Torres v. Kwong Yet Lung Co., Inc., No. 2:2014cv02223 - Document 30 (D. Nev. 2015)

Court Description: ORDER Granting 24 Motion for Preliminary Approval of Class Action Settlement and Scheduling Fairness Hearing. The Court will hold a Fairness (final approval) Hearing on 2/11/2016 01:00 PM in Courtroom to be determined before Judge Miranda M. Du. Signed by Judge Miranda M. Du on 10/20/15. (Copies have been distributed pursuant to the NEF - MMM)
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Torres v. Kwong Yet Lung Co., Inc. Doc. 30 DAVID A. CARROLL, ESQ. 1 Nevada State Bar No. 7643 ANTHONY J. DIRAIMONDO, ESQ. 2 Nevada State Bar No. 10875 RICE REUTHER SULLIVAN & CARROLL, LLP 3 3800 Howard Hughes Parkway, Suite 1200 Las Vegas, Nevada 89169 4 Telephone: (702) 732-9099 5 Facsimile: (702) 732-7110 RACHEL KINGREY, ESQ. (Pro Hac Vice) 6 GARDERE WYNNE SEWELL LLP 1601 Elm Street, Suite 3000 7 Dallas, Texas 75201 Telephone: (214) 999-3000 8 Facsimile: (214) 999-4667 Attorneys for Kwong Yet Lung Co., Inc. 9 d/b/a International Marketplace 10 CHANT YEDALIAN, ESQ. (Pro Hac Vice) CHANT & COMPANY 11 A Professional Law Corporation 12 1010 N. Central Ave. Glendale, CA 91202 13 Phone: 877.574.7100 Fax: 877.574.9411 14 15 16 17 18 KENNETH M. ROBERTS, ESQ. Nevada State Bar No. 4729 DEMPSEY, ROBERTS & SMITH, LTD. 1130 Wigwam Parkway Henderson, NV 89074 Phone: 702.388.1216 Fax: 702.388.2514 Attorneys for Plaintiff Cirena Torres 19 UNITED STATES DISTRICT COURT 20 DISTRICT OF NEVADA 21 CIRENA TORRES, on behalf of herself and all Case No. 2:14-cv-02223-MMD-PAL others similarly situated, 22 23 [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND SCHEDULING FAIRNESS (FINAL APPROVAL) Plaintiffs, vs. 24 KWONG YET LUNG CO., INC. 25 (d/b/a International Marketplace), and DOES 1 through 100, inclusive, 26 HEARING Defendants. 27 28 1 Dockets.Justia.com 7 1 The Court has received the Stipulation and Settlement Agreement (the "Settlement 2 Agreement"), entered into between plaintiff Cirena Torres ("Torres"), on behalf of herself and all 3 others similarly situated, on the one hand, and defendant Kwong Yet Lung Co., Inc. (d/b/a 4 International Marketplace) (“International Marketplace” or “Defendant”), on the other hand. 5 6 After reviewing the Agreement and other documents filed in support of the Motion For Preliminary Approval Of Class Action Settlement, and having considered the arguments by the 7 8 9 respective parties, THE COURT HEREBY ORDERS THE FOLLOWING: 1. For purposes of this Order, the Court adopts all definitions of terms set forth in the 10 Settlement Agreement. 11 2. The Court hereby grants preliminary approval of the proposed settlement upon the 12 terms and conditions set forth in the Settlement Agreement. The Court preliminarily finds that the 13 terms of the proposed settlement are fair, adequate and reasonable and comply with Rule 23(e) of 14 the Federal Rules of Civil Procedure ("FRCP"). 15 16 3. The Court orders that the following Settlement Class is preliminarily certified for 17 settlement purposes only: 18 "all consumers who, at any time during the period December 31, 2012 to December 19 13, 2014 (the “Settlement Class Period”), were provided an electronically printed 20 receipt at the point of a sale or transaction at the International Marketplace Store, on 21 which receipt was printed more than the last 5 digits of the credit card or debit card 22 number and/or the expiration date of the consumer’s credit card or debit card." 23 24 4. For the purposes of approving this settlement only and for no other purpose, the 25 Court finds the proposed Settlement Class meets all of the requirements for certification under 26 FRCP Rule 23. The Court further finds that, for purposes of the Settlement, the requirements of 27 FRCP Rule 23(a) and 23(b)(3) are satisfied and that (a) the Settlement Class is ascertainable, (b) 28 2 1 the members of the Settlement Class are so numerous that joinder is impracticable, (c) there are 2 questions of law and fact common to the Settlement Class members which predominate over any 3 individual questions, (d) the representative plaintiff's claims are typical of the claims of the 4 Settlement Class members, (e) the Class Representative and Class Counsel have fairly, adequately, 5 reasonably and competently represented and protected the interests of the Settlement Class 6 throughout the litigation, and (f) a class action is superior to other available methods for the fair 7 8 9 and efficient adjudication of the controversy. 5. The Court appoints plaintiff Cirena Torres as the Class Representative for the 10 Settlement Class. 11 6. The Court appoints attorney Chant Yedalian of Chant & Company A Professional 12 Law Corporation and attorney Kenneth M. Roberts of Dempsey, Roberts & Smith, Ltd. as Class 13 Counsel for the Settlement Class. 14 7. The Court preliminarily finds that the settlement is the product of serious, informed, 15 16 non-collusive negotiations conducted at arm's-length by the parties and with the assistance of the 17 mediator Honorable Philip Pro (Ret.). In making these preliminary findings, the Court considered, 18 among other factors, the potential statutory damages claimed in the lawsuit on behalf of plaintiff 19 and members of the Settlement Class, Defendant's potential liability, the risks of continued 20 litigation including trial outcome, delay and potential appeals, the substantial benefits available to 21 the Settlement Class as a result of the settlement, and the fact that the proposed settlement 22 represents a compromise of the Parties' respective positions rather than the result of a finding of 23 24 liability at trial. The Court further preliminarily finds that the terms of the settlement have no 25 obvious deficiencies and do not improperly grant preferential treatment to any individual member 26 of the Settlement Class. 27 28 3 1 8. The Court approves the proposed manner of the notice of settlement set forth in the 2 Settlement Agreement. The Court also approves the size and contents of the Postal Notice, Store 3 Notice, Full Notice, and Claim Form attached as Exhibits A, B, C, and D, respectively, to the 4 Settlement Agreement. 5 6 9. The Court finds that the proposed manner of the notice of settlement set forth in the Settlement Agreement, and the Postal Notice, Store Notice, Full Notice, and Claim Form which the 7 8 9 Court approves of, as set forth in paragraph 8, above, constitute the best notice practicable under the circumstances and is in full compliance with the United States Constitution, FRCP Rule 23, and 10 the requirements of due process. The Court further finds that the notice fully and accurately 11 informs Settlement Class members of all material elements of the lawsuit and proposed class action 12 settlement, of each member's right to be excluded from the settlement, and each member's right and 13 opportunity to object to the proposed class action settlement and be heard at the Fairness (final 14 approval) Hearing. 15 16 10. Any Settlement Class member may request exclusion from the settlement contained 17 in the Settlement Agreement. To request exclusion, a Settlement Class member must timely send to 18 the Claims Administrator a written request for exclusion postmarked no later than sixty (60) days 19 after the date the Store Notice is first posted at the International Marketplace Store (the “Opt-Out 20 Deadline"). Settlement Class members who opt out of the Settlement Class by the Opt-Out 21 Deadline: (i) will not be a part of the settlement contained in the Settlement Agreement; (ii) will 22 have no right to receive any benefits under the settlement contained in the Settlement Agreement; 23 24 (iii) will not be bound by the terms of the Settlement Agreement; and (iv) will not have any right to 25 object to the terms of the settlement contained in the Settlement Agreement or be heard at the 26 Fairness Hearing. Pending final determination of whether the proposed settlement should be 27 approved, no Settlement Class member either directly, derivatively, in a representative capacity, or 28 4 1 in any other capacity, shall commence, maintain or prosecute against Defendant, any action or 2 proceeding in any court or tribunal asserting any claim covered by the Settlement Agreement, 3 unless and until such Settlement Class member excludes itself from the settlement by timely 4 sending a request for exclusion to the Claims Administrator as set forth in this paragraph. 5 6 11. Any Settlement Class member, on his or her own, or through an attorney hired at his or her own expense, may object to the terms of the settlement. Any such objection must be 7 8 9 filed with the Court and also served on Class Counsel and International Marketplace Counsel. To be effective, any such objection must be in writing and include the contents described in paragraph 10 13, below, and must be filed and served no later than sixty (60) calendar days after the date Store 11 Notice is first posted by International Marketplace. Any objections not raised properly and timely 12 will be waived. 13 12. Any Settlement Class member, on his or her own, or through an attorney hired at 14 his or her own expense, may object to Class Counsel's motion for an award of attorney's fees and 15 16 costs and/or the Class Representative's motion for service (or incentive) award. Such motion will 17 be posted by the Claims Administrator on the Settlement Website no later than thirty (30) days 18 before the Fairness Hearing scheduled by the Court. Any objection must be filed with the Court 19 and also served on Class Counsel and International Marketplace Counsel. To be effective, any 20 such objection must be in writing and include the contents described in paragraph 13, below, and 21 must be filed and served no later than twenty-one (21) days before the Fairness Hearing. Any 22 objections not raised properly and timely will be waived. 23 24 13. To be effective, any objection described in paragraph 11 or paragraph 12, above, 25 must contain all of the following information: 26 27 28 5 A. 1 A reference at the beginning to this Action, Cirena Torres, et al. v. 2 Kwong Yet Lung Co., Inc. (d/b/a International Marketplace), et al., Case No. 2:14-cv-022233 MMD-PAL; 4 B. C. 5 6 The objector's full name, address, and telephone number; A written statement of all grounds for the objection, accompanied by any legal support for such objection; 7 D. 9 Copies of any papers, briefs, or other documents upon which the E. A list of all persons who will be called to testify in support of the F. 8 A statement of whether the objector intends to appear at the Fairness objection is based; 10 11 objection; and 12 13 Hearing. If the objector intends to appear at the Fairness Hearing through counsel, the objection 14 must also state the identity of all attorneys representing the objector who will appear at the 15 16 17 Fairness Hearing. 14. Settlement Class members may ask the Court for permission to speak at the 18 Fairness Hearing. Unless otherwise permitted by the Court, the Court will consider such a request 19 from a Settlement Class member only if such a member timely files and serves a letter which states 20 that it is the Settlement Class member's "Notice of Intention to Appear in Cirena Torres, et al. v. 21 Kwong Yet Lung Co., Inc. (d/b/a International Marketplace), et al., Case No. 2:14-cv-02223- 22 MMD-PAL" and includes the Settlement Class member's name, current address, telephone 23 24 number, and signature (a “Notice of Intention to Appear”). To be timely, a Notice of Intention to 25 Appear concerning Class Counsel's motion for an award of attorneys' fees and costs and/or the 26 Class Representative's motion for service (or incentive) award must be postmarked no later than 27 twenty-one (21) days before the Fairness Hearing. To be timely, a Notice of Intention to Appear 28 6 7 1 concerning any other matter about the settlement must be postmarked no later than sixty (60) days 2 after the date Store Notice is first posted at the International Marketplace Store. Any Notice of 3 Intention to Appear must be sent by mail to the Clerk of the Court and to the Claims 4 Administrator. Any Settlement Class member who fails to make a timely written Notice of 5 Intention to Appear shall be foreclosed from speaking at the Fairness Hearing, unless otherwise 6 ordered by the Court. 7 8 9 10 15. Class Counsel's motion for an award of attorneys' fees and costs shall be filed no later than thirty (30) calendar days before the Fairness (final approval) Hearing. 16. The Court will have continuing jurisdiction over the Action for the purpose of 11 implementing the settlement until this Action and all related matters are fully resolved, and for 12 interpretation and enforcement of the settlement, the Settlement Agreement and final order and 13 14 Judgment thereafter. The Court will hold a Fairness (final approval) Hearing on __February 11, 2016 at ________________, at 1:00 p.m.to consider the fairness, reasonableness and adequacy of the proposed Settlement as 17. 15 16 17 well as the award of attorneys' fees and costs to Class Counsel and service (or incentive) 18 award to the Class Representative. The Court reserves the right to adjourn or continue the 19 Fairness (final approval) Hearing without further notice to the Settlement Class members. 20 21 22 APPROVED AND SO ORDERED: 23 24 Dated: October 20 , 2015 25 26 27 28 HON. MIRANDA M. DU United States District Judge 7