Kellgren v. Petco Animal Supplies, Inc. et al

Filing 289

ORDER granting 280 Plaintiffs' Motion for Preliminary Approval of Settlement, Preliminary Certification of A Settlement Class, Appointing Class Representatives and Claims Administrator, Approving Notice and Setting Final Fairness Hearing. Final Approval and Fairness Hearing set for 2/12/2018 11:00 AM before Judge M. James Lorenz. Signed by Judge M. James Lorenz on 9/27/2017. (sjt)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ERIK KELLGREN, THERESE
KOPCHINSKI, and CHRISTINE LEE,
Individually and on Behalf of All Other
Persons Similarly Situated,
Plaintiffs,

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v.
PETCO ANIMAL SUPPLIES, INC.;
PETCO HOLDINGS, INC.; and
DOES 1 to 100, inclusive,
Defendants.

Case No. 3:13-cv-00644-L-KSC
ORDER CONDITIONALLY
GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY
APPROVAL OF SETTLEMENT,
PRELIMINARY
CERTIFICATION OF A
SETTLEMENT CLASS,
APPOINTING CLASS
REPRESENTATIVES AND
CLAIMS ADMINISTRATOR,
AND APPROVING NOTICE AND
SETTING FINAL FAIRNESS
HEARING

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District Judge:
Courtroom:

Hon. M. James Lorenz
5B (Schwartz)

Magistrate
Judge:

Karen S. Crawford

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MARIA COTE, Individually and on
Behalf of All Other Persons Similarly
Situated,

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Plaintiffs,

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PETCO ANIMAL SUPPLIES, INC.;
PETCO HOLDINGS, INC.,

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Transferred to SDCA: May 4, 2017

Defendants.
DESERIE MICHEL, on behalf of herself
and all others similarly situated,
Plaintiffs,

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Complaint Filed: January 31, 2017
(D. Mass.)

v.

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Case No. 3:17-cv-00898-L-KSC

v.
PETCO ANIMAL SUPPLIES, INC. and
PETCO HOLDINGS, INC.,

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Case No. 3:17-cv-01092-L-KSC
Complaint Filed: April 14, 2016
(E.D.N.Y.)
Transferred to SDCA: May 30, 2017

Defendants.

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HEATHER VARGAS, Individually and
on Behalf of All Other Persons Similarly
Situated,
Plaintiffs,

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PETCO ANIMAL SUPPLIES, INC.;
PETCO HOLDINGS, INC.,

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Defendants.

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Complaint Filed: April 6, 2017 (D.N.J.)
Transferred to SDCA: August 3, 2017

v.

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Case No. 3:17-cv-01561-L-KSC

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JAMES HECKER, on behalf of himself
and all others similarly situated,

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Plaintiffs,
v.

Case No. 3:17-cv-01169-L-KSC
Complaint Filed: November 23, 2016
(N.D. Ill.)
Transferred to SDCA: June 7, 2017

PETCO ANIMAL SUPPLIES, INC.,
PETCO ANIMAL SUPPLIES STORES,
INC., PETCO HOLDINGS, INC. LLC,
and DOES 1 to 100, inclusive,
Defendants.

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This matter comes before the Court on Plaintiffs’ Motion For Preliminary

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Approval of Settlement, Preliminary Certification of a Settlement Class, Appointment

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of Class Representatives and Claims Administrator, Approval of Notice and Final

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Fairness Hearing (the “Preliminary Approval Motion”) in the above-captioned

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consolidated cases, and after review and consideration of the Parties’ Settlement

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Agreement (the “Settlement Agreement”), the papers in support of the Preliminary

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Approval Motion, including the Declaration of Seth R. Lesser and its accompanying

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exhibits, IT IS HEREBY ORDERED as follows:

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1.

The proposed Settlement, as embodied in the terms of the Settlement

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Agreement, is hereby preliminarily approved as an agreement that appears to be a fair,

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reasonable, and adequate settlement of this case in the best interests of the Settlement

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Class Members, including the individuals who filed consents to join the conditionally

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certified Kellgren collective action. All defined terms in the Settlement Agreement

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shall have the same meaning in this Order.

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2.

Solely for the purpose of Settlement, the Court hereby preliminarily

certifies a Settlement Class composed of the following individuals:
 Individuals who filed with the Court consents to join the Kellgren action and
who, as of the date of entry of the Preliminary Approval Order, had not
withdrawn their consent or had their claims dismissed;
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 Individuals who worked in Colorado as an Assistant Manager (“AM”) for Petco
at any time between January 15, 2014 and June 18, 2016;
 Individuals who worked in Illinois as an AM for Petco at any time between
November 23, 2013 and June 18, 2016;
 Individuals who worked in Massachusetts as an AM for Petco at any time
between January 31, 2014 and June 18, 2016;
 Individuals who worked in New Jersey as an AM for Petco at any time between
April 6, 2015 and June 18, 2016;
 Individuals who worked in New York as an AM for Petco at any time between
April 14, 2010 and June 18, 2016;
 Individuals who worked in Oregon as an AM for Petco at any time between
October 21, 2014 and June 18, 2016; and
 Individuals who worked in Pennsylvania as an AM for Petco at any time
between July 14, 2014 and June 18, 2016.
3.

If the Settlement does not become final for any reason, the fact that

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Defendants did not oppose the certification of a Settlement Class shall have no bearing

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on, and will not be admissible in connection with, the issue of whether a class action is

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properly certified in a non-settlement context. The Court’s findings are for purposes of

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preliminarily certifying a Settlement Class and will not have any claim, issue, or

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evidentiary preclusion or estoppel effect in any other action against Defendants and

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their related entities (as defined in the Settlement Agreement) or in this litigation if the

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Settlement is not finally approved.

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4.

The Court finds that certification of the Settlement Class listed above,

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solely for purposes of Settlement, is appropriate in that: (a) the Settlement Class

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Members are so numerous that joinder of all Class Members is impracticable; (b) there

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are questions of law and fact common to the Settlement Class which predominate over

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any individual questions; (c) Plaintiffs’ claims are typical of the claims of the Settlement

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Class; (d) Plaintiffs and Plaintiffs’ Counsel have fairly and adequately represented and

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protected the interests of the Settlement Class; and (e) a class action settlement is

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superior to other available methods for the fair and efficient adjudication of the

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controversy.
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5.

The Court hereby preliminarily appoints Plaintiffs Erik Kellgren, Maria

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Cote, James Hecker, Therese Kopchinski, Christine Lee, Deserie Michel, Heather

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Vargas, Robert Wagner as Representatives of the Settlement Class, and finds that they

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meet the requirements of Rule 23(a)(4).

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6.

In accordance with Rules 23(a)(4) and (g), the Court approves Seth Lesser,

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Fran Rudich, Michael Reed, Christopher Timmel, Marc Hepworth, Charles Gershbaum,

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David Roth, and Rebecca Predovan as Settlement Class Counsel for all of the

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Settlement Class. Settlement Class Counsel is authorized to act on behalf of class

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members with respect to the acts or consents under the Settlement, and such other acts

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reasonably necessary to consummate the Settlement. Any class member may enter an

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appearance through counsel of his or her choosing and at his or her own expense. Any

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Class Member who does not enter an appearance through counsel or appear on his or

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her own behalf will be represented by Settlement Class Counsel.

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7.

The Court finds that the plan for providing notice to the Settlement Class

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set forth in Plaintiffs’ Motion for Preliminary Approval is the best notice practicable

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under the circumstances and satisfies the requirements of due process and Rule 23. That

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plan is approved and adopted.

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8.

Conditional on adoption of the change noted in paragraph 9 below, the

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Court finds that the Notice of Proposed Settlement and the Claim Form and Consent to

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Join FLSA Action (“Class Notice”), attached as Exhibit 3 to the Settlement Agreement,

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complies with Rule 23(c)(2) and Rule 23(e), and is appropriate as part of the plan for

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issuing notice set forth in the Settlement, and thus is conditionally approved and

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adopted.

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9.

Section 8 of the Notice of Proposed Settlement (titled “How Can You

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Object?”) suggests that one who submits a claim form cannot object. This appears

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inconsistent with the terms of the Settlement, which provide only that one who opts out

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cannot object and appears silent as to what effect, if any, the submission of a claim form

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has upon the right to object. Furthermore, it would unduly discourage objections if the
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class thinks that they do so at the cost of both not receiving a settlement payment AND

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releasing their rights to sue. Approval is therefore conditional on altering Section 8 of

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the Notice of Proposed Settlement such that it is plain and clear that a class member (1)

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only loses his or her rights to timely object by submitting an opt-out request and (2)

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does not lose his or her right to timely object by submitting a claim. Plaintiffs shall

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submit an agreed upon, revised Notice of Proposed Settlement for Court approval

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within 10 days of the entry of this order. The Court will provide expedited review of

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the revised notice. Failure to comply with this paragraph will result in denial of

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preliminary approval.

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10.

The Court appoints JND Legal Administration as the Claims

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Administrator for this settlement. The fees and expenses of the Claims Administrator

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will be paid from the Settlement Sum as provided for in the Settlement Agreement.

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11.

To effectuate the Settlement, the Court hereby establishes the following

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deadlines and dates for the acts and events as set forth in the Settlement Agreement, and

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directs the parties to incorporate the deadlines and dates in the Class Notice as follows:

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DESCRIPTION

DEADLINE

Deadline for Defendants to provide to
Claims Administrator an electronic file
of all Settlement Class Members,
including each person’s name, last
known address and telephone number,
social security number, and number of
Weeks Worked during the applicable
class period(s)

Within 25 business days after entry
of this Preliminary Approval
Order.

Deadline for mailing of Class Notice by
Claims Administrator to the Settlement
Class Members.

Within 10 business days after
receipt of the electronic file of
Settlement Class Members from
Defendants.

Deadline for Settlement Class Members
to submit Claim Form

Within 80 calendar days after the
date of initial mailing of the Class
Notice.

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DESCRIPTION

DEADLINE

Deadline for Settlement Class Members
to submit written objections to the
Settlement

Within 45 calendar days after the
date of initial mailing of the Class
Notice.

Deadline for Settlement Class Members
to opt-out

Within 45 calendar days after the
date of initial mailing of the Class
Notice.

Deadline for Plaintiffs to file a motion
for an award of attorneys’ fees, costs
and Incentive Awards

Within 20 calendar days after the
date of initial mailing of the Class
notice.

Deadline for Plaintiffs to file a motion
for Final Approval.

January 29, 2018

Final Approval and Fairness Hearing

February 12, 2018 @11:00am.

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12.

The Final Approval and Fairness hearing is hereby scheduled for

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February 12, 2018 at 11 a.m. at the U.S. District Court for the Southern District of

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California, 221 West Broadway, San Diego, CA 92101, Courtroom 5B. This date

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shall be included in the Class Notice.

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13.

Plaintiffs’ motion for final approval of the settlement must include the

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required and customary filings. In addition, the motion papers shall include (1) an

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affidavit evidencing Defendant’s compliance with the Class Action Fairness Act

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notice requirement under 28 U.S.C. § 1715, including responses from any government

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officials to the notice; and (2) the claims administrator’s affidavit regarding

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compliance with its duties under the settlement and this Order, a copy of the actual

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Notice sent to the class, a report on the number of class members to whom Notice was

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sent, the number of undelivered notices, efforts to locate correct addresses for

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undelivered notices after the first mailing, number of notices sent to the updated

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addresses in a second mailing, the number of such notices returned undelivered, the
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number of class members to whom payment will be made, and the average class

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member payment.

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14.

The Court reserves the right to adjourn or continue the date of the

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Fairness Hearing and all dates provided for in the Settlement without further notice to

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Class Members, and retains jurisdiction to consider all further applications arising out

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of or connected with the proposed Settlement.

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15.

As of the date this Order is signed, all dates and deadlines associated with

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the Action shall be stayed, other than those related to the administration of the

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Settlement.

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IT IS SO ORDERED.

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Dated: September 27, 2017

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