Schiller v. David's Bridal, Inc.

Filing 55

ORDER CONTINUING the hearing on Plaintiff's motion for final approval of class action settlement. The Motion Hearing re Plaintiff's motion for final approval of class action settlement 48 and Plaintiff's motion for a class re presentative enhancement award and for an award of attorneys' fees and costs 49 currently set for 4/11/2012, is CONTINUED to 5/16/2012, at 09:30 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. Order signed by Magistrate Judge Sheila K. Oberto on 4/9/2012. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ESTELLA SCHILLER, individually, and on
behalf of other members of the general
public similarly situated, and as an
aggrieved employee pursuant to the Private
Attorneys General Act,

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Plaintiff,

CASE NO. 1:10-cv-00616-AWI-SKO
ORDER CONTINUING THE
HEARING ON PLAINTIFF'S
MOTION FOR FINAL APPROVAL
OF CLASS ACTION SETTLEMENT

v.

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DAVID'S BRIDAL, INC., a Florida
Corporation; and DOES 1 through 10,
inclusive,

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Defendants.
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/
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I. INTRODUCTION

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On March 9, 2012, Plaintiff filed a Motion for Final Approval of Class Action Settlement.

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(Doc. 48.) Plaintiff also filed a Motion for a Class Representative Enhancement Award and for an

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Award of Attorneys' Fees and Costs. (Doc. 49.) These motions were set to be heard on April 11,

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2012. On March 28, 2012, Defendant David's Bridal, Inc. ("Defendant") filed a statement of non-

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opposition to Plaintiff's Motions. (Doc. 54.)

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For the reasons that follow, the hearing on Plaintiff's motions is CONTINUED to

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Wednesday, May 16, 2012, and Plaintiff is ordered to supplement the Motion for Final Approval of

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Class Action Settlement as discussed below.

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II.

DISCUSSION

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On November 9, 2011, the Court preliminarily approved the parties' class action settlement

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agreement. (Doc. 46.) In doing so, as proposed by the parties, the Court entered the following

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Implementation Schedule:

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Timing

Event

November 30, 2011

Last Day for Defendant to Submit Class
Member Information to Claims Administrator

December 23, 2011

Last Day for Claims Administrator to mail the
Notice and Claim Forms to Class Members

February 21, 2012

Last Day for Class Members to sign and
postmark Claims Forms, Request for
Exclusions, or file and serve objections to the
Settlement

March 9, 2012

Last Day for Plaintiff to file Motion for Final
Approval of Class Action Settlement and
Motion for an Award of Attorneys' Fees and
Costs, and Declaration from Claims
Administrator of Due Diligence and Proof of
Mailing

March 29, 2012

Last Day for Class Members to Object to
Plaintiff's Motion for an Award of Attorneys'
Fees and Costs

April 11, 2012

Final Approval Hearing

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(Doc. 46, ¶ 11.) In the November 9, 2011, order, the Court also explicitly directed the "mailing of

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the Notice of Pendency of Class Action and Proposed Settlement and the Claims Forms by first class

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mail to the Class Members in accordance with the Implementation Schedule." (Doc. 46, ¶ 5.)

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On March 9, 2012, Plaintiff filed a Motion for Final Approval of Class Action Settlement.

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In the brief filed in support of the motion, Plaintiff indicated that "[o]n February 21, 2012, Class

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Notices were mailed to Class members via First-Class U.S. mail." (Doc. 48, 15:23-24.) Plaintiff

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cites to the Declaration of Michael Bui, a case manager for Simpluris, the Claims Administrator.

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(Doc. 52.) In his declaration, Mr. Bui states the following, in relevant part:

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6.
On February 21, 2012, Notice Packets1 were mailed to 3,326 potential Class
Members contained in the Class List via First Class mail.

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7.
Since the mailing of the Class Notices on January 18, 2012, one additional
person was added to the Settlement Class, bringing the total to 3,327. A Notice
Packet was mailed to this member.

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8.
As of March 8, 2012, 699 Notice Packets have been returned by the post
office. For those without forwarding addresses Simpluris attempted to locate a
current mailing address using Accurint, a reputable research tool owned by LexisNexis. Altogether, 621 Notice Packets were re-mailed to either a newfound address,
a forwarding address provided by the U.S. Postal Service, or by request. Ultimately
143 Notice Packets remain undeliverable because Simpluris is unable to find a
current mailing address.

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(Doc. 52, ¶¶ 6-8.)

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Mr. Bui's declaration appears to indicate that the Class Notices were mailed on January 18,

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2012, separate and apart from the Claim Forms. Mr. Bui also appears to indicate that the Notice

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Packets, each of which ostensibly contained both a Class Notice and a Claim Form, were mailed on

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February 21, 2012.

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None of these dates comports with the Implementation Schedule that required that the Class

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Notice and the Claim Form be mailed no later than December 23, 2011. (Doc. 46.) Pursuant to

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the preliminary approval order and the parties' stipulation for settlement, Class Members were to be

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provided 60 days from the mailing of the Class Notices to file a claim, elect to opt out of the

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settlement, or file objections to the settlement. (Doc. 39-1, p. 21, ¶ 18(a) ("Within 45 calendar days

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of preliminary approval of this Settlement, the Claims Administrator will mail the Notice and the

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Claim Form to the Class members. The Class Members will have 60 days in which to postmark

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claim forms or requests for exclusion, or to file and serve objections to the Stipulation of

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Settlement.").)

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If the Class Notices were not mailed until February 21, 2012, it appears that, as of the date

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of this order, the Class Members have had insufficient time to respond to the Class Notice. The

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Court cannot consider the propriety of final approval of the settlement agreement until the Class

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Members have had the requisite amount of time to file objections, opt-out of the class, or file a Claim

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The term "Notice Packet" was defined in Mr. Bui's declaration as a Class Notice and a Claim Form
collectively. The term "Class Notice" was defined as the Notice of Class Action Settlement.

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Form.2 In light of these discrepancies, the Court requires further briefing from Plaintiff regarding

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the timing of Simpluris' mailing of the Class Notices and the Claim Forms and the deadlines that the

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Class Notice provided for Class Members to return Claim Forms, opt-out, or object to the parties'

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settlement.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

CONTINUED to May 16, 2012, at 9:30 a.m. in Courtroom 7;3

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The hearing on Plaintiff's Motion for Final Approval of Class Action Settlement is

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On or before May 2, 2012, Plaintiff shall supplement the Motion for Final Approval

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of Class Action Settlement as follows:

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a.

Plaintiff shall file a statement explaining whether the Class Notices and

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Claim Forms were timely mailed to the potential Class Members pursuant to

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the Implementation Schedule issued by the Court on November 9, 2011;

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b.

If the Class Notices and Claims Forms were not timely mailed pursuant to the

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November 9, 2011, Implementation Schedule, Plaintiff shall file a

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supplemental declaration of the Claims Administrator that sets forth the date

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or dates that the Class Notices and Claim Forms were mailed by the Claims

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Administrator;

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c.

Plaintiff shall provide a supplemental declaration of the Claims Administrator

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that sets forth updated information regarding the response of the Class

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Members to the Class Notice;

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d.

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Plaintiff shall provide the Court copies of the Class Notice and Claim Form
that were mailed to Class Members – i.e., a copy of the Class Notice that

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Even assuming that the Class Notices were mailed on January 18, 2012, and that the 60-day period to serve
objections or requests for exclusion has expired, the Claim Forms apparently were not mailed until February 21, 2012.
As such, the 60-day period to return the Claim Forms has not yet expired.
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The "Notice of Pendency of Class Action Settlement, Proposed Class Action Settlement, and Hearing Date
for Final Court Approval of Settlement" that was approved by the Court to be mailed to the Class Members informed
Class Members that "[t]he [final approval] hearing may be continued without further notice to the Settlement Classes."
(See Doc. 39-1, p. 40.)

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indicates the deadlines for Class Members to file the Claim Form; request

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exclusion from the settlement, or object to the settlement; and

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e.

If Plaintiff contends that the amount of notice provided to the Class Members

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was sufficient, Plaintiff shall explain how any failure to comply with the

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Implementation Schedule is not prejudicial to the Class Members and why

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final approval of the class settlement should nonetheless be granted.

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IT IS SO ORDERED.
Dated:
ie14hj

April 9, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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