Sean Hartranft v. TVI Inc et al, No. 8:2015cv01081 - Document 108 (C.D. Cal. 2019)
Court Description: SETTLEMENT ORDER AND FINAL JUDGMENT by Judge Cormac J. Carney. The Court hereby enters this Settlement Order and Final Judgment, which constitutes a final adjudication on the merits of all claims of the Settlement Class. SEE ORDER FOR DETAILS. (MD JS-6, Case Terminated). (iv)
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Sean Hartranft v. TVI Inc et al Doc. 108 1 2 3 4 5 JS 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 15 SEAN HARTRANFT, on behalf of ) Case No. 8:15-cv-01081-CJC-DFM himself and all others similarly situated, ) 16 ) Plaintiff, ) 17 ) SETTLEMENT ORDER AND vs. ) FINAL JUDGMENT 18 ) TVI, INC. d/b/a SAVERS, APOGEE ) 19 RETAIL, LLC, ) ) 20 Defendants. ) ) 21 ) ) 22 23 24 25 26 27 28 Dockets.Justia.com THIS MATTER came before the Court on Class Representative’s motion for 1 2 final approval of the proposed class settlement (the “Settlement”) and Class 3 Counsel’s application for attorneys’ fees and expenses, and incentive award to Class 4 Representative (“Fee, Expense, and Incentive Payment Application”). The Court has 5 considered all papers filed and proceedings in this matter and is fully informed 6 regarding the facts surrounding the proposed Settlement. Based upon this 7 information, the Court has determined to approve the proposed Settlement as fair, 8 reasonable, and adequate. The Court hereby enters this Settlement Order and Final 9 Judgment (“Final Judgment”), which constitutes a final adjudication on the merits of 10 all claims of the Settlement Class. On April 18, 2019, this Court granted preliminary approval to the proposed 11 12 Settlement between Class Representative and Defendants TVI, Inc. d/b/a Savers, and 13 Apogee Retail, LLC (collectively, “Defendants”). The proposed Settlement resolves 14 all of the Settlement Class’s claims against Defendants in exchange for Defendants’ 15 agreement to provide certain monetary and non-monetary consideration to Settlement 16 Class Members as set forth in the Settlement Agreement and Release (the 17 “Agreement”). On October 21, 2019, this Court held a Final Approval Hearing to 18 consider whether to grant final approval to the Settlement and to consider Class 19 Counsel’s Fee, Expense and, Incentive Payment Application. The Court heard from 20 counsel. Having read, reviewed and considered the papers filed in support of final 21 22 approval of the Settlement, including supporting declarations; oral arguments of 23 counsel; Class Counsel’s Fee, Expense, and Incentive Payment Application; the 24 Agreement; and the pleadings, the Court finds and concludes as follows: 25 // 26 // 27 // 28 // 1 1 2 3 1. Definitions. The definitions and provisions of the Agreement are incorporated in this Final Judgment as though fully set forth herein. 2. Jurisdiction. This Court has jurisdiction over the subject matter of the 4 Agreement with respect to and over all parties to the Agreement, including Class 5 Representative and all members of the Settlement Class. That Settlement Class is as 6 certified in the Court’s Order Granting Preliminary Approval of Class Action 7 Settlement (“Preliminary Approval Order”): 8 All persons and entities to which, between and including July 1, 2011, 9 to September 30, 2015, Apogee made or attempted to make one or 10 more telephone calls to their cellular telephones regarding donation 11 solicitation on behalf of EFA. 12 The Settlement Class does not include any persons who timely and validly 13 requested exclusion from the Settlement Class. Defendants and any of their 14 affiliates or subsidiaries, and any entities in which any of such companies 15 have a controlling interest, the judges presiding in the Action, and Class 16 Counsel are also excluded from the Settlement Class. 17 3. Settlement Approval. The Court hereby grants final approval to the 18 Settlement and finds the Settlement is, in all respects, fair, reasonable, and adequate, 19 and in the best interests of the Settlement Class. The Court finds the Settlement is 20 within the authority of the parties and the result of extensive arm’s length 21 negotiations with the guidance of an experienced mediator. 22 4. Class Certification. This Court confirms the proposed Settlement Class 23 satisfies the requirements of Fed. R. Civ. P. 23, as found in the Preliminary 24 Approval Order. Accordingly, this Court makes final the conditional class 25 certification set forth in the Preliminary Approval Order. 26 5. Exclusion from Settlement Class. Certain members of the Settlement 27 Class have timely requested to be excluded from the Settlement Class and the 28 Settlement. Exhibit A, attached hereto, lists the Settlement Class Members who 2 1 timely requested exclusion from the Settlement Class. Accordingly, this Final 2 Judgment shall not bind or affect Settlement Class Members listed on Exhibit A. 3 6. Appointment of Class Counsel and Class Representative. The Court 4 confirms the appointment of the Law Offices of Douglas J. Campion, APC, Bisnar 5 Chase LLP, and the Law Offices of Michael P. Sousa, APC as Class Counsel. The 6 Court confirms the appointment of Sean Hartranft as Class Representative. 7 8 9 7. Objections. The Court has not received any objections to the settlement. 8. No Admission. Neither this Final Judgment nor the Agreement is an 10 admission or concession by Defendants of the validity of any claims or of any 11 liability or wrongdoing or of any violation of law. This Final Judgment and the 12 Agreement do not constitute a concession and shall not be used as an admission or 13 indication of any wrongdoing, fault or omission by Defendants or any other person in 14 connection with any transaction, event or occurrence, and neither this Final 15 Judgment nor the Agreement nor any related documents in this proceeding, nor any 16 reports or accounts thereof, shall be offered or received in evidence in any civil, 17 criminal, or administrative action or proceeding, other than such proceedings as may 18 be necessary to consummate or enforce this Final Judgment, the Agreement, and all 19 releases given thereunder, or to establish the affirmative defenses of res judicata or 20 collateral estoppel barring the pursuit of claims released in the Agreement. 21 9. Dismissal with Prejudice. This Court hereby dismisses with prejudice 22 all claims of Settlement Class Members against Defendants within the scope of the 23 Released Claims defined by the Settlement Agreement. 24 10. Release. Class Representative, for himself and as representative of the 25 Settlement Class, and on behalf of each Settlement Class Member who has not 26 timely opted out and each of their respective agents, successors, heirs, assigns, and 27 any other person who can claim by or through them in any manner, fully, finally, and 28 forever 3 1 irrevocably release, relinquish, and forever discharge with prejudice all Released 2 Claims against the Released Parties. 3 11. Injunction Against Asserting Released Claims. Class Representative, 4 all Settlement Class Members, and any person or entity allegedly acting on behalf of 5 Settlement Class Members, either directly, representatively or in any other capacity, 6 are permanently enjoined from commencing or prosecuting against the Released 7 Parties any action or proceeding in any court or tribunal asserting any of the Released 8 Claims, provided, however, that this injunction shall not apply to individual claims of 9 any Settlement Class Members listed in Exhibit A who timely requested exclusion 10 from the Settlement Class. This injunction is necessary to protect and effectuate the 11 settlement, this Order, and the Court’s flexibility and authority to effectuate this 12 settlement and to enter judgment when appropriate, and is ordered in aid of the 13 Court’s jurisdiction and to protect its judgments pursuant to 28 U.S.C. § 1651(a). 14 12. General Release Acknowledgement. By operation of this Final 15 Judgment, Class Representative and Defendants expressly waive, and each 16 Settlement Class Member is deemed to have waived, any and all claims, rights, or 17 benefits they may have under California Civil Code § 1542 and any similar federal or 18 state law, right, rule, or legal principle that may apply. California Civil Code § 1542 19 provides as follows: 20 A general release does not extend to claims which the 21 creditor does not know or suspect to exist in his or her 22 favor at the time of executing the release, which if known 23 by him or her must have materially affected his or her 24 25 26 27 28 settlement with the debtor. 13. Class Notice. The Claims Administrator completed the delivery of Class Notice according to the terms of the Agreement. The Class Notice given by the Claims Administrator to the Settlement Class, which set forth the principal terms 4 1 of the Agreement and other matters, was the best practicable notice under the 2 circumstances. The Class Notice program prescribed by the Agreement was 3 reasonable and provided due and adequate notice of these proceedings and of the 4 matters set forth therein, including the terms of the Agreement, to all parties entitled 5 to such notice. The Class Notice given to the Settlement Class Members satisfied the 6 requirements of Federal Rule of Civil Procedure 23 and the requirements of 7 constitutional due process. The Class Notice was reasonably calculated under the 8 circumstances to apprise Settlement Class Members of the pendency of this Action, 9 all material elements of the Settlement, and their opportunity to exclude themselves 10 from, object to, or comment on the Settlement and appear at the Final Approval 11 Hearing. The Court has afforded a full opportunity to all Settlement Class Members 12 to be heard. Accordingly, the Court determines that all members of the Settlement 13 Class, except those who timely excluded themselves from the Settlement Class, are 14 bound by this Final Judgment. 15 14. Notifications to Appropriate Federal and State Officials. Within ten 16 (10) days after the filing of the proposed Agreement in this Court, Defendants 17 served a notice of the proposed Settlement upon the appropriate state official of each 18 State in which a Settlement Class Member resides and upon the Attorney General of 19 the United States. The Court finds that the notice provided by Defendants satisfied 20 the requirements of 28 U.S.C. § 1715(b) and that more than ninety (90) days have 21 elapsed since Defendants provided the required notice, as required by 28 U.S.C. 22 § 1715(d). 23 15. Continuing Jurisdiction. Without affecting the finality of this Final 24 Judgment, the Court retains continuing jurisdiction over (a) implementation of the 25 Agreement, distribution of the settlement payments, incentive award, and attorneys’ 26 fees and costs contemplated by the Agreement, and processing of the claims 27 permitted by the Agreement, until each and every act agreed to be performed 28 pursuant to the Agreement has been performed, and (b) all parties to this Action and 5 1 members of the Settlement Class for the purpose of enforcing and administering the 2 Agreement. 3 16. Incentive Award. As an incentive payment in compensation for the 4 time, effort, and risk he undertook as representative of the Settlement Class, the 5 Court hereby awards $5,000 to Sean Hartranft to be paid by Defendants. 6 17. Class Counsel Fee and Cost Award. The Court hereby awards 7 attorneys’ fees and costs to compensate Class Counsel for their time incurred and 8 expenses advanced. The Court has concluded that: (a) Class Counsel achieved a 9 favorable result for the Settlement Class by obtaining Defendants’ agreement to 10 make available to Settlement Class Members certain monetary and non-monetary 11 consideration; (b) Class Counsel devoted substantial effort to pre-and post-filing 12 investigation, legal analysis, and litigation; (c) Class Counsel prosecuted the 13 Settlement Class’s claims on a contingent-fee basis, investing significant time and 14 accumulating costs with no guarantee that they would receive compensation for their 15 services or recover their expenses; (d) Class Counsel employed their knowledge of 16 and experience with class action litigation in achieving a valuable settlement for the 17 Settlement Class, in spite of Defendants’ possible legal defenses and their 18 experienced and capable counsel; (e) Class Representative has reviewed the 19 Agreement and has been informed of the Fee, Expense, and Incentive Payment 20 Application and has approved; (f) the Class Notice informed Settlement Class 21 Members of Class Counsel’s fee and cost request under the Agreement; and (g) Class 22 Counsel filed and posted their Fee, Expense, and Incentive Payment Application in 23 time for Settlement Class Members to make a meaningful decision whether to object 24 to it. For these reasons, the Court hereby approves Class Counsel’s Fee, Expense, 25 and Incentive Payment Application and awards to Class Counsel fees and costs in 26 the total amount of $900,000, to be paid by Defendants. All such fees are in lieu of 27 statutory or other fees that Class Representative and/or the Settlement Class might 28 otherwise have been entitled to recover. 6 1 18. Payment of Claims Administrator Costs and Disbursement of 2 Settlement Certificates, and Cash Payments to Settlement Class Members Who 3 Submit Approved Claims. The Defendants shall pay to the Claims Administrator all 4 costs and fees incurred for all costs of notice and claims administration incurred for 5 this Action, according to the Agreement. Defendants shall also cause the Settlement 6 Certificates to the Settlement Class Members who submit Approved Claims to be 7 issued and honored and shall pay the payments to the Claims Administrator to fund 8 all cash payments requested by Settlement Class Members who submit Approved 9 Claims to be paid by the Claims Administrator in lieu of redeeming the Settlement 10 11 Certificates for goods, as required by the Agreement. 19. Payment Timing. Defendants shall pay the fee and cost awards to Class 12 Counsel and the incentive award to Class Representative, as well as monetary and 13 non-monetary consideration due to eligible Settlement Class Members who timely 14 filed a claim under the Agreement, in accordance with and at the times prescribed by 15 the Agreement. 16 17 18 IT IS SO ORDERED. 19 20 DATED: October 21, 2019 _______________________________ ____________________________ Hon.. Cormac J. Carney UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 7 E I IT A Hartranft v. TCI, Inc. & Apogee Retail, LLC Valid a d Ti el E clusio Requests Name AMIRIAN, JULDA LAGANA, SILVIA ROBINSON, MARTHA JANBAY, MAHER METZLER, CAROL SALAS, ALEX WATKINS, DIANA BENNETT, TAYA FRANCO, DORA REYES, ALFREDO SUZUKI, TADASHI CHOURY, STEPHANIE ANN FOLWELL, CURTIS LUKO, DENISE MARUYAMA, HOWARD GETTYS, BLANCA HERNANDEZ, EVELYN KAEDING, LINDA MCBEE, IMA J GALLEGOS, PATRICIA SMITH, MARCUS GALINDO, FRANCISCA NELSON, ROBERT RODRIGUEZ, ANA EUBANKS, BRENT SHUM, ARIEL GUTIERREZ, ERYCA DONAHUE, BERNADINE GARIDEL, GLORIA YANG, ZHEN MEI BRYAN, EDWARD YOON, SUNGHOON QUACH, ALAN TRINH, DENNIS
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