Cuevas, et al v. Dias & Fragoso, Inc.

Filing 50

ORDER Granting Motion for Preliminary Approval of Class and Collective Action Settlement signed by Magistrate Judge Barbara A. McAuliffe on 06/18/2019. (Flores, E)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 13 ROSALIE CUEVAS, ADOLFO GOMEZMORENO, REYNALDO TOLANO, and AGUSTIN AMBRIZ, on behalf of themselves and all others similarly situated, 14 15 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT (Doc. 45) Plaintiffs, vs. 16 17 18 19 Case No.: 1:17-cv-00357-BAM DIAS & FRAGOSO, INC., a California Corporation; D & F AGRICULTURAL ENTERPRISES, INC., a California Corporation; GABRIEL M. DIAS; and JOHN L. FRAGOSO, Judge: Hon. Barbara A. McAuliffe Defendants. 20 21 22 The above-captioned matter came on for hearing before the Court on June 7, 2019 on 23 Plaintiffs’ Motion for Preliminary Approval of Class and Collective Action Settlement (“the 24 Preliminary Approval Motion”). Upon review and consideration of the Settlement, the motion and 25 supplemental papers and the exhibits thereto, the Court finds that there is sufficient basis for 26 (1) granting preliminary approval of the Settlement; (2) provisionally certifying the class for 27 settlement purposes only; (3) appointing Plaintiffs’ counsel as Class Counsel and appointing the 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 1 1 named Plaintiffs to represent the Settlement Class; (4) approving the Class Action, FLSA Notice, 2 and Dispute Form, and the procedures in the Settlement for employees to exclude themselves from 3 the Settlement Class and to object to the Settlement; (5) directing that notice be disseminated 4 pursuant to the terms of the Settlement; (6) staying all non-settlement related proceedings in the 5 Action pending final approval of the Settlement; and (7) setting a final hearing (the “Fairness 6 Hearing”) at which time the Court will consider whether to grant (a) final approval of the 7 Settlement; (b) the service awards to the named Plaintiffs, and the amount of the awards; and 8 (c) Class Counsel’s application for attorney fees and costs, and the amount of fees and costs. 9 10 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 1. This Action is provisionally certified as a class action, for the purposes of settlement 11 only, under Federal Rule of Civil Procedure 23 (for the California claims). The Rule 23(a) 12 requirements of numerosity, commonality, typicality and adequacy of representation have been 13 satisfied. Fed. R. Civ. P. 23(a)(1)-(4). Further, questions of law or fact common to class members 14 predominate over any questions affecting only individual members, and a class action is superior to 15 other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 16 23(b).) The Court previously conditionally certified the collective action under 29 U.S.C. § 201 et 17 seq. (for the FLSA claim). 18 2. The Settlement Class is defined as “all persons who are or were employed in 19 California by Defendants as non-exempt (i) mechanics, (ii) maintenance workers, (iii) farm 20 equipment operators, (iv) truck drivers, and (v) weighers at any point during the Class Period 21 (March 10, 2013 to the date of the preliminary approval order) and who do not properly and timely 22 opt out of the Settlement Class by having requested exclusion.” 23 3. Certification of the Settlement Class shall be solely for the purposes of settlement 24 and without prejudice to the Parties in the event the Settlement is not finally approved by this Court 25 or otherwise does not take effect. 26 27 4. The Court preliminarily approves the Settlement as fair, reasonable, and adequate, entered into in good faith, free of collusion, and within the range of possible judicial approval. 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 2 1 Further, as to the FLSA collective action, the Settlement is a fair and reasonable resolution of a 2 bona fide dispute. 3 5. 4 5 6 7 8 The Court appoints the following attorneys as Class Counsel: John E. Hill, State Bar No. 45338 Enrique Martinez, State Bar No. 206884 Law Offices of John E. Hill 333 Hegenberger Road, Ste. 500 Oakland, CA 94621 Telephone: (510) 588-1000 Facsimile: (510) 632-1445 Email: enriquemartinez@hill-law-offices.com 9 10 11 12 6. The Court appoints the named Plaintiffs—Rosalie Cuevas, Adolfo Gomez-Moreno, Reynaldo Tolano, and Agustin Ambriz—as class representatives. 7. The Court appoints CPT Group Class Action Administrators to serve as the 13 settlement administrator and to carry out all duties and responsibilities of the Claims Administrator 14 as specified in the Settlement. 15 8. The Court approves the method of disseminating notice to the Settlement Class and 16 members of the FLSA collective action in Spanish and English, as set forth in the Settlement. The 17 Court finds that the proposed forms are reasonably clear and should be reasonably understandable 18 to the Settlement Class and members of the FLSA collective action. The Court finds that the 19 proposed form and method of notice provided in the Settlement constitutes the best notice 20 practicable under the circumstances, and will provide valid, due, and sufficient notice to the 21 Settlement Class in full compliance with the requirements of applicable law, including Rule 23 and 22 the Due Process Clause of the United States Constitution, and is the only notice of the Settlement 23 that is required. 24 9. Not later than five (5) days from the date of this Order, Defendants’ counsel shall 25 provide to the Claims Administrator and Class Counsel a list of all members of the Settlement Class 26 and members who timely opted into the FLSA collective action, their last known addresses, 27 telephone numbers, and the last four digits of their social security or individual taxpayer 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 3 1 identification numbers. Class Counsel shall supplement this information with any more recent 2 contact information available for members of the Settlement Class and the FLSA collective action. 3 The Claims Administrator shall be responsible for preparing, printing, and mailing to members of 4 the Settlement Class and the FLSA collective action the Class Notice, the FLSA Notice (if 5 applicable), and Dispute Form. A Spanish language translation (prepared by the Claims 6 Administrator) of all materials mailed to members of the Settlement Class and the FLSA collective 7 action by the Claims Administrator shall be included as a part of the same mailing. 8 10. No later than fourteen (14) days from the date of this Order, the Claims 9 Administrator shall send a copy of the Class Notice, the FLSA Notice (if applicable), and Dispute 10 Form to members of the Settlement Class and the FLSA collective action via First Class regular 11 U.S. mail, postage prepaid, using the most current mailing address information available. The date 12 of the original mailing will be the Notice Date. For any Class Notice or FLSA Notice returned to 13 the Claims Administrator as non-deliverable within forty-five (45) days of the Notice Date, the 14 Claims Administrator shall make prompt and reasonable efforts to locate the person involved, using 15 appropriate search methods. If new address information is obtained, the Claims Administrator shall 16 promptly re-mail the Class Notice and Dispute Form, and FLSA Notice (if applicable), to the 17 addressee via First Class regular U.S. mail, postage prepaid, using the new address. If the Claims 18 Administrator is unable to obtain new address information with regard to any Notice returned as 19 non-deliverable within thirty (30) days following the Notice Date, or if a Notice is returned as non- 20 deliverable more than forty-five (45) days following the original mailing date, the Claims 21 Administrator shall be deemed to have satisfied its obligation to provide the Class Notice and the 22 FLSA Notice to the affected member of the Settlement Class and FLSA collective action through 23 the original mailing. In the event the procedures in this paragraph are followed and the intended 24 recipient of the Class Notice does not receive the Class Notice, the intended recipient shall 25 nevertheless remain a member of the Settlement Class and shall be bound by all the terms of this 26 Settlement and the Order and Final Judgment. 27 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 4 1 11. Those members of the Settlement Class who wish to opt out of the settlement must 2 send an opt-out letter (Request for Exclusion) to the Claims Administrator. Such letter must be 3 received by the Claims Administrator or postmarked no later than sixty (60) days from the Notice 4 Date. 5 12. If the Settlement is finally approved and becomes effective, any Settlement Class 6 member who does not send a timely and valid written statement opting out of the Settlement shall 7 be a Settlement Class Member and shall be bound by all subsequent proceedings, orders, and 8 judgments in this Action, including, but not limited to, the release of claims as provided in the 9 Settlement. 10 13. Those members of the Settlement Class who wish to object to the Settlement must 11 mail to the Claims Administrator a written statement objecting to the Settlement. Such written 12 statement must be mailed to the Claims Administrator no later than sixty (60) days from the Notice 13 Date. The Claims Administrator will file any objections with the Court. No member of the 14 Settlement Class shall be entitled to be heard at the Settlement Fairness Hearing (whether 15 individually or through separate counsel) or to object to this Settlement, and no written objections 16 or briefs submitted by any member of the Settlement Class shall be received or considered by the 17 Court at the Settlement Fairness Hearing, unless the written statement objecting to the Settlement is 18 mailed to the Claims Administrator no later than sixty (60) days from the Notice Date. Members of 19 the Settlement Class who fail to mail timely written objections in the manner specified above shall 20 be deemed to have waived any objections and shall be foreclosed from making any objection 21 (whether by appeal or otherwise) to the Settlement. 22 14. Any Settlement Class member who submits a timely and valid written objection 23 (“Objector”) may appear at the Fairness Hearing, either in person or through personal counsel hired 24 at the Objector’s own expense. Any Settlement Class member who does not submit a timely and 25 valid objection shall be deemed to have waived all objections to the Settlement and shall forever be 26 foreclosed from making any objection to (a) the fairness, adequacy, or reasonableness of the 27 Settlement; (b) any Final order and Final Judgment entered approving it; (c) Class Counsel’s 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 5 1 application for attorney fees and costs; or (d) any request for services awards for the class 2 representatives. 3 15. The Court will hold a final Fairness Hearing on September 24, 2019 at 10:00 a.m. 4 in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe to determine whether 5 the Settlement should be finally approved as fair, reasonable, and adequate to the Settlement Class, 6 whether Final Judgment should be entered dismissing the Action with prejudice, and whether Class 7 Counsel’s application for an award of attorney fees and costs pursuant to the Settlement should be 8 approved. 9 16. The Parties shall file any motions in support of final approval of the Settlement no 10 later than September 4, 2019. Class Counsel shall file their fee application no later than September 11 4, 2019. 12 13 14 17. The Parties shall file any responses to any Objectors, and any supplemental papers in support of final approval or Class Counsel’s fee application by no later than September 11, 2019. 18. At no time shall any of the Parties or their counsel seek, solicit or otherwise 15 encourage, directly or indirectly, members of the Settlement Class or members of the FLSA 16 collective action to submit written objections to the settlement, to opt out, or to appeal from the 17 Order and Final Judgment. 18 19 20 19. The date of the Fairness Hearing as provided in this Order and related deadlines may be rescheduled by the Court upon notice to the Parties. 20. This Order shall become null and void and shall be without prejudice to the rights of 21 the Parties, all of whom shall be restored to their respective positions existing immediately before 22 the Court entered this Order, if: (a) the Settlement is not finally approved by the Court, or does not 23 become final, pursuant to the terms of the Settlement; or (b) the Settlement does not become 24 effective pursuant to the terms of the Settlement for any other reason. 25 21. Pending the final determination of whether the Settlement should be approved, all 26 proceedings in this Action, except as may be necessary to implement the Settlement or to comply 27 with the terms of the Settlement, are hereby stayed. 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 6 1 22. The following chart summarizes the dates and deadlines set by this Order: 2 3 4 5 Last day for Defendants to provide Claims Administrator and Class Counsel with information pertaining to Members of the Settlement Class and FLSA Collective Action Notice Date No later than five (5) days of the date of this Order. Deadline to opt-out/request exclusion Deadline to object 6 No later than fourteen (14) days from the date of this Order. Sixty (60) days from Notice Date. Sixty (60) days from Notice Date. Deadline to dispute Settlement Payment Sixty (60) days from Notice Date. Last Day for Parties to file any motions in support of final approval of the Settlement, including Class Counsel’s motion for attorney fees and costs, and class representative service awards Fairness hearing September 4, 2019 7 8 9 10 11 12 13 September 24, 2019 14 15 16 17 IT IS SO ORDERED. Dated: June 18, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT 7

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