Lee v. Ulta Salon, Cosmetics & Fragrance, Inc.

Filing 60

ORDER by Judge Jeffrey S. White GRANTING 47 Motion for Final Approval of Class Action Settlement and JUDGMENT. (jswlc3, COURT STAFF) (Filed on 12/17/2010)

Lee v. Ulta Salon, Cosmetics & Fragrance, Inc.

Doc. 60

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page1 of 52

1 STEVEN G. ZIEFF (State Bar No. 84222) KENNETH J. SUGARMAN (State Bar No. 195059) 2 JOHN T. MULLAN (State Bar No. 221149) 3 RUDY, EXELROD, ZIEFF & LOWE, LLP 351 California Street, Suite 700 4 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] 6 [e-mail] 7 [e-mail] 8 Attorneys for Plaintiffs 9 10 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO / OAKLAND DIVISION Case No. 09-04022 (JSW) CLASS ACTION [PROPOSED] ORDER: (1) FINALLY APPROVING CLASS ACTION SETTLEMENT AND PLAN OF DISTRIBUTION; (2) ENTERING FINAL JUDGMENT; (3) APPROVING SERVICE PAYMENT TO NAMED PLAINTIFFS; (4) APPROVING THE PAYMENT OF REASONABLE COSTS OF ADMINISTRATION; AND (5) RESERVING JURISDICTION. AND JUDGMENT Date: December 17, 2010 Time: 9 A.M. Courtroom: 11 Before: Honorable Jeffrey S. White / Complaint Filed: July 28, 2009

13 EUNICE LEE, and SUSAN MONTEGNA, individually and on behalf of all others 14 similarly situated, 15 16 v. Plaintiffs,

17 ULTA SALON, COSMETICS & FRAGRANCE, INC. 18 19 20 21 22 23 24 25 26 27 28 Defendant.

[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW) Dockets.Justia.com

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page2 of 52

1

This matter came on for hearing on December 17, 2010, upon Plaintiffs' Motion for final

2 approval of the proposed settlement of this action on the terms set forth in the Joint Stipulation of 3 Settlement and Release (the "Agreement") and Amendment to the Joint Stipulation of Settlement 4 and Release attached hereto as Exhibits 1 & 2. Due and adequate notice having been given to the 5 members of the settlement Class, and the Court having considered the Agreement, all papers and 6 proceedings held herein, and all oral and written comments received regarding the proposed 7 Settlement, and having reviewed the entire record in this action ("the Action"), and good cause 8 appearing, finds that: 9 RUDY EXELROD ZIEFF & LOWE LLP WHEREAS, Plaintiff has alleged claims against Defendant Ulta Salon, Cosmetics &

10 Fragrance, Inc. ("Ulta") on behalf of herself and all individuals who worked for Ulta and who held
PH [phone] | FX [phone] | www.rezlaw.com

11 the title Salon Manager in California at any time from July 28, 2005 to March 27, 2009; 12 WHEREAS, Plaintiff asserts claims for 1) Violations of California Overtime Wage

SAN FRANCISCO, CALIFORNIA 94104

351 CALIFORNIA STREET, SUITE 700

13 Provisions; (2) California Waiting Period Penalties; (3) Violations of California Record-Keeping 14 Provisions; (4) Violations of California Meal and Rest Period Provisions; (5) Violations of the 15 California Unfair Competition Law; and (7) Labor Code Private Attorneys General Act penalties; 16 WHEREAS, Ulta expressly denies the allegations of wrongdoing and violations of law

17 alleged in this Action; claims that it always properly classified and compensated its employees; and 18 further denies any liability whatsoever to Plaintiffs or to the Class Members; 19 WHEREAS, without admitting any liability, claim or defense the Parties determined that it

20 was mutually advantageous to settle this Action and avoid the costs, delay, uncertainty and business 21 disruption of ongoing litigation; 22 WHEREAS, this Court granted preliminary approval of the parties' Agreement in this

23 Action on August 27, 2010 ("Preliminary Approval Order"); 24 WHEREAS, this Court previously dismissed without prejudice Plaintiffs' class allegations

25 on behalf of Ulta General Managers, and dismissed with prejudice former Named Plaintiff, Eunice 26 Lee's individual claims; 27 WHEREAS, notice to the Class members was sent in accordance with the Preliminary

28 Approval Order; and 1
[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page3 of 52

1

WHEREAS, a fairness hearing on the proposed Settlement having been duly held and a

2 decision reached; 3 4 5 NOW, therefore, the Court grants final approval of the Settlement, and IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. To the extent defined in the Stipulation of Settlement and Release (the

6 "Agreement"), attached hereto as Exhibit 1 and incorporated herein by reference, the terms in this 7 Order shall have the meanings set forth therein. In addition, a copy of the fully-executed 8 Amendment to the Settlement is attached hereto as Exhibit 2. 9 RUDY EXELROD ZIEFF & LOWE LLP 2. The Court has jurisdiction over the subject matter of this action, the Defendant Ulta,

10 and the Class.
PH [phone] | FX [phone] | www.rezlaw.com

11

3.

The Court has determined that the notice given to the Class fully and accurately

SAN FRANCISCO, CALIFORNIA 94104

351 CALIFORNIA STREET, SUITE 700

12 informed all persons in the Class of all material elements of the proposed Settlement --- including 13 the plan of distribution of the Settlement Payment, the application for service award to the Named 14 Plaintiff and the application for an attorneys' fees award to Class Counsel ---, constituted the best 15 notice practicable under the circumstances, constituted valid, due and sufficient notice to all Class 16 members, and complied fully with Rule 23 of the Federal Rules of Civil Procedure, the United 17 States Constitution, and any other applicable laws. 18 4. The Court hereby grants final approval of the Settlement and Agreement as fair,

19 reasonable and adequate in all respects to the Class members pursuant to Rule 23 of the Federal 20 Rules of Civil Procedure, and orders the parties to consummate the Settlement in accordance with 21 the terms of the Agreement. 22 5. The plan of distribution as set forth in the Agreement providing for the distribution

23 of the Net Settlement Fund to Class members is approved as being fair, reasonable, and adequate 24 pursuant to Rule 23 of the Federal Rules of Civil Procedure. 25 6. As previously held in the Court's Order Granting Preliminary Approval, this

26 Plaintiffs' class allegations on behalf of Ulta General Managers are dismissed without prejudice, 27 and former Named Plaintiff, Eunice Lee's individual claims are dismissed with prejudice to be 28 2
[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page4 of 52

1 arbitrated pursuant to the terms of the separate stipulation providing for the binding arbitration of 2 Eunice Lee's individual claims. 3 7. As previously held in the Court's Order Granting Preliminary Approval, the

4 Settlement Class for settlement purposes is appropriate under Fed. R. Civ. P. 23 and related case 5 law and is defined as follows: 6 7 8 9 RUDY EXELROD ZIEFF & LOWE LLP Settlement Class: All California employees of Ulta Salons, Cosmetics & Fragrance, Inc. or its predecessors who were assigned to Ulta Salons, Cosmetics & Fragrance, Inc. stores and who held the position of "Salon Manager" during the period from July 28, 2005 to March 27, 2009; the date when Defendant reclassified its Salon Managers as non-exempt employees ("Class Period"). 8. The Settlement Class, consisting of approximately 56 Class Members, is sufficiently

10 numerous that joinder is not practicable.
PH [phone] | FX [phone] | www.rezlaw.com

11

9.

The proposed class members' claims all stem from the same source ­ their

SAN FRANCISCO, CALIFORNIA 94104

351 CALIFORNIA STREET, SUITE 700

12 employment as Salon Managers, their classification as exempt employees, and their non-receipt of 13 overtime wages for their overtime hours worked ­ and there are questions of law and fact common 14 to the members of the Settlement Class. The questions of law and fact common to the members of 15 the Settlement Class include: 16 17 18 19 20 21 22 · · · Whether Ulta's policy and practice of classifying the Settlement Class Members as exempt from overtime entitlement and failing to pay overtime to the Settlement Class Members violates applicable California law, including applicable statutory and regulatory authority; and Whether Ulta unlawfully failed to pay compensation to Settlement Class members for missed meal and rest periods in violation of the UCL and applicable California wage and hour laws; and Whether Ulta unlawfully failed to keep and furnish Settlement Class members with records of hours worked, in violation of applicable law.

23 As the Plaintiffs need only establish one common question of law or fact in order to meet the low 24 threshold set by Rule 23(a)(2), as previously held in the Court's Order granting Preliminary 25 Approval, Plaintiffs' above showing of common issues satisfies what is required. 26 10. The named Plaintiff's claims are typical of those of the Class that she seeks to

27 represent. Plaintiff Susan Montegna's claims are typical of those of the Settlement Class because 28 3
[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page5 of 52

1 they all arise out of Ulta's former uniform policy of classifying Salon Managers as exempt, and of 2 refusing to pay Salon Managers overtime compensation for overtime hours worked. 3 11. The proposed Class Representative has fairly and adequately protected the interests

4 of the Settlement Class. She has retained counsel who have the experience and resources necessary 5 to provide adequate representation of the Classes and meet the requirements of Rule 23(g)(1). 6 12. As previously held in the Court's Order Granting Preliminary Approval, the Court

7 appoints as Class Counsel, the law firm of Rudy, Exelrod, Zieff & Lowe, LLP. 8 13. The Court approves the payment of reasonable settlement administration costs to the

9 Settlement Administrator, Simpluris, Inc., in an amount up to $20,000. 10 RUDY EXELROD ZIEFF & LOWE LLP
PH [phone] | FX [phone] | www.rezlaw.com

14.

The Court approves an award to Named Plaintiff Susan Montegna, on account of her

11 service to the Class, in the amount of $7,500, which shall be paid from, and not in addition to, the 12 Settlement Payment. 13 15. The Court hereby approves the payment of $18,750 from, and not in addition to, the

SAN FRANCISCO, CALIFORNIA 94104

351 CALIFORNIA STREET, SUITE 700

14 Settlement Payment to the California Labor and Workforce Development Agency ("LWDA") as its 15 share of the $25,000 of the Total Settlement Payment which is for settlement of PAGA claims. 16 16. Except with regard to the class allegations on behalf of Ulta General Managers

17 which are dismissed without prejudice (see supra ¶ 6), the Court hereby dismisses this Action with 18 prejudice, with each party to bear his, her or its own costs and attorneys' fees, except as provided in 19 the Agreement and as set forth above in this Order and as set forth in any Order issued in response 20 to the application by Class Counsel for an award of attorneys' fees, costs, and expenses, which 21 hearings shall take place concurrently with the hearing for this Order. Without affecting the finality 22 of this Final Judgment and Order, the Court reserves exclusive and continuing jurisdiction over the 23 Action, the Named Plaintiff Susan Montegna, the Settlement Class, and the Defendant Ulta for the 24 purposes of (a) supervising the implementation, enforcement, construction, and interpretation of the 25 Agreement, the Preliminary Approval Order, the distribution of the Settlement Payment, the Final 26 Judgment, and this Order; and (b) hearing and determining the application by Class Counsel for an 27 award of attorneys' fees, costs, and expenses, which hearings shall take place concurrently with the 28 hearing for this Order. 4
[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page6 of 52

1

17.

Upon entry of this Final Judgment and Order, and by operation of this Final

2 Judgment and Order, the claims of each Settlement Class member against Ulta, and against any and 3 all of the Releasees as defined in the Agreement, are fully, finally, and forever released, 4 relinquished and discharged pursuant to the terms of the Agreement. 5 18. By operation of this Final Judgment and Order, all members of the Settlement Class

6 are hereby forever barred and enjoined from prosecuting the released claims against any of the 7 Releasees as defined in the Agreement. 8 19. Each member of the Settlement Class is bound by this Final Judgment and Order,

9 including, without limitation, the release of claims as set forth in the Agreement. 10 RUDY EXELROD ZIEFF & LOWE LLP
PH [phone] | FX [phone] | www.rezlaw.com

20.

This Final Judgment and Order and the Agreement, and all papers related thereto,

11 are not, and shall not be construed to be, an admission by Ulta of any liability, claim or wrongdoing 12 whatsoever, and shall not be offered as evidence of any such liability, claim or wrongdoing in this 13 Action or in any other proceeding. 14 21. In the event that the Settlement does not become effective in accordance with the

SAN FRANCISCO, CALIFORNIA 94104

351 CALIFORNIA STREET, SUITE 700

15 terms of the Agreement, then this Final Judgment and Order shall be rendered null and void to the 16 extent provided by and in accordance with the Agreement and shall be vacated, and in such event, 17 all orders entered and releases delivered in connection herewith shall be null and void to the extent 18 provided by and in accordance with the Agreement, and each party shall retain his, her or its rights 19 to move for or oppose certification of the Class. 20 22. The Court finds that there is no just reason for delay of entry of this Final Judgment

21 and hereby directs its entry. 22 23 December 17, 2010 24 Dated: _____________________ 25 26 27 28 5
[P]ROPOSED ORDER GRANTING FINAL APPROVAL CASE NO. 09-04022 (JSW)

IT IS SO ORDERED, ADJUDGED AND DECREED.

_____________________________________ Honorable Jeffrey S. White United States District Judge

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page7 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page8 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page9 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page10 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page11 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page12 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page13 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page14 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page15 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page16 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page17 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page18 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page19 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page20 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page21 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page22 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page23 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page24 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page25 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page26 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page27 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page28 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page29 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page30 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page31 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page32 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page33 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page34 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page35 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page36 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page37 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page38 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page39 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page40 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page41 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page42 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page43 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page44 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page45 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page46 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page47 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page48 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page49 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page50 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page51 of 52

Case3:09-cv-04022-JSW Document48

Filed11/11/10 Page52 of 52