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)

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1 James C. Shah (SBN 260435) SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 2 401 West A Street, Suite 2350 San Diego, CA 92101 3 Telephone: (619) 235-2416 4 CHIMICLES & TIKELLIS LLP 5 Steven A. Schwartz Timothy N. Mathews 6 361 W. Lancaster Avenue Haverford, PA 19041 7 Telephone: (610) 642-8500 8 Attorneys for Plaintiff and on Behalf of All Others Similarly Situated 9 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: (415) 543-8700 14 Attorneys for Defendant 15 SAFEWAY INC. 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 19 MICHAEL RODMAN, on behalf of himself 20 and all others similarly situated, Case No. 11-03003 JST (JCS) 21 JOINT STIPULATION AND [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS 22 Plaintiff, v. 23 SAFEWAY INC., 24 Defendant. 25 26 27 28 Case No. 11-03003 JST (JCS) -1JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS 1 Plaintiff Michael Rodman on behalf of himself and the certified Class (“Plaintiff”) and 2 Defendant, Safeway Inc. (“Safeway”) stipulate as follows: 3 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); 5 WHEREAS, on March 10, 2014, this Court certified the following class, solely for the 6 purpose of bringing a breach of contract claim: 7 8 9 10 11 12 13 14 All persons in the United States who registered to purchase groceries through 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. 15 (ECF No. 163); 16 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; 19 WHEREAS, the Court entered final judgment on November 30, 2015; 20 WHEREAS, Defendant has filed a notice of appeal (ECF No. 408), and execution of the 21 judgment has been stayed (ECF NO. 416); 22 WHEREAS, Plaintiff’s counsel has received inquiries from Class members concerning the 23 judgment and status of the case; 24 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; 28 Case No. 11-03003 JST (JCS) -2JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS 1 WHEREAS, Plaintiff’s counsel has requested, and Safeway has agreed to produce, certain 2 Class Member identifying information, specified below; 3 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; 9 NOW, THEREFORE, the parties to the above-captioned action hereby stipulate and agree 10 to the following: 11 A. 12 Individual Notice by Direct Electronic Mail: The interim notice, in the form attached hereto as Exhibit A (“Interim Notice”), shall be sent by 13 Safeway via electronic mail to the email addresses associated with each 14 15 Class member in Safeway’s records. The Notice shall be sent within sixty 16 (60) days of the entry of this [Proposed] Order. 17 18 19 20 21 22 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 23 Interim Notice by postcard or letter, if any, shall be sent no later than thirty 24 (30) days after completion of the email notice process set forth above. 25 Plaintiff shall advance the cost of postage and printing associated with such 26 direct postal mail Interim Notice, but shall not be precluded from seeking 27 28 Case No. 11-03003 JST (JCS) -3JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS 1 reimbursement of such costs by Safeway as a taxable cost after resolution of 2 the appeal. Safeway reserves its rights to oppose such reimbursement. 3 C. 4 Website: The Interim Notice shall also be posted on the website, along with the Judgment, 5 the Court’s Orders on Motions for Summary Judgment, the long-form 6 Notice of Pendency of Class Action, the Court’s Class Certification Order, 7 8 Plaintiff’s Amended Complaint, Safeway’s Answer, and, to the extent 9 relevant, future orders of the Court or other documents important to Class 10 members. The updates to the website shall occur within thirty (30) days of 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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) 26 James A. Daire (SBN 239637) 27 Christine M. Morgan (SBN 169350) 101 Second Street, Suite 1800 28 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: (610) 642-8500 Facsimile: (610) 649-3633 Case No. 11-03003 JST (JCS) -4- JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS 5 6 Attorneys for Plaintiff MICHAEL RODMAN and the Class 7 * 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. 8 9 10 11 15 16 19 S n J u d ge J o HON. JON S. TIGAR ER H 18 VED APPRO RT 17 UNIT ED 14 NO 13 S DISTRICT TE C TA RT U O IT IS SO ORDERED. 12 Date: February 18, 2016 R NIA 4 Attorneys for Defendant SAFEWAY INC. S . Ti ga r FO 3 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: (619) 235-2416 Facsimile: (866) 300-7367 LI 2 San Francisco, CA 94105 Telephone: (415) 543-8700 Facsimile: (415) 391-8269 A 1 N F D IS T IC T O R C 20 21 22 23 24 25 26 27 28 Case No. 11-03003 JST (JCS) -5JOINT STIP. & [PROPOSED] ORDER APPROVING INTERIM NOTICE TO CLASS MEMBERS

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