Gloria Abiva et al v. Cache Inc et al, No. 2:2007cv00556 - Document 84 (C.D. Cal. 2009)
Court Description: FINAL APPROVAL ORDER AND FINAL JUDGMENT 74 by Judge Stephen V. Wilson, finding good cause therefore, the Court hereby ORDERS, DECREES AND RULES AS FOLLOWS: All terms and phrases used hereafter in this Final Approval Order and Final Judgment shall h ave the same meanings ascribed to them in the Agreement, and incorporated herein by reference. This Court has jurisdiction over the subject matter of the Action and over all Parties, including all persons in the Settlement Class. Within 90 days follo wing the Effective Date, the Settlement Administrator shall file with the Court a declaration attesting that the vouchers pursuant to the Agreement have been issued to all Authorized Claimants. (See attached Final Approval Order for further informati on). The Parties shall bear their own attorneys fees and costs, except as otherwise provided in the Agreement and by the order of this Court. The Court reserves its ruling on Plaintiffs Attorneys Fees Motion until such time as Plaintiffs Counsel submits, and the Court reviews, additional evidence in support of its request for fees and costs. (MD JS-6, Case Terminated). (jp)
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Gloria Abiva et al v. Cache Inc et al Doc. 84 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 GLORIA ABIVA AND ESGOUHI BABANIAN, individually and on behalf of others similarly situated, 13 14 15 16 17 Plaintiffs, v. CACHE, INC., and DOES 1 through 10 inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV 07-556 SVW (AJWx) CLASS ACTION FINAL APPROVAL ORDER AND FINAL JUDGMENT [74] 18 19 WHEREAS, the above-referenced action currently is pending before 20 this Court, asserting claims for an alleged violation of the Fair 21 Credit Reporting Act, 15 U.S.C. Section 1681, et seq., claiming that 22 defendant Cache, Inc. (“Cache”) unlawfully printed more than the last 23 five digits of credit/debit card numbers and/or card expiration dates 24 on transaction receipts provided to cardholders at retail stores 25 operated by Cache in California. 26 WHEREAS, on March 26, 2009, plaintiffs Gloria Abiva and Esgouhi 27 Babanian applied to this Court for an Order preliminarily approving the 28 Settlement of the Action pursuant to a Settlement Agreement, dated as Dockets.Justia.com 1 of January 21, 2009 (the “Agreement”), later amended on June 30, 2009, 2 which, together with the exhibits annexed thereto, sets forth the terms 3 and conditions for the proposed Settlement and for dismissal of this 4 Action in its entirety with prejudice as against all Released Parties, 5 as defined in the Agreement. 6 WHEREAS, the Court granted preliminary approval of the Settlement 7 on April 21, 2009 and in an amended order dated July 14, 2009. 8 Court finds that due and adequate notice of the Settlement has now been 9 given to the class members pursuant to the Preliminary Approval Order. 10 The WHEREAS, on September 14, 2009, Plaintiffs filed a motion for 11 Final Approval of Class Action Settlement (Final Approval Motion), as 12 well as a separate motion for Award of Attorney’s Fees, Reimbursement 13 of Costs and Award of Service Award to the Class Representatives 14 (Attorney’s Fees Motion). 15 October 5, 2009. 16 submitted to the Court by class members or other interested persons, 17 and no class member requested an opportunity to make oral argument in 18 opposition to the motion. 19 inquiry of the parties regarding the terms of the Settlement to ensure 20 that the Settlement was fair, adequate, and reasonable, and to the 21 benefit of the class members. 22 submitted in connection with the motion and heard oral argument of 23 counsel at the hearing, and finding good cause therefore, the Court 24 hereby ORDERS, DECREES AND RULES AS FOLLOWS: 25 1. The motions were heard by this Court on No written objections to the Settlement were The Court heard oral argument and made Having considered all the papers All terms and phrases used hereafter in this Final Approval Order 26 and Final Judgment shall have the same meanings ascribed to them 27 in the Agreement, and incorporated herein by reference. 28 2 1 2. This Court has jurisdiction over the subject matter of the Action 2 and over all Parties, including all persons in the Settlement 3 Class. 4 3. The Court hereby gives its final approval of the Settlement as set 5 forth in the Agreement. 6 fair, reasonable, and adequate within the meaning of Federal Rule 7 of Civil Procedure 23, and in the best interests of the Class 8 Members. 9 effectuated in accordance with its terms. 10 4. The Court finds that the Settlement is The Court directs that the Settlement shall be The Court finds that the interests of the Class Members are 11 adequately represented, and that named Plaintiffs and Class 12 Counsel are adequate representatives of the Class Members. 13 5. The Court finds that, for the purposes of approving the Settlement 14 only and for no other purpose, the Settlement Class meets all the 15 requirements for certification under Federal Rule of Civil 16 Procedure 23: (a) the Settlement Class is ascertainable and so 17 numerous that joinder of all members of the class is impractical; 18 (b) there are questions of law and fact common to the Settlement 19 Class, and there is a well defined community of interest among 20 members of the proposed Settlement Class with respect to the 21 subject matter of the litigation; (c) the claims of the named 22 Plaintiffs Gloria Abiva and Esgouhi Babanian are typical of the 23 claims of the Settlement Class; (d) named Plaintiffs and Class 24 Representatives Gloria Abiva and Esgouhi Babanian fairly and 25 adequately protect the interest of the Class Members; (e) Class 26 Counsel is qualified to serve as counsel and has adequately 27 represented the class; and (f) a class action is superior to all 28 3 1 other available methods for an efficient adjudication of this 2 controversy and common questions of law or fact predominate over 3 any questions affecting only individual issues. 4 6. The Class Members consist of all persons who did not exclude 5 themselves from the Settlement and the Settlement Class, which is 6 defined as: 7 All cardholders within the scope of 15 U.S.C. Section 8 1681c(g) who, between December 4, 2004 and April 21, 2009 9 (the date of the Court’s Preliminary Approval Order), were 10 provided a receipt at retail store operated by Cache which 11 printed the expiration date and/or more than the last 5 12 digits of the credit or debit card number. 13 7. The Court finds that notice of the Settlement and the other 14 matters set forth in the Agreement given to the Settlement Class 15 pursuant to the Preliminary Approval Order and the Agreement was 16 the best notice practicable, consisting of the Class Notice 17 published in USA Today and posted on the settlement website 18 located at www.cachesettlement.com. 19 names and addresses of the class members could not be readily 20 determined by the parties. 21 sufficient notice of the Action, and of the proposed Settlement 22 set forth in the Agreement, to all persons entitled to such 23 notice, and said notice fully satisfies the requirements of 24 applicable rules and statutes and due process under the United 25 States Constitution. 26 27 8. The Court notes that the The notice constituted valid, due and Within 90 days following the Effective Date, the Settlement Administrator shall file with the Court a declaration attesting 28 4 1 that the vouchers pursuant to the Agreement have been issued to 2 all Authorized Claimants. 3 9. The Court hereby dismisses the Action in its entirety on the 4 merits and with prejudice as against Cache and each and all of its 5 respective present, former and future direct and indirect parent 6 companies, affiliates, subsidiaries, agents, representatives, 7 successors, predecessors-in-interest and all of the 8 aforementioneds’ respective officers, directors, partners, 9 predecessors, successors, insurers, employees, associates, 10 shareholders, agents, representatives, trustees, accountants, 11 attorneys, third-party vendors and assigns (the “Released 12 Parties”). 13 10. Plaintiffs and all of the Class Members also are deemed to have 14 released the Released Parties from any and all duties, 15 obligations, demands, claims, actions, causes of action, suits, 16 damages, rights or liabilities of any nature and description 17 whatsoever, whether arising under local, state or federal law, 18 whether by Constitution, statute (including, but not limited to, 19 15 U.S.C. Section 1681c(g), and/or California Civil Code Section 20 1747.09), tort, contract, common law or equity or otherwise, 21 whether known or unknown, concealed or hidden, suspected or 22 unsuspected, anticipated or unanticipated, asserted or unasserted, 23 foreseen or unforeseen, actual or contingent, liquidated or 24 unliquidated, fixed or contingent, that have been or could have 25 been asserted in the Action based upon the facts and circumstances 26 giving rise to the Action, by Plaintiffs or the Class Members or 27 any of their respective heirs, spouses, executors, administrators, 28 5 1 partners, attorneys, predecessors, successors, assigns, agents 2 and/or representatives, and/or anyone acting or purporting to act 3 on their behalf. Plaintiffs and the Class Members are deemed to 4 have released the Released Parties from all claimed or unclaimed 5 compensatory damages, damages for emotional distress, statutory 6 damages, consequential damages, incidental damages, treble 7 damages, punitive and exemplary damages, or any interest, costs or 8 fees arising out of any of the claims asserted or that could have 9 been asserted in the Action, as well as all claims for equitable, 10 declaratory or injunctive relief under any federal or state 11 statute or common law or other theory that was alleged or could 12 have been alleged based on the facts forming the basis for the 13 Action, including but not limited to any and all claims under 14 identity theft statutes, deceptive or unfair practices statutes, 15 or any other statute, regulation or judicial interpretation. 16 11. Plaintiffs and each Class Member are deemed to have acknowledged 17 that they may hereafter discover facts in addition to or different 18 from those that they now know or believe to be true with respect 19 to the subject matter of these releases, but it is their intention 20 to, and they do hereby, upon the Effective Date, fully, finally 21 and forever settle and release any and all claims set forth in 22 Paragraph 10 above, without regard to the subsequent discovery or 23 existence of such different or additional facts. Plaintiffs and 24 each Class Member hereby waive any and all rights and benefits 25 afforded by California Civil Code Section 1542, which provides as 26 follows: 27 28 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER 6 1 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 2 3 Plaintiffs and each Class Member understand and acknowledge the 4 significance of this waiver of California Civil Code Section 1542 5 and/or of any other applicable federal or state law relating to 6 limitations on releases. 7 12. Without affecting the finality of this Final Approval Order and 8 Final Judgment in any way, this Court hereby retains continuing 9 jurisdiction over, inter alia: (a) implementation and 10 administration of the Settlement; (b) distribution of vouchers due 11 Class Members under the terms of the Agreement; and (c) all 12 Parties hereto, for the purpose of enforcing and administering the 13 Agreement and Exhibits thereto until each and every act agreed to 14 be performed by the Parties has been performed. 15 13. The Parties shall bear their own attorneys’ fees and costs, except 16 as otherwise provided in the Agreement and by the order of this 17 Court. 18 14. The Court reserves its ruling on Plaintiffs’ Attorneys’ Fees 19 Motion until such time as Plaintiffs’ Counsel submits, and the 20 Court reviews, additional evidence in support of its request for 21 fees and costs. (See Minute Order dated 10/05/09, Docket No. 80). 22 23 24 IT IS SO ORDERED. 25 26 DATED: October 19, 2009 STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 27 28 7
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