Ken Hashemi et al v. Bosley, Inc.

Filing 76

FINAL APPROVAL ORDER AND JUDGMENT by Judge Philip S. Gutierrez. NOW, THEREFORE, the Court hereby enters judgment in this matter pursuant to Rule 58 of the Federal Rules of Civil Procedure. (See document for further details) (yl)

.;a>

e ID

1 M. Anderson Berry(SBN 262879)
CLAYEO C. ARNOLD,
2
A PROFESSIONAL LAW CORP.
3 865 Howe Avenue
4 Sacramento, CA 95825
Telephone:[phone]
5 Facsimile:[phone]
6 [e-mail]

CLERK, U.S. DISTRICT COURT

NOVZt ~
CENT
BY

L DISTRICT OF CAL{F~RNIA
D~=r UTY

Jeffrey S. Goldenberg(pro hac vice)
GOLDENBERG SCHNEIDER,LPA
8 4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
9 Telephone:
513)345-8297
10 Facsimile:( 13)345-8294
[e-mail]
11
12 Attorneysfor Plaintiffs
13
[additional counsel listed on following page]
14
THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

15
16
17

KEN HASHEMI,STEVE
18 ALTES,SANDRA JOHNSONFOSTER, GREGORY BOUTS,
19 RAFAEL ARTIME, and JOHN
BOWDEN as individuals and all
20 others similarly situated,
21
22

Case No.: 2:21-cv-00946-PSG(RAOx)

~e~pe~ed] Final Approval Order and
Judgment

Plaintiffs,
vs.

23 BOSLEY,INC.,
24

Defendant.

25
26
27
2g
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 2 of 10 Page ID
#:1789

1

David K. Lietz(pro hac vice)
MILBERG COLEMAN BRYSON
3 PHILLIPS GROSSMAN,PLLC
5335 Wisconsin Avenue NW
4 Suite 440
Washington, D.C. 20015-2052
5 Telephone: [phone]
Facsimile:( 02)686-2877
6 Email: [e-mail]
7 Charles E. Schaffer(pro hac vice)
cschaffer lfsblaw.com
8 Email:
LEVIN SEDRA & BERMAN,LLP
9 510 Walnut Street, Suite 500
Philadel hia,PA 19106
10 Tel:(21~)592-1500
2

Ex Kano S. Sams II(SBN 192936)
Email: esams lancylaw.com
12 GLANCY P ~NGAY & MURRAY LLP
1925 Century Park East, Suite 2100
13 Los Angeles, California 90067
Tel: [phone]
14
15 Gary E. Mason
Danielle L. Perry
16 MASON LLP
5101 Wisconsin Avenue NW,Suite 305
17 Washin ton, DC 20016
Tel: 20~429-2290
18 Fax: [phone]
Email: [e-mail]
19 Email: [e-mail]
11

20
21
22
23
24
25
26
27
28
3
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 3 of 10 Page ID
#:1790

1

On February 22, 2022, the Court entered an order granting preliminary

2

approval (the "Preliminary Approval Order") to the January 6, 2022 Settlement

3

Agreement and Release ("Settlement Agreement")between Plaintiffs Ken Hashemi,

4

Steve Altes, Sandra Johnson-Foster, Gregory Boute, Rafael Artime, and John

5

Bowden, individually and on behalf ofthe Settlement Class (as defined below), and

6

Defendant Bosley, Inc.'

7

Commencing on April 8, 2022, pursuant to the notice requirements in the

8

Settlement Agreement and the Preliminary Approval Order, CPT Group, Inc.

9 ("CPT") (the "Claims Administrator"), provided Notice to Settlement Class
10

Members in compliance with the Settlement Agreement and the Notice Program,

11

due process, and Rule 23 of the Federal Rules of Civil Procedure. The notice:

12
(a) fully and accurately informed Settlement Class Members about the
13
Litigation and the existence and terms ofthe Settlement Agreement;
14
15

(b)advised Settlement Class Members of their right to request exclusion from

16

the Settlement and provided sufficient information so that Settlement Class

17

Members were able to decide whether to accept the benefits offered, opt out

18

and pursue their own remedies, or object to the proposed settlement;

19
20
21
22
23

(c) provided procedures for Settlement Class Members to file written
objections to the proposed settlement, to appear at the Final Approval
Hearing, and to state objections to the proposed settlement; and
(d) provided the time, date, and place ofthe Final Approval Hearing.

24
25
26

On November 18, 2022, the Court held a Final Approval Hearing to determine
whether the proposed settlement is fair, reasonable, and adequate and

27
28

'
Capitalized terms used in this Final Approval Order shall have the same
meaning as defined in the Settlement Agreement unless otherwise expressly stated.
3
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 4 of 10 Page ID
#:1791

1

judgment should be entered dismissing this Litigation with prejudice. The Court

2

reviewed (a) Plaintiffs' Motion for Final Approval of Class Action Settlement and

Plaintiffs' Motion for an Award off Attorneys' Fees, Reimbursement of Expenses
4 and Service Awards (together, the "Motions") and all supporting materials,
5 including but not limited to the Settlement Agreement and the exhibits thereto;(b)
3

6

any objections filed with or presented to the Court; and (c)the Parties' responses to

7

any objections. The Court also considered the oral argument of counsel and any

8

objectors who appeared. Based on this review and the findings below, the Court

9 finds good cause to grant the Motions.
10

IT IS HEREBY ORDERED:

11

1.

12
13

The Court has jurisdiction over the subject matter of this Litigation, all

claims raised therein, and all Parties thereto, including the Settlement Class.
2.

The Settlement Agreement is fair, reasonable, adequate and in the best

14

interests of Settlement Class Members. The Settlement Agreement was negotiated

15

at arm's-length, in good faith and without collusion, by capable and experienced
counsel, with full knowledge ofthe facts, the law, and the risks inherent in litigating

16

17 the Litigation, and with the active involvement of the Parties. Moreover, the
18 Settlement Agreement confers substantial benefits on the Settlement Class

20

Members, is not contrary to the public interest, and will provide the Parties with
repose from litigation. The Parties faced significant risks, expense, and/or

21

uncertainty from continued litigation of this matter, which further supports the

22

Court's conclusion that the settlement is fair, reasonable, adequate and in the best

23

interests ofthe Settlement Class Members.

19

24

3.

The Court grants final approval of the Settlement Agreement in full,

25

including but not limited to the releases therein and the procedures for distribution

26

offunds to Settlement Class Members,Class Counsel and the Claims Administrator.

27 ~ All Settlement Class Members who have not excluded themselves from the
28 Settlement Class are bound by this Final Approval Order and Judgment.
4
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 5 of 10 Page ID
#:1792

1

4.

The Parties shall carry out their respective obligations under the

2

Settlement Agreement in accordance with its terms. The relief provided for in the

3

Settlement Agreement shall be made available to the various Settlement Class

4

Members submitting valid Claim forms, pursuant to the terms and conditions in the

5

Settlement Agreement. The Settlement Agreement is incorporated herein in its

6

entirety as if fully set forth herein and shall have the same force and effect of an

7

order of this Court.
OBJECTIONS AND REQUESTS FOR EXCLUSION

8
9

5.

Two objections to the Settlement were submitted by Settlement Class

10

Members. These two objections were filed by Jude Milson and Peter Henderson

11

through their counsel, The Wilshire Law Firm, PLC, which have been withdrawn.

12 Doc. No. 72. The Court has considered all objections and finds that they do not
13

warrant or support rejection or non-approval of the Settlement. All objections are

14

hereby overruled in all respects. All persons who did not object to the Settlement in

15

the manner set forth in the Settlement Agreement are deemed to have waived any

16

objections, including but not limited to by appeal, collateral attack, or otherwise.

17

6.

Three persons made valid and timely requests to be excluded from the

18

Settlement and the Settlement Class (the "Opt-Out Members"). The Opt-Out

19

Members are not bound by the Settlement Agreement and this Final Approval Order

20

and Judgment and shall not be entitled to any ofthe benefits afforded to Settlement

21

Class Members under the Settlement Agreement.
CERTIFICATION OF THE SETTLEMENT CLASS

22
23

7.

Solely for purposes of the Settlement Agreement and this Final

24

Approval Order and Judgment, the Court hereby certifies the following Settlement

25

Class:

26

All persons residing in the United States whose PII was potentially

27

compromised in the Data Incident first announced by Bosley on or about

28

s
FINAL APPROVAL ORDER AND JUDGMENT

e 2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 6 of 10 Page ID
#:1793

1

January 26, 2021, including but not limited to the California Settlement

2

Subclass.

3

8.

Solely for purposes of the Settlement Agreement and this Final

4 ', Approval Order and Judgment, the Court hereby certifies the following California
5 Settlement Subclass:
6

All persons whose PII was potentially compromised in the Data Incident first

7

announced by Bosley on or about January 26, 2021, and who were residing in

8

the State of California at the time their PII was potentially compromised in

9

the Data Incident.

10
11

9.

The Court incorporates its preliminary conclusions in the Preliminary

Approval Order regarding the satisfaction of Federal RL~les of Civil Procedl~re 23(al

12 and 23(b). Because the Settlement Class is certified solely for purposes ofsettlement,
13 the Court need not address any issues of manageability for litigation purposes.
14

10.

The Court grants final approval to the appointment of Representative

15 Plaintiffs Ken Hashemi, Steve Altes, Sandra Johnson-Foster, Gregory Boute, Rafael
16 Artime, and John Bowden as the class representatives and concludes that they have
17 fairly and adequately represented the Settlement Class and shall continue to do so.
18
1 1. The Court grants final approval to the appointment as Class Counsel to
19

M. Anderson Berry of Clayeo C. Arnold, A Professional Law Corporation, Jeffrey

20

S. Goldenberg of Goldenberg Schneider, LPA,David K. Lietz of Milberg Coleman

21

Bryson Phillips Grossman, PLLC, and Charles E. Schaffer of Levin Sedran &

22 Berman, LLP. Class Counsel have fairly and adequately represented the Settlement
23 Class and shall continue to do so.
24

NOTICE TO THE CLASS

25

12. The Court finds that the Notice Program, set forth in the Settlement

26

Agreement and effectuated pursuant to the Preliminary Approval Order:(i) was the

27

best notice practicable under the circumstances; (ii) was reasonably calculated to

28

provide, and did provide due and sufficient notice to the Settlement Class regarding
D
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 7 of 10 Page ID
#:1794

1

the existence and nature of the Litigation, certification of the Settlement Class for

2 settlement purposes only, the existence and terms ofthe Settlement Agreement, and
3

the rights of Settlement Class Members to exclude themselves from the Settlement,

4

to object and appear at the Final Approval Hearing, and to receive benefits under the

5

Settlement Agreement; and (iii) satisfied the requirements of the Federal Rules of

6

Civil Procedure, the United States Constitution, and all other applicable law.
ATTORNEYS'FEES AND COSTS,SERVICE AWARDS

7
8

13.

The Court awards Class Counsel a total of $262,500 in combined

9

attorneys' fees and reimbursement for costs. The Court finds this combined amount

10

to be fair and reasonable. Payment shall be made pursuant to the procedures in

1 1 ~ paragraph 7.4 ofthe Settlement Agreement.
12

14.

The Court awards $1,250 to each Representative Plaintiff as service

13 ~ awards. The Court finds these amounts are justified by their service to the Settlement
14

Class. Payment shall be made pursuant to the procedures in paragraph 7.4 of the

15 ~ Settlement Agreement.
16

15.

The Court awards The Wilshire Firm, counsel for the former objectors

17 ~ Jude Milson and Peter Henderson, $15,000 as payment for its time and expenses.
18

This $15,000 shall be paid from the $262,500 amount discussed above in paragraph

19

13 and is made consistent with and pursuant to Rule 23(e)(5)(B).
RELEASE

20
21

16.

Each Settlement Class Member, including Representative Plaintiffs,

22

are:(1)deemed to have completely and unconditionally released,forever discharged

23

and acquitted Defendant and the other Released Persons from all the Released

24

Claims (including Unknown Claims) as defined in the Settlement Agreement; and

25 (2) barred and permanently enjoined from asserting, instituting, or prosecuting,
26

either directly or indirectly, these claims. The full terms of the release described in

27

this paragraph are set forth in Paragraphs 1.24-1.25 and 6.1-6.2 of the Settlement

28

Agreement and are specifically approved and incorporated herein by this reference

FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 8 of 10 Page ID
#:1795

1 ' (the "Release"). In addition, Representative Plaintiffs and Settlement Class
2

Members are deemed to have waived (i) the provisions of California Civil Code ~

3

1542, which provides that a general release does not extend to claims that the creditor

4

or releasing party does not know or suspect to exist in his or her favor at the time of

5

executing the release and that, if known by him or her, would have materially

6

affected his or her settlement with the debtor or released party, and (ii) any law of

7

any state or territory of the United States that is similar, comparable, or equivalent

8

to California Civil Code 8 1542.

9

17.

The Settlement Agreement and this Final Approval Order and

10

Judgment apply to all claims or causes of action settled under the Settlement

11

Agreement and binds Representative Plaintiffs and all Settlement Class Members

12

who did not properly request exclusion. The Settlement Agreement and this Final

13

Approval Order and Judgment shall have maximum res judicata, collateral estoppel,

14

and all other preclusive effect in all causes of action, claims for relief, suits,

15

demands, petitions, or any other challenges or allegations that arise out of or relate

16

to the subject matter ofthe Litigation and/or the Complaint.
OTHER PROVISIONS

17
18

18.

Defendant shall pay all costs ofthe settlement, including all awards and

19

payments to Settlement Class Members, costs of Claims Administration, the

20

Attorneys' Fees and Expenses Award to Class Counsel, and the Representative

21

Plaintiffs' service awards.

22

19.

The Settlement Agreement and this Final Approval Order and

23

Judgment, and all documents, supporting materials, representations, statements and

24

proceedings relating to the settlement, are not, and shall not be construed as, used

25

as, or deemed evidence of, any admission by or against Defendant of liability, fault,

26

wrongdoing, or violation of any law, or of the validity or certifiability for litigation

27

purposes ofthe Settlement Class or any claims that were or could have been asserted

28

in the Litigation.

s
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 9 of 10 Page ID
#:1796

1

20.

The Settlement Agreement and this Final Approval Order and

2

Judgment, and all documents, supporting materials, representations, statements and

3

proceedings relating to the Settlement shall not be offered or received into evidence,

4

and are not admissible into evidence, in any action or proceeding, except that the

5

Settlement Agreement and this Final Approval Order and Judgment may be filed in

6

any action by any Defendant or the Settlement Class Members seeking to enforce

7

the Settlement Agreement or the Final Approval Order and Judgment.

8

21.

Consistent with Paragraphs 9.1-9.4 of the Settlement Agreement, if the

9

Effective Date does not occur for any reason, the following will occur: (a)the Final

10

Approval Order and Judgment and all of its provisions, will be vacated, including,

11

but not limited to the Attorneys' Fees and Expenses Award and the Representative

12 Plaintiffs' Service Awards, and the Final Approval Order and Judgment will not
13

waive, release or otherwise impact the Parties' rights or arguments in any respect;

14

and (b) the Litigation will revert to the status that existed before the Settlement

15 ~ Agreement's execution date, and the Parties shall be restored to their respective
16

positions in the Litigation as if the Settlement Agreement had never been entered

17

into. No term or draft of the Settlement Agreement, or any part of the Parties'

18

settlement discussions, negotiations, or documentation, will have any effect or be

19

admissible in evidence for any purpose in the Litigation.

20

22.

Without affecting the finality of this Final Approval Order and

21

Judgment, the Court will retain jurisdiction over this Litigation and the Parties with

22

respect to the interpretation, implementation, and enforcement of the Settlement

23

Agreement for all purposes.

24
25
26
27

23.

The Court hereby dismisses the Action in its entirety with prejudice,

and without fees or costs except as otherwise provided for herein.
NOW, THEREFORE, the Court hereby enters judgment in this matter
pursuant to Rule 58 ofthe Federal Rules of Civil Procedure.

28
E
FINAL APPROVAL ORDER AND JUDGMENT

2:21-cv-00946-PSG-RAO Document 74-1 Filed 11/18/22 Page 10 of 10 Page
#:1797

1

IT IS SO ORDERED:

2
3
4
5

DATED:

~~l ~(2~
HON.PHILIP S. GUTIERREZ
UNITED STATES DISTRICT COURT
JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

io
FINAL APPROVAL ORDER AND JUDGMENT