Holly Attia et al v. The Neiman Marcus Group, Inc., et al
Filing
93
FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE by Judge David O. Carter, in favor of Elise Kelley, Holly Attia, Isabel Romero, Michelle Girard, Niloofar Eshaghbeigl, Xuan Hien Nguyen against The Neiman Marcus Group LLC for $7,000; in favor of Roshan ak Basti against The Neiman Marcus Group LLC $5,000. Total $1,466,666.67 in attorneys' fees and $80,519.85 in costs. $640,000. PAGA Penalty Payment. Settlement Administrator will receive payment of $30,000.00. SEE DOCUMENT FOR FURTHER INFORMATION. Related to: Order on Motion for Settlement 92 . MD JS-6, Case Terminated. (twdb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HOLLY ATTIA, ROSHANAK
BASTI, NILOOFAR
ESHAGHBEIGL, MICHELLE
GIRARD, ELISE KELLEY, KIM
MARCONI, XUAN HIEN
NGUYEN, ISABEL ROMERO,
DAVID TOLBERT, on behalf of
themselves and all others similarly
situated,
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Plaintiffs,
v.
THE NEIMAN MARCUS GROUP,
INC., a Texas corporation; and DOES
1 through 100, inclusive,
Case No. 8:16-CV-00504 DOC (FFM)
Assigned for all purposes to
The Honorable David O. Carter
FINAL JUDGMENT OF DISMISSAL
WITH PREJUDICE
Date:
Time:
Courtroom:
February 25, 2019
8:30 a.m.
9D
Complaint filed:
December 31, 2015
Defendants.
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CASE NO. 8:16-CV-00504 DOC (FFM)
FINAL JUDGMENT
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On July 23, 2018, the Parties to this action entered into a Joint Stipulation of
Class Action Settlement (the “Agreement”), and on July 24, 2018 they applied to
this Court for preliminary approval of the Agreement and the terms thereof. On
September 6, 2018, the Court granted preliminary approval of the Agreement,
certified pursuant to Rule 23 of the Federal Rules of Civil Procedure for settlement
purposes only the Class and Expense Reimbursement Subclass, approved the form
of the Notice of Class Action Settlement (“Class Notice”) and authorized the
mailing of Class Notices to the Class Members and Expense Reimbursement
Subclass Members. As also required by Rule 23, all Class/Subclass Members were
given an opportunity to object to the settlement and/or opt out of it.
On January 28, 2019, Plaintiffs filed a Motion for Order Granting Final
Approval of Class Action Settlement and Entering Judgment. The Court held a
hearing on that motion on February 25, 2019.
NOW, THEREFORE, IT IS HEREBY ORDERED, upon consideration of
the Agreement, the Parties’ briefs, declarations, and oral arguments in support
thereof, and the proceedings in this action to date, as follows:
1.
The Court has personal jurisdiction over all Class Members and
Defendant, and the Court has subject matter jurisdiction to approve the Joint
Stipulation of Class Action Settlement (the “Agreement”) (including all Exhibits
thereto).
2.
The Agreement, including the definitions applicable to the Settlement,
is incorporated by reference into this Order. All terms used in this Order, unless
otherwise defined, shall have the same meanings given those terms in the
Agreement.
3.
The Court finds that the Agreement was reached after arm’s-length
negotiations between the Parties, including three full-day mediation sessions; the
proposed Agreement was concluded only after counsel for the Parties had
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conducted adequate discovery and investigation; and the Settlement of this action,
as embodied in the terms of the Agreement, is finally approved as fair, reasonable,
adequate, and consistent and in compliance with all applicable requirements of the
Federal Rules of Civil Procedure and any other applicable law, and in the best
interests of the Parties and the Class Members. The Court further finds that all
notice requirements of the Class Action Fairness Act (“CAFA”) have been
satisfied.
4.
For the purpose of settlement, the Court finally certifies the following
“Class” in which the Class Members are defined as:
“All persons currently or formerly employed by The Neiman Marcus
Group LLC (“NMG”) at Defendant's full-line department stores in
California as employees who were compensated in full or in part on a
commission or piece rate basis, at any time during the period from May
1, 2014 through the date of preliminary approval.”
For the purpose of settlement, the Court finally certifies the following
“Subclass” in which the Expense Reimbursement Subclass Members are defined as:
“All persons currently or formerly employed by NMG at Defendant’s
full-line department stores in California as employees who were
compensated in full or in part on a commission or piece rate basis, at
any time during the period from December 31, 2011 through the date
of preliminary approval.”
5.
The above Class and Subclass are certified for settlement purposes and
the certification should not be construed as an admission by Defendant with respect
to any of the allegations made against it by or behalf of the Class/Subclass.
6.
The Court finds that the Class Notice sent to the Class and Subclass
fairly and adequately informed the Class Members and Expense Reimbursement
Subclass Members of the terms of the settlement, was consistent with Federal Rule
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of Civil Procedure 23 and due process, and was given in the manner prescribed by
the Agreement and the Preliminary Approval Order. The Court further finds that
the Class Notice constituted the best notice practicable under the circumstances,
were accomplished in all material respects, and fully met the requirements of Rule
23 of the Federal Rules of Civil Procedure, due process, and the United States
Constitution and any other applicable law.
7.
In the Final Approval Order, the Court found the Settlement is fair,
reasonable and adequate within the meaning of Federal Rule of Civil Procedure
23(e), and all other applicable law.
8.
The terms of the Agreement and this Final Judgment are binding on
Plaintiffs Holly Attia, Roshanak Basti, Niloofar Eshaghbeigi, Michelle Girard,
Elise Kelley, Isabel Romero, and Xuan Hien Nguyen and all other Class/Subclass
Members who did not file timely exclusions, as well as their heirs, executors and
administrators, successors and assigns, and those terms shall have res judicata,
collateral estoppel and all other preclusive effect in all pending and future claims,
lawsuits or other proceedings (governmental, administrative, regulatory or
otherwise), including all forms of alternative dispute resolution, maintained by or
on behalf of any such persons, to the extent those claims, lawsuits or other
proceedings involve matters that have been raised in this Action as provided by the
Agreement. Seven individuals timely excluded themselves from the Class/Subclass,
so all other Class/Subclass Members who did not request exclusion from the
Settlement are bound by the Releases set forth in the Agreement and referenced
herein.
9.
NMG will deposit the Gross Settlement Amount into a Qualified
Settlement Account, from which the Settlement Administrator will issue Individual
Settlement Payments to participating Class Members according to the terms and
timeline stated in the Agreement.
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10.
Class Counsel, James Hawkins APLC, is awarded $1,466,666.67 in
attorneys’ fees and $80,519.85 in costs. Payment shall be made pursuant to the
timeline stated in paragraph 60 of the Agreement.
11.
Plaintiffs Attia, Eshaghbeigi, Girard, Kelley, Romero, and Nguyen are
awarded $7,000 each and Plaintiff Basti is awarded $5,000 as class representative
enhancement payments. Payment shall be made pursuant to the timeline stated in
paragraph 60 the Agreement.
12.
The Court approves the Parties’ allocation set forth in the Agreement
as the PAGA Penalty Payment. Specifically, $640,000 shall be paid from the Gross
Settlement Amount as the PAGA Penalty Payment, of which $480,000 (75%) shall
be paid to the Labor and Workforce Development Agency and $160,000 (25%)
shall be allocated to the Net Settlement Amount for distribution to participating
Class Members.
13.
The Settlement Administrator, CPT Group, Inc., will receive payment
of $30,000 for services rendered and to be rendered in connection with the
completion of its administrative duties pursuant to the Agreement. Payment shall be
made pursuant to the timeline stated in paragraph 60 of the Agreement.
14.
The releases as set forth in paragraphs 27, 28, 69, 70, and 72 of the
Agreement, together with the definitions of Released Parties, paragraph 29 of the
Agreement, are expressly incorporated herein in all respects. The Release is
effective as of the Effective Date as defined in the Agreement, and Plaintiffs and all
Class/Subclass Members who did not timely submit a valid request for exclusion
are: (1) deemed to have released and discharged the Released Parties from any and
all Released Claims and Released Subclass Claims through the Effective Date and
(2) barred and permanently enjoined from prosecuting any and all Released Claims
and Released Subclass Claims against the Released Parties. As set forth in the
Agreement and incorporated herein, “Released Claims” means the claims released
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by each Plaintiff and each Class Member who does not timely opt out of the
Settlement, on behalf of themselves, their heirs, spouses, executors, administrators,
attorneys, agents, and assigns, which are all applicable wage and hour claims,
rights, demands, liabilities, penalties, fines, debts and causes of action of every
nature and description, whether known or unknown, arising from or related to the
claims asserted in the Action or that could have been asserted in the Plaintiffs’
Second Amended Complaint to be filed pursuant to this Settlement based on the
facts and circumstances alleged therein, including claims based on California Labor
Code sections 201, 202, 203, 204, 218.5, 218.6, 221-224, 226, 226.3, 226.7, 510,
512, 558, 1174, 1194, 1197, 2698 et seq., 2802, California Code of Regulations,
Title 8 Section 11000 et seq., the applicable Industrial Welfare Commission (IWC)
Wage Orders, Business & Professions Code section 17200-17208 or any related
damages, penalties, restitution, disgorgement, interest or attorneys’ fees. As set
forth in the Settlement Agreement and incorporated herein, “Released Subclass
Claims” means the claims released by each Plaintiff and each Expense
Reimbursement Subclass Member who does not timely opt out of the Settlement,
on behalf of themselves, their heirs, spouses, executors, administrators, attorneys,
agents, and assigns, which are all applicable wage and hour claims, rights,
demands, liabilities, penalties, fines, debts and causes of action of every nature and
description, whether known or unknown, arising from or related to the claims
asserted in the Action or that could have been asserted in the Plaintiffs’ Second
Amended Complaint to be filed pursuant to this Settlement based on allegations of
failure to reimburse for incurred business expenses, including claims based on
California Labor Code sections 2802, 2698, et seq., Business & Professions Code
section 17200-17208 or any related damages, penalties, restitution, disgorgement,
interest or attorneys’ fees. As set forth in the Settlement Agreement and
incorporated herein, “Released Parties” means Defendant and its former and present
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parents, subsidiaries and affiliated companies and entities and their respective
current, former and future officers, directors, members, managers, employees,
consultants, partners, affiliates, subsidiaries, shareholders, attorneys, insurers, joint
venturers and agents, any successors, assigns, or legal representatives and any
individual or entity who or which could be jointly liable with Defendant and all
persons or entities acting by, through, under, or in concert with any of them.
15.
Additionally, Plaintiffs Attia, Eshaghbeigi, Girard, Kelley, Basti,
Romero, and Nguyen each, on his or her own behalf and on behalf of all successors
in interest, fully and finally release the Released Parties from all claims of every
nature, known or unknown, relating to any act or omission by any of the Released
Parties committed or omitted prior to the execution of the Agreement. The full
terms of the releases described in this paragraph are set forth in paragraphs 39, 71
and 72 of the Agreement and are specifically incorporated herein by this reference.
16.
This Court hereby enters final judgment in this case approving the
Agreement as fair, reasonable, and adequate, and dismisses this case with prejudice,
in accordance with the terms of the Agreement and the Final Approval Order.
17.
Class Members and Expense Reimbursement Subclass Members (as
defined in the Settlement Agreement) received Notice under Rule 23(c)(2) and the
Court finds them to be class members bound by this Final Judgment with the
exception of those seven individuals who opted out.
18.
Without affecting the finality of this Final Judgment in any way, the
Court reserves exclusive and continuing jurisdiction over this action, the Plaintiffs
and all Settlement Class Members and Expense Reimbursement Subclass
Settlement Members, and the Defendant for the purpose of supervising the
implementation, enforcement, construction, and interpretation of the Agreement,
the Preliminary Approval Order, the Final Approval Order, and this Final
Judgment.
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It is so ORDERED this 25th day of February, 2019.
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_______________________________
Hon. David O. Carter
U.S. District Judge
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