Golloher et al v. Todd Christopher International, Inc.

Filing 60

ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS, PROVIDING FOR NOTICE AND SCHEDULING ORDER. Motion Hearing set for 3/27/2014 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 10/7/13. (cl, COURT STAFF) (Filed on 10/7/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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11 ANDREA GOLLOHER, MARISA
FREEMAN, ROBERTA CHASE, JAMES
12 HANKS, MICHAEL SHAPIRO, BRENDA
BROWN, GRETCHEN SWENSON,
13 CRYSTAL KENNY, KELLY BOTTARI,
RENEE CONOVER, and SHANISHA
14 SANDERS, on behalf of themselves and all
others similarly situated,
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Plaintiffs,
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vs.
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18 TODD CHRISTOPHER INTERNATIONAL, )
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INC. DBA VOGUE INTERNATIONAL, a
19 Florida Corporation, and DOES 1-100,
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Defendants.
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No. C 12-06002 RS
CLASS ACTION
[PROPOSED] ORDER PRELIMINARILY
APPROVING CLASS ACTION
SETTLEMENT, CONDITIONALLY
CERTIFYING THE SETTLEMENT CLASS,
PROVIDING FOR NOTICE AND
SCHEDULING ORDER
AS MODIFIED BY THE COURT

WHEREAS, the Parties1 in the above-entitled Action have entered into a Stipulation of

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2 Settlement, filed August 22, 2013 (the “Stipulation”), after arms-length settlement discussions
3 conducted in good faith and with the assistance of an experienced mediator, Randall W. Wulff.;
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WHEREAS, the Court has received and considered the Stipulation, including the

5 accompanying exhibits;
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WHEREAS, the Parties have made an application for an order preliminarily approving

7 the settlement of this Action, and for its dismissal with prejudice upon the terms and conditions
8 set forth in the Stipulation; and
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WHEREAS, the Court has reviewed the Parties’ application for such order, and has

10 found good cause for same.
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NOW, THEREFORE, IT IS HEREBY ORDERED:
A.
The Settlement Class Is Conditionally Certified.

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1.

Pursuant to Federal Rule of Civil Procedure 23, and for settlement purposes only,

14 the Court hereby certifies the following Class:
all individuals in the United States who purchased the Challenged Products within the
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Class Period. Specifically excluded from the Class are (a) Defendant, (b) the officers,
directors, or employees of Defendant and their immediate family members, (c) any entity
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in which Defendant has a controlling interest, (d) any affiliate, legal representative, heir,
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or assign of Defendant, (e) all federal court judges who have presided over this Action
and their immediate family members; (f) all persons who submit a valid request for
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exclusion from the Class; and (g) those who purchased the Challenged Products for the
purpose of resale.
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2.

With respect to the Class and for settlement purposes only, the Court

preliminarily finds the prerequisites for a class action under Federal Rules of Civil Procedure
23(a) and (b)(3) have been met, including: (a) numerosity; (b) commonality; (c) typicality; (d)

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All capitalized terms herein shall have the same meanings as set forth in the Stipulation
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

1 adequacy of the class representatives and Class Counsel; (e) predominance of common questions
2 of fact and law among the Class for purposes of settlement; and (f) superiority.
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3.

Plaintiffs in the Action – i.e., Andrea Golloher, Marisa Freeman, Roberta Chase, James Hanks,
Michael Shapiro, Brenda Brown, Gretchen Swenson, Crystal Kenny, Kelly Bottari, Rennee
Conover and Shanisha Sanders – as the class representatives.
4.

Having considered the factors set forth in Federal Rule of Civil Procedure

23(g)(1), the Court hereby appoints Mark N. Todzo and the Lexington Law Group as Class
Counsel.
B.

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Pursuant to Federal Rule of Civil Procedure 23, the Court hereby appoints the

5.

The Stipulation Is Preliminarily Approved and Final Approval
Schedule Set.
The Court hereby preliminarily approves the Stipulation and the terms and

13 conditions of settlement set forth therein, subject to further consideration at the Final Approval
14 Hearing described below.
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6.

The Court has conducted a preliminary assessment of the fairness, reasonableness,

16 and adequacy of the Stipulation, and hereby finds that the settlement falls within the range of
17 reasonableness meriting possible final approval. The Court therefore preliminarily approves the
18 proposed settlement as set forth in the Stipulation. This approval is given in light of the parties’
19 representations at the hearing that the release is not to be interpreted so broadly as to bar any
20 claims that might arise from product labeling or advertising practices not identical or closely
21 related to those in dispute in this action.
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7.

Pursuant to Federal Rule of Civil Procedure 23(e), the Court will hold a Final

23 Approval Hearing on March 27, 2014, at 1:30. p.m., in the Courtroom of the Honorable Richard
24 Seeborg, United States District Court for the Northern District of California, San Francisco
25 Courthouse, Courtroom 3 - 17th Floor, 450 Golden Gate Ave, San Francisco, CA 94102, for the
26 following purposes:
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

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(a)

finally determining whether the Class meets all applicable requirements of

2 Federal Rule of Civil Procedure 23 and, thus, the Class should be certified for purposes of
3 effectuating the settlement;
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(b)

determining whether the proposed settlement of the Action on the terms

5 and conditions provided for in the Stipulation is fair, reasonable and adequate and should be
6 approved by the Court;
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(c)

considering the application of Class Counsel for an award of attorneys’

8 fees and reimbursement of expenses, as provided for under the Stipulation;
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(d)

considering the applications of Plaintiffs for class representative incentive

10 awards, as provided for under the Stipulation;
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(e)

considering whether the Court should enter the [Proposed] Final

12 Settlement Order and Judgment;
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(f)

considering whether the release of the Released Claims as set forth in the

14 Stipulation should be provided; and
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(g)

ruling upon such other matters as the Court may deem just and

16 appropriate.
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8.

The Court may adjourn the Final Approval Hearing and later reconvene such

18 hearing without further notice to Class Members.
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9.

The Parties may further modify the Stipulation prior to the Final Approval

20 Hearing so long as such modifications do not materially change the terms of the settlement
21 provided thereunder. The Court may approve the Stipulation with such modifications as may be
22 agreed to by the Parties, if appropriate, without further notice to Class Members.
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10.

All papers in support of the settlement and any application for an award of

24 attorneys’ fees and expenses and/or class representative incentive awards must be filed with the
25 Court and served at least at least 30 days prior to the deadline for class members to object to the
26 settlement. Plaintiffs shall also post a copy of the motion for fees and costs on the settlement
27 website.
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

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C.

The Court Approves the Form and Method of Class Notice.

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The Court approves, as to form and content, the proposed Publication Notice and

3 Class Notice (collectively the “Notice”), which are Exhibits C and E, respectively, to the
4 Stipulation.
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The Court finds that the distribution of Notice substantially in the manner and

6 form set forth in the Stipulation meets the requirements of Federal Rule of Civil Procedure 23
7 and due process, is the best notice practicable under the circumstances, and shall constitute due
8 and sufficient notice to all persons entitled thereto.
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13.

The Court approves the designation of the Heffler Claims Group to serve as the

10 Court-appointed Claim Administrator for the settlement. The Claim Administrator shall cause
11 the Publication Notice to be published, disseminate Class Notice, and supervise and carry out the
12 notice procedure, the processing of claims, and other administrative functions, and shall respond
13 to Class Member inquiries, as set forth in the Stipulation and this Order under the direction and
14 supervision of the Court.
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The Court directs the Claim Administrator to establish a Settlement Website,

16 making available copies of this Order, the Class Notice, Claim Forms that may be downloaded
17 and submitted online, or by mail, the Stipulation and all Exhibits thereto, a toll-free hotline, and
18 such other information as may be of assistance to Class Members or required under the
19 Stipulation. The Class Notice and Claim Forms shall be made available to Class Members
20 through the Settlement Website. The Settlement Website will become active and available no
21 later than 5 days after the entry of this Preliminary Approval Order. Upon the close of the Claim
22 Submission Period, the Settlement Website will be modified whereby the documents and
23 information listed in paragraph 1 of the Notice Plan attached to the Stipulation of Settlement as
24 Exhibit D will be removed and replaced with (a) a Frequently Asked Questions section, the
25 content of which is to be agreed to by Class Counsel and Vogue’s Counsel and the purpose of
26 which is to update those Class Members who have submitted Claim Forms of the Status of their
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

1 Claims; and (b) information about how to contact the Claim Administrator vial a toll-free
2 telephone number, email and U.S. mail to enable those who have submitted Claim Forms to
3 inquire as to the Status of their Claims. The Settlement Website will be permanently deactivated
4 and made unavailable within 120 days following the Effective Date. Class Notice and Claim
5 Forms may also be made available to Class Members through the websites of Class Counsel at
6 their option through the close of the Claim Submission Period but no longer.
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The Claim Administrator is ordered to begin publication of the Publication Notice

8 on or about 120 days before the Final Approval Hearing and complete publication of the
9 Publication Notice on or about 80 days before the Final Approval Hearing.
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The costs of Notice, processing of claims of Class Members, creating and

11 maintaining the Settlement Website, and all other Claim Administrator and Notice expenses shall
12 be paid from the Claim Fund in accordance with the applicable provisions of the Stipulation.
D.
Procedure for Class Members to Participate in the Settlement.
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The Court approves the Parties’ proposed Claim Form. Any Class Member who

15 wishes to participate in the settlement shall complete a Claim Form in accordance with the
16 instructions contained therein and submit it to the Claim Administrator no later than 10 days
17 prior to the date of the Final Approval Hearing, which date will be specifically identified in the
18 Claim Form. Such deadline may be further extended without notice to the Class by written
19 agreement of the Parties.
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The Claim Administrator shall have the authority to accept or reject claims in

21 accordance with the Stipulation, including the Claims Administration Protocols.
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19.

Any Class Member may enter an appearance in the Action, at his or her own

23 expense, individually or through counsel who is qualified to appear in the jurisdiction. All Class
24 Members who do not enter an appearance will be represented by Class Counsel.
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

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E.

Procedure for Requesting Exclusion from the Class.

20.

All Class Members who do not timely exclude themselves from the Class shall be

3 bound by all determinations and judgments in the Action concerning the settlement, whether
4 favorable or unfavorable to the Class.
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21.

Any person or entity falling within the definition of the Class may, upon his, her

6 or its request, be excluded from the Class. Any such person or entity must submit a request for
7 exclusion to the Clerk of the Court c/o the Class Action Administrator, postmarked or delivered
8 no later than 50 days prior to the date of the Final Approval Hearing, the date for which will be
9 specifically identified in the Publication Notice and Class Notice.

Requests for exclusion

10 purportedly filed on behalf of groups of persons/or entities are prohibited and will be deemed to
11 be void.
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Any Class Member who does not send a signed request for exclusion postmarked

13 or delivered on or before the time period described above will be deemed to be a Class Member
14 for all purposes and will be bound by all judgments and further orders of this Court related to the
15 settlement of this Action and by the terms of the settlement, if finally approved by the Court.
16 The written request for exclusion must request exclusion from the Class, must be signed by the
17 potential Class Member and include a statement indicating that the person or entity is a member
18 of the Class. All persons or entities who submit valid and timely requests for exclusion in the
19 manner set forth in the Stipulation shall have no rights under the Stipulation and shall not be
20 bound by the Stipulation or the Final Judgment and Order.
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A list reflecting all requests for exclusions shall be filed with the Court by the

22 parties at or before the Final Approval Hearing.
F.
Procedure for Objecting to the Settlement
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Any Class Member who desires to object either to the settlement, application for

25 attorneys’ fees and expenses, or class representative incentive awards must timely file with the
26 Clerk of this Court and timely serve on the Parties’ counsel by hand or first-class mail a notice of
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

1 the objection(s) and the grounds for such objections, together with all papers that the Class
2 Member desires to submit to the Court no later than 50 days prior to the date of the Final
3 Approval Hearing, the date for which will be specifically identified in the Publication Notice and
4 Class Notice. The Court will consider such objection(s) and papers only if such papers are
5 timely received by the Clerk of the Court, Class Counsel and Vogue’s Counsel. Such papers
6 must be sent to each of the following persons:
Clerk of the Court,
Mark N. Todzo
7 United States District Court
Lexington Law Group
Northern District of California
503 Divisadero Street
8 450 Golden Gate Avenue
San Francisco, CA 94117
San Francisco, CA 94102
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Kieran G. Doyle
Cowan, Liebowitz & Latman
1133 Avenue of the Americas
New York, NY 10036

All objections must include the name, address, and telephone number of the

11 objecting Class Member, an affirmation that they purchased the Challenged Products during the
12 Class Period, an explanation of the objection, and the submitting party’s signature.

All

13 objections must also include a reference to Golloher v. Todd Christopher International, Inc.,
14 Case No. C 12-06002 RS (N.D. California). Each Class Member submitting an objection must
15 state whether he or she (or his or her attorney) intends to appear at the Final Approval Hearing.
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Attendance at the Final Approval Hearing is not necessary; however, any Class

17 Member wishing to be heard orally with respect to approval of the settlement, the applications
18 for attorneys’ fees and reimbursement of expenses, or the application for class representative
19 incentive awards are required to provide written notice of their intention to appear at the Final
20 Approval Hearing no later than 50 days prior to the date of the Final Approval Hearing, which
21 date will be specifically identified in the Class Notice. Class Members who do not oppose the
22 settlement, the applications for attorneys’ fees and expenses, or class representative incentive
23 awards need not take any action to indicate their approval. A Class Member’s failure to submit a
24 written objection in accordance with the procedure set forth in the Class Notice waives any right
25 the Class Member may have to object to the settlement, attorneys’ fees and expenses, or class
26 representative incentive awards, to appear at the Final Approval Hearing, or to appeal or seek
27 other review of the Final Judgment and Order.
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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT

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2 IT IS SO ORDERED.
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DATED:

10/7/13
THE HONORABLE RICHARD SEEBORG
UNITED STATES DISTRICT COURT
JUDGE

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[PROPOSED] ORDER
PRELIMINARILY
APPROVING CLASS
ACTION SETTLEMENT