Andrews Farms et al v. Calcot Ltd et al

Filing 339

ORDER FOR SUPPLEMENTAL BRIEFING signed by District Judge Lawrence J. O'Neill on July 6, 2011. (Lira, I)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREWS FARMS, et al.,

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CASE NO. CV-F-07-0464 LJO JLT

Plaintiffs,

ORDER FOR SUPPLEMENTAL BRIEFING

vs.
CALCOT, LTD., EADIE AND PAYNE,
and ROBERT W. NORRIS,

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Defendants.
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/

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This Court has read and reviewed Plaintiffs’ Andrews Farms and others similarly situated (as

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certified) (collectively "Plaintiffs’") motion for preliminary approval of settlement in this class action

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suit. This motion is unopposed, as defendants Calcot, Ltd (“Calcot”), Eadie and Payne (“Eadie”) and

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Robert W. Norris (“Mr. Norris”) (collectively, “defendants’) have each joined in this motion. The Court

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finds this motion suitable for a decision without a hearing and VACATES the July 11, 2011 hearing on

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this matter. The Court notes, however, the following issues or concerns related to the preliminary

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approval of this class action settlement, and requests the parties to submit supplemental briefing

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to address these issues or concerns no later than July 13, 2011:

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Named Representative Enhancement

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Class counsel requests a named representative enhancement of $27,500 for named plaintiff

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Johnny Andrews (“Mr. Andrews”). Defendants agreed not to oppose this request. The enhancement

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is to be paid from the Settlement Fund.
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Mr. Andrews submits a declaration detailing the reasons for the request for an enhancement. One

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can measure the value of some of these reasons, including: (1) attendance at two full days of mediation

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(September 8, 2010 and February 23, 2011), including to and from Dos Palos, California to San

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Francisco for the mediation; (2) deposed for a day in Fresno, including travel, on February 24, 2009; (3)

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spending in excess of 12 hours discussing issues with counsel and staying abreast of developments; and

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(4) traveling at least once to Bakersfield to discuss the case. Mr. Andrews declares that he has incurred

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expenses in excess of $1200 related to travel and other expenses in this action.

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Mr. Andrews also asks to be compensated because he has “reason to fear retaliation” due to his

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status as class representative. To support this assertion, he explains that his position as class

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representative has put a “wedge between his family,” because his brother-in-law voiced his disagreement

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about pursuing this litigation and has stopped talking to Mr. Andrews. In addition, Mr. Andrews

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declares that on at least two dozen occasions, other individuals have come to him at public events and

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local eateries and questioned him in a critical fashion about why he is pursuing this litigation.

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The Court requests the parties, or whichever party is in the best position to do so, to provide

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supplemental briefing or declarations to substantiate an award of $27,500 as a class representative

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enhancement. The parties shall address how the parties arrived at the sum of $27,500 and why this

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sum–rather than a lesser sum of approximately $10,000–would remunerate Mr. Andrews adequately.

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Settlement Administrator Fees

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In the Settlement Agreement, the parties agreed to submit a binding agreement between Calcot

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and the Class Administrator and/or a binding quote consisting of a “not to exceed” amount for the cost

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of class administration. Pursuant to the agreement, the parties submitted a declaration from Jennifer

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Keough (“Ms. Keough”), Executive Vice President, Operations of GCG, Inc., the parties’ stipulated

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class administrator. Ms. Keogh details the experience of GCG, Inc. Ms. Keogh specifies the activities

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she expects GCG, Inc. shall perform to administer the class settlement. She then concludes that the “not

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to exceed” amount for the cost of class administration is $250,000.

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The “not to exceed” amount for the cost of class administration is not supported by Ms.

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Keough’s declaration. For example, there is no mention of the estimated cost of the mailings, the

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estimated amount of mailing, the cost per hour and projected number of hours or the estimated about
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of people who will work on the class settlement administration, or the estimated cost per project (i.e.,

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estimated costs for maintaining the toll-free number or the website). Ms. Keough makes this estimate

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“[b]ased on the experience and expertise given the work GCG has been advised to date that it will

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undertake in this Settlement[.]” This is insufficient to support the Settlement Administrator Fees.

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Without this information, this Court cannot determine whether this amount is excessive. Accordingly,

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the parties are ordered to submit supplemental declarations to support this request and this amount.

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Long Form Notice

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The Court has several issues with the Long Form Notice:

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1.

The first page of the Long Form Notice appears to have formatting issues and makes the

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bulleted points difficult to read. The parties shall resubmit this page in a reformatted

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version.

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2.

The Notice mentions (in Spanish) that the Notice is available in the Spanish language on

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the class action website. This Court orders the parties to submit a declaration the

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Spanish version of the Long Form Notice has been translated by a certified court

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interpreter and, other than language, shall not deviate from the Court-approved English

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version of the Long Form Notice.

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3.

The Long Form Notice should include the Toll-Free Number that Ms. Keough declares
shall be maintained for the administration of this settlement.

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IT IS SO ORDERED.
Dated:

July 6, 2011
/s/ Lawrence J. O'Neill
b9ed48UNITED STATES DISTRICT JUDGE

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