Ochoa et al v. McDonald's Corp et al

Filing 384

ORDER re 381 MOTION for Settlement MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT WITH MCDONALDS DEFENDANTS filed by Yadira Rodriguez, Ernestina Sandoval, Stephanie Ochoa, Jasmine Hedgepeth. Signed by Judge James Donato on 1/27/2017. (jdlc3S, COURT STAFF) (Filed on 1/27/2017)

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MICHAEL RUBIN (SBN 80618)
BARBARA J. CHISHOLM (SBN 224656)
P. CASEY PITTS (SBN 262463)
MATTHEW J. MURRAY (SBN 271461)
KRISTIN M. GARCIA (SBN 302291)
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, California 94108
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
JOSEPH M. SELLERS (pro hac vice)
MIRIAM R. NEMETH (pro hac vice)
Cohen Milstein Sellers & Toll, PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Plaintiffs and the Class
IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – San Francisco
STEPHANIE OCHOA, et al.,
Plaintiffs,
vs.
MCDONALD’S CORP., et al.,
Defendants.

CASE NO. 3:14-cv-02098-JD
[PROPOSED] ORDER (1) GRANTING
PRELIMINARY APPROVAL OF THE
PROPOSED CLASS ACTION SETTLEMENT,
(2) DIRECTING DISSEMINATION OF NOTICE
TO THE CLASS; AND (3) SETTING DATES
FOR FAIRNESS HEARING AND RELATED
EVENTS

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

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Plaintiffs Stephanie Ochoa, Ernestina Sandoval, Jasmine Hedgepeth and Yadira Rodriguez,

2 having filed a Motion for Preliminary Approval of Settlement with McDonald’s Defendants, and
3 the Court having reviewed that motion, the accompanying memorandum of points and authorities
4 in support of the motion and other supporting documents, the parties’ Settlement Agreement and
5 the record in this case, and for good cause shown, the Court hereby GRANTS plaintiffs’ motion
6 and ORDERS as follows:
7 I.

PRELIMINARY APPROVAL OF SETTLEMENT

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The Settlement with defendants McDonald’s Corporation, McDonald’s U.S.A., LLC, and

9 McDonald’s Restaurants of California, Inc. (“McDonald’s”) is attached as Exhibit A to the
10 Declaration of Barbara J. Chisholm in Support of Preliminary Approval of Class Action
11 Settlement. The Court has reviewed the terms of the Settlement. The Court has also considered
12 the declaration of Barbara J. Chisholm in support of preliminary approval. Based on the Court’s
13 review of these papers and its familiarity with the case, the Court finds and concludes that the
14 Settlement is the result of arms-length negotiations between the parties conducted after class
15 counsel adequately investigated plaintiffs’ claims and became familiar with the strengths and
16 weaknesses of those claims. The Court concludes that the proposed settlement satisfies all of the
17 requirements for preliminary settlement approval. The Settlement has no obvious defects and falls
18 within the range of possible approval as fair, adequate, and reasonable, such that notice to the class
19 is appropriate. Accordingly, the Settlement is hereby preliminarily approved.
20 II.
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APPROVAL OF THE CLASS NOTICE, CLAIM FORM, AND MANNER OF
DISTRIBUTION OF NOTICE AND PAYMENTS
The parties have submitted for this Court’s approval a proposed Class Notice and a

proposed Claim Form (for use only by class members whose mail is undeliverable or who are not
on the class list). The parties have also proposed a plan for disseminating these documents by mail
to all class members, after the Court grants preliminary approval of the Settlement, and a plan for
distributing payments to class members after the Court grants final approval. After carefully
reviewing these documents and plan of dissemination, the Court finds and concludes as follows:

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

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a. Best Notice Practicable
The proposed Class Notice is the best notice practicable under the circumstances and will

3 allow class members a full and fair opportunity to consider the principal settlement terms.
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The Class Notice fairly, plainly, accurately, and reasonably provides class members: (1)

5 appropriate information about the nature of this action, the definition of the class, the identity of
6 class counsel, and the essential terms of the Settlement, including the procedure for obtaining their
7 settlement shares and the manner in which each class member’s share will be determined; (2)
8 appropriate information about plaintiffs’ and class counsel’s forthcoming applications for service
9 payments, attorneys’ fees, and expenses; (3) appropriate information about the procedures for final
10 approval of the Settlement and the class members’ rights to appear through counsel if they wish;
11 (4) appropriate information about how to object to or elect not to participate in the Settlement, if a
12 class member wishes to do so; and (5) appropriate instructions as to how to obtain additional
13 information regarding this action and the Settlement. Similarly, the Settlement Agreement and
14 proposed Claim Form (for those class members required to file a claim form) allow class members
15 a full and fair opportunity to submit a claim for proceeds under the Settlement, where necessary.
16 The Class Notice fairly, accurately, and reasonably informs class members how to submit a Claim
17 Form, if one is required, and that for those class members required to submit a Claim Form, that
18 the failure to complete and submit such a Claim Form in the manner and time specified will
19 constitute a waiver of any right to obtain any share of the proceeds under the relevant settlement.
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b. Approval of Notice, Claim Form, and Plan of Distribution
The proposed plan for disseminating the Class Notice is reasonably calculated to reach all

22 individuals who would be bound by the Settlement. The Claims Administrator will distribute the
23 Class Notice to all class members by first-class mail to their last known address (including any
24 updated addresses that may be discovered through reasonable methods). The Claims Administrator
25 will also track non-delivered notice materials and take reasonable steps to re-send them to the
26 correct, current addresses. The Claims Administrator will also email a copy of the Class Notice to
27 all class members whose email addresses are known.
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The Court finds and concludes that the proposed plans for disseminating the Class Notice
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

1 will provide the best notice practicable and satisfies the notice requirements of Rule 23(e) and all
2 other legal and due process requirements. The Court hereby orders as follows:
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i. The form of the Class Notice and Claim Form is approved.

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ii. The manner of distributing the Class Notice to the class is approved.

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iii. Promptly following the entry of this order, the Claims Administrator shall

6 prepare final versions of the Class Notice and Claim Form, incorporating into them the relevant
7 dates and deadlines set forth in this Order.
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iv. Except as otherwise specified herein, the Court for purposes of this Order

9 adopts all defined terms set forth in the Settlement.
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v. No later than ten (10) business days after entry of this Order, the Claims

11 Administrator shall prepare, in electronic form, the Class List described in ¶10.b of the Settlement
12 Agreement.
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vi. No later than ten (10) business days after preparation of the Class List, the

14 Claims Administrator shall mail the Class Notice to all class members and shall email the Class
15 Notice to all class members whose email addresses are known, in accordance with ¶10.d of the
16 Settlement Agreement.
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vii. The Class Notice shall inform the class members that, as provided in the

18 Settlement Agreement, the deadline for submitting any objection to the Settlement or for opting out
19 of the Settlement shall be sixty (60) calendar days after the postmark date of the initial mailing of
20 Class Notice, and that the deadline for submitting a Claim Form (where necessary) shall be ninety
21 (90) calendar days after such postmark date.
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viii. For any notice that is returned by the post office as undeliverable, the Claims

23 Administrator shall perform a skip trace that shall include: (1) processing the class list through the
24 United States Postal Service’s National Change of Address database; (2) performing address
25 searches using public and proprietary electronic resources as are available to the Claims
26 Administrator that lawfully collect address data from various sources such as utility records,
27 property tax records, motor vehicle registration records, and credit bureaus; and (3) calling last28 known telephone numbers (and telephone numbers updated through public and proprietary
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

1 databases). If the Claims Administrator is successful in locating an alternate subsequent address or
2 addresses, the Claims Administrator will forward the notice to the new address within ten (10)
3 calendar days of receipt of the undeliverable notice.
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ix. If a Claim Form is timely submitted but is deficient in one or more aspects,

5 the Claims Administrator shall, within five (5) calendar days of receipt of the deficient form, notify
6 the Parties’ counsel of receipt of the deficient form and shall return the form to the class member
7 with a letter explaining the deficiencies and informing the class member that he or she shall have
8 fourteen (14) calendar days from the date of the deficiency notice to correct the deficiencies and
9 resubmit the Claim Form. This letter shall be provided in English and Spanish.
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x. In the event of final approval of the settlement, the Claims Administrator

11 shall distribute payments to class members in the manner and at the time provided by ¶¶25-39 of
12 the Settlement Agreement.
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xi. The Claims Administrator shall take all other actions in furtherance of

14 claims administration as are specified in the Settlement Agreement.
15 III.

INJUNCTIVE RELIEF

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Within one month of the date of this Order, McDonald’s shall implement the injunctive

17 relief set forth in ¶¶19-25 of the Settlement Agreement.
18 IV.
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PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT
a. Final Approval Hearing
The Court hereby schedules a hearing to determine whether to grant final approval of the

21 Settlement (the “Final Approval Hearing”) for July 13, 2017.
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b. Deadline to Elect Not to Participate in the Settlement
i. Form of Election
A class member may opt out of the Settlement by timely mailing a valid opt-out statement

25 to the Claims Administrator. The procedure for opting out shall be the procedure set forth in the
26 Court-approved Class Notice attached as Exhibit 2 to the Settlement Agreement. The statement to
27 be provided by a class member who chooses to opt out of the Settlement shall be: “I, [NAME],
28 voluntarily choose not to participate in the settlement of the Certified Class Action against
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

1 McDonald’s Corporation and McDonald’s USA, LLC, and hereby waive any rights I may have to
2 participate in the settlement with McDonald’s Corporation, McDonald’s USA, LLC, and
3 McDonald’s Restaurants of California, Inc. in the federal court lawsuit entitled Ochoa v.
4 McDonald’s Corp., N. D. Cal. No. 3:14-cv-02098-JD.”
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ii. Deadline for Submitting Election
Absent a showing of good cause, as determined by the Claims Administrator after input

7 from Class Counsel and McDonald’s, no opt-out statement shall be honored or valid if postmarked
8 more than sixty (60) calendar days after the postmark date of the initial mailing of the Class Notice.
9 Requests to opt out that do not include all required information shall be deemed null, void, and
10 ineffective. If a class member files both an opt-out statement and a Claim Form, the opt-out
11 statement shall be deemed invalid and the class member’s Claim Form and release of claims shall
12 be valid and controlling.
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c. Deadline for Filing Objections to Settlement
Any class member who does not timely opt out may object to the Settlement. The Class

15 Notices shall provide that class members who wish to object to the Settlement must mail a written
16 statement of objection subject to the provisions set forth below:
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i. Any such objection must be filed with the clerk of the Court and served on

18 counsel for the Parties identified in the Class Notice no later than sixty (60) calendar days after the
19 postmark date of the initial mailing of Class Notice.
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ii. The postmark date of the mailing shall be the exclusive means for

21 determining whether an objection is timely.
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iii. The objection must state the basis for the objection.

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iv. Class members who fail to make objections in the manner specified shall be

24 deemed to have waived any objections and shall be foreclosed from making any objection (whether
25 by appeal or otherwise) to the Settlement, and the Settlement shall be fully binding upon them.
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d. Deadline for Submitting Claim Forms
Absent a showing of good cause, as determined by Class Counsel, no Claim Form shall be

28 honored if postmarked more than ninety (90) days after the date the Class Notice is first mailed to
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

1 class members. The Claims Administrator shall handle any timely but deficient Claim Forms in
2 the manner specified in the Settlement Agreement.
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e. Deadline for Submitting Motion Seeking Final Approval
No later than thirty-five (35) days before the Final Approval Hearing, plaintiffs shall file a

5 motion for final approval of the settlement. Two weeks or more before the final approval hearing,
6 the parties may file a reply brief responding to any filed objections.
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f. Deadline for Motion for Class Representative Service Payments
No later than thirty-five (35) days before the final approval hearing, plaintiffs may file a

9 motion for approval of their Class Representatives’ service awards. Two weeks or more before the
10 final approval hearing, plaintiffs may file a reply brief responding to any filed opposition to the
11 Motion.
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g. Deadline for Motion for Class Counsel Attorneys’ Fees and Costs
No later than twenty-eight (28) days before the close of the 60-day period for submitting

14 requests for exclusion or objections, Class Counsel may file a motion for approval of their Class
15 Counsel attorneys’ fees and costs payment. Such amount of time provides class members with
16 sufficient time to file any objection they might have to the application. See In re Mercury
17 Interactive Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010). Two weeks or more before the
18 final approval hearing, Class Counsel may file a reply brief responding to any filed opposition to
19 the Motion.
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h. Schedule for Final Approval of Proposed Class Settlement
Consistent with the rulings set forth above, the Court orders the following schedule for

22 providing notice to the members of the provisionally certified class and for the Court’s
23 consideration of whether the proposed partial class settlement should be granted final approval:
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Event
Claims Administrator to
Prepare Class List
Claims Administrator to Mail
Class Notice

Time Limits According to Agreement
February 3, 2017
(within 10 calendar days after Preliminary Approval Order)
February 13, 2017
(within 10 calendar days after preparation of Class List)

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD

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Class Counsel to File Motion
for Attorneys’ Fees and Costs

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Deadline for submitting
requests not to participate and
objections
Deadline for Filing Claim
Forms

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discharged claims as set forth in the Settlement Agreement. Further any class members who
submit a valid Claim Form shall be deemed to have opted in to the class action and shall thereby
release their claims, whether or not such class member was listed on the Class List.
VI.

APPOINTMENT OF CLAIMS ADMINISTRATOR
CPT Group, Inc. is hereby appointed Claims Administrator. All costs and expenses of printing

and mailing the Class Notices and other costs of settlement administration STR be paid by
I shall

SD
TE
McDonald’s, pursuant to the provisions of the Settlement Agreement.
TA

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IT IS SO ORDERED

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Dated: January 27, 2017
Dated: January 27, 20

VED
APPRO

a to
es Don
d ge J a m
Ju
JAMES DONATO
E R United States District Judge
C

H

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RT

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NO

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ICT
C

RT
U
O

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Settlement Agreement and as of its Effective Date, be adjudicated to have forever released and

R NIA

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election to opt out of the Settlement according to the Settlement’s terms shall, pursuant to the

FO

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Plaintiffs and every class member listed on the Class List who does not file a timely and complete

LI

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If, at or after the Final Approval Hearing, this Court grants final approval to the Settlement,

A

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RELEASE OF CLAIMS

S

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V.

UNIT
ED

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(60 days after the Class Notice is mailed)
May 15, 2017

(No sooner than 120 days after the Preliminary Approval
Order)

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(At least 28 days before opt-out deadline)
April 14, 2017

(90 days after the Class Notice is mailed)
Class Counsel to file Motion for June 8, 2017
Named Plaintiffs’ Service
Awards and Motion for Final
(35 days prior to Final Approval Hearing)
Approval
Final Approval Hearing
July 13, 2017

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March 17, 2017

N

F
D IS T IC T O
R

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL; CASE NO. 3:14-cv-02098-JD