Motion,Ex Parte: TORREYES, MARCIAL V GODIVA CHOCOLATIER INC

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                                Filing # 136653579 E-Filed 10/15/2021 02:09:30 PM

IN THE COURT OF THE ISTH JUDICIAL
CIRCUIT, IN AND FOR PALM BEACH
COUNTY, FLORIDA

CASE NO. 50-2020-CA-007894

Marcial Torteyes,
Plaintiff,
Vv.
Godiva Chocolatier, Inc.,

Defendant.

MOTION TO STAY PROCEEDINGS

Defendant Godiva Chocolatier, Inc. (“Godiva”) by and through its undersigned counsel of
record, respectfully submits this Motion to Stay Proceedings. Godiva is pleased to inform the Court
that it has reached a class-action settlement that will fully resolve the claims raised in Plaintiff's
complaint. A Motion for Preliminary Approval of Class Settlement has been filed in a parallel
action pending in the Southern District of New York, entitled Hesse, et al. v. Godiva Chocolatier,
Inc. No. 1:19-cv-00972-AJN (“the Hesse Action”). The Motion for Preliminary Approval is
attached herewith as Exhibit A to this Motion. Plaintiff Marcial Torreyes is a Class Member in
this Settlement, and ifapproved, Plaintiff Torreyes’ claims before this Court will be rendered moot.

Counsel for Godiva has contacted Plaintiff's counsel in the instant action, who does not
consent to the requested stay.

Godiva requests a stay pending approval of the Hesse Action in New York federal court.
The requested stay would not prejudice Plaintiff as he is a Class Member of the proposed

Settlement Class. Plaintiffs claims and the allegations of the Hesse Action are substantially

*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 10/15/2021 02:09:30 PM ***identical, and a stay would avoid the possibility of inconsistent judgments and would assist Godiva
in avoiding the duplication of effort and costs. See J.M. Smucker Co. v. Rudge, 877 So. 2d 820,
822 (Fla. 3rd DCA 2004) (granting stay of Florida state action when class certification for national
class action was pending in another jurisdiction); State v. Harbour Island, Inc., 601 So. 2d 1334,
1335 (Fla. 2d DCA 1992) (granting stay and finding that “the disposition of the federal case will
resolve many of the issues raised in the state action”); see also OPKO Health, Inc. v. Lipsius, 279
So. 3d 787, 791 (Fla. 3rd DCA 2019), review denied, No. SC19-1752, 2020 WL 789085 (Fla. Feb.
18, 2020) (staying Florida state action pending resolution of federal case when matters stemmed
from same nucleus of fact). And the requested stay would not prejudice the Court’s efficient
resolution of this matter in the event the proposed Hesse Action settlement is not approved.
Currently, the Court has calendared a hearing on Godiva’s Motion to Dismiss on November 22,
2021. The Court could continue that hearing to after the conclusion of the proposed stay.
For the reasons noted above, Godiva requests a stay of at least six months, to April 13,

2022, to allow time for the approval process in the Hesse Action pending in New York federal
court, which would moot the Plaintiff’s claims in this suit.
Dated: October 15, 2021 Respectfully Submitted,

BILZIN SUMBERG BAENA

PRICE & AXELROD LLP

1450 Brickell Ave., Ste. 2300

Miami, FL 33131

Telephone: 305-374-7580

Facsimile: 305-374-7593

By: /s/Ilana Drescher

Melissa Pallett-Vasquez, Esq.
Florida Bar No. 715816

mpallett@bilzin.com
Lori Lustrin, Esq.
Florida Bar No. 59228
Lustrin@bilzin.com

eservice@bilzin.com

2-Ilana Drescher, Esq.
Florida Bar No. 1009124

idrescher@bilzin.com
asolis@bilzin.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by e-mail generated by the Florida Court E-Filing Portal to the attorneys of record in this case on
this 15h day of October, 2021.

By: /s/ Ilana Drescher
Ilana Drescher, Esq.

3-EXHIBIT ACase 1:19-cv-00972-AJN Document 65 Filed 10/12/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

STEVE HESSE and ADAM BUXBAUM, on behalf
of themselves and all others similarly situated, No. 1:19-cv-0972-AJN

Plaintiffs,
v.
GODIVA CHOCOLATIER, INC.,

Defendant.

 

 

NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENTCase 1:19-cv-00972-AJN Document 65 Filed 10/12/21 Page 2 of 3

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs, through their undersigned attorneys, will move
this Court, before the Honorable Alison J. Nathan, United States District Judge, Souther District
of New York, at the Thurgood Marshall Courthouse, Courtroom 906, 40 Foley Square, New York,
NY 10007, for an Order granting Plaintiffs’ Motion for Preliminary Approval of Class Action
Settlement. As set forth in a Proposed Order filed concurrently herewith, Plaintiffs respectfully
request that the Court: (1) preliminarily approve the terms of the Parties’ Settlement, (2)
preliminarily certify the Class for settlement purposes, (3) preliminarily appoint Faruqi & Faruqi,
LLP and the Wand Law Firm, P.C. as Class Counsel, and Plaintiffs Steve Hesse and Adam
Buxbaum as Class Representatives, for settlement purposes, (4) appoint Kroll Business Services
as the Settlement Administrator, (5) approve the proposed Notice Plan and authorize dissemination
of notice to the Class, (6) schedule a Final Approval Hearing, and (7) grant such other, further, or
different relief as the Court deems just and proper.

This Motion is based on this Notice of Motion, the accompanying Memorandum of Law,
the Declarations of Timothy J. Peter, Aubry Wand, Jeanne C. Finegan, and James R. Prutsman,
the Settlement Agreement and exhibits thereto, the complete files and records in this action, and
any further evidence as the Court may receive.

Pursuant to the Court’s October 7, 2021 Order, the Court will inform the Parties if it

requires oral argument or a hearing on the Motion.

DATED: October 12, 2021

FARUQI & FARUQI, LLP

By: /s/ Timothy J. Peter
Timothy J. Peter (admitted pro hac vice)

1617 JFK Boulevard, Suite 1550Case 1:19-cv-00972-AJN Document 65 Filed 10/12/21 Page 3 of 3

Philadelphia, PA 19103
Telephone: (215) 277-5770
Facsimile: (215) 277-5771
E-mail: tpeter@faruqilaw.com

Innessa M. Huot

685 Third Avenue, 26th Floor
New York, NY 10017

Tel: 212-983-9330

Fax: 212-983-9331

E-mail: ihuot@faruqilaw.com

THE WAND LAW FIRM, P.C.
Aubry Wand (admitted pro hac vice)
400 Corporate Pointe, Suite 300
Culver City, California 90230

Tel: 310-590-4503

Fax: 310-590-4596

E-mail: awand@wandlawfirm.com

Attorneys for PlaintiffsCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 1 of 33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

STEVE HESSE and ADAM BUXBAUM, on behalf
of themselves and all others similarly situated, No. 1:19-cv-0972-AJN

Plaintiffs,
v.
GODIVA CHOCOLATIER, INC.,

Defendant.

 

 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENTIl.

Il.

Iv.

Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 2 of 33

 

 

 

 

TABLE OF CONTENTS
INTRODUCTION ..0.....cccesccessseesseessessneesneesneesseesseessesssensseesseesseesseeesneesneenneees
FACTUAL AND PROCEDURAL BACKGROUND.............cc:c:scecesseseeseeees
THE SETTLEMENT TERMS ..00000.....essessssssssessessesssseseesessneceesesesaeeesaeeneasenes
A. The Settlement Class............cccccecssessseeseesseessessseesseesseesseesneesneeneeeeneses
B. Monetary Benefit to the Settlement Class ..0............e.csseeseeseseeseeeeeeeeeseeeeeseeeeeeeees 4
Cc. Release of Settlement Class Members’ Claims ...............-e:eeseesseceeceeseeeeeeeeereeneees 5
D. Notice to the Class, Claims Process, and Settlement Administration.................... 5
E. Attorneys’ Fees and Costs and Class Representative Service Awards..
THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS .............
A. The Settlement Meets the Rule 23(a) Criteria ...........teseeeeseeseeeneeeee
1. Rule 23(a)(1) — Numerosity is Satisfied 2.2.2.0... cece ee ceseeestetese eee 6
2. Rule 23(a)(2) — Commonality is Satisfied 0.0.0.0... eeseeeeeseeeeeneeeeree 7
3. Rule 23(a)(3) — Typicality is Satisfied 0... tees eeeeseeeeeeeeeeeeee 7
4. Rule 23(a)(4) — Adequacy is Satisfied ..............seeceseeeceeeseeeeeseseeeeeeeeeeeeeee 8
5. Class Members Are Readily Identifiable and Ascertainable ...................... 8
B. The Settlement Meets the Rule 23(b)(3) Criteria ...........-eeeeseeceesseeeeeseeseeseeeeeteereees 9
1. Common Questions Predominate Over Individual Issue: 9

 

2. A Class Action is Superior to Alternative Methods of Adjudication ....... 11

 

 

THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT ............ 11
A. Procedural Fairness — Rule 23(€)(2)(A-B)........cscssesscsseseesesecsesecnceceseseseeseneeneneees 12
B. Substantive Fairness — Rule 23(€)(2)(C-D) ........eseeceseseeseceeeeeeeseeeeseseeeeeeseeeeeeeeees 13
1. Rule 23(e)(2)(C)(i) — The Costs, Risks, and Delay of Trial and
PAP al aot ha ch dadabatcbcadedotadotebecdadedeletobcldadatatal ededadodababebdtdodafabebshcbdedodateh 14
2. Rule 23(e)(2)(C)(ii) — Effectiveness of Proposed Method of
Distributing Relief 2... cecesceecesseeseesneeseseeeseceeceeceeceeesaneeseseceveseceeeeeeeeres 15Vi

VIL

VIL

Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 3 of 33

3. Rule 23(e)(2)(C)(iii) — The Timing and Terms of Proposed Class

 

 

 

 

 

 

 

Counsel’s Proposed Award of Attorneys’ Fees ..........s::cssssessessseseeeeeeteeeees 16
4. Rule 23(e)(2)(C)(iv) — There Are No Agreements Required to be
Identified under Rule 23 20... eeceeeesesssseceeeesesseeeeseeesseesaesacecenesteneaneneanesee 17
5. Rule 23(e)(2)(D) — Class Members Are Treated Equitably ...........0..0.00.... 17
Cc. The Remaining Grinnell] Factors ............ccesescssseseeesssseeseseeseeeesesencecesesesaeeneneeneneeee 18
1. Grinnell Factor No. 2 — Settlement Class Members’ Reaction ................ 18
2. Grinnell Factor No. 3 — The Stage of the Proceedings and the
Amount of Discovery Completed Warrants Preliminary Approval ......... 18
3. Grinnell Factor No. 7 — Whether Godiva Can Withstand a
Substantially Greater Judgment «0.0.2.2... cecesceeseeceeseseeeeeeseeeeeeeeeeeeeeees 19
4. Grinnell Factor Nos. 8-9 — Range of Reasonableness in
Settlement Fund . 20
THE COURT SHOULD APPROVE THE NOTICE PLAN ....0..e.eeeeeeeeesesececeeeeeeeeteeeeeees 23
A. Forms Of Notice ...........esessssessessesssessesesseseesssssneesesssneseeseseueeeseseaeesesessaesssaeeneseeee 23
B. Method Of Providing Notice ...........cccsssssssessssseseesssnsseeseeeeseeecscencnceeseseeaeeneneeneneeee 24
Cc. CAFAIN tC e ooo ee er ea ae a eae ae ae aaa asta 25
PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED CLASS COUNSEL ................ 25
CONCLUSION 00... cessecsse ses sese esse esseeseneesneeseeesseessneesecesseesseeesesesteseesanesanseansesneeseeesneesseeanes 25Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 4 of 33

TABLE OF AUTHORITIES

Cases Page(s)

In re Advanced Battery Techs., Inc. Sec. Litig,
298 F.R.D. 171 (S.D.N.Y. 2014) vecccccccssssssesssecesesssseseecessnessssseesesesensseseseseeeeeee

 

In re Am. Int’l Grp., Inc. Sec. Litig.
689 F.3d 229 (2d Cir. 2012)....

 

 

Inre AOL Time Warner, Inc. Sec. and “ERISA” Litig.,
No. MDL 1500, 2006 WL 903236 (S.D.N.Y. Apr. 6, 2006)...........sesseescesesseseeseeeeseseeseseeeeeees 19

Athale v. Sinotech Energy Ltd.,
No. 11 Civ. 05831 (AJN), 2013 WL 11310686 (S.D.N.Y. Sept. 4, 2013)... eee 20, 22

In re Austrian & German Bank Holocaust Litig.
80 F. Supp. 2d 164 (S.D.N.Y. 2000).........

 

 

Ayzelman v. Statewide Credit Servs. Corp.
238 F.R.D. 358 (E.D.N.Y. 2006).......

 

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
222 F.3d 52 (2d Cir. 2000).........cecceeecccecscsseececseesessseeessseecssseecssecessecsssseesssecsennees

 

Baudin v. Res. Mktg. Corp., LLC,
No. 1:19-cv-386, 2020 WL 4732083 (N.D.N.Y. Aug. 13, 2020)

 

Beckman v. KeyBank, N.A.,
293 F.R.D. 467 (S.D.N.Y. 2013) ee eeeteeeteeeel 7

Bourlas v. Davis Law Assocs.,
237 F.R.D. 345 (E.D.N.Y. 2006) o.oo eeeeeesceseceesese ee eeeeeeceeeecenseeetesesnsaceeeetenseeesanseeetesesesenseeeneneeets 12

Charron v. Wiener,
T31 F.3d 241 (2d Cir. 2013)... eccceeceecseessecsseesseceseesssessseesseeseeeseeesseesneesieesaeesieesseseseesneeseeeasees 20

Christine Asia Co., Ltd. v. Jack Yun Ma,

No. 1:15-md-02631 (CM) (SDA), 2019 WL 5257534 (S.D.N.Y. Oct. 16, 2019)... 12

 

City of Detroit v. Grinnell Corp.,

 

495 F.2d 448 (2d Cir, 1974)... eceeceecsecseeseesecesececesessvessesscsnecssesesuceeesecseesucarseseeneesesaensens passim
City of Providence v. Aeropostale, Inc.,
No. 11 Civ. 7132(CM)(GWG), 2014 WL 1883494 (S.D.N.Y. May 9, 2014)... 15

 

Consol. Rail Corp. v. Town of Hyde Park,
AT F.3d 473 (2d Cir. 1995)...ccccccssssssssssssssssssssssesssesseesssesseessssstasesessunsssesevnee

 

iiiCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 5 of 33

Denney v. Deutsche Bank AG,
443 F.3d 253 (2d Cir. 2006)___»_>_ 6

Diaz v. FCI Lender Servs., Inc.,
No. 17-CV-8686 (AJN), 2020 WL 4570460 (S.D.N.Y. Aug. 7, 2020).....cc.:e00.

 

Elkind v. Revlon Consumer Prods. Corp.,

 

 

 

 

 

 

 

No. CV 14-2484 (JS) (AKT), 2017 WL 9480894 (E.D.N.Y. Mar. 9, 2017).........ssessecseeneeneee 10
In re EVCI Career Colls. Holding Corp. Sec. Litig.,

No. 05 Civ. 10240(CM), 2007 WL 2230177 (S.D.N.Y. July 27, 2007).......c:sssesesssesseeeeseeeee 16
Ferrick v. Spotify USA Inc.,

No. 16-cv-8412 (AJN), 2018 WL 2324076 (S.D.N.Y. May 22, 2018) o.........eeceeeeteeeeeeeeeeee 10
In re Flag Telecom Holdings, Ltd. Sec. Litig.

574 F.3d 29 (2d Cir. 2009)......eceeeeseseeseceeseceeeeeseseceeeeceeeseeeeaesnseeeseaneeseeasseeeseeeatsaseneesensseneeseeee iH,
In re Global Crossing Sec. & ERISA Litig.,

225 F.R.D. 436 (S.D.N.Y. Nov. 24, 2004) ooo... eescsesseesseesseecsseesseceseseseeeseesnesaneesneeseeeseeesseesneeste 15
Graves v. United Indus. Corp.,

No. 2:17-cv-06983-CAS-SKx, 2020 WL 953210 (C.D. Cal. Feb. 24, 2020)... eeeeeeee 18
Hernandez v. Merrill Lynch & Co., Inc.,

No. 11 Civ. 8472(KBF)(DCF), 2013 WL 1209563 (S.D.N.Y. Mar. 21, 2013)... 17
In re Hyundai & Kia Fuel Econ. Litig.,

926 F.3d 539 (9th Cir. 2019) oo. .ceeceeceecseeseesseeeceeesecsecsscsecsnesseseecsuceeseeceecseesarssscaneesesereneeneeavenees 10
Masters v. Wilhelmina Model Agency, Inc.,

4T3 F.3d 423 (2d Cir. 2007) oo...cecceseeesecsessessesesesseevessssesssssnesceseassessecsssenesecsesnsaeeeseseaeseaeeseseee 17
Morris v. Affinity Health Plan, Inc.,

859 F. Supp. 2d 611 (S.D.N.Y. 2012)....ccccccccsssssssssssesssssssssessstsesessesseesisiunsnenseseteseeeeee 13, 22
In re Nucoa Real Margarine Litig.,

No. CV-10-00927-MMM, 2012 WL 12854896 (C.D. Cal. June 12, 2012) 0... 21
In re Payment Card,

330 F.R.D. 11 (E.D.N.Y. 2019) ..ceesceescecs sess eesseesseeseeeseeesseesseesecesecesuessueeanseanseaneesetesseeseeeeneeste 20
In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,

No. 05-MD-1720 (MKB) (JO), 2019 WL 6875472 (E.D.N.Y. Dec. 16, 2019) 00.0... eeseeeeee 9
Jn re Penthouse Exec. Club Comp. Litig.,

No. 10 Civ. 1145(KMW), 2013 WL 1828598 (S.D.N.Y. Apr. 30, 2013) ........esscesseceeneeerees 12Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 6 of 33

In re Petrobras Sec.,

 

 

 

 

862 F.3d 250 (2d Cir. 2017)......eesceesseecsecsseessesseeessesseeesecssscerseesseseuteesessnessnseansesneesueesseesneeaseeete 9
Rosenfeld v. Lenich,

No. 18-CV-6720 (NGG) (PK), 2021 WL 508339 (E.D.N.Y. Feb. 11, 2021) «0.0.0... passim
Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Trust Co.,

No. 14-CV-4394 (AJN), 2018 WL 1750595 (S.D.N.Y. Apr. 11, 2018)... eeeeeeeeeneeeeee 10, 11
Sadowska v. Volkswagen Grp. of Am., Inc.,

No. CV 11-00665-BRO, 2013 WL 9600948 (C.D. Cal. Sept. 25, 2013) 0... eeessseseeeeeeeee 13
Seijas v. Republic of Argentina,

606 F.3d 53 (2d Cir. 2010)... ceceeeeceeececccccceeese cece eeeeseeseesessseeeesesseeeneseensseeesnseesseeesesetsneeneneeets 11
In re Signet Jewelers Ltd. Sec. Litig.,

No. 1:16-cv-06728-CM-SDA, 2020 WL 4196468 (S.D.N.Y. July 21, 2020)... 19
Thompson v. Metro. Life Ins. Co.,

216 F.R.D. 55 (S.D.N-Y. 2003) 0.0. eeceeceecees cece eeeeeeeeeeeesenseseseeeneseeseaseneeaseaneeneanseessateneeeneaeenees 13
Vaccaro v. New Source Energy Partners L.P.,

No. 15 CV 8954 (KMW),

2017 WL 6398636 (S.D.N.Y. Dec. 14, 2017)

betaededadadalababdededuletebsbha Tt adedalatabaedededeleteballededalhahetddalebebeldodedadalabsbdcdetalel 8,11, 19, 22
Velez v. Novartis Pharm. Corp.,

No. 04 Civ. 09194(CM), 2010 WL 4877852 (S.D.N.Y. Nov. 30, 2010) .........sesssssesseeseeeesreee 14

 
 
  

Vinh Nguyen v. Radient Pharm. Cor]
No. SACV 11-00406..

In re Visa Check/MasterMoney Antitrust Liti

280 F.3d 124 (2d Cir. 2001) eee cece cece esses teen seseeeeeeeeeeceeaeeceuesesesneneeseneee 10
Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (QOL)... eeeeeeeccceceseceeeeeseeeeseeeeseceeeeesesecseeecseeneeeeaesnseeeseaeeaeseeasseseseteseseateeseeeeseeeesaneee 7
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

396 F.3d 96 (2d Cir. 2005)...0....cseseseecseecs sess eesseesesessseessessseessneesneeseeesueesiesssessntesnesseesneeneee 11, 23

 

Weinberger v. Kendrick,

698 F.2d 61 (2d Cir. 1982 23

 

Inre WorldCom, Inc. Sec. Litig.,
388 F. Supp. 2d 319 (S.D.N.Y. 2005)..0....cccceceesesseeseesseereeseeeeeseeeseseeeseeeeceeeeereesesCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 7 of 33

 

Statutes

28 U.S.C. § 1715 (0) ooo. eeceecceeccecceeeesecesneesneseneceneesneseesanesssesecseeeesseseveceneeeaeeareeanseansesaseaneeaneeanetens 25
Other Authorities

21 CLELR. § 101.18(C).....ccecseecsescsessseseseeeseeesnessneesneesueesseesseessesssesssecsneessneesneessessaeesseseseseseseseeeseesanees 15
Fer RC iy eee oo aa agen ahaa eee aie ela cec ee act ea aaa rela aiesbeecleeee passim

 

Fed. R. Civ. P 23 advisory committe’s note to 2018 amendment ..................eeeeeee eee 13, 22

viCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 8 of 33

Plaintiffs Steve Hesse and Adam Buxbaum (“Plaintiffs”) respectfully submit this
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action
Settlement (“Motion”).

I. INTRODUCTION

Plaintiffs are pleased to present this Settlement to the Court for preliminary approval.! Over
the course of two years of hard-fought litigation, Plaintiffs defeated a motion to dismiss, took
comprehensive discovery, and engaged in extensive, arm’s-length settlement negotiations through
the assistance of an experienced mediator. The result of these efforts is a nationwide settlement,
which if approved by the Court, will afford Class Members the opportunity to recover more than
the full value of their price premium damages on average and on a per-product basis stemming
from the challenged conduct. As such, the proposed Settlement is fair, adequate and reasonable,
and should be preliminarily approved under Fed. R. Civ. P. 23(e) and Second Circuit law. In
addition, the proposed Settlement Class should be certified for settlement purposes because all of
the requirements of Fed. R. Civ. P. 23(a) and (b)(3) are satisfied.

Further, the proposed robust Notice Plan, which consists of both direct notice and
publication notice, is designed to reach over 80 percent of the Class. The Notice Plan will
adequately advise Class Members of the terms of this Settlement and their rights thereunder, in
compliance with due process and all other applicable laws and rules.

Accordingly, Plaintiffs respectfully request that the Court grant preliminary approval of
the Settlement, provisionally certify the Settlement Class, provisionally appoint Faruqi & Faruqi,
LLP and the Wand Law Firm, P.C. as Class Counsel and Plaintiffs as Class Representatives,
appoint Kroll Settlement Administration LLC (“Kroll”) as the Settlement Administrator, approve

' Unless otherwise indicated, all capitalized terms herein shall have the same meaning as those
defined in the Settlement Agreement and all citations and internal quotation marks are omitted.

1Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 9 of 33

the Notice Plan and authorize dissemination of notice to the Class, and schedule a Final Approval
Hearing.
Il. FACTUAL AND PROCEDURAL BACKGROUND

This false advertising class action centers on allegations that Defendant Godiva
Chocolatier, Inc. (“Godiva”) represented its Godiva Chocolate Products as being exclusively
manufactured in Belgium, when they are in fact not exclusively made there. After conducting a
thorough pre-suit investigation, Plaintiff Steve Hesse filed a complaint on January 31, 2019,
commencing this action. Declaration of Timothy J. Peter (“Peter Decl.”) J 5-6; ECF No. 1. On
March 5, 2019, Plaintiffs Steve Hesse and Adam Buxbaum filed a First Amended Class Action
Complaint (“FAC”) against Godiva, which consolidated a similar action brought by Plaintiff Adam
Buxbaum in the Northern District of California against Godiva. ECF No. 12. The FAC in this
District is the operative complaint.

In the FAC, Plaintiffs allege that they, and other consumers throughout the country, paid
more for Godiva Chocolate Products based on the representation that the products were made
exclusively in Belgium. FAC ff 1-8. Plaintiffs asserted several statutory and common law claims
based on this factual predicate. See generally id.

On April 19, 2019, Godiva filed a motion to dismiss Plaintiffs’ FAC. ECF No. 22. On May
29, 2020, the Court granted in part and denied in part Godiva’s motion to dismiss, permitting
Plaintiffs to proceed with damages claims based on the following causes of action: (1) violation of
New York GBL § 349, (2) violation of New York GBL § 350, (3) violation of California’s
Consumers Legal Remedies Act, (4) violation of California’s Unfair Competition Law, (5)
violation of California’s False Advertising Law, (6) breach of express warranty under New York
law, (7) breach of express warranty under California law, and (8) breach of implied warranty under

New York law. ECF No. 39.Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 10 of 33

The Parties then engaged in extensive arm’s-length settlement negotiations spanning
several months and two mediation sessions with Jill R. Sperber of Judicate West. Declaration of
Jill R. Sperber (“Sperber Decl.”), ECF No. 57, Ex. A 5-9. Prior to doing so, however, Plaintiffs
completed substantial discovery, which included serving and responding to interrogatories,
document requests, and requests for admission, and reviewing thousands of pages of documents.
Peter Decl. { 12. Plaintiffs also consulted with experts in the fields of economics and the chocolate
industry. Jd. J 14-17.

On March 2, 2021, the Parties participated in a day-long mediation session with Ms.
Sperber. Sperber Decl. {J 5, 8. The Parties were unable to reach a settlement during this mediation,
but agreed to continue negotiations through the mediator. /d. On April 1, 2021, the Parties
participated in a second mediation session with Ms. Sperber. /d. { 9. The Parties were still unable
to reach a settlement, although they made considerable progress towards resolution. Jd. The Parties
continued to negotiate under the auspices of Ms. Sperber, and on May 1, 2021, they were able to
execute a memorandum of understanding, subject to confirmatory discovery. Peter Decl. § 21.

In the subsequent months, Plaintiffs took confirmatory discovery on relevant topics such
as sales and pricing data, class member information, and the covered Godiva Chocolate Products.
Id. § 22. The Parties also continued to finalize the terms of the Settlement, culminating in the full
execution of this Agreement on September 23, 2021. /d. 24, Ex. A (“Settlement Agreement”).
Til. THE SETTLEMENT TERMS

A. The Settlement Class

The Settlement Class is defined as:

All Persons who purchased any Godiva Chocolate Product in the United States during the
Class Period. Excluded from the Settlement Class are: (a) Godiva and any of its parents’,
affiliates’, or subsidiaries’ employees, officers and directors, (b) distributors, retailers or
re-sellers of Godiva Chocolate Products, (c) governmental entities, (d) the Court, the
Court’s immediate family, Court staff; (e) the mediator and her staff and immediate family;

3Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 11 of 33

(f) counsel of record for the Parties, and their respective law firms; and (g) all Persons who
timely and properly exclude themselves from the Settlement Class.

Settlement Agreement {] 65.

Under the terms of the Settlement Agreement, Godiva Chocolate Products are defined as
any product manufactured and sold by Godiva, or sold under the Godiva brand, which contains
chocolate. /d. § 43. The Class Period is January 31, 2015 through the date Preliminary Approval
is granted. /d. { 28.

B. Monetary Benefit to the Settlement Class

Each Settlement Class Member who submits a timely and valid Claim Form will receive a
monetary payment, based on the number and type of eligible purchases made during the Class
Period, as follows:

With Proof of Purchase. Each Claimant who submits sufficient Proof of Purchase may
claim $1.25 per Godiva Chocolate Product purchased during the Class Period, up to a maximum
recovery of $25 (i.e., up to 20 purchases). /d. § 68(a).

Without Proof of Purchase. Each Claimant who does not submit sufficient Proof of
Purchase, or no Proof of Purchase at all, but who submits an attestation of his/her purchase of
Godiva Chocolate Products during the Class Period under penalty of perjury, may claim $1.25 per
Godiva Chocolate Product purchased during the Class Period, up to a maximum recovery of $15
(i.e., up to 12 purchases). Jd. § 68(b).

As is common practice to deter the submission of fraudulent claims, the above maximum
recoveries apply per household (i.e., the same mailing address). Declaration of James Prutsman
(“Prutsman Decl.”) { 11. Thus, if one or more Settlement Class Members from the same household
submit Claim Forms, the Settlement Administrator will only pay the aggregate amount of all

Claims from that household, up to the maximum recovery of $15 or $25 (depending on whetherCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 12 of 33

Proof of Purchase is submitted). Settlement Agreement {] 68(e).

Maximum Payment of Settlement Benefits. If the aggregate total monetary value of all
valid and timely Claims submitted by Settlement Class Members meets or exceeds $15,000,000,
then Godiva shall only be responsible for paying $15,000,000, and in this situation, each
Settlement Class Member’s Settlement Benefit will be reduced on a pro rata basis. Id. J 68(c).

Cc Release of Settlement Class Members’ Claims

The Parties have negotiated a class-wide release that is tailored to the allegations in this
Action. Upon the Effective Date of the Settlement, Plaintiffs and all Settlement Class Members
who do not submit a valid and timely Request for Exclusion shall release the following claims
against Godiva and the other Released Parties:

Any claim, cross-claim, liability, right, demand, suit, matter, obligation, damage,

restitution, disgorgement, loss or cost, attorneys’ fee, cost or expense, action or cause of

action, of every kind and description that the Releasing Party had or has, including assigned

claims, whether in arbitration, administrative, or judicial proceedings, whether as

individual claims or as claims asserted on a class basis or on behalf of the general public

against any of the Released Parties that are based on, arise out of, or relate to the allegations

or claims in the Action, that the Godiva Chocolate Products were misleadingly marketed

or sold, or that relate to the labeling and marketing of the Godiva Chocolate Products.

Excluded from the Released Claims is any claim for alleged bodily injuries arising out of

use of the Godiva Chocolate Products.
Settlement Agreement 57.

D. Notice to the Class, Claims Process, and Settlement Administration

Kroll, an experienced and well-qualified claims administrator, has been selected to provide
notice to the Class and administer the Settlement. /d. {| 62. Prior to selecting Kroll, the Parties
considered proposals from several other reputable administrators, but ultimately selected Kroll
based on several factors, including Kroll’s experience, costs, and notice plan. Peter Decl. | 40.

Kroll has extensive experience in administering similar consumer class action settlements.

Declaration of Jeanne C. Finegan (“Finegan Decl.”) {J 5-11. Godiva will bear the SettlementCase 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 13 of 33

Notice and Administration Costs, which are estimated to be approximately $550,000. Prutsman
Decl. § 12; Settlement Agreement § 63. Additional information regarding the proposed Notice Plan
and Claims Process is set forth in Section VI below.

E. Attorneys’ Fees and Costs and Class Representative Service Awards

Plaintiffs may petition the Court for an award of reasonable attorneys’ fees and costs in an
amount of up to $5,000,000, and a $5,000 Class Representative Service Award to each of the two
Plaintiffs. The Settlement Agreement, and Plaintiffs’ support of the Settlement, are not conditioned
upon the Court’s approval of the above amounts. Jd. ff] 101, 105. And if these amounts are
approved, they will be paid by Godiva separately from, and in addition to, the monetary relief
afforded to Settlement Class Members. Jd. §{] 97, 100, 104, 107. Thus, any award of Attorneys’
Fees and Costs and Class Representative Service Awards will not affect or reduce the $15,000,000
that is available to satisfy Settlement Class Members’ Claims.

IV. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS

Under Federal Rule 23(c)(1), “the court can make a conditional determination of whether
an action should be maintained as a class action, subject to final approval at a later date.” Ayze/man
v. Statewide Credit Servs. Corp., 238 F.R.D. 358, 362 (E.D.N.Y. 2006). Godiva has agreed to class
certification for settlement purposes. Settlement Agreement § 109. In any event, where a class is
proposed in connection with a motion for preliminary approval, “a court must ensure that the
requirements of Rule 23(a) and (b) have been met.” Denney v. Deutsche Bank AG, 443 F.3d 253,
270 (2d Cir. 2006). As explained below, the proposed Settlement Class satisfies the Rule 23(a)
and Rule 23(b)(3) requirements, and the Court should provisionally certify the Settlement Class.

A. The Settlement Meets the Rule 23(a) Criteria

1. Rule 23(a)(1) — Numerosity is Satisfied

Numerosity is met if “the class is so numerous that joinder of all members is

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impracticable[.]” Fed. R. Civ. P. 23(a)(1). In the Second Circuit, “numerosity is presumed at a
level of 40 members[.]” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
Numerosity is satisfied here because Godiva’s records indicate that there are several million
Settlement Class Members. Finegan Decl. { 24.
2. Rule 23(a)(2) - Commonality is Satisfied

Class certification requires there to be “questions of law or fact common to the class[.]”
Fed. R. Civ. P. 23(a)(2). The commonality requirement examines whether the class’ claims
“depend upon a common contention . . . . capable of classwide resolution” such that “its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). There are several common questions of
law or fact in this case, the most predominant of which is whether the representations made on the
Godiva Chocolate Products’ packaging is likely to deceive a reasonable consumer. See Diaz v.
FCI Lender Servs., Inc., No. 17-CV-8686 (AJN), 2020 WL 4570460, at *2 (S.D.N.Y. Aug. 7,
2020) (holding that whether statements made to class members were false in violation of FDCPA
was a common question). Thus, the commonality requirement is satisfied.

3. Rule 23(a)(3) — Typicality is Satisfied

The typicality requirement of Rule 23(a)(3) is satisfied when “each class member’s claim
arises from the same course of events and each class member makes similar legal arguments to
prove the defendant’s liability.” Jn re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d
Cir. 2009). “The typicality requirement is not highly demanding, because the claims need only
share the same essential characteristics and need not be identical.” Rosenfeld v. Lenich, No. 18-
CV-6720 (NGG) (PK), 2021 WL 508339, at *9 (E.D.N.Y. Feb. 11, 2021). Here, each Settlement
Class Members’ claims and legal arguments arise out of the same theory of liability—namely, that
they were deceived into believing the Godiva Chocolate Products are sourced exclusively from

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Belgium based on the representations made on the products’ packaging. The same is true for
Plaintiffs. Accordingly, typicality is satisfied.
4, Rule 23(a)(4) — Adequacy is Satisfied

Rule 23(a) also requires that the representative plaintiffs “fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement is satisfied if the plaintiff: (1) is
represented by counsel who is “qualified, experienced and able to conduct the litigation[;]” and
(2) does not possess interests “antagonistic to the interest of other class members.” Baffa v.
Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, Plaintiffs’ interests
are aligned with those of the Class, and they have provided significant, valuable assistance in the
investigation and prosecution of this matter, and helped to bring about this Settlement. Peter Decl.
4 13. Plaintiffs are therefore “adequate” class representatives within the meaning of Rule 23(a)(4).
Baudin v. Res. Mktg. Corp., LLC, No. 1:19-cv-386 (MAD/CFH), 2020 WL 4732083, at *5
(N.D.N.Y. Aug. 13, 2020) (named plaintiffs adequate where no evidence that interests of plaintiffs
and class members were at odds, and the “record reflects that Plaintiffs and the Class Members
have the same incentive to maximize their compensation for the past harm.”). Proposed Class
Counsel is also “adequate” because they have extensive experience in class action litigation and
have vigorously pursued these claims throughout this litigation. Peter Decl. J] 36-39; Declaration
of Aubry Wand (“Wand Decl.”) {{ 7-17; see also Vaccaro v. New Source Energy Partners L.P.,
No. 15 CV 8954 (KMW), 2017 WL 6398636, at *3 (S.D.N.Y. Dec. 14, 2017) (adequacy
requirement met where class counsel “litigated dozens of class actions in the United States” and
recovered substantial monetary relief for class members). Accordingly, the adequacy requirement
is met here.

5. Class Members Are Readily Identifiable and Ascertainable
Lastly, while some Circuits impose a requirement that a proposed class be identifiable and

8Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 16 of 33

ascertainable, the Second Circuit has “conclude[d] that a freestanding administrative feasibility
requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our
sister circuits in declining to adopt such a requirement.” /n re Petrobras Sec., 862 F.3d 250, 264
(2d Cir. 2017) (holding that the class need only “be defined using objective criteria that establish
a membership with definite boundaries.”); Jn re Payment Card Interchange Fee & Merch. Disc.
Antitrust Litig., No. 05-MD-1720 (MKB) (JO), 2019 WL 6875472, at *31 (E.D.N.Y. Dec. 16,
2019) (explaining that such a requirement “conflicts with the well-settled presumption that courts
should not refuse to certify a class merely on the basis of manageability concerns.”).

Here, the Class is readily identifiable and ascertainable because it consists of all Persons
who purchased the Godiva Chocolate Products during the Class Period, and thus, their membership
in the Class can be determined through objective criteria. Because all Settlement Class Members
are able to determine their membership in the Settlement Class through objective criteria, this
requirement is met.

B. The Settlement Meets the Rule 23(b)(3) Criteria

To meet the requirements of Fed. R. Civ. P. 23(b)(3), the Court must conclude “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.” Fed. R. Civ. P. 23(b)(3). In the context of a settlement
class, the issue of manageability “drop[s] out of the predominance analysis because the proposal
is that there be no trial.” Jn re Am. Int'l Grp., Inc. Sec. Litig., 689 F.3d 229, 240 (2d Cir. 2012).

1. Common Questions Predominate Over Individual Issues

The issues in the class action that are “subject to generalized proof, and thus applicable to
the class as a whole” must “predominate over those issues . . . subject only to individualized proof.”
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001), superseded by

9Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 17 of 33

statute in part on other grounds by Fed. R. Civ. P. 23(g) advisory committee’s note to the 2003
Amendments. “As long as a sufficient constellation of common issues binds class members
together, variations in the sources and application of a defense will not automatically foreclose
class certification under Rule 23(b)(3).” Jd. at 138; see also Royal Park Invs. SA/NV v. Deutsche
Bank Nat’l Trust Co., No. 14-CV-4394 (AJN), 2018 WL 1750595, at *14 (S.D.N.Y. Apr. 11, 2018)
(an “action may be considered proper under Rule 23(b)(3) even though other important matters
will have to be tried separately, such as damages or some affirmative defenses peculiar to some
individual class members.”). As such, the predominance test “is a test that has been held to be
‘readily met’ in cases involving alleged consumer fraud.” Elkind v. Revlon Consumer Prods.
Corp., No. CV 14-2484 (JS) (AKT), 2017 WL 9480894, at *14 (E.D.N.Y. Mar. 9, 2017).

Here, the common issue which binds the class together is whether Godiva misled
consumers as to whether the Godiva Chocolate Products were made exclusively in Belgium. This
systematic course of conduct, which could be proven through common evidence, overrides any
individual inquiries relating to proof, to the extent there are any. Royal Park Inv., 2018 WL
1750595, at *14 (finding that these common questions trump any individualized issues, such as
“damages or some affirmative defenses peculiar to some individual class members.”). In any event,
in the settlement context, the court need not inquire whether the case, if tried, would present trial
management problems. See Ferrick v. Spotify USA Inc., No. 16-cv-8412 (AJN), 2018 WL
2324076, at *2 (S.D.N.Y. May 22, 2018) (“‘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, for the proposal is that there be no trial’”) (quoting Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 620 (1997)); see also In re Hyundai & Kia Fuel Econ. Litig. , 926 F.3d

539, 563 (9th Cir. 2019) (holding that any “idiosyncratic differences between state consumer

10Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 18 of 33

protection laws” does not defeat predominance when “the claims revolve[] around a common
nucleus of facts[.]”).

In addition, Plaintiffs can prove deception and materiality through common evidence in
the form of documentary evidence (including the Godiva Chocolate Products’ packaging and
marketing materials) and expert survey evidence. See Royal Park Inv., 2018 WL 1750595, at *14
(the “key to predominance is whether ‘generalized evidence could be offered’ to prove ‘the
elements of the claims and defenses to be litigated,’ or whether ‘individualized proof will be
needed to establish each class member’s entitlement to relief.’” (quoting Johnson v. Nextel

Commce’s Inc., 780 F.3d 128, 138 (2d. Cir. 2015)). Accordingly, Rule 23(b)(3) is satisfied.

2. A Class Action is Superior to Alternative Methods of Adjudication

A class action is superior to other forms of litigation, as “proceeding individually would be
prohibitive” due to the minimal recovery. Seijas v. Republic of Argentina, 606 F.3d 53, 58 (2d Cir.
2010). The only method to ensure the fair and efficient adjudication of this Action is through a
class action, which will allow individual Settlement Class Members to bring together claims that
would be economically infeasible to litigate on an individual basis. See, e.g., Vaccaro, 2017 WL
6398636, at *3 (class action superior to other methods “for fairly and efficiently adjudicating these
claims because it spares Plaintiffs costly individual litigation.”). Accordingly, the superiority
requirement is satisfied.

Vv. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

Courts encourage, and public policy favors, compromise and settlement of class actions.
See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (emphasizing the
“strong judicial policy in favor of settlements, particularly in the class action context”). Whether
a settlement is ultimately granted final approval is determined at the final fairness stage in
accordance with City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other

1Case 1:19-cv-00972-AJN Document 66 Filed 10/12/21 Page 19 of 33

grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000), which enumerates nine
factors for the Court to consider in assessing the fairness of a settlement under Rule 23(e). In
addition, the Rule 23(e) inquiry involves analysis of whether the Settlement is “fair, reasonable,
and adequate” after considering additional factors which “clarify[] and supplement[] the Grinnell
factors.” Rosenfeld, 2021 WL 508339, at *3. At the preliminary approval stage, by contrast, courts
simply determine if the settlement could possibly be approved under Rule 23(e) and the Grinnell
factors. See, e.g., Bourlas v. Davis Law Assocs., 237 F.R.D. 345, 355 n.7 (E.D.N.Y. 2006).

In any event, as explained below, the Settlement satisfies both the Rule 23(e)(2) and the
Grinnell factors. Plaintiffs first demonstrate that the procedural and substantive Rule 23(e) factors
are satisfied, and then turn to the remaining Grinnell factors (i.e., factors 2, 3, 7, 8, and 9) that are
not encompassed within Rule 23(e).

A. Procedural Fairness — Rule 23(e)(2)(A-B)

“Rule 23(e)(2)(A), which requires adequate representation, and Rule 23(e)(2)(B), which
requires arm’s-length negotiations, constitute the procedural analysis of the fairness inquiry.”
Christine Asia Co., Ltd. v. Jack Yun Ma, No. 1:15-md-02631 (CM) (SDA), 2019 WL 5257534, at
*9 (S.D.N.Y. Oct. 16, 2019). As courts in this Circuit have recognized, a settlement “will enjoy a
presumption of fairness” when, as here, a “[s]ettlement is the product of arms-length negotiations
conducted by experienced counsel, knowledgeable in complex class litigation.” Jn re Austrian &
German Bank Holocaust Litig., 80 F. Supp. 2d 164, 173-74 (S.D.N.Y. 2000), aff'd sub nom.
D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). Participation by a neutral third party
supports a finding that the agreement is non-collusive. See In re Penthouse Exec. Club Comp.
Litig., No. 10 Civ. 1145(KMW), 2013 WL 1828598, at *2 (S.D.N-Y. Apr. 30, 2013) (“A settlement
like this one, reached with the help of third-party neutrals enjoys a presumption that the settlement
achieved meets the requirements of due process.”).

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Here, the Settlement is the result of months of arm’s-length negotiations among the Parties
with the assistance of an experienced mediator over the course of two full-day mediation sessions.
Sperber Decl. { 5. This is a “strong indicator of procedural fairness.” Morris v. Affinity Health
Plan, Inc., 859 F. Supp. 2d 611, 618 (S.D.N.Y. 2012). Moreover, Proposed Class Counsel have
considerable experience in handling consumer class actions that are similar in size, scope, and
complexity to this case, and they are capable of assessing the strengths and weaknesses of their
respective positions. Peter Decl. ff 36-39; Wand Decl. §] 7-17. Having weighed the likelihood of
success, the damages potential, and inherent risks and expense of litigation, Plaintiffs and their
counsel strongly believe that the Settlement is fair, reasonable, and adequate, and in the best
interest of the Class. Peter Decl. {J 28-29; Wand Decl. §f] 4-5. Moreover, Plaintiffs negotiated
attorneys’ fees and costs only after reaching agreement on the relief for the Class. Peter Decl. 7
21. This is indicative of a fair and arm’s-length settlement process. See Fed. R. Civ. P 23 advisory
committe’s note to 2018 amendment (“2018 Am.”) (courts may look at “the treatment of any award
of attorneys’ fees, with respect to both the manner of negotiating the fee award and its terms.”);
Thompson v. Metro. Life Ins. Co., 216 F.R.D. 55, 67 (S.D.N.Y. 2003) (approving fee request when
“the fees were negotiated separately and after the settlement amount had been decided, thus
considerably removing the danger that attorneys’ fees would unfairly swallow the proceeds that
should go to class members.”); Sadowska v. Volkswagen Grp. of Am., Inc., No. CV 11-00665-
BRO (AGRx), 2013 WL 9600948, at *8 (C.D. Cal. Sept. 25, 2013) (approving settlement and
finding agreement on fees and expenses reasonable where “[o]nly after agreeing upon proposed
relief for the Class Members, did the Parties discuss attorneys’ fees, expenses, and costs”).

B. Substantive Fairness — Rule 23(e)(2)(C-D)

Rule 23(e)(2)(C) “focus[es] on what might be called a ‘substantive’ review of the terms of
the proposed settlement.” 2018 Am. The substantive fairness inquiry considers whether the relief

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provided for the Class is adequate taking into account: (i) the costs, risks, and delay of trial and
appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including
the method of processing class member claims; (iii) the terms of any proposed award of attorney’s
fees, including timing of payment; and (iv) any agreement required to be identified under Rule
23(e)(3). Fed. R. Civ. P. 23(e)(2)(C). The Court must also consider whether the proposed
settlement “treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). The
Settlement satisfies each of these factors.

1. Rule 23(e)(2)(C)(i) — The Costs, Risks, and Delay of Trial and Appeal”

Rule 23(e)(2)(C)’s first factor, the “costs, risks, and delay of trial and appeal, subsumes
several Grinnell factors, including the complexity, expense and likely duration of litigation, the
risks of establishing liability, the risks of establishing damages, and the risks of maintaining the
class through trial.” Rosenfeld, 2021 WL 508339, at *5—6. Courts have consistently held that,
unless the proposed settlement is clearly inadequate, its acceptance and approval are preferable to
the continuation of lengthy and expensive litigation with uncertain results. Velez v. Novartis
Pharm. Corp., No. 04 Civ. 09194(CM), 2010 WL 4877852, at *14 (S.D.N.Y. Nov. 30, 2010) (“As
federal courts in this Circuit have consistently recognized, litigation inherently involves risks, and
the purpose of settlement is to avoid uncertainty.”).

Before entering into the Settlement, Plaintiffs considered the significant risks of proceeding
with the litigation, including the risks of obtaining and maintaining class certification and
establishing liability and proving damages at trial. Peter Decl. {{] 28-29. While confident in the
merits of their case, Plaintiffs understand that proceeding through class certification and trial is a

risky and labor-intensive undertaking. Plaintiffs anticipate that Godiva would continue to contest

? This factor overlaps with Grinnell factors 1, 4, 5, and 6.

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the matter at every opportunity and on all fronts—including at class certification, on the merits on
summary judgment and trial, and through the appeals process. For example, even if Plaintiffs were
able to certify a class, Godiva would likely make, inter alia, a preemption argument under 21
C.F.R. § 101.18(c) and argue that Plaintiffs and Class Members were not financially damaged.
Analyzing these risks “does not require the Court to adjudicate the disputed issues or decide
unsettled questions; rather, the Court need only assess the risks of litigation against the certainty
of recovery under the proposed settlement.” Jn re Global Crossing Sec. & ERISA Litig., 225 F.R.D.
436, 459 (S.D.N-Y. Nov. 24, 2004).

Here, the Settlement provides substantial monetary benefits to the Class, providing Class
Members the opportunity to obtain more than the full value of their price premium damages on
average on a per-product basis. In addition, Class Members will greatly benefit by receiving this
relief in a timely manner while avoiding the risk of an unfavorable judgment. And any judgment
favorable to the Class would likely be the subject of post-trial motions and appeals, which would
significantly prolong the lifespan of the litigation. See, e.g., City of Providence v. Aeropostale,
Inc., No. 11 Civ. 7132(CM)(GWG), 2014 WL 1883494, at *5 (S.D.N.Y. May 9, 2014). By settling,
Plaintiffs avoid the expenditure of resources and risk associated with continuing litigation and
guarantee a quicker recovery to the Class.

In sum, when the risks of litigation, the uncertainties involved in maintaining class
certification, the burdens of proof necessary to establish liability, and the probability of appeal of
a favorable judgment are balanced against the merits of Plaintiffs’ claims, the Settlement amount
is fair, adequate, and reasonable.

2. Rule 23(e)(2)(C)(ii) — Effectiveness of Proposed Method of
Distributing Relief

Pursuant to Rule 23(e)(2)(C)(ii), the Court should “consider the effectiveness of the parties’

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