Salvatore GALLUCCI; et al., Plaintiffs-Appellees, v. Henry GONZALES, Objector-Appellant, v. Boiron, Inc.; et al., Defendants-Appellees.
No. 12-57081
United States Court of Appeals, Ninth Circuit
Argued and Submitted Dec. 11, 2014. Filed Feb. 24, 2015.
603 F. App‘x 533
Scott J. Ferrell, Ryan M. Ferrell, Steven Robert Telles, Newport Trial Group, James B. Hardin, Call & Jensen, PC, Newport Beach, CA, Sotera Anderson, Vickie Turner, Wilson Turner Kosmo LLP, San Diego, CA, Brian David Ginsberg, Esquire, Orrick, Herrington & Sutcliffe LLP, New York, NY, Christina Guerola Sarchio, Haven G. Ward, Orrick Herrington & Sutcliffe, LLP, Washington, DC, for Objector-Appellant/Defendants-Appellees.
MEMORANDUM**
Objector Henry Gonzales appeals from the district court‘s order approving a class settlement (Settlement) with Boiron, Inc. and awarding fees and expenses to class counsel. We have jurisdiction pursuant to
1. The district court did not clearly abuse its discretion in concluding that the Settlement—which created a fund from which class members could receive refunds for their purchases of Boiron‘s allegedly mislabeled products and provided injunctive relief in the form of label modifications—was fair, reasonable, and adequate.
Because the class was certified for purposes of settlement only, the district court was required to closely scrutinize the settlement “for evidence of collusion or other conflicts of interest.” In re Bluetooth, 654 F.3d at 946. Both the district court‘s final approval order and the transcript of the settlement approval hearing make clear that the court searched for signs of collusion—including the “subtle signs” of collusion explicitly mentioned in Bluetooth—and correctly found none. Id. at 947. This conclusion is bolstered by the fact that the Settlement was negotiated with the aid of a retired magistrate judge and experienced mediator, who reported no evidence of collusion.
Gonzales contends that even if the district court adequately considered signs of collusion, we nevertheless must reverse because the court clearly abused its discretion in its balancing of the so-called Churchill factors, used to determine whether a settlement is fair, reasonable, and adequate. See Churchill Vill., L.L.C. v. Gen. Electric, 361 F.3d 566, 575 (9th Cir.2004). Focusing primarily on the fourth factor, “the amount offered in settlement,” id., Gonzales argues that the district court failed to compare the cash value of the Settlement to the expected value of going to trial. The record demonstrates, however, that the district court was fully informed of the parties’ competing estimates of the class action‘s value and considered those estimates in determining whether the Settlement was adequate. Moreover, we have never required courts “to estimate the range of possible outcomes and ascribe a probability to each point on the range.” Rodriguez v. W. Publ‘g Corp., 563 F.3d 948, 965 (9th Cir.2009) (internal quotation marks and alterations omitted) (explaining that approval of a settlement is “nothing more than an amalgam of delicate balancing, gross approximations and rough justice” (internal quotation marks omitted)). More importantly, the Settlement‘s $5 million common fund was intended to be—and by all accounts, is in fact—more than adequate to compensate all class members who submitted refund claims.
The remaining Churchill factors also support the district court‘s order. For example, the record shows that Boiron had a potentially effective defense, that class counsel were experienced, and that the class was largely satisfied with the Settlement. See Churchill, 361 F.3d at 575.
2. The district court did not abuse its discretion in awarding 25 percent of the cash value of the Settlement in fees to class counsel. See Bluetooth, 654 F.3d at 940, 942 (“Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar. Applying this calculation method, courts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award....“).
3. The district court did not err in concluding that the Settlement provided for “the best notice that is practicable under the circumstances.”
4. The district court did not abuse its discretion in certifying the class for settlement purposes. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023-24 (9th Cir.1998). The class representatives’ claims and legal theories are reasonably coextensive with those of the other class members, as all class members alleged that Boiron‘s labeling and marketing deceptively masked the possibility that the products would not work as advertised due to heavy dilution. See id. at 1020 (noting that
AFFIRMED.