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

Filing 68

ORDER by Judge Jeffrey S. White GRANTING 63 , 66 Joint Motion re Further Proceedings. (jswlc3, COURT STAFF) (Filed on 5/5/2011)

Case3:09-cv-04022-JSW Document67

Filed05/04/11 Page1 of 3

1 STEVEN G. ZIEFF (State Bar No. 84222)
JOHN T. MULLAN (State Bar No. 221149)
2 RUDY, EXELROD, ZIEFF & LOWE, LLP
3 351 California Street, Suite 700
San Francisco, CA 94104
4 Telephone: [phone]
Facsimile: [phone]
5 [e-mail]
[e-mail]
6
Attorneys for Plaintiffs
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

PH [phone] | FX [phone] | www.rezlaw.com

351 CALIFORNIA STREET, SUITE 700

SAN FRANCISCO, CALIFORNIA 94104

RUDY EXELROD ZIEFF & LOWE  LLP

10

SAN FRANCISCO / OAKLAND DIVISION

11
12 EUNICE LEE, and SUSAN MONTEGNA,
individually and on behalf of all others
13 similarly situated,
14
15

Case No. 09-04022 (JSW)
CLASS ACTION

Plaintiffs,
AMENDED [PROPOSED] ORDER
UPON STIPULATION RE FURTHER
PROCEEDINGS

v.

16 ULTA SALON, COSMETICS &
FRAGRANCE, INC.
17

Before: Honorable Jeffrey S. White

18

Defendant.
/

19

Complaint Filed: July 28, 2009

20
21

The Court having considered the Stipulation between the parties for further proceedings in

22 the matter above (the “Joint Application for Order Upon Stipulation re: Further Proceedings”
23 (hereafter “Stipulation”)), and the Joint Response to the Court’s Order re: Joint Application for
24 Order Upon Stipulation Re: Further Proceedings, and finding the parties’ Stipulation to be fair and
25 reasonable, and good cause existing therefore, the Court, pursuant to its continuing jurisdiction in
26 this matter, HEREBY ORDERS:
27

1.

Within ten calendar days of this Order being entered, Settlement Administrator,

28 Simpluris, Inc. shall determine the individual payments to be made to the seven Salon Managers
1
AMENDED [PROPOSED] ORDER UPON STIPULATION RE FURTHER PROCEEDINGS
CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document67

Filed05/04/11 Page2 of 3

1 Omitted from the Settlement Class. Such individual payments shall come from the Addendum
2 Settlement Payment of $84,194, and shall be computed in accordance with the terms of the
3 Settlement Agreement as previously approved by this Court;
4

2.

Within fifteen calendar days of the Court entering this Order, the seven Salon

5 Managers Omitted from the Settlement Class who have been identified by the parties shall be
6 provided with a joint letter from the parties via Settlement Administrator, Simpluris, Inc., notifying
7 them that they can receive a payment in exchange for a release of claims as specified in section III.5
8 in the parties’ Stipulation. A copy of the joint letter is attached hereto as Exhibit A. The letter shall

PH [phone] | FX [phone] | www.rezlaw.com

351 CALIFORNIA STREET, SUITE 700

10 release provided in the Stipulation for their signature and return to Simpluris, Inc. The letter will

SAN FRANCISCO, CALIFORNIA 94104

RUDY EXELROD ZIEFF & LOWE  LLP

9 include the amount of the Salon Manager’s individual settlement payment and shall attach the

11 explain to the recipient that if they wish to recover their share of the Addendum Settlement
12 Payment, they will need to sign and return the enclosed release. The letter will also explain that if
13 they do not wish to participate in the Settlement, then they simply do not return the signed release.
14 Further, if they choose not to return the signed release, the letter will explain that: (1) they will not
15 be part of the settlement; (2) they will not receive a share of the Addendum Settlement Payment;
16 and (3) they will not release any claims and will not be bound by the release;
17

3.

Within fifteen calendar days of the Court entering this Order, Ulta Salon, Cosmetics

18 & Fragrance, Inc. (“Ulta”) shall pay the following amounts to Simpluris, Inc.: (1) the Addendum
19 Settlement Payment of $84,194; (2) $900 for compensation to the Settlement Administrator,
20 Simpluris, Inc., to administer the release mailing and additional payments to the seven Salon
21 Managers Omitted from the Settlement Class; and (3) an amount of $21,000 to compensate
22 Plaintiffs’ Counsel for their additional work in facilitating settlement and payment to the seven
23 Salon Managers Omitted from the Settlement Class. The Settlement Administrator will, in turn,
24 make the individualized settlement payments to the seven Salon Managers Omitted from the
25 Settlement Class upon return of their signed releases. Within five calendar days of receiving the
26 payment from Ulta, Simpluris, Inc. will make the payment to Plaintiffs’ Counsel for attorneys’ fees
27 and will pay itself for settlement administration;
28 ///
2
AMENDED [PROPOSED] ORDER UPON STIPULATION RE FURTHER PROCEEDINGS
CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document67

1

4.

Filed05/04/11 Page3 of 3

Each of the seven Salon Managers Omitted from the Settlement Class who receives

2 a settlement payment as described above, is subject to and bound by the release detailed in the
3 Stipulation.
4

IT IS SO ORDERED.

5
6
7
8

May 5, 2011
Dated: ___________________________
Honorable Jeffrey S. White
United States District Judge

9

PH [phone] | FX [phone] | www.rezlaw.com

351 CALIFORNIA STREET, SUITE 700

SAN FRANCISCO, CALIFORNIA 94104

RUDY EXELROD ZIEFF & LOWE  LLP

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
AMENDED [PROPOSED] ORDER UPON STIPULATION RE FURTHER PROCEEDINGS
CASE NO. 09-04022 (JSW)

Case3:09-cv-04022-JSW Document67-1

EXHIBIT A

Filed05/04/11 Page1 of 4

Case3:09-cv-04022-JSW Document67-1

Filed05/04/11 Page2 of 4

[DATE]

NAME
ADDRESS
Re:

Lee, et al. v. Ulta Salon, Cosmetics & Fragrance, Inc.
Our Case No. 6881.

Dear [NAME]:
You are receiving this Court-approved joint letter because you have been identified as
someone who should have been a “class member” and entitled to receive money under the courtapproved settlement (“Settlement”) in the above-captioned action on behalf of Ulta Salon
Managers for unpaid overtime wages, interest, and penalties. However, it has recently come to
light that because of a clerical error, you were omitted from the list of Class Members in the
above-captioned action. Accordingly, as a result of the inadvertent omission of your name from
the list, you neither received Class Notice of the Settlement Agreement in the above-captioned
action, nor a share of the Settlement Fund. This letter from both parties in the above-captioned
action explains a proposed addendum settlement that, if you choose to participate, will
compensate you for your potential wage claims against Ulta.
Background of Case
Plaintiffs alleged that Ulta wrongly classified its California Salon Managers as “exempt”
from receiving overtime pay and unlawfully failed to pay them overtime wages on that basis.
The Complaint sought payment of unpaid overtime wages plus interest and related damages and
penalties. Ulta denied all of Plaintiffs’ claims and raised various factual and legal defenses to
those claims, and agreed to the initial Settlement without any admission of wrongdoing. The
Court did not make a determination about any of the contentions of the parties.
Even though the parties disagreed, they agreed to settle the case to resolve the class
action claim and a proposed settlement (“Settlement”) of the proposed class action claims in the
above-captioned lawsuit for overtime compensation was reached by the parties in this case.
Ultimately, the Court gave final approval to the Class Settlement of $1,477,000, which after
approved attorneys fees ($350,000, or 23.7% of the $1.477 million common fund) and costs (not
to exceed $15,000), a class representative enhancement ($7,500), penalty payments to the State
of California ($18,750) and costs of settlement administration (not to exceed $20,000), left a Net
Settlement Fund of approximately $1,065,750 to be distributed to the then-identified Class

Case3:09-cv-04022-JSW Document67-1

Filed05/04/11 Page3 of 4

[NAME]
[DATE]
Page 2
Members. All of these amounts have been paid out pursuant to the terms of the settlement
agreement and the Order of this Court finally approving the class action settlement. Each Class
Member received a proportionate share of the net settlement payment based upon their salary and
their weeks worked during the Class Period (that is, from July 28, 2005 to March 27, 2009).
Addendum Settlement
As noted above, it has recently come to light that other individuals, including you, who
occupied the position of “Salon Manager” in California during the Class Period, were
inadvertently omitted through clerical error from the class lists provided by Ulta to Class
Counsel and to the Settlement Administrator. The parties recognize and agree that you, along
with the six other individuals who occupied the position of “Salon Manager” in California during
the Class Period, should be provided an opportunity to receive a settlement payment computed in
a manner that is consistent with the terms of the original Settlement Agreement as previously
approved by this Court. Accordingly, Ulta has agreed to make an additional pro rata payment of
$84,194 to compensate you and the six other individuals who occupied the position of “Salon
Manager” in California during the Class Period, (the “Addendum Settlement Payment”). Should
you choose to participate in this Addendum Settlement, your individual payment shall come
from the Addendum Settlement Payment of $84,194, and shall be computed in accordance with
the formula for calculating Settlement Shares set forth in the original Settlement, and which is
based on the information from Ulta’s records regarding your dates of employment as a Salon
Manager during the Class Period, and your salary while employed in that position.
Your gross individual share of the Addendum Settlement Payment has been computed as
[AMOUNT].
Your Options
If you wish to recover your share of the Addendum Settlement in this action, you must
sign the enclosed Release of Claims and return it to the Settlement Administrator using the
enclosed return envelope. You will receive your Settlement Share in the gross amount
referenced above.
If you do not wish to participate in the Settlement, then do not return the signed Release
of Claims. If you choose not to return the signed Release of Claims: 1) you will not be part of
the settlement; 2) you will not receive a share of the Addendum Settlement Payment; and 3) you
will not release any claims against Ulta and will not be bound by the Release of Claims. Ulta has
agreed that the statute of limitations on the claims at issue in the above-captioned action will be
tolled (that is, will not run) until 30 days after the date of the mailing of this letter. If you choose
not to participate in the Settlement and not to be bound by the Release of Claims, the statute of
limitations on any claims you may have against Ulta for overtime wages, interest, and penalties
arising from your employment as a Salon Manager will start running 30 days from the date of
this letter.
*

*

*

Case3:09-cv-04022-JSW Document67-1

Filed05/04/11 Page4 of 4

[NAME]
[DATE]
Page 3
If you have questions about the Addendum Settlement, including questions pertaining to
the employment dates and/or the average weekly salary used to calculate your share, please
contact Class Counsel.
Class Counsel are:
STEVEN G. ZIEFF
JOHN T. MULLAN
RUDY, EXELROD, ZIEFF & LOWE, LLP
351 California Street, Suite 700
San Francisco, CA 94104
[phone]
[e-mail]
[e-mail]
Please do not Contact Ulta or their Counsel. Do not contact the Court by telephone.
Thank you for your attention to this matter.
Sincerely,
DATED: ________

RUDY, EXELROD, ZIEFF & LOWE, LLP

By:

DATED: _____________

/s/ John T. Mullan
JOHN T. MULLAN
Attorneys for Plaintiffs

LITTLER MENDELSON, P.C.

By:

/s/ John C. Kloosterman
JOHN C. KLOOSTERMAN
Attorneys for Defendant ULTA SALON
COSMETICS & FRAGRANCE, INC.