UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 FINEMAN POLINER LLP Neil B. Fineman, Esq. SBN Neil@FinemanPoliner.com Phillip R. Poliner, Esq. SBN Phillip@FinemanPoliner.com North Riverview Drive Anaheim Hills, California 0- Tel. () 0- - Fax () 0-0 Lee G. Werner (SBN: ) WERNER LAW FIRM 00 Von Karman Avenue, Suite 00 Irvine, California P () - F () - leegwerner@gmail.com Attorneys for Plaintiff, PERRY JOHNSON UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 0 PERRY JOHNSON and LAYNE BUTLER, on behalf of a class of similarly situated individuals, and themselves individually, v. Plaintiffs, ASHLEY FURNITURE INDUSTRIES, INC., Wisconsin Corporation; and Does through, inclusive, Defendants. Case No.: -CV--BTM (DHB) CLASS ACTION PLAINTIFF S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFF S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: November, 0 Time: 0:00 a.m. Ctrm.: B, th Fl. Judge: Hon. Barry T Moskowitz FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)

2 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 0 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT I. COURTS HAVE FREQUENTLY APPROVED MERCHANDISE VOUCHERS AS FAIR AND REASONABLE FORMS OF PROVIDING A CLASS BENEFIT IN SONG-BEVERLY CASES At the Preliminary Approval hearing before this Court on August, 0, this Court was concerned the $.00 merchandise vouchers, which would be directly mailed to each known class member (and to unknown class members who complete a simple form), may not be a true benefit to the class because this class benefit is a voucher (and not actual cash), which could only be used at the settling Defendant s California locations. While Plaintiff understands the Court s concern, it is not uncommon at all for the parties to agree as part of arm s-length negotiations to the distribution of merchandise vouchers to class members in cases with identical legal claims, i.e., violations of the Song-Beverly Credit Card Act. Plaintiff invites this Court to review a number of settlements approved by Judges of the United States District Court, Southern District, wherein each settlement consisted of a merchandise voucher: Donald Sturgeon v. Jones Retail Corporation, Southern District of California Case No. 0-CV-00-WQH. The Sturgeon action also arose from a retailer s alleged violations of the Song-Beverly Credit Card Act, codified in California Civil Code section.0, by and through the retailer s practice of requesting and recording personal identification information, in the form of addresses and telephone numbers, from customers using credit cards at the pointof-sale in defendant s California stores. After a successful mediation, it was agreed each class member would be awarded an opportunity to elect to receive either a merchandise certificate (coupon) for 0% off a merchandise purchase, or FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)

3 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 0 $0.00 off merchandise voucher. (Doc. No. - at, filed 0//0.) In his Final Approval Order, Judge William Q. Hayes found the settlement agreement fair, reasonable, and adequate, (Doc. No. at, filed //), and approved the merchandise voucher as appropriate Class Relief. (Id. at.) Chaikin v. Lululemon USA Inc., Southern District of California, Case No. -cv-0-gpc. Just last year, Judge Gonzalo P. Curiel approved a $.00 merchandise voucher with no cash distribution in a Song-Beverly Credit Card case wherein zip codes were collected by a company selling Yoga apparel. (Doc. No., filed //.) Juhline v. Ben Bridge Jeweler, Southern District of California, Case No. -cv-0-gpc. This year, Judge Curiel approved a $.00 merchandise voucher which could be used defendant s jewelry stores in California, in another case alleging violations of the Song-Beverly Credit Card Act, wherein defendant requesting and recording personal identification information from customers paying for merchandise with a credit card. (Doc. No., filed on //.) Deanna Morey v. Louis Vuitton North America, Southern District of California, Case number -cv-0-wqh. In this action, class members who had their personal identification information requested and recorded by defendant during a credit card transaction had to make a claim for a $.00 merchandise voucher, which could only be used at certain Luis Vuitton stores in California. Judge William Q. Hayes approved the merchandise voucher as the main class benefit (although there is virtually nothing that can be purchased in a Luis Vuitton store for $.00 or less). (Doc. No. 0, filed on //.) FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)

4 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 0 Other United States District Courts in California have also approved merchandise vouchers as reasonable class benefits in cases involving violations of the Song-Beverly Credit Card Act: O'Connor v. Euromarket Designs, Inc., Northern District of California, Case No. -cv-00-jsw. Class benefit: $0 Merchandise Voucher or 0% off coupon up to $00. (Doc. No. -, filed //; and Doc. No., filed //.) Seebrook v. The Children's Place Retail Stores, Inc., Northern District of California, Case No. -cv-00-cw. Class benefit: $0 Merchandise Voucher or % off any purchase coupon. (Doc. No. -, filed 0//; Doc. No., filed //.) Dardarian v. OfficeMax North America, Inc., Northern District of California, Case No. -cv-00-ygr. Class benefit: $0 Merchandise Voucher. (Doc. No. - at, filed //, and Doc. No. 0, filed //.) Georgino v. Sur La Table, Inc., Central District of California, Case No. -cv-0-mmm. Class benefit: $ Merchandise Voucher. (Doc. No., filed //.) II. CONCLUSION After three separate days of Early Neutral Evaluation Conferences with the Honorable David H. Bartick, the Parties reached a class wide resolution which includes both equitable relief and monetary relief in the form of $.00 merchandise vouchers, even though not a single class member has actually lost any money as a result of Defendant s practices. The negotiations were at arms-length and noncollusive. As stated by our Ninth Circuit Court of Appeals: FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)

5 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 0 The judge's decision to approve the settlement was correct on the merits, and reflected the proper deference to the private consensual decision of the parties. As we noted in Officers for Justice, 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 that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Id. at. (Hanlon v. Chrysler Corp. (th Cir. ) 0 F.d 0, 0) The merchandise vouchers that will be automatically delivered to settlement class members have real value to class members because class members can use their $.00 vouchers to pay the entire purchase price of thousands of items sold in many Ashley Furniture HomeStores throughout California. Further, merchandise vouchers are a legitimate benefit to class members and have been frequently approved by both State and Federal Courts in California. If class members believe the $.00 merchandise vouchers are insufficient, these class members will have an opportunity to object to the settlement, and the Court will then decide whether to grant final approval of the settlement. However, at this preliminary approval stage, the distribution of $.00 merchandise vouchers along with the equitable benefits of the settlement are fair, reasonable, and adequate. Dated: October, 0 Respectfully Submitted, FINEMAN POLINER LLP WERNER LAW FIRM By: /s Neil B. Fineman Neil B. Fineman Co-Lead Counsel for Plaintiff FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)

6 Case :-cv-0-btm-dhb Document Filed 0// Page of 0 0 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of and not a party to the within action. My business mailing address is North Riverview Dr., Anaheim Hills, CA 0. My electronic address is: Neil@FinemanPoliner.com. On October, 0, I served the foregoing document(s) described as: PLAINTIFF S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFF S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT on the parties in this action by placing the original(s), X true copy thereof enclosed in a sealed envelope addressed as follows, or as otherwise described below: SHEPPARD, MULLIN, RICHTER & HAMPTON LLP PHILLIP A. DAVIS, Cal. Bar No. 00 pdavis@sheppardmullin.com ROBIN A. ACHEN, Cal. Bar No. 0 rachen@sheppardmullin.com South Hope Street, rd Floor Los Angeles, California 00- SHEPPARD, MULLIN, RICHTER & HAMPTON LLP JOHN C. DINEEN, Cal. Bar No. 0 jdineen@sheppardmullin.com 0 West Broadway, th Floor San Diego, California 0- Attorneys for Defendant, Ashley Furniture Industries, Inc. X BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October, 0. /s Neil B. Fineman Neil B. Fineman FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT -CV--BTM (DHB)