Cathcart et al v. Sara Lee Corporation et al

Filing 141

ORDER (1) CONFIRMING CERTIFICATION OF CLASS AND COLLECTIVE ACTION FOR SETTLEMENT PURPOSES; (2) GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT; AND (3) ENTERING FINAL JUDGMENT. Signed by Judge Maxine M. Chesney on December 14, 2012. (mmclc1, COURT STAFF) (Filed on 12/14/2012)

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SPIRO MOORE LLP
Ira Spiro (SBN 67641)
[e-mail]
Jennifer L. Connor (SBN 241480)
[e-mail]
11377 W. Olympic Blvd 5th Floor
Los Angeles, CA 90064
Telephone: [phone]
Facsimile: 310-235-2456
GIGLIOTTI & GIGLIOTTI, LLP
Joseph J. Gigliotti, (SBN 144979)
[e-mail]
2501 Rancho Parkway S., Ste. 101
Lake Forest, CA 92630
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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DAVID M. CATHCART, JAMES H.
Case No. CV 09-5748 MMC
WHITEHEAD, ROBERT W. DECKER,
DALE BALDISSERI, individually, and [PROPOSED] ORDER (1)
on behalf of all others similarly situated, CONFIRMING CERTIFICATION
OF CLASS AND COLLECTIVE
Plaintiff,
ACTION FOR SETTLEMENT
PURPOSES; (2) GRANTING FINAL
v.
APPROVAL OF CLASS ACTION
SETTLEMENT; AND (3)
ENTERING FINAL JUDGMENT
SARA LEE CORPORATION, SARA
LEE BAKERY GROUP,
EARTHGRAINS BAKING
COMPANIES, INC. (formerly sued as
DOE 1) and DOES 2 through 20,
Defendants.

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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On December 14, 2012, this matter came on for

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motion for final approval of the settlement in this action. Due and adequate notice having been

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given to the Settlement Class (as defined below), and the Court having considered all papers

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filed and proceedings had herein and all oral and written comments received regarding the

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proposed settlement, and having reviewed the record in the above captioned matter, and good

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cause appearing,

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
a.

The Court has jurisdiction over the subject matter of the above-captioned
action, the Class Representatives, Defendants Sara Lee Corporation, Sara

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Lee Bakery Group, and Earthgrains Baking Companies, Inc.

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all individuals employed by Defendant Earthgrains Baking Companies,

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as

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defined in the two collective bargaining agreements that have been

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addressed in this action

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and August 10, 2012, the entry date of the Preliminary Approval Order

for at least one day between December 8, 2005

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b.

The term Stipulation shall refer to the Joint Stipulation of Class Settlement

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and Release filed by the parties in this case in connection with their

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application for preliminary approval and final approval of this matter, and

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all terms herein shall have the same meaning as terms defined in the

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Stipulation, unless specifically provided herein.

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c.
forth in the Stipulation.

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d.

The Court finds that the distribution by first-class mail of the Notice of (1)
Proposed Class Settlement and (2) Final Settlement Approval Hearing

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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under the circumstances to all persons within the definition of the

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Settlement Class and fully met the requirements of due process under the

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United States Constitution and applicable state law. Based on evidence

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and other material submitted in conjunction with the Final Settlement

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Approval Hearing, the actual notice to the Settlement Class was adequate

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and ample efforts were made to contact Settlement Class members to

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allow them to participate. These papers informed Class Members of the

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terms of the Settlement, their right to claim a share of the settlement

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proceeds, their right to object to the Settlement, or to elect not to

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participate in the Settlement and pursue their own remedies, and their right

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to appear in person or by counsel at the Final Settlement Approval

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Hearing and be heard regarding approval of the Settlement. Adequate

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periods of time were provided by each of these procedures. No Settlement

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Class Members objected to the Settlement, and only two (2) individuals

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opted out of the Settlement.

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e.

The Court finds, for purposes of settlement only, that the Class satisfies

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the applicable standards for certification under Federal Rules 23(a) and

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23(b)(3). Accordingly, solely for purposes of effectuating this settlement,

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this Court has certified a class of all Settlement Class Members, as that

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term is defined above. Because the Rule 23 class is being certified here

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for settlement purposes only, the Court need not (and does not) address the

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manageability requirement of Rule 23(b)(3). See Amchem Products, Inc.

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v. Windsor, 521 U.S. 591 (1997).

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f.

The Court finds, for settlement purposes only, that the Settlement Class

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Members meet the requirements for collective action certification under

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Section 216(b) of the Fair Labor Standards Act.

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g.

The Court approves the settlement of the above-captioned action, and each
of the releases and other terms set forth in the Stipulation, as fair, just,

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

reasonable and adequate as to the Settlement Class, the Class

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Settling Parties and the Settlement Administrator are directed to perform

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in accordance with the terms set forth in the Stipulation.

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h.

Except as to any individual claim of those persons who have validly and
timely requested exclusion from the Class, namely:

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1) A. Valerio associated with Employee ID No. 90009031; and

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2) M. Hugais associated with Employee ID No. 90031063,

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all of the claims asserted in the above-captioned matter are dismissed with

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prejudice as to the Class Representatives and the Settlement Class

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Members. The Settling Par

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costs, except as otherwise provided in the Stipulation.

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i.

By this Judgment, each Class Representative shall be deemed to have, and

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by operation of the Judgment shall have, fully, finally, and forever

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released and discharged Defendants and their past, present and future

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parents, subsidiaries (whether or not wholly-owned), joint ventures,

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subsidiaries and joint ventures), divisions and subdivisions, and each of

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shareholders, agents, insurers, successors, assigns, and legal

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representatives, all in their individual and corporate capacities,

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causes of action, actions, demands, rights, and liabilities of every kind,

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nature and description, whether known or unknown, whether anticipated

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or unanticipated, arising prior to the date that this Order becomes Final,

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including, but not limited to, those which: (a) were pled in the Action;

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and/or or (b) could have been pled and which are based on any of the

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following: (i) alleged failure to pay any type of overtime wages, (ii)
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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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alleged failure to pay minimum wages, (iii) alleged failure to provide meal

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periods, (iv) alleged failure to provide itemized or accurate wage

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statements, (v) alleged failure to timely pay wages due, before or after the

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end of employment, (vi) any statutory, constitutional, regulatory,

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contractual or common law claims for wages, damages, litigation costs,

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unfair business practices, unfair competition (including, without

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limitation, claims arising under California Bus. & Prof. Code sections

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17200 et seq.); and (c) this release includes any and all of the following

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based on any of the matters released by the foregoing: penalties (including
those arising under PAGA), liquidated damages, punitive damages,

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(collec

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j.

By this Judgment, each Settlement Class Member who has not validly and

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timely requested exclusion from the Settlement by opting out (including

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the Class Representatives and Claimants), shall be deemed to have, and by

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operation of the Judgment shall have, fully, finally, and forever released

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and discharged the Released Parties from any and all claims, obligations,

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causes of action, actions, demands, rights, and liabilities of every kind,

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nature and description, whether known or unknown, whether anticipated

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or unanticipated, arising prior to the deadline to opt-out of the settlement

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as stated in the Class Notice or October 31, 2012, whichever occurs first,

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which arise under state or local or regulation and: (a) were pled in the

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Action; and/or or (b) could have been pled and which are based on any of

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the following: (i) alleged failure to pay any type of overtime wages, (ii)

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alleged failure to pay minimum wages, (iii) alleged failure to provide meal

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periods, (iv) alleged failure to provide itemized or accurate wage

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statements, (v) alleged failure to timely pay wages due, before or after the

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end of employment, (vi) any statutory, constitutional, regulatory,
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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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contractual or common law claims for wages, damages, litigation costs,

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unfair business practices, unfair competition (including, without

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limitation, claims arising under California Bus. & Prof. Code sections

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17200 et seq.); and (c) this release includes any and all of the following

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based on any of the matters released by the foregoing (a) and (b) above:

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penalties (including those arising under PAGA), liquidated damages,

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ed

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k.

By this Judgment, each and every Claimant (including the Class

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Representatives) shall be deemed to have, and by operation of the

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Judgment shall have, also fully, finally, and forever released and

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discharged the Released Parties from (in addition to the Participating Class

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action, actions, demands, rights, and liabilities, whether known or

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unknown, whether anticipated or unanticipated, arising prior to the date

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the Claimant signs his or her Claim Form that were asserted or could have

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been asserted in the action pursuant to the FLSA based any of the

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following: (i) alleged failure to pay wages, (ii) alleged failure to pay

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overtime wages, (iii) alleged failure to pay straight time wages, (iv)

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alleged failure to pay minimum wages, (v) meal periods, (vi) premium pay

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for meal periods and this release includes any and all of the following

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based on any of the matters provided for above in this paragraph:

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penalties, liquidated damages, punitive damages, interest, attorneys' fees,

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l.

By this Judgment, Class Counsel hereby releases all claims, causes of
action, demands, damages, costs, rights, and liabilities of every nature and

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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and Released Parties arising on or before the date that the Final Approval

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m.

Neither the Stipulation nor the Settlement contained therein, nor any act

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performed or document executed pursuant to or in furtherance of the

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Stipulation or the Settlement: (i) is or may be deemed to be or may be

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used as an admission of, or evidence of, the validity of any of the released

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claims described above, any wrongdoing or liability of Defendants or any

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of the Released Parties, or whether class or collective action certification

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is warranted in this action or any other proceeding or that decertification is

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not warranted in this action or any other proceeding; or (ii) is or may be

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deemed to be or may be used as an admission of, or evidence of, any fault

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or omission of Defendants or any of the Released Parties in any civil,

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criminal or administrative proceeding in any court, administrative agency

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or other tribunal. Defendants may file the Judgment from the above-

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captioned matter in any other action that may be brought against them in

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order to support a defense or counterclaim based on principles of res

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judicata, collateral estoppel, release, good faith settlement, judgment bar

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or reduction or any theory of claim preclusion or issue preclusion or

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similar defense or counterclaim.

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n.

The Action is dismissed on the merits and with prejudice, permanently

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barring the Class Representatives and Settlement Class Members (other

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than those who timely filed valid written requests for exclusion from the

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Claims, also permanently barring the Class Representatives and Claimants

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fr

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permanently barring the Class Representatives from prosecuting any of the

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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Class Counsel from prosecuting any of the Class Counse

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Claims.

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o.

The Court hereby orders the appointment of David M. Cathcart, James H.

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Whitehead, and Dale Baldisseri as Class Representatives for the

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Settlement Class for purposes of the Settlement. The Court is informed

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that named-plaintiff Robert W. Decker passed away on October 21, 2012,

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after preliminary approval, but prior to final approval of the Settlement.

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The Court hereby orders the appointment of Ira Spiro and Jennifer Connor

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of Spiro Moore LLP and Joseph Gigliotti of Gigliotti & Gigliotti LLP as

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Class Counsel for the Settlement Class for purposes of Settlement and the

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releases and other obligations therein.

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p.

The Court finds that the plan of allocation set forth in the Stipulation is

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fair and reasonable and that distribution of the Settlement Fund to

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Claimants, Class Counsel and Class Representatives shall be done in

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accordance with the terms outlined in the Class Notice and Stipulation.

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Pursuant to the Class Notice and Stipulation, Defendant Earthgrains

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Hundred Fifty Thousand Dollars and No Cents ($1,250,000.00) to fund a

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Qualified Settlement Fund, Defendants shall not be required to make any

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payments in connection with the Settlement. The following payments

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the Settlement Administrator for its services; (iii) a payment of $3,000 to

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share of payroll taxes on the Settlement Payments (paid from any

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reversion to Earthgrains); and (v) enhancement payments to the Class

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Representatives. The Court finds that these payments are fair and
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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

reasonable. Accordingly, the Court hereby awards to Class Counsel for

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disbursement. The Court also hereby approves the payment of settlement

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administration costs in the amount of $21,432.50 to Simpluris, Inc., the

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Settlement Administrator for services rendered in this matter. The

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enhancement awards to the Class Representatives in an amount of $6,000

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per Class Representative are approved, including an unopposed amount of

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$6,000 to the beneficiary of recently deceased named-plaintiff Robert W.

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Decker.

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q.

The Settlement Administrator is directed to make the foregoing payments

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to Class Counsel, the Settlement Administrator, the LWDA, and Class

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Representatives in accordance with the terms of the Stipulation. Those

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payments come out of the total Qualified Settlement Fund provided for in

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the Stipulation. After deducting the foregoing, the remaining shall

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constitute the Net Settlement Fund, and the Settlement Administrator shall

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distribute payments of Settlement Shares to Claimants, subject to the 33%

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minimum distribution, pursuant to the terms of the Stipulation.

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r.

shall revert to Earthgrains as set forth in the Stipulation.

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The unclaimed Settlement Shares and uncashed Settlement Share checks

s.

The Defendants shall also cause to be posted in a centralized location at

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every depot where Class Members who are still RSRs work the relevant

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Collective Bargaining Agreement provisions pursuant to the terms of the

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Stipulation.

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t.

This matter is hereby dismissed with prejudice. The Court reserves and

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retains exclusive and continuing jurisdiction over the above-captioned

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matter, the Class Representatives, the Settlement Class, and Defendants

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for the purposes of supervising the implementation, effectuation,

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC

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enforcement, construction, administration and interpretation of the

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Settlement and this Judgment.

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u.

This document shall constitute a judgment for purposes of Rule 58 of the
Federal Rules of Civil Procedure.

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IT IS SO ORDERED.

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Dated: December 14 , 2012
The Honorable Maxine M. Chesney
United States District Court Judge

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[PROPOSED] ORDER ON FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
CASE NO. CV 09-5748 MMC