Case Name

Fafard v. Apple Inc., et al.

Trinidad, et al. v. Pret A Manger (USA) Limited, et al.

Jurisdiction

Northern District of California

Southern District of New York

Docket number

4:12-cv-05125

1:12-cv-06094

Industry sector

Consumer goods

Food and beverage

Nature of case

Breach of contract and third party beneficiary, breach of the covenant of good faith and fair dealing, unjust enrichment, conversion, violation of California's Unfair Competition Law and violation of California's Legal Remedies Act for cancelling prepaid gift cards before the value of the gift card was fully utilized and redeemed by the cardholder, without providing a refund to the purchaser or cardholder and for failing to honor such cancelled gift cards.

Violations of the Fair Labor Standards Act (FLSA) and New York Labor Law for failure to compensate for all hours worked, failure to pay overtime at the required rate, improper tip pooling and lack of adequate wage statements.

Nature of claim

Breach of contract

Labor and employment

Judge

Claudia Wilken

Paul A. Engelmayer

Legal counsel

Class counsel: 

Kershaw, Cutter & Ratinoff LLP

Marcus & Auerbach LLC

Defendants' counsel: 

Morrison & Foerster LLP

Reed Smith LLP

Class counsel and counsel for individuals who opted-in:

Lee Litigation Group, PLLC

Defendants' counsel:

Jones Day

Defendant(s)

Apple Inc. 

Best Buy Co., Inc.

Interactive Communications International, Inc.

Pret A Manger (USA) Limited (Pret) 

Pret 100 Church Street, Inc.

Pret 1020 Sixth Avenue, Inc.

Pret 11th And F Street DC, Inc.

Pret 1200 Avenue Of The Americas Inc.

Pret 122 East 42, Inc.

Pret 1350 Broadway, Inc.

Pret 1399 New York Avenue Inc.

Pret 1410 Broadway, Inc.

Pret 1432 K Street, Inc.

Pret 179 Broadway, Inc.

Pret 1825 Eye Street, Inc.

Pret 1828 L Street, Inc.

Pret 185 Franklin Street Inc.

Pret 2 Park Avenue, Inc.

Pret 201 Pearl, Inc.

Pret 24 West 23rd, Inc.

Pret 319 Broadway Inc.

Pret 342 7th, Inc.

Pret 350 Hudson, Inc.

Pret 389 Fifth, Inc.

Pret 425 Lex, Inc.

Pret 425 Madison Inc.

Pret 485 7th Avenue, Inc.

Pret 485 Lexington, Inc.

Pret 50 Broadway, Inc.

Pret 501 Boylston Street, Inc.

Pret 62 West 45th Inc.

Pret 655 Sixth Avenue Inc.

Pret 708 Third Avenue Inc.

Pret 75 Nassau, Inc.

Pret 757 Third Inc.

Pret 821 Broadway, Inc.

Pret 825 Eighth Avenue Inc.

Pret 853 Broadway, Inc.

Pret 857 Broadway, Inc.

Pret 880 Third Avenue, Inc.

Pret A Manger-237 Park Avenue, Inc.

Settling defendant(s)

All

All

Settlement class(es)

Defined as:

All residents in the United States who currently have iTunes gift cards that were: (i) purchased from Best Buy stores between September 1, 2007 and December 31, 2009, (ii) deactivated between August 1 and October 31, 2010 and (iii) not redeemed by the cardholder.

Excluded from the settlement class are: (i) persons who validly and timely excluded themselves from the settlement class, (ii) persons who have settled with and released defendants from individual claims substantially similar to those alleged in this matter, (iii) the officers, directors and employees of any entity which is or has been a defendant, members of the immediate families of the foregoing and their legal representatives, heirs, successors and assigns and (iv) the officers, directors and employees of any defendant, or parent, subsidiary or affiliate of any of the defendants or any business entity in which any of the defendants owns a controlling interest, together with those individuals' immediate family members, as well as counsel for defendants and their immediate family members.

Defined as:

All current and former employees of Pret who worked for Pret in New York in a covered position (as a team member, team member star, barista, team member trainer, kitchen team leader, shop team leader, team leader or any other non-exempt non-management store position) at any time from August 9, 2006 to the date of entry of the order granting preliminary approval (March 28, 2014).

Settlement Administrator

Kurtzman Carson Consultants LLC

American Legal Claim Services

Procedural stage

Post-mediation

After mediation and significant formal and informal discovery, including document discovery, depositions and interviews.

Date operative complaint filed

October 3, 2012

December 27, 2012

Date settlement agreement filed

February 25, 2014

March 12, 2014

Date of preliminary approval

April 17, 2014

March 28, 2014

Date of final approval

June 12, 2014

September 29, 2014

Settlement amount

No cash settlement awarded to class members and the total monetary value is not specified, but is estimated to have a pre-redemption value of $6,218,295.

$910,000

Class representative award

$5,000

$7,500 (to one of the named plaintiffs) and $5,000 each (to the other four named plaintiffs).

Attorneys' fees/costs awarded

Attorneys' fees and additional costs: $750,000 (The court combined the amount of attorneys' fees and costs.)

Attorneys' fees: $209,246

Additional costs/expenses: $10,514.06

Attorneys' fees calculation method

Lodestar

Percentage (The court's analysis included a lodestar cross-check.)

Injunctive relief 

No

No

Non-monetary relief other than injunctive relief

Yes, settlement awards were in the form of reactivated gift cards, which will never expire or replacement cards.

No

Settlement administrator fees

Not specified, but all such fees to be paid by defendants.

$35,000 (maximum amount to be awarded).

Class certified for settlement only

Yes

Yes

Distribution to the settlement class

Relief to class members provided through the re-activation or replacement of iTunes gift cards.

Distribution of the settlement amount will include payments for: (i) attorneys' fees and costs, (ii) service awards, (iii) settlement administration costs and (iv) plaintiff, opt-in plaintiffs and settlement class members (the net settlement fund, the amount remaining from the fund after deducting (i) - (iii) above).

Distribution of the net settlement fund will be made to claimants who worked at any of defendant's stores in New York City at any time between August 9, 2006 and March 28, 2014 as follows: (i) $5 to any qualified class member who worked for one week or less and (ii) pro rata share to qualified class members who worked more than one week.

Settlement payments to qualified class members will not be considered as a payment of overtime, salary, wages or compensation to any qualified class member under the terms of any company benefit plan or for any purpose except for tax purposes. The receipt of settlement payments will not affect the amount of contribution to or level of benefits under any company benefit plan.

Any amount remaining in the settlement fund six months after the mailing of the settlement checks (deemed to be the date posted on the settlement check) due to any uncashed settlement checks or service awards will be considered unclaimed funds and will be donated to City Harvest.

Claims process specified

No

Yes

FLSA class members needed to opt-in to the settlement. Members of the class who sign, negotiate, endorse, deposit or cash a settlement check in this matter join the collective action under Section 16(b) of the FLSA.

Notice to the settlement class

Notice provided via: (i) e-mail to those class members who are holders of identified gift cards, (ii) internet publication on the established settlement website and (iii) toll-free telephone number.

Notice provided via: (i) notice packets mailed by first-class US mail, (ii) settlement website and (iii) toll-free telephone number and voice interactive response system (IVR).

A PO box and case specific e-mail box were also established for purposes of corresponding with the settlement administrator.

Opt-out procedures

Class members who wished to opt out had to mail to the settlement administrator via US mail (in an envelope with the requisite postmark) postmarked no later than 30 days after the publication of the class notice a written request for exclusion personally signed by the class member. 

The written request for exclusion had to include: (i) the name of the action, (ii) the class member's full name, current address and telephone number, (iii) the class member's signature, (iv) the words "request for exclusion" at the top of the document, (v) the serial number of the card(s) that would be eligible for redemption under the stipulation of settlement or a copy of the qualified verified valid receipt for such card(s) and (vi) a statement that the class member wished to be excluded from the settlement.

Class members who wished to opt out had to mail to the settlement administrator by first-class US mail, postage prepaid and postmarked no later than June 9, 2014 (45 calendar days after initial mailing of the notice) a written and signed request to opt out using the form (opt-out statement) provided with the class notice. 

The settlement administrator was required to stamp the postmark date of the opt-out statement on the original of each opt-out statement that it received and serve copies of each statement on counsel for the parties not later than three business days after receipt. Within five calendar days after the end of the opt-out period, the settlement administrator was to provide counsel for the parties with: (i) stamped copies of any opt-out statements, with social security numbers redacted and (ii) a final list of all opt-out statements. Also within five calendar days after the end of the opt-out period, the settlement administrator (or counsel for the parties) was to file with the court copies of any timely submitted opt-out statements with social security numbers and addresses redacted. The settlement administrator was to retain the stamped originals of all opt-out statements and originals of all envelopes accompanying opt-out statements in its files until such time as the settlement administrator is relieved of its duties and responsibilities under the settlement agreement.

Objections to the class settlement procedures

Class members who wished to object had file with the court and mail to the settlement administrator via US mail (with the requisite postmark on the envelope) no later than 30 days after the publication of the notice a written objection.

The written objection was required to include: (i) the name of the action, (ii) the objector's full name, current address and telephone number, (iii) the word "objection" at the top of the document, (iv) the serial number of the card(s) that would be eligible for redemption under the stipulation of settlement or a copy of the qualified verified valid receipt for such card(s) and (v) a written brief stating in clear and concise terms the legal and factual arguments supporting the objection and any evidence the objector wished to introduce in support of the objections.

A class member could object either on his own or through an attorney hired at the class member's expense.

Any objecting class member who intended to appear at the fairness hearing in person or through personal counsel hired at the class member's expense was required to file with the court a statement of his intention to appear by a specified date. 

The notice of intention to appear had to include: (i) the name of the action, (ii) the objector's full name, address and telephone number, (iii) the words "notice of intention to appear" at the top of the document, (iv) the points the objector wished to speak about at the fairness hearing and (v) the identity (name, address and telephone number) of any lawyer who would speak on the objector's behalf, if any.

Class members who wished to object to the settlement had to mail to the settlement administrator via first-class US mail, postage prepaid and postmarked by June 9, 2014 (45 calendar days after the initial mailing of notice) and received by June 16, 2014 (no later than seven calendar days after the end of the opt-out period) a written objection.

Class members who wished to present objections to the proposed settlement at the fairness hearing, either in person or through counsel hired at their expense, had to state their intention to do so at the time they submitted their written objections. No class member could appear at the fairness hearing unless he had timely filed an objection that complied with the procedures provided in the settlement agreement.

Objections could be withdrawn by the objector at any time.

The settlement administrator had to stamp the postmark date and the date received on the original and send copies of each objection to the parties by facsimile and overnight delivery not later than two business days after receipt. The settlement administrator also had to file the date stamped originals of any and all objections with the court within ten calendar days after the end of the opt-out period.

Objections filed

No

No

Releases

Yes

Yes

Blow-up provision

Yes

Yes

Confidentiality

No

Yes

Links

Settlement Agreement

Final Order

Preliminary Order

Settlement Agreement

Final Order

Preliminary Order