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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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FINEMAN POLINER LLP Neil B. Fineman, Esq. – SBN 177915 Email: [email protected] Phillip R. Poliner, Esq. – SBN 156145 Email: [email protected] 155 North Riverview Drive Anaheim Hills, California 92808-1225 Tel. (714) 620-1125 - Fax (714) 701-0155 Lee G. Werner (SBN: 84744) WERNER LAW FIRM 18200 Von Karman Avenue, Suite 900 Irvine, California 92612 P | (949) 553-1328 F | (949) 553-8454 Email: [email protected] Attorneys for Plaintiff, PERRY JOHNSON
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
PERRY JOHNSON and LAYNE BUTLER,
on behalf of a class of similarly situated
individuals, and themselves individually,
Plaintiffs,
v.
ASHLEY FURNITURE INDUSTRIES, INC.,
Wisconsin Corporation; and Does 1 through
25, inclusive,
Defendants.
Case No.: 13-CV-2445-BTM (DHB)
CLASS ACTION
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; DECLARATIONS OF LEE G. WERNER, PHILLIP R. POLINER AND NEIL B. FINEMAN [Filed Concurrently with Class Action Settlement Agreement and [Proposed] Order]
Date: August 19, 2015 Time: 10:00 a.m. Ctrm.: 15B, 15th Fl. Judge: Hon. Barry T Moskowitz
Case 3:13-cv-02445-BTM-DHB Document 35-1 Filed 06/29/15 Page 1 of 36
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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TABLE OF CONTENTS
I. INTRODUCTION 1
II. BRIEF EXPLANATION OF ALLEGATIONS 2
III. BASIS OF LIABILITY 2
IV. BASIC ELEMENTS OF THE PROPOSED SETTLEMENT 3
A. Establishment of the Class 4
B. Compliance with Civil Code Section 1747.08 5
C. Class Members May Opt-Out of Their PII being used by Defendant for
Marketing Purposes 5
D. Distribution of Pecuniary Benefits to the Class 5
E. Right to Elect Not to Participate in the Settlement 6
F. Right to Object 6
G. Incentive Award Paid By Defendant – Not the Class 6
H. Attorneys’ Fees and Costs Paid By Defendant – Not the Class 7
V. CRITERIA AND EVIDENCE ESTABLISHING THE FAIRNESS OF
THE SETTLEMENT 8
A. Strength of Plaintiff’s Case 9
B. The Risk, Expense, Complexity, and Duration of Further Litigation and
the Risk of Maintaining Class Action Status Through Trial 9
C. The Benefits Provided In Settlement 10
D. The Extent of Discovery and Stage at Which Settlement Is Reached 11
E. Experience and Views of Counsel 11
F. Presence of Governmental Participants 12
G. The Proposed Settlement Resulted from Serious, Informed and Non-
Collusive Arm’s Length Negotiations 12
VI. THE PROPOSED CLASS MEETS THE CRITERIA FOR
CERTIFICATION 12
A. The Settlement Satisfies the Requirements of Rule 23(a) 12
1. Numerosity 12
2. Commonality 13
3. Typicality 13
4. Adequacy 13
B. The Settlement Should be Certified Under Rule 23(b)(3) 14
1. Common Questions Predominate Over Individual Issues 15
2. A Class Action is the Superior Method to Settle this Controversy 16
Case 3:13-cv-02445-BTM-DHB Document 35-1 Filed 06/29/15 Page 2 of 36
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Table of Contents, cont.
VII. THE FORM AND METHOD OF PROVIDING CLASS NOTICE
MEETS DUE PROCESS REQUIREMENTS AND SHOULD BE
APPROVED 16
VIII. IF THE SETTLEMENT IS PRELIMINARILY APPROVED, THE
COURT SHOULD SCHEDULE A HEARING ON FINAL
SETTLEMENT APPROVAL 18
IX. CONCLUSION 19
DECLARATION OF NEIL B. FINEMAN 20
DECLARATION OF LEE G. WERNER 25
DECLARATION OF PHILLIP R. POLINER 27
Case 3:13-cv-02445-BTM-DHB Document 35-1 Filed 06/29/15 Page 3 of 36
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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TABLE OF AUTHORITIES
CASES PAGE
7-Eleven Owners for Fair Franchising v. Southland Corp.
85 Cal.App.4th 1135 (2000) 9
Adams v. Inter-Con Security Systems, Inc.
No. C-06-5428 MHP, 2007 WL 3225466 (N.D. Cal. Oct. 30, 2007) 12
Amchem v. Windsor
521 U.S. 591 (1997) 15, 16
Chavez v. Netflix, Inc.
(2008) 162 Cal.App.4th 43 11
Churchill Village v. General Electric
361 F.3d 566 (9th Cir. 2004) 17
Davis v. Devanlay Retail Group, Inc.
785 F.3d 359 (9th Cir. 2015) 8
Deposit Guaranty National Bank v. Roper
445 U.S. 326 (1980) 16
Detroit v. Grinnell Corp.
495 F.2d 448 (2nd. Cir. 1974) 9
Eisen v. Carlisle & Jacquelin
417 U.S. 156 (1974) 16
Florez v. Linens ‘N Things, Inc.
108 Cal.App.4th 447 (2003) 2, 8
General Telephone Company of the Southwest v. Falcon
457 U.S. 147 (1982) 15
Hanlon v. Chrysler Corp.
150 F.3d 1011 (9th Cir. 1998) 12-16
Hanon v. Dataproducts Corp.
976 F.2d 497 (9th Cir. 1992) 13
In re Compact Disc Minimum Advertised Price Antitrust Litigation
216 F.R.D. 197 (D. Me. 2003) 17
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Table of Authorities continued
In re Corrugated Container Antitrust Litigation
643 F.2d 195 (5th Cir. 1981) 11
In re First Alliance Mortgage Co.
471 F.3d 977 (9th Cir. 2006) 13
In re Immune Response Securities Litigation
497 F. Supp. 2nd 1166, at 1169-1170 (S.D. Cal. 2007) 7, 8
In re Mercury Interactive Corp. Securities Litigation
618 F.3d 988 (9th Cir. 2010) 7
Local Joint Executive. Board of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.
244 F.3d 1152 (9th Cir. 2001) 15
Mendoza v. Tucson School District No. 1
623 F.2d 1338 (9th Cir. 1980) 17
Mullane v. Central Hanover Bank & Trust Co.
339 U.S. 306 (1950) 16
National Rural Telecommunications Cooperative v. DIRECTV, Inc.
221 F.R.D. 523 (C.D. Cal. 2004) 8, 10, 11
Officers of Justice v. Civil Service Commission
688 F.2d 615 (9th Cir. 1982) 9
Pineda v. Williams-Sonoma Stores, Inc.
51 Cal.4th 524 (2011) 8, 9
Staton v. Boeing
327 F.3d 938 (9th Cir. 2003) 14
The TJX Companies, Inc. v. Superior Court
(2008) 163 Cal.App.4th 80 3
Valentino v. Carter-Wallace, Inc.
97 F.3d 1227 (9th Cir. 1996) 16
Wiener v. Dannon Co., Inc.
255 F.R.D. 658 (C.D. Cal. 2009) 12-16
Williams v. Vukovich
720 F.2d 909 (6th Cir.1983) 10
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Table of Authorities continued
Zinser v. Accufix Research Institute, Inc.
253 F.3d 1180 (9th Cir. 2001) 16
Vasquez v. Superior Court
(1974) 4 Cal.3d 800 16
STATUTES AND RULES
Civil Code section 1747.08 passim
Federal Rules of Civil Procedure, rule 23 passim
SECONDARY AUTHORITY
Federal Practice & Procedure § 1777 (2d ed. 1986) 14
Manual for Complex Litigation § 21.633 (4th ed. 2004) 18
Newberg on Class Actions § 11.41 (4th ed. 2007) 12
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1 PLAINTIFF’S NOTICE OF MOTION AND UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
I. INTRODUCTION
Defendant, Ashley Furniture Industries, Inc., (“Defendant”), manufactures and
distributes furniture and home furnishing accessories. Defendant licenses the trademark name
“Ashley Furniture HomeStore” to licensees that operate Ashley Furniture HomeStores in
California.1
This action arises from Defendant’s alleged violations of the Song-Beverly Credit Card
Act, codified in California Civil Code section 1747.08 (the “Act” or “Section 1747.08”), by
and through its alleged practice whereby Defendant requested and recorded personal
identification information, in the form of telephone numbers, addresses, and/or e-mail
addresses, from customers using credit cards at the point-of-sale in Defendant’s California
stores.
After an initial investigation; Court Orders regarding Defendant’s Motions to Strike
and Dismiss; discovery; and three (3) separate days of Early Neutral Evaluation Conferences
with the Honorable David H. Bartick, United States Magistrate Judge, the Parties reached a
class wide resolution and entered into a proposed Settlement Agreement and Release
(“Agreement,” filed concurrently).
Plaintiff’s counsel believes that the proposed settlement is fair, reasonable and
adequate; therefore, Plaintiff now moves the Court for an order: (1) preliminarily approving
the Settlement Agreement as being fair, reasonable, and adequate; (2) provisionally certifying
the class under Federal Rule of Civil Procedure 23 for settlement purposes only; (3)
preliminarily approving the form, manner, and content of the Class Notices and Claim Form;
(4) appointing Plaintiff Perry Johnson as the class representative; (5) appointing the law firms
of Fineman Poliner LLP, and the Werner Law Firm as counsel for the class; and (6) setting the
date and time of the Fairness Hearing.
1 All licensees that are participating in the proposed settlement are referred to collectively
herein as “Defendant.”
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II. BRIEF EXPLANATION OF ALLEGATIONS
As alleged in the complaint, Plaintiff visited one of Defendant’s retail stores in
California and purchased an item using his personal credit card. Because he was taking the
item with him rather than having the item delivered to his home, there was no need for
Defendant to request and record any personal identification information (“PII”) from Plaintiff.
However, Mr. Johnson contends the Defendant’s cashier did in fact request and record Mr.
Johnson’s PII, and that the cashier did so pursuant to an alleged uniform policy and practice of
Defendant. The complaint in this action asserts that the requesting and recording of Mr.
Johnson’s PII was a patent violation of Section 1747.08. Defendant denies all claims of
wrongdoing and asserts several affirmative defenses on the grounds that it did not engage in
the alleged conduct and it did not violate the Song-Beverly Credit Card Act or any other laws
relating to its alleged conduct.
III. BASIS OF LIABILITY
The Act states in relevant part:
(a) Except as provided in subdivision (c), no person, firm, partnership, association, or
corporation which accepts credit cards for the transaction of business shall do either of
the following:
(2) Request, or require as a condition to accepting the credit card as payment in full
or in part for goods or services, the cardholder to provide personal identification
information, which the person, firm, partnership, association, or corporation
accepting the credit card writes, causes to be written, or otherwise records upon the
credit card transaction form or otherwise.”
(Civ.Code, § 1747.08(a)(2); emphasis added.)
Under the Act, “personal identification information” means information concerning the
cardholder, other than information set forth on the credit card, and including, but not limited
to, the cardholder’s address and telephone number. (Civ.Code, § 1747.08(b).)
The Act was designed to promote consumer protection. (Florez v. Linens ‘N Things,
Inc. (2003) 108 Cal.App.4th 447, 450.) “The act imposes fair business practices for the
protection of the consumers. Such a law is remedial in nature and in the public interest and is
to be liberally construed to the end of fostering its objectives.” (Id.)
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Section 1747.08 was originally enacted as a response to two principal privacy
concerns: first, that with increased use of computer technology, very specific and personal
information about a consumer’s spending habits was being made available to anyone willing
to pay for it; and second, that acts of harassment and violence were being committed by store
clerks who obtained customers’ phone numbers and addresses.2
The Act was intended to keep the customer’s credit card number separated from their
personal information such as address, telephone number, birth date, etc., in order to prevent
thieves from obtaining both at the same time (i.e., “dumpster diving”) and engaging in credit
card fraud, usually over the telephone or the Internet.3 When drafting Section 1747.08, the
Legislature was well aware that anyone with access to a consumer’s credit card number and
other personal identification information, could access their credit history, open credit in their
name, or charge something in their name.4
Pursuant to the Act, a violator of the statute shall be liable for a civil penalty of up to
$250.00 for the first violation and up to $1,000.00 for each subsequent violation of the statute.
(Civ.Code § 1747.08(e).) Although a violator of the statute is subject to a mandatory civil
penalty, the amount of the civil penalty to be imposed against a Defendant is discretionary.
The civil penalties are capped at $1,000 per violation, but could be as little as a penny or the
“proverbial peppercorn.” (See, The TJX Companies, Inc. v. Superior Court (2008) 163
Cal.App.4th 80, 86-87.)
IV. BASIC ELEMENTS OF THE PROPOSED SETTLEMENT
The settlement was reached after arms-length negotiations by experienced counsel on
both sides with assistance of Judge Bartick. Over the course of three (3) separate days
(January 29, 2015, February 19, 2015, and April 1, 2015), Judge Bartick masterfully mediated
the matter and was instrumental in getting the Parties to reach a settlement. (See, Declaration
2 Id. at 452. See also, Off. of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 1316 (1995-1996
Reg. Sess.) July 18, 1995, p. 3.
3 Assem. Floor Analysis, 3d reading of Assem. Bill No. 2533 (1995-1996 Reg. Sess.) May 15, 1996, pp. 1-2.
4 Dept. Consumer Affairs, Analysis of Assem. Bill No. 1316 (1995-1996 Reg. Sess.) p. 1.
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of Neil B. Fineman (“Fineman decl.”) p.22 ¶ 7.) The proposed settlement provides that
Defendant will agree to a provisional class for settlement purposes and will provide pecuniary
and non-pecuniary benefits to settlement class members, while settlement class members will
only release claims based on facts alleged in the complaint. A fuller explanation follows.
A. Establishment of the Class.
In order to avoid the risk and expense of litigating whether a class should be certified,
the parties agreed for the purposes of settlement only, that this action meets the requirements
of a “class action” pursuant to Federal Rules of Civil Procedure, Rule 23, as fully explained in
Section V of this memorandum. The parties seek to conditionally certify a plaintiff class
defined as:
“All Ashley Furniture HomeStore customers who were requested or required to provide, and did provide and had recorded, their personal identification information (which includes, but is not limited to, a customer’s address, ZIP code, telephone number, and/or email address), during a credit card transaction at a Ashley Furniture HomeStore in California between October 10, 2012 and the Preliminary Approval Date, and who took all of their purchases with them at the conclusion of the transaction.”5 (Agreement, § 3.4.)
Upon preliminary approval, Defendant anticipates that its records will identify
approximately 15,000 “Known Class Members,” defined as class members who can be
identified from Defendant’s records (Agreement, § 3.12.), i.e., customers who (1) paid with a
credit card; (2) had their PII requested and recorded, and (3) took their purchases with them.
In addition to the 15,000 “Known Class Members”, there are approximately 10,000
“Unknown Class Members”. “Unknown Class Members” are Defendant’s customers who,
during the period of 2012 to 2013, had their PII requested and recorded by Defendant, but
5 class members do not include (a) AFI, AHS, Southwestern, Stoneledge, Del Monte Furniture Rental, Inc., Empty Heads, Inc., Dobbs TV and Appliance Limited Partnership, MPB Furniture Corporation, Santa Maria Décor, Inc., River Rock Interiors, Inc., Sang Kim, Corp., Saki Trans, Inc., Visalia Sang Kim, Corp., Fairfield Furniture Solutions, Inc., Rohnert Park Furniture Solutions, Inc., Fremont Furniture Solutions, Inc., Concord Furniture Solutions, Inc., and Oakland Furniture Solutions, Inc., and their respective parents, subsidiaries, affiliates, and control persons, as well as officers, directors, agents, attorneys, employees, and immediate family members of all such persons, and (b) the Court and its staff.
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because Defendant’s point of purchase systems during that time did not distinguish between
credit card and non-credit card transactions, or between Take-With transactions and other
transactions, Defendant cannot accurately distinguish how many of these 10,000 customers
who provided PII meet the other two requirements of “known” class members, e.g. (1) used a
credit card, and (2) took purchases with them. (Agreement, § 3.18.)
B. Compliance with Civil Code Section 1747.08.
As part of the settlement, Defendant agrees to comply with the provisions of Civil
Code sections 1747.08 et seq. in its California retail stores. Specifically, Defendant’s licensees
agreed that following preliminary approval of the proposed settlement (if preliminary approval
is granted), these licensees will no longer request PII in conjunction with any “Take With”
transaction at Ashley Furniture HomeStores they operate in California. (Agreement, § 4.1 and
4.2.)
C. Class Members May Opt-Out of Their PII being used by Defendant for
Marketing Purposes.
Defendant has agreed, for those class members who desire, not to use class members’
PII for marketing purposes. (Agreement, § 4.1.)
D. Distribution of Pecuniary Benefits to the Class.
If the settlement agreement is given final approval, Defendant or the Claims
Administrator, will automatically distribute to each of the estimated 15,000 “Known Class
Members” a $25.00 Merchandise Voucher (not a coupon), which will be available to each
class member in the form of a store credit, without the need of making any claim to receive the
benefit. (Agreement, §§ 3.20, 4.3.) The same $25 Merchandise Voucher will be made
available to the estimated 10,000 “Unknown Class Members” upon the submission of a timely
and valid Claim Form wherein the Unknown Class Member attests that he/she used a credit
card (not a debit card) to make a purchase of a take-with item (not an item for delivery).
(Agreement, § 5.30.)6
6 As discussed, in section IV.A., Unknown class members includes customers who had their PII requested and
recorded, but Defendant cannot distinguish which of these 10,000 customers also used a credit card and took
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The $25.00 Merchandise Voucher may be used at the California Ashley Furniture
HomeStores listed in the information each Class Member will receive from the Claims
Administrator and may be used multiple times by the class member until the full $25.00 is
extinguished. (Agreement, § 3.20.) The Merchandise Voucher is valid for 18 months from the
final approval date (if final approval is granted).7 Defendant sells a large variety of “take with”
items costing less than $25.00 (e.g., vases, picture frames, and other house hold accessories)
so class members can literally walk into one of Defendant’s California regional retail stores
and walk out with a free product. For example, the product purchased by Plaintiff in this case
was a vase which cost $16.99.
E. Right to Elect Not to Participate in the Settlement
Any person who wishes to request to be excluded from or opt out of the settlement
must submit a written, signed Request for Exclusion to the Settlement Administrator, within
the deadline set by the Court. (Agreement § 5.4.)
F. Right to Object
Any class member who wishes to object to the settlement must file a signed, written
objection with the Court and serve copies on Class Counsel within the deadline set by the
Court. (Agreement § 5.6.1.)
G. Incentive Award Paid By Defendant – Not the Class.
After the parties reached an agreement as to the class benefits, counsel for the parties
then engaged in arms-length negotiations in regard to an incentive award for the named
Plaintiff and class counsels’ attorneys’ fees and costs. The parties agreed that based upon the
time, as well as the risks to him in bringing the litigation, a modest incentive award of
$5,000.00 was agreeable to the parties. (Agreement, § 4.8.)
purchases with them. Therefore in order to provide a benefit to the customers who did use a credit card and took
their items – and to prevent fraud against Defendant by customers who did not use a credit card and/or did not take
items with them – a claims process is necessary for this group.
7 Because the Certificate and Voucher will be e-mailed and/or mailed directly to the class, the parties believe class
members will use the Voucher within a short period of time after final approval and not hold on to the benefits
beyond the 18 month expiration.
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Plaintiff will provide further supporting documentation and briefing regarding the
agreed upon awards for the class representative’s incentive payment in his Motion for an
Award of Attorneys’ Fees and Costs to Class Counsel and for Incentive Award to the Class
Representative.
H. Attorneys’ Fees and Costs to be Paid By Defendant – Not the Class.
With the aid of Judge Bartick, the Parties agreed through arms-length negotiations, that
“an award of attorneys’ fees and costs (combined) in the amount of $140,000.00 to class
counsel is fair and reasonable, in light of the nature and circumstances of the Action,” and fees
and costs are to be paid by Defendant, and not from the class or any common fund.
(Agreement, § 4.7.) Plaintiff will provide further supporting documentation and briefing
regarding the agreed upon awards for attorneys’ fees and costs in his Motion for an Award of
Attorneys’ Fees and Costs to Class Counsel and for Incentive Award to the Class
Representative. Plaintiff’s’ Motion for attorneys’ fees will be filed prior to the objection
deadline. (See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010).)
V. CRITERIA AND EVIDENCE ESTABLISHING THE FAIRNESS OF THE
SETTLEMENT
As explained by the Court in In re Immune Response Secs. Litigation, 497 F. Supp.
2nd 1166, at 1169-1170 (S.D. Cal. 2007):
“‘Although Rule 23(e) is silent respecting the standard by which a proposed
settlement is to be evaluated, the universally applied standard is whether the
settlement is fundamentally fair, adequate and reasonable.’ Officers for Justice,
688 F.2d at 625; see also Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375
(9th Cir. 1993). When determining whether approval of a settlement is
warranted, courts consider ‘several factors which may include, among others,
some or all of the following: [1] the strength of Plaintiffs’ case; [2] the risk,
expense, complexity, and likely duration of further litigation; [3] the risk of
maintaining class action status throughout the trial; [4] the amount offered in
settlement; [5] the extent of discovery completed, and the stage of the
proceedings; [6] the experience and views of counsel; [7] the presence of a
governmental participant; and [8] the reaction of the class members to the
proposed settlement.’ Torrisi, 8 F.3d at 1375; see also Hanlon v. Chrysler Corp.,
150 F.3d 1011, 1026 (9th Cir. 1998).”
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“Not all of these factors will apply to every class action settlement. Under certain
circumstances, one factor alone may prove determinative in finding sufficient grounds for court
approval. See, e.g., Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir.1993).”
(National Rural Telecommunications Cooperative v. DIRECTV, Inc. 221 F.R.D. 523, 525-26
(C.D. Cal. 2004).)
A. Strength of Plaintiff’s Case
Defendant and/or its licensees acknowledge that it often requested and recorded
customers’ personal identification information. However, Defendant contends that any
personal identification information provided was done so voluntarily or its consumer
transactions fall within one or more of the Act’s statutory exemptions in any event. Defendant
also contends that it would be difficult for Plaintiff to certify a class in this case if contested.
Plaintiff contends that voluntarily providing PII during a credit card transaction is not a
defense. The seminal case interpreting Civil Code section 1747.08 makes it clear that obtaining
personal identification information such as telephone numbers and addresses voluntarily in
connection with a credit card purchase is prohibited. (Florez, supra,, 108 Cal.App.4th at 453
[“As we read it, the legislative intent suggests the 1991 amendment simply clarified that a
“request” for personal identification information was prohibited if it immediately preceded the
credit card transaction, even if the consumer’s response was voluntary and made only for
marketing purposes”].) Further, the California Supreme Court’s unanimous decision in Pineda
v. Williams-Sonoma Stores, Inc., confirmed that there is no “voluntary” defense in 1747.08
cases. (Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524 (2011).) However, this question
is currently the subject of an Order Certifying a Question to the California Supreme Court by
the United States Court of Appeals for the Ninth District (Davis v. Devanlay Retail Group, Inc.
785 F.3d 359, 360 (9th Cir. 2015)), so the viability of the “voluntary” defense has yet to be
decided.
However, at this stage, the Court need only to conduct a prima facie review of the
relief and notice provided by the settlement to determine whether notice should be sent to the
settlement class members. (In re Immune Response, 497 F.Supp.2d at 1172.) It is simply “not
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appropriate for the court to attempt to settle these questions of law and fact: ‘[T]he settlement
or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits. Neither the
trial court nor [the appellate court] is to reach any ultimate conclusions on the contested issues
of fact and law which underlie the merits of the dispute, for it is the very uncertainty of
outcome in litigation and avoidance of wasteful and expensive litigation that induce
consensual settlements.’” (Id., citing Officers of Justice v. Civil Service Com., 688 F.2d 615,
625 (9th Cir. 1982).)
In sum, “the merits of the underlying class claims are not a basis for upsetting the
settlement of a class action; the operative word is ‘settlement.’“ (7-Eleven Owners for Fair
Franchising v. Southland Corp., 85 Cal.App.4th 1135, 1150 (2000). Even “[t]he fact that a
proposed settlement may only amount to a fraction of the potential recovery does not, in and
of itself, mean that the proposed settlement is grossly inadequate and should be disapproved.”
(Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2nd. Cir. 1974).)
Plaintiff believes his case is strong, but the outcome of this case is uncertain, and if
Defendant was to prevail on any of its arguments, the class would obtain little or nothing
through litigation. Even if Plaintiff was to convince the Court to certify the class after a
contested motion for class certification and eventually establish liability at trial, then the
amount of the civil penalty to be awarded (somewhere between a penny and $1,000) would
rest within the sound discretion of the trial court. (Pineda, 51 Cal. 4th at 536 (2011).) As such,
if Plaintiff and the class succeed at trial, the amount of the civil penalties to be awarded by the
Court is uncertain.
B. The Risk, Expense, Complexity, and Duration of Further Litigation and the
Risk of Maintaining Class Action Status Through Trial
The settlement takes into account the risk, expense, and complexity of further
litigation. Plaintiff and the class would have to retain additional experts to conduct forensic
analysis of the recording and storage of Defendant’s customer information, as well as experts
to perform an analysis in regard to the value of the collected information. Defendant would
vigorously oppose Plaintiff’s attempts to get a class certified and would also retain experts to
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defeat certification and the class claims.
Additional time consuming and expensive law and motion proceedings would be
necessary to narrow or eliminate the claims and defenses both at the certification stage and the
trial stage. The time and expense of further litigation could potentially negatively impact
Defendant’s business operations and would interfere with potential class members’
opportunity to obtain benefits promptly. Accordingly, the settlement at this stage in the
litigation benefits the Court and the parties, as well as the class.
C. The Benefits Offered in Settlement
Notwithstanding the conflicting legal arguments described above, each proposed class
member will be entitled to receive benefits in the amount of a $25.00 and class members will
be permitted to opt-out of Defendants’ email marketing campaigns. More importantly perhaps
for future consumers, Defendant has agreed to stop requesting and recording PII from
customers purchasing “take-with” items from Defendant’s stores, thereby limiting the threat of
identity theft and credit card fraud. Such recovery to the proposed class is without any risk of
the class not being certified and is without any risk that Plaintiff will not prevail as to liability
and/or penalties.
While it is true the civil penalties in this case could range from $1,000.00 down to the
proverbial peppercorn, “[i]n assessing the consideration obtained by the class members in a
class action settlement, it is the complete package taken as a whole, rather than the individual
component parts, that must be examined for overall fairness. In this regard, it is well-settled
law that a proposed settlement may be acceptable even though it amounts to only a fraction of
the potential recovery that might be available to the class members at trial.” (Nat. Rural Tele.
Coop., 221 F.R.D. at 527, internal citations and quotes omitted; see also, Williams v.
Vukovich, 720 F.2d 909, 922 (6th Cir.1983) [court may not withhold approval merely because
settlement is only a fraction of what a successful plaintiff would have received in a fully
litigated case].) Further, while the dollar value of the settlement per class member may be
relatively small, it must be remembered that Plaintiff does not allege that he or other class
members suffered any “damages” – and any allegation of alleged harm may be difficult to
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prove. (See, Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 55 [Six dollar benefit provided
by the settlement - free DVD rentals - directly addresses the harm alleged in the complaint].)
D. The Extent of Discovery and Stage at Which Settlement Is Reached
It is not the law that no class action can be settled until the last particle of discovery
has been completed and analyzed. (See, In re Corrugated Container Antitrust Litig., 643 F.2d
195, 211 (5th Cir. 1981) [“‘It is true that very little formal discovery was conducted and that
there is no voluminous record in the case. However, the lack of such does not compel the
conclusion that insufficient discovery was conducted’”].) (Emphasis omitted).
The settlement in this case came only after Plaintiff and his counsel conducted a
sufficient amount of investigation before and after filing the action. (Fineman decl., p. 22, ¶ 7;
and Declaration of Lee Werner (“Werner decl.”), p. 25, ¶¶ 3-5.) Plaintiff’s counsel conducted
extensive research prior to settlement regarding Defendant’s point-of-sale procedures and use
of personal identification information. (Werner decl., p. 25, ¶¶ 3-5.) Counsel also performed
independent research, consisting of exhaustive reviews of trade literature, civil dockets, and
legal filings. (Id.) Class Counsel then engaged in an informal exchange of discovery with
Defendant. (Id.) After all the information was obtained and analyzed, the parties were
sufficiently informed of the nature of the claims and defenses to be in a position to evaluate
the proposed settlement for its fairness, adequacy, and reasonableness. (Werner decl., p. 26, ¶
8.)
E. Experience and Views of Counsel
“‘Great weight’” is accorded to the recommendation of counsel, who are most closely
acquainted with the facts of the underlying litigation. This is because parties represented by
competent counsel are better positioned than courts to produce a settlement that fairly reflects
each party’s expected outcome in the litigation. (Nat. Rural Tele. Coop, 221 F.R.D. at 528,
internal citations and quotes omitted.)
Plaintiff’s counsel has extensive experience litigating consumer class actions and has
litigated numerous cases based upon violation of the Act. (Fineman decl., p. 20, ¶¶ 4-6.)
Plaintiff’s counsel has represented millions of consumers in numerous consumer class actions
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asserting violations of the Song-Beverly Credit Card Act, the Consumers Legal Remedies Act,
and California’s Unfair Competition Law. (Id.) Based upon Plaintiff’s counsels’ substantial
experience, they believe the present settlement is in the best interest of the class members due
to the significant recovery to the class members, without any risk of the class not being
certified and not prevailing as to liability and/or civil penalties. (Fineman decl., p. 23, ¶ 11.)
F. Presence of Governmental Participants
There is no governmental entity participating in this matter.
G. The Proposed Settlement Resulted from Serious, Informed and Non-
Collusive Arm’s-Length Negotiations
The requirement that a settlement be fair is designed to protect against collusion
among the parties. (See, Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).)
Typically, “[t]here is a presumption of fairness when a proposed class settlement, which was
negotiated at arm’s-length by counsel for the class, is presented for Court approval.” (Newberg
on Class Actions, § 11.41 (4th ed. 2007).)
Here, the fact Judge Bartick (masterfully) facilitated the settlement after three (3) days
of an Early Neutral Evaluation confirms that it is anything but collusive. (See, Adams v. Inter-
Con Sec. Sys. Inc., No. C-06-5428 MHP, 2007 WL 3225466, at *3 (N.D. Cal. Oct. 30, 2007)
[“The assistance of an experienced mediator in the settlement process confirms that the
settlement is non-collusive.”].) The negotiations were spirited and contentious, to say the least.
(Fineman decl. ¶ .) Accordingly, the settlement was the result of serious, informed, and non-
collusive arm’s-length negotiations.
VI. THE PROPOSED CLASS MEETS THE CRITERIA FOR CERTIFICATION
A. The Settlement Satisfies the Requirements of Rule 23(a)
Rule 23(a) enumerates four prerequisites for class certification: (1) numerosity; (2)
commonality; (3) typicality; and (4) adequacy. Plaintiff believes that each requirement is met.
1. Numerosity. Rule 23(a)(1) requires that “the class is so numerous that
joinder of all members is impracticable.” (Fed. R. Civ. P. 23(a); Wiener v. Dannon Co., Inc.,
255 F.R.D. 658, 664 (C.D. Cal. 2009).) Here, the numerosity requirement is readily met
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because joinder of absent class members would be exceedingly difficult. According to
Defendant, during the class period, there are 15,000 to 25,000 class members. As such, the
numerosity requirement is satisfied. (Fineman decl., p. 22, ¶ 9(a).)
2. Commonality. “The existence of shared legal issues with divergent factual
predicates is sufficient [to satisfy commonality], as is a common core of salient facts coupled
with disparate legal remedies within the class.” (Hanlon, 150 F.3d at 1019; In re First Alliance
Mortg. Co., 471 F.3d 977, 990-91 (9th Cir. 2006).) The commonality requirement is construed
“permissively.” (Hanlon, 150 F.3d at 1019; Wiener, 255 F.R.D. at 664.)
In this case, there are multiple “common issues” affecting the entire class and
Defendant’s liability; mainly, whether Defendant’s policy and practice of requesting and
recording customers’ PII during purchase transactions, violate California Civil Code section
1747.08. (Fineman decl., p. 23, ¶ 9(b).)
3. Typicality. Rule 23(a)(3) typicality is satisfied where the plaintiff’s claims
are “reasonably coextensive” with absent class members’ claims; they need not be
“substantially identical.” (Hanlon, 150 F.3d at 1020; see also Wiener, 255 F.R.D. at 665.) The
test for typicality “is whether other members have the same or similar injury, whether the
action is based on conduct which is not unique to the named Plaintiffs, and whether other class
members have been injured by the same course of conduct.” (Hanon v. Dataproducts Corp.,
976 F.2d 497, 508 (9th Cir. 1992).) Thus, “[t]he purpose of the typicality requirement is to
assure that the interest of the named representative aligns with the interests of the class.” (Id.)
Plaintiff alleges he was exposed to the same alleged unlawful policy and practice of
Defendant. Specifically, Plaintiff alleges that Defendant requested and recorded his PII during
a credit card purchase transaction which constituted a violation of section 1747.08.
Importantly, Plaintiff alleges no claims or facts unique to himself. Thus, the requirement of
typicality is satisfied. (Fineman decl., p. 23, ¶ 9(c).)
4. Adequacy. Rule 23(a)(4) requires that “the representative parties will fairly
and adequately protect the interests of the class.” Adequacy is satisfied where (i) counsel for
the class is qualified and competent to prosecute the action vigorously, and (ii) the interests of
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the proposed class representatives are not antagonistic to the interests of the class. (See, Staton
v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003); Hanlon, 150 F.3d at 1020; Weiner, 225 F.R.D. at
667.)8
Plaintiff has retained counsel with significant experience in prosecuting large
consumer protection class actions. (Fineman decl., p. 20, ¶¶5-6; Declaration of Phillip R.
Poliner, p. 27, ¶¶ 4-9.) Likewise, the proposed class representative is a member of the
proposed class and has the same interests as the class in maximizing the recovery from
Defendant. He alleges that Defendant requested and recorded his PII during a credit card
purchase transaction for a “take-with” item which constituted a violation of section 1747.08.
He alleges no claims or facts unique to himself or that conflict with the claims of absent class
members. Thus, Plaintiff is an adequate representative. (Fineman decl., p. 23, ¶ 9(d).)
B. The Settlement Class Should be Certified Under Rule 23(b)(3)
The Parties request that the Court, for the purposes of settlement, certify a class of the
following individuals under Rule 23(b)(3): “All Ashley Furniture HomeStore customers who
were requested or required to provide, and did provide and had recorded, their personal
identification information (which includes, but is not limited to, a customer’s address, ZIP
code, telephone number, and/or email address), during a credit card transaction at a Ashley
Furniture HomeStore in California between October 10, 2012 and the Preliminary Approval
Date, and who took all of their purchases with them at the conclusion of the transaction.”
Certification under Rule 23(b)(3) is appropriate “whenever the actual interests of the
parties can be served best by settling their difference in a single action.” (Hanlon, 150 F.3d at
1022, quoting 7A C.A. Wright, A.R. Miller, & M. Kane, Federal Practice & Procedure §
1777 (2d ed. 1986).)
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8 Rule 23(g)(1) also requires the Court to appoint class counsel. Plaintiff requests the Court appoint the law firms
of Fineman Poliner LLP and Werner Law Firm as Class Counsel.
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There are two fundamental conditions to certification under Rule 23(b)(3): (1)
questions of law or fact common to the members of the class predominate over any questions
affecting only individual members; and (2) a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. (Fed. R. Civ. P. 23(b)(3);
Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d
1152, 1162-63 (9th Cir. 2001); Hanlon, 150 F.3d at 1022; Wiener, 255 F.R.D. at 668.) Rule
23(b)(3) encompasses those 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.” (Amchem
v. Windsor, 521 U.S. 591, 615 (1997), citations omitted and alterations in original; Wiener,
255 F.R.D. at 668.)
1. Common Questions Predominate Over Individual Issues. Rule 23(b)(3)’s
predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.” (Amchem, 521 U.S. at 623.) “Predominance is a test readily
met in certain cases alleging consumer. . . fraud. . . .” (Id.) “When common questions present a
significant aspect of the case and they can be resolved for all members of the class in single
adjudication, there is clear justification for handling the dispute on a representative rather than
on an individual basis.” (Fed Prac. & Proc., § 1778; Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 157 n.13 (1982) [noting commonality and typicality tend to merge].)
The predominance requirement is satisfied here. As discussed above, Plaintiff alleges
class members are entitled to the same legal remedies based on the same alleged wrongdoing:
exposure to the same alleged policy and practice. The central issue for every claimant is
whether Defendant requested and recorded customers’ PII in connection with credit card
transactions for take-with items. Under these circumstances, there is sufficient basis to find
that the requirements of Rule 23(b)(3) are satisfied. (See, Weiner, 255 F.R.D. at 669; Hanlon,
150 F.3d at 1022.)
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2. A Class Action is the Superior Method to Settle this Controversy. Rule
23(b)(3) sets forth the relevant factors for determining whether a class action is superior to
other available methods for the fair and efficient adjudication of the controversy. These factors
include: (i) the class members’ interest in individually controlling separate actions; (ii) the
extent and nature of any litigation concerning the controversy already begun by or against
class members; (iii) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (iv) the likely difficulties in managing a class action. (Fed.
R. Civ. P. 23(b)(3); see, Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190-92 (9th
Cir. 2001).) “[C]onsideration of these factors requires the court to focus on the efficiency and
economy elements of the class action so that cases allowed under subdivision (b)(3) are those
that can be adjudicated most profitably on a representative basis.” (Zinser, 253 F.3d at 1190
(citations omitted); see also, Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.
1996) [finding superiority requirement may be satisfied where granting class certification
“will reduce litigation costs and promote greater efficiency”].)
Application of the Rule 23(b)(3) “superiority” factors shows that a class action is the
preferred procedure for this Settlement. The amount of potential monetary relief to which an
individual class member would be entitled is not large. (Zinser, 253 F.3d at 1191; Wiener 255
F.R.D. at 671.) It is neither economically feasible, nor judicially efficient, for the thousands of
class members to pursue their claims against Defendant on an individual basis. (Deposit Guar.
Nat’l Bank v. Roper, 445 U.S. 326, 338-39 (1980); Hanlon, 150 F.3d at 1023; Vasquez v.
Superior Court, 4 Cal. 3d 800, 808 (1971).) The fact of settlement eliminates any potential
difficulties in managing the trial of these actions as class-actions. When “confronted with a
request for settlement-only class certification, a district court need not inquire whether the
case, if tried, would present intractable management problems . . . for the proposal is that there
be no trial.” (Amchem, 521 U.S. at 620.)
Because the proposed class meets the criteria for certification, provisional certification
for settlement purposes only is appropriate.
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VII. THE FORM AND METHOD OF PROVIDING CLASS NOTICE MEETS DUE
PROCESS REQUIREMENTS AND SHOULD BE APPROVED
The threshold requirement concerning the sufficiency of class notice is whether the
means employed to distribute the notice is reasonably calculated to apprise the class of the
pendency of the action, of the proposed settlement, and of the class members’ rights to opt out
or object. (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-74 (1974); Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950).) The mechanics of the notice process
are best left to the discretion of the court, subject only to the broad “reasonableness” standards
imposed by due process.
In this Circuit, it has long been the case that a notice of settlement will be adjudged
satisfactory if it “generally describes the terms of the settlement in sufficient detail to alert
those with adverse viewpoints to investigate and to come forward and be heard.” (Churchill
Village v. General Electric, 361 F.3d 566, 575 (9th Cir. 2004), citing Mendoza v. Tucson Sch.
Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)); Hanlon, 150 F.3d at 1025 [notice should
provide each absent class member with the opportunity to opt-out and individually pursue any
remedies that might provide a better opportunity for recovery].)
The proposed Class Notice meets these standards. Attached to the Agreement as
Exhibit 1 is a true and correct copy of the Full Class Notice, and attached to the Agreement as
Exhibit 2 is a true and correct copy of the Summary Notice. The Full and Summary Notices
are written in simple, straightforward language and includes: (1) basic information about the
lawsuit; (2) a description of the benefits provided by the Settlement; (3) an explanation of how
class members can obtain Settlement benefits; (4) an explanation of how class members can
exercise their right to opt-out or object to the Settlement; (5) an explanation that any claims
against Defendant that could have been litigated in these actions will be released if the class
member does not opt out from the Settlement; (6) the names of class counsel and information
regarding attorneys’ fees and expenses and the class representatives’ incentive awards; (7) the
Final Fairness Hearing date; and (8) an explanation of eligibility for appearing at the Final
Fairness Hearing.
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Collectively, the Notices provide class members with sufficient information to make
an informed and intelligent decision about the Settlement. As such, they satisfy the content
requirements of Rule 23. (See, In re Compact Disc Minimum Advertised Price Antitrust Litig.,
216 F.R.D. 197, 203 (D. Me. 2003) [“notice must describe fairly, accurately and neutrally the
claims and parties in the litigation entitled to participate, including the right to exclude
themselves from the class”].)
Additionally, the proposed dissemination of Notices to class members satisfies all due
process requirements: Subject to Court approval, within twenty (20) days of the entry of a
Preliminary Approval Order the Defendant or the Claims Administrator will e-mail the
Summary Notice to all Known and Unknown Class Members with their last known e-mail
addresses (the Claim Form will also be e-mailed to Unknown Class Members along with the
Summary Notice), or if Defendant does not have an e-mail address, the Summary Notice will
be mailed to all Known and Unknown Class Members last known address. (Agreement, § 5.2.)
Mail returned to the Claims Administrator as undeliverable will be forwarded to the class
member’s new address (as provided in a post office forwarding notice), or the Claims
Administrator will utilize publicly available databases and then resend the Notice to the new
address (if one appears in those databases).
Finally, the Full Notice, the operative complaint, the settlement agreement and order
granting preliminary approval will be posted on the Claims Administrator’s website prior to
mailing or emailing the summary notice (Id.)
The parties believe this method of providing notice of the pendency of the settlement
of this class action fully comply with the requirements of due process and constitute the best
notice practicable under the circumstances.
In regard to the period of time for class members to object to the settlement or request
exclusion from the settlement, that time period will be dictated by the date of the final fairness
hearing. The Agreement states that objections and requests for exclusions must be made no
later than forty-five calendar days after the first issuance of the Class Notice. (Agreement, §
3.13.)
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VIII. IF THE SETTLEMENT IS PRELIMINARILY APPROVED, THE COURT
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Following notice to the class members, a fairness hearing is to be held on the proposed
settlement. (Manual for Complex Litigation section 21.633 (4th ed. 2004).) Because direct
notice of the pendency of the class action and proposed settlement will be directly
disseminated to each class member via e-mail and/or U.S. mail no later than 20 days following
preliminary approval of the settlement, Plaintiff believes the final fairness hearing should be
held approximately 75 days following preliminary approval of the settlement (if granted).
IX. CONCLUSION
For the reasons stated above, Plaintiff requests that the Court preliminarily approve the
settlement and certify the class for settlement purposes; approve the form and method of
service of notice to the class; and schedule a hearing for final approval of the settlement. At
that time, the parties will present additional papers in support of the settlement and address
any potential concerns class members may have with the proposed settlement.
Dated: June 29, 2015 Respectfully Submitted,
FINEMAN POLINER LLP
WERNER LAW FIRM
By: /s/ Neil B. Fineman
Neil B. Fineman
Co-Lead Counsel for Plaintiff
Lee G. Werner (SBN: 84744) WERNER LAW FIRM 18200 Von Karman Avenue, Suite 900 Irvine, California, 92612
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DECLARATION OF NEIL B. FINEMAN
IN SUPPORT OF PRELIMINARY APPROVAL
I, Neil B. Fineman, declare as follows:
1. I am a consumer attorney who handles litigation in Federal and State courts
throughout California and I am one of the attorneys of record for Plaintiff and the class
herein. I make this declaration in support of Plaintiff’s Unopposed Motion for Preliminary
Approval of Class Action Settlement. If called as a witness, I would and could testify to the
following:
2. I am duly licensed and admitted to the Bar of the State of California; the
United States District Court for the Southern, Central, and Northern Districts of California;
the United States Court of Appeals for the Ninth Circuit; and the United States Supreme
Court.
3. In addition to being a practicing attorney, I am also a Temporary Judge with
the Superior Court for the State of California, County of Orange.
4. In my practice I primarily represent plaintiffs in consumer class actions
asserting violations of many of California’s consumer protection statutes, including the
Consumers Legal Remedies Act; the Song-Beverly Credit Card Act; and the Unfair
Competition Law.
5. Over the past 20 years, I have served as the sole class counsel or as lead class
counsel in approximately 100 certified class actions. I was lead class counsel in the seminal
Song-Beverly Credit Card case, Florez v. Linens ‘N Things, Inc. (4th Dst.Ct.,2003) 108 Cal.
App. 4th 447, and co-counsel in the consumer class actions, Levy v. State Farm Mut. Auto. Ins.
Co. (4th Dst.Ct.,2007) 150 Cal.App.4th 1, and Gormley v. Nike USA, Inc. (N.D. Cal. October 5,
2011) 2011 U.S. Dist. LEXIS 114707. I have also written for the Business Law News, a
publication of the State Bar of California.
6. I have also served as class counsel in a number of large consumer class actions,
including, but not limited to: Chambers v. Aldo Group, Inc. et al., San Diego Sup. Ct. Case No.
GIC 873440; Macbeth v. Barneys New York, San Diego Sup. Ct. Civil Case No. GIN022990;
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Yudelson v. Bebe Stores, Inc., Los Angeles Sup. Ct. Case No. BC423835; Buzby v. Best Buy
Co., San Diego Sup. Ct. Case No. GIN 040241; Crawford v. Armstrong Garden Centers, Inc.,
Orange County Sup. Ct., Case No. 01CC06945; Drown v. Carter’s Retail, Inc.; Carter’s, Inc.,
San Diego Sup. Ct., Case No. 37-2008-00050316-CU-BT-NC; Golden v. J.C. Penney Co. Inc.,
et al, Orange County Sup. Ct., Case No. 00CC03165; In Re Children’s Place Cases, J.C.C.P.
No. 4418; Leiter v. Coach, Inc., San Diego Sup. Ct. Case No. 37-2011-00086037-CU-BT-CTL;
Barajas v. The Container Store, Inc., San Diego Sup. Ct., Case No. GIN 041129; Cox v. Cost
Plus, Inc., Sacramento Sup. Ct., Case No. 06AS04426; Privacy Rights Clearinghouse, et al. v.
CWI, Inc., San Diego Sup. Ct., Case No. GIC 835547; Stern v. Dunn Edwards Corporation,
San Diego Sup. Ct. Case No.: 37-2009-00052542-CU-BT-NC; Dunwoody v Sears, Roebuck
And Co., Los Angeles Sup. Ct., Case No. BC397930; Mandel v. Kenneth Cole Productions,
Inc., San Diego Sup. Ct., Case No. 37-2007-00052191-CU-BT-NC; Florez v. Linens ‘N Things,
Inc., Orange County Sup. Ct. Case No. 01CC00335; Milam v. Lowe’s HIW, Inc., Orange
County Sup. Ct. Case No. 01CC00343; Stone v. M. Fredric & Co., Los Angeles Sup. Ct., Case
No. BC387889; Waldman v. Metropark USA, Inc., Los Angeles Sup. Ct., Case No. BC404671;
Boyce v. Jennifer Kors (USA), Inc., San Diego Sup. Ct., Case No. 37-2008-00093848-CU-BT-
CTL; McCartney v. Nike Retail, Inc., N.D.Cal, Case No. 11-cv-00893-SI; Guzman v. Pacific
Sales, Inc., Orange County Sup. Ct. Case No. 03CC00178; Magnan v. Panda Restaurant
Group, Inc., Orange County Sup. Ct. Case No. 03CC00413; Deukmejian v. Payless
Shoesource, Inc., Los Angeles Sup. Ct., Case No. BC352924; Ernandes v. Buca di Beppo, San
Diego Sup. Ct. Case No. 37-2009-00060548-CU-BT-NC; Seban v. Ralphs Grocery Company,
Los Angeles Sup. Ct. Case No. BC358651; Bartolo v. Tween Brands, Inc., San Diego Sup. Ct.
.37-2009-00100063-CU-BT-CTL; Vear v. Cellco Partnership, San Diego Sup. Ct., Case No.
37-2008-00085825-CU-BT-CTL; Perez v. Victoria’s Secret Stores, Inc., Orange County Sup.
Ct., Case No. 03CC00412; Gallegos v. Victoria’s Secret Stores, Inc., San Diego Sup. Ct., Case
No. GIN 053910; Ballard v. Yankee Candle, Orange County Sup. Ct., Case No. 03CC00166;
and Roll v. Ziba Beauty Center, Inc. Los Angeles Sup. Ct., Case No. BC440176.
///
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7. The settlement was reached after arms-length negotiations by experienced
counsel on both sides with assistance of the Honorable David H. Bartick, United States
Magistrate Judge. Judge Bartick, over a course of three (3) separate days (i.e., January 29,
2015, February 19, 2015 and April 1, 2015), mediated the matter and was able to assist the
Parties on reaching a settlement. Before the ENE, the Parties exchanged information through
informal discovery and obtained information necessary to evaluate the proper amount of civil
penalties. Prior to the ENE, my partner, Phillip Poliner, and myself, who are experienced in
prosecuting this type of complex class action, had “a clear view of the strengths and
weaknesses” of the case and were in a strong position to make an informed decision regarding
the reasonableness of a potential settlement.
8. The settlement takes into account the risk, expense, and complexity of further
litigation. Plaintiff and the class would have to retain additional experts to conduct forensic
analysis of the recording and storage of Defendant’s customer information, as well as experts
to testify to the value of the collected information. Defendant would vigorously oppose
Plaintiff’s attempt to get a class certified and would also retain experts to defeat certification
and the class claims. Additional time consuming and expensive law and motion proceedings
would be necessary to narrow or eliminate the claims and defenses both at the certification
stage and the trial stage. The time and expense of further litigation could potentially negatively
impact Defendant’s business operations and would interfere with potential class members’
opportunity to obtain benefits promptly. Accordingly, the settlement at this stage in the
litigation benefits the Court and the Parties, as well as the class.
9. Plaintiff believes that each requirement of Rule 23(a) is met.
A. Numerosity
Here, the numerosity requirement is readily met. According to Defendant, during the
class period, at least 15,000 take with credit card transactions occurred in California stores
during the class period, and may be up to another 10,000 take with credit card transactions. As
such, the numerosity requirement is satisfied.
///
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B. Commonality
In this case, there are multiple “common issues” affecting the entire class and
Defendant’s liability; mainly, whether Defendant’s policy and practice of requesting and
recording customers’ PII during purchase transactions, violate California Civil Code section
1747.08.
C. Typicality
Here, Plaintiff alleges he was exposed to the same alleged unlawful policy and practice
of Defendant. Specifically, Plaintiff alleges Defendant requested and recorded his PII during a
credit card purchase transaction of a take with item, which constituted a violation of section
1747.08. Importantly, Plaintiff alleges no claims or facts unique to himself. Thus, the
requirement of typicality is satisfied.
D. Adequacy
As set forth in the declarations of Phillip Poliner, Lee Werner, and myself, Plaintiff has
retained counsel with significant experience in prosecuting large consumer protection class
actions. Likewise, the proposed class representative is a member of the proposed class and has
the same interests as the class in maximizing the recovery from Defendant. He alleges
Defendant requested and recorded his PII during a credit card purchase transaction which
constituted a violation of section 1747.08. He alleges no claims or facts unique to himself or
that conflict with the claims of absent class members. Thus, Plaintiff is an adequate
representative.
10. If the Court grants preliminary approval of the proposed settlement, class
counsel will provide the Court at the final fairness hearing with a detailed explanation of how
the parties reached the agreed upon fees and costs award and why the agreed upon amount is
appropriate.
11. I believe the settlement is fair, reasonable, and adequate and merits submission
to the class for their review. The settlement provides substantial recovery to the class members,
without any risk of the class not being certified and not prevailing as to liability.
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 29, 2015.
/s/ Neil B. Fineman
Neil B. Fineman
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DECLARATION OF LEE WERNER
IN SUPPORT OF PRELIMINARY APPROVAL
I, Lee Werner, declare as follows:
1. I am duly licensed and admitted to the Bar of the State of California and I am
co-counsel for Plaintiff in this Action.
2. I have personal knowledge of the facts stated in this declaration except as to
those stated on information and belief, and if called as a witness I could and would testify
competently thereto.
3. The type and amount of informal discovery obtained for this particular case
was sufficient to provide me and my co-counsel with a complete understanding of the
defenses available to Defendant and the amount of recover, if any, that we could obtain for
the class if this case went to trial.
4. I performed pre-litigation investigations, including a thorough review of
litigation concerning the Defendant and any past claims for violations of the Song-Beverly
Credit Card Act or other consumer protection statutes. This includes preliminary review of
both state and federal dockets, as well as judgments, liens, and UCC filings, and any
published articles or reports discussing Defendant’s marketing and sales strategies and
procedures.
5. I performed additional investigation and analyses research in online marketing
databases, as well as secondary sources related to the software and hardware used to capture
and record class members’ personal identification information.
6. Also, I was involved in the informal investigation of certain class related
issues.
7. I opposed two motions filed by Defendant – a Motion to Strike and a Motion
to Dismiss. I reviewed and analyzed Defendant’s Answer and Affirmative defenses.
8. The informal discovery obtained permitted me and my co-counsel to assess
liability, calculate possible penalties, and zealously represent my client.
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9. If the Court grants preliminary approval of the proposed settlement, class
counsel will provide the Court at the final fairness hearing with a detailed explanation of how
the parties reached the agreed upon fees and costs award and why the agreed upon amount is
appropriate.
10. I believe the settlement is fair, reasonable, and adequate and merits
submission to the class for their review. The settlement provides substantial recovery to the
class members, without any risk of the class not being certified and not prevailing as to
liability.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 29, 2015.
/s/ Lee G. Werner
Lee G. Werner
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DECLARATION OF PHILLIP R. POLINER
IN SUPPORT OF PRELIMINARY APPROVAL
I, Phillip R. Poliner, declare as follows:
1. I am a consumer and employment attorney who handles class action litigation in
federal and state courts throughout California, and I am an attorney of record for Plaintiff and
the class.
2. I have personal knowledge of the facts stated in this declaration except as to
those stated on information and belief, and if called as a witness I could and would testify
competently thereto.
3. Before the Early Neutral Evaluation, the Parties exchanged information
through informal discovery and obtained information necessary to evaluate Defendant
exposure. The settlement was reached after arms-length negotiations by experienced counsel
on both sides with assistance of the Honorable David H. Bartick, United States Magistrate
Judge. Judge Bartick, over a course of three (3) separate days, mediated the matter and was
able to assist the Parties on reaching a settlement.
GENERAL EXPERIENCE AND QUALIFICATIONS
4. Along with my business partner, Neil Fineman, I am one of the lead attorneys
on this case. I have been practicing law for 22 years in State and Federal Courts. Before joining
with Neil Fineman and forming the firm Fineman Poliner, LLP, I was a partner of Westrup
Klick LLP from 2004 through 2013.
5. My sole focus of law for the past 16 plus years has been class action litigation. I
have been the lead litigation attorney on over 75 class action cases, of which approximately
half have been consumer class actions and the other half, employment class actions. To ensure
that I am up to date with class action law and trends, I routinely attend class action seminars.
6. I have been admitted to practice before the United States Supreme Court, the
United States Court of Appeals for the Ninth Circuit, and the United States District Courts for
the Northern, Central, and Southern Districts of California.
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7. Over the past 15 years, I have been appointed by various Court’s in Sothern and
Northern California, either lead or co-lead Class Counsel, in numerous class actions, which
have asserted violations of the Consumers Legal Remedies Act; the Song-Beverly Credit Card
Act; and the Unfair Competition Law.
8. I have served as class counsel in a number of large class actions, including, but
not limited to the following::
a. Cemex Wage Cases (S.F.S.C. Case No. JCCP 4520)
b. Washington vs. Siemens Medical Solutions (L.A.S.C. Case No. BC387302)
c. Securitas Security Services Cases (L.A.S.C. Case No. JCCP 4469)
d. In Re: Reformulated Gasoline (RFG) Antitrust & Patent Litigation (U.S.D.C.
Case No. MDL-05 1671)
e. In Re: Automobile Advertising Cases (S.F.S.C. Case No. JCCP 4149)
f. Ko v. AvalonBay Communities Inc. (L.A.S.C. Case No. BC297004)
g. Dewey Services, Inc., Overtime Cases (L.A.S.C. Case No. JCCP 4280)
h. Grafman, et al. v. Washington Mutual, et al. (L.A.S.C. Case No. BC218991
Consolidated with BC240935)
i. Dotson, et al. v. Royal SunAlliance, et al. (O.C.S.C. Case No. 02CC01787)
j. Freeman v. Terminix (U.S.D.C. Case No. CV-01-1852 RMT)
k. Rico v. Office Depot (U.S.D.C. Case No. C-02-00563 VRW)
l. Tovar v. L’Abri Management (L.A.S.C. Case No. BC237666)
m. Fowler v. Aames Acquisition (U.S.D.C. Case No. CV-01-04330 AHM)
9. There have been numerous other class actions wherein I have been appointed
class counsel specifically related to consumer class actions, including but not limited to, the
following defendants: Smart Disk Corporation; La Cie; Provide Commerce, Inc. dba
ProFlowers; Trimspa Corporation; Lerner New York, Inc.; The Men’s Wearhouse; Gucci; The
Children’s Place; Richemont North America, LLC, dba Cartier; MontBlanc North America,
LLC; Mothers Work, Inc.; Ben Bridge Jewelers; Nordstrom, Inc.; MAC Cosmetics; and Fry’s
Electronics, Inc.
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 29, 2015.
/s/ Phillip R. Poliner
Phillip R. Poliner
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PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action. My business mailing address is 155 North Riverview Dr.,
Anaheim Hills, CA 92808. My electronic address is: [email protected].
On June 29, 2015, I served the foregoing document(s) described as:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT; DECLARATIONS OF LEE G. WERNER, PHILLIP R. POLINER AND NEIL B. FINEMAN
CLASS ACTION SETTLEMENT AND RELEASE
PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION
on the parties in this action by placing _____ the original(s), X true copy thereof enclosed
in a sealed envelope addressed as follows, or as otherwise described below: SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Defendant, PHILLIP A. DAVIS, Cal. Bar No. 110430 Ashley Furniture Industries, Inc. [email protected] ROBIN A. ACHEN, Cal. Bar No. 287033 [email protected] 333 South Hope Street, 43rd Floor Los Angeles, California 90071-1422 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Defendant, JOHN C. DINEEN, Cal. Bar No. 222095 Ashley Furniture Industries, Inc. [email protected] 501 West Broadway, 19th Floor San Diego, California 92101-3598
BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the
document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case
who are registered CM/ECF users will be served by the CM/ECF system. Participants in the
case who are not registered CM/ECF users will be served by mail or by other means permitted
by the court rules.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on June 29, 2015.
/s/ Neil B. Fineman
Neil B. Fineman
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