NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA LITTLEJOHN, on behalf of No. 19-55805 herself, all others similarly situated, and the general public, D.C. No. 3:18-cv-00658-AJB-WVG Plaintiff-Appellee,

v. MEMORANDUM*

JAMES COPLAND,

Objector-Appellant,

v.

FERRARA CANDY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted June 1, 2020** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: CALLAHAN and NGUYEN, Circuit Judges, and R. COLLINS,*** District Judge.

Plaintiff-Appellee Jessica Littlejohn, representing a class of SweeTARTS

candy purchasers, sued Defendant-Appellee Ferrara Candy Company (“Ferrara”),

the maker of SweeTARTS, challenging the company’s claim that its product

contains “no artificial flavors.” Littlejohn argued that SweeTARTS contain “dl-

malic” acid, a commercially manufactured flavoring ingredient, rendering the “no

artificial flavors” claim false and misleading. On behalf of the class, Littlejohn

sought injunctive relief as well as restitution and damages based on the “price

premium” class members paid for “an artificially-flavored product that was worth

less than the naturally-flavored product promised by the labels.” Ferrara

responded that dl-malic acid is a “flavor enhancer,” not a flavor, and that the

company therefore has not misrepresented its product’s ingredients.

The parties entered a settlement agreement (“Settlement”) requiring Ferrara

to remove the phrase “no artificial flavors” from SweeTARTS packages and to

identify dl-malic acid as an ingredient. Ferrara agreed to pay $272,000 in

attorney’s fees, but the Settlement provided no compensation for class members,

who were required to waive all future claims. Instead, class members received the

*** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.

2 same benefits as those who “opted out” of the Settlement: both groups would now

be able to “make a learned judgment” about purchasing SweeTARTS products in

the future.

Objector-Appellant James Copland, a class member, objected to final

approval of the Settlement, arguing that “[t]he purported injunctive relief had no

settlement value” and that “valueless injunctive relief” could not justify “class

counsel’s disproportionate fee.”

The district court rejected Copland’s objection and approved the Settlement.

First, it noted “the weaknesses” in the case “along with the strengths of [Ferrara’s]

defenses and the obstacles to class-wide recovery,” including the risk that the class

might take nothing at trial. Second, it concluded that modification of

SweeTARTS’ packaging and advertising “adequately addresses the very claims

raised in Plaintiff’s Complaint, provid[ing] value to the Class.” Third, it concluded

that the fee award, which represented the class counsel’s lodestar “plus a modest

1.489 multiplier,” was reasonable and justified based on multipliers used in

comparable litigation, “the excellent results obtained, the experience and skill of

Counsel, the complexity of issues, the risk of non-payment and preclusion of other

work, and the reaction of the Class.”

Copland timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

Reviewing the district court’s approval of the Settlement and its award of

3 attorney’s fees for an abuse of discretion, see In re Bluetooth Headset Prods. Liab.

Litig., 654 F.3d 935, 940 (9th Cir. 2011) (“Bluetooth”), we affirm.1

The district court complied with Rule 23(e) of the Federal Rules of Civil

Procedure, which requires a fairness hearing and a determination that a settlement

is “fair, reasonable, and adequate.” Id. at 946 (quoting Fed. R. Civ. P. 23(e)(2)).

Consistent with our precedent, the district court determined that the Settlement was

“fair, reasonable, and adequate” by considering

(1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement.

Id. (quoting Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir.

2004)). We hold that the district court applied the correct legal framework and did

not abuse its discretion in approving the Settlement.

Copland argues that reversal is required under Koby v. ARS National

Services, Inc., 846 F.3d 1071, 1081 (9th Cir. 2017), where we held that a class

action settlement of claims under the Fair Debt Collection Practices Act should not

have been approved because it provided “worthless injunctive relief.” But there,

1 Because the parties are familiar with the facts of this case, we do not discuss them further here.

4 neither the class members nor the non-class members received any real benefit

because they were equally likely to be contacted by the debt collector in the future

and the debt collector had already voluntarily changed its practices in the manner

required by the settlement before the settlement was signed. Id. at 1079–80. Here,

the district court found—and Copland does not dispute—that SweeTARTS

purchasers tend to be repeat buyers who would derive value from the Settlement’s

injunctive relief upon each future purchase of SweeTARTS. Furthermore,

Copland presented no evidence that Ferrara had already changed, or was planning

to change, its labeling practices prior to agreeing to the Settlement.

The district court’s decision is also consistent with Bluetooth. In that case,

we remanded because the district court made no explicit calculation of a

reasonable lodestar amount, did not indicate why an $800,000 attorney’s fees

award was justified, and did not discuss the value of injunctive relief to the class.

Id. at 939–45 & n.8. Furthermore, the Bluetooth defendants had already

voluntarily changed their behavior, and the plaintiffs had sought significant

monetary damages for alleged economic injury ($70–$150 per headset). Id. Here,

the district court (1) made specific, independent findings about its lodestar

calculation and the reasonableness of Ferrara’s fee request; (2) correctly identified

the lack of any significant economic injuries to class members; (3) discussed the

significant risk that the class would obtain nothing at trial; and (4) identified the

5 value of the sought-out injunctive relief to class members who were often repeat

purchasers of SweeTARTS. Furthermore, the district court specifically identified

and addressed the “warning signs” of collusion set forth in Bluetooth, 654 F.3d at

947, and “found no evidence of collusion between [the parties] and their respective

counsel.”

In sum, the district court reasonably concluded that the Settlement’s

injunctive relief provided value to the class, and, applying Rule 23(e)(2) and our

case law, determined that the Settlement, including the attorney’s fees award, was

“fair, reasonable, and adequate.”

AFFIRMED.

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