Dearman et al v. Gillette Co., TheMEMORANDUM in Support re MOTION for Settlement REQUESTING PRELIMINARY APPROVAL , PUBLISHING OF NOTICE, AND SETTING OF A FINAL FAIRNESS HEARINGD. Mass.October 8, 2006- 1 - UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ____________________________________ | In re: | MASTER DOCKET | Civil Action No. 05-11177 M3 POWER RAZOR SYSTEM | (Lead Case) MARKETING & SALES PRACTICES | LITIGATION | MDL Docket No. 1704 ____________________________________| THIS DOCUMENT RELATES TO: | ALL ACTIONS | Jury Trial Demanded ____________________________________| PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PUBLISHING OF NOTICE, AND SETTING OF A FINAL FAIRNESS HEARING NOW COME plaintiffs Mark Dearman, Anthony DeBiseglia, Matthew Marr, Adam Kline, Greg Besinger, Collin L. McGeary, Javier Tunon, and Jean-Sebastien Elie (the “Representative Plaintiffs”), individually and on behalf of the Settlement Class (as defined in the Settlement Agreement and stated below), by and through Ben Barnow, Barnow and Associates, P.C., and Robert M. Rothman, Lerach Coughlin Stoia Geller Rudman & Robbins LLP (together, “Settlement Class Counsel”), and as their Memorandum in Support of Motion for Preliminary Approval of Class Action Settlement and Publishing of Notice, and Setting of a Final Fairness Hearing, state as follows: I. THE LITIGATION Commencing in or about February 2005, lawsuits were filed in various state and federal jurisdictions in the United States, as well as in Canada, which arose from the same complained-of conduct, to-wit, Gillette’s conduct in the advertising and marketing of the Mach 3 Power Razor (“M3Power Razor”). By Order dated October 27, 2005, the Judicial Panel on Multi-District Litigation transferred each of the pending cases coming under its jurisdiction to the United States Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 1 of 31 - 2 - District Court for the District of Massachusetts (“the Court”).1 On April 18, 2006, a Consolidated Class Action Complaint (“the Complaint”) was filed alleging six counts: negligent misrepresentation, intentional misrepresentation, breach of express warranty, breach of implied warranty of fitness for a particular purpose, unjust enrichment, and violations of each of the 50 states’ deceptive trade practices statutes, deceptive advertising statutes, and consumer fraud statutes, and identifying Mark Dearman, Anthony DeBiseglia, Matthew Marr, Adam Kline, Greg Besinger, Collin L. McGeary, and Javier Tunon as the named representative plaintiffs. In conjunction with the filing of the Settlement Agreement, an Amended Consolidated Class Action Complaint is being filed alleging these same claims, as well as adding similar claims under Canadian law, and also adding Jean-Sebastien Elie, a resident of Canada, as a named representative plaintiff. II. SUMMARY OF THE SETTLEMENT After extensive and arm’s-length negotiations, a proposed Settlement Agreement has been reached which will provide fair, reasonable, and adequate relief to members of the Settlement Class. The Settlement Agreement provides for The Gillette Company (“Defendant” or “Gillette”) to make available cash and other benefits totaling $7,500,0002 (the “Settlement Fund”) for distribution to Authorized Claimants and for the payment of certain expenses of notice, Claims Administration, and other distribution costs as set forth in the Settlement Agreement. See Settlement Agreement, attached hereto as Exhibit 1, at ¶2.1. The portion of the Settlement Fund for costs of notice, together with the costs of Claims Administration, is not to exceed $2.45 million. Id. at ¶2.5; ¶3.2. If the costs of notice 1 It is believed that twenty-five cases have been consolidated in these MDL proceedings before the Court. 2 All dollar amounts are in United States dollars, unless otherwise expressly stated. See Settlement Agreement, attached hereto as Exhibit 1, at ¶10.15. The terms defined in the Settlement Agreement have the same meanings herein as specified in the Settlement Agreement. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 2 of 31 - 3 - and Claims Administration exceed $2.45 million, Gillette will pay those additional amounts. Id. at ¶3.2. Settlement Class Members have a choice between receiving a refund check or receiving up to two cash rebates in a single check. A Settlement Class Member whose M3Power Razor was purchased in the United States, whose claim has been allowed pursuant to the terms of the Settlement Agreement, and who chooses a refund, would receive a check for $133 plus $2, for postage and handling for the return of the M3Power Razor, i.e., a check in the total amount of $15 (a Settlement Class Member whose M3Power Razor was purchased in Canada, whose claim has been allowed pursuant to the terms of the Settlement Agreement, and who chooses a refund, would receive a check in the amount of $16.25 in Canadian dollars4 plus, for postage and handling for the return of the M3Power Razor, the Canadian dollar equivalent of $2 in US dollars at the prevailing commercial exchange rate in effect at the time of distribution). Id. at ¶2.1(b)(i). Alternatively, and without sending in their M3Power Razor, a Settlement Class Member may choose to receive up to two $5 cash rebates in a check (up to a total of $10) for any purchases of M3Power blades during the period beginning May 1, 2004 (when the M3Power Razor went on the market), and/or Fusion Razors (manual or battery powered) during the period beginning January 1, 3 If a Settlement Class Member submits a receipt showing he paid more than $13 in US dollars or $16.25 in Canadian dollars for the M3Power razor being returned, the Settlement Class Member shall receive a check in the currency and amount of the actual price paid, plus $2 (or, for Settlement Class Members whose M3Power Razor was purchased in Canada, the Canadian dollar equivalent of $2 in US dollars at the prevailing commercial exchange rate in effect at the time of distribution) for postage and handling. 4 The difference in the amounts of the refunds to be paid to those whose M3Power Razor was purchased in the United States versus those whose M3Power Razor was purchased in Canada is a result of the currency exchange rate; $13 in US dollars equals $16.25 in Canadian dollars at the average prevailing commercial exchange rate over the period May 1, 2004 through October 31, 2005 (approximately 0.8). Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 3 of 31 - 4 - 2006 (when the Fusion Razor went on the market), through the end of the Initial Claim Period. Id. at ¶2.1(b)(ii). Rebate checks to Settlement Class Members living in Canada will be issued in the Canadian dollar equivalent at the prevailing commercial exchange rate in effect at the time of distribution. If the $7,500,000 Settlement Fund is not exhausted during the Initial Claim Period, after satisfaction of the claims for refunds and rebates made and satisfaction of the permitted costs of notice and Claims Administration, then Gillette will distribute new Fusion manual razors with its blade cartridge (“Settlement Razors”), as provided in ¶¶2.3(a) – (c) of the Settlement Agreement. Any Settlement Razors distributed pursuant thereto shall include, in each package, coupons with a total value of $4, in US dollars if redeemed in the United States, and $4 in Canadian dollars if redeemed in Canada, good for the purchase of Gillette shaving-related products.5 Id. at ¶2.3(d). The benefit to Settlement Class Members provided by these coupons is in addition to, and the redemption of these coupons will not be credited against, the Settlement Fund. Id. As awarded by the Court, Defendant is obligated to pay and will not oppose attorneys’ fees, costs, and expenses up to the amount of $1,850,000, and incentive awards in the following amounts: up to $1,000 to each Representative Plaintiff who was deposed; up to $750 to each other Representative Plaintiff who is a resident of the United States, and the Canadian dollar equivalent (at the prevailing commercial exchange rate in effect at the time of distribution of the incentive awards) to the Representative Plaintiff who is a resident of Canada; and up to $500 to each of the other Named Plaintiffs who are residents of the United States, and the Canadian dollar equivalent (at the prevailing commercial exchange rate in effect at the time of distribution of the incentive awards) to 5 It is agreed that no portion of these coupons shall be considered in determining any award of attorneys’ fees, costs, or expenses, or plaintiff incentive awards. Id. at 2.3(d). Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 4 of 31 - 5 - the Named Plaintiff in the Canadian Action, as that term is defined in ¶9.5 of the Settlement Agreement who has, through his counsel, acknowledged consent to this Settlement Agreement. Id. at ¶7.2 and ¶7.3. All parts of this settlement are separately-funded responses by Gillette to provide the Settlement Class with consideration and are not part of any existing or planned promotion and no future promotion will be reduced to reimburse Gillette for any distribution of refunds, rebates, or razors under the settlement. Id. at ¶2.4. For a detailed explanation of the settlement terms, see Section IV below. The settlement provides valuable relief to members of the Settlement Class and is well within the range of reasonableness. As such, the settlement more than satisfies the standard for preliminary approval. Manual for Complex Litig. § 30.41, at 237 (explaining the standard for preliminary approval); see also In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997); In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1383-85 (D. Md. 1983). Therefore, by the accompanying motion, Representative Plaintiffs and Settlement Class Counsel respectfully move the Court for entry of an order: (1) certifying the Settlement Class; (2) appointing Mark Dearman, Anthony DeBiseglia, Matthew Marr, Adam Kline, Greg Besinger, Collin L. McGeary, Javier Tunon, and Jean-Sebastien Elie as the Representative Plaintiffs; (3) appointing Ben Barnow, Barnow and Associates, P.C., and Robert M. Rothman, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, as Settlement Class Counsel; (4) preliminarily approving the settlement set forth in the Settlement Agreement; (5) approving the Notice Program to the Settlement Class; (6) appointing Complete Claim Solutions, LLC, as the Claims Administrator; and (7) scheduling a hearing to consider final approval of the settlement and any related matters. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 5 of 31 - 6 - III. CERTIFICATION OF A SETTLEMENT CLASS “The settlement class device has been recognized throughout the country as the best, most practical way to effectuate settlements involving large numbers of claims,” where the claims are small. In re Prudential Sec. Limited Partnership Litig., 163 F.R.D. 200, 205 (S.D.N.Y. 1995); see also In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 784 (3d Cir. 1995) (holding that courts should favor the use of devices, including settlement classes, that foster negotiated conclusions to class actions). In fact, a settlement class in complex litigation “actually enhances absent class members’ opt-out rights because the right to exclusion is provided simultaneously with the opportunity to accept or reject the terms of a proposed settlement.” In re Prudential, 163 F.R.D. at 205. Accordingly, the parties have stipulated to the definition of a Settlement Class. Subject to the exclusions that follow and for settlement purposes only (Settlement Agreement at ¶2.6), the “Settlement Class” is defined as follows: All Persons in the United States of America or Canada who purchased or otherwise acquired for use and not resale an M3Power Razor in the United States during the period May 1, 2004 through September 30, 2005, or in Canada during the period May 1, 2004 through October 31, 2005. Settlement Agreement at ¶1.20. Excluded from the definition of Settlement Class are Gillette, any entity in which Gillette has a controlling interest or which has a controlling interest in Gillette, Gillette’s attorneys, successors, or assigns, the directors and officers of Gillette and the directors and officers of any entity in which Gillette has a controlling interest or which has a controlling interest in Gillette. Id. Also excluded from the definition of Settlement Class are those Persons who timely and validly request exclusion from the Settlement Class. Id. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 6 of 31 - 7 - Where a court is passing on the certification question in the context of a proposed settlement class, questions regarding the manageability of the case for trial purposes are not considered. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619 (1997) (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial.”); MacNamara v. Bre-X, 214 F.R.D. at 427 (same, citing Amchem); In re Lease Oil Antitrust Litigation, 186 F.R.D. 403, 418 (S.D. Tex. 1999) (same, citing Amchem). The remaining requirements under Rule 23 must still be met in settlement-only certification situations, however. Id. The inquiry pursuant to Rule 23 should not extend to the merits of a case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). As demonstrated below, this case readily satisfies Rule 23, serves the policies that support it, and should be certified as a class action for settlement purposes. A. The proposed Settlement Class Meets All the Requirements for Class Certification Pursuant to Rule 23(a) of the Federal Rules of Civil Procedure. The Settlement Class meets all of the requirements for class certification pursuant to Federal Rules of Civil Procedure, Rule 23(a). Rule 23(a) sets forth the following prerequisites for certifying a class: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” F.R.C.P., Rule 23(a). First, since Gillette sold the razors at issue to millions of consumers throughout the United States and Canada, the Settlement Class is clearly so numerous that joinder of all members is impractical. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 7 of 31 - 8 - Second, the same legal and factual questions are present for each member of the Settlement Class. “The threshold of ‘commonality,’ is not high.” In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. 75, 88 (D. Mass. 2005) (citation omitted). “[T]he rule requires only that resolution of the common questions affect all or a substantial number of class members.” Id. (citation omitted). The questions of law and fact common to the Settlement Class, include, inter alia, whether Gillette engaged in unfair methods of competition and deceptive acts in advertising the M3Power Razors; whether said conduct violated unfair trade practices statutes; whether Gillette was unjustly enriched by its improper conduct; whether Gillette negligently or intentionally misrepresented to consumers the capabilities of the M3Power Razors; whether Gillette breached express and implied warranties; and whether Representative Plaintiffs and other members of the Settlement Class have sustained damages, and, if so, the proper measure of those damages. In regard to the third factor, “[a] sufficient nexus is established [to show typicality] 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.” In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. at 89 (citations omitted). The claims of the Representative Plaintiffs are typical of the claims of the members of the Settlement Class, as they all purchased the concerned razors and their claims arise from the same course of conduct of Gillette. The fourth factor is whether the representative parties will fairly and adequately protect the interests of the class. Satisfaction of this factor requires that the moving party show that: (1) the interests of Representative Plaintiffs do not conflict with the interests of any other member of the Settlement Class; and (2) the counsel chosen by the Representative Plaintiffs are qualified, experienced and able to vigorously conduct the proposed class action litigation. Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). The interests of Representative Plaintiffs do not Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 8 of 31 - 9 - conflict with the interests of any other Settlement Class Member, as they all seek relief from their purchases of M3Power Razors. By appointing Ben Barnow and Robert M. Rothman as Plaintiffs’ Co-Lead Counsel, the Court has already determined that said counsel are qualified and experienced. Further, as demonstrated by the efforts of proposed Settlement Class Counsel to date, they have vigorously protected the interests of Representative Plaintiffs and Settlement Class Members and will continue to do so. B. The proposed Settlement Class Meets the Requirements of Rule 23(b)(1)(A) and (b)(3). “In addition to the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation, the party seeking to obtain class certification must demonstrate that the action may be maintained under Rule 23(b)(1), (2), or (3).” In re Relafen Antitrust Litig., 231 F.R.D. 52, 68 (D. Mass. 2005) (citations omitted). The Settlement Class here satisfies the requirements of Rule 23(b)(1)(A) and (b)(3). As required by Rule 23(b)(1)(A), a class action will prevent possible inconsistent or varying adjudications which could occur if individual members had to prosecute separate actions. The Settlement Class also satisfies the requirements of Rule 23(b)(3). “In adding ‘predominance’ and ‘superiority’ to the qualification-for-certification list, the Advisory Committee sought to cover cases ‘in which a class action would achieve the economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. at 92 (citing Amchem Products, Inc. v. Windsor, 521 U.S. at 615). “The superiority analysis dovetails with the predominance analysis.” Id. at 92. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. at 91 Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 9 of 31 - 10 - (citing Amchem Products, Inc. v. Windsor, 521 U.S. at 623). “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of anti-trust laws.” Id. “Under First Circuit case law, predominance under Rule 23(b)(3) does not require an entire universe of common issues, but does require ‘a sufficient constellation’ of them.” In re Relafen Antitrust Litig., 231 F.R.D. at 70 (citation omitted). These factors are readily satisfied here. For example, whether Gillette engaged in improper conduct in marketing and advertising its M3Power Razors, whether this conduct violated the laws set forth in the Consolidated Class Action Complaint, and whether the conduct caused damage to members of the Settlement Class, are all common questions that predominate over any individual ones that may exist. Additionally, a class action is superior to other available methods as the amount of damages incurred by each Settlement Class Member is insufficient to justify the costs of pursuing an individual action. Id. at 92. IV. TERMS OF THE SETTLEMENT AGREEMENT A. Refund Checks To receive the refund, a Settlement Class Member must return the M3Power Razor, but may and should retain the M3Power blade(s) and batteries, and certify that the M3Power Razor was purchased or otherwise acquired by the Settlement Class Member during the Settlement Class Period. See Exhibit 1, at ¶2.1(a), ¶2.1(b)(i). The required certification may be provided by submission of a proof of claim in either the form attached as Exhibit B to the Settlement Agreement (the “Proof of Claim”) or by a writing containing substantially the same information. Id. at ¶2.1(c). A Settlement Class Member whose M3Power Razor was purchased in the United States, who chooses a refund, and whose claim has been allowed pursuant to the terms of the Settlement Agreement, shall receive $13 in cash, plus $2 in cash for postage and handling for the return of the M3Power Razor, for a total of $15. Id. at ¶2.1(b)(i). A Settlement Class Member whose M3Power Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 10 of 31 - 11 - Razor was purchased in Canada, who chooses a refund, and whose claim has been allowed pursuant to the terms of the Settlement Agreement, shall receive a check in the amount of $16.25 in Canadian dollars plus, for postage and handling for the return of the M3Power Razor, the Canadian dollar equivalent of $2 in US dollars at the prevailing commercial exchange rate in effect at the time of distribution.6 Id. If a Settlement Class Member submits a receipt showing he paid more than $13 in US dollars or $16.25 in Canadian dollars for the M3Power Razor being returned, the Settlement Class Member shall receive a check in the currency and amount of the actual price paid, plus $2 (or, for Settlement Class Members whose M3Power Razor was purchased in Canada, the Canadian dollar equivalent of $2 in US dollars at the prevailing commercial exchange rate in effect at the time of distribution) for postage and handling. Id. Refunds made in Canadian dollars will be credited against the Settlement Fund at the exchange rate in effect at the time of distribution. Id. at ¶2.1(a)(iii) B. Cash Rebates As an alternative to sending in the M3Power Razor and receiving a refund, a Settlement Class Member can instead elect to receive up to two $5 rebates in a check (rebate checks to Settlement Class Members living in Canada will be issued in the Canadian dollar equivalent at the prevailing commercial exchange rate in effect at the time of distribution) for any purchases of M3Power blades during the period beginning May 1, 2004, and/or Fusion Razors (manual or battery powered) during the period beginning January 1, 2006, through the end of the Initial Claim Period. Id. at ¶2.1(b)(ii). If a Settlement Class Member chooses this form of relief, then he must (1) submit the required certification, which is to include a statement that he has not submitted a claim for a refund, and (2) provide either a UPC code(s) from the package(s) of M3Power blades and/or Fusion 6 See footnote 3, infra, for an explanation of the difference in the amounts of the refunds to be paid to those whose M3Power Razor was purchased in the United States versus Canada. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 11 of 31 - 12 - Razor or a receipt(s) showing they were purchased prior to the end of the Initial Claim Period. Id. at ¶2.1(b)(ii). A Settlement Class Member is limited to two such $5 rebates, totaling a $10 rebate in U.S. dollars (for Settlement Class Members living in Canada, such rebates will be issued in the Canadian dollar equivalent at the prevailing commercial exchange rate in effect at the time of distribution). Id. C. Delivery of Settlement Razors in the Event that the Settlement Fund is Not Depleted by the Issuance of Refunds and Rebates If the $7,500,000 Settlement Fund is not exhausted after satisfaction of the claims for refunds and rebates made during the Initial Claim Period and satisfaction of the permitted costs of notice and Claims Administration, then, as provided in the Settlement Agreement at ¶2.3(a), and, if triggered (i.e., the Settlement Fund is still not exhausted), in ¶¶2.3(b) and (c), Gillette will distribute new Fusion manual razors with their blade cartridges (“Settlement Razors”) in the manner provided in the Settlement Agreement and explained immediately below. The credit against the Settlement Fund for each such Settlement Razor distributed pursuant to ¶¶2.3 (a) through (c) of the Settlement Agreement will be $6.25, plus $0.75 per Settlement Razor for Gillette’s postage, packaging, and administrative costs, for a total credit of $7.00 per Settlement Razor. Id. at ¶2.3(a – c). Any Settlement Razors distributed, pursuant to the aforementioned paragraphs in the Settlement Agreement, shall include, in each package, coupon(s) with a total value of $4, in US dollars if redeemed in the United States, and $4, in Canadian dollars if redeemed in Canada, off the purchase of Gillette shaving-related product(s).7 Id. at ¶2.3(d). The benefit to Settlement Class Members provided by these coupons is in addition to, and the redemption of these coupons shall not be 7 It is agreed that no portion of these coupons shall be considered in determining any award of attorneys’ fees, costs, or expenses, or plaintiff incentive awards. Id. at ¶2.3(d). Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 12 of 31 - 13 - credited against, the Settlement Fund. Id. In the event the credit against the Settlement Fund for the distribution of Settlement Razors to Authorized Claimants would exceed the remaining balance of the $7,500,000 Settlement Fund as calculated in ¶2.1(d), Gillette shall mail Settlement Razors to a statistically random sample of Authorized Claimants until the remaining balance is exhausted. Id. at ¶2.3(a). If the first distribution of Settlement Razors to Authorized Claimants occurs and thereafter the Settlement Fund is still not depleted, then commencing immediately after the elapse of the 2 weeks for said mailing of Settlement Razors (as provided in the Settlement Agreement at ¶2.3(a)), Gillette shall place a link on its M3Power Razor webpage inviting Settlement Class Members who did not previously submit a claim during the Initial Claim Period to obtain a free Settlement Razor. Id. at ¶2.3(b). To be eligible to receive a free Settlement Razor, the Settlement Class Member must provide his name and mailing address, and further certify electronically that he (i) purchased or otherwise acquired an M3Power Razor during the Settlement Class Period, and (ii) has not previously submitted a claim under the settlement. Id. at ¶2.3(b). The website link shall be maintained for a period of up to 90 days (i.e., the Residual Claim Period). Id. Under this distribution, free Settlement Razors shall remain available until each eligible claim submitted through the website link, for a maximum of 90 days, is satisfied, or until the credit for such distribution exhausts the balance of the Settlement Fund, whichever occurs first. Id. If the aforementioned distributions of Settlement Razors occur and thereafter the Settlement Fund is still not depleted, then the remaining balance in the Settlement Fund shall fund the distribution by Gillette of Settlement Razors to a group to be selected by Gillette and Settlement Class Counsel, and in the event they cannot agree, by the Court. Id. at ¶2.3(c). Said distribution is to Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 13 of 31 - 14 - be made proportionally to the populations of the various states and Canada, to the extent reasonable and practicable. Id. D. Notice As provided by the Settlement Agreement, the Court’s authorization is sought for the publishing of notice to the Settlement Class. Id. at ¶3.1(c). Gillette shall pay for and shall assume the administrative responsibility of providing notice to the Settlement Class in accordance with the Order of Preliminary Approval and Publishing of Notice of a Final Fairness Hearing, and the costs of said notice, together with the costs of Claims Administration, shall be paid from the Settlement Fund, but within the limit of $2.45 million. Id. at ¶3.2. All such costs of notice and Claims Administration over the $2.45 million will be separately, and additionally, borne by Gillette. Id. A plan for dissemination of notice (the “Notice Program”) has been designed by Kinsella/Novak Communications, Ltd., and it includes a customary form of summary notice (the “Summary Notice”) and a customary long form of notice (“Notice”). See Declaration of Andrew J. Novak In Support of Notice Plan and Exhibit 1 thereto: Notice Program by Kinsella/Novak Communications, Ltd., attached hereto as Exhibit 2. As required by the Settlement Agreement (see Exhibit 1 at ¶3.2), the Notice Program is designed to have a reach of not less than approximately 80% of the putative class in both the United States and Canada (see Exhibit 2 attached hereto), through publication of a Summary Notice in the form attached to the Settlement Agreement at Exhibit D, and, if approved by the Court, published in a range of consumer magazines, newspapers, and/or newspaper supplements to be designated by the Claims Administrator and approved by the Court. Additionally, the Claims Administrator shall establish a dedicated settlement website, and shall maintain and update the website throughout the Claim Period, with the Summary Notice, Notice, and Proof of Claim approved by the Court, as well as the Settlement Agreement. See Exhibit Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 14 of 31 - 15 - 1 at ¶3.2. The Claims Administrator also will provide copies of the forms of Summary Notice, Notice, and Proof of Claim, as well as the Settlement Agreement, upon a request by a putative Settlement Class Member made by phone to a toll-free number established by the Claims Administrator or made by a written request mailed to the Claims Administrator. Id. As explained below in Section V, the contents of the notice and the plan for dissemination of the notice satisfy due process requirements. Additionally, as explained in Section V.C. below, pursuant to the Class Action Fairness Act, Gillette is required to serve the appropriate Federal and State officials with notice of the proposed settlement of this class action. E. Incentive Awards to Named Plaintiffs and Plaintiffs’ Counsel’s Attorneys’ Fees, Costs, and Expenses. Prior to agreeing upon all other terms of the Settlement Agreement, Gillette and Settlement Class Counsel did not discuss attorneys’ fees, costs, or expenses, or reasonable incentive awards to the Representative Plaintiffs and Named Plaintiffs, other than that Gillette would pay them and that they would be paid over and above the $7,500,000 Settlement Fund. Id. at ¶7.1. Thereafter, the parties negotiated the amounts, subject to Court approval, for attorneys’ fees, costs, and expenses, and the Representative Plaintiffs’ and Named Plaintiffs’ incentive awards, that Gillette would pay to Settlement Class Counsel. Id. Subject to Court approval, Defendant is obligated to pay and will not oppose attorneys’ fees, costs, and expenses up to the amount of $1,850,000, and incentive awards in the following amounts: up to the amount of $1,000 to each Representative Plaintiff who was deposed; up to the amount of $750 to each other Representative Plaintiff who is a resident of the United States, and the Canadian dollar equivalent (at the prevailing commercial exchange rate in effect at the time of distribution of the incentive awards) to the Representative Plaintiff who is a resident of Canada; and up to $500 to each of the other Named Plaintiffs who are residents of the Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 15 of 31 - 16 - United States, and the Canadian dollar equivalent (at the prevailing commercial exchange rate in effect at the time of distribution of the incentive awards) to the Named Plaintiff in the Canadian Action, as that term is defined in ¶9.5 of the Settlement Agreement who has, through his counsel, acknowledged consent to this Settlement Agreement. Id. at ¶7.2 and ¶7.3. The amount(s) of any award of attorneys’ fees, costs, and expenses, and the amount(s) of any incentive awards, are intended to be considered by the Court separately from the Court’s consideration of the fairness, reasonableness, and adequacy of the settlement. Id. at ¶7.5. No order of the Court or modification or reversal or appeal of any order of the Court concerning the amount(s) of any attorneys’ fees, costs, or expenses awarded by the Court to Settlement Class Counsel, or the amount(s) of any incentive awards awarded by the Court, shall affect the finality of the Judgment or constitute grounds for cancellation or termination of the Settlement Agreement. Id. at ¶7.5. V. NOTICE Pursuant to Rule 23(e)(1)(B), “[t]he court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement . . .” F.R.C.P., Rule 23(e)(1)(B). The proposed form of notice and plan for publishing are reasonable and designed to advise members of the Settlement Class of their rights. A. Contents of the Notice The proposed Summary Notice and the proposed Notice (hereinafter, collectively, “Notice”) are Exhibits D and E, respectively, to the Settlement Agreement. The Notice includes a fair summary of the parties’ respective litigation positions, the general terms of the settlement as set forth in the Settlement Agreement, instructions for how to opt-out of or object to the settlement, the process and instructions for making a claim, and the date, time, and place of the Final Fairness Hearing. Id. at ¶3.1(c). The date that the Court sets for the Final Fairness Hearing should take into consideration Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 16 of 31 - 17 - that the Class Action Fairness Act requires that “[a]n order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under [28 U.S.C.A. §1715(b)]”. 28 U.S.C.A. §1715(d). As explained below in subsection C, the notifications to Federal and State officials required under the Class Action Fairness Act must be served within 10 days of this filing. 1. Opting Out Any member of the Settlement Class who wishes to opt out of the Settlement Class must individually sign and timely submit written notice (“notice of exclusion”) clearly manifesting his intent to be excluded from the Class. Id. at ¶4.1. The notice of exclusion must be mailed to either of the Post Office Boxes designated by the Claims Administrator and must be postmarked at least 21 days prior to the date set in the Notice for the Final Fairness Hearing. Id. If the aggregate number of Persons who submit valid and timely requests for exclusion from the Settlement Class exceeds 4% of the number of units of M3Power Razors sold at retail in the United States and Canada during the Settlement Class Period, then Gillette, in its sole discretion, shall have the option to terminate the Settlement Agreement. Id. at ¶9.3. 2. Objections Any member of the Settlement Class who wishes to object to the settlement shall submit a timely written notice of his objection, which will set forth the reasons for the Settlement Class Member’s objection, and further state whether the objector intends to appear at the Final Fairness Hearing. The objection also must provide information identifying the objector as a Settlement Class Member, such as proof of purchase (e.g., a store receipt), or an affidavit setting forth, in as much detail as the objector remembers, the fact of purchase(s), the product(s) purchased, the price paid for Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 17 of 31 - 18 - the product(s), the approximate date of said purchase(s), and the place of said purchase(s). To be timely, written notice of an objection in appropriate form must be filed with the Clerk of the U.S. District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, 21 days prior to the date set in the Notice for the Final Fairness Hearing, and served concurrently therewith upon Settlement Class Counsel (Ben Barnow , Barnow and Associates, P.C., One North LaSalle Street, Suite 4600, Chicago, IL 60602, or Robert M. Rothman, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 58 South Service Road, Suite 200, Melville, NY 11747) and Counsel for Gillette (Harvey J. Wolkoff, Ropes & Gray LLP, One International Place, Boston, MA, 02110). Id. at ¶5.1. B. Publication of Notice In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the United States Supreme Court described the due process standard for notice as “[n]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314. See also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). This standard is met in the present matter. The plan for publishing of the Summary Notice shall be designed to have a reach of not less than approximately 80% of the putative class in both the United States and Canada. Exhibit 1, at ¶3.2; see also Section IV.D., infra. As shown above, the Notice provides Settlement Class Members with the requisite information to make an informed decision regarding their rights. Notice need only be made by the “best practicable” means. Here, Notice is reasonably calculated to reach not less than approximately 80% of potential Settlement Class Members and, thus, qualifies as the best notice practicable. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 18 of 31 - 19 - C. Notifications to Appropriate Federal and State Officials Pursuant to the Class Action Fairness Act, within 10 days of this filing, Gillette must serve notice of the proposed settlement on the appropriate Federal and State officials. 28 U.S.C.A. §1715. The relevant provision of the Class Action Fairness Act states as follows: (b) IN GENERAL.--Not later than 10 days after a proposed settlement of a class action is filed in court, each defendant that is participating in the proposed settlement shall serve upon the appropriate State official of each State in which a class member resides and the appropriate Federal official, a notice of the proposed settlement consisting of-- (1) a copy of the complaint and any materials filed with the complaint and any amended complaints (except such materials shall not be required to be served if such materials are made electronically available through the Internet and such service includes notice of how to electronically access such material); (2) notice of any scheduled judicial hearing in the class action; (3) any proposed or final notification to class members of-- (A)(i) the members' rights to request exclusion from the class action; or (ii) if no right to request exclusion exists, a statement that no such right exists; and (B) a proposed settlement of a class action; (4) any proposed or final class action settlement; (5) any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants; (6) any final judgment or notice of dismissal; (7)(A) if feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State's appropriate State official; or Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 19 of 31 - 20 - (B) if the provision of information under subparagraph (A) is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated proportionate share of the claims of such members to the entire settlement; and (8) any written judicial opinion relating to the materials described under subparagraphs (3) through (6). 28 U.S.C.A. §1715(b). In this case, because Gillette is not “a Federal depository institution, a State depository institution, a depository institution holding company, a foreign bank, or a nondepository institution subsidiary of the foregoing”, 28 U.S.C.A. §1715(a)(1)(B), the appropriate Federal official is the Attorney General of the United States. 28 U.S.C.A. §1715(a)(1)(A). Because the Settlement Class includes Class Members from the 50 states, the appropriate State officials are the 50 State attorneys general. 28 U.S.C.A. §1715(a)(2) (“If there is no primary regulator, supervisor, or licensing authority, or the matters alleged in the class action are not subject to regulation or supervision by that person, then the appropriate State official shall be the State attorney general.”). VI. THE APPROVAL PROCESS Courts look favorably on settlement of disputed claims and settlement is especially favored in class actions because it minimizes the litigation expenses of all parties and reduces the strain on judicial resources. “Particularly in class action suits, there is an overriding public interest in favor of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Under Rule 23(e)(1)(A), however, the Court still “must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.” F.R.C.P., Rule 23(e)(1)(A). A two-step approach to the settlement process for class actions has been adopted by federal courts throughout the country. See Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540 (D. Colo. 1989), appeal dismissed, 936 F.2d 582 (10th Cir. 1991); see also In re Vitamins Antitrust Litig., 1999 WL 1335318, 1999-2 Trade Cases (CCH) ¶ 72,726 (D.D.C. Nov. 23, 1999); In re Vitamins Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 20 of 31 - 21 - Antitrust Litig., 2000 WL 1737867, 2000-1 Trade Cases (CCH) ¶ 72,862 (D.D.C. Mar. 31, 2000). Furthermore, this is a method recommended by the preeminent class action authorities. See Manual for Complex Litig. (Third) § 30.41 (1995); H. Newberg & A. Conte, 2 Newberg on Class Actions, §§ 11.25, 11.26 (3d ed. 1992). The first step is preliminary approval, whereby the court reviews the proposed settlement for obvious deficiencies, schedules a formal final fairness hearing, and approves a method for providing the class with notice of the proposed settlement and hearing on final approval of the settlement. The second step involves the court considering final approval of the proposed settlement at the previously noticed and scheduled fairness hearing. The final fairness hearing is where arguments and evidence are presented favoring or opposing the proposed settlement. In reviewing the Settlement Agreement for preliminary approval, this Court must determine whether it is within the range of fair, reasonable and adequate. Manual for Complex Litig. § 30.41, at 237. The authority to approve a settlement of a class action is entirely within the discretion of this Court. City P’ship Co. v. Atlantic Acquisition Ltd. P’ship., 100 F.3d 1041, 1043-44 (1st Cir. 1996). However, in approving the settlement, it is not the Court’s role to decide whose assertions of law and fact are correct. Id. Additionally, “[w]hen sufficient discovery has been provided and the parties have bargained at arms-length, there is a presumption in favor of the settlement.” Id. at 1043. VII. PRELIMINARY APPROVAL OF THE SETTLEMENT AGREEMENT IS APPROPRIATE. To further the policy in favor of settlement, courts have adopted a relaxed standard for preliminary approval of class action settlements: If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys, and appears to fall within the range of possible approval, the court should direct that notice under [Federal] Rule 23(e) be given to the class members of a Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 21 of 31 - 22 - formal fairness hearing, at which arguments and evidence may be presented in support of and in opposition to the settlement. Manual for Complex Litig. § 30.41, at 237; see also In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997); In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1383-85 (D. Md. 1983). Where, as here, the proposed settlement is the result of serious, arm’s-length negotiations between the parties, has no obvious deficiencies, falls within the range of possible approval, and does not grant preferential treatment to the Representative Plaintiffs or segments of the class, courts generally grant preliminary approval and direct that notice of a formal fairness hearing be given to class members. See Williams Foods, Inc. v. Eastman Chemical Co., 2001-2 Trade Cases (CCH) ¶ 73,414, 2001 WL 1298887 (D. Kan. Aug. 8, 2001); see also In re Minolta Camera Prods. Antitrust Litig., 668 F. Supp. 456, 459-60 (D. Md. 1987); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 205 (5th Cir. 1981). Although not required at this stage, the settlement also meets the standard for final approval as being fair, reasonable, and adequate. F.R.C.P. Rule 23(e)(1)(C). “There is no single test in the First Circuit for determining the fairness, reasonableness, and adequacy of a proposed class action settlement.” In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 206 (D. Maine 2003). However, Federal Courts in the District of Massachusetts have analyzed the factors originally set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), overruled on other grounds by Missouri v. Jenkins, 491 U.S. 274 (1989). See In re Relafen Antitrust Litig., 231 F.R.D. 52, 72 (D. Mass. 2005); In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. 75, 95 (D. Mass. 2005). The Grinnell factors are as follows: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 22 of 31 - 23 - establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d at 463. The reaction of the class to the settlement can only be determined after notice has been accomplished. Thus, this factor is not analyzed here. Additionally, the risks of maintaining the class action through the trial are also not considered here since Amchem does not require a manageability inquiry in a settlement context. See In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. 75, 95 n. 39 (D. Mass. 2005) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619 (1997), and noting that this Grinnell factor is largely irrelevant in settlement-only cases and declining to consider it). As shown by the following analysis of the remaining Grinnell factors, the settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class. A. The Complexity, Expense and Likely Duration of the Litigation. Representative Plaintiffs and Settlement Class Counsel recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the litigation against Gillette through motion practice, trial and potential appeals. Indeed, the Scheduling Order entered by the Court contemplates that the hearing on a motion for class certification would be set in October 2006 and the hearing on a motion for summary judgment would be set at the end of August 2007. See Scheduling Order dated Mar. 7, 2006. 8 Additionally, delays are inherent in such litigation. Given 8 After engaging in settlement discussions and entering into a Non-Binding Memorandum of Understanding reflecting most of the essential terms of a settlement, the parties filed a Joint Motion for Suspension of the Scheduling in the Scheduling Order of March 7, 2006, which the Court granted on July 31, 2006. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 23 of 31 - 24 - the nature of the case, it is almost assured that any decision on the merits would be appealed, which would then cause further delay as it would require briefing, oral argument (if requested by the appeals court), and awaiting a decision. In contrast, the settlement provides for significant benefits for the members of Settlement Class without the delays described herein. Thus, this factor favors approval of the settlement. B. The Stage of the Proceedings and the Amount of Discovery Completed. After consideration of briefing by counsel for the numerous plaintiffs who filed individual complaints against Gillette, and after entertaining oral argument at two separate hearings, on March 7, 2006, the Court ordered the consolidation of the complaints and entered a scheduling order. A Consolidated Class Action Complaint was filed on April 18, 2006. Co-Lead Counsel and Liaison Counsel have pursued discovery in this litigation. Initial disclosures were made. As the Court is aware, there was a separate action based on the same underlying dispute filed by a competitor of Gillette in which substantial discovery had occurred. As a part of initial disclosures, Plaintiffs obtained production from that earlier proceeding; that included thousands of pages of document production and copies of deposition and hearing transcripts. Valuable informal discovery occurred during the negotiation of the Settlement Agreement and it was appropriately targeted at information relevant to the settlement. See Manual for Complex Litigation, Fourth, at section 13.12 (recognizing that the benefits of settlement are diminished if it is postponed until discovery is completed and approving of targeting early discovery at information needed for settlement negotiations). Informal discovery is a recognized method of minimizing the cost, delay, and burden associated with formal discovery. See Manual for Complex Litigation, Fourth, at section 11.423. Indeed, to further such ends, Courts are to “encourage counsel to exchange information, particularly relevant documents, without resort to formal discovery.” Id. Significantly, the Settlement Agreement provides that Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 24 of 31 - 25 - Representative Plaintiffs shall be entitled to reasonable additional confirmatory discovery to be conducted by Settlement Class Counsel beginning on the date of the Settlement Agreement and lasting for a period of 30 days thereafter. Settlement Agreement at ¶10.4. In the event that Settlement Class Counsel determines in good faith that the information learned in confirmatory discovery is materially contrary to the representations made in the negotiations leading up to the Settlement Agreement, Settlement Class Counsel shall have the right to report the same to the Court under seal and withdraw their support for the settlement. Id. Settlement Class Counsel agrees to make any such report to the Court and withdrawal of support for the settlement, and concurrently provide actual notice thereof to Gillette, no later than 5 business days after the close of confirmatory discovery. Id. Gillette may defer incurring costs for notice under ¶3.2 of the Settlement Agreement, and/or providing such notice under ¶3.2 of the Settlement Agreement, until the period for Settlement Class Counsel to withdraw their support for the settlement pursuant to this paragraph has expired without Settlement Class Counsel taking such action, or, in the event of such withdrawal, until promptly after the date upon which the withdrawal, for whatever reason, is found to have been ineffective or is rescinded. Id. In view of the informal discovery that has occurred to date and the safeguard in the Settlement Agreement for additional confirmatory discovery, this factor favors approval of the Settlement Agreement. C. The Risks of Establishing Liability and Damages. The Representative Plaintiffs believe that the claims asserted in the litigation have merit. See Counts I-VI of the Consolidated Class Action Complaint. However, Settlement Class Counsel have taken into account the uncertain outcome and the risk of further litigation. Settlement Class Counsel are also mindful of the inherent problems of proof and possible Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 25 of 31 - 26 - defenses to the claims asserted in the litigation. Due to the significant risks in this litigation and the uncertainty of prevailing on the merits and of establishing damages, this factor favors approval of the Settlement Agreement. D. The Ability of Defendant to Withstand a Greater Judgment. Given that Gillette is a multi-billion dollar company, the ability of Gillette to withstand a greater judgment neither favors nor disfavors approval of the Settlement Agreement. See In re Relafen Antitrust Litig., 231 F.R.D. at 73 (finding that this factor is largely neutral where the defendant is one “with classic deep pockets,” citing In re Lupron Marketing and Sales Practices Litig., 228 F.R.D. at 97). E. The Amount of the Settlement Fund in Contrast to the Best Possible Recovery. “A fine-tuned equation by which to determine the reasonableness of the size of a settlement fund does not exist.” In re Relafen Antitrust Litig., 231 F.R.D. at 73 (citations omitted). Here, actual damages could be measured pursuant to the “benefit of the bargain” rule. Aspinall v. Philip Morris Companies, Inc., 442 Mass. 381, 399, 813 N.E.2d 476, 490 (Mass. 2004) (finding that “‘the benefit of the bargain’ damages, if proved with reasonable certainty, would be appropriate” in a case where plaintiffs alleged deceptive trade practices against manufacturer and marketer of light cigarettes).9 Under the “benefit of the bargain” rule, actual damages are measured by “the monetary difference between the actual value of the product at the time of purchase and what its value would have been if the representations had been true.” Id. Using this formula, the damages would be the difference 9 The Aspinall case also discusses the possibility of statutory damages under Mass. Gen. Laws ch. 93A. Id. at 402. However, establishing liability and an entitlement to statutory damages is not necessarily a certainty and likely would entail protracted litigation, including appeal, in contrast to the certain and substantial relief provided under the Settlement Agreement, which is unburdened by years of delay. Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 26 of 31 - 27 - between the actual value of the M3Power razors at the time of purchase and the retail price paid by Settlement Class Members. Clearly, as alleged in this litigation, the actual value of the M3Power razors at the time of purchase was something less than the amount Settlement Class Members paid as said razors do not have the properties that Gillette represented they had. Even without quantifying a dollar amount of the actual value of the M3Power razors at the time of purchase, it is apparent that the availability of a refund in the currency and amount of the actual price paid where a Settlement Class Member provides a receipt, plus $2 in U.S. dollars or the Canadian equivalent (as explained above) for shipping and handling for the return of the concerned razor, meets or exceeds Settlement Class Members’ actual damages or, at very least, is a reasonable compromise of same. Furthermore, as explained above, where a Settlement Class Member does not provide a receipt evidencing the price he paid, the terms of the Settlement Agreement provide that, for those Settlement Class Members whose M3Power Razor was purchased in the United States, they may receive a refund in the amount of $13 in U.S. dollars and, for those Settlement Class Members whose M3Power Razor was purchased in Canada, they may receive a refund in the amount of $16.25 in Canadian dollars, plus $2 in U.S. dollars or the Canadian equivalent (as explained above) for shipping and handling for the return of the M3Power razor. This provides, for example, a total of $15 in U.S. dollars to Settlement Class Members whose M3Power Razor was purchased in the United States. Alternatively, without the return of the M3Power razor, the Settlement Agreement makes available up to two $5 rebate checks (in U.S. dollars, except such rebate checks to Settlement Class Members living in Canada will be issued in the Canadian dollar equivalent at the prevailing commercial exchange rate in effect at the time of distribution). Settlement Agreement, at ¶2.1(b). Thus, a Settlement Class Member could receive a rebate check in the total amount of $10. Settlement Agreement, at ¶2.1(b). Significantly, if the $7,500,000 Settlement Fund is not exhausted during the Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 27 of 31 - 28 - Initial Claim Period, then Settlement Razors will be distributed as provided in paragraphs 2.3(a) through (c) of the Settlement Agreement. The settlement provides substantial benefits in contrast to the possibility of no relief should the claims of Representative Plaintiffs be denied; the Settlement Agreement is a reasonable compromise of Settlement Class Members’ claims. Thus, this factor favors approval of the settlement. VIII. CONCLUSION As the analysis of the Grinnell factors shows, the Settlement Agreement is clearly within the range of final approval. Therefore, Representative Plaintiffs, individually and on behalf of the proposed Settlement Class, pray that this Honorable Court enter an order: (a) granting class certification of a Settlement Class as requested herein; (b) appointing Ben Barnow and Robert M. Rothman as Settlement Class Counsel and appointing plaintiffs Mark Dearman, Anthony DeBiseglia, Matthew Marr, Adam Kline, Greg Besinger, Collin L. McGeary, Javier Tunon, and Jean-Sebastien Elie as Representative Plaintiffs; (c) preliminarily finding that the Settlement Agreement is fair, reasonable, and adequate, and in the best interest of the Class; (d) authorizing the Notice of class certification and preliminary approval of settlement to the Settlement Class in the manner set forth in the Settlement Agreement and in the forms attached as Exhibits D and E to the Settlement Agreement; (e) appointing Complete Claims Solutions, LLC, as the Claims Administrator; (f) setting a date for the Final Fairness Hearing to consider entry of a final order approving the Settlement Agreement and the request for attorneys’ fees, costs, and expenses and incentive awards; and (g) granting such other and additional relief as the Court may deem just and appropriate. Respectfully submitted, /s/ Ben Barnow Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 28 of 31 - 29 - One of Co-Lead Counsel Ben Barnow Barnow and Associates, P.C. One North LaSalle Street Suite 4600 Chicago, IL 60602 (312) 621-2000 Robert M. Rothman Lerach Coughlin Stoia Geller Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, NY 11747 (631) 367-7100 Co-Lead Counsel Thomas G. Shapiro (BBO #454680) Shapiro Haber & Urmy LLP 53 State Street Boston, MA 02109 (617) 439-3939 Liaison Counsel Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 29 of 31 - 30 - CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (“NEF”) and paper copies will be sent to those indicated as non-registered participants on the 8th day of October, 2006. /s/_Ben Barnow________________ Case 1:05-cv-11177-DPW Document 91 Filed 10/08/2006 Page 30 of 31 - 31 - LIST OF EXHIBITS Exhibit 1: Settlement Agreement Exhibit A: proposed Judgment Exhibit B: Proof of Claim Exhibit C: Order of Preliminary Approval and Publishing of Notice of a Final Fairness Hearing Exhibit D: Summary Notice Exhibit E: Long form Notice Exhibit 2: Declaration of Andrew J. Novak In Support of Notice Plan and Exhibit 1 thereto: Notice Program by Kinsella/Novak Communications, Ltd. 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