james e. cecchi lindsey h. taylor kohn swift & graf, llp ... · marketing and sales practices...

James E. Cecchi Lindsey H. Taylor Donald A. Ecklund CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO P.C. 5 Becker Farm Road Roseland, New Jersey 07068-1739 (973)994-1700 Christopher A. Seeger Parvin K. Aminolroaya SEEGER WEISS LLP 55 Challenger Road, 6th Fl. Ridgefield Park, New Jersey 07660 (973) 639-9100 Attorneys for Plaintiffs and the Proposed Settlement Class

Jonathan Shub KOHN SWIFT & GRAF, LLP One South Broad Street Suite 2100 Philadelphia, Pennsylvania 19130 (215) 238-1700

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

In re AZEK BUILDING PRODUCTS, INC. MARKETING AND SALES PRACTICES LITIGATION

Civil Action No. 2:12-cv-6627 MDL Docket No. 2506

NOTICE OF MOTION FOR FINAL APPROVAL OF SETTLEMENT, AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES, AND PAYMENT OF INCENTIVE AWARDS

To: All Counsel via ECF COUNSEL: PLEASE TAKE NOTICE that at such date and time as the Court shall determine,

Plaintiffs, through their undersigned counsel, shall move before the Hon. Madeline Cox Arleo,

U.S.D.J. at the Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, New

Jersey, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for (i) entry of a judgment

Case 2:12-cv-06627-MCA-MAH Document 224 Filed 01/22/18 of 2 PageID: 3368

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finally certifying the Settlement Class and approving the Settlement as fair, reasonable, and

adequate; (ii) awarding attorneys’ fees and reimbursement of expenses; and (iii) authorizing the

payment of incentive awards.

PLEASE TAKE FURTHER NOTICE that, in support of the motion, the undersigned

intends to rely upon the accompanying Memorandum of Law and Declaration of James E.

Cecchi and the exhibits thereto.

PLEASE TAKE FURTHER NOTICE that a proposed Order granting the requested relief

will be submitted with Plaintiffs’ reply papers.

PLEASE TAKE FURTHER NOTICE that the undersigned hereby requests oral

argument.

Dated: January 22, 2018 Respectfully submitted,

CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. By: /s/ James E. Cecchi JAMES E. CECCHI

Case 2:12-cv-06627-MCA-MAH Document 224 Filed 01/22/18 of 2 PageID: 3369

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

IN RE AZEK DECKING SALES PRACTICES LITIGATION

BRIEF IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT, AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF

EXPENSES, AND PAYMENT OF INCENTIVE AWARDS

Jonathan Shub KOHN, SWIFT & GRAF, P.C. One South Broad Street 24th Floor Philadelphia, Pennsylvania 19130 (215) 238-1700 James E. Cecchi Lindsey H. Taylor CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO P.C. 5 Becker Farm Road Roseland, New Jersey 07068-1739 (973) 994-1700 Christopher A. Seeger SEEGER WEISS LLP 55 Challenger Road Ridgefield Park, New Jersey 07660 (973) 639-9100

Co-Lead Counsel for Plaintiffs and the Proposed Settlement Class

Case 2:12-cv-06627-MCA-MAH Document 224-1 Filed 01/22/18 Page 1 of 71 PageID: 3370

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TABLE OF CONTENTS TABLE OF AUTHORITY ...................................................................................... iii I. INTRODUCTION ............................................................................................. 1 II. BACKGROUND ............................................................................................... 2

The Litigation ............................................................................................ 3 Settlement Negotiations ............................................................................ 5 The Terms of the Settlement ..................................................................... 6

D. Preliminary Approval and Class Notice .................................................... 7 ARGUMENT ............................................................................................................. 9 I. THE SETTLEMENT IS FAIR, REASONABLE, AND

ADEQUATE, AND SHOULD BE APPROVED. ............................................ 9 A. The Girsh Factors Weigh in Favor of Approval ......................................12

1. The Complexity, Expense, and Duration of Continued Litigation ........................................................................................... 12

2. The Reaction of the Class to the Settlement ..................................... 15 3. The Stage of the Proceedings ............................................................ 16 4. The Risks of Establishing Liability ................................................... 17 5. The Risks of Establishing Damages ................................................. 18 6. The Risks of Certifying and Maintaining a Litigation Class

through Trial...................................................................................... 19 7. Defendant’s Ability to Withstand Greater Judgment ....................... 20 8. Reasonableness of the Settlement in Light of the Best Possible

Recovery And All Attendant Risks Of Litigation ............................ 21 B. The Relevant Prudential and Baby Products Factors Also

Support Settlement. ................................................................................. 22 C. Objections to the Settlement Do Not Warrant its Rejection ................... 24

1. The Aronson Objections ................................................................... 25 2. Luttringer Objections ........................................................................ 28 3. Tignanelli Objections ........................................................................ 31

II. THE NOTICE PROGRAM IS CONSTITUTIONALLY SOUND AND FULLY IMPLEMENTED ..................................................................... 32


ii

III. THE SETTLEMENT CLASS SHOULD BE CERTIFIED. ........................... 35 The Rule 23(a) Factors Are Met .............................................................. 36

1. Numerosity ........................................................................................ 36 2. Commonality ..................................................................................... 37 3. Typicality .......................................................................................... 38 4. Adequacy ........................................................................................... 38

The Rule 23(b)(3) Factors Are Met ......................................................... 40 1. Predominance .................................................................................... 40 2. Superiority ......................................................................................... 41

IV. The Attorneys’ Fee Application Should Be Approved ................................... 43 A. The Requested/Agreed Upon Attorneys’ Fees, Expenses,

and Incentive Awards Should be Awarded. ............................................ 43 B. The Requested Award Is Presumptively Fair and

Reasonable Where that Award Will Not Diminish the Settlement Fund ....................................................................................... 45

C. The Factors Governing Approval Of Attorneys’ Fees and Expenses Support The Requested Amount ............................................. 49 1. Class Counsel Obtained a Substantial Benefit for Settlement

Class Members .................................................................................. 49 2. Class Counsel Brought This Matter to an Efficient Conclusion....... 51 3. Class Counsel Undertook the Risk of Non-Payment ........................ 52 4. Class Counsel Devoted Significant Time to This Case .................... 53

D. The Lodestar Cross-Check Supports That the Requested Fees and Expenses Are Fair and Reasonable .......................................... 54

E. The Class Representative Service Awards Should be Approved ................................................................................................. 56

F. Class Counsels’ Expenses are Reasonable and Should Be Approved ................................................................................................. 58

CONCLUSION ........................................................................................................ 59


iii

TABLE OF AUTHORITY

Page(s)

Federal Cases

In re Am. Family Enters., 256 B.R. 377 (D.N.J. 2000) .......................................................................... 11, 12

In re Am. Inv’rs Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 263 F.R.D. 226 (E.D. Pa. 2009) .................................................................... 30, 58

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) ........................................................................................ 40

In re Apple Computer, Inc. Deriv. Litig., 2008 WL 4820784 (N.D. Cal. Nov. 5, 2008) ..................................................... 48

In re AremisSoft Corp. Sec. Litig., 210 F.R.D. 109 (D.N.J. 2002) ............................................................................. 51

In re AT&T Corp., 455 F.3d 160 (3d Cir. 2006) ............................................................................... 54

Barel v. Bank of Am., 255 F.R.D. 393 (E.D. Pa. 2009) .......................................................................... 22

Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir. 1993) ....................................................................... 9, 15, 50

Bernhard v. TD Bank, N.A., 2009 WL 3233541 (D.N.J. 2009) ....................................................................... 57

Bezio v. Gen. Elec. Co., 655 F.Supp.2d 162 (N.D.N.Y. 2009) ............................................................ 46, 58

Bredbenner v. Liberty Travel, Inc., 2011 WL 1344745 (D.N.J. Apr. 8, 2011) ......................................... 10, 12, 17, 21

Careccio v. BMW of N. Am. LLC, No. CIV. A. 08-2619, 2010 WL 1752347 (D.N.J. Apr. 29, 2010) ..................... 16


iv

Carroll v. Stettler, No. 10-2262, 2011 U.S. Dist. LEXIS 121185 (E.D. Pa. Oct. 19, 2011) ................................................................................................................... 58

In re Cendant Corp. Sec. Litig., 109 F. Supp. 2d 235 (D.N.J. 2000), aff’d 264 F.3d 201 (3d Cir. 2001) ............................................................................................................. 11, 15

In re CertainTeed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468 (E.D. Pa. 2010) ................................................................ 9, 20, 50

In re Chambers Dev. Sec. Litig., 912 F. Supp. 822 (W.D. Pa. 1995) ...................................................................... 35

City of Livonia Employees’ Ret. Sys. v. Wyeth, 2013 WL 4399015 (S.D.N.Y. Aug. 7, 2013) ...................................................... 24

Cohn v. Nelson, 375 F.Supp.2d. 844 (E.D. Mo. 2005) ................................................................. 48

Matter of Cont’l Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) .............................................................................. 47

DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) ...................................................................... 46

Dewey v. Volkswagen of Am., 728 F. Supp. 2d 546 (D.N.J. 2010) ............................................................... 20, 54

Dupler v. Costco Wholesale Corp., 705 F.Supp.2d 231 (E.D.N.Y. 2010) .................................................................. 46

Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010) ................................................................................. 9

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (U.S. 1974).................................................................................... 34

In re First Capital Holdings Corp. Fin. Prod. Sec. Litig., 1992 WL 226321 (C.D. Cal. June 10, 1992), appeal dismissed for class member’s lack of standing, 33 F.3d 29 (9th Cir.1994) .............................. 48


v

Gates v. Rohm & Haas Co., 248 F.R.D. 434 (E.D. Pa. 2008) .......................................................................... 10

Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975) ........................................................................passim

In re GMC Pick-Up Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3rd Cir. 1995) .........................................................................passim

Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000) ............................................................. 49, 51, 52, 56

Hall v. AT&T Mobility LLC, 2010 WL 4053547 (D.N.J. Oct. 13, 2010) ......................................................... 13

Hensley v. Eckhart, 461 U.S. 424 (1983) ...................................................................................... 44, 45

Hicks v. Stanley, No. 01 Civ. 10071(RJH), 2005 WL 2757792 (S.D.N.Y. Oct, 24, 2005) ................................................................................................................... 27

In re Ikon Office Solutions, Inc., 194 F.R.D. 166 (E.D. Pa. 2000) .................................................................... 22, 52

Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) ........................................................................ 48

In re Ins. Brokerage Antitrust Litig., 2007 WL 1652303 (D.N.J. June 5, 2007), aff’d, 579 F.3d 241 (3d Cir. 2009) ............................................................................................................ 46

Johnson v. Georgia Hwy. Exp., Inc., 488 F.2d 714 (5th Cir. 1974) .............................................................................. 45

Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178 (3d Cir. 2001) ......................................................................... 38, 39

Lenahan v. Sears, Roebuck & Co., No. CIV. 02-0045, 2006 WL 2085282 (D.N.J. July 24, 2006), aff’d, 266 F. App’x 114 (3d Cir. 2008)............................................................... 30


vi

In re LG/Zenith Rear Projection Television Class Action Litig., No. CIV.A. 06-5609, 2009 WL 455513 (D.N.J. Feb. 18, 2009) ...... 13, 44, 46, 54

Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65 (D.N.J. 1993) ......................................................................... 36, 37

M. Berenson Co., Inc. v. Faneuil Hall Marketplace, Inc., 671 F. Supp. 819 (D. Mass. 1987) ...................................................................... 46

Marshall v. Nat’l Football League, 787 F.3d 502 (8th Cir. 2015) .............................................................................. 16

McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006) ............................................................ 46, 48, 49

McCoy v. Health Net, Inc., 569 F. Supp. 2d 448 (D.N.J. 2008) ..................................................................... 13

McDonough v. Toys R. Us, Inc., 80 F. Supp. 3d 626, 650-51 (E.D. Pa. 2015) ................................................ 23, 24

In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180 (D.N.J. 2003) ............................................................................. 40

In re Merck & Co., Inc. Vytorin ERISA Litig., 2010 WL 547613 (D.N.J. Feb. 9, 2010) ............................................................. 14

In re Mercury Interactive Corp. Sec. Litig., 2011 WL 826797 (N.D. Cal. Mar. 3, 2011) ....................................................... 24

Mirakay v. Dakota Growers Pasta Co., Inc., 2014 WL 5358987 (D.N.J. Oct. 20, 2014) ......................................................... 44

Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611 (S.D.N.Y. 2012) ................................................................ 26

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ............................................................................................ 32

Mulroy v. Nat’l Water Main Cleaning Co. of New Jersey, No. CIV.A. 12-3669 WJM, 2014 WL 7051778 (D.N.J. Dec. 12, 2014) ................................................................................................................... 29


vii

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) ............................................................................... 38

O’Brien v. Brain Research Labs, LLC, 2012 WL 3242365 (D.N.J. Aug. 9, 2012) .......................................................... 42

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615 (9th Cir. 1982) .............................................................................. 11

In re PaineWebber Ltd. Partnerships Litig., 171 F.R.D. 104 (S.D.N.Y.), aff’d, 117 F.3d 721 (2d Cir. 1997) ........................ 27

Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986) ...................................................................................... 55, 56

In re Pet Food Prod. Liab. Litig., 629 F.3d 333 (3d Cir. 2010) ............................................................................... 22

Phillips Petroleum Co. v. Schutts, 472 U.S. 797 (1985) ...................................................................................... 32, 43

Pro v. Hertz Equipment Rental Corp., 2013 WL 3167736 (D.N.J. June 20, 2013) ......................................................... 44

In re Prudential Ins. Co. of Am. Sales Practice Litig., 106 F.Supp.2d 721 (D.N.J. 2000) ....................................................................... 46

In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450 (D.N.J. 1997), aff’d, 148 F.3d 283 (3d Cir. 1998) ..........passim

In re Prudential-Bache Energy Income Partnerships Securities Litigation, 1994 WL 202394 (E.D. La. May 18, 1994) ....................................................... 53

Reyes v. Netdeposit, LLC, 802 F.3d 469 (3d Cir. 2015) ............................................................................... 37

In re Rite Aid Corp. Sec. Litig., 396 F.3d 294 (3d Cir. 2005) ............................................................................... 29

Rivera v. Lebanon Sch. Dist., No. 1:11-CV-00147, 2013 WL 4498817 (M.D. Pa. Aug. 20, 2013) .................. 31


viii

Rossi v. Procter & Gamble Co., 2013 WL 5523098 (D.N.J. Oct. 3, 2013) ............................................... 44, 45, 54

In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72 (D.N.J. 2001) ....................................................................... 18

In re Schering-Plough Corp. Enhance Sec. Litig., No. CIV.A. 08-2177 DMC, 2013 WL 5505744 (D.N.J. Oct. 1, 2013) ................................................................................................................... 29

Shaw v. Toshiba Am. Info. Sys., Inc., 91 F.Supp.2d 941 (E.D. Tex. 2000) .................................................................... 52

In re Sony SXRD Rear Projection Television Class Action Litig., 2008 WL 1956267 (S.D.N.Y. May 1, 2008) ...................................................... 46

Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001) ............................................................................... 36

Stoetzner v. U. S. Steel Corp., 897 F.2d 115 (3d Cir. 1990) ............................................................................... 15

Sullivan v. DB Invs., 667 F.3d 273 (3d Cir. 2011) (en banc) ......................................................... 10, 41

Sykes v. Harris, No. 09 CIV. 8486 (DC), 2016 WL 3030156 (S.D.N.Y. May 24, 2016) ............................................................................................................. 26, 27

Taft v. Ackermans, No. 02 Civ. 7951(PKL), 2007 WL 414493 (S.D.N.Y. Jan. 31, 2007) ................................................................................................................... 27

Varacallo v. Mass. Mutual Life Ins. Co., 226 F.R.D. 207 (D.N.J.2005) .................................................................. 16, 42, 43

Vasco v. Power Home Remodeling Grp. LLC, No. CV 15-4623, 2016 WL 5930876 (E.D. Pa. Oct. 12, 2016) ......................... 30

In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231 (D. Del. 2002), aff’d 391 F.3d 516 (3d Cir. 2004) ................... 19


ix

In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ........................................................................passim

In re Warner Communications Securities Litigation, 618 F. Supp. 735 (S.D.N.Y. 1985) ............................................................... 52, 53

In re Whirlpool, 722 F.3d at 859 ................................................................................................... 41

In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319 (S.D.N.Y. 2005) ................................................................ 24

Zanghi v. Freightcar Am., Inc., No. CV 3:13-146, 2016 WL 223721 (W.D. Pa. Jan. 19, 2016) ......................... 26

State Cases

In re AXA Fin., Inc., 2002 WL 1283674 (Del. Ch. May 22, 2002) ...................................................... 48

Federal Statutes

Class Action Fairness Act, 28 U.S.C. § 1715 .......................................................... 34

Rules

Rule 23 ............................................................................................................... passim

Other Authorities

MANUAL FOR COMPLEX LITIGATION, FOURTH § 21.312 (2004) .............................. 33

MANUAL FOR COMPLEX LITIGATION, FOURTH § 21.641 (2004) .............................. 10


1

I. INTRODUCTION

On August 23, 2017, this Court entered an Order Preliminarily Approving

Class Action Settlement between Plaintiffs1 and Defendants AZEK Building

Products, Inc. and CPG International LLC2 that preliminarily approved the

Settlement Agreement3 and conditionally certified the following Settlement Class

for settlement purposes: all current residential owners of AZEK Decking in the

United States who purchased AZEK Decking from August 1, 2007 through

December 31, 2012 and who still own the property on which that deck is located.

Dkt. 219, Preliminary Approval Order, ¶ 7. In doing so, the Court preliminarily

determined that the Settlement – a hard-fought compromise that was the

1 The Named Plaintiffs in this litigation are: Daniel Berkowitz, Mel Beucler, Barbara Derwich, John Edmonds, Joseph Marino, Kevin Mayhew, Christine Merriam, Joseph Solo, and Jeffrey Wayne. (collectively, the “Named Plaintiffs,” “Plaintiffs,” or “Class Representatives”). 2 After Plaintiffs filed their Consolidated Amended Complaint, AZEK Building Products, Inc. and CPG International Inc. (now CPG International LLC) underwent a corporate restructuring. Dkt. 165-1. For simplicity, “CPG” shall be used to refer to the entity that designed, manufactured, warranted, advertised, and sold AZEK decking. 3 The Settlement Agreement is attached as Exhibit “A” to the July 14, 2017 Declaration of James A. Cecchi, and was previously filed with the Court. Dkt. 215-2. All capitalized terms herein have the same meaning as set forth in the Settlement Agreement.


2

culmination of extensive, adversarial, arms’-length negotiations following

extensive litigation – “falls well within the range of reason.” Id. at ¶ 5.

In light of the favorable reaction of the Class, the benefits made available by

the Settlement, and to avoid the burden, expense, inconvenience, and uncertainty

of continued litigation, Plaintiffs now ask the Court to grant final approval to the

Settlement. CPG has stated that it joins in requesting final approval and agrees that

the Class is properly certifiable for purposes of settlement. It is in the best interest

of the Class to resolve and settle this litigation. Tellingly, although Plaintiffs

submit that there are thousands of class members and there have been thousands of

“unique” visits to the settlement website, only three have opted out of the

settlement and only three other objections have been received.4 Accordingly, this

Court should grant final approval to the Settlement and direct that the benefits be

provided to the Class.

II. BACKGROUND

The Court is familiar with the facts giving rise to Plaintiffs’ claims and

CPG’s defenses. Those facts are referenced again below only to the extent that

they are pertinent to the issues raised in this Memorandum. The Settlement was

reached after extensive discovery, hard-fought litigation, and lengthy negotiations

4 The deadline for opt-outs and objections was December 15, 2017. Dkt. 219, ¶ 22.


3

between experienced and informed counsel (with the assistance of the Honorable

Dennis A. Cavanaugh), and easily meets the standard for final approval. Plaintiffs

and Class Counsel – based upon their evaluation of the facts, applicable law, and

their recognition of the substantial risk and expense of continued litigation –

believe this Settlement to be fair, adequate and reasonable and submit that it is in

the best interests of the Class.

The Litigation

This class action is about allegations regarding the design of AZEK decking

and representations CPG made about it. Plaintiffs allege that AZEK decking,

which is made from polyvinyl chloride (PVC), can develop stains, scratches,

premature discoloration, chalking, and streaking under normal use. Plaintiffs

further allege that CPG made written representations which assured prospective

customers that AZEK decking had superior aesthetic durability to other decking

alternatives, such as wood. CPG denies that the decking is defective or that

misrepresentations were made about it. The decking was sold throughout the

United States, and Plaintiffs allege that they share common design features relating

to the composition. Plaintiffs’ claims allege, inter alia, CPG knew or should have

known that the PVC decking would undergo various degradations, but made

representations contrary to that knowledge. Plaintiffs further allege that the

scientific and industrial community also knew that PVC was highly susceptible to


4

degradation if it was exposed to sunlight and heat. Specifically, Plaintiffs bring

claims against CPG under state consumer protection statutes, and for breach of

express and implied warranties. Plaintiffs seek economic damages based on the

purchase of a product that did not conform to its advertised qualities and further

claim that it can cause damage to other property. See generally Dkt. 181, ¶¶ 5-30;

¶¶ 177-205; ¶¶ 216-363. Plaintiffs do not allege any claims for personal injury or

emotional distress; accordingly, the Settlement does not release any such claims.

CPG has stated that it vigorously disputes Plaintiffs’ allegations, that the

decking did not manifest the alleged defects, and that its representations were

accurate. Further, CPG has asserted a number of legal defenses to Plaintiffs’

claims, reflected in its extensive motion for summary judgment and opposition to

Plaintiffs’ Motion for Class Certification.5

Indeed, the case has been vigorously litigated since its inception in 2012.

Plaintiffs filed their consolidated amended complaint on April 22, 2014. Dkt. 90.

In an Order dated January 30, 2015, Dkt. 123-124, the Court granted and denied in

part Defendants’ motion to dismiss the consolidated amended complaint. Plaintiffs

filed their consolidated second amended complaint on February 20, 2015, Dkt.

5 At the time the parties reached agreement on materials terms of the Settlement, both parties had drafted and exchanged (but not filed) class certification papers. CPG had also exchanged (but not filed) a motion for summary judgment.


5

129, and a motion for leave to file a consolidated third amended complaint on

April 20, 2015, Dkt. 140, which the Court granted on August 26, 2015, Dkt. 163.

The Court granted Plaintiffs’ request to file a consolidated fourth amended

complaint on January 4, 2016, Dkt. 180, which is the operative complaint for

purposes of this Settlement.

Plaintiffs, as well as CPG, engaged in extensive research, investigation,

discovery, expert work, and motion practice. Declaration of James E. Cecchi

(“Cecchi Decl.”) at ¶ 6. Class Counsel’s investigation of the facts and

circumstances underlying the case have included consultations with experts,

interviewing and deposing numerous CPG employees and third parties, conducting

investigations of the properties of the Named Plaintiffs, reviewing thousands of

documents produced by CPG and third parties, and researching and studying the

legal principles applicable to issues in the MDL Litigation. Discovery in this case

has been time-intensive and vigorously contested. It has included the production

of approximately 380,000 pages of documents by CPG, 31,000 pages of

documents by third parties, 21 depositions, and nine expert reports. Id.

Settlement Negotiations

Over the past year, the parties have engaged in numerous arm’s-length

settlement negotiations, including mediation presided over by Honorable Dennis


6

M. Cavanaugh. Id. ¶ 12. As a result of those negotiations, the parties reached

agreement on the material terms of substantive relief for the Settlement Class.

Only after the parties reached an agreement on all material terms of the

settlement did they negotiate the amount of attorneys’ fees and costs that CPG

would agree not to oppose paying to Class Counsel (subject to Court approval) and

the amount of service awards Defendant would pay to the Class Representatives

(also subject to Court approval). Id. at ¶¶ 13, 14.

The Terms of the Settlement

The Settlement, the full terms of which are set forth in the Settlement

Agreement, provides substantial economic benefits to the Class. The Settlement

resolves claims related to the purchase of certain legacy AZEK-branded Decking

Boards purchased on or after August 1, 2007 and on or before December 31, 2012,

in the following colors: Brownstone, Clay, Slate Gray, Ivory, White, Fawn, Kona,

Sedona, Tahoe, Acacia, Morado, and Redland Rose.

Settlement Class Members who submit timely and complete claims will

receive 10% of what they paid for their AZEK Decking Boards, up to a limit of

$2,000 per claimant and restricted to one claim per residential property address.

This amount is subject to the following set-offs: (1) a dollar-for-dollar offset

for any prior cash refund provided such refund is related to the allegations in the

Fourth Amended Complaint; (2) an offset for previously-provided partial or


7

complete Decking replacement (valued at $2 per linear foot); (3) an offset for

professional cleaning/conditioning previously provided by CPG to the Class

Member (valued at $1 per linear foot); and (4) one $50.00 offset for each bottle of

DeckMax previously provided by CPG to the Class Member (whether by

coupon/voucher or product itself).

CPG agreed to pay for executing and implementing the settlement class

notice, for claims administration, and for $5,000 service awards to each Named

Plaintiff. Finally, CPG has agreed not to oppose any application of Class Counsel

for attorneys’ fees, costs and expenses provided the aggregate amount does not

exceed $5,250,000. That amount represents a steep discount on the actual time

and costs expended by Class Counsel litigating these cases. The other terms of the

Settlement are in no way contingent on Class Counsel’s fees, costs, and expenses

request. Defendants will pay administration costs, service awards, and attorneys’

fees, costs and expenses independent of the compensation that CPG is providing

Settlement Class Members as part of the Settlement.

D. Preliminary Approval and Class Notice

On August 23, 2017, the Court granted preliminary approval to the

proposed Settlement. Dkt. 219. Pursuant to the Court’s Order, the Court-

approved Notice Administrator, Dahl Administration (“Dahl”), disseminated a

copy of the Notice to known Settlement Class Members in accordance with the


8

plan for Notice—which this Court found to be the “best notice practicable under

the circumstances,” and consistent with the requirements of due process. Dkt 219

¶ 11. Dahl caused copies of the summary notice to be published in the national

edition of USA Today newspaper on October 23, 2017, which has a daily print

readership of approximately 3.4 million. (Cecchi Decl., Ex. 2 (Declaration of Mark

A. Fellows), ¶ 12). On October 17, 2017, Dahl also caused the internet banner

notice to commence, on a daily basis, until November 13, 2017. Id. at ¶ 8. During

this period, the Banner Notices were placed on selected websites 8,718,237 times.

Id. An online search notice campaign was also implemented. Id. ¶¶ 9-11.

Ultimately, the internet digital banner notice, online search notice advertisements,

and print publication notice resulted in a total of 12.2 million individual

impressions. Id. ¶ 13. The dedicated settlement website set up to provide Class

Members with information related to the Settlement has received over ten thousand

unique visits. Although not part of the formal notice program, Class Counsel will

also be undertaking direct outreach to over thousands of class members utilizing

known e-mail addresses. Counsel will keep the Court apprised of all these efforts.


9

ARGUMENT

I. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE, AND SHOULD BE APPROVED.

Rule 23(e) requires a determination by the district court that the proposed

settlement is “fair, reasonable and adequate.” Fed. R. Civ. P. 23(e); In re Warfarin

Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir. 2004).

There is a strong judicial policy in favor of resolution of litigation before

trial, particularly in “class actions and other complex cases where substantial

judicial resources can be conserved by avoiding formal litigation.” In re

CertainTeed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 484 (E.D.

Pa. 2010) (quoting Ehrheart v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir.

2010)); see also GM Trucks, 55 F.3d 768 (“The law favors settlement, particularly

in class actions and other complex cases where substantial judicial resources can

be conserved by avoiding formal litigation.”). The Ehrheart court held:

This presumption is especially strong in “class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation.” GMC Truck, 55 F.3d at 784. The strong judicial policy in favor of class action settlement contemplates a circumscribed role for the district courts in settlement review and approval proceedings. . . . Settlement agreements are to be encouraged because they promote the amicable resolution of disputes and lighten the increasing load of litigation faced by the federal courts [and] the parties may also gain significantly from avoiding the costs and risks of a lengthy and complex trial.

Ehrheart, 609 F.3d at 594-95; see also Bell Atlantic Corp. v. Bolger, 2 F.3d 1304,

1314 n.16 (3d Cir. 1993).


10

Settlements enjoy a presumption that they are fair and reasonable when they

are the product of arm’s-length negotiations conducted by experienced counsel

who are fully familiar with all aspects of class action litigation. See, e.g., GMC

Trucks, 55 F.3d at 785; Sullivan v. DB Invs., 667 F.3d 273, 320 (3d Cir. 2011) (en

banc); Gates v. Rohm & Haas Co., 248 F.R.D. 434, 439, 444 (E.D. Pa. 2008)

(stressing the importance of arm’s length negotiations and highlighting the fact that

the negotiations included “two full days of mediation”); Bredbenner v. Liberty

Travel, Inc., 2011 WL 1344745, at *10 (D.N.J. Apr. 8, 2011) (“A class settlement

is entitled to an ‘initial presumption of fairness’ when ‘(1) the negotiations

occurred at arm’s length; (2) there was sufficient discovery; (3) the proponents of

the settlement are experienced in similar litigation; and (4) only a small fraction of

the class objected.’”) (quoting GM Trucks, 55 F.3d at 785); see also MANUAL FOR

COMPLEX LITIGATION, FOURTH § 21.641 (2004).

A fair, reasonable and adequate settlement is not necessarily an “ideal

settlement.” A settlement is, after all, “a compromise, a yielding of the highest

hopes in exchange for certainty and resolution.” In re Prudential Ins. Co. of Am.

Sales Practices Litig., 962 F. Supp. 450, 534 (D.N.J. 1997) (“Prudential I”), aff’d,

148 F.3d 283 (3d Cir. 1998) (“Prudential II”) (citations omitted). As one court has

noted:

[T]he court’s intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited


11

to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned . . . The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators.

* * *

Neither the district court nor this court is empowered to rewrite the settlement agreed upon by the parties. We may not delete, modify, or substitute certain provisions of the consent decree. Of course, the district court may suggest modifications, but ultimately, it must consider the proposal as a whole and as submitted. Approval must then be given or withheld. . . . In short, the settlement must stand or fall as a whole.

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625, 630 (9th Cir. 1982);

see also In re Am. Family Enters., 256 B.R. 377, 421 (D.N.J. 2000) (“Significant

weight should be attributed ‘to the belief of experienced counsel that the settlement

is in the best interest of the class.’”); In re Cendant Corp. Sec. Litig., 109 F. Supp.

2d 235 (D.N.J. 2000), aff’d 264 F.3d 201 (3d Cir. 2001).

The Third Circuit has adopted a nine-factor test to determine whether a

settlement is “fair, reasonable, and adequate.” The elements of this test – known as

the “Girsh factors” – are:

(1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of


12

reasonableness of the settlement in light of all the attendant risks of litigation.

GM Trucks, 55 F.3d at 785 (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.

1975)). “These factors are a guide and the absence of one or more does not

automatically render the settlement unfair.” American Family, 256 B.R. at 418.

The Settlement meets each of these factors, and thus, should be approved.

A. The Girsh Factors Weigh in Favor of Approval

1. The Complexity, Expense, and Duration of Continued Litigation

The first Girsh factor is whether the settlement avoids a lengthy, complex

and expensive continuation of litigation. This factor “captures the probable costs,

in both time and money, of continued litigation.” Cendant II, 264 F.3d at 233-34

(internal quotation marks omitted). “Where the complexity, expense, and duration

of litigation are significant, the Court will view this factor as favoring settlement.”

Bredbenner, 2011 WL 1344745, at *11. This factor undoubtedly weighs in favor

of settlement.

Here, due to the factual and legal complexities involved in this case,

continued litigation would have been rigorously contested by all Parties, and would

necessarily be expensive and time-consuming. See GM Trucks, 55 F.3d at 812

(concluding that lengthy discovery and ardent opposition from the defendant with

“a plethora of pretrial motions” were facts favoring settlements, which offer


13

immediate benefits and avoid delay and expense). At the time of the Settlement,

the Parties had analyzed more than 400,000 pages of documents, conducted 21

depositions, and assisted in the compilation of nine expert reports.

The complexity of this case is inherent to Plaintiffs’ claims, which involve

an analysis of the decking, CPG’s internal manufacturing documents, warranty

databases and statistical analyses. Indeed, Plaintiffs retained and worked with

several experts each of whom performed substantial work. This fact alone weighs

in favor of settlement approval. See Hall v. AT&T Mobility LLC, 2010 WL

4053547, at *7 (D.N.J. Oct. 13, 2010) (fact that trial would have required

substantial expert testimony weighed in favor of approving settlement); McCoy v.

Health Net, Inc., 569 F. Supp. 2d 448, 460 (D.N.J. 2008) (same). In addition,

seeking certification of a litigation class would present manageability questions not

presented by settlement-only class, see, e.g., In re LG/Zenith Rear Projection

Television Class Action Litig., No. CIV.A. 06-5609, 2009 WL 455513, at *4

(D.N.J. Feb. 18, 2009), and would require an even more complicated analysis of

Plaintiffs’ claims and the continued costly battle of the experts.

Additionally, the risks of substantial delay are palpable. As described

above, although the case has been vigorously litigated for over four years,

substantial additional work and discovery would be required before the case would

be ready to bring to trial. Trial would involve extensive pretrial motions involving


14

complex questions of law and fact, and the trial itself would be lengthy and

complicated. See Warfarin Sodium II, 391 F.3d at 536 (finding the first Girsh

factor to weigh in favor of settlement after three years of litigation); Weiss, 899 F.

Supp. at 1301 (approving settlement that was the “result of an arm’s length

negotiation between two very capable parties” and where “Mercedes was prepared

to contest this class action vigorously.”). Post-trial motions and appeal would

further delay resolution and increase costs. Id. at 536 (“it was inevitable that post-

trial motions and appeals would not only further prolong the litigation but also

reduce the value of any recovery to the class”); In re Merck & Co., Inc. Vytorin

ERISA Litig., 2010 WL 547613, at *7 (D.N.J. Feb. 9, 2010) (noting that additional

costs associated with trial of multi-district class action and the delayed recovery for

the class weighs in favor of settlement). Even if Plaintiffs were successful,

Defendants would undoubtedly appeal an adverse judgment, adding further time to

a final resolution of this matter if it were litigated.

Under all of the circumstances, a certain result now rather than an uncertain

result more years in the future of this four year old litigation, weighs in favor of

approval of the Settlement. For these reasons, the first Girsh factor weighs in

favor of final approval of the Settlement.


15

2. The Reaction of the Class to the Settlement

The second Girsh factor “attempts to gauge whether members of the class

support the Settlement.” Prudential II, 148 F.3d at 318. In order to properly

evaluate it, “the number and vociferousness of the objectors” must be examined.

GM Trucks, 55 F.3d at 812. Given breadth of the class, and the overall

effectiveness of the notice program (which reached over 4,000 members of the

Settlement Class through direct notice alone (Kratz Decl. at ¶¶ 4-13)), the fact that

there were only three requests for exclusion and three objections is a strong

indicator that the Settlement is fair, reasonable and adequate. See, e.g., Cendant,

264 F.3d at 234-35 (affirming trial court decision that class reaction was

“extremely favorable,” where 478,000 notices were sent, four objections were

made, and 234 class members opted out).

Under Girsh, such a small number of exclusions and a lack of objections

favor approval of a class action settlement agreement. See Bell Atlantic, 2 F.3d at

1314 n.15 (silence is “tacit consent” to settlement). A “paucity of protestors . . .

militates in favor of the settlement,” See Bell Atlantic, 2 F.3d at 1314; see also

Stoetzner v. U. S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990) (objections by 29

members of a class comprised of 281 “strongly favors settlement”); Prudential I,

962 F. Supp. at 537 (small number of negative responses to settlement favors

approval); Weiss, 899 F. Supp. at 1301 (100 objections out of 30,000 class


16

members weighs in favor of settlement); Careccio v. BMW of N. Am. LLC, No.

CIV. A. 08-2619, 2010 WL 1752347, at *4 (D.N.J. Apr. 29, 2010) (“Case law in

this Circuit holds that a small number of objections is strong evidence that the

settlement is fair and reasonable. . . . In Varacallo v. Mass. Mutual Life Ins.

Co., 226 F.R.D. 207, 251 (D.N.J.2005), Judge Linares held where .06% of class

members opted out of the settlement before him, and .003% raised objections,

these results were ‘extremely low’ and favored approval of the settlement.”)

(citations omitted). Indeed, courts routinely approve settlements in which there is

a much greater objection or opt-out response. E.g., Marshall v. Nat’l Football

League, 787 F.3d 502, 513-14 (8th Cir. 2015) (affirming settlement approval even

though more than 2,000—or almost 10%—opted out and 19 class members filed

objections).

Here, the small magnitude of meaningful negative response to the Settlement

reflects strong support from the Class and evinces the quality and value of the

Settlement.

3. The Stage of the Proceedings The stage of the proceedings and the amount of discovery completed is

another factor that courts consider in determining the fairness, reasonableness and

adequacy of a settlement. GM Trucks, 55 F.3d at 785; Girsh, 521 F.2d at 157.

“This factor considers the degree of case development accomplished by counsel


17

prior to settlement.” Bredbenner, 2011 WL 1344745 at *12. “Through this lens . .

. courts can determine whether counsel had an adequate appreciation of the merits

of the case before negotiating.” GM Trucks, 55 F.3d at 813.

Here, the Parties briefed multiple motions to dismiss, both Parties produced,

and Plaintiffs have analyzed, more than 400,000 pages of documents and

information from databases containing thousands of entries. Factual and expert

depositions were also conducted. Further, the Parties participated in inspections of

dozens of decks throughout the country and Class Counsel have communicated

with hundreds of Class Members throughout the country.

Simply put, this matter has been vigorously litigated for several years and,

thus, there was no shortage of information and no rush to settlement here. This

Settlement was reached after both sides endured the rigors of hard-fought motion

practice, discovery, and litigation.

4. The Risks of Establishing Liability This factor should be considered to “examine what potential rewards (or

downside) of litigation might have been had class counsel decided to litigate the

claims rather than settle them.” Cendant II, 264 F.3d at 237 (quoting GM Trucks,

55 F.3d at 814). “By evaluating the risks of establishing liability, the district court

can examine what the potential rewards (or downside) of litigation might have

been had class counsel elected to litigate the claims rather than settle them.” GM


18

Trucks, 55 F.3d at 814. “The inquiry requires a balancing of the likelihood of

success if the case were taken to trial against the benefits of immediate settlement.”

In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 89 (D.N.J. 2001).

Although Class Counsel believe that the claims presented in this litigation

are meritorious, which CPG contests, they are experienced counsel who understand

that the “the risks surrounding a trial on the merits are always considerable.”

Weiss, 899 F. Supp. at 1301. CPG has zealously defended against these claims,

and would surely continue to do so if the case proceeds to trial. The Settlement

here presents the Class with real relief now. Further, although Plaintiffs are

confident that their claims are legally sound, Plaintiffs also state that there is

always the possibility that the Court may disagree. These risks include the

potential denial of a motion to certify a litigation class (which would entail

consideration of manageability issues not present here), the granting of summary

judgment, the granting of CPG’s expert challenge, and loss at trial. Thus, these

inherently unpredictable risks in establishing liability weigh in favor of settlement,

particularly here, where the Settlement provides the Class with a substantial benefit

that is fair, reasonable, and adequate.

5. The Risks of Establishing Damages “Like the fourth factor, ‘this inquiry attempts to measure the expected value

of litigating the action rather than settling it at the current time.’” Cendant II, 264


19

F.3d at 238. The court looks at the potential damage award if the case were taken

to trial against the benefits of immediate settlement. Prudential II, 148 F.3d at

319. In Warfarin Sodium I, the trial court found that the risk of establishing

damages strongly favored settlement, observing that “[d]amages would likely be

established at trial through ‘a “battle of experts,” with each side presenting its

figures to the jury and with no guarantee whom the jury would believe.’” In re

Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 256 (D. Del. 2002), aff’d 391

F.3d 516, 537 (3d Cir. 2004). Similarly, in Cendant II, the Third Circuit reasoned

that there was no compelling reason to think that “a jury confronted with

competing expert opinions” would accept the plaintiff’s damages theory rather

than that of the defendant, and thus the risk in establishing damages weighed in

favor of approval of the settlement. 264 F.3d at 239. The same is true here. Both

Parties exchanged, but have not filed, competing expert challenges. Thus, this

factor weighs in favor of final approval.

6. The Risks of Certifying and Maintaining a Litigation Class through Trial

Because the prospects for obtaining certification have a great impact on the

range of recovery one can expect to reap from the class action, GM Trucks, 55

F.3d at 817, the Court must measure the likelihood of obtaining and maintaining a

certified class if the action were to proceed to trial. Girsh, 521 F.2d at 157. Class

Counsel believe that this case is wholly appropriate for class certification in the


20

litigation context. However, CPG denies that a litigation class could or should be

certified and has previewed for Class Counsel a host of arguments in opposition to

certification of a litigation class. There is always a risk that a Court would find this

action not suitable for class certification, or find it not suitable for litigation on a

multi-state basis. Further, even if class certification were granted in the litigation

context, class certification can always be reviewed or modified before trial, so “the

specter of decertification makes settlement an appealing alternative.” Dewey v.

Volkswagen of Am., 728 F. Supp. 2d 546, 585 (D.N.J. 2010). Finally, even if a

class is certified, there is no sure bet that Plaintiffs would prevail at trial. CPG has

consistently maintained that it has strong merits defenses to the Class’s claims. In

other words, class litigation is inherently uncertain and subject to many twists and

turns. Experienced counsel know this and, consequently, this factor weighs in

favor of final approval.

7. Defendant’s Ability to Withstand Greater Judgment

Although there is no dispute that CPG has sufficient resources, countless

settlements have been approved where a settling defendant has had the ability to

pay greater amounts, and the Third Circuit has noted that this fact alone does not

weigh against settlement approval. See, e.g., Warfarin Sodium II, 391 F.3d at 538.

This factor is generally neutral when the defendant’s ability to pay greatly exceeds

the potential liability, and was not a factor in settlement negotiations. CertainTeed,


21

269 F.R.D. at 489 (“because ability to pay was not an issue in the settlement

negotiations, this factor is neutral”); Warfarin Sodium II, 391 F.3d at 538 (“fact

that [defendant] could afford to pay more does not mean that it is obligated to pay

any more than what the . . . class members are entitled to under the theories of

liability that existed at the time the settlement was reached”); Bredbenner, 2011

WL 1344745, at *15 (“courts in this district regularly find a settlement to be fair

even though the defendant has the practical ability to pay greater amounts”).

8. Reasonableness of the Settlement in Light of the Best Possible Recovery And All Attendant Risks Of Litigation

The final two Girsh factors are the reasonableness of the settlement in light

of the best possible recovery, and all the attendant risks of litigation. These

factors, too, support approval of this Settlement and its benefits. This Settlement

offers real economic benefits to Class Members. Subject to certain offsets

described above, Settlement Class Members who submit timely and complete

claims will receive 10% of what they paid for their AZEK Decking Boards, up to a

limit of $2,000 per claimant and restricted to one claim per residential property

address. These amounts were arrived at after careful consultation by Plaintiffs

with Plaintiffs’ damages experts, review of CPG’s internal documents, and

comparison with settlements involving similar products.

The cash payments provided for by the Settlement compare favorably to

what Plaintiffs could recover if they prevailed at trial and these amounts are well


22

within the range of settlements commonly approved by Courts. See, e.g., Barel v.

Bank of Am., 255 F.R.D. 393, 402 (E.D. Pa. 2009) (approving a settlement with a

value of 52% of the low end of the damages range and 5.2% of the high end); In re

Ikon Office Solutions, Inc., 194 F.R.D. 166, 183-84 (E.D. Pa. 2000) (approving a

settlement that ranged from 5.2% to 36.4% of the potential recovery).

B. The Relevant Prudential and Baby Products Factors Also Support Settlement.

The Third Circuit has articulated other factors that can be relevant to the

evaluation of some, but not all, class settlements. In Prudential II, 148 F.3d at 323,

the Third Circuit identified several additional factors that “are illustrative of

additional inquiries that in many instances will be useful for a thoroughgoing

analysis of a settlement’s terms.” In re Pet Food Prod. Liab. Litig., 629 F.3d 333,

350 (3d Cir. 2010). Those factors are the following:

[1] [T]he maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; [2] the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved—or likely to be achieved—for other claimants; [3] whether class or subclass members are accorded the right to opt out of the settlement; [4] whether any provisions for attorneys’ fees are reasonable; and [5] whether the procedure for processing individual claims under the settlement is fair and reasonable.

Prudential II, 148 F.3d at 323. Although not all of the Prudential II factors are


23

relevant to approval of the proposed Settlement, those that are weigh in favor of

final approval. First, the underlying substantive issues in this case are mature. As

discussed above, there has been significant discovery on the merits and Class

Counsel is aware of the complexity and risks inherent in a trial on the merits.

Second, all individual Settlement Class Members are being treated fairly. Third, as

discussed above, Settlement Class Members were provided with robust notice and

were provided with the opportunity to opt-out, which only three individual Class

Member elected. Fourth, the fees requested are reasonable, as more fully discussed

herein. See infra at 43-56.6 Finally, the claims process is clearly set out in the

Agreement and accompanying papers, and Settlement Class Members have ample

time to seek assistance, if necessary, and to complete a Claim Package.

Finally, the Third Circuit added an additional factor in In re Baby Products

Antitrust Litigation— namely, the degree to which a proposed settlement provided

a “direct benefit” to the class. 708 F.3d at 174; see also McDonough v. Toys R. Us,

Inc., 80 F. Supp. 3d 626, 650-51 (E.D. Pa. 2015) (discussing “Baby Products

factor”). Here, qualifying Class Members who timely and completely fill out a

6 Because Class Counsel is not aware of other individuals, classes, or subclasses asserting similar claims against CPG, Plaintiffs submit that the Prudential factors calling for comparison to other such claimants is not relevant to the analysis of the proposed Settlement in this matter.


24

Claim Form with the required documentation receive a direct benefit from the

Settlement. For all the foregoing reasons, the proposed Settlement satisfies the

factors articulated by the Third Circuit and should be approved as fair, reasonable,

and adequate.

C. Objections to the Settlement Do Not Warrant its Rejection

Despite the breadth and scope of the notice plan, only three objections have

been received,7 and none of them raise concerns that would preclude final

approval.8 As discussed above, such a low level of objection weighs in favor of

final approval, and in any event their objections lack merit as discussed below.

7 While the Kratz Declaration (¶ 19) correctly notes that it received three objections, only two of those (Aronson and Luttringer) were filed with the Court. Because paragraph 15(a) of the Court’s August 23, 2017 Order requires that any objections must be filed with the Court and served on the administrator, only two of the objections (Aronson’s and Luttringer’s but not Tignanelli’s) satisfied the filing of objection requirement. Nonetheless, even though it is not properly before the Court for lack of standing, the third objection (Tignanelli) is addressed below. 8 None of the objectors have submitted any evidence that they submitted a proof of claim with the administrator. As such, these objections should be disregarded since the objectors lack any interest in the settlement or attorneys’ fees request and thus lack standing to challenge the settlement. See McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626, 638 n.12 (E.D. Pa. 2015) (citing cases); City of Livonia Employees' Ret. Sys. v. Wyeth, 2013 WL 4399015, at *1 (S.D.N.Y. Aug. 7, 2013); In re Mercury Interactive Corp. Sec. Litig., 2011 WL 826797, at *2 n.2 (N.D. Cal. Mar. 3, 2011) (“Because neither Mr. Delluomo nor the Orloffs submitted a claim in this case, they lacked standing to object to the settlement.”) (citing cases); In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 340 (S.D.N.Y. 2005).


25

1. The Aronson Objections

Raymond Aronson challenges the “maximum of 10% rebate” from the

proposed settlement, arguing that it is insufficient. Aronson complains that the

AZEK decking he purchased in 2012 has lost its color, and that he “at least

expected CPG to provide me with new decking, not a measly $400.” As discussed

above, the settlement was reached after five years of litigation, including extensive

factual discovery and heavily debated legal issues. Through extensive and hard-

fought negotiations, Plaintiffs’ counsel has managed to salvage a recovery of 10%

of class members’ purchase price (up to $2,000 and subject to offsets if CPG

previously provided benefits to the class member), a reasonable amount in light of

the evolution of, and risks involved in, the case. Indeed, the reasonableness of the

10% benefit is demonstrated by its consistency with Class Counsel’s expert

evidence as to the appropriate damages for a litigation class.9 Moreover, that

amount will only be further depleted by continued litigation. Plaintiffs’ counsel

has made a fair and informed decision to exchange the uncertainty of litigation for

the certainty of a settlement, and in comparison with settlement amounts paid out

in similar litigation, as well as the expert evidence in this case, it is a fair, adequate,

9 Before negotiating the Settlement Agreement, the Parties exchanged (but did not file) expert reports relating to classwide damages.


26

and reasonable amount. See, e.g., Zanghi v. Freightcar Am., Inc., No. CV 3:13-

146, 2016 WL 223721, at *23 (W.D. Pa. Jan. 19, 2016) (rejecting argument that

settlement payment was “too low,” finding “that Class Counsel, after bringing this

case to the brink of trial, have made a fair and informed decision to exchange the

uncertainty of litigation for the certainty of a settlement, and that the [settlement]

Payment is a fair, adequate, and reasonable sum given the factual and legal

disputes in this litigation”).

Moreover, Aronson’s objection is one that courts routinely reject as an

improper basis upon which to discard the proposed settlement. See Sykes v.

Harris, No. 09 CIV. 8486 (DC), 2016 WL 3030156, at *19 (S.D.N.Y. May 24,

2016) (finding “meritless” an objector’s contention “that her anticipated settlement

payment of $100 is too low and that she is entitled to receive the total amount (i.e.,

$700) that she allegedly paid”; noting that “[c]ourts routinely overrule objections

from class members that the anticipated relief they will receive under the

settlement is too low”) (citations omitted); Morris v. Affinity Health Plan, Inc., 859

F. Supp. 2d 611, 621 (S.D.N.Y. 2012) (“‘[T]here is no reason, at least in theory,

why a satisfactory settlement could not amount to a hundredth or even a

thousandth part of a single percent of the potential recovery.’ . . . It is well-settled

that a cash settlement amounting to only a fraction of the potential recovery will

not per se render the settlement inadequate or unfair.’”) (citations omitted); Taft v.


27

Ackermans, No. 02 Civ. 7951(PKL), 2007 WL 414493, at *7 (S.D.N.Y. Jan. 31,

2007) (overruling objections that settlement amount was insufficient because,

among other things, lead plaintiffs faced serious challenges in establishing liability

and damages); Hicks v. Stanley, No. 01 Civ. 10071(RJH), 2005 WL 2757792, at *6

(S.D.N.Y. Oct, 24, 2005) (overruling class member objections

that settlement amount was too low; “[t]here are obstacles that the plaintiffs would

face in continued litigation with defendants, and it is uncertain whether they could

overcome these obstacles to prove both liability and damages .... settlement amount

represents a fair payment to plaintiff class due to the risk that protracted litigation

may be fruitless”); In re PaineWebber Ltd. Partnerships Litig., 171 F.R.D. 104,

131 (S.D.N.Y.) (noting that “the fact that the settlement fund may equal only a

fraction of the potential recovery at trial does not render the settlement inadequate”

particularly in light of considerable risks class would face at trial), aff’d, 117 F.3d

721 (2d Cir. 1997).

As the Sykes court noted, “[t]at the settlement ‘does not provide for a full

recovery of legal damages ... is the hallmark of compromise.’” 2016 WL 3030156,

at *8 (quoting In re PaineWebber Ltd. Partnerships Litig., 171 F.R.D. at 131).


28

2. Luttringer Objections

Frank Luttringer argues that the amount of the attorney’s fee for class

counsel, in comparison to the settlement amounts that class members will receive,

is “blatantly unfair.” He spent $30,000 for a deck “primarily made up on Azek

finishes, which have faded.” He contends he should receive compensation for the

cost of replacing “the defective decking.” Luttringer further argues that the

settlement amount of “only 10% of the cost of the material less the exorbitant cost

of Deckmax [which, if previously provided by CPG, requires an offset to the

settlement amount],” results in only “a few hundred dollars for me.” As such,

Luttringer argues that the Court should reduce the attorney’s fee award and

increase the amount of the settlement.

As to Luttringer’s complaint that the settlement amount is too low, including

his contention that the offset of the settlement amount based on any previous

receipt of DeckMax unfairly reduces the settlement amount by $50 per bottle of

DeckMax, that does not convincingly weigh against approval of the settlement.10

The Settlement Agreement is the result of compromise, and there is no merit to

Luttringer’s preference that he should be compensated for the full cost to replace

10 The offset detailed in the settlement agreement raised by Luttringer provides that the settlement is subject to an offset of $50.00 offset for each bottle of DeckMax previously provided by CPG to the Class Member. Settlement Agreement ¶ 6.6.


29

his decking without any regard to benefits he suggest he already received from

CPG. Nor is Luttringer’s specific complaint about DeckMax persuasive, as he has

provided no evidence that CPG previously provided him with the product which

would trigger the offset provision in the Settlement Agreement. At bottom,

Luttringer’s arguments boil down to the same complaint that courts routinely

reject. The Settlement Agreement need not provide the full range of damages a

class member may claim have; and for the reasons described above, it is fair,

reasonable, and adequate.

With respect to Luttringer’s contention that the attorney’s fee amount is too

high in comparison to the amount of the settlement, that argument is unpersuasive

too. Luttringer’s objection to the fee amount is the only such objection that was

lodged. Under such circumstances, a single objection to the fee application

strongly supports approval of the requested fee.11

11 See In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 305 (3d Cir. 2005) (“We agree with the District Court such a low level of objection is a “rare phenomenon.’ . . . The District Court did not abuse its discretion in finding the absence of substantial objections by class members to the fee requests weighed in favor of approving the fee request.”); In re Schering-Plough Corp. Enhance Sec. Litig., No. CIV.A. 08-2177 DMC, 2013 WL 5505744, at *25 (D.N.J. Oct. 1, 2013) (“Despite the large number of Class Members, only a single objection to the fee application had been received by the August 5, 2013 deadline. Under these circumstances, there can be no doubt that this overwhelmingly positive reaction to the Schering Fee Application strongly supports approval of the requested fee.”); Mulroy v. Nat'l


30

As further discussed below in the section on the attorney fee award, the

amount of the fee is independent of the class recovery and will not decrease the

benefit received by the class. Luttringer’s complaint lacks merits because the size

of the fee award is not tied to the amount that he stands to recover. Luttringer also

fails to present any evidence or argument as to how the attorney’s fee award would

affect any recovery obtained by class members. See In re Am. Inv'rs Life Ins. Co.

Annuity Mktg. & Sales Practices Litig., 263 F.R.D. 226, 244 (E.D. Pa. 2009)

(holding that where “[n]one of the objectors presents evidence that the attorneys’

award would affect the plaintiffs’ dividends . . . [t]he small [5] number of

objections and the objections’ lack of merit indicate that the class is satisfied with

the fee award.”). Moreover, given the lengthy litigation that took place over the

course of five years, it is a likely result that the attorney’s fees far exceed the

maximum possible recovery in this litigation.

Additionally, that the parties negotiated the settlement at arm’s length and

for two days with an experienced mediator, after the size of the class fund was

Water Main Cleaning Co. of New Jersey, No. CIV.A. 12-3669 WJM, 2014 WL 7051778, at *6-7 (D.N.J. Dec. 12, 2014) (receipt of single objection to proposed attorney fee supported reasonableness of fee request); Lenahan v. Sears, Roebuck & Co., No. CIV. 02-0045, 2006 WL 2085282, at *19 (D.N.J. July 24, 2006) (“The lack of significant objections from the Class supports the reasonableness of the fee request.”), aff'd, 266 F. App'x 114 (3d Cir. 2008).


31

determined, weighs in favor of the settlement. See Vasco v. Power Home

Remodeling Grp. LLC, No. CV 15-4623, 2016 WL 5930876, at *16 (E.D. Pa. Oct.

12, 2016) (“The Settlement Agreement is entitled to the presumption of fairness, in

part because the parties negotiated it at arm's length with the benefit of an

experienced mediator over two days. The fairness considerations weigh in favor of

settlement.”); Rivera v. Lebanon Sch. Dist., No. 1:11-CV-00147, 2013 WL

4498817, at *3 (M.D. Pa. Aug. 20, 2013) (that “the parties’ agreement

on attorneys’ fees was negotiated after the size of the fund for class relief was

agreed to by the parties . . . also weighs strongly in favor of approval”).

3. Tignanelli Objections

As an initial matter, Tignanelli did not file his objection with the Court. In

addition to the standing hurdle discussed above, his objection should be

disregarded for this reason as well, because the Court’s Preliminary Approval

Order explicitly requires the timely filing of objections with the Court. See supra

24 n.7-8; Dkt. 219 ¶ 15.12

But even considering Tignanelli’s complaint, final approval is still

warranted. Tignanelli objects because he received a professional cleaning at

12 This requirement was also communicated in the Long Form Notice and on the Settlement Website.


32

CPG’s expense prior to the Settlement, and under the Settlement his award is

subject to an offset for that prior cleaning benefit. This offset was negotiated by

the Parties and accounts for benefits that some Class Members may already have

received. Although Tignanelli “would much rather have the cash to buy a power

washer to maintain the deck myself,” this argument again boils down to a simple

disagreement with the amount of the settlement. As explained above, that is not an

objection sufficient to preclude final approval in this case. Further, that

Tignanelli’s objection is the only objection to the offset for any previous cleaning

by CPG also weighs in favor of the settlement.

Finally, Tignanelli’s objection states that he seeks to exclude himself from

the settlement if the cleaning offset is not removed from the Settlement Agreement.

Because the cleaning offset remains, his objection should be interpreted as a

request for exclusion; as such, Tignanelli does not have standing to make his

objection for this reason as well.

II. THE NOTICE PROGRAM IS CONSTITUTIONALLY SOUND AND FULLY IMPLEMENTED

To protect the rights of absent members of the Class, the Court must ensure

that all Class Members who would be bound by a class settlement are provided the

best practicable notice. See Fed. Rule Civ. P. 23(e)(1)(B); Phillips, 472 U.S. at

811-12. The best practicable notice is that which is “reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action


33

and afford them an opportunity to present their objections.” Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Both the content and the

means of dissemination of the notice must satisfy the “best practicable notice”

standard.

The notice of a class settlement should: define the class; describe clearly the

options open to the class members and the deadlines for taking action; describe the

essential terms of the proposed settlement; disclose any special benefits provided

to the class representatives; provide information regarding attorneys’ fees; indicate

the time and place of the hearing to consider approval of the settlement, and the

method for objecting to or opting out of the settlement; explain the procedures for

allocating and distributing settlement funds, and, if the settlement provides

different kinds of relief for different categories of class members, clearly set out

those variations; provide information that will enable class members to calculate or

at least estimate their individual recoveries; and prominently display the address

and phone number of class counsel and the procedure for making inquiries.

MANUAL FOR COMPLEX LITIGATION, FOURTH § 21.312 (2004); see also Cendant I,

109 F. Supp. at 254. The form and manner of Notice was negotiated and agreed

upon by the Parties, approved by this Court, and meets all of these requirements.

As detailed above and in the Kratz Declaration (annexed to Cecchi Decl. as

Ex. 1), the direct Notice program involved sending more than 4,000 long form


34

notices to known Class Members. Kratz Decl. ¶¶ 4-13. Notice of the proposed

Settlement was also served on the Attorney General of the United States and to the

Attorneys General of all fifty states, pursuant to the Class Action Fairness Act, 28

U.S.C. § 1715. Dahl also published the Class Notice in USA Today, pursued an

extensive internet notice plan (serving 12.2 million impressions), established a

national toll-free number, and established a dedicated Settlement Website featuring

copies of the Class Notices, the Claim Form, the Settlement Agreement, and other

information relating to the terms and benefits of the Settlement such as Frequently

Asked Questions to aid in the claim submission process. Fellows Decl. ¶¶6-13

(annexed to Cecchi Decl. as Ex 2). For instance, the banner ad for the settlement

appeared on targeted websites 8,718,237 times. Fellows Decl. ¶ 8. Thus, the

notice program that the Court initially and preliminarily approved was fully

implemented and has informed the Class fully of their rights and benefits under the

Settlement.

The direct notice sent to all reasonably identifiable Class Members, in

conjunction with the other forms of notice, provided the best notice practical under

the circumstances, giving Class Members a full and fair opportunity to consider the

terms of the Settlement and make a fully informed decision as to whether to

participate, object, or opt-out of the Settlement. Eisen v. Carlisle & Jacquelin, 417

U.S. 156, 173 (U.S. 1974) (noting that individual notice is preferred method where


35

addresses of class members can be ascertained through reasonable effort);

Prudential I, 962 F. Supp. at 527 (actual notice by mail and published notice was

“ideal”); In re Chambers Dev. Sec. Litig., 912 F. Supp. 822, 836 (W.D. Pa. 1995)

(actual notice by mail and published notice was “best possible notice.”).

Therefore, the Notice fulfilled the requirements of due process and those of Rule

23(c)(2).

III. THE SETTLEMENT CLASS SHOULD BE CERTIFIED.

Class certification under Rule 23 has two primary components. First, the

party seeking class certification must first establish the four requirements of Rule

23(a): “(1) numerosity (a ‘class [so large] that joinder of all members is

impracticable’); (2) commonality (‘questions of law or fact common to the class’);

(3) typicality (named parties’ claims or defenses ‘are typical . . . of the class’); and

(4) adequacy of representation (representatives ‘will fairly and adequately protect

the interests of the class’).” Warfarin Sodium II, 391 F.3d at 527. Second, the

Court must find that the class fits within one of the three categories of class actions

set forth in Rule 23(b). Community Bank, 418 F.3d at 302. In the present case,

Plaintiffs seek certification under Rule 23(b)(3), “the customary vehicle for

damage actions.” Id. Rule 23(b)(3) requires that common questions “predominate

over any questions affecting only individual members” and that class resolution be


36

“superior to other available methods for the fair and efficient adjudication of the

controversy.” Amchem, 521 U.S. at 592-93.

As discussed in detail below, all the Rule 23 requirements for a settlement

class are met here. The Court was correct in preliminarily certifying the Class for

settlement purposes pursuant to Rules 23(a) and (b)(3), and nothing has changed to

alter the propriety of the Court’s certification. Therefore, the Class should now be

finally certified.

The Rule 23(a) Factors Are Met

As discussed below, in light of the proposed Settlement, Plaintiffs and the

Class meet the requirements of Rule 23(a), which are commonly referred to as

numerosity, commonality, typicality, and adequacy of representation. See

Warfarin Sodium II, 391 F.3d at 527.

1. Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all class

members is “impracticable.” Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp.,

149 F.R.D. 65, 73 (D.N.J. 1993). For purposes of Rule 23(a)(1), “impracticable”

does not mean impossible, “only that common sense suggests that it would be

difficult or inconvenient to join all class members.” See Prudential I, 962 F. Supp.

at 510; see also Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001)


37

(numerosity requirement satisfied “if the named plaintiff demonstrates that the

potential number of plaintiffs exceeds 40”).

Here, Plaintiffs submit that the Settlement Class includes thousands of

individuals throughout the country. Given the number and geographic distribution

of the Settlement Class Members, joinder of all Class Members would be

impracticable, and the proposed Settlement Class easily satisfies Rule 23’s

numerosity requirement. Liberty, 149 F.R.D. at 73.

2. Commonality

“Rule 23(a)(2)’s commonality element requires that the proposed class

members share at least one question of fact or law in common with each other.”

Warfarin Sodium II, 391 F.3d at 527-28. “Commonality does not require perfect

identity of questions of law or fact among all class members. Rather, even a single

common issue will do.” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir.

2015) (internal quotation marks omitted). Here, Plaintiffs also submit that the

Settlement Class Members share many common issues of law and fact.

In the context of consumer fraud and warranty-based class actions, Plaintiffs

state that a class asserting claims based on a common course of conduct and

common warranty satisfies the commonality requirement. Prudential I, 962 F.

Supp. at 511-14. Plaintiffs further state that common questions of whether the

different products that make up the decking share a common defect and whether


38

AZEK was aware of that defect are capable of class wide resolution. Accordingly,

for purposes of this Settlement, Rule 23(a)(2)’s requirement of a common question

of law or fact is satisfied.

3. Typicality

In considering typicality under Rule 23(a)(3), the court must determine

whether “the named plaintiffs[‘] individual circumstances are markedly different or

... the legal theory upon which the claims are based differs from that upon which

the claims of other class members will perforce be based.” Johnston v. HBO Film

Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 2001). Typicality does not require that all

class members share identical claims. Id. So long as “the claims of the named

plaintiffs and putative class members involve the same conduct by the defendant,

typicality is usually established regardless of factual differences.” Newton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-84 (3d Cir. 2001).

Plaintiffs submit that typicality is readily established here. The proposed

Class Representatives each possessed the decking at issue and have asserted that

they experienced the similar damage. Accordingly, they allege that they have put

forth the same injury – the purchase of defective and misrepresented decking – as

the other Class Members, and the typicality requirement is satisfied.

4. Adequacy


39

The adequacy requirement has two components intended to ensure that the

absent class members interests are protected: (a) the named plaintiffs’ interests

must be sufficiently aligned with the interests of the class, and (b) the plaintiffs’

counsel must be qualified to represent the class. GM Trucks, 55 F.3d at 800. Here,

the requirements for adequacy are satisfied.

As for the first component, the court must determine whether “the

representatives’ interests conflict with those of the class.” Johnston, 265 F.3d at

185. Plaintiffs submit that there is no conflict between the proposed Class

Representatives and the Class, because, as with all members of the Class, Plaintiffs

seek compensation for the same allegedly defective decking. The Plaintiffs have

no interests that are antagonistic to or in conflict with the Class they seek to

represent and their alleged injuries are identical to those suffered by Settlement

Class members. See Amchem, 521 U.S. at 625-27 (courts look at whether the

representatives’ interest are in any way antagonistic to or in conflict with those of

the class members).

As far as the adequacy of counsel is concerned, the Class is represented by

Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Kohn, Swift & Graf, P.C.

and Seeger Weiss LLP, law firms with national reputations in the class action field,

as demonstrated by the firm resumes submitted in connection with the Motion for


40

Preliminary Approval. Accordingly, both prongs of the adequacy inquiry are

satisfied.

The Rule 23(b)(3) Factors Are Met

In addition to meeting the requirements of Rule 23(a), the Class also must

satisfy Rule 23(b)(3). Plaintiffs submit that the rule is satisfied here because

questions of law or fact common to the Class Members predominate over any

questions affecting only individual Class Members in light of the proposed

Settlement, which eliminates the need to adjudicate any individual issues, and a

settlement class action is superior to other available methods for the fair and

efficient resolution of this controversy.

1. Predominance

Rule 23(b)(3) requires that “questions of law or fact common to class

members predominate over any questions affecting only individual members.” As

the Supreme Court explained in Amchem, “[p]redominance is a test readily met in

certain cases alleging consumer fraud ….” 521 U.S. at 625. “Common issues

predominate when the focus is on the defendants’ conduct and not on the conduct

of the individual class members.” In re Mercedes-Benz Antitrust Litig., 213 F.R.D.

180, 187 (D.N.J. 2003); see also Amgen Inc. v. Conn. Ret. Plans & Trust Funds,

133 S. Ct. 1184, 1196 (2013) (“Rule 23(b)(3), however, does not require a plaintiff

seeking class certification to prove that every element of her claim is susceptible to


41

classwide proof.”) (internal quotation marks and alterations omitted); Community

Bank, 418 F.3d at 309 (predominance requirement satisfied where “[a]ll plaintiffs’

claims arise from the same alleged fraudulent scheme”; “[t]he presence of potential

state or federal claims that were not asserted by the named plaintiffs does not

defeat a finding of predominance”).

Plaintiffs submit that the key questions posed in this case—whether AZEK’s

decking models share a common defect and whether AZEK was aware of that

defect—are common ones that, if resolved in one stroke, would substantially

advance the litigation. See In re Whirlpool, 722 F.3d at 859 (finding

predominance satisfied in case alleging a similar defect); Butler, 702 F.3d at 362-

63 (same). Further, differences in state law do not defeat predominance in the

settlement context. See Sullivan, 667 F.3d at 299-302 (3d Cir. 2011).

Accordingly, the predominance requirement is satisfied.

2. Superiority

Rule 23(b)(3) also requires that class resolution be “superior to other

available methods for fairly and efficiently adjudicating the controversy.” The

following factors are relevant to the superiority inquiry:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the likely difficulties in managing a class action.


42

Id.; Danvers, 543 F.3d at 149.

The superiority inquiry is simplified in the settlement context, because when

certifying a settlement only class, the Court need not inquire whether the case, if

tried, would pose intractable management problems, for the purpose of the

settlement is to not have a trial. Amchem, 521 U.S. at 620. Moreover, “[f]or the

purposes of settlement, concentrating litigation in one forum is desirable.”

Varacallo v. Mass. Mutual Life Ins. Co., 226 F.R.D. 207, 234 (D.N.J. 2005).

In making this analysis, the district court may take the proposed settlement into

consideration. Prudential II, 148 F.3d at 308; Warfarin Sodium II, 391 F.3d at 529

(“When dealing with variations in state laws, the same concerns with regards to

case manageability that arise with litigation classes are not present with settlement

classes, and thus those variations are irrelevant to certification of a settlement

class.”).

Here, Plaintiffs submit that a class action settlement is the superior method

of resolving the Class Members’ claims. The class action mechanism is superior to

its alternatives, particularly with respect to settlements, because it ensures that the

claims of the absent class members will be resolved efficiently. O’Brien v. Brain

Research Labs, LLC, 2012 WL 3242365, at *9 (D.N.J. Aug. 9, 2012) (finding

superiority because, inter alia, “denying certification would require each consumer

to file suit individually at the expense of judicial economy”). Further, the


43

Settlement provides eligible Class Members the ability to obtain compensatory

relief promptly and contains well-defined claim and administrative procedures to

assure due process for each Class Member. By contrast, individualized litigation

carries with it great uncertainty, risk, and costs, and provides no guaranty that

injured Class Members will obtain necessary and timely compensatory relief at the

conclusion of the litigation. Indeed, because of the expense of maintaining

individual actions, Plaintiffs submit that the denial of class certification here would

effectively prevent certain individuals from asserting their claims against

Defendants. See, e.g., Phillips Petroleum Co. v. Schutts, 472 U.S. 797, 809 (1985)

(class action plaintiffs’ claims are uneconomical to litigate individually);

Varacallo, 226 F.R.D. at 234 (“Without question, class adjudication of this matter

will achieve an appreciable savings of effort, time and expense, and will promote

uniformity of decision on the issues resolved and to which the parties will be

bound.”).

IV. The Attorneys’ Fee Application Should Be Approved

A. The Requested/Agreed Upon Attorneys’ Fees, Expenses, and Incentive Awards Should be Awarded.

Under the terms of the Settlement Agreement, if ordered by the Court,

AZEK agreed to pay attorneys’ fees and expenses of up to $5,250,000. Settlement

Agreement, ¶ 9.1. The fee award is entirely separate from, and does not diminish

in any way, the class relief or Class Representative Service Awards. For the


44

reasons set forth below, this award of attorneys’ fees and expenses is reasonable

and should be approved by the Court.

The award of attorneys’ fees in a class action settlement is within the Court’s

discretion. Rossi v. Procter & Gamble Co., 2013 WL 5523098, at *9 (D.N.J. Oct.

3, 2013). In addition, relevant to this agreed-upon award, the Supreme Court has

recognized a preference of allowing litigants to resolve fee issues through

agreement. Hensley v. Eckhart, 461 U.S. 424, 437 (1983). “A request for

attorney’s fees should not result in a second major litigation.” Id. In this District,

Courts routinely approve agreed-upon attorney’s fees when the amount is

independent from the class recovery and does not diminish the benefit to the class.

E.g., Mirakay v. Dakota Growers Pasta Co., Inc., 2014 WL 5358987, at *11

(D.N.J. Oct. 20, 2014); Rossi, 2013 WL 5523098, at *9; Pro v. Hertz Equipment

Rental Corp., 2013 WL 3167736, at *6 (D.N.J. June 20, 2013); In re LG/Zenith

Rear Projection Television Class Action Litigation, 2009 WL 455513, at *8

(D.N.J. Feb. 18, 2009). Where the attorneys’ fees are paid independent of the

award to the class, the Court’s fiduciary role in overseeing the award is greatly

reduced because there is no potential conflict between the attorneys and class

members. Mirakay, 2014 WL 5358987, at *11; Rossi, 2013 WL 5523098, at *9

(citing McBean v. City of New York, 233 F.R.D. 377, 392 (S.D.N.Y. 2006).

While the Court is not bound by the agreement of the parties, the fact that


45

the award is the product of arms-length negotiations weighs strongly in favor of

approval. Rossi, 2013 WL 5523098, at *10. “[T]he benefit of a fee negotiated by

the parties at arm’s length is that it is essentially a market-set price—[defendant]

has an interest in minimizing the fee and Class Counsel have an interest in

maximizing the fee to compensate themselves for their work and assumption of

risk.” Id. Here, these standards clearly counsel in favor of approving the requested

fee. It was the product of a long and difficult negotiation, which occurred only

after the parties had reached agreement on the substantive relief to the Class.

B. The Requested Award Is Presumptively Fair and Reasonable Where that Award Will Not Diminish the Settlement Fund

The Federal Rules of Civil Procedure expressly authorize that “the court

may award reasonable attorney’s fees and nontaxable costs that are authorized by

law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Federal courts at all

levels encourage litigants to resolve fee issues by agreement whenever possible.

As the United States Supreme Court explains, “[a] request for attorney’s fees

should not result in a second major litigation. Ideally, of course, litigants will

settle the amount of a fee.” Hensley, 461 U.S. at 437; see also Johnson v. Georgia

Hwy. Exp., Inc., 488 F.2d 714, 720 (5th Cir. 1974) (“In cases of this kind, we

encourage counsel on both sides to utilize their best efforts to understandingly,

sympathetically, and professionally arrive at a settlement as to attorney’s fees.”);


46

M. Berenson Co., Inc. v. Faneuil Hall Marketplace, Inc., 671 F. Supp. 819, 829 (D.

Mass. 1987) (“Whether a defendant is required by statute or agrees as part of the

settlement of a class action to pay the plaintiffs’ attorneys’ fees, ideally the parties

will settle the amount of the fee between themselves.”). Accordingly, courts

regularly approve agreed-upon attorneys’ fees awards paid by the defendant, rather

than the class members, especially where that amount does not decrease the benefit

obtained for the class. See LG/Zenith, 2009 WL 455513, at *8-9 (approving

agreed upon attorneys’ fee award that did not diminish the settlement fund); In re

Ins. Brokerage Antitrust Litig., 2007 WL 1652303, at *4 (D.N.J. June 5, 2007),

aff’d, 579 F.3d 241 (3d Cir. 2009)); In re Prudential Ins. Co. of Am. Sales Practice

Litig., 106 F.Supp.2d 721, 732 (D.N.J. 2000) (finding it significant that attorneys’

fees would not diminish settlement fund). See also McBean, 233 F.R.D. at 392

(granting class counsel full amount of fees agreed to by defendant where the

attorneys’ fees were separate from the class settlement and did not diminish the

class settlement); In re Sony SXRD Rear Projection Television Class Action Litig.,

2008 WL 1956267, at *15-*16 (S.D.N.Y. May 1, 2008) (same); Dupler v. Costco

Wholesale Corp., 705 F.Supp.2d 231, 245 (E.D.N.Y. 2010) (same); Bezio v. Gen.

Elec. Co., 655 F.Supp.2d 162, 167-68 (N.D.N.Y. 2009) (same); DeHoyos v.

Allstate Corp., 240 F.R.D. 269, 322 (W.D. Tex. 2007) (same).


47

Here, AZEK has agreed not to object to paying Class Counsel a fixed sum of

$5,250,000 in attorneys’ fees and expenses in connection with the relief obtained

for the Class, subject to the Court’s approval. This award of attorneys’ fees and

costs is completely separate and apart from the relief available to the Class and,

thus, will not reduce the relief to the Class in any manner. Furthermore, attorneys’

fees were not negotiated or discussed until after agreement was reached between

the parties on all other terms of the settlement. Cecchi Decl. ¶ 13.

Moreover, the fee arrangement was negotiated under the best of market

conditions – an arm’s-length negotiation – a process which the courts have

encouraged. Matter of Cont’l Ill. Sec. Litig., 962 F.2d 566, 568-70 (7th Cir. 1992)

(market factors, best known by the negotiating parties themselves, should

determine the quantum of attorneys’ fees). The virtue of a fee negotiated by the

parties at arm’s-length is that it is, essentially, a market-set price. AZEK has an

interest in minimizing the fee; Class Counsel have an interest in maximizing the

fee to compensate themselves (as the case law encourages) for their risk,

innovation, and creativity; and the negotiations are informed by the parties’

knowledge of the work done and result achieved and their views on what the Court

may award if the attorneys’ fees award were litigated.

Because the fee arrangement in this case was negotiated by experienced

counsel at arm’s-length, judicial deference to the parties’ fee agreement is


48

warranted. In re First Capital Holdings Corp. Fin. Prod. Sec. Litig., 1992 WL

226321, at *4 (C.D. Cal. June 10, 1992) (stating that the court should be reluctant

to disturb agreed-upon attorneys’ fees where class counsel negotiated the fee with

sophisticated defense counsel who were familiar with the case, risks, amount and

value of class counsel’s time, and nature of the result obtained for class), appeal

dismissed for class member’s lack of standing, 33 F.3d 29 (9th Cir.1994),

superseding 19 F.3d 470 (9th Cir. 1994); Ingram v. Coca-Cola Co., 200 F.R.D.

685, 695 (N.D. Ga. 2001) (giving “substantial weight to a negotiated fee amount”);

In re Apple Computer, Inc. Deriv. Litig., 2008 WL 4820784, at *3 (N.D. Cal. Nov.

5, 2008) (“A court should refrain from substituting its own value for a properly

bargained-for agreement.”); Cohn v. Nelson, 375 F.Supp.2d. 844, 861 (E.D. Mo.

2005) (“[W]here, as here, the parties have agreed on the amount of attorneys’ fees

and expenses, courts give the parties’ agreement substantial deference.”); In re

AXA Fin., Inc., 2002 WL 1283674, at *7 (Del. Ch. May 22, 2002) (“Where, as

here, the fee is negotiated after the parties have reached an agreement in principle

on settlement terms and is paid in addition to the benefit to be realized by the class,

this court will also give weight to the agreement reached by the parties in relation

to fees.”).

Additionally, as explained in McBean, 233 F.R.D. at 377, a court need not

review an application for attorneys’ fees with a heightened level of scrutiny where,


49

as here, the parties have contracted for an award of fees that will not be paid from a

common fund. “If money paid to the attorneys comes from a common fund, and is

therefore money taken from the class,” the court reasoned, “then the Court must

carefully review the award to protect the interests of the absent class members.”

Id. at 392. “If, however, money paid to the attorneys is entirely independent of

money awarded to the class, the Court’s fiduciary role in overseeing the award is

greatly reduced, because there is no conflict of interest between attorneys and class

members.” Id. The McBean court concluded that the parties’ agreement for

attorneys’ fees was objectively reasonable because it was the product of arm’s-

length negotiations. Id. In short, Class Counsel’s requested award of $5,250,000

in connection with conferring a substantial benefit on the Class is presumptively

reasonable where that award will not diminish the settlement fund.

C. The Factors Governing Approval Of Attorneys’ Fees and Expenses Support The Requested Amount

1. Class Counsel Obtained a Substantial Benefit for Settlement

Class Members

The reasonableness of attorney-fee awards in class action cases are

traditionally viewed under the factors enunciated in Gunter v. Ridgewood Energy

Corp., 223 F.3d 190, 195 n. 1 (3d Cir. 2000). The first two Gunter factors, (1) the

number of persons benefitted; and (2) the presence or absence of substantial

objections by members of the class to the settlement terms and/or fees requested by


50

counsel, plainly weigh in favor of approving the requested attorneys’ fees and

expenses. Here, over 4,000 individuals received direct notice, and millions of

internet and media impressions ensured that thousands more were informed of their

settlement rights. Class Members may receive up to $2,000 for each AZEK deck.

Thus, Class Counsel negotiated a sizeable and meaningful Settlement for the Class.

Given the inherent litigation risks in this putative nationwide class action, the

benefit is highly significant as it provides tangible benefits without the risks and

delays of continued litigation.

To date, three requests for exclusion and three objections have been

received. These numbers indicate a highly positive response to the Settlement. See

Bell Atlantic Corp. v. Bolger., 2 F.3d at 1314, n.15 (3d Cir. 1993) (silence is “tacit

consent” to settlement); In re CertainTeed Corp. Roofing Shingle Products

Liability Litigation, 269 F.R.D. 468, 485 (E.D.Pa. 2010) (“The Third Circuit has

looked to the number of objectors from the class as an indication of the reaction of

the class.”). The lack of any meaningful negative response to the Settlement

evinces the quality and value of the Settlement. Class Counsel will provide a final

tally of the exclusions and will respond fully to the substance of the objections in a

separate brief. The data to date, however, reflects overwhelming support from the

Class. Class Counsel should, accordingly, be appropriately rewarded for their

achievement.


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As detailed in Plaintiffs’ Memorandum in Support of Motion for Preliminary

Approval, this Settlement provides a substantial benefit to the Class. Settlement

Class Members who submit timely and complete claims may receive up to 10% of

what they paid for their AZEK Decking Boards, up to a limit of $2,000 per

claimant (subject to offsets if previously compensated by CPG) and restricted to

one claim per residential property address.

2. Class Counsel Brought This Matter to an Efficient Conclusion

Class Counsel’s success in bringing this litigation to a successful conclusion

is perhaps the best indicator of the experience and ability of the attorneys involved.

In re AremisSoft Corp. Sec. Litig., 210 F.R.D. 109, 132 (D.N.J. 2002) (“the single

clearest factor reflecting the quality of the class counsels’ services to the class are

the results obtained”). The quality of the work which has been presented to the

Court, the undersigned believe, speaks for itself. Facing the substantial risk of

further litigation, as discussed above, Class Counsel’s results here are substantial.

Class Counsel have delivered a significant benefit to the Class in the face of

numerous potentially fatal obstacles.

The fact that a case settles as opposed to proceeding to trial “in and of itself,

is never a factor that the district court should rely upon to reduce a fee award. To

utilize such a factor would penalize efficient counsel, encourage costly litigation,

and potentially discourage able lawyers from taking such cases.” Gunter, 223 F.3d


52

at 198. Further, in achieving the Settlement before the Court, Class Counsel

invested significant time and worked for several years to bring this Settlement

about.

The quality and vigor of opposing counsel is also relevant in evaluating the

quality of the services rendered by Class Counsel. See, e.g., In re Ikon Office

Solutions, Inc. Securities Litigation, 194 F.R.D. 166, 194 (E.D.Pa. 2000); In re

Warner Communications Securities Litigation, 618 F. Supp. 735, 749 (S.D.N.Y.

1985) (“The quality of opposing counsel is also important in evaluating the quality

of plaintiffs’ counsels’ work.”); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F.Supp.2d

941, 970 (E.D. Tex. 2000). CPG was ably represented by counsel from Shook,

Hardy & Bacon, one of the most capable firms in the country.

Class Counsel’s ability to obtain the Settlement for the Class in the face of a

formidable opponent further confirms the high quality of Class Counsel’s

representation. Accordingly, Class Counsel respectfully submit that the third

Gunter factor, the skill and efficiency of the attorneys involved, strongly supports

their application.

3. Class Counsel Undertook the Risk of Non-Payment

Class Counsel undertook this action on an entirely contingent fee basis,

assuming a substantial risk that the litigation would yield no, or very little,

recovery and leave them uncompensated for their time as well as for their


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substantial out-of-pocket expenses. Courts across the country have consistently

recognized that the risk of receiving little or no recovery is a major factor in

considering an award of attorneys’ fees. See, e.g., Warner Communications, 618

F. Supp. at 747-49 (citing cases). As one court stated:

Counsel’s contingent fee risk is an important factor in determining the fee award. Success is never guaranteed and counsel faced serious risks since both trial and judicial review are unpredictable. Counsel advanced all of the costs of litigation, a not insubstantial amount, and bore the additional risk of unsuccessful prosecution.

In re Prudential-Bache Energy Income Partnerships Securities Litigation, 1994

WL 202394, at *6 (E.D. La. May 18, 1994).

Despite the litigation risks, Class Counsel were able to forge a resolution

that provides significant present relief to the Class, including substantial monetary

benefits. Thus, there is little doubt that Class Counsel undertook a significant risk

here and the fee award, respectfully, should reflect that risk.

4. Class Counsel Devoted Significant Time to This Case

Since its inception, Class Counsel have expended over 18,000 hours and

incurred nearly $11 million in attorneys’ fees and in excess of $1.2 million in out-

of-pocket expenses on this litigation. See Cecchi Decl. ¶¶ 7-9, Exs. 3-10. This

includes, inter alia: the time spent in the initial investigation of the case;

researching complex issues of law; preparing and filing the initial and amended

complaints; preparing and conducting depositions; engaging in written discovery;


54

reviewing documents produced by Defendant; working with expert witnesses and

assisting in the compilation of expert reports, hard-fought settlement negotiations;

documenting the Settlement; researching and briefing issues relating to the

preliminary and final approval of the Settlement; and further time to be spent in

arguing final approval. See id. Indeed, Class Counsel’s submission today does not

include time to be spent going forward – both in preparing and presenting

arguments on final approval, defending the settlement from any appellate or other

attacks that may result, or assisting class members with the claims process.

D. The Lodestar Cross-Check Supports That the Requested Fees and Expenses Are Fair and Reasonable

Even though the fact that a fee is negotiated weighs in favor of approval, the

Court may also perform a lodestar cross-check to determine the reasonableness of

the fee. Rossi, 2013 WL 5523098, at *10; LG/Zenith Rear Projection, 2009 WL

455513, at *8. In determining the lodestar for cross-check purposes, the Court

need not engage in a “full-blown lodestar inquiry.” In re AT&T Corp., 455 F.3d

160, 169 n.6 (3d Cir. 2006). Indeed, where there have been no objections to the

lodestar calculations, “a full-blown lodestar analysis is an unnecessary and

inefficient use of judicial resources.” Dewey v. Volkswagen of America, 728

F.Supp.2d 546, 592 (D.N.J. 2010). To calculate the lodestar amount, counsel’s

reasonable hours expended on the litigation are multiplied by counsel’s reasonable


55

rates. See Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S.

546, 565 (1986). Here, the lodestar method confirms the reasonableness of the

percentage fee being sought as the lodestar represents negative multiplier.

Class Counsel and their staff have expended over 18,000 hours on this case.

The hours recorded were incurred on matters for the benefit of the litigation and

representation of their clients. Such tasks include: investigation of the case and

claims; preparing the complaint and subsequent amended complaints, taking

discovery including review of the documents and data produced by Defendant;

extensive and lengthy settlement discussions; documenting the Settlement;

documenting and implementing the Settlement Class notice plan; litigating the

various motions precipitated by the Settlement; and litigating the approval of the

Settlement. Given the effort expended and the complexity of the legal and factual

issues involved, the hours incurred are entirely reasonable.

Moreover, the hourly rates vary appropriately between attorneys and

between paralegals, depending on the position, experience level, and locale of the

particular attorney. Cecchi Decl. at Exs. 3-10; see also Gunter, 223 F.3d at 195.

Taking into account the several factors discussed above, including the

economic benefits of the Settlement, the complexity and risk of the litigation, and

the skill and experience of counsel, Class Counsel’s rates are reasonable in this

case. Altogether, this yields a collective lodestar based solely on the time for Class


56

Counsel, of nearly $11 million in lodestar, and a total of $1,206,879.00 in

expenses, which will be paid entirely from the single $5,250,000 award sought.

Notably, the fees and expenses sought represent less than half of the actual

expenses and the actual lodestar expended, and this does not account for the

additional work and effort that remains to be expended by Class Counsel to bring

this litigation to a close.

E. The Class Representative Service Awards Should be Approved

Service awards for class representatives promote the public policy of

encouraging individuals to undertake the responsibility of representative lawsuits.

The efforts of the Class Representatives were instrumental in achieving the

Settlement on behalf of the Class and justify the awards requested here. The Class

Representatives came forward to prosecute this litigation for the benefit of the

class as a whole. They sought successfully to remedy a widespread wrong and

have conferred valuable benefits upon their fellow class members. The Class

Representatives provided a valuable service to the class by: (a) providing

information and input in connection with the drafting of the complaints; (b)

overseeing the prosecution of the litigation; (c) participating in discovery and

sitting for deposition; (d) making their decks available for inspection; (e)

consulting with counsel during the several years of the litigation; and (f) offering

advice and direction at critical junctures, including the Settlement of the litigation.


57

A $5,000 incentive award for each of the Class Representatives in recognition of

their services to the Class is modest under the circumstances, and well in line with

awards approved by federal courts in New Jersey and elsewhere. Bernhard v. TD

Bank, N.A., 2009 WL 3233541, at *2 (D.N.J. 2009) (“[C]ourts routinely approve

incentive awards to compensate named plaintiffs for services they provided and

the risks they incurred during the course of the class action litigation.”) (quoting

Cullen, 197 F.R.D. at 145); McGee, 2009 WL 539893 at *18 (quoting In re

Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 400 (D.D.C.2002))

(“Incentive awards are ‘not uncommon in class action litigation and particularly

where ... a common fund has been created for the benefit of the entire class.’ ”); In

re Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 263 F.R.D.

226, 245 (E.D.Pa. 2009) (awarding representative plaintiffs incentive payments in

the amounts of $10,500 and $5,000, for a total of $115,000, finding those amounts

to be “reasonable compensation considering the extent of the named plaintiffs’

involvement and the sacrifice of their anonymity.”); Bezio, 655 F. Supp. 2d at

168 (incentive awards in the amount of $5,000 each are “within the range of

awards found acceptable for class representatives.”). Here, as with the negotiated

fee-and-expense award, the incentive awards of $5,000 to each Class

Representative are particularly uncontroversial as no Settlement Class Member

has objected to the incentive awards. Plaintiffs and Class Counsel respectfully


58

request that the incentive awards provided for in Section 9.2 of the Settlement

Agreement be approved.

F. Class Counsels’ Expenses are Reasonable and Should Be Approved

In addition to being entitled to reasonable attorneys’ fees, it is well-settled

that prevailing Plaintiffs’ attorneys are “entitled to reimbursement of reasonable

litigation expenses.” E.g., Carroll v. Stettler, No. 10-2262, 2011 U.S. Dist. LEXIS

121185, at *26 (E.D. Pa. Oct. 19, 2011) (citing In re GMC Pick-Up Fuel Tank

Prods. Liab. Litig., 55 F.3d 768, 820 n.39 (3rd Cir. 1995)).

Class Counsel’s out-of-pocket expenses incurred in this litigation currently

total approximately $1,206,879. Cecchi Decl. at ¶ 9. The expenses are of the type

typically billed by attorneys to paying clients in the marketplace and include such

costs as copying fees, expert fees, computerized research, travel in connection

with this litigation, and discovery expenses. All of the expenses were reasonable

and necessary for the successful prosecution of this case and should be approved.

Further, Class Counsel will incur additional expenses on this case going forward,

including working with Dahl Administration, communicating with Settlement

Class Members, and attending the Final Approval Hearing. As a part of their

Settlement Agreement, the parties agreed that Plaintiffs would seek attorneys’ fees

and reimbursement of expenses not to exceed a total of $5,250,000. Class Counsel

accordingly requests that the Court approve this amount.


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CONCLUSION

Because the Settlement that Plaintiffs reached with CPG is fair, reasonable,

and adequate, and because the Settlement Class meets all applicable requirements

of Rule 23(a) and 23(b)(3), Plaintiffs respectfully submit that certification of the

class, payment of the incentive awards, and final approval of the Settlement is

warranted. In addition, because the award of attorneys’ fees and reimbursement of

expenses are justified, Plaintiffs respectfully submit that they should be approved.

Dated: January 22, 2018 CARELLA, BYRNE, CECCHI,

OLSTEIN, BRODY & AGNELLO P.C. By: /s/ James E. Cecchi JAMES E. CECCHI Lindsey H. Taylor Donald A. Ecklund 5 Becker Farm Road Roseland, New Jersey 07068 (973) 994-1700 Christopher A. Seeger Parvin K. Aminolroaya SEEGER WEISS LLP 55 Challenger Road Ridgefield Park, New Jersey 07660 (973) 639-9100


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Jonathan Shub KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Jamie Weiss Richard J. Burke QUANTUM LEGAL LLC 513 Central Ave., Suite 300 Highland Park, Illinois 60035 (847) 433-4500 Charles E. Schaffer LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, Pennsylvania 19106 Phone: 877.882.1011 FAX: 215.592.4663 Harris L. Pogust Andrew J. Sciolla POGUST BRASLOW & MILLROOD, LLC Eight Tower Bridge, Suite 1520 161 Washington Street Conshohocken, Pennsylvania 19428 (610) 941-4204

Attorneys for Plaintiffs and the Settlement Class


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CERTIFICATE OF SERVICE

I hereby certify that I caused the foregoing to be electronically filed

the with the CM/ECF system. Those attorneys who are registered with the

Electronic Filing System may access this filing through the Court’s System, and

notice of this filing will be sent to these parties by operation of the Court’s

Electronic Filing System.

DATED: January 22, 2018 CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.

s/ James E. Cecchi

JAMES E. CECCHI


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