Jerome Davis v. Brown Group Retail, Inc., et al, No. 1:2013cv01211 - Document 63 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS re: Preliminary Approval of Class Action Settlement. Fourteen Day Deadline or Statement of Nonopposition (Doc. 52). Referred to Judge O'Neill. Within fourteen (14) days of service of this recommendation, any pa rty may file written objections to these findings and recommendations with the Court and serve a copy on all parties. The parties are advised that if they do not object to this Recommendation, each counsel shall file of a statement of non-opposition, as this will shorten the objection period and facilitate the adjudication of this motion by the District Court Judge. signed by Magistrate Judge Barbara A. McAuliffe on 5/7/2015. (Herman, H)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 FRESNO DIVISION 7 8 JEROME DAVIS and PRISCILLA HUMPHREY, etc., et al., 9 Plaintiffs, 10 v. 11 12 BROWN SHOE COMPANY, INC., a New York corporation doing business as Famous Footwear, et al., 13 Defendants. 14 15 /// 16 17 /// 18 19 /// 20 21 /// 22 23 /// 24 25 /// 26 27 28 /// Case No. 1:13-cv-01211-LJO-BAM FINDINGS AND RECOMMENDATIONS RE: PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT FOURTEEN DAY DEADLINE OR STATEMENT OF NONOPPOSITION (Doc. 52) 1 On April 24, 2015, this Court conducted a hearing on Plaintiffs’ Motion for 2 Preliminary Approval of Class Action Settlement (the “Motion”). Having considered 3 the Motion, the points and authorities and declarations submitted in support of the 4 Motion (Doc. 52), and the supplemental memorandum of points and authorities and the 5 revised settlement documents (Doc. 62), it is recommended that the Motion for 6 Preliminary Approval of Class Settlement be granted, subject to the following findings 7 and orders: 8 9 10 11 12 13 1. This Order incorporates by reference the definitions in the Settlement Agreement, and all terms defined therein shall have the same meaning as set forth in the Settlement Agreement. 2. For clarity, the term “Defendant” means BG Retail, LLC d/b/a/ Famous Footwear, erroneously sued as Brown Shoe Company, Inc. 3. The Settlement Class shall be conditionally certified for settlement 14 purposes only and shall consist of all persons who are or were employed by Defendant 15 in a non-exempt, hourly-paid position in any of Defendant’s California Famous 16 Footwear retail locations from June 4, 2009, until the date of Preliminary Approval. 17 4. The class action settlement set forth in the Class Action Settlement 18 Agreement (“Settlement Agreement” or “Settlement”), entered into among the Parties 19 and their counsel, is preliminarily approved as it appears to be proper, to fall within the 20 range of reasonableness, to be the product of arm’s-length and informed negotiations, to 21 treat all Class Members fairly, and to be presumptively valid, subject only to any 22 objections that may be raised at or before the final approval hearing. The Court further 23 finds that Plaintiffs’ counsel conducted extensive investigation and research, and that 24 they were able to reasonably evaluate Plaintiffs’ position and the strengths and 25 weaknesses of their claims and the ability to certify them. Plaintiffs have provided the 26 Court with enough information about the nature and magnitude of the claims being 27 settled, as well as the impediments to recovery, to make an independent assessment of 28 the reasonableness of the terms to which the parties have agreed. Page 1 1 5. The Court also finds that settlement now will avoid additional and 2 potentially substantial litigation costs, as well as delay and risks if the Parties were to 3 continue to litigate the action. 4 6. The Court preliminarily approves the Settlement Agreement, including all 5 the terms and conditions set forth therein and the Class Settlement Amount and 6 allocation of payments. 7 7. The rights of any potential dissenters to the proposed Settlement are 8 adequately protected in that they may exclude themselves from the Settlement and 9 proceed with any alleged claims they may have against Defendant, or they may object to 10 the Settlement and appear before this Court. However, to do so they must follow the 11 procedures outlined in the Settlement Agreement and Notice of Class Action Settlement. 12 Failure to follow the procedures outlined in the Settlement Agreement and Notice of 13 Class Action Settlement for making objections shall result in waiver and the objector 14 shall be forever foreclosed from challenging any of the terms of the Settlement. 15 8. By stipulation of the Parties, the Court hereby grants Plaintiffs leave to file 16 their proposed Second Amended Complaint, which adds Jennifer Carrow and Sabrina 17 Rowell as additional named plaintiffs. Plaintiffs are to file the Second Amended 18 Complaint within two days of this Order. By stipulation of the Parties, Defendant shall 19 not be required to file a responsive pleading to the Second Amended Complaint, rather, 20 Defendant’s Answer to the First Amended Complaint shall be deemed an Answer to the 21 Second Amended Complaint. 22 23 24 9. The Court approves, as to form and content, the proposed Notice of Class Action Settlement and Claim Form (“Notice Packet”). (Doc. 62. pg. 43). 10. The Court directs the mailing, by First-Class U.S. mail, of the Notice 25 Packets to Class Members in accordance with the schedule set forth below and the other 26 procedures described in the Settlement Agreement. The Court finds that the method 27 selected for communicating the preliminary approval of the Settlement Agreement to 28 Class Members is the best notice practicable under the circumstances, constitutes due Page 2 1 2 and sufficient notice to all persons entitled to notice, and thereby satisfies due process. 11. The Court appoints Jerome Davis, Priscilla Humphrey, Jennifer Carrow, 3 and Sabrina Rowell as the Class Representatives for the Settlement Class conditionally 4 certified by this Order. The Court appoints Capstone Law APC as Class Counsel. The 5 Court finds that counsel have demonstrable experience litigating, certifying, and settling 6 class actions, and will serve as adequate counsel for the Class conditionally certified by 7 this Order. 8 12. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Court approves and appoints Simpluris, Inc. as the Claims Administrator, whose fees and expenses shall not exceed $60,000. 13. The following dates shall govern for purposes of this Settlement: Date May 18, 2015 (or not later than 10 calendar days after the Court grants preliminary approval of the Settlement Agreement, if later) May 28, 2015 (or not later than 10 calendar days after the Defendant produces the class list, if later) June 26, 2015 (or not later than 30 calendar days after the Claims Administrator mails the Notice Packets, if later) July 16, 2015 Event Last day for Defendant to produce the class list to the Claims Administrator. Last day for the Claims Administrator to mail Notice Packets to all Class Members. Last day for the Claims Administrator to mail postcard reminders to non-responsive Class Members. Last day for Class Counsel to file the Motion for Attorneys’ Fees, Costs, and Class Representative Incentive Awards. July 27, 2015 (or not later than 60 calendar Last day for Class Members to mail Claim days after the Claims Administrator mails Forms, Requests for Exclusion, or the Notice Packets, if later) Objections to the Settlement. August 14, 2015 Last day for Plaintiffs to file the Motion for Final Approval of Class Action Settlement. September 11, 2015 at 9:00 a.m. Hearing on Motion for Final Approval of Class Action Settlement and Motion for Attorneys’ Fees, Costs, and Class Representative Enhancement Payments. 27 28 Page 3 1 2 The Court expressly reserves the right to continue or adjourn the final approval hearing for time to time without further notice to the Class Members. 3 4 These Findings and Recommendations are submitted to the district judge 5 assigned to this action, pursuant to Title 28 of the United States Code section 6 636(b)(1)(B). Within fourteen (14) days of service of this recommendation, any party 7 may file written objections to these findings and recommendations with the Court and 8 serve a copy on all parties. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 10 magistrate judge’s Findings and Recommendations pursuant to Title 28 of the United 11 States Code section 636(b)(1)(C). A failure to file objections within the specified time 12 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F. 3d 834, 839 13 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F. 2d 1391, 1394 (9th Cir. 1991); Martinez 14 v. YIst, 951 F. 2d 1153 (9th Cir. 1991). 15 16 The parties are advised that if they do not object to this Recommendation, each 17 counsel shall file of a statement of non-opposition, as this will shorten the objection 18 period and facilitate the adjudication of this motion by the District Court Judge. 19 20 IT IS SO ORDERED. 21 Dated: 22 /s/ Barbara May 7, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 Page 4
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