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Morey v. Louis Vuitton North America, Inc.

United States District Court, Ninth Circuit

January 9, 2014

DEANNA MOREY, an individual, on behalf of herself and all others similarly situated, Plaintiff,
v.
LOUIS VUITTON NORTH AMERICA, INC., a Delaware corporation, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the unopposed Motion in Support of Award of Attorney's Fees, Costs, and Incentive Award (ECF No. 65), and the unopposed Motion for Final Approval of Class Action Settlement (ECF No. 68), filed by Plaintiff Deanna Morey.

BACKGROUND

On May 20, 2011, Plaintiff Deanna Morey, on behalf of herself and all others similarly situated, initiated this action by filing a class action Complaint against Defendant Louis Vuitton North America, Inc. ("LVNA") in the Superior Court of California, County of San Diego. (ECF No. 1-1 at 5-12). Plaintiff alleged that Defendant violated California's Song-Beverly Credit Card Act, Cal. Civ. Code § 1747.08, by requesting and recording personal identification information when shoppers used a credit card for purchases at Louis Vuitton retail stores.[1] On July 8, 2011, Plaintiff removed the action to this Court.

On July 11, 2011, the Honorable M. James Lorenz sua sponte remanded the action to the state court, finding that the amount in controversy did not exceed $5, 000, 000 - the amount required for original jurisdiction to vest with this Court pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. section 1332(d). (ECF No. 3). Defendant filed a Motion for Reconsideration (ECF No. 4), which the Court denied. (ECF No. 7).

On July 21, 2011, Defendant initiated an appeal to the Court of Appeals for the Ninth Circuit from the Court's July 11, 2011 Order. (ECF No. 9). On January 10, 2012, the Ninth Circuit reversed, holding that the Court erred in finding that the amount in controversy requirement under CAFA had not been satisfied. (ECF No. 16).

On February 10, 2012, Defendant filed an Answer to the Complaint. (ECF No. 20). On February 17, 2012, the Magistrate Judge issued a Rule 26 scheduling Order (ECF No. 21), and discovery commenced.

On August 17, 2012, Plaintiff filed the First Amended Class Action Complaint - the operative pleading in this case - in which Plaintiff alleges:

Defendant operates retail stores throughout the United States, including California. Defendant was, and is, engaged in a pattern of unlawful business practices whereby it utilizes a customer information capture card which contained preprinted spaces for credit card customers to write their respective: (i) name; (ii) email address; (iii) address (including ZIP code); (iv) birth date; (iv) home telephone number; and (v) mobile telephone number. It was, and is, Defendant's policy and practice to request credit card customers to write their respective personal identification information upon the customer information capture card in the form of their: (i) names; (ii) email addresses; (iii) addresses; (iv) birth dates; (iv) home telephone number; and (v) mobile telephone number, and to subsequently enter such information into its electronic customer database at the point-of-sale. Defendant's acts and practices as herein alleged were at all times intentional.

(First Amended Class Action Complaint ¶ 2, ECF No. 32 at 2). Plaintiff proposed to prosecute this action on behalf of "all persons from whom Defendant collected personal identification information in conjunction with a credit card purchase transaction at a California retail store during the period of time beginning May 23, 2010 and continuing through the date of trial...." Id. ¶ 21.

On August 31, 2012, Defendant filed a Motion to Dismiss. (ECF No. 33). On September 28, 2012, Plaintiff filed a Motion for Class Certification. (ECF No. 37). The parties filed opposition and reply briefs to each motion. (ECF Nos. 36, 42, 50, 51).

On October 2, 2012, Judge Lorenz recused himself from this case and Judge Hayes was assigned. (ECF No. 40).

On February 13, 2013, after several settlement and case management conferences, the Magistrate Judge issued an Order indicating that the parties had reached a tentative settlement. (ECF No. 56).

On February 29, 2013, Plaintiff filed an unopposed Motion for Preliminary Approval of Class Action Settlement, accompanied by the declaration of Plaintiff's counsel, Gene J. Stonebarger, and several exhibits. (ECF No. 62). On August 15, 2013, the Court issued an order that (1) preliminarily approved the settlement agreement; (2) provisionally certified the class; (3) conditionally certified Plaintiff as Class Representative; and (4) appointed Stonebarger Law, APC and Patterson Law Group, APC as Class Counsel. The August 15, 2013 Order ordered notice and provided detailed information to class members regarding their rights under the Settlement Agreement. (ECF No. 64).

On October 30, 2013, Plaintiff filed a Motion in Support of Award of Attorney's Fees, Costs, and Incentive Award ("Motion for Attorneys' Fees"). (ECF No. 65).

On December 5, 2013, Plaintiff filed a Motion for Final Approval of Class Action Settlement. (ECF No. 68).

On December 12, 2013, the Court held a fairness hearing. (ECF No. 69). No Class members appeared.

TERMS OF THE PROPOSED SETTLEMENT

The proposed settlement class (the "Class") consists of "all persons who made a credit card purchase at a [Louis Vuitton] store in California during the period from May 20, 2010 to January 28, 2013 and who were requested to and did provide personal identification information, excluding transactions where such personal identification information was collected for shipping, delivery, servicing or repairing of the purchased merchandise or for special orders or paid holds." (ECF No. 62-1 at 24).

I. Class Benefits

"Class members have been presented with the opportunity to submit a claim for a Merchandise Credit. The Settlement Administrator received 23, 876 timely claims. Thus, these 23, 876 individuals who timely submitted a valid claim will receive Merchandise Certificates in the amount of $41.00.[2]" (Declaration of Matthew J. McDermott - Class Administrator, ECF No. 68-3 ¶ 10).

"The Merchandise Certificates will be good for all purchases at stand-alone Louis Vuitton retail stores in California, may not be combined, are fully transferable, and have a one-year expiration on use. The Merchandise Certificates cannot be redeemed at leased store locations within department stores." (ECF No. 62-1 at 10) (citing Exh. 1, Settlement Agreement, § III(C)).

II. Class Notice

"In compliance with the Court's Preliminary Approval Order dated August 15, 2013... LVNA provided notice to the Class in four ways: Direct Email Notice, Direct Mail Notice, Publication Notice and Website Notice. The Class Notice... described, inter alia, the claims in the lawsuit, the terms of the Settlement, and the procedures for objecting to the Settlement and for electing to be excluded from the Class and the Settlement. The Notice also informed Class members that they are permitted to appear at the Fairness Hearing on December 12, 2013, either with or without counsel. LVNA provided Class members with sufficient notice of the Settlement." (ECF No. 68-1 at 8-9).

A. Direct Email Notice

"On September 13, 2013, the Settlement Administrator emailed the Summary Email Class Notice... to all Class members for whom LVNA has a valid email address.... The Settlement Administrator sent the Email Notice to 221, 717 Class members.... As of December 3, 2013, 296 email notices were returned as undeliverable." (McDermott Decl. Exh. 2, ECF No. 68-5 ¶¶ 3, 7).

B. Direct Mail Notice

"On September 13, 2013, the Settlement Administrator mailed a postcard containing the Summary Postcard Class Notice... to all class members for whom LVNA has a valid mailing address and who were not sent the Summary Email Class Notice.... The Settlement Administrator sent the Summary Postcard Notice to 106, 001 Class members.... As of December 3, 2013, 6, 245 postcard notices were returned as undeliverable.... The Settlement Administrator re-mailed 233 postcard notices to forwarding addresses provided by the U.S. Postal Service, of which 14 were returned a second time." (McDermott Decl. Exh. 1, ECF No. 68-4 ¶¶ 3, 7).

C. Publication Notice

"On September 24, 2013 and September 30, 2013, LVNA published the Publication Notice... in the Los Angeles and San Francisco editions of USA Today." ...


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