Tyrus Collins et al v. Cargill Meat Logistic Solutions Inc et al, No. 1:2010cv00500 - Document 40 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION Re: Preliminary Approval of Class Action Settlement 37 , signed by Judge Oliver W. Wanger on 3/8/2011. (Marrujo, C)
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Tyrus Collins et al v. Cargill Meat Logistic Solutions Inc et al Doc. 40 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 TYRUS COLLINS and JAMES GREER, on behalf of themselves and others similarly situated, No. 1:10-CV-00500-OWW-GSA MEMORANDUM DECISION RE: PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Doc. 37) 7 Plaintiffs, 8 9 v. 10 11 12 CARGILL MEAT SOLUTIONS CORPORATION, a Kansas Corporation, and Does 1 through 50, inclusive, 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 I. INTRODUCTION. Plaintiffs Tyrus Collins and James Greer brought this action on behalf of themselves and approximately 219 current and former nonexempt hourly workers employed at Defendant Solutions facility in Fresno, California. Cargill Meat Plaintiffs allege that Cargill violated state wage-and-hour laws, e.g., it failed to provide employees with paid rest periods of not less that ten minutes for every four consecutive hours worked; and failed to reimburse employees for expenses necessarily incurred in the performance of their job duties for Cargill, namely, the costs of acquiring required safety footwear.1 26 27 1 28 Plaintiffs also allege that Defendants failed to pay wages in a timely manner; failed to provide accurate wage statements; and 1 Dockets.Justia.com 1 The parties have entered into a Joint Stipulation of Class 2 Action Settlement Agreement ( Settlement ). 3 terms of 4 approval of the Settlement; (2) provisional certification of the 5 Settlement 6 Representatives; (4) appointment of Rust Consulting, Inc. as Claims 7 Administrator; (5) appointment of Anthony J. Orshansky, Esq., and 8 David H. Yeremian, Esq., of Orshansky & Yeremian, LLP, as Class 9 Counsel; (6) the Settlement, Class; (3) the parties appointment Doc. 38-1. seek: of (1) Under the preliminary Plaintiffs as Class approval of the parties' proposed form and method of 10 notifying Class Members of the Settlement; (7) an order scheduling 11 the hearing date for final approval of the class settlement; and 12 (7) entry of a preliminary approval order. 13 Plaintiffs filed a Motion for Preliminary Approval of Class 14 Action Settlement on January 21, 2011. The motion is unopposed. 15 For the reasons set forth below, the motion is GRANTED. 16 II. BACKGROUND. 17 18 The facts of this case are well-known to the parties and the 19 Court. On January 26, 2010, Plaintiffs filed a filed a class 20 action complaint 21 Solutions, Inc. in the Superior Court of California, County of Los 22 Angeles. The Complaint alleged six causes of action for violations 23 of Labor Code §§ 203, 204, 226, 2802, IWC Wage Orders, and Business 24 and Professions Code §§ 17200, et seq. 25 removed the case to the United States District Court for the 26 Central District of California, Case No. 10-CV-01422-PA-SS. against Defendant Cargill Meat Logistics Defendant subsequently 27 28 failed to pay wages when due. See SAC, Doc. 32, ¶¶ 23-55. 2 The 1 case was transferred to the Eastern District of California on 2 February 25, 2010. 3 Plaintiffs filed a first amended complaint ( FAC ) on August 4 25, 2010, adding a new cause of action under the California Labor 5 Code Private Attorney General Act of 2004, § 2699. 6 Doc. 23. Plaintiffs filed the operative second amended complaint (the December 17, 2010.2 7 SAC ) on Doc. 32. The SAC correctly 8 identifies the Defendant as Cargill Meat Solutions Corporation 9 and defines/clarifies the class as nonexempt hourly employees at 10 any time between August 1, 2008 and the date of preliminary 11 approval by the Court of the settlement. 12 1)( Plaintiffs bring this action pursuant to Rule 23 of the Federal 13 Rules of Civil Procedure on behalf of all persons who are or were 14 employed by Defendant as nonexempt hourly employees within the 15 State of California at any time four (4) years prior to the 16 original filing of the lawsuit and continuing to the present. ). Cf. FAC, Doc. 23, ¶ 17 On January 21, 2011, the parties filed a Stipulation of 18 Settlement and the instant motion for preliminary approval of the 19 proposed settlement. 20 From January 2010 through the day of the settlement 21 negotiation, the parties conducted extensive formal and informal 22 discovery concerning Defendant's policy and practices. Plaintiffs' 23 counsel undertook an extensive review of the information amassed 24 during discovery, including: (1) analysis of hundreds of documents 25 26 27 28 2 The second amended complaint realleges the seven causes of action in the FAC, i.e., violations of Labor Code §§ 201, 202, 203, 204, 226, 2699, 2802, IWC Wage Orders, and Business and Professions Code §§ 17200, et seq. Doc. 32 at ¶¶ 23-55. 3 1 produced by Defendant, including time records and payroll data for 2 class members and Defendant's employment records; (2) analysis of 3 Defendant's legal arguments, including Brinker Rest. Corp. v. 4 Superior Court (Hohnbaum), 165 Cal. App. 4th 25, 80 Cal. Rptr. 3d 5 781 (2008) (review granted); (3) analysis of class-wide violations 6 and damages relating to Defendant s reimbursement policies and 7 practices for work-related expenses; (4) review and analysis of 8 Defendant s policies and practices relating to safety equipment and 9 devices required including document relating to workplace safety 10 compliance; and (5) research of the applicable law with respect 11 to Plaintiffs' claims. Orshansky Decl., Doc. 38, ¶ 11. 12 III. SUMMARY OF THE SETTLEMENT 13 14 The case was resolved with the aid of a mediator, Michael 15 Loeb, Esq., and a third party neutral. 16 approximately 219 current and former nonexempt hourly workers 17 employed by Defendant in Fresno, California from August 1, 2008 to 18 the date the Court enters an Order of Preliminary Approval. 19 Settlement, ¶ 1. 20 fund of $150,000 will be established to provide cash payments to 21 qualified class members ( Net Settlement Fund or NSF ). 22 amount 23 Defendant 24 costs.3 is not has The Settlement covers Under the proposed settlement, a non-revertible subject agreed to to any pre-distribution separately pay claims This reductions as administration 25 26 27 28 3 Defendants have agreed to separately pay attorneys fees and litigation costs, enhancement payments to Class Representatives and required payments to the California Labor and Workforce Development Agency ( CLWD ). Settlement, ¶ 11. 4 1 2 3 A. Payment Terms Under the proposed settlement, a non-revertible fund of 4 $150,000 will be established to provide cash payments to class 5 members 6 Claimant"),4 based upon the following allocation formula: who submit timely and valid Claim Forms ("Qualified Each Qualified Claimant shall receive a payment based on the number of weeks that he or she worked during the Covered Period, which shall be from August 1, 2008 through preliminary approval. 7 8 9 Each Qualified Claimant will be entitled to a provisional share of the settlement calculated by (1) taking that Qualified Claimant s number of workweeks, (2) dividing that number by the total number of workweeks for all Qualified Claimants, and (3) multiplying the resulting number by the NSF. 10 11 12 For purposes of this calculation, the number of an employee s workweeks shall be calculated by (1) subtracting that employee s first workday period during the Covered Period from his or her last workday of the Covered Period, (2) dividing that number of days by 7, and then (3) rounding to the nearest integer. 13 14 15 16 17 Doc. 38-1, ¶ 9(c). 18 A Notice Packet, which includes a Notice of Pendency of Class 19 Action,5 Claim Form, and Request for Exclusion Form, will include 20 for each Class Member the number of weeks actively worked during 21 the Class Period and the Class Member's estimated Settlement 22 Amount. Docs. 38-2 thru 38-4. The Settlement Amount is based on 23 24 25 26 27 28 4 Qualified Claimant is defined as an individual in the Settlement Class who will have timely submitted a Claim Form properly signed and including the last four number of his or her social security number. 5 The five-page notice document is headed, Notice of Pendency of Class Action, Proposed Settlement, Your Rights, and Options for Your to Consider. Doc. 38-2 5 1 the number of workweeks a Qualified Claimant worked compared with 2 other Qualified Claimants who worked during the same time period. 3 Id. 4 how many other Class Members submit timely and valid Claim Forms. 5 Id. The exact amount a Qualified Claimant receives depends upon 6 For tax purposes, twenty-five percent (25%) of each Settlement 7 Amount will be deemed wages, fifty-percent (50%) expense as expense 8 reimbursement and twenty-five percent (25%) will be treated as 9 penalties and interest. Id. ¶ 9(e). Defendant will pay its share 10 of payroll taxes on any portion of the settlement where payroll 11 taxes are required by law; however, Qualified Claimants will be 12 responsible for correctly characterizing the compensation they 13 receive for tax purposes. 14 The formula relies upon objective evidence of the number of 15 weeks worked during the Class Period. Class Members can review and 16 confirm this information, and the Claim Form permits Class Members 17 to challenge the number of weeks worked. Settlement, ¶ 9(d). 18 19 B. Change in Policy 20 Defendant will provide and/or reimburse Class Members for the 21 cost of steel-toe footwear to the extent Defendant requires such 22 footwear to be worn. Settlement, ¶ 9(c). 23 24 C. Releases 25 The Settlement provides that all Class Members other than 26 those who elect not to participate in the Settlement shall have 27 released the Released Parties from the Released Claims. 28 Notice contains the following release: 6 The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Upon the final approval by the Court of the settlement, each Class Member who does not opt out of the settlement, shall, for the period of time extending from August 1, 2008 to [preliminary approval], fully release and forever discharge Defendant and its respective present and former officers, directors, employees, shareholders, agents, trustees, representatives, attorneys, insurers, parent companies, subsidiaries, divisions, affiliates, predecessors, successors, assigns, and any individual or entity that could be jointly liable with Defendant (the foregoing are collectively referred to hereafter as the Releasees ) from any and all claims, causes of action, damages, wages, benefits, expenses, penalties, debts, liabilities, demands, obligations, attorneys fees, costs, and any other form of relief or remedy at law or in equity, of whatever kind or nature, asserted by the Covered Claims based on the facts alleged in the Second Amended Complaint ( Complaint ) filed in the Lawsuit. Covered Claims means any and all claims, demands, rights, liabilities, and/or causes of action arising out of the facts alleged in the Complaint for: (1) violation of Labor Code § 2802(a); (2) rest-period violations, Labor Code § 226.7; (3) violation of Labor Code § 204; (4) violation of Labor Code § 226(a); (5) penalties pursuant to Labor Code § 203; (6) penalties under California Labor Code § 2699 et seq.; (7) any penalties that could have been brought based on the violations alleged in the Complaint, and (8) violation of Business & Professions Code § 17200, et seq. based on the foregoing alleged violations 17 18 Claim Form, Doc. 38-3, pg. 2. 19 Under the Settlement Agreement, Defendant is further entitled 20 to include the following release language on the back of each 21 settlement check: 22 23 24 25 26 My signature constitutes a full and complete release of Cargill Meat Solutions Corp., and any entity that could be jointly liable, by me for all claims I agreed to settle by submitting a claim form to participate in the settlement of Collins, et al. V. Cargill Meat Solutions Corp., Case No. 1:10-CV-00500-OWW-GSA up to and including the date of preliminary Court approval of the settlement, as well as my acknowledgment that I accept this check as payment in full for all California State Law claims alleged on my behalf in the lawsuit. 27 28 Doc. 38-1, ¶ 10. 7 1 D. Objections and Opt-Out Process Any Class Member who so wishes may object or elect not to 2 3 participate in the Settlement. The Notice fully explains the 4 objection and opt-out procedures.6 Doc. 38-2. 5 6 E. Class Representative Payments; Claims Administrator Payments; 7 Class 8 Litigation Expenses Payment 9 Defendant 10 Counsel has Attorneys' agreed to Fees Payment make the and Class following Counsel payments in addition to and entirely independent of the NSF: * a payment to the California Labor and Workforce Development Agency in the amount of $2,000; * enhancement payments to the Class Representative Plaintiffs each in the amount of $4,000; * Plaintiffs attorneys fees not to exceed $82,500, and litigation costs not to exceed $7,500; * 11 all fees and costs to the claims administrator not to exceed $10,000. Should the claims administrator s cost of administration exceed $10,000, such additional cost will be borne solely by Defendant in addition to the total settlement amount. 12 13 14 15 16 17 18 19 Settlement, ¶ 11(a). The exact amounts requested are subject to the Court's final 20 21 review and approval. Id. 22 23 24 F. Excess Opt-Outs and Right to Rescission Defendant retains the right to nullify the settlement, within 25 26 27 28 6 The Notice provides Qualified Claimants with four options: (1) Participation as a Class Member; (2) Opt Out; (3) Object; or (4) No action. These options are fully explained in the Notice Form, Doc. 38-2. 8 1 ten calendar days of expiration of the opt-out deadline, if ten 2 percent or more of Class Members opt out of the settlement. 3 Settlement, ¶ 22. 4 IV. DISCUSSION. 5 6 A. Conditional Certification of a Class for Settlement 7 Plaintiffs request certification of the Class under Rule 8 23(c)(1) which permits a court to make a conditional determination 9 of whether an action should be maintained as a class action, 10 subject to final approval at a later date. Fry v. Hayt, Hayt & 11 Landau, 2000). 12 certification requires satisfaction of the pre-requisites of Rule 13 23(a) and (b). 198 F.R.D. 461, 466 (E.D. Pa. Conditional Id. 14 15 1. 16 Federal Rule of Civil Procedure 23(a) states in pertinent part 17 that [o]ne or more members of a class may sue or be sued as 18 representative parties on behalf of all. 19 in order to certify a class, a court must be satisfied that: 20 (1) the class is so numerous that joinder of all members is impracticable (the numerosity requirement); (2) there are questions of law or fact common to the class (the commonality requirement); (3) the claims or defenses of representative parties are typical of the claims or defenses of the class (the typicality requirement); and (4) the representative parties will fairly and adequately protect the interests of the class (the adequacy of representation requirement). 21 22 23 24 Rule 23(a) Requirements As a threshold matter, 25 In re Intel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981) 26 (citing Fed. R. Civ. P. 23(a)). 27 28 9 a. 1 2 Numerosity A proposed class must be so numerous that joinder of all 3 members 4 numerosity requirement demands examination of the specific facts 5 of each case and imposes no absolute limitations. 6 of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). 7 is The impracticable. proposed class hourly workers Fed. is R. comprised employed at Civ. of P. 23(a)(1). Gen. Tel. Co. current Defendant The and former 8 nonexempt Cargill Meat 9 Solutions' facility in Fresno, California from August 1, 2008 to 10 the date the Court enters an Order of Preliminary Approval. There 11 are approximately 219 Class Members. 12 the numerosity requirement satisfied when the class comprises 40 or 13 more members. 14 (S.D.N.Y. 1998). 15 class members would serve only to impose financial burdens and clog 16 the court's docket. 17 Here, the joinder of approximately 219 individual current and 18 former employees to hear their several claims would only further 19 clog this Court's already overburdened docket. Courts have routinely found Ansari v. New York Univ., 179 F.R.D. 112, 114 Numerosity is also satisfied where joining all In re Intel Secs. Litig., 89 F.R.D. at 112. 20 21 22 b. Common Questions of Fact and Law Rule 23(a) also demands questions of law or fact common to 23 the class. Fed. R. Civ. P. 23(a)(2). 24 all questions of law or fact be common to every single member of 25 the class. To satisfy the commonality requirement, plaintiffs need 26 only point to a single issue common to the class. Dukes v. 27 Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 2007). 28 exists when there is either a common legal issue stemming from 10 It does not require that Commonality 1 divergent factual predicates or a common nucleus of facts resulting 2 in divergent legal theories. Hanlon v. Chrysler Corp., 150 F.3d 3 1011, 1019 (9th Cir. 1998). In this case, potential Class Members share the following 4 5 legal and factual questions: ¢ Whether Defendant failed to provide nonexempt hourly employees with paid rest periods of not less that ten minutes for every four consecutive hours worked; ¢ Whether Defendant failed to reimburse nonexempt hourly employees for expenses necessarily incurred in the performance of their job duties for Defendant, namely, the costs of acquiring required safety footwear; ¢ Whether Defendant failed to pay nonexempt hourly employees premium pay for each day on which requisite rest periods were not provided or were deficiently provided; ¢ 6 Whether Defendant failed to pay premium pay or reimburse nonexempt hourly employees for necessarily incurred expenses at the time of termination or within 72 hours of resignation; ¢ Whether the above practices violate the Labor Code and Wage Orders. 7 8 9 10 11 12 13 14 15 16 17 18 These common questions of law or fact shared by all 19 prospective class members are sufficient to satisfy the commonality 20 requirement. 21 c. 22 23 Rule Typicality 23(a)(3) demands the claims or defenses of the 24 representative parties are typical of the claims or defenses of the 25 class. 26 Typicality is satisfied if the representatives' claims arise from 27 the same course of conduct as the class claims and are based on the 28 same legal theory. Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). See, e.g., Kayes v. Pac. Lumber Co., 51 F.3d 11 1 1449, 2 plaintiffs have the same claims as other members of the class and 3 are not subject to unique defenses). 4 1463 Because (9th Cir. every 1995) class (claims member was are typical paid under where the named same pay 5 practices as every other class member (nonexempt hourly employees), 6 the Class Representatives' claims are typical of those of the other 7 Class Members. The typicality requirement is satisfied. 8 d. 9 10 The Fair & Adequate Representation final Rule 23(a) prerequisite is satisfied if the 11 representative parties will fairly and adequately protect the 12 interests of the class. 13 resolution of this issue requires that two questions be addressed: 14 (a) do the named plaintiffs and their counsel have any conflicts of 15 interest with other class members and (b) will the named plaintiffs 16 and their counsel prosecute the action vigorously on behalf of the 17 class? 18 Cir. 2000). 19 Fed. R. Civ. P. 23(a)(4). The proper In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th All requirements are satisfied here. 20 Anthony J. 21 Orshansky & Yeremian, LLP, have significant experience litigating 22 class actions, serving as class counsel, representing plaintiffs in 23 wage and hour litigation. 24 Proposed Class Counsel have no conflicts with the class, Id. at ¶26 25 (e), and have devoted a significant amount of time to the lawsuit 26 Id. ¶ 11. 27 28 Orshansky, Additionally, the Esq., and David Proposed class counsel, H. Yeremian, Esq., of Orshanksy Decl., Doc. 38, ¶¶ 3-4. Class Representatives' interests are completely aligned with those of the class - to maximize their 12 1 recovery. Although they will each receive an additional $4,000, 2 this amount is reasonable compensation for the time and expense 3 they spent on this case. Id. ¶ 15. 4 5 2. Certification of a Class under Rule 23(b)(3) 6 Once the threshold requirements of Rule 23(a) are satisfied, 7 a class may be certified only if the class action satisfies the 8 superiority requirements of Rule 23(b)(1), (b)(2), and/or (b)(3). 9 The parties agree for purposes of the Settlement only that 10 certification of the Class is appropriate under Rule 23(b)(3) 11 because questions of law or fact common to the members of the 12 class predominate over any questions affecting only individual 13 members, and ... a class action is superior to other available 14 methods for the fair adjudication of the controversy. 15 Civ. P. 23(b)(3); accord Orshanksy Decl., Doc. 38, ¶ 26(g). Fed. R. 16 17 B. Preliminary Approval of the Settlement 18 In reviewing the settlement, although it is not a court's 19 province to reach any ultimate conclusions on the contested issues 20 of fact and law which underlie the merits of the dispute, a court 21 should weigh the strength of plaintiff's case; the risk, expense, 22 complexity, and likely duration of further litigation; 23 of the proceedings, and the value of the settlement offer. 24 Bank v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992). 25 court should also watch for collusion between class counsel and 26 defendants. 27 28 the stage Chem. The Id. Preliminary approval of a settlement and notice to the proposed class is appropriate: [i]f [1] the proposed settlement 13 1 appears to be the product of serious, informed, noncollusive 2 negotiations, 3 improperly grant preferential treatment to class representatives or 4 segments of the class, and [4] falls with the range of possible 5 approval.... 6 1078, 1079 (N.D. Cal. 2007) (adding numbers). 7 proposed by the parties satisfies this test. [2] has no obvious deficiencies, [3] does not In re Tableware Antitrust Litig., 484 F. Supp. 2d The Settlement 8 9 1. Negotiations 10 11 The Settlement Was the Product of Informed, Arm's Length The Settlement was reached after informed, arm's length 12 negotiations between the parties. Both parties conducted extensive 13 investigation and discovery allowing them to assess the strengths 14 and weaknesses of the case. 15 thousands of documents, including payroll data, time records, and 16 policies and practices for work-related expense reimbursement and 17 workplace safety compliance. 18 parties participated in mediation with an impartial mediator, Mr. 19 Michael Loeb, Esq. 20 non-collusive negotiations. Plaintiffs' counsel had access to Orshanksy Decl., Doc. 38, ¶ 10. Id. at ¶ 11. The The Settlement is the product of 21 22 2. The Proposed Settlement Has No Obvious Deficiencies 23 The Settlement provides for a payment of $150,000 by 24 Defendants, which is substantial given the size of the class, 219 25 Class Members, and limited nature of the alleged violations at 26 issue, SAC, Doc. 32, ¶¶ 23-55. 27 under the Settlement are determined by the number of weeks each 28 Class Member worked between All Settlement Amounts to be paid August 14 1, 2008 and the date of 1 preliminary approval by the Court of the settlement. 2 is not subject to any pre-distribution reductions as Defendant has 3 agreed 4 provisions and structure of the NSF are appropriate, fair, and 5 ensure that the entire $150,000, about $685.00 per member, is 6 directed to class members who submit timely and valid Claim Forms. 7 Defendant will also provide and/or reimburse Class Members for the 8 cost of steel-toe footwear to the extent Defendant requires such 9 footwear to be worn. 10 to The separately Class pay claims Representative administration payments and the This amount costs. Class The Counsel 11 attorneys' fees and costs payment are appropriate, and are subject 12 to court approval at the final approval hearing. 13 Settlement Administrator's fees and costs of approximately $10,000 14 is reasonable. 15 Development Agency in the amount of $2,000 is reasonable. The expected The payment to the California Labor and Workforce 16 17 3. The Settlement Falls Well Within the Range of Possible Approval 18 19 To determine whether a settlement falls within the range of 20 possible approval a court must focus on substantive fairness and 21 adequacy, and consider plaintiffs' expected recovery balanced 22 against the value of the settlement offer. 23 Antitrust Litig., 484 F. Supp. 2d at 1080. 24 In re Tableware If the litigation proceeds, Plaintiffs would face significant 25 risks. For instance, several of the principal claims in this case 26 revolve around the provision of rest periods. 27 employer's obligation to provide rest periods/meal breaks under 28 California law is currently before the California Supreme Court. 15 The meaning of an 1 See Brinker Rest. Corp. v. Superior Court (Hohnbaum), 165 Cal. App. 2 4th 25, 80 Cal. Rptr. 3d 781 (2008) (review granted)); accord 3 Orshanksy Decl., Doc. 38, ¶ 6. 4 impair Plaintiffs' ability to proceed on these causes of action. 5 The remaining claims challenge the legality of Defendant s policies 6 and practices relating to reimbursements and workplace safety gear, 7 among others. 8 allegations during discovery. 9 A defense ruling in Brinker could Defendant sharply disputed the accuracy of these Even if Plaintiffs were to prevail, they would be required to 10 expend considerable additional time and resources potentially 11 outweighing any additional recovery obtained through successful 12 litigation. Additionally, continued litigation would delay payment 13 to the Class Members and increase the amount of attorneys' fees. 14 In light of these risks, the proposed recovery is fair, 15 reasonable, and adequate and is in the best interest of the Class 16 Members in light of all known facts and circumstances. 17 18 4. The Claim Form s Release Is Proper and Not Overly Broad 19 As part of the Settlement, Class Members will be deemed to 20 have released all claims, causes of action, damages, wages, 21 benefits, 22 obligations, attorneys' fees, costs, and any other form of relief 23 or remedy at law or in equity, of whatever kind or nature, asserted 24 by the Covered Claims based on the facts alleged in the Second 25 Amended Complaint [] filed in the Lawsuit. Claim Form, Doc. 38-3, 26 pg. 2. 27 claims, demands, rights, liabilities, and/or causes of action 28 arising expenses, penalties, debts, liabilities, demands, The Claim Form defines "Covered Claims" as any and all out of the facts alleged 16 in the Complaint for: (1) 1 violation of Labor Code § 2802(a); (2) rest-period violations, 2 Labor Code § 226.7; (3) violation of Labor Code § 204; (4) 3 violation of Labor Code § 226(a); (5) penalties pursuant to Labor 4 Code § 203; (6) penalties under California Labor Code § 2699 et 5 seq.; (7) any penalties that could have been brought based on the 6 violations alleged in the Complaint, and (8) violation of Business 7 & Professions Code § 17200, et seq. based on the foregoing alleged 8 violations. Id. 9 These released claims appropriately track the breadth of 10 Plaintiffs' allegations in the action and the settlement does not 11 release unrelated claims that class members may have against 12 defendants. 13 OWW-MJS, 2011 WL 284962, at 7 (E.D. Cal. Jan. 25, 2011)( This form 14 of release is overbroad by arguably releasing all unrelated claims 15 up to the date of the Agreement. ). Cf. Bond v. Ferguson Enter., Inc., No. 1:09-CV-01662- 16 17 5. 18 There Collusion is no evidence 19 preliminarily approved as 20 of collusion. fair and The reasonable, settlement subject to is a narrowing of the release. 21 22 23 C. Proposed Class Notice & Administration Adequate notice is critical to court approval of a class 24 settlement under Rule 23(e). Hanlon, 150 F.3d at 1025. 25 action settlement notice is satisfactory if it generally describes 26 the terms of the settlement in sufficient detail to alert those 27 with adverse viewpoints to investigate and to come forward and be 28 heard. Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th 17 A class 1 Cir. 2004) (internal quotations and citations omitted). 2 The proposed Notice (Doc. 38-2) and the manner of notice 3 agreed upon by the parties (Settlement, Doc. 38-1, ¶¶ 13-14) is 4 the best notice practicable, as required under Rule 23(c)(2)(B). 5 All Class Members can be identified and the Notice and related 6 materials (Claim Form, Doc. 38-3, and Request for Exclusion Form, 7 Doc. 38-4) will be mailed directly to each Class Member. 8 Notice adequately informs Class Members of the nature of the 9 litigation, the essential terms of the Settlement, and how to make claim under 10 a 11 Settlement, 12 Additionally, the Class Notice identifies Class Counsel, specifies 13 the amounts of the Class Representative and CLWD payments, Class 14 Counsel Attorneys' fees and cost, the expense of administering the 15 claims, and explains how to obtain additional information regarding 16 the action and the Settlement. or the Settlement, elect not to object to or The Class participate in comment the on the Settlement. 17 Within ten days of approval of this preliminary settlement 18 agreement, Defendant will transmit to the Claims Administrator the 19 following information concerning each of the approximate 219 Class 20 Members: (1) name; (2) last known home address and telephone 21 number; (3) social security number; and (4) dates of employment 22 during the Covered Period. 23 Administrator will mail the Notice, Claim Form, and Request for 24 Exclusion to Class Members within 20 days following the preliminary 25 approval. 26 Claim Form, Objections, and/or Request for Exclusion Forms no later 27 than 45 days after the Notice is mailed. 28 Administrator will resend improperly completed Claim Forms; and Id. ¶ 14. Settlement, ¶ 13. The Settlement Class Members must submit and postmark their 18 Id. ¶ 15. The Settlement 1 Class Members who receive a re-mailed Claim Form will have 15 days 2 to correct, complete, and/or sign the Claim Form. Id. The Claim Form includes each individual Class Member's weeks 3 4 worked and estimated Settlement Award. 5 employment records will control, however, the parties will make a 6 good faith effort to resolve any dispute over the proper size of a 7 particular claim. 8 it will be referred to the claims administrator for determination. 9 Id. Forms Defendant's If the parties cannot resolve the dispute, 10 The 11 Administrator. 12 Administrator with the Class Data List that the administrator will 13 use to calculate each Class Member s proportional share. 14 Claims Administrator is responsible for calculating the payments, 15 issuing the payments and calculating and withholding all required 16 state and federal taxes, if any. 17 calculation of payments, the Claims Administrator will provide 18 Plaintiffs and Defendant with a report listing the amount of all 19 payments to be made to each Qualified Claimant. 20 payment will be filed with the Court and provided to the Parties 21 counsel as directed by the Court. will be Id. ¶ 17. sent directly to the Claims Defendant will provide the Claims Id. Id. The Upon completion of the Id. Proof of Id. The procedures set forth in the Settlement provide the best 22 23 Claim Id. Id. ¶ 9(d). possible notice to the Class Members. 24 25 D. Rust Consulting, Inc. Is an Appropriate Settlement 26 Administrator 27 The parties have agreed upon and recommend that the court 28 appoint Rust Consulting, Inc., 19 to serve as the Settlement 1 Administrator. Rust Consulting's proposed fee is $10,000. 2 Settlement, ¶ 11(c). 3 administration exceed $10,000, such additional cost will also be 4 paid solely by Defendant. Should the claims administrator s cost of Id. 5 6 E. The parties submit the following schedule for approval of the 7 8 Settlement Approval Schedule Settlement: 9 10 Timing 11 March 17, 2011 - 10 calendar Defendant provides Claims 12 days after preliminary Administrator mailing addresses 13 approval of settlement. for Class Members. 14 March 25, 2011 - Within 20 Claims Administrator mails 15 calendar days after Notice Packet to Class Members. 16 preliminary approval of 17 settlement. 18 May 9, 2011 - 45 calendar Deadline for Class Members to 19 days after preliminary submit Claim Form, Exclusion 20 approval of settlement. Form or Objections. 21 May 30, 2011 - 28 calendar Plaintiffs file Motion for Final 22 days before final approval of Approval of Class Action 23 hearing. Settlement. 24 June 27, 2011 at 10:00 a.m. Final Approval Hearing. 25 /// 26 /// 27 /// 28 Event /// 20 V. CONCLUSION 1 2 For all the reasons set forth above: 3 (1) The Settlement Class is conditionally certified; 4 (2) The Class Settlement is preliminarily approved; 5 6 (3) Anthony J. Orshansky, Esq., and David H. Yeremian, Esq., 7 8 of Orshansky & Yeremian, LLP, are appointed Class Counsel; 9 (4) The named plaintiffs, Tyrus Collins and James Greer, are 10 11 appointed Class Representatives; 12 (5) Rust Consulting, Inc. is appointed Claims Administrator; 13 14 and 15 (6) The Class Notice and related materials are approved for 16 17 distribution; 18 19 IT IS SO ORDERED. 20 Dated: aa70i8 March 8, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 21
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