Filed: Nov. 30, 2015
Latest Update: Nov. 30, 2015
Summary: STIPULATION AND [PROPOSED] ORDER FURTHER AMENDING DAMAGES SUMMARY JUDGMENT ORDER JON S. TIGAR , District Judge . The parties to the above-captioned action, by and through their counsel, stipulate: WHEREAS, on March 10, 2014, this Court certified the following Class, solely for the purpose of bringing a breach of contract claim: All persons in the United States who registered to purchase groceries through Safeway.com at any time prior to November 15, 2011, and made one or more purchases su
Summary: STIPULATION AND [PROPOSED] ORDER FURTHER AMENDING DAMAGES SUMMARY JUDGMENT ORDER JON S. TIGAR , District Judge . The parties to the above-captioned action, by and through their counsel, stipulate: WHEREAS, on March 10, 2014, this Court certified the following Class, solely for the purpose of bringing a breach of contract claim: All persons in the United States who registered to purchase groceries through Safeway.com at any time prior to November 15, 2011, and made one or more purchases sub..
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STIPULATION AND [PROPOSED] ORDER FURTHER AMENDING DAMAGES SUMMARY JUDGMENT ORDER
JON S. TIGAR, District Judge.
The parties to the above-captioned action, by and through their counsel, stipulate:
WHEREAS, on March 10, 2014, this Court certified the following Class, solely for the purpose of bringing a breach of contract claim:
All persons in the United States who registered to purchase groceries through Safeway.com at any time prior to November 15, 2011, and made one or more purchases subject to the price markup implemented on or about April 12, 2010 (the "Class").
Excluded from the Class are Defendant, as well as all employees of the judges assigned to this action in this Court, their spouses and any minor children living in their households, and other persons within a third degree relationship to any such federal judge; and finally, the entire jury venire called for jury service in relation to this lawsuit. Also excluded from the Class are any attorneys or other employees of any law firms hired, retained and/or appointed by or on behalf of the named Plaintiffs to represent the named Plaintiffs and/or any proposed Class members or proposed class in this lawsuit.
(ECF No. 163);
WHEREAS, on May 15, 2015, the parties jointly stipulated to dismiss with prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, plaintiff's individual claims for violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., False Advertising Laws, Cal. Bus. & Prof. Code § 17500, et seq., and Consumers Legal Remedies Act, Cal. Civ. Code § 1750 (ECF No. 265);
WHEREAS, on February 12, 2015, this Court granted partial summary judgment to Plaintiff and the Class and found that "Safeway breached the contract by charging Plaintiff and the Class members who registered beginning in 2006 more than the prices permitted under the terms of the contract" and that "[t]he Class is entitled to damages even for purchases which occurred after the Special Terms were amended on November 15, 2011" (ECF No. 237);
WHEREAS, on August 31, 2015, the Court issued its Order 1) Denying Defendant's Motion For Partial Summary Judgment 2) Denying Plaintiff's Motion For Partial Summary Judgment As To Class Members Who Registered Prior To 2006 3) Granting Plaintiff's Motion For Summary Judgment As To Damages (the "Damages MSJ Order") (ECF No. 331);
WHEREAS, the Damages MSJ Order found that the Class was entitled to recover damages in the amount of $30,979,262;
WHEREAS, on September 24, 2015, the parties submitted a Stipulation and [Proposed] Order Re Calculation of Damages Awarded by the Court pursuant to the Damages MSJ Order, and stated, among other things, that the $30,979,262 figure in the Court's Damages MSJ Order included markup amounts for Class members, including those who registered before January 1, 2006, whose claims had not yet been resolved (ECF No. 359);
WHEREAS, on September 24, 2015, Court issued its Order Amending Prior Order in which it struck "$30,979,262" from the Damages MSJ Order and stated that it would file an Amended Order at the appropriate time (ECF No. 362);
WHEREAS, as reflected in submissions by the parties and orders of this Court (ECF Nos. 371, 373, 374, 376-80, 383), trial of this case was continued from October 7, 2015 to December 7, 2015 and additional discovery was permitted;
WHEREAS, on November 12, 2015, the parties submitted a Joint Stipulation and [Proposed] Order with respect to Class members who registered before January 1, 2006, stipulating that Class members who registered before January 1, 2006 entered into a contract with Safeway at the time of registration containing the following language:
Product Pricing and Service Charges
The prices quoted on our Web site at the time of your order are estimated prices only. You will be charged the prices quoted for Products you have selected for purchase at the time your order is processed at checkout. The actual order value cannot be determined until the day of delivery because the prices quoted on the Web site are likely to vary either above or below the prices in the store on the date your order is filled and delivered.
(ECF No. 392);
WHEREAS, in the November 12, 2015 Joint Stipulation and [Proposed] Order, the parties further stipulated that the Court's prior summary judgment Orders (ECF Nos. 237 and 331) are equally applicable to Class members who registered before January 1, 2006, as they are to Class members who registered between January 1, 2006 and November 14, 2011;
WHEREAS, the parties' November 12, 2015 Joint Stipulation and [Proposed] Order resolved all issues that remained for trial, and the parties stated that they would work together to determine the amount of damages due to Class members pursuant to the Court's summary judgment Orders for submission to the Court;
WHEREAS, on November 20, 2015, the Court issued its Order entering the Joint Stipulation submitted by the parties at ECF No. 392 (ECF No. 397);
WHEREAS, the parties now wish to stipulate to the facts and findings set out below;
NOW, THEREFORE, the parties to the above-captioned action hereby stipulate and agree to the following:
1. For the reasons stated in (a) the Court's "Amended Order Granting Plaintiff's Motion for Partial Summary Judgment" dated February 12, 2015 (ECF No. 237), (b) sections I, II, IIIA, and the first and third sentences of the Conclusions in the Court's "Order 1) Denying Defendant's Motion For Partial Summary Judgment 2) Denying Plaintiff's Motion For Partial Summary Judgment As To Class Members Who Registered Prior To 2006 3) Granting Plaintiff's Motion For Summary Judgment As To Damages" dated August 31, 2015 (ECF No. 331), (c) the parties' "Stipulation and [Proposed] Order Re Calculation of Damages Awarded by the Court" dated September 24, 2015 (ECF No. 359), (d) the Court's "Order Amending Prior Order" dated September 24, 2015 (ECF No. 362) and (e) the Court's Order dated November 19, 2015 (ECF No. 397), the certified class, including Plaintiff Michael Rodman, is entitled to recover damages for breach of contract against defendant Safeway Inc. in the amount of $30,979,262, plus pre-judgment interest computed at the rate of 10% per annum under California Civil Code Section 3289(b) from the date of each purchase transaction and continuing until the date the Court enters judgment.
2. The parties stipulate and agree to the following prejudgment interest calculations, depending on the date judgment is entered:
DATE JUDGMENT PREJUDGMENT
ENTERED INTEREST ACCRUED AS
OF DATE OF JUDGMENT
Nov. 30, 2015 $10,905,505
Dec. 1, 2015 $10,913,993
Dec. 2, 2015 $10,922,481
Dec. 3, 2015 $10,930,968
Dec. 4, 2015 $10,939,455
Dec. 5, 2015 $10,947,943
3. Safeway continues to contest the Court's prior orders (ECF Nos. 163, 237, 331), and reserves its right to appeal from the final judgment in this action and raise as issues in that appeal error in the Court's prior orders or any other order made in this action.
SO ORDERED:
