Alvarez v. Direct Energy Business Marketing LLC et al

Filing 282

ORDER: Plaintiff's Unopposed Application for Attorneys' Fees and Costs and Service Awards 272 and Motion for Approval of the Class Action Settlement 274 are granted. For settlement purposes only, the Court certifies the following Set tlement Classes: "Rule 23 Class Members" includes Direct Energy employees who worked as customer service representatives at an Arizona Direct Energy call center in Arizona from October 21, 2013 to August 30, 2018 and whose names are set forth in an exhibit to the Settlement Agreement. "FLSA Opt-in Class Members" means the current and former Customer Service Representatives who worked at a Direct Energy call center in Arizona who validly opted into this Lawsuit and who d id not subsequently opt out and whose names are set forth in an exhibit to the Settlement Agreement. For settlement purposes only, the Court appoints the following attorneys to act as Settlement Class Counsel: Ty Frankel and Patricia Syverson of B onnett, Fairbourn, Friedman & Balint, P.C. For settlement purposes only, the Court appoints Maribel Alvarez as Class Representative. The Court makes the following awards pursuant to the Settlement Agreement: a. $132,602.03 as payment for the F LSA Opt-in Class Members who timely submitted claims. b. $152,804.23 as payment for the Rule 23 Class Members who timely submitted claims. c. $25,000 as payment for the administration of the Settlement Agreement. d. $38,500 as incent ive awards to Plaintiff Alvarez and certain FLSA Opt-in Class Members, as set forth in the Settlement Agreement. e. $624,829 as attorneys' fees and costs to Bonnett, Fairbourn, Friedman & Balint, P.C. f. Any additional outstanding costs t o be paid from Defendants' reversionary allotment. Plaintiff's Complaint 1 is hereby dismissed with prejudice without costs to any party, except as provided in the Settlement Agreement. See document for further details. Signed by Judge Steven P Logan on 3/02/2020. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maribel Alvarez,

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Plaintiff,
vs.
Direct Energy Business Marketing LLC,
et al.,

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Defendants.

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No. CV-16-03657-PHX-SPL
ORDER

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Before the Court are Plaintiff’s Unopposed Application for Attorneys’ Fees and

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Costs and Service Awards (Doc. 272) and Motion for Approval of the Class Action

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Settlement (Doc. 274). For the following reasons, the Court will grant the motions.

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On October 21, 2016, Maribel Alvarez (“Plaintiff”) filed this collective action on

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behalf of herself and other similarly situated employees of Direct Energy Business

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Marketing LLC and its affiliates (“Defendants”), alleging that Defendants failed to pay

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hourly wages, commissions/incentive wages, and overtime wages in violation of the Fair

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Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”). (Doc. 1) Plaintiff also alleged

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violations of the Arizona Wage Statutes, A.R.S. §§ 23-351, -352, -353, and -355 and

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requested class certification pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”).

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(Doc. 1)

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On March 8, 2019, after participating in extensive discovery in this case as well as

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arms-length negotiations, the parties filed a Joint Notice of Settlement. (Doc. 251) On July

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25, 2019, the parties filed a Motion for Preliminary Approval of Proposed FLSA Collective

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Action and Rule 23 Class Action Settlement. (Doc. 266) The Court granted the Motion and

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preliminarily approved the settlement on November 11, 2019. (Doc. 267)

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The parties’ agreement states that Defendants shall provide for a total gross

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settlement amount of $1.3 million, $856,041 of which is not subject to reversion. (Doc.

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274 at 3) In the Order preliminarily approving the settlement, the Court: (1) conditionally

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certified the Rule 23 class for settlement purposes; (2) confirmed the appointment of

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Maribel Alvarez as the class representative; (3) confirmed the appointment of Ty Frankel

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and Patricia Syverson as class counsel; and (4) approved the notice of settlement to all

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prospective class members pursuant to Rule 23 and the Class Action Fairness Act of 2005.1

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(Doc. 267 at 5-6) In November of 2019, the Settlement Administrator sent the notice of

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settlement to each prospective class member, and the deadline for objections ended on

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January 16, 2020. (Doc. 274 at 3, 5-6) To date, 23 of the 25 FLSA Opt-in class members

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have submitted claims and 185 of the 893 Rule 23 class members have submitted claims.

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(Doc. 279 at 2) There are no objections to the settlement. (Doc. 274 at 6)

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On January 7, 2020, Plaintiff filed the Unopposed Application for Attorneys’ Fees

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and Costs and Service Awards. (Doc. 272) On January 23, 2020, Plaintiff filed the Motion

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for Approval of the Class Action Settlement. (Doc. 274) On January 30, 2020, the Court

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held a final fairness hearing pursuant to Rule 23(e). (Doc. 275) At the hearing, the Court

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ordered that: (1) Plaintiff’s counsel submit an itemized billing statement in support of their

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request for attorneys’ fees and costs; and (2) the parties submit a joint notice of settlement

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outlining the final accounting calculations under the settlement agreement. (Doc. 275) The

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parties timely submitted the requested documents. (Docs. 276, 279) The Court has read

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and considered the settlement agreement, the pending motions, and the record in this case.

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The Court finds that, in consideration of the almost four years of litigation and the reasons

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stated below, the settlement agreement is fundamentally fair, reasonable, adequate, and in

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the best interest of the class members. Accordingly,

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28 U.S.C. §§ 1332(d), 1453, and 1711-1715.
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IT IS ORDERED that Plaintiff’s Unopposed Application for Attorneys’ Fees and

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Costs and Service Awards (Doc. 272) and Motion for Approval of the Class Action

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Settlement (Doc. 274) are granted.

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IT IS FURTHER ORDERED:

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1. For settlement purposes only, the Court certifies the following Settlement

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Classes:

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a. “Rule 23 Class Members” includes Direct Energy employees who worked

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as customer service representatives at an Arizona Direct Energy call center

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in Arizona from October 21, 2013 to August 30, 2018 and whose names are

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set forth in an exhibit to the Settlement Agreement.
b. “FLSA Opt-in Class Members” means the current and former Customer
Service Representatives who worked at a Direct Energy call center in
Arizona who validly opted into this Lawsuit and who did not subsequently
opt out and whose names are set forth in an exhibit to the Settlement
Agreement.

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2. For settlement purposes only, the Court appoints the following attorneys to

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act as Settlement Class Counsel: Ty Frankel and Patricia Syverson of Bonnett,

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Fairbourn, Friedman & Balint, P.C.

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3. For settlement purposes only, the Court appoints Maribel Alvarez as Class
Representative.

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4. The Court finds that notice to the Settlement Classes was provided in accordance

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with the Court’s Preliminary Approval Order. (Doc. 267) This notice, in form,

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method, and content, fully complied with the requirements of Rule 23 and due

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process, constituted the best notice practicable under the circumstances, and

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constituted sufficient notice to all persons entitled to notice of the settlement.

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5. The Court finds that the settlement of this action, on the terms and conditions set

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forth in the Settlement Agreement, is in all respects fundamentally fair, reasonable,

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adequate, and in the best interest of the class members, especially in light of: “the

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strength of the Plaintiff’s case; the risk, expense, complexity, and likely duration of

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further litigation; the risk of maintaining class action status throughout the trial; the

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amount offered in settlement; the extent of discovery completed and the stage of the

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proceedings; the experience and views of counsel; the presence of a governmental

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participant; and the reaction of the class members to the proposed settlement.” See

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In re Volkswagen “Clean Diesel” Mktg., Sales Practices, and Prods. Liab. Litig.,

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895 F.3d 597, 611 n.18 (9th Cir. 2018) (quoting Hanlon v. Chrysler Corp., 150 F.3d

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1011, 1026 (9th Cir. 1998)).

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6. The Settlement Agreement, which is outlined in Docket Numbers 266-1 and 279,
shall be deemed incorporated herein, is finally approved and shall be consummated
in accordance with the terms and provisions thereof, except as amended by any order
issued by this Court. All terms of the Settlement Agreement are approved by this
Final Approval Order. The fact that this Final Approval Order specifically identifies
or summarily recapitulates some, but not other, provisions of the Settlement
Agreement does not modify any provision of the Settlement Agreement, nor does it
elevate or demote any provision vis á vis any other provision, nor does it create an
inference in that regard.

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7. The Parties are directed to consummate the Settlement Agreement in accordance

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with its terms. The Parties and any and all Settlement Class Members who did not

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timely exclude themselves from the Settlement Class are bound by the terms and

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conditions of the Settlement Agreement.

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8. By operation of this Final Approval Order, the Releasing Parties release
and forever discharge the Released Parties from the Released Claims, and the

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Released Parties release and forever discharge Plaintiff and Settlement Class

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Counsel, as set forth in the Settlement Agreement.

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9. This Order is not, and shall not be construed as, an admission by Defendant of
any liability or wrongdoing in this or in any other proceeding.

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10. The Court makes the following awards pursuant to the Settlement Agreement:

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a. $132,602.03 as payment for the FLSA Opt-in Class Members who timely

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submitted claims.

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b. $152,804.23 as payment for the Rule 23 Class Members who timely
submitted claims.
c. $25,000 as payment for the administration of the Settlement Agreement.

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d. $38,500 as incentive awards to Plaintiff Alvarez and certain FLSA Opt-in
Class Members, as set forth in the Settlement Agreement.

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e. $624,829 as attorneys’ fees and costs to Bonnett, Fairbourn, Friedman &

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Balint, P.C.

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f. Any additional outstanding costs to be paid from Defendants’ reversionary
allotment.

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11. The Court finds that the parties’ agreement to include a reversionary allotment

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for Defendants is justified in this case. Members of each class are set to receive at

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least thirty percent of their estimated damages. (Doc. 274 at 9) This amount is

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consistent with other cases involving the underpayment of wages. See Quintana v.

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HealthPlanOne LLC, No. CV-18-02169-PHX-RM, 2019 WL 3342339, at *3 (D.

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Ariz. July 25, 2019) (finding settlement of wage and hour class action for “one-half

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or one-third of the total possible recovery” to be reasonable). Additionally, the

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reversionary allotment represents only twenty-five percent of the total settlement

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fund. Therefore, the Court finds that the reversionary fund was reasonably included

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in the Settlement Agreement.

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12. Without further order of the Court, the Parties may agree to reasonable
extensions of time to carry out any of the provisions of the Settlement Agreement.

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13. Without affecting the finality of this Order, The Court hereby retains continuing

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and exclusive jurisdiction over the parties and all matters relating to this action

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and/or the Settlement Agreement, including the administration, interpretation,

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construction, effectuation, enforcement, and consummation of the Settlement

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Agreement and this Order.

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14. Plaintiff’s Complaint (Doc. 1) is hereby dismissed with prejudice without costs
to any party, except as provided in the Settlement Agreement.

Dated this 2nd day of March, 2020.

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Honorable Steven P. Logan
United States District Judge

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