Dixon v. Cost Plus, Inc. et al

Filing 93

Order by Hon. Lucy H. Koh granting 90 Motion for Preliminary Approval of Settlement and Modified Scheduling Order.(lhklc3, COURT STAFF) (Filed on 7/18/2013)

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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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IRENE DIXON, On Behalf of Herself and All
13 Others Similarly Situated
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Plaintiff,

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16 COST PLUS, INC., JOSEPH H. COULOMBE,
CLIFFORD J. EINSTEIN, BARRY J. FELD,
17 MARK R. GENENDER, DANNY W. GURR,
JOHN C. POUND, KIM D. ROBBINS,
18 FREDRIC M. ROBERTS, KENNETH T.
STEVENS, BED BATH & BEYOND INC.,
19 and BLUE CORAL ACQUISITION CORP.,
Defendants.
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CASE NO. 5:12-CV-02721-LHK
CLASS ACTION
[PROPOSED] SCHEDULING ORDER
Hon: Lucy H. Koh
Date action filed: May 25, 2012
AS MODIFIED

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[PROPOSED] SCHEDULING ORDER

CASE NO. 5:12-CV-02721-LHK

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[PROPOSED] SCHEDULING ORDER

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Before the Court is the Parties’ unopposed Joint Motion for Preliminary Approval of the
Stipulation of Settlement dated February 11, 2013 (“Stipulation”), pursuant to Rule 23 of the

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Federal Rules of Civil Procedure. See Mot. for Prelim. Approval, ECF No. 90. The Stipulation is
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incorporated herein by reference and, together with the accompanying documents and the
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Memorandum of Understanding (the “MOU”) executed by the Parties on July 5, 2012, sets forth

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the terms and conditions for the Settlement and for a judgment dismissing Plaintiffs’ claims with
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prejudice upon the terms and conditions set forth therein. The Parties request entry of an Order:
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“(i) preliminarily approving the Settlement set forth in the Stipulation; (ii) certifying the Class;
(iii) authorizing the form and manner of notice to be sent to the Class;” and “(iv) scheduling a
hearing to consider final approval of the Settlement.” Mot. for Prelim. Approval at 1.

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Review of a proposed settlement generally consists of two stages. First, a court may grant
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preliminary approval and direct notice to the class if the settlement: “(1) appears to be the product

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of serious, informed, non-collusive negotiations; (2) has no obvious deficiencies; (3) does not
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improperly grant preferential treatment to class representatives or segments of the class; and (4)
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falls within the range of possible approval.” Harris v. Vector Mktg. Corp., No. 08-5198, 2011 WL
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1627973, at *7 (N.D. Cal. Apr. 29, 2011). Second, a court conducts a fairness hearing to determine
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whether the proposed settlement is “fair, reasonable and adequate” pursuant to Rule 23(e)(2) of the

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Federal Rules of Civil Procedure. Fed. R. Civ. P. 23(e)(2); see Armstrong v. Bd. of Sch. Dirs., 616
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F.2d 305, 314 (7th Cir. 1980) (same), overruled on other grounds by Felzen v. Andreas, 134 F.3d
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873 (7th Cir. 1998).
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Having considered the submissions of the parties and the relevant law, and for good cause
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shown, the Court hereby GRANTS the Parties’ Motion for Preliminary Approval of Settlement.

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IT IS HEREBY ORDERED this 18th day of July, 2013, that:
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A.

Settlement Class

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1.

The Court conditionally grants the motion for the Federal Action to be maintained

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and proceed as a class action pursuant to Rules 23(a), 23(b)(1) and 23(b)(2) of the Federal Rules of
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Civil Procedure, without opt-out rights and for settlement purposes only, subject to final approval
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[PROPOSED] SCHEDULING ORDER

CASE NO. 5:12-CV-02721-LHK

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after the final fairness hearing (“the Hearing”). Plaintiff Gary Ogurkiewicz (“Dr. Ogurkiewicz”)
shall conditionally represent the settlement class, and the class shall conditionally consist of any
and all record and beneficial holders of Cost Plus stock, including any and all of their respective
successors in interest, predecessors, representatives, trustees, executors, administrators, heirs,
assigns or transferees, immediate and remote, and any person or entity acting for or on behalf of, or
claiming under, any of them, and each of them, who held any such Cost Plus stock at any time
between and including May 9, 2012, and June 29, 2012, but excluding the specifically named
Defendants (the “Class”).
B.

Final Approval Hearing
2.

The Hearing shall be held before the Honorable Lucy H. Koh, United States District

Court for the Northern District of California, San Jose Courthouse, Courtroom 8, 4th Floor, 280
South 1st Street, San Jose, California 95113, on December 5, 2013, at 1:30 p.m., to determine the
fairness, reasonableness and adequacy of the settlement and for the purposes of determining:
(a) whether the Court should unconditionally certify the case as a class action, without opt-out
rights and for settlement purposes only, pursuant to Rules 23(a), 23(b)(1) and 23(b)(2) of the
Federal Rules of Civil Procedure, on behalf of any and all record and beneficial holders of Cost
Plus stock, including any and all of their respective successors in interest, predecessors,
representatives, trustees, executors, administrators, heirs, assigns or transferees, immediate and
remote, and any person or entity acting for or on behalf of, or claiming under, any of them, and
each of them, who held any such Cost Plus stock at any time between and including May 9, 2012,
and June 29, 2012, but excluding the specifically named Defendants; (b) whether Dr. Ogurkiewicz
may be designated as class representative with the law firm of Pomerantz Grossman Hufford
Dahlstrom & Gross LLP as Lead Counsel for the Class for the settlement of all claims in the
Actions, including those claims brought under Section 14(e) of the Williams Act (15 U.S.C.A.
§§ 78n, 78aa), and whether Dr. Ogurkiewicz and Pomerantz Grossman Hufford Dahlstrom &
Gross LLP have adequately represented the interests of the Class; (c) whether the Court should
approve the Settlement pursuant to the Stipulation; (d) whether the Court should enter the
Judgment providing for the dismissal of the claims asserted in the Actions and the Released Claims
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[PROPOSED] SCHEDULING ORDER

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on the merits and with prejudice as against the named Plaintiffs and all members of the Class and
releasing the Released Parties from the Released Claims and also providing for the dismissal of the
Defendants’ Released Claims on the merits and with prejudice as against Defendants and releasing
Plaintiffs, Plaintiffs’ Counsel, Dixon, Dixon’s counsel, and every member of the Class from the
Defendants’ Released Claims; (e) whether the Court should grant the application of Plaintiffs’
Counsel for an award of attorneys’ fees and expenses to be paid by Cost Plus or its successor-ininterest; (f) whether the Court should grant the application of an incentive award for Dr.
Ogurkiewicz; and (g) such other matters as may properly come before the Court. The Court may
adjourn the Hearing (including consideration of the application of Plaintiffs’ Counsel for an award
of attorneys’ fees and expenses and/or an incentive award for Dr. Ogurkiewicz) without further
notice to the Class other than by announcement at the Hearing or any adjournment thereof.
C.

Notice
3.

The Court approves, in form and content, the Notice of Pendency of Class Action,

Proposed Settlement of Class Action, Settlement Hearing and Right to Appear (the “Notice”)
substantially in the form attached as Exhibit C to the Stipulation, and finds that the mailing of the
Notice meets the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process,
is the best notice practicable under the circumstances, and shall constitute due and sufficient notice
to all persons entitled thereto.
4.

Within ten (10) business days after the date of this Order, Cost Plus or its successor-

in-interest shall cause a copy of the Notice to be mailed by first-class mail to each person who was
shown on the stock records maintained by or on behalf of Cost Plus to be or to have been a record
owner of any shares of Cost Plus common stock at any time between and including May 9, 2012,
and June 29, 2012, at his, her, or its last known address appearing on the stock records maintained
by or on behalf of Cost Plus. All record holders who were not also the beneficial owners of the
shares of Cost Plus’ common stock held by them of record shall be requested to forward the Notice
to the beneficial owners of those shares. Cost Plus or its successor-in-interest shall use reasonable
efforts to give notice to beneficial owners of Cost Plus’ stock by making additional copies of the
Notice available to any record holder requesting the same for the purpose of distribution to
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beneficial owners.

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of the Settlement, and Plaintiffs’ Counsel shall file their application for an award of attorneys’ fees
and expenses and an incentive award for Dr. Ogurkiewicz, including any supporting affidavits.

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No later than November 21, 2013, the Parties shall file any opening briefs in support

6.

At or before the Hearing provided for in Paragraph 2 of this Order, Cost Plus or its

successor-in-interest shall file proof, by affidavit, of such mailings provided for in Paragraph 4 of
this Order.
D.

Objections
7.

Any member of the Class who objects to the certification of the Class, the

Settlement of Plaintiffs’ claims in the Actions as set forth in the Stipulation, the Judgment to be
entered in the Federal Action, and/or Plaintiffs’ Counsel’s application for fees and expenses and/or
an incentive award for Dr. Ogurkiewicz, or otherwise wishes to be heard, may appear personally or
by counsel at the Hearing and present evidence or argument that may be proper and relevant;
provided, however, that no member of the Class may be heard and no papers or briefs submitted by
or on behalf of any member of the Class shall be received and considered, except by Order of the
Court for good cause shown, unless, no later than November 27, 2013, copies of (a) a written
notice of intention to appear, identifying the name, address, and telephone number of the objector
and, if represented, their counsel; (b) proof of membership in the Class; (c) a written detailed
statement of such person’s specific objections to any matter before the Court; (d) a written
statement certifying that the objector is a member of the Class; (e) the grounds for such objections
and any reasons for such person’s desiring to appear and be heard; and (f) all documents and
writings such person desires this Court to consider, shall be served electronically or by hand or
overnight mail upon the following counsel:

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Gustavo F. Bruckner
Pomerantz Grossman Hufford Dahlstrom & Gross LLP
Attn: Cost Plus Settlement
600 Third Avenue, 20th Floor
New York, NY 10016

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Evan Smith
Brodsky & Smith, LLC
Attn: Cost Plus Settlement
9595 Wilshire Boulevard
Suite 900
Beverly Hills, CA 90212

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Eric S. Waxman
Skadden, Arps, Slate, Meagher & Flom LLP
Attn: Cost Plus Settlement
300 South Grand Avenue
Suite 3400
Los Angeles, CA 90071

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Michael Firestein
Proskauer Rose LLP
Attn: Cost Plus Settlement
2049 Century Park East
Los Angeles, CA 90067-3206

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Mr. Bruckner or Mr. Smith shall immediately furnish all objections as they are received to
Defendants’ counsel and will file all objections with the Court no later than November 27, 2013.
Unless the Court otherwise directs, no member of the Class shall be entitled to object to the
Settlement, or to the judgment to be entered herein, or to the award of attorneys’ fees and expenses
to Plaintiffs’ Counsel and/or an incentive award for Dr. Ogurkiewicz, or otherwise to be heard,
except by serving and filing written objections as described above. Any person who fails to object
in the manner provided above shall be deemed to have waived such objection and shall forever be
barred from making any such objection in the Federal Action or in any other action or proceeding.

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8.

If the Court approves the Settlement provided for in the Stipulation following the

Hearing, judgment shall be entered substantially in the form attached as Exhibit A to the
Stipulation.
E.

Further Matters
9.

The Stipulation and the Settlement are subject to and expressly conditioned upon:

(a) the entry by the Court of the Judgment substantially in the form attached to the Stipulation as
Exhibit A, (b) consummation of the Merger, and (c) Final Court Approval of the Settlement;
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provided, however, that neither the Court’s approval of the Settlement nor Final Court Approval of
the Settlement is contingent on approval of the Fee Application or awarding the Fee Award. If the
Court fails to approve the Settlement in accordance with the terms described in the Stipulation or
the MOU, then any orders that may have been entered by any court in connection therewith shall
be null and void and of no force and effect, unless counsel for each of the Parties to the Stipulation,
within ten (10) business days from any such terminating event, agrees in writing with counsel for
the other Parties to the Stipulation to proceed with the Stipulation and Settlement, including only
with such modifications, if any, as to which all other Parties in their sole judgment and discretion
may agree. In the event the Stipulation is terminated pursuant to its terms or by any Party, it shall
not be deemed to prejudice in any way the position of any Party with respect to this litigation or
any other litigation or proceeding. In such event, the Parties to the Stipulation shall be deemed to
have reverted to their respective litigation status immediately prior to the execution of the MOU,
and they shall proceed in all respects as if the MOU and the Stipulation had not been executed and
any related orders had not been entered, and neither the existence of the Stipulation or the MOU
nor their respective contents shall be admissible in evidence or shall be referred to for any purpose
in this litigation or in any other litigation or proceeding.
10.

The Court will retain jurisdiction over the Actions to consider all further

applications arising out of or connected with the proposed Settlement.
11.

Pending final determination of whether the Settlement should be approved,

Plaintiffs and any member of the Class shall not institute, commence or prosecute any claims
covered by the Settlement, including Released Claims or any claim by any member of the Class or
any attorney for any member of the Class seeking a fee based on any supplemental disclosures
made by Cost Plus other than in connection with the proceedings set forth in Paragraph 14 of the
Stipulation. In addition, all discovery and other proceedings in the Actions, other than such
proceedings as may be necessary to carry out the terms and conditions of the Settlement embodied
in the Stipulation, are hereby stayed and suspended until further order of this Court.
12. The following schedule is set:

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1. Last day to mail the Notice by first-class mail:

August 1, 2013

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2. Last day for counsel to file papers in support of the
2 Settlement, apply for attorneys’ fees and expenses, and apply
3 for an incentive award:
4 3. Last day for counsel to receive objections from class
members and file the objections with the Court:
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4. Final Approval Hearing:
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IT IS SO ORDERED.
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November 21, 2013

November 27, 2013
December 5, 2013, at 1:30 p.m.

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Dated:

July 18, 2013

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The Honorable Lucy H. Koh
United States District Court

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[PROPOSED] SCHEDULING ORDER

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