Seebrook v. The Children's Place Retail Stores, Inc.

Filing 73

ORDER by Judge Claudia Wilken GRANTING 65 Motion FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION. (ndr, COURT STAFF) (Filed on 6/19/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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GALINA SEEBROOK, individually and on
behalf of all others similarly situated,

Consolidated Case No. 11-cv-00837-CW

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Plaintiffs,
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v.
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THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation,

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Defendant.

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MARIA ISABEL BELTRAN, an individual,
on behalf herself and of all others similarly
situated,

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Judge:
Location:

Claudia Wilken
Courtroom 2

Case No. 11-cv-01664-CW

Plaintiff,

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[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS SETTLEMENT AND
PROVISIONAL CLASS
CERTIFICATION

v.
THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware Corporation; and
DOES 1 through 50, inclusive,
Defendants.

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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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NICOLLE DiSIMONE, individually, and on
behalf of all others similarly situated,

Case No. 11-cv-02223-CW

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Plaintiff,
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v.
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THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation, and
DOES 1 – 500,

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Defendants.
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KRISTEN HARTMAN, an individual, on
behalf of herself and all others similarly
situated,

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Case No. 11-cv-02604-CW

Plaintiffs,
v.
THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware Corporation, and
DOES 1 through 50, inclusive

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Defendants.

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MARIO ARELLANO, on behalf of a class of
similarly situated individuals, and himself
individually,

Case No. 12-cv-00803-CW

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Plaintiff,
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v.
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THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation, d/b/a
The Children’s Place; and DOES 1 through
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Defendants.

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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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Plaintiffs Galina Seebrook, Maria Isabel Beltran, Nicolle DiSimone, Kristen Hartman, and

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Mario Arellano (“Plaintiffs”) have filed an unopposed motion for preliminary approval of class

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settlement and provisional class certification under Rule 23(e) of the Federal Rules of Civil

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Procedure filed by. This Court reviewed the motion, including the Settlement Agreement and

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Release (“Agreement”), and takes it under submission on the papers. Based on this review and

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the findings below, the Court found good cause to grant the motion.

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FINDINGS:

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1.

Unless otherwise specified, defined terms in this Order have the same definition as

the terms in the Agreement.
2.

The Agreement was the product of serious, informed, non-collusive negotiations,

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has no obvious deficiencies, does not improperly grant preferential treatment to the proposed

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representatives of the Class or segments of the Class, and is within the range of reasonableness;

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3.

The Full Notice, Store Notice, Summary Email Notice, Summary Notice, and

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Claim Form (all attached to the Agreement) comply with due process because the notices and

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form are reasonably calculated to adequately apprise class members of (i) the pending lawsuit,

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(ii) the proposed settlement, and (iii) their rights, including the right to either participate in the

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settlement, exclude themselves from the settlement, or object to the settlement;

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4.

The Class (defined below) is so numerous that joinder of all Class members is

impracticable;

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5.

Plaintiffs’ claims are typical of the Class’ claims;

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6.

There are questions of law and fact common to the Class, which predominate over

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any questions affecting only individual Class members; and
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Class certification is superior to other available methods for the fair and efficient

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adjudication of the controversy.

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IT IS ORDERED THAT:

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8.

Settlement Approval. The Agreement, including the Full Notice, Store Notice,

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Summary Email Notice, Publication Notice, and Claim Form, attached to the Agreement as

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Exhibits B through E are preliminarily approved, provided that the following changes are made:
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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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(a) A statement shall be added to the Summary Email Notice and Publication

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Notice, similar to that which appears in the Full Notice, to inform Class Members that the date or

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time of the Fairness Hearing may be changed without notice to the Class and that any such

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changes will be posted on the Settlement Website.

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9.

Provision of Class Notice. Defendant The Children’s Place Retail Stores, Inc.

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(“Children’s Place” or “Defendant”) will notify class members of the settlement in the manner

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specified under Paragraph 3.3 of the Agreement. Defendant will pay all costs associated with

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claims administration and providing notice to Class Members. No later than seven (7) calendar

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days before the filing date of Plaintiff’s application or motion in support of the Final Approval

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Order and Judgment, Defendant is to provide Plaintiffs with a declaration or declarations

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confirming that the notice has been provided in accordance with Paragraph 3.3 of the Agreement.

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10.

Claims Administrator. The Garden City Group, Inc. is appointed as the Claims

Administrator.
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Claim for Merchandise Certificate. Class Members who do not receive email

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notice as provided in Paragraph 3.3 (c) of the Agreement and want to receive a Merchandise

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Certificate under the Agreement must accurately and completely fill out a Claim Form and submit

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it through the Internet website maintained by the Claims Administrator or by U.S. mail to the

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Claims Administrator no later than one-hundred-five (105) calendar days from the entry of this

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Order or through the date of entry of the Final Approval Order and Judgment. The delivery date

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for the Claim Form is deemed to be the date (a) the form is deposited in the U.S. Mail as

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evidenced by the postmark, in the case of submission by U.S. mail, or (b) in the case of

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submission through the Settlement Website, the date the Claims Administrator receives the Claim

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Form, as evidenced by the transmission receipt. Class Members who receive email notice as

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provided in Paragraph 3.3 (c) of the Agreement are not required to make a claim to receive a

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Merchandise Certificate under the Agreement.

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12.

Request to Opt Out of Marketing Communications. Class Members who are

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sent Summary Email Notice as provided in Paragraph 3.3 (c) of the Agreement and who want to

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cease receiving marketing communications from Defendant must follow the instructions in the
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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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Summary Email Notice to inform Children’s Place that they wish to opt-out of receiving future

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marketing communications. Class Members who are not sent Summary Email Notice as provided

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in Paragraph 3.3 (c) of the Agreement and who want to cease receiving marketing

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communications from Defendant must follow the instructions in the Claim Form to inform

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Children’s Place that they wish to opt-out of receiving future marketing communications.

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13.

Objection to Settlement.

Class Members who have not submitted a timely

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written exclusion request pursuant to Paragraph 15 below and who want to object to the

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Agreement must file a written objection and/or a Notice of Intention to Appear with the Court,

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and serve copies on Class Counsel and Defendant’s Counsel no later than ninety (90) calendar

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days after entry of this Order. The Objection must state: (a) the name of the Action, “Seebrook,

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et al. v. The Children’s Place Retail Stores, Inc., N.D. Cal. Consolidated Case No. 11-CV-00837-

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CW”; (b) the full name, address, and telephone number of the person objecting, (c) a statement

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that the person is a Class Member; (d) the words “Notice of Objection” or “Formal Objection”;

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(e) in clear and concise terms, the legal and factual arguments supporting the objection; and

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(f) whether the person intends to appear to speak at the Fairness Hearing. If the objection is

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presented through an attorney, the written objection must also include: (a) the identity and

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number of Class Members represented by objector’s counsel; (b) the number of such represented

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Class Members who have opted out of the Settlement; and (c) the number of such represented

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Class Members who have remained in the Settlement and have not objected. The objection will

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not be valid if it only objects to the lawsuit’s appropriateness or merits. Class Counsel and/or

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Defendant’s Counsel may also seek an order from the Court requiring objecting Class Members

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make themselves available for deposition by Class Counsel and/or Defendant’s Counsel between

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the time the objection is filed and the date of the Fairness Hearing. The objecting Class Member

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will also be required to provide the date(s) when the objecting Class Member will so present for

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deposition. The deposition cannot be further than one hundred (100) miles from where that

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objecting Class Member resides, is employed, or regularly conducts business in person. Any

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Class Member who files and serves a written objection, as described in this Paragraph, may

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appear at the Fairness Hearing, either in person or through personal counsel hired at the Class
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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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Member’s expense, to object to the fairness, reasonableness, or adequacy of the Settlement

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Agreement or the proposed Settlement, or to the award of Attorneys’ Fees. Class Members, or

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their attorneys, intending to make an appearance at the Fairness Hearing, must deliver to Class

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Counsel and Defendants’ Counsel, and file with the Court, no later than ninety (90) calendar days

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after entry of this Order, a Notice of Intention to Appear. The Notice of Intention to Appear

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must: (a) state how much time the Class Member and/or their attorney anticipates needing to

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present the objection; (b) identify, by name, address, telephone number and detailed summary of

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testimony, all witnesses the Class Member and/or their attorney intends to present any testimony

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from; and (c) identify all exhibits the Class Member and/or their attorney intends to offer in

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support of the objection and attach complete copies of all such exhibits. Class Members who fail

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to make objections in this manner will be deemed to have waived any objections and will be

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foreclosed from making any objections (whether by a subsequent objection, intervention, appeal,

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or any other process) to the Agreement. Only Class Members who file and serve timely Notices

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of Intention to Appear may speak at the Fairness Hearing.

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14.

Failure to Object to Settlement.

Class members who fail to object to the

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Agreement in the manner specified above will: (a) be deemed to have waived their right to object

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to the Agreement; (b) be foreclosed from objecting (whether by a subsequent objection,

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intervention, appeal, or any other process) to the Agreement; and (c) not be entitled to speak at

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the Fairness Hearing.

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15.

Requesting Exclusion.

Class members who want to be excluded from the

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settlement must send a letter or postcard to the Claims Administrator stating: (a) the name and

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case number of the Action, “Seebrook, et al. v. The Children’s Place Retail Stores, Inc., N.D. Cal.

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Consolidated Case No. 11-CV-00837-CW”; (b) the full name, address, and telephone number of

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the person requesting exclusion; and (c) a statement that the person is a Class Member and wishes

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to be excluded from the Class, postmarked no later than ninety (90) calendar days after entry of

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this order. Defendant is to provide the Parties a list of Class members who have timely and

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validly excluded themselves from the Class no later than seven (7) calendar days before the filing

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date for Plaintiffs’ unopposed motion in support of the Final Approval Order and Judgment.
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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

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Provisional Certification. The Class is provisionally certified as a class of all

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persons who between February 17, 2010 and the date of entry of this order purchased

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merchandise from a California The Children’s Place Retail Stores, Inc. store, used a credit card to

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make the purchase(s), and whose personal identification information, including, but not limited

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to, any telephone number or email address, was requested and recorded by Children’s Place.

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Excluded from the Class are The Children’s Place Retail Stores, Inc., its subsidiaries and

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affiliates, and the officers, directors, employees, legal representatives, successors, or assigns of

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any such excluded persons or entities.

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Appointment of Class Representative and Class Counsel.

Plaintiffs are

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conditionally certified as the Class Representatives to implement the Parties’ settlement in

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accordance with the Agreement. Hoffman, Libenson, Saunders & Barba; Patterson Law Group,

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APC; Ridout & Lyon, LLP; Qualls & Workman, LLP; Stonebarger Law, APC; and the Law

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Office of Sunil A. Brahmbhatt, PLC are appointed as Class Counsel. Plaintiffs and Class Counsel

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must fairly and adequately protect the Class’s interests.

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Termination. If the Agreement terminates for any reason, the following will

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occur:

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functioning as a putative class representative as if no class had been certified; and (c) this Action

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will revert to its previous status in all respects as it existed immediately before the Parties

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executed the Agreement. This Order will not waive or otherwise impact the Parties’ rights or

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arguments.

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19.

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(a) Class certification will be automatically vacated; (b) Plaintiffs will revert to

No Admissions. Nothing in this Order is, or may be construed as, an admission or

concession on any point of fact or law by or against any Party.
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Stay of Dates and Deadlines.

All discovery and pretrial proceedings and

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deadlines are stayed and suspended until further notice from the Court, except for such actions as

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are necessary to implement the Agreement and this Order.

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Fairness Hearing. On Thursday, November 7, 2013, at 2:00 p.m., this Court will

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hold a Fairness Hearing to determine whether the Agreement should be finally approved as fair,

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reasonable, and adequate. Class Counsel’s attorneys’ fee application must be filed no later than
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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.

1

twenty-one (21) calendar days before the deadline for Class Members to object to the settlement.

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Defendant must post a copy of the Class Counsel’s attorneys’ fee application on the Settlement

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Website within two (2) calendar days of being filed with the Court. All papers supporting Final

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Approval of the Agreement must be filed no later than twenty-one (21) calendar days before the

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Fairness Hearing. This Court may order the Fairness Hearing to be postponed, adjourned, or

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continued. If that occurs, Defendant will be required to provide notice of the new date of the

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Fairness Hearing on the Settlement Website within one (1) calendar day.

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DATED:

June 19, 2013
UNITED STATES DISTRICT COURT JUDGE

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[PROPOSED] ORDER GRANTING
PRELIM. APPROVAL OF CLASS
SETTLEMENT & PROV. CLASS CERT.