co.,
. Bezdek’s complaint asserts violations of two provisions of Massachusetts law, both of which survived the motion to dismiss: Mass. Gen. Laws ch. 266, § 91, which imposes liability for false or misleading advertising, and Mass. Gen. Laws ch. 93A, §§ 2, 9, which imposes liability for unfair and deceptive practices. A violation of Mass. Gen. Laws ch. 266, § 91, can afford only injunctive relief. As a result, any damages award under Massachusetts law for the class members must be based on chapter 93A.
. I note that the plaintiffs have also submitted significant documentation as to the qualifications and experience of the myriad other plaintiffs' counsel in this case, in large part to justify the requested attorneys’ fees. This information is helpful in assessing the adequacy element of class certification as well.
. Objector Narkin has alleged that class counsel engaged in unethical behavior in another class action case, has engaged in improper use of a confidentiality agreement in this case, and should be removed as class counsel because its actions constitute "indicia of a consciousness of unfairness and collusion.” I find this objection to lack merit. As the plaintiffs observe, Narkin has asserted an identical, unsuccessful claim in a separate class action in which lead counsel was involved. See Arnold v. Fitflop USA, LLC, No. 11-CV-0973W(KSC),
. There is no cap on the number of pairs for which an individual may seek a refund. Proof of purchase is required only for those claimants seeking refunds on more than two pairs of footwear.
. This is calculated as follows: The settlement fund consists of $3,750,000. Deducted from that fund are attorneys’ fees ($937,500), attorneys’ expenses ($61,674.44), plaintiffs' service awards ($6,500), and administrative costs ($483,955.11). Credited to that fund is anticipated interest from the escrow account of $2,354.98. This results in a settlement fund of $2,262,725.43. Divided by 268,570 pairs eligible for a refund through timely, valid claims, this amounts to approximately $8,425 per pair.
. I expressed concerns to the parties at the fairness hearing that the terms of the agreement left open the possibility that class members could receive no refund at all. Although a floor on recovery is not a required element of such settlement agreements, it provides assurances that the agreement intends to confer a meaningful benefit on all class members. Cf. In re M3 Power Razor Sys. Mktg. & Sales Practice, 270 F.R.D. 45, 63 (D.Mass.2010). At and following the hearing, the parties provided me with specific information regarding the number of claims and the anticipated refund amount per pair based on final calculations of the expenses to be deducted from the fund. I am satisfied by these submissions that, under the circumstances, the settlement agreement structure will not deprive class members of a recovery.
. At least one member who opted out expressed a desire to pursue an individual action, whereas several members who opted out indicated their loyalty to Vibram and lack of injury from the representations of health benefits.
. The defendants indicate that they experienced a significant business impact and reduced sales soon after the filing of the Bezdek action, hence its motivation to settle early.
.Prior to mediation, the defendants produced sales data and studies supporting their advertising claims. The plaintiffs apparently brought contrary scientific .studies to mediation.
. Counsel for both parties represent that they engaged in multiple rounds of intensive negotiaüons and expended significant time and effort in reaching this agreement.
. The terms of the proposed agreement (subject to my approval) permitted a request of up to 25% of the settlement fund, or $937,500, in attorneys' fees, and up to $70,000 in expenses.
. In assessing the reasonableness of the requested fee, I have considered the concerns raised by the objectors. Although Cain's objection asserts with some specificity her concerns that plaintiffs’ counsel did not do enough to earn the percentage they have requested, as discussed above I conclude that class counsel did engage in litigation efforts that were time consuming and in furtherance of the interests of the class. To the extent she requests heightened scrutiny due to the clear sailing provision, I have engaged in such scrutiny. See Weinberger v. Great Northern Nekoosa Corp.,
. I recognize that in Compact Disc, the plaintiffs' depositions were taken, and they also responded to interrogatories and document requests. See In re Compact Disc Minimum Advertised Price Antitrust Litig.,