Burnthorne-Martinez v. Sephora USA, Inc.

Filing 87

ORDER RE 85 MOTION for Preliminary Approval of Class Action Settlement filed by Alyssa Burnthorne-Martinez. Signed by Judge Yvonne Gonzalez Rogers on 12/18/17. (fs, COURT STAFF) (Filed on 12/18/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALYSSA BURNTHORNE-MARTINEZ,
Plaintiff,

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ORDER RE: MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT

v.

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SEPHORA USA, INC.,

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United States District Court
Northern District of California

CASE NO. 16-cv-02843-YGR

Defendant.

Re: Dkt. No. 85

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In anticipation of the hearing on December 19, 2017, the parties are advised that the Court

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has now implemented a process to gather additional information to aid the Court in its assessment

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of the final approval settlement and to require an audit after distributions. Plaintiff’s counsel is

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directed to provide further information as set forth below by no later than December 27, 2017.

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The information should be provided in a summary chart format, preferably similar to that shown

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in Appendix A hereto from William B. Rubenstein, The Fairness Hearing: Adversarial and

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Regulatory Approaches, 53 UCLA L. REV. 1435, 1460 (2006),1 and in the other samples provided

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by the Court therein. However, the Court requires one modification, namely, to the extent that

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plaintiff seeks reimbursement for expert fees, those shall be separately identified.

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In addition, the Court has reviewed the proposed Class Notice at Docket No. 85-2. Ideally,
the chart setting forth the class members’ options would be on the first page of the Notice and

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Counsel are referred to further discussion on these issues in Nicholas M. Pace and
William Rubenstein, “Shedding Light on Outcomes in Class Actions,” in CONFIDENTIALITY,
TRANSPARENCY, AND THE U.S. CIVIL JUSTICE SYSTEM, Ch. 2 (Joseph W. Doherty, Robert T.
Reville, and Laura Zakaras, eds., Oxford University Press, 2008).

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include a table of contents. Samples are provided in Appendix B hereto.

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IT IS SO ORDERED.

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Dated: December 18, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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United States District Court
Northern District of California
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APPENDIX A

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United States District Court
Northern District of California
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APPENDIX B

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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
AND FINAL APPROVAL HEARING
Pursuant to the Order of the United States District Court, Northern District of California (the
“Court”) entered on February __, 2014, you are hereby notified as follows:
A proposed settlement (the “Settlement”) has been reached between plaintiff Aileen Bernardino
(“Plaintiff”) and defendant Target Corporation (“Target”), in the class action pending in the
Court (the “Action”) brought on behalf of the following individuals (the “Class”):
All persons employed by Target in the State of California all persons employed
by Target in the State of California as non-exempt, non-seasonal employees
whose employment terminated during the period from July 9, 2009, through
__________; whose employment, according to company personnel and payroll
records, was terminated involuntarily; and who were issued a final paycheck one
or more days after their termination date, excluding those individuals who already
have resolved the claims to be released under the Settlement, whether by release
or adjudication.
You have been identified by Target’s records as a member of the Class. Please read this entire
notice carefully. It may affect your legal rights to money you may be owed in connection with
your employment by Target.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
Participate in the
Settlement

If you wish to receive a share of the Settlement proceeds, read the
enclosed Class Member Information Sheet and confirm that the
information about you and your employment with Target is correct. Your
estimated share of the Settlement is printed on the enclosed Class Member
Information Sheet. If it is correct, you do not need to do anything, and
you will receive your share of the Settlement at a later date if the Court
grants final approval of the Settlement.

Correct
Information

If the Class Member Information Sheet is incorrect, return it to the
settlement administrator in accordance with the instructions in this notice.

Exclude Yourself
from the
Settlement

If you do not want to participate in the Settlement, you must complete,
date, sign, and return your completed Election Not To Participate form
postmarked by not later than ______________, ___, 2014, or else you will
be bound by the Settlement.

Object to the
Settlement

If you wish to object to the Settlement, you must follow the directions in
this notice.

Participate in the
Hearing

If you submit a valid and timely objection to the Settlement, you may also
indicate in the objection whether you which to appear and be heard at the
time of the final approval hearing.

Do Nothing

If you do nothing with respect to this notice, you will receive your share
of the Settlement at a later date if the Court grants final approval of the
Settlement and you will be bound by the terms of the Settlement.

THESE RIGHTS AND OPTIONS, INCLUDING THE DEADLINES BY WHICH TO
EXERCISE THEM, ARE EXPLAINED IN THIS NOTICE.

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TABLE OF CONTENTS
GENERAL INFORMATION REGARDING THIS NOTICE

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What Is This Notice About?

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What Is This Lawsuit About?

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SUMMARY OF THE SETTLEMENT

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Who Is Included in the Settlement?

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What Will I Receive from the Settlement?

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What Are My Rights as a Class Member?

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Participating in the Settlement

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Excluding Yourself from the Settlement

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Objecting to the Settlement

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Participating in the Final Approval Hearing

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Class Member Information Sheet

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Final Approval Hearing

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Getting More Information

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GENERAL INFORMATION REGARDING THIS NOTICE

WHAT IS THIS NOTICE ABOUT?
A proposed settlement (the “Settlement”) has been reached between plaintiff Aileen Bernardino
(“Plaintiff”) and defendant Target Corporation (“Target”), in the class action pending in the
Court (the “Action”) brought on behalf of the following individuals (the “Class”):
All persons employed by Target in the State of California all persons employed by
Target in the State of California as non-exempt, non-seasonal employees whose
employment terminated during the period from July 9, 2009, through __________;
whose employment, according to company personnel and payroll records, was
terminated involuntarily; and who were issued a final paycheck one or more days
after their termination date, excluding those individuals who already have resolved
the claims to be released under the Settlement, whether by release or adjudication.
The Court has preliminarily approved the Settlement and conditionally certified the Class for
purposes of the Settlement only. You have received this notice because Target records indicate
that you are a member of the Class. This notice is designed to inform you of how you can object
to the Settlement, elect not to participate in the Settlement, or provide corrected information to
the Settlement Administrator. Unless you submit an election not to participate in the Settlement,
the Settlement if finally approved by the Court will be binding upon you.

WHAT IS THIS LAWSUIT ABOUT?
The Action, which is currently pending in the U.S. District Court, Northern District of
California, is titled “Aileen Bernardino, an individual, and all others similarly situated, Plaintiffs
v. Target Corporation, Defendant,” No. C-12-4639 YGR (the “Action”).
In this Action, Plaintiff alleges that Target failed to pay Class Members final wages timely upon
the termination of their employment with Target in violation of California Labor Code section
201. Plaintiff sues on behalf of herself and all other individuals allegedly similarly situated to
her with respect to the claims she asserted.
Target denies and continues to deny all of Plaintiff’s material allegations. Specifically, Target
contends, among other things, that it did not willfully fail to pay all final wages due upon
termination; that it has a good-faith belief, based in fact and law, that no wages were due to
Plaintiff; that a class could not be appropriately certified in the Action for trial purposes; and that
if a class were certified for trial purposes, Target’s defenses to Plaintiff’s claims would be
applicable to the claims of the class.
After good-faith negotiations presided over by Magistrate Judge Donna M. Ryu, in which both
sides recognized the substantial risk of an uncertain outcome, Plaintiff and Target agreed to settle
the Action pursuant to the terms and conditions of the Settlement.
The Settlement represents a compromise and settlement of highly disputed claims. Nothing in
the Settlement is intended or will be construed as an admission by Target that Plaintiff’s claims

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in the Action have merit or that it has any liability to Plaintiff or the proposed class on those
claims. On the contrary, Target denies any and all such liability.
The parties and their counsel have concluded that the Settlement is advantageous, considering
the risks and uncertainties to each side of continued litigation. The parties and their counsel have
determined that the Settlement is fair, reasonable, and adequate and is in the best interests of the
members of the Class.
SUMMARY OF THE SETTLEMENT
To see if you will get money from this settlement, you first have to decide if you are a Class
Member.

WHO IS INCLUDED IN THE SETTLEMENT?
You are included in the Settlement if you fall within the following definition:
All persons employed by Target in the State of California all persons employed by
Target in the State of California as non-exempt, non-seasonal employees whose
employment terminated during the period from July 9, 2009, through __________;
whose employment, according to company personnel and payroll records, was
terminated involuntarily; and who were issued a final paycheck one or more days
after their termination date, excluding those individuals who already have resolved
the claims to be released under the Settlement, whether by release or adjudication.

WHAT WILL I RECEIVE FROM THE SETTLEMENT?
1.

Target will pay $350,000.00 as the Maximum Settlement Amount. 1 The Maximum
Settlement Amount will fund all payments to be made under the Settlement.

2.

Out of the Maximum Settlement Amount, Target will pay to each Class Member who
does not submit a valid and timely Election Not to Participate in Settlement a Settlement
Share that is calculated as follows:
a.

Under the Standard Calculation Method, each Class Member will be paid a
Settlement Share that is equal to (i) the Days Late for the Class Member
(ii) divided by the aggregate Days Late for all Class Members (iii) multiplied by
the value of the Net Settlement Amount.

b.

To the extent any Class Member, under the Standard Calculation Method, is
eligible for a Settlement Share that is less than $15.00, the Class Member’s
Settlement Share will be increased to $15.00, with the shares of all other Class
Members with shares greater than $15.00 proportionally decreased, such that
every Class Member is eligible for a Settlement Share of at least $15.00.

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PURSUANT TO THE SETTLEMENT, IF, AS OF THE DATE OF PRELIMINARY
APPROVAL, THE SIZE OF THE CLASS EXCEEDS 4,478 MEMBERS BY MORE THAN 5%,
THE MAXIMUM SETTLEMENT AMOUNT WILL BE INCREASED PROPORTIONATELY.

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The “Net Settlement Amount” means the Maximum Settlement Amount less the Class
Representative Payment, the Class Counsel Fees and Expenses Payment, the payment to
the Labor and Workforce Development Agency of the State of California (the “LWDA”),
the Settlement Administrator’s reasonable fees and expenses, and any other fees or
expenses (other than attorneys’ fees and expenses) incurred in implementing the terms of
this Settlement as approved by the Court. If the Court awards less than the amount
sought for any of these awards, the difference between the amount sought and the amount
awarded will be retained as part of the Net Settlement Amount for distribution to those
Class Members who do not submit a valid and timely Election Not to Participate.
3.

Following the court-approved deductions from the Maximum Settlement Amount, the
remaining Net Settlement Amount will be paid out entirely to all Class Members who do
not submit a timely and valid Election Not to Participate in Settlement, pursuant to the
formula set forth in paragraph 2 above.

4.

The Settlement Share for a Class Member will depend on the number of Days Late,
whether any Class Members elect not to participate in the Settlement, the amounts
awarded by the Court for the payments to Plaintiff, Class Counsel, the LWDA and the
Settlement Administrator, and whether any Class Members’ Settlement Shares are
increased to $15.00. By way of example only, assuming that a Class Member had three
Days Late, no Class Member elected not to participate in the Settlement, all payment
amounts sought were awarded, and no Settlement Share needs to be increased to $15.00,
the Class Member’s Settlement Share would be approximately $[XX.XX], calculated as
follows:
$350,000.00 2

Maximum Settlement Amount:
Less:
Class Representative Payment
Class Counsel Fees and Expenses Payment
LWDA Payment
Settlement Administrator’s Fee
Net Settlement Amount

(7,500.00)
(102,500.00)
(10,000.00)
(35,000.00)
$195,000.00

Class Member’s 3 Days/Class’s XX,XXX Days Late
Class Member’s Settlement Share (0.00006 x $350,000.00)

XX.XX
$XX.XX

An approximation of your Settlement Share based on these assumptions appears on your
Class Member Settlement Information Sheet accompanying this Notice. Your actual
Settlement Share may be more or less once awarded. The Settlement Shares and other
amounts awarded by the Court will be paid after final court approval of the Settlement,
entry of the final judgment, and the exhaustion of all rights to appeal or review, or after
any appeal or review has been resolved in favor of the Settlement.
5.

You will be included in the Settlement and receive your proportional share of the
Settlement unless you complete, date, sign, and submit by the deadline of
______________ ___, 2014, an Election Not to Participate in Settlement that is provided

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SEE NOTE 1, SUPRA.

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with this notice and in accordance with the conditions for submitting that Election. If you
do not complete and submit the Election in accordance with the conditions for submitting
that Election, you will be bound by this Settlement and receive a Settlement Share. If
you do complete and submit by the deadline the Election in accordance with the
conditions for submitting the Election, you will be excluded from the Settlement and will
not receive a Settlement Share, but you will retain the right you may have, if any, to
pursue a claim against Target.
6.

If five percent or more of Class Members, or a number of Class Members whose
Settlement Shares would be worth five percent or more of the Net Settlement Amount,
timely submit completed Elections Not to Participate in Settlement, Target will have the
right, but not the obligation, to void the Settlement and the Parties will have no further
obligations under the Settlement, including any obligation by Target to pay the Maximum
Settlement Amount, or any amounts that otherwise would have been owed under this
Settlement, except that Target will pay the Settlement Administrator’s reasonable fees
and expenses incurred as of the date that Target exercises its right to void the Settlement.
Target will notify Class Counsel and the Court whether it is exercising this right to void
not later than 14 days after the Settlement Administrator notifies the Parties of the
number of valid Elections Not to Participate in Settlement.

7.

If the Court does not grant final approval of the Settlement or grants final approval
conditioned on any material change to the terms of the Settlement with respect to the
payments to be made to Class Members or to the LWDA, or the scope of their release of
claims, or the final judgment to be entered in the Action, then the Settlement will become
null and void; if that occurs, neither Plaintiff nor Target will have further obligations
under the Settlement, including any obligation by Target to pay the Maximum Settlement
Amount or any amounts that otherwise would have been owed under this Settlement. An
award by the Court of a lesser amount than that sought by Plaintiff and Class Counsel for
the Class Representative Payment, the Class Counsel Fees Payment, or the Class Counsel
Expenses Payment, will not constitute a material change to the Settlement.

8.

The Court has appointed [SETTLEMENT ADMINISTRATOR] to act as an independent
Settlement Administrator and to resolve any dispute concerning the calculation of a Class
Member’s entitlement to a Settlement Share.

9.

If you dispute the accuracy of any of the information used to calculate your Days Late,
shown on your enclosed Class Member Settlement Information Sheet, you must ask the
Settlement Administrator to resolve the matter. In order to do so, you must return your
Class Member Settlement Information Sheet to the Settlement Administrator by the
deadline of __________, 2014, completed to inform the Settlement Administrator of the
fact of the dispute and the basis for your contention that different information is correct
for you (including any documentary evidence that you have to support your contention).
In the event of such a dispute, Target will manually review its payroll and personnel
records to verify the correct information and number of Days Late. Target’s records will
have a rebuttable presumption of correctness. After consultation with you, Class
Counsel, and Target, the Settlement Administrator will make a determination of the
number of your Days Late and that determination will be final, binding on you and
Target, and non-appealable.

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10.

The Settlement includes a release, as of the date of the Judgment approving the
Settlement, of Target Corporation, and its parents, predecessors, successors, subsidiaries,
affiliates, trusts, employees, officers, agents, attorneys, stockholders, fiduciaries, other
service providers, and related persons and entities, and assigns, from any and all claims,
known and unknown, raised or that could have been raised in the Action with respect to
its subject matter or otherwise based on or related to any known or unknown claims
relating to the timing of payment of final wages upon termination of employment;
violations of California Labor Code section 201; penalties under California Labor Code
section 203; claims for civil penalties under the California Labor Code Private Attorneys
General Act, California Labor Code section 2698 et seq. (“PAGA”); any claims of unfair
competition under California Business and Professions Code section 17200 et seq.; any
other associated statutory or civil penalties, whether recovery is founded on federal, state,
or municipal law; and any associated claim for interest, attorneys’ fees, and costs (the
“Class Members’ Released Claims”). This release, however, does not cover any claim
for any underlying wages allegedly owed to Class Members.

11.

The Released Claims include all such claims, whether known or unknown. Thus, if you
participate in the Settlement, then even if you discover facts in addition to or different
from those that you now know or believe to be true with respect to the subject matter of
the Released Claims, those claims will remain released and forever barred. Therefore, if
you are a Class Member who does not submit timely and valid an Election Not to
Participate in Settlement, with respect to the Class Members’ Released Claims only, you
expressly waive and relinquish the provisions, rights, and benefits of section 1542 of the
California Civil Code, which reads:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his
or her settlement with the debtor.

12.

Class Representative Payment: In addition to her Settlement Share as a Class Member,
Plaintiff will seek approval from the Court for a payment of $7,500.00 in consideration of
her initiating and pursuing the Action, undertaking the risk of liability for attorneys’ fees
and expenses in the event she was unsuccessful in the prosecution of the Action, and
granting the general release she is granting as part of the Settlement. This payment,
which will be paid in addition to her Settlement Share, will be made out of the Maximum
Settlement Amount.

13.

Class Counsel Fees and Expenses Payment: Class Counsel have represented and
continue to represent the Class on a contingency-fee basis. That means that attorneys’
fees are paid only if money is recovered for the Class. It is common to award attorneys’
fees as a percentage of the settlement amount negotiated by the attorneys for the class.
As part of the final approval hearing, Shaun Setareh of the Law Office of Shaun Setareh,
David Spivak of The Spivak Law Firm, and Louis Benowitz of the Law Offices of Louis
Benwitz will request up to $102,500.00, representing $87,500.00 for their attorneys’ fees
(25% of the Maximum Settlement Amount) and $15,000.00 for their expenses incurred in
connection with their work in this case. Target does not oppose this payment. This
amount constitutes full and complete compensation for all legal fees, costs, and expenses

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of all Class Counsel, including costs and expenses resulting from experts and other
vendors retained by Class Counsel in connection with the litigation and all work done
through the completion of the litigation, whatever date that may be. Class Members will
not be required to pay Class Counsel for any other attorneys’ fees, costs or expenses out
of their own pockets if the Settlement Agreement and the attorneys’ fees and expenses
payment is finally approved by the Court. Class Counsel’s attorneys’ fees and expenses
as approved by the Court will be paid out of the Maximum Settlement Amount.
14.

Payment to LWDA: Because Class Members are also releasing their claims for civil
penalties under PAGA, the parties have agreed that the Labor and Workforce
Development Agency of the State of California (the “LWDA”), which is entitled to share
in any recovery of civil penalties, will be paid $10,000.00 out of the Maximum
Settlement Amount as the LWDA’s share of the settlement of civil penalties. This
amount is subject to the Court’s approval.

15.

Costs of Administration: The reasonable costs of administering the Settlement,
including the Settlement Administrator’s fees and expenses, not to exceed $35,000.00,
will be paid out of the Maximum Settlement Amount.

16.

Plaintiff and Class Counsel’s Support of the Settlement: Plaintiff as Class
Representative and Class Counsel support the Settlement. Their reasons include the risk
of denial of class certification and a trial on the merits, the inherent delays and
uncertainties associated with litigation, and the possibility that the Class is not entitled to
any recovery. Based on their experience litigating similar cases, Class Counsel believe
that further proceedings in this case, including a trial and probable appeals, would be very
expensive and protracted. No one can confidently predict how the various legal questions
at issue, including the amount of damages, would ultimately be resolved. Therefore,
upon careful consideration of all of the facts and circumstances of this case, Class
Counsel believe that the Settlement is fair, reasonable, and adequate.

WHAT ARE MY RIGHTS AS A CLASS MEMBER?
a.

Participating in the Settlement: Plaintiff as Class Representative and Class Counsel
represent your interests as a Class Member. Unless you elect not to participate in the
Settlement, you are a part of the Class, you will be bound by the terms of the Settlement
and any final judgment that may be entered by the Court, and you will be deemed to have
released the claims against Target and the other released parties described above. As a
member of the Class, you will not be responsible for the payment of attorneys’ fees or
reimbursement of litigation expenses unless you retain your own counsel, in which event
you will be responsible for your own attorneys’ fees and expenses.

b.

Excluding yourself from the Settlement: If you do not wish to participate in the
Settlement, you must complete the enclosed form of Election Not to Participate in
Settlement (“Election Not to Participate”). The Election Not to Participate must be
completed, signed by you and returned to the Settlement Administrator by not later than
_______ __, 2014. A Class Member who fails to mail an Election Not to Participate in
the manner and by the deadline specified above will be bound by all terms and conditions

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of the Settlement and will receive a Settlement Share if the Settlement is approved by the
Court, and the Judgment, regardless of whether he or she has objected to the Settlement.
Any person who files a complete and timely Election Not to Participate will, upon
receipt, no longer be a member of the Settlement Class and will not be eligible to receive
a Settlement Share, and he or she will not be included in calculating the Settlement Share
of any other Class Member. Any such person will retain the right, if any, to pursue at his
or her own expense a claim against Target. An incomplete or unsigned Election Not to
Participate will be deemed invalid.
Consistent with Target policies, there will be no retaliation or adverse action taken
against any Class Member who participates in the Settlement or elects not to participate
in the Settlement.
c.

Objecting to the Settlement: You may object to the terms of the Settlement before final
approval.
MAIL YOUR OBJECTION TO:
Clerk of the Court

U.S. District Court, Northern District of California
1301 Clay Street, Suite 400 S
Oakland, California 94612
Bernardino v. Target Corp. Settlement Administrator
c/o [SETTLEMENT ADMINISTRATOR]
CLASS COUNSEL

TARGET’S COUNSEL

Shaun Setareh
Law Office of Shaun Setareh
9454 Wilshire Boulevard, Suite 711
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Jeffrey D. Wohl
Rishi N. Sharma
Peter A. Cooper
Paul Hastings LLP
55 Second Street, 24th Floor
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

DO NOT TELEPHONE THE COURT OR TARGET’S COUNSEL.
Any written objection must state your full name, address, date of birth, and the dates of
your employment at Target. Written objections to the Settlement must be mailed by not
later than __________ __, 2014; written objections to the requests for the Class
Representative Payment and the Class Counsel Fees and Expenses Payment must be
mailed by not later than __________ __, 2014.

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d.

Participating in the final approval hearing: If you submit a timely written objection,
you may also appear or appear through counsel of your choice, paid at your own expense,
and be heard at the time of the final approval hearing, if you wish to do so, but only if
you indicate in your objection that you intend to appear.
If the Court overrules your objection and you did not submit a timely and valid Election
Not to Participate in the Settlement, you will be bound by the terms of the Settlement and
receive a Settlement Share.

Class Member Settlement Information Sheet: The enclosed Class Member Settlement
Information Sheet provides the information on which your Settlement Share will be calculated
and an estimate of your Settlement Share if all Class Members are participating and all payment
amounts are awarded; your actual Settlement Share may be more or less. If the information in
the Class Member Settlement Information Sheet (including your mailing address) is correct, you
need not return the form. If the information contained in the Class Member Settlement
Information Sheet is not correct, correct the information on the sheet and return it to the
Settlement Administrator. If you believe information is incorrect, state on the Class Member
Settlement Information sheet what you contend is the correct information and (other than with
respect to your name, your address, and the last four digits of your Social Security number),
include any documentation you have to support that contention. The Class Member Settlement
Information Sheet must be completed, signed by you, and returned to the Settlement
Administrator postmarked by not later than __________ __, 2014. It is your obligation to keep
the Settlement Administrator informed of any changes in your mailing address until your
Settlement Share is received, should final approval of the Settlement be granted. Failing to
provide the Settlement Administrator with any change of your mailing address may prevent you
from receiving your Settlement Share.
The Settlement Administrator’s Address. If applicable, send your corrected Class Member
Settlement Information Sheet or your Election Not to Participate in Settlement to the Settlement
Administrator at the following address:
Bernardino v. Target Corp. Settlement Administrator
c/o [SETTLEMENT ADMINISTRATOR]
FINAL SETTLEMENT APPROVAL HEARING
The Court will hold a final approval hearing on September 2, 2014, at 2:00 p.m., at the U.S.
District Court, 1301 Clay Street, 4th Floor, Courtroom 1, Oakland, California 94612, to
determine whether the Settlement should be finally approved as fair, reasonable, and adequate.
The Court will also be asked to approve the requests for the Class Representative Payment and
the Class Counsel Fees and Expenses Payment.
The hearing may be postponed without further notice to the Class. It is not necessary for you
to appear at this hearing. If you have submitted an objection and indicated that you intend
to appear in the manner set forth above, you may appear at the hearing and be heard.

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GETTING MORE INFORMATION
The above is a summary of the basic terms of the Settlement. For the precise terms and
conditions of the Settlement, you are referred to the detailed Settlement Agreement, which will
be on file with the Clerk of the Court. The pleadings and other records in this litigation
including the Settlement Agreement, may be examined at the Clerk’s Office, U.S. District Court,
1301 Clay Street, Suite 400 S, Oakland, California 94612, during the Clerk’s normal business
hours; or you may contact Class Counsel or the Settlement Administrator.
PLEASE DO NOT TELEPHONE THE COURT OR TARGET’S COUNSEL
FOR INFORMATION REGARDING THIS SETTLEMENT OR THE
CLAIM PROCESS! YOU MAY, HOWEVER, CALL ANY OF THE CLASS
COUNSEL LISTED ABOVE.
Dated: ______________ ___, 2014.
By Order of the Court

11

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 2 of 10

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MELITA MEYER, et al., v.
BEBE STORES, INC.

Case No. 14-cv-00267-YGR

Related Case

Case No.: 14-CV-01968-YGR
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT

TO: All persons in the United States who provided their mobile telephone number to
bebe in one of bebe’s stores at the point-of-sale between October 16, 2013 and
January 21, 2014 and received an SMS or text message from bebe or on its behalf
before January 22, 2014, and who have not validly opted-out of being part of the
Settlement of this Action.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD
READ THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR
LEGAL RIGHTS AND OBLIGATIONS.
A settlement (“Settlement”) has been proposed in the class action lawsuit referenced
above pending in the U.S. District Court for the Northern District of California, Case No.
14-cv-00267-YGR (“Action”). If the Court gives final approval to the Settlement, bebe
stores, inc. (“bebe”) will provide for each Class Member who timely submits a valid and
complete Claim Form a one-time payment of $20 (“Settlement Payment”).
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A
CLAIM
FORM

EXCLUDE
YOURSELF

The only way to get a
Settlement is to visit the
____________________ to
Form may be submitted
_________ or by email it
____________.

Settlement Payment under the Deadline:
Settlement Website located at
___________
obtain a Claim Form. A Claim
__
on the Settlement Website at
to the Claims Administrator at

If you exclude yourself from the Settlement, you will not Deadline:
receive a Settlement Payment under the Settlement. __________
Excluding yourself is the only option that allows you to ever
bring or maintain your own lawsuit against bebe regarding the
allegations in the Action ever again.

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 3 of 10

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
OBJECT

You may write to the Court about why you object to (i.e., Deadline:
don’t like) the Settlement and think that it should not be __________
approved. Filing an objection with the Court will not exclude
you from the Settlement, but you must still submit a claim
form to be eligible for the Settlement Payment

GO TO THE
“FAIRNESS
HEARING”

The Court will hold a “Fairness Hearing” to consider the Hearing Date:
Settlement, the request for attorneys’ fees and costs of the ___________
lawyers who brought the Action, and the Plaintiff Melita
Meyer’s and Courtney Barrett’s request for an incentive
award for bringing the Action.
You may, but are not required to, speak at the Fairness
Hearing about any objection you filed with the Court relating
to the Settlement. If you intend to speak at the Fairness
Hearing, you must also include as part of your objection filed
with the Court a “Notice of Intention to Appear” indicating
your intent to do so.

DO
NOTHING

•
•

You will not receive a Settlement Payment under the N/A
Settlement. You will also give up your right to object to the
Settlement and you will not be able to be part of any other
lawsuit about the allegations in the Action.

These rights and options—and the deadlines to exercise them—are explained in
more detail below.
The Court in charge of this Action has preliminarily approved the Settlement and
must decide whether to give final approval to the Settlement. The relief provided
to Class Members will be provided only if the Court gives final approval to the
Settlement and, if there are any appeals, after the appeals are resolved in favor of
the Settlement. Please be patient.
WHAT THIS NOTICE CONTAINS

BACKGROUND INFORMATION ......................................................................................... ##
1.

Why did I get this notice?

2.

What is this Action about?

3.

Why is this a class action?

4.

Why is there a Settlement?

5.

How do I know if I am part of the Settlement?

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 4 of 10

6.

I’m still not sure if I am included.

THE PROPOSED SETTLEMENT .......................................................................................... ##
7.

What relief does the Settlement provide to the Class Members?

HOW TO REQUEST A SETTLEMENT PAYMENT – SUBMITTING A
CLAIM FORM............................................................................................................... ##
8.

How can I get a Settlement Payment?

9

When will I get a Settlement Payment?

THE LAWYERS IN THIS CASE AND THE REPRESENTATIVE
PLAINTIFFS .................................................................................................................. ##
10.

Do I have a lawyer in this case?

11.

How will the lawyers be paid?

12.

Will the Representative Plaintiffs receive any compensation for
their efforts in bringing this Action?

DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS .......................................... ##
13.

What am I giving up to obtain relief under the Settlement?

HOW TO EXCLUDE YOURSELF FROM THE SETTLEMENT ...................................... ##
14.

How do I exclude myself from the Settlement?

HOW TO OBJECT TO THE SETTLEMENT ....................................................................... ##
15.

How do I tell the Court that I do not like the Settlement?

16.

What is the difference between excluding myself and objecting to
the Settlement?

FAIRNESS HEARING .............................................................................................................. ##
17.

What is the Fairness Hearing?

18.

When and where is the Fairness Hearing?

19.

May I speak at the hearing?

ADDITIONAL INFORMATION ............................................................................................. ##
20.

How do I get more information?

21.

What if my address or other information has changed or changes
after I submit a Claim Form?

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 5 of 10

I.
1.

BACKGROUND INFORMATION

Why did I get this notice?

You received this Notice because a Settlement has been reached in the above-described Class Action.
According to bebe’s available records you might be a Class Member for this litigation and may be
eligible for the relief detailed below.
This Notice explains the nature of the Action, the general terms of the proposed Settlement, and
your legal rights and obligations. To obtain more information about the Settlement, including
information about how you can see a copy of the Settlement Agreement (which defines certain
capitalized terms used in this Notice), see Section 20 below.
2.

What is this action about?

Plaintiffs Melita Meyer, Samantha Rodriguez and Courtney Barrett (the “Representative
Plaintiffs”) filed a lawsuit against bebe on behalf of themselves and all others similarly situated.
Their complaint alleges that bebe sent SMS or text messages without the required consent to
send such messages.
bebe denies each and every one of the allegations of unlawful conduct, the alleged lack of
appropriate consent, any wrongdoing, and any liability whatsoever, and no court or other entity
has made any judgment or other determination that bebe has violated the law or is liable to
anyone that might be a Class Member. bebe further denies that any Class Member is entitled to
any relief and, other than for settlement purposes. bebe denies any wrongdoing and any liability
whatsoever.
The issuance of this Notice is not an expression of the Court’s opinion on the merits or the lack
of merits of the Representative Plaintiffs’ claims in the Action.
For information about how to learn about what has happened in the Action to date, please see
Section 20 below.
3.

Why is this a class action?

In a class action lawsuit, one or more people called “Representative Plaintiff(s)” (in this Action,
Plaintiffs Melita Meyer, Samantha Rodriguez and Courtney Barrett) sue on behalf of other
people who have similar claims. For purposes of this proposed Settlement, the Court in which
the Action was filed will resolve the issues for the Representative Plaintiffs as well as for all of
the people they seek to represent (referred to as “Class Members”). The company sued in this
Action, bebe, is called the Defendant.
4.

Why is there a Settlement?

The Representative Plaintiffs have made claims against bebe. bebe denies that it has done
anything wrong or illegal, and has admitted no liability. The Court has not decided that the
Representative Plaintiffs or bebe should win this Action. Instead, both sides have agreed to

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 6 of 10

settle the Action to avoid the cost of a trial, to avoid the risks of litigation, and to avoid the Class
Members being required to wait possible years for a resolution of the Action.
5.

How do I know if I am part of the Settlement?

If you provided your mobile telephone number to bebe in one of bebe’s stores at the point-of-sale
(i.e., the cash register) between October 16, 2013 and January 21, 2014 and you received an
SMS or text message from bebe or on its behalf before January 22, 2014, you may be eligible to
receive a $20 Settlement Payment from bebe. Excluded from the Class are bebe’s Counsel,
officers, directors, employees and agents, and those individuals who have validly opted-out.
6.

I’m still not sure if I am included.

If you are still not sure whether you are included, you can submit a request for more information
to the Claims Administrator for free help about whether you are a Class Member. The email
address of the Claims Administrator is ____________________________.
II.
7.

THE PROPOSED SETTLEMENT

What relief does the Settlement provide to the Class Members?

bebe has agreed to provide each Class Member with the option to receive either (a) a one-time
payment of $20 from bebe made payable to you (a “Settlement Payment”). The terms and
conditions of the Settlement Payment are described more fully in Section 2.1(a) of the Settlement
Agreement and available on the Settlement Website at ______________.
III.
8.

HOW TO REQUEST A SETTLEMENT PAYMENT – SUBMITTING A
CLAIM FORM
How can I get a Settlement Payment?

To qualify for a Settlement Payment, you must submit a valid and complete Claim Form by the
deadline. A Claim Form is available by clicking HERE or on the Internet at the website
____________________. The Claim Form may be submitted electronically or via email. Read
the instructions carefully, fill out the form accurately and completely, and submit the completed
Claim Form online on or before 11:59 p.m. (Pacific Standard Time) on
_______________________.
9.

When will I get a Settlement Payment?

As described in Sections 17 and 18 below, the Court will hold a Final Fairness hearing on
________________ at ____________, to decide whether to approve the Settlement. If the Court
approves the Settlement, after that, there may be appeals. It’s always uncertain whether these
appeals can be resolved, and resolving them can take time, perhaps more than a year. You can
check on the progress of the case on the website dedicated to the Settlement at
___________________. Please be patient.

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 7 of 10

IV.
10.

THE LAWYERS IN THIS CASE AND THE REPRESENTATIVE
PLAINTIFF

Do I have a lawyer in this case?

The Court has ordered that the law firms of Strategic Legal Practices, APC, Mazie Slater Katz &
Freeman, LLC, Kearney Littlefield LLP and EcoTech Law Group (“Class Counsel”) will
represent the interests of all Class Members. You will not be separately charged for these
attorneys. If you want to be represented by your own attorney, you may hire one at your own
expense.
11.

How will the lawyers be paid?

bebe has agreed to pay Class Counsel’s attorneys’ fees and costs up to $283,000, subject to
approval by the Court. You will not be required to pay any attorneys’ fees or costs for Class
Counsel’s attorneys’ fees and costs unless you retain your own personal attorney.
12. Will the Representative Plaintiffs receive any compensation for their efforts in bringing
this Action?
Representative Plaintiff Melita Meyer will request a service award (also known as an “incentive
award”) of up to $2,000 for her services as a subclass representative and Plaintiff Courtney
Barrett will request a service award of up to $1,000 for her services as a subclass representative;
Plaintiff Samantha Rodriguez will not receive a service award but bebe has agreed to waive its
right to seek reimbursement for its costs relating to the Action filed by Samantha Rodriguez. The
Court will make the final decision as to the amount to be paid to the Representative Plaintiffs.
V.
13.

DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS

What am I giving up to obtain relief under the Settlement?

If the Court approves the proposed Settlement, unless you timely exclude yourself from the
Settlement, you will be releasing any claim that you may have in the Action against bebe. This
generally means that you will not be able to file a lawsuit, continue prosecuting a lawsuit, or be
part of any other lawsuit against bebe regarding the allegations in the Action. The Settlement
Agreement, available on the Settlement Website at __________________ contains the full terms
of the Settlement Agreement and Release.
VI.
14.

HOW TO EXCLUDE YOURSELF FROM THE SETTLEMENT

How do I exclude myself from the Settlement?

You may exclude yourself from the Class and the Settlement. If you want to be excluded, you
must send a letter or postcard stating: (a) the name and case number of the Action “Meyer, et al.,
v. bebe stores, inc., Case No. 14-cv-00267-YGR”; (b) your full name, address, and mobile
telephone number (email address optional); and (c) a statement that you do not wish to

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 8 of 10

participate in the Settlement, postmarked no later than __________ to the Claims Administrator
at:
Meyer, et al., v. bebe stores, inc. Settlement
c/o __________
__________________
______________________
If you timely request exclusion from the Class, you will be excluded from the Class, you will not
be bound by the judgment entered in the Action, you will not be precluded from prosecuting any
timely, individual claim against bebe based on the conduct complained of in the Action, and you
will not be entitled to receive a Settlement Payment as contemplated by the Settlement.
VII.
15.

HOW TO OBJECT TO THE SETTLEMENT

How do I tell the Court that I do not like the Settlement?

At the date, time, and location stated in Section 18 below, the Court will hold a Fairness Hearing
to determine if the Settlement is fair, reasonable, and adequate, and to also consider Class
Counsel’s request for an award of attorneys’ fees and costs, and an incentive or service award to
the Representative Plaintiffs.
If you wish to object to the fairness, reasonableness, or adequacy of the Settlement Agreement
and Release or the proposed Settlement, you must file a written objection with the Court no later
than _________________.
Any written objections must include: (a) the name and case number of the Action “Meyer v. bebe
stores, inc., et al., Case 14-cv-00267”; (b) the full name, address, and telephone number of the
person objecting (email address is optional); (c) the words “Notice of Objection” or “Formal
Objection”; and (d) in clear and concise terms, the objection and legal and factual arguments
supporting the objection; and (e) facts showing that the person objecting is a Class Member. The
written objection must be signed and dated, and must include the following language
immediately above the signature and date “I declare under penalty of perjury under the laws of
the United States of America that the foregoing statements regarding class membership are true
and correct to the best of my knowledge.”
IF YOU DO NOT TIMELY MAKE YOUR OBJECTION, YOU WILL BE
DEEMED TO HAVE WAIVED ALL OBJECTIONS AND WILL NOT BE ENTITLED
TO SPEAK AT THE FAIRNESS HEARING.
If you file a written objection, you may appear at the Fairness Hearing, either in person or
through personal attorney hired at your expense, to object to the Settlement Agreement. You are
not required, however, to appear. If you, or your attorney, intend to make an appearance at the
Fairness Hearing, you must include on your timely and valid objection a statement substantially
similar to “Notice of Intention to Appear.”
If you intend to appear at the Fairness Hearing through your attorney, you must also identify the
attorney(s) representing you who will appear at the Fairness Hearing and include the attorney(s)
name, address, phone number, e-mail address, and the state bar(s) to which your attorney is

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 9 of 10

admitted. Also, if you intend to request the Court to allow you to call witnesses at the Fairness
Hearing, such request must be made in your written brief, which must also contain a list of any
such witnesses and a summary of each witness’s expected testimony.
16.

What is the difference between excluding myself and objecting to the Settlement?

Objecting is simply telling the Court that you don’t like something about the Settlement. You
can object only if you stay a Class Member for the Settlement. Excluding yourself is telling the
Court that you don’t want to be part of the Settlement or a Class Member for the Settlement. If
you exclude yourself, you have no basis to object because the Settlement will no longer affect
you.
VIII. FAIRNESS HEARING
17.

What is the Fairness Hearing?

The Court has preliminarily approved the Settlement and will hold a hearing to decide whether to
give final approval of the Settlement. The purpose of the Fairness Hearing will be for the Court
to determine whether the Settlement should be approved as fair, reasonable, adequate, and in the
best interests of the Class Members for the Settlement; to consider the award of attorneys’ fees
and expenses to Class Counsel; and to consider the request for an incentive or service award to
the Representative Plaintiffs.
18.

When and where is the Fairness Hearing?

On ______________, 2017, a hearing will be held on the fairness of the proposed Settlement. At
the hearing, the Court will be available to hear any objections and arguments concerning the
proposed Settlement’s fairness. The hearing will take place before the Honorable Yvonne
Gonzalez Rogers in Courtroom 1, 4th Floor of the U.S. District Court for the Northern District of
California, located at 1301 Clay Street, Oakland, CA 94612. The hearing may be postponed to a
different date or time or location without notice. Please check the Settlement Website at
_______________________ for any updates about the Settlement generally or the Fairness
Hearing specifically. If the date or time of the Fairness Hearing changes, an update to the
Settlement Website will be the only way you will be informed of the change.
19.

May I speak at the hearing?

At that hearing, the Court will be available to hear any objections and arguments concerning the
fairness of the Settlement.
You may attend, but you do not have to. As described above in Section 15, you may speak at the
Fairness Hearing only if you have timely filed (a) an objection and (b) a Notice of Intent to
Appear.
If you have requested exclusion from the Settlement, however, you may not speak at the Fairness
Hearing.

Case 4:14-cv-00267-YGR Document 158-4 Filed 07/19/17 Page 10 of 10

IX.
20.

ADDITIONAL INFORMATION

How do I get more information?

To see a copy of the Settlement Agreement, the Court’s Order Granting Preliminary Approval of
Class Settlement, Class Counsel’s application for attorneys’ fees and costs, and the Operative
Complaint filed by Plaintiffs Melita Meyer, Samantha Rodriguez and Courtney Barrett in the
Action, please visit the Settlement Website at ______________. Alternatively, you may contact
the Claims Administrator at the email address _____________________.
This description of this Action is general and does not cover all of the issues and proceedings
that have occurred. In order to see the complete file, please visit www.pacer.gov or the Clerk’s
office at 1301 Clay Street, Oakland, CA 94612. The Clerk will tell you how to obtain the file for
inspection and copying at your own expense.
21. What if my address or other information has changed or changes after I submit a
Claim Form?
It is your responsibility to inform the Claims Administrator of your updated information. You
may do so at the address below:
Meyer, et al., v. bebe stores, inc. Settlement
c/o __________
__________________
______________________
[email address]
****
EXCEPT AS OTHERWISE PROVIDED ABOVE,
DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO
THE CLERK OF THE COURT OR THE JUDGE.