Morrison v. Ross Stores, Inc. et al
Filing
113
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND SETTING DEADLINES FOR NOTICE, OBJECTION, EXCLUSION AND FINAL FAIRNESS HEARING by Judge Yvonne Gonzalez Rogers; granting 98 Motion for Preliminary Approval of Class Ac tion Settlement. Motions for Fees and Costs due by 10/18/2021. Motion for Final Approval filed by 12/17/2021. Fairness and Final Approval Hearing set for 1/25/2022 02:00 PM. Motion for Fees and Costs Hearing set for 1/25/2022 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 8/27/2021)
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 1 of 46
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DOMINIQUE MORRISON,
Plaintiff,
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vs.
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ROSS STORES, INC., ET AL.,
Defendants.
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CASE NO. 4:18-cv-2671-YGR
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT AND SETTING DEADLINES
FOR NOTICE, OBJECTION, EXCLUSION, AND
FINAL FAIRNESS HEARING
Dkt. No. 98
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On July 13, 2021, the Court held a hearing on the motion of plaintiff Dominique Morrison
United States District Court
Northern District of California
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for conditional certification of a settlement class in this action; preliminary approval of the parties’
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proposed settlement; approval of the Class Notice Packet; appointing Class Representatives, Class
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Counsel and the proposed Settlement Administrator; and setting a date for the hearing on final
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approval of the settlement. (Dkt. No. 98.)
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Having considered the motion briefing, the arguments of counsel, the relevant law, the
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terms of the settlement agreement and the class notice, as well as the supplemental briefing and
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record in this case, and based on the reasons and terms set forth herein, the Court GRANTS the
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parties’ motion for preliminary approval of class action settlement.
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I.
BACKGROUND
Plaintiffs filed the putative class action complaint on May 7, 2018 against defendant Ross
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Stores, Inc. (“Ross”), AQ Textiles, LLC (“AQ”), and Creative Textile Mills Private Limited
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(“Creative”) alleging that they engaged in deceptive acts and unconscionable business practices
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designed to deceive and mislead consumers into believing that defendants’ bedding and linen
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products had higher thread counts than they really have. Plaintiff’s amended complaint alleges
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claims for the following against Ross: (1) violation of the Magnusson Moss Warranty Act, 15 U.S.C.
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§§ 2301, et seq. (“MMWA”); (2) fraud; (3) violations of the California Consumer Legal Remedies
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Act, Civil Code § 1750 et seq. (“CLRA”); (4) unlawful business practices under California Business
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and Professions Code § 17200 et seq. (“UCL”); (5) unfair business practices under California
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 2 of 46
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Business and Professions Code § 17200, et seq.; (6) fraudulent business practices under California
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Business and Professions Code, § 17200, et seq.; (7) misleading and deceptive advertising under
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California Business and Professions Code, § 17500, et seq.; (8) breach of express warranty; (9)
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breach of warranty of merchantability; (10) negligent misrepresentation; (11) violation of the
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Missouri Merchandising Practices Act; and (12) unjust enrichment
The parties reached a settlement prior to class certification with the assistance of an
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experienced mediator, Judge Elizabeth Laporte (ret.).
II.
KEY TERMS OF THE SETTLEMENT AGREEMENT
A.
Injunctive Relief for the Class
For a period of up to twelve years, but no less than seven years, Ross is required to ensure
United States District Court
Northern District of California
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that the thread count of the AQ products it receives and intends to sell conform to industry standards
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for the testing and verification of thread count, so that the actual thread count for such products are
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consistent with the representations regarding thread count listed on the labeling. Accordingly, Ross
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has agreed to do the following:
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a. Ross will require AQ to certify in writing on an annual basis beginning on January 1st
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after the Effective Date that the description of the thread count on its packaging for
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Products accurately reflects the actual thread count as determined by ASTM 3775, as
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officially interpreted and amended from time to time, or any successor industry standard
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for textile thread count for Products sold to Ross. Ross shall not be required to obtain a
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certification from AQ if it has not purchased any Products within the previous year and
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has not issued any purchase orders for future purchases of Products; provided, however,
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that Ross shall require AQ to provide a certification before issuing any subsequent
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purchase orders for Products to AQ.
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b. Require AQ to report in writing on an annual basis, beginning on January 1st after the
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Effective Date, as to whether there are any known investigations by any outside entity or
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pending claims or lawsuits regarding AQ’s representations concerning thread count on
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the Products, any remedial actions taken regarding these claims or investigations, and if
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no remedial actions were taken, the reasons for which remedial actions were not taken.
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c. Commencing no later than the Effective Date, Ross will require AQ to supply a passing
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test report for each new style of Products showing compliance with ASTM 3775, as
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officially interpreted and amended from time to time, or any successor industry standard
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for textile thread count, before taking possession of such style. Only one test report is
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required if the Product differs only by size or color.
The aforementioned injunctive relief will remain in effect for twelve years following final
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approval of this settlement, with such terms automatically terminating after twelve years. Ross
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may seek early termination of the injunctive relief terms no earlier than seven years, provided that
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there have been no violations of the required injunctive relief terms within the preceding three
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years.
United States District Court
Northern District of California
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B.
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Under the terms of the Settlement Agreement, Ross will retain CPT Group as Settlement
Claims Administrator
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Administrator to assist with the administration and notice of the Settlement and will pay for all of the
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costs and notice and the claims administration.
Attorneys’ Fees and Costs
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C.
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Under the Settlement Agreement, plaintiff's counsel agreed to seek up to $750,000 in
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attorneys’ fees plus reimbursement of Class Counsel’s costs and expenses. The parties also agreed
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that Ross shall pay Ms. Morrison up to $5,000 as an incentive award in exchange for a general
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release of all claims against Ross.
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III.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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A.
Legal Standard
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A court may approve a proposed class action settlement of a class proposed to be certified
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only “after a hearing and on finding that it is fair, reasonable, and adequate,” and that it meets the
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requirements for class certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement,
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a court need not address whether the settlement is ideal or the best outcome, but only whether the
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settlement is fair, free of collusion, and consistent with plaintiff’s fiduciary obligations to the class.
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See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998), overruled on other grounds by
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Dukes, 564 U.S. at 131. The Hanlon court identified the following factors as relevant to assessing a
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settlement proposal: (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and
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likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial;
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(4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the
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proceeding; (6) the experience and views of counsel; (7) the presence of a government participant;
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and (8) the reaction of class members to the proposed settlement. Id. at 1026 (citation omitted); see
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also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).
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Settlements that occur before formal class certification also “require a higher standard of
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fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such
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settlements, in addition to considering the above factors, a court also must ensure that “the
settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset
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United States District Court
Northern District of California
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Prods. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011).
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B.
Class Definition and Basis for Conditional Certification
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The Settlement Agreement, attached hereto as Exhibit A, defines the class as:
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All persons in the United States who purchased the Products for
personal use from a Ross store on or after May 7, 2014, to the
Objection/Exclusion Deadlines. Excluded from the Settlement Class
are: (a) Ross’s employees, officers, directors, or attorneys; (b) person
who timely and properly excluded themselves from the Settlement
Class as provided herein, and (c) the Court, the Court’s immediate
family, and Court staff.
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(“the Settlement Class”). The proposed class definition is nearly identical to the class definition
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alleged in the complaint, with the major differences being defining the exact products at issue and
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the insertion of the time frame of May 7, 2014 until the objection deadline.
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The Court finds that, for purposes of settlement, plaintiff has satisfied the requirements of
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Rule 23(a) as well as the requirements for certification under one or more subsections of Rule 23(b).
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With respect to numerosity under Rule 23(a)(1), the Settlement Class includes 800,000 members,
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making it so numerous that joinder of all members is impracticable.
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Rule 23(a)(2) commonality requires “questions of fact or law common to the class,” though
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all questions of fact and law need not be in common. Hanlon, 150 F.3d at 1026. The focus of this
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action—whether Ross known, or should have known, that the thread counts on its AQ-supplied
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sheets were inflated beyond the ASTM standard—is common to all class members.
Rule 23(a)(3) requires that the plaintiff show that “the claims or defenses of the
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representative parties are typical of the claims or defenses of the class.” Plaintiff’s and members of
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the Settlement Class claims all stem from the same alleged conduct, i.e. thread count inflation and
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misrepresentation on the Products’ packaging, making plaintiff’s claims typical of class members.
With respect to Rule 23(a)(4), the Court finds the representative parties and class counsel
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have fairly and adequately represented the interests of the Class. No conflicts of interest appear as
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between plaintiff and the members of the Settlement Class. Class Counsel have demonstrated that
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they are qualified and have experience with prosecuting class actions of this kind and therefore
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adequate to represent the Settlement Class as well.
The Settlement Class further satisfies Rule 23(b)(3) in that common issues predominate and
United States District Court
Northern District of California
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“a class action is superior to other available methods for fairly and efficiently adjudicating” the
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claims here.
Based on the foregoing, the proposed class is conditionally certified pursuant to Rule
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23(c).
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C.
Settlement Agreement Appears Fair and Reasonable
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The settlement agreement, a copy of which is attached hereto as Exhibit A, is granted
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preliminary approval pursuant to Rule 23(e)(2). Based upon the information before the Court, the
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Settlement Agreement falls within the range of possible approval as fair, adequate and reasonable,
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and there is a sufficient basis for notifying the Class and for setting a Fairness and Final Approval
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Hearing.
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As to the Hanlon factors, the Court finds that they indicate the settlement here is fair and
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reasonable. Absent the settlement, plaintiff would have been required to show that Ross did more
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than just sell sheets that were deceptively labeled by AQ, which would have been difficult for
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plaintiff to do. As reflected in the relevant deposition testimony of Ross employees, Ross did not
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design the sheets, nor did Ross specify their thread count, draft the language on the product
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labeling, or own or license the brand name “Grande Estate.” While Ross approved the aesthetic
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design of the label insert for the sheets, Ross did not make, approve, or otherwise adopt any
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representations about the sheets. Nor did Ross advertise the thread count of the Grande Estate
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sheets to consumers. Thus, plaintiff would have faced challenges establishing liability against
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Ross.
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Importantly, although the class members are releasing their damages claims as to Ross, the
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release does not cover the claims that can be brought against AQ or Creative, the distributor and
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manufacturer, respectively, of the sheets. Given the challenges in establishing liability against
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Ross, and the fact that class members can still seek damages against AQ and Creative, the
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settlement for injunctive relief only provides value to the class members, many of which are repeat
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customers.
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United States District Court
Northern District of California
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Further, proceeding to trial would have been costly; recovery was not guaranteed; and
there was the possibility of protracted appeals.
The Settlement Agreement appears to have been the product of arm’s length and informed
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negotiations. The settlement occurred only after extensive litigation including: the exchange of
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thousands of pages of documents in response to discovery requests, many depositions, including
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that of plaintiff’s and Ross’s 30(b)(6) designee, service of several subpoenas on AQ and other
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third parties, and extensive briefing on motions seeking dismissal including a preview of Ross’s
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summary judgment motion based on the innocent retailer defense. Thus, the parties have vetted
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their claims and know the strengths and weaknesses of their case.
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In addition, the three mediation sessions conducted by the Honorable Jay C. Gandhi and
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the Honorable Hon. Elizabeth D. Laporte (twice), demonstrates that the settlement reached by the
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parties was a result of serious, informed, non-collusive, and arms-length negotiation. Counsel for
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both parties are highly experienced. Accordingly, the Court finds that the record does not indicate
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collusion or self-dealing. See In re Bluetooth, 654 F.3d at 946-47.
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The relief provided for the Class appears to be adequate, taking into account:
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(i) the costs, risks, and delay of trial and appeal;
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(ii) the effectiveness of any proposed method of distributing relief to the class;
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(iii) the terms of any proposed award of attorney's fees, including timing of payment; and
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(iv) any agreements required to be identified under Rule 23(e)(3).
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Moreover, the Settlement Agreement appears to treat Class members equitably relative to
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each other.
Based on the foregoing, the Court conditionally certifies the class and provisionally
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appoints Audet & Partners, LLP, Cueno, Gilbert & LaDuca, LLP, Levin, Sedran & Berman, and
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Steckler Wayne Cochran Cherry PLLC, as Class Counsel and plaintiff Dominique Morrison as
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class representative(s).
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IV.
PLAN OF NOTICE AND ADMINISTRATION
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A.
Notice Plan
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A court must “direct notice [of a proposed class settlement] in a reasonable manner to all
class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must be
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United States District Court
Northern District of California
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notified of a proposed settlement in a manner that does not systematically leave any group without
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notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982). Adequate
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notice requires: (i) the best class notice practicable; (ii) reasonably calculated, under the
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circumstances, to apprise the Class members of the proposed settlement and of their right to object
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or to exclude themselves as provided in the settlement agreement; (iii) reasonable and constitute due,
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adequate, and sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable
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requirements of due process and any other applicable requirements under federal law. Phillips
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Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires “notice reasonably
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calculated, under all the circumstances, to apprise interested parties of the pendency of the action
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and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr.
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Co., 339 U.S. 306, 314 (1950).
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The parties’ proposed notice plan appears to be constitutionally sound in that plaintiff has
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made a sufficient showing that it is: (i) the best notice practicable; (ii) reasonably calculated, under
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the circumstances, to apprise the Class members of the proposed settlement and of their right to
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object or to exclude themselves as provided in the settlement agreement; (iii) reasonable and
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constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv)
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meet all applicable requirements of due process and any other applicable requirements under
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federal law.
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Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 8 of 46
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The Court approves form of the [long-form] Notice of Proposed Class Action Settlement
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attached as Exhibit B to this Order. The Court also approves the form of the Short-Form Notice
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attached hereto as Exhibit C. The Settlement Administrator will have the long-form class notice
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translated into Spanish, as well as the settlement website. Furthermore, the press release will
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include a subheader in Spanish informing class members that there are Spanish translations of the
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relevant notice documents. Taken together these notices are sufficient to inform Class members of
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the terms of the Settlement Agreement, their rights under the Settlement Agreement, their rights to
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object to or comment on the Settlement Agreement, their right to receive a payment or opt out of
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the Settlement Agreement, the process for doing so, and the date and location of the Fairness and
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Final Approval hearing. The forms of plan of notice are therefore APPROVED.
United States District Court
Northern District of California
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B.
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CPT Group, Inc. is appointed to act as the Settlement Administrator, pursuant to the terms
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Settlement Administrator
set forth in the Settlement Agreement.
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The Settlement Administrator shall distribute the Class Notice according to the notice plan
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described in the Settlement Agreement and substantially in the form approved herein, no later than
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September 24, 2021 (“Notice Date”). Proof of distribution of the Class Notice shall be filed by the
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parties in conjunction with the motion for final approval.
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Ross is directed to provide to the Settlement Administrator the Class members’ contact
data as specified by the Settlement Agreement no later than September 10, 2021.
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D.
Exclusion/Opt-Out
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Any Class Member shall have the right to be excluded from the Class by mailing a request
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for exclusion to the Settlement Administrator no later than November 29, 2021. Requests for
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exclusion must be in writing and set forth the name and address of the person [or entity] who
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wishes to be excluded, [as well as all trade names or business names and addresses used by such
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person or entity,] and must be signed by the class member seeking exclusion. No later than
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January 11, 2022, Class Counsel shall file with the Court a list of all persons or entities who have
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timely requested exclusion from the Class as provided in the Settlement Agreement.
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Any Class Member who does not request exclusion from the settlement class as provided
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above shall be bound by the terms and provisions of the Settlement Agreement upon its final
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approval, including but not limited to the releases, waivers, and covenants described in the
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Settlement Agreement, whether or not such person or entity objected to the Settlement Agreement
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and whether or not such person or entity makes a claim upon the settlement funds.
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E.
Objections
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Any Class Member who has not submitted a timely request for exclusion from the
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Settlement Agreement shall have the right to object to (1) the Settlement Agreement, (2) and/or
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Class Counsel’s motion for attorneys’ fees and Class Representative Awards by mailing to the
Settlement Administrator a written objection and stating whether they intend to appear at the
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United States District Court
Northern District of California
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Fairness Hearing, as set forth in the Class Notice, no later than November 29, 2021. Failure to
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submit a timely written objection will preclude consideration of the Class Member’s later
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objection at the time of the Fairness Hearing.
Attorneys’ Fees and Class Representative Awards
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F.
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Plaintiff(s) and their counsel shall file their motion for attorneys’ fees and for Class
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Representative awards no later than October 18, 2021. Each settlement class member shall have
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the right to object to the motion for attorneys’ fees and Class Representative awards by filing a
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written objection with the Court no later than November 15, 2021.
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Plaintiffs shall file a reply brief responding to any timely objection no later than November
29, 2021
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G.
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All briefs, memoranda, and papers in support of final approval of the settlement shall be
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Fairness and Final Approval Hearing
filed no later than December 17, 2021.
The Court will conduct a Fairness and Final Approval Hearing on Tuesday, January 25,
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2022, at 2:00 p.m., to determine whether the Settlement Agreement should be granted final
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approval as fair, reasonable, and adequate as to the Class. The Court will hear all evidence and
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argument necessary to evaluate the Settlement Agreement and will consider Class Counsel’s
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motion for attorneys’ fees and for Class Representative awards.
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Class members may appear, by counsel or on their own behalf, to be heard in support of or
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opposition to the Settlement Agreement and Class Counsel’s Motion for attorneys’ fees and Class
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Representative awards by filing a Notice of Intention to Appear no later than December 24, 2021.
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The Court reserves the right to continue the date of the final approval hearing without
further notice to Class members.
The Court retains jurisdiction to consider all further applications arising out of or in
connection with the Settlement.
H.
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If final approval is granted, the parties will be required to file a Post-Distribution
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Accounting in accordance with this District’s Procedural Guidance for Class Action Settlements
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United States District Court
Northern District of California
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and at a date set by the Court at the time of the final approval hearing. Counsel should prepare
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accordingly.
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Post-Distribution Accounting
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Summary of Key Dates
Event
Class data to be provided to Settlement Administrator
Class Notice to be sent by
Class Counsel to file their motion for fees and costs and
Class Representative awards
Postmark deadline to submit objection or request for
exclusion
Motion for Final Approval to be filed by
Class counsel and settlement administrator to submit
supplemental statements regarding status of notice
program, objections, opt-outs
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Fairness and Final Approval Hearing
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Date
September 10, 2021
September 24, 2021
October 18, 2021
November 29, 2021
December 17, 2021
January 11, 2022
January 25, 2022
NOTE: Subject to
change without
further notice to the
Class.
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IT IS SO ORDERED.
This terminates Docket No. 98.
Dated: August 27, 2021
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 11 of 46
EXHIBIT A
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 12 of 46
JEFFREY B. MARGULIES (BAR NO. 126002)
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EVA YANG (BAR NO. 306215)
NORTON ROSE FULBRIGHT US LLP
555 South Flower Street
Forty-First Floor
Los Angeles, California 90071
Telephone :
(213) 892-9200
Facsimile:
(213) 892-9494
jeff.margulies@nortonrosefulbright.com
eva.yang@ nortonrosefulbright.com
ATTORNEYS FOR DEFEND ANT
ROSS STORES, INC.
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UNITED STATES DISTRICT COURT
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NORTH ERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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DOMINIQUE MORRISON, on behalf of
herself and all others similarly situated,
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Plaintiff,
Case No.4: 18-cv-02671-YGR
Assigned for All Purposes to the Hon . Yvonne
Gonzalez Rogers
VS.
STIPULATION OF SETTLEMENT
ROSS STORES, INC.,
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Defendants.
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[). 'It ·uMENT PHt::I'ARI:l'
llN R Et'Yl'l ,t- ll P AI'f.H
I 023 12476 .1
1
ST IP ULA TI ON OF SETTL EMENT
Case No. : 3: 18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 13 of 46
This Stipulation of Settlement is made by and among Dominque Morrison ("Plaintiff'), on
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behalfofherselfand the Settlement Class (defined below), on the one hand, and Ross Stores, [nc.,
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on the other.
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RECITALS
A.
On May 7, 2018, Plaintiff commenced a proposed class action against Ross Stores,
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Inc. ("Ross"), AQ Textiles, LLC ("AQ" ), and Creative Textile Mills Private Limited ("Creative")
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in the United States District Court, Northern District of California, Case No. 4: 18-cv-02671-
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YGR. Plaintiff alleged that the bed sheets that she purchased from Ross that were imported by
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AQ and manufactured by Creative were represented to have a higher thread count than they
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actually had. Plaintiff asserted claims on behalf of herself and a proposed California class of all
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purchasers that purchased bedding linen or bedding products from defendants that were
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represented as having higher thread counts for violation of the Magnuson-Moss Warranty Act, 15
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U.S.C. § 2301 , et seq. ("MMWA"), fraud, violation ofthe Consumer Legal Remedies Act. Civ.
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Code§ 1750, et seq. ("CRLA"), violation of California's Unfair Competition Law, Bus. & Prof.
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Code § 17200. et seq. ("UCL") under the unlawful , unfair, and fraudulent prong, violation of
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False Advertising Law, Bus. & Prof. Code § 17500, et seq. (" F AL" ), breach of express watnnty,
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breach ofwarranty of merchantability, and negligent misrepresentation.
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B.
On June 29, 2018, AQ and Ross each filed a motion to dismiss the Complaint. On
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July 20,2018, prior to the motion to dismiss hearings, Plaintiff filed an amended complaint
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("F AC"). The Court vacated the motion to dismiss hearing as moot.
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c.
Plaintiffs FAC alleged the same claims, but added a claim for violation ofthe
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Missouri Merchandising Practices Act ("MMPA" ), Missouri Rev. Stat. § 407 .020. Rather than a
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California class, the F AC sought to certify a proposed Missouri and nationwide class. The claims
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alleged under the CLRA, UCL, and FAL are alleged against Ross only, the others are alleged
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against all defendants.
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D.
On August 3, 2018, AQ and Ross again moved to dismiss the FAC. On November
14, 2018, the Coutt granted both motions but allowed Plaintiff leave to amend with respect to the
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102312476.1
Oi..X'U Mf'.NT PKEI'AK fJ)
ON Rt-.cvnr.n
PAI'ER
-2STIPULATION OF SETTLEMENT
Case No.: 3:18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 14 of 46
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claims against Ross. The Cout1 found that Plaintiff failed to establish personal jurisdiction as to
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AQ, and therefore granted AQ's motion without allowing Plaintiff leave to amend her claims
3 against AQ.
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E.
On December 4, 2018, Plaintiff filed a Second Amended Complaint ("SAC")
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alleging the same claims in the FAC, and adding a claim for unjust enrichment. Plaintiff asserted
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these claims on behalf of herself and a proposed Missouri and nationwide class who purchased
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bedding or linen products from Ross that were manufactured or supplied by AQ and/or Creative
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and that were packaged or advertised with a representation regarding thread count. On January 4,
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2019, Ross filed a motion to dismiss the SAC.
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F.
On May 30, 2019, the Court granted Ross's motion to dismiss as to Plaintiffs
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claims for violation ofMMWA and unjust enrichment without leave to amend. As such, the
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operative claims that currently remain are: (I) fraud ; (2) violation ofthe CLRA; (3) violation of
13
UCL under its unlawful prong, unfair prong, and fraudulent prong; (4) violation ofthe FAL; (5)
14
breach of express warranty; (6) breach of warranty of merchantabi Iity; (7) neg Iigent
15
misrepresentation; and (8) violation ofthe MMPA.
16
17
18
19
20
G.
On June 20, 2019, Ross answered Plaintiffs SAC, denying Plaintiffs allegations
and asserting several affirmative defenses .
H.
On July 8, 2019, the parties attended an initial case management conference where
the Court set various scheduling deadlines and referred the case to mediation.
I.
On November 13, 2020, the parties attended a full day mediation before the Hon.
21
Jay C. Gandhi. The parties exchanged detailed settlement proposals and continued to engage in
22
settlement discussions following the mediation.
23
J.
On March 23, 2020, due to the worsening situation with COVID-19 and
24
government mandated closures, the parties stipulated to vacate all existing deadlines. The parties
25
thereafter submitted two stipulations further extending their time to submit a proposed briefing
26
schedule due to the continued state closures and circumstances surrounding COVlD-19.
27
K.
On July 20, 2020, the Court ordered the parties to jointly submit a proposed
28
I 02312476.1
[}o(_·uMt.:NT PKEI' AREIJ
ON RE<:YCI.f.D P AI' f .K
-3STIPULATION OF SETTLEMENT
Case No.: 3:18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 15 of 46
scheduling order, which was submitted to the Court on November 23, 2020.
2
L.
On January 7, 2021, in accordance with the Court's Standing Order, Ross
3
requested a pre-filing conference in connection with its anticipated motion for summary
4
judgment. On January 14, 2021, the Court found that the pre-filing conference was premature,
5
although noting that it cannot prohibit a party from filing a motion for summary judgment. As
6
such, Ross was prepared to file a motion for summary judgment as to all of Plaintiffs claims on
7
the basis that, among others, Ross, as a retailer, did not make or participate in any representations
8
regarding the thread count ofthe sheets that Plaintiff purchased.
9
10
11
12
13
M.
On February 18, 2021, the parties attended a second mediation session before the
Hon. Elizabeth D. Laporte (ret.) and continued to discuss possible settlement of the matters.
N.
On March 3, 2021, the parties attended a third mediation session before the Hon.
Elizabeth D. Laporte (ret.) and reached a settlement in principle of this matter.
0.
Ross denies all of Plaintiffs allegations and charges ofwrongdoing or liability
14
arising out of any ofthe conduct, statements, acts or omissions alleged, or that could have been
15
alleged in the Litigation. Ross also denies that Plaintiff, the Settlement Class, or any member of
16
the Settlement Class have suffered damage or harm by reason of any alleged conduct, statement,
17
act or omission of Ross. Ross further denies that the litigation meets the requisites for
18
certification as a class action under Rule 23 ofthe Federal Rules of Civil Procedure, except for
19
purposes of settlement, or that the evidence is sufficient to find liability as to Ross for any of
20
Plaintiffs claims that are alleged.
21
P.
Plaintiffs counsel has analyzed and evaluated the merits of all the Parties'
22
contentions and this Settlement as it impacts all the Parties and the Settlement Class Members,
23
including, but not limited to, engaging in discovery and reviewing voluminous documents
24
produced, taking the depositions of relevant witnesses, consulting with experts and evaluating the
25
facts and evidence to date. Among the risks of continued litigation for Plaintiff are the risks of
26
failing to prove liability and damages on a class-wide or individual basis. In particular, there may
27
be difficulties establishing that Ross made a representation or had any input, comment, or control
28
I 02312476.1
l)l')( ·UMt'.NT PK~]'AK F:Il
\)N Rt-:C'o'CI .t'D PAI'fK
-4STIPULATION OF SETTLEMENT
Case No.: 3: 18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 16 of 46
over the thread count language on sheets that were supplied and labeled by AQ, that Plaintiffs
2
claims are typical , or that common questions of fact or law predominate. Plaintiff and Plaintiffs
3
counsel, after taking into account the foregoing along with other risks and the costs of further
4
litigation, are satisfied that the terms and conditions of this Agreement are fair, reasonable,
5
adequate and equitable. and that a settlement of the Litigation and the prompt provision of
6
effective relief to the Settlement Class are in the best interest of the Settlement Class Members.
7
Q.
Ross agrees that the settlement is fair and reasonable in light of the merits and
8
risks ofthe case. While continuing to deny all allegations of wrongdoing and disclaiming any
9
liability with respect to any and all claims, Ross considers it desirable to resolve the Litigation on
10
the terms stated herein , in order to avoid further burden, expense, inconvenience, and interference
11
with its ongoing business operations.
12
In consideration of the covenants and agreements set forth herein, and of the releases and
13
dismissals of claims as described below, and other good and valuable consideration, the receipt
14
and sufficiency ofwhich hereby is acknowledged by each ofthe Parties, Plaintiff on behalf of
15
herself and the Settlement Class and Ross agree to the Settlement described herein, subject to
16
Court approval, under the following terms and conditions:
17
I.
DEFINITIONS
18
1.1
''Agreement" or " Settlement" means this Stipulation of Settlement.
19
1.2
"AQ" means AQ Textiles, LLC. as presently organized and includes any subsequent
20
or additional business or other entities created to continue the present business operations of AQ
21
in whole or part.
22
23
1.3
"Class Counsel" means Audet & Partners, LLP; Cuneo, Gilbert & LaDuca; Levin,
Sedran & Berman; and Steckler Wayne Cochran Cherry PLLC.
24
1.4
"Class Representative" means Plaintiff Dominique Morrison.
25
1.5
"Complaint" means the operative complaint filed in the Litigation by Plaintiff.
26
1.6
"Defendant" or " Ross" means Ross Stores, Inc.
27
28
I 023124 76 . I
[)OCUM ..
.:NT PKE/' AI
ON R£<.:Y(t.E0 P AI'f.Jt
- I 0STIPU LATION OF SETTLEMENT
Case No.: 3: 18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 22 of 46
1
the risk of liability for the Parties ' costs of suit, and for agreeing to the general release set forth in
2
Section 6. 1. The Incentive Award shall not exceed $5 ,000.
3
4.5
Ross agrees not to oppose or to submit any evidence or argument challenging or
4
undermining the applications for Fee and Expense Award or Incentive Award, provided such
5
applications are consistent with Sections 4.1 and 4.4. Plaintiffs' Counsel and Plaintiff agree that the
6
denial of, reduction or downward modification of, or failure to grant any application for attorneys'
7
fees, costs, and expenses or Incentive Awards shall not constitute grounds for modification or
8
termination ofthis Agreement, including the settlement and releases provided for herein.
9
4.6
10
the Effective Date.
11
V.
12
Ross shall pay any Fee and Expense Award or Incentive Award within 30 days of
NOTICE TO THE CLASS AND ADMINISTRATION OF SETTLEMENT
5.1
The Class Notice shall conform to all applicable requirements of the Federal Rules
13
of Civil Procedure, the United States Constitution (including the Due Process Clauses), the Class
14
Action Fairness Act of2005 , 28 U.S.C. § 1715, and any other applicable law, and shall otherwise
15
be in the manner and form approved by the Court.
16
5.2
Ross shall retain the Settlement Administrator to facilitate the notice process by
17
assisting the Parties in the implementation of the Notice Plan. The Settlement Administrator will
18
help implement the terms of this Settlement. The Settlement Administrator shall be responsible for
19
administrative tasks, including, without limitation , (a) notifying the appropriate state officials about
20
the Settlement, (b) arranging, as set forth in this Section and in the Preliminary Approval Order,
21
for distribution of Class Notice in accordance with the Notice Plan to Settlement Class Members,
22
(c) answering inquiries from Settlement Class Members and/or forwarding such written inquiries
23
to Class Counsel or their designee, (d) receiving and maintaining on behalf of the Court and the
24
Parties any Settlement Class Member correspondence regarding exclusions from the Settlement,
25
(e) posting notices on the Settlement Website, and other related documents, and (f) otherwise
26
assisting with implementation and administration of the Settlement terms.
27
28
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D:X'U M ENT P l PA I't'J{
- 13 STrPULATION OF SETTLEMENT
Case No. : 3: 18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 25 of 46
1
6.5
Effectuation of Settlement. None of the above releases include releases of claims or
2
otherwise affects the rights of Settlement Members to pursue any other party not expressly released,
3
including
4
Ross.
5
AQ and Creative, regarding the allegations in the Litigation regarding Products sold by
6.6
No Admission of Liability. This Agreement set forth herein reflects, among other
6
things, the compromise and settlement of disputed claims among the Parties, and neither this
7
Agreement nor the releases given herein, nor any consideration therefor, nor any actions taken to
8
carry out the terms of this Agreement, are intended to be, nor may they be deemed or construed to
9
be, an admission or concession of liability, or the validity of any claim, defense, or of any point of
10
fact or law on the part of any Party. Ross denies the material allegations of the Complaint and
11
denies any wrongdoing or liability as to the Litigation. Neither this Agreement, nor the fact of the
12
Agreement set forth herein, nor the settlement proceedings, nor the settlement negotiations, nor any
13
related document, shall be used as an admission of any fault or om iss ion by any or all of the
14
Released Parties, or be offered or received in evidence as an admission, concession, presumption,
15
or inference of any wrongdoing or liability by any or all of the Released Parties in any proceeding,
16
other than such proceedings as may be necessary to consummate, interpret or enforce this
17
Agreement.
18
VII.
19
CLASS SETTLEMENT PROCEDURES
7.1
Preliminary Approval Order. As soon as practicable following the signing of this
20
Agreement, Class Counsel shall apply to the Court for entry of the Preliminary Approval Order,
21
certifYing the Settlement Class; preliminarily approving this Agreement as fair, just, reasonable and
22
adequate; approving Notice to the Settlement Class Members as described in Section V above; and
23
setting the Final Approval Hearing of the Agreement and any objections thereto.
24
7.2
Final Approval Order and Judgment. At or before the Final Approval Hearing,
25
Plaintiff, with the support of Ross, shall move for entry of an order of Final Approval, granting
26
final approval of this Agreement and adjudging this Agreement to be final, fair, reasonable,
27
adequate, and binding on all Settlement Class Members who have not excluded themselves from
28
I 023 12476. 1
[),J(: UMEN T P~EI 'ARED
ON RecrnEU PAI'fl
:
llN R t:r~CU::IJ PAI'f.J.:.
- 16STIPU LATION OF SETTL EM ENT
Case No .: 3:18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 28 of 46
1
written request for exclusion, he or she shall be deemed to have complied with the terms of the opt
2
out procedure and shall not be bound by the Agreement if approved by the Court. However, any
3
objector who has not timely requested exclusion from the Settlement will be bound by the terms of
4
the Agreement upon Final Approval.
5
7.8
Effect if Settlement Is Not Approved. This Agreement was entered into only for
6
purposes of settlement, subject to and without waiver of the Parties ' respective rights. If the Court
7
does not enter the Preliminary Approval Order or does not grant Final Approval, or if the Final
8
Approval and Judgment is vacated, overturned, reversed, or rendered void as a result of appeal, the
9
Parties shall be restored to their respective positions immediately preceding execution of this
10
Agreement.
11
VITI.
MISCELLANEOUS PROVISIONS
12
8.1
The Parties agree that the recitals are contractual in nature and form a material part
13
ofthis Agreement.
14
8.2
The Parties' counsel shall use their best efforts to cause the Court to enter the
15
Preliminary Approval Order of this Agreement and Agreement as promptly as practicable, to take
16
all steps contemplated by this Agreement to effectuate the settlement on the stated terms and
17
conditions, and to obtain Final Approval ofthis Agreement.
18
19
20
8.3
This Agreement is intended to and shall be governed by the laws of the State of
California, without regard to conflicts of law principles.
8.4
This Agreement and its accompanying exhibits set forth the entire understanding of
21
the Parties. No change or termination of this Agreement shall be effective unless in writing and
22
signed by Plaintiffs Counsel and Ross ' s Counsel. No extrinsic evidence or parol evidence shall be
23
used to interpret this Agreement.
24
8.5
All of the Parties warrant and represent that they are agreeing to the terms of this
25
Agreement based upon the legal advice of their respective attorneys, that they have been afforded
26
the opportunity to discuss the contents of this Agreement with their attorneys and that the terms
27
and conditions of this document are fully understood and voluntarily accepted .
28
I 023124 76. I
[X ' UMEN T PII.EI'AII.ElJ
")(
ON R£CYCU:IJ PAI'ER
- 17STfP ULATION OF SETTL EM EN T
Case No.: 3:18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 29 of 46
8.6
The waiver by any party of a breach of any term of this Agreement shall not operate
2
or be construed as a waiver of any subsequent breach by any party. The failure of a party to insist
3
upon strict adherence to any provision ofthe Agreement shall not constitute a waiver or thereafter
4
deprive such party of the right to insist upon strict adherence .
5
6
7
8.7
The headings in this Agreement are inserted merely for the purpose of convenience
and shall not affect the meaning or interpretation of this document.
8.8
This Agreement may be executed by facsimile signature and in counterparts, each
8
of which shall be deemed an original and all of which, when taken together, shall constitute one
9
and the same instrument. The date of execution shall be the latest date on which any party signs the
10
Agreement. This Agreement has been negotiated among and drafted by Class Counsel and Defense
11
Counsel. Plaintiff, Plaintiffs Counsel, Settlement Class Members, and Defendant shall not be
12
deemed to be the drafter of this Agreement or of any particular provision, nor shall they argue that
13
any particular provision should be construed against its drafter or otherwise resort to the contra
14
proferentem canon of construction . Accordingly, this Agreement should not be construed in favor
15
of or against one Party as to the drafter, and the Parties agree that the provisions of California Civil
16
Code § 1654 and common law principles of construing ambiguities against the drafter shall have
17
no application. All Parties agree that counsel for the Parties drafted thi s Agreement during extensive
18
arm ' s-length negotiations.
19
20
21
8.9
Any disagreement and/or action to enforce this Agreement shall be commenced and
maintained only in the Court in which this Litigation is pending.
8.10
The Parties reserve the right, subject to the Court ' s approval , to agree to any
22
reasonable extensions of time that might be necessary to carry out any of the provisions of this
23
Agreement.
24
8.11
In the event any one of the provisions contained in this Agreement shall for any
25
reason be held to be invalid, illegal , or unenforceable in any respect, such invalidity, illegality, or
26
unenforceability shall not affect other provisions ifDefense Counsel and Class Counsel, on behalf
27
28
I 0231 2476.1
[)( lCUMt-.NT PKEI'ARFJ)
ON REL"YCI.£1) P AI'f.J(
- I 8STIP ULATION OF SETTLEMENT
Case No.: 3: 18-cv-02671-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 30 of 46
DocuSign Envelope 10: C6A44298-6685-4C53-845A-971843234C28
I
ofthe Parties, mutually elect to proceed as if such invalid, illegal, or unenforceable provision had
2
never been included in this Agreement.
3
4
8.12
upon
and
inure to the benefit of the respective
heirs, successors and assigns of the Parties.
5
6
This Agreement shall be binding
8. 13
The Parties intend for this Agreement to be a complete and final resolution of all
disputes between them with respect to the Litigation .
7
TN WITNESS HEREOF the undersigned, being duly authorized, have caused this
8
Agreement to be executed on the dates shown below and agree that it shall take effect on the first
9
date it has been executed by all of the undersigned.
10
11
12
DocuSigned
~o~iiAi~ Atbm~tA-
13
14
Dated: 5/6/2021
By:
by:
A622C43DC6924 75 ...
DOMINIQUE MORRISON
15
16
17
Dated:
18
By: _ _ __ _ _ _ _ _ _ _ __
ROSS STORES, TNC.
19
Printed Name:
20
Title:
21
22
Dated:
NORTON ROSE FULBRIGHT US LLP
23
24
By_ _ _ _ _ _ _ _ _ _ _ _ _ __
Jeffrey Margulies
Attorneys for Defendant
ROSS STORES, INC.
25
26
27
28
I 023 124 76. I
DllCUMEN T PII.EI'AI.:i:])
ON RE<"YCI.f.D PAI'f..K
- 19STIPULAT ION OF SETT LEMENT
Case No.: 3: I 8-cv-0267 1-YGR
Case 4:18-cv-02671-YGR Document 113 Filed 08/27/21 Page 31 of 46
of the Parties, mutually elect to
2
proceed
as if such
invalid, illegal, or unenforceable provision had
never been included in this Agreement.
3
8.12
This Agreement shall be binding upon and inure to the benefit of the respective
4 II heirs, successors and assigns of the Parties.
8.13
5
6
The Parties intend for this Agreement to be a complete and final resolution of all
disputes between them with respect to the Litigation .
7
IN WJTNESS HEREOF the undersigned, being duly authorized, have caused this
8
Agreement to be executed on the dates shown below and agree that it shall take effect on the first
9
date it has been executed by all of the undersigned.
10
1l
12
13
14
By:_ _ _ _ _ _ _ _ _ __
Dated :
DOMINIQUE MORRISON
15
16
17
Dated
n0,\ b ':)_ c:f;).l
1
18
0
By:.-L..:::I.t..-.:-_r_:.._:::_:~-++----
ROSS STORES, INC . i
19
Pri.nted
20
Title:
Name:~. o/ · W~p$~1;
,
1 c(port~&R.,da) ~~(P 'ij-
21
Dated: May 6, 2021
22
23
&(Oif
NORTON ROSE FULBRIGHT US LLP
Jeffrey B•
•
By Margu IleS -
24
25
Se)'A
{}(
Digitally signed by Jeffrey 8. Marqulirs
DN:cn:~rttyB.Margulif!s,o--Norton
~ Fulbnght US LlP, ou,
em.Jil:jeff.margutirs@nof'1onrosefolbfig
ht.com, c=US
~
""''"l0li.OS.061Hm.
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