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TRANSCRIPT
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Michael Louis Kelly - State Bar No. 82063 [email protected] Behram V. Parekh - State Bar No. 180361 [email protected] Joshua A. Fields - State Bar No. 242938 [email protected] KIRTLAND & PACKARD LLP 1638 South Pacific Coast Highway Redondo Beach, California 90277 Tel: (310) 536-1000 Fax: (310) 536-1001 Counsel for Plaintiff Linda Rubenstein and the Settlement Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LINDA RUBENSTEIN, on behalf of herself and all others similarly situated,
Plaintiffs, v. THE NEIMAN MARCUS GROUP LLC, a Delaware Limited Liability Company, and DOES 1-50, inclusive, Defendants.
Case No. 2:14-CV-07155-SJO-JPR PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Assigned to Hon. S. James Otero DATE: October 1, 2018 TIME: 10:00 a.m. Courtroom: 10C Complaint Filed: August 14, 2014
Case 2:14-cv-07155-SJO-JPR Document 117 Filed 08/31/18 Page 1 of 2 Page ID #:2244
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1
TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR
ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on October 1, 2018, at 10:00 a.m. in
Courtroom 10C of the above captioned court, located at 350 W. 1st Street, Los
Angeles, California 90012, before the Honorable S. James Otero, Plaintiff Linda
Rubenstein (“Plaintiff”) will and hereby does move the Court for an order of final
approval of the class action settlement in this action, entered into between Plaintiff
and defendant The Neiman Marcus Group LLC (“Neiman”), and entry of final
judgment and order of dismissal with prejudice.
This motion is based on this notice of motion and motion, the accompanying
memorandum of points and authorities, the declarations of Joshua A. Fields, Frank
Crisci, and Andrew W. Oxenreiter on behalf of the Claims Administrator,
BrownGreer PLC, the papers and pleadings on file in this action and upon such oral
or documentary evidence that may be presented at the hearing on this motion.
Pursuant to Local Rule 7-3, this motion is also made after meeting and
conferring with counsel for Neiman concerning the issues herein. Neiman does not
oppose the motion.
KIRTLAND & PACKARD LLP DATED: August 31, 2018 By: /s/ Joshua A. Fields MICHAEL LOUIS KELLY BEHRAM V. PAREKH JOSHUA A. FIELDS
Attorneys for Plaintiff Linda Rubenstein and the Settlement Class
Case 2:14-cv-07155-SJO-JPR Document 117 Filed 08/31/18 Page 2 of 2 Page ID #:2245
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KIRTLAND & PACKARD LLP Michael Louis Kelly - State Bar No. 82063 [email protected] Behram V. Parekh - State Bar No. 180361 [email protected] Joshua A. Fields - State Bar No. 242938 [email protected] 1638 South Pacific Coast Highway Redondo Beach, California 90277 Telephone: (310) 536-1000 Facsimile: (310) 536-1001 Counsel for Plaintiff Linda Rubenstein and the Settlement Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LINDA RUBENSTEIN, on behalf of herself and all others similarly situated, Plaintiffs, v. THE NEIMAN MARCUS GROUP LLC, a Delaware Limited Liability Company, and DOES 1-50, inclusive,
Defendants.
Case No. 2:14-CV-07155-SJO-JPR PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Assigned to the Hon. S. James Otero Date: Oct. 1, 2018 Time: 10:00 a.m. Courtroom: 10C
Case 2:14-cv-07155-SJO-JPR Document 117-1 Filed 08/31/18 Page 1 of 28 Page ID #:2246
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TABLE OF CONTENTS
Contents
I. INTRODUCTION .................................................................................................................... 1
II. HISTORY OF THE LITIGATION ...................................................................................... 3
A. Background .............................................................................................................................. 3
B. Procedural History.................................................................................................................... 3
C. The Settlement Process ............................................................................................................ 4
III. THE PROPOSED TERMS OF THE SETTLEMENT ......................................................... 5
A. The Settlement Class ................................................................................................................ 5
B. Monetary Consideration: a $2,900,000 Settlement Payment ................................................... 5
C. Injunctive Relief ....................................................................................................................... 6
D. Dissemination of Notice to the Settlement Class ..................................................................... 6
E. Service Award And Attorneys’ Fees And Expenses ................................................................ 6
F. Release, Judgment and Continuing Jurisdiction ...................................................................... 6
IV. ARGUMENT ........................................................................................................................ 7
A. General Final Approval Standards ........................................................................................... 7
B. The Settlement is Fair, Reasonable and Adequate ..................................................................... 8
1. Counsel Fairly and Honestly Negotiated the Settlement ...................................................... 8
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2. The Parties Negotiated with Full Knowledge of the Strengths and Weaknesses of the
Case ....................................................................................................................................... 9
3. Strength of Plaintiff’s Case ................................................................................................. 10
4. The Risk of Maintaining a Class Action Throughout Trial ................................................ 11
5. The Value of Immediate Recovery Outweighs the Mere Possibility of Future Relief ....... 11
6. The Amount Offered in Settlement..................................................................................... 14
7. The Experience and Views of Counsel ............................................................................... 15
8. The Presence of a Governmental Participant ...................................................................... 16
9. The Reaction of the Class ................................................................................................... 16
10. Review For Collusion Or Other Conflicts Of Interest ..................................................... 19
11. Review Of Potential Cy Pres Distribution ....................................................................... 20
V. CONCLUSION ................................................................................................................... 20
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TABLE OF AUTHORITIES
Cases
Austin v. Pa. Dep’t of Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995) ....................................................................... 16
Briseno v. Conagra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) ................................................................................ 6
Caldera v. J.M. Smucker Co., 2014 WL 1477400 (C.D. Cal. Apr. 15, 2014) ...................................................... 13
Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir.2004) ....................................................................... 8, 17, 18
City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) ................................................................................... 9
Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012) .......................................................................... 19, 20
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) .............................................................................................. 11
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................................... 7, 14, 16
In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935 (9th Cir. 2011) ............................................................................ 8, 19
In re Mego Financial Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) .......................................................................... 12, 14
In re Orthopedic Bone Screw Prods. Liab.Litig., 176 F.R.D. 158 (E.D. Pa. 1997) ............................................................................ 16
In re Pacific Enters. Sec. Litig., 47 F.3d 373 (9th Cir. 1995) .................................................................................. 15
In re Warner Communications Sec. Litig., 618 F. Supp. 735 (S.D.N.Y. 1985) ............................................................... 8, 9, 10
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Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) .............................................................................. 14
Linney v. Cellular Alaska P’ship, C-96-3008 DLJ, 1997 WL 450064 (N.D. Cal. July 18, 1997) ........................................................ 15
McDonald v. Chicago Milwaukee Corp., 565 F.2d 416 (7th Cir. 1977) .................................................................................. 8
Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011) .............................................................................. 20
Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) .............................................................. 11, 12, 15
Officers for Justice v. Civil Service Comm’n of the City and County of San Francisco, 688 F.2d 615 (9th Cir. 1982) ...................................................... 7, 8, 14
Oppenlander v. Standard Oil Co., 64 F.R.D. 597 (D.Colo. 1974) .............................................................................. 12
Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) ................................................................................ 19
Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) .......................................................... 7, 10, 11, 16, 17
Rubenstein v. Neiman Marcus Grp, LLC, 687 F. App’x 564 (9th Cir. 2017) ........................................................................... 4
Russel v. Kohl’s Dep’t Stores, Inc., 2015 WL 12748629 (C.D. Cal. Dec. 4, 2015) ...................................................... 13
Satchell v. Fed. Exp. Corp., No. C, 03-2659 SI, 2007 WL 1114010 (N.D. Cal. Apr. 13, 2007) .................................. 20
Van Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir. 1976) .................................................................................. 7
Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) .............................................................................. 19
Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982) ..................................................................................... 8
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Rules
Fed. R. Civ. P. 23(e)(2) ............................................................................................. 7
FRCP 23(b)(2) and (3) ............................................................................................... 5
FRCP 30(b)(6) ........................................................................................................... 4
FRCP Rule 23 ............................................................................................................ 3
FRCP Rule 23(e) ........................................................................................................ 1
Other Authorities
A CONTE & H. NEWBERG, NEWBERG ON CLASS ACTIONS, § 11:50 at 155 (4th ed. 2002) ..................................................................................................................... 11
ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 11.40 at 451 (2d ed. 1985) ........................................................................................................... 8
ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2002) ....................................................................................................................... 7
Manual for Complex Litigation (Fourth) § 21.62 ................................................... 11
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I. INTRODUCTION
Pursuant to FRCP Rule 23(e), plaintiff Linda Rubenstein (“Plaintiff”)
respectfully requests this Court grant final approval of the proposed settlement
(“Settlement”) reached in this action between herself, on behalf of the Settlement
Class, and defendant The Neiman Marcus Group LLC (“Defendant” or “Neiman”).
After extensive negotiations and the benefit of Plaintiff’s Counsel’s
prosecution efforts over four years, Plaintiff and Defendant entered into the
Settlement Agreement1. Under the Settlement’s terms, a settlement fund comprised
of the Gross Settlement Amount of $2,900,000 in cash was created for the benefit
of the Settlement Class, and Neiman agreed to injunctive relief.
On May 21, 2018, the Court granted preliminary approval of the Settlement,
and approved notice dissemination to the Settlement Class, setting a final approval
hearing date of October 1, 2018. (D.E. 114) The Claims Administrator has now
implemented the Court-approved notice procedure. (See Andrew W. Oxenreiter
Declaration (“Oxenreiter Decl.”)) The direct notice reached more than 92% of
Known Settlement Class Members, and the supplemental notice for Unknown
Settlement Class Members reached an estimated 80% of its target audience
(855,000 individuals determined to have shopped at Last Call during the Class
Period or have similar attributes to such shoppers), thus satisfying due process.
(See Oxenreiter Decl., ¶24)
This Settlement provides a meaningful recovery in the face of significant
risks of litigation, is fair, reasonable, adequate, and meets all relevant approval
criteria. Class Counsel vigorously litigated the claims for almost four years before
settlement. Class Counsel, who are highly skilled and experienced in consumer and
complex litigation, engaged in substantial motion practice, including an appeal to
the Ninth Circuit, and conducted significant discovery. Class Counsel acted
1All capitalized terms used herein shall have the same meanings as forth in
the Settlement Agreement, at Docket Entry (“D.E.”) 111-3, Exhibit A.
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intelligently in the settlement negotiations, reaching the best possible relief for the
Class.
The Settlement was negotiated in good faith and at arms’ length by lawyers
thoroughly familiar with the merits and risks associated with continued litigation.
Moreover, the Settlement’s fairness and adequacy is evidenced by the fact it was
reached with the assistance of the Hon. Carl West (Ret.) (“Mediator”), a well-
respected mediator and retired judge. Finally, out of more than 650,000 Settlement
Class Members who received direct notice, and hundreds of thousands more
estimated to have received supplemental notice, only four Settlement Class
Members requested exclusion, and only one Settlement Class Member submitted
an objection. (See Oxenreiter Decl., ¶29; Fields Decl., ¶ 23, Ex. B)
Each Participating Settlement Class Member shall be entitled to recover
from the Net Settlement Fund, which cannot be less than $1,592,425.59.2 The
claims review process is ongoing, but the currently estimated recovery range for
Settlement Class Members is between approximately $77.50 (for those that did not
submit any proof of purchase) and $775.00 (for those that submitted $1,400 or
more in proof of purchases). Neiman also agreed to significant injunctive relief
regarding the challenged practices, subject to Court approval of the Settlement,
which includes a transition to “Comparable Value” references on Last Call price
tags in California and online, in place of “Compared to,” disclosures regarding the
new term’s meaning, and training of employees. (See Frank Crisci Declaration
(“Crisci Decl.”); Settlement Agreement §4)
2 The Net Settlement Fund is the Gross Settlement Amount of $2,900,000
minus Claims Administrator Fees and Expenses (not to exceed $400,000), and minus awards the Court may grant Plaintiff and Class Counsel. The fees motion, filed and made available on the Settlement Website on August 6, 2018, sought fees not to exceed $870,000 plus costs of no more than $32,574.41, and a Settlement Class Representative Payment not to exceed $5,000. (D.E. 116)
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II. HISTORY OF THE LITIGATION
A. Background
In August 2014, Plaintiff brought this action pursuant to FRCP Rule 23 on
behalf of herself and all others similarly situated, seeking to represent all California
purchasers of products at Neiman’s Last Call stores or online labeled with a
“Compared to” price, but which products were never sold at Neiman’s flagship
retail stores at such “Compared to” price and/or such products or similar products
were not being sold for such “Compared to” price at the time of purchase in the
Last Call store’s area. (D.E. 69) Like all Settlement Class Members, Plaintiff
purchased “Compared to”-labeled products at Last Call in California. (See id.)
B. Procedural History
As more fully laid out in the Fields Declaration, Class Counsel, Kirtland &
Packard LLP (“K&P”) began investigating Plaintiff’s claims against Neiman in
July 2014 and filed Plaintiff’s original class action complaint in L.A. Superior
Court. Neiman removed the action to this Court then moved to dismiss Plaintiff’s
complaint, which Plaintiff opposed. K&P then prepared and filed a motion for
class certification, to meet Local Rule 23-3’s deadline, which was later taken off
calendar. On December 12, 2014, this Court dismissed Plaintiff’s complaint with
leave to amend. Thereafter, K&P prepared and filed a first amended complaint
(“FAC”), Neiman filed a motion to dismiss plaintiff’s FAC, which Plaintiff
opposed, and on March 2, 2015, this Court dismissed Plaintiff’s FAC with leave to
amend. K&P prepared and propounded written discovery to Neiman, and
thereafter, prepared and filed a second amended complaint (“SAC”). Neiman filed
a motion to dismiss plaintiff’s SAC, which Plaintiff opposed. K&P also reviewed
Neiman’s written discovery responses and its document production, and prepared
and filed a renewed class certification motion. Shortly thereafter, this Court
dismissed Plaintiff’s SAC without leave to amend. (Fields Decl., ¶¶ 10-11)
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Plaintiff appealed the SAC’s dismissal to the Ninth Circuit. After full
briefing and oral argument, the Ninth Circuit reversed the dismissal. See
Rubenstein v. Neiman Marcus Grp, LLC, 687 F. App’x 564 (9th Cir. 2017).
Thereafter K&P served and responded to additional written discovery,
reviewed responsive documents produced by Neiman, and conducted investigation
of the underlying claims. K&P also engaged in several lengthy meet and confer
discussions with Neiman’s counsel regarding discovery. (Fields Decl., ¶¶ 12-13)
On August 18, 2017, K&P sought leave to file Plaintiff’s third amended
complaint (“TAC”), which was granted. The TAC was filed on September 11,
2017. K&P also took FRCP 30(b)(6) depositions of Neiman on multiple topics,
involving three separate witnesses in Dallas, Texas. On September 12, 2017, K&P
filed Plaintiff’s second renewed class certification motion. K&P thereafter took
and defended multiple depositions, including expert depositions. Plaintiff then filed
her reply brief, and the class certification motion was taken under submission.
(Fields Decl., ¶ 14)
C. The Settlement Process
In or about June 2017, counsel for the Parties had begun discussing the
scope of potential damages and whether a class action settlement was possible.
Ultimately, Plaintiff and Neiman agreed to mediate the issues. The parties engaged
in settlement discussions, which included numerous telephonic calls, exchanges of
relevant information, submission of mediation briefs, and an in-person mediation
session with the Mediator on August 4, 2017, which did not result in a settlement.
After Plaintiff’s pending class certification motion was fully briefed on December
4, 2017, the parties participated in a second in-person mediation session with the
Mediator on December 7, 2017, with discussions ongoing thereafter. On December
13, 2017, the parties agreed to preliminary settlement terms. After months
negotiating final, detailed settlement terms, the parties fully executed the
Settlement Agreement on April 18, 2018. (Fields Decl., ¶ 15)
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III. THE PROPOSED TERMS OF THE SETTLEMENT
A. The Settlement Class
The Parties’ Settlement Agreement proposed certification of a Settlement
Class pursuant to FRCP 23(b)(2) and (3) consisting of: All natural persons who purchased one of more products advertised with a “Compared to” price, where such purchase was made from August 7, 2010 through the date of the Preliminary Approval Order, at any of Neiman’s Last Call stores in California or on Last Call’s e-commerce website if the purchaser provided a California billing address.
(D.E. 111-3, Ex. A, Settlement Agreement at pp. 3, 5)3
B. Monetary Consideration: a $2,900,000 Settlement Payment
The proposed Settlement Agreement provides for a Gross Settlement
Amount of $2,900,000. Participating Class Members are entitled to obtain payment
from the Net Settlement Fund, which cannot be less than $1,592,425.59.
The proposed Settlement provides proposed Settlement Class Members
substantial benefit: a cash payment to each qualifying participant from a portion of
the Net Settlement Fund. Each Authorized Claimant is assigned points to be
divided by the total points of all Authorized Claimants. The quotient is the
percentage of the Net Settlement Fund each Authorized Claimant will receive. One
point is given for filing a claim without proof of purchase, with additional points
available based upon the dollar value of Proof of Purchase provided.4 Essentially,
each Authorized Claimant receives a proportional share of the Net Settlement
Fund, based on whether any Proof of Purchase was submitted, and if so, the total
amount of purchases made at California Last Call Stores or online. No reversionary
3The parties agreed to modify the Settlement Agreement so the Class Period
ends on the Preliminary Approval Order date rather than upon Final Approval. 4 Section 3.5(a) of the Settlement Agreement (at pages 11-12) details the
point allocation and payment distribution processes. See D.E. 111-3, Ex. A.
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interest to Neiman exists as to any amount of the Gross Settlement Fund as the
entire fund will be distributed to Authorized Claimants.5
C. Injunctive Relief
As part of the Settlement, Neiman agreed to significant injunctive relief,
subject to Court approval of the Settlement, involving modifying the challenged
practices as fully detailed in the Crisci Declaration. (See Crisci Decl.; Settlement
Agreement § 4)
D. Dissemination of Notice to the Settlement Class
Direct notice reached an estimated more than 92% of Known Settlement
Class Members, and supplemental notice for Unknown Settlement Class Members
reached an estimated 80% of the target audience (855,000 individuals determined
to have shopped at Last Call during the Class Period or have similar attributes to
such shoppers), exceeding the due process requirements generally accepted in the
Ninth Circuit. See, e.g. Briseno v. Conagra Foods, Inc., 844 F.3d 1121, 1128-29
(9th Cir. 2017); Oxenreiter Decl., ¶ 24)
E. Service Award And Attorneys’ Fees And Expenses
By separate motion, Class Counsel applied for a Service Award for Plaintiff
consisting of a $5,000 payment. (See Rubenstein Declaration in Support of
Plaintiff’s Motion for Award of Attorney’s Fees (D.E. 116-6; “Rubenstein
Decl.”)). Class Counsel also applied separately for: (1) an award of attorney’s fees
of 30% of the Gross Settlement Amount, and (2) reimbursement of litigation
expenses in the amount of $32,574.41. (See D.E. 116)
F. Release, Judgment and Continuing Jurisdiction
If final approval is granted, Settlement Class Members who have not opted-
5 As of August 20, 2018, the Claims Administrator had received 10,845
timely Claim Form submissions, and the claims review process is ongoing. (Oxenreiter Decl., ¶ 28) Plaintiff will provide exact information regarding the number of Claimants and average and median awards for Participating Settlement Class Members, in supplemental briefing at the time her reply papers are due.
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out will be deemed to have released Defendant of all claims asserted or that could
have been asserted in the litigation as a result of the entry of Final Judgment. The
Court will retain jurisdiction with respect to the implementation and enforcement
of the Settlement’s terms, and all parties agree to submit to the Court’s jurisdiction
for purposes of implementing and enforcing the Settlement.
IV. ARGUMENT
A. General Final Approval Standards
The law favors settlement, particularly in class actions and complex cases
where substantial resources can be conserved by avoiding the costs and rigors of
prolonged litigations. See Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th
Cir. 1976);Officers for Justice v. Civil Service Comm’n of the City and County of
San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) (“voluntary conciliation and
settlement are the preferred means of dispute resolution.”); ALBA CONTE &
HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2002) (“by
their very nature, because of the uncertainties of outcome, difficulties of proof,
length of litigation, class action suits lend themselves readily to compromise”).
A proposed class action settlement may be approved if, after allowing absent
class members opportunity to be heard, the Court finds the settlement is “fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). When assessing a settlement:
the court’s intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.
Rodriguez v. West Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (quoting
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).
The Ninth Circuit has held the determination necessarily involves balancing
several factors which may include, among others, some or all of the following: (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity and likely duration of further litigation; (3) the risk of
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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 government participant; and (8) the reaction of the class members to the proposed settlement.
In re Bluetooth Headset Products Liab. Litig.,654 F.3d 935, 946 (9th Cir. 2011)
(citing Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir.2004)).
The Ninth Circuit, however, also limits district court inquiries as follows:
the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits. Neither the trial court nor this 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. The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators.
Officers for Justice, 688 F.2d at 625 (citations omitted, emphasis in original).6
B. The Settlement is Fair, Reasonable and Adequate 1. Counsel Fairly and Honestly Negotiated the Settlement
In evaluating the propriety of a proposed settlement, courts often look to
settlement’s negotiating process to determine whether that process was genuinely
adversarial. See Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982). A
settlement’s fairness depends in part on “whether the settlement was achieved
through ‘arm’s-length negotiations’ by counsel who have the experience and
ability…necessary to effectively represent the class’ interest.” In re Warner
Communications Sec. Litig., 618 F. Supp. 735, 741 (S.D.N.Y. 1985). Typically, an
initial presumption a proposed settlement is fair and reasonable exists when it
came from arm’s-length negotiations between counsel. See ALBA CONTE &
HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 11.40 at 451 (2d ed. 1985).
6 Class members need not obtain all that they may have desired or hoped, or
even what they might be entitled to if the case were fully litigated. “[T]he inherent nature of a compromise is to give up certain rights or benefits in return for others.” McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 429 (7th Cir. 1977).
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The Settlement is the result of such arm’s length negotiations by experienced
counsel through the use of a respected mediator. (See Fields Decl. ¶¶ 3-8,15, Ex.
A) Although Neiman agreed not to oppose K&P’s request of not more than 30%
of the common fund, the Settlement Agreement also provides it is not conditioned
in any way on the Court’s approval of attorney’s fees and costs. (D.E. 111-3 at §
3.3)
Because the Gross Settlement Amount does not revert to Neiman regardless
of Court-awarded fees, Neiman had no real interest in supporting or opposing
K&P’s fees and costs request. During settlement discussions, the Gross Settlement
Amount was agreed to prior to any discussion of attorney’s fees, and the inclusion
of the provision allowing K&P to request up to 30% of the Gross Settlement
Amount in fees without opposition was primarily intended to cap any potential fee
request. (Fields Decl., ¶ 16)
2. The Parties Negotiated with Full Knowledge of the
Strengths and Weaknesses of the Case
“‘[T]he stage of the proceedings and the amount of discovery completed’” is
a factor courts consider in determining whether the settlement is fair, reasonable
and adequate. In re Warner Comm’s Sec. Litig., 618 F. Supp. 735, 741 (S.D.N.Y.
1985), quotingCity of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974).
The Parties completed significant discovery, including written discovery,
production and review of documents, and substantial deposition discovery of both
fact witnesses as well as experts. (See Supra, at 3:11-4:15) Finally, the Parties
fully briefed class certification, which was pending for hearing before this Court at
the time settlement was reached.
The Parties’ legal and factual positions had been extensively briefed during
the motions to dismiss, appeal, and fully-briefed class certification motion. The
Parties also submitted mediation briefs to the Mediator setting forth further
analysis of their legal positions. During settlement discussions, the Parties also
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asserted those arguments favoring their respective cases, which they would
assuredly have pursued at trial. (See Fields Decl., ¶ 15) Given the discovery
conducted and frank exchange of views at mediation, Class Counsel believed
“[t]he parties certainly [had] a clear view of the strengths and weaknesses of their
cases.”Warner Comm's, 618 F. Supp. at 745; Rodriguez, 563 F.3d at 967.
3. Strength of Plaintiff’s Case
Neiman has raised, and would continue to raise, challenges to the claims’
legal and factual bases. Neiman has contended, among other things, Plaintiff
cannot meet her burden to certify a class, because, according to it, reliance and
alleged deception are not common issues, and require individualized
determinations. Separately, Neiman has contended Plaintiff cannot prove
individual or classwide damages, and that it will prevail on summary judgment
against Plaintiff’s claims on that basis.
Although Plaintiff continues to believe in her claims, Plaintiff acknowledges
risks associated with class certification, and also risks of losing on the merits. The
most significant risk is a Court may reject Plaintiffs’ damages models, individual
or classwide, as has happened in other cases. The Parties differ as to Plaintiff’s
likelihood of ultimately prevailing after judgment and appeal; however, it is
apparent the proposed class had very significant risks in continuing to litigate the
action.
By contrast, the proposed Settlement immediately provides the certainty of
valuable benefit to proposed Settlement Class Members. The proposed Settlement
offers all proposed Settlement Class Members a portion of the price of items they
purchased advertised as having a “Compared to” price. If the case is not settled, it
would necessitate continuing to prosecute the litigation through class certification,
trial and, even if successful there, through an almost certain appeal. Even if
Plaintiff eventually succeeds, there is still the certainty that if the case proceeds in
litigation, any benefits to the proposed class would be delayed for many years.
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The Settlement Agreement, like all settlements, strikes a balance between
the maximum possible recovery the proposed Settlement Class might obtain by
pursuing litigation to the very end, and the risk of failing to obtain any recovery
should Neiman prevail. In determining whether the terms of the Settlement
Agreement are sufficiently fair, reasonable, and adequate, the Court need only
inquire whether the consideration provided to the proposed Settlement Class as the
Gross Settlement Amount and the injunctive relief falls within a reasonable
settlement range by “considering the likelihood of a plaintiffs’ or defense verdict,
the potential recovery, and the chances of obtaining it, discounted to present
value.” Rodriguez, 563 F.3d at 965, citing Manual for Complex Litigation (Fourth)
§ 21.62. The answer is most certainly “yes.”
4. The Risk of Maintaining a Class Action Throughout Trial
Although the Court did not rule on the class certification motion, it was fully
briefed and taken under submission at the time of the settlement. Neiman
vigorously disputed certification of any class was appropriate. Plaintiff believes
she would have been able to certify a class, but even if Plaintiff was ultimately
successful, a district court may decertify a class at any time. See Rodriguez, 563
F.3d at 966 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). In
negotiating the Settlement, Plaintiff took into account the class certification
uncertainty and believes in light of the risks, the Settlement is fair, reasonable, and
adequate. (D.E. 116-6, Rubenstein Decl., ¶¶ 14-17; Fields Decl., ¶¶ 17-22)
5. The Value of Immediate Recovery Outweighs the Mere
Possibility of Future Relief
“In most situations, unless the settlement is clearly inadequate, its
acceptance and approval are preferable to lengthy and expensive litigation with
uncertain results.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D.
523, 526 (C.D. Cal. 2004) (quoting A CONTE & H. NEWBERG, NEWBERG ON CLASS
ACTIONS, § 11:50 at 155 (4th ed. 2002)). Courts consider “the vagaries of litigation
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and compare the significance of immediate recovery by way of the compromise to
the mere possibility of relief in the future, after protracted and expensive
litigation.” Nat’l Rural Telecomms. Coop., 221 F.R.D. at 526 (quoting
Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D.Colo. 1974)).
The Gross Settlement Amount of $2,900,000 in cash now substantially
outweighs the mere possibility of potentially larger future relief, particularly when
weighed against the possibility of a smaller recovery or no recovery at all. The
proposed Settlement, while offering substantial consideration and injunctive relief,
does not provide Plaintiff and the Settlement Class the full measure of relief that
would be sought at trial. On the other hand, the Settlement provides Plaintiff and
the Settlement Class with far more than Defendant would have been willing to
offer absent the vigorous prosecution of the claims to date.
In determining whether the amount of the settlement is fair, the Ninth Circuit
has suggested the Court should compare the settlement amount to the parties’
“estimates of the maximum amount of damages recoverable in a successful
litigation.” In re Mego Financial Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir.
2000). Plaintiff believes a particularly straightforward and appropriate method for
calculating damages involves a purchase price refund minus depreciation model.
(Fields Decl., ¶ 17) Based on the purchase price refund minus depreciation model,
and given the class period length, Plaintiff calculated an absolute best case scenario
recovery (100%) of class-wide damages obtained at trial for putative class
members could possibly amount to as much as $120 million. This model, however,
would require the return of the purchased product to Neiman, an onerous
undertaking unlikely to be successful in practice. Without such product return, the
dollar amount for damages would be just a fraction of that $120 million. Under the
Settlement, however, Class Members are entitled to retain their purchases,
therefore significantly discounting the additional benefit potentially received at
trial by the Class Members of even this calculation. (Id.)
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According to Neiman, however, the best-case scenario Plaintiff presents
above is drastically inflated, because it contends no damages exist at all. Neiman
contends applicable damages, if any, could only be determined from the price
Plaintiff and putative class members paid for Last Call products measured against
the value they received. However, Neiman contends this proposed calculation
results in zero dollars in damages because Last Call customers chose to purchase
the “Compared to” items precisely at the prices paid. Given other results on this
issue in similar cases in this Circuit, a reasonable likelihood exists Neiman could
prevail on its damages defenses, and Plaintiff would neither recover any damages
nor certify a damages class. See, e.g. Caldera v. J.M. Smucker Co., 2014 WL
1477400, at *4 (C.D. Cal. Apr. 15, 2014) (rejecting damages model, stating “the
true value of the products to consumers likely varies depending on individual
consumer’s motivation for purchasing the products at issue.”);Russel v. Kohl’s
Dep’t Stores, Inc., 2015 WL 12748629, at *6-7 (C.D. Cal. Dec. 4, 2015) (declining
to certify monetary damages class).
Although Plaintiff contends she and members of the putative class have been
deceived and are entitled to a full refund of the purchase price were the action to be
litigated, Plaintiff acknowledges it is unlikely such a damages model would be
adopted given the proffered defenses. Thus, in the settlement context Plaintiff
believes a realistic, conservative method for evaluating damages is but a fraction of
the purchase price refund minus depreciation model. Neiman’s contention that the
value Last Call purchasers receive is essentially the same to the products’ purchase
prices also makes estimating the appropriate value of any discount difficult from
Plaintiff’s perspective. Considering no Settlement Class Members has to return
items purchased under the proposed settlement, each retains whatever value the
products have or had in addition to the value obtained through this settlement.
Lastly, given the experience with other class action litigation, only a small
percentage of Class Members were anticipated to claim the value offered even
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were the case to have proceeded to trial, as is typical in these types of settlements
(and has proven to be true during the claims process for this settlement).
(Oxenreiter Decl., ¶ 28) The $2,900,000 Gross Settlement Amount constitutes
valuable consideration and is fair and reasonable given the risks of further
litigation and the potential damages recovery at trial. Additionally, Neiman agreed
to substantial injunctive relief including changes in practice and robust disclosures,
which provides significant additional relief that may not have been obtainable at
trial. (See Crisci Decl.; Settlement Agreement §4)
“The expense and possible duration of the litigation should be considered in
evaluating the reasonableness of a settlement.” Mego, 213 F.3d at 458; See
Hanlon, 150 F.3d at 1026. The additional and substantial expense incurred if this
case were litigated further would most assuredly reduce the Settlement Class’s net
recovery. Moreover, delay, not just at the trial stage, but through post-trial motions
and the appellate process, could cause Settlement Class members to wait years for
any recovery, further reducing the value of any potential recovery. Even had
Plaintiff prevailed at class certification, summary judgment, and trial, Neiman
would likely have appealed any decision. Thus, had litigation continued, any
recovery would have been many years away.
6. The Amount Offered in Settlement
In assessing the consideration class members obtained in a class action
settlement, “[i]t is the complete package taken as a whole, rather than the
individual component parts, that must be examined for overall fairness.” Officers
for Justice, 688 F.2d at 628. A proposed settlement may be acceptable even though
it amounts to only a fraction of the potential recovery to the class at trial. Linney v.
Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998).
Given the inherent risks of litigation, the Settlement is certainly adequate
and provides a substantial recovery to each Settlement Class Member. The Net
Settlement Fund, which cannot be less than $1,592,425.59, will provide each
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Settlement Class Member a payment determined by a point system based on
purchase prices, including tax, of the Qualifying Purchases made, and whether
Proof of Purchase was provided. (See D.E. 111-3, Ex. A, §3.5 for detailed
description of calculation methodology) Based on the point system calculation, the
currently estimated recovery range for Settlement Class Members is from $77.50
(for those with no proof of purchase) up to $775.00 (for those with $1400 or more
in proof of purchase). (Fields Decl., ¶ 24) This is, by any standard, valuable
consideration.
7. The Experience and Views of Counsel
In assessing the adequacy of a settlement’s terms, the trial court is entitled to
and should rely upon the judgment of experienced counsel for the parties. See Nat’l
Rural Telecomms. Coop., 221 F.R.D. 523 at 528; In re Pacific Enters. Sec. Litig.,
47 F.3d 373, 378 (9th Cir. 1995) (“[p]arties represented by competent counsel are
better positioned than courts to produce a settlement that fairly reflects each party’s
expected outcome in the litigation.”) When evaluating the proposed settlement, the
trial court, absent fraud or collusion should be hesitant to substitute its own
judgment for counsel’s. See Nat’l Rural Telecomms. Coop., at 528.
Class Counsel’s experience suggests the Settlement is a strong result for the
proposed Class and warrants the Court’s approval.7 Class Counsel’s support for
the proposed settlement confers a presumption of correctness. See Linney v.
Cellular Alaska P’ship, C-96-3008 DLJ, 1997 WL 450064, *5 (N.D. Cal. July 18,
1997), aff’d, 151 F.3d 1234 (9th Cir. 1998) (“involvement of experienced class
action counsel and the fact [] the settlement agreement was reached in arm’s length
7 Class Counsel are experienced class action litigators who have successfully
litigated numerous complex consumer protection class action cases in the past. (See Fields Decl., ¶¶ 3-8, Ex. A) K&P is a full service law firm founded in 1932 specializing in complex litigation, class action, and mass tort. The lead attorneys from the firm on this matter, Behram V. Parekh and Joshua A. Fields, personally brought broad class action litigation experience to the case. (Id.)
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negotiations, after relevant discovery had taken place create a presumption [] the
agreement is fair.”); In re Orthopedic Bone Screw Prods. Liab.Litig., 176 F.R.D.
158, 184 (E.D. Pa. 1997), quoting Austin v. Pa. Dep’t of Corrections, 876 F. Supp.
1437, 1472 (E.D. Pa. 1995) (“Significant weight should be attributed ‘to the belief
of experienced counsel that the settlement is in the best interests of the class.’”)
Given Class Counsel’s experience, their opinion that the settlement is fair
and adequate confers a presumption of correctness. See Rodriguez, 563 F.3d at
965 (“This circuit has long deferred to the private consensual decision of the
parties,” citing Hanlon, 150 F.3d at 1027). After weighing the risks and benefits
associated with litigating this case further, Class Counsel reached the opinion the
proposed settlement is in the Settlement Class’s best interests. (See Fields Decl., ¶¶
17-22) The Gross Settlement Amount of $2,900,000 and corresponding Net
Settlement Fund of at least $1,592,425.59 represents substantial recovery for
Settlement Class Members, particularly in light of Neiman’s proffered defenses on
damages.
8. The Presence of a Governmental Participant
The Ninth Circuit has acknowledged that where a class “does not have the
benefit […] of previous litigation between the defendant[] and the government”
and a number of “serious hurdles” remain that may prolong the litigation, this
factor favors approval of the settlement. Rodriguez, 563 F.3d at 966. Here, no
governmental agency had previous litigation against Defendant that may have
benefitted the Settlement Class. This lawsuit was brought solely based on Class
Counsel’s and Plaintiff’s investigation. (Rubenstein Decl., ¶¶ 3-11;
Fields Decl., ¶ 11)
9. The Reaction of the Class
Out of the more than 650,000 Settlement Class Members who received
direct notice, and all Unknown Settlement Class Members who received
Publication Notice, and over 10,000 claims received, only four requested
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exclusion, and only one Settlement Class Member objected. (See Oxenreiter Decl.,
¶¶ 29, 30) Courts consistently find favorable reactions to settlements even when
significantly more objections exist.8
The sole objection Settlement Class Member Pauline Pomerance submitted
is based on what appears to be a fundamental misunderstanding regarding the
Settlement’s terms, and should be denied. (See Fields Decl., ¶ 23, Ex. B) Ms.
Pomerance refers to the Settlement as a “scam settlement that most [c]onsumers
will be unable to respond to” because it “asks that consumers prove their claim by
submitting receipts for the last ten years!” (Id.) (Emphasis added) In fact, the
Settlement Agreement contains no requirement that Settlement Class Members
must submit receipts to make a claim; instead, it provides Settlement Class
Members may make claims by simply declaring under penalty of perjury they
made Qualifying Purchases. (D.E. 111-3 at pp. 4-5, defining “Proof of Purchase”)
Upon preliminary review, the vast majority of claimants (over 7,000) made claims
in this fashion, that is, without submitting receipts. (See Fields Decl., ¶ 24) If a
Settlement Class Member did submit receipts or other qualifying Proof of Purchase
with their claim (such as a credit card statement, which may be relatively easily
obtained), their settlement recovery’s value was significantly enhanced, per the
Settlement Agreement. (D.E. 111-3, Ex. A, §3.5) No receipt requirement exists,
and Ms. Pomerance’s contention that “[v]ery few people will be able to respond to
this” settlement for that inaccurate reason is mistaken. (Fields Decl., ¶ 23, Ex. B)
Ms. Pomerance’s objection is also based on an inaccurate reading of the
Settlement Agreement’s attorney’s fees provision. Based on her inaccurate
assertion receipts are required so “[v]ery few people will be able to respond…,”
Ms. Pomerance incorrectly claims “thus most of the funds will go to the attorneys.
8 Rodriguez, 563 F.3d 967 (affirming class action settlement approval where
there were 54 objections out of 376,301); Churchill Village, 361 F.3d at 577 (affirming class action settlement approval where there were 45 objections out of 90,000).
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Thus, the only people who will benefit from this will be the attorneys.” (Id.) As
the Settlement Agreement (D.E. 111-3), Notice, and Plaintiff’s Motion for
Attorney’s Fees (D.E. 116) all make clear, however, Class Counsel seek their fee
recovery under the percentage-of-the-fund method (30% in this instance). Thus,
the number of Settlement Class Members making valid claims has no effect on the
attorney’s fees Class Counsel may obtain, as Ms. Pomerance mistakenly contends.
Further, Ms. Pomerance’s concerns about the claims process, which she
believes was concocted to “substantially reduce eligible class members,” have
actually not come to fruition. (Fields Decl., ¶ 23, Ex. B) Ms. Pomerance suggests a
hypothetical wherein “only 100 class members respond”. (Id.) In fact, more than
10,000 Claim Forms were submitted, demonstrating unequivocally Ms.
Pomerance’s concerns did not come true. This renders Ms. Pomerance’s concern
that the “proposed settlement has no method for dealing with a small number of
class members who submit claims” inapplicable under the actual circumstances of
the claim process. (Id.)
Ms. Pomerance’s last complaint in the objection about the value of the
Settlement to Participating Settlement Class Members is also misguided and
actually supports the Court’s final approval of the Settlement. Ms. Pomerance
complains that “[a] much better settlement would be if you send all class members
a gift certificate for $100 off their next purchase.” Ms. Pomerance elaborates that
“Class members will surely use that, since they have obviously shopped at
Neiman’s before, and $100 is a real benefit.” (Id.) (Emphasis added) The claims
review process is ongoing, but while the exact final number of valid claims cannot
be presently determined, a current estimate, albeit subject to change, is that based
on the point allocation system, the range of cash recoveries for Settlement Class
Members will be between an estimated $77.50 and $775.00, depending on the
number of calculated for a particular claimant. (Fields Decl., ¶24) These
recoveries are in line and in many instances will be significantly greater than the
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$100 “real benefit” Ms. Pomerance’s objection proposed. (Fields Decl., ¶ 23, Ex.
B) Further, while Ms. Pomerance assumes Settlement Class Members would
happily spend a $100 gift certificate at Neiman, a reasonable inference is most if
not all Settlement Class Members would prefer cash, to spend anywhere, rather
than being solely limited to Neiman.
10. Review For Collusion Or Other Conflicts Of Interest
When a proposed settlement is negotiated prior to class certification, the
Ninth Circuit has emphasized the district court should also scrutinize the settlement
for subtle signs of collusion or conflicts of interest. In re Bluetooth, 654 F.3d 935
at 946; see also Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012). The
Ninth Circuit has indicated the following signs may indicate that class counsel may
have allowed pursuit of their own self-interests to infect negotiations:
(1) when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class counsel are amply rewarded;
(2) when the parties negotiate a “clear sailing” arrangement providing for payment of attorneys’ fees separate and apart from class funds; or
(3) when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund.
In re Bluetooth, 654 F.3d at 947. None of those signs are present here. Class
Counsel will be paid from the same Gross Settlement Amount as Settlement Class
Members, and so had every reason to negotiate the largest fund possible, and their
fee will be determined by the Court. Class Counsel do not seek a disproportionate
distribution – the fee application is limited to 30% of the fund (plus expenses),
which is within the typical range for attorney’s fee awards in the Ninth Circuit. See
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002), citing Paul,
Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). Any portion
of the requested fee not awarded to Class Counsel will remain part of the Net
Settlement Fund, and will not revert to Defendant. (See D.E. 111-3, Ex. A, at §3.5)
Further, given the extensive litigation conducted to date, including the
Ninth Circuit appeal, both sides demonstrated by their actions they were prepared
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to litigate this case through final judgment, if no acceptable resolution could be
reached. In short, there can be no question of any collusion. Settlement
negotiations were a long, drawn out process over months, utilizing the Mediator’s
expertise. See Satchell v. Fed. Exp. Corp., No. C 03-2659 SI, 2007 WL 1114010,
at *4 (N.D. Cal. Apr. 13, 2007) (“The assistance of an experienced mediator in the
settlement process confirms that the settlement is non-collusive.”)
11. Review Of Potential Cy Pres Distribution
The Settlement Agreement provides for a Cy Pres distribution only of any
residual sum of any settlement checks not cashed within 90 days of the issuance
date to the charity designated by the Parties: Public Counsel. (See D.E. 111-3, Ex.
A, at §3.5) The Parties believe this will be an insignificant portion of the Gross
Settlement Amount. However, the Court must inquire “whether the distribution of
the approved class settlement complies with [Ninth Circuit] standards governing cy
pres awards.” Nachshin v. AOL, LLC, 663 F.3d 1034, 1040 (9th Cir. 2011);
Dennis, 697 F.3d at 865. The Ninth Circuit has held that any cy pres must be
“‘guided by (1) the objectives of the underlying statute(s) and (2) the interests of
the silent class members, and (3) must not benefit a group ‘too remote from the
plaintiff class.’” Dennis, 697 F.3d at 865, quoting Nachshin, 663 F.3d at 1039.
Here, the Parties’ proposed cy pres recipient meets all three Ninth Circuit criteria.
Dennis, 697 F.3d at 865. Public Counsel provides legal services to underserved
communities. http://www.publiccounsel.org/about_us?id=0001 (last visited August
30, 2018). Its Consumer Law Project focuses on consumer protection. See
http://www.publiccounsel.org/practice_areas/consumer_law (last visited August
30, 2018).
V. CONCLUSION
Plaintiff respectfully requests the Court approve the proposed Settlement as
fair, reasonable and adequate and enter final judgment in the case.
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Dated: August 31, 2018 Respectfully Submitted, KIRTLAND & PACKARD LLP Michael Louis Kelly Behram V. Parekh Joshua A. Fields By: /s/ Joshua A. Fields 1638 South Pacific Coast Highway Redondo Beach, CA 90277 Phone: (310) 536-1000 Fax: (310) 536-1001 Counsel for Plaintiff Linda Rubenstein and the Settlement Class
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Michael Louis Kelly - State Bar No. 82063 [email protected] Behram V. Parekh - State Bar No. 180361 [email protected] Joshua A. Fields - State Bar No. 242938 [email protected] KIRTLAND & PACKARD LLP 1638 Pacific Coast Highway Redondo Beach, California 90277 Tel: (310) 536-1000 Fax: (310) 536-1001 Counsel for Plaintiff Linda Rubenstein and the Settlement Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LINDA RUBENSTEIN, on behalf of herself and all others similarly situated,
Plaintiffs, v. THE NEIMAN MARCUS GROUP LLC, a Delaware Limited Liability Company, and DOES 1-50, inclusive, Defendants.
Case No. 2:14-CV-07155-SJO-JPR DECLARATION OF JOSHUA A. FIELDS IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Assigned to Hon. S. James Otero DATE: Oct. 1, 2018 TIME: 10:00 a.m. Courtroom: 10C
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DECLARATION OF JOSHUA A. FIELDS
I, Joshua A. Fields, declare as follows:
1. I am a member in good standing of the State Bar of California and a
member of the bar of this Court. I am an associate at Kirtland & Packard, LLP
(“K&P”). I have personal knowledge of the facts below, and would testify
competently thereto. I am submitting this declaration in support of Plaintiff’s
Motion for Final Approval of Class Action Settlement in the above-entitled action.
2. K&P is counsel of record for named plaintiff Linda Rubenstein
(“Plaintiff”), and was appointed to represent the Settlement Class pursuant to
Federal Rule of Civil Procedure 23(g) by order dated May 21, 2018.
3. The identification and background of K&P and its partners is attached
hereto as Exhibit A.
4. K&P is a full service law firm founded in 1932 specializing in
complex litigation, class action, and mass tort. Behram V. Parekh was the lead
attorney from the firm on this matter, and personally brought a wealth of class
action litigation experience to this litigation. Mr. Parekh is of counsel to K&P and
have been litigating complex securities and consumer class actions for his entire 22
year career. He has acted as lead or co-lead counsel in numerous complex class
action and mass tort cases, including taking complex litigation through trial and
appeal. Mr. Parekh is also a graduate of the Straus Institute for Dispute
Resolution’s Alternative Dispute Resolution program, which gives him a
considerable advantage in effectively advocating the interests of my clients and
putative classes in arbitrations and mediations, as well as understanding the
dynamics of mediations, and how to use the mediation process to effectively settle
complex cases.
5. I am a Senior Associate in K&P’s Los Angeles office, where I have
been practicing since 2006. My practice focuses on representing consumer
plaintiffs in complex litigation matters, including class actions and mass actions,
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against large corporations for violations of state and federal consumer protection
statutes. I have approximately ten years of litigation experience prosecuting class
actions and complex litigation on behalf of plaintiffs. During this time, I have
prosecuted a substantial number of consumer class actions. My efforts have
resulted in the recovery of tens of millions of dollars for my clients. I also have
extensive experience on appellate matters in state and federal courts of appeals,
where I have obtained numerous favorable opinions for consumers. Prior to joining
the firm, I served as a Judicial Intern to the Honorable Louise Gans of the New
York State Supreme Court in 2003. Both Mr. Parekh and I have been named
Southern California Super Lawyers and/or Rising Stars for multiple years as well as
receiving other awards for excellence in litigation.
6. K&P also has a full-fledged trial and appellate practice, with countless
verdicts and over 180 published opinions to its credit since the Firm’s founding in
1932, a list of which is included in the Firm’s resume. See Exhibit A. K&P has
extensive experience in complex multi-party and multi-district litigation, and has
litigated, or is currently involved in litigating, numerous complex JCCP and MDL
proceedings, beginning with MDL-13 in 1967.
7. K&P has acted as lead counsel in multiple successfully concluded
consumer class actions. Further, Michael Louis Kelly of the firm and Mr. Parekh
have litigated class action, complex litigation, and mass tort claims for most of their
legal careers and have been appointed as lead counsel or a member of a lead
counsel committee in numerous complex class action cases, including having
served as a member of the lead counsel committee in In re: Toyota Motor Corp.
Unintended Acceleration Marketing, Sales Practices, and Products Liability
Litigation, MDL-2151 in the Central District of California before Judge Selna, as
co-lead counsel in In re: Apple iPhone 4 Products Liability Litigation, MDL-2188
in the Northern District of California before Judge Whyte, and as sole lead counsel
in In re: Pom Wonderful LLC Marketing and Sales Practices Litigation, MDL-
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2199, in the Central District of California before Judge Pregerson, and in In re:
Oreck Corporation Halo Vacuum Air Purifiers Marketing and Sales Practices
Litigation, MDL-2317, in the Central District of California before Judge Snyder,
amongst other appointments.
8. Members of Kirtland & Packard have successfully served as lead or
co-lead counsel in countless complex, class action, and mass tort cases involving
products liability, securities, and employment issues, resulting in settlements or
verdicts totaling hundreds of millions of dollars. A partial list of such matters
includes:
$150,000,000 Drug liability litigation [parties confidential]
$63,900,000 Baker v. PrivatAir [age discrimination claim]
$18,500,000 Business litigation [parties confidential]
$12,200,000 Opperman v. Verizon [cellular class action claim]
$12,000,000 Great Escape Promotion Cases JCCP Proceeding [class action
claim]
$10,000,000 Rubio v. Capital One Bank [class action claim]
$10,000,000 In re Mastec Inc. Securities Litigation [class action claim]
$7,000,000 Juvenile detention claim [Amande v. Los Angeles County]
$6,000,000 Defective roadway design [Meyers v. CalTrans]
$4,344,000 SUV design defect case [parties confidential]
$2,600,000 Insurance bad faith [Indochina v. Stratford Insurance Company]
9. I strongly support approval of the proposed settlement and believe that
the settlement is fair, reasonable and adequate, and in the best interests of the Class.
10. K&P began investigating named plaintiff Linda Rubenstein’s claims
against defendant the Neiman Marcus Group LLC (“Neiman”) in July 2014.
Plaintiff’s original class action complaint was filed in Los Angeles Superior Court
on August 7, 2014 alleging claims for violation of California’s False Advertising
Law, Business & Professions Code § 17500, et seq., violation of California’s Unfair
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Competition Law, Business & Professions Code § 17200, et seq., and violation of
California’s Consumer Legal Remedies Act, Civil Code § 1750, et seq. Neiman
removed the action to this Court on September 12, 2014.
11. Neiman moved to dismiss Plaintiff’s complaint on October 27, 2014,
which Plaintiff opposed. K&P then prepared and filed a motion for class
certification on November 12, 2014, to meet Local Rule 23-3’s deadline, which was
later taken off calendar. On December 12, 2014, this Court dismissed Plaintiff’s
complaint with leave to amend. Thereafter, K&P prepared and filed a first
amended complaint (“FAC”) on December 22, 2014. Neiman filed a motion to
dismiss plaintiff’s FAC on January 6, 2015, which Plaintiff opposed. On March 2,
2015, this Court dismissed Plaintiff’s FAC with leave to amend. K&P then
prepared and propounded written discovery to Neiman on March 13, 2015.
Thereafter, K&P prepared and filed a second amended complaint (“SAC”) on
March 17, 2015. Neiman filed a motion to dismiss plaintiff’s SAC on April 6,
2015, which Plaintiff opposed. K&P also reviewed Neiman’s written discovery
responses and its document production, and prepared and filed a renewed class
certification motion on May 4, 2015. Shortly thereafter, on May 12, 2015, this
Court dismissed Plaintiff’s SAC without leave to amend.
12. On June 9, 2015, Plaintiff appealed the dismissal of the SAC to the
Ninth Circuit. After full briefing, including a reply brief and oral argument, the
Ninth Circuit reversed the dismissal order in an April 18, 2017 Memorandum
decision. See Rubenstein v. Neiman Marcus Grp, LLC, 687 F. App’x 564 (9th Cir.
2017). The Mandate issued May 10, 2017 remanded the action for further
proceedings.
13. The Parties then filed a joint status report, and appeared for a
scheduling conference on June 5, 2017. Thereafter, in addition to ongoing
settlement discussions referenced below, the parties continued to engage in
discovery and preparation for Plaintiff’s class certification motion. As part of the
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discovery process, K&P served additional written discovery, reviewed responsive
documents produced by Neiman, and conducted further independent investigation
of the underlying claims, as well as responding to Neiman’s discovery requests.
K&P also engaged in numerous, lengthy, meet and confer discussions with
Neiman’s counsel regarding discovery propounded by Plaintiff, and responses
thereto. The process required drafting of an extensive meet and confer letter and an
in-person conference.
14. On August 18, 2017, K&P filed a motion for leave to file Plaintiff’s
third amended complaint (“TAC”), and K&P filed the TAC on September 11, 2017
after the Court granted the motion. Also in August, 2017, K&P took FRCP
30(b)(6) depositions of Neiman on multiple topics, deposing three separate Neiman
witnesses in Dallas, TX. Thereafter, on September 12, 2017, K&P filed Plaintiff’s
second renewed class certification motion. K&P then worked with Plaintiff to
schedule her deposition, and prepared for such deposition, but Neiman later
declined to depose her. Shortly thereafter, K&P defended the deposition of
Plaintiff’s damages expert in San Diego, CA, and, after Neiman opposed the
motion, K&P deposed two experts Neiman proffered in opposition to class
certification, one in Philadelphia, PA and one in Palo Alto, CA. Plaintiff filed her
reply brief for the class certification motion on December 4, 2017 and, prior to the
settlement, the class certification motion was taken under submission by this Court.
15. After the Ninth Circuit remand, in or about June 2017, counsel for the
parties had begun discussing the scope of potential damages and whether a class
action settlement was possible. Ultimately, Plaintiff and Neiman agreed to mediate
the issues in the action before the Honorable Carl West (Ret.) (“Mediator”). The
parties engaged in settlement discussions, which included numerous telephonic
calls, exchanges of relevant information, submission of mediation briefs, and an in-
person mediation session with the Mediator on August 4, 2017, which although
productive, did not result in a settlement. During settlement discussions, the Parties
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asserted those arguments favoring their respective cases. After Plaintiff’s pending
class certification motion was fully briefed on December 4, 2017, the parties
participated in a second in-person mediation session with the Mediator on
December 7, 2017, with ongoing discussions through the Mediator thereafter. On
December 13, 2017, the parties agreed to preliminary settlement terms. After
months negotiating final, detailed settlement terms, the parties fully executed the
Settlement Agreement on April 18, 2018.
16. Although, as part of the Settlement Agreement, Neiman agreed not to
oppose K&P’s request of not more than 30% of the common fund, the Settlement
Agreement also provides it is not conditioned in any way on the Court’s approval of
attorney’s fees and costs. (D.E. 111-3 at section 3.3) Because the Gross Settlement
Amount does not revert to Neiman regardless of the amount awarded as fees by this
Court, Neiman had no real interest in supporting or opposing K&P’s fees and costs
request. During settlement discussions, the Gross Settlement Amount was agreed
to prior to any discussion of attorney’s fees, and the inclusion of the provision
allowing K&P to request up to 30% of the Gross Settlement Amount in fees
without opposition was primarily intended to cap any potential fee request.
17. Plaintiff and K&P believe a particularly straightforward and
appropriate method for calculating damages involves a purchase price refund minus
depreciation model. Based on the purchase price refund minus depreciation model,
and given the length of the Class Period, Plaintiff and her counsel calculated an
absolute best case scenario recovery (100%) of class-wide damages obtained at trial
for putative class members could possibly amount to as much as $120 million. This
model, however, would require the return of the purchased product to Neiman, an
onerous undertaking unlikely to be successful in practice. Without such product
return, the dollar amount for damages would be just a fraction of that $120 million.
Under the current settlement, however, class members are entitled to retain their
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purchases, therefore significantly discounting the additional benefit potentially
received at trial by the class members of even this calculation.
18. According to Neiman, however, the best-case scenario Plaintiff
presents above is drastically inflated, because it contends no damages exist at all.
Neiman contends applicable damages, if any, could only be determined from the
price Plaintiff and putative class members paid for Last Call products measured
against the value they received. However, Neiman contends this proposed
calculation results in zero dollars in damages because customers of Last Call chose
to purchase the “Compared to” items precisely at the prices paid. Given other
results on this very issue in similar cases attorneys at K&P are aware of in this
Circuit, a reasonable likelihood exists Neiman could prevail on its damages
defenses, and Plaintiff would neither recover any damages nor certify a damages
class.
19. Although Plaintiff contends she and members of the putative class
have been deceived and are entitled to a full refund of the purchase price were this
action to be litigated, Plaintiff acknowledges it is unlikely such a damages model
would be adopted given the proffered defenses. Thus, in the settlement context
Plaintiff believes a realistic, conservative method for evaluating damages is but a
fraction of the purchase price refund minus depreciation model set forth above.
Neiman’s contention that the value Last Call purchasers receive is essentially the
same to the products’ purchase prices also makes estimating the appropriate value
of any discount difficult from Plaintiff’s perspective. Considering no Settlement
Class Member has to return items purchased under the proposed settlement, each
retains whatever value the products have or had in addition to the value obtained
through this settlement. Lastly, given the experience with other class action
litigation, only a small percentage of Class Members were anticipated to claim the
value offered, even were the case to have proceeding to trial, as is typical in these
types of settlements (and has proven to be true during the claims process for this
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Settlement). The $2,900,000 Gross Settlement Amount constitutes valuable
consideration and is fair and reasonable given the risks of further litigation and the
potential damages recovery at trial. Additionally, Neiman agreed to substantial
injunctive relief including changes in practice and robust disclosures, which
provides significant additional relief that may not have been obtainable at trial.
20. Given the inherent risks of litigation, the Settlement provides a
substantial recovery to each Settlement Class Member. From the Gross Settlement
Amount of $2,900,000, as would be customary even in individual contingency fee
litigation, the Settlement Class Counsel Fees and Litigation Expenses Payment, as
the Court awards, will then be deducted, as will the Settlement Class Representative
Payment, as awarded. The remaining amount, i.e. the Net Settlement Fund, which
cannot be less than $1,592,425.59, will be drawn from to provide each Settlement
Class Member a payment determined by a point system based on purchase prices,
including tax, of the Qualifying Purchases made, and whether Proof of Purchase is
provided. The entire Net Settlement Fund shall be allocated to pay the claims of
the Settlement Class Members who submitted valid and timely Claim Forms. The
calculation to determine each Settlement Class Member’s Payment from the Net
Settlement Fund is provided in full in the Settlement Agreement, Section 3.5(a), but
can be summarized as follows:
Each Authorized Claimant will receive a pro-rata share of the Net Settlement
Fund based upon the points assigned to that claimant. Authorized Claimants who
do not submit Proof(s) of Purchase, will receive one (1) point. Authorize Claimants
who submit Proof(s) of Purchase will receive four (4) points for up to the first $200
of documented purchases plus one (1) point for each additional $200 in documented
purchases, up to a maximum of ten (10 points per authorized Claimant.
21. Based on my experience handling consumer class actions and other
cases similar to this case, I believe that the settlement of this action is appropriate
and the settlement terms are fair, adequate and reasonable. I have based these
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conclusions on, inter alia, what I have learned regarding the strength and
weaknesses of the case from the independent investigation Plaintiff conducted, the
information Plaintiff has obtained from Neiman, the elements of the substantive law
covering the claims and damages at issue, the state of the law at this time regarding
class actions, and my background and experience in class action litigation. After
considering the strengths and weaknesses of Plaintiff’s case, the strength and
weaknesses of Neiman’s defenses, and the substantial expense, delay and risk
inherent in further litigation through trial, and potentially, appeals, the terms of the
settlement appear fair, adequate and reasonable, and in the best interests of the
proposed class.
22. The settlement was the product of months of arm’s length negotiations
between counsel, including, without limitation, multiple in-person mediation
sessions conducted by the Honorable Carl West (Ret.), and continuing negotiations.
The final settlement amount reached, two million nine hundred thousand dollars
($2,900,000), represents a substantial recovery in the eyes of Plaintiff and attorneys
at K&P. This recovery, given the significant litigation risks involved, represents an
outstanding result for class members.
23. Only one objection to the settlement, by Settlement Class Member
Pauline Pomerance, was received by K&P, and it appeared timely. I am informed
and believe counsel for defendant Neiman also received a copy of Ms. Pomerance’s
objection. A true and correct copy of the objection of Settlement Class Member
Pauline Pomerance is attached hereto as Exhibit B.
24. The auditing process of Claim Forms timely submitted is presently
ongoing. While the point allocations based on the Claim Forms submitted are still
subject to change, based upon information obtained from the Claims Administrator,
a current calculation of the point allocation by the Claims Administrator indicates
estimated total points of 20,547. When the Net Settlement Fund ($1,592,425.49) is
divided by the total points (20,547), the calculation shows eligible claimants will be
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awarded an estimated $77.50 per point. Based on the number of points a claimant
is awarded, and the current information available obtained from the Claims
Administrator, the compensation amounts will range between an estimated $77.50
(for those that did not submit any proof of purchase) and $775.00 (for those that
submitted $1,400 or more in proof of purchases). Further, more than 7,000
claimants made claims without submitting receipts. (See, supra, ¶ 20, for point
allocation methodology.)
25. Pursuant to Local Rule 7-3, attorneys at K&P met and conferred with
counsel for Neiman concerning the issues herein, prior to filing the motion for final
approval of class action settlement. Neiman does not oppose the motion.
I declare under penalty of perjury under the laws of the State of California
and United States of America that the foregoing is true and correct. Executed this
31st day of August 2018, at Redondo Beach, California.
/s/ Joshua A. Fields
JOSHUA A. FIELDS
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ᔨ 㨘 �眯 O º
Page 1
THE FIRM
INTRODUCTION
The law firm of Kirtland & Packard LLP wasfounded in 1932. It has grown from a localLos Angeles law office to a nationallyrecognized litigation firm.
Kirtland & Packard LLP maintains aconsumer focused litigation practice withemphasis in the following areas:
Catastrophic Injury and Wrongful Death
Class Action, Mass Tort and Complex
Litigation
Pharmaceutical and Medical Device
Employment
Product Liability
Transportation Accidents (Automobile,
Aircraft, Motorcycle, Truck & Train)
Business Torts
Corporate Fraud
Insurance Bad Faith
Whistle Blower/False Claims Act
The firm values every client relationship.
Each client of the firm is unique, and has a
unique set of needs, problems, goals and
solutions. It is the firm’s mission to help our
clients carefully define these issues, and
supply them with the highest quality of legal
services calculated to meet their particular
needs. The firm takes pride in its eighty-
five year of service to its clients and is
confident that it has the expertise and
ability to serve its diverse clientele with the
best legal representation possible.
TRIAL PRACTICE
Kirtland & Packard LLP, since its inception,
has been a firm of trial attorneys, with track
records which reflect the level of effort and
detail they have devoted to the art and skill
of trying cases. Over its long history, the
lawyers of Kirtland & Packard LLP have
tried and won many hundreds of jury trials,
an accomplishment matched by few other
firms.
Partners of the firm have been selected for
membership in and have received trial
practice awards from, and selection to,
many prestigious trial lawyer organizations
including the American Board of Trial
Advocates (ABOTA), Litigator Awards (top
1% of Litigators) in Personal Injury, Mass
Torts, Consumer Class Actions, Auto
Defects, Wrongful Termination, Business
Torts, Aviation Accidents, Spinal Cord
Injury and Brain Injury, The Top 100 Trial
Lawyers in California, The LAWDRAGON
Leading 500 Lawyers in America and
LAWDRAGON Top 500 Plaintiff Lawyers in
the United States, and the Distinguished
Justice Advocates (top 1% of Lawyers in
United States).
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 3 of 24 Page ID #:2288
Page 2
APPELLATE PRACTICE
Kirtland & Packard LLP, has always
maintained a strong appellate practice at
both state and federal levels and is proud of
its many recent victories for consumers. A
list of the firm’s appellate matters is included
in this resume beginning on page 12.
Recent significant victories for consumers
include:
Rubenstein v. Neiman Marcus Group LLC,
No. 15-55890, 2017 WL 1381147 (9th Cir.
April 18, 2017) (obtained reversal by Ninth
Circuit Court of Appeals of District Court’s
Order dismissing Plaintiff’s California
consumer protection claims where Plaintiff
alleged defendant Neiman Marcus misled
consumers by using deceptive reference
pricing at its Neiman Marcus Last Call outlet
stores);
Vasquez v. California School of Culinary
Arts, Inc., 230 Cal.App.4th 35 (2014)
(California Court of Appeal affirmed trial
court’s order awarding plaintiffs, former
students of for-profit culinary trade school,
attorneys fees and costs after plaintiffs
successfully opposed Sallie Mae’s motion to
quash business records subpoena seeking
electronically stored information pertaining
to student loans made to them by Sallie
Mae.)
Morgan v. AT&T Wireless Services, Inc.,
2013 WL 5034436 (Cal. Ct. App., Sept. 13,
2013, B241242) (obtained reversal by
California Court of Appeals, which held that
finding of a waiver of the right to compel
arbitration by class action defendant applies
not only to claims of the class
representative, but also to putative class
members, prior to class certification.)
Rubio v. Capital One Bank, 613 F.3d 1195
(9th Cir. 2010) (obtained reversal by Ninth
Circuit Court of Appeals of District Court’s
Order dismissing Plaintiff’s claims under the
federal Truth in Lending Act and
California’s Unfair Competition Law, where
Plaintiff alleged defendant Capital One
misled consumers of its credit card services
when it offered a low “fixed” APR in
solicitation materials for its credit cards and
thereafter claimed the APR was subject to
change at any time.)
Shroyer v. New Cingular Wireless Services,
Inc., 622 F.3d 1035 (9th Cir. 2010)
(obtained reversal by Ninth Circuit Court of
Appeals of District Court’s Order dismissing
Plaintiff’s breach of contract claim and
denial of declaratory relief on that claim,
where Plaintiff alleged his wireless
telephone service degraded after defendant
New Cingular merged with AT&T Wireless.)
COMPLEX FEDERAL PRACTICE
Kirtland & Packard LLP has represented
parties in and held litigation leadership
appointments (Lead Counsel, Co-Lead
Counsel, Steering Committees and/or
Executive Committees) in many Multi-
District Litigations (MDL) since virtually the
inception of Multi-District Litigation in 1962.
The firm is proud of its track record in MDL
litigations and continues to seek and obtain
judicial appointments in these important
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complex litigations. A list of some of the
MDL litigations the firm has had the honor of
working in are listed on page 21.
MAJOR PRACTICE AREAS
Catastrophic Injury and Wrongful Death
The lawyers of Kirtland & Packard LLP are
accomplished at representation of the
victims of catastrophic injury and wrongful
death in virtually all types of cases, including
negligence, product liability, transportation
accidents, faulty roadway design, and other
claims resulting in serious injury or death.
The firm’s decades of litigating serious injury
and death cases has resulted in the
knowledge and skill to hire and utilize the
experts best suited to these types of cases,
to conduct extensive discovery that will
uncover the weakness in the opponents’
defense, to supervise and target testing
necessary to proving cases and to present
cases to juries in a way that the jury can
understand and appreciate.
The firm also has extensive experience
working with physicians and healthcare
providers on life care plans and has become
expert in presenting a complete picture of its
clients’ injuries and life challenges to juries.
Class Action, Mass Tort and Complex
Litigation
Kirtland & Packard LLP is one of the
foremost class action and complex litigation
firms in the United States. The firm handles
cases nationwide, and has served as
counsel in class and mass tort actions
involving consumer protection, false
advertising, product liability, insurance,
breaches of financial and fiduciary
obligations, toxic torts, pharmaceutical
claims, 401(k) losses, as well as wage and
hour claims.
The firm strives to use the class action
framework to create a real, tangible, and
valuable benefit for the class members that
it represents. Individuals who make the
important commitment to serve as class
representatives become an important part
of the firm’s class action efforts. They are
kept closely informed and involved in the
litigation, are involved in all key decisions,
and participate closely in settlement
negotiations if and when they are
undertaken. Members of the firm leverage
their extensive trial experience to prepare
every case in anticipation of trial, allowing
them to focus their pleadings, motion
practice, and discovery on the issues that
matter.
Pharmaceutical and Medical Device
The firm has been and is presently involved
in multiple pharmaceutical and medical
device litigations. Currently, the firm holds
leadership positions in the Xarelto JCCP,
Pradaxa JCCP, Cymbalta JCCP, Abilify
MDL, Bair Hugger MDL, and Benicar MDL.
The Benicar MDL resulted in a $300 million
settlement, and Kirtland & Packard is proud
of its efforts as well as the combined efforts
of all the plaintiffs’ firms involved. The
Cymbalta JCCP has also resulted in a
master settlement agreement. The firm is
working diligently to ensure positive results
in all of the litigations it is spearheading.
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Employment
Kirtland & Packard LLP representsemployees in claims involving all forms ofdiscrimination and harassment (age, sex,disability, gender preference, race, nationalorigin, religion), hostile work environment,wrongful termination and many otherviolations of laws protecting employees.Partner Michael Louis Kelly obtained arecord-setting verdict for an individual in ansingle discrimination case in 2005 in thecase of Baker v. PrivateAir of $63,900,000.
Product Liability
The firm's product liability practice isextensive and varied. The firm’s five decadebackground in aerospace, aviation and othertransportation accident claims has preparedit to litigate literally any type of produceliability claim. The lawyers of the firm haveworked with just about every type of expertinvolved in product liability cases, and havetaken a large and varied number of productliability cases to successful jury verdict.
Transportation Accidents
(Automobile, Aircraft, Motorcycle, Truck
& Train)
Kirtland & Packard LLP has vast experiencelitigating transportation accidents, whetherthe claims are product related, based onnegligence, roadway design, or anycombination thereof. The firm hasdeveloped expertise in specific disciplinesinvolved in transportation accidents,including the manufacture of wheels andtires, the manufacture of both commercialand general aviation aircraft and aircraftengines, motorcycles, trailers, generalvehicle design as well as crash worthinessof all types of vehicles.
The attorneys litigating aviation claims haveextensive flying backgrounds (two hold
Airline Transport Pilot ratings - the highestcivilian rating issued by the FAA) as well asadvanced university engineering degrees.
Business Torts
Kirtland & Packard LLP has successfullyrepresented business or business ownersinvolved in many different types of businessdisputes, including fraud claims, contractualdisputes, unfair competition or businesspractices, corporate and partnershipdissolutions, and disputes arising from non-competition agreements, as well as manyother types of business disputes.
Corporate Fraud
Kirtland & Packard LLP’s class actionpractice includes substantial experiencerepresenting consumers with recourseagainst corporate fraud of all types. Thefirm has an accomplished track record ofrepresenting consumers in claims againstcorporations for false advertising and otherunfair competition claims.
Insurance Bad Faith
Kirtland & Packard has developed anadvanced insurance practice which allowsit to successfully prosecute insurance badfaith claims on behalf of individualswronged by insurance companies, and wellas to maximize insurance coverageavailable to those clients wronged bytortfeasers covered by insurance.
Whistle Blower/False Claims Act
The firm has successfully represented
whistleblowers in cases involving fraudulent
billing, healthcare fraud, fraudulent
governmental reporting and other illegal
schemes. Kirtland & Packard LLP has
developed meaningful relationships which
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Page 5
have allowed many of these cases to be
resolved efficiently and effectively through
early mediation and settlement, an important
skill when many of these cases take many
years to wind their way through the litigation
process.
e
ATTORNEYS OF THE FIRM
Ë
Michael Louis Kelly (Managing Partner)
Mr. Kelly is recognized as one of the topconsumer trial lawyers in the country. Hisnumerous jury verdicts have set records fornot only verdict size, but have alsoexpanded consumer protections andsafeguards. He serves as senior andmanaging partner of the firm, with which hehas spent his almost 39 years of practice.
Mr. Kelly has tried and won a wide varietyof cases including product liability(catastrophic injury and wrongful death),negligence, aviation, vehicle accidents,mass product recall, business fraud,employment, defective roadway design,insurance bad faith, and many others. Mr.Kelly has set records for verdict amounts($63,900,000 verdict in the agediscrimination case of Baker v. PrivatAir)and has expanded consumer protections(with his novel theory of insurancecompany wrongdoing in Indochina v.Stratford Insurance Company).
Recognitions:
• AV Rated: Martindale Hubbell[Very High to Preeminent]
• Recognition by LAWYERSWEEKLY USA in their TOP 10USA Verdicts for 2005 for his$63.9 million verdict in theemployment discrimination case ofBaker v. PrivatAir;
• Recognition by LAWDRAGON as
one of the Leading 500 Plaintiffs'Lawyers in America
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• Recognition by LAWDRAGON asone of the Leading 500 Lawyers inAmerica
• Recognition as one of the Southern
California Super Lawyers
• Recognized by The American TrialLawyers Association as one of theTop 100 Trial Lawyers in California.
• Litigator Awards (top 1%) in
Personal Injury, Mass Torts,Consumer Class Actions, AutoDefects, Wrongful Termination ,Business Torts, Aviation Accidents,Spinal Cord Injury and Brain Injury.
• Selection to the DistinguishedJustice Advocates (top 1%)
Personal:
Born in John Day, Oregon, 1953; Admittedto bar, 1978, California; 1984, U.S. TrustTerritory of the Pacific Islands; 1987,Colorado; 1987, U.S. Supreme Court.Further admitted to the bars of variousUnited States Courts of Appeal and UnitedStates District Courts.
Education:
Seattle University (B.A., 1975); University ofIdaho (J.D., 1978). Member, Idaho LawReview, 1976-1977; Board of Editors, 1977-1978; Comments Editor, 1977-1978.
Memberships:
State Bar of California
State Bar of Colorado
American Bar Association (Vice Chairperson, Committee on Aviation
Litigation, 1990-1992; Member, Section of Tort and Insurance Practice; Member,Section of Science and Technology)
Los Angeles County Bar Association
South Bay Bar Association
Lawyer-Pilots Bar Association
Association of Trial Lawyers of America Consumer Attorneys of California
Los Angeles County Superior CourtSettlement Programs
Association of Business Trial Lawyers
Licenses:
Mr. Kelly holds an Airline Pilot Transportrating.
E-mail: [email protected]
Ë
Behram V. Parekh (Of Counsel)
Mr. Parekh is a litigator and trial lawyer whohandles a variety of matters, including classand mass torts, pharmaceutical andmedical device claims as well as mattersinvolving corporate fraud. Mr. Parekh is aspecialist in electronic discovery, and isoften asked to chair this effort in MDL andJCCP proceedings. Mr. Parekh has beenappointed as lead or co-lead counsel innumerous litigations in the fields ofconsumer fraud, false and misleadingadvertising, unfair competition, drug anddevice liability, mass tort, and securitiesfraud.
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Page 7
Recognitions: • American Jurisprudence Award for
Wills & Trusts
• Southern California Super Lawyers • The National Trial Lawyers - Top
100 Trial Lawyers
Personal:
Born in Bombay, Ind ia , 1969;Primary/Secondary School completed inHong Kong. Admitted to bar, 1995,California. Also admitted to the bars of theUnited States Supreme Court; CaliforniaSupreme Court; United States Courts ofAppeals for the Second, Ninth and TenthCircuits; United States District Courts for theCentral, Eastern, Northern and SouthernDistricts of California, District of Colorado,Western District of Michigan, and NorthernDistrict of Oklahoma.
Education:
University of California, Irvine (B.A. 1992);Pepperdine University School of Law (J.D.,cum laude, 1995); Straus Institute forDispute Resolution, Certificate in AlternativeDispute Resolution, 1995.
Memberships:
State Bar of California
American Association for Justice
Consumer Attorneys of California
Los Angeles County Bar Association
E-mail: [email protected]
Ë
Ruth Rizkalla (Of Counsel)
Ms. Rizkalla is a litigator with experience in
mass torts litigation, pharmaceutical
litigation, complex business litigation, and
partnership dissolutions. Ms. Rizkalla
began her career representing Fortune 500
companies, but now fights for individuals
who were hurt by large corporations and
need the best possible legal representation.
She has been appointed Liaison Counsel
for the In Re Zoloft Birth Defects JCCP and
the In Re Cymbalta Withdrawals JCCP,
and is currently Co-Lead Counsel for the In
Re Xarelto JCCP and a Plaintiffs’ Steering
Committee Member for the In Re Pradaxa
JCCP. Ms. Rizkalla has also litigated in
large pharmaceutical multi-district
litigations. She currently serves on the
Corporate Acquisitions Committee and the
Science Committee in the Bair Hugger
Forced Air Warming Products Liability
Litigation (MDL 2666).
Recognitions:
Ms. Rizkalla has volunteered a significant
amount of time with nonprofit organizations,
both abroad and at home. In 2002, she was
recognized for her pro bono instruction in
Southeast Asian countries through the
Center for Law and Global Justice. In 2007,
she was recognized by the California State
Bar for representing an elderly disabled
woman against one of the largest financial
institutions in the world, and aided in taking
the case to a successful bench verdict.
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Page 8
Personal:
Born Pittsburgh, Pennsylvania, 1976.Admitted to all California state courts; United States District Court, NorthernDistrict of California; United States DistrictCourt, Central District of California; UnitedStates District Court, Eastern District ofCalifornia Education:
Santa Clara University (B.S. 1998);University of San Francisco (J.D. 2002);Charles University School of Law, Prague,Czech Republic (Summer 2001); UdayanaUniversity School of Law, Bali, Indonesia(Summer 2000)
Memberships:
State Bar of California
American Association for Justice E-mail: [email protected]
Ë
Robert A. Muhlbach
Mr. Muhlbach is an accomplished litigatorand trial lawyer and former military pilot whospecializes in catastrophic injury and deathcases involving technical and engineeringissues.
Recognitions:
• American Board of Trial Advocates(ABOTA)
• Southern California Super Lawyer
Personal:
Born in Los Angeles, California, April 13,1946; Admitted to bar, 1976, California.
Education:
University of California, Berkeley (B.S.,Mechanical Engineering, 1967); CaliforniaState University, Long Beach (M.S.,Mechanical Engineering, 1969); Universityof Southern California (M.P.A., 1978);Hastings College of Law, University ofCalifornia (J.D., 1976). Member, HastingsConstitutional Law Quarterly, 1975-1976.Public Defender, Los Angeles County,1977-1979.
Memberships:
State Bar of California
American Board of Trial Advocates(ABOTA)
American Bar Association
American Institute of Aeronautics andAstronautics;
Lawyer-Pilots Bar Association
Capt., Pilot, USAF, 1969-1973.]
Licenses:
Mr. Muhlbach holds an Airline PilotTransport rating.
E-mail: [email protected]
Ë
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Page 9
Mark E. Goldsmith (Of Counsel)
Mr. Goldsmith is a litigator and trial lawyerconcentrating his practice in employment
litigation.
Personal:
Born in Chicago, Illinois,1960; Admitted tobar, 1987, California, U.S. Court of Appeals,Ninth Circuit and U.S. District court,Northern District of California; 1989, U.S.District Court, Central District of California;1991, U.S. District Court, Southern andEastern Districts of California. Education:
University of Wisconsin, Madison (B.A.,1982); Hastings College of the Law,University of California (J.D., 1985). Memberships:
State Bar of California
Los Angeles County Bar Association
E-mail: [email protected]
Ë
Joshua A. Fields
Mr. Fields is a litigator and trial lawyer
focusing on class action and mass tort
complex litigation. He is also an
accomplished appellate lawyer, having
successfully briefed and/or argued many
state and federal appeals, including:
Rubenstein v. Neiman Marcus Group, LLC,
No. 15-55890, 2017 WL 1381147 (9th Cir.
April 18. 2017)
Rubio v. Capital One Bank, 613 F.3d 1195
(9th Cir. 2010)
Morgan v. AT&T Wireless Services, Inc.,
2013 WL 5034436 (Cal. Ct. App., Sept. 13,
2013, B241242)
Recognition:
• Southern California Superlawyers
Personal:
Born in Bronx, NY, 1972; Admitted to Bar,
2006, California; United States Supreme
Court; California Supreme Court; United
States Court of Appeals for the Ninth
Circuit; United States District Courts for the
Central, Northern, Eastern, and Southern
Districts of California, and District of
Colorado.
Education:
Harvard University (A.B. Cum Laude 1995);
Tulane University (J.D., Environmental Law
Certificate, 2005); Managing Editor, The
Tulane Environmental Law Journal; Judicial
Intern to the Honorable Louise Gans, New
York State Supreme Court, 2003.
Memberships:
State Bar of California
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Page 10
Publications:
Recent Development: Engine
Manufacturers Association v. South Coast
Air Quality Management District, 18 Tul.
Envtl. L.J. 258 (2004).
E-mail: [email protected]
Ë
Heather Baker Dobbs
Ms. Baker Dobbs is a litigator and trial
lawyer dedicated to representing plaintiffs in
wrongful death, catastrophic injury,
employment, premises liability, roadway
design, class action, and all types of
transportation accident cases and has
served as co-counsel with Mr. Kelly in
successful trials to verdict. Ms. Baker Dobbs
enjoys the courtroom but her true passion in
law is working closely with clients and
helping to bring their cases to full resolution
with the best possible results.
Personal:
Born in Orange, California, 1982; Admitted
to bar, 2008, California; California Supreme
Court, United States Court of Appeals for
the Ninth Circuit; United States District
Courts for the Central, Eastern, Northern,
and Southern Districts of California.
Education:
University of Southern California (B.A.,
Political Science and Psychology, magna
cum laude, 2005); Judicial Clerkship for
Honorable Kathleen Thompson, United
States Bankruptcy Court for the Central
District (Fall 2006); Pepperdine University
School of Law (J.D., 2008); Certificate in
Dispute Resolution, Pepperdine University
School of Law (2008).
Recognition:
• Southern California Superlawyers -
Rising Stars 2012-2017
Memberships:
State Bar of California
American Bar Association
Los Angeles County Bar Association
E-mail: [email protected]
Ë
Kyle C. Benkie
Mr. Benkie concentrates his practice in the
area of pharmaceutical and medical device
claims.
Personal:
Born in Rocky Mount, North Carolina, 1985;
Admitted to bar, 2015, California.
Education: California Polytechnic
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Page 11
University, Pomona, (B.S. Communications
2007); Glendale University College of Law
(J.D. 2014); Highest Grade on Torts A Exam
(2011).
Memberships:
State Bar of California
American Bar Association
E-mail: [email protected]
Ë
Paul Andrew Castillo
Mr. Castillo handles matters involving
catastrophic injuries, wrongful death, and
also is very involved in the firm’s
pharmaceutical and medical device practice.
Personal:
Born in Phoenix, Arizona, 1985; Admitted
to bar, 2016, California.
Education:
Arizona State University,(B.S. Political
Science 2008); Loyola Law School, Los
Angeles (J.D. 2016, Corporate Law
Concentration).
Memberships:
State Bar of California
American Bar Association
E-mail: [email protected]
e
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Page 12
APPELLATE OPINIONS OF THE FIRM
2017 Rubenstein v. Neiman Marcus
Group, LLC, No. 15-55890, 2017 WL
1381147 (9th Cir. April 18, 2017)
2014 Vasquez v. California School of
Culinary Arts, Inc. 230 Cal.App.4th 35
(2014)
2013 Morgan v. AT&T Wireless
Services, Inc., 2013 WL 5034436 (Cal.
Ct. App., Sept. 13, 2013, B241242)
2012 Rodgers v. Los Angeles County
Sheriff's Department, 2012 WL 590782
(Cal. Ct. App., Feb. 22, 2012, B225800)
2012 Hecimovich v. Encinal School
Parent Teacher Organization (2012)
203 Cal.App.4th 450, 454
2011 Reizner v. Avakian, 2011 WL
6145134, (Cal. Ct. App., Dec. 12, 2011,
F060787)
2011 Kurz v. Superior Court, 2011 WL
288460 (Cal. Ct. App., Jan. 31, 2011,
H035548)
2010 Rubio v. Capital One Bank 613
F.3d 1195 (9th Cir. 2010)
2010 Verzani v. Costco Wholesale
Corp. 2010 WL 2838526 (2d Cir. 2010)
2010 Shroyer v. New Cingular Wireless
Services, Inc. 622 F.3d 1035 (9th Cir.
2010)
2010 Adams v. Superior Court 2010 WL
602515 (Cal. App. 4 Dist.)
2010 Sutton v. Pistone & Wolder LLP
2010 WL 46859 (Cal. App. 4 Dist.)
2009 Morgan v. AT&T Wireless
Services, Inc. 177 Cal. App .4th 1235
2008 Weinstein v. Saturn Corp. 303
Fed.Appx. 424 (9th Cir. 2008)
2007 Shroyer v. New Cingular Wireless
Services, Inc. 498 F.3d 976 (9th Cir.
2007)
2004 Dottie Goldstein et al v. Ralphs
Grocery Company 2004 122 Cal. App.
4th 229.
2003 In Re Air Crash at Belle Harbor,
NY on November 12, 2001 2003 WL
21032034 2003 (MDL 1448 (RWS))
2002 Allen v. Sully-Miller Contracting
Co., 28 Cal. 4th 222 (2002)
2002 Pedus Building Services, Inc. v.
Allen, 96 Cal. App. 4th 152 (2002)
1999 APRI Ins. Co. v. Superior Court,76
Cal. App. 4th 176 (1999)
1999 Brockrath v. Aldrich Chemical Co.,
Inc., 21 Cal. 4th 71 (1999)
1998 Balthazor v. Little League
Baseball, Inc.,62 Cal. App. 4th 47
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Page 13
(1998)
1998 Chung v. Tarom, S.A., 990 F.
Supp. 581 (N.D. Ill. 1998)
1996 Magnin v. Teledyne Continental
Motors, 91 F. 3d 1424 (11th Cir. 1996)
1996 Tomko Woll Group Architects, Inc.
v. Superior Court, 46 Cal. App. 4th 1326
(1996)
1996 Armstrong World Industrices, Inc.
v. Aetna Casualty & Surety Co., 45 Cal.
App. 4th 1 (1996)
1996 Tate v. Boeing Helicopters,921 F.
Supp. 1562 (W.D. Ky. 1996) 55 F. 3d
1150 (6th Cir. Ky. 1995)
1995 Pruyn v. Agricultural Ins. Co.,36
Cal. App. 4th 500 (1995)
1995 Mero v. Sadoff,31 Cal. App. 4th
1466 (1995)
1994 Viner v. Brockway, 36 Cal. Rptr.
2d 718 (1994)
1994 Kerins v. Hartley,27 Cal. App. 4th
1062 (1994)
1994 Linton v. Airbus Industrie, 30 F. 3d
592 (5th Cir. Tex. 1994)
1994 Kern v. Jeppeson Sanderson, Inc.,
867 F. Supp. 525 (S.D. Tex. 1994)
1993 Armstrong World Industries, Inc. v.
Aetna Casualty & Surety Co., 26 Cal.
Rptr. 2d 35 (1993)
1992 Whittaker Corp. v. Allianz
Underwriters, Inc.,11 Cal. App. 4th1236
(1992)
1992 Contreras v. Goldrich,10 Cal. App.
4th
1431 (1992)
1992 Linton v. Airbus Industrie, 794 F.
Supp. 650 (S.D. Tex. 1992)
1991 Williamson v. Teledyne
Continental Motors Aircraft Products
Div., 1991 WL 249787 (E.D. Pa. 1991),
1990 WL 99756 (E.D. Pa. 1990)
1991 Adams v. Murakami,54 Cal. 3d
105 (1991), 228 Cal. App. 3d 885
(1990)
1991 Woods v. Young,53 Cal. 3d 315
(1991), 246 Cal. Rptr.768 (1988)
1989 Harris v. Tashma, 258 Cal. Rptr.
20 (1989)
1989 Marlene F. v. Affiliated Psychiatric
Medical Clinic, Inc., 48 Cal. 3d 583
(1989)
1989 Brownfield v. Daniel Freeman
Marina Hospital,208 Cal. App. 3d 405
(1989)
1988 Knighten v. Sam's Parking
Valet,206 Cal. App. 3d 69 (1988)
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Page 14
1988 Getty v. Getty,205 Cal. App. 3d
134 (1988)
1988 In Re San Juan Dupont Plaza
Hotel Fire Litigation, 687 F. Supp. 716
(D. Puerto Rico 1988) (MDL
1448(RWS))
1988 Stanton v. Continental Cas.
Co.,243 Cal.Rptr. 147 (1988)
1987 U.S. v. Stringfellow,661 F. Supp.
1053 (1987)
1987 Grimm v. Thayer,188 Cal. App. 3d
866 (1987)
1986 Graham v.Teledyne-Continental
Motors, a Div. of Teledyne Industries,
Inc. 805 F. 2d 1386 (9th Cir. Cal. 1986)
1986 Green v. Travelers Indemnity Co.,
185 Cal. App. 3d 544 (1986)
1986 Swett v. Schenk,792 F. 2d 1447
(9th Cir. Cal. 1986)
1986 Brimmer v. .California Charter
Medical, Inc., 180 Cal. App. 3d 678
(1986)
1986 Covenant Mutual Ins. Co. v.
Young,179 Cal. App. 3d 318 (1986)
1986 Budavari v. Barry,176 Cal. App. 3d
849 (1986)
1985 Jaffe v. Cranford Ins. Co.,168
Cal. App. 3d 930 (1985)
1985 Iverson v. Superior Court,167 Cal.
App. 3d 544 (1985)
1984 Gradus v. Hanson Aviation, Inc.,
158 Cal. App. 3d 1038 (1984)
1984 County of Los Angeles v.
Superior Court, 155 Cal. App. 3d 798
(1984)
1983 Hogen v. Valley Hospital,147 Cal.
App. 3d 119 (1983)
1982 Weber Aircraft Corp., a Div. of
Walter Kidde and Co., Inc. v. U.S., 688
F. 2d 638 (9th Cir. Cal. 1982)
1982 Garcia v. Douglas Aircraft Co.,133
Cal. App. 3d 890 (1982)
1982 Aeronaves de Mexico, S.A. v.
McDonnell Douglas Corp., 677 F. 2d
771 (9th Cir. Cal. 1982)
1982 S.A. Empressa De ViacaoAerea
Rio Grandense (Varig Airlines) v. Walter
Kidde & Co., Inc.,690 F. 2d 1235 (9th
Cir. Cal. 1982)
1980 Stoddard v. Ling-Temco-Vought,
Inc., 513 F. Supp. 314 (C.D. Cal. 1980)
1979 Evans v. Hawker-Siddeley
Aviation, Ltd.,482 F. Supp. 547
(S.D.N.Y. 1979)
1979 Robinson v. Pediatric Affiliates
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 16 of 24 Page ID #:2301
Page 15
Medical Group, Inc.,98 Cal. App. 3d 907
(1979)
1979 Reyno v. Piper Aircraft Co.,479 F.
Supp. 727 (M.D. Pa. 1979)
1979 Baker v. Beech Aircraft Corp.,96
Cal. App. 3d 321 (1979)
1979 Scandiavian Airlines System v.
United Aircraft Corp., 601 F. 2d 425 (9th
Cir. Cal. 1979)
1979 Segura v. Brundage,91 Cal. App.
3d 19 (1979)
1978 Insurance Co. of North America v.
Sam Harris Constr. Co., 22 Cal. 3d 409
(1978)
1978 Colby v. Schwartz,78 Cal. App. 3d
885 (1978)
1977 Barton v. Owen,71 Cal. App. 3d
484 (1977)
1977 Saxton v. McDonnell Douglas
Aircraft Co., 428 F. Supp. 1047 (1977)
(MDL 172)
1977 Moncur v. City of Los Angeles,68
Cal. App. 3d 118 (1977)
1977 In Re Paris Air Crash of March 3,
1974, 427 F. Supp. 701 (C.D. Cal.
1977)
1977 In Re Paris Air Crash of March 3,
1974, 420 F. Supp. 880 (C.D. Cal.
1976), 423 F. Supp. 367 (C.D. Cal.
1976)
1977 In Re Paris Air Crash of March 3,
1974, 410 F. Supp. 326 (C.D. Cal.
1976), 69 F.R.D. 310 (C.D. Cal. 1975)
1977 Flanagan v. McDonnell Douglas
Corp.,428 F. Supp. 770 (C.D. Cal. 1977)
1976 Slapin v. Los Angeles International
Airport,65 Cal. App. 3d 484 (1976)
1976 Scherer v. Mark,64 Cal. App. 3d
834 (1976)
1976 Singelyn v. Superior Court, 62
Cal. App. 3d 972 (1976)
1976 Sanchez v. South Hoover
Hospital,18 Cal. 3d 93 (1976)
1976 Beech Aircraft Corp. v. Superior
Court,61 Cal. App. 3d 501 (1976)
1976 Smith v. Sikorsky Aircraft,420 F.
Supp. 661 (1976)
1976 Taylor v. Union Pac. R. Corp.,16
Cal. 3d 893 (1976), 50 Cal. App. 3d 271
(1975)
1976 Rousseff v. Western Airlines,
Inc.,409 F. Supp. 1262 (C.D. Cal. 1976)
1976 Kaiser Steel Corp.v.
Westinghouse Elec. Corp., 55 Cal. App.
3d 737 (1976)
1976 Aas v. Avemco Ins. Co.,55 Cal.
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Page 16
App. 3d 312 (1976)
1976 Scherer v. Mark,54 Cal. App. 3d
468 (1976)
1976 Sanchez v. South Hoover
Hospital, 54 Cal. App. 3d 270 (1976)
1974 Times Newspapers Ltd. (Of Great
Britain) v. McDonnell Douglas Corp.,
387 F.Supp. 189 (1974)
1974 City of Los Angeles v. Japan Air
Lines Co., Ltd., 41 Cal. App. 3d 416
(1974)
1974 Baker v. Beech Aircraft Corp.,39
Cal. App. 3d 315 (1974)
1974 Cairl v. Boeing Co.,39 Cal. App.
3d 137 (1974)
1974 Mitchell v. National Auto. &
Casualty Ins. Co., 38 Cal. App. 3d 599
(1974)
1974 Pease v. Beech Aircraft Corp.,38
Cal. App. 3d 450 (1974)
1974 McCullum v. United Intern. Corp.,
493 F. 2d 501 (1974)
1974 Klingebiel v. Lockheed Aircraft
Corp.,494 F. 2d 345 (9th Cir. Cal. 1974)
1973 Arney v. U.S.,479 F. 2d 653 (9th
Cir. Cal. 1973)
1973 Wint v. Fidelity & Casualty Co., 9
Cal. 3d 257 (1973)
1972 Cobbs v. Grant,8 Cal. 3d 229
(1972)
1972 Harbor Ins. co. v. Employers'
Surplus Lines Ins. Co., 26 Cal. App. 3d
559 (1972)
1972 Lockheed Air Terminal, Inc. v. City
of Burbank,457 F. 2d 667 (9th Cir.Cal.
1972)
1971 Klingebiel v. Lockheed Aircraft
Corp., 372 F. Supp. 1086 (N.D. Cal.
1971)
1971 Cal-Medicon v. Los Angeles
County Medical Assn., 20 Cal. App. 3d
148 (1971)
1971 Citizens Cas. Co. v. Otis Clark &
Co.,19 Cal. App. 3d 294 (1971)
1971 McGlenon v. Boeing Co.,437 F. 2d
433 (9th Cir. Cal. 1971)
1970 Marincovich v. Oriana, Inc.,13 Cal.
App. 3d 146 (1970)
1970 Hiemstra v. Huston, 12 Cal. App.
3d 104 (1970)
1970 Lockheed Air Terminal, Inc. v. City
of Burbank, 318 F. Supp. 914 (C.D. Cal.
1970)
1970 Liberty Mut. Ins. Co. v. Harris,
Kerr, Forster & Co.,10 Cal. App. 3d
1100 (1970)
1970 City of Newport Beach v. Sasse,9
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 18 of 24 Page ID #:2303
Page 17
Cal. App. 3d 803 (1970)
1970 Egly v. Superior Court,6 Cal. App.
3d 476 (1970)
1969 Knox-Seeman Motor Parts, Inc. v.
American Ins. Co., 2 Cal. App. 3d 173
(1969)
1969 Berkey v. Anderson,1 Cal. App. 3d
790 (1969)
1969 Cullum v. Seifer,1 Cal. App. 3d 20
(1969)
1969 Rodde v. Trousdale Const. Co.,
276 Cal. App. 2d 419 (1969)
1969 Western Salt Co. v. City of
Newport Beach, 271 Cal. App. 2d 397
(1969)
1968 Employers' Surplus Lines Ins. Co.
v. Fireman's Fund Ins. Co., 266 Cal.
App. 2d 183 (1968)
1968 Geddes v.Tri-State Ins. Co.,264
Cal. App. 2d 181 (1968)
1968 Patton v. Royal Industries,
Inc.,263 Cal. App. 2d 760 (1968)
1968 Dorobek v. Ride-A-White
Stables,262 Cal. App. 2d 554 (1968)
1968 Cunningham v. Burbank Bd. of
Realtors,262 Cal. App. 2d 211 (1968)
1968 City of Los Angeles v. Standard
Oil Co. of Cal., 262 Cal. App. 2d 118
(1968)
1968 Storey v. Garrett Corp.,43 F.R.D.
301 (C.D. Cal. 1968)
1967 Mixon v. Riverview Hospital,254
Cal. App. 2d 364 (1967)
1967 Marcus v. Palm Harbor Hospital,
Inc., 253 Cal. App. 2d 1008 (1967)
1967 Kemmerer Engineering Co. v.
Continental Cas. Co.,253 Cal. App. 2d
188 (1967)
1967 O'Reilly v. Board of Medical
Examiners,66 Cal. 2d 381 (1967), 55
Cal. Rptr. 152 (1966)
1967 Bledsoe v. Informative
Research,257 Cal. App. 2d 684 (1967)
1966 Schwartz v. Thiele,242 Cal. App.
2d 799 (1966)
1966 Skyways Aircraft Ferrying Service,
Inc. v. Stanton,242 Cal. App. 2d 272
(1966)
1966 Dunlap v. Marine,242 Cal. App. 2d
162 (1966)
1966 Erickson v. Sears, Roebuck & Co.,
240 Cal. App. 2d 793 (1966)
1965 Mission Ins. Co. v. Brown,63 Cal.
2d 508 (1965)
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 19 of 24 Page ID #:2304
Page 18
1965 Olsen v. Lockheed Aircraft Corp.,
237 Cal. App. 2d 737 (1965)
1965 Warren v. Flying Tiger Line,
Inc.,352 F. 2d 494 (9th Cir. Cal. 1965),
234 F. Supp. 223 (S.D. Cal. 1964)
1965 Mission Ins. Co. v. Brown,43 Cal.
Rptr. 518 (1965)
1964 Washington v. Blampin,226 Cal.
App. 2d 604 (1964)
1963 Civil Service Emp. Ins. Co. v.
Wilson, 222 Cal. App. 2d 519 (1963)
1963 McMahon v. Maddox,221 Cal.
App. 2d 119 (1963)
1963 Carrasco v. Bankoff,220 Cal. App.
2d 230 (1963)
1963 Security-First Nat. Bank of Los
Angeles v. Lutz, 322 F. 2d 348 (9th Cir.
Cal. 1963)
1963 Myers v. Carter,215 Cal. App. 2d
238 (1963)
1963 Dreybus v. Bayless Rents, 213
Cal. App. 2d 506 (1963)
1962 Wilson v. Lockheed Aircraft Corp.,
210 Cal. App. 2d 451 (1962)
1962 San Pedro Properties, Inc. v.
Sayre & Toso, Inc., 203 Cal. App. 2d
750 (1962)
1962 Farnsworth v. Cote,199 Cal. App.
2d 762 (1962)
1961 Cox v. Shepherd,199 F. Supp. 140
(S.D. Cal. 1961)
1961 Security-First Nat. Bank of Los
Angeles v. Lutz, 297 F. 2d 159 (9th Cir.
Cal. 1961)
1961 Di Muro v. Matserson Trusafe
Steel Scaffold Co., 193 Cal. App. 2d
784 (1961)
1961 Maben v. Rankin,55 Cal. 2d 139
(1961), 4 Cal. Rptr. 731 (1960)
1960 Pacific Greyhound Lines v.
Buerner,187 Cal. App. 2d 190 (1960)
1960 Continental Mfg. Corp. v.
Underwriters at Lloyds London, 185 Cal.
App. 2d 545 (1960)
1960 Campbell v. Magana,184 Cal.
App. 2d 751 (1960)
1960 Arvin-Kern Co. v. B.J. Service,
Inc., 178 Cal. App. 2d 783 (1960)
1960 Rexall Drug Co. v. Nihill,276 F. 2d
637 (1960)
1960 Vinnell Co. v. Pacific Elec. Ry.
Co., 52 Cal. 2d 411 (1959), 334 P. 2d
139 (1959)
1959 Davis v. Goodrich,171 Cal. App.
2d 92 (1959)
1959 McDonald v. Foster Memorial
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 20 of 24 Page ID #:2305
Page 19
Hospital, 170 Cal. App. 2d 85 (1959)
1958 Lewis v. Franklin,161 Cal. App. 2d
177 (1958)
1957 Mayers v. Litow,154 Cal. App. 2d
413 (1957)
1957 Calvin v. Thayer,150 Cal. App. 2d
610 (1957)
1956 Landsberg v. Kolodny, 145 Cal.
App. 2d 158 (1956)
1956 Alwood v. City of Los Angeles,
139 Cal. App. 2d 49 (1956)
1956 Agnew v. City of Compton,239 F.
2d 226 (9th Cir. Cal. 1956)
1956 Spencer v. Beatty Safway Scaffold
Co., 141 Cal. App. 2d 875 (1956)
1956 Smith v. National Broadcasting
Co.,138 Cal. App. 2d 807 (1956)
1955 Potter v. Richards,132 Cal. App.
2d 380 (1955)
1955 Seneris v. Haas,45 Cal. 2d 811
(1955)
1955 Dragna v. White,45 Cal. 2d 469
(1955)
1955 Anderson v. No-Doz, 134 Cal.
App. 2d 11 (1955)
1955 Miller v. Glass,44 Cal. 2d 359
(1955), 274 P. 2d 669 (Cal. App. 4 Dist.
1954)
1955 Potter v. Richards,132 Cal. App.
2d 380 (1955)
1955 Seneris v. Haas,281 P. 2d 278
(1955)
1955 Dragna v. White,280 P. 2d 817
(Cal. App. 2 Dist. 1955)
1953 Bates v. Newman,121 Cal. App.
2d 800 (1953)
1953 Curland v. Los Angeles County
Fair Ass'n, 118 Cal. App. 2d 691 (1953)
1953 Farber v. Olkon,40 Cal. 2d 503
(1953), 246 P. 2d 710 (Cal. App. 2 Dist.)
1951 Champion v. Bennetts,37 Cal. 2d
815 (1951), 231 P. 2d 108 (Cal. App. 2
Dist.)
1951 Huffman v. Lindquist,37 Cal. 2d
465 (1951)
1951 Romero v. Eustace,101 Cal. App.
2d 253 (1951)
1950 Kritzer v. Citron,101 Cal. .App. 2d
33 (1950)
1950 Kleinberg v. Underwriters at
Lloyd's London, 98 Cal. App. 2d 119
(1950)
1950 Larsson v. Cedars of Lebanon
Hospital,97 Cal. App. 2d 704 (1950)
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 21 of 24 Page ID #:2306
ᔨ㨘 �眯 Oº
Page 20
1950 McMillen v. Douglas Aircraft
Co.,90 F. Supp. 670 (S.D. Cal. 1950)
1950 City of Beverly Hills v. Brady,34
Cal. 2d 854 (1950), 205 P. 2d 1088
(Cal. App. 2 Dist. 1949)
1950 Sales Affiliates v. Superior Court
in and for Los Angeles County, 96 Cal.
App. 2d 134 (1950)
1949 Moore v. Belt,34 Cal. 2d 525
(1949)
1948 Whitfield v. Jessup, 31 Cal. 2d
826 (1948), 183 P. 2d 133 (Cal. App. 2
Dist.)
1947 McCurdy v. Hatfield,30 Cal. 2d
492 (1947), 173 P. 2d 670 (Cal. App. 2
Dist.)
1947 Church v. Bloch,80 Cal. App. 2d
542 (1947)
1946 Rafter v. Dubrock's Riding
Academy, 75 Cal. App. 2d 621 (1946)
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 22 of 24 Page ID #:2307
Page 21
MDL LITIGATIONS
MDL-13 In re: Mid-Air Collision Near Hendersonville, N.C. on July 19, 1967
MDL-103 In re: Air Crash Disaster at Toronto International Airport on July 5, 1970
MDL-106 In re: Air Crash Near Duarte, CA on June 6, 1971
MDL-172 In re: Paris Air Crash
MDL-176 In re: Pago Pago Air Crash on January 30, 1974
MDL-391 In re: Air Crash Disaster Near Chicago, IL on May 25, 1979
MDL-453 In re: MGM Grand Hotel Fire Litigation
MDL-721 In re: San Juan Dupont Plaza Hotel Fire Litigation
MDL-1173 In re: American Airlines, Inc., Flight 869 Turbulence Incident of
January 17, 1996
MDL-1448 In re: Air Crash at Belle Harbor, New York on November 12, 2001
MDL-1552 In re: Unumprovident Corp. Securities, Derivative & ERISA Litigation
MDL-1708 In re: Guidant Corp. Implantable Defibrillators Products Liability Litigation
MDL-1726 In re: Medtronic, Inc., Implantable Defibrillators Products Liability Litigation
MDL-1850 In re: Pet Food Products Liability Litigation
MDL-1897 In re: Mattel, Inc., Toy Lead Paint Products Liability Litigation
MDL-2138 In re: Bank of America Wage and Hour Employment Practices Litigation
MDL-2151 In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales
Practices, and Products Liability Litigation
MDL-2173 In re: Photochromic Lens Antitrust Litigation
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 23 of 24 Page ID #:2308
Page 22
In re: Apple iPhone4 Product Liability Litigation
MDL-2199 In re: Pom Wonderful LLC Marketing and Sales Practices Litigation
MDL-2317 In re: Oreck Corporation Halo Vacuum Air Purifiers Marketing and Sales
Practices Litigation
MDL-2606 In re: Benicar (Olmesartan) Products Liability Litigation
Case 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 24 of 24 Page ID #:2309
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LINDA RUBENSTEIN, on behalf of herself and all others similarly situated,
Plaintiffs,
v.
THE NEIMAN MARCUS GROUP LCC, a Delaware Limited Liability Company, and DOES 1-50, inclusive,
Defendant.
Case No. 2:14-CV-0755-SJO-JPR DECLARATION OF ANDREW W. OXENREITER ON BEHALF OF THE CLAIMS ADMINISTRATOR, BROWNGREER PLC
I, ANDREW W. OXENREITER, declare and state as follows:
I. INTRODUCTION AND BACKGROUND
1. Personal Information. I am Senior Counsel at BrownGreer PLC
(“BrownGreer”), located at 250 Rocketts Way, Richmond, Virginia 23231.
2. General Description of BrownGreer. BrownGreer has specialized in claims
administration and settlement administration since the firm was founded in 2002. We are
experts in the legal and administrative aspects of the design, approval, and implementation of
notice plans, settlement programs and the design, staffing and operation of claims facilities
to provide damages payments, medical monitoring, or other benefits for the resolution of
multiple claims through class action settlement, bankruptcy reorganization, voluntary
agreement, or other aggregation vehicles. BrownGreer has performed notice administration,
claims administration, and/or claims review roles in over 75 major programs involving more
than three million claimants and the disposition of over $34 billion in payments to qualifying
class members. BrownGreer has also served as the Notice Administrator in programs
involving direct notices sent by mail or email to over 30 million class members.
3. Capacity and Basis of this Declaration. I am over the age of 21. The matters
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 1 of 15 Page ID #:2312
set forth in this Declaration are based upon my personal knowledge, information received
from the attorneys for the Plaintiffs and the Defendant (collectively, the “Parties”), and
information provided by my colleagues at BrownGreer and vendors selected by BrownGreer
working under my supervision.
4. BrownGreer’s Appointment as Claims Administrator. Counsel for the
Plaintiffs in the above-captioned action (the “Action”) selected and engaged BrownGreer to
serve as the Claims Administrator as described in the Settlement Agreement and Release
dated April 18, 2018 (the “Settlement Agreement”). All capitalized terms not defined in this
Declaration will have the meanings given to them in the Settlement Agreement. Section 5 of
the Settlement Agreement sets forth a proposed Settlement Class Notice Plan (the “Notice
Plan”) for the Action, to be administered by BrownGreer. This Court approved the Notice
Plan in the Order Granting Motion for Preliminary Approval of Class Action Settlement
entered on May 21, 2018 (the “Preliminary Approval Order”).
5. Purpose of Declaration. I submit this Declaration to:
(a) confirm that the Claims Administrator implemented the Notice Plan in accordance with the Settlement Agreement and Preliminary Approval Order;
(b) provide a list of all Settlement Class Members who submitted timely and
valid Opt-Out Forms (c) detail BrownGreer’s execution of its role as Claims Administrator; and (d) report relevant program data to the Court for final approval consideration.
II. CAFA NOTICE
6. Background. The Class Action Fairness Act, 28 U.S.C. § 1715(b) (“CAFA”)
requires that each defendant that is participating in a proposed settlement serve notice of the
proposed settlement upon “the appropriate State official” and the “appropriate Federal official”
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 2 of 15 Page ID #:2313
within ten days of the filing of the motion proposing the settlement (“CAFA Notice”). As
Claims Administrator, BrownGreer was responsible for serving the CAFA Notice in this Action.
7. CAFA Notice. On April 30, 2018, pursuant to 28 U.S.C. § 1715(b),
BrownGreer staff, acting under my direction and supervision, served a cover letter and an
enclosed read-only compact disc upon the U.S. Attorney General and the Attorneys General
for all fifty states, the District of Columbia, American Samoa, Guam, Northern Mariana
Islands, Puerto Rico, and the Virgin Islands. The compact disc included: (1) the CAFA
Notice Recipient List; (2) copies of the original and amended complaints; (3) a copy of the
Settlement Agreement and Release, including all exhibits; (4) copies of the proposed notices
to class members; (5) a table setting out the most reasonable estimate available of the number
of Settlement Class Members residing in each state, as determined by representations of
counsel for the Parties.
8. Proof of Delivery. We sent the CAFA Notice by Certified Mail. BrownGreer
has tracked the delivery of each Initial CAFA Notice packet, confirming delivery by
collecting return receipt cards delivered to BrownGreer by the United States Postal Service
(the “USPS”), information from the USPS online parcel tracking feature on www.USPS.com,
and/or confirmation emails from representatives of the Attorneys General in specific states.
III. NOTICE PLAN IMPLEMENTATION
9. Claims Administrator’s Responsibility to Provide Notice to Settlement Class.
Under the terms of the Settlement Agreement and Preliminary Approval Order, BrownGreer
is responsible for providing notice to the Settlement Class in this Action. With some
exceptions, the Settlement Class includes all natural persons who made one or more Qualifying
Purchases. A Qualifying Purchase includes a purchase of one or more product(s) advertised by
Neiman Marcus with a “Compared To” price, if that purchase was made from August 7, 2010
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 3 of 15 Page ID #:2314
through May 21, 2018 (1) at any Neiman Marcus Last Call store in California and/or (2) on Last
Call’s e-commerce website if the purchaser provided a California billing address.
10. List of Known Settlement Class Members. Defendant provided BrownGreer
with two electronic lists containing all Known Settlement Class Members on June 1, 2018
and June 4, 2018 (collectively, the “Class List”), which BrownGreer promptly loaded into the
database that BrownGreer created for this Action. BrownGreer assigned unique identifiers (i.e.,
Class Member IDs) to all records in the Class List to maintain the ability to track information
about each Known Settlement Class Member throughout the claims administration process.
Ultimately, the Class List included a total of 789,998 records. BrownGreer analyzed the records
and determined that 74,177 records were duplicative, and thus the data consisted of 715,821
unique Class Members. Of those 715,821 unique Class Members, 6,612 did not contain
sufficient data for the Class Member’s name, email address and/or physical address to send a
notice, leaving a total of 709,209 unique Class Members with sufficient data to receive Direct
Notice by Email or Post-Card.
11. Identification of Known Settlement Class Members to Receive Email Notice.
Section 5.1(a) of the Settlement Agreement required the Claims Administrator to send Email
Notice to all Known Settlement Class Members for whom Defendant had valid email addresses
in its databases. BrownGreer identified this population, removing those persons whose email
address in the Class List data was facially invalid (i.e., the email address is missing a required
component, such as the “@” or the “.com”, or is not provided in the required format). Based on
the above criteria, BrownGreer identified 563,737 unique email addresses from Known
Settlement Class Members to receive Email Notice.
12. Notice to Internet Service Providers. On June 13, 2018, before sending any
Email Notices, BrownGreer sent courtesy notice of the impending large volume of emails
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 4 of 15 Page ID #:2315
related to this proposed settlement, by Certified U.S. Mail, Return Receipt Requested, and email
(if available) to Internet Service Providers (“ISPs”) scheduled to receive more than 10,000
emails in the Email Notice campaign, including Comcast, Google, Inc., Microsoft Corporation,
Yahoo! Inc., AT&T Inc. and AOL, Inc. These letters alerted the ISPs to the fact that they would
receive a significant volume of Email Notices during the Email Notice distribution, and
requested their cooperation and assistance to make the upcoming Email Notice campaign as
successful and effective as possible. Each letter identified the case and contained an overview of
the Email Notice program, including the approximate volume of emails each ISP would receive,
the subject line and content of the email, and the domain name and IP address from which the
emails would be sent. This communication with ISPs in advance of email notice campaigns is
designed to prevent ISPs from categorizing emails that originate from the applicable IP address
as SPAM, which will facilitate the email notice process and potentially increase the effectiveness
of the email notice campaign.
13. Development and Format of Email Notice. BrownGreer developed and
formatted the Email Notice, as directed in the Settlement Agreement and approved in the
Preliminary Approval Order. A sample of the Email Notice is attached as Exhibit A to this
Declaration. The Email Notice provided each recipient a unique Notice Number and directed
Class Members to the Settlement Website, where the Class Member could complete a Claim
Form (either online or by hard copy submission) and review additional information about the
proposed settlement.
14. Procedures to Increase Email Deliverability. BrownGreer implemented several
best practice approaches to attempt to maximize email delivery rates and minimize electronic
and manual discarding of Email Notices. We reviewed the email message used in this notice
campaign to assure it did not contain content or parameters that would trigger various SPAM
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 5 of 15 Page ID #:2316
filters and drive down deliverability. Prior to attempting delivery, BrownGreer caused sample
emails to be passed through an “email analyzer” which checked against SPAM filters. We also
implemented Sending Policy Framework (SPF) validation to detect and block email spoofing and
Domain Keys Identified Mail (DKIM) signatures. Additionally, the email vendor we used for
this campaign has direct communication with major ISPs to assist with the delivery of messages.
15. Application of Standard Email Protocols. In addition, BrownGreer followed all
best practice email protocols such as including a hyperlink allowing recipients to unsubscribe, as
well as providing information about the Court and the Claims Administrator’s contact
information in the Email Notice to allow the recipient to verify the information independently.
16. Issuance of Email Notices (First Attempt). BrownGreer commenced sending
Email Notices to Class Members identified for Email Notice on June 18, 2018 and completed
the first attempt of all such Email Notices on June 20, 2018. In an effort to improve
deliverability, BrownGreer sent the first few batches of Email Notices at lower volumes and
then increased email volumes to levels that would ensure completion prior to the June 20, 2018
deadline set forth in Section 5.1(a) of the Settlement Agreement. A total of 467,605 emails
(82.95% of all emails issued) were delivered after this first attempt.
17. Issuance of Email Notices (Subsequent Attempts).
(a) Soft Bounces. BrownGreer closely monitored failed email delivery attempts
throughout the Email Notice distribution. For emails returned as
undeliverable and identified as “soft” bounces, BrownGreer attempted to re-
issue the email to the same email address. A “soft” bounce is a general term
for emails that were not successfully delivered for reasons unrelated to the
validity of the email recipient or email account such that future attempts to
send an email to the same email address might be successful. Examples of
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 6 of 15 Page ID #:2317
reasons for “soft” bounces include: (1) the recipient’s inbox was full; (2) the
recipient’s email server was down; (3) the ISP’s pipeline was full; (4) the
recipient’s email account was delinquent, etc. BrownGreer issued a total of
19,667 second-attempt emails to email addresses that originally resulted in
“soft bounces”. Of those, 2,877 second-attempt emails (14.63%) were
delivered.
(b) Reminder Emails. Additionally, in monitoring claim activity, BrownGreer
identified a population of potential claimants who had provided an email
address in the Claimant Information section of the online Claim Form, but
who had not completed and submitted a claim. On July 11, 2018,
BrownGreer sent an email to those potential claimants to remind them of their
unfinished claim submissions. This step was not required by the Settlement
Agreement or the Preliminary Approval Order. BrownGreer issued a total of
9,903 reminder emails, of which 9,870 (99.67%) were delivered.
18. Identification of Initial Population of Known Class Members to Receive Post-
Card Notice. Section 5.1(b) of the Settlement Agreement required the Claims Administrator to
send Post-Card Notice to all Known Settlement Class Members for whom Defendant had a
physical address, but not an email address. BrownGreer included in this population those
persons for whom an email address exists but the email address is not facially valid. Based on
these criteria, BrownGreer identified 53,106 unique Class Members from the total 715,821
unique Class Members to receive Post-Card Notice (the “Initial Post-Card Population”).
19. Identification of Additional Population of Known Class Members to Receive
Post-Card Notice. In addition to the Initial Post-Card Population, Section 5.1(b) of the
Settlement Agreement required the Claims Administrator to send a Post-Card Notice to any
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 7 of 15 Page ID #:2318
Known Settlement Class Member to whom an Email Notice was sent but “bounced back” as
undeliverable if the Class List contained a physical address for the Known Class Member (the
“Hard Bounce Post-Card Population”). These “bounce backs” where an email is returned to the
sender are referred to as “hard” bounces (e.g., the ISP returns an indication that the recipient is
unknown or the domain is inactive). Between June 20, 2018 and August 9, 2018, BrownGreer
identified a total of 64,635 unique Class Members to receive Post-Card Notice as part of the
Hard Bounce Post-Card Population, which number includes 14,142 Class Members whose first-
attempt Email Notice resulted in a “soft” bounce and whose second-attempt Email Notice was
not successfully delivered.
20. Development and Format of Post-Card Notice. BrownGreer formatted the Post-
Card Notice, using language included in Exhibit 1 of the Settlement Agreement and approved by
the Court in the Preliminary Approval Order. A sample of the formatted Post-Card Notice is
attached as Exhibit B to this Declaration.
21. Mailing Address Updates. Prior to mailing the Post-Card Notices, BrownGreer
caused all addresses to be updated using the National Change of Address (“NCOA”) database.
The NCOA database is a product of the USPS that makes change of address information
available to mailers in an effort to reduce the rate of undeliverable mail before mail enters the
mail stream.
22. Mailing of Post-Card Notices.
(a) Initial Post-Card Population. BrownGreer coordinated the mailing of
53,106 Post-Card Notices by first class mail to the Initial Post-Card
Population on June 20, 2018.
(b) Hard Bounce Post-Card Population. BrownGreer coordinated additional
mailings of a total of 64,635 Post-Card Notices by first class mail to the
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 8 of 15 Page ID #:2319
Hard Bounce Post-Card Population between June 22, 2018 and August 9,
2018.
(c) Forwarding Addresses. BrownGreer received 70 Post-Card Notices returned
with Forwarding Addresses provided by the USPS. BrownGreer coordinated
additional mailings of these Post-Card Notices by first class mail to the
Forwarding Addresses provided on July 18, 2018.
23. Publication Notice. To supplement our direct notice efforts, we used a variety of
publication notice platforms. We strategically placed the notice in places where the Settlement
Class Members would have the opportunity to see, read, and react to the notice. To do so, we
considered how members of the proposed Settlement Class consume media and locate
information. We used Nielsen1 and comScore, Inc.2 to analyze potential Settlement Class
Members’ media consumption habits, develop the paid media portion of the notice campaign,
and analyze the performance of the campaign.3
(a) Digital Notice. To reach unknown potential Settlement Class members
through publication, we had to direct notice to them by establishing a profile
likely representative of the actual Settlement Class. We then had to give those
individuals an opportunity to view the notice through paid media. For our
digital media focus, we established a target audience of approximately
855,000 individuals who, according to the largest U.S. credit and debit card
1 Nielsen’s Scarborough USA+ is an industry standard research tool that serves multiple media platforms, including Print, Radio, Broadcast TV, Cable TV, and Out of Home and is accredited by the Media Rating Council, an organization that establishes standards for media industry measurement services to guarantee valid
and dependable research procedures. 2 comScore is a leading provider of digital audience measurement using its Unified Digital Measurement methodology, which accounts for all site visitors and helps website publishers understand the size and quality of
their audience. 3 We consulted with media experts at the Consumer Attorney Marketing Group (“CAMG”) to design and execute
the paid media portion of the Notice Plan. CAMG provided the paid media performance and reach data included in
this Declaration.
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 9 of 15 Page ID #:2320
aggregators4, shopped at Neiman Marcus Last Call stores in California
between 2010 and 2018 or have attributes similar to those shoppers (the
“Target Audience”). On June 20, 2018, we began displaying the banner ads
illustrated in Exhibit C to this Declaration (“Banner Ad Notice”) on
strategically selected Internet sites to this Target Audience. We served the
internet displays across an established network of approximately 1,000 unique
websites, including Yahoo.com, CNN.com, FoxNews.com, and many other
familiar websites. The Banner Ad Notice has been displayed more than 5.6
million times to Target Audience members to date, reaching nearly 685,000
unique Target Audience members.5
(b) Print Publication Notice. We consulted with the Parties to prepare final
versions of a short-form notice to print in strategic publications (the “Print
Publication Notice”). We placed a copy of the Print Publication Notice in the
following thirteen regional newspapers in California, likely to be seen by
California Last Call shoppers: (1) Bakersfield Californian, (2) Bay Area
Reporter, (3) East Bay Express, (4) Fresno Bee, (5) LA Weekly, (6) Metro
Silicon Valley, (7) Modesto Bee, (8) Monterey County Weekly, (9) OC Weekly,
(10) Riverside Press Enterprise, (11) Sacramento Bee, (12) San Diego
Reader, and (13) SF Weekly. Copies of the Publication Notice from each print
4 We used Argus and Kantar to analyze consumers’ purchase history and identify a target audience based on that
information. Argus specializes in providing business intelligence platforms, data management solutions, and
advisory institutions to U.S., Canadian, and other international financial organizations, regulators, payment
providers, merchants, and media. Kantar compiles, offers, and analyzes information about consumers, including
where they live, shop, and how they consume and use media. 5 Fundamentally, an “impression” in this context is the opportunity to view a banner ad on a website. Typically, an
“impression” is recorded when a computer directs an internet browser to load a web page and that web page
retrieves a banner ad from an ad network to display on the web page being loaded in the internet browser. Ad
networks usually pay digital publishers based on the count of “impressions” the networks track in an advertising
campaign, as occurred in this case. This Declaration considers an internet user “reached” if the ad network recorded
and reported an impression for the user.
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 10 of 15 Page ID #:2321
publication are included as Exhibit D to this Declaration. These placements
combined exposed the Print Publication Notice to potential Settlement Class
Members nearly 870,000 total times.
24. Estimated Notice Reach.
(a) Direct Notice. As of August 28, 2018, BrownGreer has provided Direct
Notice to approximately 92.4% of the Known Settlement Class Members
identified on the Class List. Table 1 below breaks down the total reach rate of
the Direct Notice campaign. This table aggregates the Email and Postcard
data and shows results of the most recent Notice issued to each unique Class
Member. For example, if we originally sent an Email Notice, it was bounced
back as undeliverable, and then we followed up with a Post-Card Notice that
has not been returned, we would count that unique Class Member in the Post-
Card Notice Row (Row 2) in the Notice Delivered (Reached) column.
TABLE 1: DIRECT NOTICE REACH (as of 8/28/18)
Row Most Recent Method Unique Class Member Count
Notice Delivered (Reached)
Notice Returned (Unreached)
Reach Rate
1. Email Notice 584,359 549,596 34,763 94.1%
2. Post-Card Notice 124,850 111,620 13,230 89.4%
3. Insufficient Data (No Notice) 6,612 0 6,612 0.0%
Total 715,821 661,216 54,605 92.4%
(b) Supplemental Notice. In addition to the direct notice campaign, we deployed
an effective supplemental notice campaign to reach unknown Settlement Class
Members and further engage and encourage Settlement Class Members to
submit a claim. The digital advertising efforts exposed members of the Target
Audience, who were likely to be Settlement Class Members, to banner
advertisements an estimated 5.6 million total times, reaching an estimated
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 11 of 15 Page ID #:2322
80% of the unique members of the Target Audience an average of 8.19 times
each. The Target Audience serves as a proxy for the Settlement Class because
we do not know the identities of the individual members of the Settlement
Class. In reaching 80% of the Target Audience – individuals who shopped at
Neiman Marcus Last Call stores in California between 2010 and 2018 or have
attributes similar to those shoppers – we can conclude reliably that the
publication notice reached a comparable percentage of the Settlement Class.
The print media also generated important yet immeasurable exposures of the
ad to Settlement Class Members.
(c) Overall Adequacy of Notice Plan. Federal Rule of Civil Procedure 23
requires “the best notice that is practicable under the circumstances, including
individual notice to all [class] members who can be identified through
reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The Judges’ Class Action
Notice and Claims Process Checklist and Plain Language Guide (2010)
issued by the Federal Judicial Center (the “FJC Checklist”) instructs district
courts considering notice plans to consider whether notice will reach the class
effectively, noting that “[a] high percentage (e.g., between 70-95%) can often
be reached by a notice campaign.” Given that our direct notice campaign
reached more than 92% of Known Settlement Class Members and our
supplemental notice campaign reached an estimated 80% of the Target
Audience (a proxy for the Settlement Class), the overall reach of the Notice
Program is on the higher end of what the FJC Checklist categorizes as a “high
percentage of reach”. The combined notice efforts and results of this Notice
Program reflect the best notice that was practicable under the circumstances.
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 12 of 15 Page ID #:2323
IV. ESTABLISHMENT AND OPERATION OF SETTLEMENT CLASS MEMBER
RESOURCES
25. Toll-Free Telephone Number. BrownGreer has established a toll-free telephone
number used solely for this settlement program. The toll-free telephone number is 1-888-245-
4112. Callers are directed to an Interactive Voice Recording menu, which provides recorded
information on various Frequently Asked Questions about the Settlement, including an option to
request a copy of the Settlement Agreement.
26. Post Office Box. BrownGreer established a dedicated Post Office Box (the
“P.O. Box”) for the Notice Plan program on March 30, 2018. The P.O. Box address is:
Neiman Marcus CA Last Call Settlement Program Claims Administrator P.O. Box 26972 Richmond, VA 23261
This P.O. Box serves as a location for the USPS to return undeliverable program mail to
BrownGreer and for Class Members to submit Claim Forms, Opt-Out Forms and other
Settlement Program correspondence. The P.O. Box address appeared prominently in all notices.
BrownGreer monitors the P.O. Box daily and uses a dedicated mail intake team to process each
item received.
27. Program Website. In accordance with Section 5.2(b) of the Settlement
Agreement, BrownGreer developed and continues to maintain a settlement website dedicated
exclusively to this settlement (the “Settlement Website”) in consultation with the Parties and
launched it on May 25, 2018. The Settlement Website, available at
www.CALastCallSettlement.com, allows Settlement Class Members to view, download, and
print the following Settlement documents, as required by the Settlement Agreement:
(a) Claim Form;
(b) Settlement Class Notice;
(c) Opt-Out Form;
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 13 of 15 Page ID #:2324
(d) Preliminary Approval Order;
(e) Settlement Agreement (with Exhibits); and
(f) Plaintiff’s Motion for Award of Attorney’s Fees, Costs and Service Award
(posted August 6, 2018).
The Settlement Website also contains a user-friendly claim submission function built with
device-responsive technology that allows Settlement Class Members to submit a Claim Form
securely online using any internet-capable device. It also provides answers to Frequently Asked
Questions and contact information for the Claims Administrator. The Settlement Website
address appeared prominently in all Notices. As of August 30, 2018, the Settlement Website has
been visited more than 44,538 times from 35,104 unique visitors (not including visits from
BrownGreer IP addresses). The number of unique visitors represents the number of visits from
the same computer or IP address. If a person or multiple people from the same computer or IP
address return to the website again after the original visit, each additional occurrence is counted
as a visit but not as a unique visit.
V. CLAIM FORM SUBMISSIONS, OPT-OUT FORMS AND OBJECTIONS
28. Claim Form Submissions. Pursuant to Section 6.1 of the Settlement Agreement,
Settlement Class Members were required to complete and submit Claim Forms no later than
August 20, 2018 (the date that is 60 days after the date the Settlement Class Notice is
disseminated) to receive compensation from the Net Settlement Fund. As of August 27, 2018,
BrownGreer has received 10,845 timely Claim Form submissions from claimants who appear to
be unique individuals.
29. Opt-Out Forms. Section 8.2 of the Settlement Agreement required Settlement
Class Members who wished to exclude themselves from the Settlement to mail Opt-Out Forms to
the Claims Administrator no later than August 20, 2018. As of August 30, 2018, BrownGreer
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 14 of 15 Page ID #:2325
has received four valid and timely Opt-Out Forms, which are listed on Exhibit E to this
Declaration.
30. Objections. Section 8.1 of the Settlement Agreement required Settlement Class
Members who wished to object to the Settlement to serve a timely written objection on Class
Counsel, Defendant’s Counsel and the Claims Administrator no later than August 20, 2018. As
of August 30, 2018, BrownGreer has received one objection.
I declare under the penalty of perjury pursuant to the laws of the United States and the
Commonwealth of Virginia that the foregoing is true and correct. Executed on this 30th day of
August, 2018 at Richmond, Virginia.
_________________________
Andrew W. Oxenreiter
Case 2:14-cv-07155-SJO-JPR Document 117-5 Filed 08/31/18 Page 15 of 15 Page ID #:2326
Exhibit A
Email Notice
Case 2:14-cv-07155-SJO-JPR Document 117-6 Filed 08/31/18 Page 1 of 3 Page ID #:2327
Neiman Marcus CA Last Call Claims Administrator
From: Neiman Marcus CA Last Call Claims Administrator <[email protected]>
Sent: Monday, June 18, 2018 12:07 PM
Subject: Notice of Neiman Marcus California Last Call Class Action Settlement
NOTICE OF CLASS ACTION SETTLEMENT
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
A federal court authorized this notice.
This is not a solicitation from a lawyer.
Rubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
Potential Settlement Class Member: Jane Doe
Notice ID: 1234-1234-1234
If you made a purchase at a Neiman Marcus Last Call store in
California or online (if you provided a California billing address), you
could get benefits from a class action settlement.
Click Here to Submit a Claim Now
A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any Neiman Marcus Last Call (“Last Call”) outlet store(s) in California and/or (2) on Last Call’s website, if you provided a California billing address. These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at the Last Call stores in California, to their financial detriment. The proposed Settlement would resolve all claims in the class action lawsuit. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong.
Case 2:14-cv-07155-SJO-JPR Document 117-6 Filed 08/31/18 Page 2 of 3 Page ID #:2328
What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the settlement.
How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com to submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.
What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options: 1. Object – Write to the Court about why you believe the Settlement is unfair. To object,
you must follow the procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 about the fairness of the Settlement where it will consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit relating to the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal
claims in this case and get no Settlement money. Do I Have a Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be charged individually for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.
Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representative. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m. PST, in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.
This is only a summary. For detailed information, visit
www.CALastCallSettlement.com, call 1-888-245-4112 or write to the Claims
Administrator at the address below:
Neiman Marcus CA Last Call Settlement Program Claims Administrator
P.O. Box 26972 Richmond, VA 23261
Click here if you do not want to receive any additional emails from the Neiman Marcus California Last Call Settlement Program.
Case 2:14-cv-07155-SJO-JPR Document 117-6 Filed 08/31/18 Page 3 of 3 Page ID #:2329
Exhibit B
Post-Card Notice
Case 2:14-cv-07155-SJO-JPR Document 117-7 Filed 08/31/18 Page 1 of 3 Page ID #:2330
NOTICE OF CLASS ACTION SETTLEMENT
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
A federal court authorized this notice. This is not a solicitation from a lawyer.
Rubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
If you made a purchase at a Neiman Marcus Last Call store in California
or online (if you provided a California billing address), you could get benefits
from a class action settlement. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”).Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any Neiman Marcus Last Call (“Last Call”) outlet store(s) in California and/or (2) on Last Call’s website, if you provided a California billing address. These purchases are referred to as “Qualifying Purchases.”
Neiman Marcus CA Last Call Settlement ProgramClaims AdministratorP.O. Box 26802Richmond, VA 23261
PRSRT FIRST CLASSUS POSTAGE
PAIDSED
You may be able to claim benefits from the settlement described in this notice.
www.CALastCallSettlement.com
*50746-123456789-001-001-01*
John Q. Sample, Jr. 123 Main Street Apt. #4 New York, NY 12345-6789
Notice Number: XXX-XXX-XXX
Case 2:14-cv-07155-SJO-JPR Document 117-7 Filed 08/31/18 Page 2 of 3 Page ID #:2331
Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at the Last Call stores in California, to their financial detriment. The proposed Settlement would resolve all claims in the class action lawsuit. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement.How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com to submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object — Write to the Court about why you believe the Settlement is unfair. To object, you must follow the procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 about the fairness of the Settlement where it will consider objections. See the Settlement Class Notice on
the settlement website if you wish to speak at the hearing in addition to submitting a written objection.2. Exclude Yourself — Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit relating to the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.3. Do Nothing — Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.Do I Have a Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representative. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m. in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.
This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Legal Notice Legal NoticeCase 2:14-cv-07155-SJO-JPR Document 117-7 Filed 08/31/18 Page 3 of 3 Page ID #:2332
Exhibit C
Banner Ad Notice
Case 2:14-cv-07155-SJO-JPR Document 117-8 Filed 08/31/18 Page 1 of 5 Page ID #:2333
160 x 600
CLICK HERE FOR MORE INFORMATION
If you made a purchase
at a Neiman Marcus
Last Call Store
in California or online from a
California billing
address, you could receive a
cash benefit.
www.CALastCallSettlement.com
Case 2:14-cv-07155-SJO-JPR Document 117-8 Filed 08/31/18 Page 2 of 5 Page ID #:2334
CLICK HERE FOR MORE INFORMATION
If you made a purchase at a Neiman Marcus Last Call Store in California or online from a California billing address, you could receive a cash benefit.
300 x 50
www.CALastCallSettlement.com
Case 2:14-cv-07155-SJO-JPR Document 117-8 Filed 08/31/18 Page 3 of 5 Page ID #:2335
300 x 250
CLICK HERE FOR MORE INFORMATION
If you made a purchase at a Neiman Marcus Last Call Store in California or online from a
California billing address, you could receive a
cash benefit.
www.CALastCallSettlement.com
Case 2:14-cv-07155-SJO-JPR Document 117-8 Filed 08/31/18 Page 4 of 5 Page ID #:2336
728 x 90
If you made a purchase at a Neiman Marcus Last Call Store in California or online from a California billing address, you could receive a cash benefit.
www.CALastCallSettlement.comCLICK HERE FOR MORE INFORMATION
Case 2:14-cv-07155-SJO-JPR Document 117-8 Filed 08/31/18 Page 5 of 5 Page ID #:2337
Exhibit D
Publication Notice
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 1 of 11 Page ID #:2338
Bakersfield Californian4.916”W x 6.125”H
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the
procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 2 of 11 Page ID #:2339
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow
the procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Bay Area Reporter5.75”W x7.625”HCase 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 3 of 11 Page ID
#:2340
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS FROM A CLASS ACTION SETTLEMENT.
A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the procedures
set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
East Bay Express4.971”W x 5.321”HCase 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 4 of 11 Page ID
#:2341
Fresno Bee, Modesto Bee, Sacramento Bee4.9”W x 10.5”H
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING
ADDRESS), YOU COULD GET BENEFITS FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To
object, you must follow the procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit
www.CALastCallSettlement.com.
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 5 of 11 Page ID #:2342
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the
procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
LA Weekly, OC Weekly4.4792” x 5.2292”Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 6 of 11 Page ID
#:2343
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the
procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Metro Silicon Valley4.3438” x 4.8438”Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 7 of 11 Page ID
#:2344
Monterey County Weekly4.94” x 5.437”
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the
procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 8 of 11 Page ID #:2345
Riverside Press Enterprise5.14”W x 10.75”H
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING
ADDRESS), YOU COULD GET BENEFITS FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To
object, you must follow the procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit
www.CALastCallSettlement.com.
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Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 9 of 11 Page ID #:2346
San Diego Reader5.00”W x 5.75”H
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the
procedures set forth in the Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.
Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 10 of 11 Page ID #:2347
SF Weekly6.01”W x 5.04”H
LEGAL NOTICERubenstein v. The Neiman Marcus Group LLC, Case No. 2:14-cv-07155-SJO-JPR
IF YOU MADE A PURCHASE AT A NEIMAN MARCUS LAST CALL STORE IN CALIFORNIA OR ONLINE (IF YOU PROVIDED A CALIFORNIA BILLING ADDRESS), YOU COULD GET BENEFITS
FROM A CLASS ACTION SETTLEMENT. A settlement has been proposed in the lawsuit referenced above (“Settlement”), which is pending in the United States District Court for the Central District of California (“Court”). Complete information regarding the settlement is available at www.CALastCallSettlement.com. Am I Included? Your rights are affected if you made a purchase advertised with a “Compared To” price from August 7, 2010 through May 21, 2018 (1) at any California Last Call store(s) and/or (2) on Last Call’s website, if you provided a California billing address (the “Settlement”). These purchases are referred to as “Qualifying Purchases.” Summary of the Settlement: The lawsuit alleges that consumers were misled by the “Compared To” price tags used on merchandise at Neiman Marcus Last Call outlet stores in California, to their financial detriment. Neiman Marcus denies that it did anything wrong, and no court has determined that Neiman Marcus did anything wrong. The proposed Settlement would resolve all claims in the class action lawsuit.What Can I Get? The Settlement, if approved, would provide $2,900,000 to give cash benefits in the form of a check to those customers who made a Qualifying Purchase, as well as to pay Plaintiff’s attorneys’ fees and expenses, a service award for the Settlement Class Representative, and the administrative costs of the Settlement. How Do I Get My Settlement Benefits? You must submit a claim by August 20, 2018 to receive settlement benefits. Go to www.CALastCallSettlement.com submit a claim online now. The website also provides instructions for how to submit a claim in hard copy through the mail.What Are My Other Options? Go to www.CALastCallSettlement.com to get more information and learn about what your legal rights are. Basically, if you do not submit a claim, you have three options:1. Object – Write to the Court about why you believe the Settlement is unfair. To object, you must follow the procedures set forth in the
Settlement Class Notice available on the settlement website no later than August 20, 2018, which include attesting under penalty of perjury that you are a Settlement Class Member. The Court will hold a hearing on October 1, 2018 to consider objections. See the Settlement Class Notice on the settlement website if you wish to speak at the hearing in addition to submitting a written objection.
2. Exclude Yourself – Ask not to be included in the Settlement, also known as “opting out.” You must exclude yourself by August 20, 2018. You will get no payment from the Settlement, but you may be able to pursue or continue your own lawsuit about the legal claims in this case. See the Settlement Class Notice on the settlement website for the requirements for excluding yourself from the Settlement.
3. Do Nothing – Give up your rights to sue Neiman Marcus on your own for the legal claims in this case and get no Settlement money.Do I Have A Lawyer? Yes. The Court has appointed Kirtland & Packard LLP to represent you and other Class Members. These lawyers are called Class Counsel. You will not be individually charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.Scheduled Hearing: The Court will conduct a hearing on whether to finally approve the Settlement and, if so, will determine what fees and expenses should be awarded to Class Counsel and whether a service award should be awarded to the Class Representatives. The hearing is presently scheduled for October 1, 2018 at 10:00 a.m., in Court Room 10C, located at 350 W. 1st Street, Los Angeles, CA, 90012, Honorable S. James Otero presiding, but may be changed. It is not necessary for you to appear at this hearing, but you may attend at your own expense.This is only a summary. For detailed information, visit www.CALastCallSettlement.com.
Case 2:14-cv-07155-SJO-JPR Document 117-9 Filed 08/31/18 Page 11 of 11 Page ID #:2348
Exhibit E Opt-Out Forms
Case 2:14-cv-07155-SJO-JPR Document 117-10 Filed 08/31/18 Page 1 of 2 Page ID #:2349
Row Class Member Name Postmark Date Date Received
1. Karen Belsky June 22, 2018 June 26, 2018
2. Anne Whipp July 2, 2018 July 9, 2018
3. Rabia Sakhizada August 8, 2018 August 13, 2018
4. Shannon Donahue August 20, 2018 August 23, 2018
Opt-Out Requests
Case 2:14-cv-07155-SJO-JPR Document 117-10 Filed 08/31/18 Page 2 of 2 Page ID #:2350
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LINDA RUBENSTEIN, on behalf of herself and all others similarly situated,
Plaintiffs, v. THE NEIMAN MARCUS GROUP LLC, a Delaware Limited Liability Company, and DOES 1-50, inclusive, Defendants.
Case No. 2:14-CV-07155-SJO-JPR [PROPOSED] FINAL JUDGMENT
Case 2:14-cv-07155-SJO-JPR Document 117-12 Filed 08/31/18 Page 1 of 8 Page ID #:2355
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1
[PROPOSED] FINAL JUDGMENT
A Fairness Hearing was held before this Court on October 1, 2018 to
consider, among other things, whether the Settlement Agreement dated April 18,
2018 (“Settlement Agreement”) between Plaintiff Linda Rubenstein (the “Class
Representative”) and defendant The Neiman Marcus Group LLC (“Neiman”)
(collectively, the “Parties”), represents a fair, reasonable and adequate compromise
of the Action, the amount to be paid Settlement Class Counsel for their Fees and
Litigation Expense Payment for prosecuting the Action, and a Settlement Class
Representative Payment as a service award to the Class Representative. Having
considered the evidence submitted and argued by the Parties, and any objections to
the Settlement submitted,
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED THAT:
This Final Judgment incorporates by reference the definitions in the
Settlement Agreement, and all capitalized terms used in this Final Judgment will
have the same meanings as set forth in the Settlement Agreement, unless otherwise
defined in this Final Judgment.
This Court has jurisdiction over the subjection matter of the Action, the Class
Representative, the Settlement Class, and Neiman. Final approval of the
Settlement, and entry of a final judgment and order of dismissal is hereby
GRANTED.
The Court finds that the Settlement Agreement is the product of good faith
arms-length negotiations by the Parties, each of whom was represented by
experienced counsel.
The Court finds that the class proposed for purposes of the Settlement meets
the requirements of Fed. R. Civ. P. 23(a), and 23(b)(2) and (3), and hereby certifies
a Settlement Class in the Action as follows:
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All natural persons who purchased one of more products advertised with a “Compared to” price, where such purchase was made from August 7, 2010 through the date of the Preliminary Approval Order, at any of Neiman’s Last Call stores in California or on Last Call’s e-commerce website if the purchaser provided a California billing address.
The Court approves all terms set forth in the Settlement Agreement and the
Settlement reflected therein, and finds that such Settlement is, in all respects, fair,
reasonable, adequate and in the best interest of the Settlement Class Members, and
the Parties to the Settlement Agreement are directed to consummate and perform its
terms.
The Parties dispute the validity of the claims in this Action, and their dispute
underscores not only the uncertainty of the outcome but also why the Court finds
the Settlement Agreement to be fair, reasonable, adequate and in the best interests
of the Settlement Class Members. Beyond facing uncertainty regarding the
resolution of those issues, by continuing to litigate, Settlement Class Members
would also face the challenge of surviving an appeal of any class certification order
entered in the Action, and any other rulings rendered during trial. The relief
negotiated by the Parties includes, among other things, payment to each Settlement
Class Member of a portion of the price each paid for a “Compared to”-labeled
product purchased at Neiman’s Last Call stores in California or online with a
California billing address.
Class Counsel has reviewed the Settlement Agreement and finds it in the best
interest of the Settlement Class Members. For all of these reasons, the Court finds
that the uncertainties of continued litigation in both the trial and appellate courts, as
well as the tremendous expense associated with it, weigh in favor of approval of the
Settlement reflected in the Settlement Agreement.
Any and all objections to the Settlement Agreement, the Settlement Class
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Representative Payment, and Settlement Class Counsel’s Fees and Litigation
Expense Payment have been considered and are hereby found to be without merit
and overruled.
The Court finds that the Notices provided for in the Order of Preliminary
Approval of Settlement have been provided to the Settlement Class and the Notices
provided to the Settlement Class constituted the best notice practicable under the
circumstances, and was in full compliance with the notice requirements of Rule 23
of the Federal Rules of Civil Procedure, due process, the United States
Constitution, and any other applicable law. The Notices apprised the members of
the Settlement Class of the pendency of the litigation, of all material elements of the
proposed Settlement, including but not limited to the relief afforded the Settlement
Class under the Settlement Agreement, of the res judicata effect on members of the
Settlement Class and of their opportunity to object to, comment on, or opt-out of
the Settlement; and of the right to appear at the Fairness Hearing. Full opportunity
has been afforded to members of the Settlement Class to participate in this Fairness
Hearing. Accordingly, the Court determines that all Settlement Class Members are
bound by this Final Judgment in accordance with the terms provided herein.
This Action is dismissed with prejudice, and without costs to any party,
except as provided for in the Settlement Agreement and in this Final Judgment.
Having reviewed the submissions of Settlement Class Counsel, the Court
finds that the sum of $902,574.41 is reasonable compensation for Settlement Class
Counsel’s Fees and Litigation Expense Payment. Within thirty (30) days after the
Settlement Effective Date, ARX Management shall pay Settlement Class Counsel
the Settlement Class Counsel’s Fees and Litigation Expense Payment.
Having reviewed the submissions of Settlement Class Counsel, the Court
finds that a $5,000 Settlement Class Representative Payment is reasonable
compensation for the Class Representative’s services in this matter. Within thirty
(30) days after the Settlement Effective Date, ARX Management shall pay the Class
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Representative the Settlement Class Representative Payment.
Within thirty (30) days of the Settlement Effective Date, pursuant to section
3.5(b) of the Settlement Agreement, cash payments in the form of checks shall be
paid by ARX Management (working with the Claims Administrator) from the Net
Settlement Fund, and shall be mailed to Authorized Claimants at the address
provided by the Authorized Claimant in the Claim Form.
In accordance with section 3.5(d) of the Settlement Agreement, in the event
any funds remain in the Net Settlement Fund because there are uncashed checks 90
calendar days after the last check issued, or for any other reason that funds remain
undistributed, any remaining amount of the Net Settlement Fund shall be paid to the
proposed cy pres beneficiary, Public Counsel, and mailed to Attn: Margaret
Morrow, Chief Executive Officer, Public Counsel, 610 S. Ardmore Avenue, Los
Angeles, CA 90005.
Neiman is hereby ordered to perform the injunctive relief as described in
section 4 of the Settlement Agreement and further detailed in the Declaration of
Frank Crisci submitted in support of Plaintiff’s Motion for Final Approval of Class
Action Settlement, which is incorporated herein by reference.
Upon entry of this Final Judgment, the Class Representative and all
Participating Settlement Class Members will be deemed to have completely
released and forever discharged the Released Parties, and each of them, from any
and all past and present liabilities, claims, causes of action (whether in contract, tort
or otherwise, including statutory, common law, property and equitable claims),
damages, costs, attorneys’ fees, losses, or demands, whether known or unknown,
existing or potential, or suspected or unsuspected, which were or could have been
asserted in the Action based on the facts alleged therein, including, but not limited
to claims under or related to California Business and Professions Code section
17200 et. seq. and 17500 et seq., Civil Code section 1750 et seq. the FTC Guides
and claims for failure to disclose information, false advertising, fraud, unjust
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enrichment, and any additional federal or state constitutional, common law and/or
statutory claims. However, this paragraph does not release Neiman from its
obligations under this Judgment.
For purposes of the releases set forth in the previous paragraph, “unknown
claims” means claims that the Class Representative and all Participating Settlement
Class Members do not know or suspect to exist in their favor at the time of granting
a release, which if known by them might have affected their Settlement of the
Action. It is the intention of the Parties and Participating Settlement Class
Members that, upon the Settlement Effective Date, each of the Class Representative
and all Participating Settlement Class Members shall be deemed to have, and by
operation of the Final Judgment shall have, expressly waived and relinquished, to
the fullest extent permitted (a) by section 1542 of the California Civil Code, or (b)
by any law of any state or territory of the United States, federal law, or principle of
common law which is similar, comparable, or equivalent to section 1542 of the
California Civil Code, the provisions, rights and benefits of any statute or law
which might otherwise render a general release unenforceable with respect to
unknown claims. Section 1542 of the California Civil Code reads:
Section 1542. General Release, extent. A general release
does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected
his settlement with the debtor.
The Class Representative and all Participating Settlement Class Members are
deemed to understand and acknowledge the significance of this waiver of California
Civil Code section 1542 and/or of any other applicable law relating to limitations
on releases. The Class Representative, all Participating Settlement Class Members,
and Settlement Class Counsel may hereafter discover facts in addition to or
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different from those which any of them now know or believe to be true with respect
to the subject matter of the Released Claims, but the Class Representative, upon the
Settlement Effective Date, shall have fully, finally, and forever settlement and
released any and all Released Claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not concealed or hidden,
which now exist or heretofore have existed, without regard to the subsequent
discovery or existence of such different or additional facts.
As of the Settlement Effective Date of this Agreement, Neiman releases and
forever discharges the Class Representative and Settlement Class Counsel from any
claims of abuse of process, malicious prosecution or any other claims arising out of
the institution, prosecution, assertion or resolution of the claims in this Action,
including but not limited to sanctions of any kind.
Neither this Final Judgment nor the Settlement Agreement, nor any of its
terms or provisions nor any of the negotiations or proceedings connected with it,
shall be: (a) construed as an admission or concession by Neiman of the truth of any
of the allegations in the Action, or of any liability, fault or wrongdoing of any kind;
or (2) construed as an admission by the Class Representative or the Settlement
Class as to any lack of merit of the claims in this action.
If the Settlement Effective Date, as defined in the Settlement Agreement,
does not occur for any reason whatsoever, this Final Judgment and the Order of
Preliminary Approval of Class Action Settlement shall be deemed vacated and shall
have no force and effect whatsoever.
Without affecting the finality of this Final Judgment in any way, this Court
retains continuing jurisdiction for the purpose of enforcing the Settlement
Agreement and this Final Judgment, and other matters related or anciliary to the
foregoing.
The Parties have so agreed, good cause appearing, and there being no just
reason for delay, it is expressly directed that this Final Judgment and order of
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dismissal with prejudice be, and hereby is, entered as a final and appealable order.
IT IS SO ORDERED.
DATED: __________ ______________________________
JUDGE OF THE DISTRICT COURT
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