Gallardo et al v. AT&T Mobility LLC
Filing
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ORDER by Judge Claudia Wilken Granting #53 PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. (ndr, COURT STAFF) (Filed on 4/29/2014)
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DAVID A. ROSENFELD, Bar No. 058163
ROBERTA D. PERKINS, Bar No. 153074
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
Telephone (510) 337-1001
Fax (510) 337-1023
E-Mail: drosenfeld@unioncounsel.net
rperkins@unioncounsel.net
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LOCKER FOLBERG LLP
Miles E. Locker, Bar No. 103510
235 Montgomery Street, Suite 835
San Francisco, CA 94104
Telephone: 415.962.1626
Fax: 415.962.1628
E-Mail:
mlocker@lockerfolberg.com
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GEORGE GALLARDO, et al, individually and
on behalf of all others similarly situated,
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[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
Plaintiffs,
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No. 4:11-cv-04749 CW
v.
AT&T MOBILITY, LLC, a limited liability
corporation; and DOES 1 through 50, inclusive,
Defendant.
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Plaintiffs’ amended motion for conditional certification of a settlement class, an order
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preliminarily approving a class action settlement, an order directing distribution of class notice,
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and a request to set a final approval hearing, Dkt. # 53, (the “Motion”) came on regularly for
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hearing on March 20, 2014. Roberta Perkins, Weinberg, Roger & Rosenfeld, appeared on behalf
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of the Plaintiffs. Michael D. Mandel, McGuireWoods LLP, appeared on behalf of Defendant
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AT&T Mobility, LLC. The motion was argued and taken under submission. The parties
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thereafter submitted a Joint Supplemental Brief (Dkt. # 60) and a Stipulation to Amend the Joint
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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Stipulation for Class Action Settlement and Release of Claims (Dkt. # 60-1), with a revised form
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of the proposed notice to the class attached as Exhibit A thereto. Upon consideration of the
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moving papers, review of the Joint Stipulation for Class Action Settlement and Release of Claims
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and all exhibits thereto, the Stipulation to Amend the Joint Stipulation for Class Action
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Settlement and Release of Claims and all exhibits thereto (Dkt. # 60-1), the arguments and
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representations by the parties, and good cause appearing, the Court now GRANTS the Motion.
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The Court hereby makes the following findings and orders:
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1.
This Order incorporates by reference the definitions in the Joint Stipulation for
Class Action Settlement and Release of Claims, attached as Exhibit 1 to the Motion (the “Joint
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Settlement Stipulation”), and all terms defined therein shall have the same meaning in this Order
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as set forth in the Joint Settlement Stipulation, as amended by the Stipulation to Amend the Joint
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Stipulation for Class Action Settlement and Release of Claims.
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2.
The Court finds that the terms of the settlement, as set forth in the Joint Settlement
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Stipulation, as amended by the Stipulation to Amend the Joint Stipulation for Class Action
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Settlement and Release of Claims, incorporated herein by this reference and made a part of this
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Order, have no obvious deficiencies, are within the range of possible approval at the final
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approval hearing, and are the result of arm’s-length negotiations between the parties. It appears
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to the Court, on a preliminary basis, that the settlement is fair and reasonable to the members of
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the Class when balanced against the risks of further litigation relating to liability and damages
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issues and potential appeals of rulings. The settlement appears to be presumptively valid, subject
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to any objections that may be raised at the final approval hearing before this Court. Thus, the
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settlement, as set forth in the Joint Settlement Stipulation, as amended by the Stipulation to
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Amend the Joint Stipulation for Class Action Settlement and Release of Claims, is granted
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preliminary approval.
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3.
The Court hereby conditionally certifies the proposed class for settlement purposes
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only. The Court finds there are a sufficient number of current and former employees working in
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the position of Retail Sales Consultant or Sales Support Representative for this matter to proceed
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as a class action. The seating policy in effect in AT&T retail locations raises common questions
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
2
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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of law and fact applicable to all class members. These common questions predominate over any
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questions that may affect only individual class members. In light of the potential size of the
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settlement class, class treatment is a superior method for handling this action. The Court finds
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that the claims of the Class Representatives are typical of the class, that the Class Representatives
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are adequate and that Class Counsel are qualified to represent the settlement class. Should the
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settlement reflected in the Joint Settlement Stipulation, as amended by the Stipulation to Amend
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the Joint Stipulation for Class Action Settlement and Release of Claims, not become final for any
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reason, the fact that the Parties were willing to stipulate to class certification as part of the
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settlement shall have no bearing on, nor be admissible in connection with, the issue of whether of
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a class should be certified in a non-settlement context.
4.
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All individuals who worked for AT&T Mobility LLC in the
positions of Retail Sales Consultant or Sales Support
Representative in California at any time from July 7, 2010 through
January 13, 2014.
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The Settlement Class shall consist of:
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Plaintiffs George Gallardo, Carlos Barrigan, Kyle Binns, Carlos Cruz, Jennifer
DeWitt, Hector Rodriguez, and Denise Roman are approved as class representatives.
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David Rosenfeld, Weinberg, Roger & Rosenfeld, and Miles Locker, Locker
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Folberg, are hereby appointed as Class Counsel. Class Counsel is authorized to act on behalf of
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the Settlement Class with respect to all acts or consents required by or which may be given
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pursuant to the settlement contemplated by the Joint Settlement Stipulation, as amended by the
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Stipulation to Amend the Joint Stipulation for Class Action Settlement and Release of Claims,
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and such other acts reasonably necessary to consummate the settlement.
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7.
Gilardi & Co. LLC is hereby appointed as the Settlement Administrator.
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8.
The Notice of Class Settlement attached as Exhibit A to the Stipulation to Amend
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the Joint Stipulation for Class Action Settlement and Release of Claims meets the requirements of
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Fed. R. Civ. P. 23(c)(2)(B) and provides sufficient notice of the terms of the settlement to
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members of the Class. The Notice of Class Settlement comports with all Constitutional
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requirements, including those of due process, and the proposed Notice of Class Settlement is
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
3
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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reasonable and adequate.
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The Request for Exclusion form attached as Exhibit B to the Joint Settlement
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Stipulation clearly sets out the requirements that must be satisfied in order to be excluded from
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the settlement. The procedure set forth in the Joint Settlement Stipulation, as amended by the
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Stipulation to Amend the Joint Stipulation for Class Action Settlement and Release of Claims, is
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the sole and exclusive means for objecting to the settlement and opting out of the settlement.
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a.
Any Class member who wishes to object to the settlement must submit a
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written notice of their objections, and also, if they wish, a written notice of
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their intent to appear and object at the final approval hearing, to the Court
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either by mailing them to the Class Action Clerk for the United States
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District Court for the Northern District of California, 1301 Clay Street,
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Oakland, CA 94612, or by filing them in person at any location of the
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United States District Court for the Northern District of California. Any
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written objection and/or notice of intent to appear at the hearing must
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reference the name of the case and case number, and must state: (1) the
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Class member’s full name; (2) address; and (3) in clear concise terms the
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basis of each objection, including the factual and legal arguments
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supporting the objection. Any written objections and/or notices of intent to
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appear at the hearing must be filed or postmarked (if mailed), not later than
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September 4, 2014 (i.e., 14 days before the date on which the final
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approval hearing is scheduled).
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b.
The Court will provide electronic notice to the parties through the ECF
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system of the filing of any objections and notices of intent to appear and
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object at the final approval hearing.
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c.
Notwithstanding the deadline for submitting a Request for Exclusion from
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the settlement set forth in the Joint Settlement Stipulation, as amended by
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the Stipulation to Amend the Joint Stipulation for Class Action Settlement
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and Release of Claims, any member of the Class who timely submits any
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
4
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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objections to the settlement and whose objections to the settlement are
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overruled may still exclude themselves from the settlement if they submit a
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Request for Exclusion to the Settlement Administrator, postmarked within
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seven (7) calendar days of the Court overruling any such objections.
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Members of the Class who exclude themselves after having their objections
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to the settlement overruled will not be permitted to thereafter rescind their
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Request for Exclusion.
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10.
Mailing to the last known address of members of the Class constitutes an effective
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method of notifying members of the Class of their rights with respect to the litigation and Joint
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Settlement Stipulation, as amended by the Stipulation to Amend the Joint Stipulation for Class
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Action Settlement and Release of Claims. The Notice of Class Settlement and Request for
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Exclusion form shall be sent by first class mail as specified in the Joint Settlement Stipulation, as
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amended by the Stipulation to Amend the Joint Stipulation for Class Action Settlement and
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Release of Claims, to each member of the Class in accordance with the schedule set forth below.
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The dates selected for the mailing and distribution of the Notice of Class Settlement and Request
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for Exclusion form as set forth below meet the requirements of due process and provide the best
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notice practicable under the circumstances and shall constitute due and sufficient notice to all
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persons entitled thereto.
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The following schedule shall be followed, except as otherwise modified by the
Court:
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Timing
Event
30 days after entry of
this Order
AT&T to provide Settlement Administrator with the
Class List
Deadline for Settlement Administrator to mail Notice of
Class Settlement and Request for Exclusion form to
each Class member
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20 days after AT&T
provides the
Settlement
Administrator with the
Class List
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45 days after the
Deadline for members of the Class to submit a Request
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
5
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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Timing
Event
Settlement
Administrator mails to
the Class members the
Notice of Class
Settlement and
Request for Exclusion
Form
for Exclusion form to the Settlement Administrator
55 days after the
Claims Administrator
mails to the Class
members the Notice of
Class Settlement and
Request for Exclusion
Form
35 days before the
Final Approval
Hearing
Deadline for any member of the Class who submitted a
Request for Exclusion form to rescind the Request for
Exclusion form
14 days before the
Final Approval
Hearing
Last date for any member of the Class to submit
objections to the settlement and notice of intent to
appear at final approval hearing, or for Defendant to file
any opposition to the Motion for Final Approval and
Application for Award of Attorneys’ Fees and Litigation
Expenses
Deadline for Settlement Administrator to provide
Defendant’s Counsel and Class Counsel the Declaration
of Compliance
Deadline for filing Motion for Final Approval and
Application for Award of Attorneys’ Fees and Litigation
Expenses
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7 days before the Final
Approval Hearing
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7 days before the Final
Approval Hearing
Last date to file Reply papers regarding Motion for
Final Approval and Application for Attorneys’ Fees and
any response to any objections to the settlement
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
7 days after the Court
Last date by which any Request for Exclusion form
rules on any objections must be postmarked for any member of the Class who
to the settlement
submitted objections to the settlement and whose
objections were overruled.
15 days after the Court Deadline for Settlement Administrator to provide the
rules on any objections Parties an update regarding the total number of Class
to the settlement
members who submitted a Request for Exclusion.
30 days after the Court Earliest date by which the Court will enter an order
rules on any objections granting final approval of the settlement, enter
to the settlement
judgment, and dismiss the Lawsuit (in order to allow
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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Timing
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Event
Defendant an opportunity before the Court enters a final
approval order and judgment to dismiss the action to
exercise its right under the terms of the settlement to
void the settlement if more than 10% of the Class opts
out of the settlement).
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12.
Any member of the Class may appear at the final approval hearing in person or by
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counsel, and may be heard to the extent allowed by the Court, in support of, or in opposition to,
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the Court’s determination of the good faith, fairness, reasonableness and adequacy of the
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proposed settlement, the requested attorneys’ fees, and litigation expenses.
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All briefs supporting or opposing the settlement shall be served and filed in
accordance with the above schedule.
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The final approval hearing shall be held in Courtroom 2 of the Federal District
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Court for the Northern District of California at 2:00 p.m. on September 18, 2014, to consider the
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fairness, adequacy and reasonableness of the proposed settlement reflected in the Joint Settlement
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Stipulation, as amended by the Stipulation to Amend the Joint Stipulation for Class Action
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Settlement and Release of Claims, as preliminarily approved by this Order, and to consider the
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application of Class Counsel for an award of reasonable attorneys’ fees and litigation expenses
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incurred. The Court expressly reserves the right to adjourn or continue the final approval hearing
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from time to time without further direct notice to Class Members.
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15.
If for any reason the Court does not execute and file a Judgment, or if the
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“Effective Date” of the Settlement Agreement, as defined in Paragraph 8 of the Joint Settlement
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Stipulation, as amended by the Stipulation to Amend the Joint Stipulation for Class Action
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Settlement and Release of Claims, does not occur for any reason whatsoever, the proposed Joint
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Settlement Stipulation, as amended by the Stipulation to Amend the Joint Stipulation for Class
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Action Settlement and Release of Claims, and all evidence and proceedings had in connection
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therewith, shall be without prejudice to the status quo ante rights of the parties to the litigation.
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
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Pending further order of the Court, all proceedings in this matter except those
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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contemplated herein and in the Joint Settlement Stipulation, as amended by the Stipulation to
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Amend the Joint Stipulation for Class Action Settlement and Release of Claims, are stayed.
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IT IS SO ORDERED.
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Dated:
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April 29
, 2014
HON. CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
(510) 337-1001
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO. 4:11-CV-04749 CW
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