Gilbert v. Abercrombie & Fitch Co. et al

Filing 19

ORDER granting 18 Motion Preliminarily Approving Settlement and Setting Settlement Hearing. Signed by Judge George C. Smith on 3/24/16. (lvw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC GILBERT,
On behalf of himself and others similarly
situated,
Plaintiff,
v.
ABERCROMBIE & FITCH CO., et al.,
Defendants.

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CASE NO. 2:15-cv-02854
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE
NORAH MCCANN KING

ORDER PRELIMINARILY APPROVING SETTLEMENT AND
SETTING SETTLEMENT HEARING
Plaintiff Eric Gilbert, on behalf of himself and others similarly situated (“Gilbert” or
“Class Plaintiff”),

Defendant Abercrombie & Fitch Co. (“ANF” or the “Company”) and

Defendants Arthur C. Martinez, James B. Bachmann, Bonnie R. Brooks, Terry L. Burman, Sarah
M. Gallagher, Michael E. Greenlees, Archie M. Griffin, Charles R. Perrin, Stephanie M. Shern
and Craig R. Stapleton (the “Individual Defendants”) and Wells Fargo Bank, N.A. (“Wells
Fargo”) (collectively, “Defendants”) have entered into the Stipulation and Agreement of
Settlement (the “Stipulation”) dated February 18, 2016, which sets forth the terms and conditions
of the proposed settlement (the “Settlement”) of the above-captioned class action (the “Gilbert
Action”), subject to review and approval by the Court pursuant to Rule 23(e) of the Federal
Rules of Civil Procedure.
Class Plaintiff has moved for an Order preliminarily approving the Settlement in
accordance with the terms of the Stipulation, certifying a Class for settlement purposes only and
providing for notice of the Settlement.

The Court has read and considered the Stipulation and its exhibits, including (i) the
proposed means by which Notice will be provided (the “Notice”) and (ii) the Order and Final
Judgment Approving Class Action Settlement (the “Final Judgment”).
Finding that substantial and sufficient grounds exist for entering this Order, the Court
hereby ORDERS as follows:
1.

This Order incorporates by reference the definitions in the Stipulation and,
unless otherwise defined in this Order, all capitalized terms used in this
Order shall have the same meaning as set forth in the Stipulation.

2.

The Court preliminarily approves, for settlement purposes only: (i) the
certification of the Class as a non “opt-out” class action pursuant to
Federal Rules of Civil Procedure 23(a) and 23(b)(1)(A) and (b)(2); (ii) the
appointment of Eric Gilbert as Class Representative for the Class; and (iii)
the appointment of Kessler Topaz Meltzer & Check, LLP as Class
Plaintiff’s Lead Counsel for the Class.

3.

The Court preliminarily approves the Settlement on the terms set forth in
the Stipulation, subject to further consideration at a hearing to be held
before the Court on JUNE 28, 2016, at 10:00 A.M., before Magistrate
Judge King in Room 228, at the United States District Court for the
Southern District of Ohio, 85 Marconi Boulevard, Columbus, Ohio 43215
(the “Settlement Hearing”), to, among other things: (i) determine whether
the proposed Settlement, on the terms and conditions provided for in the
Stipulation, should be approved by the Court; (ii) determine whether the
Released Claims against Defendants should be dismissed with prejudice as

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set forth in the Stipulation; (iii) determine whether Plaintiff’s Counsel’s
application for an award of Attorneys’ Fees and Expenses should be
approved; and (iv) rule on such other matters as the Court may deem
appropriate.
4.

The Court expressly reserves the right to adjourn the Settlement Hearing,
or any adjournment thereof, without any further notice to the Class other
than an announcement at the Settlement Hearing or any adjournment of
the Settlement Hearing.

5.

The Court reserves the right to approve the Settlement with or without
modification and with or without further notice of any kind. The Court
further reserves the right to enter its Final Judgment approving the
Settlement and dismissing the Released Claims against the Defendants
with prejudice regardless of whether the Court has awarded Attorneys’
Fees and Expenses.

6.

The Court approves the form, content and requirements of the Notice
attached to the Stipulation as Exhibit B, and finds that the posting of the
Notice, substantially in the manner and form set forth in this Order, meets
the requirements of Rule 23(e) of the Federal Rules of Civil Procedure and
due process, and constitutes due and sufficient notice of all matters
relating to the Settlement.

7.

By no later than fifteen (15) business days after the date of entry of this
Order (the “Notice Date”), ANF shall cause to be filed with the Securities
and Exchange Commission a Form 8-K in substantially the form attached

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to the Stipulation as Exhibit B. ANF shall likewise post a copy of the
Form 8-K and the Stipulation on its corporate website and keep it posted
there through the Settlement Effective Date. ANF shall be responsible for
and shall pay all costs and expenses incurred, if any, in providing such
Notice, whether or not the Settlement becomes effective.
8.

By no later than five (5) calendar days before the Settlement Hearing,
ANF’s counsel shall file with the Court an appropriate proof of
compliance with the notice procedures set forth in this Order.

9.

Any person who owns shares of ANF common stock as of the Notice Date
through the date of the Settlement Hearing may appear at the Settlement
Hearing to show cause why the proposed Settlement should not be
approved; why the Final Judgment should not be entered thereon; or why
Class Plaintiff’s Counsel’s application for an award of Attorneys’ Fees
and Expenses should not be granted; provided, however, that no such
person shall be heard or entitled to contest the approval of the terms and
conditions of the proposed Settlement, the Final Judgment to be entered
approving the same, or the application for Attorneys’ Fees and Expenses,
unless such person has filed with the Clerk of the United States District
Court for the Southern District of Ohio, 85 Marconi Boulevard,
Columbus, Ohio 43215, and served (by hand, first-class mail or express
service) on Class Plaintiff’s Lead Counsel, counsel for ANF, counsel for
the Individual Defendants and counsel for Wells Fargo, at the addresses
below, a written notice of objection that includes: (i) the objector’s name,

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address and telephone number (and if represented, that of his, her or its
counsel), along with a representation as to whether the objector intends to
appear at the Settlement Hearing; (ii) proof that the objector owned shares
of ANF common stock as of the Notice Date, and continues to hold such
shares; (iii) a statement of the objections to any matters before the Court,
the grounds for the objections or the reasons for the objector’s desiring to
appear and be heard, as well as all documents or writings the objector
desires the Court to consider, including any legal and evidentiary support;
and (iv) if the objector has indicated that he, she or it intends to appear at
the Settlement Hearing, the identities of any witnesses the objector may
call to testify and any exhibits the objector intends to introduce into
evidence at the Settlement Hearing. Any such objection must be filed
with the Court and received by the below-noted counsel by no later than
fourteen (14) calendar days prior to the Settlement Hearing.
Class Plaintiff’s Lead Counsel
Eric L. Zagar
KESSLER TOPAZ MELTZER &
CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Counsel for ANF
John J. Kulewicz
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, Ohio 43215

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Counsel for the Individual Defendants
Aneca E. Lasley
Squire Patton Boggs (US) LLP
2000 Huntington Center
41 South High Street
Columbus, OH 43215-6101
Counsel for Wells Fargo
Charles W. Cox
ALSTON & BIRD LLP
333 South Hope Street, 16th Floor
Los Angeles, California 90071
10.

Any person or entity who fails to object in the manner prescribed above
shall be deemed to have waived such objection and shall forever be
foreclosed from making any objection in the Gilbert Action or any other
action or proceeding to the Settlement, the Final Judgment to be entered
approving the Settlement, or the application for Attorneys’ Fees and
Expenses.

11.

Class Plaintiff’s Lead Counsel shall file and serve papers in support of
final approval of the proposed Settlement and in support of their
application for Attorneys’ Fees and Expenses by no later than twenty-one
(21) calendar days prior to the Settlement Hearing. If reply papers are
necessary, they are to be filed and served by no later than seven (7)
calendar days prior to the Settlement Hearing.

12.

In the event the Settlement is terminated or the Settlement Effective Date
does not occur for any reason, then: (i) the Settlement shall be null and
void and without prejudice, and none of its terms shall be effective or
enforceable except as specifically provided in the Stipulation; (ii) the
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Parties shall be deemed to have reverted to their respective positions in the
Gilbert Action immediately prior to the execution of the Stipulation; and
(iii) except as otherwise expressly provided in the Stipulation, the Parties
shall proceed in all respects as if the Stipulation and any related orders had
not been entered.
13.

All pleading deadlines, discovery and other proceedings in the Gilbert
Action (except as may be necessary to carry out the terms and conditions
of the proposed Settlement) are hereby stayed and suspended until further
order of the Court.

Pending the final determination of whether the

Settlement should be approved, Class Plaintiff shall not institute,
commence or prosecute any action that asserts any Released Claim against
any of the Released Persons.
14.

The Court retains exclusive jurisdiction over the Gilbert Action to
consider all further matters arising out of or related to the Settlement.

IT IS SO ORDERED.

Dated: March 24, 2016

s/George C. Smith__________________
GEORGE C. SMITH
UNITED STATES DISTRICT JUDGE

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