Anderson-Butler, et al. v. Charming Charlie, Inc., et al.

Filing 21

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 11/3/15 ORDERING that Plaintiff's Motion for Final Approval of the Class and Class Action Settlement is GRANTED. Plaintiffs' Counsel is entitled to fees and costs in the amoun t of $140,000 and payment shall be made within ten days after the final settlement date and Plaintiffs' counsel provides defendant with its Form W-9, whichever is later; the named Plaintiffs are entitled to incentive payments of $5, 000 each; and this action is dismissed with prejudice; however, without affecting the finality of this Order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the settlement agreement with respect to all parties to this action and their counsel of record. The clerk is instructed to enter judgment accordingly. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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HEIDI ANDERSON-BUTLER and
PAULA HAUG on behalf of
themselves and all others
similarly situated,

CIV. NO. 2:14-01921 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT

Plaintiffs,

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v.
CHARMING CHARLIE INC., a
Delaware Corporation;
CHARMING CHARLIE LLC, a
Delaware Limited Liability
Company; and DOES 1 through
50, inclusive,

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Defendants.

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----oo0oo----

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Plaintiffs brought this putative class action against
Charming Charlie, LLC,1 alleging defendant required plaintiffs to

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Plaintiffs originally named both Charming Charlie, Inc.
and Charming Charlie LLC in error. Charming Charlie, Inc. no
longer exists as a distinct entity because it converted to
Charming Charlie LLC in December 2013. (Def.’s Stmt. at 1
(Docket No. 13).)
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provide personal information when making a credit card purchase

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in violation of California Civil Code section 1747.08.

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before the court is plaintiffs’ motion for final approval of the

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class action settlement.

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I. Factual and Procedural Background

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Presently

Charming Charlie is a retailer selling women’s apparel

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and accessories in stores across the country, including

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California.

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visited Charming Charlie stores located in Chino Hills and

Plaintiffs Heidi Anderson-Butler and Paula Haug

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Folsom, California, respectively.

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items with their credit cards, a clerk told both women they were

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required to provide personal information including their physical

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address, email address, and phone number.

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the information to the clerk.2

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collected information for direct marketing purposes.

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Upon attempting to pay for

Plaintiffs provided

Defendant allegedly used the

Plaintiffs allege defendant violated the Song-Beverly

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Credit Card Act, Cal. Civ. Code § 1747.08, which provides that a

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corporation may not “request, or require as a condition to

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accepting the credit card as payment in full or in part for goods

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or services, the cardholder to provide personal identification

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information, which . . . the corporation . . . causes to be

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written, or otherwise records . . . .”

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lawsuit on behalf of a putative class of consumers in California

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from whom defendant requested personal information during the

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course of credit card transactions.

Plaintiffs brought this

The case settled before the

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Plaintiff Haug refused to provide her physical address
and provided only her telephone number and email address.
(Compl. ¶ 26 (Docket No. 1-2).)
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parties filed any dispositive motions.

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Plaintiffs filed an unopposed motion for preliminary

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approval of class action settlement on June 18, 2015 and the

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court granted preliminary approval on July 29, 2015.

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15.)

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stipulated class-wide settlement pursuant to Federal Rule of

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Civil Procedure 23(e).

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motion for final approval.

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II. Discussion

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(Docket No.

Plaintiffs now seek final approval of the parties’

Defendant does not oppose plaintiffs’

Rule 23(e) provides that “[t]he claims, issues, or

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defenses of a certified class may be settled . . . only with the

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court’s approval.”

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involves a two-step process in which the Court first determines

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whether a proposed class action settlement deserves preliminary

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approval and then, after notice is given to class members,

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whether final approval is warranted.”

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Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004)

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(citing Manual for Complex Litig., Third, § 30.41 (1995)).

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Fed. R. Civ. P. 23(e).

“Approval under 23(e)

Nat’l Rural Telecomms.

The Ninth Circuit has declared a strong judicial policy

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favoring settlement of class actions.

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of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

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where, as here, “the parties reach a settlement agreement prior

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to class certification, courts must peruse the proposed

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compromise to ratify both the propriety of the certification and

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the fairness of the settlement.”

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938, 952 (9th Cir. 2003).

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Class Plaintiffs v. City
Nevertheless,

Staton v. Boeing Co., 327 F.3d

A. Class Certification
A class action will be certified only if it meets the
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four prerequisites identified in Rule 23(a) and additionally fits

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within one of the three subdivisions of Rule 23(b).

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Ontiveros v. Zamora, Civ. No. 2:08-567 WBS DAD, 2014 WL 3057506,

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at *4 (E.D. Cal. July 7, 2014); Fed. R. Civ. P. 23(a)-(b).

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Although a district court has discretion in determining whether

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the moving party has satisfied each Rule 23 requirement, see

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Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v.

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Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must

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conduct a rigorous inquiry before certifying a class, see Gen.

See

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Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); E. Tex.

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Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403–05 (1977).

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1. Rule 23(a) Requirements

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Rule 23(a) restricts class actions to cases where:

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(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.

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Fed. R. Civ. P. 23(a).

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referred to as numerosity, commonality, typicality, and adequacy

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of representation.

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These requirements are more commonly

In its Preliminary Approval Order, the court found that

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the class satisfied the numerosity, commonality, and typicality

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requirements of Rule 23(a).

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however, as to adequacy of representation.

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unaware of any changes that would alter its analysis as to

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numerosity, commonality, or typicality, the court will proceed to

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evaluate adequacy of representation for purposes of final

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certification.

The court expressed some concern,

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Since the court is

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a. Adequacy of Representation
To resolve the question of adequacy, the court must

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make two inquiries: “(1) do the named plaintiffs and their

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counsel have any conflicts of interest with other class members

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and (2) will the named plaintiffs and their counsel prosecute the

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action vigorously on behalf of the class?”

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Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

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involve consideration of a number of factors, including “a

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sharing of interests between representatives and absentees.”

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Hanlon v. Chrysler
These questions

Brown v. Ticor Title Ins., 982 F.2d 386, 390 (9th Cir. 1992).
Although the Ninth Circuit has specifically approved

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the award of “reasonable incentive payments” to named plaintiffs,

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the use of an incentive award nonetheless raises the possibility

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that plaintiffs’ interest in receiving that award will cause

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their interests to diverge from the class’s interest in a fair

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settlement.

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settlement agreement where size of incentive award suggested that

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named plaintiffs were “more concerned with maximizing [their own]

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incentives than with judging the adequacy of the settlement as it

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applies to class members at large”).

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“scrutinize carefully the awards so that they do not undermine

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the adequacy of the class representatives.”

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Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).

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Staton, 327 F.3d at 977–78 (declining to approve a

As a result, the court must

Radcliffe v.

“In general, courts have found that $5,000 incentive

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payments are reasonable.”

Hopson v. Hanesbrands Inc., Civ. No.

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08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal. Apr. 3, 2009)

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(citing In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th

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Cir. 2000); In re SmithKline Beckman Corp., 751 F. Supp. 525, 535
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(E.D. Pa. 1990); Alberto v. GMRI, Inc., 252 F.R.D. 652, 669 (E.D.

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Cal. 2008)).

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The settlement agreement provides for an incentive

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award of $5,000 to each of the named plaintiffs, to be paid

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separate from and in addition to the class recovery of $350,000

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in vouchers.

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questioned whether the incentive awards were proportionate to the

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recovery of the other class members because, at the time of the

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preliminary approval hearing, there was a possibility that all

In its Preliminary Approval Order, the court

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200,000 class members would submit claim forms and each class

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member would therefore receive only a $1.75 voucher.

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notice has now been sent to 200,000 class members and only 13,505

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submitted timely claim forms.

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(“Pls.’ Mot.”) at 9 (Docket No. 18-1); see Settlement Agreement ¶

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3.6.)

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roughly $26.00--significantly more than the $1.75 originally

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contemplated by the court.

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However,

(Pls.’ Mot. for Final Approval

This means that each claimant will receive a voucher for

(Id.)

In addition, plaintiffs provided important

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justification for the incentive awards by explaining that class

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representatives Heidi Anderson-Butler and Paula Haug spent around

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forty hours engaging in investigation efforts, discovery, and

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settlement negotiations for this case.

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Fees at 12 (Docket No. 17-1).)

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Butler and Haug each spent around six hours discussing the matter

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with plaintiffs’ counsel and investigating other Charming Charlie

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stores in the state; three hours working on filing the complaint;

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fifteen hours on the mediation process; five hours on the

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settlement agreement process; and two hours keeping abreast of

(Pls.’s Mot. for Att’y’s

More specifically, Anderson-

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the settlement approval process.

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(Docket No. 17-3); Haug Decl. ¶¶ 2-8 (Docket No. 17-4).)

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also stated that they bore the risk of an adverse judgment,

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risking their own personal assets and credit.

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new information, the court finds that the incentive awards are

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proportional to the overall class recovery.

(Anderson-Butler Decl. ¶¶ 2-8

(Id.)

Both

Given this

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2. Rule 23(b)

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An action that meets all the prerequisites of Rule

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23(a) may be certified as a class action only if it also

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satisfies the requirements of one of the three subdivisions of

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Rule 23(b).

Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th

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Cir. 2013).

Plaintiffs seek certification under Rule 23(b)(3),

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which provides that a class action may be maintained only if (1)

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“the court finds that questions of law or fact common to class

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members predominate over questions affecting only individual

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members” and (2) “that a class action is superior to other

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available methods for fairly and efficiently adjudicating the

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controversy.”

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Fed. R. Civ. P. 23(b)(3).

In its Preliminary Approval Order, the court found that

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both prerequisites were satisfied.

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changes that would affect this conclusion.

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the settlement class satisfied both Rule 23(a) and Rule 23(b)(3),

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the court will grant final certification of the settlement class.

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B. Rule 23(e): Fairness, Adequacy, and Reasonableness of

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The court is unaware of any
Accordingly, since

Proposed Settlement
Having determined class treatment to be warranted, the

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court must now determine whether the terms of the parties’

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settlement appear fair, adequate, and reasonable.
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See Fed. R.

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Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026.

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requires the court to “balance a number of factors,” including:

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the strength of the plaintiff’s case; the risk,
expense, complexity, and likely duration of further
litigation; the risk of maintaining class action status
throughout the trial; the amount offered in settlement;
the extent of discovery completed and the stage of the
proceedings; the experience and views of counsel; the
presence of a governmental participant; and the
reaction of the class members to the proposed
settlement.
Hanlon, 150 F.3d at 1026.

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1. Terms of the Settlement Agreement
(1)

Charming Charlie Store and whose personal identification

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information was requested and recorded by Charming

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Charlie and the Charming Charlie Store for purposes other

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than shipping, delivery, or special orders.

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(2)

The settlement administrator, Dahl

members and emailed notices to 198,784 class members
within thirty days of the court’s granting preliminary

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approval.

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(Kratz Decl. ¶¶ 2, 5-6 (Docket No. 18-3).)

Notices were also mailed to 14,300 (of the 29,955) class

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members whose notice was not successfully delivered via

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Notice:

Administration, LLC, mailed notices to 16,980 class

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(Pls.’ Mot.

at 2.)

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All persons who, between July 9, 2013

engaged in a credit card transaction at a California

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Settlement Class:

and the date of entry of the Preliminary Approval Order,

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This process

email.
(3)

(Id. ¶¶ 6, 7.)

Opt-out Procedure:

To opt out of the settlement, class

members submitted by U.S. mail a letter or postcard
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addressed to the Claims Administrator indicating (a) the

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name and case number of the action; (b) the full name,

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address, and telephone number of the person requesting

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exclusion; and (c) a statement that he/she did not wish

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to participate in the Settlement.

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¶ 3.10.)

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¶¶ 9-10 (Docket No. 18-3).)

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(4)

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(Settlement Agreement

Fifteen class members opted-out.

Objections to Settlement:

(Kratz Decl.

Class members could object to

the fairness, reasonableness, or adequacy of the

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settlement by delivering written objections to

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plaintiffs’ counsel and defendant’s counsel, and filing

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such objection with the court, no later than forty-five

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calendar days after the last day for notice to be

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provided.

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members objected.

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(5)

(Settlement Agreement ¶ 3.9.)

Settlement Amount:

No class

(Kratz Decl. ¶¶ 9-10.)
Defendant agreed to comply with

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section 1747.08 in its California stores, although the

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agreement does not require defendant to notify plaintiffs

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of changes to its policies, practices, and procedures.

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In addition, defendant will pay $350,000 in the form of

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transferable store vouchers to class members valid for

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six months after issuance and redeemable for in-store

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purchases of merchandise at Charming Charlie stores.

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Class members who made claims will receive vouchers for

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about $26.00.

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for a limit of $20.00 per voucher with remainder vouchers

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to be distributed to claimant class members if necessary,

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defendant has agreed to distribute the entirety of the

Although the settlement agreement provided

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voucher fund at once.
(6)

(Pls.’ Mot. at 3.)

Attorney’s Fees, Costs, and Plaintiffs’ Incentive Award:

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Plaintiffs request an award of attorney’s fees and costs

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of $140,000 total to be paid separate and apart from the

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award to the class.

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1.)

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application.

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defendant does not oppose, an incentive award of $5,000

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to each of the named plaintiffs to be paid separate and

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11

(Pls.’ Mot. for Attorney’s Fees at

Defendant does not oppose plaintiffs’ counsel’s
(Id.)

Plaintiffs also request, and

apart from the award to the class.
(7)

(Id. at 2.)

Release: Class members who participate in the settlement

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who have not timely opted out agree to release defendant

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from claims arising out of acts, omissions, or other

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conduct that could have been alleged or otherwise

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referred to in the action, including but not limited to

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any and all violations of California Civil Code Section

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1747.8.

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2. Rule 23(e) Factors

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(Settlement Agreement ¶ 4.4.)

a. Strength of the Plaintiffs’ Case
An important consideration is the strength of the

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plaintiffs’ case on the merits balanced against the amount

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offered in the settlement.

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district court, however, is not required to reach any ultimate

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conclusions on the merits of the dispute, “for it is the very

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uncertainty of outcome in litigation and avoidance of

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wastefulness and expensive litigation that induce consensual

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settlements.”

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City & Cty. of SF, 688 F.2d 615, 625 (9th Cir. 2004).

DIRECTV, 221 F.R.D. at 526.

The

Officers for Justice v. Civil Serv. Comm’n of the

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Plaintiffs allege defendant violated California Civil

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Code section 1747.08 by requesting and recording customers’

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personal identification information as part of its credit card

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transactions.

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significant informal discovery and plaintiffs believe they have

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sufficient evidence to establish their prima facie case.

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8.)

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a sale upon the customer providing personal identification

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information and such information was requested only for the

(Pls.’ Mot. at 5.)

The parties have exchanged

(Id. at

On the other hand, defendant avers that it never conditioned

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purpose of enrolling customers in a loyalty club.

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Statement of Non-Opp’n (“Def.’s Stmt.”) at 7 (Docket No. 19).)

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Defendant argues that requesting personal identification

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information for the purpose of enrolling customers in a loyalty

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program falls within the “special purposes” exception to section

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1747.08.

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was not mentioned at the time they were requested to provide

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identification information.

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terms compare favorably to these uncertainties with respect to

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liability.

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(Id. at 8.)

(Def.’s

Plaintiffs counter that the loyalty club

(Pls.’ Mot. at 6.)

The settlement

Even if plaintiffs prevailed at trial, there is a

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significant possibility that plaintiffs would receive only

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minimal damages.

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a safe harbor for bona fide errors made unintentionally and also

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does not mandate fixed or minimum penalties.

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11.)

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the first violation and up to $1,000 for each subsequent

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violation, it is also possible each member would receive as

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little as a penny.

California Civil Code section 1747.08 provides

(Def.’s Stmt. at 8,

While each class member could recover $250 in damages for

(Id. at 11; Pls.’ Mot. at 7.)
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This is

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especially true given that there is no evidence that any class

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member was financially harmed by defendant’s practice.

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(Id.)

The proposed settlement provides broad injunctive

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relief requiring defendant to comply with section 1747.08 in its

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California stores and provides each claimant with a $26.00

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voucher.

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proposed settlement, the court finds that the proposed settlement

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is a fair resolution of the issues in this case.

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In comparing the strength of plaintiffs’ case with the

b. Risk, Expense, Complexity, and Likely Duration

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of Further Litigation

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Further litigation could greatly delay resolution of

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this case and increase expenses.

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parties will likely litigate class certification, summary

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judgment, and a bench trial.

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that appellate proceedings would almost certainly follow.

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(Def.’s Stmt. at 9.)

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action.

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Prior to any judgment, the

In addition, defendant contends

This weighs in favor of settlement of the

c. Risk of Maintaining Class Action Status

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Throughout Trial

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Defendant argues that plaintiffs would not be able to

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maintain this case as a class action “because the varied

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circumstances surrounding each customer’s transactions present

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individualized factual issues that cannot be jointly tried.”

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(Def.’s Stmt. at 7.)

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certification is not guaranteed, if opposed” and cites to a

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recent class action under section 1747.08 that was decertified at

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trial.

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approval of the settlement.

Plaintiff also acknowledges that “class

(Pls.’ Mot. at 8.)

Accordingly, this factor also favors

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d. Amount Offered in Settlement

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In assessing the amount offered in settlement, “[i]t is

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the complete package taken as a whole, rather than the individual

4

component parts, that must be examined for overall fairness.”

5

Officers for Justice, 688 F.2d at 628.

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that a cash settlement amounting to only a fraction of the

7

potential recovery will not per se render the settlement

8

inadequate or unfair.”

9

“It is well-settled law

Id.

The value of the settlement fund in this case is

10

$350,000.

11

hearing, 13,505 members had opted into the class and, as a

12

result, each claimant will receive a voucher for roughly $26.00.

13

(Id.)

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separate and apart from class compensation and will not detract

15

from the settlement fund.

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The transferable voucher will not require claimants to spend any

17

money in order to realize the benefits of the settlement, as a

18

coupon would.

19

(Pls.’ Mot. ¶ 9.)

As of the time of the fairness

The attorney’s fees and incentive awards will be paid

(Pls.’s Mot. for Att’y’s Fees at 1.)

(Def.’s Stmt. at 10.)

Plaintiffs’ counsel believes that “recovery would most

20

likely be in a similar amount if the action was tried with the

21

facts as known.”

22

provides for a maximum award of $250 for the first violation and

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$1,000 for each subsequent violation, plaintiffs concede that

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defendant did not commit an egregious violation that would

25

warrant the maximum allowable penalty.

26

plaintiffs analogize defendant’s violation to that of a first-

27

time corporate offender that collected minimally-sensitive

28

information and estimate that the case is worth less than

(Pls.’ Mot. at 9.)

13

While section 1747.08

(Id. at 10.)

Instead,

1

$500,000.

2

appears at least comparable to the amount they would recover at

3

trial and is particularly fair and reasonable in light of the

4

risks and costs of further litigation in this case.

5

(Id.)

Class members’ actual recovery, therefore,

e. Extent of Discovery and the State of Proceedings

6

A settlement that occurs in an advanced stage of the

7

proceeding indicates the parties carefully investigated the

8

claims before reaching a resolution.

9

No. 07-1895 WBS DAD, 2008 WL 4891201, at *9 (E.D. Cal. Nov. 12,

Alberto v. GMRI, Inc., Civ.

10

2008.)

11

and both parties exchanged significant informal discovery in

12

preparation for mediation.

13

information, defendant has provided plaintiffs with information

14

relating to the total number of transactions completed in

15

California during the relevant time period, the number of times

16

personal identification information was requested, the

17

utilization and storage of such information, and the production

18

of its policy directives.

19

full day of mediation before the Honorable William C. Pate

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(retired) in San Diego and several communications following the

21

mediation with his assistance.

22

investigation of the claims through informal discovery and

23

mediation and their consideration of the views of a third-party

24

mediator weigh in favor of settlement.

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26

Plaintiffs served formal written discovery on defendant

(Pls.’ Mot. at 8.)

(Id.)

Among other

The parties also engaged in a

(Id. at 2.)

The parties’

f. Experience and Views of Counsel
Plaintiffs’ counsel indicates that he has extensive

27

experience litigating consumer class actions.

28

years, he has brought more than twenty class actions under the
14

In the past ten

1

Song-Beverly Credit Card Act of 1971.

2

experience, counsel believes the proposed settlement is fair and

3

adequate to the class members.

4

considerable weight to class counsel’s opinions regarding the

5

settlement due to counsel’s experience and familiarity with the

6

litigation.

7

supports approval of the settlement agreement.

Based on his

The court gives

Alberto, 2008 WL 4891201, at *10.

8

This factor

g. Presence of Government Participant

9
10

(Id.)

(Id. at 10.)

No governmental entity participated in this matter;
this factor, therefore, is irrelevant to the court’s analysis.

11

h. Reaction of the Class Members to the Proposed

12

Settlement

13

The settlement administrator, Dahl Administration, LLC,

14

mailed notices to approximately 200,000 class members.

15

Decl. ¶¶ 2, 5-7.)

16

and none objected.

17

absence of a large number of objections to a proposed class

18

action settlement raises a strong presumption that the terms of a

19

proposed class settlement action are favorable to the class

20

members.”

21

weighs in favor of the court’s approval of the settlement.

22

(Kratz

Fifteen class members requested to be excluded
(Id. ¶¶ 9-10.)

“It is established that the

DIRECTV, 221 F.R.D. at 529.

Accordingly, this factor

Having considered the foregoing factors, the court

23

finds the settlement is fair, adequate, and reasonable pursuant

24

to Rule 23(e).

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C. Attorney’s Fees

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Federal Rule of Civil Procedure 23(h) provides, “[i]n a

27

certified class action, the court may award reasonable attorney’s

28

fees and nontaxable costs that are authorized by law or by the
15

1

parties’ agreement.”

2

includes an award of attorney’s fees, that fee award must be

3

evaluated in the overall context of the settlement.

4

Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio

5

v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013)

6

(England, J.).

7

ensure that the award, like the settlement itself, is reasonable,

8

even if the parties have already agreed to an amount.”

9

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th

10
11

If a negotiated class action settlement

Knisley v.

The court “ha[s] an independent obligation to

In re

Cir. 2011).
The parties agreed as part of the settlement agreement

12

that defendant would pay attorney’s fees and costs of $140,000,

13

to be paid separate and apart from the recovery of the class.

14

(Pls.’ Mot. for Att’y’s Fees at 2; Settlement Agreement ¶ 2.5.)

15

Of this sum, plaintiffs’ counsel explains that $9,118.43 is for

16

costs and $130,881.57 for attorney’s fees.

17

counsel submitted a declaration in support of his requested fees

18

providing a general breakdown of his hours worked; he did not

19

attach detailed time sheets because the motion is not opposed by

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defendant and plaintiffs’ counsel hoped “to avoid public

21

disclosure of privileged matters and work product.”

22

Decl. in Support of Pls.’ Mot. for Att’y’s Fees (“Lindsay Decl.”)

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¶ 8 (Docket No. 17-2).)

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(Id.)

Plaintiffs’

(Lindsay

The parties negotiated the agreed-upon attorney’s fees

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and costs only after reaching an agreement as to all other

26

material terms of the settlement, including class compensation.

27

(Pls.’ Mot. for Att’y’s Fees at 3; Lindsay Decl. ¶ 7.)

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negotiating the fee award, the parties took into account
16

In

1

plaintiffs’ counsel’s efforts, the results achieved, and the risk

2

of protracted litigation if no agreement on attorney’s fees was

3

reached.

4

(Id. at 3.)
While plaintiffs’ counsel’s substantial hourly rate

5

might not have been accepted by the court under different

6

circumstances, the court finds plaintiffs’ counsel request for

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attorney’s fees and costs in the agreed-upon amount of $140,000

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fair, appropriate, and reasonable given that it was negotiated

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independently from the class settlement, defendant does not

10

oppose, and it did not detract from the amount class members will

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recover.

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D. Incentive Payments to Named Plaintiffs

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For the reasons previously discussed, see supra Part

14

II.A.1.a, the court orders that incentive payments of $5,000 be

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paid to each named plaintiff.

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III. Conclusion

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Based on the foregoing, the court grants final

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certification of the settlement class and approves the settlement

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set forth in the settlement agreement as fair, reasonable, and

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adequate.

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approved, and the definitions provided in the settlement

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agreement shall apply to the terms used herein.

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agreement shall be binding upon all members of the class action

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who did not timely elect to be excluded.

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Consummation of the settlement agreement is therefore

The settlement

IT IS THEREFORE ORDERED that plaintiffs’ motion for

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final approval of the class and class action settlement be, and

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the same hereby is, GRANTED.

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IT IS FURTHER ORDERED THAT:
17

1

(1)

solely for the purpose of this settlement, and pursuant

2

to Federal Rule of Civil Procedure 23, the court hereby

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certifies the following class: All persons who, between

4

July 9, 2013 and the date of entry of the Preliminary

5

Approval Order, engaged in a credit card transaction at a

6

California Charming Charlie Store and whose personal

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identification information was requested and recorded by

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Charming Charlie and the Charming Charlie Store for

9

purposes other than shipping, delivery, or special

10

orders.

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(a)

Specifically, the court finds that:

the settlement class members are so numerous that

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joinder of all settlement class members would be

13

impracticable;

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(b)

there are questions of law and fact common to the

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settlement class which predominate over any

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individual questions;

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(c)

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claims of the named plaintiffs are typical of the
claims of the settlement class;

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(d)

the named plaintiffs and plaintiffs’ counsel have

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fairly and adequately represented and protected the

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interests of the settlement class; and

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(e)

a class action is superior to other available

23

methods for the fair and efficient adjudication of

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the controversy.

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(2)

the court appoints the named plaintiffs, Heidi Anderson-

26

Butler and Paula Haug, as representatives of the class

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and finds that they meet the requirements of Rule 23;

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(3)

the court appoints James M. Lindsay of Lindsay Law
18

1

Corporation, 21 Natoma Street, Suite 160, Folsom,

2

California 95630, as counsel to the settlement class and

3

finds that counsel meets the requirements of Rule 23;

4

(4)

the settlement agreement’s plan for class notice is the

5

best notice practicable under the circumstances and

6

satisfies the requirements of due process and Rule 23.

7

The plan is approved and adopted.

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class complies with Rule 23(c)(2) and Rule 23(e) and is

9

approved and adopted;

10

(5)

The notice to the

the parties have executed the notice plan in the court’s

11

Preliminary Approval Order, in response to which 13,505

12

class members submitted a claim form, fifteen requested

13

to be excluded, and none objected.

14

parties and their counsel took extensive efforts to

15

locate and inform all putative class members of the

16

settlement, and given that no class members have filed

17

any objections to the settlement, the court finds and

18

orders that no additional notice to the class is

19

necessary;

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(6)

Having found that the

as of the date of the entry of this Order, plaintiffs and

21

all class members who have not timely opted out hereby do

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and shall be deemed to have fully, finally, and forever

23

released, settled, compromised, relinquished, and

24

discharged any and all of the released parties (as

25

defined by paragraph 4.4 of the settlement agreement) of

26

and from any and all released claims (as defined in

27

paragraph 4.4 of the settlement agreement).

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released by plaintiffs and class members include, but are
19

The claims

1

not limited to, claims arising from any and all

2

violations of California Civil Code section 1747.8;

3

(7)

the distribution of settlement vouchers shall occur

4

within thirty calendar days following the final

5

settlement date.

6

claims administrator mail the vouchers;

7

(8)

Defendant will itself or through the

plaintiffs’ counsel is entitled to fees and costs in the

8

amount of $140,000 and payment shall be made within ten

9

days after the final settlement date and plaintiffs’

10

counsel provides defendant with its Form W-9, whichever

11

is later;

12

(9)

13

the named plaintiffs are entitled to incentive payments
of $5,000 each; and

14

(10) this action is dismissed with prejudice; however, without

15

affecting the finality of this Order, the court shall

16

retain continuing jurisdiction over the interpretation,

17

implementation, and enforcement of the settlement

18

agreement with respect to all parties to this action and

19

their counsel of record.

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The clerk is instructed to enter judgment accordingly.

21

Dated:

November 3, 2015

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