Brazil et al v. Dell Inc.

Filing 327

FINAL ORDER AND JUDGMENT by Judge Whyte, granting 320 Motion for Attorney Fees (rmwlc2, COURT STAFF) (Filed on 10/28/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CHAD BRAZIL and STEVEN SEICK,
individually and on behalf of all others
similarly situated,

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FINAL ORDER AND JUDGMENT
Plaintiffs,

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Case No. C-07-01700 RMW

v.
DELL INC. and Does 1-10,
Defendant.

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Having considered all motions, memoranda and submissions made in connection with the

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request for final approval of the Settlement Agreement and Release, previously filed with the
Court on May 27, 2011 (Doc. No. 310-1), together with all of its Exhibits attached thereto
(“Settlement Agreement” or “Settlement”), and the record of these proceedings, the
representations, argument, and recommendation of counsel for the moving parties, and the
requirements of law;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

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945619.3

-1FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW

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1.

The definitions and terms set forth in the Settlement Agreement are hereby

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adopted and incorporated into this Final Order and Judgment.

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Agreement as previously filed with the Court is attached hereto as Exhibit “A.”

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2.

The Court has jurisdiction over the subject matter and parties to this proceeding

pursuant to 28 U.S.C. § 1332. Venue is proper in this district.

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A copy of the Settlement

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The Court has carefully reviewed the Settlement Agreement as well as the files,

records, and proceedings to date in this matter.

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4.

The Settlement is hereby approved as fair, reasonable, and adequate.

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5.

The Plaintiffs, by and through their counsel, have investigated the facts and law

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related to the matters alleged in their Complaint, including extensive pre-trial discovery, motion

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practice, class certification, and an evaluation of the risks associated with continued litigation,

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trial, and/or appeal. The settlement was reached as a result of arms-length negotiations between

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Class Counsel and Counsel for Dell, Inc. (“Dell”), including a full-day mediation session with a

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respected mediator, Mr. Randall Wulff. The Settlement confers substantial benefits upon the

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Settlement Class, particularly in light of the damages that Plaintiffs and Class Counsel believe are

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recoverable at trial, without the costs, uncertainty, delays, and other risks associated with

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continued litigation, trial, and/or appeal.

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6.

The Settlement Class is in substance the same class of consumers that the Court

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certified in its Order Granting In Part and Denying In Part Plaintiffs’ Motion for Class

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Certification (Docket No. 306) and consists of:

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“All individuals and entities in California who purchased a Dellbranded product identified below and advertised with an instant-off
discount online from Dell’s Home & Home Office segment during
the time frame listed for that product:

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Form
Desktop
Desktop
Desktop
Desktop
Desktop
Desktop

Model
Dimension B110
Dimension C521
Dimension E310
Dimension E510
Dimension E520
Dimension E521

Start Date
November 1, 2005
September 1, 2006
November 1, 2005
November 1, 2005
September 1, 2006
September 1, 2006

End Date
November 30, 2006
May 5, 2007
October 31, 2006
October 31, 2006
May 3, 2007
May 5, 2007

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945619.3

-2FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW

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Desktop
Desktop
Desktop
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook
Notebook

Dimension E521n
Precision 670
Precision 690
Inspiron 14(1420)
Inspiron 1420n
Inspiron 1501
Inspiron 1520
Inspiron 1521
Inspiron 1720
Inspiron 1721
Inspiron 2200
Inspiron 6000
Inspiron 600m
Inspiron 700m
Inspiron 710m
Inspiron 9300
Inspiron B120
Inspiron B130
Inspiron E1405
Inspiron E1505
Inspiron E1705

September 1, 2006
November 1, 2005
April 1, 2007
May 1, 2007
May 1, 2007
September 1, 2006
June 1, 2007
June 1, 2007
June 1, 2007
June 1, 2007
October 1, 2005
November 1, 2005
November 1, 2005
November 1, 2005
February 1, 2006
November 1, 2005
November 1, 2005
December 1, 2005
March 1, 2006
March 1, 2006
March 1, 2006

June 25, 2007
June 30, 2006
January 31, 2008
June 25, 2007
June 26, 2007
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007
January 31, 2006
March 31, 2006
March 31, 2006
March 31, 2006
August 31, 2006
March 31, 2006
May 31, 2006
January 31, 2007
June 28, 2007
June 28, 2007
June 28, 2007

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Individuals and entities who purchased an above-listed product on a
listed date without an instant-off discount (e.g. those who paid the
full list price, were eligible for or received a mail-in-rebate, or
received advertised free hardware or upgraded hardware included in
a purchase price without an instant off) are not part of the
Settlement Class. Excluded from the Settlement Class are:
(1) Dell, any entity in which Dell has a controlling interest, and its
legal representatives, officers, directors, employees, assigns and
successors; (2) retailers, wholesalers, and other individuals or
entities that purchased listed Dell products for resale; (3) the United
States government and any agency or instrumentality thereof;
(4) the judge to whom this case is assigned and any member of the
judge’s immediate family; and (5) persons who timely and validly
opt to exclude themselves from the Settlement Class.”

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7.

The Court finds that the prerequisites for a class action under Rules 23(a)

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and(b)(3) of the Federal Rules of Civil Procedure have been satisfied for the same reasons

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previously set forth in the Order Granting In Part and Denying In Part Plaintiffs’ Motion for Class

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Certification (Docket No. 306).

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945619.3

-3FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW

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The Court continues the appointment of Lieff Cabraser Heimann & Bernstein,

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LLP (lawyers Michael W. Sobol, Rachel Geman, and Roger Heller) and the Law Offices of

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Angelo Salvatore Parise (Daniel M. Hattis) as Class Counsel. For purposes of these Settlement

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approval proceedings, the Court finds that these firms are competent and capable of exercising

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their responsibilities as Class Counsel.

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Representatives.

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10.

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The Court reconfirms the appointment of Chad Brazil and Steven Seick as Class

The Court reconfirms the appointment of Analytics, Incorporated as the

independent settlement administrator.

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The Court finds that the Settlement Notice and Notice Plan as carried out by the

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Administrator complied with this Court’s Order Granting Preliminary Approval of Class action

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Settlement (Doc. No. 318) and satisfied the requirements of Federal Rule of Civil Procedure 23(e)

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and due process. As set forth in the declaration of the independent settlement administrator, the

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Settlement Class received direct Notice through email and/or U.S. Mail, as described in the

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Settlement Agreement, and additional notice was provided through publication notice and Dell’s

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website and the case-specific website. See Declaration of Jonathan Reid (Doc. No. 323-1).

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12.

The Notice disseminated to the Settlement Class constitutes due, adequate and

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sufficient notice to all persons entitled to receive notice, and it meets the requirements of due

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process in Rule 23 of the Federal Rules of Civil Procedure. The Court finds that the matter of

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dissemination of the Notice complies with Fed. R. Civ. P. Rule 23(e) as it is a reasonable manner

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of providing notice to those Settlement Class members who would be bound by the Settlement.

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The Court also finds that the Notice complies with Rule 23(c)(2) as it is also the best practicable

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notice under the circumstances, provides individual notice to all Class Members who can be

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identified through a reasonable effort, and is reasonably calculated, under all the circumstances,

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to apprise the members of the Settlement Class of the pendency of this action, the terms of the

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Settlement, and the right to object to the Settlement or opt out.

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Class Members who do not timely submit a claim per paragraphs 5 and 6 of

section I of the Settlement Agreement will not be eligible to participate in the Settlement.
945619.3

-4FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW

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The members of the Settlement Class identified on Exhibit “B” attached hereto

have filed timely requests to be excluded from the Settlement (“Excluded Class Members”).

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Except for Excluded Class Members, upon the Effective Date of the Settlement

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Agreement, all members of the Settlement Class, their heirs, executors, administrators,

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representatives, agents, attorneys, partners, successors, predecessors and assigns and all those

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acting or purporting to act on their behalf, will be bound by this Judgment, and will be

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conclusively deemed to have fully, finally and forever settled, released and discharged the Dell

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Releasees of and from all Released Claims as provided in the Settlement Agreement, and are

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enjoined from bringing, joining or continuing to prosecute against the Released Parties any

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Released Claims.

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16.

Neither this Order, nor any aspect of the Settlement Agreement, is to be construed

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or deemed as an admission of liability, culpability, negligence, or wrongdoing on the part of Dell

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Inc. Dell Inc. specifically denies any liability. Each of the Parties to the Settlement entered into

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the Settlement Agreement with the intention to avoid further disputes and litigations with the

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attendant inconvenience and expenses.

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17.

The Court finds that defendant Dell Inc. fully complied with the notice provisions

set forth under the Class Action Fairness Act, 28 U.S.C. § 1715.

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18.

The Court hereby approves the Settlement Agreement, all terms of which are

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incorporated herein by reference, as being fair, adequate, and reasonable and in the best interests

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of the Settlement Class, satisfying Federal Rule of Civil Procedure 23(e). The Settlement of this

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case on the terms and conditions set forth in the Settlement Agreement is approved and confirmed

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in all respects as fair, reasonable and adequate under Federal Rule of Civil Procedure 23, and in

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the best interest of the Settlement Class and Settlement Class Members, especially in light of the

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benefits to the Settlement Class and the costs and risks associated with the complex proceedings

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necessary to achieve a favorable result at trial and through any post-judgment appeals.

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Class Counsel and defendant Dell, Inc. are directed to consummate the Settlement

in accordance with the Settlement Agreement.

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945619.3

-5FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW

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20.

Without further order of the Court, the Parties may agree to reasonable extensions

of the time to carry out any provisions of the Settlement Agreement.

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Without affecting the finality of this Order, or the judgment to be entered pursuant

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hereto, in any way, this Court shall retain jurisdiction over the Parties to the Settlement

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Agreement to administer, supervise, construe and enforce the Settlement in accordance with its

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terms for the mutual benefit of the parties.

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Pursuant to Fed. R. Civ. P. 54(b) and the Orders referenced above, and under the terms of

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the Settlement Agreement approved by the Court, the Court hereby enters JUDGMENT

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dismissing with prejudice all claims in the Third Amended Complaint. IT IS SO ORDERED

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AND ADJUDGED this 28th day of October, 2011

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_____________________________________
The Honorable Ronald M. Whyte
United States District Court Judge

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-6FINAL ORDER AND JUDGMENT

CASE NO. C-07-01700 RMW