Motion For Preliminary Approval - Pool Products Consumer Lawsuit

Transcript

Case 2:12-md-02328-SSV Document 659 Filed 07/06/15 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT For the reasons set forth in the accompanying Memorandum in Support, Indirect Purchaser Plaintiffs’ Class Counsel, on behalf of the Class and jointly with Pentair Water Pool & Spa, Inc., move this Court for an Order (1) granting preliminary approval of a class action settlement, (2) conditionally certifying a settlement class, (3) appointing Class Counsel, (4) authorizing the issuance of class settlement notice, (5) scheduling a fairness hearing consistent with the terms of the Settlement Agreement, (6) staying all indirect purchaser claims against Pentair Water Pool & Spa, Inc. in this MDL, and (7) establishing a schedule for hearing any motions for an award of attorneys’ fees, litigation expenses, and incentive awards for the named plaintiffs. Respectfully submitted, By: 1 /s/ Thomas J.H. Brill Thomas J.H. Brill (MO 36874) Law Office of Thomas H. Brill 8012 State Line Road, Suite 102 Leawood, Kansas 66208 Telephone: 913/ 677-2004 E-Mail: [email protected] Case 2:12-md-02328-SSV Document 659 Filed 07/06/15 Page 2 of 3 Indirect Purchaser Plaintiffs' Liaison Counsel /s/ Gerald E. Meunier Gerald E. Meunier, #9471 M. Palmer Lambert, #33228 Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. 2800 Energy Center, 1100 Poydras Street New Orleans, Louisiana 70163 Telephone: 504/522-2304 Facsimile: 504/528-9973 E-Mail: [email protected] E-Mail: [email protected] John F. Edgar (MO 47128) Edgar Law Firm LLC 1032 Pennsylvania Avenue Kansas City, Missouri 64105 Telephone: 816/531-0033 E-Mail: [email protected] Isaac L. Diel (MO 39503) Sharp McQueen PA 6900 College Blvd. Suite 285 Overland Park, Kansas 22211-1547 Telephone: 913/661-9931 E-Mail: [email protected] Michael Brady (KS 18630) Brady & Associates 10901 Lowell, Suite 280 Overland Park, Kansas 66210 Telephone: 913/696-0925 E-mail: [email protected] and By: 2 /s/ Michael J. Lockerby Michael J. Lockerby Melinda F. Levitt Foley & Lardner LLP Washington Harbour 3000 K Street, N.W., Suite 600 Washington, D.C. 20007-5143 Telephone: (202) 672-5300 Facsimile: (202) 672-5399 Case 2:12-md-02328-SSV Document 659 Filed 07/06/15 Page 3 of 3 E-mail: [email protected] E-mail: [email protected] /s/ Wayne J. Lee Wayne J. Lee (# 7916) Stone Pigman Walther Wittman L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130 Telephone: (504) 581-3200 Facsimile: (504) 581-3361 E-Mail: [email protected] Counsel for Pentair Water Pool & Spa, Inc. CERTIFICATE OF SERVICE I hereby certify that on July 6, 2015 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Gerald E. Meunier Gerald E. Meunier, #9471 3 Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 1 of 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 2 of 36 TABLE OF CONTENTS Page INTRODUCTION ...........................................................................................................................1 PROCEDURAL BACKGROUND..................................................................................................2 SUMMARY OF PROPOSED CLASS SETTLEMENT .................................................................4 ARGUMENT ...................................................................................................................................7 A. This Court Should Preliminarily Approve The Proposed Class Settlement. .......................7 B. This Settlement Also Satisfies The More Stringent Requirements For Final Approval......9 C. D. 1. No fraud or collusion exists. ..................................................................................10 2. Continued litigation would be complex, expensive, and protracted. .....................11 3. The stage of proceedings is appropriate for evaluating settlement. .......................12 4. The probabilities of success favor approval of settlement. ....................................13 5. The range of possible recovery favors settlement..................................................14 6. The opinion of the Class Counsel favors settlement. .............................................16 Certification Of The Settlement Class Is Proper................................................................17 1. The Settlement Class meets the numerosity requirement. .....................................18 2. The Settlement Class meets the commonality requirement. ..................................18 3. The Settlement Class meets the typicality requirement. ........................................19 4. The Settlement Class meets the adequacy of representation requirement. ............19 5. The Settlement Class meets the predominance requirement. ................................23 6. The Settlement Class meets the superiority requirement. ......................................25 The Proposed Form And Method Of Class Notice Is Adequate And Satisfies The Requirement of Rule 23. ....................................................................................................26 CONCLUSION ..............................................................................................................................31 i Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 3 of 36 Class Counsel, on behalf of the Class 1 and jointly with Pentair Water Pool & Spa, Inc. (“Pentair”), submit this memorandum of law in support of their motion (1) for preliminary approval of a class action settlement, (2) for conditional certification of a settlement class, (3) for appointment of Class Counsel, (4) to authorize the issuance of class settlement notice, (5) to schedule a fairness hearing consistent with Paragraph 29 of the Settlement Agreement, (6) to stay litigation of all claims against Pentair asserted by Indirect Purchaser Plaintiffs (“IPPs”) in this MDL, and (7) to establish a schedule for hearing any motions for an award of attorneys’ fees, litigation expenses, and incentive awards for the named plaintiffs. INTRODUCTION This dispute arises out of allegations that Pentair, Hayward Industries, Inc. (“Hayward”), and Zodiac Pool Systems, Inc. (“Zodiac”) participated in unfair business practices as part of a conspiracy to further the unfair business practices conduct of Pool Corporation (“PoolCorp”), and entered into unlawful vertical agreements with PoolCorp for the purposes of raising, fixing, maintaining, and/or stabilizing the price of Pool Products in the Pool Product Distribution Market at artificially high levels and in violation of certain state antitrust, unfair competition, and consumer protection laws. Indirect Purchaser Plaintiffs, through Class Representatives Kevin Kistler, Jean Bove, Peter Mougey and Ryan Williams, allege that this unlawful conduct of Pentair resulted in damages to the Class. Pentair and alleged co-conspirator PoolCorp have denied, and continue to deny, each and every allegation brought by plaintiffs in this Action. Over the last three years, the Settling Parties 2 have engaged in extensive written discovery, taken numerous depositions (more than eighty (80) fact witnesses have been 1 The capitalized terms used herein shall have the meanings set forth in the Settlement Agreement executed on April 24, 2015, attached as Exhibit A to this Motion, unless otherwise defined herein. 2 For the purposes of this Motion, the Settling Parties are defined as the IPPs and Pentair. 1 Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 4 of 36 deposed), filed and responded to dispositive motions, attended and participated in Court hearings, reviewed voluminous relevant documents, and consulted with a number of qualified experts. Accordingly, the Settling Parties are familiar with the issues affecting the merits of all asserted claims and defenses in this matter. Following arm’s length negotiations, including four day-long mediations, the Settling Parties now seek to enter into a proposed class settlement and now submit the Settlement Agreement for this Court’s preliminary approval pursuant to Federal Rule of Civil Procedure 23. Pentair has agreed to enter into a Settlement Agreement with IPPs in this Action to resolve all controversies related to the Action and to avoid further expense and burden from protracted and costly litigation. Class Counsel believe that a compromise of all claims asserted by the Class against Pentair, in consideration of a fair and appropriate settlement, is in the best interests of the Class in light of: (1) the existence of complex and contested issues of law and fact; (2) the risks inherent in litigation; (3) the likelihood that future proceedings will be unduly protracted and expensive if the proceeding is not settled by voluntary agreement with Pentair; (4) the magnitude of the benefits derived from the contemplated settlement in light of both the maximum potential and likely range of recovery to be obtained through further litigation and the expense thereof, as well as the potential of no recovery whatsoever; and (5) Class Counsel’s determination that the settlement is fair, reasonable, and adequate, and will substantially benefit the Class. PROCEDURAL BACKGROUND The Settling Plaintiffs consist of all Indirect Purchaser Plaintiffs residing in a Settling Jurisdiction (i.e., Arizona, California, Florida, and Missouri) who indirectly purchased and not for resale Pool Products from within one or more Settling Jurisdictions at any time from January 2 Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 5 of 36 1, 2008 through July 16, 2013. During the past three years, the Settling Parties have completed significant discovery, including numerous (more than eighty (80)) depositions of fact and expert witnesses, multiple sets of written discovery expert analysis, and the production and review of several hundred thousand pages of responsive documents. The Settling Parties also have participated in regularly scheduled in-person conferences and in discovery conferences and hearings with the Court. Expert reports have been rendered on behalf of the Settling Parties and exchanged with other parties. At the time this Settlement Agreement was negotiated, the Settling Parties were prepared to file multiple motions in limine and incur significant trial-related time and expenses on behalf of their respective clients. Briefing on Rule 23, Rule 56, and Daubert motions is complete, and a litigation class certification hearing is expected to be held later this year. Simultaneously with their efforts to prepare for the dispositive motion and litigation class issues, the Settling Parties worked diligently toward a negotiated resolution of all claims related to the alleged illegal conduct. Starting in July 2013, the Settling Parties commenced mediation under the supervision of a court-appointed neutral, former U.S. District Judge Layn Phillips. Exhibit B, July 2, 2015 Declaration of Layn R. Phillips, ¶ 5. Judge Phillips was heavily involved in all stages of the settlement negotiations and met with the Settling Parties a number of times both in person and via telephone conferences. Id. Settlement negotiations were adversarial and conducted at arms-length. Id. As Judge Phillips has confirmed, “[c]ounsel for both sides vigorously represented their clients’ interests during the negotiations.” Id. On March 5, 2015, Class Counsel and Pentair reached an agreement in principle regarding a proposed settlement framework for resolution of matters related to the Action. See 3 Case 2:12-md-02328-SSV Document 659-1 Filed 07/06/15 Page 6 of 36 id. The Settling Parties have worked diligently to finalize the Settlement Agreement now presented for preliminary approval. SUMMARY OF PROPOSED CLASS SETTLEMENT The proposed Settlement will resolve all IPP claims advanced on behalf of the Class in this Action. To effectuate global resolution, and consistent with the Settlement Agreement, the Settlement Class is defined as: individuals residing or entities operating in Arizona, California, Florida or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp 3 (and not for resale) Pool Products 4 in Arizona, California, Florida or Missouri manufactured by Hayward, Pentair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri, who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, whether or not named as a Defendant in this Action, and governmental entities or agencies. See Ex. A ¶ 5. In consideration for the settlement and release of all claims against Pentair, Pentair shall pay or cause to be paid a total Settlement Amount of $600,000 into the Settlement Fund, which shall be held in an Escrow Account. The total Settlement Fund of $600,000 is an “all-in” settlement number, meaning that it includes the costs of class notice and settlement administration, as well as attorneys’ fees, incentive awards, any additional administrative costs and expenses, class member benefits, and costs of any kind associated with the resolution of the Action. 3 “PoolCorp” includes Pool Corporation and any of its subsidiaries, including SCP Distributors LLC (“SCP”) and Superior Pool Products LLC (“SPP”). 4 “Pool Products” means the equipment, products, chemicals, parts or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment). Ex. A ¶ 3. 4 The Settlement Fund will first be used to pay settlement administration expenses as well as Court-approved common benefit attorneys’ fees and expenses described in further detail below. A Special Master previously has been appointed by this Court to formulate and recommend a fair and appropriate allocation protocol that will apportion the proceeds of any settlement fund or judgment in this matter, net of claims administration expenses, attorneys’ fees and costs, to claimants in the four (4) states involved (California, Arizona, Missouri, and Florida). R. Doc. 467. The Special Master has recommended a framework for allocation of settlement funds to Class Members with valid claims in the parallel indirect purchaser class settlements with Hayward and Zodiac. 5 R. Docs. 500, 551, 552. It is anticipated that this same framework will be applied to the proposed settlement now presented for preliminary approval. It is also anticipated that the Special Master will make recommendations regarding the amount of any enhancement payments to the Class Representatives for their efforts on behalf of Class Members. Recommendations applicable to the proposed class settlement with Pentair will be submitted to the Court for approval. Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON PROOF OF CLAIM FORM H Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 2 of 5 PROOF OF CLAIM FORM IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION CLASS ACTION SETTLEMENTS – PENTAIR SETTLEMENT WITH INDIRECT PURCHASER PLAINTIFFS You may be entitled to participate in these settlements if you bought a Pool Product in Arizona, California, Florida, or Missouri, not for resale that was manufactured by Hayward Industries, Inc., Pentair Water Pool & Spa, Inc. or Zodiac Pool Systems, Inc. In Missouri, only persons or entities that purchased primarily for personal, family, or household or residential purposes, and not for resale, are eligible. “Pool Product” means the equipment, products, chemicals, parts or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment) manufactured by Hayward, Pentair or Zodiac and sold by Pool Corporation, or any of its subsidiaries, including but not limited to SCP Distributors LLC (“SCP”) and Superior Pool Products LLC (“Superior”) (collectively, “PoolCorp”), indirectly to end users. You may be a member of the Class to which these settlements apply. The Plaintiffs and Pentair have reached proposed class action settlements in a lawsuit pending in the United States District Court for the Eastern District of Louisiana. This package of materials (the “Class Notice Package”) describes the proposed settlements of this class action lawsuit and has been sent to you by order of the Court because you may be a member of the Class and must make a decision about whether to remain in the Class. If you remain in the Class, you will be entitled to make a claim for a cash award afforded by these settlements. If you wish to file a claim, you are not required to hire an attorney or a third party claims processor. Third party claims processors who offer Class Members assistance with filing a claim for a percentage of your recovery are not authorized by the Court. If you have hired a lawyer to represent you for your claims in this litigation, please contact your lawyer for more information. If you have any questions, go to www.poolproductsconsumerlawsuit.com or call toll free 1-866-7533703. To be fully informed about the benefits and implications of the proposed settlements you may read all the documents included in this Class Notice Package and you may also review the full settlement materials posted on www.poolproductsconsumerlawsuit.com, including the Settlement Agreements. CLAIM FORM You need to submit this Claim Form, postmarked by _______, 201_, to receive Class Benefits under these settlements. If you are a Class Member and you do not submit a Claim Form by this deadline, you will not be eligible for any benefits under these settlements. Unless you timely exclude yourself from the Class by ______, 201_, you cannot sue the Defendants over the claims settled in this case, even if you do not receive Class Benefits because your Claim Form was untimely. This Claim Form asks specific questions about you, the Class Member. Please complete the Claim Form to the best of your ability. Note: You must provide your full name, the last four digits of your social security number (or full Federal Taxpayer Identification Number, if your business is the Class Member), your address, and your e-mail address to receive Class Benefits. If you do not provide these items and you do not opt-out of these settlements, you will still be bound by the Settlement Agreement and its release of Pentair even though you will not be eligible to receive any money from the settlements. If you do not have or know certain information that is asked for, other than your full name, last four digits of your social security number and address, you may leave parts of this Claim Form blank and submit this Claim Form anyway. The Special Master will make a good faith attempt to process the Claim Form by seeking additional information, if necessary, from you. Obviously, the more information you can provide, the more likely your claim can be effectively processed. Please supply the following information, along with the Class Member or Claimant Information above: Last Name of Class Member/Claimant: First Name of Class Member/Claimant : Entity Name (if Class Member is a Business): Street Address of Class Member: 2 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 3 of 5 City, State and Zip code of Class Member: Telephone Number of Class Member: E-mail Address of Class Member: ELIGIBILITY QUESTIONS: Did you reside or operate in Arizona, California, Florida, or Missouri at any time from January 1, 2008 to July 16, 2013? Yes No Did you buy Pool Products (defined above) manufactured by Hayward, Pentair or Zodiac in Arizona, California, Florida, or Missouri, while residing or operating in that state at any time from January 1, 2008 to July 16, 2013? ____ Yes ___No If you resided or operated in Missouri, did you purchase Pool Products primarily for personal, family or household purposes? ____ Yes ___ No Were you the end-user, i.e., the owner/lessee/manager of the property where the pool was located at the time of purchase? If you were a pool builder, maintenance contractor, or similarly situated person/entity capable of passing on an overcharge to another, your answer should be no. Please list the street address and city of the pool(s) where the Pool Products you purchased were installed or used. Yes No _____________________________________________________________ Provide the name(s) and address(es) of the pool retailer/dealer/supplier, pool service or maintenance company (or individual) from which you purchased pool equipment, products, chemicals, parts or materials, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment). If you purchased from more than one, please indicate which purchases were from what provider. Provide a list containing descriptions and the numbers of Pool Products (defined above) you purchased from within Arizona, California, Florida, or Missouri, while residing in that state at any time from January 1, 2008 to July 16, 2013. Use additional sheets if necessary. Are you a subsidiary or affiliate of a Defendant in this action or a government agency? _____Yes ___ No * Capitalized terms used in this Claim Form are defined in the Settlement Agreements, which can be found on www. poolproductsconsumerlawsuit.com. DOCUMENTS: Please attach the following documentation to your Claim Form: (1) a chart containing a listing of all Pool Products purchased from January 1, 2008 to July 16, 2013 and the name of the retailer, builder or service/maintenance company from which the products were purchased (REQUIRED – form enclosed); and (2) documents reflecting the purchase prices of the Pool Products you purchased from January 1, 2008 to July 16, 2013 (should be provided to the extent you have them, although the Special Master may decide they are not necessary if you do not have them). 3 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 4 of 5 Even if you do not have these documents, you may still qualify, and you can submit the Claim Form anyway. Please include anything that may help the Special Master determine whether you qualify for Class Benefits. You may, for example, send photographs of your Pool Products. You also may submit a statement under oath (i.e., under penalty of law for any false statements you make) that you purchased Pool Products. Please do not include any correspondence between you and your attorney. TO COMPLETE YOUR PROOF OF CLAIM FORM, PLEASE COMPLETE THE DECLARATION PROVIDED BELOW. Claim Forms and supporting documents must be postmarked by ____________, 201_. Please mail to: POOL PRODUCTS END-USER CLAIMS ADMINISTRATOR c/o Angeion Group 1801 Market Street, Suite 660 Philadelphia, PA 19103 Questions? VISIT www.poolproductsconsumerlawsuit.com or call toll free 1-866-753-3703 DECLARATION I certify that I have read this Proof of Claim Form; I believe I am a member of the Class, that I am eligible for Class Benefits; all of the information on this Proof of Claim Form is true and correct to the best of my knowledge; I have attached to, or enclosed with this Proof Claim Form all documents or photographs that I have been able to locate; I have not assigned any of my rights in this Action or any Pending Action to anyone else. Under penalty of perjury, I believe the information provided is true and correct. Claimant Claimant Address Date 4 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 5 of 5 Product Description: Name of Retailer, Builder, or Service/Maint. Company where Product Purchased: 5 Approximate Date of Purchase: Quantity Purchased: Estimated or Actual Purchase Price (per Product): Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 1 of 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al, * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON DECLARATION OF STEVEN WEISBROT IN SUPPORT OF SETTLEMENT NOTICE PLAN I, Steven Weisbrot, declare as follows: 1. I submit this declaration for the purpose of providing the Court with information regarding the design and implementation of a legal notification campaign in this case. 2. I am the Executive Vice President of Notice and Strategy at the class action notice and claims administration firm, Angeion Group, LLC (“Angeion”). Prior to joining Angeion’s executive team, I was employed as Director of Class Action services at Kurtzman Carson Consultants, a nationally recognized class action notice and settlement administrator. I have been responsible in whole or in part for the design and implementation of hundreds of class action administration plans and have taught Continuing Legal Education courses on the Ethics of Legal Notification in Class Action Settlements, using Digital Media in Class Action Notice Programs as well as Class Action Claims Administration generally. Additionally, I am the author of numerous articles on Class Action Notice, Claims Administration and Notice Design in publications such as Bloomberg, BNA Class Action Litigation Report, Law360 and various law firm blogs. Prior to my claims administration tenures, I was employed in private law practice and I am currently an attorney in good standing in the State of New Jersey and the Commonwealth of Pennsylvania. I Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 2 of 6 BACKGROUND 3. I have been asked by the Indirect Purchaser Plaintiffs’ Counsel to study notification issues to determine whether a notice program could be developed which would effectively reach class members and notify them of their rights and options in the underlying litigation. 4. After reviewing the proposed class definition and relevant pleadings, my staff and I have developed the following effective notice program in this action. SUMMARY OF NOTICE PROGRAM 5. The reach of this Notice Program will be consistent with other effective court-approved notice programs and with the notice plan previously submitted and preliminarily approved by Your Honor in this case. The plan will utilize a combination of direct notice, paid notice in major newspapers serving Arizona, California, Florida, and Missouri, a national press release with nationwide distribution, as well as an integrated digital media campaign consisting of contextuallytargeted digital banner ads designed to reach the class members here. TARGET AUDIENCE 6. The “Class” (or “Class Members”) in this case includes “all individuals residing or entity operating in Arizona, California, Florida, or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp (and not for resale) Pool Products in Arizona, California, Florida, or Missouri manufactured by Hayward, Pentair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri, who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, regardless of whether named as a Defendant in this Action, and governmental entities or agencies.” Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 3 of 6 DIRECT NOTICE 7. In this matter, Angeion has been provided electronic data consisting of customer information for all individuals and/or entities that have warranty registration information Arizona, California, Florida, and Missouri. From these lists, Angeion has been able to cull approximately 37,712 unique email 8. addresses and will cause electronic mail delivery of the Long Form Notice and Proof of Claim Form (“Notice Package”) to the last known e-mail address of all persons identified through this evaluation of warranty registration databases of registrants in Arizona, California, Florida, and Missouri. 9. As to the 37,712 class members identified via defendant’s records, direct notice is the best notice practicable to these individuals. However, these lists are not inclusive of all class members, as there may be affected individuals who did not register their warranties with the defendant.1 Conversely, not every customer who registered their warranty, may actually be a class member, however direct email is an effective and cost-efficient means to reach potential class members and we have, thus, opted to email to this potentially over inclusive group (i.e., emails will be sent to every available email address, irrespective of whether they are known class members.) 10. We have designed a comprehensive paid notice program to reach those unknown class members, which is discussed in greater detail within. PAID NOTICE 1 Attached as “Exhibit 1” is PK Data, which itemizes the count of Above Ground (AG) and In Ground (IG) residential pools in the affected states. Commercial pools are excluded. “Installed Base” means the number of existing pools (including pools built in the current year). This consumer data is the best proxy for the overall class that we have been provided. Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 4 of 6 11. To effectively reach unknown class members Angeion has designed a three-part paid notice campaign consisting of print publication notice in major newspapers in the affected states, a contextually targeted internet banner campaign and informational national press release distributed to national press outlets as well as to online venues with information and news offerings. 12. To effectively reach unknown class members, the short form notice will appear in the 13 major newspapers identified below. The papers, including circulation are listed below by the state in which they are published. The total combined circulation of these publication is 3,116,215. Arizona: i. The Arizona Republic;-- 77,547 ii. Arizona Daily Star; --260,335 California: i. Los Angeles Times;-- 628,471 ii. The Sacramento Bee;-- 185,996 iii. San Jose Mercury News;-- 212,011 iv. The San Diego Union-Tribune;-- 211,188 Florida: i. Miami Herald;-- 129,905 ii. Orlando Sentinel;-- 151,460 iii. Tampa Bay Times;-- 218,208 iv. Florida Times-Union;-- 91,549 Missouri: Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 5 of 6 13. i. St. Louis Post-Dispatch;-- 467,007 ii. Kansas City Star;-- 318,416 iii. Springfield News-Leader;-- 164,122 To broaden the reach among unknown class members, Angeion will also design and execute an internet notification program consisting of approximately 10,000,000 internet banner advertisements which will appear on well-known websites and will utilize contextual targeting to increase the likelihood that these advertisements will be viewed by class members. 14. To further broaden reach as to the unknown class members, an informational national press release, containing a toll-free number, case website address and other pertinent information will be prepared and distributed to national press outlets including those in the affected states, as well as to websites, forums and blogs with information and news offerings. While difficult to estimate which news outlets will ultimately report the story, the press release should cause additional press coverage--known as earned media-- including news reports and blog coverage, resulting in additional opportunities to reach potential class members via media at no charge, other than that for the production and dissemination of the press release. RESPONSE MECHANISMS 15. An informational website has already been established (www.poolproductsconsumerlawsuit.com) allowing Class members the ability to obtain additional information and documents about the lawsuit. The website will be an integral part of the overall notice campaign and will be prominently displayed in all notice materials. 16. A toll-free number has already been created allowing Class members to call and listen to answers to FAQs (“Frequently Asked Questions”), or request a Long Form Notice. Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 6 of 6 17. Class members will also be able to request additional information questions by U.S. Mail. CONCLUSION 18. The notice program identified above will effectively reach a significant number of Class members and notify them of their rights and options in the underlying litigation. 19. At the conclusion of the Notice Plan, a final report will be provided verifying the notice program’s successful implementation. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. __________________________________ Steven Weisbrot, Esq Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: Kistler, et al. v. Pool Corporation, et al., No. 12-1284 (Indirect Purchaser Plaintiffs) _____________________________________________ * * * * * * * MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT CONSIDERING the joint motion of Indirect Purchaser Plaintiffs (“IPPs”) and Pentair Water Pool & Spa, Inc. (“Pentair”) to preliminarily approve a proposed class settlement of IPPs’ claims against Pentair in this MDL, to conditionally certify a settlement class, and to approve the proposed class notice program, filed [DATE], 2015 (the “Motion” (R. Doc. [NUMBER])), the Court, having reviewed the Motion, its accompanying memorandum and the exhibits thereto, the Settlement Agreement (which are attached as Exhibit A to the Motion), the pleadings and other papers on file in this action, hereby finds the Motion should be GRANTED, as set forth below: Preliminary Approval of Settlement Agreement 1. This Court has jurisdiction over this action and each of the parties to the Settlement Agreement. Upon review of the record, the Court finds that the proposed Settlement Agreement, which were arrived at through arm’s-length negotiations by highly experienced counsel, falls within the range of possible approval and is hereby preliminarily approved, subject to further consideration at a final approval hearing (the “Fairness Hearing”). The Court further finds there is a sufficient basis for notifying the class of the proposed settlement and for enjoining class members from proceeding in any other action pending the conclusion of the Fairness Hearing. 1 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 2 of 5 Class Certification 2. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and in light of the proposed settlement, the Court hereby finds that the prerequisites for a class action have been met, and conditionally certifies the following class for settlement purposes only: individuals residing or entities operating in Arizona, California, Florida or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp 1 (and not for resale) Pool Products 2 in Arizona, California, Florida or Missouri manufactured by Hayward, Pentair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri, who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, whether or not named as a Defendant in this Action, and governmental entities or agencies. 3. The Court finds that the prerequisites to a class action under Rule 23 are satisfied for settlement purposes: (a) The Class has well over 1,000 members and, thus, is sufficiently numerous, and joinder is sufficiently impracticable, to satisfy the numerosity requirement; (b) There are sufficient legal and factual issues common to the Settlement Class, and particularly common to the Class, to meet the commonality requirement; (c) Class Representatives’ and the Settlement Class’s claims arise out of the same alleged conduct and are based upon the same legal theories, and therefore satisfy the typicality requirement; (d) Kevin Kistler, Jean Bove, Peter Mougey and Ryan Williams (collectively “Named Plaintiffs”) have retained experienced counsel and do not have interests antagonistic to the class, so these Named Plaintiffs will fairly and adequately represent the Settlement Class and protect the interests of the Class; and 1 “PoolCorp” includes Pool Corporation and any of its subsidiaries, including, but not limited to, SCP Distributors LLC (“SCP”) and Superior Pool Products LLC (“SPP”). 2 “Pool Products” means the equipment, products, chemicals, parts or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment). Settlement Agreement, ¶3. 2 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 3 of 5 (e) Common issues predominate over any individual issues affecting the members of the Class. (f) The Court also finds settlement of these Actions on a class basis superior to other means of adjudicating this matter. Appointment of Class Representatives and Counsel 4. The Court appoints plaintiffs Kevin Kistler, Jean Bove, Peter Mougey and Ryan Williams as Class Representatives of the Settlement Class. 5. The Court appoints Thomas J.H. Brill (Law Office of Thomas H. Brill) as Lead Counsel for the Class and Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., Edgar Law Firm LLC, Sharp McQueen PA, and Brady & Associates as Co-Counsel for the Settlement Class, finding that the prerequisites of Rule 23(g) are fully satisfied by such appointment. Class Notice; Plan of Allocation; Final Approval and The Opt Out and Objection Deadlines 6. On or before ________, 2014, notice shall be issued to the Class pursuant to the proposed form and program of notice agreed to by the parties. A proposed plan of allocation, consistent with the general contours set forth in the Motion, shall be submitted by the Special Master at a later date pursuant to further Orders of the Court. A Fairness Hearing will be held on _______, 201_ at __:__ _.m., and the Settling Parties are directed to file a motion for final approval of the class settlement __ days before Fairness Hearing. The deadline for Class Members to object or exclude themselves from the Settlement is ________, 2014. Other Provisions 7. Terms used in this Order that are defined in the Settlement Agreement are, unless otherwise defined herein, used in this Order as defined in the Settlement Agreement. 8. As of the date of the entry of this Order, Class Plaintiffs and all members of the Settlement Class shall be preliminarily enjoined from commencing or prosecuting any action 3 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 4 of 5 against Pentair based upon or related to the Released Claims pending Final Approval of the Settlement Agreement or until such time as this Court lifts such injunction by subsequent order. 9. The Court approves the establishment of an escrow account, as set forth in the Settlement Agreement, as a “Qualified Settlement Fund” pursuant to Treas. Reg. §1.468B-1. The Court retains continuing jurisdiction over any issues regarding the formation or administration of the escrow account. Class Counsel and their designees are authorized to expend funds from the escrow account to pay taxes, tax expenses and Notice Costs, as set forth in the Settlement Agreement. 10. In the event that the Settlement Agreement is terminated in accordance with its provisions, the Settlement Agreement and all proceedings had in connection therewith shall be null and void, except insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights of Named Plaintiffs, Pentair or the members of the Class. 11. If either Settlement Agreement is terminated or is ultimately not approved, the Court will modify any existing schedule to ensure that the parties to that Settlement Agreement (i.e., Named Plaintiffs and Pentair) will have sufficient time to prepare for the resumption of litigation, including but not limited to the completion of discovery, preparation of expert reports, filing of class certification motion(s), filing of summary judgment motion(s), and preparation for trial. 12. The Named Plaintiffs and Pentair have agreed, and the Court so orders that these Settlement Agreement and their contents, including their exhibits, and any and all statements, negotiations, documents, and discussions associated with them, shall not be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing or of the truth of any of the claims or allegations contained in the complaints in the Actions or any other pleading or filing, and evidence thereof shall not be discoverable or used, directly or indirectly, in any way, whether in the Actions or in any other action or proceeding. Neither this Settlement Agreement, nor any of the negotiations or 4 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 5 of 5 proceedings connected with it, nor any other action taken to carry out its terms by Pentair shall be referred to, offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceedings, except in a proceeding to enforce this Settlement Agreement, or to defend against the assertion of the Released Claims, or as otherwise required by law. 13. The litigation against Pentair in the indirect purchaser actions is stayed except as provided for in the Settlement Agreement. 14. If any deadline imposed herein falls on a non-business day, then the deadline is extended until the next business day. IT IS SO ORDERED. New Orleans, Louisiana, this day of , 2015. HON. SARAH S. VANCE UNITED STATES DISTRICT JUDGE 5 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON NOTICE OF SUBMISSION TO: ALL COUNSEL OF RECORD IT IS HEREBY ORDERED that the Joint Motion for Preliminary Approval of Proposed Class Settlement filed by the Indirect Purchaser Plaintiffs and Pentair Water Pool & Spa, Inc. is hereby set for submission on the 22nd day of July, 2015, at 10:00 a.m. Respectfully submitted, By: /s/ Thomas J.H. Brill Thomas J.H. Brill (MO 36874) Law Office of Thomas H. Brill 8012 State Line Road, Suite 102 Leawood, Kansas 66208 Telephone: 913/ 677-2004 E-Mail: [email protected] Indirect Purchaser Plaintiffs' Liaison Counsel /s/ Gerald E. Meunier Gerald E. Meunier, #9471 Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. 2800 Energy Center, 1100 Poydras Street New Orleans, Louisiana 70163 Telephone: 504/522-2304 Facsimile: 504/528-9973 E-Mail: [email protected] 1 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 2 of 3 John F. Edgar (MO 47128) Edgar Law Firm LLC 1032 Pennsylvania Avenue Kansas City, Missouri 64105 Telephone: 816/531-0033 E-Mail: [email protected] Isaac L. Diel (MO 39503) Sharp McQueen PA 6900 College Blvd. Suite 285 Overland Park, Kansas 22211-1547 Telephone: 913/661-9931 E-Mail: [email protected] Michael Brady (KS 18630) Brady & Associates 10901 Lowell, Suite 280 Overland Park, Kansas 66210 Telephone: 913/696-0925 E-mail: [email protected] And By: /s/ Michael J. Lockerby Michael J. Lockerby Melinda F. Levitt Foley & Lardner LLP Washington Harbour 3000 K Street, N.W., Suite 600 Washington, D.C. 20007-5143 Telephone: (202) 672-5300 Facsimile: (202) 672-5399 E-mail: [email protected] E-mail: [email protected] /s/ Wayne J. Lee Wayne J. Lee (# 7916) Stone Pigman Walther Wittman L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130 Telephone: (504) 581-3200 Facsimile: (504) 581-3361 E-Mail: [email protected] Counsel for Pentair Water Pool & Spa, Inc. 2 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on July 6, 2015 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Gerald E. Meunier Gerald E. Meunier, #9471 3 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON PROOF OF CLAIM FORM H Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 2 of 5 PROOF OF CLAIM FORM IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION CLASS ACTION SETTLEMENTS – PENTAIR SETTLEMENT WITH INDIRECT PURCHASER PLAINTIFFS You may be entitled to participate in these settlements if you bought a Pool Product in Arizona, California, Florida, or Missouri, not for resale that was manufactured by Hayward Industries, Inc., Pentair Water Pool & Spa, Inc. or Zodiac Pool Systems, Inc. In Missouri, only persons or entities that purchased primarily for personal, family, or household or residential purposes, and not for resale, are eligible. “Pool Product” means the equipment, products, chemicals, parts or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment) manufactured by Hayward, Pentair or Zodiac and sold by Pool Corporation, or any of its subsidiaries, including but not limited to SCP Distributors LLC (“SCP”) and Superior Pool Products LLC (“Superior”) (collectively, “PoolCorp”), indirectly to end users. You may be a member of the Class to which these settlements apply. The Plaintiffs and Pentair have reached proposed class action settlements in a lawsuit pending in the United States District Court for the Eastern District of Louisiana. This package of materials (the “Class Notice Package”) describes the proposed settlements of this class action lawsuit and has been sent to you by order of the Court because you may be a member of the Class and must make a decision about whether to remain in the Class. If you remain in the Class, you will be entitled to make a claim for a cash award afforded by these settlements. If you wish to file a claim, you are not required to hire an attorney or a third party claims processor. Third party claims processors who offer Class Members assistance with filing a claim for a percentage of your recovery are not authorized by the Court. If you have hired a lawyer to represent you for your claims in this litigation, please contact your lawyer for more information. If you have any questions, go to www.poolproductsconsumerlawsuit.com or call toll free 1-866-7533703. To be fully informed about the benefits and implications of the proposed settlements you may read all the documents included in this Class Notice Package and you may also review the full settlement materials posted on www.poolproductsconsumerlawsuit.com, including the Settlement Agreements. CLAIM FORM You need to submit this Claim Form, postmarked by _______, 201_, to receive Class Benefits under these settlements. If you are a Class Member and you do not submit a Claim Form by this deadline, you will not be eligible for any benefits under these settlements. Unless you timely exclude yourself from the Class by ______, 201_, you cannot sue the Defendants over the claims settled in this case, even if you do not receive Class Benefits because your Claim Form was untimely. This Claim Form asks specific questions about you, the Class Member. Please complete the Claim Form to the best of your ability. Note: You must provide your full name, the last four digits of your social security number (or full Federal Taxpayer Identification Number, if your business is the Class Member), your address, and your e-mail address to receive Class Benefits. If you do not provide these items and you do not opt-out of these settlements, you will still be bound by the Settlement Agreement and its release of Pentair even though you will not be eligible to receive any money from the settlements. If you do not have or know certain information that is asked for, other than your full name, last four digits of your social security number and address, you may leave parts of this Claim Form blank and submit this Claim Form anyway. The Special Master will make a good faith attempt to process the Claim Form by seeking additional information, if necessary, from you. Obviously, the more information you can provide, the more likely your claim can be effectively processed. Please supply the following information, along with the Class Member or Claimant Information above: Last Name of Class Member/Claimant: First Name of Class Member/Claimant : Entity Name (if Class Member is a Business): Street Address of Class Member: 2 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 3 of 5 City, State and Zip code of Class Member: Telephone Number of Class Member: E-mail Address of Class Member: ELIGIBILITY QUESTIONS: Did you reside or operate in Arizona, California, Florida, or Missouri at any time from January 1, 2008 to July 16, 2013? Yes No Did you buy Pool Products (defined above) manufactured by Hayward, Pentair or Zodiac in Arizona, California, Florida, or Missouri, while residing or operating in that state at any time from January 1, 2008 to July 16, 2013? ____ Yes ___No If you resided or operated in Missouri, did you purchase Pool Products primarily for personal, family or household purposes? ____ Yes ___ No Were you the end-user, i.e., the owner/lessee/manager of the property where the pool was located at the time of purchase? If you were a pool builder, maintenance contractor, or similarly situated person/entity capable of passing on an overcharge to another, your answer should be no. Please list the street address and city of the pool(s) where the Pool Products you purchased were installed or used. Yes No _____________________________________________________________ Provide the name(s) and address(es) of the pool retailer/dealer/supplier, pool service or maintenance company (or individual) from which you purchased pool equipment, products, chemicals, parts or materials, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment). If you purchased from more than one, please indicate which purchases were from what provider. Provide a list containing descriptions and the numbers of Pool Products (defined above) you purchased from within Arizona, California, Florida, or Missouri, while residing in that state at any time from January 1, 2008 to July 16, 2013. Use additional sheets if necessary. Are you a subsidiary or affiliate of a Defendant in this action or a government agency? _____Yes ___ No * Capitalized terms used in this Claim Form are defined in the Settlement Agreements, which can be found on www. poolproductsconsumerlawsuit.com. DOCUMENTS: Please attach the following documentation to your Claim Form: (1) a chart containing a listing of all Pool Products purchased from January 1, 2008 to July 16, 2013 and the name of the retailer, builder or service/maintenance company from which the products were purchased (REQUIRED – form enclosed); and (2) documents reflecting the purchase prices of the Pool Products you purchased from January 1, 2008 to July 16, 2013 (should be provided to the extent you have them, although the Special Master may decide they are not necessary if you do not have them). 3 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 4 of 5 Even if you do not have these documents, you may still qualify, and you can submit the Claim Form anyway. Please include anything that may help the Special Master determine whether you qualify for Class Benefits. You may, for example, send photographs of your Pool Products. You also may submit a statement under oath (i.e., under penalty of law for any false statements you make) that you purchased Pool Products. Please do not include any correspondence between you and your attorney. TO COMPLETE YOUR PROOF OF CLAIM FORM, PLEASE COMPLETE THE DECLARATION PROVIDED BELOW. Claim Forms and supporting documents must be postmarked by ____________, 201_. Please mail to: POOL PRODUCTS END-USER CLAIMS ADMINISTRATOR c/o Angeion Group 1801 Market Street, Suite 660 Philadelphia, PA 19103 Questions? VISIT www.poolproductsconsumerlawsuit.com or call toll free 1-866-753-3703 DECLARATION I certify that I have read this Proof of Claim Form; I believe I am a member of the Class, that I am eligible for Class Benefits; all of the information on this Proof of Claim Form is true and correct to the best of my knowledge; I have attached to, or enclosed with this Proof Claim Form all documents or photographs that I have been able to locate; I have not assigned any of my rights in this Action or any Pending Action to anyone else. Under penalty of perjury, I believe the information provided is true and correct. Claimant Claimant Address Date 4 Case 2:12-md-02328-SSV Document 659-9 Filed 07/06/15 Page 5 of 5 Product Description: Name of Retailer, Builder, or Service/Maint. Company where Product Purchased: 5 Approximate Date of Purchase: Quantity Purchased: Estimated or Actual Purchase Price (per Product): Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 1 of 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al, * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON DECLARATION OF STEVEN WEISBROT IN SUPPORT OF SETTLEMENT NOTICE PLAN I, Steven Weisbrot, declare as follows: 1. I submit this declaration for the purpose of providing the Court with information regarding the design and implementation of a legal notification campaign in this case. 2. I am the Executive Vice President of Notice and Strategy at the class action notice and claims administration firm, Angeion Group, LLC (“Angeion”). Prior to joining Angeion’s executive team, I was employed as Director of Class Action services at Kurtzman Carson Consultants, a nationally recognized class action notice and settlement administrator. I have been responsible in whole or in part for the design and implementation of hundreds of class action administration plans and have taught Continuing Legal Education courses on the Ethics of Legal Notification in Class Action Settlements, using Digital Media in Class Action Notice Programs as well as Class Action Claims Administration generally. Additionally, I am the author of numerous articles on Class Action Notice, Claims Administration and Notice Design in publications such as Bloomberg, BNA Class Action Litigation Report, Law360 and various law firm blogs. Prior to my claims administration tenures, I was employed in private law practice and I am currently an attorney in good standing in the State of New Jersey and the Commonwealth of Pennsylvania. I Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 2 of 6 BACKGROUND 3. I have been asked by the Indirect Purchaser Plaintiffs’ Counsel to study notification issues to determine whether a notice program could be developed which would effectively reach class members and notify them of their rights and options in the underlying litigation. 4. After reviewing the proposed class definition and relevant pleadings, my staff and I have developed the following effective notice program in this action. SUMMARY OF NOTICE PROGRAM 5. The reach of this Notice Program will be consistent with other effective court-approved notice programs and with the notice plan previously submitted and preliminarily approved by Your Honor in this case. The plan will utilize a combination of direct notice, paid notice in major newspapers serving Arizona, California, Florida, and Missouri, a national press release with nationwide distribution, as well as an integrated digital media campaign consisting of contextuallytargeted digital banner ads designed to reach the class members here. TARGET AUDIENCE 6. The “Class” (or “Class Members”) in this case includes “all individuals residing or entity operating in Arizona, California, Florida, or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp (and not for resale) Pool Products in Arizona, California, Florida, or Missouri manufactured by Hayward, Pentair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri, who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, regardless of whether named as a Defendant in this Action, and governmental entities or agencies.” Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 3 of 6 DIRECT NOTICE 7. In this matter, Angeion has been provided electronic data consisting of customer information for all individuals and/or entities that have warranty registration information Arizona, California, Florida, and Missouri. From these lists, Angeion has been able to cull approximately 37,712 unique email 8. addresses and will cause electronic mail delivery of the Long Form Notice and Proof of Claim Form (“Notice Package”) to the last known e-mail address of all persons identified through this evaluation of warranty registration databases of registrants in Arizona, California, Florida, and Missouri. 9. As to the 37,712 class members identified via defendant’s records, direct notice is the best notice practicable to these individuals. However, these lists are not inclusive of all class members, as there may be affected individuals who did not register their warranties with the defendant.1 Conversely, not every customer who registered their warranty, may actually be a class member, however direct email is an effective and cost-efficient means to reach potential class members and we have, thus, opted to email to this potentially over inclusive group (i.e., emails will be sent to every available email address, irrespective of whether they are known class members.) 10. We have designed a comprehensive paid notice program to reach those unknown class members, which is discussed in greater detail within. PAID NOTICE 1 Attached as “Exhibit 1” is PK Data, which itemizes the count of Above Ground (AG) and In Ground (IG) residential pools in the affected states. Commercial pools are excluded. “Installed Base” means the number of existing pools (including pools built in the current year). This consumer data is the best proxy for the overall class that we have been provided. Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 4 of 6 11. To effectively reach unknown class members Angeion has designed a three-part paid notice campaign consisting of print publication notice in major newspapers in the affected states, a contextually targeted internet banner campaign and informational national press release distributed to national press outlets as well as to online venues with information and news offerings. 12. To effectively reach unknown class members, the short form notice will appear in the 13 major newspapers identified below. The papers, including circulation are listed below by the state in which they are published. The total combined circulation of these publication is 3,116,215. Arizona: i. The Arizona Republic;-- 77,547 ii. Arizona Daily Star; --260,335 California: i. Los Angeles Times;-- 628,471 ii. The Sacramento Bee;-- 185,996 iii. San Jose Mercury News;-- 212,011 iv. The San Diego Union-Tribune;-- 211,188 Florida: i. Miami Herald;-- 129,905 ii. Orlando Sentinel;-- 151,460 iii. Tampa Bay Times;-- 218,208 iv. Florida Times-Union;-- 91,549 Missouri: Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 5 of 6 13. i. St. Louis Post-Dispatch;-- 467,007 ii. Kansas City Star;-- 318,416 iii. Springfield News-Leader;-- 164,122 To broaden the reach among unknown class members, Angeion will also design and execute an internet notification program consisting of approximately 10,000,000 internet banner advertisements which will appear on well-known websites and will utilize contextual targeting to increase the likelihood that these advertisements will be viewed by class members. 14. To further broaden reach as to the unknown class members, an informational national press release, containing a toll-free number, case website address and other pertinent information will be prepared and distributed to national press outlets including those in the affected states, as well as to websites, forums and blogs with information and news offerings. While difficult to estimate which news outlets will ultimately report the story, the press release should cause additional press coverage--known as earned media-- including news reports and blog coverage, resulting in additional opportunities to reach potential class members via media at no charge, other than that for the production and dissemination of the press release. RESPONSE MECHANISMS 15. An informational website has already been established (www.poolproductsconsumerlawsuit.com) allowing Class members the ability to obtain additional information and documents about the lawsuit. The website will be an integral part of the overall notice campaign and will be prominently displayed in all notice materials. 16. A toll-free number has already been created allowing Class members to call and listen to answers to FAQs (“Frequently Asked Questions”), or request a Long Form Notice. Case 2:12-md-02328-SSV Document 659-10 Filed 07/06/15 Page 6 of 6 17. Class members will also be able to request additional information questions by U.S. Mail. CONCLUSION 18. The notice program identified above will effectively reach a significant number of Class members and notify them of their rights and options in the underlying litigation. 19. At the conclusion of the Notice Plan, a final report will be provided verifying the notice program’s successful implementation. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. __________________________________ Steven Weisbrot, Esq Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: Kistler, et al. v. Pool Corporation, et al., No. 12-1284 (Indirect Purchaser Plaintiffs) _____________________________________________ * * * * * * * MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT CONSIDERING the joint motion of Indirect Purchaser Plaintiffs (“IPPs”) and Pentair Water Pool & Spa, Inc. (“Pentair”) to preliminarily approve a proposed class settlement of IPPs’ claims against Pentair in this MDL, to conditionally certify a settlement class, and to approve the proposed class notice program, filed [DATE], 2015 (the “Motion” (R. Doc. [NUMBER])), the Court, having reviewed the Motion, its accompanying memorandum and the exhibits thereto, the Settlement Agreement (which are attached as Exhibit A to the Motion), the pleadings and other papers on file in this action, hereby finds the Motion should be GRANTED, as set forth below: Preliminary Approval of Settlement Agreement 1. This Court has jurisdiction over this action and each of the parties to the Settlement Agreement. Upon review of the record, the Court finds that the proposed Settlement Agreement, which were arrived at through arm’s-length negotiations by highly experienced counsel, falls within the range of possible approval and is hereby preliminarily approved, subject to further consideration at a final approval hearing (the “Fairness Hearing”). The Court further finds there is a sufficient basis for notifying the class of the proposed settlement and for enjoining class members from proceeding in any other action pending the conclusion of the Fairness Hearing. 1 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 2 of 5 Class Certification 2. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and in light of the proposed settlement, the Court hereby finds that the prerequisites for a class action have been met, and conditionally certifies the following class for settlement purposes only: individuals residing or entities operating in Arizona, California, Florida or Missouri who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp 1 (and not for resale) Pool Products 2 in Arizona, California, Florida or Missouri manufactured by Hayward, Pentair, or Zodiac. Excluded from the Settlement Class are (1) individuals residing or entities operating in Missouri, who or which did not purchase Pool Products primarily for personal, family, or household purposes, and (2) Defendants and their subsidiaries, or affiliates, whether or not named as a Defendant in this Action, and governmental entities or agencies. 3. The Court finds that the prerequisites to a class action under Rule 23 are satisfied for settlement purposes: (a) The Class has well over 1,000 members and, thus, is sufficiently numerous, and joinder is sufficiently impracticable, to satisfy the numerosity requirement; (b) There are sufficient legal and factual issues common to the Settlement Class, and particularly common to the Class, to meet the commonality requirement; (c) Class Representatives’ and the Settlement Class’s claims arise out of the same alleged conduct and are based upon the same legal theories, and therefore satisfy the typicality requirement; (d) Kevin Kistler, Jean Bove, Peter Mougey and Ryan Williams (collectively “Named Plaintiffs”) have retained experienced counsel and do not have interests antagonistic to the class, so these Named Plaintiffs will fairly and adequately represent the Settlement Class and protect the interests of the Class; and 1 “PoolCorp” includes Pool Corporation and any of its subsidiaries, including, but not limited to, SCP Distributors LLC (“SCP”) and Superior Pool Products LLC (“SPP”). 2 “Pool Products” means the equipment, products, chemicals, parts or materials used for the construction, maintenance, repair, renovation or service of residential and (except in the State of Missouri) commercial swimming pools, including, among other goods, chemicals, pumps, filters, heaters, covers, cleaners, steps, rails, diving boards, pool liners, pool walls, and white goods (the parts necessary to maintain pool equipment). Settlement Agreement, ¶3. 2 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 3 of 5 (e) Common issues predominate over any individual issues affecting the members of the Class. (f) The Court also finds settlement of these Actions on a class basis superior to other means of adjudicating this matter. Appointment of Class Representatives and Counsel 4. The Court appoints plaintiffs Kevin Kistler, Jean Bove, Peter Mougey and Ryan Williams as Class Representatives of the Settlement Class. 5. The Court appoints Thomas J.H. Brill (Law Office of Thomas H. Brill) as Lead Counsel for the Class and Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., Edgar Law Firm LLC, Sharp McQueen PA, and Brady & Associates as Co-Counsel for the Settlement Class, finding that the prerequisites of Rule 23(g) are fully satisfied by such appointment. Class Notice; Plan of Allocation; Final Approval and The Opt Out and Objection Deadlines 6. On or before ________, 2014, notice shall be issued to the Class pursuant to the proposed form and program of notice agreed to by the parties. A proposed plan of allocation, consistent with the general contours set forth in the Motion, shall be submitted by the Special Master at a later date pursuant to further Orders of the Court. A Fairness Hearing will be held on _______, 201_ at __:__ _.m., and the Settling Parties are directed to file a motion for final approval of the class settlement __ days before Fairness Hearing. The deadline for Class Members to object or exclude themselves from the Settlement is ________, 2014. Other Provisions 7. Terms used in this Order that are defined in the Settlement Agreement are, unless otherwise defined herein, used in this Order as defined in the Settlement Agreement. 8. As of the date of the entry of this Order, Class Plaintiffs and all members of the Settlement Class shall be preliminarily enjoined from commencing or prosecuting any action 3 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 4 of 5 against Pentair based upon or related to the Released Claims pending Final Approval of the Settlement Agreement or until such time as this Court lifts such injunction by subsequent order. 9. The Court approves the establishment of an escrow account, as set forth in the Settlement Agreement, as a “Qualified Settlement Fund” pursuant to Treas. Reg. §1.468B-1. The Court retains continuing jurisdiction over any issues regarding the formation or administration of the escrow account. Class Counsel and their designees are authorized to expend funds from the escrow account to pay taxes, tax expenses and Notice Costs, as set forth in the Settlement Agreement. 10. In the event that the Settlement Agreement is terminated in accordance with its provisions, the Settlement Agreement and all proceedings had in connection therewith shall be null and void, except insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights of Named Plaintiffs, Pentair or the members of the Class. 11. If either Settlement Agreement is terminated or is ultimately not approved, the Court will modify any existing schedule to ensure that the parties to that Settlement Agreement (i.e., Named Plaintiffs and Pentair) will have sufficient time to prepare for the resumption of litigation, including but not limited to the completion of discovery, preparation of expert reports, filing of class certification motion(s), filing of summary judgment motion(s), and preparation for trial. 12. The Named Plaintiffs and Pentair have agreed, and the Court so orders that these Settlement Agreement and their contents, including their exhibits, and any and all statements, negotiations, documents, and discussions associated with them, shall not be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing or of the truth of any of the claims or allegations contained in the complaints in the Actions or any other pleading or filing, and evidence thereof shall not be discoverable or used, directly or indirectly, in any way, whether in the Actions or in any other action or proceeding. Neither this Settlement Agreement, nor any of the negotiations or 4 Case 2:12-md-02328-SSV Document 659-11 Filed 07/06/15 Page 5 of 5 proceedings connected with it, nor any other action taken to carry out its terms by Pentair shall be referred to, offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceedings, except in a proceeding to enforce this Settlement Agreement, or to defend against the assertion of the Released Claims, or as otherwise required by law. 13. The litigation against Pentair in the indirect purchaser actions is stayed except as provided for in the Settlement Agreement. 14. If any deadline imposed herein falls on a non-business day, then the deadline is extended until the next business day. IT IS SO ORDERED. New Orleans, Louisiana, this day of , 2015. HON. SARAH S. VANCE UNITED STATES DISTRICT JUDGE 5 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION * * * THIS DOCUMENT RELATES TO: * * Kistler, et al. v. Pool Corporation, et al., * No. 12-1284 (Indirect Purchaser Plaintiffs) * _____________________________________________ MDL NO. 2328 SECTION R/2 CHIEF JUDGE VANCE MAG. JUDGE WILKINSON NOTICE OF SUBMISSION TO: ALL COUNSEL OF RECORD IT IS HEREBY ORDERED that the Joint Motion for Preliminary Approval of Proposed Class Settlement filed by the Indirect Purchaser Plaintiffs and Pentair Water Pool & Spa, Inc. is hereby set for submission on the 22nd day of July, 2015, at 10:00 a.m. Respectfully submitted, By: /s/ Thomas J.H. Brill Thomas J.H. Brill (MO 36874) Law Office of Thomas H. Brill 8012 State Line Road, Suite 102 Leawood, Kansas 66208 Telephone: 913/ 677-2004 E-Mail: [email protected] Indirect Purchaser Plaintiffs' Liaison Counsel /s/ Gerald E. Meunier Gerald E. Meunier, #9471 Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. 2800 Energy Center, 1100 Poydras Street New Orleans, Louisiana 70163 Telephone: 504/522-2304 Facsimile: 504/528-9973 E-Mail: [email protected] 1 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 2 of 3 John F. Edgar (MO 47128) Edgar Law Firm LLC 1032 Pennsylvania Avenue Kansas City, Missouri 64105 Telephone: 816/531-0033 E-Mail: [email protected] Isaac L. Diel (MO 39503) Sharp McQueen PA 6900 College Blvd. Suite 285 Overland Park, Kansas 22211-1547 Telephone: 913/661-9931 E-Mail: [email protected] Michael Brady (KS 18630) Brady & Associates 10901 Lowell, Suite 280 Overland Park, Kansas 66210 Telephone: 913/696-0925 E-mail: [email protected] And By: /s/ Michael J. Lockerby Michael J. Lockerby Melinda F. Levitt Foley & Lardner LLP Washington Harbour 3000 K Street, N.W., Suite 600 Washington, D.C. 20007-5143 Telephone: (202) 672-5300 Facsimile: (202) 672-5399 E-mail: [email protected] E-mail: [email protected] /s/ Wayne J. Lee Wayne J. Lee (# 7916) Stone Pigman Walther Wittman L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130 Telephone: (504) 581-3200 Facsimile: (504) 581-3361 E-Mail: [email protected] Counsel for Pentair Water Pool & Spa, Inc. 2 Case 2:12-md-02328-SSV Document 659-12 Filed 07/06/15 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on July 6, 2015 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Gerald E. Meunier Gerald E. Meunier, #9471 3