Civ. No. 2:14-01921 WBS AC.

HEIDI ANDERSON-BUTLER and PAULA HAUG on behalf of themselves and all others similarly situated, Plaintiffs, v. CHARMING CHARLIE INC., a Delaware Corporation; CHARMING CHARLIE LLC, a Delaware Limited Liability Company; and DOES 1 through 50, inclusive, Defendants.

United States District Court, E.D. California.

November 3, 2015.

Attorney(s) appearing for the Case

Heidi Anderson-Butler, Plaintiff, represented by James M. Lindsay , Lindsay Law Corporation.

Paula Haug, Plaintiff, represented by James M. Lindsay , Lindsay Law Corporation.

Charming Charlie, LLC, a Delaware Limited Liability Company, Defendant, represented by Craig Edward TenBroeck , Cooley, LLP, Darcie Allison Tilly , Cooley LLP & Michelle Doolin , Cooley LLP.


Plaintiffs brought this putative class action against Charming Charlie, LLC,1 alleging defendant required plaintiffs to provide personal information when making a credit card purchase in violation of California Civil Code section 1747.08. Presently before the court is plaintiffs' motion for final approval of the class action settlement.

I. Factual and Procedural Background

Charming Charlie is a retailer selling women's apparel and accessories in stores across the country, including California. Plaintiffs Heidi Anderson-Butler and Paula Haug visited Charming Charlie stores located in Chino Hills and Folsom, California, respectively. Upon attempting to pay for items with their credit cards, a clerk told both women they were required to provide personal information including their physical address, email address, and phone number. Plaintiffs provided the information to the clerk.2 Defendant allegedly used the collected information for direct marketing purposes.

Plaintiffs allege defendant violated the Song-Beverly Credit Card Act, Cal. Civ. Code § 1747.08, which provides that a corporation may not "request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which . . . the corporation . . . causes to be written, or otherwise records. . . ." Plaintiffs brought this lawsuit on behalf of a putative class of consumers in California from whom defendant requested personal information during the course of credit card transactions. The case settled before the parties filed any dispositive motions.

Plaintiffs filed an unopposed motion for preliminary approval of class action settlement on June 18, 2015 and the court granted preliminary approval on July 29, 2015. (Docket No. 15.) Plaintiffs now seek final approval of the parties' stipulated class-wide settlement pursuant to Federal Rule of Civil Procedure 23(e). Defendant does not oppose plaintiffs' motion for final approval.

II. Discussion

Rule 23(e) provides that "[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court's approval." Fed. R. Civ. P. 23(e). "Approval under 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted." Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004) (citing Manual for Complex Litig., Third, § 30.41 (1995)).

The Ninth Circuit has declared a strong judicial policy favoring settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nevertheless, where, as here, "the parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003).

A. Class Certification

A class action will be certified only if it meets the four prerequisites identified in Rule 23(a) and additionally fits within one of the three subdivisions of Rule 23(b). See Ontiveros v. Zamora, Civ. No. 2:08-567 WBS DAD, 2014 WL 3057506, at *4 (E.D. Cal. July 7, 2014); Fed. R. Civ. P. 23(a)-(b). Although a district court has discretion in determining whether the moving party has satisfied each Rule 23 requirement, see Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must conduct a rigorous inquiry before certifying a class, see Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403-05 (1977).

1. Rule 23(a) Requirements

Rule 23(a) restricts class actions to cases where:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These requirements are more commonly referred to as numerosity, commonality, typicality, and adequacy of representation.

In its Preliminary Approval Order, the court found that the class satisfied the numerosity, commonality, and typicality requirements of Rule 23(a). The court expressed some concern, however, as to adequacy of representation. Since the court is unaware of any changes that would alter its analysis as to numerosity, commonality, or typicality, the court will proceed to evaluate adequacy of representation for purposes of final certification.

a. Adequacy of Representation

To resolve the question of adequacy, the court must make two inquiries: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). These questions involve consideration of a number of factors, including "a sharing of interests between representatives and absentees." Brown v. Ticor Title Ins., 982 F.2d 386, 390 (9th Cir. 1992).

Although the Ninth Circuit has specifically approved the award of "reasonable incentive payments" to named plaintiffs, the use of an incentive award nonetheless raises the possibility that plaintiffs' interest in receiving that award will cause their interests to diverge from the class's interest in a fair settlement. Staton, 327 F.3d at 977-78 (declining to approve a settlement agreement where size of incentive award suggested that named plaintiffs were "more concerned with maximizing [their own] incentives than with judging the adequacy of the settlement as it applies to class members at large"). As a result, the court must "scrutinize carefully the awards so that they do not undermine the adequacy of the class representatives." Radcliffe v. Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).

"In general, courts have found that $5,000 incentive payments are reasonable." Hopson v. Hanesbrands Inc., Civ. No. 08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal. Apr. 3, 2009) (citing In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000); In re SmithKline Beckman Corp., 751 F.Supp. 525, 535 (E.D. Pa. 1990); Alberto v. GMRI, Inc., 252 F.R.D. 652, 669 (E.D. Cal. 2008)).

The settlement agreement provides for an incentive award of $5,000 to each of the named plaintiffs, to be paid separate from and in addition to the class recovery of $350,000 in vouchers. In its Preliminary Approval Order, the court questioned whether the incentive awards were proportionate to the recovery of the other class members because, at the time of the preliminary approval hearing, there was a possibility that all 200,000 class members would submit claim forms and each class member would therefore receive only a $1.75 voucher. However, notice has now been sent to 200,000 class members and only 13,505 submitted timely claim forms. (Pls.' Mot. for Final Approval ("Pls.' Mot.") at 9 (Docket No. 18-1); see Settlement Agreement ¶ 3.6.) This means that each claimant will receive a voucher for roughly $26.00—significantly more than the $1.75 originally contemplated by the court. (Id.)

In addition, plaintiffs provided important justification for the incentive awards by explaining that class representatives Heidi Anderson-Butler and Paula Haug spent around forty hours engaging in investigation efforts, discovery, and settlement negotiations for this case. (Pls.'s Mot. for Att'y's Fees at 12 (Docket No. 17-1).) More specifically, Anderson-Butler and Haug each spent around six hours discussing the matter with plaintiffs' counsel and investigating other Charming Charlie stores in the state; three hours working on filing the complaint; fifteen hours on the mediation process; five hours on the settlement agreement process; and two hours keeping abreast of the settlement approval process. (Anderson-Butler Decl. ¶¶ 2-8 (Docket No. 17-3); Haug Decl. ¶¶ 2-8 (Docket No. 17-4).) Both also stated that they bore the risk of an adverse judgment, risking their own personal assets and credit. (Id.) Given this new information, the court finds that the incentive awards are proportional to the overall class recovery.

2. Rule 23(b)

An action that meets all the prerequisites of Rule 23(a) may be certified as a class action only if it also satisfies the requirements of one of the three subdivisions of Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Plaintiffs seek certification under Rule 23(b)(3), which provides that a class action may be maintained only if (1) "the court finds that questions of law or fact common to class members predominate over questions affecting only individual members" and (2) "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

In its Preliminary Approval Order, the court found that both prerequisites were satisfied. The court is unaware of any changes that would affect this conclusion. Accordingly, since the settlement class satisfied both Rule 23(a) and Rule 23(b)(3), the court will grant final certification of the settlement class.

B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement

Having determined class treatment to be warranted, the court must now determine whether the terms of the parties' settlement appear fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026. This process requires the court to "balance a number of factors," including:

the strength of the plaintiff's case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.

Hanlon, 150 F.3d at 1026.

1. Terms of the Settlement Agreement

(1) Settlement Class: All persons who, between July 9, 2013 and the date of entry of the Preliminary Approval Order, engaged in a credit card transaction at a California Charming Charlie Store and whose personal identification information was requested and recorded by Charming Charlie and the Charming Charlie Store for purposes other than shipping, delivery, or special orders. (Pls.' Mot. at 2.) (2) Notice: The settlement administrator, Dahl Administration, LLC, mailed notices to 16,980 class members and emailed notices to 198,784 class members within thirty days of the court's granting preliminary approval. (Kratz Decl. ¶¶ 2, 5-6 (Docket No. 18-3).) Notices were also mailed to 14,300 (of the 29,955) class members whose notice was not successfully delivered via email. (Id. ¶¶ 6, 7.) (3) Opt-out Procedure: To opt out of the settlement, class members submitted by U.S. mail a letter or postcard addressed to the Claims Administrator indicating (a) the name and case number of the action; (b) the full name, address, and telephone number of the person requesting exclusion; and (c) a statement that he/she did not wish to participate in the Settlement. (Settlement Agreement ¶ 3.10.) Fifteen class members opted-out. (Kratz Decl. ¶¶ 9-10 (Docket No. 18-3).) (4) Objections to Settlement: Class members could object to the fairness, reasonableness, or adequacy of the settlement by delivering written objections to plaintiffs' counsel and defendant's counsel, and filing such objection with the court, no later than forty-five calendar days after the last day for notice to be provided. (Settlement Agreement ¶ 3.9.) No class members objected. (Kratz Decl. ¶¶ 9-10.) (5) Settlement Amount: Defendant agreed to comply with section 1747.08 in its California stores, although the agreement does not require defendant to notify plaintiffs of changes to its policies, practices, and procedures. In addition, defendant will pay $350,000 in the form of transferable store vouchers to class members valid for six months after issuance and redeemable for in-store purchases of merchandise at Charming Charlie stores. Class members who made claims will receive vouchers for about $26.00. Although the settlement agreement provided for a limit of $20.00 per voucher with remainder vouchers to be distributed to claimant class members if necessary, defendant has agreed to distribute the entirety of the voucher fund at once. (Pls.' Mot. at 3.) (6) Attorney's Fees, Costs, and Plaintiffs' Incentive Award: Plaintiffs request an award of attorney's fees and costs of $140,000 total to be paid separate and apart from the award to the class. (Pls.' Mot. for Attorney's Fees at 1.) Defendant does not oppose plaintiffs' counsel's application. (Id.) Plaintiffs also request, and defendant does not oppose, an incentive award of $5,000 to each of the named plaintiffs to be paid separate and apart from the award to the class. (Id. at 2.) (7) Release: Class members who participate in the settlement who have not timely opted out agree to release defendant from claims arising out of acts, omissions, or other conduct that could have been alleged or otherwise referred to in the action, including but not limited to any and all violations of California Civil Code Section 1747.8. (Settlement Agreement ¶ 4.4.)

2. Rule 23(e) Factors

a. Strength of the Plaintiffs' Case

An important consideration is the strength of the plaintiffs' case on the merits balanced against the amount offered in the settlement. DIRECTV, 221 F.R.D. at 526. The district court, however, is not required to reach any ultimate conclusions on the merits of the dispute, "for it is the very uncertainty of outcome in litigation and avoidance of wastefulness and expensive litigation that induce consensual settlements." Officers for Justice v. Civil Serv. Comm'n of the City & Cty. of SF, 688 F.2d 615, 625 (9th Cir. 2004).

Plaintiffs allege defendant violated California Civil Code section 1747.08 by requesting and recording customers' personal identification information as part of its credit card transactions. (Pls.' Mot. at 5.) The parties have exchanged significant informal discovery and plaintiffs believe they have sufficient evidence to establish their prima facie case. (Id. at 8.) On the other hand, defendant avers that it never conditioned a sale upon the customer providing personal identification information and such information was requested only for the purpose of enrolling customers in a loyalty club. (Def.'s Statement of Non-Opp'n ("Def.'s Stmt.") at 7 (Docket No. 19).) Defendant argues that requesting personal identification information for the purpose of enrolling customers in a loyalty program falls within the "special purposes" exception to section 1747.08. (Id. at 8.) Plaintiffs counter that the loyalty club was not mentioned at the time they were requested to provide identification information. (Pls.' Mot. at 6.) The settlement terms compare favorably to these uncertainties with respect to liability.

Even if plaintiffs prevailed at trial, there is a significant possibility that plaintiffs would receive only minimal damages. California Civil Code section 1747.08 provides a safe harbor for bona fide errors made unintentionally and also does not mandate fixed or minimum penalties. (Def.'s Stmt. at 8, 11.) While each class member could recover $250 in damages for the first violation and up to $1,000 for each subsequent violation, it is also possible each member would receive as little as a penny. (Id. at 11; Pls.' Mot. at 7.) This is especially true given that there is no evidence that any class member was financially harmed by defendant's practice. (Id.)

The proposed settlement provides broad injunctive relief requiring defendant to comply with section 1747.08 in its California stores and provides each claimant with a $26.00 voucher. In comparing the strength of plaintiffs' case with the proposed settlement, the court finds that the proposed settlement is a fair resolution of the issues in this case.

b. Risk, Expense, Complexity, and Likely Duration of Further Litigation

Further litigation could greatly delay resolution of this case and increase expenses. Prior to any judgment, the parties will likely litigate class certification, summary judgment, and a bench trial. In addition, defendant contends that appellate proceedings would almost certainly follow. (Def.'s Stmt. at 9.) This weighs in favor of settlement of the action.

c. Risk of Maintaining Class Action Status Throughout Trial

Defendant argues that plaintiffs would not be able to maintain this case as a class action "because the varied circumstances surrounding each customer's transactions present individualized factual issues that cannot be jointly tried." (Def.'s Stmt. at 7.) Plaintiff also acknowledges that "class certification is not guaranteed, if opposed" and cites to a recent class action under section 1747.08 that was decertified at trial. (Pls.' Mot. at 8.) Accordingly, this factor also favors approval of the settlement.

d. Amount Offered in Settlement

In assessing the amount offered in 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. "It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair." Id.

The value of the settlement fund in this case is $350,000. (Pls.' Mot. ¶ 9.) As of the time of the fairness hearing, 13,505 members had opted into the class and, as a result, each claimant will receive a voucher for roughly $26.00. (Id.) The attorney's fees and incentive awards will be paid separate and apart from class compensation and will not detract from the settlement fund. (Pls.'s Mot. for Att'y's Fees at 1.) The transferable voucher will not require claimants to spend any money in order to realize the benefits of the settlement, as a coupon would. (Def.'s Stmt. at 10.)

Plaintiffs' counsel believes that "recovery would most likely be in a similar amount if the action was tried with the facts as known." (Pls.' Mot. at 9.) While section 1747.08 provides for a maximum award of $250 for the first violation and $1,000 for each subsequent violation, plaintiffs concede that defendant did not commit an egregious violation that would warrant the maximum allowable penalty. (Id. at 10.) Instead, plaintiffs analogize defendant's violation to that of a first-time corporate offender that collected minimally-sensitive information and estimate that the case is worth less than $500,000. (Id.) Class members' actual recovery, therefore, appears at least comparable to the amount they would recover at trial and is particularly fair and reasonable in light of the risks and costs of further litigation in this case.

e. Extent of Discovery and the State of Proceedings

A settlement that occurs in an advanced stage of the proceeding indicates the parties carefully investigated the claims before reaching a resolution. Alberto v. GMRI, Inc., Civ. No. 07-1895 WBS DAD, 2008 WL 4891201, at *9 (E.D. Cal. Nov. 12, 2008.) Plaintiffs served formal written discovery on defendant and both parties exchanged significant informal discovery in preparation for mediation. (Pls.' Mot. at 8.) Among other information, defendant has provided plaintiffs with information relating to the total number of transactions completed in California during the relevant time period, the number of times personal identification information was requested, the utilization and storage of such information, and the production of its policy directives. (Id.) The parties also engaged in a full day of mediation before the Honorable William C. Pate (retired) in San Diego and several communications following the mediation with his assistance. (Id. at 2.) The parties' investigation of the claims through informal discovery and mediation and their consideration of the views of a third-party mediator weigh in favor of settlement.

f. Experience and Views of Counsel

Plaintiffs' counsel indicates that he has extensive experience litigating consumer class actions. In the past ten years, he has brought more than twenty class actions under the Song-Beverly Credit Card Act of 1971. (Id. at 10.) Based on his experience, counsel believes the proposed settlement is fair and adequate to the class members. (Id.) The court gives considerable weight to class counsel's opinions regarding the settlement due to counsel's experience and familiarity with the litigation. Alberto, 2008 WL 4891201, at *10. This factor supports approval of the settlement agreement.

g. Presence of Government Participant

No governmental entity participated in this matter; this factor, therefore, is irrelevant to the court's analysis.

h. Reaction of the Class Members to the Proposed Settlement

The settlement administrator, Dahl Administration, LLC, mailed notices to approximately 200,000 class members. (Kratz Decl. ¶¶ 2, 5-7.) Fifteen class members requested to be excluded and none objected. (Id. ¶¶ 9-10.) "It is established that the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members." DIRECTV, 221 F.R.D. at 529. Accordingly, this factor weighs in favor of the court's approval of the settlement.

Having considered the foregoing factors, the court finds the settlement is fair, adequate, and reasonable pursuant to Rule 23(e).

C. Attorney's Fees

Federal Rule of Civil Procedure 23(h) provides, "[i]n a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement." If a negotiated class action settlement includes an award of attorney's fees, that fee award must be evaluated in the overall context of the settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013) (England, J.). The court "ha[s] an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount." In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

The parties agreed as part of the settlement agreement that defendant would pay attorney's fees and costs of $140,000, to be paid separate and apart from the recovery of the class. (Pls.' Mot. for Att'y's Fees at 2; Settlement Agreement ¶ 2.5.) Of this sum, plaintiffs' counsel explains that $9,118.43 is for costs and $130,881.57 for attorney's fees. (Id.) Plaintiffs' counsel submitted a declaration in support of his requested fees providing a general breakdown of his hours worked; he did not attach detailed time sheets because the motion is not opposed by defendant and plaintiffs' counsel hoped "to avoid public disclosure of privileged matters and work product." (Lindsay Decl. in Support of Pls.' Mot. for Att'y's Fees ("Lindsay Decl.") ¶ 8 (Docket No. 17-2).)

The parties negotiated the agreed-upon attorney's fees and costs only after reaching an agreement as to all other material terms of the settlement, including class compensation. (Pls.' Mot. for Att'y's Fees at 3; Lindsay Decl. ¶ 7.) In negotiating the fee award, the parties took into account plaintiffs' counsel's efforts, the results achieved, and the risk of protracted litigation if no agreement on attorney's fees was reached. (Id. at 3.)

While plaintiffs' counsel's substantial hourly rate might not have been accepted by the court under different circumstances, the court finds plaintiffs' counsel request for attorney's fees and costs in the agreed-upon amount of $140,000 fair, appropriate, and reasonable given that it was negotiated independently from the class settlement, defendant does not oppose, and it did not detract from the amount class members will recover.

D. Incentive Payments to Named Plaintiffs

For the reasons previously discussed, see supra Part II.A.1.a, the court orders that incentive payments of $5,000 be paid to each named plaintiff.

III. Conclusion

Based on the foregoing, the court grants final certification of the settlement class and approves the settlement set forth in the settlement agreement as fair, reasonable, and adequate. Consummation of the settlement agreement is therefore approved, and the definitions provided in the settlement agreement shall apply to the terms used herein. The settlement agreement shall be binding upon all members of the class action who did not timely elect to be excluded.

IT IS THEREFORE ORDERED that plaintiffs' motion for final approval of the class and class action settlement be, and the same hereby is, GRANTED.


(1) solely for the purpose of this settlement, and pursuant to Federal Rule of Civil Procedure 23, the court hereby certifies the following class: All persons who, between July 9, 2013 and the date of entry of the Preliminary Approval Order, engaged in a credit card transaction at a California Charming Charlie Store and whose personal identification information was requested and recorded by Charming Charlie and the Charming Charlie Store for purposes other than shipping, delivery, or special orders. Specifically, the court finds that: (a) the settlement class members are so numerous that joinder of all settlement class members would be impracticable; (b) there are questions of law and fact common to the settlement class which predominate over any individual questions; (c) claims of the named plaintiffs are typical of the claims of the settlement class; (d) the named plaintiffs and plaintiffs' counsel have fairly and adequately represented and protected the interests of the settlement class; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (2) the court appoints the named plaintiffs, Heidi Anderson-Butler and Paula Haug, as representatives of the class and finds that they meet the requirements of Rule 23; (3) the court appoints James M. Lindsay of Lindsay Law Corporation, 21 Natoma Street, Suite 160, Folsom, California 95630, as counsel to the settlement class and finds that counsel meets the requirements of Rule 23; (4) the settlement agreement's plan for class notice is the best notice practicable under the circumstances and satisfies the requirements of due process and Rule 23. The plan is approved and adopted. The notice to the class complies with Rule 23(c)(2) and Rule 23(e) and is approved and adopted; (5) the parties have executed the notice plan in the court's Preliminary Approval Order, in response to which 13,505 class members submitted a claim form, fifteen requested to be excluded, and none objected. Having found that the parties and their counsel took extensive efforts to locate and inform all putative class members of the settlement, and given that no class members have filed any objections to the settlement, the court finds and orders that no additional notice to the class is necessary; (6) as of the date of the entry of this Order, plaintiffs and all class members who have not timely opted out hereby do and shall be deemed to have fully, finally, and forever released, settled, compromised, relinquished, and discharged any and all of the released parties (as defined by paragraph 4.4 of the settlement agreement) of and from any and all released claims (as defined in paragraph 4.4 of the settlement agreement). The claims released by plaintiffs and class members include, but are not limited to, claims arising from any and all violations of California Civil Code section 1747.8; (7) the distribution of settlement vouchers shall occur within thirty calendar days following the final settlement date. Defendant will itself or through the claims administrator mail the vouchers; (8) plaintiffs' counsel is entitled to fees and costs in the amount of $140,000 and payment shall be made within ten days after the final settlement date and plaintiffs' counsel provides defendant with its Form W-9, whichever is later; (9) the named plaintiffs are entitled to incentive payments of $5,000 each; and (10) this action is dismissed with prejudice; however, without affecting the finality of this Order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the settlement agreement with respect to all parties to this action and their counsel of record.

The clerk is instructed to enter judgment accordingly.


1. Plaintiffs originally named both Charming Charlie, Inc. and Charming Charlie LLC in error. Charming Charlie, Inc. no longer exists as a distinct entity because it converted to Charming Charlie LLC in December 2013. (Def.'s Stmt. at 1 (Docket No. 13).)
2. Plaintiff Haug refused to provide her physical address and provided only her telephone number and email address. (Compl. ¶ 26 (Docket No. 1-2).)


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