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In re Sears, Roebuck & Co. Front-Loading Washer Products Liability Litigation

United States District Court, N.D. Illinois, Eastern Division

September 13, 2016

In re SEARS, ROEBUCK AND CO. FRONT-LOADING WASHER PRODUCTS LIABILITY LITIGATION This Document Relates to CCU Claims

          MEMORANDUM OPINION AND ORDER

          MARY M. ROWLAND United States Magistrate Judge.

         This Court previously granted final approval to the parties' “CCU Settlement Agreement, ” which resolved certain claims brought against Sears and Whirlpool by purchasers of Kenmore- and Whirlpool-branded front load washing machines. Dkt. 590 (Final Approval Order). The Final Approval Order left open the question of class counsel's attorney fees and expenses. Dkt. 590 at 2.

         The parties submitted numerous briefs and exhibits on the fee issue and also appeared for oral argument.[1] Having fully considered all of the parties' submissions, the Court concludes class counsel is entitled to: (1) a fee award in the amount of $4, 770, 834 and (2) reimbursement of expenses in the amount of $167, 717. The Court orders Whirlpool to make these payments in accord with the provisions in Section X.F of the CCU Settlement Agreement. Dkt. 502-1 (S.A.) at 35-36 (discussing the timing of wire transfer of funds).

         I. OVERVIEW

         In 2001, Whirlpool began manufacturing front-load washing machines and selling them under its own brand. In 2005, Sears began to sell the same Whirlpool-manufactured machines under the Sears brand. When buyers began to experience problems, they filed lawsuits against both Whirlpool and Sears, asserting two types of defects: (1) the “biofilm defect, ” which caused mold and mildew to grow inside the machines; and (2) the “CCU defect, ” which caused the machines' central control unit to malfunction. The cases against Sears are all pending in this Court. The cases against Whirlpool were joined through multidistrict litigation and are all pending in the Northern District of Ohio. See In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., No. 08-WP-65000, MDL No. 2001 (N.D. Ohio).

         In 2015, after almost ten years of litigation, the parties in both the Sears and Whirlpool cases settled all claims. Rather than agree to a “Sears Settlement” and a “Whirlpool Settlement, ” however, the parties agreed to a “CCU Settlement” and a “Biofilm Settlement.” The parties filed their CCU Settlement papers (resolving CCU claims against both Sears and Whirlpool) in this Court; they filed their Biofilm Settlement papers (resolving biofilm claims against both Sears and Whirlpool) in the MDL Court.

         On February 29, 2016, this Court entered the Final Approval Order granting final approval to the CCU Class Action Settlement Agreement. In addition to setting out the settlement benefits defendants will pay to class members, the Settlement Agreement provides that defendants will pay attorney fees and costs to class coun- sel and incentive awards to the named class members. Accordingly, class counsel moved for an award of attorney fees, reimbursement of expenses, and incentive awards for representative plaintiffs. Dkt. 530. Defendants object to the requested amounts of fees and expenses, but do not object to the requested amount of incentive awards. After hearing argument, the Court: (a) ordered an incentive award of $4, 000 to be paid to each of the nine representative plaintiffs, for a total of $36, 000; and (b) took the matter of fees and costs under advisement. Dkt. 590 at 2.

         II. PROCEDURAL HISTORY

         On December 19, 2006, a group of five plaintiffs filed this action against Sears, complaining that the Kenmore-brand, front-load washers they had purchased from Sears suffered serious performance problems. After two other groups of plaintiffs filed similar lawsuits against Sears, the three cases were consolidated in this Court for pretrial purposes. Dkt. 36, 96. Just over two years later, on March 24, 2009, plaintiff Victoria Poulsen filed a similar action against Whirlpool in the U.S. District Court for the Eastern District of California. The MDL Panel transferred the Poulsen action to the Whirlpool multidistrict litigation in the Northern District of Ohio.

         In 2011, this Court certified a class of all Illinois, Indiana, Kentucky, Minnesota, Texas, and California purchasers of the Kenmore-brand washers who suffered the alleged CCU defect. Dkt. 285. The Seventh Circuit upheld that ruling on appeal, but clarified that the class was properly certified only for liability proceedings, not for a determination of classwide damages. Sears vigorously opposed class certification and stood its ground through several rounds (and years) of litigation. See Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir.), rehearing and rehearing en banc denied (7th Cir. 2012), cert. granted, judgment vacated, 133 S.Ct. 2268 (2013), judgment reinstated, affirmed in relevant part, 727 F.3d 796 (7th Cir. 2013), cert. denied, 134 S.Ct. 1277 (2014). Having finally resolved the class certification issue, the parties and the Court agreed to conduct the first trial on behalf of the Illinois class only, which the Court scheduled for July 2015.

         Two months before the scheduled trial, after all fact and expert discovery had been completed, the parties settled plaintiffs' CCU claims. Dkt. 483. For purposes of accomplishing the nationwide class settlement in this Court, plaintiffs amended the complaint solely to add Poulsen's California state claims. Dkt. 508 (Consolidated CCU Complaint). The Court then granted the parties' joint motion for final approval of the CCU Settlement on February 29, 2016. Dkt. 589, 590.

         III. THE CLAIMS AT ISSUE

         The nine representative plaintiffs assert that Sears and Whirlpool sold them certain models of front-load washing machines that “had as component parts Matador 1 Central Control Unit (CCU) boards manufactured by Bitron . . . on a CEM-1 printed circuit board.” Consolidated CCU Complaint ¶ 2. Plaintiffs allege these CCU circuit boards were defective, causing problems including “but not limited to, (a) premature and repeated mechanical failure; (b) stopping or not starting; (c) door remaining locked; and (d) displaying a variety of error codes such as F11 and FDL.” Id. Plaintiffs' expert opined that the CCUs were defective because they were printed on a material known as CEM-1, which is brittle, rather than a more flexible material such as CEM-3; when consumers operated the washers, normal vibrations stressed the brittle CEM-1 material, causing micro-fractures to the CCU's solder connections and breaking the electronic circuits. Dkt. 564-1 (report of plaintiffs' expert Michael Pecht). The consolidated complaint contains claims for breaches of express and implied warranty under state and federal law. Consolidated CCU Complaint ¶ 4. Plaintiffs assert these claims on behalf of two classes: (1) a nationwide class of owners of certain Sears Kenmore washers that contain the “Matador 1” CCU; and (2) a California class of owners of certain Whirlpool washers that contain the “Matador 1” CCU. Id. ¶ 55. These two classes include about 450, 000 Kenmore washer owners and 86, 500 Whirlpool washer owners.

         IV. THE SETTLEMENT AGREEMENT

         The principal feature of the parties' CCU Settlement Agreement requires defendants to pay full monetary compensation to class members who suffered out-of-pocket expenses related to CCU performance problems. The Settlement Agreement also requires defendants to pay: (1) attorneys' fees to class counsel, (2) class counsels' litigation expenses, (3) incentive awards to the nine named plaintiffs, and (4) costs of settlement administration and class notice. In exchange, class members who do not opt out will release all of their CCU-based claims.[2]

         A. The Settlement Classes

         The Kenmore Settlement Class includes all persons who, while living in the United States, purchased or received as a gift a new Kenmore-brand, front-loading washing machine manufactured by Whirlpool between June 8, 2004, and February 28, 2006, with a Bitron-manufactured Matador 1 CCU. The washers are identifiable by specific model and serial numbers. S.A. at 6.

         Similarly, the Whirlpool Settlement Class includes all persons who, while in the State of California, purchased or received as a gift a new Whirlpool-brand, front-loading washing machine manufactured by Whirlpool between May 25, 2004, and February 28, 2006, with a Bitron-manufactured Matador 1 CCU. These washers are also identifiable by specific model and serial numbers. S.A. at 11-12.

         B. Compensable Performance Problems

         The Settlement Agreement provides monetary compensation for class members whose washers suffered certain “Performance Problems, ” and who suffered out-of-pocket losses to pay for “Qualifying Repairs.”

         The definition of a CCU-related Performance Problem is broad-it includes, but is not limited to, “(a) failure of the Washer to complete a cycle or interruption of the cycle; (b) failure of the door to lock at the start of the wash cycle or display of an FDL error code on the control console, or both; (c) failure of the door to unlock at the end of the wash cycle or display of an FDU error code on the control console, or both; (d) display of an F11 error code; and (e) service calls to repair or replace the CCU, the door lock assembly, the wire harness between the CCU and the MCU [Motor Control Unit], the wire harness between the CCU and the door lock, or the MCU.” S.A. at 7.

         Compensation is available for “Qualifying Repairs, ” which essentially tracks the definition of Performance Problems. Thus, a “Qualifying Repair” means that “within three years after the Purchase Date: (1) a Service Technician repaired or replaced the Washer's CCU, or (2) a Settlement Class Member otherwise incurred documented out of pocket costs to repair the Washer due to the Washer's Performance Problem . . ., or (3) a Settlement Class Member replaced the Washer or otherwise took it out of service after contacting Whirlpool, Sears, an authorized Whirlpool or Sears retailer, or a Service Technician about a Performance Problem.” S.A. at 8 (emphasis added). The three-year period exceeds the original manufacturer's warranty of one year for labor and two years for parts. Thus, the Settlement Agreement provides benefits in excess of defendants' written warranties.

         C. Amount of Compensation

         Class members are entitled to compensation depending on the amount of repair costs they incurred and the proofs they submit. As a general matter, however, class members will receive a minimum of $150 for a valid claim. The Settlement Agreement contains no cap on the total amount that defendants may ultimately be required to pay for valid claims; nor is there a cap on how much an individual class member may receive. In other words, this is not a “common fund” or “limited fund” settlement. The compensation scheme is summarized below:

Reimbursement for Paid Qualifying Repairs: Class Members will receive the full amount of any documented costs for their First Paid Repair for any Performance Problems within 3 years of purchase. If a Class Member can provide documentary proof for their First Paid Repair but the proof does not show the amount paid for that repair, that Class Members will receive $150. Class Members can also get additional compensation (on the same terms) for a Second Paid Repair if the repair took place less than 54 months after purchase.
Reimbursement for Replacement: Class Members who chose to replace, rather than repair, the Washer after contacting Whirlpool, Sears, or an Authorized Service Technician about a Performance Problem, will be reimbursed for the amount that the Class Member actually paid for the replacement (with sufficient documentary proof) up to $300.
Compensation for Qualifying Service Contracts: Class Members who purchased a warranty service contract will be reimbursed $100 to partially offset the cost of the service contract.
Compensation for Excessive Repairs: Class Members who had the CCU replaced by a Service Technician on three occasions within four years of purchase will receive the greater of (i) the purchase price of the Washer or (ii) the aggregate cost for the three repairs.
Offsets: The above compensation is subject to an offset if Whirlpool or Sears previously provided compensation to the Class Member such as a policy-adjust cash payment, a partial refund, a discount off the regular price of a new washer, a coupon applicable to the purchase of a new clothes washer that was redeemed, etc.

S.A. §§ IV.C-D.

         At the time of the final approval hearing, the Claims Administrator reported that the average amount paid per valid claim was about $275. Dkt. 587 (Feb. 17, 2016 Hr'g Tr.) at 68.

         D. Notice and the Claims Process

         When a consumer purchases a Sears washer, Sears usually collects point-of-purchase data, including the contact information for the consumer and the serial and model numbers of the purchased washer. To a lesser extent, Whirlpool collects similar information (mostly through warranty registration card returns). As a re- sult, defendants know the specific identify of the vast majority of purchasers of the Kenmore washers at issue, and many of the Whirlpool washers at issue. Further, defendants often know whether class members complained about CCU-related problems because Sears' database indicates whether a purchaser of a Kenmore washer called with a complaint or to request a service call. This information allowed class notice to be more precise and allowed the claim submission process to be more streamlined.

         The claims administrator used defendants' databases to send postcard notice to 486, 387 individuals known to have purchased the washers at issue; he was also able to send 41, 072 emails directly to class members. Dkt. 523-1 at 5. Whenever possible, class members were sent postcard notices that contained an individualized code; when the class member Dated this code in the online claim form, many fields “auto-populated, ” making claim submission easier. And if a class member could “be identified in Whirlpool's or Sears's databases as having paid for a Qualifying Repair or as having paid for a Qualifying Service Contract, ” then he or she was deemed a “Prequalified Class Member.” S.A. at 7. Prequalified Class Members were not required to submit any documentation to support their claims; to receive reimbursement for the amounts that Sears already knows the Prequalified Class Members paid, these class members need only confirm their current name and address, check the eligibility boxes on the online claim form, and submit their electronic signature. Id. at 20.

         If a non-Prequalified Class Member did not provide necessary documentation of an out-of-pocket expense for a Qualifying Repair, the claims administrator would search defendants' databases for proof of a claimed Qualifying Repair, so that the claim might be cured and the class member would receive full reimbursement. S.A. at 21.

         The Settlement Agreement makes clear that all costs of notice and claims administration are paid by defendants and do not reduce the amounts available to class members. S.A. § VI.

         E. Attorney Fees and Expenses

         Defendants agreed to pay “reasonable attorneys' fees and costs, ” without reducing the amount of money available to pay benefits to class members, or fees to the settlement administrator, or incentive awards to the named plaintiffs. S.A. at 29, 35.[3] While the Settlement Agreement sets no minimum or maximum amounts within which a fee award must fall, class counsel agreed not to request more than $6 million.

         V. METHOD FOR DETERMINING REASONABLE ATTORNEYS' FEES

         A. State Law Versus Federal Law

         The Settlement Agreement, resolving plaintiffs' warranty claims under the Magnuson Moss Act, 15 U.S.C. § 2301 et. seq, as well as state law warranty claims, provides that it “shall be construed and governed in accordance with federal procedural law and the substantive laws of the State of Illinois.” S.A. at 43. While class counsel devote the majority of their brief addressing federal jurisprudence regarding fee requests, they also contend that the Court should apply Illinois law to the fee issue based on this provision in the Settlement Agreement. Dkt. 531 at 12-13. They then go on to assert that Illinois and federal courts essentially agree on how to determine a reasonable fee and the result will be the same regardless which law the court applies. Id. at 13-15.

         In the Seventh Circuit, the “method of quantifying a reasonable fee is a procedural issue governed by federal law.” Oldenburg Group Inc. v. Frontier-Kemper Constructors, Inc., 597 F.Supp.2d 842, 847 (E.D. Wis. 2009); see Taco Bell Corp. v. Cont'l Cas. Co., 388 F.3d 1069, 1077 (7th Cir. 2004) (the procedure used to determine whether the amount sought is reasonable falls on the procedural side of the substantive-procedural divide created by Erie and subsequent decisions). Thus, the Court looks to federal precedent to determine the appropriate fees in this case. Given that the parties agree that plaintiffs are entitled to “reasonable” fees and the method of quantifying what is “reasonable” is a procedural issue, the Court will confine its analysis to federal law.

         B. Lodestar Versus Ratio Approach

         The district court plays a significant role in reviewing class action settlements and determining appropriate fee awards to class counsel. In non-class action cases, the trial court trusts that the parties “have negotiated to a just result as an alterna- tive to bearing the risks and costs of litigation.” Redman v. RadioShack Corp., 768 F.3d 622, 629 (7th Cir. 2014). But when reviewing a class action settlement, “the law quite rightly requires more than a judicial rubber stamp” because of “the built-in conflict of interest in class action suits.” Id.; In re Southwest Airlines Voucher Litig., 799 F.3d 701, 711 (7th Cir. 2015) (“conflicts of interest are inherent in class action suits”). Naturally, the defendant “is interested only in . . . how much the settlement will cost him.” Redman, 768 F.3d at 629. According to the appellate court, “class counsel, as ‘economic man' . . . is interested primarily in the size of the attorneys' fees.” Id. Assuming both counsel are self-interested, “the optimal settlement . . . is therefore a sum of money moderate in amount but weighted in favor of attorneys' fees for class counsel.” Id.; see Southwest Airlines, 799 F.3d at 711 (review of fee requests must be “based on the assumption that class counsel [will] behave as economically rational actors who seek to serve their own interests first and foremost”)

         In order to address this inherit conflict of interest, the Redman court set forth a ratio to assess the reasonableness of a fee request, namely, “the ratio of (1) the fee to (2) the fee plus what the class members received.” 768 F.3d at 630. Two months later, Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th Cir. 2014), emphasized the presumption “that attorneys' fees awarded to class counsel should not exceed a third or at most a half of the total amount of money going to class members and their counsel.” Both Redman and Pearson addressed several factors that the district court should consider in calculating this ratio to determine the actual value of the settle- ment to class members. Thus in Redman, the court held that the settlement value to the class could not include the $2.2 million in administrative costs as those costs did not represent a value received by the members of the class. 768 F.3d at 630. Similarly in Pearson, the settlement value to the class members could not include the $1.5 million for the cost of notice to the class or the $1.13 million cy pres award. 772 F.3d at 781, 784. Also, the settlement value was limited to the $865, 284 actually paid to the class members, not the potential $14.2 million if every one of the 4 million class members had filed a claim. Id. at 780-81.

         Relying on Pearson and Redman, defendants argue that the Court must confine its award to “the ratio of (1) the fee to (2) the fee plus what the class members received.” Redman, 768 F.3d at 630; accord Pearson, 772 F.3d at 781; see Dkt. 564 at 11-13. In light of the claims pending at the time of the final fairness hearing, strictly applying this ratio would limit the fee award to approximately $900, 000. Hr'g Tr. at 64. This is over $2 million less than the value of the time plaintiffs' counsel actually expended over the nine years this case was in litigation.

         This Court believes defendants read Pearson and Redman too broadly. The objectors in Southwest Airlines, a coupon settlement, relying on the Pearson presumption argued that the fee “had to be based on the value of the coupons actually redeemed by class members.” 799 F.3d at 705. The Seventh Circuit rejected this argument, ruling that “a district court [has] discretion to use the lodestar method to calculate attorney fees even when those fees are intended to compensate class counsel for the coupon relief he or she obtained for the class.” Id. at 707. Indeed, whether attorneys' fees in class action cases are based on statutory fee-shifting or the common fund doctrine, the district court can use the lodestar method to calculate the fees.[4] See City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (“The ‘lodestar' figure has . . . become the guiding light of our fee-shifting jurisprudence. We have established a ‘strong presumption' that the lodestar represents the ‘reasonable' fee . . . .”); Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 566 (7th Cir. 1994) (“in common fund cases, the decision whether to use a percentage method or a lodestar method remains in the discretion of the district court”); Kolinek v. Walgreen Co., No. 2015 WL 7450759, at *15 (N.D. Ill. Nov. 23, 2015) (“In the Seventh Circuit, district courts may exercise discretion in choosing either the lodestar or percentage-of-the-fund approach to calculating attorney's fees in common-fund cases. The Seventh Circuit is agnostic regarding which approach district courts should choose . . . .”) (citation omitted); Reid v. Unilever United States, Inc., No. 12 C 6058, 2015 WL 3653318, at *5 (N.D. Ill. June 10, 2015), aff'd sub nom. Martin v. Reid, 818 F.3d 302 (7th Cir. 2016) (“In a statutory fee-shifting case, the court determines a reasonable amount of attorneys' fees by applying the lodestar method.”). The Southwest Airlines court cautioned the court applying the lodestar method to “bear in mind the potential for abuse” but was persuaded that this was “an exceptional settlement that actually makes the class whole.” 799 F.3d at 710-12.

         The present case was hard-fought over nearly ten years-including two appearances before the Seventh Circuit on class certification. Furthermore, qualified members of the class are receiving on average $275, nearly all the money they spent repairing or replacing their faulty washer. In light of the Southwest Airlines holding, the Court rejects the notion that it is precluded from awarding the lodestar. The Pearson presumption is exactly that-a presumption that may be overcome. See Pearson, 772 F.3d at 782 (“the presumption should we suggest be that attorneys' fees awarded to class counsel should not exceed a third or at most a half of the total amount of money going to class members and their counsel”) (emphasis added).

         Although the Court finds that it is not bound by the Pearson ratio presumption, there is no doubt the Court is obligated to carefully review the settlement for indications of class counsel being compensated at the expense of the class members. The Seventh Circuit has identified a number of factors for the district court to consider when evaluating whether attorney fees for class counsel are being sought at class expense. Not a single one of them is present in this case.

         First, the district court should be wary if the settlement agreement includes a “clear-sailing clause”-“a clause in which the defendant agrees not to contest class counsel's request for attorneys' fees.” Redman, 768 F.3d at 637. The concern is that a defendant likely would not agree to a clear-sailing clause without some concession by class counsel-“namely a reduction in the part of the settlement that goes to the class members, as that is the only reduction class counsel are likely to consider.” Id. While clear-sailing clauses are not unlawful per se, “such a clause should be sub- jected to intense critical scrutiny by the district court.” Id. As evidenced by the volume of pleadings filed in this case regarding the attorneys' fees, the parties have no “clear sailing” agreement.

         The district court should also be suspicious of a “kicker clause, ” which “provides that if the judge reduces the amount of fees that the proposed settlement awards to class counsel, the savings shall inure not to the class but to the defendant.” Pearson, 772 F.3d at 786. Describing the kicker clause as a “gimmick for defeating objectors, ” the circuit court observed that the obvious benefit of a kicker clause to the defendant is matched by a hidden benefit to class counsel-counsel are more likely to get the agreed-upon fee award, because no class member has “standing to object.” Id.; see Southwest Airlines, 799 F.3d at 705 (“‘kicker' clauses [are] designed to shield the fee award from challenge”). Again, there is no “kicker” clause here.

         Finally, the Pearson court was concerned that the claims process actually discouraged claims from being filed. As the Pearson court observed, the ratio presumption “gives class counsel an incentive to design the claims process in such a way as will maximize the settlement benefits actually received by the class.” 772 F.3d at 781. Troubling to the court in Pearson was the fact that, for a modest award of $3 or $5 per bottle purchased, a class member had to wade through five documents on a website, provide proof of purchase (“likely to have been discarded”), and certify under penalty of perjury the veracity of his claim. Id. at 783. To the contrary, in the present case, the claims process was designed to maximize claims. Whenever possible, class members were sent postcard notices that contained an individualized code; when the class member Dated this code in the online claim form, many fields “auto-populated, ” making claim submission easier. And if a class member was “identified in Whirlpool's or Sears's databases as having paid for a Qualifying Repair or . . . a Qualifying Service Contract, ” then he or she was deemed a “Prequali-fied Class Member.” S.A. at 7. Prequalified Class Members were not required to submit any documentation to support their claims. These class members need only confirm their current name and address, check the eligibility boxes on the online claim form, and submit their electronic signature. Id. at 20. Finally, defendants also agreed that if a non-Prequalified Class Member did not provide necessary documentation of an out-of-pocket expense for a Qualifying Repair, the claims administrator would search defendants' databases for proof of a claimed Qualifying Repair, so that the claim might be cured and the class member would receive full reimbursement. Id. at 21. As a result, the claim submission rate in this case is high. Although “the percentage of class members who file claims is often quite low” in consumer class actions, Pearson, 772 F.3d at 782 (noting it was “one quarter of one percent” in that case), the claim submission rate for prequalified claimants in this case is about 16%. Dkt. 574 (Schwartz Decl. in Support of Reply) at ¶ 1.

         In this case, there is no evidence of collusion between defendants and class counsel. The Settlement Agreement contains no kicker or clear-sailing clauses. Further, the parties agreed on the class members' settlement without discussing attorney fees. Dkt. 574 at ¶ 7 (class counsel attesting that the parties agreed on class relief without any agreement on fees). “There was not a single cent of relief that [the] class traded off for fees.” Hr'g Tr. at 42; see S.A. §§ X.A (agreeing to pay fees “without reducing the amount [of] money available to pay Valid Claims submitted by Settlement Class Members”), X.D (same), X.B (“The amount of attorneys' fees and expenses to be paid to Class Counsel shall be determined by the Court.”). And defendants are vigorously contesting class counsel's fees request. Cf. Redman, 768 F.3d at 629 (rejecting class settlement partly out of concern that defendant agreed to not contest $1 million in fees in exchange for smaller award to class).

         Second and most significantly, qualified class members are receiving a full re-covery.[5] Hr'g Tr. at 39; see Southwest Airlines, 799 F.3d at 711 (emphasizing that “complete relief for the class is the model of an adequate settlement”). Both parties attest that the Settlement Agreement provides class members with a “full, make-whole relief for repairs (and significant compensation for washer replacements) related to CCU Performance Problems that first manifested within 3 years of pur-chase.”[6] Dkt. 502 at ΒΆ 12 (joint declaration by defendants and class counsel). The parties agree that class members ...


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