Daniels v. Aeropostale West, Inc et al

Filing 60

NOTICE RE PROPOSED FLSA SETTLEMENT. Response due noon on May 23, 2014.. Signed by Judge Alsup on May 19, 2014. (whalc1, COURT STAFF) (Filed on 5/19/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PORTIA DANIELS, on behalf of herself
and all others similarly situated,

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For the Northern District of California

United States District Court

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Plaintiffs,

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No. C 12-05755 WHA

v.
AÉROPOSTALE WEST, INC., a Delaware
corporation, AÉROPOSTALE, INC., a
Delaware corporation, and DOES 1 through
10, inclusive,

NOTICE RE PROPOSED
FLSA SETTLEMENT

Defendants.

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/

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Counsel shall please be prepared to address the following problems with the proposed
FLSA settlement at the hearing on May 29:
1.

The undersigned judge is concerned about the potential or actual conflict of

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interest between plaintiff’s counsel in Sankey, et al. v. Aéropostale, Inc., No. BC457468

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(Los Angeles Sup. Ct.) and plaintiff’s counsel here. Are counsel here also counsel in

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Pakaz, et al. v. Aéropostale West, et al., No. BC493736 (Los Angeles Sup. Ct.)? The Supreme

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Court has stated that an attorney who currently represents another class against the same

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defendant may not serve as class counsel. Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999).

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Class counsel must be able to fairly and adequately represent the interests of the FLSA

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collective-action members. Lou v. Ma Labs., Inc., No. 3:12-cv-05409-WHA, 2014 WL 68605,

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at *1–2 (N.D. Cal. Jan. 8, 2014).

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2.

The parties represent that the breakdown of the proposed settlement is as follows:

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(1) $0 = 60%; (2) $1 to $200 = 38%; and (3) $201 to $588 = 2%. A proposed settlement where

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60% of the collective-action members receive zero dollars in exchange for a broad release will

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not be approved. Please further break down the 38% of collective-action members in the

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$1 to $200 category. What are the approximate percentages of individuals receiving

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(1) $1 to $25, (2) $26 to $75, (3) $76 to $100, (4) $101 to $200 under the proposed FLSA

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settlement?

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3.

No trial-ready Rule 26 damages expert reports were submitted in support of the

proposed FLSA settlement. After an order requested further information regarding the proposed
FLSA settlement, defendants appended a five-page declaration of Elaine Reardon, dated

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For the Northern District of California

United States District Court

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May 12, 2014. It appears that Ms. Reardon’s declaration was rendered after the fact, solely in

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justification of the proposed settlement. This is not sufficient.

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4.

The proposed release for the collective-action members is too broad, speculative,

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and ambiguous to be acceptable. Plaintiff’s counsel can only settle known FLSA claims

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conditionally certified by the Court and pled in the complaint.

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5.

There are multiple problems with the proposed notice, including its length and

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legalese. Nevertheless, the terms of the proposed settlement are so fundamentally flawed that a

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specific discussion of the proposed notice will be postponed for now.

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6.

If the proposed settlement by itself is not good enough for named plaintiff

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Portia Daniels, why should it be good enough for the collective-action members? Portia Daniels

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will not be entitled to receive $5,000 as an incentive payment when she and plaintiff’s counsel

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have done little to nothing for the collective-action members.

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7.

What, if anything, remains of this action if the Sankey and Pakaz actions proceed

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to judgment? The parties represent that 83 members of the Sankey class are also members of this

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collective action. Is there any overlap between the class certified in Pakaz and the collective

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action conditionally certified here?

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8.

The parties appended a copy of the Sankey proposed settlement but have failed to

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include a copy of the Pakaz proposed settlement. Please file a copy of the Pakaz proposed

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settlement. What class was certified in Pakaz?

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By NOON ON MAY 23, the parties shall please file a joint statement regarding the issues
raised in this notice. The joint statement shall not exceed twelve pages.
Both sides are reminded that the final pretrial conference is scheduled for June 2 and

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trial is scheduled for June 9. The undersigned judge is considering inviting defendants to move

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to decertify this conditionally-certified FLSA collective action. Please propose an amended case

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schedule. In the meantime, as previously stated, both sides should be prepared to proceed to trial
and all existing deadlines remain in place.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: May 19, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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