Starkist Voucher Settlement Upheld in Tuna Underfilling Case

A $12 million class settlement providing vouchers or cash in a suit over alleged underfilling of Starkist tuna cans survived objectors’ challenge.

The vouchers aren’t “coupons” subject to additional scrutiny under the Class Action Fairness Act, a divided U.S. Court of Appeals for the Ninth Circuit said.

The vouchers don’t expire, are freely transferable, and can be used at any store that sells Starkist products, the court said in an unpublished order.

Coupon settlements are subject to restrictions under CAFA because they often require consumers to do more business with the company that deceived them.

In addition, fees for class counsel can’t be based on the total face value of the coupons because it’s unlikely that every class member will redeem them.

Because the nature of the settlement was the only basis for a challenge to the attorneys’ fees, the appeals court upheld the awards to plaintiffs’ counsel. It also upheld an award to attorneys representing objectors concerned with the scope of the initial release, which district the court had found to be overbroad.

Plaintiffs’ counsel were awarded $3.6 million, which was then reduced by the $154,987 awarded to objectors’ counsel for fees and costs.

The settlement class covers individuals who bought 5-ounce cans of Chunk Light Tuna in Water, Chunk Light Tuna in Oil, Solid White Tuna in Water, or Solid White Tuna in Oil between Feb. 19, 2009, and Oct. 31, 2014.

The notice adequately explained that individual claims were subject to “dilution” in the event of a high response rate, the appeals court also said.

Ninth Circuit Judges N. Randy Smith and Michelle T. Friedland, and Barbara M.G. Lynn of the U.S. District Court for the Northern District of Texas, heard the case.

Friedland dissented, saying the voucher settlement was a coupon deal because the vouchers could be used only to purchase canned tuna.

Bursor & Fisher P.A. was lead class counsel. Hogan Lovells US LLP represented Starkist.

The case is Hendricks v. Ference, 2018 BL 386613, 9th Cir., 16-16992, unpublished 10/19/18.