Full opinion text
ORDER ON PARTIES’ REQUEST FOR FINAL APPROVAL OF PROPOSED SETTLEMENT CECILIA M. ALTONAGA, District Judge. This class action lawsuit, similar to other suits previously filed and still pending against Defendant, concerns claims by Plaintiffs, Manuel Figueroa (“Figueroa”) and Dixie M. Garner (“Garner”), that (1) Defendant, Sharper Image Corp. (“Sharper Image”), falsely advertised that the Ionic Breeze® ah' purifier cleans and purifies the air, and (2) the Ionic Breeze® is harmful because it emits ozone in excess of 50 parts per billion (“ppb”). The case is now before the Court on the parties’ request that the Court grant final approval to the Third Amended Settlement Agreement, following preliminary approval given to an earlier version of the Agreement on January 2007, and a final fairness hearing held on August 16 and 17, 2007. The essence of the current proposed settlement is to give class members $19 coupons, or merchandise credits, for use at Sharper Image retail stores, an OzoneGuard to protect against ozone emission, injunctive remedies, and to award Class Counsel close to $2 million in fees and costs. The Court has carefully considered the parties’ voluminous written submissions, the papers filed by several objectors and Amicus Curiae, the oral arguments presented, the entire record in this case, and applicable law. I. BACKGROUND A. Procedural History Prior to Proposed Settlement of the Case On May 6, 2005, Figueroa, individually and on behalf of all consumers in the United States who purchased “Ionic Breeze®” or other ionizing air purifiers from Sharper Image, filed the present suit. The original Complaint asserted claims for breach of contract, breach of warranty, money had and received, and unjust enrichment, based on Defendant’s allegedly unlawful conduct of marketing and selling ionizing air purifiers that do not remove impurities from the air and that fail to perform as advertised and sold. Furthermore, the Complaint alleged the ionizing air purifiers exposed consumers to hazardous levels of ozone. On July 5, 2005, Sharper Image filed a Motion to Stay, Abate, Dismiss or Transfer [D.E. 14] the case on the ground that the lawsuit was a “copy cat” of several cases pending in California and another case pending in Florida. Before responding to the Motion to Stay, Figueroa filed his Motion to Amend Class Action Complaint, seeking to add as a defendant Zen-ion Industries, Inc. (“Zenion”), the inventor of the ionizing air purifiers at issue. As a result, the Motion to Stay was denied as moot, and Plaintiff was allowed leave to amend. An Amended Class Action Complaint filed on August 5, 2005 added Zenion as a party, and stated the same claims previously raised, while adding a conspiracy claim and a federal law claim pursuant to the Magnuson-Moss Federal Warranty Act, 15 U.S.C. §§ 2301, et seq.. Zenion responded to the Amended Complaint by seeking a dismissal under Fed.R.Civ. P.12(b)(6), for failure to state a claim, and under Fed.R.Civ.P. 12(b)(2), for lack of jurisdiction. In its Motion, Zenion also stated its addition to the suit “is nothing more than a thinly disguised attempt to differentiate this action from the lawsuits pending in California in deference to which co-defendant Sharper Image ... sought an Order of Stay.” (Mot and Mem. of Law [D.E. 37] at 1). Sharper Image responded to the Amended Complaint by renewing its Motion to Stay, Abate, Dismiss or Transfer [D.E. 39]. In the Renewed Motion to Stay, Sharper Image argued: (1) the addition of Zenion did not distinguish this case from the consolidated actions that had been proceeding in California state court for over a year; (2) the Court lacked jurisdiction; and (3) no claims were stated against, Sharper Image’s licensor, Zénion. (See id. at 18). Because Plaintiff and Sharper Image requested time to conduct jurisdictional discovery to address Zenion’s Motion to Dismiss, a proposed hearing on the Motion to Dismiss was postponed, and the Motion was administratively terminated. The Motion to Stay was, however, addressed at a hearing held on November 16, 2005, and was denied. The undersigned explained in her Order of December 13, 2005 [D.E. 61] that parallelism between this and the other pending state actions did not exist because “there exist both a party and causes of action in the present case that are not present in the pending state court actions.” (Order of Dec. 13, 2005 at 4). The related request for a transfer was similarly denied. Sharper Image filed its Answer to the Amended Complaint on March 3, 2006 [D.E. 78], raising eighteen affirmative defenses. On May 11, 2006, Zenion filed a second Motion to Dismiss [D.E. 94] on the ground previously raised, following the jurisdictional discovery taken. On July 3, 2006, Plaintiffs filed their Motion for Class Certification under seal. Following Sharper Image’s Motion to Set a Briefing Schedule [D.E. 136], the parties were given a briefing schedule, establishing, inter alia, deadlines for class action expert discovery and the filing and briefing of Defendant’s opposition to Plaintiffs’ Motion for Class Certification, which would be due on September 15, 2006. (See July 12, 2006 Order [D.E. 139]). The hearing on the Motion for Class Certification was fixed by that Order to take place on November 2, 2006. The Opposition Memorandum was filed on October 2, 2006 [D.E. 172], also under seal. In the meantime, by Order dated August 11, 2006 [D.E. 148], the undersigned granted Zenion’s Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(2), finding the Court lacked personal jurisdiction over Zenion under the Florida long arm statute, and the exercise of jurisdiction over Zen-ion would not comport with the due process requirements of the Fourteenth Amendment. On the eve of the class certification hearing, with Zenion no longer in the case, and in the absence of merits discovery having taken place, the parties advised the Court they had reached an agreement on all aspects of the class claims on a nationwide basis, and that what remained to be resolved was the issue of attorney’s fees. (See Nov. 2, 2006 Tel. Hearing). The parties requested the hearing on class certification be continued and they be given 30 days to present a “complete package” to the Court. (See id.). The ore tenus motion was granted, and at the later request of Sharper Image [D.E. 193], the minutes of the hearing were removed from the docket and placed under seal. By another set of papers filed under seal, the parties gave the Court a status report, advising they had made significant progress since the November 2 hearing in arriving at a settlement, and requesting the class certification hearing originally scheduled for November 2, 2006 be continued by ten days, from December 1, 2006 to December 11, 2006 [D.E. 203]. On November 27, 2006, court-appointed counsel in a certified national class action set for trial in California, the Mercedes Robertson v. Sharper Image Corp. case, notified the Court of the earlier-filed national class action and moved for disclosure of some of the sealed documents filed in this case. (See Notice of Certified Class Action [D.E. 196]). In the Notice, counsel for Mercedes Robertson also requested notice of future proceedings. (See id.). Robertson’s counsel stated he had “reason to believe that the parties here are attempting to settle the claims belonging to the California Actions class, without the knowledge or consent of the class representatives or Class Counsel. Counsel for the parties to this lawsuit have refused all informal efforts to answer this question.” (Id. at 2). On December 13, 2006, the undersigned held a hearing, and, over objection of the parties, required Sharper Image to disclose certain documents. (See Dec. 13, 2006 Order [D.E. 208]). At that hearing, the undersigned expressed her concern over the parties’ practice of filing documents under seal in a purported class action lawsuit. The undersigned also commented on the absence of any renewed request by Sharper Image to stay this case in favor of the earlier-filed California actions after Zenion was dismissed from this case. (See Dec. 13, 2006 Hearing Tr. [D.E. 209] at 21). Counsel for Sharper Image explained its position that “[t]here are competing class actions that take place and there are instances where one case is settled over the other case, and that’s all that’s really going on here.” (Id. at 23). At the conclusion of the hearing, the parties agreed the hearing on the motion for class certification would be held on February 5, 2007. (See Dec. 13, 2006 Order [D.E. 208]). Before the hearing could be held, on January 16, 2007, the parties filed a Joint Motion for Preliminary Approval of Settlement, Conditional Certification of the Settlement Class, etc. [D.E. 212], attaching to the Motion the parties’ Settlement Agreement and a proposed Second Amended Complaint. The essence of this first Settlement Agreement was to provide to class members, limit one per household, a $19 merchandise credit, valid for one year, for use at Sharper Image retail stores on Sharper Image branded products. The first Agreement also provided class members the ability to purchase (during a six-month period of time) an OzoneGuard attachment, for Ionic Breeze® floor models only, for $7. Sharper Image also agreed to make modifications with respect to its advertisements of the Ionic Breeze®, for example, to not state that the Ionic Breeze® is a medical device and to remove the British Allergy Foundation and the Asthma and Allergy Foundation of America seals from its advertising. The Joint Motion also explained that the present class action, while presenting factual and legal claims parallel to the California actions and the Florida state court action, was significantly broader than those actions in terms of the size of the class; and the scope of the relief, the breadth of the law implicated, and the scope of the legal claims sought to be amended. (See id. at 8). While the operative pleading, the Amended Complaint, stated claims for breach of contract, breach of express warranty, breach of implied warranty, unjust enrichment, money had and received, and conspiracy, the proposed Second Amended Complaint added express claims under the various state consumer protection statutes, including statutory claims under the laws of every state in the United States for false advertising and unfair competition. (See id. at 10). In contrast, the California actions were limited to claims under California state law. (See id.). The Joint Motion also sought a stay and preliminary injunction, enjoining the competing actions in order to facilitate an efficient and expeditious settlement and approval process, and to preserve the Court’s jurisdiction to adjudicate the settlement. Several objectors sought leave to intervene to object to the proposed Settlement Agreement, among them Mercedes Robertson (“Robertson”) and Alicia Bryant (“Bryant”). At the preliminary approval hearing of January 23, 2007, Plaintiffs’ counsel represented “to the Court as an officer of the Court that this settlement is the best settlement that can be obtained for this class with this company, and that’s the simple fact of the matter and that’s why it ought to be approved.” (Jan. 23, 2007 Hearing Tr. [D.E. 247] at 68). The parties represented that Sharper Image was in a precarious financial position. Following the January 23 hearing, the undersigned denied without prejudice the Joint Motion for Preliminary Approval of Settlement, and granted the parties’ request to file a Second Amended Complaint. (See Jan. 24, 2007 Order [D.E. 238]). On January 24, 2007, the parties submitted a Renewed Joint Motion for Preliminary Approval of Settlement, etc. [D.E. 240], including an Amended Settlement Agreement that addressed some of the undersigned’s concerns with the first Settlement Agreement, expressed at the January 23, 2007 hearing. Specifically, the parties clarified language concerning an earlier release of claims for personal injury, and removed a non-disparagement provision. By Order dated January 25, 2007 [D.E. 245], the Court preliminarily approved the Amended Settlement Agreement, certified a class solely for purposes of settlement, appointed Figueroa and Garner as class representatives, approved the class notice, enjoined the Robertson, Potter, Cox, and Bryant proceedings pending against Sharper Image, conditionally appointed settlement Class Counsel, and preliminarily found the Amended Settlement Agreement to be fair, adequate, and reasonable. The date for the final fairness hearing was set for August 16, 2007. In their initial Joint Motion for Preliminary Approval, with respect to the standards governing preliminary approval, the parties stated as follows: Preliminary approval is the first of a two-step process for approval of a proposed class action settlement under Rule 23 of the Federal Rules of Civil Procedure. In this first step, the court simply determines whether the proposed settlement falls within the range of possible approval and whether it is reasonable to issue notification to settlement class members of the settlement’s terms. In the second step, after notice to the class and an opportunity for absent settlement class members to object or otherwise be heard, the court will determine whether to grant final approval of the settlement as fair and reasonable under Federal Rule of Civil Procedure 23. (See Alba Conte & Herbert B. Newberg, Newberg on Class Actions, § 11.25 (4th ed.2002), citing Manual for Complex Litigation (Third) § 30.41 (1995).) Preliminary approval of a proposed class action settlement does not involve a determination of the merits of the proposed settlement or affect the substantive rights of any class member. (Barabin v. Aramark Corp., 210 F.R.D. 152, 157 (E.D.Pa.2002) [“plaintiffs have no obligation to ‘prove’ their case at this point and the court’s resolution of the class motion is limited to ascertaining whether the requirements of Rule 23(a) and (b) are met.”], citing In re Ikon Office Solutions, Inc., 191 F.R.D. 457, 462 (E.D.Pa.2000).) Rather, the purpose of preliminary approval is solely to communicate the proposed settlement to the class, review and approve the proposed form of notice to the class, and to authorize the manner and form of dissemination of the notice. (Newberg on Class Actions at § 11.25 [“If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious deficiencies ... and appears to fall within the range of possible approval, the court should direct that” notice issue and should schedule a final approval hearing, (citation omitted.)].) (Joint Mot. for Prelim. Approval of Settlement at 16-17). By granting preliminary approval, the undersigned merely confirmed the proposed settlement fell within the range of possible approval, and communicated that proposal to the class. B. Plaintiffs ’ Allegations Plaintiffs submitted their Second Amended Class Action Complaint (“SAC”) as an exhibit to the Affidavit of Stephen J. Rowe, filed in support of the parties’ Joint Motion for Preliminary Approval of Settlement and Other Relief [D.E. 214]. The SAC is filed by Plaintiffs, Figueroa and Garner, individually and as private attorneys general on behalf of all persons who, after April 1, 1999, purchased in or from a location in the United States one of Sharper Image’s Ionic Breeze® Silent Air Purifiers, identified by their several model numbers and names. Plaintiffs allege that in marketing the Ionic Breeze®, Sharper Image either explicitly or implicitly made representations to consumers that the product was effective; efficiently cleaned and purified air; eliminated and reduced pollen, animal dander, and other contaminants from the air; was effective in providing germicidal protection by killing bacteria, viruses, and mold; was suitable to clean the air in a 500 square foot room and in rooms larger than 7 by 7 feet; provided relief from asthma and allergies; was superior to High Efficiency Particular Arresting (HEPA) air purifiers; and produced beneficial levels of ozone. The SAC also includes allegations that the Ionic Breeze® does not perform as represented and exposes consumers to hazardous levels of ozone. In addition, Plaintiffs allege the following: Sharper Image’s representations were made negligently, knowingly, recklessly, willfully, and/or intentionally, and are unfair, misleading, deceptive, untrue, fraudulent, and violate various common law and statutory provisions; in marketing and selling the product, Sharper Image negligently, knowingly, recklessly, willfully, or intentionally concealed, failed to disclose, or hid from consumers and the general public that the product produces harmful levels of ozone in excess of 50 ppb, in excess of UL 867 standard for consumer products, and in excess of U.S. safety requirements; and the product is ineffective as an air purifier, as evidenced by its low CADR rating. Plaintiffs allege they relied on the misrepresentations or concealments in purchasing the Ionic Breeze® and suffered damage as a result. The proposed class is defined as consisting of all persons who, after April 1, 1999, purchased in or from a location in the United States an Ionic Breeze®. Plaintiffs assert nationwide certification would not require multiple subclasses based on divergent laws because the legal standards governing Sharper Image’s unlawful conduct are consistent across the United States. According to Plaintiffs, express warranties in the sale of goods are created by section 2-313 of the Uniform Commercial Code (“UCC”), and its provisions are virtually identical across the various states’ laws. The “landscape of implied warranties” (SAC at 13) is similarly dominated by the UCC in that section 2-314 has been adopted in virtually all U.S. jurisdictions. Moreover, Plaintiffs contend every jurisdiction in the United States recognizes the theories of unjust enrichment and money had and received. Count I states a claim for breach of contract. Plaintiffs and members of the class are alleged to have entered into binding contracts with Sharper Image for the purchase of a product that would remove impurities from the air. Contrary to the terms of the contract, the products allegedly do not remove impurities from the air or perform as advertised. As a proximate result of the breach, Plaintiffs allege they have suffered damages in that they each paid hundreds of dollars for products that do not work. Count II states a claim for breach of express warranty. Plaintiffs allege Sharper Image expressly warranted the Ionic Breeze® performed in accordance with the representations summarized, including the core representation that the product effectively and safely removed impurities from the air. Plaintiffs allege they relied on those representations, and Sharper Image breached the express warranty by providing a product that did not and could not perform as warranted and advertised. The warranty failed its essential purpose, and as a result, Plaintiffs allegedly suffered damages. Count III states a claim for breach of implied warranty. Plaintiffs allege Sharper Image impliedly warranted the product (and its technology) was merchantable and fit for the particular purpose for which it was advertised, namely, to remove impurities from the air. Plaintiffs allegedly relied on the skill and judgment of Sharper Image, and Sharper Image breached the implied warranty by providing a product that did not and could not perform as warranted and advertised. Plaintiffs allege as a result of the breach they were damaged. Count IV states a claim for unjust enrichment. Plaintiffs allege they bestowed a benefit on Sharper Image to which Sharper Image was not entitled, namely the payment of hundreds of millions of dollars for improperly licensed, labeled, marketed and sold products and technology. “Equity and good conscience require that Sharper Image disgorge the proceeds of the sales into constructive trust with the resulting restitution to Plaintiffs and the Class.” (SAC at 23). Count V states a claim for money had and received. Because of the collection and retention of funds paid by the consumers, Sharper Image has allegedly received and continues to possess money for the use and benefit of Plaintiffs and members of the class. Plaintiffs also allege the funds should be disgorged and placed into a constructive trust and paid by way of restitution to Plaintiffs and members of the class. Count VI states a claim of unfair business practices and false advertising, based upon state statutes. Plaintiffs allege Sharper Image’s conduct in advertising, marketing, distributing, and selling the Ionic Breeze® was fraudulent in that Sharper Image actually misled or engaged in conduct likely to mislead Plaintiffs and class members. The advertising was allegedly unfair, misleading, deceptive, or untrue. The several states’ consumer protection statutes are specifically identified and alleged. Moreover, Plaintiffs allege “[t]he unfair business practices and false advertising laws of the various states of the United States are not so varied as to render this Action unmanageable.” (SAC at 27). Count VII is entitled “Permanent Injunction.” The Count does not state a separate claim, rather, in it Plaintiffs seek the remedy of a permanent injunction directing Sharper Image to cease and desist from manufacturing, marketing, and selling a product that does not perform as advertised; and misstating the performance capabilities of the Ionic Breeze®. Plaintiffs also seek a declaratory judgment. Defendant, Sharper Image, has never responded to the SAC. C. History and Nature of the Parties’ Proposed Settlement and its Several Amendments Prior to the Order Preliminarily Approving Settlement, the parties had presented to the Court the original Settlement Agreement, which was disapproved, and the Amended Settlement Agreement, which was approved by the Court’s Order. Following entry of the January 25 Order granting preliminary approval, and before the final fairness hearing, the Amended Settlement Agreement was changed several times. Notably, on June 20, 2007, the Attorneys General of Alaska, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Michigan, Minnesota, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming, as well as the District of Columbia, and the Executive Director of the Hawaii Office of Consumer Protection (hereinafter, collectively referred to as “Attorneys General”), filed a Motion for Leave to File Brief Amicus Curiae [D.E. 297], and submitted their brief in opposition to the proposed Settlement. The Attorneys General supplied the Court and counsel a thorough exposition of the critiques surrounding “coupon settlements,” that is, settlements under which class members are awarded coupons or merchandise credits rather than cash. The Attorneys General advanced the views of law professor Christopher Leslie, who has identified three major problems with coupon settlements: they often do not provide meaningful compensation to class members; they often fail to disgorge ill-gotten gains from the defendant; and they often require class members to do future business with the defendant in order to receive compensation. (See Brief Amicus Curiae [D.E. 297] at 6, citing Christopher R. Leslie, The Need to Study Coupon Settlements in Class Action Litigation, 18 Geo. J. Legal Ethics 1395, 1396-97 (2005)). The Attorneys General maintained the Amended Proposed Settlement Agreement did not pass muster under what they maintained is heightened scrutiny of coupon settlements mandated by the Class Action Fairness Act of 2005. They also asserted that the Amended Proposed Settlement Agreement did not even satisfy what they maintained were the less rigorous requirements of Fed.R.Civ.P. 23(e), that a settlement be fair, reasonable, and adequate. More about the nature of the Attorneys General’s objections infra. Others filed similar objections to the then-operative Amended Settlement Agreement. On May 8, 2007, John Potter, a member of the certified class in Potter v. Sharper Image Corp., pending in the San Francisco Superior Court, moved to intervene in this action to urge the Court not to grant final approval to the Amended Settlement Agreement at the fairness hearing scheduled for August 16, 2007, and to be allowed to conduct discovery concerning the settlement. (See Mot. of John Potter to Intervene [D.E. 279]). On June 21, 2007, La Sarmiento, a class member, similarly filed a Motion to Intervene [D.E. 304], and filed a memorandum explaining the several bases for her objections to the Amended Settlement Agreement, in that the $19 coupon failed to meet the “fan-, adequate, and reasonable” standard; the option to purchase a retrofit device (the OzoneGuard) did not cure the defects in the settlement; and because the “injunctive relief’ was of no benefit to the class. (See Objections of La Sarmiento [D.E. 306]). La Sarmiento also challenged the notice provisions of the settlement. (See id.). Alicia Bryant similarly filed her Notice of Objection [D.E. 303] on June 21, 2007. Bryant focused her objections on the failure of the Amended Settlement Agreement to protect consumers from the health hazards posed by Sharper Image air purifiers. Bryant maintained that Sharper Image should not be allowed to sell its air purifiers as is, that is, without Ozone-Guards installed prior to sale and without notice of health risks; Sharper Image should be required to mail class members with known addresses and make available to those whose addresses are unknown, OzoneGuards, with warnings and instructions, rather than providing generic merchandise credits; Sharper Image should not be given a 180-day window in which to retain existing marketing and packaging of its air purifiers; and class members should not be required to release Sharper Image from future unknown claims. (See Objections of Alicia Bryant at 3-4). On June 22, 2007, class member Stephen Friedberg filed his Objections to the Proposed Settlement [D.E. 311]. Friedberg objected to the lack of reimbursement offered to class members and objected to $19 coupons that could only be used on Sharper Image branded products, rather than on third-party products. He objected to the limitation of one coupon per household, which did not account for all individuals who may have purchased one or more Ionic Breeze® units. He argued class members should be given the right to return the defective product to the Defendant for a credit of the full purchase price paid, and any settlement should prevent future abusive marketing practices by Defendant. Simultaneous to the filing of the foregoing objections, on June 22, 2007, the parties filed their Joint Motion to Amend Preliminary Approval Order (DE 245 and DE 249) to Incorporate Second Amended Settlement Agreement With Enhanced Terms [D.E. 316]. The new, Proposed Second Amended Settlement Agreement (“Second Agreement”) contained the following “enhancements” from the earlier approved Amended Settlement Agreement: • The $19 merchandise credit was previously limited to one credit per household, regardless of how many units may have been purchased. The merchandise credit was now being made available as follows: (1) one credit would be awarded to class members for each Ionic Breeze® purchased by the class member at a price greater than $100; and (2) only one credit would be awarded per class member for all Ionic Breeze® products purchased at an individual price greater than $0 but less than or equal to $100. • The concept of “households” was being eliminated entirely. • Class members previously could not aggregate credits for purchases. In the Second Agreement, class members could aggregate credits for purchases. • Sharper Image had agreed to reduce the price of the OzoneGuard to its cost price of $7. In the Second Agreement, Sharper Image agreed to provide the OzoneGuard free of charge to class members who purchased a unit without an OzoneGuard and who made a claim. Other consumers could purchase the OzoneGuard for a period of time at the $7 price. • Sharper Image would ensure it had sufficient OzoneGuards available. • Sharper Image would expand the number of advertising claims it would refrain from making. • Procedural mechanisms of the settlement, regarding notice and dates for opting out, were also modified. On June 22, 2007, objector Alicia Bryant filed her Application for Award of Attorneys’ Fees and Costs [D.E. 312], which is presently before the Court and will be addressed at the conclusion of this Order. On July 31, 2007, Class Counsel filed an Application for Award of Fees and Expenses [D.E. 358], which is also addressed at the conclusion. Potter and Bryant filed separate objections to the Joint Motion to Amend Preliminary Approval Order [D.E. 326, 331] on June 29, 2007. The objectors argued it was unfair the settling parties should have filed an amended settlement agreement on the last date for filing objections, and that they should seek approval from the Court without notice or input from the objectors. The objectors argued it was improper that the settling parties could simply give notice of the Second Agreement to only those who had opted out. The objectors maintained the Second Agreement was egregious because those who had expressed a desire to opt out would now be encouraged to opt in and because the Second Agreement was further evidence that the representation of the class was inadequate. Bryant objected to inclusion of “Third-Party Resellers” in the Second Agreement, and the limitation of only one merchandise credit given to Third-Party Resellers. Third-Party Resellers, those in the business of selling the IonicBreeze® product, it was maintained, should be given notice of this new restriction. (See Opp’n to Joint Mot. to Amend Prelim. Approval Order of Alicia Bryant [D.E. 331]). Bryant also objected to the change in definition of the settlement class from purchasers between May 6, 1999 and the execution of the Amended Settlement Agreement, to purchasers between the dates of May 6, 1999 and January 24, 2007. (See id.). On July 9, 2007, the Attorneys General filed their Response Brief [D.E. 340, Ex. 2], urging the Court to disapprove the Second Agreement. The Attorneys General pointed out the coupons still could not be transferred, redeemed for cash, or be used to purchase non-Sharper Image branded products, nor could they be used more than one year from the date of the Notice or Final Approval. (See Attorneys General’s Resp. Br.) The OzoneGuard filters would not be distributed to every consumer who has an Ionic Breeze® that allegedly leaks harmful amounts of ozone, but only to those who file a claim using the “outdated terms” contained in the preliminary notice. (See id. at 2). Last, Sharper Image would, by agreement and not because of any injunction, make two modifications to its advertising, that is, it would refrain from representing the Ionic Breeze® removes harmful chemicals found in flooring, paint, and household chemicals, and it would refrain from claiming the product causes a consumer to become immune to allergies. The Attorneys General continued to object that while the Second Agreement only marginally increased the monetary value of the settlement for a select group of class members, no change was made that would affect the likely utilization rate of the coupons provided by the settlement. (See id. at 5 (citing the CAFA, 28 U.S.C. § 1712(e)) (“ ‘[T]he judge should consider ... the real monetary value and likely utilization rate of the coupons provided by the settlement.’ ”)). Furthermore, the limited notice given to original opt-outs would keep the utilization rate at the same expected low level as under the Amended Settlement Agreement. Lastly, continued restrictions on transfer, product selection, duration and the redemption process negatively affected redemption rates of coupon settlements, including this one. (See id. at 6). The lack of disgorgement by Sharper Image of its alleged wrongful gain continued to be an impediment to approval, according to the Attorneys General. (See id.). On July 10, 2007, Bryant filed her Memorandum of Law in Opposition to the Renewed Joint Motion to Amend Preliminary Approval Order to Incorporate Second Amended Settlement Agreement With Enhanced Terms [D.E. 345]. Bryant repeated the objections she had previously made concerning insufficiency of notice of the changed terms to all class members, and the change in scope of the settlement class. By Order dated July 17, 2007, the undersigned granted preliminary approval of the Second Agreement [D.E. 351]. In that Order, the undersigned addressed the notice objections as follows: [C]ourts have recognized that when class members have already received notice of the pendency of the action and its proposed settlement, and have declined to opt out, it is not necessary to inform the class members of enhancements to the proposed settlement. See, e.g., In re The Prudential Ins. Co. of America Sales Practices Litigation, 962 F.Supp. 450, 473 n. 10 (D.N.J.1997) (noting that where class members have received adequate notice, these same class members need not be informed of the final enhancements to the settlement because the proposed settlement is more valuable with certain amendments, and requiring special notice only to opt-outs to permit them to reevaluate their choices); In re Mexico Money Transfer Litig., 164 F.Supp.2d 1002, 1009, 1012 (N.D.Ill.2000) (finding notice “complete and adequate” where original notice to all class members satisfied Fed.R.Civ.P. 23(c)(2) and supplemental notice of enhanced settlement terms was limited to those class members who originally opted out). (July 17, 2007 Order at 4-5). After emphasizing that approval of the Second Agreement did not address or resolve questions concerning the final determination of the reasonableness, adequacy, and fairness of the proposed Second Agreement, the undersigned gave her approval. Nevertheless, less than two weeks later, the parties once again submitted a Joint Motion to Amend Preliminary Approval Order [D.E. 245, 249 and 351] to Incorporate Third Amended Settlement Agreement with Enhanced Terms [D.E. 355], The Third Amended Settlement Agreement (“Third Agreement”) contained the following enhancements: • Merchandise credits are fully transferable by class members and by those to whom the credits are transferred. • Any person receiving merchandise credits via a transfer may aggregate only up to five transferred credits for use. • Credits expire two years after the date of Notice of Final Approval. • Credits may now be used to purchase any products sold at Sharper Image, not just the Sharper Image branded products. • No longer are class members required to log onto the settlement website or submit a claim form in order to receive the credits. Under the Third Agreement, all class members in the Ionic Breeze® database will receive individual mailings concerning the number of credits and OzoneGuards each is entitled to, and each will be able to transfer the credits on a website. • Sharper Image agrees to include a link on its website pertaining to the Notice of Final Approval through the Final Claims Bar Date. The Third Agreement is the first proposed settlement to include cy pres relief. ■ Class members in the database who are entitled to one or more free Ozone-Guards shall be informed of the number of Guards each is entitled to, without the requirement that a claim be filed. Those who have to purchase Guards from a store or order one are entitled to free shipping. • Sharper Image consents to the entry of an injunction to enforce the modifications to its advertising claims. • Rather than commence advertising modifications 180 days after the effective date of the settlement, Sharper Image agrees to commence advertising modifications 120 days from the effective date. • The procedural mechanisms of the settlement pertaining to notice are also modified. A second notice, containing a prominent and conspicuous statement that the notice is not duplicative of prior notices, will be provided so putative class members who attempted to opt out will have the opportunity to rejoin the class, at their option. • Ninety days after approval, class members in the database will be sent individual mailings, containing a code number and information concerning transferability of their credits. • The Final Claims Bar Date is further extended to no earlier than December 31, 2008. By Order dated July 31, 2007 [D.E. 357], the Court required that all objections be received by August 2, 2007. Needless to say, prior to the final fairness hearing, additional objections were filed to the final version of the parties’ settlement agreement, the Third Agreement. D. The Nature and Substance of the Objections to the Final Version of the Proposed Settlement Bryant renewed her earlier objections [D.E. 366] to the settlement terms. She explained her opposition to the Third-Party Reseller “sub-class,” because these are not entitled to receive unlimited credits for the Ionic Breeze® products purchased, even though some units might not have been sold and even though a Reseller might have kept units for personal use. (See Opp’n to Joint Mot. Amend Approval Order of Alicia Bryant at 4-6). Resellers who have units in their possession which are not sold until after January 24, 2007 and their post-January 24 purchasers do not receive credits. (See id.). The Reseller category of persons is entitled to notice of the creation of this “sub-class” with fewer rights than other purchasers, but in fact received no such notice. (See id.). Potter similarly renewed his objections [D.E. 368] on the bases of procedural and substantive flaws in the proposed settlement. As to the procedural inadequacies, Potter now advanced the argument that Sharper Image had engaged in a reverse auction to settle the case. A “reverse auction” is a practice whereby the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with in the hope that the district court will approve a weak settlement that will preclude other claims against the defendant .... The ineffectual lawyers are happy to sell out a class they anyway can’t do much for in exchange for generous attorneys’ fees, and the defendants are happy to pay generous attorneys’ fees since all they care about is the bottom line — the sum of the settlement and the attorneys’ fees — and not the allocation of money between the two categories of expense. Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 282 (7th Cir.2002) (citations omitted). Potter maintained that Sharper Image played the Florida plaintiffs off against the California actions to reach a poor settlement with weak parties. (Opp’n to Mot. for Prelim. Approval of Third Settlement Agreement of Potter [D.E. 368] at 2). Substantively, Potter maintained that even with the newest changes proposed, the settlement is well below the range of recovery that would be fair, adequate, or reasonable. (See id. at 4). Potter objected to a $19 coupon on the basis that it is an arbitrary amount, “the result of pure dickering, with the vast majority of the concession coming from the plaintiffs’ side.” (Id. at 4). If ten percent of the 3.2 million-member class redeems the coupons, Sharper Image will not be relinquishing one percent of what it made on sales of the Ionic Breeze® products. (See id. at 5). Potter objected to the continued limits on the transferability and aggregation of the credits. He objected to a settlement that forces consumers back into business with the entity that cheated them in the first place. (See id. at 6). He objected to the absence of a minimum payout, Buchet v. ITT Consumer Fin. Corp., 845 F.Supp. 684, 696 (D.Minn.1994), and Potter asserted the cy pres relief in the Third Agreement does not guarantee a minimum payout, because Sharper Image is not agreeing to bring the total payout to 20% with its proposed donation. (See Opp’n to Mot. for Prelim. Approval of Third Settlement Agreement at 7). Potter also objected to the inadequacy of the OzoneGuard provision. (See id. at 8). Potter contended that no OzoneGuard is offered for certain models, and the settlement does not address those consumers who may have already spent money purchasing OzoneGuards after Sharper Image started marketing them in 2005. (See id. at 9). Those class members who do not receive the personal mailing may not even know of their rights to the OzoneGuards. Potter maintained Sharper Image no longer makes the advertising statements it has agreed not to make in the future. The injunction provision of the Third Agreement, according to Potter, is “nothing but smoke and mirrors.” (Id.). Potter also insisted the Third Agreement is procedurally unfair and unreasonable, because class members who are not in the database or who do not register on the website will receive nothing, but nevertheless are bound by the release contained in the Agreement. (See id. at 10-12). On August 2, 2007, the parties supplied information concerning how class members had received notice of the proposed settlement. (See Notice of Joint Rep. of Plaintiffs and Defendant Regarding Notices to Settlement Class Members [D.E. 371]). Sharper Image affixed a notice of the settlement to its March, 2007 product catalog to achieve “direct mailing” notice. Notices were mailed to approximately 319,737 others who had opted out of receiving the catalogs. Direct mail and published notice were supplemented via a settlement website and a toll free consumer number where callers may leave their names and addresses for claim forms. Notice by publication was also effectuated. A half-page advertisement appeared on page 18 of the April 8, 2007 issue of a publication known as USA Weekend, which has an estimated circulation of 23,442,702. A two-third page advertisement appeared on page 77 of an April 16, 2007 issue of Sports Illustrated, which has an average estimated circulation of 3,150,000. The parties estimate 81.5% of the settlement class members were exposed to the notice. On August 3, 2007, the undersigned again granted preliminary approval of the parties’ settlement agreement, in this case, the Third Agreement. (See Aug. 3, 2007 Order [D.E. 375]). Thereafter, on August 8, 2007, Friedberg renewed his objections to the Third Agreement (See Objections of Class Member Stephen Friedberg [D.E. 383]). As he explained it, with each settlement agreement submitted by Sharper Image (and Friedberg counted a total of five), “the Parties have attempted to mollify the Objectors by adopting some of the Objectors’ recommendations in small increments.” (Id. at 1-2). Nevertheless, Friedberg asserted the latest agreement still failed to provide compensation to class members for losses sustained as a result of Sharper Image’s misconduct. According to Friedberg, Sharper Image likely realized margins in excess of $100 million on the sales of the Ionic Breeze® to 2 million consumers, but offers no compensatory payments, merely $19 coupons that may not be redeemed for cash. To highlight the inadequacy of the present Third Agreement, Friedberg contrasted the settlement reached in a suit against Brookstone for defective air purifiers. In that case, consumers could return the defective air purifiers to Brookstone for store credit equal to the full purchase price of the unit. On August 10, 2007, the Attorneys General once more submitted their written Notice that reiterated their continued opposition to the proposed settlement notwithstanding the cy pres provision added. (See Notice by the Attorneys General [D.E. 413]). La Sarmiento, too, filed her Opposition to Third Amended Settlement Agreement. (See Opp’n to Third Amended Settlement Agreement of La Sarmiento [D.E. 418]). La Sarmiento maintained that nothing in the Third Agreement changed the fact that the relief proposed remained unfair, inadequate and unreasonable, particularly given the heightened scrutiny mandated of coupon settlements under the CAFA. La Sarmiento cited to numerous cases in which courts have refused to approve settlements that offer class members little more than the right to purchase more products from the defendant at a discounted price. See, e.g., Synfuel Tech., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir.2006) (noting that for many consumers, “the right to receive a discount [or coupon] will be worthless”) (quoting Geoffrey P. Miller & Lori S. Singer, Nonpecuniary Class Action Settlements, 60 Law & Contemp. Probs. 97,108 (1997)); In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 221 (D.Me. 2003) (“[A] settlement is not fair where all the cash goes to expenses and lawyers, and the members receive only discounts of dubious value.”) (footnote omitted); Buchet v. ITT Consumer Fin. Corp., 845 F.Supp. 684, 696 (D.Minn.1994), amended by 858 F.Supp. 944 (proposed coupon settlement rejected after court found that coupon redemption rates in similar cases were so low that the certificates in this case offered no real value to the class). La Sarmiento argued most of the class may be unwilling to make a future purchase from Sharper Image, as well as urged the policy considerations that disfavor “ ‘rewarding the wrongdoing defendant with new sales from the victims of its illegal practices.’ ” (Opp’n to Third Amended Settlement Agreement of La Sarmiento at 4) (quoting NACA Class Action Guidelines — Revised, 1590 PLI/Corp. 285 at 313-14 (2007)). La Sarmiento also argued that particularly where a product is expensive and hazardous, as she maintained the present products to be, the undersigned should follow the lead of other courts in rejecting settlements that offer coupons as the primary form of relief. (See id. at 5) (citing In re General Motors Corp. Pick-Up Fuel Tank Products Liability Litig., 55 F.3d 768, 810 (3d Cir.1995) (settlement rejected in large part because coupon relief “did not address the safety defect that formed the central basis of the amended complaint filed barely four months before the settlement”)). La Sarmiento maintained the other forms of relief offered, including the OzoneGuard, injunctive relief, and the cy pres award, fail to overcome the inadequacy of the coupon settlement. Only a limited number of the Ionic Breeze® machines are compatible with the OzoneGuard, and many class members have already purchased the OzoneGuard (at a purchase price of $40, more than five times the cost incurred by Sharper Image to produce the devices). La Sarmiento asserted the injunctive relief does nothing for class members who have already purchased the Ionic Breeze® from Sharper Image, and, in evaluating the fairness of a proposed settlement, a court should focus on how the agreement compensates class members for their past injuries. (See id. at 8). Moreover, La Sarmiento argued the cy pres provision, in which Sharper Image does not commit itself to any minimum payout, is a highly contingent event, subject to two specific preconditions that may never come to pass. La Sarmiento also disapproved of the lack of notice afforded to class members of the Third Agreement. La Sarmiento maintained the original notice given was inadequate because it merely consisted of a catalogue insert and the publication of a summary notice that did not even mention the retrofit or the proposed attorney’s fee to Class Counsel in the amount of $1.875 million. (See id. at 10). Lastly, La Sarmiento argued that in amending the settlement three times, Class Counsel have been negotiating the settlement with limited leverage. (See id. at 12-13). The existence of class certification in the California state proceeding gave Sharper Image all the leverage at the negotiating table. (See id. at 13). Among the documents filed by Potter in support of his opposition to the Third Agreement is a declaration of Stephen Gardner, a consumer advocate, former Assistant Dean of Southern Methodist University Law School, and former Assistant Attorney General of Texas and New York. (See Decl. of Stephen Gardner [D.E. 421], Ex. 1). Mr. Gardner identifies the following deficiencies with the Third Agreement (see id. at 2-3), and gives explanations for each of these conclusions: (1) the case is a classic example of a “reverse auction” settlement; (2) the sole purported relief to class members, a coupon requiring the consumer to spend more money at Sharper Image, has little value;(3) the class representative and Class Counsel have repeatedly proven themselves inadequate to represent the class; (4) there is a distinct subclass who essentially receive no relief at all, third-party consumers who bought the product from other retailers and for whom the only notice given was the “woefully inadequate publication” (id. at 9) to which only 34% were exposed to; (5) the case is not superior to other available methods for the fair and efficient adjudication of the controversy; (6) the so-called “injunctive relief’ is essentially meaningless because the promises Sharper Image offers to make represent only changes to practices it either never used or already stopped using; and (7) Class Counsel are not entitled to compensation where they originally agreed to “gag” themselves and members of the class by agreeing to a non-disparagement provision, where they originally agreed to a release of all claims, and where any “improvements” to the proposed settlement resulted from the many objections received in the intervening months following the first agreement. Potter also submitted the affidavit of Morton Lippmann, an environmental scientist and public health researcher, who is presently employed as Director of the Human Exposure and Health Effects Program, Nelson Institute of Environmental Medicine, located at New York University School of Medicine. (See Aff. of Morton Lippmann [D.E. 421], Ex. 2, at 2). Dr. Lippmann has written and edited numerous books and publications on environmental and airborne toxicants, air sampling methods, and other matters of human health. (See id. at 2). Dr. Lippmann is familiar with the Ionic Breeze® product because he was retained as a consultant and testifying expert for Consumers Union of America in connection with Sharper Image’s dispute with Consumer Reports magazine concerning the magazine’s evaluation of the Ionic Breeze® air cleaners. (See id. at 2-3). Dr. Lippmann explains that CADR, or Clean Air Delivery Rate, is a well-established industry standard, expressing the capacity of an air cleaner to provide particle-free air to displace particle-laden room air. (See id. at 3). Dr. Lippmann explains the CADR test protocol is an appropriate means to determine the ability of any household air cleaning product to effectively remove submicrometer sized particles and particles larger than 1 micrometer (i.e., dust) from the ambient air and to determine whether the device provides sufficient clean breathing air for occupants of a room. (See id.). Dr. Lippmann opines that the Ionic Breeze® product does not perform satisfactorily under CADR. (See id. at 6). The products are not effective air cleaners, and how much energy they consume (low) and how much noise they generate (little), are irrelevant issues with regard to their efficacy as air cleaners. (See id.). There also exist, however, factors other than CADR to consider in evaluating an air cleaner. (See id. at 3). Andrew Parker, whose declaration was submitted by Sharper Image in support of the proposed settlement, relies on Environmental Protection Agency (“EPA”) factors rather than CADR in evaluating the Ionic Breeze® product. The EPA factors consist of: (1) the percentage of the particles removed as they go through the device, that is efficiency; (2) the amount of air handled by the device; (3) the effective volume of the air to be cleaned; and (4) decrease in performance of the unit if periodic maintenance is not performed on schedule. (See id. at 4). In Dr. Lippmann’s opinion, the Ionic Breeze® fails all four of EPA’s major criteria for an effective room air cleaner. (See id. at 4). Dr. Lippmann also reviewed the affidavits of Jeanette Campbell and Jimmy L. Lee, submitted by Sharper Image in support of approval of the settlement, and disagrees with their conclusions and with the testing protocols they utilized. (See id. at 5). For Dr. Lippmann, the ability of the Ionic Breeze® device to remove about half of the particles that pass through it in a very small volume of air does not demonstrate efficacy in cleaning the air in a room. (See id.). Furthermore, Dr. Lippmann contends the electronic precipitation technology employed in the Ionic Breeze® creates ozone as a byproduct of the ionization process, and any device that emits ozone as part of its operation cannot be considered to improve indoor air quality. (See id. at 6). E. Arguments Advanced By the Proponents of the Third Agreement On the face of this onslaught of opposition, consistent from the first (public) pronouncement that the parties had reached a settlement, Plaintiffs and Sharper Image responded with voluminous submissions and memoranda explaining their views on the fairness, adequacy, and reasonableness of the settlement. Throughout the parties’ written and oral presentations has been the consistent theme that Defendant, Sharper Image, was on the verge of bankruptcy, and that the proposal then under consideration was the best deal that could be arranged. Below is a detailed summary of the parties’ arguments in favor of final approval, focusing on factors delineated in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984), as guiding a court’s determination of whether to approve a proposed class action settlement under Fed.R.Civ.P. 23. 1. Plaintiffs’ Likelihood of Succeeding at Trial Sharper Image maintains the Ionic Breeze® “utilizes revolutionary technology in which air and airborne particles are ionized by wires that are charged with positive voltage, causing the positively charged air and particles to accelerate and ‘stick’ to negatively charged collector plates, thereby moving and cleaning the air without the need for a fan.” (Def's Omnibus Resp. to All Objections to Final Approval [D.E. 384] at 1). The product was developed to give consumers an alternative to fan-based, noisy, and high-energy consuming air purifiers that required expensive filter changes. After several Consumer Reports articles were published criticizing the Ionic Breeze® as not being effective, the already mentioned class action lawsuits, including this one, were filed. The parties posit that the likelihood of Plaintiffs succeeding at trial on their claims is “very difficult to predict” (Pls’ Mem. in Supp. of Final Approval [D.E. 408] at 15), because “[a]ny objective assessment reveals that this was a highly contested case.” (Id.). Plaintiffs’ case rests on convincing a jury that the Ionic Breeze® is not capable of effectively cleaning the air and that because of ozone emissions, the air coming out of the device is more harmful than the air going in. As to the first claim of product ineffectiveness, Plaintiffs’ experts, Dr. Richard Shaughnessy and Dr. Jeffrey Siegel, two well-recognized scholars in the indoor air field, relied upon the Clean Air Delivery Rate model by which air purifier effectiveness is measured. According to the Association of Home Appliance Manufacturers (“AHAM”), the CADR performance standard requires an 80% reduction in particle concentrations within 20 minutes in order for an air cleaner to be considered effective for a given room size. (See Aff. of Richard Shaughnessy [D.E. 408], Ex. H ¶¶ 7-23). Plaintiffs’ commissioned testing showed the Ionic Breeze® units removed less than 34% of contaminants under the AHAM CADR protocol. The Ionic Breeze® could only achieve 80% particle removal in the 20-minute test in a 30 square foot room. (See id. at ¶ 20). When applied to the bright-line CADR, the Ionic Breeze® is ineffective at contaminant removal. (See id. at ¶ 23). This conclusion is also supported by testing performed by the Consumers’ Union. See, Consumer Reports, In-depth tests: Sharper Image Ionic Breeze, Honeywell Environizer (October 2003). Consumers’ Union concluded the Ionic Breeze® was “ineffective” and produced “almost no measurable reduction in airborne particles.” Id. In contrast, Defendant cites to the EPA’s recognition of numerous factors unrelated to CADR that should be considered when assessing the overall performance of air purifiers. This is particularly the case, Sharper Image asserts, given that the Ionic Breeze® is intended to be run over longer periods of time than its noisy and energy-consuming counterparts, and thus does not perform well in a 20-minute test. According to the EPA’s Indoor Air Facts No. 7, Residential Air Cleaners, important considerations in the effectiveness of indoor air cleaners include noise and maintenance costs. The Ionic Breeze® is quieter and requires less cleaning than fan-driven models, which are judged under the CADR protocol. Furthermore, the Ionic Breeze® “has been confirmed in testing conducted by both Sharper Image and Plaintiffs’ experts to remove some level of contaminants.” (Pls’ Mem. in Supp. of Final Approval at 13). Sharper Image points out that Plaintiffs’ experts even conceded a 34% reduction of contaminants in a 100 square foot room in 20 minutes. Moreover, Sharper Image cites to some consumers’ level of satisfaction with the product, and positive letters from class members as indicative of satisfaction with the product. Sharper Image asserts science and customer testimony show the Ionic Breeze® neutralizes odor, as advertised; it traps allergens, including pollen and animal dander, as advertised; and it reduces smoke, as advertised. Sharper Image emphasizes it never tied any of its advertising to any particular level of cleaning. With hard science, and the testimony of dozens, if not hundreds, of happy customers, Sharper Image contends the objectors overestimate the strength of Plaintiffs’ case against it, while not putting forward any scientific research or testing of their own. As to the second element of Plaintiffs’ claims, that the product is harmful because of the ozone emissions it produces, Plaintiffs’ expert testing did not reveal ozone production in excess of the 50 parts per billion allowed under the UL 867 standard. Plaintiffs do acknowledge that the testing conducted by Consumers’ Union did return results in excess of the UL 867 tolerance. Furthermore, Plaintiffs’ expert testing confirmed that the operation of the Ionic Breeze® in the presence of a terpene source results in an increased exposure to ultrafine particles, which Plaintiffs assert to be more dangerous and damaging than the ozone alone. Sharper Image responds that Plaintiffs’ own testing could not establish the units produce more than the 50 ppb allowed under the UL 867, section 37 standard, contrary to the allegations in the Amended Complaint. Moreover, complying with an emission standard of 50 ppb is voluntary for devices such as the Ionic Breeze®. Sharper Image’s commissioned testing at reputable laboratories showed the product complied with UL 867, and does not exceed the 50 ppb. And, Sharper Image states no scientific research definitively establishes any dangers with ultrafine particles. With the foregoing two elements disputed by Defendants’ own testing, and given the uncertainties surrounding any award of damages, particularly an award against a company in a precarious financial position, the parties submit that this Bennett factor weighs strongly in favor of approval