Morris et al v. Aegis Senior Communities, LLC

Filing 27

ORDER PRELIMINARILY APPROVING CLASS AND COLLECTIVE ACTION SETTLEMENT, CONDITIONALLY CERTIFYING SETTLEMENT CLASS, APPROVING FORM OF NOTICE, AND SCHEDULING A FAIRNESS HEARING. A Fairness Hearing shall be held on September 30, 2011. No later than May 3 1, 2011, Class Counsel shall file an application for an award of attorney's fees, incentive payments, and reimbursement of costs. No later than September 16, 2011, Class Counsel shall file a motion for final approval. Signed by Judge Maxine M. Chesney on April 15, 2011. (Attachment: # 1 Exhibit) (mmclc1, COURT STAFF) (Filed on 4/15/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TAMARAH R. SEIELSTAD, individually
and on behalf of all others similarly
situated,
Plaintiff,

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v.
AEGIS SENIOR COMMUNITIES, LLC, a
Washington Limited Liability Company

No. CV 09-1797 MMC
[PROPOSED] ORDER PRELIMINARILY
APPROVING CLASS AND COLLECTIVE
ACTION SETTLEMENT,
CONDITIONALLY CERTIFYING
SETTLEMENT CLASS, APPROVING
FORM OF NOTICE, AND SCHEDULING
A FAIRNESS HEARING

Defendant.

Judge:
Room:

Hon. Maxine M. Chesney
7, 19th Floor

Action Filed:

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April 24, 2009

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KENNYON MORRIS and KAREN
JIRON, individually and on behalf of all
other similarly situated,
Plaintiffs

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v.
AEGIS SENIOR COMMUNITIES, LLC, a
Washington Limited Liability Company,

No. CV 10-2060 MMC
[PROPOSED] ORDER PRELIMINARILY
APPROVING CLASS AND COLLECTIVE
ACTION SETTLEMENT,
CONDITIONALLY CERTIFYING
SETTLEMENT CLASS, APPROVING
FORM OF NOTICE, AND SCHEDULING
A FAIRNESS HEARING
Judge:
Room:

Hon. Maxine M. Chesney
7, 19th Floor

Action Filed:

Defendant.

May 14, 2010

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On March 4, 2011, the Class Representatives, on behalf of themselves and the classes they
represent, applied to the Court for Preliminary Approval of the Joint Stipulation and Settlement
Agreement and Release of Claims (“Settlement Agreement”) in this Action, for preliminary
certification of the classes defined in the Settlement Agreement, for approval of the form of

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[PROPOSED] ORDER PRELIMIN. APPR. CLASS & COLLECTIVE ACT. STLMNT., CONDITIONALLY CERT. STLMNT. CLASS,
APPR. FORM OF NOT. & SCHEDULING FAIRNESS HRG. (CASE ##CV 09-1797 MMC & CV 10-2060 MMC) – EXHIBIT C

2834508.2

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Notice, and for the scheduling of a hearing on these and other matters (“Fairness Hearing”).
The Court, having read and considered the proposed Settlement Agreement, the proposed
Notice to Class of Proposed Settlement of Collective and Class Action and proposed methods of
notification, and having reviewed the moving papers, and good cause appearing to the satisfaction
of the Court, finds as follows:
1.

approval as fair, adequate, and reasonable to the class and merits submission to the class for
consideration pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
2.

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and other matters set forth in the Notice to Class of Proposed Settlement of Collective and Class
Action, and constitutes valid, due and sufficient notice to all persons in the proposed Class, and
comply fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the
Constitution of the United States, and any other applicable law; and based upon the foregoing.
IT IS HEREBY ORDERED that
3.

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For the purpose of implementing and enforcing the proposed Settlement

Agreement, pursuant to Rules 23(b)(3) and (e) of the Federal Rules of Civil Procedure, the
following Classes are conditionally certified:
(a)

Settlement Class A will be comprised of all current and former non-

exempt, hourly paid California employees of Defendant performing care-manager duties in the
position of lead care manager, care manger, medical care manager, and medical technician from
April 24, 2005, to and including the date on which the Court gives preliminary approval of the
Settlement.

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The proposed form of mailed Notice is adequate and constitutes the best notice

practicable of the Fairness Hearing, the proposed settlement, the attorneys’ fees and expenses,

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The proposed Settlement Agreement falls within the range of possible final

(b)

Settlement Class B will be comprised of all former California employees

of Defendant who were terminated from Defendant’s employment between the time period
April 24, 2005, to and including the date on which the Court gives preliminary approval of the
Settlement.

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-2[PROPOSED] ORDER PRELIMIN. APPR. CLASS & COLLECTIVE ACT. STLMNT., CONDITIONALLY CERT. STLMNT. CLASS,
APPR. FORM OF NOT. & SCHEDULING FAIRNESS HRG. (CASE ##CV 09-1797 MMC & CV 10-2060 MMC) – EXHIBIT C

2834508.2

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4.

The third claims for relief in the Morris and Seielstad Complaints are dismissed

against Defendant, with respect to any claims from employees of Defendant working in the State
of Nevada and the State of Washington.

to Class of Proposed Settlement of Collective and
5.
The proposed form of Notice of Class and Collective Action Settlement in the
Class Action in the form attached hereto
form attached to the Zelenski Declaration of April 13, 2011, is approved for mailing to the Class
Members.
6.

Consent to Join/Opt-In/Claim Form
The proposed form of Claim Form in the form attached to the Zelenski Declaration

of April 13, 2011, is approved for mailing to the Class Members.
7.

The law firm of Harris and Ruble and the North Bay Law Offices of David Harris

are conditionally certified as Class Counsel.
8.

Named Plaintiffs Tamarah Seielstad, Kennyon Morris and Karen Jiron are

conditionally certified as Representative Plaintiffs.
9.

A Fairness Hearing shall be held before this Court at 9 a.m. on the 30th day of

September, 2011, at the United States District Court for the Northern District of California, 450
Golden Gate Avenue, 19th Floor, Courtroom 7, San Francisco, California 94102. At the Fairness
Hearing, the Court will determine: (a) whether the proposed Settlement Agreement should be
finally approved as fair, reasonable and adequate to the Class; (b) whether a Final Order and
Judgment should be entered thereon; (c) whether Class Counsel’s attorneys’ fees and costs should
be approved; and (d) whether the proposed Plan of Allocation should be approved.
10.

No later than on May 31, 2011, Class Counsel shall file an application for an

award of attorneys’ fees and incentive payments for Plaintiffs, as well as for reimbursement of
costs (the “Application”). Contemporaneously with its filing, but in no event later than May 31,
2011, the Application shall be posted on a web site established by the Claims Administrator,
Gilardi & Co., LLC.
11.

By May 31, 2011, Class Counsel shall cause the Claims Administrator to mail the

Notice to Class of Proposed Settlement of Collective and Class Action and the Claim Form to
those persons in the Settlement Class who can be identified through reasonable effort, by First

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-3[PROPOSED] ORDER PRELIMIN. APPR. CLASS & COLLECTIVE ACT. STLMNT., CONDITIONALLY CERT. STLMNT. CLASS,
APPR. FORM OF NOT. & SCHEDULING FAIRNESS HRG. (CASE ##CV 09-1797 MMC & CV 10-2060 MMC) – EXHIBIT C

2834508.2

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Class Mail and shall arrange to have the Administrator cause to be filed with the Clerk of this
Court a declaration that the mailing has been made in accordance with this Order.
12.

No later than on September 16, 2011, Class Counsel shall file a Motion for Final

Approval, which Motion shall address any and all objections.
Any person who objects to the Settlement of the Class Action may appear and be heard at
the Fairness Hearing. Any such person must file a written notice of intention to object, file copies
of any evidence, briefs or other papers in support of the objection with the Clerk of the Court and
serve such notice of their intention to object and copies of all supporting papers within the
manner and time set forth in the Class Notice.
13.

Only persons who have filed and served valid and timely notices of objection shall

be entitled to be heard at the Fairness Hearing. An objector may appear personally or by counsel.
14.

Any Class Member who wishes to participate in the Settlement Fund must sign

and return a valid and timely Claim Form, in accordance with the instructions contained therein.
Any Class Member who does not submit a valid and timely Claim Form shall not be entitled to
participate in the Settlement Fund. Any Class Member, whether or not the Member submits a
Claim Form, and who does not opt out, shall be barred and forever enjoined from asserting any of
the Released Claims, as described in Paragraph 17 of the Settlement Agreement, against
Defendant, shall conclusively be deemed to have released any and all such Released Claims as
against Defendant, save and except for claims under the Fair Labor Standards Act, and shall be
subject to and bound by the provisions of the Settlement Agreement and Final Judgment, if the
Court ultimately approves the Settlement Agreement.
15.

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

or adjourn or continue the Fairness Hearing without further notice to the Class.
16.

Pending final determination of whether the settlement set forth in the proposed

Settlement Agreement is to be approved, the Class, either directly, representatively derivatively,
or in any other capacity, shall not commence or prosecute any action or proceeding in any court
or tribunal asserting any of the Released Claims against Defendant or the Releasees.

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-4[PROPOSED] ORDER PRELIMIN. APPR. CLASS & COLLECTIVE ACT. STLMNT., CONDITIONALLY CERT. STLMNT. CLASS,
APPR. FORM OF NOT. & SCHEDULING FAIRNESS HRG. (CASE ##CV 09-1797 MMC & CV 10-2060 MMC) – EXHIBIT C

2834508.2

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17.

If for any reason the proposed Settlement Agreement is terminated by its terms, or

Final Approval does not occur, this Order conditionally certifying the Classes shall automatically
be vacated.
IT IS SO ORDERED:

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April 15
DATED: ________________, 2011
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THE HONORABLE MAXINE M. CHESNEY
United States District Court Judge

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-5[PROPOSED] ORDER PRELIMIN. APPR. CLASS & COLLECTIVE ACT. STLMNT., CONDITIONALLY CERT. STLMNT. CLASS,
APPR. FORM OF NOT. & SCHEDULING FAIRNESS HRG. (CASE ##CV 09-1797 MMC & CV 10-2060 MMC) – EXHIBIT C

2834508.2