Rodman v. Safeway, Inc.

Filing 397

STIPULATION AND ORDER re 392 JOINT STIPULATION WITH PROPOSED ORDER filed by Safeway Inc. Signed by Judge Jon S. Tigar on November 19, 2015. (wsn, COURT STAFF) (Filed on 11/19/2015)

1 Scott D. Baker (SBN 84923)
Email: [e-mail]
2 Jonah D. Mitchell (SBN 203511)
Email: [e-mail]
3
James A. Daire (SBN 23 963 7)
4 Email: [e-mail]
Christine M. Morgan (SBN 169350)
5 Email: [e-mail]
REED SMITH LLP
6 101 Second Street, Suite 1800
San Francisco, CA 94105
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Telephone:
[phone]
8 Facsimile:
[phone]
9 Attorneys for Defendant
SAFEWA Y INC.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL RODMAN, on behalf of himself
and all others similarly situated,
Plaintiff,

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Case No. 3:11-CV-03003-JST (JCS)

JOINT STIPULATION AND
[PROPOSED] ORDER

v.
SAFEWAYINC.,

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Defendant.

The Honorable Jon S. Tigar

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H0049525.

Case No. 3:11-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER

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WHEREAS, on June 17, 2011, plaintiff in the above-captioned action, Michael Rodman,

2 filed a class action complaint against Safeway Inc. ("Safeway") (ECF No. 1); and
WHEREAS, on March 10, 2014, this Court certified the following class, solely for the

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4 purpose of bringing a breach of contract claim:
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All persons in the United States who registered to purchase

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groceries through Safeway.com at any time prior to November 15,

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2011, and made one or more purchases subject to the price markup

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implemented on or about April 12,2010 (the "Class").

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Excluded from the Class are Defendant, as well as all employees of

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the judges assigned to this action in this Court, their spouses and any

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minor children living in their households, and other persons within a

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third degree relationship to any such federal judge; and finally, the

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entire jury venire called for jury service in relation to this lawsuit.

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Also excluded from the Class are any attorneys or other employees

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of any law firms hired, retained and/or appointed by or on behalf of

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the named Plaintiffs to represent the named Plaintiffs and/or any

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proposed Class members or proposed class in this lawsuit.

18 (ECF No. 163); and
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WHEREAS, on February 12, 2015, this Court granted partial summary judgment to

20 plaintiff and the Class and found that "Safeway breached the contract by charging Plaintiff and the
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Class members who registered beginning in 2006 more than the prices permitted under the terms

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of the contract" and that "[t]he Class is entitled to damages even for purchases which occurred

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after the Special Terms were amended on November 15, 2011" (ECF No. 237); and

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WHEREAS, on August 31,2015, this Court granted partial summary judgment to plaintiff

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and the Class and found that Class members who registered with Safeway.com on or after January

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1, 2006, were entitled to damages "in the amount of the aggregate markup," plus prejudgment

27 interest of 10 percent per annum from the time of breach under Cal. Civ. Code Section 3289(b),
28 but denied summary judgment to plaintiff and the Class insofar as plaintiff sought a judgment of
H0049525.

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Case No. 3: 11-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER

1 liability for Class members who registered with safeway.com before January 1, 2006 (ECF No.
2 331); and
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WHEREAS, as reflected in submissions by the parties and orders of this Court (ECF Nos.
371, 373, 374, 376-80, 383), trial ofthis case was continued from October 7, 2015 to December 7,
2015 and additional discovery was permitted;

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WHEREAS, the parties have engaged in formal and informal discovery;

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WHEREAS, the parties now wish to stipulate to the facts and findings set out below;

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NOW, THEREFORE, the parties to the above-captioned action hereby stipulate and agree

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to the following facts and findings:
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with Safeway at the time of registration containing the following language:

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Product Pricing and Service Charges

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The prices quoted on our Web site at the time of your order are

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estimated prices only. You will be charged the prices quoted for

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Products you have selected for purchase at the time your order is

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processed at checkout. The actual order value catmot be determined

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until the day of delivery because the prices quoted on the Web site

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are likely to vary either above or below the prices in the store on the

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date your order is filled and delivered.

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Class members who registered between January 1, 2006 and November 14, 2011.

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3.

In view of the foregoing, the parties request that the Court vacate the December 7, 2015
jury trial, the November 30, 2015 pre-trial conference, and the pre-trial submission

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deadlines set forth in the Court's October 14,2015 Scheduling Order (ECF No. 381).

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Therefore, this Court's prior summary judgment orders (ECF Nos. 237 and 331) are
equally applicable to Class members who registered before January 1, 2006, as they are to

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Customers who registered with safeway.com before January 1, 2006 entered into a contract

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The parties will work together to determine the amount of damages and pre-judgment
interest attributable to the Class members who registered before January 1, 2006 and the

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Case No.3: ll-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER

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Class members who registered between January 1, 2006 and November 14, 2011 for

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submission to the Court to enter in connection with final judgment. Any disputes will be

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submitted to the Court for resolution.

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Safeway contests this Court's prior orders (ECF Nos. 163, 237, 331), and reserves its right

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to appeal from any final judgment in this action to challenge this Court's prior orders or

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any other order made in this action.

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Case No. 3:11-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER

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"

Dated: November 12 2015

Dated: November 12, 2015
REED SMITH LLP

.)

4 By:
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Is/ Jonah D. Mitchell
Scott D. Baker (SBN 84923)
Jonah D. Mitchell (SBN 203511)
James A. Daire (SBN 239637)
Christine M. Morgan (SBN 169350)
101 Second Street, Suite 1800
San Francisco, CA 94105
[phone]
Telephone:
[phone]
Facsimile:

CHIMICLES & TIKELLIS LLP
By:

James C. Shah (SBN 260435)
Rose F. Luzon (SBN 221544)
SHEPHERD, FINKELMAN,
MILLER & SHAH
401 West A Street, Suite 2350
San Diego, CA 921 01
[phone]
Telephone:
[phone]
Facsimile:

Attorneys for Defendant
SAFEWA Y INC.

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Is/ Steven A. Schwartz
Steven A. Schwmiz (pro hac vice)
Timothy N. Mathews (pro hac vice)
361 W. Lancaster Ave.
Haverford, PA 19041
(61 0) 642-8500
Telephone:
Facsimile:
[phone]

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Attorneys for Plaintiff
MICHAEL RODMAN and the Class

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Dated: November 19, 2015

JON S. TIGAR
United States District Judge

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Case No. 3:11-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER

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ATTESTATION OF CONCURRENCE

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I, Jonah D. Mitchell, attest that pursuant to Local Rule 5-1(i)(3), I hereby certify that I have

3 obtained the concurrence in the filing of this document from all the signatories for whom a
4 signature is indicated by a "conformed" signature (Is/) within this e-filed document..
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Dated: November 12, 2015

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REED SMITH LLP

8 By:
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Is/ Jonah D. Mitchell
Scott D. Baker (SBN 84923)
Jonah D. Mitchell (SBN 203511)
James A. Daire (SBN 239637)
Christine M. Morgan (SBN 169350)
101 Second Street, Suite 1800
San Francisco, CA 94105
[phone]
Telephone:
[phone]
Facsimile:

Attomeys for Defendant
SAFEWAY INC.

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Case No. 3: 11-CV-03003-JST (JCS)
JOINT STIPULATION AND [PROPOSED] ORDER