Rodman v. Safeway, Inc.

Filing 427

STIPULATION AND ORDER re 423 STIPULATION WITH PROPOSED ORDER -- Joint Stipulation and [Proposed] Order Approving Interim Notice to Class Members filed by Michael Rodman. Signed by Judge Jon S. Tigar on February 18, 2016. (wsn, COURT STAFF) (Filed on 2/18/2016)

1 James C. Shah (SBN 260435)
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
2 401 West A Street, Suite 2350
San Diego, CA 92101
3 Telephone: [phone]
[e-mail]
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CHIMICLES & TIKELLIS LLP
5 Steven A. Schwartz
Timothy N. Mathews
6 361 W. Lancaster Avenue
Haverford, PA 19041
7 Telephone: [phone]
8 Attorneys for Plaintiff and on Behalf
of All Others Similarly Situated
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Scott D. Baker (SBN 84923)
10 Jonah D. Mitchell (SBN 203511)
James A. Daire (SBN 239637)
11 Christine M. Morgan (SBN 169350)
12 REED SMITH LLP
101 Second Street, Suite 1800
13 San Francisco, CA 94105
Telephone:
[phone]
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Attorneys for Defendant
15 SAFEWAY 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
20 and all others similarly situated,

Case No. 11-03003 JST (JCS)

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JOINT STIPULATION AND [PROPOSED]
ORDER APPROVING INTERIM NOTICE
TO CLASS MEMBERS

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Plaintiff,
v.

23 SAFEWAY INC.,
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Defendant.

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Case No. 11-03003 JST (JCS)
-1JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO
CLASS MEMBERS

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Plaintiff Michael Rodman on behalf of himself and the certified Class (“Plaintiff”) and

2 Defendant, Safeway Inc. (“Safeway”) stipulate as follows:
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WHEREAS, on June 17, 2011, plaintiff in the above-captioned action, Michael Rodman,

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

6 purpose of bringing a breach of contract claim:
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All persons in the United States who registered to purchase
groceries through Safeway.com at any time prior to November 15,
2011, and made one or more purchases subject to the price markup
implemented on or about April 12, 2010 (the “Class”). Excluded
from the Class are Defendant, as well as all employees of the judges
assigned to this action in this Court, their spouses and any minor
children living in their households, and other persons within a third
degree relationship to any such federal judge; and finally, the entire
jury venire called for jury service in relation to this lawsuit. Also
excluded from the Class are any attorneys or other employees of any
law firms hired, retained and/or appointed by or on behalf of the
named Plaintiffs to represent the named Plaintiffs and/or any
proposed Class members or proposed class in this lawsuit.

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(ECF No. 163);

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WHEREAS, on May 13, 2014, the Court approved the parties’ proposed form and plan of

17 distribution of the Notice of Pendency of Class Action (ECF No. 169), and such distribution was
18 completed on or about July 21, 2014;
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WHEREAS, the Court entered final judgment on November 30, 2015;

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WHEREAS, Defendant has filed a notice of appeal (ECF No. 408), and execution of the

21 judgment has been stayed (ECF NO. 416);
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WHEREAS, Plaintiff’s counsel has received inquiries from Class members concerning the

23 judgment and status of the case;
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WHEREAS, the Parties have agreed to distribute an interim notice to Class Members in

25 the form attached hereto as Exhibit A, advising Class Members as to the entry of judgment and
26 Safeway’s pending appeal, and further advising Class Members of the means to provide updated
27 address or contact information;
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Case No. 11-03003 JST (JCS)
-2JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO
CLASS MEMBERS

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WHEREAS, Plaintiff’s counsel has requested, and Safeway has agreed to produce, certain

2 Class Member identifying information, specified below;
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WHEREAS, such information shall be marked and treated as “CONFIDENTIAL” under

4 the terms of the Stipulated Protective Order (ECF No. 57), but nothing in this Stipulation shall be
5 construed to prevent: (1) Plaintiff from challenging such designation pursuant to the terms of the
6 Stipulated Protective Order (ECF No. 57) at a later time, or (2) Safeway from up-designating the
7 information at a later time to restrict access to those individuals willing to sign Exhibit B to the
8 Stipulated Protective Order;
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NOW, THEREFORE, the parties to the above-captioned action hereby stipulate and agree

10 to the following:
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A.

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Individual Notice by Direct Electronic Mail: The interim notice, in the
form attached hereto as Exhibit A (“Interim Notice”), shall be sent by

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Safeway via electronic mail to the email addresses associated with each

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Class member in Safeway’s records. The Notice shall be sent within sixty

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(60) days of the entry of this [Proposed] Order.

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B.

Individual Notice by Direct Postal Mail: In the event an emailed Interim
Notice is undeliverable to any of the email addresses associated with Class
members, Safeway shall send the Interim Notice in letter format via U.S.
mail, or alternatively, via postcard (in a form to be agreed upon by the
parties), to the mailing address currently in Safeway’s records. Such

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Interim Notice by postcard or letter, if any, shall be sent no later than thirty

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(30) days after completion of the email notice process set forth above.

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Plaintiff shall advance the cost of postage and printing associated with such

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direct postal mail Interim Notice, but shall not be precluded from seeking

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Case No. 11-03003 JST (JCS)
-3JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO
CLASS MEMBERS

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reimbursement of such costs by Safeway as a taxable cost after resolution of

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the appeal. Safeway reserves its rights to oppose such reimbursement.

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C.

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Website: The Interim Notice shall also be posted on the website
www.SafewayGroceryDeliveryClassAction.com, along with the Judgment,

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the Court’s Orders on Motions for Summary Judgment, the long-form

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Notice of Pendency of Class Action, the Court’s Class Certification Order,

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Plaintiff’s Amended Complaint, Safeway’s Answer, and, to the extent

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relevant, future orders of the Court or other documents important to Class

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members. The updates to the website shall occur within thirty (30) days of

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the entry of this [Proposed] Order.
D.

Class Member Information to Be Provided to Plaintiff’s Counsel
Safeway shall provide to Plaintiff’s counsel a list of all Class Members,
along with such Class members’ customer identification number, card
number, physical address, email, and phone number (if available) and also
the aggregate markup amount charged to each Class Member as reported in
the Query Run as calculated by Safeway’s expert, Mr. Anastasi, in his
rebuttal report (ECF No. 275-6). Such information shall be provided within
sixty (60) days of the entry of this [Proposed] Order.

IT IS SO STIPULATED.
Dated: February 17, 2016

Dated: February 17, 2016
CHIMICLES & TIKELLIS LLP

REED SMITH LLP

25 By: ___/s/ Jonah D. Mitchell_________
Scott D. Baker (SBN 84923)
Jonah D. Mitchell (SBN 203511)
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James A. Daire (SBN 239637)
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Christine M. Morgan (SBN 169350)
101 Second Street, Suite 1800
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By: ___/s/ Timothy N. Mathews_________
Steven A. Schwartz (pro hac vice)
Timothy N. Mathews* (pro hac vice)
361 W. Lancaster Ave.
Haverford, PA 19041
Telephone:
[phone]
Facsimile:
[phone]
Case No. 11-03003 JST (JCS)
-4-

JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO
CLASS MEMBERS

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Attorneys for Plaintiff
MICHAEL RODMAN and the Class

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* Filer’s Attestation: Pursuant to Civil
Local Rule 5-1(i) regarding signatures,
Timothy N. Mathews hereby attests that
concurrence in the filing of this
document has been obtained.

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S

n
J u d ge J o

HON. JON S. TIGAR

ER

H

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VED
APPRO

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UNIT
ED

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NO

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S DISTRICT
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IT IS SO ORDERED.
12 Date: February 18, 2016

R NIA

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Attorneys for Defendant
SAFEWAY INC.

S . Ti ga r

FO

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James C. Shah (SBN 260435)
Rose F. Luzon (SBN 221544)
SHEPHERD, FINKELMAN,
MILLER & SHAH
401 West A Street, Suite 2350
San Diego, CA 92101
Telephone:
[phone]
Facsimile:
[phone]

LI

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San Francisco, CA 94105
Telephone:
[phone]
Facsimile:
[phone]

A

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N

F
D IS T IC T O
R

C

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Case No. 11-03003 JST (JCS)
-5JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO
CLASS MEMBERS