ECF 49 - 1 Memorandum of Law in Support of Plaintiffs' Notice of Motion For Preliminary Settlement Approval and Related Relief

Case 2:19-cv-13554-MCA-MAH Document 49-1 Filed 08/14/20 Page 1 of 48 PageID: 598
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
MICHAEL BENTLEY, et al., on Case No. 2:19-cv-13554-MCA-MAH

behalf of themselves and all others (consolidated with Case Nos. 2:19-
similarly situated, cv-15185-MCA-MAH, 2:19-cv-
15826-MCA-MAH, and 2:20-cv-
Plaintiffs, 07652-MCA-MAH)
v.
LG ELECTRONICS U.S.A., INC.
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ MOTION FOR PRELIMINARY SETTLEMENT
APPROVAL AND RELATED RELIEF
BERGER MONTAGUE PC GIRARD SHARP LLP

Shanon J. Carson (pro hac vice) Daniel C. Girard (pro hac vice)
Lawrence Deutsch (NJ 034971986) Jordan Elias (pro hac vice)
Jacob M. Polakoff (NJ 035832006) Adam E. Polk (pro hac vice)
Amey J. Park (NJ 070422014) Simon S. Grille (pro hac vice)
1818 Market Street, Suite 3600 601 California Street, 14th Floor
Philadelphia, PA 19103 San Francisco, California 94108
Tel.: (215) 875-3000 Tel: (415) 981-4800
Fax: (215) 875-4604 [email protected]
[email protected] [email protected]
[email protected]
Counsel for Plaintiffs
[Additional Counsel on Signature

Page]
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................................1

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY .................2
A. Plaintiffs’ Allegations and Preliminary Investigation ................................2
B. The California Action .................................................................................3
C. The New Jersey Actions, Consolidation, and Coordination ......................4
D. Fact and Expert Discovery .........................................................................6
E. Mediation and Settlement ...........................................................................7
F. Principal Terms of the Settlement ..............................................................8
1. Proposed Settlement Class..................................................................8
2. Settlement Consideration ....................................................................9
3. Value of the Settlement ....................................................................13
4. Release of Liability ...........................................................................15
5. Claim Submission and Administration.............................................16
6. Notice Program .................................................................................16
III. ARGUMENT............................................................................................18
A. Preliminary Approval of the Proposed Settlement Is Warranted. ............18
B. The Court Should Preliminarily Approve the Settlement Under Rule
23(e)(2). ....................................................................................................19
1. The Class Representatives and Class Counsel Have Adequately
Represented the Class, and the Proposed Settlement Is the Product
of Arm’s Length Negotiations by Experienced Counsel (Rule
23(e)(2)(A)-(B))................................................................................21
2. The Relief Provided for the Class Is Adequate Under Rule
23(e)(2)(C). .......................................................................................23
i
3. The Proposal Treats Class Members Equitably Relative to Each

Other (Rule 23(e)(2)(D)). .................................................................28
4. Additional Girsh Factors Favor Preliminary Approval....................29
C. The Court Should Preliminarily Certify the Class ...................................31

1. Numerosity Under Rule 23(a)(1)......................................................31
2. Commonality Under Rule 23(a)(2). .................................................32
3. Typicality Under Rule 23(a)(3). .......................................................33
4. Adequacy of Representation Under Rule 23(a)(4). ..........................33
5. The Predominance and Superiority Requirements of Rule 23(b)(3)
Are Met. ............................................................................................35
D. The Notice Plan Satisfies Rule 23 and Due Process. ...............................36

E. The Court Should Appoint Daniel C. Girard and Shanon J. Carson
as Co-Lead Class Counsel. .......................................................................38
F. A Final Approval Hearing Should Be Scheduled. ...................................38
IV. CONCLUSION ........................................................................................39
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Abdeljalil v. Gen. Elec. Capital Corp.,

306 F.R.D. 303 (S.D. Cal. 2015) ...........................................................................9
Alin v. Honda Motor Co.,

No. CIV.A. 08-4825 KSH, 2012 WL 8751045 (D.N.J. Apr. 13, 2012) ..............32
Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ...................................................................................... 31, 35
Baby Neal v. Casey,

43 F.3d 48 (3d Cir. 1994).....................................................................................32
Beck v. Maximus, Inc.,

457 F.3d 291 (3d Cir. 2006).................................................................................34
Butler v. Porsche Cars N. Am.,

2017 WL 1398316 (N.D. Cal. Apr. 19, 2017) .....................................................24
Ehrheart v. Verizon Wireless,

609 F.3d 590 (3d Cir. 2010).................................................................................19
Giercyk v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,

No. 2:13-CV-6272-MCA-MAH, 2016 WL 7209649 (D.N.J. Oct. 13, 2016) ....18,
37, 38
Girsh v. Jepson,
521 F.2d 153 (3d Cir. 1975)................................................................ 20-23, 29-30
Grimes v. Vitalink Commc’ns Corp.,

17 F.3d 1553 (3d Cir. 1994).................................................................................16
Haag v. Hyundai Motor Am.,

No. 12-CV-6521L, 2019 WL 1029002 (W.D.N.Y. Mar. 5, 2019) ......................24
Henderson v. Volvo Cars of N. Am., LLC, No.,

09-4146 (CCC), 2013 WL 1192479 (D.N.J. Mar. 22, 2013) ................. 30, 35, 36
iii
In re CertainTeed Corp. Roofing Shingle Prod. Liab. Litig.,

269 F.R.D. 468 (E.D. Pa. 2010) ...........................................................................33
In re Cigna Corp. Secs. Litig.,

No. 02-8088, 2007 WL 2071898 (E.D. Pa. July 13, 2007) .................................22
In re Cmty. Bank of N. Va. & Guaranty Nat’l Bank of Tallahassee Second Mortg.
Loan Litig.,
622 F.3d 275 (3d Cir. 2010).................................................................................34
In re Ins. Brokerage Antitrust Litig.,

579 F.3d 241 (3d Cir. 2009).................................................................................36

282 F.R.D. 92 (D.N.J. 2012) ................................................................................25

297 F.R.D. 136 (D.N.J. 2013) ..............................................................................37
In re Johnson & Johnson Deriv. Litig.,

900 F. Supp. 2d 467 (D.N.J. 2012) ......................................................................30
In re Merck & Co., Inc. Vytorin ERISA Litig.,

No. 08-CV-285 (DMC), 2010 WL 547613 (D.N.J. Feb. 9, 2010) ......................21
In re MyFord Touch Consumer Litig.,

No. 13-CV-03072-EMC, 2019 WL 1411510 (N.D. Cal. Mar. 28, 2019) ...........29
In re NFL Players Concussion Injury Litig.,

821 F.3d 410 (3d Cir. 2016).......................................................................... 30, 38
In re Philips/Magnavox Television Litig.,

No. CIV.A. 09-3072 CCC, 2012 WL 1677244 (D.N.J. May 14, 2012) . 25, 31, 34
In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,

148 F.3d 283 (3d Cir. 1998).......................................................................... 21, 37
In re WorldCom, Inc. Sec. Litig.,

388 F. Supp. 2d 319 (S.D.N.Y. 2005) .................................................................26
Marchese v. Cablevision Sys. Corp.,

No. CV-102190-MCA, 2016 WL 7228739 (D.N.J. Mar. 9, 2016) ............. passim
iv
McBean v. City of New York,

228 F.R.D. 487 (S.D.N.Y. 2005) ....................................................................... 8-9
McGee v. Cont’l Tire N. Am., Inc., No. CIV. 06-6234 (GEB),

2009 WL 539893 (D.N.J. Mar. 4, 2009)..............................................................34
Nottingham Partners v. Trans-Lux Corp.,

925 F.2d 29 (1st Cir. 1991) ..................................................................................16
Shapiro v. Alliance MMA, Inc.,

No. 17-2583 (RBK/AMD), 2018 WL 3158812 (D.N.J. June 28, 2018) 19, 22, 30
Singleton v. First Student Mgmt., LLC,

No. 13-744 (JEI/JS), 2014 WL 3865853 (D.N.J. Aug. 6, 2014) .................. 19, 25
Skeen v. BMW of N. Am., LLC, No. 2:13-CV-1531-WHW,

2016 WL 70817 (D.N.J. Jan. 6, 2016) .......................................................... 33, 34
Stewart v. Abraham,
275 F.3d 220 (3d Cir. 2001).................................................................................32
Sullivan v. DB Invs., Inc.,

667 F.3d 273 (3d Cir. 2011).................................................................................28
TBK Partners, Ltd. v. W. Union Corp.,

675 F.2d 456 (2d Cir. 1982).................................................................................16
Udeen v. Subaru of Am., Inc.,

No. CV 18-17334 (RBK/JS), 2019 WL 4894568 (D.N.J. Oct. 4, 2019) 22, 25, 32
Yaeger v. Subaru of Am., Inc.,

No. 1:14-CV-4490 (JBS-KMW), 2016 WL 4541861 (D.N.J. Aug. 31, 2016) ..22,
23, 25, 30
STATUTES
15 U.S.C. § 2301 ........................................................................................................3
28 U.S.C. § 1715 ......................................................................................................18
CAL. BUS. & PROF. CODE § 17200 .............................................................................3
CAL. CIV. CODE § 1750 ..............................................................................................3
v
CAL. CIV. CODE § 1792 ..............................................................................................3
RULES
FED. R. CIV. P. 23 .............................................................................. 2, 18, 36, 38, 39
FED. R. CIV. P. 23(a).................................................................................................31
FED. R. CIV. P. 23(a)(1) ............................................................................................31
FED. R. CIV. P. 23(a)(2) ............................................................................................32
FED. R. CIV. P. 23(a)(3) ............................................................................................33
FED. R. CIV. P. 23(a)(4) ............................................................................................33
FED. R. CIV. P. 23(b) ................................................................................................31
FED. R. CIV. P. 23(b)(3)............................................................................... 35, 36, 37
FED. R. CIV. P. 23(c)(2)(B)(i)-(vii) ..........................................................................37
FED. R. CIV. P. 23(e)............................................................................................ 1, 37
FED. R. CIV. P. 23(e)(1) ............................................................................................19
FED. R. CIV. P. 23(e)(2) .................................................................................... passim
FED. R. CIV. P. 23(e)(2)(A)-(B)................................................................................21
FED. R. CIV. P. 23(e)(2)(A)-(D) ...............................................................................20
FED. R. CIV. P. 23(e)(2)(C) ......................................................................... 23, 26, 28
FED. R. CIV. P. 23(e)(2)(C)(ii)..................................................................................26
FED. R. CIV. P. 23(e)(2)(C)(iii) ................................................................................27
FED. R. CIV. P. 23(e)(2)(D) ......................................................................................28
FED. R. CIV. P. 23(e)(3) ............................................................................... 20, 23, 27
FED. R. CIV. P. 23(f) .................................................................................................24
FED. R. CIV. P. 23(g) ................................................................................................38
vi
OTHER AUTHORITIES
Manual for Complex Litigation, Fourth § 21.634 ...................................................39
vii
I. INTRODUCTION
Plaintiffs bought refrigerators manufactured by defendant LG. Plaintiffs sue
for injunctive relief and damages, alleging the refrigerators are prone to repeated
cooling breakdowns. After completing core discovery into the merits and class
certification, two mediation sessions, and protracted negotiations, the parties have
reached a class action settlement. Plaintiffs now seek to begin the settlement
approval process mandated under Rule 23(e). Plaintiffs respectfully request that the
Court enter the proposed order (1) granting preliminary approval of the parties’
Settlement as fair, reasonable, and adequate, (2) certifying the Settlement Class, (3)
appointing Plaintiffs’ counsel as Class Counsel, (4) approving the proposed Notice
Program and issuance of Notice to Settlement Class Members, and (5) scheduling a
Final Approval Hearing to consider final approval of the Settlement.
The Settlement offers cash payments and prospective relief to approximately
1.55 million individuals who make up the Settlement Class.1 Class members can
receive payments to reimburse parts and labor costs as well as property loss (such as
spoiled food, beverages, or medicine), and to compensate them for unsuccessful
repairs, delayed repairs, and refrigerator replacement costs. Class members can
choose whether to support their claims with backup documentation or a simple
1
Unless otherwise noted, capitalized terms have the meaning ascribed to them in the
Settlement Agreement, attached as Exhibit A to the Joint Declaration (“Joint Decl.”).
1
attestation. Those who make the modest effort to document their claims are eligible
for up to several thousand dollars in recovery, and those without documentation but
who provide attestation may recover up to $450. There is no cap on the total
payments LG will make to Class members.
Additionally, Class members will also receive an extended warranty covering
the full cost of repairs for cooling failures for five years from the date of purchase.
LG has also agreed to enhance its warranty service by employing more technicians,
developing more reliable replacement parts, and establishing a dedicated team to
address cooling failures. LG will also compensate Class members for cooling
failures and related property loss during the five-year extended warranty period.
Attorneys’ fees and costs will be paid separately, subject to Court approval, and will
not reduce settlement benefits.
As set forth in detail below, the Settlement meets all requirements of Rule 23
of the Federal Rules of Civil Procedure and should be preliminarily approved.
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
A. Plaintiffs’ Allegations and Preliminary Investigation
Plaintiffs contend the linear compressors in the LG refrigerators are defective
and prone to fail, and that when failure occurs, the refrigerators cannot cool their
contents. Plaintiffs further allege that LG has known for years that the linear
compressor technology in its refrigerators is defective; among other things,
2
thousands of consumers and LG-authorized repair personnel have reported product
failures directly to LG. Before filing Plaintiffs’ complaints, Class Counsel conducted
a thorough investigation into the facts and applicable law, including through a
detailed analysis of LG’s refrigerators and the alleged defect, research into industry
practices and related literature and data, and dozens of interviews with LG customers
and repair technicians. Joint Decl. ¶ 4. LG has vigorously disputed Plaintiffs’
allegations.
B. The California Action
On April 1, 2019, Plaintiffs Gary Sosenko, Diane Terry, and Michael Burrage
filed Sosenko v. LG Electronics U.S.A., Inc., No. 8-19-cv-00610-JLS (ADSx)
(Sosenko) in the United States District Court for the Central District of California.
Sosenko Dkt. No. 1. The Sosenko Plaintiffs brought claims individually and on
behalf of a proposed class of consumers who purchased, in California, LG-
manufactured refrigerators equipped with LG’s linear compressors since January 30,
2014. Id. ¶ 76. The Sosenko Plaintiffs asserted claims against LG for breach of
implied warranty under the Song-Beverly Warranty Act (CAL. CIV. CODE § 1792, et
seq.), violation of the Magnuson-Moss Warranty Act (15 U.S.C. § 2301, et seq.
(MMWA)), violation of the Consumers Legal Remedies Act (CAL. CIV. CODE §
1750, et seq. (CLRA)), violation of the Unfair Competition Law (CAL. BUS. & PROF.
CODE § 17200, et seq. (UCL)), and fraud by concealment. Id. ¶¶ 84–145.
3
On June 12, 2019, LG moved to dismiss Sosenko, arguing in part that
Plaintiffs failed to plausibly allege a product defect or adequately allege reliance on
its omissions, that it had no duty to disclose the alleged defect, that its refrigerators
were merchantable, and that Plaintiffs did not meet the MMWA’s jurisdictional
requirements. Sosenko Dkt. No. 17-1. Plaintiffs opposed the motion (Sosenko Dkt.
No. 21) and, on August 29, 2019, the California district court largely denied it.
Sosenko Dkt. No. 36.
The court in Sosenko dismissed Plaintiffs’ MMWA claim without prejudice,
finding that they did not meet the jurisdictional requirements of the statute because
there were fewer than 100 named plaintiffs. Plaintiffs filed a First Amended Class
Action Complaint on September 20, 2019, adding a claim for damages under the
CLRA and removing the MMWA claim. Sosenko Dkt. No. 45. LG answered on
October 23, 2019. Sosenko Dkt. No. 68.
C. The New Jersey Actions, Consolidation, and Coordination
On June 7, 2019, Plaintiffs Michael Bentley, Robert Degner, Cheryl Ervin,
and Sam Lee filed Bentley v. LG Electronics U.S.A., Inc., No. 2:19-cv-13554
(Bentley), in this Court arising out of the same facts. Bentley Dkt. No. 1. The Bentley
Plaintiffs brought claims on behalf of themselves, a class of purchasers of LG
refrigerators since January 30, 2014 in all states except California, and, for the same
period, state subclasses of consumer purchasers from Florida, Michigan,
4
Washington, and Utah. Id. ¶ 94. Similar to Sosenko, Bentley asserted claims for
breach of the implied warranty of merchantability, MMWA violations, fraud by
concealment, and violations of the consumer protection laws of Florida, Michigan,
Washington, and Utah. Id. ¶¶ 102–183.
Two other related class actions against LG were then filed in this district on
July 11 and July 25, 2019, respectively: Stangl, et al. v. LG Electronics U.S.A., Inc.,
No. 2:19-cv-15185-MCA, and Tabora, et al. v. LG Electronics U.S.A., Inc., No.
2:19-cv-15826-MCA. On September 18, 2019, Plaintiffs in Bentley, Stangl, and
Tabora filed a Stipulation Consolidating Actions and Setting Pleading Schedule in
this Court. Bentley Dkt. No. 13. This Court promptly entered an Order granting the
parties’ stipulation and consolidating the cases under the Bentley caption. Bentley
Dkt. No. 14. Plaintiffs then filed a consolidated class complaint on October 21, 2019.
Bentley Dkt. No. 18. Plaintiffs brought claims on behalf of a class of purchasers of
LG refrigerators since January 30, 2014 in all states except California, and, for the
same period, state subclasses of consumer purchasers from Florida, Illinois,
Massachusetts, Michigan, Minnesota, New Jersey, New York, Texas, Utah, and
Washington. Id. ¶ 166. The complaint again included claims for breach of implied
warranty of merchantability, MMWA violations, violations of state consumer
protection laws, and fraud by concealment. Id. ¶¶ 176–307. On November 20, 2019,
LG answered. Bentley Dkt. No. 22.
5
The parties in Sosenko and the consolidated Bentley action agreed in the fall
of 2019 to coordinate discovery in the two cases to avoid duplication of effort and
minimize expense. Joint Decl. ¶ 30. Because Sosenko was the first-filed of the LG
refrigerator cases, the parties filed a joint stipulation to transfer Bentley to the Central
District of California for consolidation with Sosenko, but on December 9, 2019, the
California court denied the stipulation, noting that Bentley “is pending in the district
where Defendant’s headquarters is located” and the Bentley consolidated complaint
“asserts claims under the laws of ten states other than California on behalf of
purchasers in those ten states.” Sosenko Dkt. No. 73. The parties therefore proceeded
with separate actions while continuing to coordinate discovery efforts. Joint Decl. ¶
30. After the parties finalized the terms of the Settlement, they stipulated to transfer
the Sosenko action to this Court to allow a single court to rule on the fairness of the
Settlement. The Sosenko court granted the stipulation on June 22, 2020. Sosenko
Dkt. No. 104.
D. Fact and Expert Discovery
In May 2019, Plaintiffs in Sosenko served LG with Early Rule 34 Requests
for document production under Rule 26(d)(2), as well as a draft stipulated protective
order and a draft protocol for the discovery of electronically stored information. Joint
Decl. ¶ 6. The Sosenko Plaintiffs thereafter served three additional sets of document
requests, interrogatories, and 20 non-party document subpoenas. Id. ¶¶ 7, 14, 16.
6
LG’s written discovery responses and document productions were the subject of
several disputes among the parties, which resulted in two motions to compel
production of documents. Id. ¶¶ 11, 18. The Court granted both motions. Sosenko
Dkt. Nos. 61 and 85. Plaintiffs in Bentley also served, and LG responded to, further
document requests and interrogatories. Joint Decl. ¶ 30.
All told, LG produced more than 28,000 pages of documents, and Plaintiffs
issued 20 subpoenas to non-parties that resulted in the production of additional
documents and data. Id. ¶¶ 7, 32. Plaintiffs also deposed LG’s Rule 30(b)(6)
designee and a former LG employee with knowledge of LG’s customer service
procedures. Joint Decl. ¶¶ 15, 20. Plaintiffs also retained a mechanical engineer who
reviewed the technical basis for the compressor failures, as well as two economists
and a market research expert for purposes of calculating class-wide damages. Id. ¶¶
13, 33.
E. Mediation and Settlement
As the litigation proceeded, Plaintiffs simultaneously pursued settlement
negotiations with LG. The negotiations required a full year. Joint Decl. ¶¶ 31, 34,
35. The parties participated in two in-person mediation sessions overseen by a
former Central District of California Magistrate Judge, the Hon. Jay Gandhi (Ret.)
of JAMS, in August 2019. Following mediation, the parties conferred numerous
times over the subsequent months, including three in-person meetings that took
7
place in New York and California, as well as numerous telephone conferences,
often with LG representatives in attendance. Id. The parties ultimately executed a
formal agreement on July 21, 2020. Joint Decl. ¶ 35.
F. Principal Terms of the Settlement
1. Proposed Settlement Class
The Settlement Class consists of all persons in the United States who
purchased from an authorized retailer, other than for resale, a Covered Model of LG
Refrigerator produced between January 1, 2014 and December 31, 2017. SA ¶
A.1.bbb. The Covered Models are listed in Exhibit 5 to the Settlement Agreement.
Id., Ex. 5. Excluded from the Settlement Class are persons who previously executed
a release of claims in favor of LG with respect to the Released Claims. SA ¶ A.1.bbb.
The Settlement Class is largely coextensive with that pleaded in the consolidated
Bentley action, except that purchasers of refrigerators manufactured after December
31, 2017 (who LG claims are bound by arbitration agreements), and purchasers of
Kenmore-branded refrigerators marketed and sold by Sears (which filed for
bankruptcy), will not participate in the Settlement or release their claims. Joint Decl.
¶ 37. In addition, purchasers of LG Refrigerator models of which less than 1,000
units were sold or for which the service rate for No-Cooling Events was less than
1% of sales will not participate in the Settlement or release their claims. Joint Decl.
¶ 37; see McBean v. City of New York, 228 F.R.D. 487, 496-98 (S.D.N.Y. 2005)
8
(approving settlement-stage certification of narrowed class); Abdeljalil v. Gen. Elec.
Capital Corp., 306 F.R.D. 303, 306 (S.D. Cal. 2015) (“[T]his Court agrees with
plaintiff that the new definition is simply a narrower version of the class definition
presented in the TAC, which is allowable.”).
2. Settlement Consideration
The Settlement provides for substantial monetary payments to Settlement
Class Members who purchased an LG Refrigerator that stopped cooling, resulting in
out-of-pocket costs for repairs, delayed repairs, replacement of the product, or
Property Loss, including the value of spoiled food, beverages, medicine, or damage
to property such as from leaks. The Settlement also provides prospective relief in the
form of an extended warranty, enhanced customer care benefits, and payments for
cooling failures occurring within the warranty period.
a) Monetary Relief
Settlement Class Members who experienced a No-Cooling Event are eligible
to receive monetary payments. The Settlement defines a No-Cooling Event as an
event in which the Settlement Class Member’s LG Refrigerator failed to maintain
temperature levels necessary to preserve food, beverages, medicine, or other
perishables. SA ¶ A.1.cc.
Settlement Class Members who submit claims accompanied by proof—e.g.,
receipts, invoices, photographs, or payment card, insurance, or inspection records—
9
are eligible to receive larger payments as follows:
1) Unsuccessful Repairs: Up to $1,000 for unsuccessful repairs by LG or
its Authorized Repair Service Provider following a No-Cooling Event that occurred
within five years of purchase ($180 for one unsuccessful repair, limited to $90 if
repair records show one of the two No-Cooling Events was the result of a Non-LG
Cause; $500 for two unsuccessful repairs; and $1,000 for three or more unsuccessful
repairs). SA ¶ A.1.ggg.2
2) Delayed Repairs: Up to $1,000 for Claimants who experienced a delay
of at least 10 days between reporting a No-Cooling Event that occurred within five
years of purchase and receiving a repair performed by LG or an LG Authorized
Repair Service Provider. SA ¶ A.1.q. Payments under this provision start at $120
and increase by $20 per day up to 30 days, and by $25 per day for each day thereafter,
up to $1,000. Id.
3) Property Loss: Up to $3,500 for Property Loss such as spoiled food,
beverages, medicine, perishables, or other damage to property following a No-
Cooling Event that occurred within five years of purchase SA ¶ A.1.oo-pp.
2
A Settlement Class Member who experienced unsuccessful or delayed repairs from
a non-authorized service provider, rather than from LG or one of its Authorized
Repair Service Providers, will be eligible for a payment for unsuccessful or delayed
repairs if the Settlement Class Member acted reasonably under the circumstances in
seeking repairs from a non-authorized provider (e.g., due to no LG or Authorized
Repair Service Provider being available within 50 miles). SA ¶ A.1.ggg, A.1.q.
10
4) Parts Reimbursement: Full reimbursement of out-of-pocket payments
for a repair of any part related to the cooling system. SA ¶ A.1.jj.
5) Labor Reimbursement: Full reimbursement of out-of-pocket labor costs
incurred in connection with repairs by service technicians employed by LG
following a No-Cooling Event that occurred within five years of purchase. For costs
incurred in connection with repairs by service technicians not employed by LG,
reimbursement up to $350, with LG to additionally pay up to $3.5 million,
distributed pro rata, for labor costs in excess of $350. SA ¶ A.1.yy.
6) Replacement Costs: In lieu of making a claim for labor reimbursement,
unsuccessful repairs, or delayed repairs, a Settlement Class Member may claim $650
if they disposed of or replaced the LG Refrigerator before the Notice Date and can
provide reasonable proof of failed repairs for the LG Refrigerator following a No-
Cooling Event that occurred within five years after the date of purchase. SA ¶ A.1.ss.
Alternatively, Class Members who choose not to submit documentary proof
are eligible to receive any or all of the following cash payments, upon submission of
their claim form with a statement signed under oath: (a) $50 for unsuccessful repairs;
(b) $100 for out-of-pocket labor costs for repairs; (c) $50 for repairs that were
delayed by at least 10 days; and (d) up to $250 for Property Loss. SA ¶ A.1.p.
b) Extended Warranty
Further, under the Settlement, LG will extend the warranty period for No-
11
Cooling Events from one to five years from the date of purchase for all Settlement
Class Members. S.A., ¶ 6.b. This extension will include all labor costs related to
repairs for No-Cooling Events. Id. LG will also continue to cover the cost of cooling
system parts under its Limited Warranty for a period of 10 years from the date of
purchase. S.A., ¶ 6.c. Finally, until either the date the Settlement becomes effective
or one year after the Notice is sent—whichever comes first—LG will provide all
Settlement Class Members with free warranty service if their LG Refrigerator stops
cooling, even if the original warranty has expired. SA ¶ 6.d.
c) Enhanced Customer Care
In addition, LG will implement the following Enhanced Customer Care
provisions going forward:
 creating and maintaining a dedicated customer care team to address No-

Cooling Events experienced by Settlement Class Members on a timely and
expedited basis, with live operator support during regular business hours
sufficient to handle call volume without unreasonable delay;
 increasing the number of LG’s directly employed service technicians, and

using commercially reasonable best efforts to maintain an adequate service
network, expand its nationwide coverage, and ensure that LG meets or
exceeds industry standards for responding to requests for warranty service;
 creating and maintaining a new program designed to provide incentives for

faster repair service without sacrificing quality of repair, including a
commitment that LG will undertake commercially reasonable best efforts to
ensure that a qualified technician arrives at a Settlement Class Member’s
home as quickly as is practicable, within seven days of receiving the initial
request for service, and with all necessary parts on hand;
 developing a new mobile service application for the use of service technicians
12
to improve accuracy in the diagnosis of problems with LG Refrigerators;
 investing in efforts to develop and upgrade parts and software to improve the
cooling performance of LG Refrigerators;
 implementing a consumer outreach program to measure U.S. consumers’

satisfaction regarding LG Refrigerators and service performed on them; and
 compensating Settlement Class Members for repeat No-Cooling Events

during the warranty period as extended by the Settlement, as provided in the
Settlement Agreement. SA ¶ A.1.u; Ex. 3.
For three years after the Effective Date, LG will provide a report every six
months to Co-Lead Class Counsel confirming and describing its implementation of
the Enhanced Customer Care program, including information about Settlement
Class Members who submit Enhanced Warranty Claims (i.e., claims for monetary
relief under the Enhanced Customer Care program, SA ¶ 1.v), identifying all claims
for monetary relief, and the amounts paid. SA ¶ 6.c.
3. Value of the Settlement
The Settlement offers substantial monetary payments to Class Members who
make the modest effort needed to submit a claim. Specifically, the 1.55 million
Settlement Class members, if they have experienced a No-Cooling Event, can submit
a claim upon attestation, and recover up to $450. The Settlement Class Members
who submit a claim form with proof, meaning receipts, invoices, photographs,
payment card records, inspection records, insurance records, or any other reasonable
proof, can recover substantially greater cash payments, as detailed above.
13
The value of the Settlement is evident by illustrating the recoveries payable
to the class representatives upon submission of proof. Plaintiffs Sarah Johnson and
Leah Scala Israel each experienced repair delays exceeding six weeks, so each of
them would receive $1,000. Bentley Dkt. No. 18 at ¶¶ 79, 89; SA ¶ A.1.q. Plaintiff
Carlos Stocco experienced more than one month of repair delays, making him
eligible to receive as much as $520. Bentley Dkt. No. 18 at ¶ 113; SA ¶ A.1.q. And
because Ms. Johnson and Mr. Stocco experienced an unsuccessful repair, each of
them can recover an additional $180. Bentley Dkt. No. 18 at ¶¶ 88, 111; SA ¶
A.1.ggg. All three Plaintiffs can also recover up to $250 in undocumented property
loss (SA ¶¶ A.1.oo-pp), which means Ms. Johnson can recover up to $1,430, Ms.
Israel up to $1,250, and Mr. Stocco up to $950, in addition to reimbursement of their
repair costs.
Plaintiff Patrick Romano can recover $500 for two unsuccessful repairs, up to
$250 for undocumented property loss, and $750 3 for repair costs, amounting to
$1,500. Bentley Dkt. No. 18 at ¶¶ 102-104; SA ¶¶ A.1.oo, pp, yy, ggg. Plaintiffs
Michael Burrage and Diane Terry each experienced one unsuccessful repair.
3
Mr. Romano paid $750 in repair costs to an independent repair company. Bentley
Dkt. No. 18 at ¶ 102. Under the Settlement, Mr. Romano is guaranteed
reimbursement of at least $350 of these repair costs and will then draw from a $3.5
million fund for the remainder of his non-DMST repair costs. SA ¶¶ A.1.yy. Data
provided by LG concerning average repair costs and Plaintiffs’ informal polling of
class members indicates that this fund will be adequate to fairly compensate all
claimants who paid non-DMST repair costs that exceeded $350.
14
Sosenko Dkt. No. 45 at ¶¶ 23-24, 28-31. Each can therefore recover $180 for the
unsuccessful repair and up to $250 in undocumented property loss, for a total of
$430. SA ¶ A.1.oo, pp, ggg. Plaintiffs Sam Lee and Terry Driscoll each experienced
a single failure and received repairs within 10 days of the failure, and their
refrigerators have not failed again. Bentley Dkt. No. 18 at ¶¶ 45-46, 93-96. These
two Plaintiffs can recover up to $250 by attesting to property loss associated with
food spoilage.
Every Plaintiff and Class Member will also receive the benefit of the extended
warranty, which covers parts and labor costs related to future cooling-system
failures, offers compensation for unsuccessful repairs, repair delays, and property
loss, and provides improved service procedures including a dedicated Customer
Care Team for No-Cooling Events, increased LG technicians, and incentives for
faster repair service.
4. Release of Liability
In consideration of the Settlement benefits, LG and its related entities and
affiliates (defined in the Settlement Agreement as the “Released Parties,” SA ¶ 23)
will receive a release of claims arising out of or related to the litigation or the subject
matter of the litigation, and which were or could have been asserted in the Litigation,
including all past and present claims. SA ¶ 23. Personal injury claims are expressly
excluded; the release is limited to claims arising out of the facts at issue in the
15
litigation. Id.; see Grimes v. Vitalink Commc’ns Corp., 17 F.3d 1553, 1561 n.10 (3d
Cir. 1994) (enforcing release that “manifest[ed] an intent to settle all disputes that
did or might arise out of” the transaction at issue) (citing Nottingham Partners v.
Trans-Lux Corp., 925 F.2d 29 (1st Cir. 1991)); TBK Partners, Ltd. v. W. Union
Corp., 675 F.2d 456, 460 (2d Cir. 1982) (holding that a class settlement may release
claims “based on the identical factual predicate” alleged). All warranty rights are
also preserved. SA ¶ 16.c.
5. Claim Submission and Administration
The parties have retained Angeion Group LLC as the settlement administrator.
Joint Decl. ¶ 55. The Settlement Administrator will carry out the Notice Plan,
distribute the Settlement Notice, administer the exclusion process for opt-outs, and
administer the Claim process and the distribution of payments to eligible Claimants.
SA ¶ 1.zz. LG will pay all administrative costs. Id.
6. Notice Program
LG will fund a comprehensive Notice Plan.
Direct Notice: The Notice of Settlement and a Claim Form, attached as
Exhibits 2A and 1 to the Settlement Agreement, respectively, will be mailed, first-
class postage pre-paid, and emailed, to all members of the Settlement Class whose
contact information is reasonably available to the Settlement Administrator. LG and
Class Counsel will provide the Settlement Administrator with all reasonably
16
available contact information in their records, including information Class Counsel
received from subpoenaed non-parties for this purpose (who are the largest retailers
of the LG Refrigerators). SA ¶ 17.a.
Publication Notice and Press Release: The Settlement Administrator will
notify Settlement Class Members of the Settlement through print and online
publication of a short-form notice, attached to the Settlement Agreement as Exhibit
2B, and related advertisements. The Parties will also issue a joint press release
announcing the Settlement. SA ¶¶ 17 b, c.
Direct Customers and Authorized Repair Service Providers: LG will provide
contact information for its direct customers or resellers (e.g., Lowes, Best Buy) and
all authorized repair service providers for the LG Refrigerators, and the Settlement
Administrator will mail these entities the Notice and Claim Form. SA ¶ 17.d.
Settlement Website: The Settlement Administrator will launch
www.lgfridgesettlement.com on the Notice Date and maintain this website for a
period of three years after the Effective Date. The website will provide, at a
minimum: (i) information concerning deadlines for filing a Claim Form and the dates
and locations of relevant Court proceedings, including the Final Approval Hearing;
(ii) the dedicated toll-free phone number for Settlement-related questions; (iii)
copies of the Settlement Agreement, the Notice of Settlement, the Claim Form,
settlement-related Court Orders, and other relevant case documents; (iv) information
17
about how to submit a Claim Form, including instructions for submitting a Claim
Form electronically on the Settlement Website; (v) information about the
prospective relief; and (vi) a Frequently Asked Questions page. SA ¶ 17.e.
Settlement Telephone Number: The Settlement Administrator will establish a
toll-free telephone number, to be included on all Notices, that will provide
Settlement Class Members with information about the Settlement and direct them to
the Settlement Website. SA ¶ 17.f. The Settlement Administrator will provide live
operator support during regular business hours as well as an Interactive Voice
Response (IVR) for after-hours calls. The telephone service will receive requests for
Settlement documents and provide general information about deadlines for filing a
Claim Form, opting out of or objecting to the Settlement, the Enhanced Customer
Care program, and the dates and locations of relevant Court proceedings, including
the Final Approval Hearing. Id.
CAFA Notice: Consistent with 28 U.S.C. § 1715, the Settlement Administrator
will provide notice to governmental authorities. SA ¶ 17.g.
III. ARGUMENT
A. Preliminary Approval of the Proposed Settlement Is Warranted.
Rule 23 requires that a class action settlement be “fair, reasonable, and
adequate.” FED. R. CIV. P. 23(e)(2); see Giercyk v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, No. 2:13-CV-6272-MCA-MAH, 2016 WL 7209649, at *1 (D.N.J.
18
Oct. 13, 2016). There is a “strong presumption in favor of voluntary settlement
agreements,” and this presumption “is especially strong” in class actions. Ehrheart
v. Verizon Wireless, 609 F.3d 590, 594-95 (3d Cir. 2010). When a proposed class
settlement “appears to be the product of serious, informed, non-collusive
negotiations, has no obvious deficiencies, does not improperly grant preferential
treatment to class representatives or segments of the class and falls within the range
of possible approval, preliminary approval is granted.” Shapiro v. Alliance MMA,
Inc., No. 17-2583 (RBK/AMD), 2018 WL 3158812, at *2 (D.N.J. June 28, 2018)
(citation omitted); see also Singleton v. First Student Mgmt., LLC, No. 13-744
(JEI/JS), 2014 WL 3865853, at *5 (D.N.J. Aug. 6, 2014) (“The purpose of having a
preliminary stage is to ensure that there are no obvious deficiencies in the settlement
that would preclude final approval.”).
At the preliminary approval stage, the settling parties must provide the Court
with “information sufficient to enable it to determine whether to give notice” of the
proposed settlement to the class. FED. R. CIV. P. 23(e)(1). The Court will direct
notice to all class members who will be bound if doing so “is justified by the parties’
showing that the court will likely be able to (i) approve the proposal under Rule
23(e)(2) and (ii) certify the class for purposes of judgment on the proposal.” Id.
B. The Court Should Preliminarily Approve the Settlement Under

Rule 23(e)(2).
In determining the likelihood of approving the proposed settlement, the Court

19
is to consider whether:
(A) the class representatives and class counsel have adequately represented
the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate taking into account (i) the
costs, risks, and delay of trial and appeal; (ii) the effectiveness of any
proposed method of distributing relief to the class, including the method
of processing class-member claims, if required; (iii) the terms of any
proposed award of attorney’s fees, including timing of payment; and (iv)
any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
See FED. R. CIV. P. 23(e)(2)(A)-(D). These factors are not meant to displace the
Court’s consideration of other traditional factors used to assess proposed class action
settlements, but “rather to focus the court and the lawyers on the core concerns of
procedure and substance that should guide the decision whether to approve the
proposal.” FED. R. CIV. P. 23(e)(2) advisory committee’s note to 2018 amendment.
Courts in the Third Circuit have long relied on the following factors, many of which
overlap with the express factors of Rule 23(e)(2):
(1) the complexity, expense and likely duration of the litigation;

(2) the reaction of the class to the settlement; (3) the stage of the
proceedings and the amount of discovery completed; (4) the risks
of establishing liability; (5) the risks of establishing damages; (6)
the risks of maintaining the class action through the trial; (7) the
ability of the defendants to withstand a greater judgment; (8) the
range of reasonableness of the settlement fund in light of the best
possible recovery; and (9) the range of reasonableness of the
settlement fund to a possible recovery in light of all the attendant
risks of litigation.
Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975). Consideration of these factors
20
here weighs strongly in favor of preliminary approval of the parties’ Settlement.
1. The Class Representatives and Class Counsel Have

Adequately Represented the Class, and the Proposed
Settlement Is the Product of Arm’s Length Negotiations by
Experienced Counsel (Rule 23(e)(2)(A)-(B)).
Rule 23(e)(2)(A) and (B) call for consideration of whether “the class
representatives and class counsel have adequately represented the class” and “the
proposal was negotiated at arm’s length.” These factors are properly considered
together along with the third Girsh factor, “the stage of the proceedings and the
amount of discovery completed.” See In re Merck & Co., Inc. Vytorin ERISA Litig.,
No. 08-CV-285 (DMC), 2010 WL 547613, at *7 (D.N.J. Feb. 9, 2010) (under the
third Girsh factor, courts consider whether the amount of discovery completed in the
case has permitted “counsel [to have] an adequate appreciation of the merits of the
case before negotiating.”) (quoting In re Prudential Ins. Co. Am. Sales Practice
Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir. 1998)).
In this case, both the named Plaintiffs and their counsel have adequately
represented the proposed Settlement Class. The interests of the named Plaintiffs are
aligned with those of the other Class Members because all purchased the same
allegedly defective products and seek compensation for harm suffered as a result of
the alleged defect. The Plaintiffs have been actively involved in the litigation and
are committed to diligently prosecuting the claims on behalf of the proposed Class.
In addition, Class Counsel are well qualified and experienced in this type of
21
litigation, and they have vigorously represented the proposed Class. Joint Decl. ¶¶
62-63.
The Settlement Agreement represents the culmination of negotiations
between the parties over a twelve-month period and was reached after two in-person
mediation sessions overseen by Judge Gandhi, as well as multiple in person, Zoom,
and telephonic meetings of counsel. Shapiro v. All. MMA, Inc., No. CV 17-2583
(RBK/AMD), 2018 WL 3158812, at *3 (D.N.J. June 28, 2018) (“The participation
of an independent mediator in settlement negotiations virtually [e]nsures that the
negotiations were conducted at arm’s length and without collusion”) (internal
quotations and citations omitted); In re Cigna Corp. Secs. Litig., No. 02-8088, 2007
WL 2071898, at *3 (E.D. Pa. July 13, 2007) (“[I]t is clear that negotiations for the
settlement occurred at arm’s length, as the parties were assisted by a retired federal
district judge who . . . served as mediator.”).
The parties’ negotiations, moreover, were informed by the discovery record.
Reviewing 28,000 documents produced by LG and conducting two depositions,
including of LG’s corporate designee, gave Plaintiffs “a clear understanding of the
strengths and weakness of their case.” Udeen v. Subaru of Am., Inc., No. CV 18-
17334 (RBK/JS), 2019 WL 4894568, at *3 (D.N.J. Oct. 4, 2019) (third Girsh factor
supported preliminary approval even when discovery was not “overly extensive”);
Yaeger v. Subaru of Am., Inc., No. 1:14-CV-4490 (JBS-KMW), 2016 WL 4541861,
22
at *9 (D.N.J. Aug. 31, 2016) (counsel “conducted its own investigation, researched
and responded to numerous inquiries from class members, received and analyzed
documents produced by defendants, and conducted confirmatory deposition
discovery of defendant’s Rule 30(b)(6) designated deponent.”).
In short, the proposed Settlement was the product of informed, arm’s-length
negotiation between experienced counsel.
2. The Relief Provided for the Class Is Adequate Under Rule

23(e)(2)(C).
In determining whether class-wide relief is adequate under Rule 23(e)(2)(C),
the Court considers “the costs, risks, and delay of trial and appeal”; “the
effectiveness of any proposed method of distributing relief to the class, including the
method of processing class-member claims”; “the terms of any proposed award of
attorney’s fees, including timing of payment”; and “any agreement required to be
identified under Rule 23(e)(3).”
First, with respect to “the costs, risks, and delay of trial and appeal,”4 the
parties in arriving at this Settlement had a well-developed understanding of this
litigation, including the strengths and weaknesses of their respective positions.
Plaintiffs’ counsel agreed to the Settlement because of the substantial risk that
4
The corresponding Girsh factors include the first (“the complexity, expense and
likely duration of the litigation”), the fourth (“the risks of establishing liability”), the
fifth (“the risks of establishing damages”), and the sixth (“the risks of maintaining
the class action through the trial”). 521 F.2d at 157.
23
continued litigation might result in a less favorable outcome. LG is well defended
by skilled counsel and has consistently denied liability. To prevail, Plaintiffs would
need to win class certification, defend the certification order in a Rule 23(f) appeal,
survive summary judgment, protect their experts from evidentiary challenges, and
prevail at trial and in any subsequent appeal. Plaintiffs, for example, would have to
overcome numerous arguments available to LG to oppose class certification,
including the argument that that no class could be certified where the alleged defect
did not manifest in every Class Member’s refrigerator. See, e.g., Butler v. Porsche
Cars N. Am., 2017 WL 1398316, at *6 (N.D. Cal. Apr. 19, 2017).; Haag v. Hyundai
Motor Am., No. 12-CV-6521L, 2019 WL 1029002, at *4 (W.D.N.Y. Mar. 5, 2019)
(finding common issues did not predominate in a putative product class action, as
“there is no basis for the Court to infer that a reasonable consumer—let alone an
entire class of consumers—would have demanded a lower purchase or lease price if
they were informed that they might have to perform [auto part] replacement and
maintenance . . . earlier than they otherwise expected.”).
Even if the Court certified a class, Plaintiffs would face the difficult task of
explaining their complex theory of damages to a lay jury. See In re Whirlpool Corp.
Front-Loading Washer Prods. Liab. Litig. (Glazer v. Whirlpool Corp.), No. 1:08-
wp-65001-CAB (N.D. Ohio Oct. 31, 2014), Dkt. No. 60 (consumer class action
resulting in defense verdict following jury trial). LG also has asserted several
24
challenges to the merits of Plaintiffs’ claims, including that it lacked sufficient
knowledge to give rise to a duty to disclose the alleged defect, and that it provided
adequate warranty service. Sosenko Dkt. No. 17-1. Thus, continued litigation
presents substantial costs and risks. See Udeen, 2019 WL 4894568, at *3; Yaeger,
2016 WL 4541861, at *9 (prospect of “protracted motion practice” involving the
“nuances of various state laws” as well as “costly discovery” weighed in favor of
settlement); In re Philips/Magnavox Television Litig., No. CIV.A. 09-3072 CCC,
2012 WL 1677244, at *8-91 (D.N.J. May 14, 2012) (that claims involved “many
complex legal and technical issues that would have required, among other things,
expert testimony at trial” supported settlement approval).
In contrast to the risks, uncertainty, expense, and delay that continued
litigation would bring, the proposed Settlement provides certain and timely relief to
the Class in the form of (1) payments for unsuccessful repairs, delayed repairs, labor
and replacement parts, property loss, and refrigerator replacement; and (2) valuable
prospective relief in the form of an extended warranty and Enhanced Customer Care
benefits. See In re Ins. Brokerage Antitrust Litig., 282 F.R.D. 92, 103 (D.N.J. 2012)
(“By reaching a favorable Settlement . . . Class Counsel have avoided significant
expense and delay and have also provided an immediate benefit”); Singleton v. First
Student Mgmt. LLC, No. 13-1744, 2014 WL 3865853, at *6 (D.N.J. Aug. 6, 2014).
As the recoveries available to the class representatives show, the Settlement provides
25
monetary relief that exceeds or nearly matches the recovery that could be expected
from a favorable judgment. The relief provided by the proposed Settlement readily
satisfies Rule 23(e)(2)(C).
Second, the Court asks whether the Settlement Agreement provides for a
method of distributing payments that is straightforward and not unduly demanding
yet sufficient to deter unjustified claims. See FED. R. CIV. P. 23(e)(2)(C)(ii) Advisory
Committee’s Note to 2018 Amendment. A settlement distribution plan need only
have a rational basis and be fair and adequate, see In re WorldCom, Inc. Sec. Litig.,
388 F. Supp. 2d 319, 344 (S.D.N.Y. 2005), and the plan here meets these criteria.
Each Settlement Class Member will be sent a Claim Form setting forth the
claimant’s options clearly in plain language, and claimants will submit the form to
the Settlement Administrator to determine eligibility for payment. SA ¶¶ 8, 10. The
administrator or Class Counsel will assist Class members with the Claim Form as
needed. Promptly after the Claim Period has ended and the Settlement Administrator
has determined eligibility, LG will remit payment to the administrator, which will
promptly distribute Settlement payments to the eligible Claimants. Id. The process
is straightforward, easy to understand, and tailored to the available relief.
Third, terms of the proposed award of attorneys’ fees are reasonable and the
Settlement Agreement provides for a fair and reasonable process and timetable for
determining Plaintiffs’ attorneys’ fees and litigation expense reimbursement. See
26
FED. R. CIV. P. 23(e)(2)(C)(iii). Specifically, LG agrees to pay Class Counsel
attorneys’ fees of $5.5 million, plus an additional sum equal to one-third of the
amount claimed by Class members, excluding the first 16,500 claims. These
payments will not diminish benefits to Settlement Class Members and are reasonable
in relation to the time expended and benefits conferred by Class Counsel. If there
are fewer than 16,500 claims, Class Counsel’s fee will be limited to $5.5 million.
The Settlement Agreement provides that within the time period established by the
Court and no later than 30 days before the Objection and Opt Out Deadline, Class
Counsel will file a Motion for Approval of Attorneys’ Fees, Cost and Service
Awards to be paid by LG. SA ¶ 30. Class Counsel will request that the Attorneys’
Fee, Cost, and Service Award be set forth in an order separate from the Final Order
and Judgment, so that any appeal of the Fee, Cost, and Award will not constitute an
appeal of the Final Order and Judgment and will not otherwise affect the Settlement
Agreement. Id.
The parties have identified the agreements made in connection with the
proposal under Rule 23(e)(3). Joint Decl. ¶ 63. The effect of these agreements is to
conform the class definition to a narrower class agreed upon by the parties for
purposes of settlement. LG has entered into confidential agreements with the class
representatives who purchased Kenmore branded refrigerators or LG refrigerators
after December 31, 2017, and individuals who have contacted Class Counsel. Joint
27
Decl. ¶ 63. These confidential agreements are available for in camera review at the
Court’s request. Joint Decl. ¶ 63. These agreements will have no impact on
Settlement Class Members.
Accordingly, Rule 23(e)(2)(C) is satisfied.
3. The Proposal Treats Class Members Equitably Relative to

Each Other (Rule 23(e)(2)(D)).
Under Rule 23(e)(2)(D), the Court also ensures that the Settlement treats all
Class Members equitably relative to each other. FED. R. CIV. P. 23(e)(2)(D); see
Sullivan v. DB Invs., Inc., 667 F.3d 273, 326 (3d Cir. 2011) (court must ensure
settlement fund distribution is fair and reasonable for all participants).
As detailed above, the Settlement Agreement meets this standard with a
payment structure that provides compensation to Settlement Class Members
commensurate with the type and extent of harm they suffered in relation to LG
refrigerator failures. Each Settlement Class Member may submit a Claim Form to
the Settlement Administrator, and the administrator will apply a uniform, objective
method in determining the monetary awards, including: (1) payments of up to $450
for claimants without supporting documentation; (2) payments for documented
claims consisting of: (a) up to $1,000 for unsuccessful repairs ($180 for two No-
Cooling Events, limited to $90 if repair records show one of the two No-Cooling
Events was the result of a Non-LG Cause; $500 for three No-Cooling Events; and
$1,000 for four or more No-Cooling Events); (b) up to $1,000 for delayed repairs of
28
at least ten days, which start at $120 and increase with each additional day of delay;
(c) reimbursement of labor repair costs (full reimbursement for repairs by LG
employees and up to $350 in reimbursed costs for repairs by non-LG service
technicians, with LG to additionally pay up to $3.5 million, distributed pro rata, for
labor costs in excess of $350; (d) up to $3,500 for property loss (including the value
of spoiled food, beverages, medicine, perishables, or the value of other property that
was damaged from a No-Cooling Event); (e) $650 for Class Members who replaced
or disposed of their refrigerator after a failed repair attempt (in lieu of the payments
identified in (a)–(c)); and (3) reimbursement of parts repair costs. See In re MyFord
Touch Consumer Litig., No. 13-CV-03072-EMC, 2019 WL 1411510 (N.D. Cal.
Mar. 28, 2019) (noting that greater reimbursement for class members who sought
more repairs is equitable because “the number of repair attempts serves as a proxy
for the seriousness of [the] defects”). In addition to the cash that LG will pay
Settlement Class Members based on the type and extent of losses they sustained, LG
will provide all Settlement Class Members with an extended warranty and other
Enhanced Customer Care benefits. The Settlement therefore ensures that Settlement
Class Members will be treated equitably relative to each other.
4. Additional Girsh Factors Favor Preliminary Approval.
The other Girsh factors that are not subsumed in the Rule 23(e)(2) factors
either further favor preliminary approval or are neutral. As to the second Girsh
29
factor—the reaction of the class to the settlement—it is premature to say how the
class will react at the preliminary approval stage. Shapiro v. All. MMA, Inc., 2018
WL 3158812, at *3. The seventh Girsh factor, the ability of LG to withstand a greater
judgment, is unimportant where, as here, the parties have reached a reasonable
settlement after an arm’s length negotiation. See Henderson v. Volvo Cars of N. Am.,
LLC, No. 09-4146 (CCC), 2013 WL 1192479, at *11 (D.N.J. Mar. 22, 2013) (to
withhold approval because defendant could theoretically pay a greater judgment
would make little sense where the settlement is within the range of reasonableness
and provides substantial benefits); In re NFL Players Concussion Injury Litig., 821
F.3d 410, 440 (3d Cir. 2016).
Finally, the eighth and ninth Girsh factors—“(8) the range of reasonableness
of the settlement fund in light of the best possible recovery; and (9) the range of
reasonableness of the settlement fund to a possible recovery in light of all the
attendant risks of litigation”—are satisfied. The proposed Settlement is well within
the range of reasonableness given the risks of continued litigation of these consumer
product claims. A settlement, of course, “represents a compromise in which the
highest hopes for recovery are yielded in exchange for certainty and resolution.” In
re Johnson & Johnson Deriv. Litig., 900 F. Supp. 2d 467, 484 (D.N.J. 2012) (internal
quotations and citations omitted); see, e.g., Yaeger, 2016 WL 4541861, at *12
(proposed settlement was within range of reasonableness given manufacturer’s
30
defenses and the “hurdles of obtaining class certification . . . manageability of a
nationwide class” and uncertainty regarding the plaintiff’s ability to demonstrate
fraud at the time of purchase); In re Philips, 2012 WL 1677244, at *13 (similar).
As discussed above in connection with the named Plaintiffs, Class Members
will be generously compensated for out-of-pocket costs and can recover substantial
amounts for unsuccessful or delayed repairs. Id. In comparison to the time, expense,
risk, and uncertainty that comes with continuing to litigate this nationwide matter
through trial, the proposed Settlement is a reasonable compromise that provides an
immediate and substantial recovery to purchasers.
C. The Court Should Preliminarily Certify the Class
“A class may be certified for settlement purposes where the proposed class
satisfies the four requirements of Federal Rule of Civil Procedure 23(a) and one of
the elements of Rule 23(b).” Marchese v. Cablevision Sys. Corp., No. CV-102190-
MCA, 2016 WL 7228739, at *1 (D.N.J. Mar. 9, 2016). When considering a request
for settlement-only certification, “a court ‘need not inquire whether the case, if tried,
would present intractable management problems, for the proposal is that there be no
trial.’” Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, (1997)).
1. Numerosity Under Rule 23(a)(1).
Rule 23(a)(1) requires that the class be “so numerous that joinder of all
members is impracticable.” FED. R. CIV. P. 23(a)(1). The Class includes purchasers
31
of approximately 1,550,000 LG Refrigerators. Numerosity is thus satisfied.
2. Commonality Under Rule 23(a)(2).
Rule 23(a)(2) requires that “there are questions of law or fact common to the
class.” FED. R. CIV. P. 23(a)(2). The test for commonality is “easily met.” Baby Neal
v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). All that is required is that “the named
plaintiffs share at least one question of fact or law with the grievances of the
prospective class.” Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001).
This case involves a set of products with a common design and alleged defect,
and, for settlement purposes, common questions of law and fact abound: whether
the LG Refrigerators were defective at the time of sale; whether and to what extent
the alleged defect impairs the value of the LG Refrigerators; whether LG knew of
the alleged defect but continued to sell the LG Refrigerators without disclosing the
defect or its consequences to consumers; whether the alleged defect is material to
consumers and whether LG had a duty to disclose it; and whether LG breached
implied warranties. See Alin v. Honda Motor Co., No. CIV.A. 08-4825 KSH, 2012
WL 8751045, at *5 (D.N.J. Apr. 13, 2012) (alleged defect was “a common thread
among all class members . . . sufficient to satisfy the commonality requirement”);
Udeen, 2019 WL 4894568, at *5 (common questions included “whether the class
vehicles are defective, whether Defendants should have disclosed the alleged defect,
whether the allegedly concealed information was material to consumers, and
32
whether class members were harmed”). Commonality is therefore satisfied.
3. Typicality Under Rule 23(a)(3).
Rule 23(a)(3) requires that “the claims or defenses of the representative parties
are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). For
settlement purposes, the claims of Plaintiffs and all Settlement Class Members are
typical because they arise under similar consumer and warranty laws and stem from
a common alleged defect and course of conduct by LG, which marketed and sold the
allegedly defective goods. See, e.g., Skeen v. BMW of N. Am., LLC, No. 2:13-CV-
1531-WHW, 2016 WL 70817, at *6 (D.N.J. Jan. 6, 2016) (typicality satisfied where
class suit alleged defendants “knowingly placed Class Vehicles containing the
alleged defect into the stream of commerce and refused to honor its warranty
obligations”); In re CertainTeed Corp. Roofing Shingle Prod. Liab. Litig., 269
F.R.D. 468, 478 (E.D. Pa. 2010) (typicality met where “all claims are based on the
failure of CertainTeed shingles and CertainTeed’s liability for that failure.”). Thus,
typicality is satisfied.
4. Adequacy of Representation Under Rule 23(a)(4).
Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). This
requirement assures that the named plaintiffs’ claims “are not antagonistic to the
class and that the attorneys for the class representatives are experienced and qualified
33
to prosecute the claims on behalf of the entire class.” Beck v. Maximus, Inc., 457
F.3d 291, 296 (3d Cir. 2006); see also In re Cmty. Bank of N. Va. & Guaranty Nat’l
Bank of Tallahassee Second Mortg. Loan Litig., 622 F.3d 275, 291 (3d Cir. 2010)).
Plaintiffs have no interests adverse to the interests of any other class member
and are committed to vigorously prosecuting this case. Further, Plaintiffs and the
proposed Settlement Class have a common interest in seeking fair compensation for
their damage attributable to LG’s allegedly defective refrigerators. See In re
Philips/Magnavox Television Litig., 2012 WL 1677244, at *6 (plaintiffs would
adequately represent interests of class where they purchased the same allegedly
defective televisions as the rest of the class and were allegedly injured in the same
manner); Skeen, 2016 WL 70817, at *6 (similar).
Plaintiffs have retained competent counsel experienced in the prosecution of
consumer protection class actions who are familiar with the legal and factual issues
involved in this matter. Joint Decl. ¶ 63. Counsel have diligently prosecuted
Plaintiffs’ claims and have invested the necessary time and expert and other costs
needed to investigate and pursue the class claims and position them for settlement.
Joint Decl. ¶¶ 4, 6-30. See McGee v. Cont’l Tire N. Am., Inc., No. CIV. 06-6234
(GEB), 2009 WL 539893, at *11 (D.N.J. Mar. 4, 2009) (counsel’s experience in
consumer class actions supported finding of adequacy); In re Philips, 2012 WL
1677244, at *6 (similar).
34
Hence, the adequacy requirement is met.
5. The Predominance and Superiority Requirements of Rule

23(b)(3) Are Met.
Rule 23(b)(3)’s predominance inquiry “‘tests whether [a] proposed class[ ]
[is] sufficiently cohesive to warrant adjudication by representation.’” Marchese,
2016 WL 7228739, at *2 (D.N.J. Mar. 9, 2016) (citation omitted). There is “a ‘key’
distinction between certification for settlement purposes and certification for
litigation: when taking a proposed settlement into consideration, individual issues
which are normally present in litigation usually become irrelevant, allowing the
common issues to predominate.” Id.; see Amchem, 521 U.S. at 618.
For settlement purposes, common questions of law and fact predominate over
questions that may affect individual Settlement Class Members. Plaintiffs and Class
members all purchased LG refrigerators with the same alleged defect. Whether the
refrigerators are defective, whether LG had a duty disclose the defect, whether the
concealed information was material, and whether Class members sustained
cognizable harm are all questions capable of resolution by common evidence. By
contrast, the individual questions mostly relate to damages and are less important.
See, e.g., Henderson v. Volvo Cars of N. Am., LLC, No. CIV.A. 09-4146 CCC, 2013
WL 1192479, at *6 (D.N.J. Mar. 22, 2013) (predominance met where “t]he Class
Members share common questions of law and fact, such as whether Volvo
knowingly manufactured and sold defective automobiles without informing

35
consumers . . . . [and] liability in this case depends on Volvo’s alleged conduct in
manufacturing and selling the Class Vehicles.”).
Rule 23(b)(3) also requires a showing that a class action is “superior to other
available methods for fairly and efficiently adjudicating the controversy.” FED. R.
CIV. P. 23(b)(3). The superiority requirement is met when—as here—adjudicating
claims in one action is “far more desirable than numerous separate actions litigating
the same issues.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 259 (3d Cir.
2009); see Marchese, 2016 WL 7228739, at *2 (D.N.J. Mar. 9, 2016) (finding that
certification of a class for settlement purposes is more efficient than separate
litigation of numerous individual claims).
The proposed Settlement delivers prompt, certain relief while avoiding the
substantial judicial burdens and the risk of inconsistent rulings that would arise from
repeated adjudication of the same issues in individual actions. See Henderson, 2013
WL 1192479, at *6 (“To litigate the individual claims of even a tiny fraction of the
potential Class Members would place a heavy burden on the judicial system and
require unnecessary duplication of effort by all parties. It would not be economically
feasible for the Class Members to seek individual redress.”).
D. The Notice Plan Satisfies Rule 23 and Due Process.
Plaintiffs respectfully respect that the Court approve the Notice Plan set forth
in the Settlement Agreement, which provides Settlement Class Members with the
36
reasonable notice to which they are entitled under Rule 23(e) and meets all due
process requirements. See In re Prudential, 148 F.3d at 306 (the combination of
reasonable notice, the opportunity to be heard and the opportunity to withdraw from
the class satisfies due process). Under Rule 23(b)(3), the Class must receive “the
best notice practicable under the circumstances, including individual notice to all
[class] members who can be identified through reasonable efforts” including by U.S.
mail, electronic means, or other appropriate means. FED. R. CIV. P. 23(c)(2)(B).
The proposed Notice Plan includes direct notice via first-class mail and email,
print and online platforms, and contacts with retailers and authorized repair
providers. SA ¶ 17; Decl. of Steven Weisbrot. These methods of notice are designed
to reach as many Settlement Class Members as possible. Marchese, 2016 WL
7228739, at *3 (D.N.J. Mar. 9, 2016) (notice plan consisting of paper inserts or email
supplements with monthly bills, email notice, publication notice, and a settlement
website satisfied all requirements); Giercyk, 2016 WL 7209649, at *3 (notice plan
including mail, website and toll-free number found reasonable); In re Ins. Brokerage
Antitrust Litig., 297 F.R.D. 136, 152 (D.N.J. 2013) (approving postcard, website and
publication notice).
Consistent with Rule 23(c)(2)(B)(i)-(vii), the proposed notice describes the
nature of the action and the claims at issue, the definition of the Settlement Class,
the Settlement benefits, Settlement Class Members’ rights, including the right to opt
37
out or object to the Settlement, the binding effect of a class judgment, the date of the
fairness hearing, and other relevant information for the Class Members to make
informed decisions with respect to the Settlement. Joint Decl., Ex. A, Settlement
Agreement Ex. 2A. See In re NFL Players Concussion Injury Litig., 821 F.3d at 435.
The proposed Notice Plan provides the best notice practicable under the
circumstances, and the proposed Notice includes all the content required by Rule 23.
Accordingly, the Notice Plan should be approved.
E. The Court Should Appoint Daniel C. Girard and Shanon J.

Carson as Co-Lead Class Counsel.
Plaintiffs also request that the Court appoint Daniel C. Girard of Girard Sharp
LLP and Shanon J. Carson of Berger Montague PC as Co-Lead Class Counsel.
Counsel have considerable experience in litigating complex class actions, including
consumer product class actions, and they have a thorough knowledge and
understanding of the laws applicable to Plaintiffs’ claims for relief. Counsel also
have devoted considerable resources to prosecuting and settling the action. See Joint
Decl., ¶¶ 4, 6-30. As such, the Rule 23(g) factors support appointment of Daniel C.
Girard and Shanon J. Carson as Co-Lead Class Counsel for the Settlement Class.
See, e.g., Giercyk, 2016 WL 7209649, at *2.
F. A Final Approval Hearing Should Be Scheduled.
Finally, Plaintiffs request that the Court schedule a Final Approval Hearing to
consider whether the Settlement Agreement is fair, reasonable, and adequate. FED.
38
R. CIV. P. 23(e)(2); Manual for Complex Litigation, Fourth § 21.634. At that time,
Plaintiffs will ask the Court to: (i) finally approve the Settlement; (ii) certify the
Class for settlement purposes; (iii) find that the Notice Plan fully complied with Rule
23 and due process mandates; (iv) authorize the parties to implement the terms of
the Settlement Agreement; and (v) enter a Final Approval Order dismissing the case.
To allow for sufficient time to complete the Notice Plan and afford Settlement
Class Members the opportunity to exercise their rights, Plaintiffs respectfully request
that the Court set the final hearing for a date at least 115 days after the date of entry
of the Preliminary Approval Order. SA ¶ 4(b)(iii). The Court may find it expedient
to hold a conference with counsel to schedule further proceedings in this matter.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court enter
the proposed order filed herewith.
Dated: August 14, 2020 Respectfully submitted,
s/ Amey J. Park
Shanon J. Carson (pro hac vice)
Lawrence Deutsch, (NJ 034971986)
Jacob M. Polakoff (NJ 035832006)
Amey J. Park (NJ 070422014)
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Tel.: (215) 875-3000
Fax: (215) 875-4604
39
[email protected]
[email protected]
[email protected]
[email protected]
Daniel C. Girard (pro hac vice)

Jordan Elias (pro hac vice)
Adam E. Polk (pro hac vice)
Simon S. Grille (pro hac vice)
GIRARD SHARP LLP
601 California Street, 14th Floor
San Francisco, California 94108
Tel: (415) 981-4800
[email protected]
[email protected]
[email protected]
[email protected]
Benjamin F. Johns (NJ 038182005)

Samantha E. Holbrook (NJ 034162011)
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
One Haverford Centre
361 Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
[email protected]
[email protected]
Counsel for Plaintiffs and the Proposed

Settlement Class
40

ECF 49 - 1 Memorandum of Law in Support of Plaintiffs' Notice of Motion For Preliminary Settlement Approval and Related Relief

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Case 2:19-cv-13554-MCA-MAH Document 49-1 Filed 08/14/20 Page 1 of 48 PageID: 598

UNITED STATES DISTRICT COURT

MICHAEL BENTLEY, et al., on Case No. 2:19-cv-13554-MCA-MAH

MEMORANDUM OF LAW IN SUPPORT OF

BERGER MONTAGUE PC GIRARD SHARP LLP

[Additional Counsel on Signature

I. INTRODUCTION ......................................................................................1

3. The Proposal Treats Class Members Equitably Relative to Each

C. The Court Should Preliminarily Certify the Class ...................................31

D. The Notice Plan Satisfies Rule 23 and Due Process. ...............................36

Abdeljalil v. Gen. Elec. Capital Corp.,

Alin v. Honda Motor Co.,

Amchem Prods., Inc. v. Windsor,

Baby Neal v. Casey,

Beck v. Maximus, Inc.,

Butler v. Porsche Cars N. Am.,

Ehrheart v. Verizon Wireless,

Giercyk v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,

Grimes v. Vitalink Commc’ns Corp.,

Haag v. Hyundai Motor Am.,

Henderson v. Volvo Cars of N. Am., LLC, No.,

In re CertainTeed Corp. Roofing Shingle Prod. Liab. Litig.,

In re Cigna Corp. Secs. Litig.,

In re Ins. Brokerage Antitrust Litig.,

In re Ins. Brokerage Antitrust Litig.,

In re Ins. Brokerage Antitrust Litig.,

In re Johnson & Johnson Deriv. Litig.,

In re Merck & Co., Inc. Vytorin ERISA Litig.,

In re MyFord Touch Consumer Litig.,

In re NFL Players Concussion Injury Litig.,

In re Philips/Magnavox Television Litig.,

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,

In re WorldCom, Inc. Sec. Litig.,

Marchese v. Cablevision Sys. Corp.,

McBean v. City of New York,

McGee v. Cont’l Tire N. Am., Inc., No. CIV. 06-6234 (GEB),

Nottingham Partners v. Trans-Lux Corp.,

Shapiro v. Alliance MMA, Inc.,

Singleton v. First Student Mgmt., LLC,

Skeen v. BMW of N. Am., LLC, No. 2:13-CV-1531-WHW,

Sullivan v. DB Invs., Inc.,

TBK Partners, Ltd. v. W. Union Corp.,

Udeen v. Subaru of Am., Inc.,

Yaeger v. Subaru of Am., Inc.,

15 U.S.C. § 2301 ........................................................................................................3

28 U.S.C. § 1715 ......................................................................................................18

CAL. BUS. & PROF. CODE § 17200 .............................................................................3

CAL. CIV. CODE § 1750 ..............................................................................................3

CAL. CIV. CODE § 1792 ..............................................................................................3

FED. R. CIV. P. 23 .............................................................................. 2, 18, 36, 38, 39

FED. R. CIV. P. 23(a).................................................................................................31

FED. R. CIV. P. 23(a)(1) ............................................................................................31

FED. R. CIV. P. 23(a)(2) ............................................................................................32

FED. R. CIV. P. 23(a)(3) ............................................................................................33

FED. R. CIV. P. 23(a)(4) ............................................................................................33

FED. R. CIV. P. 23(b) ................................................................................................31

FED. R. CIV. P. 23(b)(3)............................................................................... 35, 36, 37

FED. R. CIV. P. 23(c)(2)(B)(i)-(vii) ..........................................................................37

FED. R. CIV. P. 23(e)............................................................................................ 1, 37