Brenner v. J.C. Penney Company, Inc.

Filing 23

Judge Richard G. Stearns: ORDER entered granting 14 Motion for Settlement; granting in part and denying in part 16 Motion for Attorney Fees and Costs. Costs are being awarded at this time, and the Court will defer an award of attorneys' fees until such time as the Court has reviewed the briefing on the issue to be submitted in accordance with the schedule established by the Court at the October 9, 2013 hearing. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11212
JACQUELINE BRENNER, on behalf of herself :
and all others similarly situated
v.
J. C. PENNEY COMPANY, INC.
FINAL APPROVAL ORDER
October 10, 2013
STEARNS, D.J.
This matter having come before the Court for a Final Approval Hearing
on October 9, 2013, pursuant to the Preliminary Approval Order of this Court
dated July 9, 2013, on the application of Plaintiff for final approval of the
Settlement Agreement executed on or about May 17, 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 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 J.C. Penney Company, Inc. and all members of the Settlement Class.
2. The Court reaffirms the Preliminary Approval Order certifying the
Settlement Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3) and finally
certifies the Settlement Class defined as: All persons from whom J.C. Penney
requested and recorded a ZIP code in conjunction with a credit card purchase
transaction in a Massachusetts retail store from March 10, 2009 through July
9, 2013, and for whom J.C. Penney maintains an email address or mailing
address. 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.
3. The Court appoints Jacqueline Brenner as Class Representative and
D. Greg Blankinship, Todd S. Garber and the law firm of Meiselman, Packman,
Nealon, Scialabba & Baker P.C. as Class Counsel, and finally appoints them to
such positions.
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 to more than 200,000 Settlement Class members and
publication of the notice on the internet at brennervjcpzipcodesettlement.com.
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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, Fed. R. Civ. P. 23, and any other applicable law,
and no Class member has objected thereto.
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 active
involvement of the Parties. The Settlement Agreement is entitled to a
presumption of procedural fairness.
6. The Settlement confers economic and non-economic benefits upon the
Settlement Class members, is not contrary to the public interest, and will
provide the Parties with repose from litigation.
7. Pursuant to Fed. R. Civ. P. 23, the Court 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 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
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$450,000 in attorneys’ fees and $8,802.33 in costs and expenses and the
opposition by counsel for J.C. Penney Company to the amount of the attorneys’
fees requested (which under the terms of the Settlement Agreement is to be
paid by J.C. Penney Company and will not diminish or erode the benefit to the
Settlement Class). At this time, the Court awards costs and expenses in the
amount of $8,802.33, to which there has been no objection. The Court will
defer an award of attorneys’ fees until such time as the Court has reviewed the
briefing on the issue to be submitted according to the schedule established by
the Court at the October 9, 2013 hearing.
10. The Court has considered the request for an incentive award for the
Class Representative. The Court finds the requested incentive award to be
justified under the facts of this case and the applicable legal authorities, and
notes that the requested incentive award will be paid by Defendant and thus
will not diminish or erode the benefit to the Settlement Class. Accordingly, the
Court approves the proposed incentive award of $5,000 to Plaintiff Class
Representative Jacqueline Brenner.
11. The Court notes that there have been no objections to the Settlement.
12. 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
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Court.
13. 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.
14. 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.
15. 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.
16. 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.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE
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