Judges: Wood
Filed: Mar. 25, 2016
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3009 TINA MARTIN, Class Objector-Appellant, v. SIDNEY REID et al., Plaintiffs-Appellees, v. UNILEVER UNITED STATES, INC., et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 6058 — Rubén Castillo, Chief Judge. _ ARGUED SEPTEMBER 29, 2015 — DECIDED MARCH 25, 2016 _ Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges. WOO
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3009 TINA MARTIN, Class Objector-Appellant, v. SIDNEY REID et al., Plaintiffs-Appellees, v. UNILEVER UNITED STATES, INC., et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 6058 — Rubén Castillo, Chief Judge. _ ARGUED SEPTEMBER 29, 2015 — DECIDED MARCH 25, 2016 _ Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges. WOOD..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3009
TINA MARTIN,
Class Objector‐Appellant,
v.
SIDNEY REID et al.,
Plaintiffs‐Appellees,
v.
UNILEVER UNITED STATES, INC., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 6058 — Rubén Castillo, Chief Judge.
____________________
ARGUED SEPTEMBER 29, 2015 — DECIDED MARCH 25, 2016
____________________
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
WOOD, Chief Judge. This case arises out of several class ac‐
tions that were brought against Unilever United States, Inc.
(Unilever USA) to recover damages from a hair‐smoothing
2 No. 14‐3009
product that allegedly destroyed users’ hair and burned their
scalps. The lead case, Reid v. Unilever USA, was brought in the
Northern District of Illinois under the court’s diversity juris‐
diction, see 28 U.S.C. § 1332, related actions in Kentucky and
California were later transferred to Illinois and consolidated
with Reid. The cases were eventually settled, but not to every‐
one’s satisfaction. Tina Martin, a class member, objected to the
settlement on numerous grounds, which we detail below. We
have examined all of them and conclude that the district court
acted well within its discretion when it approved the settle‐
ment. We therefore affirm its judgment.
I
The class representatives in the three suits had all pur‐
chased Unilever USA’s Suave® Professionals Keratin Infusion
30 Day Smoothing Kit (the Smoothing Kit), a hair product that
supposedly would smooth hair and coat it with Keratin, a
protein found naturally in hair. Unfortunately, for some con‐
sumers, the Smoothing Kit was a disaster. Its active ingredi‐
ent, thioglycolic acid, is extremely corrosive, and if left on
long enough, can dissolve the hair and burn the scalp. Assert‐
ing claims for breach of warranty, violations of state consumer
fraud and deceptive practices laws, and unjust enrichment,
plaintiffs in several states filed class action lawsuits against
Unilever USA and related companies. (We refer to them col‐
lectively as Unilever USA.)
Once the cases were consolidated in the Northern District
of Illinois, they were stayed so that the parties could pursue
mediation. They worked for a year and a half, with the help
of retired District Court Judge Wayne Andersen, and ulti‐
mately succeeded in reaching a settlement agreement on Feb‐
ruary 7, 2014. That settlement was presented to the district
No. 14‐3009 3
court as required by Federal Rule of Civil Procedure 23(e).
Chief Judge Rubén Castillo entered an order on February 12,
2014, granting preliminary approval of the settlement and di‐
recting notice to the settlement class. After a final approval
hearing held on July 9, 2014, he entered an order granting fi‐
nal approval on July 29, 2014. Objector Martin has appealed
from the final order.
The settlement class is defined as “[a]ll persons who pur‐
chased or used the Smoothing Kit in the United States, before
February 17, 2014, excluding [those who did not purchase for
personal use, those who signed a release for consideration,
and certain interested parties].” The settlement provides that
this class would be certified, and that the class would dismiss
its claims against the defendants in exchange for specified
compensation. In particular, Unilever USA agreed to create
two settlement funds: a Reimbursement Fund of $250,000,
and an Injury Fund of $10,000,000, for a total of $10,250,000.
The Reimbursement Fund is available to any member of the
settlement class who seeks compensation, but the compensa‐
tion is limited to a one‐time payment of $10 per person. That
payment represents reimbursement for the cost of purchasing
the Smoothing Kit. The Injury Fund is designed to compen‐
sate any member of the settlement class (excluding those who
opted out) who suffered bodily injury as a result of using the
Smoothing Kit. Applicants must proceed under one of three
options: Benefit A, which is capped at $40 per claimant, is
available for class members who incurred expenses for hair
treatment but who no longer have supporting receipts; Bene‐
fit B is for claimants who do have receipts, such as hairdresser
or medical bills. Each claimant is eligible to receive $800. Per‐
sons who suffered significant bodily injury are eligible for
Benefit C, which provides for an award up to $25,000 per
4 No. 14‐3009
claimant. A Special Master appointed by the district court will
make the Benefit C determinations, and will evaluate any
Benefit A or B claim that the Settlement Administrator deems
insufficient. Unilever USA will bear all costs of notice, claims
administration, and attorneys’ fees for class counsel, along
with litigation costs and expenses. Class counsel’s fee is en‐
tirely separate from the $10,250,000 available for class com‐
pensation. Finally, two named plaintiffs receive incentive
awards of $7,500, and Reid got $10,000.
Chief Judge Castillo appointed retired Magistrate Judge
Nan R. Nolan to serve as the Special Master. But before much
could happen, Objector Martin (along with Yolanda Reed,
who has since been dismissed from the case) filed this appeal
from the order finally approving the settlement. Martin raises
eleven points in her brief:
1. The settlement lacks a reasonably accurate quantitative
analysis of the benefits provided, as compared with the
risks and benefits of litigation.
2. The court had conflicting data about both the number
of Smoothing Kits sold and the value of the personal
injury claims.
3. The settling parties provided no evidence of the de‐
fendant’s liquidity, net worth, or ability to pay a higher
judgment.
4. The court lacked a reasonable estimate of the dollar
amount to be paid in claims and thus could not say
whether the $10,250,000 figure was illusory.
5. There is no way to assure that the distribution scheme
is fair and adequate, since there are no standards for
No. 14‐3009 5
the evaluation of personal‐injury claims and only a
limited right of administrative appeal.
6. The settlement lumps together serious personal injury
claims with economic claims in an unfair way.
7. The settlement is flawed because it does not perma‐
nently enjoin Unilever USA from re‐introducing the
same or similar products in the future.
8. The settlement should have enjoined defendants to
take steps to confirm the removal of the Smoothing
Kits from stores.
9. The settlement upheld unconscionable releases, by ex‐
cluding people who signed them from the class defini‐
tion.
10. The documentation requirements for Benefit C claim‐
ants favor Unilever USA and class counsel at the ex‐
pense of the class.
11. The class members’ due process rights were violated
by permitting class counsel’s fee motion to be resolved
after the settlement was approved, without providing
a way for class members to comment on it.
We address a number of these together, as the basic points
overlap somewhat. As we noted earlier, our review is defer‐
ential, for abuse of discretion only. Isby v. Bayh, 75 F.3d 1191,
1196–97 (7th Cir. 1996).
II
The general principles that guide the court’s evaluation of
a proposed class settlement agreement include (1) the
strength of the class’s case, (2) the complexity and expense of
6 No. 14‐3009
further litigation, (3) the amount of opposition, (4) the reac‐
tion of class members to the settlement, (5) the opinion of
competent counsel, and (6) the stage of the proceedings and
the amount of discovery that was completed. Wong v. Accretive
Health, Inc., 773 F.3d 859, 863 (7th Cir. 2014). Of these, we have
suggested that the first consideration is the most important.
Id. at 864. That said, the likelihood of the class’s success after
full litigation affects many of the points Martin has raised.
More than that, it is generally for the parties to decide how
much litigation risk they wish to take, and courts should be
hesitant to second‐guess them.
Martin’s first four points deal in one way or another with
the accuracy of the data on which the district court relied. Re‐
lying on an estimate that the Food and Drug Administration
put on its website about Unilever USA’s May 2012 recall of the
product, she argues that the class size is probably larger than
the negotiating parties assumed. She also notes that some
Smoothing Kits are still being sold after the recall—a point
that she believes adds to the indeterminacy of the class. If the
class is significantly larger than the parties assumed, then the
dollar amounts provided for the settlement are more likely to
be inadequate.
Martin adds that the court also did not know enough
about the number of people who suffered serious injuries, or
the value of those injuries, to make an informed decision. As
of the July hearing, a little more than 500 injury claims had
been filed. It is true that very little was said about them, and
that more information might have been helpful. But Martin
herself does not seem to be sure about what point she is mak‐
ing here. On the one hand, she urges that the low number of
claims proves that no one will benefit from this settlement and
No. 14‐3009 7
too much money will be returned to Unilever USA; on the
other hand, she says that the number of claims will balloon
and there will not be enough money to cover them all.
The district court addressed these points and concluded
that it had enough data for an informed decision and that the
dollar amounts were within a reasonable range. The judge
noted that he did not “think the $10 million that has been set
aside is going to be fully used and … a chunk of that money,
which I estimate as much as a third or maybe even 40 percent,
might revert back to Unilever. But the attorneys’ fees in this
case are not coming from that fund, and even if 40 percent
reverts back to Unilever, that still results in a significant re‐
covery for the remaining class members, somewhere in the
neighborhood of $6 million.” Martin’s speculation that there
might be many more claims filed is also unsupported. The
hearing occurred two‐thirds of the way through the claim pe‐
riod. By that time, the administrator had received 2,294 claims
(including 458 Benefit A claims, 67 Benefit B claims, and 131
Benefit C claims). These numbers do not suggest that there
was a horde of people who were likely to swamp the monies
available in the remaining six months. Nor is there any reason
to think that a trial would have produced substantially differ‐
ent results for the class. Compare Reynolds v. Beneficial Nat’l
Bank, 288 F.3d 277, 284–85 (7th Cir. 2002) (estimate of trial re‐
covery important where settlement is problematic). We see no
abuse of discretion in the district court’s decision to approve
the amount of the benefits.
Martin’s next arguments (points 5 and 6) focus on the way
the settlement treated the personal injury and tort claims. She
criticizes what she sees as the lumping together of quite dif‐
ferent personal injury claims in one “adjudicatory scheme.” It
8 No. 14‐3009
is unclear why she believes that she personally would be bet‐
ter off under a different arrangement, but we set that point
aside and address what seems to be her main argument: that
the settlement’s value was too low because it failed to recog‐
nize that there are a number of different applicable laws.
A common question of law (or fact), see Rule 23(a)(2), is
necessary for class certification. And the Supreme Court has
held that settlement classes are subject to the same certifica‐
tion criteria as litigation classes. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 619‐22 (1997); see also Ortiz v. Fibreboard
Corp., 527 U.S. 815, 846‐47, 864‐65 (1999). Martin does not
seem to be arguing that the district court erred in certifying
this class; she appears to be saying only that a different struc‐
ture for the class (perhaps subclasses) would have been more
advantageous to the members. An exchange at the fairness
hearing sheds some light on her point. Local counsel for Mar‐
tin said that “personal injury cases are inherently difficult to
manage on a class‐wide basis because of the differences in in‐
juries amongst the plaintiffs, differences in state laws, et
cetera.” Chief Judge Castillo then asked, “So are you saying
that there should not be class actions for product liability
cases?” Counsel responded, “No, I’m not taking it that far.”
Nor has Martin taken it “that far” in this court.
It is true that nationwide settlements of claims subject to
state law are not always possible. In In re Bridgestone/Firestone,
Inc., 288 F.3d 1012, 1020 (7th Cir. 2002), we cautioned that
“[d]ifferences across states may be costly for courts and liti‐
gants alike, but they are a fundamental part of our federal re‐
public and must not be overridden in a quest to clear the
queue in court.” But this did not mean that nationwide classes
are impermissible as a matter of law. In Pella Corp. v. Saltzman,
No. 14‐3009 9
606 F.3d 391 (7th Cir. 2010), we found certification to be ap‐
propriate for just such a class. We distinguished the issue in
Pella—a design defect in windows leading to wood rot—from
the myriad different tire defects and recalls in Bridgestone. For
what it is worth, the present case appears to resemble Pella
more than Bridgestone, but there is a stronger reason for sup‐
porting the district court’s decision here: the settlement agree‐
ment contained a choice‐of‐law clause, which specified the
law of Illinois. Martin seems to have overlooked this point,
when she asks in her brief, “will variations in claimants’ re‐
spective state laws be considered in determining the award?”
The short answer is that those variations will not make a dif‐
ference, because of the choice of a single law.
Martin’s seventh and eighth points relate to the absence of
any injunctive relief in the settlement agreement. She would
like to see a court order preventing Unilever USA from mak‐
ing and marketing any products containing hazardous chem‐
icals, as well as an order requiring a more effective recall pro‐
cedure that ensures that all Smoothing Kits are removed from
store shelves. But the agreement carves out retailers that are
still selling the product. The need for such an injunction in the
settlement agreement was something the district court con‐
sidered and rejected. We find no abuse of discretion in its de‐
cision.
The ninth contention Martin presses is that the settlement
agreement, via the class definition, should not have carved
out the people who had already signed releases. She argues
that “Unilever has … engaged in a campaign designed to ob‐
tain unconscionable and unenforceable releases from con‐
sumers injured by the Product.” Under the settlement agree‐
ment, Unilever is entitled to provide the Special Master with
10 No. 14‐3009
evidence of releases in the Benefit C cases (or any Benefit A or
B cases that were rejected by the Administrator) that are re‐
ferred to her. The district court saw nothing wrong with this,
nor do we. It will be up to the Special Master to consider the
effect of any particular release. Moreover, Unilever has a point
when it notes that Martin lacks standing to make this argu‐
ment, because she did not sign a release.
Argument 10 is a general complaint about the documen‐
tation requirements for the Benefit C claimants. Martin argues
that these requirements are so onerous that monies intended
for class members will wind up going back to Unilever USA
or to class counsel instead. The latter point is simply wrong,
because the settlement ensures that the funds available for
compensation are entirely separate from the funds that will
go to counsel. As for the general claim that the procedures are
too burdensome, we have no reason to disagree with the dis‐
trict court’s assessment to the contrary. Anyone can get $10
just by signing an affidavit to the effect that she or he pur‐
chased the kit and providing any “available” documentation
they might have. Claimants can also be reimbursed up to $40
for haircuts if those were necessary. The fact that better docu‐
mentation is needed for those with significant injuries is
hardly a surprise. In the absence of any evidence that the Spe‐
cial Master has been imposing unrealistic requirements on
claimants, we see nothing wrong with this aspect of the set‐
tlement.
Finally, Martin raises a number of complaints about class
counsel’s fee and the procedures the court followed in ap‐
proving it. The district court deferred consideration of the fee
motion until after it had given its final approval to the settle‐
ment agreement. Martin objected that this prevented her from
No. 14‐3009 11
commenting on the fee petition, in violation of both Rule 23
and due process. Unilever responds that any claim she might
have was not ripe at the time of the final approval, because
the fee award had not yet occurred then. (The proceedings re‐
lated to fees were completed on June 10, 2015.) More persua‐
sively, it also notes that the attorneys’ fee petition was submit‐
ted two weeks before the deadline for objections—that is, in
plenty of time for input—and Martin herself filed an objec‐
tion. Nothing in Rule 23 prohibits the deferral of the final fee
award until after the agreement is approved, especially for an
agreement structured as this one is, where the fees are kept
entirely separate from the funds that will be available for com‐
pensation. This type of provision is to be encouraged, not crit‐
icized. It was certainly within the district court’s discretion to
approve it.
III
Martin has made some additional arguments against the
settlement agreement, but we see no need to address them
separately. We conclude that the district court properly ap‐
proved the settlement agreement reached in this case, and we
thus AFFIRM its judgment.