Martin v. Lumetra Co., Inc.

Filing 41

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVING CLASS NOTICE; AND CONDITIONALLY CERTIFYING SETTLEMENT CLASS. Hearing on Final Approval of Agreement is set for 11/18/2010 01:30 PM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 7/23/10. (cl, COURT STAFF) (Filed on 7/23/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAY E. MARTIN, Plaintiff, v. LUMETRA CO., INC., Defendant.

*E-Filed 7/23/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO. 3:09-CV-03478-RS [PROPOSED] ORDER: 1) GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 2) APPROVING CLASS NOTICE; AND 3) CONDITIONALLY CERTIFYING SETTLEMENT CLASS Date: Time: Place: Judge: July 15, 2010 1:30 p.m. Courtroom 3, 17th Floor Hon. Richard Seeborg

[PROPOSED] ORDER FOR PRELIMINARY APPROVAL CASE NO. 3:09-CV-03478-RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff Jay E. Martin and defendant Lumetra Healthcare Solutions (sued herein as Lumetra Co., Inc.), acting through their counsel, and subject to Court approval following notice to the putative class members and a hearing, have agreed to settle this litigation, as set forth in the settlement agreement (the "AGREEMENT") submitted in support of the Joint Motion for Preliminary Approval of Class Action Settlement, Approval of Class Notice, and Conditional Certification of Settlement Class (the "Motion"). A hearing on the Motion was held on July 15, 2010, before this Court. NOW, THEREFORE, the Court, having considered the papers and the arguments of counsel, and it appearing to the Court that, following notice of the proposed settlement to the putative class members, a hearing should be held to determine finally if the settlement is fair, reasonable and adequate, the Court HEREBY ORDERS as follows: 1. All of the definitions contained in the AGREEMENT shall apply to this Order and

are incorporated by reference as if fully set forth herein. 2. 3. The Motion is GRANTED. The Court hereby conditionally certifies for settlement purposes and for no other

purposes, the following class of persons: All LUMETRA employees who worked at or reported to LUMETRA's offices located at 1 Sansome Street, San Francisco, California, and who were terminated involuntarily in October or November, 2008. Excluded from the class are: (1) the individuals who held the titles (a) Vice President of Human Resources, (b) President & Chief Executive Officer, and (c) Chief Information Officer; (2) persons on indefinite unpaid leave on the date of termination; and (3) all individuals who timely request exclusion. 4. The Court conditionally and preliminarily finds that this action satisfies the

requirements for class action approval under Federal Rule of Civil Procedure 23(a) and (b)(3). The Court finds that the class is so numerous that joinder of all members would be impracticable, there are common questions of law or fact common to the class, the claims of plaintiff Jay E. Martin are typical of the claims of the class, and Jay E. Martin will fairly and adequately protect the interests of the class. The Court further finds that the questions of law and fact common to the class predominate over any questions affecting only individual members, and that a class action is superior to other methods for fairly and efficiently adjudicating the controversy. -1[PROPOSED] ORDER FOR PRELIMINARY APPROVAL CASE NO. 3:09-CV-03478-RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5.

The Court finds that the proposed class counsel will fairly and adequately

represent the interests of the class and hereby appoints as class counsel the following: LANKENAU & MILLER, LLP Stuart J. Miller 132 Nassau Street, Suite 423 New York, NY 10038 Telephone: [phone] Facsimile: (2 12) 581-2122 THE GARDNER FIRM, P.C. Mary E. Olsen M. Vance McCrary J. Cecil Gardner 210 South Washington Avenue P.O. Drawer 3103 Mobile, AL 36652 Telephone: [phone] Facsimile: [phone]

FARELLA BRAUN & MARTEL LLP Diego Acevedo 235 Montgomery Street, 17th Floor San Francisco, CA 94 104 Telephone: [phone] Facsimile: [phone] 6. 7. The Court approves and appoints as Class Representative Plaintiff Jay E. Martin. The Court finds that the settlement is the product of good faith, arms-length

negotiations between the parties, and that it is fair, reasonable, and adequate as to the CLASS MEMBERS. The Court therefore preliminarily approves the AGREEMENT and the $250,000 common-fund settlement set forth therein. 8. The Court hereby approves the form and content of the class notice attached to the

AGREEMENT as Attachment C. The proposed notice clearly and adequately describes the proposed settlement, the manner in which CLASS MEMBERS can object to or participate in the settlement, and the manner in which CLASS MEMBERS can opt out. 9. The Court finds that the best practicable notice under the circumstances is by

notice via U.S. mail to the CLASS MEMBERS at the last known address available to LUMETRA through its employment records as updated through the National Change of Address Database maintained by the United States Postal Service and with returned notice re-sent to addresses updated through the LEXIS "Allfind" database. The proposed notice complies fully with the Federal Rules of Civil Procedure and constitutional due process.

-2[PROPOSED] ORDER FOR PRELIMINARY APPROVAL CASE NO. 3:09-CV-03478-RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

10.

All costs in connection with the dissemination of the class notice and

administration of this settlement shall be paid by LUMETRA as set forth in the AGREEMENT. 11. CLASS MEMBERS shall make any requests for exclusion from the

SETTLEMENT by mail and in writing as provided in the AGREEMENT and form of notice on or before 80 days after the PRELIMINARY APPROVAL DATE. 12. CLASS MEMBERS shall file any objection to the settlement on or before 80 days

after the PRELIMINARY APPROVAL DATE. 13. The Court preliminarily approves the application of CLASS COUNSEL for

attorneys' fees and costs in the amount of $62,500 to be paid from the settlement fund as provided in the AGREEMENT. 14. The Court preliminarily approves the application of plaintiff Jay E. Martin for an

incentive award of $5,000 to be paid from the settlement fund as provided in the AGREEMENT. 15. The Court approves the State of California Labor and Workforce Development

Agency as the cy pres recipient of unclaimed settlement funds as provided in the AGREEMENT. 16.

11/18/10 at The hearing on final approval of the AGREEMENT is hereby set for __________.1:30 p.m

11/5/10 Papers for this motion shall be filed and served by __________. 7/23 Dated: _______________, 2010 By ____________________________________ Hon. Richard Seeborg United States District Judge

-3[PROPOSED] ORDER FOR PRELIMINARY APPROVAL CASE NO. 3:09-CV-03478-RS