Chrysler Corp. 150 F.3d 1011, 1026 (9th Cir. 1998). The Court may approve a 13 settlement that would bind class members only after a hearing and on finding that the 14 settlement is fair, reasonable, and adequate, after considering whether: 15 (A) the class representatives and class counsel have adequately represented the 16 class;
Chrysler Corp. 150 F.3d at 1027. 4 For the reasons further detailed below and discussed at oral argument, the Court finds that 5 the proposed settlement is fair and appropriate under the Rule 23(e)(2) factors. The main issue in 6 this case is whether the “Made with Real Ginger” was false, or likely to mislead consumers about 7 the form of the ginger in the beverage or its health benfits. There would be a battle of the experts 9 damages, if any. For example, Plaintiffs’ expert opined that damages were approximately 6% of 10 the purchase price of the Products (averaging approximately $0.14 per Unit), and Defendant’s 11 expert opined damages were zero. Proceeding to trial would have been costly; recovery was not 12 guaranteed; and there was the possibility of protracted appeals. Even if Plaintiffs succeded, the 13 best-case recovery per Unit after trial was less than the amount offered in settlement, and a claims 14 process would be required even after trial, because class members could not otherwise be
Chrysler Corp. 150 F.3d 1011, 1026 (9th Cir. 1998). (“It is the settlement taken as a 14 whole, rather than the individual component parts, that must be examined for overall 15 fairness … [t]he settlement must stand or fall in its entirety.”). But courts must give 16 “proper deference to the private consensual decision of the parties” because “the court’s 17 intrusion upon what is otherwise a private consensual agreement negotiated between the 18 parties … must be limited to the extent necessary to reach a reasoned judgment that the 19 agreement is not the product of fraud or overreaching by, or collusion between, the 20 negotiating parties,” and whether the settlement is fair, reasonable and adequate. Id. at 21 1027; see also Knight v. Red Door Salons, Inc., No. 08-1520 SC, 2009 WL 248367, at *4 22 (N.D. Cal. Feb. 2, 2009) (“The recommendations of plaintiffs’ counsel should be given a 23 presumption of reasonableness.”) (citation and quotations omitted).
Chrysler Corp. 150 F.3d at 1027. For the reasons further detailed below and discussed at the Final Approval hearing, the Court finds that the proposed settlement is fair and appropriate under the Rule 23(e)(2) factors. Plaintiff’s claims are based on the marketing and selling of the Shutterfly General Spend
Chrysler Corp. 1990 WL 127160, *4-7 (D. Del. 1990) (finding assumption of liability through agreement even though selling company remained in-tact). Despite these hurdles, I am satisfied that API may be deemed a successor to the liability of NCR even though NCR itself remains liable to the government. First, all of the CERCLA cases addressing successor liability recognize that a company may become liable as a successor by expressly agreeing to become liable. Xxxxxxxx x. Xxxx, 164 F.3d at 327. These cases do not condition liability-by-agreement on the non-existence of the selling corporation. Perhaps the problem is that assumption of CERCLA liability through an agreement is not actually a “succession,” because in common parlance a succession implies that the successor has assumed liability in lieu of the transferor. Instead of talking about succession, it might be clearer to state that a party may assume direct CERCLA liability by agreement even though it may not “succeed” to it in the traditional understanding of the term. In any event, CERCLA case law is clear that parties may assume liability through agreement (though they may not transfer it away), and none of the cases requires that an assumption is only valid if the seller ceases to exist. Accordingly, the fact that NCR continues to be liable should not be an obstacle to finding API liable.
