Manner v. Gucci America, Inc. et al

Filing 27

ORDER granting 21 Joint Motion for Preliminary Approval of Class Action Settlement. Pursuant to FRCP 23, Court conditionally certifies the Class for settlement purposes only. Court appoints Plaintiff as Class Representive of the Class. Court appoi nts Thomas J. O'Reardon II of Blood Hurst & O'Reardon, LLP, and Todd D. Carpenter of Carpenter Law Group as Class Counsel. Court preliminarily approves the Settlement Agreement and the terms and conditions of Settlement. Final Approval Hear ing set for 8/22/2016 10:30 AM in Courtroom 4B before Judge Cynthia Bashant. Any motion in support of the Settlement and any motion for award of Pla's Counsel's fees and costs and/or Pla's service award must be filed by 6/1/2016. Any opposition must be filed no later than 14 days after the motion is filed, and any reply must file no later than 28 days after the motion is filed. Signed by Judge Cynthia Bashant on 3/16/2016. (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JESSICA MANNER, individually and on behalf of all other similarly situated, 14 Plaintiff, 15 v. 16 17 Case No. 15-cv-00045-BAS(WVG) ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (ECF No. 21) GUCCI AMERICA, INC., Defendant. 18 19 20 On December 8, 2014, Plaintiff Jessica Manner (“Plaintiff”) commenced this 21 class action in San Diego Superior Court, alleging that Defendant Gucci America, Inc. 22 (“Defendant” or “Gucci”) requested and recorded personal identification information 23 from Plaintiff and putative class members in conjunction with credit card purchase 24 transactions in violation of the Song–Beverly Credit Card Act, California Civil Code 25 § 1747.08. Thereafter, Defendant removed this action to federal court. (ECF No. 1.) 26 Now pending before this Court is the parties’ joint motion for preliminary approval of 27 class action settlement. (ECF No. 21.) 28 /// -1- 15cv00045 1 I. PROPOSED SETTLEMENT 2 The proposed settlement agreement (“Settlement” or “Settlement Agreement”) 3 applies to class members (“Class” or “Class Members”) defined as: “all persons from 4 whom Defendant requested and recorded personal identification information in 5 conjunction with a credit card transaction in any of Gucci’s eight (8) freestanding, 6 full-priced California boutique stores during the period of December 8, 2013 through 7 the date of notice of entry of the Preliminary Approval Order. Excluded from the Class 8 are any specific transactions that involved shipping, delivery, servicing, installation, 9 or a special order.” (Settlement at § 1.4.)1 10 The parties agree that the Class shall be provisionally certified and that, subject 11 to the Court’s approval, Blood Hurst & O’Reardon, LLP and Carpenter Law Group will 12 be appointed as Class Counsel and Plaintiff will be appointed as Class Representative. 13 (Id. at §§ 1.6, 1.21, 2.1.) 14 The Settlement contemplates that all Settlement Class Members, defined as all 15 members of the Class who have not properly and timely opted out, automatically 16 receive by email or U.S. Mail a voucher, good for six months from the date it is sent, 17 redeemable for either one free Gucci gift item retailed between $40.00 and $120.00,2 18 or a 15% discount on a single full price merchandise purchase transaction of up to 19 $10,000. (Id. at §§ 1.25, 1.26, 1.29, 2.2, Exh. E.) The discount shall be limited to 20 $1,500. (Id. at § 1.29.1, Exh. E.) The vouchers will be redeemable at one of eight 21 Gucci stores, and are non-transferrable, except to a family member. (Id. at § 1.29.2, 22 Exh. E.) 23 In the proposed Settlement, Defendant also agrees to a change in business 24 practices in which it will no longer request or record personal identification 25 The Settlement is attached to the parties’ joint notice of settlement (ECF No. 24) as Exhibit 1. All capitalized terms in this Order shall have the same meaning as set forth in the Settlement. (See Settlement at § 1 (Definitions).) 1 26 27 The free gift item will be selected by Gucci and “limited based on availability at any Eligible Voucher Redemption Store.” Each store will offer two gift options, with one retailed at $100.00 or more. (Settlement, § 1.29.1, Exh. E.) 2 28 -2- 15cv00045 1 information in conjunction with credit card purchase transactions, in order to fully 2 comply with California Civil Code § 1747.08. (Id. at § 2.3.) In addition, Defendant 3 agrees to pay all notice and administration costs, attorney’s fees, and Plaintiff’s service 4 award, if approved by the Court. (Id. at §§ 2.4–2.6.) 5 The proposed Settlement further requires an independent claims administrator 6 to provide notice of the proposed Settlement by e-mail or first class mail, providing, 7 among other things, a description of the terms of the Settlement, instructions for 8 submitting a claim, and directions to accessing the Settlement website. (Id. at § 3.2, 9 Ex. B.) The claims administrator will send mail notice to any Class Member whose 10 email notice is returned undeliverable and will perform a re-mail for any returned mail 11 notice. (Id. at §§ 3.2.1 & 3.2.2.) In addition to mail and email notice, the claims 12 administrator will establish a Settlement website on which the administrator will make 13 available the Full Class Notice, Settlement Agreement, Plaintiff’s complaint, the order 14 granting preliminary approval, memorandum in support of final approval and award of 15 attorney’s fees, as well as the final order, if approved. (Id at § 3.2.3.) The notice will 16 also contain a toll-free number, hosted by the claims administrator, where Class 17 Members can obtain additional information about the proposed Settlement. (Id. at § 18 3.2.4.) After the notice mailing date, Class Members will have ninety (90) days to 19 submit a written objection indicating that they wish to object to the Settlement. (Id. at 20 § 3.5.) Class Members may also send by mail a written Request for Exclusion 21 indicating they wish to opt out of the class. (Id. at § 3.6, Exh. B.) 22 Class Counsel will file a motion requesting an award of attorneys’ fees and 23 expenses up to $450,000.00. (ECF No. 21 at p. 6.) That motion will also request a 24 service payment to Plaintiff not to exceed $5,000.00. (Id.) Each of these amounts are 25 subject to the Court’s approval. 26 Following final court approval of the proposed Settlement, Plaintiff and 27 Settlement Class Members shall be deemed to have released and discharged Defendant 28 from any and all claims that were alleged in the complaint or claims that could have -3- 15cv00045 1 been asserted arising out of facts alleged in the complaint that took place during the 2 class period. (Settlement at §§ 4.3 & 4.4.) 3 II. ANALYSIS 4 The Ninth Circuit maintains a “strong judicial policy” that favors the settlement 5 of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 6 1992). However, Federal Rule of Civil Procedure 23(e) first “require[s] the district 7 court to determine whether a proposed settlement is fundamentally fair, adequate, and 8 reasonable.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000) 9 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). Where the 10 “parties reach a settlement agreement prior to class certification, courts must peruse the 11 proposed compromise to ratify both the propriety of the certification and the fairness 12 of the settlement.” Stanton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). In these 13 situations, settlement approval “requires a higher standard of fairness and a more 14 probing inquiry than may normally be required under Rule 23(e).” Dennis v. Kellogg 15 Co., 697 F.3d 858, 864 (9th Cir. 2012) (internal quotation marks omitted). 16 A. Class Certification 17 Before granting preliminary approval of a class-action settlement, the Court must 18 first determine whether the proposed class can be certified. Amchem Prods., Inc. v. 19 Windsor, 521 U.S. 591, 620 (1997) (indicating that a district court must apply 20 “undiluted, even heightened, attention [to class certification] in the settlement context” 21 in order to protect absentees). 22 The class action is “an exception to the usual rule that litigation is conducted by 23 and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 24 564 U.S. 338, 131 S.Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 25 682, 700-01 (1979)). 26 representative must be part of the class and ‘possess the same interest and suffer the 27 same injury’ as the class members.” Id. (citing E. Tex. Motor Freight Sys., Inc. v. 28 Rodriguez, 431 U.S. 395, 403 (1977)). In this regard, Rule 23 contains two sets of In order to justify a departure from that rule, “a class -4- 15cv00045 1 class-certification requirements set forth in Rule 23(a) and (b). United Steel, Paper & 2 Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union v. 3 ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). “A court may certify a class 4 if a plaintiff demonstrates that all of the prerequisites of Rule 23(a) have been met, and 5 that at least one of the requirements of Rule 23(b) have been met.” Otsuka v. Polo 6 Ralph Lauren Corp., 251 F.R.D. 439, 443 (N.D. Cal. 2008). 7 “Rule 23(a) provides four prerequisites that must be satisfied for class 8 certification: (1) the class must be so numerous that joinder of all members is 9 impracticable; (2) questions of law or fact exist that are common to the class; (3) the 10 claims or defenses of the representative parties are typical of the claims or defenses of 11 the class; and (4) the representative parties will fairly and adequately protect the 12 interests of the class.” Otsuka, 251 F.R.D. at 443 (citing Fed. R. Civ. P. 23(a)). “A 13 plaintiff must also establish that one or more of the grounds for maintaining the suit are 14 met under Rule 23(b), including: (1) that there is a risk of substantial prejudice from 15 separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole 16 would be appropriate; or (3) that common questions of law or fact predominate and the 17 class action is superior to other available methods of adjudication.” Id. (citing Fed. R. 18 Civ. P. 23(b)). 19 The parties seek class certification under Rule 23(b)(3). (ECF No. 21 at p. 28.) 20 In the context of a proposed settlement class, questions regarding the manageability of 21 the case for trial are not considered. See Wright v. Linkus Enters., Inc., 259 F.R.D. 468, 22 474 (E.D. Cal. 2009) (citing Amchem Prods., Inc., 521 U.S. at 620 (1997) (“Confronted 23 with a request for settlement-only class certification, a district court need not inquire 24 whether the case, if tried, would present intractable management problems . . . for the 25 proposal is that there be no trial.”)). 26 /// 27 /// 28 /// -5- 15cv00045 1. 1 Numerosity – Rule 23(a)(1) Rule 23(a)(1) requires that the class be “so numerous that joinder of all members 2 3 is impracticable.” Fed. R. Civ. P. 23(a)(1). “[C]ourts generally find that the 4 numerosity factor is satisfied if the class comprises 40 or more members and will find 5 that it has not been satisfied when the class comprises 21 or fewer.” Celano v. Marriott 6 Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007). 7 The proposed Class consists of approximately 16,000 credit card consumers from 8 whom “Gucci requested and recorded the personal identification information . . . at its 9 eight freestanding, full-priced California boutique stores during the Class period.” 10 (ECF No. 21-1 at p. 18; ECF No. 21-2 (“O’Reardon Decl.”) at ¶ 6.) Thus, the Court 11 finds joinder of all members is impracticable for the purposes of Rule 23(a)(1). 2. 12 Commonality – Rule 23(a)(2) Under Rule 23(a)(2), the named plaintiff must demonstrate that there are 13 14 “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 15 “Commonality requires the plaintiff to demonstrate that the class members ‘have 16 suffered the same injury[.]’” Dukes, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. 17 v. Falcon, 457 U.S. 147, 157 (1982)). However, “[a]ll questions of fact and law need 18 not be common to satisfy this rule.” Hanlon, 150 F.3d at 1019. “The existence of 19 shared legal issues with divergent factual predicates is sufficient, as is a common core 20 of salient facts coupled with disparate legal remedies within the class.” Id. 21 In this case, Plaintiff alleges Defendant, by implementing an Information Capture 22 Policy, requested and recorded personal identification information from each Class 23 Member in conjunction with a credit card purchase at certain Gucci retail stores. (See 24 Compl. at ¶¶ 2, 14.) In addition to sharing this “common core of salient facts,” Class 25 Members also share a common legal issue: whether Defendant’s alleged recording of 26 this information violated the Song–Beverly Credit Card Act. Accordingly, the Court 27 finds Rule 23(a)(2) is satisfied. 28 /// -6- 15cv00045 1 2 3. Typicality – Rule 23(a)(3) To satisfy Rule 23(a)(3), the named plaintiff’s claims must be typical of the 3 claims of the class. Fed. R. Civ. P. 23(a)(3). The typicality requirement is 4 “permissive” and requires only that the named plaintiff’s claims “are reasonably co- 5 extensive with those of absent class members.” Hanlon, 150 F.3d at 1020. “The test 6 of typicality ‘is whether other members have the same or similar injury, whether the 7 action is based on conduct which is not unique to the named plaintiffs, and whether 8 other class members have been injured by the same course of conduct.’” Hanon v. 9 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp, 108 10 F.R.D. 279, 282 (C.D. Cal. 1985)). “[C]lass certification should not be granted if ‘there 11 is a danger that absent class members will suffer if their representative is preoccupied 12 with defenses unique to it.’” Id. (quoting Gary Plastic Packaging Corp. v. Merrill 13 Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). 14 Like the other Class Members, Plaintiff’s claim is that her personal identification 15 information was requested and recorded by Defendant in conjunction with her credit 16 card purchase transaction at a California Gucci store. Thus, Plaintiff and the Class 17 Members assert the same violation of the Song-Beverly Credit Card Act, arising from 18 the same course of conduct. (ECF No. 21-1 at p. 19; Compl. at ¶¶ 6, 17.) Plaintiff and 19 Class Members also seek the same relief for this alleged wrongful conduct. (Id.; 20 Compl. at ¶ 32.) Therefore, the Court finds Plaintiff’s claim is typical of the claims of 21 the Class Members, satisfying Rule 23(a)(3). 22 4. Adequacy – Rule 23(a)(4) 23 Rule 23(a)(4) requires that the representative plaintiff “will fairly and adequately 24 protect the interest of the class.” Fed. R. Civ. P. 23(a)(4). “To satisfy constitutional 25 due process concerns, absent class members must be afforded adequate representation 26 before entry of a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing 27 Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)). 28 determines legal adequacy: (1) do the named plaintiffs and their counsel have any -7- “Resolution of two questions 15cv00045 1 conflicts of interest with other class members and (2) will the named plaintiffs and their 2 counsel prosecute the action vigorously on behalf of the class?” Id. (citing Lerwill v. 3 Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). 4 The Court has no reason to believe that Plaintiff and her counsel have any 5 conflict of interest with the Class Members and they appear to have vigorously 6 investigated and litigated this action. (See ECF No. 21-1 at p. 20; O’Reardon Decl. at 7 ¶ ¶ 3-5, 7.) Thus, the interests of Plaintiff and the Class Members are aligned. 8 Additionally, Plaintiff’s counsel are qualified in class-action litigation, having handled 9 numerous class actions focused on consumer protection, including several class actions 10 involving claims under the Song–Beverly Credit Card Act. (O’Reardon Decl. at ¶ 2, 11 Exh.. A; ECF No. 21-4 (“Carpenter Decl.”) at ¶¶ 2-5.) Therefore, the Court finds 12 Plaintiff and her counsel adequately represent the Class Members, satisfying Rule 13 23(a)(4)’s adequacy requirement. 14 5. Predominance – Rule 23(b)(3) 15 “The predominance inquiry focuses on ‘the relationship between the common 16 and individual issues’ and ‘tests whether proposed classes are sufficiently cohesive to 17 warrant adjudication by representation.’” Vinole v. Countrywide Home Loans, Inc., 18 571 F.3d 935, 944 (9th Cir. 2009). 19 Rule 23(b)(3)’s predominance and superiority requirements were added to cover cases in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Accordingly, a central concern of the Rule 23(b)(3) predominance test is whether adjudication of common issues will help achieve judicial economy. Id. (internal quotation marks and citations omitted). 20 21 22 23 24 Here, a common issue predominates over any individual issue—specifically, 25 whether Defendant’s alleged policy of requesting and recording personal identification 26 information from consumers in conjunction with credit card purchase transactions 27 during the class period violates the Song–Beverly Credit Card Act. (Compl. at ¶¶ 2, 28 14.) Plaintiff states that this issue can be proven with the same class-wide evidence. -8- 15cv00045 1 (ECF No. 21-1 at p. 21.) Because resolution of the issue can arguably be resolved for 2 all Class Members in a single adjudication, the Court finds the proposed Class is 3 sufficiently cohesive to warrant adjudication by representation, and that Rule 23(b)(3)’s 4 predominance requirement is satisfied. 5 6. Superiority – Rule 23(b)(3) 6 “Plaintiffs must also demonstrate that a class action is ‘superior to other available 7 methods for fairly and efficiently adjudicating the controversy.’” Otsuka, 251 F.R.D. 8 at 448 (citing Fed. R. Civ. P. 23(b)(3)). “Where classwide litigation of common issues 9 will reduce litigation costs and promote greater efficiency, a class action may be 10 superior to other methods of litigation,” and it is superior “if no realistic alternative 11 exists.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234-35 (9th Cir. 1996). The 12 following factors are pertinent to this analysis: 13 14 15 16 17 18 (A) the class members’ interest in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). 19 As the parties point out, the alternative to a class action would be to have the 20 individual Class Members, which amount to approximately 16,000 individuals, file 21 separate lawsuits. Requiring Class Members to pursue individual actions would 22 potentially produce lawsuits numbering in the ten of thousands. That would be both 23 impractical and inefficient. 24 resources, impose additional burdens and expenses on the litigants, and present a risk 25 of inconsistent rulings. In addition, “the potential monetary relief for each Class 26 Member . . . could be as small as $0.01 even if liability is proven,” which means a Class 27 Member may not have an interest in bringing an individual action. (ECF No. 21 at p. 28 30.) Therefore, the Court finds Rule 23(b)(3)’s superiority requirement is also Such individual litigation would consume judicial -9- 15cv00045 1 satisfied. 2 For the foregoing reasons, with respect to the Class, the Court provisionally finds 3 the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules 4 of Civil Procedure have been met. 5 B. Preliminary Fairness Determination 6 Having certified the class, the court must next make a preliminary determination 7 of whether the class-action settlement is “fair, reasonable, and adequate” pursuant to 8 Rule 23(e)(2). “It is the settlement taken as a whole, rather than the individual 9 component parts, that must be examined for overall fairness.” Hanlon, 150 F.3d at 10 1026. A court may not “delete, modify or substitute certain provisions” of the 11 settlement; rather, “[t]he settlement must stand or fall in its entirety.” Id. 12 “[S]ettlement approval that takes place prior to formal class certification requires 13 a higher standard of fairness.” Hanlon, 150 F.3d at 1026. Consequently, a district 14 court “must be particularly vigilant not only for explicit collusion, but also for more 15 subtle signs that class counsel have allowed pursuit of their own self-interests and that 16 of certain class members to infect the negotiations.” In re Bluetooth Headset Prods. 17 Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). Other relevant factors to this 18 determination include, among others, “the strength of the plaintiffs’ case; the risk, 19 expense, complexity, and likely duration of further litigation; the risk of maintaining 20 class-action status throughout the trial; the amount offered in settlement; the extent of 21 discovery completed and the stage of the proceedings; the experience and views of 22 counsel; the presence of a governmental participant; and the reaction of the class 23 members to the proposed settlement.” Hanlon, 150 F.3d at 1026; see also Churchill 24 Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). 25 Preliminary approval of a settlement and notice to the proposed class is 26 appropriate if “the proposed settlement appears to be the product of serious, informed, 27 non-collusive negotiations, has no obvious deficiencies, does not improperly grant 28 preferential treatment to class representatives or segments of the class, and falls within - 10 - 15cv00045 1 the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 2 1078, 1079 (N.D. Cal. 2007) (internal quotation marks and citations omitted). 3 4 5 Here, the parties’ proposed Settlement agreement complies with all of these requirements. The Court will address the relevant factors in further detail below. 1. Strength of Plaintiff’s Case and Risk of Further Litigation 6 “[T]he very essence of a settlement is compromise, ‘a yielding of absolutes and 7 an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. Comm’n of the 8 City & Cnty. of San Francisco, 688 F.2d 615, 624 (9th Cir. 1982). As explained by the 9 Supreme Court, “[n]aturally, the agreement reached normally embodies a compromise; 10 in exchange for the saving of cost and elimination of risk, the parties each give up 11 something they might have won had they proceeded with litigation.” United States v. 12 Armour & Co., 402 U.S. 673, 681 (1971). 13 Here, presumably recognizing the merits of each side’s case, the parties agree 14 that Plaintiff and other Class Members would face substantial hurdles prior to 15 certification and trial. (ECF No. 21-1 at p. 9.) Defendant argues it has “several strong 16 defenses” that could make it difficult for Plaintiff and the Class to receive any damages 17 or relief, including “a company policy not to request customer information at the point- 18 of-sale, and to make clear to customers that they are not required to share their 19 information.” (Id. at p. 10.) Furthermore, although the Song-Beverly Credit Card Act 20 subjects Defendant to a civil penalty of $250.00 for the first violation and up to $1,000 21 for each subsequent violation, the penalty award is discretionary and could be as little 22 as one cent. See Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524, 536 (2011); 23 Cal. Civ. Code § 1747.08(e). Therefore, Defendant argues any civil penalty awarded 24 would be extremely small. (ECF No. 21-1 at p. 10.) 25 The parties also recognize that further litigation would be “expensive, complex, 26 and time consuming” and that settlement provides the benefits of litigation to all Class 27 Members “without the risk and delays of continued litigation, trial, and appeal.” (ECF 28 No. 21 at pp. 10-11.) The parties anticipate that continued litigation of this matter - 11 - 15cv00045 1 would include motions for summary judgment and trial. (Id. at p. 11.) Absent 2 settlement, the parties anticipate that they would be engaged in litigation for “at least 3 a year or two before Plaintiff or the Class would see any recovery.” (Id.) 4 The Court agrees with the parties that the proposed Settlement eliminates the 5 litigation risks and ensures that the Class Members receive some compensation for their 6 claims. Therefore, on balance, the strength of Plaintiff’s case and risk of further 7 litigation favor approving the proposed Settlement. See Morey v. Louis Vuitton North 8 America, Inc., No. 12-cv-02359, 2014 WL 109194, at *5-6 (S.D. Cal. Jan. 9, 2014) 9 (Hayes, J.) (approving class-action settlement in an action brought under the Song- 10 11 Beverly Credit Card Act). 2. Amount of the Proposed Settlement 12 According to the parties, the Settlement provides automatic receipt of a voucher 13 by all Class Members, which may also be transferred to family members, providing 14 them with either free merchandise valued between $40.00 and $120.00, or a discount 15 up to $1,500 on a purchase up to $10,000. (ECF No. 21-1 at p. 12.) 16 As previously noted, under the Song-Beverly Credit Card Act, a plaintiff may 17 bring a civil penalty action to collect fees not exceeding $250 for the first violation or 18 $1,000 for each subsequent violation. See Cal. Civ. Code § 1747.08(e). While the 19 proposed Settlement provides merchandise valued much lower than the maximum 20 recovery, “‘[t]he fact that a proposed settlement may only amount to a fraction of the 21 potential recovery does not, in and of itself, mean that the proposed settlement is 22 grossly inadequate and should be disapproved.” Linney v. Cellular Alaska P’ship, 151 23 F.3d 1234, 1242 (9th Cir. 1998). Given the risk that recovery could be as little as 24 $0.01, the Court finds that the amount of the proposed monetary benefits to the Class 25 Members is fair and reasonable. See Morey, 2014 WL at *6-7 (approving a class action 26 settlement in an action brought under the Song-Beverly Credit Card Act in which Class 27 Members received merchandise certificates in the amount of $41.00). Therefore, under 28 the circumstances, the Court concludes that the amount offered in the Settlement - 12 - 15cv00045 1 weighs in favor of approval. 2 3. Extent of Discovery Completed and Stage of the Proceedings 3 Prior to negotiation and mediation, the parties requested and exchanged 4 discovery, including Defendant taking the deposition of Plaintiff and giving Plaintiff 5 and Class Counsel confidential information related to its policies and practices. 6 (O’Reardon Decl. at ¶ 4; Settlement at § C; ECF No. 21-1 at pp. 3-4.) The proposed 7 Settlement was the result of “serious, informed, and non-collusive arm’s-length 8 negotiations” and mediation efforts overseen by retired United States Magistrate Judge 9 Edward Infante, who conducted a full-day mediation session on June 23, 2015. (ECF 10 No. 21-1 at pp. 4, 12; § D; O’Reardon Decl. at ¶ 7.) All terms of the Settlement 11 were “heavily negotiated” and numerous drafts of the Settlement were prepared before 12 formally memorializing the proposed Settlement for this Court’s approval. (ECF No. 13 21-1 at pp. 4, 12-13.) Given the foregoing, the Court concludes that this factor favors 14 approval. 4. 15 Experience and Views of Counsel 16 The declarations that Class Counsel provide highlight their experience in class 17 actions, including being appointed as lead or co-lead class counsel in numerous 18 certified class actions in state and federal courts. (O’Reardon Decl. at ¶¶ 1-2, Exh. A; 19 Carpenter Decl. at ¶¶ 1-3.) Class Counsel also state that they had a “clear view of the 20 strengths and weaknesses of their case and were in a strong position to make an 21 informed decision regarding the reasonableness of a potential settlement.” (ECF No. 22 21-1 at p. 13.) Class counsel further declares that, at all times, the settlement 23 negotiations were adversarial, non-collusive, and conducted at arm’s-length. (Id. at pp. 24 12-13.) 25 “The recommendations of plaintiffs’ counsel should be given a presumption of 26 reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979). 27 Accordingly, giving the appropriate weight to class counsel’s recommendation, the 28 Court concludes that this factor also weighs in favor of approval. See id. - 13 - 15cv00045 5. 1 Reaction of the Class to the Settlement 2 The proposed Settlement agreement requires two methods of notifying the Class 3 Members. The proposed Settlement Agreement requires the claims administrator to 4 directly mail class members a summary version of the class notice to their respective 5 last-known addresses, or email a different summary notice to their last-known email 6 addresses, depending on which address Gucci has on file for each Class Member. 7 (Settlement at § 3.2.) Moreover, the claims administrator will establish a Settlement 8 website on which the full class notice, complaint, Settlement Agreement, and other 9 relevant documents will be made available. (Id. at § 3.2.3.) Both forms of summary 10 notice provide this website address. (Id. at § 3.2.) 11 Each method of notifying the Class of the Settlement provides directions to 12 where Class Members can learn about the procedures regarding opting out or objecting 13 to the Settlement. (Id. at Exhs. B-D.) Consequently, Class Members will have an 14 opportunity to object or opt out of the Settlement. Thus, at this time, this factor weighs 15 in favor of approving the Settlement. 16 Based on the foregoing, the Court finds the Settlement falls within the range of 17 reasonableness meriting possible final approval. The Court therefore preliminarily 18 approves the Settlement Agreement and the terms and conditions of settlement set forth 19 therein, subject to further consideration at the Final Approval Hearing. 20 C. 21 Under Rule 23(c)(2)(B), “the court must direct to class members the best notice 22 that is practicable under the circumstances, including individual notice to all members 23 who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). 24 25 26 27 28 Proposed Class Notice The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). - 14 - 15cv00045 1 Fed. R. Civ. P. 12(c)(2)(B). “[T]he mechanics of the notice process are left to the 2 discretion of the court subject only to the broad ‘reasonableness’ standards imposed by 3 due process.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 120 (8th Cir. 1975). 4 The proposed notices describe the litigation, the terms of the Settlement, and 5 each Class Members’ rights and options under the Settlement. (Settlement at Exhs. B- 6 D.) The claims administrator will mail the summary notices by first-class mail, postage 7 prepaid, to the last-known address of each Class Member, or send the notice to the last- 8 known email address of each Class Member, for whom Defendants’ records contain 9 such information. Both forms of notice state the deadlines for opting out or objecting 10 to the Settlement, and direct the recipient to the Settlement website for further 11 information, including accessing the relevant documents. (Settlement at Exhs. C, D.) 12 In addition, the proposed Settlement requires the claims administrator to operate a toll- 13 free telephone number for Class Members to call for more information about the 14 Settlement. (Id. at § 3.2.4.) 15 Having reviewed the proposed class notices, the Court finds that the methods and 16 contents of the notices comply with due process and Rule 23, are the best notice 17 practicable under the circumstances, and shall constitute due and sufficient notice to 18 all persons entitled thereto. Therefore, the Court approves, as to form and content, the 19 proposed notices to be provided to Settlement Class Members as set forth in Section 20 3.2 of the Settlement Agreement, which consist of the Email Notice, Full Class Notice, 21 and U.S. Mail Notice (collectively the “Class Notice”), which are attached collectively 22 as Exhibits B-D to the Settlement Agreement. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// - 15 - 15cv00045 1 III. CONCLUSION & ORDER 2 In light of the foregoing, the Court GRANTS the parties’ joint motion for 3 preliminary approval of the class action Settlement. Accordingly, the Court hereby 4 ORDERS the following: 5 (1) Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court 6 hereby conditionally certifies the following Class for settlement purposes 7 only: “All persons from whom Gucci requested and recorded personal 8 identification information in conjunction with a credit card transaction in 9 any of Gucci’s eight (8) freestanding, full-priced California boutique 10 stores during the period of December 8, 2013 through the Preliminary 11 Approval Order date. 12 transactions that involved shipping, delivery, servicing, installation, or a 13 special order.” 14 (2) The Court hereby appoints the Plaintiff in the Action as Class Representative of the Class. 15 16 Excluded from the Class are any specific (3) The Court hereby appoints Thomas J. O’Reardon II, of Blood Hurst & 17 O’Reardon, LLP, and Todd D. Carpenter, of Carpenter Law Group as 18 Class Counsel to represent the Class. 19 (4) The Court hereby preliminarily approves the Settlement Agreement and 20 the terms and conditions of Settlement set forth therein, subject to further 21 consideration at the Final Approval Hearing. 22 (5) The Court will hold a “Final Approval Hearing” on August 22, 2016, at 23 10:30 a.m., in the Courtroom of the Honorable Cynthia Bashant, United 24 States District Court for the Southern District of California, Courtroom 25 4B (4th Floor - Schwartz), 221 West Broadway, San Diego, CA 92101, 26 for the following purposes: 27 (a) 28 finally determining whether the Class meets all applicable requirements of Rule 23 of the Federal Rules of Civil Procedure, - 16 - 15cv00045 1 and thus, the claims of the Class should be certified for purposes of 2 effectuating the Settlement; determining whether the proposed 3 Settlement of the Action on the terms and conditions provided for 4 in the Settlement Agreement is fair, reasonable and adequate and 5 should be approved by the Court; (b) 6 considering the motion of Class Counsel for an award of Plaintiffs’ Counsel’s fees and costs; 7 8 (c) considering the motion of the Plaintiff for a service award, if any; 9 (d) considering whether the Court should enter the [Proposed] Final Judgment and Order Approving Settlement; 10 (e) 11 in the Settlement Agreement should be provided; and 12 (f) 13 (6) The Court may adjourn the Final Approval Hearing and later reconvene such hearing without further notice to the Class Members. 16 17 ruling upon such other matters as the Court may deem just and appropriate. 14 15 considering whether the releases by the Class Members as set forth (7) Any motion in support of the Settlement and any motion for an award of 18 Plaintiff’s Counsel’s fees and costs and/or Plaintiff’s service award, if 19 any, must be filed with the Court no later than June 1, 2016. Any 20 opposition must be filed no later than 14 days after the motion is filed, 21 and any reply must be filed no later than 28 days after the motion is filed. 22 (8) The Court approves the parties’ agreement to allow Gucci to designate a 23 nationally recognized claims administration company Gucci prior to the 24 Settlement Notice Date to serve as the Court-appointed Claims 25 Administrator for the Settlement. 26 (9) The Claims Administrator shall carry out all duties set forth in the 27 Settlement Agreement in the manner provided in the Settlement 28 Agreement. - 17 - 15cv00045 1 (10) The costs of the Class Notice, processing of Vouchers, creating and 2 maintaining the Settlement Website, and all other Class Notice and Claim 3 Administration expenses shall be paid by Defendant in accordance with 4 the applicable provisions of the Settlement Agreement. 5 (11) All Settlement Class Members shall be bound by all determinations and 6 judgments in the Action concerning the Settlement, whether favorable or 7 unfavorable to the Settlement Class. 8 (12) The Court approves the Parties’ proposed form of the Settlement Voucher. 9 Unless otherwise provided in the Settlement Agreement as it relates to 10 Settlement Class Members as described in Section 2.2 of the Settlement 11 Agreement, all Settlement Class Members will automatically receive 12 either by email or U.S. Mail a Voucher to be used at any Eligible Voucher 13 Redemption Store in accordance with the instructions contained therein. 14 (13) Any Settlement Class Member may enter an appearance in the Action, at 15 his or her own expense, individually or through counsel. All Settlement 16 Class Members who do not enter an appearance will be represented by 17 Class Counsel. 18 (14) Any person falling within the definition of the Class may, upon his or her 19 request, be excluded from the Settlement Class. This is also referred to 20 as “opting out” of the Settlement Class. Any person wishing to be 21 excluded from (opt out from) the Settlement Class must submit a written 22 “Request for Exclusion” to the Claims Administrator postmarked or 23 delivered no later than no later than ninety (90) calendar days after the 24 date of notice of entry of this Order (the “Exclusion Deadline”). The 25 Request for Exclusion must include: (a) the person’s name; (b) the 26 person’s address; (c) the person’s telephone number; (d) the person’s 27 signature; (e) a statement that the person is a Class Member and that he 28 or she wishes to be excluded from the Settlement Class; and (f) the case - 18 - 15cv00045 1 name and number: Jessica Manner v. Gucci America, Inc., Case No. 2 3:15-cv-00045 (S.D. Cal.). Requests for Exclusion purportedly filed on 3 behalf of groups of persons are prohibited and will be deemed to be void. 4 A Request for Exclusion must be written, and may not be asked for 5 telephonically or by email. 6 (15) Any Class Member who does not send a completed, signed Request for 7 Exclusion with the information listed in Paragraph 14 above to the Claims 8 Administrator postmarked or delivered on or before the Exclusion 9 Deadline will be deemed to be a Settlement Class Member for all 10 purposes and will be bound by all further orders of the Court in this 11 Action and by the terms of the Settlement, if finally approved by the 12 Court. All persons who submit valid and timely Requests for Exclusion 13 in the manner set forth in this Paragraph and Paragraph 14 above shall 14 have no rights under the Settlement and shall not be bound by the 15 Settlement Agreement or the Judgment and Final Approval Order 16 approving the Settlement. 17 (16) No later than fourteen (14) calendar days after the Exclusion Deadline, the 18 Claims Administrator shall cause to be filed with the Court a list 19 reflecting all Requests for Exclusions. 20 (17) Any Settlement Class Member who desires to object either to the 21 Settlement, the award of Plaintiff’s Counsel’s fees and costs, or Plaintiff’s 22 service award, if any, must timely file with the Clerk of this Court and 23 timely serve on the Parties’ counsel identified below by hand or first-class 24 mail a notice of the objection(s) and proof of membership in the 25 Settlement Class and the grounds for such objections, together with all 26 papers that the Settlement Class Member desires to submit to the Court no 27 later than the deadline as set forth in the Class Notice, which is ninety 28 (90) calendar days after the date of notice of entry of this Order (the - 19 - 15cv00045 1 “Objection Deadline”). Settlement Class Members may not both object 2 and request exclusion (opt out). If a Settlement Class Member submits 3 both a Request for Exclusion and an objection, the Request for Exclusion 4 will be controlling. To be considered by the Court, the objection must 5 also contain all of the information listed in Paragraph 18 below. The 6 Court will consider such objection(s) and papers only if such papers are 7 received on or before the Objection Deadline, by the Clerk of the Court 8 and by Class Counsel and Defendant’s counsel. Such papers must be sent 9 to each of the following persons: 10 11 12 13 14 15 16 17 18 19 Clerk of the Court United States District Court, Southern District of California 333 West Broadway, Suite 420 San Diego, CA 92101 Thomas J. O’Reardon II BLOOD HURST & O’REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338-1100 Stephanie A. Sheridan SEDGWICK LLP 333 Bush Street, 30th Floor San Francisco, CA 94104 Telephone: (415) 627-1410 20 (18) All objections must include: (a) a heading which refers to the Litigation, 21 Jessica Manner v. Gucci America, Inc., Case No. 3:15-cv-00045 (S.D. 22 Cal.); (b) the objector’s full name, telephone number, and address (the 23 objector’s actual residential address must be included); (c) if represented 24 by counsel, the full name, telephone number, and address of all counsel; 25 (d) all of the reasons for his or her objection; (e) whether the objector 26 intends to appear at the Final Approval Hearing on his or her own behalf 27 or through counsel; (f) a statement that the objector is a Class Member; 28 and (7) the objector’s dated, handwritten signature (an electronic signature - 20 - 15cv00045 1 or attorney’s signature are not sufficient). Any documents supporting the 2 objection must also be attached to the objection. If any testimony is to be 3 given in support of the objection, the names of all persons who will testify 4 must be set forth in the objection. 5 (19) All objections must be filed with the Clerk and served on the Parties’ 6 counsel no later than the Objection Deadline. Objections that do not 7 contain all required information, or are received after the Objection 8 Deadline, will not be considered at the Final Approval Hearing. 9 (20) Attendance at the Final Approval Hearing is not necessary; however, any 10 Class Member wishing to be heard orally with respect to approval of the 11 Settlement, the motion for an award of Plaintiff’s Counsel’s fees and 12 costs, or the motion for Plaintiff’s service award, if any, is required to 13 provide written notice of his or her intention to appear at the Final 14 Approval Hearing no later than the Objection Deadline by filing a “Notice 15 of Intention to Appear”. The Notice of Intention to Appear must include 16 the Class Member’s name, address, telephone number, and signature and 17 must be filed and served as described in Paragraph 17 of this Order. Class 18 Members who do not oppose the Settlement, the motion for an award of 19 Plaintiff’s Counsel’s fees and costs, or the motion for Plaintiff’s service 20 award, if any, need not take any action to indicate their approval. A 21 person’s failure to submit a written objection in accordance with the 22 Objection Deadline and the procedure set forth in the Class Notice waives 23 any right the person may have to object to the Settlement, the award of 24 Plaintiff’s Counsel’s fees and costs, or Plaintiff’s service award, if any, or 25 to appeal or seek other review of the final Judgment and Final Approval 26 Order approving the Settlement. 27 /// 28 /// - 21 - 15cv00045 1 2 3 (21) The parties are ordered to carry out the Settlement Agreement in the manner provided in the Settlement Agreement. IT IS SO ORDERED. 4 5 DATED: March 16, 2016 6 Hon. Cynthia Bashant United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 - 15cv00045

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