Acosta v. Evergreen Moneysource Mortgage Company

Filing 52

ORDER signed by District Judge Kimberly J. Mueller on 9/19/2018 APPROVING the parties' request to proceed under the terms of the8/10/2018 43 preliminary approval order. Notice mailing shall commence no later than 9/20/2018. and the notice and settlement administration schedule shall continue thereafter in accordance with the terms of the preliminary approval order. Within 7 days of the date of this order, plaintiff's counsel shall file a declaration confirming that he has notified Acosta of the status of the case and his right to obtain independent counsel. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JARED ACOSTA,

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Plaintiff,

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No. 2:17-cv-00466-KJM-DB

v.

ORDER

EVERGREEN MONEYSOURCE
MORTGAGE COMPANY, a Washington
Corporation; and DOES 1 to 100,
inclusive,
Defendant.

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The court held a status conference in this matter on September 13, 2018 to address

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the purported withdrawal of class lead plaintiff Jared Acosta. Counsel Justin Rodriguez appeared

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for plaintiff; counsel Julie Yap and Tiffany Tran appeared for defendant. In light of the parties’

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positions set forth at the status conference and in their joint statement, the court ADOPTS the

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parties’ proposal to proceed under the terms of the preliminary approval order for the reasons set

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forth below.

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I.

BACKGROUND

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In this wage and hour dispute, the court issued an order on August 10, 2018

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certifying the class, preliminarily approving class settlement, and setting forth a notice and

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implementation schedule. ECF No. 43. On September 6, 2018, plaintiff’s counsel filed an
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ex parte application advising the court that lead plaintiff Jared Acosta no longer wished to fulfill

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his role as class representative, and asked the court to suspend class notice mailing and set a

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status conference to address Acosta’s desire to withdraw. ECF No. 46. Defendant did not

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oppose. ECF No. 47. In response, the court issued a minute order suspending mailing of the

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notice, setting a status conference, and ordering the parties to file a joint statement advising the

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court of their recommendations as to how to proceed. ECF No. 48. The parties jointly believe,

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notwithstanding Acosta’s desire to withdraw, the case should proceed as set forth in the court’s

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August 10, 2018 approval order. ECF No. 49. The court agrees.

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II.

DISCUSSION AND ORDER

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Other judges of this court have addressed this very issue, in orders this court finds

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persuasive. In Adoma v. Univ. of Phoenix, 913 F. Supp. 2d 964 (E.D. Cal. 2012), lead class

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plaintiff lodged objections with the court after a class settlement had already been reached. In

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approving the settlement, the court stated that “a class representative cannot alone veto a

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settlement, especially one that has been presented to and approved by the court.” Id. at 979

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(citing Federal Judicial Center, Manual for Complex Litigation § 21.642 (4th ed.)). If allowed to

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do so, it would undermine “the best interests of Rule 23 and would merely encourage strategic

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behavior designed to maximize the value of the veto rather than the settlement value of their

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claims.” Id.

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Although assent of the class representative is not required for class settlement,

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“[t]he original plaintiffs [] should be given the opportunity to retain new counsel to represent

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them in objecting to the settlement and to be heard in opposition.” Flinn v. FMC Corp., 528 F.2d

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1169, 1174 n.19 (4th Cir. 1975). Providing an objecting plaintiff with the opportunity to obtain

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independent counsel ensures class counsel maintain their fiduciary responsibility to the class as a

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whole, and place the interests of the class above those of an individual class member. Staton v.

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Boeing Co., 327 F.3d 938, 960 (9th Cir. 2003).

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Here, any attempt by Acosta to withdraw or negotiate a better settlement for

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himself should not disrupt the good-faith settlement achieved by the parties and preliminarily

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approved by the court. As discussed at the status conference, the court APPROVES the parties’
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request to proceed under the terms of the August 10, 2018 preliminary approval order. ECF No.

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43. Notice mailing shall commence no later than September 20, 2018, and the notice and

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settlement administration schedule shall continue thereafter in accordance with the terms of the

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preliminary approval order. Within seven (7) days of the date of this order, plaintiff’s counsel

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shall file a declaration confirming that he has notified Acosta of the status of the case and his

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right to obtain independent counsel.

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IT IS SO ORDERED.
DATE: September 19, 2018.

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UNITED STATES DISTRICT JUDGE

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