Cartwright, et al. v. Viking Industries, Inc.

Filing 178

ORDER FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT signed by Judge Frank C. Damrell, Jr on 6/4/2010. Final Approval Hearing SET for 8/27/2010 at 10:00 AM. (Krueger, M)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION LYNDA CARTWRIGHT and LLOYD CARTWRIGHT, on behalf of themselves and all others similarly situated, Plaintiffs, v. VIKING INDUSTRIES, INC., an Oregon Corporation, and DOES 1-100, inclusive, Defendants. SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN JOAQUIN COUNTY STOCKTON JOHN DEIST, et al., on behalf of himself and all others similarly situated, Plaintiffs, v. VIKING INDUSTRIES, INC., an Oregon Corporation, et al., Defendants. Case No. CV025771 ORDER: 1. PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND NOTICE PLAN; AND 2. SCHEDULING ORDER Hon. Carter Holly C-42 Case No. 2:07-cv-2159-FCD-EFB

Judge: Dept:

Hearing date: June 4, 2010 Hearing time: 9:30 a.m.

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ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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ORDER Counsel for the Plaintiff Settlement Class and Defendant Viking Industries, Inc ("Defendant") have moved the Courts for preliminary approval of a proposed Class Action Settlement (the "proposed Settlement"), as detailed in the Class Action Settlement Agreement ("Agreement") executed by the Representative Plaintiffs and Defendant, and approval of proposed notices and a proposed notice plan to advise the Plaintiff Settlement Class of the proposed Settlement, and have requested the Courts set a final approval hearing and issue a scheduling order. The proposed Settlement concerns Defendant's Series 3000 Aluminum Windows. The Representative Plaintiffs for the Plaintiff Settlement Class are the representative plaintiffs for the litigation class certified by the Superior Court of the State of California, County of San Joaquin, on April 9, 2009, in the action entitled Deist, et al. v. Viking Industries, Inc., Action No. CV025771 (filed March 30, 2005), and for the litigation class certified in the later filed action (filed August 16, 2007) entitled Lynda Cartwright, et al. v. Viking Industries, Inc., Action No. 2:07-cv-2159 FCD/FEB, pending in United States District Court, Eastern District of California, Sacramento Division. Both the State and Federal Courts have agreed to coordinate the Preliminary and Final Approval process and hearings. Each Court has received the executed Agreement. Each Court, having reviewed the executed Agreement and the exhibits attached thereto, having reviewed the Notice of Motion and Motion for Preliminary Approval of Class Action Settlement, along with the supporting memorandum of points and authorities, supporting declarations and exhibits thereto, and having conducted a preliminary hearing regarding the matters set forth herein, and good cause appearing, IT IS HEREBY ORDERED as following: 1. Each Court, for purposes of this order (the "Order"), adopts all defined terms as set

forth in the Agreement; 2. Each Court preliminarily approves the proposed Settlement as sufficiently fair,

reasonable and adequate to warrant sending notice to the Plaintiff Settlement Class;

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3.

Solely for purposes of effectuating the proposed Settlement, each Court hereby

adopts the definition of the term "Plaintiff Settlement Class" as found in section 1.16 of the Agreement, which definition is as follows: "all persons who own or owned property in California with a building or buildings in which Viking Series 3000 Aluminum Windows were installed at any time on or after January 1, 1989 and who own the property as of the Initial Notice Date, or at one time owned the property prior to the Initial Notice Date, except for: (a) all persons who previously opted out of the litigation classes certified in Deist, et al. v. Viking Industries, Inc.; (b) all persons who, in accordance with the terms of this Agreement, properly execute and timely file, during the Opt-Out Period, a request for exclusion from the Plaintiff Settlement Class; (c) all persons represented by counsel who, individually or as members of a class, initiated legal proceedings against Defendant that were resolved prior to the Initial Notice Date by settlement, judgment, release, dismissal or other final disposition resulting in the termination of the proceedings against Defendant; or (d) all persons who, on or before Preliminary Approval of the Settlement, were a plaintiff in a lawsuit, other than the Actions, that allege, whether in whole or in part, defects in the design and/or manufacturing of Series 3000 Aluminum Windows." 4. For purposes of effectuating the proposed Settlement, each Court hereby appoints as

Representative Plaintiffs of the Plaintiff Settlement Class: Clements and Reina Ott, Stephen and Toni Jaffe, Charles Stark and Lloyd and Lynda Cartwright. 5. Each Court appoints the following attorneys as Class Counsel: Stuart M. Eppsteiner,

of Eppsteiner & Fiorica Attorneys, LLP, and Paul D. Stevens, Milstein, of Adelman & Kreger, LLP in the Deist action; David M. Birka-White of Birka-White Law Offices, and Robert J. Nelson, of Lieff, Cabraser, Heimann & Bernstein, LLP in the Cartwright action. 6. Each Court, having considered the moving papers, declarations and exhibits

submitted in support of the Motion for Preliminary Approval of the Class Action Settlement, and
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taking into account its earlier rulings and orders in each Action, hereby preliminarily certifies, solely for the purposes of effectuating the proposed Settlement, the Plaintiff Settlement Class as defined in item 3 above. 7. Each Court finds a Final Approval Fairness Hearing, at which the Court will hear all

timely filed objections and evidence and timely requested argument, is appropriate for consideration of final approval of the proposed Settlement and to determine: (1) whether the proposed Settlement, and the terms and conditions set forth in the Agreement, are fair, reasonable and adequate, and should be finally approved by the Courts; (2) whether notice has been given to the Plaintiff Settlement Class Members in accordance with this Order; (3) whether Judgment should be entered based on the proposed Settlement, which Judgment would bind all Plaintiff Settlement Class Members in the Plaintiff Settlement Class; (4) whether Class Counsel's application for an award of attorneys' fees and costs should be approved; and (5) whether the incentive awards for the Representative Plaintiffs should be approved. 8. The respective Courts will hold a joint Final Approval Fairness Hearing on August

27, 2010, at 9:30 a.m. in Department 42 of the Superior Court of the State of California, San Joaquin County, Stockton Division, located at 222 E. Weber Avenue, Stockton, California, 95202 to consider the fairness, reasonableness and adequacy of the proposed Settlement, and to approve Class Counsel's request for an award of attorney's fees and costs, and incentive awards to the Representative Plaintiffs. 9. Moving papers for Final Approval of the proposed Settlement and Class Counsel's

application for attorneys' fees and costs and for incentive payments to the Representative Plaintiffs shall be filed on or before July 30, 2010. 10. Reply papers to any Objections to Final Approval of the proposed Settlement and

Class Counsel's application for attorneys' fees and costs and for incentive payments to the Representative Plaintiffs and\or update on number of Opt Outs, if any respectively, shall be filed on or before August 20, 2010.

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11.

Each Court approves, as to form and content, the long-form Notice of Pendency of

Class Action and Class Action Settlement and the Summary Notice attached as Exhibit "A" to the declaration of Dennis A Gilardi, the principal of the Settlement Administrator, Larkspur Design Group ("LDG"), for publication and distribution to Plaintiff Settlement Class Members. 12. declaration. 13. Each Court finds that the notice to be provided to Plaintiff Settlement Class Each Court approves the Notice Plan described in the Agreement and in the Gilardi

Members in this case, including both the content of the long-form Notice of Pendency of Class Action and Class Action Settlement and the Summary Notice attached as Exhibit "A" to the Gilardi declaration and the means by which the long-form Notice of Pendency of Class Action and Class Action Settlement and the Summary Notice attached as Exhibit "A" to the Gilardi declaration will be disseminated: (a) is the best practicable notice; (b) is reasonably calculated, under the circumstances, to apprise the Plaintiff Settlement Class Members of the pendency of the Actions and of their right to object or to exclude themselves from the proposed Settlement; (c) is reasonable and constitutes due, adequate and sufficient notice to all persons entitled to receive notice; and (d) meets all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clause), the Rules of Court, and any other applicable law. 14. The Representative Plaintiffs and Defendant are hereby authorized to: (a) establish

the means necessary to administer the proposed Settlement and to distribute and process the Claim Forms in accordance with the Agreement; and (b) retain or specially employ one or more Settlement Administrators to help administer the proposed Settlement, including providing notice to the Plaintiff Settlement Class, in accordance with the Agreement; 15. Each Court confirms the appointment of LDG as the Settlement Administrator, and

directs LDG to perform the responsibilities of the Settlement Administrator as set forth in the Agreement.

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16.

LDG is directed to mail or to cause the long-form Notice of Pendency of Class

Action and Class Action Settlement to be mailed to each Plaintiff Settlement Class Member who can be identified through reasonable effort by first class, postage prepaid, to such Plaintiff Settlement Class Member's last known address no later than June 16, 2010; 17. LDG is directed to cause the Summary Notice to be published in the publications set

forth in the Gilardi declaration no later than July 4, 2010; 18. LDG is directed to cause the Class Notice to be published on the Settlement Website

no later than June 11, 2010; 19. Each Plaintiff Settlement Class Member who wishes to exclude himself or herself

from the Class must submit a valid and timely written request for exclusion, postmarked no later than the date specified in the long-form Notice of Pendency of Class Action and Class Action Settlement and the Summary Notice, to the addresses provided in the long-form Notice of Pendency of Class Action and Class Action Settlement and the Summary Notice. 19. Any Plaintiff Settlement Class Member who does not submit a valid and timely

written request for exclusion from the Plaintiff Settlement Class will be bound by all proceedings, orders, and judgments in these Actions relating to the Agreement. 20. Each Plaintiff Settlement Class Member who wishes to object to the fairness,

reasonableness or adequacy of the Settlement Agreement, to any terms of the proposed Settlement, or to the proposed Attorneys' Fees and Expense, must file with the Court no later than August 18, 2010, and must serve Class Counsel and Defendant's Counsel, whether in person, by mail or by facsimile, so received no later than August 18, 2010, a statement containing each objection, as well as the specific reasons, if any, for each objection, including any legal support the Plaintiff Settlement Class Member wishes to bring to the Courts' attention, and any evidence the Plaintiff Settlement Class Member wishes to introduce in support of each objection, or be forever barred from objecting.

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COUNSEL FOR THE PLAINTIFF CLASS:

FOR DEFENDANTS:

Stuart M. Eppsteiner, Eppsteiner & Fiorica Attorney, LLP 12555 High Bluff Dr., Suite 155 San Diego, CA 92130 T: 858-350-1500; F: 858-350-1501 Paul Stevens, Esq. Milstein, Adelman & Kreger, LLP 2800 Donald Douglas Loop North Santa Monica, CA 90405 T: 310-396-9600; F: 310-396-9635 David M. Birka-White, Esq. Birka-White Law Offices 411 Hartz Avenue, Suite 200 Danville, CA 94526 T: 415-616-9999; F: 415- 616-9970 Robert J. Nelson (State Bar No. 132797) Lieff, Cabraser, Heiman & Bernstein, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 T:415-956-1000; F: 415-956-1008 21.

Kevin P. Cody J. Mark Thacker Ropers, Majeski, Kohn & Bentley 50 West San Fernando Street, Suite 1400 San Jose, CA 95113 T: 408 287-6262; F: 408 918-4501

Any attorney hired by a Plaintiff Settlement Class Member at that Plaintiff

Settlement Class Member's expense for the purpose of objecting to the fairness, reasonableness, or adequacy of the proposed Settlement, to any terms of the proposed Settlement, to the proposed Attorneys' Fees and Costs, or to the Incentive Awards, must file with the Court no later than August 18, 2010, and must serve Class Counsel and Defendant's Counsel, whether in person, by mail or by facsimile, so received no later than August 18, 2010, any opposition or objections, including any legal or evidentiary support; 22. Any Plaintiff Settlement Class Member who files and serves a written objection and

who intends to make an appearance at the Final Fairness Hearing, either in person or through counsel hired at that Plaintiff Settlement Class Member's expense, must file with the Court no later than August 18, 2010, and must serve Class Counsel and Defendant's Counsel, whether in person,
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by mail or by facsimile, so received no later than August 18, 2010, a notice of intention to appear and a statement identifying any documents the Plaintiff Settlement Class Member will seek to introduce or witnesses the Plaintiff Settlement Class Member will seek to call at the Final Fairness Hearing. 23. Any Plaintiff Settlement Class Member who wishes to Opt Out of the Proposed

Class Action Settlement must serve the Settlement Administrator, Class Counsel and Defendant's Counsel, whether in person, by mail or by facsimile, so received no later than August 18, 2010, written request for exclusion. 24. Defendants' Counsel and Class Counsel, and any other counsel for any Plaintiff

Settlement Class Member must promptly furnish each other with copies of any and all objections or written requests for exclusion that might come into their possession; 25. A means for individuals filing objections must be provided to allow any objector, at

his/her own expense, access, at Class Counsel's office, to the discovery materials in the Actions, provided that such individuals shall not be given access to these materials unless and until they enter into the Stipulation and Order of Confidentiality agreed upon by Class Counsel and Defendants; 26. All proceedings in both Actions are stayed until further orders of the Courts, except

as may be necessary to implement the proposed Settlement or comply with the terms of the Agreement or this Order. 27. The Courts order the following schedule for further proceedings; Proposed Date June 4, 2010 June 16, 2010 July 4, 2010 July 25, 2010 July 30, 2010 July 30, 2010 Date Ordered ****** June 16, 2010 July 4, 2010 July 25, 2010 July 30, 2010 July 30, 2010

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Event Preliminary Approval Hearing Deadline for Settlement Administrator to Mail Notice to Class Members Published notice is first published in USA Weekend and Parade Last published notice is published Deadline by which LDG will confirm that dissemination of notice to the class has been completed Deadline for Class Counsel to File Motion For 8

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Final Approval of Settlement Deadline for Class Counsel to File Motion For Attorneys' Fees, Costs and Service Payments Deadline for Opt Outs to be received by class counsel and notice administrator (45 days after published notice begins). Deadline for Objections to be received by class counsel, defendant's counsel and the Court (45 days after published notice begins) Deadline for Reply to any objections and\or update on additional opt outs. Final Approval Hearing Deadline for Class Members to Postmark/Mail Claim Forms IT IS SO ORDERED.

July 30, 2010 August 18, 2010 August 18, 2010 August 20, 2010

July 30, 2010 August 18, 2010 August 18, 2010 August 20, 2010

August 27, 2010 August 27, 2010 December 1, 2010 December 1, 2010

DATE: June 4, 2010

_________________________________ Frank C. Damrell, Jr. U.S. District Court Judge

IT IS SO ORDERED. DATE: ____________, 2010 _________________________________ Carter Holly, III Judge of the Superior Court

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