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In re Colgate-Palmolive Softsoap Antibacterial Hand Soap Marketing and Sales Practices Litigation

United States District Court, D. New Hampshire

November 16, 2015

In re Colgate-Palmolive Softsoap Antibacterial Hand Soap Marketing and Sales Practices Litigation Opinion No. 2015 DNH 211

MEMORANDUM AND ORDER

PAUL BARBADORO UNITED STATES DISTRICT JUDGE

Consumers of Softsoap Antibacterial hand soap filed this class action lawsuit against Colgate-Palmolive Company (“Colgate”), the manufacturer of Softsoap Antibacterial. Plaintiffs claim that Colgate wrongfully induced class members to purchase Softsoap Antibacterial by making false or misleading marketing claims. The parties have successfully negotiated a proposed settlement, and now ask me to certify the proposed class and approve the settlement. Class counsel have also filed an assented-to motion for an award of attorneys’ fees and reimbursement of expenses incurred in prosecuting and settling this case.

I. BACKGROUND

During the relevant period, the active ingredient in Softsoap Antibacterial was triclosan. In 1994, the Food and Drug Administration (“FDA”) announced that it lacked sufficient data to determine whether triclosan is safe and effective for use in consumer products. Although the FDA has not updated its assessment since that time, it has continued to investigate triclosan.[1] In addition, studies over the last fifteen years have also raised doubts about triclosan’s safety and efficacy.

In light of those doubts, plaintiffs here allege that Colgate’s marketing, labeling and advertising strategy for Softsoap Antibacterial was false or misleading. In particular, plaintiffs claim that statements that Softsoap Antibacterial was “clinically proven to eliminate 99% of germs your family encounters, ” “offers antibacterial protection, ” “kills 99% of common germs, ” and “Goodbye germs-Hello world, ” misled consumers by suggesting that the product provided better health benefits than other soaps. Doc. No. 91 at 3.

A. Procedural History

Between February 4, 2011 and October 28, 2011, putative class actions were filed against Colgate based on the above- described facts in California, Florida, Illinois, and Nevada.[2]In those cases, plaintiffs brought claims on behalf of themselves and similarly situated consumers in their respective states, [3] alleging violations of their respective states’ consumer protection laws, breach of warranty, and unjust enrichment. Each plaintiff sought class certification pursuant to Fed. R. Civ. P. 23(b)(2) or Rule 23(b)(3), and requested both injunctive and monetary relief.

By order dated March 7, 2012, the Judicial Panel on Multidistrict Litigation (“JPML”) transferred these cases to this court for coordinated or consolidated pretrial proceedings. Doc. No. 1. Thereafter, on June 26, 2012, plaintiffs filed their first Consolidated Amended Class Action Complaint. Doc. No. 24. Defendants moved to dismiss the Consolidated Amended Class Action Complaint on August 10, 2012. Doc. No. 26. After the parties briefed and argued that motion, I denied defendants’ motion on March 18, 2013.

In their Fourth Consolidated Amended Class Action Complaint, the operative complaint here, individual consumers from California, Florida, Illinois and Nevada sued Colgate on behalf of themselves and proposed statewide classes of similarly-situated consumers residing in each of those states. Doc. No. 91 at 1. Plaintiffs again alleged violations of their respective states’ consumer protection statutes and statutory and common law warranty and unjust enrichment laws. Id. And, again, plaintiffs sought class certification according to both Rule 23(b)(2) or Rule 23(b)(3), and pursued both injunctive and monetary relief. Id. at 24, 38-39.

Pursuant to their proposed Settlement Agreement, the parties seek to certify a settlement class consisting of all persons who purchased the complained-of product in the United States from January 1, 1992, up to and including the Notice Date. Doc. No. 92-2 at 12. Under the terms of the Settlement Agreement, plaintiffs seek class certification pursuant only to Rule 23(b)(2), and pursue only injunctive relief. See Id. at 15-16; Doc. No. 100 at 19-23.

B. Discovery

Over the course of this litigation, the parties have engaged in significant discovery. Defendants have produced (and plaintiffs have reviewed) over 93, 000 pages of documents. Defendants deposed the five class representatives. Plaintiffs have deposed various Colgate employees, and consulted with scientific, marketing, and economics experts.

C. Settlement Negotiations and Terms

Since 2013, the parties have participated in settlement discussions. In November 2013, retired U.S. District Judge for the District of Minnesota, James M. Rosenbaum, assisted the parties with an initial mediation. That mediation was ultimately unsuccessful, but the parties resumed settlement negotiations in spring 2014. As a result of their ongoing discussions, the parties have agreed to settle this case on the terms set out in the Settlement Agreement.

Pursuant to the Settlement Agreement, Colgate agrees not to use several allegedly misleading marketing statements for a period of five years or until applicable law changes, and agrees to use triclosan in Softsoap Antibacterial only in a manner consistent with final FDA regulation.[4] Doc. No. 92-2 ¶30. Colgate further agrees to pay two million dollars ($2, 000, 000.00) to satisfy the costs of the Notice Plan, attorneys’ fees, costs and expenses, and incentive awards payable to the five named plaintiffs.[5] Id. ¶¶ 36-40. In exchange, class members release their injunctive, declaratory, and non-monetary equitable claims related to the distribution, sale, purchase, labeling, packaging, marketing and/or advertising of Softsoap Antibacterial. Doc. Nos. 92-2 ¶31; 94 at 1. The Settlement Agreement does not, however, affect unnamed class members’ monetary claims. Doc. No. 102-1 at 8. Thus, unnamed class members remain free to file individual or class action lawsuits against Colgate in the future seeking money damages for Colgate’s allegedly misleading marketing of Softsoap Antibacterial. Id.

D. Preliminary Approval and Notice to the Class

On June 5, 2015, I granted the parties’ joint motion for preliminary certification of the Settlement Class, preliminary approval of the proposed settlement, approval of the notice plan, notice administrator, and appointment of lead counsel. Doc. No. 93. Thereafter, the parties supervised the provision of notice to potential class members. That notice included: (1) a press release to approximately 6, 000 press outlets across the United States, (2) publication of summary notice in the national edition of USA Today, (3) an Internet banner ad campaign, (4) a Class Settlement website, and (5) notice to appropriate government officials in compliance with the Class Action Fairness Act, 28 U.S.C. § 1715 (“CAFA”). Doc. No. 102-1 at 10-12. Between June 19 and July 18, 2015, the banner ad campaign resulted in more than 71 million impressions published to Internet users. Id. at 5. Between June 17 and August 27, 2015 the Class Settlement website received 44, 133 visits and 58, 984 page views. Id.

E. Reaction of the Class

The court has received four objections to the proposed settlement.[6] Doc. Nos. 95, 96, 99, 100. These objections are discussed individually in the analysis section below.

F. Fairness Hearing

The Fairness Hearing took place on September 28, 2015. Class counsel and counsel for Colgate were present. One objector, Anna St. John, was given the opportunity to be heard.

II. ANALYSIS

The parties’ motions present three broad issues for my consideration. First, whether to certify the Settlement Class; second, whether to grant final approval of the settlement on the terms set out in the Settlement Agreement; and third, whether to approve class counsel’s motion for attorneys’ fees and costs. See Doc. Nos. 98; 102. I address each issue in turn.

A. Class Certification

In the June 5, 2015 preliminary approval order, I conditionally certified a Settlement Class consisting of “all persons who purchased the Product in the United States from January 1, 1992, up to and including the Notice Date.” Doc. No. 93 at 2. The parties have jointly moved for final certification. Doc. No. 102. For the reasons provided below, I conclude that plaintiffs have satisfied the applicable constitutional and Fed. R. Civ. P. 23 requirements, and grant the parties’ motion.

1. Standing and Mootness

I first address Objector St. John’s threshold arguments that class members lack standing to seek an injunction, and that their request for injunctive relief has become moot.[7]

With respect to standing, a litigant must establish standing as to each form of relief sought. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). When seeking prospective relief, like the injunction proposed here, a plaintiff’s standing “depend[s] on whether he [is] likely to suffer future injury” from the alleged misconduct. City of L.A. v. Lyons, 461 U.S. 95, 105 (1983); see Donahue v. City of Bos., 371 F.3d 7, 14 (1st Cir. 2014). Thus, previous exposure to the challenged action is itself insufficient to establish standing to seek injunctive relief. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Instead, the plaintiff must demonstrate some ongoing injury or “real and immediate” threat of future injury from the defendant’s alleged misconduct. Lyons, 461 U.S. at 105.

In a class action lawsuit, at least one class representative must satisfy the standing requirements. See O’Shea, 414 U.S. at 494 (“[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”). To seek injunctive relief, therefore, at least one named plaintiff must show that he suffers an ongoing injury, or a real and immediate threat of future injury, caused by the challenged conduct.

Here, St. John argues that plaintiffs lack standing to seek injunctive relief because plaintiffs have not alleged that they will purchase the offending product again. See Doc. No. 100 at 15. Plaintiffs respond that they remain hand soap consumers, and have not disclaimed any intent to purchase Softsoap Antibacterial in the future. Doc. No. 103 at 10-12. Thus, they contend, they will be “wronged again” if Colgate is permitted to market a triclosan-based Softsoap Antibacterial in misleading ways. Id. I agree with plaintiffs.

I find the District of D.C.’s treatment of this precise argument persuasive. See Richardson v. L’Oreal U.S.A., Inc., 991 F.Supp.2d 181, 190-95 (D.D.C. 2013). First, as in Richardson, the record here “is devoid of evidence suggesting that plaintiffs are not likely to purchase the products again and thus not likely to suffer future harm.” Id. at 194-95 (citing Ries v. Arizona Beverages U.S.A., L.L.C., 287 F.R.D. 523, 533 (N.D. Cal. 2012). Rather, plaintiffs have expressly stated that they remain hand soap consumers, and have not “disclaimed intent to purchase Softsoap ever again.” Doc. No. 103 at 8-10. Second, like the Richardson court, I reject the suggestion that plaintiffs lack standing because, based on their involvement in this suit, they will not be fooled again by Colgate’s allegedly misleading practices. As in Richardson, “[t]o the extent the named plaintiffs purchased the products strictly because of [Colgate’s alleged] misrepresentations, the risk of future harm may not be identical to that suffered in the past. . . . But they will be harmed - without an injunction - by not being able to rely on [Colgate’s marketing and] label with any ...


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