Nataniel Wilson et al v. The Mill Group Inc et al

Filing 50

FINDINGS AND ORDER PRELIMINARY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, APPROVING FORM AND MANNER OF CLASS NOTICE, AND SETTING DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT AND AWARD OF ATTORNEYS FEES AND EXPENSES AND CASE CONTRIBUTION AWARD signed by Judge Stephen V. Wilson. (pj)

FUD
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DtIrcrnJT

DEC 162013
STUART LIBICKI, Esq. (SBN 57626)
SCHWARTZ, STEINSAPIR,
CU*J. USTRCt l CALIFO*A
2
DOFIRMANN & SOMMERS LLP
yj ,4
DEPUTY
----T _1
(1
(33 vu vv usinre B oulevard, suite ZU(JU
3
Los Angeles, CA 90048-5268
4 Telephone: [phone] - Facsimile: [phone]
[e-mail]
1

I

5

WILLIAM T. PAYNE (SBN 90988)

6 PAMINA EWING (PA Bar # 59244)

FEINSTEIN DOYLE
PAYNE & KRAVEC, LLC
429 Forbes Avenue, 17th Floor
8
Pittsburgh, PA 15219
9 Phone: [phone] - Fax: [phone]
[e-mail]
10 [e-mail]
7

11

Arthur Grebow, Esq. (SBN 41374)
GREBOW & RUBIN LLP
12
16133 Ventura Boulevard, Suite 260
13 Encino, CA 91436
Phone: [phone] - Fax: [phone]
14 agrebowgrebowrubinlaw.com
15

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

16
17

1

18 NATHANIEL WILSON, et al.,
191

Plaintiffs,
VS.

20

THE MILL GROUP INC., et al.,

21

Defendants.

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23
24
25
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I CASE NO.: 2:12-Q-11214-SVW-MAN
FINDINGS
ND ORDER PRELIMI RILY
CERTIFYING A CLASS FOR
SETTLEMENT PURPOSES,
PRELIMINARILY APPROVING
PROPOSED CLASS ACTION
SETTLEMENT, APPROVING FORM
AND MANNER OF CLASS NOTICE,
AND SETTING DATE FOR
HEARING ON FINAL APPROVAL
OF SETTLEMENT AND AWARD OF
ATTORNEYS’ FEES AND
EXPENSES AND CASE
CONTRIBUTION AWARDS
Date:
Time:
Place:

27

September 9, 2013
1:30 p.m.
Courtroom 6

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ID.#_____

[PROPOSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

This class action involves claims for alleged violation of the California
2 Labor Code and the California Business and Professions Code, and for
3

conversion. Plaintiffs seek recovery of wages and penalties from Defendants

4 The Mill Group, Inc. dba The Mill ("the Mill") and The Churchill Benefit
5

Corporation dba Yurcor ("Yurcor").
The terms of the Settlement are set out in the Second Amended Settlement

t l

Agreement, dated

CLtr t, 2013 (the "Agreement" or "Settlement

8 Agreement"),’ executed by counsel on behalf of Plaintiffs and Defendants.

The Court has preliminarily considered the Settlement to determine,

9

10 among other things, whether the Settlement is sufficient to warrant the issuance
11

of notice to members of the Settlement Class. Upon reviewing the Settlement

12 Agreement, it is hereby ORDERED, ADJUDGED AND DECREED as follows:

1.

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Class Findings: Solely for the purposes of the Settlement, the

14 Court finds that the requirements of the Federal Rules of Civil Procedure, the
15

United States Constitution, the Rules of the Court and any other applicable law

16 have been met as to the Settlement Class defined below, in that:

(a)

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18

The Court preliminarily finds that, as required by FED. R. Civ.

P. 23(a)(1), the Settlement Class is ascertainable from records kept by

19 Defendants, and the members of the Settlement Class are so numerous that their
20 joinder before the Court would be impracticable.

(b)

21

The Court preliminarily finds that, as required by FED. R. Civ.

22 P. 23(a)(2), there are one or more questions of fact and/or law common to the
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Settlement Class.

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I-

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Capitalized terms not otherwise defined in this Order shall have the same
28 meaning as ascribed to them in the Settlement Agreement.
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ID. #

[PROPOSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

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(c) The Court preliminarily finds that, as required by FED. R. Civ.

2 P. 23(a)(3), the claims of the Named Plaintiffs are typical of the claims of the

3 Settlement Class.
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5

(d) The Court preliminarily finds, as required by FED. R. Civ. P.
23(a)(4), that the Named Plaintiffs who are participants in the Plans and

6 members of the Settlement Class will fairly and adequately protect the interests
7 of the Settlement Class in that (i) the interests of the Named Plaintiffs and the
8 nature of their alleged claims are consistent with those of the members of the

9 Settlement Class, (ii) there appear to be no conflicts between Named Plaintiffs
10

and the Settlement Class, and (iii) the Named Plaintiffs and the members of the

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Settlement Class are represented by qualified, reputable counsel who are

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experienced in preparing and prosecuting class actions of this type.

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(e) The Court preliminarily finds that, as required by FED. R. CIV.

14 P. 23(b)(1), the prosecution of separate actions by individual members of the
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Settlement Class would create a risk of (i) inconsistent or varying adjudications

16 as to individual class members that would establish incompatible standards of

17 conduct for the parties opposing the claims asserted in this action, or (ii)
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adjudications as to individual class members that would, as a practical matter, be

19 dispositive of the interests of the other members not parties to the adjudications,
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or substantially impair or impede those persons’ ability to protect their interests.

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(f)

The Court preliminarily finds that as required by FED. R. Civ.

22 P. 23(b)(3), Named Plaintiffs’ claims are based on allegations that Defendants,
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through their alleged scheme to willfully misclassify and treat Class Members as

24 independent contractors and/or unlawfully deduct "Yurcor’s overhead costs"
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(employer payroll taxes) from Class Members’ wages earned as employees of

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Defendants pose questions of law and/or fact common to class members

27 predominating over questions affecting only individual members, and that a class
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ID.#_____

[PROPOSED AMENDED[ [FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

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action is superior to other available methods for fairly and efficiently

2 adjudicating the controversy.

3

(g) The Court preliminarily finds that, as required by FED. R. Civ.

4 P. 23(g), Class Counsel are capable of fairly and adequately representing the
5

interests of the Settlement Class, in that Class Counsel have done extensive work

6 identifying or investigating potential claims in the action, Class Counsel are
7 experienced in handling class actions and claims; Class Counsel are
8 knowledgeable of the applicable law; and Class Counsel have committed the
9 necessary resources to represent the Settlement Class.
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2.

Class Certification - The Court certifies the following Settlement

Class under FED. R. Civ. P. 23(b)(1) and FED. R. Civ. P. 23(b)(2):

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All individuals who on or after September 14, 2009 and at any time up

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to and including March 14, 2013 worked or performed and completed

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services in California for The Mill Group, Inc. ("Mill") in the pre-

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production, production or post-production processes of motion

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pictures, television programs advertising, game art or other visual

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content, as to whom The Churchill Benefit Corporation dba Yurcor

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("Yurcor") performed services for the Mill and/or the respective

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individual (for example, payroll processing services, "Employer of

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Record" services or "Yurcor’s third party payroll services program").

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The Court appoints the Named Plaintiffs as class representatives for the

24 Settlement Class and appoints Schwartz, Steinsapir, Dohr.mann & Sommers
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LLP, Grebow and Rubin LLP, and Stember Feinstein Doyle Payne & Kravec,

26

LLC as Class Class Counsel for the Plaintiffs in the Action pursuant to Fed. R.

27 Civ. P. 23(g).
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ID. #_______

[PROPOSEDAMENDEDJ ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

1

3.

Preliminary Findings Regarding Proposed Settlement The

2 Court preliminarily finds that (i) the proposed Settlement resulted from extensive

3 arms’-length negotiations, (ii) the Settlement Agreement was executed only after
4 Class Counsel had conducted extensive investigation into the facts and merits of
5 their claims, (iii) Class Counsel have diligently investigated and aggressively
6 litigated this case to be fully apprised of the strengths and weaknesses of the
7 Named Plaintiffs’ claims, and (iv) the proposed Settlement is sufficiently fair,
8 reasonable, and adequate to warrant sending notice of the proposed Settlement to

9 the Settlement Class.
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4.

Fairness Hearing - A hearing is scheduled for April 21, 2014 at

(the "Fairness Hearing") to determine, among other things:

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Whether the Settlement should be finally approved as fair,

13 reasonable and adequate;
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Whether the Action should be dismissed with prejudice pursuant to
the terms of the Settlement Agreement;

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Whether the notice, summary notice and notice method proposed by

17

the Parties (i) constitutes the best practicable notice, (ii) constitutes notice

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reasonably calculated, under the circumstances, to apprise members of the

19 Settlement Class of the pendency of the litigation, their right to object to the
20

Settlement, and their right to appear at the Fairness Hearing, (iii) are reasonable

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and constitute due, adequate, and sufficient notice to all persons entitled to

22 notice, and (iv) meet all applicable requirements of the Federal Rules of Civil
23

Procedure and any other applicable law;

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Whether Class Counsel adequately represented the Settlement Class
for purposes of entering into and implementing the Settlement;

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Whether the proposed Plan of Allocation should be ordered by this
Court for implementation; and

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ID. #

[PROPOSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

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Whether any application(s) for attorneys’ fees and expenses and

2 compensation to Named Plaintiffs is fair and reasonable and should be approved.
3

Plaintiffs shall file their motion for final approval of the Settlement, attorney’s

4 fees, costs and case contribution awards by March 24, 2014. Further, at least ten
5

(10) days prior to the Fairness Hearing, Class Counsel will file with the Court a

6 supplemental declaration certifying that they have the distributed the Notice in
7 full compliance with this Order. Further, Class Counsel shall also apprise the
8 Court of any objections that have been filed to date.

9

5.

Settlement Class Notice - The Parties have presented to the Court

10 a proposed form of Class Notice, appended hereto as Exhibit A. The Court finds
11

that such form fairly and adequately (a) describes the terms and effect of the

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Settlement Agreement and the Plan of Allocation, (b) notifies the Settlement

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Class that Class Counsel will seek attorneys’ fees from the Settlement Fund not

14 to exceed 25% of the Settlement Fund plus litigation costs of approximately
15

$10,000, reimbursement of expenses, and compensation up to $1,500 for each of

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the Named Plaintiffs, (c) gives notice to the Settlement Class of the time and

17 place of the Fairness Hearing, and (d) describes how the recipients of the Class
18 Notice may object to any of the relief requested. The Parties have proposed the

19 following manner of communicating the notice to members of the Settlement
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Class, and the Court finds that such proposed manner is the best notice

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practicable under the circumstances. Accordingly, the Court directs that Class

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Counsel shall:

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By no later than January 14, 2014, cause the Class Notice, with such

24 non-substantive modifications thereto as may be agreed upon by the Parties, to
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be mailed, by first-class mail, postage prepaid, to the last known address of each

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member of the Settlement Class who can be identified by reasonable effort.

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Individual Defendants (if it has not already done so) shall use commercially

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ID.

[PROPOSEDAMENDED] (FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

I reasonable efforts to assist Class Counsel in promptly obtaining the names and
2 last known addresses of the members of the Settlement Class. The names and

3 addresses Class Counsel obtains pursuant to this order shall be used solely for
4 the purpose of providing notice of this Settlement and for no other purpose.
5

By no later than January 28, 2014, cause the Class Notice to be

6 published on each website identified in the Class Notice, which will also host
7 copies of all Settlement-related documents, including the Settlement Agreement.
8

6.

Objections to Settlement - Any member of the Settlement Class

9 who wishes to object to the fairness, reasonableness or adequacy of the
10

Settlement, to any term of the Settlement Agreement, to the Plan of Allocation,

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to the proposed award of attorneys’ fees and expenses, or to the request for

12

compensation for the Named Plaintiffs may file an objection. An objector must

13 file with the Court a statement of his, her, or its objection(s), specifying the
14 reason(s), if any, for each such objection made, including any legal support
15

and/or evidence that such objector wishes to bring to the Court’s attention or

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introduce in support of such objection. The objector must also mail copies of the

17 objection and all supporting law and/or evidence to Class Counsel and counsel
18

for the Defendants. The addresses for filing objections with the Court and

19 service on counsel are as follows:
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For Filing:
Clerk of the Court

22 United States District Court for the Central District of California
23

312 North Spring Street

24 Los Angeles, CA 90012-4701
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[phone]

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To Named Plaintiffs Co-Lead Settlement Class Counsel:

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ID. #_____

[PROPOSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

I Arthur Jeffrey Grebow
2 Grebow and Rubin LLP
3

16133 Ventura Boulevard Suite 260

4 Encino, CA 91436
5

818-783-1100

6 Fax: [phone]

7 Email: agrebowgrebowrubinlaw.com
8

9 Pamina Ewing
10 Sternber Feinstein Doyle Payne and Kravec LLC
11 1705 Allegheny Building
12 429 Forbes Avenue 17th Floor

13 Pittsburgh, PA 15219
14 412-281-8400

15 Fax: [phone]
16 Email: [e-mail]
17
18

Stuart Libicki

19 Schwartz Steinsapir Dohrrnann and Sommers LLP
20

6300 Wilshire Boulevard Suite 2000

21

Los Angeles, CA 90048-5268

22 323-655-4700
23

Fax: [phone]

24 Email: [e-mail]
25
26 William T Payne
27

Stember Feinstein Doyle Payne and Kravec LLC

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ID. #

LPROPOSED.AMENDEDJ ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

I Allegheny Building
2 429 Forbes Avenue 17th Floor
3

Pittsburgh, PA 15219

4 412-281-8400
5

Fax: [phone]

6 Email: wpaynestemberfeinstein. corn
7
8

To Defendant’s Counsel:
Michele J Beilke

10 Julia Yenha Trankiem
Reed Smith LLP
12
13

South Grand Avenue Suite 2900
Los Angeles, CA 90071

14 213-457-8000
15

Fax: [phone]

16

Email: [e-mail]

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18
19

Gregory V Mersol
20

Sabrina L Shadi
21

Baker and Hostetler LLP
22

12100 Wilshire Boulevard 15th Floor
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Los Angeles, CA 90025-7120
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310-820-8800
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Fax: [phone]
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Email: [e-mail]
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ID. #_______

[PROPOSED AMENDED] [FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

I

The objector or his, her, or its counsel (if any) must effect service of

2 copies of the objection on counsel listed above and file it with the Court by no
3

later than February 28, 2014. If an objector hires an attorney to represent him,

4 her, or it for the purposes of making such objection pursuant to this paragraph,
5 the attorney must both effect service of a notice of appearance on counsel listed

6 above and file it with the Court by no later than February 28, 2014. Any
7 member of the Settlement Class or other Person who does not timely file and
8

serve a written objection complying with the terms of this paragraph shall be

9 deemed to have waived, and shall be foreclosed from raising, any objection to
10 the Settlement, and any untimely objection shall be barred.
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7.

Appearance at Fairness Hearing - Any objector who files and

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serves a timely, written objection in accordance with paragraph 6 above may also

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appear at the Fairness Hearing either in person or through counsel retained at the

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objector’s expense. Objectors or their attorneys intending to appear at the

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Fairness Hearing must effect service of a notice of intention to appear setting

16 forth, among other things, the name, address, and telephone number of the
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objector (and, if applicable, the name, address, and telephone number of the

18 objector’s attorney) on Class Counsel and Defendants’ counsel (at the addresses
19 set out above) and file it with the Court by no later than March 17, 2014. Any
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objector who does not timely file and serve a notice of intention to appear in

21

accordance with this paragraph shall not be permitted to appear at the Fairness

22 Hearing, except for good cause shown.
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8.

The expenses of printing and mailing and

Notice Expenses

24 publishing all notices required hereby shall be paid from the Settlement Fund.

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9.

Service of Papers

Defendants’ counsel and Class Counsel shall

26 promptly furnish each other with copies of any and all objections that come into
27 their possession.
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ID. #

[PROI’OSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.

10. Termination of Settlement

This Order shall become null and

2

void, and shall be without prejudice to the rights of the Parties, all of whom shall

3

be restored to their respective positions existing immediately before this Court

4

entered this Order as well as the Tentative Settlement entered on March 14,

5

2013 ) if the Settlement is terminated in accordance with the Settlement

6

Agreement.

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11. Use of Order - This Order shall not be construed or used as an

8

admission, concession, or declaration by or against Defendants of any finding of

9

fiduciary status, fault, wrongdoing, breach, or liability. This Order shall not be

10

construed or used as an admission, concession, or declaration by or against

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Named Plaintiffs or the Settlement Class that their claims lack merit or that the

12

relief requested in the Action is inappropriate, improper or unavailable, or as a

13

waiver by any party of any arguments, defenses, or claims he, she, or it may

14

have, including, but not limited to, any objections by Defendants to class

15

certification in the event that the Settlement Agreement is terminated.

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12. Jurisdiction

The Court hereby retains jurisdiction for purposes

17

of implementing this Settlement, and reserves the power to enter additional

18

orders to effectuate the fair and orderly administration and consummation of the

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Settlement as may from time to time be appropriate and to resolve any and all

20

disputes arising thereunder.

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13. Continuance of Hearing - The Court reserves the right to

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continue the Fairness Hearing without further written notice.

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SO ORDERED this I day of

, 2013.

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26

UNITED STATES DISTRICT JUDGE

27:
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ID. #

(PROPOSED AMENDED] ]FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT
PURPOSES, PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, ETC.