6WDWH %DU 1R PON#NLUWODQGSDFNDUG FRP %HKUDP … · .,57/$1' 3$&.$5' //3 ... ,q uh 0hjr ) lqdqfldo &rus 6hf ... 2iilfhuv iru -xvwlfh y &lylo 6huylfh &rpp¶q ri wkh &lw\ dqg &rxqw\

$Page 1: 6WDWH %DU 1R PON#NLUWODQGSDFNDUG FRP %HKUDP … · .,57/$1' 3$&.$5' //3 ... ,q uh 0hjr ) lqdqfldo &rus 6hf ... 2iilfhuv iru -xvwlfh y &lylo 6huylfh &rpp¶q ri wkh &lw\ dqg &rxqw\$
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


i

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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



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

i

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


ii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


iii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


iv

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


v

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.


2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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)


3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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)


4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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)


5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.


6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.


7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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).


9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.


11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.)


13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.)


16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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).


18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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


19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

$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


20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.


21

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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





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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

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,


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

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-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11


EXHIBIT A


ᔨ㨘 �眯 O ºCase 2:14-cv-07155-SJO-JPR Document 117-3 Filed 08/31/18 Page 2 of 24 Page ID #:2287

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).


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


ᔨ 㨘 �眯 O º

Page 3

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.


ᔨ 㨘 �眯 O º

Page 4

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


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


ᔨ 㨘 �眯 O º

Page 6

• 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.


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:


American Association for Justice

Consumer Attorneys of California



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.


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:


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:


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.


Ë


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:




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:



Page 10

Publications:

Recent Development: Engine

Manufacturers Association v. South Coast

Air Quality Management District, 18 Tul.

Envtl. L.J. 258 (2004).


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:





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


Page 11

University, Pomona, (B.S. Communications

2007); Glendale University College of Law

(J.D. 2014); Highest Grade on Torts A Exam

(2011).

Memberships:




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:




e


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


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)


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


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)


1974, 420 F. Supp. 880 (C.D. Cal.

1976), 423 F. Supp. 367 (C.D. Cal.

1976)


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.


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


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)


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


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)


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)


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


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


EXHIBIT B






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


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”


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


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


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


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


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


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


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.


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.


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


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.


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;


(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


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


Exhibit A

Email Notice


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

To: [email protected]

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.


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.


Exhibit B

Post-Card Notice


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


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


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.




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



300 x 250


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.



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


Exhibit D

Publication Notice


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.




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.




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


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.




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


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.



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








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”









Riverside Press Enterprise5.14”W x 10.75”H


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.



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.

Rive

rsid

e Pr

ess

Ente

rpris

e5.

14”W

x 1

0.75

”H


San Diego Reader5.00”W x 5.75”H









SF Weekly6.01”W x 5.04”H



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.


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.


Exhibit E Opt-Out Forms


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






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28





Case No. 2:14-CV-07155-SJO-JPR [PROPOSED] FINAL JUDGMENT


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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:


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

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


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

dismissal with prejudice be, and hereby is, entered as a final and appealable order.

IT IS SO ORDERED.

DATED: __________ ______________________________

JUDGE OF THE DISTRICT COURT




Documents

6WDWH %DU 1R PON#NLUWODQGSDFNDUG FRP %HKUDP … · .,57/$1' 3$&.$5' //3 ... ,q uh 0hjr ) lqdqfldo &rus 6hf ... 2iilfhuv iru -xvwlfh y &lylo 6huylfh &rpp¶q ri wkh &lw\ dqg &rxqw\