Merced et al v. Nevada Property 1, LLC, No. 2:2020cv00920 - Document 46 (D. Nev. 2023)
Court Description: ORDER Granting Order Approving Class Action Settlement and Attorney's Fees and Cost. This action is dismissed with prejudice. See Order for Details. Signed by Judge Richard F. Boulware, II on 5/3/2023. (Copies have been distributed pursuant to the NEF - JQC)
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Merced et al v. Nevada Property 1, LLC Doc. 46 Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 1 of 6 1 2 3 4 5 6 7 8 Sean K. Claggett, Esq. Nevada Bar No. 8407 William T. Sykes, Esq. Nevada Bar No. 9916 Brian Blankenship, Esq. Nevada Bar No. 11522 CLAGGETT & SYKES LAW FIRM 4101 Meadows Lane, Suite 100 Las Vegas, Nevada 89107 (702) 655-2346 – Telephone (702) 655-3763 – Facsimile sclaggett@claggettlaw.com wsykes@claggettlaw.com brian@claggettlaw.com Attorneys for Plaintiffs 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 DEON MERCED, an individual; SERTHA CASE NO.: 2:20-CV-00920-RBF-VCF EVANS, an individual; and each of them on behalf of all other similarly situated, FINAL ORDER APPROVING CLASS ACTION SETTLEMENT Plaintiffs, AND ATTORNEY’S FEES AND COSTS v. 12 13 14 15 16 17 18 NEVADA PROPERTY 1, LLC d/b/a THE COSMOPOLITAN LAS VEGAS; DOES I through V, inclusive; and ROE CORPORATIONS I through V, inclusive, Defendants. _______________________________________ 19 Plaintiffs Deon Merced and Sertha Evans, together with the Opt-In 20 Plaintiffs (collectively “Plaintiffs”), and Defendant Nevada Property 1, LLC d/b/a 21 The Cosmopolitan Las Vegas (“Defendant”) (hereinafter collectively referred to 22 as “the Parties”), by and through their attorneys of record, hereby submit this 23 24 -1Dockets.Justia.com Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 2 of 6 1 Proposed Final Order Approving Class Action Settlement and Attorney’s Fees 2 and Costs. 3 The Parties’ Amended Joint Motion for Final Certification of Collective 4 Action and Final Approval of Collective Action Settlement came on for hearing 5 before the Honorable Judge Richard F. Boulware, II, on April 17, 2023, in 6 chambers. The Court, having considered the papers and pleadings submitted in 7 support of the Motion, HEREBY ORDERS AS FOLLOWS: 8 9 10 11 1. The Court grants the Motion based upon the terms set forth in the Settlement Agreement and Release (“Settlement”) between Plaintiffs and Defendant. 2. This Court has jurisdiction over the subject matter of this litigation 12 and all matters relating thereto, including Plaintiffs, all settlement class 13 members, and Defendant. 14 3. Pursuant to 29 U.S.C. § 216, the Court certifies as final, for 15 purposes of settlement only, a collective action under the Fair Labor Standards 16 Act (“FLSA”). The class shall consist of Plaintiffs Deon Merced, Sertha Evans, 17 and all Opt-In Plaintiffs who worked as Slot Guest Service Representatives 18 and/or as Cage Cashiers in the High Limit Slots cage for Defendant The 19 Cosmopolitan Las Vegas between March 23, 2018, and October 25, 2020; timely 20 filed valid opt-in forms, as defined in the Settlement; and filed valid Claims 21 Forms on or before March 31, 2022, pursuant to this Court’s Order Granting 22 Motion for Approval of Collective Action Settlement (ECF No. 35). 23 24 -2- Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 3 of 6 1 4. The Parties’ Settlement in the amount of Eight Hundred Sixty- 2 Three Thousand Forty Dollars and Zero Cents ($863,040.00) is the product of 3 contested litigation to resolve bona fide disputes over the availability and 4 amount of wages allegedly withdrawn from the tip pool over the relevant time 5 period. 6 5. The Court finds that the Settlement is within the range of 7 reasonableness and that this amount is fair, adequate, and reasonable as to all 8 potential members of the Class when balanced against the probable outcome of 9 further litigation, and ultimately relating to liability and damages issues. 10 6. As ordered by this Court, on December 13, 2021, JND Legal 11 Administration LLC, the Claims Administrator, mailed out Notices of 12 Settlement and Claims Forms to Class Members. 13 7. As of March 31, 2022, the Claim Deadline, the Claims 14 Administrator reported timely receipt of 63 Claim Forms, representing a return 15 rate of 82.90%. 16 8. No Class Members objected to the Settlement. 17 9. The 63 participating Class Members will be paid their portion of 18 the Net Settlement Fund, estimated to be $545,784.02. 19 20 10. Consistent with the Parties’ Settlement, the remaining Net Settlement Fund, $62,506.011, shall be distributed to cy pres beneficiary Dress 21 22 Pursuant to the Parties Settlement, Defendant must fund this payment on or before November 30, 2023, which is thirty (30) days after the expiration of the statute of limitations. 1 23 24 -3- Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 4 of 6 1 for Success Southern Nevada, an organization that empowers women to achieve 2 economic independence by providing professional support, attire, and tools 3 related to employment. The Court finds a sufficient nexus between the Class 4 Members and the cy pres beneficiary. See Dennis v. Kellogg Co., 697 F.3d 858, 5 865 (9th Cir. 2012) (“To avoid the many nascent dangers to the fairness of the 6 distribution process, we require that there be a driving nexus between the 7 plaintiff class and the cy pres beneficiaries.”). 8 9 11. The Court appoints Deon Merced and Sertha Evans as Class Representatives and approves an award of Fifteen Thousand Dollars and Zero 10 Cents ($15,000.00) each to Merced and Evans for their services as Class 11 Representatives in this matter.2 12 13 12. The Court appoints Sean K. Claggett, of Claggett & Sykes Law Firm, as Class Counsel. 14 13. Plaintiffs’ request for Class Counsels’ fees in the amount of Two 15 Hundred Fifteen Thousand Seven Hundred Sixty Dollars and Zero Cents 16 ($215,760.00) is reasonable. This amount represents 25% of the Gross 17 Settlement Fund. “The typical range of acceptable attorneys’ fees in the Ninth 18 Circuit is 20 percent to 33.3 percent of the total settlement value with 25 percent 19 considered a benchmark percentage.” Barbosa v. Cargill Meat Sol. Corp., 297 20 F.R.D. 431, 448 (E.D. Cal. 2013) (citing Powers v. Eichen, 229 F.3d 1249, 1256 21 22 Defendant already paid these service awards directly due to the 48-hour timing required by the Parties’ agreement. Thus, this obligation has been satisfied and this amount is not required to be deposited into the Settlement Fund. 2 23 24 -4- Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 5 of 6 1 (9th Cir. 2000)). “In assessing whether the percentage requested is fair and 2 reasonable, courts generally consider the following factors: (1) the results 3 achieved; (2) the risk of litigation; (3) the skill required; (4) the quality of work 4 performed; (5) the contingent nature of the fee and the financial burden; and (6) 5 the awards made in similar cases.” Sinanyan v. Luxury Suites Int’l, LLC, 2018 6 U.S. Dist. LEXIS 21403, at *11 (D. Nev. Feb. 8, 2018) (citing Vizcaino v. 7 Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002)). Having considered 8 these factors, the Court finds the request for Class Counsels’ fees in the amount 9 of $215,760.00 to be reasonable. 10 14. The Court finds Plaintiffs’ request for Class Counsels’ costs in the 11 amount of Eight Thousand Dollars and Zero Cents ($8,000.00) fair, adequate, 12 and reasonable. 13 15. 14 effectuate the settlement terms as set forth in the Settlement. 15 16 The Court directs the Parties and Claims Administrator to 16. Having found this amount to be reasonable, the Court directs Defendant within seven (7) calendar days of the Settlement Effective Date3 to 17 18 19 20 21 22 23 24 The Collective Action Settlement Agreement states as follows: “1. Effective Date: “Settlement Effective Date” is defined as the latter of: (1) the date when the time for appeal of the final judgment dismissing Case No. 2:20-cv-00920-RFBVCF (“the Action”) has expired; or (2) the date of the final resolution of any appeal or other judicial review of the Agreement if an appeal has been filed and not dismissed.” 3 -5- Case 2:20-cv-00920-RFB-VCF Document 46 Filed 05/03/23 Page 6 of 6 1 deposit proceeds for the Settlement Fund (less $30,000 for the Service Awards 2 which have already been paid and the $62,507.01 for the cy pres beneficiary). 3 17. The Court directs the Claims Administrator to pay Class Counsel 4 fees and costs in the amount of $215,760.00 and $8,000.00, respectively, within 5 thirty (30) days of receipt of the settlement proceeds. 6 18. The Court directs the Claims Administrator to issue payment to the 7 Settlement Class Members within thirty (30) days of receipt of settlement 8 proceeds. 9 19. The Court directs the Net Settlement Funds, in the amount of 10 $62,506.01, be issued to cy pres beneficiary Dress for Success Southern Nevada 11 in accordance with the Settlement Agreement and this Order. 12 20. This action is dismissed with prejudice. 13 21. The Court retains jurisdiction to enforce the terms of the 14 15 16 17 18 19 20 21 Settlement. Dated: April 28, 2023. CLAGGETT & SYKES LAW FIRM FISHER & PHILLIPS, LLP /s/ Sean K. Claggett Sean K. Claggett, Esq. 4101 Meadows Lane Suite 100 Las Vegas, Nevada 89107 Attorneys for Plaintiffs /s/ Lisa A. McClane Lisa A. McClane, Esq. 300 S. Fourth Street Suite 1500 Las Vegas, Nevada 89101 Attorneys for Defendant IT IS SO ORDERED: 22 23 24 BBBBBBBBBBBBBBBBBBBBBBBBBBBB BBBBBBBBBBBBBBBBBBBBBBB B 5,&+$5' ) %28/:$5( %28/:$5( ,, 8QLWHG 6WDWHV 'LVWULFW -XGJH -6- 05/03/2023 '$7( BBBBBBBBBBBBBBBBBBBBB
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