Moore et al v. Petsmart,Inc et al, No. 5:2012cv03577 - Document 74 (N.D. Cal. 2014)

Court Description: Order granting 40 Motion for Preliminary Approval of Class Action Settlement. Signed by Hon. Edward J. Davila on 5/14/2014.(ejdlc3, COURT STAFF) (Filed on 5/14/2014)

Download PDF

Moore et al v. Petsmart,Inc et al Doc. 74 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 9 SAN JOSE DIVISION 10 11 12 DANETTE M. MOORE, LATRESA MYERS, ALANNA HARRISON and ALISA VALDEZ, individually and on behalf of others similarly situated, 13 14 15 Plaintiffs, v. PETSMART, INC., 16 17 18 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING [Re: Docket Item No. 40] In this putative class action case filed against Defendant PetSmart, Inc. (“Defendant” or 19 “PetSmart”), presently before the Court is Plaintiffs Danette Moore, Latresa Myers, Alanna 20 Harrison, and Alisa Valdez’s (collectively “Plaintiffs”) Motion for Preliminary Approval of Class 21 and Class Action Settlement. See Docket Item No. 40. The motion is unopposed and will be 22 GRANTED for the reasons set forth below. 23 I. BACKGROUND 24 Defendant is a national retail company providing pet supplies and services. The named 25 Plaintiffs are former and current employees of Defendant who were and are employed as pet 26 groomers. This case involves Plaintiffs’ wage and hour claims on behalf of approximately 16,400 27 1 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28 Dockets.Justia.com 1 current and former employees who are eligible to participate in the settlement and are or were 2 employed by Defendant in California between May 23, 2008 and the present. Plaintiffs initiated 3 this class action on May 23, 2012 in the Superior Court of California. See Docket Item No. 1-2. 4 Defendant removed the case to this Court on July 9, 2012. See Docket Item No. 1. 5 Plaintiffs bring the present action for: unpaid compensation, failure to reimburse reasonably incurred work-related expenses, meal and rest period violations, failure to properly calculate 7 vacation pay, failure to timely and properly pay wages due upon termination, failure to provide 8 suitable seats, statutory penalties, interest and attorney’s fees and costs, and specific enforcement 9 United States District Court For the Northern District of California 6 of penalties and restitution of all benefits enjoyed by Defendant for the previous violations. 10 Plaintiffs allege the following causes of action against Defendant: (1) Failure to Provide 11 Reasonable Accommodation Due to Disability (Cal. Gov’t Code § 12940); (2) Failure to Provide 12 Reasonable Accommodation Due to Pregnancy (Cal. Gov’t Code § 12945); (3) Failure to Engage 13 in Interactive Process (Cal. Gov’t Code § 12940(n)); (4) Wrongful Termination in Violation of 14 Public Policy; (5) Failure to Pay Minimum Wages on behalf of the Groomer Class (Lab. Code § 15 1194 and IWC Wage Order 7-2001 § 4); (6) Failure to Pay Agreed Upon Wages for All Hours 16 Worked on behalf of the Groomer Class (Lab. Code § 223 and IWC Wage Order 7-2001 § 4); (7) 17 Failure to Provide Meal Periods on behalf of the Meal Period Class (Lab. Code §§ 226.7, 512, and 18 IWC Wage Order 7-2001 § 11); (8) Failure to Provide Rest Periods on behalf of the Meal Period 19 Class (Lab. Code §§ 226.7, 512, and IWC Wage Order 7-2001 § 12); (9) Failure to Provide Rest 20 Periods on behalf of the Rest Period Class (Lab. Code §§ 226.7, 512, and IWC Wage Order 7-2001 21 § 12); (10) Failure to Reimburse Business-Related Expenses and Provide Tools on behalf of the 22 Tool Class (Lab. Code § 2802 and IWC Wage Order 7-2001 § 9(B)); (11) Failure to Pay Wages 23 Due Upon Termination (Lab. Code §§ 201, 202, 203); (12) Failure to Provide Accurate Itemized 24 Wage Statements (Lab. Code § 226); (13) Violation of Business & Professions Code §§ 17200 et 25 seq.; (14) PAGA Claim for Failure to Provide Suitable Seats (Lab. Code §§ 1198, 2698 et seq. and 26 27 28 2 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 IWC Wage order 7-2001 § 14); and (15) PAGA Claim for Civil Penalties (Lab. Code § 2698 et 2 seq.). 3 The parties reached a settlement after mediation with an experienced mediator. Dkt. No. 40 at 6. On January 31, 2014, Plaintiffs filed the present motion for provisional certification of 5 settlement class, preliminary approval of class action settlement, approval of class notice and 6 notice plan, appointment of class counsel and class representatives, and setting a final approval 7 hearing. Dkt. No. 40. Objection was filed by Cassandra Pace. See Docket Item No. 44. The 8 hearing was held on March 7, 2014. See Docket Item No. 58. The Court ordered the parties to 9 United States District Court For the Northern District of California 4 submit supplemental briefings, which were filed on March 28, 2014. See Docket Item Nos. 66, 68. 10 II. LEGAL STANDARD 11 A. Class Certification 12 A party seeking class certification must provide facts sufficient to satisfy the requirements 13 of Federal Rule of Civil Procedure 23. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308-09 14 (9th Cir. 1977). Under Rule 23(a), a class may only be certified if (1) the class is so numerous that 15 joinder of all members is impracticable; (2) there are questions of law or fact common to the class; 16 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the 17 class; and (4) the representative parties will fairly and adequately protect the interests of the class. 18 Fed. R. Civ. P. 23(a). 19 In addition, the party seeking certification must show that the action falls within one of the 20 three subsections of Rule 23(b). In this case, Plaintiff seeks certification pursuant to 23(b)(3), 21 which permits certification of cases where “the court finds that the questions of law or fact 22 common to class members predominate over any questions affecting only individual members, and 23 that a class action is superior to other available methods for fairly and efficiently adjudicating the 24 controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiffs bear the burden of demonstrating that they have 25 met the requirements of Rule 23(a) as well as the predominance and superiority requirements of 26 27 28 3 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 Rule 23(b)(3). See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), 2 amended by 273 F.3d 1266 (9th Cir. 2001). 3 A trial court has broad discretion in making the decision to grant or deny a motion for class 4 certification. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). A party 5 seeking class certification must affirmatively demonstrate compliance with Rule 23 and prove that 6 the requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550-51 7 (2011). This requires a court to conduct a “rigorous analysis” that frequently “will entail some 8 overlap with the merits of the plaintiff’s underlying claim.” Id. United States District Court For the Northern District of California 9 10 B. Preliminary Approval Preliminary approval of a class action settlement requires the Court to consider whether 11 “(1) the negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the 12 proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of 13 the class objected.” In re Linerboard Antitrust Litig., 296 F. Supp. 2d 568 (E.D. Pa. 2003). 14 A class action may not be settled without court approval. Fed. R. Civ. P. 23(e). When the 15 parties reach a settlement agreement prior to class certification, “courts must peruse the proposed 16 compromise to ratify both the propriety of the certification and the fairness of the settlement.” 17 Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Settlements reached prior to formal class 18 certification must “withstand an even higher level of scrutiny for evidence of collusion or other 19 conflicts of interest than is ordinarily required under Rule 23(e) before securing the court’s 20 approval as fair” as “there is an even greater potential for a breach of fiduciary duty owed the 21 class.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1168 (9th Cir. 2013). The court must 22 decide whether the settlement is fundamentally fair, adequate, and reasonable. Hanlon v. Chrysler 23 Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). 24 III. DISCUSSION 25 A. Class Certification 26 The proposed settlement class is defined as: 27 28 4 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 All individuals who are or were employed by PetSmart as a Pet Stylist, Groomer, Grooming 2 Trainee, and/or Salon Manager in California at any time during the period from May 23, 3 2008 to the present (“Pet Stylist Settlement Class”); 4 All individuals who are or were employed by PetSmart as an hourly paid, non-exempt 5 employee in California at any time during the period May 23, 2008 to the present in a 6 position other than Pet Stylist, Groomer, Grooming Trainee, or Salon Manager (“Non- 7 Exempt Employee Settlement Class”). 8 United States District Court For the Northern District of California 9 The Settlement Class includes a Settlement Sub-Class defined as follows: All individuals who are members of the Non-Exempt Employee Settlement Class or the Pet 10 Stylist Settlement Class who separated from their employment with PetSmart at any time 11 between May 23, 2009 and the date of preliminary approval of the settlement (“Waiting 12 Time Penalties Settlement Sub-Class”). 13 See Settlement Agreement, Docket Item No. 57, Ex. 1 § I ¶¶ 1.12, 1.14, 1.16, 1.21. 14 The proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a) 15 and 23(b)(3). Class certification is appropriate here because the requirements are met. The 16 proposed class meets the numerosity requirement, as it is comprised of approximately 16,400 17 current and former California employees. There are questions of law or fact common to class 18 members because all claims for relief arise from Defendant’s employment policies, which affected 19 all of the proposed class members similarly. These questions of law or fact predominate over 20 questions affecting only individual members and a class action is superior to other methods of 21 resolving these claims. Plaintiffs’ claims are typical of those of the putative class, as they were 22 subjected to the same employment policies and suffered sufficiently similar damages flowing from 23 Defendant’s conduct. Further, Plaintiffs and their counsel will fairly and adequately protect the 24 interests of the class. Plaintiffs’ interests are representative of and consistent with the interests of 25 the proposed class and their participation in this litigation demonstrates that they have and will 26 27 28 5 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 continue to protect the interests of the class. Additionally, the proposed class counsel has 2 previously engaged in similar litigation and is experienced in employment class action cases. 3 B. Proposed Settlement 4 Plaintiffs argue that the settlement is fair, reasonable, and adequate in light of the risk and complexity of further litigation. In the settlement, Defendant will pay a maximum of 6 $10,000,000.00 (“Total Settlement Amount”), which includes all payments to the Settlement Class 7 Members, attorneys’ fees and costs, California Labor and Workforce Development Agency 8 (“LWDA”), all payroll tax obligations of Plaintiffs, Settlement Class Members, and Defendant 9 United States District Court For the Northern District of California 5 arising out of the settlement, and the costs of settlement administration. The Settlement 10 Administrator will not exceed $105,000 in administering the settlement. The parties have chosen 11 Simpluris to administer the settlement. Penalties in the amount of $50,000 authorized by the 12 Private Attorneys General Act (“PAGA”) will also be deducted, of which 75% ($37,500) will be 13 paid to the LWDA and 25% ($12,500) will be available for distribution to Settlement Class 14 Members, and all employer payroll taxes. Once these deductions are made, the balance of the 15 Total Settlement Amount ($6,494,000) will be available for distribution to Settlement Class 16 Members (“Net Distribution Amount”). 17 To the extent that any Settlement Class Member fails to submit a Claims Form and does not 18 file a request for exclusion, the Individual Settlement Amount attributable to that Settlement Class 19 Member will be redistributed to Claimants within that Settlement Class Members Settlement Class 20 in proportion to their Individual Settlement Amounts, up to three times that amount. Any 21 remaining money of the $6,494,000 will go to the Legal Aid Society-Employment Law Center, a 22 cy pres recipient jointly designated by the parties. The settlement was reached with the assistance 23 of Jeffrey Ross, an experience mediator. 24 25 The Court finds that the settlement appears fair, non-collusive and within the range of possible final approval. The settlement was a product of arm’s-length negotiation before a 26 27 28 6 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 mediator, counsel conducted investigation and discovery sufficient to act intelligently in settling 2 Plaintiffs’ claims, and the proponents of the settlement are experienced with this type of litigation. 3 1. Attorney’s Fees 4 Plaintiffs request attorney’s fees of $3,333,333 (30% of the Total Settlement Amount). As 5 was explained by Plaintiffs’ counsel at the hearing, this amount was negotiated separately from the 6 award to class members. Parties first negotiated the total amount available for class claims and 7 only then negotiated an amount of attorney’s fees. The two available pools of money are 8 completely separate. See Docket Item No. 66 at 6. United States District Court For the Northern District of California 9 If the Court does not approve the full sum of attorney’s fees, the remainder reverts to 10 Defendant. However, there is no reversion of the money available to the class, because the sum 11 negotiated for attorney’s fees was never available to the class. While courts have been skeptical of 12 reversion clauses, Plaintiffs argue that a reversion provision does not invalidate the settlement 13 where the fees are separately negotiated, at arm’s-length, and the results for the class are 14 exceptional. Plaintiffs point out that a number of courts have preliminarily approved settlement 15 even where a reversion clause exists if the court finds there is no collusion. A reversion clause is 16 not dispositive of collusion, although it requires courts to engage in heightened scrutiny to ensure 17 there has been no collusion. In re Bluetooth, 654 F.3d 935, 949 (9th Cir. 2011). 18 In this case, the negotiations were conducted at arm’s-length through a neutral mediator, 19 and the fee discussions were conducted separately after the discussion of the amount Defendant 20 agreed to pay settlement class. Dkt. No. 66-1 ¶ 6. After negotiating the settlement award for class, 21 the mediator suggested 33.33% attorney’s fees and the reversion provision. Dkt. No. 66-1 ¶ 6. 22 Plaintiffs argue that the overall result of the settlement supports the attorney’s fee request. 23 Plaintiffs argue that this settlement is exceptional for the class members as compared to similar 24 settlements reached by PetSmart for similar wage and hour claims. A similar settlement (Sorenson 25 v. PetSmart) included a reversionary amount of $1,950,000 for 21,813 class members, 30% 26 attorney’s fees, and an incentive award of $15,000, but only $750,831 was paid out to employees. 27 7 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28 1 Another settlement (Enabnit v. PetSmart) included the same reversionary sum, with only $337,927 2 paid for 1,790 claims, 29.23% attorney’s fees, and a $30,000 incentive award to named Plaintiff. 3 Plaintiffs estimate that this settlement will likely be more than five times as much per class member 4 than the previously mentioned settlements. The settlement also provides forward-looking relief 5 because, as a result of the settlement, Defendant has revised its compensation policy, now paying 6 employees commission and hourly rate, and providing tools for groomers. 7 Additionally, the theory for unpaid wages for non-productive time and rest breaks used by Plaintiffs was novel and risky. At the time of mediation, the theory had not yet been tested and had 9 United States District Court For the Northern District of California 8 little supporting case law. The claim is also hard to prove because Defendant does not require 10 groomers to record start and end time of grooming job, making it difficult to estimate the average 11 amount of time spent on non-grooming tasks. Dkt. No. 66-1 ¶ 8. 12 Plaintiffs submitted a lodestar amount for attorney’s fees, which amounts to approximately 13 $1,145,000 for 2,531 hours of work by attorneys and paralegals. Dkt. No. 66-1 ¶ 14. Plaintiffs 14 argue that a lodestar multiplier of three is reasonable given the results achieved, risk of litigation, 15 skill required, quality of work, contingent nature of the fee, and is in line with the range 16 customarily approved by California courts in comparable wage and hour class actions. 17 At this stage, the Court grants preliminary approval of the attorney’s fees, subject to final 18 approval. The Court will carefully review all the information concerning the requested attorney’s 19 fees before granting final approval. 20 21 2. Incentive Award to Named Plaintiffs The class representatives request a service award totaling $30,000: $5,000 each for the two 22 Plaintiffs who are former employees and $10,000 each for Plaintiffs who were current employees 23 when the suit was filed. A test applied by courts in this district looks at: (1) the risk to the class 24 representative in commencing the action; (2) the notoriety and personal difficulties encountered by 25 the representative; (3) the amount of time and effort spent by the representative; (4) duration of the 26 litigation; and (5) personal benefit, or lack of, enjoyed by representative as result of litigation. 27 8 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28 1 Plaintiffs argue that class representatives have spent considerable time and effort on this 2 case, actively participating, undertaking risks (pursuing a case against a current employer), and 3 achieving substantial benefit. Representatives have been named in media, which weighs in favor 4 of the incentive awards. Further, the fact that each representative has an individual claim that they 5 have agreed not to settle until after this case is resolved does not create a conflict. Defendant may 6 still defend itself against the Plaintiffs’ individual claims and Plaintiffs may ultimately end up with 7 nothing for their individual claims. 8 United States District Court For the Northern District of California 9 The Court preliminarily approves the awards to named Plaintiffs, as they are within the range of reasonable awards. 10 11 3. Net Distribution Amount The Net Distribution Amount for the settlement class is $6,494,000. No amount of it will 12 revert to Defendant – any unclaimed funds will be redistributed to participating class members, up 13 to three times their original claim amount, with any remaining funds distributed to the cy pres 14 beneficiary. 15 Parties argue that they conducted substantial discovery to determine a reasonable and fair 16 allocation of the net distribution amount. Attorneys reviewed about 33,000 pages of employment 17 records and data, interviewed dozens of class members, and took depositions of two of Defendant’s 18 representatives. The parties agreed that 10% of Defendant’s stores in California would provide a 19 representative sample for purposes of evaluating damages for mediation. Attorneys sampled 20 electronic timekeeping records for 251 stylists and 1,243 non-exempt employees. The Parties 21 agree that the apportionment of the Net Distribution Amount among the different classes with 22 varying claims is fair and reasonable in light of the respective value of the claims, with the 23 estimated damages for the members of the Pet Stylist Class accounting for approximately two- 24 thirds (2/3) of the total damages and the damages for the Non-Exempt Employee Class accounting 25 for the other one-third (1/3). 26 27 28 9 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 1 a. Waiting Time Penalties Settlement Sub-Class The amount allocated to the Waiting Time Penalties Settlement Sub-Class will be deducted 3 from the Net Distribution Amount prior to the calculation of the Individual Settlement Amounts of 4 Claimants. Each member of the Waiting Time Sub-Class who was employed by Defendant in 5 California as a Stylist, Groomer, Grooming Trainee or Salon Manager at the time of separation 6 from employment will be entitled to receive $400 as a waiting time penalty in addition to their 7 Individual Settlement Amount. Each member of the Waiting Time Sub-Class who was employed 8 by Defendant in a position other than Stylist, Groomer, Grooming Trainee or Salon manager at the 9 United States District Court For the Northern District of California 2 time of separation from employment will be entitled to receive $200 as a waiting time penalty in 10 11 12 addition to their Individual Settlement Amount. b. Pet Stylist Class and Non-Exempt Class After payments are deducted for the Waiting Time Penalties Settlement Sub-Class, two- 13 thirds (2/3) of the remaining Net Distribution Amount will be allocated to payment of the 14 Individual Settlement Amounts of the Pet Stylist Class and one-third (1/3) of the remaining Net 15 Distribution Amount will be allocated to those the Non-Exempt Employee Class. 16 The Settlement Administrator will divide the two-thirds (2/3) of the remaining Net 17 Distribution Amount by the total gross compensation paid to Pet Stylists for the time period when 18 such Pet Stylists were employed as Pet Stylists, Groomers, Grooming Trainees and/or Salon 19 Mangers during the Covered Timeframe to determine a multiplier (“Pet Stylist Multiplier”). The 20 Individual Settlement Amount payable to each Pet Stylist will equal that Claimant’s gross 21 compensation earing during the Covered Timeframe multiplied by the Pet Stylist Multiplier. 22 The Settlement Administrator will divide the one-third (1/3) of the remaining Net 23 Distribution Amount by the total gross compensation paid to Non-Exempt Employees for the time 24 period when such Non-Exempt Employees were employed in positions other than Pet Stylists, 25 Groomers, Grooming Trainees and/or Salon Mangers during the Covered Timeframe to determine 26 a multiplier (“Non-Exempt Employee Multiplier”). The Individual Settlement Amount payable to 27 10 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28 1 each Non-Exempt Employee will equal that Claimant’s gross compensation earned during the 2 Covered Timeframe multiplied by the Non-Exempt Employee Multiplier. 3 The Individual Settlement Amounts will be allocated among wages, interest, and civil penalties. Fifty percent (50%) of each Claimant’s Individual Settlement Amount will represent 5 wages and the other fifty percent (50%) shall represent interest and penalties. The portion of each 6 Claimant’s Individual Settlement Amount representing wages will be subject to standard 7 employment tax withholdings with the Settlement Administrator remitting all such tax 8 withholdings directly to the state and federal taxing authorities. The portion of each Claimant’s 9 United States District Court For the Northern District of California 4 Individual Settlement Amount representing interest or penalties will be reported on a Form 1099 10 provided to each Claimant, with the required copies provided to the pertinent taxing authorities. 11 Employer tax obligations on any amounts paid to Plaintiffs and Claimants will be paid from the 12 Total Settlement Amount. 13 4. Release of Claims 14 Settlement Class Members who submit a Claim Form and do not opt out will release wage 15 and hour claims against Defendant. Members who opt out will not be bound by the release of the 16 PAGA claims or remedies pursuant to a final judgment, as was erroneously originally indicated in 17 the Settlement submitted to the Court. Dkt. No. 46 at 2; Dkt. No. 46, Ex. 1 § VI ¶ 6.8. 18 C. Class Counsel 19 Proposed class counsel has conducted research, investigation, and analysis of the litigation 20 and, as discussed above, are experienced and knowledgeable. As such, Graham S.P. Hollis and 21 Marta Manus are preliminary appointed as Class Counsel. 22 D. Notice of Class Certification and Settlement Administration 23 Rule 23 (c)(2)(B) requires “the best notice that is practicable under the circumstances, 24 including individual notice to all members who can be identified through reasonable effort.” Rule 25 23(e)(1) requires reasonable notice to all class members who would be bound by the proposed 26 settlement. The notice must explain in easily understood language the nature of the action, 27 11 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28 1 definition of the class, class claims, issues and defenses, ability to appear through individual 2 counsel, procedure to request exclusion, and the binding nature of a class judgment. Fed. R. Civ. 3 P. 23(c)(2)(B). Here, the parties in this case have created and agreed to perform the following 4 Notice Plan: 5 Defendant will provide contact information for each Settlement Class Member to Simpluris within 15 days of this order. For Class Members who are former employees, Simpluris will 7 undertake reasonable address verification to ascertain the accuracy of the last known address. A 8 Notice of Class Action Settlement and Final Approval Hearing (“Class Notice”) will be mailed no 9 United States District Court For the Northern District of California 6 later than 25 days from the date of this order in a form substantially similar to that attached as 10 Exhibit 2 to the Declaration of Graham Hollis and will include a Claim Form/FLSA Consent Form 11 (“Claim Form”) in a form substantially similar to that attached as Exhibit 3 to the Hollis 12 Declaration. See Hollis Dec’l, Docket Item No. 40-2, Ex. 2-3. In the event that a Class Notice is 13 returned as undeliverable, Simpluris will obtain a current address and re-mail the Notice within 14 three business days. Class Members will have 60 calendar days from the date the Claim Forms are 15 mailed to submit the completed Claim Form or request exclusion. Thirty days after the initial 16 mailing of the Notice, each class member who has not responded will receive a postcard reminder 17 to submit a Claim Form before the deadline. Dkt. No. 57, Ex. 1 § VI ¶¶ 6.1-6.9. 18 Simpluris will maintain a toll-free telephone line and a Settlement Website. The website 19 can be used to file a Claim Form, track the processing of a Claim Form, and contact the Settlement 20 Administrator. 21 The Court finds that the above-described procedures meet the standards of Rule 23. The 22 forms of notice attached as Exhibits 2 and 3 to the Hollis Declaration are hereby approved. 23 IV. CONCLUSION 24 For the reasons stated herein, the motion for preliminary approval is GRANTED as follows: 25 1. This action is certified as a class action only for settlement purposes pursuant to 26 subsections (a) and (b)(3) of Federal Rule of Civil Procedure 23. 27 12 Case No. 5:12-CV-03577-EJD ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS; PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING 28

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.