Dent v. ITC Service Group, Inc. et al, No. 2:2012cv00009 - Document 38 (D. Nev. 2013)
Court Description: ORDER Adopting 35 Report and Recommendation. Granting 26 Motion for an Order Granting Final Approval of Proposed Class Action Settlement. Granting 27 Motion for Order Granting Proposed Award of Attorneys Fees and Enhanced Payment to the Representative Plaintiff. Signed by Judge James C. Mahan on 9/27/2013. (Copies have been distributed pursuant to the NEF - SLR)
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Dent v. ITC Service Group, Inc. et al Doc. 38 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 1 of 7 1 4 Leon Greenberg, NSB 8094 Dana Sniegocki, NSB 11715 Leon Greenberg Professional Corporation 2965 South Jones Boulevard, Ste. E-4 Las Vegas, Nevada 89146 Tel (702)383-6085 Fax (702)385-1827 5 Attorneys for Plaintiffs 2 3 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 DAVID DENT, Individually and on behalf of a class of all similarly situated persons, Case No. 2:12-cv-00009-JCM-VCF [PROPOSED] ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION OF AUGUST 6, v. 2013 AND GRANTING FINAL APPROVAL OF CLASS AND ITC SERVICE GROUP, INC., TIM SAUER, COLLECTIVE ACTION SETTLEMENT, KEVIN CAPPS, AND PATTI CLASS REPRESENTATIVE’S SANDERSON, Defendants. ENHANCEMENT AWARD, ATTORNEYS’ FEES AND COSTS, AND JUDGMENT Plaintiffs, 17 Complaint Filed: January 4, 2012 FAC Filed: February 26, 2013 Trial Date: None Set 18 19 20 21 22 23 24 25 26 27 TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD: Before the Court is Plaintiff’s Motion for Final Approval of Class and Collective Action Settlement, and Plaintiff’s Motion for Award of Attorneys’ Fees and Costs. On August 6, 2013, Magistrate Judge Cam Ferenbach issued a Report and Recommendation that Recommended the Granting of such motion, Docket #35. The Court hereby adopts such Report and Recommendation and incorporates all of the findings and conclusions made therein and makes the following findings and Orders the following relief. The Parties’ hybrid class and collective Settlement in this case was preliminarily approved 28 1 Dockets.Justia.com Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 2 of 7 1 by this Court on March 1, 2013. Pursuant to the Court’s Amended Preliminary Approval Order 2 of March 1, 2013 and the Notice provided to the Class, Magistrate Judge Cam Ferenbach of this 3 Court conducted a final approval hearing on August 2, 2013 and issued a Report and 4 Recommendation that the requested final approval of the settlement be granted in accordance 5 with its proposed terms. Consistent with the Court’s Amended Preliminary Approval Order 6 (“Preliminary Approval Order”), filed and entered March 4, 2013, and as set forth in the Joint 7 Stipulation of Settlement and Release Between Plaintiffs and Defendants (“Stipulation” or 8 “Settlement”) in the Action, and due and adequate notice having been given to all Class Members 9 as required in the Preliminary Approval Order, and the Court having considered all papers filed, 10 objections submitted, arguments made, and proceedings had herein, and otherwise being fully 11 informed and good cause appearing therefor, it is hereby ORDERED, ADJUDGED AND 12 DECREED AS FOLLOWS: 13 14 15 16 17 1. All terms used herein shall have the same meaning as defined in the Stipulation, and the Order shall be referred to herein as “the Final Order.” 2. This Court has jurisdiction over the subject matter of this Action and over all Parties to this Action, including all Class Members. 3. Consistent with the definitions provided in the Stipulation, the “FLSA Plaintiffs” 18 shall consist of all persons employed by Defendants in Arizona, California, Colorado, Florida, 19 Idaho, Kentucky, Missouri, Nevada, North Carolina, Ohio, Texas, Virginia, and West Virginia 20 who received TEC Pay and/or Taxable Vehicle Pay, and worked overtime, between January 4, 21 2009 and March 1, 2013, and who affirmatively opted into the FLSA Settlement by returning 22 timely and valid claim forms electing to opt in as FLSA Plaintiffs and participate in the 23 Settlement. The “Rule 23 Class” shall consist of all persons employed by Defendants in Arizona, 24 California, Colorado, Florida, Idaho, Kentucky, Missouri, Nevada, North Carolina, Ohio, Texas, 25 Virginia, and West Virginia who received TEC Pay and/or Taxable Vehicle Pay, and worked 26 overtime, between January 4, 2009 and March 1, 2013 and who did not submit a valid Request 27 for Exclusion (i.e., do not opt out of the Settlement) as provided for in the Settlement. The only 28 such person to so exclude themselves from the Rule 23 Class is Allen Uran who shall not be part 2 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 3 of 7 1 of the class and whose legal rights will continue unaffected by this Order. Also excluded from 2 the Rule 23 Class are the 17 persons that have been mailed a Notice and Claim Form as provided 3 for in the Preliminary Approval Order but are confirmed to have not received that Notice and 4 Claim Form, such persons being listed on Ex. “1” of the Declaration of Neila Pourhashem of 5 Setttlment Administrator Simpluris, Inc. (“Settlement Administrator”), filed at Docket #29. The 6 Settlement Administrator’s records as to who opts in as FLSA Plaintiffs by returning a valid and 7 timely Claim Form, and as to who opts out of the Rule 23 Class by submitting a valid Request for 8 Exclusion, are final and binding. The FLSA Plaintiffs and the Rule 23 Class are referred to 9 collectively in this Order as the “Settlement Classes” and “Class Member(s).” The Settlement 10 Classes, however, shall not include any person who previously settled or released the claims 11 covered by this Settlement, any person who previously was paid or received awards through civil 12 or administrative actions for the claims covered by this Settlement, or any person who submits a 13 timely and valid Request for Exclusion as provided in this Settlement. 14 4. Distribution of the Notice and Claim Form directed to the Class Members as set 15 forth in the Stipulation and the other matters set forth therein have been completed in conformity 16 with the Preliminary Approval Order, including individual notice to all Class Members who could 17 be identified through reasonable effort, and the best notice practicable under the circumstances. 18 The Notice provided due and adequate notice of the proceedings and of the matters set forth 19 therein, including the proposed Settlement set forth in the Stipulation, to all persons entitled to 20 such Notice, and the Notice fully satisfied the requirements of due process. All Class Members 21 and all Released Claims are covered by and included within the Settlement and this Final Order 22 as provided herein. 23 5. The Court finds the Settlement was entered into in good faith. The Court approves 24 the Settlement set forth in the Stipulation and finds that the Settlement is, in all respects, fair, 25 adequate and reasonable, and directs the Parties to effectuate the Settlement according to its 26 terms. The Court finds that the Settlement has been reached as a result of intensive, serious and 27 non-collusive arms-length negotiations. The Court further finds that the Parties have conducted 28 extensive and costly investigation and research, and counsel for the Parties are able to reasonably 3 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 4 of 7 1 evaluate their respective positions. The Court also finds that Settlement at this time will avoid 2 additional substantial costs, as well as avoid the delay and risks that would be presented by the 3 further prosecution of the Action. The Court has reviewed the benefits that are being granted as 4 part of the Settlement and recognizes the significant value to the Class Members. The Court also 5 finds that the Settlement Classes are properly and finally certified as a class pursuant to Rule 6 23(b)(3) of the FRCP, and as a collective action under 29 U.S.C. 216(b) of the Fair Labor 7 Standard Act, for settlement purposes only. The Settlement is hereby finally approved. 8 6. As of the date of entry of this Final Order, and except as to such rights or claims as 9 may be created by this Stipulation of Settlement, each Class Member fully releases and 10 discharges Defendants, and all past, present and future parent companies, subsidiaries, related or 11 affiliated companies, shareholders, officers, directors, and employees of Defendants, and agents, 12 attorneys, insurers, predecessors, successors and assigns of any of the foregoing, and any 13 individual or entity which could be jointly liable with any of the foregoing (“Released Parties”), 14 from any and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, 15 attorneys’ fees, damages, action or causes of action of any nature under federal law, and state and 16 local law in Arizona, California, Colorado, Florida, Idaho, Kentucky, Missouri, Nevada, North 17 Carolina, Ohio, Texas, Virginia, and West Virginia, arising out of or related to the allegations 18 made in the Action and that reasonably arise out of the facts alleged in the Action, including but 19 not limited to claims for or related to hours worked, overtime or double time wages, wages, 20 minimum wages, regular rate of pay, timely payment of wages at separation, wage statements, 21 payroll records as required by law, methods of payment, additional 401(k) benefits and/or 22 deferred compensation benefits and/or matching benefits for payments received under the 23 Settlement, unfair competition, unfair business practices, unlawful business practices, fraudulent 24 business practices, breach of contract, fraud, misrepresentation, injunctive relief, penalties, 25 punitive damages, liquidated damages, treble damages, interest, fees, costs, punitive damages, 26 liquidated damages, treble damages, and all other claims and allegations made in the Action and 27 that arise out of the facts alleged in the Action from January 4, 2009, up to and through the date 28 of entry of this Final Order (“Released Claims”). In addition, as of the date of entry of this Final 4 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 5 of 7 1 Order, the Class Representative and the Class Members are forever barred and enjoined from 2 instituting or accepting any additional damages, awards or relief for the Released Claims. Only 3 FLSA Plaintiffs release FLSA claims; Class Members who do not opt out of the Rule 23 Class 4 and are not FLSA Plaintiffs do not release the FSLA claims, but do release all other Released 5 Claims. By and through this Settlement, each Class Member forever agrees he/she shall not be 6 entitled to pursue, accept or recover damages for any Released Claims against the Released 7 Parties from January 4, 2009, through and including the date of this Final Order. The Court 8 hereby finds and orders that the Settlement is and constitutes a fair, reasonable and adequate 9 compromise of the Released Claims against Defendants and the Released Parties. 10 7. Neither the Settlement nor any of the terms set forth in the Stipulation is an 11 admission by Defendants, or any of the other Released Parties, nor is this Final Order a finding of 12 the validity of any claims in the Action or of any wrongdoing by Defendants, or any of the other 13 Released Parties. Neither this Final Order, the Stipulation, nor any document referred to herein, 14 nor any action taken to carry out the Stipulation is, may be construed as, or may be used as, an 15 admission by or against Defendants, or any of the other Released Parties, of any fault, 16 wrongdoing or liability whatsoever. The entering into or carrying out of the Stipulation, and any 17 negotiations or proceedings related thereto, shall not in any event be construed as, or deemed to 18 be evidence of, an admission or concession with regard to the denials or defenses by Defendants, 19 or any of the other Released Parties, and shall not be offered in evidence in any action or 20 proceeding in any court, administrative agency or other tribunal for any purpose whatsoever other 21 than to enforce the provisions of this Final Order, the Stipulation, the Released Claims, or any 22 related agreement or release. Notwithstanding these restrictions, any of the Released Parties may 23 file in the Action, or submit in any other proceeding, the Final Order, the Stipulation, and any 24 other papers and records on file in the Action as evidence of the Settlement to support a defense 25 of res judicata, collateral estoppel, release, or other theory of claim or issue preclusion or similar 26 defense as to the Released Claims. 27 28 8. The Court hereby enters judgment, and dismissal of the entire Action with prejudice, as of the filing date of entry of this Final Order, pursuant to the terms set forth in the 5 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 6 of 7 1 Settlement. Without affecting the finality of this Final Order in any way, the Court hereby retains 2 continuing jurisdiction over the interpretation, implementation and enforcement of the Settlement 3 and all orders entered in connection therewith to the fullest extent necessary or convenient to 4 enforce and effectuate the terms of the Settlement and the matters provided for therein. 5 9. The Court hereby finds the settlement payments provided for under the Stipulation 6 of Settlement to be fair and reasonable in light of all the circumstances. The Court, therefore, 7 orders the calculations and the payments to be made and administered in accordance with the 8 terms of the Settlement. 9 10 11 10. The Court hereby confirms Leon Greenberg of the Leon Greenberg Professional Corporation as Class Counsel. 11. Pursuant to the terms of the Settlement, and the authorities, evidence and argument 12 submitted by Class Counsel, the Court hereby awards Class Counsel attorneys’ fees and costs in 13 the amount of $37,500.00 from the Maximum Settlement Amount as final payment for and 14 complete satisfaction of any and all attorneys’ fees and costs incurred by and/or owed to Class 15 Counsel and any other person or entity related to the Class Counsel. The Court further orders that 16 the award of attorneys’ fees and costs set forth in this Paragraph shall be administered pursuant to 17 the terms of the Stipulation of Settlement and transferred and/or made payable to the Leon 18 Greenberg Professional Corporation as Class Counsel in the Action. 19 12. Named Plaintiff, David Dent, has applied for compensation for his time and effort 20 spent on behalf of Class Members, and in exchange for his general release of all potential legal 21 claims against Defendants. The Court hereby approves and orders an Enhancement Award of 22 $15,000.00 to Plaintiff from the Gross Settlement Amount for acting as the Class Representative. 23 13. The Court also hereby approves and orders payment from the Maximum 24 Settlement Amount for actual claims administration expenses incurred by Simpluris, Inc. in the 25 amount of $12,000.00. 26 27 28 14. The Settlement shall become effective upon the Effective Date as provided in the Stipulation. 15. The Court orders the payment schedule be administered as provided within the 6 Case 2:12-cv-00009-JCM-VCF Document 37 Filed 09/26/13 Page 7 of 7 1 2 Implementation Schedule set forth within the Court’s Preliminary Approval Order. 16. Provided the Settlement becomes effective under the terms of the Stipulation of 3 Settlement, the Court also hereby orders the deadline for mailing the Court-approved settlement 4 awards, attorneys’ fees and costs, and service payment is as set forth in the Implementation 5 Schedule within the Preliminary Approval Order, that the deadline for the Claims Administrator 6 to file proof of payment of settlement awards, service payment, attorneys’ fees and costs is as set 7 forth in the Implementation Schedule within the Preliminary Approval Order, and that the 8 deadline for Class Counsel to file a joint request to hold opt-in Class Members to be FLSA 9 Plaintiffs covered by and bound to the Settlement as set forth in the Implementation Schedule 10 within the Preliminary Approval Order. 11 IT IS SO ORDERED. 12 Dated: September 27, 2013 ________________ ________________________________ HONORABLE JAMES C. MAHAN JUDGE OF THE UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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