Adams, III v. Marketstar Corporation

Filing 41

ORDER signed by District Judge Troy L. Nunley on 2/1/2017 GRANTING 39 Motion for Preliminary Approval Of Class Action Settlement. (Washington, S)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12

KARL ADAMS, III and SHIANNA
NOTSCHER, individually, and on behalf of all
others similarly situated,

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiffs,
vs.
MARKETSTAR CORPORATION, a
corporation; and CREATE MARKETING AND
SOLUTIONS INC., a corporation,
Defendants

No. 2:14-cv-02509-TLN-DB
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

1

Plaintiffs Karl Adams, III, and Shianna Notscher’s (“Plaintiffs”) filed a Motion for

2

Preliminary Approval of Class Action Settlement with this Court on January 12, 2017. The

3

Court, having considered the papers submitted in support of the application of the parties,

4

HEREBY ORDERS THE FOLLOWING:

5

1.

The Court grants preliminary approval of the Settlement and the Settlement Class

6

based upon the terms set forth in the Stipulation of Settlement between Plaintiffs and Defendants

7

MarketStar Corporation and Create Marketing and Solutions, Inc. (“Settlement”) attached to the

8

Declaration of John Glugoski in Support of Plaintiffs’ Motion for Preliminary Approval of Class

9

Action Settlement as Exhibit 1. The Court preliminarily finds that the terms of the Settlement

10

appear to be within the range of possible approval, pursuant to Federal Rule of Civil Procedure

11

23 and applicable law.

12

2.

The Court finds on a preliminary basis that: (1) the settlement amount is fair and

13

reasonable to the Settlement Class Members when balanced against the probable outcome of

14

further litigation relating to class certification, liability and damages issues, and potential

15

appeals; (2) significant informal discovery, investigation, research, and litigation have been

16

conducted such that counsel for the Parties at this time are able to reasonably evaluate their

17

respective positions; (3) settlement at this time will avoid substantial costs, delay, and risks that

18

would be presented by the further prosecution of the litigation; and (4) the proposed Settlement

19

has been reached as the result of intensive, serious, and non-collusive negotiations between the

20

Parties. Accordingly, the Court preliminarily finds that the Stipulation of Settlement was entered

21

into in good faith.

22

3.

A final fairness hearing on the question of whether the proposed Settlement,

23

attorneys’ fees and costs to Class Counsel, and the Class Representatives Enhancement Awards,

24

should be finally approved as fair, reasonable and adequate as to the members of the Class is

25

hereby set in accordance with the Implementation Schedule set forth below.

26

4.

The Court approves, as to form and content, the Notice of Class and Collective

27

Action Settlement and Final Hearing (“Notice”) and Claim Form, attached to the Stipulation of

28

Settlement as Exhibits A and B respectively. This Court approves the procedure for Class
1

1

Members to participate in, to opt out of, and to object to, the Settlement as set forth in the

2

Settlement and in the Notice.

3

5.

The Court directs the mailing of the Notice, and Claim Forms by first class mail

4

to the Class Members in accordance with the Implementation Schedule set forth below. This

5

Court finds the dates selected for the mailing and distribution of the Notice and the Claim Form

6

as set forth in the Implementation Schedule meet the requirements of due process and provide the

7

best notice practicable under the circumstances and shall constitute due and sufficient notice to

8

all persons entitled thereto.

9

6.

It is hereby ordered that the following Class is confirmed certified for settlement

10

purposes only: “All persons currently or formerly employed by defendant MarketStar

11

Corporation or Create Marketing and Sales Solutions Inc. in the State of California, as Product

12

Specialists, Brand Advocates, Market Sell-Through Managers, Market Managers, Territory

13

Managers, Territory Representatives, Field Sales Advocates, Field Sales Representatives, Field

14

Marketing Managers, Specialists, Trainers and any other field positions, which either or both

15

Defendants classified as exempt, whose job responsibilities included making store visits and/or

16

interacting with store personnel, whether to assist in sales, promote brand awareness or train

17

store personnel or other field employees, during the period from August 15, 2010 through April

18

22, 2016.”

19

7.

The Court confirms Plaintiffs Karl Adams, III and Shianna Notscher as class

20

representatives and Righetti Glugoski, P.C. and Rastegar Law Group, APC as Class Counsel for

21

settlement purposes only.

22
23
24

8.

The Court confirms CPT Group, Inc. as the Claims Administrator with reasonable

administration costs estimated not to exceed $15,000.00.
9.

The Court further PRELIMINARILY APPROVES Class Counsel’s ability to

25

request attorneys’ fees of up to one-third of the Gross Settlement Amount ($833.333.33), and

26

costs not to exceed $40,000.00, in a separate fee motion seeking such awards to be filed pursuant

27

to the schedule set forth below.

28
2

1

10.

The Court further ORDERS that Class Counsel shall file a motion for approval of

2

the Fee and Expense Award and the Service Payment, with the appropriate declarations and

3

supporting evidence, at least fourteen (14) days after Class Notice is mailed.

4

11.

The Court further ORDERS that Class Counsel shall file a motion for Final

5

Approval of the Settlement, with the appropriate declarations and supporting evidence, including

6

a declaration setting forth the identity of any Settlement Class Members who request exclusion

7

from the Settlement, by July 27, 2017.

8
9

12.

The Court further ORDERS that each Settlement Class Member shall be given a

full opportunity to object to the proposed Settlement and request for attorneys’ fees and to

10

participate at a Final Approval Hearing which the Court sets to commence on Thursday, August

11

24, 2017, at 2:00 p.m. in Courtroom 2 of the United States District Court, Eastern District of

12

California. Any Settlement Class Member seeking to object to the proposed Settlement may file

13

such objection in writing with the Court and shall serve such objection on Class Counsel and

14

Defendants’ Counsel or may appear at the Final Approval Hearing to make the objection.

15
16

13.

Accordingly, GOOD CAUSE APPEARING, the Court orders the following

Implementation Schedule for further proceedings:

17
18

Deadline for MarketStar to provide class list to

Ten (10) calendar days after Order

19

Class Administrator

Granting Preliminary Approval

20

Deadline for Class Administrator to mail

Fourteen (14) calendar days after provision

21

Notice of Settlement

of class list to third party administrator

22

Deadline for Plaintiffs to file brief in support of Fourteen (14) calendar days after class

23

attorneys’ fees application

24

Last day for Class Members to file any requests Sixty (60) calendar days from date notice is

25

for exclusions, objections or disputed claim

26

amounts

27

Class Administrator to provide update to class

notice is mailed to Class Members

mailed to Class Members

Seventy-four (74) calendar days from date

28
3

1

counsel regarding requests for exclusion,

2

objection, or disputed amounts

3

Deadline for Plaintiffs to file motion for final

4

approval of class action settlement

5

Deadline for Plaintiffs to file motions for

6

service awards

7

Final Approval of Class Action Settlement

8

Hearing and hearing on Plaintiffs’ motion for

9

fees, costs and service awards

notice is mailed to Class Members

July 27, 2017

July 27, 2017

August 24, 2017 at 2:00 p.m.

10

Deadline for Claims Administrator to mail the

No later than fifteen (15) business days after

11

Settlement Awards and the Service Payments,

the Court grants final approval of the

12

and to wire transfer the Attorneys’ Fees and

settlement

13

Costs (if Settlement is Effective)

14
15
16

14.

The Court further ORDERS that, pending further order of this Court, all

proceedings in this Lawsuit, except those contemplated herein and in the Settlement, are stayed.
15.

The Court further ORDERS that to facilitate administration of the Settlement

17

pending final approval, this Court hereby enjoins Plaintiffs and all Class Members from filing or

18

prosecuting any claims, suits or administrative proceedings regarding claims released by the

19

Settlement, unless and until such Class Members have filed valid Opt-Out Request with the

20

Claims Administrator and the time for filing claims with the Claims Administrator has elapsed.

21

16.

If for any reason the Court does not execute and file a Final Approval Order and

22

Judgment, the proposed Settlement subject to this Order and all evidence and proceedings had in

23

connection with the Settlement shall be null and void.

24
25
26
27

17.

The Court may, for good cause, extend any of the deadlines set forth in this Order

or adjourn or continue the final approval hearing without further notice to the Class.
IT IS SO ORDERED.
Dated: February 1, 2017

28
4

Troy L. Nunley
United States District Judge