Kellgren v. Petco Animal Supplies, Inc. et al

Filing 299

ORDER granting 296 Plaintiffs' Motion for Final Approval of Settlement and Certification of A Settlement Class; 295 for Attorney Fees, Costs Expenses and Incentive Awards to Representative Plaintiffs and Judgment. Signed by Judge M. James Lorenz on 2/13/2018. (sjt)

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.

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

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Defendants.

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Case No. 3:13-cv-00644-L-KSC
ORDER GRANTING
PLAINTIFFS’ MOTION FOR
FINAL APPROVAL OF CLASS
AND COLLECTIVE ACTION
SETTLEMENT, CERTIFICATION
OF A SETTLEMENT CLASS,
REIMBURSEMENT OF
ATTORNEYS’ FEES, COSTS,
EXPENSES AND INCENTIVE
AWARDS TO
REPRESENTATIVE PLAINTIFFS
AND JUDGMENT
Final Approval Hearing: February 12,
2018

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Complaint Filed: March 19, 2013

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District Judge: Hon. M. James Lorenz
Courtroom:
5B (Schwartz)

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Magistrate
Judge:
Trial Date:

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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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Karen S. Crawford
Not Set

Case No. 3:17-cv-00898-L-KSC
Complaint Filed: January 31, 2017
(D. Mass.)
Transferred to SDCA: May 4, 2017

v.

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

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Defendants.

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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

Case No. 3:17-cv-01092-L-KSC

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Plaintiffs,

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v.

Complaint Filed: April 14, 2016
(E.D.N.Y.)

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

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Defendants.

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Transferred to SDCA: May 30, 2017

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

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

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Plaintiffs,

Transferred to SDCA: August 3, 2017

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v.

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

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Defendants.

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JAMES HECKER, on Behalf of
Himself and All Others Similarly
Situated,
Plaintiff,

Complaint Filed: April 6, 2017 (D.N.J.)

Case No.: 3:17-cv-01169-L-KSC
Complaint Filed: November 23, 2016
(N.D. ILL.)
Transferred to SDCA: June 8, 2017

v.
PETCO ANIMAL SUPPLIES, INC.,
PETCO ANIMAL SUPPLIES STORES,
INC., PETCO HOLDINGS, INC., and
DOES 1 TO 100, Inclusive,
Defendants.

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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ROBERT WAGNER, Individually and
On Behalf of All Other Persons
Similarly Situated,

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Plaintiffs,

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v.

Case No.: 3:17-cv-01793-L-KSC
Complaint Filed: January 15, 2017 (D.
Colo.)
Transferred to SDCA: September 28,
2017

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

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Defendants.

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ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF
PROPOSED CLASS AND COLLECTIVE ACTION SETTLEMENT

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WHEREAS, the Plaintiffs and Defendants in the above-captioned

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consolidated actions have entered into a Settlement Agreement intended to

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resolve the litigation against Defendants arising out of their alleged unlawful

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compensation practices for Assistant Managers (“AMs”) who were classified

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as exempt and not paid overtime; and

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WHEREAS, the Settlement Agreement attached as Exhibit A to the

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Declaration of Seth R. Lesser, filed in connection with Plaintiffs’ Motion for

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Preliminary Approval, Dkt. No. 280-3, together with supporting materials,

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sets forth the terms and conditions for a proposed settlement and dismissal

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with prejudice of the above actions against Defendants; and

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WHEREAS, the Court was satisfied that the terms and conditions set

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forth in the Settlement Agreement were the result of good faith, arms-length

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settlement negotiations between competent and experienced counsel for both

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Plaintiffs and Defendants; and

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WHEREAS, the Court granted Plaintiffs’ Motion for Preliminary

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Approval of Class and Collective Action Settlement, Preliminary Certification
Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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of a Settlement Class, Appointment of Class Representatives and Claims

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Administrator, Approving Notice and for Final Fairness Hearing (the

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“Preliminary Approval Motion”) and supporting materials, Dkt. Nos. 289, 292,

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294; and

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WHEREAS, the Court ordered the Notice and Claim Form and Consent

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to Join FLSA Action incorporated into the Settlement Agreement to issue to

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the Settlement Class in the manner specified in Plaintiffs’ Motion for

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Preliminary Approval;

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Accordingly, the Court finds, concludes, and hereby orders as follows:

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1.

Plaintiffs’ Motion for Final Approval is GRANTED.

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2.

The Court has jurisdiction over the subject matter of this action, all

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members of the Settlement Class, and Defendants pursuant to 29 U.S.C. §§

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1331, 1332, and 1367.

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3.

All defined terms in the Settlement Agreement shall have the same

meaning in this Order and Judgment.
4.

In accordance with Federal Rule of Civil Procedure 23 and the

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requirements of due process, the Settlement Class has been given proper and

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adequate notice of the Settlement and the Fairness Hearing, and such notice

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was carried out in accordance with the Preliminary Approval Order.

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5.

Prior to the Fairness Hearing, a declaration was filed with the

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Court by the Claims Administrator, JND Legal Administration, confirming

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that Notice was given in accordance with the terms of the Court’s previous

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Order preliminarily approving the Settlement and as required by the Class

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Action Fairness Act, 28 U.S.C. § 1715, et seq.

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6.

The Notice and notice methodology implemented pursuant to the

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Settlement Agreement and the Court’s Preliminary Approval Order (a) were

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appropriate and reasonable and constituted due, adequate, sufficient notice to

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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all persons entitled to notice; and (b) met all applicable requirements of the

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Federal Rules of Civil Procedure and Due Process.

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7.

The Settlement was negotiated with the assistance of an

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experienced mediator, at arm’s-length, by experienced counsel who were fully

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informed of the facts and circumstances of the action and of the strengths and

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weaknesses of their respective positions. The Settlement was reached after the

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parties had completed extensive discovery and investigation, conducted legal

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research and written discovery, conducted multiple depositions, and reviewed

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tens of thousands of pages worth of documents. Counsel for both sides were

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well positioned to evaluate the benefits of the Settlement, taking into account

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the expense, risk, and uncertainty of protracted litigation over numerous

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questions of fact and law.

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8.

The Settlement is fair, reasonable, and adequate. The Court

approves the Settlement.
9.

The Court finds that for the purpose of this Settlement, the

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requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied,

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and that a class action is an appropriate method for resolving the claims

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asserted in this litigation. All the prerequisites for class certification under

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Rule 23 are present. The Settlement Class Members are ascertainable and too

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numerous to be joined. For settlement purposes, questions of law and fact

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common to all Settlement Class Members predominate over individual issues

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and should be determined in one proceeding with respect to all of the

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Settlement Class Members. The Settlement Class Representatives’ claims are

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typical of those of the Settlement Class for settlement purposes. The Settlement

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Class Representatives and Class Counsel meet the adequacy requirements of

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FED. R. CIV. P. 23(a)(4). For settlement purposes, the class action mechanism

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is superior to alternative means for adjudicating and resolving the state law

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claims asserted in these consolidated actions.

Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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10.

The Court further finds that the settlement of the FLSA claims

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asserted by Plaintiffs and those who have consented to join the Kellgren action

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is a settlement of a bona-fide dispute and is a fair and reasonable compromise

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of the FLSA claims asserted.

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11.

The Court certifies the following Settlement Class for purposes of

this Settlement only:
• 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;
• 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 for Petco as an AM at any time
between April 6, 2015 and June 18, 2016;
• Individuals who worked in New York for Petco as an AM at any time
between April 14, 2010 and June 18, 2016;
• Individuals who worked in Oregon for Petco as an AM at any time
between October 21, 2014 and June 18, 2016; and
• Individuals who worked in Pennsylvania for Petco as an AM at any time
between July 14, 2014 and June 18, 2016.
12. Class Counsel, Klafter Olsen & Lesser LLP and Hepworth
Gershbaum & Roth, PLLC are hereby awarded attorneys’ fees in the amount of

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$ 2,665,000.00 which the Court finds to be fair and reasonable, and

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$ 161,901.00 in reimbursement of reasonable expenses incurred in

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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prosecuting the action. The attorneys’ fees and expenses so awarded shall be

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paid from the Settlement Sum pursuant to the terms of the Settlement

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Agreement.

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13.

The Court finds that the services provided by the Named Plaintiffs

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to the Settlement Class have conferred a substantial benefit on the Settlement

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Class, and hereby directs payment as provided under the terms of the parties’

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Settlement Agreement from the Settlement Sum to Named Plaintiffs Erik

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Kellgren, Maria Cote, James Hecker, Therese Kopchinski, Christine Lee, Deserie

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Michel, Heather Vargas, and Robert Wagner of $10,000 each as Incentive

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Awards.

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14.

The certification of the Settlement Class is for settlement purposes

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only and shall not constitute, nor be construed as, an admission on the part of

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Defendants that these cases, or any other proposed or certified class or collective

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action is appropriate for class or collective treatment pursuant to Federal Rule

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of Civil Procedure 23, 29 U.S.C. § 216(b), or any other similar class or collective

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action statute or rule. Nor shall this Order and Judgment be construed, used,

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offered or admitted into evidence as an admission or concession by Defendants

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of the validity of any claim or any actual or potential liability or fault.

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15.

Final Judgment is entered in the above-captioned cases in

accordance with the Settlement Agreement.
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Following the Effective Date provided for in the Settlement

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Agreement and receipt of the Settlement Sum from Defendants, as set forth in

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the Settlement Agreement, the Claims Administrator shall effectuate

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distribution of the settlement funds to the Settlement Class Members who made

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timely and valid claims in accordance with the terms of the Settlement

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Agreement.

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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17.

Upon the Effective Date provided for in the Settlement Agreement,

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all State Settlement Class Members who have not timely and validly excluded

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themselves from the Settlement have released the claims as set forth in Section

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5 of the Settlement Agreement and which is incorporated herein.

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18.

Upon the Effective Date provided for in the Settlement Agreement,

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all Federal State Class Members who submitted timely and valid Claim Forms

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have released the claims as set forth in Section 5 of the Settlement Agreement

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and which is incorporated herein.

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19.

The claims of all Opt-In Plaintiffs who neither timely and validly

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requested exclusion nor submitted a timely and valid Claim Form are hereby

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dismissed with prejudice.

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The claims of all Opt-In Plaintiffs who timely and validly requested

exclusion from the Settlement are hereby dismissed without prejudice.
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All Settlement Class Members who have not timely and validly

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excluded themselves from the Settlement are barred and permanently enjoined

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from pursuing and/or seeking to reopen their claims that have been released or

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dismissed in the Settlement Agreement or seeking to file, commence, prosecute,

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maintain or participate in any other claim, lawsuit, or other proceeding based

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on the claims that have been released or dismissed in the Settlement Agreement

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and herein.

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These consolidated actions are DISMISSED WITH PREJUDICE

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except that the Court shall retain exclusive and continuing jurisdiction of the

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above-captioned actions, the Settlement Class Members and the Defendants, to

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interpret and enforce the terms, conditions and obligations of the Settlement

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Agreement.

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT

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IT IS SO ORDERED.

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Dated: February 13, 2018

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Case No. 13-CV-00644-L-KSC
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND JUDGMENT