JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED … · This multidistrict class action seeks...

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

IN RE DIAL COMPLETE

MARKETING AND SALES

PRACTICES LITIGATION

CASE NO. 11-md-2263-SM

(MDL DOCKET NO. 2263)

(ALL CASES)

JOINT MOTION

FOR PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT,

CERTIFICATION OF SETTLEMENT CLASS FOR SETTLEMENT PURPOSES ONLY,

APPROVAL OF NOTICE PLAN AND SETTLEMENT NOTICE AND APPOINTMENT

OF NOTICE AND CLAIMS ADMINISTRATOR AND LEAD COUNSEL FOR THE

SETTLEMENT CLASS

Pursuant to Federal Rule of Civil Procedure 23 and Local Rule 23.1, plaintiffs Michelle

Carter, Jonathan Cessna, Sonia Herrera, Jenny Marazzi, Kristina Pearson, Elizabeth Poynter, and

Sven Vogtland, in their individual capacities and as class representatives (“Plaintiffs”), and

Defendant Dial Corporation (“Defendant”) (collectively, the “Parties”), by and through their

respective counsel, file this Joint Motion for Preliminary Approval of Proposed Class Action

Settlement, Certification of Settlement Class for Settlement Purposes Only, Approval of Notice

Plan and Settlement Notice and Appointment of Notice and Claims Administrator and Lead

Counsel for the Settlement Class (“Joint Motion”). The Proposed Class Action Settlement

Agreement and Release (“Settlement Agreement”) to which the Parties have agreed, is filed

concurrently herewith as Exhibit A. Attached to the Settlement Agreement and Release are the

following exhibits:

Exhibit 1 - Claim Form

Exhibit 2 - Publication Notice

Exhibit 3 - Long Form Notice

Exhibit 4 - Notice and Claims Administration Plan Declaration of Steven Weisbrot

Case 1:11-md-02263-SM Document 239 Filed 12/28/18 Page 1 of 4

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The [Proposed] Order Granting Preliminary Approval is filed concurrently herewith as Exhibit

B.

The Parties respectfully request that the Court enter an Order:

(1) conditionally certifying a Settlement Class, pursuant to Fed. R. Civ. P. 23(b)(2) and

(3), as defined in the proposed Settlement Agreement for settlement purposes only (the “Class”);

(2) granting preliminary approval of the proposed settlement of this class action on the

terms set forth in the Settlement Agreement;

(3) approving the proposed Notice and Claims Administration Plan directing that the

Class be provided with notice of the pendency of this action and the settlement in the manner

proposed by the parties in the Notice Plan;

(4) approving the appointment of the Settlement Notice and Claims Administrator;

(5) preliminarily approving the Settlement Agreement;

(6) approving Michelle Carter, Jonathan Cessna, Sonia Herrera, Jenny Marazzi, Kristina

Pearson, Elizabeth Poynter, and Sven Vogtland, as Settlement Class Representatives;

(7) appointing Lucy J. Karl as Lead Counsel, pursuant to Fed. R. Civ. P. 23(g), for the

Settlement;

(8) staying all proceedings in the Action, other than such as may be necessary to carry out

the terms and conditions of this Order or the responsibilities incidental thereto, as between

Plaintiffs and Defendant until further order of the Court; and

(9) scheduling a hearing at which the Court will consider final approval of the Settlement,

entry of the proposed final judgment and Plaintiffs’ Counsels’ application for an award of

attorneys’ fees, costs and expenses.


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WHEREFORE, for the reasons set forth in the Parties’ supporting Memorandum, the

Parties respectfully request that the Court:

A. Grant their Joint Motion;

B. Certify a Settlement Class;

C. Preliminarily Approve the Settlement Agreement;

D. Approve the Notice and Claims Administration Plan and appoint an Administrator;

E. Approve Plaintiffs as Settlement Class Representatives;

F. Appoint Lucy J. Karl as Lead Counsel for the Settlement Class;

G. Stay entry of the final judgment until the time for class members to file objections to

the proposed settlement has expired; and

H. Schedule a hearing at which the Court will consider final approval of the Settlement,

entry of the proposed final judgment and Plaintiffs’ Counsels’ application for an

award of attorneys’ fees, costs and expenses.

Respectfully Submitted,

Dated: December 28, 2018 /s/ Lucy J. Karl

Lucy J. Karl

N.H. Bar No. 5547

SHAHEEN & GORDON, P.A.

107 Storrs Street

Concord, New Hampshire 03302

Telephone: (603) 225-7276

Facsimile: (603) 225-5112

[email protected]

Plaintiffs’ Interim Lead Counsel


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Robert H. Miller (N.H. Bar 13881)

SHEEHAN PHINNEY BASS + GREEN PA

1000 Elm Street, 17th Floor

Manchester, NH 03101

Telephone: (603) 627-8145

Facsimile: (603) 641-2380

Eugene F. Assaf, P.C. Edwin John U, P.C. Patrick T. Haney

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W. Washington, D.C. 20005

Telephone: (202) 879-5000

Facsimile: (202) 879-5200

Attorneys for The Dial Corporation

CERTIFICATE OF SERVICE

The undersigned certifies that, on December 28, 2018, she caused this document to be

electronically filed with the Clerk of the Court using the CM/ECF system, which will send

notification of filing to registered counsel of record for each party.


Lucy J. Karl

NH Bar No. 5547




IN RE DIAL COMPLETE MARKETING AND

SALES PRACTICES LITIGATION

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(ALL CASES)

MEMORANDUM IN SUPPORT OF JOINT MOTION

FOR PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT,

CERTIFICATION OF SETTLEMENT CLASS FOR SETTLEMENT PURPOSES ONLY,

APPROVAL OF NOTICE PLAN AND SETTLEMENT NOTICE AND

APPOINTMENT OF NOTICE AND CLAIMS ADMINISTRATOR AND LEAD

COUNSEL FOR

THE SETTLEMENT CLASS

I. INTRODUCTION

This multidistrict class action seeks injunctive relief and damages for individuals in the

United States relating to the allegedly deceptive marketing, advertising, and sale of Dial

Complete Foaming Liquid Hand Soap and the use of the active ingredient triclosan and

advertising claims related to that product.1 Dial denies any and all claims and has asserted

various defenses that it believes are meritorious. After almost nine years of hard fought

litigation, in order to avoid the burden and cost of ongoing litigation, Plaintiffs and Dial have

reached agreement to resolve this action on a classwide basis. As further described below,

pursuant to the proposed Settlement, Dial will pay a capped, non-reversionary total of

$7.4 million dollars and agree to certain injunctive relief that Plaintiffs have valued at not less

1 Including a “Kills 99.99% of Germs* (*encountered in household settings)” claim, a “#1 Doctor

Recommended**” (**Antibacterial Liquid Hand Wash)” claim, and/or a “Kills more germs than any other liquid

hand soap” claim.

Case 1:11-md-02263-SM Document 239-1 Filed 12/28/18 Page 1 of 24

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than $25 million. The Parties accordingly jointly move the Court for preliminary approval of the

settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure.2

II. THE ALLEGATIONS AND HISTORY OF THE LITIGATION

A. Plaintiffs’ Allegations

Plaintiffs allege that since January 1, 2001, Dial engaged in a uniform, extensive and

comprehensive nationwide marketing campaign in order to sell Dial Complete at a price

premium. As part of their campaign, Plaintiffs allege that Dial misrepresented to consumers that

handwashing with Dial Complete was more effective at killing or eliminating germs than

handwashing with other soaps that do not contain triclosan. Specifically, Plaintiffs allege Dial

deceptively and unfairly represented to consumers that using Dial Complete provides special

health benefits, including but not limited to, statements that the Dial Complete Product as

previously formulated “Kills 99.99% of Germs,” is “#1 Doctor Recommended,” “Kills more

germs that any other liquid hand soap,” has “Superior Germ Kill,” has “10x More Effective

Germ Kill,” “Kills 10x More Germs,” and “Protects your family better than ordinary liquid hand

soap.” Consequently, Plaintiffs allege that they and other members of Settlement Class were

induced into purchasing a product that they believed provided them with heightened protection

over regular soap and water or other liquid hand soaps that do not contain triclosan. Plaintiffs

allege that, as a result of Dial’s extensive and substantially uniform marketing, every consumer

who purchased the Dial Complete Product was exposed to substantially the same allegedly false

and misleading statements. Accordingly, Plaintiffs brought this Action on behalf of themselves

and other similarly-situated consumers seeking to halt Dial’s alleged dissemination of false and

2 The Parties also jointly move the Court for certification of a settlement class for settlement purposes only; for

approval of the class notice and notice plan; for appointment of Angeion Group as notice and claims administrator;

and for appointment of Lucy Karl as Class Counsel for Plaintiffs.


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misleading advertising, and to correct the alleged false and misleading perception that Dial

allegedly created in the minds of consumers and obtain monetary compensation for the Class,

i.e., the price premium they allegedly paid for the soap.

Dial denies Plaintiffs’ allegations and believes that it has a variety of meritorious

defenses.

B. History of the Litigation

1. Substantive Pleadings

Beginning in late 2010, putative class actions were filed in Arkansas, California, Florida,

Illinois, Louisiana, Missouri, New Hampshire, New York, Ohio, and Wisconsin3 seeking redress

for Defendant’s allegedly deceptive and misleading marketing of its Dial Complete products

(“Dial Complete” or the “Product”) that contain the active ingredient triclosan. Triclosan is a

chlorophenol that, in certain circumstances, can function as an antibacterial and antifungal agent.

By Order dated August 18, 2011, the Panel transferred these cases to the United States District

Court for the District of New Hampshire, In re Dial Complete Marketing and Sales Practices

Litigation, MDL No. 11-md-2263-SM (the “MDL”).

On January 23, 2012, Plaintiffs in the above referenced actions filed a Consolidated

Amended Complaint (Doc. 32). On March 8, 2012, Dial filed a motion to dismiss the

Consolidated Amended Complaint (Doc. 36). The motion to dismiss was argued on September

5, 2012. On March 26, 2013, the Court denied the motion to dismiss (Doc. 80). Dial filed its

Answer to the Consolidated Amended Consolidated Complaint on May 10, 2013 (Doc. 92).

3 Putative class actions were also filed in Louisiana, New Hampshire, and New York and were transferred to this

Court by the Judicial Panel on Multidistrict Litigation (“JPML” or “Panel”). These claims were voluntarily

dismissed. The Court dismissed claims brought on behalf of Wisconsin class.


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On November 16, 2012, following extensive discovery, Plaintiffs filed their Motion for

Class Certification (Doc. 57) (filed under seal). On April 26, 2013, Dial filed its objection to

Plaintiffs’ Motion for Class Certification (Doc. 86). Plaintiffs’ filed their Reply in Support of

Class Certification on January 27, 2014 (Doc. 161). During the pendency of the initial Class

Certification motion, the parties engaged in highly contested motion practice with respect to the

parties’ scientific experts, including but not limited to Dial’s Motion to Exclude Opinions of Dr.

Allison Aiello, Plaintiffs’ scientific expert (Doc. 85); Plaintiffs’ Motion to Strike Defendant’s

Motion to Exclude Opinions of Dr. Aiello (Doc. 91); Plaintiffs’ Expedited Plaintiffs’ Motion for

an Order Compelling Rhonda D. Jones’ Answers to Deposition Questions under Federal Rule of

Civil Procedure 30 (Doc. 101); Expert Witness Jones’ Motion for a Protective Order (Doc. 130);

and Dial’s Motion for an Evidentiary Hearing on Class Certification (Doc. 165).

The Court conducted a hearing on Plaintiff’s Motion for Class Certification on April 16,

2015. On December 8, 2015, the Court denied Plaintiffs’ class certification motion without

prejudice. In so ruling, the Court found that Plaintiffs had satisfied all of the Rule 23(a)

prerequisites and had also demonstrated Rule 23(b)(3) predominance and superiority. However,

because the initial round of class certification motion practice had occurred prior to the Supreme

Court’s Comcast decision, the district court found that Plaintiffs had failed to present a Comcast-

compliant damages model, demonstrating how, based upon their alleged price premium damages

theory, a conjoint analysis damages model could establish damages through common proof.

Plaintiffs then retained Stefan Boedeker of Berkeley Research Group to explain and run a

conjoint analysis. Thereafter, on June 24, 2016, Plaintiffs filed their Amended Motion for Class

Certification (Doc. 200). Dial filed its Objection on September 19, 2016 (Doc. 206), and


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Plaintiffs’ filed their reply on October 25, 2016 (Doc. 216).4 On November 16, 2016, the Court

held a lengthy evidentiary hearing, and on March 27, 2017, the Court granted class certification,

certifying six, statewide classes (Doc. 225).

On April 10, 2017, Dial filed a Petition for Permission to Appeal Under Rule 23(f) in the

First Circuit Court of Appeals. On July 31, 2017, the First Circuit panel denied Dial’s petition in

a 2-1 ruling. On August 14, 2017 Dial filed a Petition for Rehearing en banc, which was still

pending when the parties reached their settlement in principle on October 3, 2018.

2. Discovery

The Parties engaged in substantial discovery, including interrogatories, requests to admit,

document production, and depositions. Dial produced approximately 210,734 pages documents

in response to Plaintiffs’ Request for Production, and the Plaintiffs’ Executive Committee

established a dedicated document database to review and categorize the 24.6 gigabyte

production. Dial deposed eleven of the named plaintiffs as well as Plaintiffs’ scientific,

economic, and conjoint analysis experts. Plaintiffs’ counsel deposed Dial employees as well as

Dial’s scientific, economic, and conjoint analysis experts.

3. Court Hearings

The Court held four substantive hearings constituting hours of substantive oral argument

and legal analysis. Defendant’s Motion to Dismiss was heard on September 5, 2012;

Defendant’s Motion to Exclude Expert Opinions of Allison Aiello was heard on November 20,

2013; Plaintiffs’ Motion for Class Certification was heard on April 16, 2015; and Plaintiffs’

4 During the pendency of the initial class certification motion and the renewed class certification motion, the parties

also filed multiple Notices of Supplemental Authority, and responses thereto. See e.g. Docs. 135, 170, 176, 179,

181, 183, 184, 186, 192, 194.


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Amended Motion for Class Certification and Defendant’s Motion to Strike Expert Witness were

heard on November 16, 2016.

III. SETTLEMENT NEGOTIATIONS AND THE PROPOSED SETTLEMENT

A. Settlement Negotiations

In February 2016, Class Counsel and Defendant began to actively engage in settlement

discussions. Following preliminary discussions, the Parties continued their mediation efforts

with a retired federal judge, the Honorable Layn Phillips, in May 2016. That mediation was

unsuccessful, and Plaintiffs filed their Amended Motion for Class Certification, which was

granted in March 2017. In the spring of 2018, while Dial’s Petition for Rehearing en banc was

pending in the First Circuit, Class Counsel and counsel for Dial rekindled settlement discussions.

As a result of those discussions, the Parties agreed to renew their mediation efforts with Judge

Phillips in October 2018. As a result of their lengthy settlement negotiations, the renewed

mediation, and the efforts of Class Counsel in prosecuting the Action, Dial and the Plaintiffs, in

their individual capacities and as Class Representatives, Class Counsel and counsel for Dial have

agreed to settle this Action pursuant to the terms of the Settlement Agreement. On December 28,

2018, Plaintiffs filed a Second Amended Consolidated Class Action Complaint (Doc. 238) to

conform the complaint with the terms of the Settlement. Dial consented to the filing of the

Second Amended Consolidated Class Action Complaint for settlement purposes only.

B. The Proposed Settlement

Counsel for the Parties negotiated the Settlement Agreement at arm’s-length. In so

doing, Plaintiffs’ counsel considered such factors as: (1) the substantial benefits to the Settlement

Class under the terms of the Settlement Agreement; (2) the attendant costs, risks and uncertainty

of litigation; (3) the distraction and diversion of personnel and resources as a result of continuing


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this Action; and (4) the desirability of promptly consummating the Settlement Agreement.

Plaintiffs have determined that settlement of this Action on the terms reflected in the Settlement

Agreement is fair, reasonable, adequate, and in the best interests of the Plaintiffs and the

Settlement Class.

The settlement does not constitute an admission of liability, damages, or any other issue

in the lawsuit. Dial entered into the Settlement Agreement in order to avoid the risk and burden

of ongoing litigation.

1. The Settlement Class

The Settlement Agreement defines a nationwide Settlement Class under Rule 23(b)(2)

and (b)(3) composed of all persons in the United States who purchased the Dial Complete

product as defined in the Settlement Agreement during the Class Period of January 1, 2001, to

the present.5 See Ex. A to Joint Motion for Preliminary Approval (“Settlement Agreement”) at

§1.1.

2. Relief to Class Members

In consideration of the Settlement, Defendant agrees to pay a capped total of Seven

Million Four Hundred Thousand Dollars ($7,400,000.00), consisting of two components: (1) a

$1,900,000 payment in connection with the Rule 23(b)(2) relief; and (2) a $5,500,000 payment in

connection with the Rule 23(b)(3) relief. Id. at §2.21.

a. Rule 23(b)(2) Injunctive Relief and Changed Practices

The Rule 23(b)(2) component of the Settlement Agreement reflects Dial’s voluntary

cessation of certain practices during the pendency of this litigation, including removal of

5 Excluded from the Settlement Class are (a) the Court and its officers, employees, appointees and relatives; (b) Dial

and its affiliates, subsidiaries, officers, directors, employees, contractors, agents, and representatives; (c) all

Plaintiffs’ counsel; (d) government entities; and (e) Opt-outs. See Ex. 1 at §1.2.


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triclosan from the product and removal of challenged language from its labeling and marketing

as well as future injunctive relief. Id. at §§3.1 and 8.3.

In the midst of this litigation, the U.S. Food and Drug Administration, on December 16,

2013, issued a Proposed Rule concerning consumer antiseptic hand and body washes. Faced

with these considerations, and the uncertainty of ongoing litigation, Dial reformulated its Dial

Complete product, replacing triclosan as the active ingredient (as with a number of other

manufacturers), and also revised a number of claims on the packaging and associated advertising

on the now-reformulated Dial Complete product, including revising the “Kills 99.99% of Germs”

claim to state that Dial Complete “Kills 99.99% of Bacteria.*”

In addition to the changes Dial made during the pendency of the litigation, Dial has also

agreed that for a period of five years after the Effective Date, it shall be enjoined by the Court as

follows:

• Defendant shall not reintroduce triclosan as an ingredient in Dial Complete.

• Dial shall not use an advertising or labeling claim that Dial Complete “Kills 99.99%

of Germs” as the product is currently formulated.6

Id. at §3.1.1.

Dial also agrees to make a $1.9 million payment (part of the $7.4 million capped total) in

connection with the injunctive relief component of the settlement. Id. at §§2.2.1 and 8.2.1.1.

Plaintiffs’ expert values the injunctive relief at $25 million and will explain the substantial value

that the injunctive relief provides to the Settlement Class in their final approval motion.

Plaintiffs will also apply for attorneys’ fees for their efforts in securing the injunctive relief

6 The terms and requirements of the injunctive relief will expire on the earlier of (a) five years following the Final

Effective Date; or (b) the date upon which there are changes to any applicable statute, regulation or other law that

Dial believes would require a modification to labeling in order to comply with such changes. Ex. 1 at §3.1.1.3.


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separate and apart from the relief they secured for the Class related to payment of the alleged

price premium claims. Id. at §8.2.1.1.

b. Rule 23(b)(3) Monetary Relief

Dial will make a $5.5 million payment (part of the $7.4 million capped total) in

connection with the Rule 23(b)(3) Component of the Settlement Fund. These monies will be

used to compensate Settlement Class Members and to pay all costs associated with the

administering the Settlement, including but not limited to the costs of notice and administration

of the Settlement, including for a claims processor to process the claims, objections, and opt-out

requests; costs and expenses; Court-approved service awards to Class Plaintiffs and attorneys’

fee awards; and any other expenses approved by the Court. Id. at §3.2.

i. Class Recovery

Settlement Class Members may file a claim to recover the alleged price premium they

paid pertaining to their purchases of Dial Complete during the class period, amounting to

approximately $0.27 per bottle (potentially subject to a pro rata reduction described below).

Settlement Class Members may obtain a cash payment to recover for up to 30 units of Dial

Complete by completing and returning a simple one-page Claim Form with no additional proof

of purchase necessary. Settlement Class Members who provide actual purchase receipts may

obtain settlement compensation for all of the units they purchased. The Claim Form can be

viewed and submitted online through the Settlement Website, or it can be mailed in to the

Settlement Administrator. Settlement Class Members who submit valid claim forms (with valid

proof of purchases for claims of 31 or more units of Dial Complete) will receive cash payment

for the total number of units for which they have proof of purchase multiplied by $0.27

(potentially subject to the following pro rata reduction). If the total amount of eligible and


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approved claims submitted by Settlement Class Members exceeds the balance in the Settlement

Fund following deductions for class notice, settlement administration, service awards to the

Plaintiffs, expenses, costs and attorneys’ fees, then the distribution of the settlement fund to

eligible Settlement Claims will be on a reduced pro rata share per package basis.7 Id. at

§3.2.1.5.

ii. Administrative Expenses, Service Awards, Attorneys’ Fees

and Costs

All costs of notice and administration of the Settlement will be paid from the Rule

23(b)(3) component of Settlement Fund. In addition, Plaintiffs’ counsel will request payment

from the Rule 23(b)(3) component of the Settlement Fund of service awards, actually incurred

out-of-pocket expenses, and attorneys’ fees. The service awards are designed to compensate

Representative Plaintiffs for the time and risk they took in prosecuting this action.

The request for fees, costs and service awards will be the subject of a separate motion to

be filed, and posted on the settlement website, at least 2 weeks before the deadline for settlement

class member objections.

iii. Distribution of Remaining Funds

The Parties expect the Rule 23(b)(3) Component of the Settlement Fund to be fully

consumed in making the above payments. None of the monies will revert to Defendant. If any

monies remain in the Settlement Fund (after payment of the all Notice and Claims

Administration Expenses, Service Awards, costs and expenses, Attorneys’ Fees and Expenses,

and Eligible Claims) the amount remaining will be distributed in the form of a cash donation to

either (1) the Children’s Health Fund, a 501(c)(3) non-profit organization founded in 1987 to

7 The amount available to fund valid settlement claims will not be less than $2,325,000. Settlement Agreement at

§3.2.1.2.


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provide health care to the nation’s most medically-underserved children and adolescents by

developing a national network of health care programs; reducing the impact of public health

crises on children; and promoting the health and well-being of all children (see

www.childrenshealthfund.org) or (2) the Ronald McDonald House Charities, a 501(c)(3)

nonprofit organization whose mission is to create, find and support programs that directly

improve the health and well-being of children and their families (see www.rmhc.org/mission-

and-vision). See Settlement Agreement at §3.3.1. Neither Dial nor Class Counsel have pre-

existing charitable relationships with either organization.

C. Notice

The Settlement Agreement proposes that the Court appoint Angeion Group as the

Settlement Notice and Claims Administrator to administer the notice and claims process.

Settlement Agreement at §2.39. Angeion Group8 provides comprehensive settlement

management services and has supported over 2000 class action administrations and the

distribution of over $10 billion to class members. Angeion Group is familiar to this Court as it

was appointed as notice administrator in In Re Colgate-Palmolive., (Doc. 93) (D.N.H. 2015).

Angeion Group has worked with the Parties to design the proposed robust notice plan and will

facilitate the settlement notice and claims administration process by assisting the Parties in the

implementation of the Settlement Notice and Claims Administration Plan.

The proposed notice plan will establish a settlement website, www.soapsettlement.com,

containing settlement notices, a contact information page that will include the address and

telephone numbers of the claims administrator and counsel for the parties, the settlement

8 Additional information available at Angeion Group’s website, http://www.angeiongroup.com/ (last accessed Nov.

7, 2018).


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agreement, the signed order of preliminary approval, online and printable versions of the claim

form and the opt-out form, answers to frequently asked questions, and (when they becomes

available) Plaintiffs’ counsel’s application for attorneys’ fees, costs, expenses, and service

awards and the motion for final approval. To allow for the maximum convenience of the

Settlement Class members, claims may be submitted online.

Notice will also be published in various places, all of which will refer class members to

the settlement website. Specifically, in addition to the Settlement Website, the notice program

will include (1) comprehensive state-of-the-art targeted internet banner notice using paid banner

ads on targeted websites; (2) additional web-based notice using “keyword” searches displaying

banner ads; (3) sponsored notice on two leading class action-related websites; (4) a national press

release issued through a well-known newswire service; (5) national media through publication in

the widely-read consumer magazine, People; and (6) a toll-free telephone helpline through which

Settlement Class members can obtain additional information about the Settlement and request

printed copies of the Long Form Notice and Claim Form. See Declaration of Steven Weisbrot at

¶¶ 9-35 attached as Exhibit 4 to Settlement Agreement.

The Notice Plan is targeted to reach individuals interested in such things as hand and

body soaps and cleansers and has been designed to deliver an approximate 70.42% reach with an

average frequency of 3.81 times, which means that 70.42% of the target audience will see an

advertisement concerning the Settlement an average of 3.81 times each. Id. at ¶ 10. Coverage

and exposure will be increased by the sponsored listings on the two class action settlement

websites, the press release, the Settlement Website and the toll-free hotline. Although their reach

is not calculable in the reach percentage, they will aid in informing Class Members of their rights

and options under the Settlement. Id. at ¶ 35.


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D. Plaintiffs’ Analysis of the Settlement

Class counsel have evaluated the inherent risks and expenses associated with continuing

this litigation, and believe that the provision of the injunctive and monetary relief outlined above

adequately compensates Settlement Class Members for the harm they suffered. The risks of

continuing this litigation include (1) the possibility that the First Circuit grants Defendant’s Rule

23(f) petition for leave to appeal9; (2) the success of Dial’s vigorous defense to Plaintiffs’

assertions that the challenged claims are misleading and continued denial of all allegations of

wrongdoing; (3) the chance of Dial moving to decertify the certified litigation classes; (4) the

need for both Parties to engage in further document discovery; (5) further motion practice,

including motions for summary judgment; (6) Dial’s likely aggressive challenges to Plaintiffs’

price premium damages methodology; and (7) the subsequent remand of the certified class

actions to the respective district courts in several different states (if Plaintiffs were, in fact,

successful up to and until the point of trial).

Even if Plaintiffs’ claims were successful, the “best case” recovery likely would not be

better than the settlement remedy Plaintiffs have negotiated and in fact could be substantially less

factoring in all of the attendant costs and expenses which would be incurred to achieve the “best

case” award at trial. Plaintiffs’ expert Stefan Boedeker performed what Plaintiffs submit is a

detailed conjoint analysis to calculate the price premium attributable to the marketing claims.

Mr. Boedeker calculated that a reliable measure of damages attributable to Dial’s claim that Dial

Complete “Kills 99.99% of Germs” is 10.89% of the overall revenue from its sales of Dial

Complete, which based upon the average price of Dial Complete over the Class Period is

9 This is particularly acute in light of the First Circuit’s most recent rulings on class certification. See, e.g., In re

Asacol Antitrust Litig., No. 18-1065, 2018 WL 4958856 (1st Cir. Oct. 15, 2018).


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approximately $0.27 per bottle.10 Dial disputes Mr. Boedeker’s analysis, and specifically

disputes that any price premium for Dial Complete exists. In addition to Dial’s challenges to

Mr. Boedeker’s analysis, even if Plaintiffs were successful at trial, class members would likely

be eligible to recover no more than $0.27 per bottle, upon submitting a valid claim form.

Moreover, in a contested proceeding, class members who lacked proof of purchase, which is

likely the majority of the class members, might get no recovery at all. Lastly, the costs and

expenses incurred to prosecute the claims to trial will be significant and could result in the class

member getting substantially less than what is available in the settlement.

In view of the foregoing, Plaintiffs believe that Dial’s removal of triclosan from the

product and changes in labeling and marketing, the future injunctive relief to which it has agreed,

and the monetary relief for which class members are eligible represents a fair, adequate and

reasonable settlement for the Settlement Class because it represents the injunctive relief sought

in this Action and it enables aggrieved purchasers nationwide to recover. See e.g. In re Colgate-

Palmolive, 2015 WL 7282543 at *4.

IV. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

AGREEMENT.

A. Preliminary approval of class action settlements.

“For purposes of preliminary approval, the court must determine whether the proposed

settlement appears to be [fair, reasonable, and adequate] and whether the settlement is within the

10 Based on the data he collected, Mr. Boedeker found that the average price for all foaming antibacterial liquid hand

soaps in the 7.5 ounce size was $2.44. See Expert Report of Stefan Boedeker, attached as Exhibit A to Plaintiffs’

Amended Motion for Class Certification, at ¶23.c. (doc. 200-2). Multiplying $2.44 by 10.89% equals $0.27. The

Court found that Mr. Boedeker’s “model is capable of reliably calculating class-wide damages recoverable under the

plaintiffs’ theories of liability.” In re Dial Complete Mkt. & Sales Litig., 320 F.R.D. 326, 335 (D.N.H. 2016). The

Court’s ruling was the subject of Dial’s pending petition for rehearing en banc of its petition for permission to

appeal under Rule 23(f) to the First Circuit Court of Appeals.


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range of possible approval. In making a preliminary determination, the court considers whether

the settlement is collusive between the parties or, instead, was reached through arms-length

negotiation.” Scott v. First Am. Title Ins. Co., No. CIV. 06-CV-286-JD, 2008 WL 2563460, at

*2 (D.N.H. June 24, 2008). “The general rule is that a court will grant preliminary approval

where the proposed settlement is neither illegal nor collusive and is within the range of possible

approval.” William B. Rubenstein et al., Newberg on Class Actions § 13:10 (5th ed. 2015).

Pursuant to Rule 23(e), “[t]he claims, issues, or defenses of a certified class may be

settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. R. Civ. P.

23(e). A settlement must be fair, reasonable, and adequate. Id. “The case law offers laundry

lists of factors pertaining to reasonableness, but the ultimate decision by the judge involves

balancing the advantages and disadvantages of the proposed settlement as against the

consequences of going to trial or other possible but perhaps unattainable variations on the

proffered settlement. The Court performs this analysis in the shadow of the ‘strong public policy

in favor of settlements.’” Medoff v. CVS Caremark Corp, No. 09-cv-544, 2016 WL 632238, at

*5 (D.R.I. Feb. 2, 2017, J. Laplante) (internal quotations and citations omitted).

“When approving a settlement:

[T]he judge is required to scrutinize the proposed settlement to ensure that it is

fair to the persons whose interests the court is to protect. Those affected may be

entitled to notice and an opportunity to be heard. This usually involves a two-

stage procedure. First, the judge reviews the proposal preliminarily to determine

whether it is sufficient to warrant public notice and a hearing. If so, the final

decision on approval is made after the hearing.”

Hochstadt v. Boston Scientific Corp., 708 F. Supp. 2d. 95, 106-107 (D. Mass. 2010) (citing

M.C.L. § 13.14 (2004)). Thus, before making a final decision on the ‘approval’ of a settlement,

a court must first make a “preliminary determination on the fairness, reasonableness, and


16

adequacy of the settlement terms.” Id. at 107. “Ultimately, the more fully informed examination

required for final approval will occur in connection with the [final fairness hearing].” In re M3

Power Razor System Mktg. & Sales Practice Litig., 270 F.R.D. 45, 62 (D. Mass. 2010).

A presumption of fairness attaches to a proposed settlement agreement “when the court

finds that: (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.” In re Lupron Mktg. & Sales Practices Litig., 345 F. Supp. 2d

135, 137 (D. Mass. 2004) (internal quotations and citations omitted)); see also In re Colgate-

Palmolive Softsoap, 2017 WL 7282543 at *9; Bezdek v. Vibram USA Inc., 79 F. Supp. 324, 343

(D. Mass. 2015) (“There is a presumption that a settlement is within the range of reasonableness

when sufficient discovery has been provided and the parties have negotiated at arms’ length. . . .

This is the threshold requirement to survive at the preliminary review stage.”) (internal

quotations and citations omitted); and 4 Herbert B. Newberg & Alba Conte, Newberg on Class

Actions, §11.41 (4th ed. 2011); Cf. Hochstadt v. Bos. Scientific Corp., 708 F. Supp. 2d at 108 (D.

Mass. 2010) (evaluating the experience of counsel in preliminary approval process as a factor

that contributes to the presumption of fairness). Here, all of these factors are met and preliminary

approval of the settlement is favored.

B. The proposed Settlement Agreement is fair, reasonable, adequate and the result

of lengthy, arm’s length negotiations conducted in good faith among experienced

counsel.

The Parties reached settlement only after aggressively litigating this case for over seven

years. Before reaching settlement, the parties engaged in extensive discovery, including

production of over 210,734 pages of documents; as well as interrogatories, requests to admit, and

depositions of class representatives, Dial’s employees, and the parties’ experts. The Parties


17

engaged in highly adversarial scrutiny of the respective scientific, economic and conjoint

analysis experts, including Dial’s Daubert challenges to Plaintiffs’ scientific and conjoint

analysis experts. At the time of settlement, there had been extensive briefing and argument on

various significant legal issues, including Dial’s Motion to Dismiss, Plaintiffs’ Motion for Class

Certification and Renewed Motion for Class Certification, and Dial’s motions to exclude

Plaintiffs’ scientific and conjoint analysis experts; the Court had rejected Dial’s challenges to

Plaintiffs’ experts and certified six state-wide classes; and Dial’s petition for rehearing en banc

challenging the Court’s class certification rulings was pending before the First Circuit Court of

Appeals.

Counsel for the Parties have extensive experience in complex litigation and are

thoroughly familiar with the factual and legal issues presented in this litigation, as well as the

strengths and weaknesses of the Parties’ positions and the risks to both sides if the case did not

settle. Counsel negotiated the settlement in good faith. The settlement negotiations took place

over 2 years, including two mediation sessions. Plaintiffs’ counsel believe the settlement to be in

the best interests of the Settlement Class, taking into account the costs and risks of continued

litigation. Nothing in the course of negotiations or in the substance of the Settlement Agreement

raises any doubts as to its fairness.

The arm’s length nature of the negotiations, the critical assistance of Judge Phillips in

mediation, as well as the participation of experienced attorneys throughout the litigation strongly

support a finding that the Settlement Agreement is sufficiently fair, reasonable and adequate to

justify notice to the Settlement Class and the scheduling of a hearing to consider final approval

of the proposed Settlement.


18

Finally, notice to the Settlement Class has not yet been disseminated and therefore Class

Members have not had an opportunity to review the Settlement Agreement. Nonetheless, the

Parties are unaware of any objections to the Settlement Agreement by either the Representative

Plaintiffs or Settlement Class Members. To the contrary, the Representative Plaintiffs have

expressed their approval and support of the Settlement. Finally, each Settlement Class Member

will have the chance to voice objections, should he/she have any, prior to or at the Final

Approval Hearing. For the foregoing reasons, the standards for preliminary approval are met in

this case and the Court should grant the present motion.

V. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS.

The Settlement Class consists of all persons in the United States who purchased the Dial

Complete Product as defined in the Settlement Agreement from January 1, 2001 to the present

and should be preliminarily certified under Rules 23(a) and (b). See Amchem Products, Inc. v

Windsor, 521 U.S. 591, 619-21; Ortiz v. Fibreboard Corp., 527 U.S. 815, 858 (1999). Dial does

not oppose the certification of the Settlement Class for settlement purposes.

This Court previously certified six statewide litigation classes, finding that Plaintiffs

satisfied the numerosity, commonality, typicality and adequacy requirements of Rule 23(b)(2) as

well as the predominance and superiority requirements of Rule 23(b)(3). See In re Dial

Complete Marketing and Sales Practices Litigation, 312 F.R.D. 36, 53-76 (D.N.H. 2015).

This Court’s decision on class certification regarding the statewide litigation classes held

that “the named plaintiffs’ claims arise from the same alleged misrepresentations on the

packaging of Dial Complete as those of potential class members”; that class counsel satisfies the

adequacy requirement; and that the named plaintiffs “are sufficiently cognizant of the claims and

issues in this case to serve as named plaintiffs.” In Re Dial Complete, 312 F.R.D. at 54-55.


19

Plaintiffs contend that same analysis should apply to the Settlement Class, because the legal and

remedial theories raised by the Plaintiffs are shared with the Settlement Class Members.

Plaintiffs contend that, like the Settlement Class Members, their purchases of the Dial Complete

product were induced by Dial’s extensive and substantially uniform false and misleading

marketing of Dial Complete. No conflicts exist between the Plaintiffs and Settlement Class

Members. In fact, while pursuing their own claims related to the marketing of Dial Complete,

Plaintiffs have been advocating for the interests of the Settlement Class and the Settlement will

benefit all Settlement Class Members alike. Id. Accordingly, fairness and adequacy have been

satisfied.

The Court has also already recognized that “given the large number of potential class

members and small value of individual claims, not only is a class action the superior method of

resolving this case, it is the very sort of case for which the Rule 23(b)(3) class action mechanism

was intended.” Id. at 57. See also In re Colgate-Palmolive, 2017 WL 7282543 at *5-9.

A. The Court should approve the Notice Plan and Notice and appoint a Notice

Administrator.

In conjunction with preliminarily approving a settlement agreement, a Court must “direct

notice in a reasonable manner to all class members who would be bound by the proposal.” Fed.

R. Civ. P. 23(e)(1). The notice program “need not be perfect,” Medoff, 2016 WL 632238 at *5,

but it should be “reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their objections.” Int’l

Union v. GMC, 497 F.3d 615, 629-30 (6th Cir. 2007) (internal citations omitted). See also

Bezdek, 79 F. Supp. 3d at 336 (“Notice of a class action settlement must be reasonably calculated

to reach absent class members”) (quotations omitted).


20

Notice of the Settlement need not be sent to each individual member of the Settlement

Class. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 536-37 (3d Cir. 2004) (finding

that where class members were consumers of a prescription drug, and names and addresses of

these consumers were confidential and not available to parties, notice by publication combined

with call center and website was sufficient notice to identify class members); Mirfaishi v. Fleet

Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004) (internet notice of settlement was acceptable

substitute for individual notice where Defendant had no record of part of a class of customers);

Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 59 (D. Conn. 2001) (notice by publication used

where circumstances “make it impracticable to gain the names and addresses of class members

and notify them individually of the action’s pendency”). The mechanics of the notice process are

left to the discretion of the Court, subject only to the reasonableness standards imposed by due

process. See 7A Wright & Miller, Federal Practice and Procedure § 1786 (3d ed. 2008).

The robust notice program proposed herein meets the requirements of due process and

Rule 23. The proposed methods for providing notice of the settlement to Settlement Class

members are reasonable. See supra Section III.C. Notice will be achieved shortly after entry of

the preliminary approval order and will provide sufficient time for Settlement Class members to

decide whether to participate in the settlement, object, or opt out. See infra Section VII. The

proposed notice program also provides sufficiently detailed notice. The proposed notice defines

the Settlement Class and informs Settlement Class members about the proposed settlement; their

right to opt out or object; the need to file a claim; a summary of settlement benefits; the

prospective request for attorneys’ fees, costs and service awards; and the fact that they will be

bound by the judgment if they do not opt out, even if they do not submit a claim form. The

notice refers class members to the Settlement Website where they can obtain the long-form


21

notice, which provides more details about the case and the settlement, procedures for opting out

or objecting, and methods about obtaining additional information. The Settlement Website will

also contain a full copy of the Settlement Agreement and will contain the fee application when it

is filed.

Settlement Class members who wish to seek benefits under the Settlement will need to

fill out a simple Claim Form online. Alternatively, they have the option to print copies and mail

the Claim Form to the Settlement Notice and Claims Administrator. The Claim Form requires

them to certify under the penalty of perjury (1) their name and address; and (2) basic information

about the product purchases. The Claim Form can be completed in a few minutes.

Finally, for the reasons stated above, Plaintiffs propose that the Court appoint Angeion

Group as Settlement Notice and Claims Administrator.

VI. APPOINTMENT OF SETTLEMENT CLASS LEAD COUNSEL

Plaintiffs request that the Court appoint Lucy J. Karl as Lead Counsel under Rule 23(g)

for the Settlement Class. The Court previously appointed Ms. Karl interim lead counsel (Doc.

20) and ruled that class counsel meet the adequacy requirement in the six statewide litigation

classes it certified. In re Dial Complete, 312 F.R.D. at 55.

VII. DATES FOR FINAL APPROVAL PROCESS

Plaintiffs request that in connection with preliminary approval, the Court set a date for

the final approval hearing to consider the fairness of the Settlement and to hear any comments

from the Settlement Class Members, as well as the dates for publishing Notice and deadlines for

objections and opting out of the settlement class. Plaintiffs and Dial propose the following

schedule:


22

ACTION TIMING

Filing of Joint Motion of

Preliminary Approval

Within 10 days after execution of the

settlement agreement

CAFA Notice Deadline 10 days after the Motion for

Preliminary Approval Is Filed

First Publication of Class Notice

(online or print)

No later than 10 days after issuance of

the Preliminary Approval Order

First Installment of Gross

Settlement Proceeds Paid into

Escrow

15 days after issuance of the

Preliminary Approval Order

Opt-Out Deadline 60 days after First Publication of Class

Notice

Opt-Out List 10 days after the Opt-Out Deadline

Claims Deadline 90 days after First Publication of Class

Notice

Dial’s Walk Away Deadline

30 days after receipt of the Opt-Out

List or Fee and Expense Award Order,

whichever is later, unless otherwise

extended

Joint Motion for Final Approval

Deadline 30 days after Claims Deadline

Fee and Expense Applications

Deadline

2 weeks before Objection Filing

Deadline

Objection Filing Deadline As determined by the Court

Objection Response Deadline 2 weeks after Objection Filing

Deadline

Final Installment of Gross

Settlement Proceeds Paid into

Escrow Account

30 days after Settlement becomes Final

VIII. CONCLUSION.

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their

Assented-To Motion for Preliminary Approval and enter an order (1) conditionally certifying a

Settlement Class, pursuant to Fed. R. Civ. P. 23(b)(2) and (3), as defined in the proposed

Settlement Agreement for settlement purposes only (the “Class”); (2) granting preliminary

approval of the proposed settlement of this class action on the terms set forth in the Settlement


23

Agreement; (3) approving the proposed Notice and Claims Administration Plan and directing

that the Class be provided with notice of the pendency of this action and the settlement in the

manner proposed by the parties in the Notice Plan; (4) approving the appointment of The

Angeion Group as the Settlement Notice and Claims Administrator; (5) preliminarily approving

the Settlement Agreement; (6) approving Lucy J. Karl as Lead Class Counsel for the Settlement

Class; and (7) scheduling a hearing at which the Court will consider final approval of the

Settlement, entry of the proposed final judgment and Plaintiffs’ Counsels’ application for an

award of attorneys’ fees, costs and expenses.

Respectfully submitted,


Lucy J. Karl (NH Bar No. 5547)


107 Storrs Street, P.O. Box 2703

Concord, New Hampshire 03302

Telephone: (603) 225-7262

Facsimile: (603) 225-5112

[email protected]

Plaintiffs’ Interim Lead Counsel


24

/s/ Robert H. Miller

Robert H. Miller (N.H. Bar No. 13881)

SHEEHAN PHINNEY BASS + GREEN PA

1000 Elm Street, 17th Floor

Manchester, NH 03101

Telephone: (603) 627-8145

Facsimile: (603) 641-2380

Eugene F. Assaf, P.C.

Edwin John U, P.C.

Patrick T. Haney

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, D.C. 20005

Telephone: (202) 879-5000

Facsimile: (202) 879-5200

Attorneys for The Dial Corporation

CERTIFICATE OF SERVICE

The undersigned certifies that on December 28, 2018, she caused this document to be

electronically filed with the Clerk of Court using the CM/ECF system, which will send

notification of filing to registered counsel of record for each party.

/s/ Lucy J. Karl

Lucy J. Karl (NH Bar # 5547)


EXHIBIT A


UNITED STATES DISTRICT COURT FOR THE


In Re: Dial Complete Marketing and SalesLitigation (MDL No. 2263)

)))))))))

MDL Docket No. 11-md-2263-SMALL CASES

CLASS ACTION SETTLEMENT

SETTLEMENT AGREEMENT AND RELEASE

DATED: __________


i


ii

TABLE OF EXHIBITS

Exhibit 1 -- Claims Form

Exhibit 2 -- Publication Notice

Exhibit 3 -- Long Form Notice

Exhibit 4 -- Notice Plan


3

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement is made and entered into as of the ___ day of December, 2018

by and among the Representative Plaintiffs, individually and as proposed representatives of all

Settlement Class Members, by and through Settlement Class Counsel, and the Dial Corporation

(“Dial” or “Defendant”), by and through its attorneys (collectively referred to as the “Parties”).

The Parties intend this Agreement to resolve, discharge, and settle the Released Claims of

Settlement Class Members fully, finally, and forever in accordance with the terms and conditions

set forth below.

WITNESSETH

WHEREAS, there is a multidistrict litigation pending in the United States District Court

for the District of New Hampshire, styled In Re: Dial Complete Marketing and Sales Litigation

(MDL No. 2263), composed of actions seeking injunctive relief and damages relating to the

marketing, advertising, and sale of Dial Complete Foaming Liquid Hand Soap in the United States

based on the use of the active ingredient triclosan and advertising claims including a “Kills 99.99%

of Germs* (*encountered in household settings)”claim, a “#1 Doctor Recommended**”

(**Antibacterial Liquid Hand Wash)” claim, and/or a “Kills more germs than any other liquid

hand soap” claim;

WHEREAS, Dial denies any and all Claims1 and has asserted various defenses that it

believes are meritorious;

WHEREAS, the Parties agree that this Agreement shall not be deemed or construed as an

admission or as evidence of any violation of any statute or law, or of any liability or wrongdoing

1 Capitalized terms shall have the meaning ascribed to them in the Definitions in Section I below.


4

by any of the Released Parties, or of the merit of any of the Claims or allegations alleged in the

Action, or otherwise, or the merit of any of the potential or asserted defenses to those allegations,

or as a waiver of any such defenses;

WHEREAS, the Parties have conducted a thorough examination and investigation of the

facts and the law relating to the asserted and potential Claims and defenses concerning Dial’s

marketing and sale of the Dial Complete Product and assessed the various risks of future litigation

including risks from any future appeals in the Action;

WHEREAS, the Parties engaged in extensive arm’s-length and adversarial settlement

discussions that included two mediation sessions conducted by the Honorable Layn R. Phillips,

former United States District Judge, in 2016 and 2018, and ultimately reached a settlement

memorialized by this Agreement (the “Settlement”);

WHEREAS, Class Counsel has concluded, after extensive factual examination and

investigation and after careful consideration of the circumstances, including the Claims asserted

in the Complaint, and the possible legal and factual defenses thereto, that it would be in the

Settlement Class Members’ best interests to enter into this Agreement to avoid the uncertainties,

burdens, risks, and delays inherent in litigation and subsequent appeals and to assure that the

substantial benefits reflected in this Agreement are obtained for Settlement Class Members in an

expeditious manner; and, further, that this Agreement is fair, reasonable, adequate, and in the best

interests of the Representative Plaintiffs and the Settlement Class Members;

WHEREAS, Dial, despite its belief that it has strong defenses to the Claims described in

this Agreement, has agreed to enter into this Agreement to reduce and avoid the further expense,

burden, risks, and inconvenience of protracted litigation and subsequent appeals and to resolve

finally and completely Representative Plaintiffs’ and other Settlement Class Members’ Claims;


5

NOW, THEREFORE, the Parties agree that the Action shall be settled, compromised,

and/or dismissed with prejudice on the terms and conditions set forth in this Agreement, subject

to the Court’s approval of this Agreement as a fair, reasonable, and adequate settlement under Fed.

R. Civ. P. 23(e).

1. CLASS DEFINITION

The Parties agree and consent, for settlement purposes only, to the certification of the

following settlement class under Fed. R. Civ. P. 23(b)(2) and 23(b)(3) (the “Settlement Class”):

Settlement Class: All Persons in the United States who purchased the Dial

Complete Product during the Class Period.

Excluded from the Settlement Class are the following: (a) the Court and its officers,

employees, appointees, and relatives; (b) Dial and its affiliates, subsidiaries, officers, directors,

employees, contractors, agents, and representatives; (c) all Plaintiffs’ Counsel; (d) government

entities; and (e) Opt-Outs.

2. OTHER DEFINITIONS

As used in this Agreement and its exhibits, the following terms shall have the meanings set

forth below. Terms used in the singular shall include the plural and vice versa.

“Action” means the claims asserted in the Consolidated Second Amended Class

Action Complaint, Dkt. No. 238, and all subsequent amendments.

“Agreement” means this Dial Complete Class Settlement Agreement, together with

the exhibits attached to this Agreement, which are incorporated in this Agreement by reference.

“CAFA Notice” means the notice of this Settlement to be served by Dial upon state

and federal regulatory authorities as required by Section 3 of the Class Action Fairness Act of

2005, 28 U.S.C. § 1715.


6

“Claim” means all claims made, or which could have been made, in law or in equity,

by any Person against any of the Released Parties in connection with Dial’s distribution, sale,

purchase, labeling, packaging, marketing, advertising, and/or use of the Dial Complete Product.

Claim shall not include any claim for bodily injury allegedly suffered in connection with the Dial

Complete Product.

“Claim Form” shall mean an electronic or paper document containing the

information and fields substantially in the form set forth in Exhibit 1. The Claim Form shall be

submitted under penalty of perjury, based on the Settlement Class Members’ knowledge,

information, and belief, to the Settlement Notice and Claims Administrator by a Class Member

submitting a Settlement Claim under this Agreement.

“Claims Deadline” means the final date to submit a Claim Form, which is 90 days

after Class Counsel first publishes the Class Notice to the Settlement Class pursuant to the Notice

Plan.

“Class Counsel” means Lucy Karl, on behalf of Plaintiffs’ Executive Subcommittee

and Plaintiffs’ Steering Committee, as previously designated by the Court, see Dkt. 20.

“Class Notice” means notice to the Settlement Class Members of this Agreement

substantially in the form and following the procedures described in the Notice Plan and established

by order of the Court and to be administered by Class Counsel under the direction and jurisdiction

of the Court.

“Class Period” means January 1, 2001 through the date of the Preliminary Approval

Order.

“Complaint” means the Consolidated Second Amended Class Action Master

Complaint, filed as ECF No. 238 in this action, MDL Docket No. 11-md-2263-SM (D.N.H.), and


7

any amendments of that document from the time of execution of this Agreement up to and

including the issuance of the Preliminary Approval Order.

“Court” means the Honorable Steven J. McAuliffe, or if he is unavailable, another

judge in the District of New Hampshire, the transferee district, as designated by the Judicial Panel

on Multidistrict Litigation to preside over the In Re: Dial Complete Marketing and Sales Litigation

(MDL No. 2263).

“Defendant” means the Dial Corporation.

“Defendant’s Counsel” means Eugene Assaf, Edwin John U, and Patrick Haney of

Kirkland & Ellis LLP and Robert Miller of Sheehan Phinney Bass + Green.

“Dial Complete Product” means Dial Complete Liquid Hand Soap formulated with

the active ingredient triclosan and/or using the Kills 99.99% of Germs* (*encountered in

household settings) advertising claim.

“Escrow Account” means the escrow account to be established by orders of the

Court and to be administered by the Settlement Notice and Claims Administrator under the

direction and jurisdiction of the Court to hold the Gross Settlement Proceeds. The Parties shall

move the Court to establish the Escrow Account as a “Qualified Settlement Fund” within the

requirements of Treas. Reg. § 1.468(B)-1(c), and the Parties shall for all purposes treat the Escrow

Account as a Qualified Settlement Fund established and operated in accordance with the

requirements and purposes of that regulation.

“Fairness Hearing” means the hearing conducted by the Court in connection with

determining the fairness, adequacy, and reasonableness of this Agreement under Fed. R. Civ. P.

23(e). The date of the Fairness Hearing shall be communicated to Settlement Class Members in

the Class Notice.


8

“Fee and Expense Application” means the application by Class Counsel for the

award of attorneys’ fees, costs, and expenses to Class Counsel and other counsel who performed

work for the benefit of Settlement Class Members. The Fee and Expense Application shall have

two components, the “Rule 23(b)(2) Fee and Expense Application” and the “Rule 23(b)(3) Fee

and Expense Application.”

“Fee and Expense Award” means an order of the Court, granting, in whole or in

part, the Fee and Expense Application.

“Final” with respect to this Agreement means one of the following conditions has

occurred: (1) if no timely appeal of the Final Approval Order by the Court is taken, then upon

expiration of the time for any Class Member to appeal the Final Approval Order; or, (2) if there

are any appeals of the Final Approval Order, then (i) all appellate courts with jurisdiction affirm

the Final Approval Order or (ii) the appeal is dismissed or denied such that the Final Approval

Order is no longer subject to further appeal.

“Final Approval” means the Court’s issuance of an order and judgment granting

final approval of this Agreement pursuant to Fed. R. Civ. P. 23(e), such order and judgment

granting final approval of this Agreement to be termed the Court’s “Final Approval Order.” Final

Approval and the Final Approval Order need not include the Fee and Expense Award.

“Final Effective Date” means the date upon which the Final Approval Order

approving this Agreement becomes Final.

“Gross Settlement Proceeds” means the capped amount of Seven Million and

Four Hundred Thousand U.S. Dollars ($7,400,000.00), payable pursuant to Section 4.7.1, and

consisting of (a) one component of One Million and Nine Hundred Thousand U.S. Dollars

($1,900,000) in connection with the Rule 23(b)(2) relief; and (b) another component of Five


9

Million and Five Hundred Thousand U.S. Dollars ($5,500,000) in connection with the Rule

23(b)(3) relief. The Gross Settlement Proceeds shall be the sum total of Dial’s monetary obligation

under the Settlement, regardless of the number of valid approved claims or for any other reason,

and shall be used to pay all costs associated with the Settlement, including but not limited to (a)

the costs of notice and administration of the Settlement, including for a Settlement Notice and

Claims Administrator to process claims, objections, and opt-out requests; (b) the payment of valid

approved claims; (c) attorneys’ fee awards (if any); (d) attorneys’ costs (actually incurred litigation

expenses and other hard costs apart from fees); (e) service awards (if any) to the Representative

Plaintiffs; and (f) any other expenses. Dial shall not, under any circumstances, be responsible for,

or liable for, payment of any amount under this Agreement in excess of Seven Million and Four

Hundred Thousand ($7,400,000.00) U.S. Dollars. Gross Settlement Proceeds excludes the value

of Injunctive Relief to which the parties have agreed as described more fully herein.

“Injunctive Relief” means the injunctive relief to which the Parties have agreed in

Section 3.1, below.

“Long-Form Notice” means the long-form notice to Settlement Class Members of

this Agreement to be submitted to the Court for approval and, once approved by the Court, to be

disseminated to Settlement Class Members pursuant to the Notice Plan. The Long Form Notice

shall be in substantially the form of the proposed Long-Form Notice attached as Exhibit 3.

“Joint Motion for Preliminary Approval” means the joint motion or motions filed

by the Parties pursuant to Fed. R. Civ. P. 23(e) and Local Rule 23.1 to preliminarily approve this

Settlement.

“Notice Plan” means the plan to be approved by the Court for providing Class

Notice to the Settlement Class in accordance with Fed. R. Civ. P. 23(e). The Notice Plan shall be


10

in substantially the form of the proposed Notice Plan as set forth in Exhibit 4.

“Opt-Out” means any Person who timely and properly submits a request for

exclusion from the Settlement Class in accordance with the procedures set forth in this Agreement

and approved by the Court and did not timely and properly revoke its request.

“Opt-Out Deadline” is the last date on which a Person may properly and timely

request to be excluded from the Settlement Class as set forth in the table in Section 5.6.1.

“Opt-Out List” means a list compiled by the Settlement Notice and Claims

Administrator of all properly and timely Opt-Outs to be provided to Class Counsel and Dial within

thirty (30) days of the Opt-Out Deadline.

“Person” means a natural person, corporation, limited liability company, other

company, trust, joint venture, association, partnership, or other enterprise or entity, or the legal

representative of any of the foregoing.

“Preliminary Approval Order” means the order entered by the Court preliminarily

approving the Settlement, provisionally certifying the Settlement Class, appointing Class Counsel,

approving the Notice Plan, appointing the Settlement Notice and Claims Administrator, and setting

a schedule for the Final Approval process.

“Publication Notice” means the part of the Notice Plan that includes a summary

form of electronic and/or print notice of the proposed Settlement to be published in certain hard

copy or electronic formats directed at Settlement Class Members, subject to approval of the Court,

and substantially in the form attached to this Agreement as Exhibit 2.

“Released Claims” means any and all Claims released by this Agreement as set

forth in Section 7.

“Released Parties” means Dial, along with its parent(s), including but not limited


11

to Henkel Corporation, and each of its predecessors, affiliates, assigns, successors, related

companies, subsidiary companies, holding companies, insurers, reinsurers, current and former

attorneys, and their current and former members, partners, officers, directors, agents, and

employees, in their capacity as such, any licensees, distributors, retailers, other resellers, and their

insurers, and affiliates, in their capacity as such.

“Representative Plaintiffs” means collectively Michelle Carter, Jonathan Cessna,

Sonia Herrera, Jenny Marazzi, Sven P. Vogtland, Kristina Pearson, and Elizabeth Poynter.

“Settlement Class Member” means a Person who falls within the definition of the

Settlement Class pursuant to Section 1 and who has not properly executed and timely filed a

request for exclusion from the Settlement Class.

“Settlement Claim” means a claim made by a Class Member under this Agreement.

“Settlement Fund” means the Gross Settlement Proceeds deposited into the Escrow

Account, pursuant to Section 4.7.1.1 and 4.7.1.4.

“Settlement Notice and Claims Administrator” means Angeion Group. In the event

that the Settlement Notice and Claims Administrator can no longer serve for any reason, Class

Counsel shall select a new Settlement Notice and Claims Administrator, approval of which Dial

shall not unreasonably withhold. In no event shall the Settlement Notice and Claims Administrator

be a Person other than one selected by Class Counsel and approved by Dial.

“Settlement Website” means the website under the Uniform Resource Locator

(URL) www.soapsettlement.com, which is established and maintained by Class Counsel through

the Settlement Notice and Claims Administrator, as directed by the Preliminary Approval Order

approved by the Court.

“United States” means the fifty (50) federated states, the District of Columbia, and


12

all U.S. Territories.

3. SETTLEMENT RELIEF

Rule 23(b)(2) Component.

3.1.1 Subject to the terms and conditions of this Settlement Agreement, the

Parties agree that they will jointly move the Court to enter, as part of the

Final Approval Order and Judgment, the following injunctive relief

providing that:

3.1.1.1 Dial shall not reintroduce triclosan as an active ingredient in Dial

Complete.

3.1.1.2 Dial shall not use an advertising or labeling claim that Dial

Complete “Kills 99.99%* of Germs” as that product is currently

formulated.

3.1.1.3 The terms and requirements of the Injunctive Relief shall expire on

the earlier of the following dates: (a) five years following the Final

Effective Date; or (b) the date upon which there are changes to any

applicable statute, regulation, or other law that Defendant

reasonably believes would require a modification to the labeling and

marketing of Dial Complete in its current formulation required by

the Injunctive Relief provisions in order to comply with the

applicable statute, regulation, or law.

3.1.1.4 This Settlement Agreement does not preclude Dial from making

further changes to the advertising and marketing of Dial Complete


13

as Dial sees fit, provided that those changes do not conflict with the

provisions of this Agreement.

Rule 23(b)(3) Component.

3.2.1 Recovery for Settlement Class Members.

3.2.1.1 Payment of settlement compensation to Settlement Class Members

shall be made from the Rule 23(b)(3) Component of the Settlement

Fund after all costs of Settlement administration (including, but not

limited to, costs related to Class Notice, the fees and expenses of the

Settlement Notice and Claims Administrator, any fees incurred after

the Date of this Agreement by the Mediator), as approved by the

Court, and the Rule 23(b)(3) Fee and Expense Award (if any), and

any service awards to the Representative Plaintiffs (if any), are

deducted.

3.2.1.2 The Parties agree that all remaining funds in the Rule 23(b)(3)

Component of the Settlement Fund shall be available to Settlement

Class Members who timely submit valid approved Settlement

Claims before the Claims Deadline, but in no case shall the amount

of funds available to Settlement Class Members who timely submit

valid approved Settlement Claims before the Claims Deadline be

less than Two Million Three Hundred and Twenty Five Thousand

U.S. Dollars ($2,325,000).

(a) As set forth in Section 8.2.1.3 below, Class Counsel agree to

seek no more than 35% ($1,925,000) of the Rule 23(b)(3)


14

Component of the Settlement Fund in attorneys’ fees, exclusive of

hard costs incurred by Class Counsel.

3.2.1.3 Settlement Class Members must submit a Claim Form, under

penalty of perjury pursuant to 28 U.S.C. § 1746, that the information

provided is true and correct to the best of each Class Member’s

knowledge, information, and belief.

3.2.1.4 Settlement Class Members who timely submit a valid approved

claim are entitled to receive settlement compensation of Twenty-

Seven Cents ($0.27) per package of the Dial Complete Product

purchased during the Claims Period. Settlement Class Members are

capped at thirty (30) packages per Class Member, except that

Settlement Class Members who provide actual purchase receipts for

additional purchases to the satisfaction of the Settlement Notice and

Claims Administrator may receive Twenty-Seven Cents ($0.27) per

package as settlement compensation for all packages purchased.

3.2.1.5 All timely valid approved Settlement Claims shall be paid in full

subject to the following pro rata reduction: if the total amount

required to pay $0.27 per package of the Dial Complete Product

purchased during the Claims Period exceeds the Rule 23(b)(3)

Component of the Settlement Fund (after all deductions in Section

3.2.1.1 are deducted), then each Settlement Claim shall receive a

reduced pro rata share per package of the Rule 23(b)(3) Component


15

of the Settlement Fund (after all deductions in Section 3.2.1.1 are

deducted).

3.2.2 Timing of Distributions to Settlement Class Members

3.2.2.1 No distributions to Settlement Class Members shall occur until after

the Final Effective Date.

Distribution of Remaining Funds.

3.3.1 Any amount remaining from the Settlement Fund described in Section

4.7.1.4 after payment of settlement compensation to Settlement Class

Members, the Rule 23(b)(2) Fee and Expense Award (if any), the Rule

23(b)(3) Fee and Expense Award (if any), and any incentive awards to the

Representative Plaintiffs (if any), and all costs of Settlement administration

(including, but not limited to, costs related to Class Notice, the fees and

expenses of the Settlement Notice and Claims Administrator, any fees

incurred after the Date of this Agreement by the Mediator), shall be paid in

the form of a cash donation to either (1) the Children’s Health Fund, a

501(c)(3) non-profit organization founded in 1987 to provide health care to

the nation’s most medically underserved children and adolescents by

developing a national network of health care programs; reducing the impact

of public health crises on children; and promoting the health and well-being

of all children (see 2017 Form 990 at

www.childrenshealthfund.org/finances); or (2) the Ronald McDonald

House Charities, a 501(c)(3) non-profit organization whose mission is to

create, find and support programs that directly improve the health and well-


16

being of children and their families (see https://www.rmhc.org/mission-

and-vision).

4. ADDITIONAL SETTLEMENT TERMS AND ADMINISTRATION

Commitment to Support Agreement

4.1.1 The Parties, including Class Counsel and the members of the Plaintiffs’

Executive Subcommittee and Plaintiffs’ Steering Committee, see Dkt. No.

20, agree that it is in the Settlement Class Members’ and the Parties’ best

interests to consummate this Agreement and to cooperate with each other

and to take all actions reasonably necessary to obtain Court approval of this

Agreement and entry of the orders of the Court and other courts that are

required to implement its provisions. The Parties and their counsel also

agree to support this Agreement in accordance with and subject to the

provisions of this Agreement.

Preliminary Approval of Settlement

4.2.1 The Parties shall file a Joint Motion for Preliminary Approval and

conditional (i.e., provisional) certification of the Settlement Class with the

Court within fourteen (14) days after the Execution Date.

Notice to Putative Settlement Class Members

4.3.1 After the Court has entered the Preliminary Approval Order, notice to

Settlement Class Members shall be disseminated in such form and manner

as the Court shall direct. Instructions to access the Settlement Website and

electronically submit the applicable Claim Form shall be included with the

copy of the Class Notice disseminated to putative Settlement Class


17

Members and posted on the Settlement Website. A hard copy of the

applicable Claim Form shall be made available upon request by the

Settlement Notice and Claims Administrator.

4.3.2 Class Counsel and the Settlement Notice and Claims Administrator shall be

responsible for determining the best notice practicable, including the use of

electronic notice and targeted advertising, but in no case shall the Notice

include the logos of Dial or its products, disparage Dial, or otherwise

suggest that the Settlement is an admission of liability or damages.

4.3.3 Notwithstanding paragraph 4.3.2, if the Settlement Notice and Claims

Administrator so recommends, a single image of the Dial Complete product

can be placed within the official long-form notice approved by the Court,

but shall not be used in any other aspect of the Notice program.

4.3.4 Dial shall have the opportunity to review and comment upon the Notice and

Notice Plan prior to submission to the Court.

Cost of Notice

4.4.1 Pursuant to Section 4.7.1.2, all costs in connection with implementing the

Notice Plan shall be paid from the Settlement Fund; and, once paid, shall

not be refundable in the event that the Settlement does not become Final,

provided, that Dial shall be entitled to a refund of any unused amounts

deposited for the fees and expenses of the Settlement Notice and Claims

Administrator.

Limited Certification of Settlement Class Only

4.5.1 Dial provisionally agrees and consents to certification of the Settlement


18

Class for settlement purposes only, and within the context of this Agreement

only. The Parties’ willingness to enter into this Agreement is not an

admission as to the propriety or impropriety of any litigation class in this or

any other litigation. Except as to the particular Settlement Class defined in

this Agreement for the limited purposes of this Agreement, no Party or other

litigant shall use any Party’s consent to this Agreement as the basis for

arguing that any class in this matter may or may not be certified.

Agreement Not Admissible

4.6.1 Neither this Agreement nor any statement, transaction, or proceeding in

connection with the negotiation, execution, or implementation of this

Agreement is intended to be or may be construed as or deemed to be

evidence of an admission or concession by Dial of any (i) liability or

wrongdoing or of the truth of any allegations in the Complaint against Dial,

or (ii) infirmity of, or strength of any alleged defense against, the allegations

in the Complaint; and neither this Agreement nor any statement, transaction,

or proceeding in connection with the negotiation, execution, or

implementation of this Agreement shall be admissible in evidence for any

such purpose in any proceeding. The Parties’ consent to this Settlement is

contingent upon this Agreement becoming Final. If this Agreement, for any

reason, does not become Final or is otherwise terminated, the Parties reserve

their respective rights to reassert all of their claims, allegations, objections,

and defenses to certification of any class for litigation purposes, and the

Parties further agree that none of them shall offer this Agreement, nor any


19

statement, transaction, or proceeding in connection with the negotiation,

execution, or implementation of this Agreement, as evidence in support of

or opposition to a motion to certify any litigation class or for any other

litigation purpose.

Terms of Recovery/Consideration for Settlement Process

4.7.1 Escrow Account and Settlement Fund

4.7.1.1 In full and final settlement of the Released Claims of Settlement

Class Members, Dial agrees to deposit the Gross Settlement

Proceeds into the Escrow Account. Upon the Final Effective Date

of this Agreement, Dial shall have no right of reversion in the Gross

Settlement Proceeds. In the event, however, that this Agreement,

for any reason, does not become Final, that there is no Final

Effective Date, or this Agreement is otherwise terminated, Dial shall

be entitled to a refund of the portion of the Gross Settlement

Proceeds that it has deposited into the Escrow Account, minus any

amounts that have then been incurred for the fees and expenses of

the Settlement Notice and Claims Administrator.

4.7.1.2 Within fifteen (15) days after the Court issues a Preliminary

Approval Order, Dial shall deposit Three Hundred and Fifty

Thousand U.S. Dollars ($350,000.00) of the Gross Settlement

Proceeds into the Escrow Account, a portion of which shall be used

to pay the fees and expenses of the Settlement Notice and Claims

Administrator, as well as the Class Notice as approved by the Court.


20

4.7.1.3 Within thirty (30) days after this Agreement becomes Final, Dial

shall deposit the remaining Seven Million and Fifty Thousand U.S.

Dollars ($7,050,000.00) of the Gross Settlement Proceeds into the

Escrow Account.

4.7.1.4 Dial’s deposits of the Gross Settlement Proceeds into the Escrow

Account shall constitute the Settlement Fund, and the Settlement

Fund shall be used for purposes of meeting the obligations under

this Agreement.

4.7.1.5 Dial’s payment of the Gross Settlement Proceeds shall relieve Dial

of any liability with respect to the authentication of Settlement

Claims, the allocation of the Gross Settlement Proceeds among the

Settlement Class Members and the timing and method of Settlement

Fund distributions.

4.7.1.6 No portion of the Gross Settlement Proceeds shall be distributed

from the Escrow Account prior to the Final Effective Date with the

exception of the fees and expenses of the Settlement Notice and

Claims Administrator.

Settlement Statistics

4.8.1 Throughout the Settlement Process, the Settlement Notice and Claims

Administrator, shall compile and make available to Class Counsel and Dial,

upon their request, reports containing summary statistics detailing the

implementation of the Settlement Process. Such reports shall include

information regarding the status of the Settlement Process including,


21

without limitation, the Settlement Notice and Claims Administrator’s fees

and expenses, the number of proper and timely Opt-Outs, the number of

Claim Forms received, the number of Claim Forms fully processed, the

number of Claim Forms rejected and the reason for same, and the number

of Claim Forms determined by the Settlement Notice and Claims

Administrator to be deficient.

4.8.2 The Settlement Notice and Claims Administrator shall provide a list of

timely and complete opt-out requests to the Parties thirty (30) days after the

Opt-Out Deadline (the “Opt-Out List”).

Stay and Resumption of Proceedings

4.9.1 Contemporaneous with the filing of the Joint Motion for Preliminary

Approval as set forth in Section 4.2.1, Counsel for the Parties shall (1)

request for a stay of all proceedings in the In Re: Dial Complete Marketing

and Sales Litigation (MDL No. 2263) and shall (2) seek an order from the

Court pursuant to the All Writs Act, 28 U.S.C. § 1651, and the Anti-

Injunction Act, 28 U.S.C. § 2283, prohibiting the prosecution of any

pending or subsequently filed litigation by Settlement Class Members.

Proceedings in the Court arising out of and relating to this Agreement, and

any other proceeding necessary to effectuate this Agreement in any other

action shall be excepted from the stay. In the event the Court does not give

Final Approval to this Agreement, the Final Effective Date does not occur,

or this Agreement is otherwise terminated, the Parties agree that all stayed

proceedings shall resume in a reasonable manner.


22

Public Statements and Websites

4.10.1 The Parties have the right, but not the obligation, to issue press releases or

other statements regarding the Settlement, but the Parties agree not to make

any public comment about the Settlement until such time that the Parties

file their Joint Motion for Preliminary Approval of the Settlement. No press

release or other public statement shall contain any false or misleading

statements in any form regarding the Settlement. Plaintiffs’ Executive

Committee agrees to seek prior approval from Dial regarding any press

releases, notices, or public statements about the litigation and Settlement.

Approval of such press releases, notices, or any other public statements shall

not be unreasonably withheld. No press release or other statements can

disparage the other side, suggest that Dial has been found to have violated

any laws, or suggest that the Settlement constitutes an admission of liability,

damages, or any other aspect of this litigation. For the avoidance of doubt,

any reference to Dial Complete as being unsafe or not generally recognized

as safe and effective would constitute disparagement.

CAFA Notices

4.11.1 Within ten (10) days after submission of this Agreement to the Court, the

Parties agree that the Settlement Notice and Claims Administrator shall

serve notices of the Settlement on state and federal regulatory authorities as

required by Section 3 of the Class Action Fairness Act of 2005, 28 U.S.C.

§ 1715 (“CAFA Notices”). In the event that a state or federal official raises


23

concerns about the Settlement, the Parties and their counsel agree to work

together in good faith to resolve those concerns.

Joint Motion for Final Approval of the Settlement

4.12.1 The Parties shall file a joint motion with the Court seeking an order granting

final approval of this Agreement pursuant to Fed. R. Civ. P. 23 and Local

Rule 23.1 (the “Joint Motion for Final Approval”), together with a

declaration from the Settlement Notice and Claims Administrator (with

respect to the provision of the Class Notice and regarding the Settlement

Process), by the Joint Motion for Final Approval Deadline as set forth in

Section 5.6.1. Class Counsel shall file the Fee and Expense Application at

least two (2) weeks before the deadline to object to the Settlement or as

otherwise ordered by the Court.

5. SETTLEMENT ADMINISTRATION

Settlement Notice and Claims Administrator

5.1.1 The Settlement Notice and Claims Administrator may retain claim officers,

experts, and/or advisors as are reasonably necessary to carry out the duties

of the Settlement Notice and Claims Administrator. The administration of

the Settlement Fund and the Settlement Process shall be subject to the

Court’s supervision and remain at all times under the exclusive and

continuing jurisdiction of the Court. The Settlement Notice and Claims

Administrator shall issue reports as requested by Class Counsel and Dial

regarding its activities, fees and expenses, and other procedures. Class

Counsel or Dial may raise by written objection filed with the Court any


24

challenge to the procedures instituted by, or the fees and expenses of, the

Settlement Notice and Claims Administrator with respect to the

administration of the Settlement Fund. The Settlement Notice and Claims

Administrator shall be responsible for disseminating information to

Settlement Class Members concerning settlement procedures, among other

ways, by establishing a website. Class Counsel and Dial, and their

respective agents and consultants may also disseminate information about

the Settlement and the Settlement Process that is fully consistent with the

Court’s approved Notice Plan and Section 4.10.1 above and not in any way

false or misleading.

Notice

5.2.1 The Notice Plan shall satisfy Rule 23 of the Federal Rules of Civil

Procedure and be subject to the Court’s approval.

5.2.1.1 As described in Section 4.7.1.2, Dial shall advance into the Escrow

Account no more than $350,000 to pay the initial costs to implement

the Notice Plan. Dial shall make contact information for potential

class members to the extent readily available in its files, available to

Class Counsel and the Settlement Notice and Claims Administrator

and shall not object to their efforts to obtain class member

information from third parties (including, upon request, signing

consent forms indicating that Dial does not object to the provision

of contact information for potential class members to Class Counsel

and the Settlement Notice and Claims Administrator for the sole


25

purpose of effectuating the Notice Plan). Thereafter, Class Counsel

in consultation with Dial and with the aid of the Settlement Notice

and Claims Administrator, in accordance with Fed. R. Civ. P. 23(e),

the Due Process clause of the United States Constitution, and the

Preliminary Approval Order, shall provide all Settlement Class

Members that can be identified by reasonable means with the best

notice practicable under the circumstances.

5.2.1.2 As directed by the Preliminary Approval Order, Class Counsel,

through the Settlement Notice and Claims Administrator, shall

establish and maintain the Settlement Website pursuant to Section

4.3.1, on which at least the relevant pleadings, settlement

documents, any applicable deadlines, and the Long-Form Notice

shall be posted in order to provide information to the Settlement

Class of the proposed Settlement. The Settlement Notice and

Claims Administrator shall notify Dial’s counsel of the date the

Long-Form Notice shall be issued to the Settlement Class at least

five (5) days prior to the date of issuance.

5.2.1.3 Class Counsel, through the Settlement Notice and Claims

Administrator, also shall cause the Publication Notice to be

published to the Settlement Class Members as contained in the

Notice Plan and as directed by the Preliminary Approval Order.

5.2.2 All notice contemplated under this Agreement and the Notice Plan shall be

issued and completed by the time set forth in Section 5.6.1, unless otherwise


26

ordered by the Court.

Opting Out of the Settlement Class

5.3.1 Each Class Member may, at its option, elect to opt out of the Settlement.

Any Class Member who wishes to opt out of the Settlement must do so, in

writing, by mailing a request for exclusion to the Settlement Notice and

Claims Administrator signed by the Class Member (the “Opt-Out

Request”). Any such request must be sent to the Settlement Notice and

Claims Administrator and postmarked by the Opt-Out Deadline.

5.3.2 The request to opt out must:

bear the Handwritten Signature of the Class Member seeking to opt out;

set out the Class Member’s full legal name, valid mailing address, and functioning telephone number;

state that the Class Member has reviewed and understood the Class Notice and chooses to be excluded from the Settlement Class and understands that, by opting out, the Class Member shall not share in any recovery obtained by judgment on behalf of the Settlement Class; and

provide the name of and contact information for the Class Member’s attorney, if represented.

5.3.3 No person or entity may opt-out on behalf of another Class Member.

5.3.4 All requests to opt out that fail to satisfy the requirements of this Section,

as well as any additional requirements that the Court may impose, shall be

void. No class-wide, mass opt-outs, or opt-outs signed by attorneys are

permitted under this Agreement.

5.3.5 Any Class Member who does not properly and timely submit a request to

opt out as required in this Agreement shall be deemed to have waived all


27

rights to opt out and shall be deemed a member of the Settlement Class for

all purposes under this Agreement.

Objecting to the Settlement

5.4.1 Any Class Member who does not timely and properly opt out of the

Settlement may object to the fairness, reasonableness, or adequacy of the

proposed Settlement under Federal Rule of Civil Procedure 23. Each Class

Member who wishes to object to any term of this Agreement must do so, in

writing, by filing a written objection with the Clerk of the Court and mailing

it to Settlement Class Counsel, counsel for Dial, and the Settlement Notice

and Claims Administrator at the addresses set forth below:

Settlement Class Counsel: Counsel for Dial:

Lucy J. KarlShaheen & Gordon, P.A.P.O. Box 2703 107 Storrs Street Concord, NH 03301

Settlement Notice and Claims Administrator:

ANGEION GROUP 1650 Arch Street, Suite 2210Philadelphia, PA 19103

Patrick HaneyKirkland & Ellis LLP655 Fifteenth Street NWWashington DC 20005

5.4.2 Any such objection must be postmarked by the deadline for filing objections

and under the procedures established by the Court. Any such objection must

(a) attach copies in advance of any materials that the objector intends to

submit to the Court or present at the Fairness Hearing; (b) be personally

signed by the Class Member and, if represented, by his or her counsel; (c)


28

include information or documents sufficient to show that the objector is a

Class Member; and (d) clearly state in detail (i) the legal and factual

ground(s) for the objection, (ii) the Class Member’s name, mailing address,

email address, and telephone number, (iii) if represented by counsel, such

counsel’s name, email address, mailing address, and telephone number, (iv)

any request to present argument to the Court at the Fairness Hearing; (v)

previous objections that the Class Member has filed in class action

settlements in the past five years and the results of those objections

(including any settlements that were reached concerning his or her

objection); and (vi) previous objections that the objecting Class Member’s

class counsel has filed either in a representative capacity or on their own

behalf in the past five years (including any settlements that were reached

concerning those objections).

5.4.3 Any objection that fails to satisfy the requirements of this Section, or that is

not properly and timely submitted, shall be deemed void and waived unless

otherwise ordered by the Court. The Court shall make the final

determination if any objection complies with the requirements of this

Section. Any Party may respond to any objection by the date as ordered by

the Court.

Requests to Appear at Final Approval Hearing

5.5.1 Any Class Member who wishes to appear and be heard in person or by

counsel at the Fairness Hearing must make such request by notifying the

Court and the Parties’ respective counsel at the addresses set forth in Section


29

5.4.1 of this Agreement, subject to the discretion of the Court. Any such

request must be filed with the Clerk of the Court and postmarked no later

than thirty (30) days prior to the Fairness Hearing, or as otherwise ordered

by the Court, and must state the name, address, and telephone number of

the Class Member, as well as the name, address, and telephone number of

the person that shall appear on his or her behalf. Any request for appearance

that fails to satisfy the requirements of this Section, or that has otherwise

not been properly or timely submitted, shall be deemed ineffective and a

waiver of such Class Member’s rights to appear and to comment on the

Settlement at the Fairness Hearing. Only the Parties, Settlement Class

Members, or their counsel may request to appear and be heard at the

Fairness Hearing. Persons or entities that opt out may not request to appear

and be heard at the Fairness Hearing.

Deadlines

5.6.1 Unless otherwise ordered by the Court, the following deadlines shall apply.

In the case of a discrepancy between the table below and the text of this

Agreement, the dates in the following table control:

ACTION TIMING

Filing of Joint Motion of Preliminary

Approval

Within 10 days after the Settlement

Agreement is Executed

CAFA Notice Deadline10 days after the Joint Motion for Preliminary

Approval Is Filed


30

ACTION TIMING

First Publication of Class Notice

(Online or print)

No later than 10 days after issuance of the

Preliminary Approval Order

First Installment of Gross Settlement

Proceeds Paid into Escrow

15 days after issuance of the Preliminary

Approval Order

Opt-Out Deadline 60 days after First Publication of Class Notice

Opt-Out List 10 days after the Opt-Out Deadline

Claims Deadline 90 days after First Publication of Class Notice

Dial’s Walk Away Deadline

30 days after receipt of the Opt-Out List or

Fee and Expense Award Order, whichever is

later, unless otherwise extended

Joint Motion for Final Approval

Deadline30 days after Claims Deadline

Fee and Expense Applications Deadline 2 weeks before Objection Filing Deadline

Objection Filing Deadline As determined by the Court

Objection Response Deadline 2 weeks after Objection Filing Deadline

Final Installment of Gross Settlement

Proceeds Paid into Escrow Account30 days after Settlement becomes Final

6. EXCLUSIVE REMEDY/DISMISSAL OF CLAIMS/JURISDICTION

Limitation on Released Party Liability

6.1.1 No Released Party shall be subject to liability or expense of any kind to any

Class Member or their respective counsel related to the Released Claims


31

except as provided in this Agreement.

Dismissal of Claims

6.2.1 The Parties agree that upon the Final Effective Date of this Agreement, all

Released Claims shall be dismissed with prejudice in accordance with the

Final Approval Order entered by the Court, including by seeking dismissal

with prejudice of the MDL Complaint and all of the underlying actions by

filing the requisite papers in the MDL.

7. RELEASES AND RESERVATIONS AND COVENANTS NOT TO SUE

Released Claims and Covenants Not to Sue

7.1.1 In consideration of the benefits described and the provisions contained in

this Agreement, all Settlement Class Members (regardless of whether a

Settlement Class Member submits a Claim Form) promise, covenant, and

agree that, upon the Final Effective Date and by operation of the Final

Approval Order, the Settlement Class Members shall release and forever

discharge the Released Parties from any liability for all claims of any nature

whatsoever in law or in equity, past and present, and whether known or

unknown, suspected or claimed, relating to or arising under any federal,

state, local, or international statute, regulation, or law (including state

consumer fraud, warranty, unjust enrichment laws, codal law, adjudication,

quasi-adjudication, tort claims, contract claims, actions, causes of action,

declaratory judgment actions, cross-claims, counterclaims, third-party

claims, demands, and claims for damages, compensatory damages,

liquidated damages, punitive damages, exemplary damages, multiple


32

damages, and other noncompensatory damages or penalties of any kind,

fines, equitable relief, injunctive relief, conditional or other payments or

interest of any type, debts, liens, costs, expenses and/or attorneys’ fees,

interest, or liabilities) that have been or could have been brought in

connection with Dial’s distribution, sale, purchase, labeling, packaging,

marketing, advertising, and/or use of the Dial Complete Product, subject

only to the express exceptions listed in the Reservation of Claims and Rights

in Section 7.2 below. Specifically excluded from this release is any claim

for bodily injury allegedly suffered in connection with the Dial Complete

Product. Dial agrees to provide reciprocal and mutual releases to the

Representative Plaintiffs and Settlement Class Members from any liability

for all Claims regarding the Dial Complete Product at issue.

7.1.2 All Settlement Class Members covenant and agree that they shall not

hereafter seek to sue or otherwise establish liability against any Released

Parties based, in whole or in part, on any of the Released Claims. Each

Class Member expressly waives and fully, finally, and forever settles and

releases any known or unknown, suspected or unsuspected, contingent or

non-contingent Released Claims without regard to the subsequent discovery

or existence of different or additional facts. The Parties shall cooperate and

assist one another in defending against and obtaining the dismissal of any

claims brought by Persons seeking to assert claims released under this

Agreement. Similarly, Dial covenants and agrees that it shall not hereafter

seek to sue or otherwise establish liability against any Representative


33

Plaintiff or Settlement Class Member regarding this litigation, or any

Claims that Dial could have brought as part of this litigation or in litigation

concerning distribution, sale, purchase, labeling, packaging, marketing,

advertising, and/or use of the Dial Complete Product.

7.1.3 IN ADDITION, EACH CLASS RELEASOR HEREBY EXPRESSLY

WAIVES AND RELEASES, UPON THE FINAL EFFECTIVE DATE,

ANY AND ALL PROVISIONS, RIGHTS, AND BENEFITS

CONFERRED BY § 1542 OF THE CALIFORNIA CIVIL CODE OR ANY

OTHER STATUTE, LAW OR PRINCIPLE OF COMMON LAW,

WHICH IS SIMILAR, COMPARABLE, OR EQUIVALENT TO § 1542

OF THE CALIFORNIA CIVIL CODE, WHICH READS:

SECTION 1542. GENERAL RELEASE; EXTENT. A

GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR

SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE

TIME OF EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM OR HER MUST HAVE MATERIALLY

AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

7.1.4 Each Class Member may hereafter discover facts other than or different

from those which he, she, or it knows or believes to be true with respect to

the claims which are the subject matter of this Section 7, but each Class

Member hereby expressly waives and fully, finally, and forever settles and

releases, upon the Final Effective Date, any known or unknown, suspected


34

or unsuspected, contingent or non-contingent Released Claims with respect

to the subject matter of this Section 7 whether or not concealed or hidden,

without regard to the subsequent discovery or existence of such different or

additional facts. Each Class Member also hereby expressly waives and

fully, finally, and forever settles and releases any and all Released Claims

it may have against the Released Parties under § 17200, et seq., of the

California Business and Professions Code. Similarly, to the extent that Dial

hereafter discovers facts other than or different from those which it knows

or believes to be true with respect to the Claims that it could have brought

in this litigation, it mutually waives and fully, finally, and forever settles

and releases any Claims that it could have brought in connection with this

litigation.

7.1.5 From and after the Final Effective Date, for the consideration provided for

in this Agreement and by operation of the Final Approval Order, the

Settlement Class Members covenant, promise, and agree that they shall not,

at any time, institute, cause to be instituted, assist in instituting, or permit to

be instituted on his, her, or its behalf, or on behalf of any other individual

or entity, any proceeding (1) alleging or asserting any of his or her

respective Released Claims against the Released Parties in any federal

court, any state court, or arbitration, regulatory agency, or any other tribunal

or forum, or (2) challenging the validity of the release of claims by Class

Releasors as set forth in this Section 7. Dial mutually covenants, promises,

and agrees that it shall not, at any time, institute, cause to be instituted, assist


35

in instituting, or permit to be instituted on its behalf, or on behalf of any

other individual or entity, any proceeding regarding Claims that it could

have brought in connection with this litigation.

7.1.6 This Release is not intended to prevent Dial from exercising any rights of

contribution, subrogation, or indemnity under any law; however, the Parties

agree that the releases in this Settlement Agreement are mutual in nature.

Reservation of Claims and Rights

7.2.1 Released Claims shall not include any claim against the Released Parties

for bodily injury allegedly suffered in connection with the Dial Complete

Product.

7.2.2 The Parties agree that this Agreement, whether or not the Final Effective

Date occurs, and any and all negotiations, documents, and discussions

associated with it, shall be without prejudice to the rights of any Party (other

than those compromised in this Agreement); shall not be deemed or

construed to be an admission or evidence of any violation of any statute or

law, any liability or wrongdoing by any of the Released Parties, or of the

truth of any of the claims or allegations contained in any complaint or

pleading, whether in the MDL Action, any other actions, or otherwise. The

Parties expressly reserve all of their rights if this Agreement fails to become

Final and effective substantially in accordance with its terms.

7.2.3 If the Court does not certify the Settlement Class or this Agreement is not

approved by the Court substantially in accordance with its terms, and does

not become subject to a Final Approval Order following such approval, or


36

the Final Approval Order does not become Final, then no class shall be

deemed certified by or as a result of this Agreement, and the MDL Action,

for all purposes, shall revert to its status as of the date before the execution

of this Agreement, and the Parties agree that all stayed proceedings shall

resume in a reasonable manner. In such event, Dial shall not be deemed to

have consented to certification of the Settlement Class, and shall retain all

rights to oppose class certification in litigation, including, without

limitation, to certification of the identical class provided for in this

Agreement. Dial shall also be entitled to a refund of the portion of the Gross

Settlement Proceeds that it has deposited into the Escrow Account, minus

any amounts that have then been incurred for the fees and expenses of the

Settlement Notice and Claims Administrator.

8. ADMINISTRATIVE EXPENSES AND ATTORNEYS’ FEES

Administrative Expenses

8.1.1 Other than Dial’s own fees, costs and expenses, the Released Parties shall

not be liable for any litigation fees, costs or expenses of the MDL Action

except as expressly set forth in this Agreement and as approved by the

Court.

8.1.2 Dial and the Released Parties shall have no liability with respect to any

disputes among plaintiffs’ counsel relating to the award, allocation, or

entitlement to any fees, costs, or expenses, including without limitation, any

Common Benefit Fund, or other agreements relating to pursuit of the MDL

Actions or any other litigation. The Court shall retain jurisdiction over any


37

disputes among plaintiffs’ counsel relating to the award, allocation, or

entitlement to any fees, costs, or expenses, but any such disputes shall not

affect this Settlement becoming Final.

Attorneys’ Fees, Expenses, and Plaintiff Incentive Awards

8.2.1 As part of the Settlement, Class Counsel shall apply to the Court for a Fee

and Expense Award, broken into two components, the Rule 23(b)(2)

Component and the Rule 23(b)(3) Component.

8.2.1.1 Class Counsel expressly agree that they shall not seek in excess of

$1,900,000.00 in attorneys’ fees to be drawn from the Rule 23(b)(2)

Component of the Settlement Fund, for their work in securing the

injunctive relief obtained by this Agreement.

8.2.1.2 Dial agrees not to take any position regarding the application by

Class Counsel for attorneys’ fees in an amount up to $1,900,000.00

to be drawn from the Rule 23(b)(2) Component of the Settlement

Fund.

8.2.1.3 Class Counsel expressly agree that they shall not seek in excess of

35%, or $1,925,000.00, in attorneys’ fees to be drawn from the Rule

23(b)(3) Component of the Settlement Fund, for their work in

securing the monetary relief obtained by this Agreement.

8.2.1.4 Dial agrees not to take any position regarding the application by

Class Counsel for attorneys’ fees not in excess of $35%, or

$1,925,000, to be drawn from the Rule 23(b)(3) Component of the

Settlement Fund.


38

8.2.1.5 Class Counsel shall apply to the Court for reimbursement of its

litigation expenses and hard costs, which shall be reimbursed from

the Rule 23(b)(3) Component of the Settlement Fund and which Dial

shall not oppose or object to. Class Counsel estimate such litigation

expenses and hard costs to total $650,000, but are entitled to seek

reimbursement for all actually incurred litigation expenses and hard

costs.

8.2.1.6 Dial agrees not to take any position with regard to service awards at

or below $5,000 for each of the Representative Plaintiffs, to be

drawn from the Rule 23(b)(3) Component of the Settlement Fund.

Role of Litigation In Product Reformulation and Labeling Changes, and

Value Thereof to the Settlement Class

8.3.1 Class Counsel and Dial agree that in the midst of this litigation, the U.S.

Food and Drug Administration, on December 16, 2013, issued a Proposed

Rule concerning consumer antiseptic hand and body washes. Faced with

these considerations, and the uncertainty of ongoing litigation, Dial

reformulated its Dial Complete product, replacing triclosan as the active

ingredient therein (as with a number of other manufacturers), and also

revised a number of claims on the packaging and associated advertising on

the now-reformulated Dial Complete product, including revising the “Kills

99.99% of Germs” claim to state that Dial Complete “Kills 99.99% of

Bacteria.*”


39

8.3.2 As part of the Settlement, Dial agrees to injunctive relief under which it will

not market the current formulation of Dial Complete using a “Kills 99.99%

of Germs” claim. Plaintiffs point to these changes, and the considerable

costs associated with the product reformulation and revisions to advertising

claims, as a result achieved in the wake of this litigation, while

acknowledging that this settlement does not constitute an admission of

liability, damages, or any other issue in the lawsuit.

9. WALK AWAY RIGHTS AND TERMINATION OF THIS AGREEMENT

Termination

9.1.1 This Agreement shall be terminated, without notice, if the Court declines to

enter the Preliminary Approval Order, declines to grant Final Approval, or

if such approval or other necessary orders do not become Final (as a result

of reversal on appeal or otherwise).

Walk Away Right

9.2.1 Dial shall have the absolute and unconditional right, solely at its option, to

terminate this Agreement (such option being referred to in this Agreement

as the “Walk Away Right”) in the event any of the triggers or thresholds

contained in a separate agreement (to be filed under seal with the Court and

to be confidential and attorney’s eyes only and access limited to Class

Counsel and Dial) are exceeded.

9.2.2 If any of these triggers or thresholds are exceeded, then, during the period

beginning upon Dial’s receipt of the Opt-Out List and ending at midnight

Central Time on the thirtieth (30th) day thereafter (such period being


40

referred to as the “Walk Away Period” and the last day of such period being

referred to in this Agreement as the “Walk Away Deadline”), Dial has the

option to exercise its Walk Away Right.

Time to Exercise Walk Away Right

9.3.1 Dial may exercise its Walk Away Right during the Walk Away Period upon

written notice to such effect delivered to the Court and Class Counsel.

9.3.2 If Dial has a Walk Away Right, alternatively, Dial may, in its sole and

absolute discretion, do any of the following at any time during the Walk

Away Period upon written notice to such effect delivered to the Court and

Class Counsel:

9.3.2.1 extend the date for the exercise of its Walk Away Right by a period

of thirty (30) days; or

9.3.2.2 irrevocably waive its Walk Away Right.

Effects of Termination

9.4.1 In the event of notice of termination by Dial, this Agreement shall be of no

further force or effect; the Parties shall jointly request the Court to vacate

any order certifying the Settlement Class; and the Parties agree that all

stayed proceedings shall resume in a reasonable manner.

9.4.2 Any term of this Agreement to the contrary notwithstanding, upon Dial

exercising its Walk Away Right, this Agreement immediately shall

terminate and (without limitation of the foregoing) Dial immediately shall

cease to have any further financial obligations under this Agreement;

provided however, that Section 4.6 shall survive such termination.


41

10. MISCELLANEOUS PROVISIONS

Recitals

10.1.1 The recitals set forth prior to Section 1 of this Agreement are hereby

expressly incorporated into this Agreement and made a part hereof.

Best Efforts

10.2.1 The Parties agree to use their best efforts, including all steps required by

this Agreement and other efforts that may be necessary or appropriate, by

order of the Court or otherwise, to carry out the terms of this Agreement.

No Inducement

10.3.1 The Parties acknowledge, stipulate, and agree that no covenant, obligation,

condition, representation, warranty, inducement, negotiation, or

understanding concerning any part or all of the subject matter of this

Agreement has been made or relied on except as expressly set forth in this

Agreement and the Parties’ separate side agreement referenced in Section

9.2.1.

Severability

10.4.1 The invalidity or unenforceability of any provision of this Agreement shall

in no way affect the validity or enforceability of any other provision. If, in

any action before any court or other tribunal of competent jurisdiction, any

term, restriction, covenant, or promise is held to be unenforceable for any

reason, then such term, restriction, covenant, or promise shall be deemed

modified to the extent necessary to make it enforceable by such court or

other tribunal and, if it cannot be so modified, then this Agreement shall be


42

deemed amended to delete from this Agreement such provision or portion

adjudicated to be invalid or unenforceable, and this Agreement shall be

deemed to be in full force and effect as so modified.

10.4.2 Notwithstanding Section 10.4.1, however, the Parties agree that the Rule

23(b)(2) and Rule 23(b)(3) Components of this settlement, and the

accompanying releases and covenants not to sue, are integral and indivisible

provisions without which the parties would not have entered into this

Agreement.

No Penalty or Fine

10.5.1 The Parties agree and acknowledge that no consideration, amount, or sum

paid, credited, offered, or extended, or to be paid, credited, offered, or

extended, by Dial in the performance of this Agreement constitutes a

penalty, fine, or any other form of assessment for any alleged claim or

offense.

Receipt of Advice of Counsel

10.6.1 Representative Plaintiffs acknowledge, agree, and specifically warrant and

represent that they have discussed with Class Counsel (or their designees)

the portions of this Agreement relevant to them, including the release of

Released Claims contained in Section 7, and received legal advice with

respect to the advisability of entering into this Agreement, and the legal

effect of this Agreement.

Timing

10.7.1 Class Counsel and Dial may agree in writing to reasonable extensions of


43

time to carry out the provisions of this Agreement.

No Tax Advice

10.8.1 No opinion regarding the tax consequences of this Agreement to any

individual Class Member is being given or shall be given by Dial or its

counsel, nor is any representation or warranty in this regard made by virtue

of this Agreement. Settlement Class Members must consult their own tax

advisors regarding the tax consequences of the Settlement, including any

payments provided hereunder and any tax reporting obligations they may

have with respect to this Agreement. Each Class Member’s tax obligations,

and the determination thereof, are his, her, or its sole responsibility, and it

is understood that the tax consequences may vary depending on the

particular circumstances of each individual Class Member. Released

Parties shall have no liability or responsibility whatsoever for any such tax

consequences resulting from payments under this Agreement. To the extent

required by law, the Released Parties shall report payments made under this

Agreement to the appropriate authorities.

Notice of Breach

10.9.1 The waiver by any of the Parties of any provision of or breach of this

Agreement, in whole or in part, by another Party shall not be deemed or

construed as a waiver of any other provision of or breach of this Agreement,

whether prior, subsequent, or contemporaneous, to this Agreement. In the

event that one Party to this Agreement is notified in writing by the other

Party of any alleged breach of this Agreement, the allegedly-breaching


44

Party shall have fourteen (14) days from the date of receipt of such notice

to cure any such alleged breach and to notify the other Party, in writing, of

the cure implemented to address the alleged breach. If the Party asserting

the breach is not satisfied with the cure, that Party shall have the right to

petition the Court for relief within thirty days after receipt of notice of the

cure.

Enforcement

10.10.1Only if this Settlement is finally approved by the Court and becomes Final,

this Agreement may be pleaded as a full and complete defense to any action,

suit, or other proceeding that has been or may be instituted, prosecuted or

attempted against the Released Parties in such capacity with respect to any

of the Released Claims, and may be filed, offered, received into evidence,

and otherwise used for such defense. This Agreement may also be used in

connection with the Parties’ application for approval or enforcement of this

Agreement and all proceedings incident to this Agreement, including

requests for attorneys’ fees, costs, disbursements and compensation to the

Settlement Classes, and any disputes arising from this Agreement.

Authorization to Enter Agreement

10.11.1The undersigned representatives of Dial represent that they are fully

authorized to enter into and execute this Agreement on behalf of Dial. Class

Counsel represents that she is fully authorized to conduct settlement

negotiations with counsel for Dial on behalf of Plaintiffs’ Executive

Subcommittee, Plaintiffs’ Steering Committee, the Representative


45

Plaintiffs and Settlement Class Members and to enter into and execute this

Agreement on their behalf, subject to approval by the Court pursuant to Fed.

R. Civ. P. 23.

No Party Is the Drafter

10.12.1None of the Parties to this Agreement shall be considered the drafter of this

Agreement or any provision thereof for the purpose of any statute, case law

or rule of construction that would or might cause any provision to be

construed against the drafter.

Choice of Law

10.13.1This Agreement shall be governed by and interpreted in accordance with

the substantive laws of the State of New Hampshire without regard to its

choice of law or conflict of laws principles. The Court shall maintain

continuing jurisdiction over this matter in any proceeding to interpret,

enforce, modify, or set aside the terms of this Agreement.

Computing Dates

10.14.1For all deadlines under this Agreement, to compute deadlines (a) exclude

the day of the event that triggers the period; (b) count every calendar day,

including intermediate Saturdays, Sundays, and legal holidays; and (c)

include the last day of the period, but if the last day is a Saturday, Sunday,

or legal holiday, the period continues to run until the end of the next day

that is not a Saturday, Sunday, or legal holiday.

Time for Compliance

10.15.1If the date for performance of any act required by or under this Agreement


46

is due to be performed on or by a Saturday, Sunday, or legal holiday, that

act may be performed on the next business day with the same effect as if it

had been performed on the day or within the period of time specified by or

under this Agreement.

Jurisdiction and Dispute Resolution

10.16.1Pursuant to the Final Approval Order, the Court shall retain continuing and

exclusive jurisdiction over the Parties and their counsel, the Settlement

Notice and Claims Administrator, the Settlement Fund (including any

trustee or other administrator or agent of the Settlement Fund, as

applicable), and all Settlement Class Members with respect to the terms of

this Agreement, the proper provision of all benefits thereunder, and the

implementation and enforcement of its terms, conditions, and obligations.

The terms of this Agreement shall be incorporated into the Final Approval

Order of the Court, which shall allow that Final Approval Order to serve as

an enforceable injunction by the Court for purposes of the Court’s

continuing jurisdiction related to this Agreement.

10.16.2The Court also shall retain exclusive and continuing jurisdiction over the

Fee and Expense Award.

Administrative Procedures

10.17.1The Settlement Notice and Claims Administrator may create administrative

procedures, supplementary to (and not inconsistent with) those specified

herein that provide further specific details about how the Settlement is to be

administered, and/or other aspects of the Settlement, including, but not


47

limited to, procedures regarding submission of documents or procedures

regarding execution and signature of documents; provided, however, that

such procedures comply, or otherwise are not in conflict, with the terms of

this Agreement, and are agreed to by the Parties and approved by the Court.

Amendment or Waiver

10.18.1This Agreement shall not be modified in any respect except by a writing

executed by all Parties to this Agreement. The waiver of any rights

conferred by this Agreement shall be effective only if made in writing by

the waiving Party. The waiver by any Party of any breach of this Agreement

shall not be deemed or construed as a waiver of any other breach, whether

prior to, subsequent to, or contemporaneous with this Agreement.

Execution in Counterparts

10.19.1This Agreement may be executed in counterparts. Facsimile or PDF

signatures shall be valid signatures as of the date thereof.

Integrated Agreement

10.20.1This Agreement, including its exhibits and the Parties’ side agreement

referenced in Section 9.2.1 above that is to be filed with the Court under

seal, contains an entire, complete, and integrated statement of the terms

agreed to by and between the Parties, and supersedes all prior proposals,

negotiations, agreements, and understandings relating to the subject matter

of this Agreement.

IN WITNESS WHEREOF, the Parties to this Agreement, by and through their fully

authorized representatives, have executed this Agreement as of _____________________, 2018.


48

****


FOR PLAINTIFFS:

Plaintiffs' Interim Lead and Class Counsel


Plaintiffs ' Executive Subcommittee

NEBLETT, BEARD & ARSENAULT

CLIMACO, WILCOX, PECA & GAROFOLI CO., L.P.A.

du.~ ~Pl Eric ~ nanl HOLLAND LAW FIRM

DICELLO LEVITT & CASEY LLC

d«u;/<"1NLl0~· --CharlVsE.SchMf'er

LEVIN, FISHBEIN, SEDRAN & BERMAN

49


FOR DEFENDANT THE DIAL CORPORATION:

I;( /:J,7 / 1~ Robert C. McNamee VP, Associate General Counsel

HENKEL CORPORATION

---~~/.f/!t I Heather Wallace

GM, Beauty Care North America

HENKEL CORPORATION

50

Approved as to Form

f?f11 He~kel NA la11 Dept. IWSERT C. McflAMEE ----..:.....:....=.:J


EXHIBIT 1


CLAIM FORM INSTRUCTIONS

Your claim must be

submitted online or mailed

and postmarked by:

XXXXX XX, 2019

Soap Settlement Administrator

1650 Arch Street, Suite 2210

Philadelphia, PA 19103

Website: www.soapsettlement.com

SOAP

Instructions for Completing the Claim Form

You are eligible to submit a Claim Form if you purchased, in the United States, Dial Complete Liquid Hand Soap

formulated with the active ingredient triclosan and/or using the Kills 99.99% of Germs* (*encountered in

household settings) advertising claim (the “Dial Complete Product”) between January 1, 2001 and [date of

Preliminary Approval].

Settlement Class Members who timely submit a valid approved claim are entitled to receive settlement

compensation of Twenty-Seven Cents ($0.27) per package of the Dial Complete Product purchased during

the Class Period. Settlement Class Members are capped at thirty (30) packages per Class Member, except

that Settlement Class Members who provide actual purchase receipts for additional purchases to the

satisfaction of the Claims Administrator may receive Twenty-Seven Cents ($0.27) per package as

settlement compensation for all packages purchased.

In the event that the total payment for all valid approved claims exceeds the Net Settlement Fund, payments to

settlement class members shall be reduced on a pro rata basis. Proof of Purchase means an itemized retail sales

receipt showing, at a minimum, the purchase of the Product, and the date, place and amount of purchase. Submit

only one (1) Claim Form per person.

Your completed Claim Form must be submitted online at www.soapsettlement.com on or before [deadline] or

postmarked no later than [deadline] and mailed to:




You must complete the entire Claim Form and provide any copies of actual purchase receipts in support

of your Claim Form. Do not submit original receipts, they will not be returned to you.

ALL CLAIMS ARE SUBJECT TO VERIFICATION

PLEASE KEEP A COPY OF YOUR COMPLETED CLAIM FORM FOR YOUR RECORDS.


http://www.soapsettlement.com/


CLAIM FORM

Your claim must be

submitted online or mailed

and postmarked by:

XXXXX XX, 2019




Website: www.soapsettlement.com

SOAP

SECTION A: NAME AND CONTACT INFORMATION

Provide your name and contact information below. It is your responsibility to notify the Settlement Notice &

Claims Administrator of any changes to your contact information after the submission of your Claim Form.

First Name Last Name

Street Address (Mailing Address)

City State Zip Code

Email Address Phone Number

SECTION B: PURCHASE INFORMATION

List the total number of packages of the Dial Complete Product you purchased in the United States during the

Class Period:

SECTION C: CERTIFICATION UNDER PENALTY OF PERJURY

I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information provided in this Claim Form

is true and correct to the best of my knowledge, information and belief. I understand the Settlement Notice &

Claims Administrator may contact me to request further verification of the information provided in this Claim

Form.

Signed: _______________________________________ Date: __________________________

Check this box if you are providing actual purchase receipts in support of your Claim Form.



EXHIBIT 2


If you purchased Dial Complete Liquid Hand Soap, between January 1, 2001 and

[date of Preliminary Approval], you may be eligible to receive a payment from a

class action Settlement.

WHO IS AFFECTED?

You are affected by this class action Settlement if, between: January 1, 2001 and [date of Preliminary Approval],

you purchased in the United States the Dial Complete Liquid Hand Soap formulated with the active ingredient triclosan

and/or using the Kills 99.99% of Germs* (*encountered in household settings) advertising claim (the “Dial Complete

Product”).

This notice summarizes the proposed Settlement. For the precise terms and conditions of the Settlement, please visit

www.soapsettlement.com or contact the Settlement Notice & Claims Administrator at the telephone number or address

below.

WHAT IS THE SETTLEMENT RELIEF PROVIDED?

To settle the case, Defendant will create a Settlement Fund in the amount of $7,400,000. If you make a valid claim in

the Settlement, you will eligible to receive settlement compensation up to $0.27 per package of the Dial Complete

Product purchased during the Class Period. Claims made without providing actual purchase receipts are capped at 30

packages. There is no limit on the number of packages you can claim for which you submit proof of purchase. Proof

of purchase means itemized retail sales receipts showing, at a minimum, the name of the product, and the date, place,

and amount of purchase. For more information about the Settlement Fund and the requirements to make a valid claim,

please visit www.soapsettlement.com.

HOW TO GET THE SETTLEMENT COMPENSATION?

To receive settlement compensation, visit the Settlement Website at www.soapsettlement.com and download or

complete a claim form. You can also obtain a claim form by contacting the Settlement Notice & Claims Administrator.

HOW TO OPT OUT OF THE SETTLEMENT?

Any Class Member who wishes to opt out of the Settlement must do so in writing, by mailing a request for exclusion

to the Settlement Notice & Claims Administrator postmarked no later than [insert opt-out deadline]. Additional

information on Opting Out of the Settlement is available on the Settlement Website, www.soapsettlement.com.

OBJECTING TO THE SETTLEMENT

Any Class Member who does not timely and properly opt out of the Settlement may object to the fairness,

reasonableness or adequacy of the proposed Settlement by filing a written objection no later than [insert objection

deadline]. For specific details on how to object, please visit www.soapsettlement.com or contact the Settlement Notice

& Claims Administrator.

COURT HEARING AND ATTORNEYS’ FEES

The Court will hold a hearing on [date] at [time] to consider whether to approve the settlement. The attorneys for the

class will ask the court to award them up to $1,900,000 in fees from the Rule 23(b)(2) Component of the Settlement

Fund, $1,925,000 from the Rule 23(b)(3) Component of the Settlement Fund, and approximately $650,000 in out of

pocket expenses, as well as service awards in the amount of $5,000 for each of the Representative Plaintiffs, to be

drawn from the Settlement Fund. If any balance remains in the settlement fund after payment of claims, costs of

settlement notice and administration, and court-awarded fees, costs and incentives, the attorneys will ask the Court to

give the remaining balance to various charitable organizations as further described at www.soapsettlement.com. Note

that the hearing date may change without further notice to you. Consult the Settlement Website at

www.soapsettlement.com for updated information on the hearing date and time.

The case is In re: Dial Complete Marketing and Sales Litigation, United States District Court for the District of New

Hampshire, MDL Docket No. 11-md-2263-SM.

For additional information, please visit the settlement website: www.soapsettlement.com. You may contact the

Settlement Notice & Claims Administrator by phone at 888-576-8327 or by writing to: Soap Settlement Administrator,

1650 Arch St., Ste. 2210, Philadelphia, PA 19103.


EXHIBIT 3


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

If you purchased Dial Complete Liquid Hand Soap in the United States

Between January 1, 2001 and [date of Preliminary Approval]

You May be Eligible to Receive a Payment from a Class Action Settlement.

A Federal Court authorized this notice. This is not a solicitation from a lawyer.

• A proposed nationwide Settlement has been reached in a class action lawsuit involving Dial Complete Liquid Hand

Soap. The Settlement resolves litigation over whether the Defendants allegedly violated laws regarding the

marketing, advertising and sale of Dial Complete Liquid Hand Soap in the United States.

• If you purchased Dial Complete Liquid Hand Soap between January 1, 2001 and [date of Preliminary

Approval],you may be eligible to participate in the proposed Settlement, if it is finally approved,.

• The Settlement will provide payments to those who qualify. You will need to file a Claim Form to get a payment

from the Settlement.

• Your legal rights are affected whether you act or don’t act. Read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

SUBMIT A CLAIM FORM

BY [DEADLINE]

This is the only way to get a payment.

EXCLUDE YOURSELF BY

[DEADLINE]

You will receive no payment from the Settlement. This is the only option that

allows you to ever be a part of any other lawsuit against the Defendants about the

legal claims in this case.

OBJECT BY

[DEADLINE] Write to the Court about why you think the settlement is unfair, inadequate, or

unreasonable.

GO TO A HEARING ON

[HEARING DATE & TIME]

Ask to speak in Court about the fairness of the Settlement.

FILE A NOTICE OF INTENT

TO APPEAR

[DEADLINE]

Your Notice of Intent to Appear must be filed with the Court and served on Class

Counsel and Defendants’ Counsel no later than this date.

DO NOTHING Get no payment. Give up rights to ever sue the Defendants about the legal claims

in this case.

• These rights and options—and the deadlines to exercise them—are explained in this notice. The deadlines may be

moved, canceled, or otherwise modified, so please check the Settlement Website, www.soapsettlement.com regularly for

updates and further details.

• The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made if the Court

approves the Settlement and after any appeals are resolved. Please be patient.


Page 2 of 7

WHAT THIS NOTICE CONTAINS:

BASIC INFORMATION

1. Why is there a notice?

2. What is this lawsuit about?

3. Why is this a class action?

4. Why is there a Settlement?

WHO IS IN THE SETTLEMENT?

5. How do I know if I am in the Settlement?

6. Which Products are included in the Settlement?

7. What if I am still not sure if I am included in the Settlement?

SETTLEMENT BENEFITS

8. What does the Settlement provide?

9. What can I get from the Settlement?

10. What am I giving up to stay in the Class?

HOW TO GET A PAYMENT

11. How can I get a payment?

12. When will I get my payment?

EXCLUDING YOURSELF FROM THE SETTLEMENT

13. How do I get out of the Settlement?

14. If I don’t exclude myself, can I sue the Defendants for the same thing later?

15. If I exclude myself, can I still get a payment?


16. How can I tell the Court if I do not like the Settlement?

17. What is the difference between objecting and excluding?

THE LAWYERS REPRESENTING YOU

18. Do I have a lawyer in this case?

19. How will the lawyers be paid?

THE COURT’S FAIRNESS HEARING

20. When and where will the Court decide whether to approve the Settlement?

21. Do I have to come to the hearing?

22. May I speak at the hearing?

IF YOU DO NOTHING

23. What happens if I do nothing at all?

GETTING MORE INFORMATION

24. How do I get more information?


Page 3 of 7

BASIC INFORMATION

1. Why is there a notice?

You have a right to know about a proposed Settlement of a class action lawsuit, and about your options, before the

Court decides whether to approve the Settlement.

The Court in charge of this case is the United States District Court for District of New Hampshire (the “Court”), and

the case is called In re: Dial Complete Marketing and Sales Litigation, MDL Docket No. 11-md-2263-SM. The

individuals who sued are called the Representative Plaintiffs, and the company they sued, Dial Corporation, is called

the Defendant.

2. What is this lawsuit about?

The lawsuit alleges that the Defendant violated certain laws in the marketing, advertising and sale of Dial Complete

Foaming Liquid Hand Soap in the United States. The lawsuit centers around advertising for Dial Complete including

use of the active ingredient triclosan and including that Dial Complete “Kills 99.99% of Germs* (*encountered in

household settings)” and the use of the phrase “#1 Doctor Recommended**” (**Antibacterial Liquid Hand Wash)”,

and the claim that it “Kills more germs than any other liquid hand soap”.

The Defendant denies any and all wrongdoing of any kind whatsoever and has asserted various defenses that it

believes is meritorious.

3. Why is this a class action?

In a class action, one or more people, called “Representative Plaintiffs,” sue on behalf of people who have similar

claims. All these people are in a “class” or “settlement class members,” except for those who exclude themselves

from the class. The Honorable Steven J. McAuliffe in the United States District Court for the District of New

Hampshire is in charge of this class action.

4. Why is there a Settlement?

The Defendant denies that it did anything wrong. Both sides want to avoid the cost of further litigation. The Court

has not decided in favor of the Representative Plaintiffs or the Defendant. The Representative Plaintiffs and their

attorneys think the Settlement is best for everyone who is affected. The Settlement provides the opportunity for

Settlement Class Members to receive Settlement benefits.

WHO IS IN THE SETTLEMENT?

5. How do I know if I am in the Settlement?

The Settlement Class includes: All persons in the United States who purchased the Dial Complete Product from

January 1, 2001 through [date of preliminary approval]. Excluded from the Settlement Class are the following: (a)

the Court and its officers, employees, appointees, and relatives; (b) Dial and its affiliates, subsidiaries, officers,

directors, employees, contractors, agents, and representatives; (c) all Plaintiffs’ Counsel; (d) government entities;

and (e) Opt-Outs.

6. Which Products are included in the Settlement?

The “Dial Complete Product” means Dial Complete Liquid Hand Soap formulated with the active ingredient triclosan

and/or using the Kills 99.99% of Germs* (*encountered in household settings) advertising claim.

7. What if I am still not sure if I am included in the Settlement?

If you are not sure whether you are a Settlement Class Member, or have any other questions about the Settlement

Agreement, you should visit the Settlement Website, www.soapsettlement.com, or call the toll-free number, 888-

576-8327.

SETTLEMENT BENEFITS


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8. What does the Settlement provide?

The Settlement provides for a Settlement Fund in the amount of $7,400,000, consisting of (a) one component of One

Million and Nine Hundred Thousand U.S. Dollars ($1,900,000) in connection with the Rule 23(b)(2) relief; and (b)

another component of Five Million and Five Hundred Thousand U.S. Dollars ($5,500,000) in connection with the

Rule 23(b)(3) relief. The Gross Settlement Proceeds shall be the sum total of Dial’s monetary obligation under the

Settlement, regardless of the number of valid approved claims or for any other reason, and shall be used to pay all

costs associated with the Settlement, including but not limited to (a) the costs of notice and administration of the

Settlement, including for a Settlement Notice and Claims Administrator to process claims, objections, and opt-out

requests; (b) the payment of valid approved claims; (c) attorneys’ fee awards (if any); (d) attorneys’ costs (actually

incurred litigation expenses and other hard costs apart from fees); (e) service awards (if any) to the Representative

Plaintiffs; and (f) any other expenses.

9. What can I get from the Settlement?

Settlement Class Members who timely submit a valid approved claim are entitled to receive settlement compensation

of Twenty-Seven Cents ($0.27) per package of the Dial Complete Product purchased during the Class Period.

Settlement Class Members are capped at thirty (30) packages per Class Member, except that Settlement Class

Members who provide actual purchase receipts for additional purchases to the satisfaction of the Settlement Notice

and Claims Administrator may receive Twenty-Seven Cents ($0.27) per package as settlement compensation for all

packages purchased. If, after subtracting from the Settlement Fund amount the Attorneys’ Fees and Expenses, Notice

and Claim Administration Expenses, and any Service Awards made by the Court to Plaintiffs, the funds remaining

are insufficient to pay all timely valid approved Claims, then payments will be reduced proportionately on a pro rata

basis.

10. What am I giving up to stay in the Class?

Unless you exclude yourself from the Settlement, you cannot sue the Defendant, continue to sue, or be part of any

other lawsuit against the Defendant about the claims released in this Settlement. It also means that all of the decisions

by the Court will bind you. The Released Claims and Released Parties are defined in the Settlement and describe the

legal claims that you give up if you stay in the Settlement Class. The Released Claims do not include any claim against

the Released Parties for bodily injury allegedly suffered in connection with the Dial Complete Product. The

Settlement Agreement is available at the Settlement Website, www.soapsettlement.com.

HOW TO GET A PAYMENT

11. How can I get a payment?

To be eligible to receive a payment from the Settlement, you must complete and submit a timely Claim Form. You

can complete and submit your Claim Form online at the Settlement Website, www.soapsettlement.com. The Claim

Form can be downloaded from the Settlement Website, as well. You can also request a Claim Form be sent to you

by sending a written request to the Settlement Notice & Claims Administrator by mail or by email.

MAIL: Soap Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103

EMAIL: [email protected]

Please read the instructions carefully, fill out the Claim Form, and mail it postmarked no later than [claims deadline]

to the Settlement Notice & Claims Administrator: Soap Settlement Administrator, 1650 Arch Street, Suite 2210,

Philadelphia, PA 19103, or submit your Claim Form online at the Settlement Website, www.soapsettlement.com,

by [claims deadline].

If you do not submit a valid Claim Form by the deadline, you will not receive a payment, and your claims will be

extinguished.

12. When will I get my payment?

Payments will be made to Settlement Class Members who submit valid and timely Claim Forms after the Court

grants “final approval” to the Settlement and after all appeals are resolved. If the Court approves the Settlement,

there may be appeals. It’s always uncertain whether these appeals can be resolved and resolving them can take time.

EXCLUDING YOURSELF FROM THE SETTLEMENT


Page 5 of 7

If you don’t want a payment from the Settlement, and you want to keep the right to sue or continue to sue the

Defendant on your own about the claims released in this Settlement, then you must take steps to get out. This is

called excluding yourself—or it is sometimes referred to as “opting out” of the Settlement Class.

13. How do I get out of the Settlement?

To exclude yourself (or “Opt-Out”) from the Settlement, you must complete and mail to the Settlement Notice & Claims

Administrator a written request. The request to opt out must:

• bear the Handwritten Signature of the Class Member seeking to opt out;

• set out the Class Member’s full legal name, valid mailing address, and functioning telephone number;

• state that the Class Member has reviewed and understood the Class Notice and chooses to be excluded from

the Settlement Class and understands that, by opting out, the Class Member shall not share in any recovery

obtained by judgment on behalf of the Settlement Class; and

• provide the name of and contact information for the Class Member’s attorney, if represented.

You must mail your exclusion request, postmarked no later than [exclusion deadline] to:

Class Action Opt-Outs

ATTN: Soap Settlement

PO BOX 58220

1500 John F Kennedy Blvd

Suite C31


No person or entity may opt-out on behalf of another Class Member.

If you don’t include the required information or timely submit your request for exclusion, you will remain a

Settlement Class Member and will not be able to sue the Defendant about the claims in this lawsuit.

14. If I don’t exclude myself, can I sue the Defendants for the same thing later?

No. Unless you exclude yourself, you give up any right to sue the Defendant for the claims that this Settlement

resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself

from this Settlement Class to continue your own lawsuit. If you properly exclude yourself from the Settlement Class,

you shall not be bound by any orders or judgments entered in the Action relating to the Settlement Agreement.

15. If I exclude myself, can I still get a payment?

No. You will not get any money from the Settlement if you exclude yourself. If you exclude yourself from the

Settlement, do not send in a Claim Form asking for benefits.


16. How can I tell the Court if I do not like the Settlement?

Any Class Member who does not timely and properly opt out of the Settlement may object to the fairness,

reasonableness, or adequacy of the proposed Settlement under Federal Rule of Civil Procedure 23. Each Class

Member who wishes to object to any term of this Agreement must do so, in writing, by filing a written objection

with the Clerk of the Court and mailing it to Settlement Class Counsel, counsel for Dial, and the Settlement Notice

and Claims Administrator.

The written objection must include: (a) copies of any materials that the objector intends to submit to the Court or

present at the Fairness Hearing; (b) be personally signed by the Class Member and, if represented, by his or her

counsel; (c) include information or documents sufficient to show that the objector is a Class Member; and (d) clearly

state in detail (i) the legal and factual ground(s) for the objection, (ii) the Class Member’s name, mailing address,


Page 6 of 7

email address, and telephone number, (iii) if represented by counsel, such counsel’s name, email address, mailing

address, and telephone number, (iv) any request to present argument to the Court at the Fairness Hearing; (v) previous

objections that the Class Member has filed in class action settlements in the past five years and the results of those

objections (including any settlements that were reached concerning his or her objection); and (vi) previous objections

that the objecting Class Member’s class counsel has filed either in a representative capacity or on their own behalf

in the past five years (including any settlements that were reached concerning those objections).

Your objection, along with any supporting material you wish to submit, must be filed with the Court, with a copy

delivered to Settlement Class Counsel, Defendant’s Counsel and the Settlement Notice & Claims Administrator no

later than [objection deadline] at the following addresses:

Clerk of the Court Settlement Class Counsel

United States District Court for the District of

New Hampshire

[insert Court information]

Lucy J. Karl

Shaheen & Gordon, P.A.

P.O. Box 2703

107 Storrs Street

Concord, NH 03301

Counsel for Dial Settlement Notice & Claims

Administrator

Patrick Haney

Kirkland & Ellis LLP

655 Fifteenth Street NW

Washington DC 20005

Class Action Objections ATTN: Soap Settlement PO BOX 58220 1500 John F Kennedy Blvd Suite C31 Philadelphia, PA 19102

17. What is the difference between objecting and excluding?

Objecting is simply telling the Court that you don’t like something about the Settlement. You can object to the

Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling

the Court that you don’t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no

basis to object to the Settlement because it no longer affects you.

THE LAWYERS REPRESENTING YOU

18. Do I have a lawyer in this case?

Yes. The Court has appointed Lucy J. Karl of Shaheen & Gordon, P.A., on behalf of the Plaintiffs’ Executive

Subcommittee and Plaintiffs’ Steering Committee, as Class Counsel.

You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your

own expense.

19. How will the lawyers be paid?

Class Counsel intends to file a motion on or before [insert date] seeking an award up to $1,900,000 in fees from the

Rule 23(b)(2) Component of the Settlement Fund, $1,925,000 from the Rule 23(b)(3) Component of the Settlement

Fund, and approximately $650,000 in out of pocket expenses, as well as service awards in the amount of $5,000 for

each of the Representative Plaintiffs, to be drawn from the Settlement Fund. The Court will determine the amount

of fees and expenses, and service awards.

THE COURT’S FAIRNESS HEARING


Page 7 of 7

20. When and where will the Court decide whether to approve the Settlement?

The Court will hold a Fairness Hearing on [date] at [time] at the United States District Court for the District of New

Hampshire, before the Honorable Steven J. McAuliffe, United States District Judge, in Courtroom [XX], located at

[court address].

At the Fairness Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court

will also consider how much to pay Class Counsel and the Representatives Plaintiffs. If there are objections, the

Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We

do not know how long these decisions will take.

21. Do I have to come to the hearing?

No. Class Counsel will answer any questions that the Court may have, but you may come at your own expense. If

you submit an objection, you don’t have to come to Court to talk about it. As long as you filed and mailed your

written objection on time to the proper addresses, the Court will consider it. You may also pay your own lawyer to

attend, but it’s not necessary.

22. May I speak at the hearing?

Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying

that it is your “Notice of Intent to Appear.” Your request must be filed with the Clerk of the Court and served on

Class Counsel and Defendant’s Counsel no later than [deadline].

Any such request must state the name, address, and telephone number of the Class Member, as well as the name,

address, and telephone number of the person that shall appear on his or her behalf. Any request for appearance that

fails to satisfy these requirements, or that has otherwise not been properly or timely submitted, shall be deemed

ineffective and a waiver of such Class Member’s rights to appear and to comment on the Settlement at the Fairness

Hearing. Only the Parties, Settlement Class Members, or their counsel may request to appear and be heard at the

Fairness Hearing. Persons or entities that opt out may not request to appear and be heard at the Fairness Hearing.

IF YOU DO NOTHING

23. What happens if I do nothing at all?

If you do nothing, you will not get a payment from the Settlement. Unless you exclude yourself, you won’t be able to

start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Defendant about the legal issues in

this case, ever again.

GETTING MORE INFORMATION

24. How do I get more information?

This notice summarizes the proposed Settlement. More details are in the Settlement Agreement, available at the

Settlement Website, www.soapsettlement.com. If you have additional questions or want to request a Claim Form,

you can visit the Settlement Website or contact the Settlement Notice & Claims Administrator:

MAIL: Soap Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103

EMAIL: [email protected]

TOLL-FREE: 1-888-576-8327

Updates will be posted at the Settlement Website, www.soapsettlement.com, as information about the Settlement

process becomes available.

PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE CONCERNING THIS CASE.


EXHIBIT 4


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DECLARATION OF STEVEN WEISBROT ISO MOTION FOR PRELIMINARY APPROVAL OF


UNITED STATES DISTRICT COURT FOR THE


In Re: Dial Complete Marketing and Sales

Litigation (MDL No. 2263)

MDL Docket No. 11-md-2263-SM

ALL CASES

DECLARATION OF STEVEN

WEISBROT IN SUPPORT OF MOTION

FOR PRELIMINARY APPROVAL OF


I, Steven Weisbrot, hereby declare under penalty of perjury pursuant to 28 U.S.C.

§ 1746 that the following is true and correct:

1. I am a partner at the class action notice and settlement administration firm Angeion

Group, LLC (“Angeion”). I am fully familiar with the facts contained herein based upon my

personal knowledge.

2. I have been responsible in whole or in part for the design and implementation of

hundreds of class action administration plans and have taught numerous accredited Continuing

Legal Education courses on the Ethics of Legal Notification in Class Action Settlements, using

Digital Media in Class Action Notice Programs, as well as Class Action Claims Administration,

generally. I am the author of multiple articles on Class Action Notice, Class Action Claims

Administration, and Notice Design in publications such as Bloomberg, BNA Class Action

Litigation Report, Law360, the ABA Class Action and Derivative Section Newsletter.

3. I am a certified professional in digital media sales by the Interactive Advertising Bureau

(“IAB”) and I am co-author of the Digital Media section of Duke Law’s Guidelines and Best

Practices—Implementing 2018 Amendments to Rule 23.

4. I have given public comment and written testimony to the Judicial Conference

Committee on Rules of Practice and Procedure on the role of direct mail, email, digital media


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and print publication, in effecting Due Process notice, and I have met with representatives of the

Federal Judicial Center to discuss the amendments to Rule 23 and suggest educational programs

for the judiciary concerning class action notice procedures.

5. Prior to joining Angeion’s executive team, I was employed as Director of Class Action

services at Kurtzman Carson Consultants, an experienced class action notice and settlement

administrator. Prior to my notice and claims administration experience, I was employed in

private law practice.

6. My notice work comprises a wide range of class actions that include product defect,

false advertising, employment, antitrust, tobacco, banking, firearm, insurance, and bankruptcy

cases. I have been active in infusing digital media, as well as big data and advanced targeting,

into class action notice programs. For example, the Honorable Sarah Vance stated in her

December 31, 2014 Order in In Re: Pool Products Distribution Market Antitrust Litigation,

MDL No. 2328:

To make up for the lack of individual notice to the remainder of

the class, the parties propose a print and web-based plan for

publicizing notice. The Court welcomes the inclusion of web-

based forms of communication in the plan…. The Court finds that

the proposed method of notice satisfies the requirements of Rule

23(c)(2)(B) and due process.

The direct emailing of notice to those potential class members for

whom Hayward and Zodiac have a valid email address, along with

publication of notice in print and on the web, is reasonably

calculated to apprise class members of the settlement.

As detailed below, courts have repeatedly recognized my work in the design of class action

notice programs:

(a) On February 24, 2017, The Honorable Ronald B. Rubin in James Roy et al. v.

Titeflex Corporation et al., No. 384003V (Md. Cir. Ct.), noted when granting preliminary


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approval to the settlement:

What is impressive to me about this settlement is in addition to all

the usual recitation of road racing litanies is that there is going to

be a) public notice of a real nature and b) about a matter

concerning not just money but public safety and then folks will

have the knowledge to decide for themselves whether to take steps

to protect themselves or not. And that’s probably the best thing a

government can do is to arm their citizens with knowledge and

then the citizens can make a decision. To me that is a key piece of

this deal. I think the notice provisions are exquisite. (Emphasis

added).

(b) Likewise, on May 12, 2016, in his Order granting preliminary approval of the

settlement in In Re Whirlpool Corporation Front Loading Washer Products Liability

Litigation, MDL No. 2001 (N.D. Ohio), The Honorable Christopher A. Boyko ruled:

The Court, having reviewed the proposed Summary Notices, the

proposed FAQ, the proposed Publication Notice, the proposed

Claim Form, and the proposed plan for distributing and

disseminating each of them, finds and concludes that the proposed

plan for distributing and disseminating each of them will provide

the best notice practicable under the circumstances and satisfies all

requirements of federal and state laws and due process.

(c) In In Re LG Front Load Washing Machine Class Action Litigation, Civil Action

No. 08-51 (MCA) (LDW) (D.N.J.), the Honorable Madeline Cox Arleo ruled:

This Court further approves the proposed methods for giving

notice of the Settlement to the Members of the Settlement Class, as

reflected in the Settlement Agreement and the joint motion for

preliminary approval. The Court has reviewed the notices attached

as exhibits to the Settlement, the plan for distributing the Summary

Notices to the Settlement Class, and the plan for the Publication

Notice’s publication in print periodicals and on the internet, and

finds that the Members of the Settlement Class will receive the

best notice practicable under the circumstances. The Court

specifically approves the Parties’ proposal to use reasonable

diligence to identify potential class members and an associated

mailing and/or email address in the Company’s records, and their

proposal to direct the ICA to use this information to send absent

class members notice both via first class mail and email. The Court

further approves the plan for the Publication Notice’s publication


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in two national print magazines and on the internet. The Court also

approves payment of notice costs as provided in the Settlement.

The Court finds that these procedures, carried out with reasonable

diligence, will constitute the best notice practicable under the

circumstances and will satisfy due process.

7. By way of background, Angeion is a class action notice and claims administration

company formed by an experienced team of executives that have had extensive tenures at five

other nationally recognized claims administration companies. Collectively, the management

team at Angeion has overseen more than 2,000 class action settlements and distributed over $10

billion to class members. The executive profiles as well as the company overview are available

at http://www.angeiongroup.com/meet_the_team.htm.

8. This declaration will describe the notice program that Angeion has proposed to use in this

Litigation, including certain considerations that informed the development of the notice program,

and why it will provide due process of law to the Settlement Class.

SUMMARY OF NOTICE PROGRAM

9. The notice program is the best notice that is practicable under the circumstances and fully

comports with due process and Rule 23 of the Federal Rules of Civil Procedure. The notice

program features a robust media campaign consisting of state-of-the-art targeted internet banner

notice, print publication notice in a widely-read consumer magazine, sponsored notice on two

leading class action-related websites, a national press release, and two advanced custom social

media campaigns. The notice program also includes a dedicated website and toll-free telephone

line where Class Members can learn more about their rights and responsibilities in the litigation.

10. The notice program is designed to deliver an approximate 70.42% reach with an average

frequency of 3.81 times. In practice, this means that 70.42% of our target audience will see an

advertisement concerning the Settlement an average of 3.81 times each. The 70.42% reach is


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separate and apart from the sponsored listings on the class action websites, the media earned as a

result of the press release, the informational website and toll-free line, all of which are difficult to

measure in terms of reach percentage but will nonetheless aid in informing the class of their

rights and responsibilities under the Settlement.

11. The Federal Judicial Center states that a publication notice plan that reaches 70% of class

members is one that reaches a “high percentage” and is within the “norm”. Barbara J. Rothstein

& Thomas E. Willging, Federal Judicial Center, “Managing Class Action Litigation: A Pocket

Guide or Judges”, at 27 (3d Ed. 2010).

CLASS DEFINITION

12. The Class Action Settlement Agreement and Release defines the “Settlement Class” as:

All Persons in the United States who purchased the Dial Complete Product during the Class

Period. Excluded from the Settlement Class are the following: (a) the Court and its officers,

employees, appointees, and relatives; (b) Dial and its affiliates, subsidiaries, officers, directors,

employees, contractors, agents, and representatives; (c) all Plaintiffs’ Counsel; (d) government

entities; and (e) Opt-Outs.

MEDIA NOTICE TARGET AUDIENCE

13. This matter contemplates a nationwide settlement class as defined in the Class

Definition section found supra in paragraph 12. To create the media notice program and verify

its effectiveness, our media team analyzed data from the 2017 comScore/GfK MRI Media +

Fusion to profile the class. As “Dial Complete” is a measured entity in MRI, the following target

definition was used to profile potential Class Members:

• Liquid Soaps/Hand Sanitizers Brands Total Users Last 6 Months [Dial Complete]

Based on the target definition, the potential audience size is estimated to be 5,077,000. This


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audience is overinclusive because it incorporates all Dial Complete products that fall under

liquid soaps and hand sanitizers, not just the class products at issue here. The target audience,

based on objective syndicated data, will allow the Parties to report the reach and frequency to the

Court with the confidence that the reach within the target audience and the number of exposure

opportunities, comply with Due Process and exceed the Federal Judicial Center’s threshold as to

reasonableness in notification programs.

14. Understanding the socio-economic characteristics, interests and practices of a target group

aids in the proper selection of media to reach that target. Here, the target audience has the

following characteristics:

• Women ages 18-44 with an average age of 41

• 49.60% are married

• 40.55% have a college degree

• 56.37% live in households with total income under $75K

• 62.26% are employed, with 51.66% working full time

15. To identify the best vehicles to deliver messaging to the Target Audience, the traditional

media quintiles were reviewed, which measure the degree to which an audience uses a particular

form of media relative to the general population. Here, objective syndicated data demonstrates

that members of the target audience use the internet an average of 19 hours per week and read

an above-average seven (7) magazines per month.

16. Given the strength of the internet use as well as our target audience’s heavy magazine

use, Angeion recommended utilizing print publication combined with a robust internet

advertising campaign, to reach potential Settlement Class Members. This media schedule will

allow us to deliver an effective reach level for notice messaging while maximizing efficiencies.

ONLINE NOTICE

17. Angeion utilizes advanced targeting, machine learning, and a known and verifiable target


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audience profile, to ensure that members of the target audience are reached online. Through this

“programmatic” approach, Angeion will be able to focus solely on reaching the prototypical

individual Settlement Class Member. Purchasing display and mobile inventory programmatically

provides the highest reach, allows for numerous advanced targeting layers, and offers the most

cost-efficient rates to reach potential Settlement Class Members.

18. Specifically, multiple targeting layers will be implemented to help ensure delivery to the

most appropriate users, inclusive of search targeting, category contextual targeting, keyword

contextual targeting, and site retargeting. Inventory will run on desktop and mobile devices to

reach the most qualified audience on the websites where they surf, shop and play. Search terms

will be relevant to anti-bacterial hand soap and Dial Complete. Moreover, targeting users who

are currently browsing or have recently browsed content in contextual categories such as Dial

products and liquid soap will also help qualify impressions to ensure messaging is served to the

most relevant audience. Additionally, where available, purchase data will be utilized to further

qualify the audience.

19. Angeion also employs Lotame, a demand management platform (“DMP”), as well as

Integral Ad Science (“IAS”), an online ad verification and security provider, to provide a greater

quality of service to ad performance.

20. Lotame allows Angeion to learn more about the online audiences that are being reached.

Through pixels attached behind the scenes, Angeion can and will collect data on users who are

served impressions, who click on the banner, and who file a claim. From this data, demographic

profiles can be developed and leveraged for changes in targeting strategies to increase the overall

performance of the digital campaign. These insights help Angeion to understand the type of user

profile that is most valuable to campaign success.


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21. Angeion also utilizes Integral Ad Science (“IAS”), the leading ad verification company to

recognize and foil fraudulent internet activity. IAS has received the Media Rating Council

“MRC” accreditation for Sophisticated Invalid Traffic (“SIVT”) detection for desktop and

mobile web traffic, which adds a critical level of safety to the notice program.

22. The internet banner notice portion of the notice program will be implemented using a 4-

week desktop and mobile campaign, utilizing standard IAB sizes (160x600, 300x250, 728x90,

300x600, 320x50 and 300x50). A 3x frequency cap will be imposed to maximize reach. The

banner notice portion of the notice program is designed to result in serving approximately

9,596,000 impressions.

23. Further, the online portion of the notice program incorporates a custom Facebook digital

campaign that specifically targets people with an interest in Dial and/or who meet the

demographic and/or psychographic profile of a typical class member. This portion of the notice

campaign will run concurrently with the internet banner ad campaign described above and is

designed to serve approximately 3,000,000 additional impressions.

24. Angeion will also cause the settlement to be promoted on Twitter. Our methodology

includes an “active listening” component wherein we monitor Twitter traffic for discussion of

the settlement, and actively provide notice, and/or answers to frequently asked question via

Twitter as appropriate. This service is not measurable in terms of reach and frequency but

provides an invaluable service to those class members seeking information about the settlement

via Twitter.

PUBLICATION NOTICE

25. In addition to the internet banner notice campaign described above, the notice program

utilizes print media to reach potential Class Members.


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26. To identify the best print vehicle for delivering the message to the target audience, MRI

was used to analyze and filter publications to determine the titles with the highest reach against

our target audience. People was chosen as the best title for this notice program due to its strong

reach towards the target audience. One ½ page B&W insertion is recommended and will be

distributed on a national level.

Publication Circulation Target Audience

People Magazine 3,423,322 1,623,000

PURCHASED AND EARNED MEDIA

27. Angeion will cause the Settlement to be listed and promoted through two leading class

action settlement websites, www.topclassactions.com and www.classaction.org. These sites are

known to create awareness of pending settlements among consumers and while not measured in

terms of the reported reach percentage, will be instrumental in seeding and disbursing news of

the underlying settlement.

28. In order to further boost awareness of the Settlement, gain online visibility, and gain

media pickup, Angeion will cause a national Press Release via a well-known news wire service.

Issuing a press release will help create earned media via press coverage, which will drive

credibility and engagement among Settlement Class Members and beyond.

29. Neither promotion via the class action settlement websites nor the press release are

capable of precise reach calculations and are thus not included in the reach and frequency figures

presented to the Court. Nonetheless, these mechanisms will serve an important function in that

they will help stimulate interest in the Settlement and drive Class Members to the dedicated

settlement website to read and understand their rights under the Settlement.


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RESPONSE MECHANISMS

30. The notice program will implement the creation of a case-specific Settlement Website,

www.soapsettlement.com, where Class Members can easily view general information about this

class action, review relevant Court documents and view important dates and deadlines pertinent

to the Settlement. The chosen URL was designed to be simple and easy to remember.

31. The Settlement Website will be designed to be user-friendly and make it easy for Class

Members to find information about the Settlement or file a claim. The website will also have a

“Contact Us” page whereby Class Members can send an email with any additional questions to a

dedicated email address.

32. Importantly, Class Members will be able to submit their Claim Forms and supporting

documentation online via the Settlement Website.

33. A toll-free hotline devoted to this case will be implemented to further apprise Class

Members of the rights and options in the Settlement. The toll-free hotline will utilize an

interactive voice response (“IVR”) system to provide Class Members with responses to

frequently asked questions and provide essential information regarding the Settlement. This

hotline will be accessible 24 hours a day, 7 days a week.

REACH AND FREQUENCY

34. This declaration provides the reach and frequency evidence which courts systematically

rely upon in reviewing class action publication notice programs for adequacy. It further

provides the objective syndicated data source, from which the percentages are derived. The

reach percentage and the number of exposure opportunities, meets or exceed the guidelines as set

forth in the Federal Judicial Center’s Judges’ Class Action Notice and Claims Process Checklist

and Plain Language Guide.


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35. Specifically, the notice program is designed to deliver a 70.42% reach with an average

frequency of 3.81. The sponsored listings on two class action settlement websites, the press

release, Settlement Website and toll-free hotline are not calculable in the reach percentage but

will nonetheless aid in informing the Class Members of their rights and options under the

Settlement.

PLAIN LANGUAGE NOTICE DESIGN

36. The Long Form Notice, Publication Notice and Claim Form, as well as the other notice

documents, are designed to be “noticed,” reviewed, and—by presenting the information in plain

language—understood, by Settlement Class Members. The design of the Notices follows

principles embodied in the Federal Judicial Center’s illustrative “model” notices posted at

www.fjc.gov. The Notice forms contain plain-language summaries of key information about

Settlement Class members’ rights and options. Consistent with normal practice, prior to being

delivered and published, all Notice documents will undergo a final edit for accuracy.

37. Rule 23(c)(2) of the Federal Rules of Civil Procedure requires class action notices to be

written in “plain, easily understood language.” Angeion maintains a strong commitment to

adhering to this requirement, drawing on its experience and expertise to craft notices that

effectively convey the necessary information to Settlement Class members in plain language.

38. My colleagues and I have had the opportunity to review and edit the Notice forms for this

case. In my opinion, all the forms of Notice are noticeable, clear, and concise, and are written in

plain, easily understood language. The Notice forms effectively communicate key information

about the Settlement and are designed to alert the reader that the Notice is an important

document and that the content may affect them.


-12-



CONCLUSION

39. In my opinion, the Notice Plan will provide full and proper notice to Settlement Class

Members before any claims, opt-out and objection deadlines.

40. It is my opinion that the Notice Program provides Class Members Due Process of Law

and is the best notice that is practicable under the circumstances and is fully compliant with Rule

23 of the Federal Rules of Civil Procedure.

41. After effectuating the notice plan, Angeion will provide a final report verifying its

effective implementation.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Dated: December 21, 2018

______________________________

STEVEN WEISBROT


EXHIBIT B


1



IN RE DIAL COMPLETE

MARKETING AND SALES

PRACTICES LITIGATION



(ALL CASES)

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION

SETTLEMENT

In this Action,1 Plaintiffs, in their individual capacities and on behalf of all others

similarly situated (the “Settlement Class”), assert Claims against Defendant Dial Corporation.

Defendant has denied each of the Claims asserted against it in this Action and denies any and all

liability. Plaintiffs maintain that the Claims have merit. The Court previously certified classes

of individuals in Arkansas, California, Florida, Illinois, Missouri, and Ohio.

This Court has now been presented with a Joint Motion for Preliminary Approval of

Proposed Class Action Settlement, Certification of Settlement Class for Settlement Purposes

Only, Approval of Notice Plan and Settlement Notice and Appointment of Notice and Claims

Administrator and Lead Counsel for the Settlement Class filed on December 28, 2018. The

Settlement Agreement was negotiated and consented to on behalf of the Parties, and it resolves

the Claims against Defendant arising out of the Action. Notice of the proposed settlement has

been served on the appropriate federal and state officials pursuant to the Class Action Fairness

Act of 2005, 28 U.S.C. § 1715.

Having considered the terms of the Settlement Agreement in light of the issues presented

by the pleadings, the record in this case, the complexity of the proceedings, and the absence of

any evidence of collusion between Plaintiffs and Defendant, and being preliminarily satisfied

1 Capitalized terms shall have the meaning ascribed to them in the Definitions section of the Settlement

Agreement.


2

that the Settlement Agreement is fair, reasonable, and consistent with applicable laws; and being

satisfied that the proposed Notice of Class Action Settlement is adequate and sufficiently

informative as to the terms and effect of the proposed settlement and the conditional certification

of the Settlement Class, IT IS ORDERED THAT:

1. This Court has jurisdiction over the subject matter of the Action pursuant to 28 U.S.C.

§ 1332(d). This Court also has jurisdiction over all Parties to the Action, including all

members of the Class, as defined in Paragraph 3, below.

2. For the sole purpose of determining whether the proposed settlement embodied in the

Settlement Agreement should be approved as fair, reasonable, and adequate and whether

this Action should be dismissed with prejudice as to Defendant, a Settlement Class is

preliminarily and conditionally certified under Rule 23(b)(2) of the Federal Rules of Civil

Procedure, as follows:

a. The Settlement Class shall consist of all persons who purchased the Dial

Complete Product in the United States from January 1, 2002, up to and

including the Notice Date;

b. Defendant and their officers, directors, employees, and agents are

excluded from the Settlement Class definition;

c. Persons who are neither citizens nor residents of the United States or its

territories are excluded from the Settlement Class definition; and

d. Any Judge or Magistrate presiding over the Action and members of their

families are excluded from the Settlement Class definition.

3. The Settlement Agreement is preliminarily and conditionally approved as a fair,

reasonable, and adequate compromise of the risks of the Action, subject to further


3

consideration at the Final Approval Hearing. Plaintiffs and Defendant are authorized and

directed to take all actions that may be required prior to final approval by the Court of the

proposed settlement and compromises set forth in the Settlement Agreement.

4. The Publication Notice attached as Exhibit 2 to the Settlement Agreement and the Long

Form of Notice of Class Action Settlement (the “Long Form Notice”) attached as Exhibit

3 to the Settlement Agreement are approved. Dissemination of the Class Notice as set

forth in the Notice Plan satisfies the requirements of due process and the Federal Rules of

Civil Procedure. The Summary Notice and Long-Form Notice will be published in

accordance with the terms of the Notice Plan set forth in the Settlement Agreement.

Non-substantive changes may be made to the Summary Notice and Long-Form Notice by

agreement of Plaintiffs and Defendant without further order of this Court.

5. Angeion Group is appointed as the Notice and Claims Administrator and the Notice Plan

set forth in the Declaration of Steven Weisbrot, attached as Exhibit 4 to the Settlement

Agreement, is approved.

6. Solely for purposes of the proposed settlement, Michelle Carter, Jonathan Cessna, Sonia

Herrera, Jenny Marazzi, Kristina Pearson, Elizabeth Poynter, and Sven Vogtland are

designated as Class Representatives of the Settlement Class.

7. The Court conditionally approves of and appoints Lucy J. Karl as Lead Counsel for the

Settlement Class for the purpose of determining whether the proposed settlement

embodied in the Settlement Agreement should be approved as fair, reasonable, and

adequate and whether this Action should be dismissed with prejudice as to Defendant.

8. Fourteen (14) days in advance of the Objection Date, Class Counsel shall file their

motion for attorneys’ fees, costs, and expenses. Any motions for service awards to Class


4

Representatives shall be filed by the same date. Defendant shall file any response to any

motions filed under this paragraph within 14 days.

9. If the proposed settlement is not approved or consummated for any reason whatsoever,

then the settlement class certification established by this Order will be vacated, the Class

and Defendant will return to the status of the claims, defenses, and class certification

immediately prior to December 27, 2018, the date on which the proposed settlement was

reached; the proposed settlement and all proceedings conducted in connection therewith

shall be stricken from the record and shall be without prejudice to the status quo ante

rights of Plaintiffs and Defendant.

10. A Final Approval Hearing shall be held at __ a.m./p.m. on ________ _, 2019, for the

purpose of determining whether the proposed settlement and compromise set forth in the

Settlement Agreement shall be approved finally by the Court and whether final judgment

dismissing the Action with respect to Defendant is appropriate. This hearing will be held

at the United States District Court for the District of New Hampshire, 55 Pleasant Street

Room 110, Concord, NH 03301. At the Final Approval Hearing, the Court will consider

and determine:

10.1 whether the proposed settlement is fair, reasonable, and adequate to members of

the Class and should be approved by the Court;

10.2 whether the proposed Settlement Class satisfies the applicable prerequisites for

class action treatment under Federal Rules of Civil Procedure 23(a) and 23(b)(2)

and (3) for purposes of the proposed settlement;

10.3 whether the Court should enjoin Defendant according to the specific terms in the

Settlement Agreement;


5

10.4 whether final judgment should be entered, dismissing the Action as to Defendant,

on the merits and with prejudice, and to determine whether the release by the

Class of the Released Claims, as set forth in the Settlement Agreement, should be

provided;

10.5 whether the Court should approve Class Counsel’s application for an award of

attorneys’ fees, expenses, and costs;

10.6 whether the Court should approve any motion for an award of incentive fees for

the class representatives; and

10.7 such other matters as the Court may deem appropriate.

11. Any person who wishes to oppose or object to final approval of the settlement and

compromise in this Action shall mail an objection letter to stating the person’s intention

to object to the Settlement in In re: Dial Complete Marketing and Sales Practices

Litigation, Case No. 11-md-2263-SM. Any objection letters must include the objector’s

name, address, telephone number, signature, reasons for objecting to the settlement, and a

statement of whether the objector or the objector’s lawyer will ask to speak at the final

approval hearing. Objection letters must be mailed to each of the following four places

and postmarked no later than 60 days after the date of Preliminary Approval, or the

objection will not be valid and will not be considered by the Court:

Administrator

Court

Class Action Objections

Attn: Soap Settlement

P.O. Box 58220

1500 John F Kennedy Blvd.

Suite C31


Office of the Clerk

United States District Court for the District of

New Hampshire

55 Pleasant Street Room 110

Concord, NH 03301


6

Lead Class Counsel

Defendant’s Counsel

Lucy J. Karl

NH Bar No. 5547


P.O. Box 2703

Concord, New Hampshire 03302-2703

Telephone: (603) 225-7262

Facsimile: (603) 225-5112

[email protected]

Patrick Haney

KIRKLAND & ELLIS LLP 655 Fifteenth

Street, N.W. Washington, D.C. 20005

Telephone: (202) 879-5000

Facsimile: (202) 879-5200

[email protected]

12. Any person who wishes to appear at the Final Approval Hearing, either in person or

through counsel, before 60 days following the date of Preliminary Approval, in addition

to providing the above information, shall also:

12.1 Identify the points the objector wishes to speak about at the hearing;

12.2 Enclose copies of any documents the objector intends to rely on at the hearing;

12.3 State the amount of time the objector requests for speaking at the hearing; and

12.4 State whether the objector intends to have a lawyer speak on his or her behalf.

13. Any lawyer who intends to speak on behalf of an objector at the Final Approval Hearing

shall enter a written notice of appearance of counsel with the Clerk of Court no later than

60 days following the date of Preliminary Approval. All properly submitted objections

shall be considered by the Court.

14. Any member of the Class who does not object in the manner set forth above shall be

deemed to have waived such objection and shall forever be foreclosed from making any

objection to the fairness, adequacy, or reasonableness of the proposed settlement, the

Final Approval Order and Judgment to be entered approving the settlement, the Release

of Claims, or the attorneys’ fees, costs, expenses, or incentive fees requested.


7

15. All proceedings in the Action, other than such as may be necessary to carry out the terms

and conditions of this Order or the responsibilities incidental thereto, are stayed and

suspended as between Plaintiffs and Defendant until further order of the Court.

16. The Court may adjourn the Final Approval Hearing, or any adjournment thereof, without

any further notice other than an announcement at the Final Approval Hearing, or any

adjournment thereof, and may approve the Settlement Agreement with modifications as

approved by the parties to the Settlement Agreement without further notice to the Class.

17. The Court retains exclusive jurisdiction over the Action to consider all further matters

arising out of or connected with the proposed settlement.

SO ORDERED this __ day of _____________, 2018.

___________________________

The Honorable Judge Steven McAuliffe

United States District Court

District of New Hampshire


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