Brenner v. Kohl's Corporation

Filing 49

Judge Richard G. Stearns: FINAL APPROVAL ORDER entered granting 39 Motion for Settlement; granting 41 Motion for Attorney Fees. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________
:
JACQUELINE BRENNER, on behalf of :
herself and all others similarly situated, :
No. 1:13-cv-10935-RGS
:
Plaintiff,
:
:
-against:
:
KOHL’S CORPORATION,
:
:
:
Defendant.
:
____________________________:
FINAL APPROVAL ORDER
This matter having come before the Court for a Final Approval
Hearing on March 11, 2014, pursuant to the Preliminary Approval Order of
this Court dated December 5, 2013, on the application of Plaintiff for final
approval of the Settlement Agreement executed on or about October 15,
2013, the best practicable notice in the circumstances having been given to
the Settlement Class as required by the Preliminary Approval Order, the
Settlement Class members having been afforded an adequate opportunity
to submit claims, exclude themselves from the Settlement or to object
thereto, and the Court having considered all papers filed, oral arguments

presented, and proceedings had herein, and otherwise being fully informed
in the premises as to the facts and the law,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
THAT:
1.

This Court has jurisdiction over the subject matter of the

Action, and over Kohl’s Corporation and all members of the Settlement
Class.
2.

As set forth in the Court’s Preliminary Approval Order, the

Court reaffirms its order of December 5, 2013, certifying the Settlement
Class pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3), and
finally certifies the Settlement Class defined as:
All Massachusetts Kohl’s customers who, from April
16, 2009 to November 27, 2013, conducted a
consumer credit card purchase transaction with
Kohl’s and from whom Kohl’s requested and
recorded the customer’s personal identification
information, including but not limited to, a ZIP
code.
Excluded from the Settlement Class are Defendant; any parent, subsidiary,
or affiliate of Defendant; any entity in which Defendant has or had a
controlling interest, or which Defendant otherwise controls or controlled;
and any officer, director, employee, legal representative, predecessor,
successor, or assignee of Defendant.

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3.

The Court confirms the appointments of Jacqueline Brenner as

the Class Representative and D. Greg Blankinship, Todd S. Garber and the
law firm of Meiselman, Packman, Nealon, Scialabba & Baker P.C. as Class
Counsel.
4.

Notice of the proposed Settlement was given to all Settlement

Class members by the best means practicable under the circumstances,
including direct U.S. Mail, publication of the notice in the Massachusetts
edition of USA Today and publication of the notice on the internet at
brennersettlement.com. The form and method of notifying the Settlement
Class of the pendency of the Action and all terms of the proposed
Settlement met the requirements of the Preliminary Approval Order, Rule
23 of the Federal Rules of Civil Procedure, due process, and any other
applicable law.
5.

The Settlement Agreement was negotiated at arm’s length, in

good faith, by capable and experienced counsel, with full knowledge of the
facts, the law, and the risks inherent in litigating the Action, and with the
involvement of the Parties. The Settlement Agreement is entitled to a
presumption of procedural fairness, and was entered into as the result of a
process that conformed to the procedural requirements of Rule 23 of the
Federal Rules of Civil Procedure.

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6.

The Settlement confers economic and non-economic benefits

upon the Settlement Class members, and will serve the public interest in
providing the Parties with repose from litigation.
7.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the

Court hereby finds that the Settlement is fair, reasonable, and adequate,
and therefore approves the Settlement and directs that the Settlement be
consummated in accordance with the terms of the Settlement Agreement.
8.

The Court hereby approves, as fair, reasonable, and adequate,

the allocation, i.e., the distribution of benefits to the Settlement Class
members and the means used to provide such benefits, as set forth in the
Settlement Agreement.
9.

The Court has considered Class Counsel’s request for an award

of $135,000 in attorneys’ fees and costs and expenses.

The Court

recognizes Class Counsel’s capable and zealous prosecution of the Action,
and notes that the requested fee award will be paid by Kohl’s Corporation
and thus will not diminish or erode the benefit to the Settlement Class.1
In that Kohl’s has agreed to pay the attorneys’ fees and costs in a sum
apart from the class award itself, and given the lack of objection by Kohl’s
to the fee application, the court does not find it necessary to review the
application itself in any detail. Cf. Brenner v. J.C. Penney Co., Inc., 2013
WL 6865667 (D. Mass., Dec. 26, 2013) (examining requested attorneys’ fee
award that was contested by opposing party, for, inter alia, excessive
duplication and overbilling). On a cursory examination, the number of
hours billed and gross amount claimed here do not appear unreasonable.

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The Court hereby approves the requested award of attorneys’ fees and costs
and expenses, in the amount of $135,000.
10.

In making this award of attorneys’ fees and costs and expenses,

the Court has considered and found that:
(a)

(b)

Class Counsel have conducted the litigation and achieved
the Settlement with skill, perseverance, and diligent
advocacy;

(c)

But for the Settlement, the litigation would involve further
lengthy proceedings, at considerable risk to the
Settlement Class, and with uncertain resolution of the
legal and factual issues;

(d)

Had Class Counsel not achieved the Settlement, there
would remain a significant risk that the Class
Representative and the Settlement Class may have
recovered less or nothing from Defendant;

(e)

The requested award of attorney’s fees, costs, and
expenses is presumed fair and reasonable, and consistent
with awards in similar cases; and

(f)

11.

The Settlement provides direct, immediate and tangible
economic benefits to the Settlement Class members, with
an economic value of $425,000;

The requested award of attorney’s fees will not diminish
the recovery of the Class; and is unopposed by Kohl’s.

The Court finds the requested incentive award for the Class

Representative to be justifiable under the facts of this case and the
applicable legal authorities, and notes that the award will be paid by

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Defendant and thus will not diminish or erode the benefit to the Settlement
Class.

Accordingly, the Court hereby approves the incentive award of

$3,000 for Plaintiff Jacqueline Brenner.
12.

The Court notes that there has been only one objection to the

Settlement (directed primarily at a perceived excess of legalese in the notice
sent to potential class members).
13.

The Court hereby dismisses the Action in its entirety, with

prejudice, and without costs except as otherwise provided in the Settlement
Agreement and expressly stated in this Final Approval Order or additional
Order of this Court.
14.

As of the effective date of the Settlement Agreement, the

releases set forth in the Settlement Agreement shall take effect, subject to
the terms thereof.
15.

Notwithstanding the entry of Judgment, this Court shall retain

exclusive and continuing jurisdiction and exclusive venue with respect to
the

consummation,

implementation,

enforcement,

construction,

interpretation, performance, and administration of the Settlement.
16.

If the Judgment of this Court does not become Final and

Conclusive, this Final Approval Order shall be rendered null and void, and
shall be vacated nunc pro tunc.

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17.

The Parties are hereby authorized, without requiring further

approval from the Court, to agree to and adopt amendments and
modifications to the Settlement Agreement, in writing and signed by the
Parties, that are not inconsistent with this Final Approval Order and that do
not limit the rights of the members of the Settlement Class.
IT IS SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Dated:

Boston, MA
March 12, 2014

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