Vasquez et al v. Coast Roofing, No. 1:2007cv00227 - Document 57 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION and ORDER GRANTING Plaintiffs' Request for Preliminary Approval of Class Action Settlement 52 , signed by Judge Oliver W. Wanger on 11/16/09. (Hellings, J)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 ENRIQUEZ VASQUEZ and JUAN ANDRES RUIZ on behalf of a class of similarly situated employees, 10 1:07-CV-00227 OWW DLB MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS REQUEST FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (DOC. 52). Plaintiffs, 11 v. 12 13 14 15 COAST VALLEY ROOFING, INC., dba COAST ROOFING, and FRANCIS DOMINIC GIANGROSSI, Defendants. 16 17 18 19 I. INTRODUCTION Plaintiffs Enriquez Vasquez and Juan Andres Ruiz brought this action on behalf of themselves and approximately 150 current and 20 former roofing workers employed by Defendants Coast Roofing, Inc. 21 22 ( Coast ) and Francis Dominic Giangrossi, alleging violations of See First Amended Class Action 23 federal and state wage-and-hour laws. 24 Complaint ( FAC ), filed Sept. 19, 2007, Doc. 23. 25 for decision is Plaintiffs motion for preliminary approval of the 26 terms of a negotiated Class Action Settlement. 27 opposition to the motion has been received. 28 1 Before the court Doc. 52. No 1 2 II. FACTUAL BACKGROUND A. Summary of the Litigation. 3 The FAC alleges that Coast failed to pay overtime and minimum 4 wages; failed to pay wages due at termination of employment; failed to 5 provide all legally required meal periods and rest breaks; failed to 6 provide accurate, itemized employee wage statements; and failed to 7 compensate employees for travel time and mileage. The FAC sought to 8 9 certify a class composed of Plaintiffs and similarly situated 10 individuals and to recover back wages, interest, penalties, and 11 attorneys fees and costs from Defendants. 12 Plaintiffs counsel reviewed employee records gathered pursuant 13 to pre-litigation non-discovery methods provided by California Labor 14 Code section 226, interviewed numerous witnesses, and reviewed 15 hundreds of pages of documents from employees before filing the 16 17 complaint. Mallison Decl., Doc. 54, at ¶¶ 36-38. After the complaint 18 was filed, Plaintiffs conducted substantial discovery and non- 19 discovery investigation regarding class certification and the merits 20 of their claims. Id. 21 22 23 24 B. Summary of the Settlement. 1. The Gross Settlement Payment. Under the Settlement, Coast will make a Gross Settlement Payment 25 of $300,000. This payment will cover Settlement Shares to be paid to 26 Class Members who submit valid claims; the employer share of payroll 27 taxes on the Settlement Shares; a $10,000 payment to the California 28 2 1 Labor and Workforce Development Agency for its share of the settlement 2 of civil penalties; the Settlement Administrator s reasonable fees and 3 expenses (estimated to be less than $25,000); and (subject to court 4 approval) payments to Plaintiffs, in addition to their Settlement 5 Shares, of $5,000 each in compensation of their services as Class 6 7 Representatives and payments to Class Counsel of up to $100,000 for See 8 their reasonable attorneys fees and up to $10,000 in expenses. 9 Settlement Agreement ( Settlement ) § III.A-C, attached to Mallison 10 Decl. at Ex. 1, Doc. 54-2. 11 Settlement Payment to Coast. There will be no reversion of the Gross 12 13 2. 14 After the other amounts are deducted, the Gross Settlement Amount 15 (termed the Net Settlement Amount ) will be distributed as Settlement 16 Shares to all Class Members who submit valid claims, based upon the 17 following allocation formula: 18 Payment of Settlement Shares. The Settlement Share for each Claimant will be based on (a) that Claimant s total number of Months of Employment during the Class Period (b) divided by the aggregate number of Months of Employment of all Participating Class Members during the Class Period (with the division rounded to four decimal places) (c) multiplied by the value of the Net Settlement Amount. 19 20 21 22 23 Settlement § III.D.1. The formula relies upon information readily 24 available from Coast s records and is commonly used in wage-and-hour 25 cases. Mallison Decl. at ¶¶ 41-42. 26 27 3. Distribution of Unclaimed Funds and Uncashed Checks. 28 In the event that not all Class Members submit claims, the 3 1 residual will be redistributed to those Class Members who do submit 2 valid claims. 3 to Class Members are not cashed, these monies will be donated to two Settlement § III.D.3. In the event that checks issued 4 public interest organizations on a 50%/50% basis: (1) the California 5 Rural Legal Assistance; and (2) the Boys and Girls Club of 6 7 Bakersfield. Id. § III.F.10. Donation of the residual to these 8 public interest organizations that serve low-income workers is 9 appropriate. See Mallison Decl. at ¶43. 10 4. Scope of the Release. 11 The Settlement provides that all Participating Class Members 12 13 release Defendants as follows: As of the date of the Judgment, all Participating Class Members hereby fully and finally release Coast, and its parents, predecessors, successors, subsidiaries, affiliates, and trusts, and all of its employees, officers, agents, attorneys, stockholders, fiduciaries, other service providers, and assigns, from any and all claims, known and unknown, for or related to all claims based on or arising from the allegations that they were or are improperly compensated under federal, California, or local law (the Class s Released Claims ). The Class s Released Claims include all such claims for alleged unpaid wages, including overtime compensation, missed meal-period and rest-break wages or penalties, and interest; related penalties, including, but not limited to, recordkeeping penalties, paystub penalties, minimum-wage penalties, missed meal-period and rest-break penalties, and waiting-time penalties; and costs and attorneys fees and expenses. 14 15 16 17 18 19 20 21 22 23 24 Settlement § III.G.2. 25 26 27 28 5. Objections and Opt-Out Process Any Class Member who so wishes may object to or comment on the Settlement, or may elect not to participate in the Settlement. 4 The 1 Class Notice fully explains the objection/comment and opt-in 2 procedures. Settlement § III.F.4. 3 4 6. Termination of Settlement. 5 The Settlement provides for confirmatory discovery to be 6 conducted during the approval process. 7 to void the Settlement if this confirmatory discovery reveals any 8 substantial variance from previous discovery or other factual 9 Plaintiffs reserve the right representations made by defendants and relied upon by Plaintiffs as 10 the basis for the Settlement. Plaintiffs do not anticipate any such 11 termination of the settlement, but are conducting this confirmatory 12 13 discovery to ensure the fairness of the Settlement for the class and 14 to fully carry out their obligations to the class and the Court. 15 7. 16 17 Class Representative Payments; Class Counsel Attorneys Fees Payment and Class Counsel Litigation Expenses Payment. By a motion to be filed prior to the Final Approval Hearing, 18 Plaintiffs and their counsel will seek (and Coast has agreed not to 19 oppose), awards to Plaintiffs of Class Representative Payments of 20 $5,000 each, in addition to their Settlement Shares, in compensation 21 for their services as Class Representatives; and a Class Counsel 22 23 Attorneys Fees Payment of not more than $100,000 (or 33-1/3% of the 24 Gross Settlement Amount) and a Class Counsel Litigation Expenses 25 Payment of not more than $10,000. 26 amounts requested, and their justification, will be detailed in a 27 motion, brief, and declaration to be provided in conjunction with the 28 5 Settlement § III.B.1-2. The exact 1 final approval of the settlement. 2 III. DISCUSSION 3 4 5 A. Preliminary Approval of a Settlement Class is Appropriate. In order to approve a class action settlement, a district court 6 must first make a finding that a class can be certified. See, e.g., 7 Molski v. Gleich, 318 F.3d 937, 943, 946-50 (9th Cir. 2003). 8 as here, the parties have entered into a settlement agreement before 9 the district court certifies the class, reviewing courts must pay 10 When, undiluted, even heightened, attention to class certification 11 requirements. Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 12 2003). 13 14 Pursuant to Federal Rule of Civil Procedure 23(c)(1), a court may 15 make a conditional determination of whether an action should be 16 maintained as a class action, subject to final approval at a later 17 date. Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (E.D. Pa. 18 2000). Conditional approval of the class is appropriate where the 19 plaintiff establishes the four prerequisites of Federal Rule of Civil 20 Procedure 23(a) -- (1) numerosity, (2) commonality, (3) typicality, 21 22 23 24 and (4) adequacy of representation -- as well as one of the three requirements of Rule 23(b). See Fry, 198 F.R.D. at 466. Here, the proposed class is comprised of all individuals who have 25 been employed by Coast in California as non-exempt roofing workers 26 during the period from January 31, 2003 to July 31, 2009. 27 approximately 150 Class Members. 28 6 There are 1 1. 2 A proposed class must be so numerous that joinder of all members Numerosity. 3 is impracticable. 4 requirement demands examination of the specific facts of each case Fed. R. Civ. P. 23(a)(1). The numerosity 5 and imposes no absolute limitations. General Tel. Co. of the 6 Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980). Courts have 7 8 routinely found the numerosity requirement satisfied when the class Ansari v. New York Univ., 179 F.R.D. 9 comprises 40 or more members. 10 112, 114 (S.D.N.Y. 1998). 11 similarly situated Class Members satisfies the numerosity requirement. 12 Plaintiffs also must establish impracticability of joinder. 13 Here, the presence of approximately 150 A court should consider not only the class size but other factors as 14 well, including the geographic diversity of class members, the ability 15 16 of individual members to institute separate suits, and the nature of See, Nat l Ass n of 17 the underlying action and the relief sought. 18 Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986). 19 The limited size of any individual plaintiff s recovery is also 20 relevant. 21 Here, where the potential recovery by any individual plaintiff is Edmondson v. Simon, 86 F.R.D. 375, 379 (N.D. Ill. 1980). 22 relatively small, individual members of the class would likely be 23 unwilling or unable to bring institute separate suits. Moreover, the 24 25 26 filing of individual suits by 150 separate plaintiffs would create and unnecessary burden on judicial resources. 27 28 7 1 2. 2 Rule 23(a) also demands questions of law or fact common to the Commonality. 3 class. 4 common to every single member of the class. It does not require that all questions of law or fact be To satisfy the 5 commonality requirement, plaintiffs need only point to a single issue 6 common to the class. Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1225 7 8 (9th Cir. 2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D. 9 Cal. 2000). 10 case, the lawsuit challenges a system-wide practice or policy that 11 affects all of the putative class members. 12 F.3d 849, 868 (9th Cir. 2001); LaDuke v. Nelson, 762 F.2d 1318, 1332 13 Commonality is generally satisfied where, as in this (9th Cir. 1985). Armstrong v. Davis, 275 Differences in the ways in which these practices 14 affect individual members of the class do not undermine the finding of 15 16 commonality. Armstrong, 275 F.3d at 868 (finding commonality 17 requirement satisfied despite individual class members having 18 different disabilities, since all suffered similar harm as a result of 19 defendant s actions). 20 21 Here, for purposes of the Settlement only, the parties agree that common questions of both fact and law exist regarding Coast s alleged 22 failure to abide by federal and state wage-and-hour law, including: 23 ¢ whether Coast failed to provide roofing workers with required meal periods; ¢ whether Coast failed to pay roofing workers wages for meal periods during which they remained on duty; ¢ whether Coast authorized and permitted the roofing workers to take required rest periods; ¢ whether Coast failed to pay roofing workers an 24 25 26 27 28 8 1 additional hour of wages for missed meal periods and rest breaks; 2 ¢ whether Coast failed to pay all legally required minimum wages and overtime compensation to hourly production workers; ¢ whether hourly production workers are owed waiting time penalties because Coast allegedly willfully failed to pay them additional wages for missed meal periods and rest breaks, and for meal periods taken during which they remained on duty, upon the termination of their employment; and ¢ whether Coast s business practices violated Business and Professions Code section 17200 et seq. ¢ whether Coast s failed to pay for travel time and mileage to roofing workers. 3 4 5 6 7 8 9 10 11 These common questions of law or fact are sufficient to satisfy the 12 commonality requirement. 13 3. Typicality. 14 Rule 23(a)(3) demands the claims or defenses of the 15 16 representative parties are typical of the claims or defenses of the Armstrong, 275 F.3d at 868. 17 class. 18 be satisfied when each class member s claim arises from the same 19 course of events, and each class member makes similar legal arguments 20 to prove the defendant s liability. 21 Typicality ... is said ... to Id. Under the rule s permissive standards, representative claims are typical if they are 22 reasonably co-extensive with those of absent class members; they need 23 to be substantially identical. Hanlon v. Chrysler Corp., 150 F.3d 24 25 1011, 1020 (9th Cir. 1998). Plaintiffs claims are essentially 26 identical to those of the class as whole, as they are all roofing 27 workers who were paid under the same pay practices. 28 9 The typicality 1 requirement is satisfied. 2 3 4 4. Adequacy of Representation. The final Rule 23(a) prerequisite is satisfied if the 5 representative parties will fairly and adequately protect the 6 interests of the class. 7 resolution of this issue requires that two questions be addressed: (a) 8 do the named plaintiffs and their counsel have any conflicts of 9 Fed. R. Civ. P. 23(a)(4). The proper interest with other class members and (b) will the named plaintiffs 10 and their counsel prosecute the action vigorously on behalf of the 11 class? In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th 12 13 Cir. 2000). 14 because Plaintiffs have the same interests as the remaining members of 15 the Settlement Class, i.e. obtaining payment for wages unlawfully 16 withheld; there is no apparent conflict between the named Plaintiffs 17 claims and those of the other Class Members; and Plaintiffs are 18 The adequacy of representation requirement is met here represented by experienced and competent counsel who has experience in 19 litigating over 40 wage and hour class action cases. 20 21 5. 22 Having satisfied the prerequisites set forth in Rule 23(a), 23 Plaintiffs must also satisfy one of the three provisions of Rule Rule 23(b)(3). 24 23(b). The parties agree for purposes of the Settlement only that 25 certification of the Class is appropriate under Rule 23(b)(3) because 26 27 28 questions of law or fact common to the members of the class predominate over any questions affecting only individual members, 10 1 and ¦a class action is superior to other available methods for the fair 2 adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). 3 4 5 B. Conditional Certification of an FLSA Collective Action. Section 216(b) of the FLSA allows employees to represent 6 similarly situated co-workers in an action against their employer for 7 failure to pay wages owed. 8 the liability prescribed in either of the preceding sentences may be 9 29 U.S.C. § 216(b) ( An action to recover maintained against any employer ... by any one or more employees for 10 and in behalf of himself or themselves and other employees similarly 11 situated. ). The decision to certify an FLSA collective action is 12 Edwards v. City of Long Beach, 13 within the discretion of the Court. 14 467 F. Supp. 2d 986, 989 (C.D. Cal. 2006). 15 the term similarly situated, and the Ninth Circuit Court of Appeals 16 has not construed it. 17 Ariz. Nov. 2, 2009). 18 The FLSA does not define Singleton v. Adick, 2009 WL 3710717, *4 (D. Singleton succinctly summarized the relevant analytical approach: 19 20 21 22 23 24 25 26 27 28 Courts have taken at least three different approaches to analyzing the issue: (1) a two-tiered case-by-case approach, (2) the incorporation of the requirements of Rule 23 of the current Federal Rules of Civil Procedure, or (3) the incorporation of the requirements of the pre-1966 version of Rule 23 for spurious class actions. [Wood v. Trivita, Inc., 2009 WL 2046048 at *2 (D. Ariz. Jan. 22, 2009).] The majority of courts have adopted the two-tiered approach. See, e.g., Hipp v. Liberty Nat l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001); Edwards, 467 F. Supp. 2d at 990; Hutton v. Bank of America, 2007 WL 5307976 at *1 (D. Ariz. March 31, 2007).... Under the two-tiered approach, during the early stages of litigation, the Court evaluates the case under a lenient standard and may grant conditional certification. Hipp, 252 11 1 F.3d at 1217. The Court then reevaluates, usually prompted by a motion for decertification, the similarly situated question at a later stage, once discovery has produced sufficient information regarding the nature of the claims. Id. at 1217-18. 2 3 4 At the early stage, or the notice stage, the Court makes the similarly situated decision based on the pleadings and any Declarations that have been submitted. Id. at 1218 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)). Because the Court does not have much evidence at this stage, the Court uses a fairly lenient standard. Id. The second determination, under a stricter standard, is based on much more information, which makes a factual determination possible. Id.; Wood, 2009 WL 2046048 at *3. At the second stage, the Court reviews several factors, including: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant that appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001). At all times, Plaintiffs have the burden of proving they meet the similarly situated requirement. See Hipp, 252 F.3d at 1217. 5 6 7 8 9 10 11 12 13 14 15 Singleton, 2009 WL 3710717, *4. 16 Here, at the preliminary stage of FLSA collective action 17 certification, it is sufficient that Plaintiffs and Class Members 18 allege that Coast had a common practice of failing to pay all legally 19 20 required minimum wages and overtime compensation to hourly production 21 workers. 22 certification of a settlement class under the FLSA is appropriate. Subject to final approval at a later date, conditional 23 C. Preliminary Approval of the Settlement Is Appropriate. 24 25 The court must approve any settlement ... of the claims ... of a 26 certified class. Fed. R. Civ. P. 23(e)(1)(A). The court may approve 27 a settlement only after a hearing and on finding that it is fair, 28 reasonable, and adequate. Fed. R. Civ. P. 23(e)(1)(C). 12 Such approval 1 is required to make sure that any settlement reached is consistent 2 with plaintiffs fiduciary obligations to the class. See Ficalora v. 3 Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The court also 4 serves as guardian for the absent class members who will be bound by 5 the settlement, and therefore must independently determine the 6 7 fairness of any settlement. Id. However, the district court s role 8 in intruding upon what is otherwise a private consensual agreement is 9 limited to the extent necessary to reach a reasoned judgment that the 10 agreement is not the product of fraud or collusion between the 11 negotiating parties, and that the settlement, taken as a whole, is 12 fair, reasonable, and adequate to all concerned. FDIC v. Alshuler, 92 13 F.3d 1503, 1506 (9th Cir. 1996). Therefore, the settlement hearing is 14 15 not to be turned into a trial or rehearsal for trial on the merits. 16 Officers for Justice v. Civil Service Com., 688 F.2d 615, 625 (9th 17 Cir. 1982). 18 more than an amalgam of delicate balancing, gross approximations, and 19 rough justice. 20 Ultimately, the district court s determination is nothing Id. In determining whether a settlement agreement is fair, adequate, 21 and reasonable to all concerned, a district court may consider some or 22 all of the following factors: (1) the strength of the Plaintiff s case 23 24 (2) the risk, expense, complexity, and likely duration of further 25 litigation; (3) the risk of maintaining class action status throughout 26 the trial; (4) the amount offered in settlement; (5) the extent of 27 discovery completed; (6) the stage of the proceedings; (7) the views 28 13 1 and experience of counsel; (8) any opposition by class members; (9) 2 the presence of a governmental participant. 3 Pshp., 151 F.3d 1234,1242 (9th Cir.1998). Linney v. Cellular Alaska This list of factors is not 4 exclusive and the court may balance and weigh different factors 5 depending on the circumstances of each case. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993). In addition, where the 6 7 8 payment of attorney s fees is also part of the negotiated settlement, 9 the fee settlement must be evaluated for fairness in the context of 10 the overall settlement. 11 1126 (9th Cir. 2002). 12 Kinsely v. Network Assocs., 312 F.3d 1123, Judicial proceedings under Rule 23, Federal Rules of Civil 13 Procedure, have led to defined procedures and specific criteria for 14 15 settlement approval in class action settlements, described in the 16 Manual for Complex Litigation, Third (Fed. Judicial Center 1995) 17 ( Manual ) § 30.41). 18 describes three distinct steps: 19 20 21 22 23 24 25 26 The Manual s settlement approval procedure (1) Preliminary approval of the proposed settlement at an informal hearing; (2) Dissemination of mailed and/or published notice of the settlement to all affected Class Members; and (3) A formal fairness hearing, or final settlement approval hearing, at which Class Members may be heard regarding the settlement, and at which evidence and argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented. Id. § 30.41. Preliminary approval of a settlement and notice to the proposed 27 class is appropriate: [i]f [1] the proposed settlement appears to be 28 14 1 the product of serious, informed, noncollusive negotiations, [2] has 2 no obvious deficiencies, [3] does not improperly grant preferential 3 treatment to class representatives or segments of the class, and [4] 4 falls with the range of possible approval.... In re Tableware 5 Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007)(citing 6 7 Manual for Complex Litigation, Second § 30.44 (1985)). In addition, 8 the court may find that the settlement proposal contains some merit, 9 is within the range of reasonableness required for a settlement offer, 10 or is presumptively valid. 11 11.25 (1992)). Id. (citing Newberg on Class Actions § 12 1. 13 14 The Settlement Was the Product of Informed, Non-Collusive Negotiations. The Settlement was reached after informed, arm s length 15 negotiations between the parties. Both parties, through independent 16 17 counsel of their choice, conducted extensive investigation and 18 discovery allowing them to assess the strengths and weaknesses of the 19 case. 20 negotiations. As such, the Settlement is the product of non-collusive See Mallison Decl. at ¶¶ 48-56. 21 22 23 2. The Proposed Settlement Has No Obvious Deficiencies. The settlement provides for a payment of $300,000.00 by Coast, a 24 substantial recovery given the relatively small size of the class (150 25 members) and the limited nature of the alleged hourly wage violations 26 at issue. 27 All Settlement Shares to be paid under the Settlement are determined The average settlement share is approximately $1000.00. 28 15 1 by the number of months each Class Member worked in a Covered 2 Position. 3 Class Members on a pro-rata and uncashed checks donated to two worthy The provision for unclaimed funds to be redistributed to 4 charitable concerns is appropriate and ensures that all of the net 5 proceeds of the settlement are directed at class members to the extent 6 7 administratively possible. 8 The Class Representative Payments (of $5000.00 each) and the 9 Class Counsel Attorneys Fees Payment are appropriate, based on their 10 efforts and work by the attorneys, and will nevertheless be subject to 11 court approval at a later stage. 12 Finally, the expected Settlement Administrator s fees and costs of less $20,000 are consistent with 13 wage-and-hour settlements of this type and size. Mallison Decl. at 14 15 16 17 18 ¶48-56. 3. The Settlement Falls Well Within the Range of Possible Approval. To evaluate the range of possible approval criterion, which 19 focuses on substantive fairness and adequacy, courts primarily 20 consider plaintiffs expected recovery balanced against the value of 21 the settlement offer. 22 2d at 1080. In re Tableware Antitrust Litig., 484 F. Supp. The Settlement confers a substantial benefit on the Class 23 Members, while proceeding with litigation imposes significant risks. 24 Although Plaintiffs conducted substantial discovery and 25 26 investigation to corroborate their claims, and will have access to 27 confirmatory discovery as part of the Settlement agreement, Coast 28 vigorously contests liability. The primary cause of action in this 16 1 case revolves around the provision of meal periods. 2 extent of an employer s obligation to provide meal periods under 3 California law is currently before the California Supreme Court, see However, the 4 Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal. App. 5 4th 25 (2008) (review granted)), and resolution of the issue cannot be 6 7 8 predicted with certainty. Moreover, even if Plaintiffs were to prevail, they would be 9 required to expend considerable additional time and resources 10 potentially outweighing any additional recovery obtained through 11 successful litigation. 12 At the least, continued litigation will delay payment to the Class. 13 Finally, as part of the Settlement, the Class Members will be 14 15 deemed to have released all those claims based on or arising from the 16 allegations that they were or are improperly compensated under 17 federal, California, or local law. 18 appropriately track the breadth of Plaintiffs allegations in the 19 action and the settlement does not release unrelated claims that class 20 members may have against defendants. These released claims The Release also protects class 21 members against any complaint related counter or cross-claims, if any, 22 that defendants may have against plaintiffs. 23 24 Preliminarily, the Settlement is fair, reasonable, and adequate 25 and is in the best interest of the Settlement Class in light of all 26 known facts and circumstances, including the risk of the significant 27 delay. 28 17 1 D. The Proposed Notice, the Claim Form, the Form of Election Not to Participate, and the Notice Plan Are Fair and Adequate. 2 Adequate notice is critical to court approval of a class 3 4 settlement under Rule 23(e). Hanlon, 150 F.3d at 1025. A class 5 action settlement notice is satisfactory if it generally describes 6 the terms of the settlement in sufficient detail to alert those with 7 adverse viewpoints to investigate and to come forward and be heard. 8 Churchill Village, LLC v. General Electric, 361 F.3d 566, 575 (9th 9 Cir. 2004)(internal citation and quotation omitted). 10 Here, the proposed Class Notice, Settlement Exh. B, and the 11 manner of notice agreed upon by the parties, Id. § III.E.2., is the 12 13 best notice practicable, as required under Federal Rule of Civil 14 Procedure 23(c)(2)(B). 15 Class Notice and the related materials (the Claim Form, Settlement 16 Exh. C, and the form of Election Not to Participate in Settlement, id. 17 Exh. D) will be mailed directly to each Class Member. 18 All Class Members can be identified and the The Class Notice adequately informs Class Members of the nature of the 19 litigation, the essential terms of the Settlement, and how to make a 20 21 claim, object to or comment on, or elect not to participate in the 22 Settlement. 23 specifies the amounts of the Class Representative Payments, Class 24 Counsel Attorneys Fees Payment, and Class Counsel Litigation Expenses 25 Payment that Plaintiffs and Class Counsel will seek, and explains how 26 Further, the Class Notice identifies Class Counsel, to obtain additional information regarding the action and the 27 Settlement. 28 18 1 Within 14 days after preliminary approval of the Settlement, 2 Coast will provide the Settlement Administrator with a database 3 containing the name and current or last known address of each Class 4 Member, as well as other data necessary to calculate Settlement Shares 5 and administer the Settlement. Settlement § III.E.2.a. The Class 6 7 Notice and other materials will be mailed by the Settlement 8 Administrator within 14 days following Coast s delivery of the Class 9 Members data. 10 will send a reminder notice fourteen days before the deadline for 11 Class Members to submit claims. 12 Id. § III.E.2.b. The Settlement Administrator also Id. § III.E.2.e. The Settlement Administrator will use the National Change of Address database to 13 locate any Class Members whose Notices are returned as undeliverable. 14 15 Id. § III.D. In addition, the Settlement Administrator will publish 16 notice of the Settlement in newspaper(s) of general circulation in 17 area(s) and language(s) designed to reach potential class members. 18 Not later than when the parties file their motion for final 19 approval of the Settlement, the Settlement Administrator will submit a 20 declaration describing efforts made to locate all Class Members. Id., 21 § III.E.2.f. 22 These procedures provide the best possible notice to the Class 23 24 25 26 Members. E. Appointment the Settlement Administrator. The parties have agreed upon and propose that the Court appoint 27 Rust Consulting, Inc., to serve as the Settlement Administrator. 28 19 Rust 1 Consulting is experienced in administering wage-and-hour class action 2 settlements, and has bid its fees and costs for this Settlement at 3 under $25,000. Mallison Decl., ¶40, Exh. 5. 4 5 F. Proposed Schedule. 6 Date 7 11/16/09 Preliminary Approval hearing (all dates that follow assume this date) 11/30/09 Coast to provide to Settlement Administrator with an electronic data base containing Class Member contact information and data necessary to calculate settlement shares (14 days after Preliminary Approval) 12/10/09 Settlement Administrator to mail Notice Packets to all Class Members (10 days after receiving Class Member information) 12/28/09 Date for Settlement Administrator to contact Class Members who have not submitted Claim Forms to remind them of the of the upcoming deadline 1/9/10 Last day for Class Members to comment on or object to Settlement (30 days after mailing of Notice Packets), to mail valid Elections Not to Participate in Settlement, and to mail valid claims for Settlement Shares (30 days after mailing of Notice Packets) 1/14/10 Last day for Settlement Administrator to report to parties on Class Members who have elected not to participate in Settlement or who have submitted claims (7 days after the deadline for submission of Elections Not to Participate in Settlement and Claims Forms) 1/19/10 Last day for Settlement Administrator to 8 9 10 11 Event 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 1 Date 2 serve on the parties and file with the Court statement of due diligence in complying with its obligations under the settlement. 3 4 5 1/22/10 Due date for joint motion for final approval of settlement and plaintiff s separate motion for class representative fee and class counsel s attorneys fees and expenses (28 days before final approval hearing) 2/22/10 Final approval hearing 6 7 8 9 Event 10 IV. CONCLUSION 11 12 For the reasons set forth above, Plaintiffs motion to: 13 (1) Preliminarily certify the Settlement Class is GRANTED; 14 (2) Conditionally certify a FLSA collective action is GRANTED; 15 (3) Preliminarily certify the Settlement is GRANTED; 16 (4) Approve the Proposed Notice, the Claim Form, the Form of 17 Election Not to Participate, and the Notice Plan is GRANTED; 18 (5) Appoint Rust Consulting, Inc. the Settlement Administrator is 19 GRANTED; 20 21 22 (6) Approve the schedule set forth above is GRANTED. SO ORDERED Dated: November 16, 2009 23 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 24 25 26 27 28 21
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