Lopez et al v. DanDee Transporation

Filing 61

ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; ORDER CONSOLIDATING CASES signed by District Judge Lawrence J. O'Neill on August 18, 2009. Motion Hearing currently set for August 24, 2009 has been VACATED. Fairness Hearing set for 12/3/2009 at 08:15 AM in Courtroom 4(LJO) before District Judge Lawrence J. O'Neill. (Lira, I)

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Jerry N. Budin State Bar No. 88539 Law Office of Jerry Budin 2401 E. Orangeburg Ave., Ste. 675-309 Modesto, California 95355 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiffs, FRANK LOPEZ, et al. Houman Fakhimi State Bar No. 195638 Fakhimi & Associates 3 Hutton Centre Dr. Suite 620 Santa Ana, CA 92707 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs, JOSE CAMARENA, et al.

Gregg A. Farley State Bar No. 115593 Law Offices of Gregg A. Farley 11755 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90025 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiffs, JOSE CAMARENA, et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA (Fresno Division) FRANK LOPEZ, et al., ) ) Plaintiffs, ) ) vs. ) ) DANDEE TRANSPORTATION, et al.,) ) Defendants. ) ______________________________) JOSE CAMARENA, et al., ) ) Plaintiffs, ) ) vs. ) ) DANDEE TRANSPORTATION, et al.,) ) Defendants. ) ______________________________) CASE NO. 1:08-CV-0500 LJO SMS

CASE NO. 1:08-CV-0990 LJO SMS ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; ORDER CONSOLIDATING CASES HEARING: Dec. 3, 2009 at 8:15 Dept. 4 (LJO)

Pursuant to plaintiffs' Notice Of Motion filed on July 23, 2009 (Doc. 47), the parties in these class actions have reached a
ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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proposed

settlement

and

seek

preliminary

approval

of

the

Stipulation Regarding Settlement Of Class Action (Doc. 56) and the Notice of Proposed Class Action Settlement And Fairness Hearing (Ex. 1) and the Claim Form/FLSA Consent Form (Ex. 2) attached thereto. The Court finds the motion is suitable for decision without oral argument pursuant to Local Rule 78-230(h). Having considered the plaintiffs' Motion and supporting papers, the

Stipulation Regarding Settlement Of Class Action and the exhibits attached thereto, the Court issues the following Orders: 1. the This Order incorporates by reference the definitions in Regarding Settlement of Class Action

Stipulation

("Stipulation") [Doc. 56] and all terms defined therein shall have the same meaning in this Order as set forth therein. 2. The Court hereby preliminarily approves the

Stipulation. are

The Court preliminarily finds that the Class members situated and meet the requirements for class

similarly

certification under F.R.C.P. 23 and as a collective action under 29 U.S.C. §216(b). The Court further preliminarily finds that the

Stipulation appears to be within the range of reasonableness of a settlement that could ultimately be given final approval by this court. It appears to the Court that the Stipulation is fair,

adequate and reasonable as to all potential Class Members, when balanced against the probable outcome of further litigation. It

further appears that counsel for the Parties at this time are reasonably able to evaluate their respective positions. It further appears to the Court that settlement at this time will avoid substantial additional costs to all Parties, as well as the delay and risks that would be presented by further prosecution of these
ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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Actions.

Additionally, it appears that the proposed Stipulation

was reached as a result of intensive, non-collusive, arms-length negotiations. 3. A hearing ("Fairness Hearing") shall be held before this

Court on December 3, 2009 at 8:15 a.m. in Courtroom 4 in the United States District Court for the Eastern District of California, located at 2500 Tulare Street, Fresno, California, to determine all necessary matters concerning the settlement, including: (a) whether the proposed settlement of the Actions on the terms and conditions provided is fair, adequate, and reasonable, and should be finally approved by the Court; (b) whether the cases should be dismissed with prejudice pursuant to the terms of the settlement; (c) whether the settlement should be approved as fair, adequate, and reasonable to the Class Members; (d) whether the Court should finally approve the amount of attorney fees and costs to be awarded Class Counsel, Jerry Budin, Houman Fakhimi and Gregg Farley and (e) whether the Court should approve the incentive awards to Class Representatives Frank Lopez, David Palmer, Jose Camarena, Douglas Holmby and Rudy Cordova. 4. The Court hereby approves, as to form and content, the

proposed "Notice of Proposed Class Action Settlement and Fairness Hearing" ("Notice;" attached as Exhibit 1 to the Stipulation (Doc. 56)) and the "Claim Form/FLSA Consent Form" (attached as Exhibit 2 to the Stipulation (Doc. 56)). The Court finds that the

distribution of the Notice substantially in the manner and form set forth in the Stipulation meets the requirement of due process under Federal Rule of Civil Procedure 23(e) and 29 U.S.C. §216(b), that such Notice is the best practicable under the circumstances and
ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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shall constitute due and sufficient notice to all persons entitled thereto. 5. Any class member who wishes to receive a portion of the

settlement fund must complete and submit a properly completed Claim Form, pursuant to the instructions for making a claim that are set forth in the Notice, so that it is postmarked no more than sixty (60) days after the date the Notices are mailed. Any class member

who does not submit a Claim Form will not be entitled to any recovery, unless the parties agree to allow the late claim. 6. Any class member may choose to "opt-out" of and be

excluded from the settlement as provided in the Notice by following the instructions for requesting exclusion from the Stipulation that are set forth in the Notice. All requests for exclusion must be

submitted so that they are postmarked no more than thirty (30) days after the date the Notices are mailed. Any such person who chooses

to "opt out" of and be excluded from the class will not be entitled to receive any proceeds from this settlement, and will not be bound by this settlement or have any right to object, appeal, or comment thereon. 7. Any class member who has not validly requested exclusion

("opt-out") from the class and the Stipulation may appear at the Fairness hearing and may object or express his/her views regarding the settlement, and may present evidence and file briefs or other papers, that may be proper and relevant to the issues to be heard and determined by the Court, as provided in the Notice. However,

no class member or any other person shall be heard or entitled to object, and no papers or briefs submitted by any such person shall be received or considered by the Court, unless the person on or
ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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before that day which is 30 days after the Notice is mailed has filed with the Clerk of this court, and mailed by first class postage to Class Counsel [Jerry Budin, Law Office of Jerry Budin, 2401 E. Orangeburg Ave., Modesto, CA 95355] and Defendant's Counsel [David A. Dixon of Dowling, Aaron & Keller, Inc., 5080 California Ave., Suite 200, Bakersfield, California 93309]: (i) a written statement advising if the individual plans to address the Court at the Fairness Hearing; (ii) a written statement of the individual's objections; and (iii) any other papers which the individual

purposes to submit to the Court, including any legal briefs or memoranda. Any such person who does not make an objection in the

manner provided for in this Order shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the settlement. 8. In the event the Stipulation does not become effective in

accordance with the terms of the Stipulation, or the Stipulation is not finally approved, or is terminated, canceled or fails to become effective for any reason, this Order shall be rendered null and void and shall be vacated, and the Parties shall revert to their respective positions as of before entering into the Stipulation. 9. For purposes of effectuating this settlement, the Court

preliminarily certifies the following Settlement Class: Settlement Class All persons who are now employed or have been employed by defendant DANDEE TRANSPORTATION in the State of California, who, on or after March 21, 2004 to the date of preliminary approval, have worked as a truck driver. 10. For purposes of effectuating this settlement, the Court

hereby appoints Jerry Budin, Houman Fakhimi and Gregg Farley as
ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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Class Counsel and Frank Lopez, David Palmer, Jose Camarena, Douglas Holmby and Rudy Cordova as Class Representatives. 11. These actions are consolidated for all purposes, the case of Lopez v. DanDee, Case No. 1:08-cv-0500 LJO SMS, shall be designated the lead case and all future pleadings in these

consolidated actions shall be filed in the lead case.

Approved as to form and content: Dated: August 17, 2009 /s/ David Dixon David Dixon Attorney for Defendant, DANDEE TRANSPORTATION

IT IS SO ORDERED. Dated: b9ed48 August 18, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

ORDER ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; CONSOLIDATING CASES

CASE NO. 1:08-CV-0500 LJO SMS CASE NO. 1:08-CV-0990 LJO SMS

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