Armstrong et al v. Bestway (USA) Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Franca Armstrong, et al.,
Plaintiffs,
v.
Bestway (USA) Incorporated,
Defendant.
No. CV-24-02812-PHX-SHD
ORDER PRELIMINARILY
APPROVING SETTLEMENT
At issue is Plaintiffs Franca Armstrong, Mandy Islam, and Danielle Harper’s
(“Plaintiffs”) unopposed Motion for Preliminary Approval of Class Action Settlement
Agreement. (Doc. 35 (“Motion” or “Mot.”.) I held a hearing on the Motion on July 10,
2025, (Doc. 36), and after taking the matter under advisement, ordered the parties to
provide supplemental briefing and supporting documentation regarding preliminary class
certification, (Doc. 38). Plaintiffs and Defendant Bestway (USA) Inc. (“Bestway”) filed
a Joint Supplemental Brief in support of the Motion and a declaration addressing my
questions. (Docs. 39, 41.) Based on the contents of the Motion, Joint Supplemental
Brief, and Declaration, as well as the information provided at the hearing, I will grant the
Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2024, Bestway, a manufacturer of spa pumps, together with the
United States Consumer Product Safety Commission, announced a recall impacting over
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860,000 pumps covering nine different models.1 (Doc. 29, First Amended Complaint
(“FAC”) at ¶ 2.) The recall stemmed from fires involving allegedly defective spa pumps.
(Id.) Bestway’s recall allowed consumers who still possessed a Bestway spa pump to
either (a) receive a replacement spa pump, or (b) receive a credit or gift card valued at
$100 or $189, depending on the model spa pump they purchased; consumers who no
longer possessed a spa pump were left without any recourse against Bestway. (FAC ¶¶ 5,
43.)
Plaintiff Harper filed a class action suit in the United States District Court for the
Eastern District of Pennsylvania, while Plaintiffs Armstrong and Mandy filed similar
claims in this matter. (Mot. at 2.) Counsel in both actions worked cooperatively and
added Harper as a plaintiff in this action via the FAC, which asserts various common law
and statutory causes of action. (Mot. at 3; see also FAC at ¶¶ 58–192.) Bestway
answered and asserted various affirmative defenses. (Doc. 30.) Before filing the FAC
and Answer, the parties reached a settlement in principle. (Mot. at 2–3.)
Plaintiffs then filed the Motion, seeking certification of the class under Federal
Rule of Civil Procedure 23(b)(3) for purposes of settlement. (Id. at 14–15.) The parties
describe the executed Class Action Settlement Agreement in detail and include it as an
exhibit. (Id. at 3–7; Doc. 35-2 (“Settlement” or “Settlement Agreement”).) Under the
Settlement, Class Members who opted for a replacement spa pump under Bestway’s
recall automatically receive a one-year extension to Bestway’s limited warranty, with an
estimated value of $60. (Mot. at 3–4.) Class Members who received compensation
through the recall or no longer have a spa pump are eligible to receive a $75 cash
payment as long as they either participate in the recall or submit a valid proof of purchase
with their claim form if they no longer possess a covered spa pump and did not
previously participate in the recall. (Id. at 4.) The cash payments are capped at
1 The nine spa pump models at issue are the Bestway AirJet and HydroJet Spa
Pump model numbers P05332, P05339, P05711, P05807, P07000, P07001, P05511,
P07034, and P07572 (collectively, the “Class Product”). (Settlement at 4.)
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$2,000,000; thus, if the total amount of valid claims for cash payments—plus $2,500
incentive fees paid to each of the named Plaintiffs—exceeds $2,000,000, the cash
payments will be reduced pro rata. (Id. at 4–5.)
The Settlement also requires Bestway to pay all expenses associated with
distributing and administering the benefits to Class Members, independent of the cap, as
well as Class Counsel’s attorneys’ fees and costs, which are capped at $807,591. (Id. at
5.) If fees and costs are awarded in an amount below that cap, the difference between the
amount awarded and the fees/costs cap will be distributed pro rata to each Class Member
who submitted a claim for a cash payment. (Id. at 5–6.) Following execution of the
Settlement, Plaintiffs moved for certification of the settlement class and preliminary
approval of the Settlement.
II. LEGAL STANDARD
Procedurally, the class certification and settlement approval process moves
forward in two steps. At the first step, the court preliminarily determines whether the
proposed settlement class should be certified and whether the court “will likely be able
to” approve the settlement proposal under the “fair, reasonable, and adequate” standard
such that it can direct notice under Rule 23(e)(1) to all class members who would be
bound by the settlement. See Fed. R. Civ. P. 23(e). At the second step, the court must
evaluate whether to grant final approval. The Motion concerns only the first step.
A. Standard for Class Certification
Rule 23(a), Federal Rules of Civil Procedure, provides that a class action may
proceed only if four prerequisites are met:
1. Numerosity: “the class is so numerous that joinder of all members is
impracticable”;
2. Commonality: “there are questions of law or fact common to the class”;
3. Typicality: “the claims or defenses of the representative parties are
typical of the claims or defenses of the class;” and
4. Adequacy of Representation: “the representative parties will fairly and
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adequately protect the interests of the class.”
Doyle v. Pekin Ins. Co., 2025 WL 1192752, at *2 (D. Ariz. 2025) (quoting Fed. R. Civ. P.
23(a)).
Additionally, as pertinent to the Motion, Rule 23(b)(3) allows a court to certify a
class action if it finds “that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” In conducting the requisite inquiry, courts consider several “pertinent”
factors:
(A) the class members’ interests in individually controlling the prosecution
or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)–(D).
The Supreme Court has explained that “Rule 23 does not set forth a mere pleading
standard. A party seeking class certification must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011). Accordingly, “it may be necessary for the court
to probe behind the pleadings before coming to rest on the certification question.” Id.
(citation omitted). The analysis a district court must engage in requires a “rigorous
analysis” to ensure that the requirements of Rule 23(a) have been satisfied. Id. at 350–51.
B. Standard for Preliminary Approval of Class Settlement
Furthermore, Rule 23 requires approval by the district court of any class action
settlement. Fed R. Civ. P. 23(e) (“The claims, issues, or defenses of a certified class—or
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a class proposed to be certified for purposes of settlement—may be settled, voluntarily
dismissed, or compromised only with the court’s approval.”). Approval requires the
court to conduct a hearing and find that a settlement is “fair, reasonable, and adequate
after considering” several factors. Fed. R. Civ. P. 23(e)(2) (setting forth factors). In the
Ninth Circuit, district courts must balance eight factors when evaluating a proposed class
settlement under Rule 23(e)(2):
(1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and
likely duration of further litigation; (3) the risk of maintaining class action
status throughout the trial; (4) the amount offered in settlement; (5) the
extent of discovery completed and the stage of the proceedings; (6) the
experience and views of counsel; (7) the presence of a governmental
participant; and (8) the reaction of the class members to the proposed
settlement.
Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).
Some of these factors cannot be fully assessed until the final fairness hearing;
therefore,
[a]t the preliminary approval stage, courts need only evaluate whether the
proposed settlement (1) appears to be the product of serious, informed, non-
collusive negotiations, (2) has no obvious deficiency, (3) does not
improperly grant preferential treatment to class representatives or segments
of the class, and (4) falls within the range of possible approval.
Doyle, 2025 WL 1192752, at *3 (citing Horton v. USAA Cas. Ins. Co., 266 F.R.D. 360,
363 (D. Ariz. 2009)); see also Saliba v. KS Statebank Corp., 2021 WL 2105608, at *4 (D.
Ariz. 2021) (preliminary approval is evaluated simply for “whether the Settlement is
within the range of reasonableness”).
Nonetheless, for settlements reached prior to formal class certification, the Ninth
Circuit has recognized that “there is an even greater potential [than normal] for a breach
of fiduciary duty owed the class during settlement.” In re Bluetooth Headset Prods.
Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011). “Accordingly, such agreements must
withstand an even higher level of scrutiny for evidence of collusion or other conflicts of
interest than is ordinarily required under Rule 23(e) before securing the court's approval
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as fair.” Id. “The district court’s approval order must show not only that it has explored
the Churchill factors comprehensively, but also that the settlement is not the product of
collusion among the negotiating parties.” Id. at 947 (citation modified); see also Staton
v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003) (concerns about the fairness of
settlement agreements “warrant special attention when the record suggests that the
settlement is driven by fees; that is, when counsel receive a disproportionate distribution
of the settlement”). Ultimately, however, there is a “strong judicial policy that favors
settlements, particularly where complex class action litigation is concerned.” In re
Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019) (citation omitted).
III. DISCUSSION
In the unopposed Motion, Plaintiffs ask that I (1) preliminarily certify a national
class for settlement purposes (the “Settlement Class”) and appoint Plaintiffs and their
counsel as the Settlement Class’s representatives and counsel; (2) preliminarily approve
the proposed Settlement Agreement; and (3) approve the notice plan and forms of notice
to the Settlement Class. (Mot. at 1–2.) I first address whether Plaintiffs have met their
burden of establishing that the proposed Settlement Class meets the requirements of Rule
23(a) and (b)(3). I then examine whether the Settlement is fair, reasonable and adequate
under Rule 23(e) and the pertinent Churchill factors. Finally, because I will preliminarily
approve the Settlement, I address whether the parties’ proposed notice plan is adequate.
A. Preliminary Certification of the Settlement Class
The parties agree to the following definition of the Settlement Class: All people
who purchased Class Product from May 2021 through May 2024 (the “Class Period”).
(Mot. at 3.) For the reasons set forth below, the parties have established that the
Settlement Class meets the requirements of Rule 23(a) and (b)(3).
1. Rule 23(a)(1)—Numerosity
To satisfy Rule 23(a)(1), a class must be “so numerous that joinder of all members
is impracticable.” Fed. R. Civ. P. 23(a)(1). “In determining whether numerosity is
satisfied, the Court may consider reasonable inferences drawn from the facts before it.”
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In re Yahoo Mail Litig., 308 F.R.D. 577, 589–90 (N.D. Cal. 2015). The term
“impracticable” has been construed to mean that joining all claimants would be difficult
and inconvenient. See In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016)
(citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)). Although there is no set
numerical threshold, courts presume that joining more than 40 claimants would be
impractical. See, e.g., id.; Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010) (“In
general, courts find the numerosity requirement satisfied when a class includes at least 40
members.”).
Here, the proposed Settlement Class is comprised of approximately 860,000
consumers. (Mot. at 12.) Accordingly, Rule 23(a)(1) is readily satisfied.
2. Rule 23(a)(2)—Commonality
Rule 23(a)(2) specifies that a class action present “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). There must be a minimum of one
common question of law or fact shared by the class to satisfy this provision. See, e.g.,
Wal-Mart, 564 U.S. at 359 (“[F]or purposes of Rule 23(a)(2), even a single common
question will do.” (cleaned up)). Accordingly, Rule 23(a)(2) presents a “‘relatively light
burden’ that ‘does not require that all the questions of law and fact raised by the dispute
be common . . . or that the common questions of law or fact predominate over individual
issues.’” Esparza v. SmartPay Leasing, Inc., 2019 WL 2372447, at *2 (N.D. Cal. 2019)
(quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009)).
Plaintiffs have demonstrated the existence of questions of law and fact that are
common to the proposed Settlement Class, such as whether Bestway knew or should have
known of the defect in the Class Product, whether the defect would be material to a
reasonable consumer, whether Bestway failed to disclose the defect from potential
customers, and whether Bestway violated the consumer protection laws at issue. (FAC ¶
50; see also Mot. at 11–12.)
3. Rule 23(a)(3)—Typicality
Rule 23(a)(3) requires that the “claims or defenses of the representative parties are
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typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The inquiry
focuses on “whether other members have the same or similar injury as [the class
representatives], whether the action is based on conduct which is not unique to the
[representatives], and whether other class members have been injured by the same
conduct.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quotation marks omitted);
Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). The
representatives’ claims “need not be substantially identical” to other class members’
claims to satisfy the typicality requirement. Parsons, 754 F.3d at 685 (citation omitted).
Thus, if the representatives’ and other class members’ claims arise from a similar course
of conduct and share the same legal theory, certain factual differences or differing
damages may not necessarily preclude typicality. Just Film, Inc. v. Buono, 847 F.3d
1108, 1116–18 (9th Cir. 2017) (holding that “typicality is not defeated” when a
representative plaintiff’s “precise injuries are [not] identical” to the class and her
“damages differ[ed] from the damages of some class members”).
Plaintiffs’ claims and the class members’ claims are nearly identical. They all
arise from similar defects in the Class Product that negatively impacted the value of the
goods purchased and involve a similar alleged course of conduct by Bestway. (See
generally, FAC.) Moreover, although Plaintiffs purchased only one of the nine models of
spa pumps that comprise the Class Product, this does not negate typicality given that the
claims need not be substantially identical. See Parsons, 754 F.3d at 685. Accordingly,
the typicality requirement is satisfied here.
4. Rule 23(a)(4)—Adequacy
Rule 23(a)(4) requires that the “representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The inquiry under this
provision “serves to uncover conflicts of interest between named parties and the class
they seek to represent.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625 (1997). As
the Supreme Court has explained, “a class representative must be part of the class and
‘possess the same interest and suffer the same injury’ as the class members.” E. Tex.
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Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974). Courts in the Ninth Circuit
ask the following questions when determining whether class representatives adequately
represent the class: “(1) Do the representative plaintiffs and their counsel have any
conflicts of interest with other class members, and (2) will the representative plaintiffs
and their counsel prosecute the action vigorously on behalf of the class?” Evon v. L. Offs.
of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012). “The adequacy-of-representation
requirement tends to merge with the commonality and typicality criteria of Rule 23(a).”
Whitehead v. Amica Mut. Ins. Co., 2025 WL 870990, at *8 (D. Ariz. 2025) (finding no
conflict of interest “especially in light of the commonality and typicality requirements
being met”) (citation modified).
At the July 10, 2025 hearing, Plaintiffs addressed questions about whether their
purchase of only one of the nine models at issue rendered them inadequate
representatives, or created a conflict between them and class members who had
purchased other models. Following the hearing, the parties supplemented the Motion
with additional briefing pertinent to this issue. (Docs. 39, 40.) Plaintiffs have established
that they do not have any conflict with the other members of the proposed Settlement
Class and are adequate representatives. That Plaintiffs only purchased one of the nine
spa pump models at issue is of minimal importance in this case given their model was the
most commonly purchased model—comprising a significant majority of the
approximately 860,000 spa pumps sold, (Doc. 41 at ¶ 4)—and the defect was the same
across models. See Lessin v. Ford Motor Co., 756 F. Supp. 3d 885, 933–34 (S.D. Cal.
2024) (finding alignment between class representatives and other members, even though
they only owned two of the four product models at issue, given that the defect was the
same and they suffered similar injury).
Furthermore, Plaintiffs have demonstrated that the variance in price of the
different spa pumps, and the different compensation offered for different models during
the recall, does not create a conflict. First, the difference in price and compensation was
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not so large as to raise concerns that Plaintiffs might have a conflict. (Doc. 41 at ¶¶ 2–3.)
Second, as Plaintiffs note, because class members were already able to obtain
differentiated compensation by participating in the recall, there is less of a concern with
treating all class members similarly for purposes of compensation under the Settlement.
(Doc. 39 at 4–5.) And third, Plaintiffs represent all members of the putative class with
respect to participation in the recall, because one availed herself of the replacement
option, and the other two did not participate in the recall. (Doc. 39 at 2.)
Likewise, Plaintiffs have demonstrated that their counsel has and will vigorously
pursue the interests of the Settlement Class. “Although there are no fixed standards by
which vigor can be assayed, considerations include competency of counsel and, in the
context of a settlement-only class, an assessment of the rationale for not pursuing further
litigation.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1021 (9th Cir. 1998) (cleaned up),
overruled on other grounds by Wal-Mart, 564 U.S. 338. Here, Plaintiffs have provided
information about counsel’s experience in similar class actions, as well as their efforts in
prosecuting this action, including obtaining a favorable settlement in light of litigation
risks. (Mot. at 13–14 (citing Doc. 35-1 at ¶¶ 5–25).) Accordingly, Plaintiffs have
established adequacy.
5. Rule 23(b)(3)
Plaintiffs seek class certification pursuant to Rule 23(b)(3), (Mot. at 14–15), which
provides for class treatment when (a) questions of law or fact common to class members
predominate over questions affecting individual members, and (b) a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy. Fed. R. Civ. P. 23(b)(3).
a. Predominance
Although the predominance requirement is similar to Rule 23(a)(2)’s commonality
requirement, it is “even more demanding.” Comcast Corp. v. Behrend, 569 U.S. 27, 34
(2013). The predominance inquiry “focuses on the relationship between the common and
individual issues and tests whether proposed classes are sufficiently cohesive to warrant
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adjudication by representation.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,
944 (9th Cir. 2009) (quotation marks omitted). Thus, “courts have a duty to take a close
look at whether common questions predominate over individual ones to ensure that
individual questions do not overwhelm questions common to the class.” Senne v. Kan.
City Royals Baseball Corp., 934 F.3d 918, 927 (9th Cir. 2019) (quotation marks omitted).
“An individual question is one where ‘members of a proposed class will need to present
evidence that varies from member to member,’ while a common question is one where
‘the same evidence will suffice for each member to make a prima facie showing [or] the
issue is susceptible to generalized, class-wide proof.’” Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442, 453 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50,
pp. 196–197 (5th ed. 2012)). “When common questions present a significant aspect of
the case and they can be resolved for all members of the class in a single adjudication,
there is clear justification for handling the dispute on a representative rather than on an
individual basis.” Hanlon, 150 F.3d at 1022 (quotation marks omitted).
Here, Plaintiffs have demonstrated that the common issues predominate over the
individual issues. The class members’ claims arise under the same or similar consumer
protection laws. (Mot. at 14–15 (citing state and federal laws supporting their claims).)
Moreover, the claims all relate to Bestway’s conduct in marketing its spa pumps, involve
the same defect across all models, and would rely on much of the same evidence. (Id.)
And although the different class members might theoretically have suffered different
damages depending on which model spa pump they purchased or whether they
participated in Bestway’s recall, this “does not defeat finding predominance.” Just Film,
847 F.3d at 1121. Put another way, there is minimal likelihood that the class members
have strong interests in individually controlling the prosecution of separate actions, and it
is unlikely that managing the class action would be difficult. See Fed. R. Civ. P.
23(b)(3)(A), (D).
b. Superiority
“Where classwide litigation of common issues will reduce litigation costs and
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promote greater efficiency, a class action may be superior to other methods of litigation.”
Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Here, a class
action will undoubtedly promote efficiency. Because each class member’s claims involve
substantially similar issues, filing tens or hundreds of thousands of individual cases
would increase litigation costs and waste both the parties’ and courts’ time and resources.
Additionally, although damages would theoretically vary among the class members, the
vast majority of their claims would be too small to make individual litigation possible.
See McClure v. State Farm Life Ins. Co., 341 F.R.D. 242, 254 (D. Ariz 2022) (“[B]ecause
the recoveries of each individual class member will be relatively small, a class action is
superior to other methods of adjudication.”). Additionally, it appears that the only
litigation to date concerning Bestway’s spa pump recall has been asserted by Plaintiffs,
(see Mot. at 3), suggesting that this class action is a superior method for resolving the
class members’ claims in this forum. See Fed. R. Civ. P. 23(b)(3)(B), (C). Thus, the
superiority requirement is met.
Because Plaintiffs’ proposed Settlement Class meets the requirements of Rules
23(a) and (b), the class will be certified for settlement purposes.
B. Preliminary Approval of the Settlement
Based on the Motion, including the Settlement attached to it, the parties’ Joint
Supplemental Brief supporting the Motion (Doc. 39), and the Declaration of Pat
Fumagalli, (Doc. 41 (sealed)), the Settlement will be preliminarily approved because I
find that I will likely be able to approve it under Rule 23(e)(2)’s “fair, reasonable and
adequate” standard after considering the four factors described in Horton. 266 F.R.D. at
363.
1. Non-Collusive Settlement Negotiations
The means and negotiations by which the parties settled the action must be
evaluated under the first factor. Id. at 363. Courts bear the obligation to evaluate the
scope and effectiveness of the investigation plaintiffs conducted prior to reaching an
agreement. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000); see
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also Acosta v. Trans Union, LLC, 243 F.R.D. 377, 397 (C.D. Cal. 2007) (“Federal courts
are inherently skeptical of pre-certification settlements, precisely because such
settlements tend to be reached quickly before the plaintiffs’ counsel has had the benefit of
the discovery necessary to make an informed evaluation of the case and, accordingly, to
strike a fair and adequate settlement.”); Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035,
1048 (9th Cir. 2019) (“Where . . . parties negotiate a settlement agreement before the
class has been certified, settlement approval requires a higher standard of fairness and a
more probing inquiry than may normally be required under Rule 23(e).” (quotation marks
omitted)).
In this case, the Settlement bears no indicia of collusion. It was negotiated with
the benefit of the services of a mediator who presided over three separate mediations,
(see Mot. at 8–9 (citing Doc. 35-1 at ¶¶ 8–10, 21–25)), suggesting that the Settlement was
the result of an adversarial, arms’ length, bargaining process, see In re Flint Water Cases,
571 F. Supp. 3d 746, 780 (E.D. Mich. 2021) (“There appears to be no better evidence of a
truly adversarial bargaining process than the presence of a neutral third party mediator.”
(citation modified)). And in advance of the mediations, the parties engaged in some
informal discovery through which Bestway produced data concerning, among other
things, sales of the Class Product and putative class members’ participation in the recall,
which was sufficient for the parties to assess their claims and defenses. (Doc. 35-1 at ¶
8.)
Given the lack of any evidence suggesting that the Settlement was negotiated
collusively or in haste, I am preliminarily satisfied that it was the product of informed,
arms’ length negotiations. See Hanlon, 150 F.3d at 1027 (affirming settlement approval
when there was “no evidence to suggest that the settlement was negotiated in haste or in
the absence of information illuminating the value of plaintiffs’ claims”). Nonetheless, at
the fairness hearing the parties must be prepared to present evidence regarding the
adequacy of the negotiation process.
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2. No Obvious Deficiency
For purposes of determining whether there is an obvious deficiency, the Ninth
Circuit has identified three particular warning signs “that class counsel have allowed
pursuit of their own self-interests and that of certain class members to infect the
negotiations”: (1) “When counsel receive a disproportionate distribution of the
settlement,” (2) “clear sailing” provisions requiring payment of attorneys’ fees separate
from class compensation and where a defendant promises not to challenge agreed-upon
fees, and (3) reverter provisions that result in unawarded fees reverting to defendants
rather than to the class. In re Bluetooth, 654 F.3d at 947; Briseño v. Henderson, 998 F.3d
1014, 1026–27 (9th Cir. 2021) (identifying “red flag” of a clear sailing arrangement
where the defendant “agreed not to challenge the agreed-upon fees for class counsel,”
which “signal[ed] the potential that a defendant agreed to pay class counsel excessive
fees in exchange for counsel accepting a lower amount for the class members”).
Here, none of these deficiencies identified in In re Bluetooh exists—there is no
clear sailing provision, no reverter of unawarded fees to Bestway, and no
disproportionate payment of the settlement amount to counsel. Indeed, the Settlement
provides that “[s]hould the Court order an award of attorneys’ fees, costs, and expenses in
a total amount less than [the amount sought by counsel of] $807,591.00, the difference
between the amount awarded to Class Counsel and $807,591.00 shall be distributed pro
rata to each Class Member who has submitted a valid claim for a cash payment.”
(Settlement at 17–18.) Moreover, it appears that the majority of the benefits of the
Settlement will accrue to the class members rather than counsel, given that the settlement
fund for cash payments is capped at $2,000,000 (plus amounts not awarded to counsel
below the fee cap) and class members may be entitled to an extended warranty with
additional value. (Settlement at 12–14.)
3. No Preferential Treatment
District courts must be “particularly vigilant” for signs that counsel has allowed
the “pursuit of their own self-interests and that of certain class members to infect the
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negotiations.” In re Bluetooth., 654 F.3d at 947. Accordingly, preliminary approval of a
class settlement is inappropriate where the proposed agreement “improperly grant[s]
preferential treatment to class representatives.” In re Tableware Antitrust Litig., 484 F.
Supp. 2d 1078, 1079 (N.D. Cal. 2007). Class representatives are, however, “eligible for
reasonable incentive payments.” Staton v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003).
These payments “are discretionary and are intended to compensate class representatives
for work done on behalf of the class, to make up for financial or reputational risk
undertaken in bringing the action, and, sometimes, to recognize their willingness to act as
a private attorney general.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958–59 (9th
Cir. 2009) (citation omitted). These payments, however, must be evaluated individually
to avoid “excessive payments to named class members” that may indicate “the agreement
was reached through fraud or collusion,” and this evaluation entails balancing “the
number of named plaintiffs receiving incentive payments, the proportion of the payments
relative to the settlement amount, and the size of each payment.” Staton, 327 F.3d at 975,
977.
Here, the Settlement calls for a minimal incentive fee of $2,500 for each of the
three Plaintiffs. (Settlement at 17.) This amount would be less than a tenth of a percent
of the estimated value of the Settlement, which is reasonable and raises no concerns of
collusion. See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 948 (9th Cir.
2015) (approving $45,000 in incentives awards, which made up “a mere .17% of the total
settlement fund of $27,250,000”).
Moreover, the parties have, at this preliminary stage, satisfied my concerns about
the Settlement giving preferential treatment to some members of the class over others.
As noted above, although the Settlement awards the same relief to all class member
regardless which spa pump model they purchased—which differ in cost—the parties have
sufficiently explained that the recall benefits sufficiently distinguish between models.
(Doc. 39 at 4–5, 6.) While the parties should be prepared to argue and, potentially,
prepare further evidence on this subject at the fairness hearing, I preliminarily find that
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the Settlement does not improperly benefit Plaintiffs or segments of the class.
4. Within Range of Possible Approval
Finally, courts focus on “substantive fairness and adequacy” and “consider
plaintiffs’ expected recovery balanced against the value of the settlement offer” when
evaluating whether a settlement falls “within the range of possible approval.” In re
Tableware, 484 F. Supp. 2d at 1080. The Motion asserts that the value of the Settlement
exceeds “$10 million dollars” based on the cash fund of $2,000,000 for class members
who do not want a replacement spa pump, and an $8,000,000 estimated value of the
extended warranty for those who select a replacement. (Mot. at 1, 11.) At the July 10,
2025 hearing, Plaintiffs’ counsel indicated that maximum damages in cases like this one,
which are in the form of “price premium damages,” are approximately 10 to 20 percent,
but did not provide an actual estimated dollar value of the Settlement Class’s claim.
Counsel further explained that obtaining such a best case result would require more than
five years of litigation and, of course, the outcome would be uncertain.
At this stage, I preliminarily find that the value of the Settlement is within the
range of possible approval. The parties, however, should be prepared to present more
concrete evidence of the maximum value of the Settlement Class’s claims at the fairness
hearing to allow for a more complete understanding of the adequacy of the Settlement’s
value. See, e.g., Zwicky v. Diamond Resorts Mgmt. Inc., 343 F.R.D. 101, 124–25 (D.
Ariz. 2022) (explaining that courts need more than “vague and conclusory statements”
about numerical evidence to determine whether a proposed settlement’s value is
adequate).
In sum, I will preliminarily approve the proposed Settlement because it “appears
to be the product of serious, informed, non-collusive negotiations, has no obvious
deficiency, does not improperly grant preferential treatment to class representatives or
segments of the class and falls within the range of possible approval.” Horton, 266
F.R.D. at 363 (quotation marks omitted).
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C. Proposed Class Notice and Notice Program
The parties have proposed a form of class notice, as well as a program for giving
that notice, to the members of the Settlement Class. Rule 23(c)(2)(B) sets forth the
requirements for notice to a class certified under Rule 23(b)(3):
[T]he court must direct to class members the best notice that is practicable
under the circumstances, including individual notice to all members who
can be identified through reasonable effort . . . . The notice must clearly and
concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the
member so desires;
(v) that the court will exclude from the class any member who requests
exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule
23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B). In addition to outlining the contents of the notice, Rule 23
requires that the notice be provided via “United States mail, electronic means, or other
appropriate means.” Id. Additionally, the Supreme Court has explained that due process
requires that the notice 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.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
In this case, the Settlement includes proposed class notice forms (“Notice
Forms”), (see Settlement, Exhibits D (Long Form Notice), E (Summary Notice)), and a
proposed notice plan (“Notice Plan”), (id. at 14–17). Both Notice Forms are in an easy-
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to-understand question-and-answer format and satisfy the requirements of Rule
23(c)(2)(B). The Notice Plan requires direct notice by email and United States mail and
email to all members of the Settlement Class whose email or home addresses are
available, an online advertising notice program designed to ensure that at least 80 percent
of the class receive action notice, and a reminder summary notice via email 60 days after
the date of the initial notice for all members of the class who have not yet submitted a
claim, objection, or opt-out notice. (Settlement at 14–15). Accordingly, the Notice Plan
also complies with Rule 23(c)(2)(B). See, e.g., Dale v. Travelers Property Casualty Ins.
Co., 2024 WL 4503808, at *10 (D. Ariz. 2024) (finding notice was appropriate where it
was served “by United States Mail,” and was “in the form of easily understandable
questions and answers” and “direc[ed] Class Members to contact Class Counsel . . . for
more detailed information”). Furthermore, both the form of notice and the Notice Plan
comport with due process because they are reasonably calculated to apprise class
members of the pendency of this lawsuit and afford them the opportunity to object. See
Mullane, 339 U.S. at 314. Thus, the proposed Notice Forms and Notice Plan will be
approved.
IV. CONCLUSION
Accordingly,
IT IS ORDERED granting Plaintiffs’ Notice of Motion and Motion for
Preliminary Approval of Class Action Settlement (Doc. 35).
IT IS FURTHER ORDERED as follows:
1. Defined Terms. This Order incorporates by reference the definitions in the
Settlement Agreement, and all terms used in this Order shall have the same meanings as
set forth in the Settlement Agreement.
2. Class Definition. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, I
preliminarily certify, solely for purposes of effectuating the Settlement, the following
Settlement Class: all people who purchased a Class Product during the Class Period.
Excluded from the Class are: (a) Defendant and its employees, principals, officers,
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directors, agents, affiliated entities, legal representatives, successors and assigns; (b) the
judges to whom the Actions have been or are assigned and any members of their
immediate families; and (c) all persons who have filed a timely Request for Exclusion
from the Class.
3. Class Representatives. I preliminarily appoint Danielle Harper, Franca
Armstrong, and Mandy Islam as Settlement Class Representatives.
4. Class Counsel. I preliminarily appoint Poulin Willey Anastopoulo, LLC, Hoffman
Legal, LLC, and Smith Krivoshey, PC as Class Counsel for the Settlement Class.
5. Preliminary Class Certification of Settlement Purposes Only. I preliminarily find,
solely for purposes of the Settlement, that the Rule 23 criteria for certification of the
Settlement Class exist.
6. Form of Class Notice. I approve the form and content of the proposed Long Form
Notice and Summary Notice (Exhibits D and E to the Settlement Agreement) and Claim
Form (Exhibit C to the Settlement Agreement). I authorize the Parties to make non-
material modifications to the Settlement Class Notice and Claim Form prior to mailing if
they jointly agree that any such changes are appropriate.
7. Notice. No later than the date specified in Paragraph 20 below, the Settlement
Administrator shall provide notice to the Class pursuant to the terms of the Settlement
Agreement. The Parties shall coordinate with the Settlement Administrator to provide
notice to the Class pursuant to the terms set forth therein.
8. Administration. I appoint Simpluris, Inc. as the Settlement Claim Administrator
(“Settlement Administrator”). The Settlement Administrator is directed to perform all
settlement administration duties set forth in, and pursuant to the terms and time periods
of, the Settlement Agreement, including mailing of the CAFA Notice; implementing and
maintaining the Settlement website; disseminating the Class Notice to the Settlement
Class; the processing, review and determination of timely submitted and proper Claims
Forms under the Settlement; and the submission of any declarations and other materials
to counsel and the court; as well as any other duties required under the Settlement
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Agreement.
9. Exclusion from the Class. Any Class Member who wishes to be excluded from the
Class must send to the Settlement Administrator by U.S. Mail a personally signed letter,
including their (a) full name, (b) current address, (c) a clear statement communicating
that they elect to be excluded from the Class and do not wish to be a Class Member,
(d) their signature, and (e) the case name and case number of the Action. A Class
Member can exclude only himself or herself from the Class, and shall not be allowed to
request that another individual or group be excluded. “Mass” or “class” opt-outs are not
permitted. Any such Request for Exclusion must be postmarked and sent to the
Settlement Administrator no later than the date specified in Paragraph 20 below (the
“Opt-Out Deadline”). The Settlement Administrator shall forward copies of any written
requests for exclusion to Plaintiffs’ Counsel and Defense Counsel.
10. Binding Impact. If the proposed Settlement is finally approved, any potential
Class Member who has not submitted a timely written Request for Exclusion on or before
the Opt-Out Deadline shall be bound by all terms of the Settlement Agreement and the
Final Order and Final Judgment, regardless of whether they have requested exclusion
from the Settlement, even if the potential Class Member previously initiated or
subsequently initiates any litigation against any or all of the Released Parties relating to
Released Claims. All persons or entities who properly exclude themselves from the Class
shall not be Class Members and shall relinquish their rights or benefits under the
Settlement Agreement, should it be approved, and may not file an objection to the
Settlement or be entitled to any settlement benefits.
11. Objections: Any Class Member who has not filed a timely written Request for
Exclusion may object to the fairness, adequacy, or reasonableness of the Settlement
Agreement or the Settlement, or to the requested award of attorneys’ fees and expenses,
or Plaintiffs’ service awards.
12. Copy of Objection: Any Class Member who objects to the fairness,
reasonableness, and/or adequacy of the Settlement must, in addition to filing the written
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objection no later than the Objection Deadline set forth in Paragraph 20 below, provide a
copy of the written objection by U.S. mail or e-mail to the Settlement Administrator. The
Settlement Administrator shall forward copies of any objections to Plaintiffs’ Counsel
and Defense Counsel.
13. Objection Contents: Any objecting Class Member must include in the objection:
a. the objector’s full name, address, and telephone number;
b. a statement, sworn to under penalty of perjury, attesting to the fact that (i) the
objector purchased one or more of the Class Products during the Class Period,
(ii) describing the model Class Product (i.e., AirJet or HydroJet Spa Pump) and
model number, and (iii) the date and location of purchase and provide proof of
purchase of the Class Product;
c. proof of purchase of a Class Product, such as through a photograph of the
Class Product or, if you no longer have the Class Product, a receipt or email
confirmation of the purchase;
d. a written statement of all grounds for the objection accompanied by any legal
support for such objection;
e. copies of any papers, briefs, or other documents upon which the objection is
based and are pertinent to the objection;
f. the name, address and telephone number of any counsel representing said
objector; and
g. a list of all other objections submitted by the objector, or the objector’s
counsel, to any class action settlements submitted in any court in the United
States in the previous five (5) years, including the full case name, the
jurisdiction in which it was filed and the docket number. If the Class Member
or his, her, their or its counsel has not objected to any other class action
settlement in the United States in the previous five (5) years, the class member
shall affirmatively so state in the objection.
14. Appearance. Any objecting Class Member may appear, in person or by counsel, at
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the Final Fairness Hearing to explain why the proposed Settlement should not be
approved as fair, reasonable, and adequate, or to object to any motion for Class Counsel
Fees and Expenses or Class representative service award. To appear, the objecting Class
Member must file with the Clerk of the Court a Notice of Intention to Appear at the Final
Fairness Hearing. The Notice of Intention to Appear must include copies of any papers,
exhibits or other evidence and the identity of witnesses that the objecting Class Member
(or the objecting Class Member’s counsel) intends to present at the Final Fairness
Hearing. Any Class Member who does not provide a Notice of Intention to Appear in
accordance with the deadline and other requirements set forth in Order shall be deemed to
have waived any right to appear, in person or by counsel, at the Final Fairness Hearing.
15. Waiver. Any Settlement Class Member who has not properly filed a timely
objection in accordance with the deadline and requirements set forth in this Order and the
Class Notice shall be deemed to have waived any objections to the Settlement and any
adjudication or review of the Settlement Agreement by appeal or otherwise.
16. Preliminary Injunction. All Class Members and/or their representatives who do
not timely and properly exclude themselves from the Class are barred and enjoined from
directly, indirectly, derivatively, in a representative capacity, or in any other capacity
filing, commencing, prosecuting, maintaining, intervening in, participating in,
conducting, or continuing any action in any forum (state or federal) as individuals, class
members, putative class members, or otherwise against the Released Parties (as defined
in the Settlement Agreement) in any court or tribunal asserting any of the Released
Claims (as defined in the Settlement Agreement), and/or from receiving any benefits
from any lawsuit, administrative or regulatory proceeding, or order in any jurisdiction,
arising out of, based on, or relating to the Released Claims. In addition, all such persons
are hereby barred and enjoined from filing, commencing, or prosecuting a lawsuit against
Defendant (or against any of its related parties, parents, subsidiaries, or affiliates) as a
class action, a separate class, or group for purposes of pursuing a putative class action
(including by seeking to amend a pending complaint to include class allegations or by
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seeking class certification in a pending action in any jurisdiction) on behalf of Class
Members who do not timely exclude themselves from the Class, arising out of, based on,
or relating to the Released Claims. Pursuant to 28 U.S.C. §§ 1651(a) and 2283, I find
that issuance of this preliminary injunction is necessary and appropriate in aid of my
continuing jurisdiction and authority over the Actions.
17. Termination of Settlement. In the event I do not grant final approval to the
Settlement, or for any reason the parties fail to obtain a Final Order and Final Judgment
as contemplated in the Settlement Agreement, or the Settlement Agreement is terminated
pursuant to its terms for any reason, then the following shall apply:
a. All orders and findings entered in connection with the Settlement Agreement
shall become null and void and have no force and effect whatsoever;
b. The conditional certification of the Class pursuant to this Order shall be
vacated automatically, and the Actions shall proceed as though the Class had
never been certified pursuant to the Settlement Agreement and such findings
had never been made;
c. Nothing in this Order or pertaining to the Settlement Agreement, including any
of the documents or statements generated or received pursuant to the claims
administration process, shall be used as evidence in any further proceedings in
this case, including, but not limited to, motions or proceedings seeking
treatment of the Actions as class actions;
d. Nothing in this Order or pertaining to the Settlement Agreement is, or may be
construed as, a presumption, concession, or admission by or against Defendant
that the Actions meet the requisites for certification as a class action under
federal law; and
e. All of my prior Orders having nothing whatsoever to do with the Settlement
shall, subject to this Order, remain in full force and effect.
18. Alteration of Exhibits. Plaintiffs’ Counsel and Defense Counsel are hereby
authorized to use all reasonable procedures to further the administration of the
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Settlement that are not materially inconsistent with this Order or the Agreement,
including making, without further approval, minor changes to the form or content of the
Long Form Notice, Summary Notice, Claim Form, and other exhibits that they jointly
agree are reasonable or necessary.
19. Retaining Jurisdiction. I shall maintain continuing jurisdiction over these
settlement proceedings to ensure the effectuation thereof for the benefit of the Class, and
for any other necessary purpose.
20. Settlement Deadlines. Based on the foregoing, I am setting the schedule below for
the Final Fairness Hearing and the actions which must precede it. If any deadline set
forth in this Order falls on a weekend or federal holiday, then such deadline shall extend
to the next business day. These deadlines may be extended by court order, for good
cause shown, without further notice to the Class. Settlement Class Members must check
the Settlement website regularly for updates and further details regarding this
Settlement:
Event Deadline Pursuant to
Settlement Agreement
Date Ordered by
Court
Notice shall be provided in
accordance with the Notice
Plan and this Order
45 days after Preliminary
Approval Granted
May 18, 2026
Class Counsels’ application
for Attorneys’ Fees and
Expenses and service awards
for Plaintiffs-Settlement
Class Representatives and
45 days after Notice Date July 2, 2026
Reminder Notice shall be
provided in accordance with
the Notice Plan in this Order
60 days after Notice Date July 17, 2026
Objections to the Settlement,
Class Counsels’ Fee and
Expense Application, and/or
the request for service awards
(“Objection Deadline”)
90 days after Notice Date August 17, 2026
Requests for Exclusion from
the Settlement (“Opt-Out
90 days after Notice Date August 17, 2026
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Date”)
Deadline for Class Members
to submit Claim Forms
(“Claims Deadline”)
90 days after Notice Date August 17, 2026
Plaintiffs’ Motion for Final
Approval of the Settlement
and response to any
objections
28 days before Final Fairness
Hearing
August 21, 2026
Deadline to submit notices of
appearance at the Final
Fairness Hearing
28 days before Final Fairness
Hearing
August 21, 2026
Deadline for Claims
Administrator to submit
declaration (1) stating the
number of claims, requests
for exclusion, and objections
to date, and (2) attesting that
Notice was disseminated in a
manner consistent with the
Settlement Agreement or
otherwise required by court
order.
10 days before Final Fairness
Hearing
September 9, 2026
Final Fairness Hearing will be
held at Courtroom 502, 401
W. Washington St., Suite
130, SPC 1 Phoenix,
AZ 85003-2118, or by video
conference as determined by
court order.
120 days after Notice Date,
or as soon thereafter as may
be heard by the court
Date: Friday,
September 18, 2026
Time: 9:00 a.m.
Dated this 1st day of April, 2026.
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