Bower v. Cycle Gear, Inc

Filing 69

ORDER GRANTING 63 PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT RE 67 Order on Motion for Settlement. Motions due by 4/21/2016.; Motion Hearing set for 5/26/2016 02:00 PM before Hon. Haywood S. Gilliam Jr. Signed by Judge Haywood S. Gilliam, Jr. on 12/11/2015. (ndrS, COURT STAFF) (Filed on 12/11/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
LANNDEN BOWER, as an individual,
and on behalf of all others similarly
situated,

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Plaintiff,
vs.
CYCLE GEAR, INC., a California
Corporation; and DOES 1 through 10,

CASE NO. 3:14-cv-02712-HSG
ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
Assigned to the Hon. Haywood S.
Gilliam, Jr.

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Defendants.

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT

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On November 19, 2015, the Court heard a motion by Plaintiff Lannden

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Bower (“Plaintiff”) for preliminary approval of his proposed class action

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settlement with Defendant Cycle Gear, Inc. (“Defendant”). The Court has

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considered Plaintiff’s motion, the Class Action Settlement Agreement and

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Stipulation (“Settlement Agreement”), the proposed Class Notices, and proposed

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FLSA Opt-In Form, and the submissions of counsel, and hereby finds and orders as

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follows:

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1.

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The Court finds on a preliminary basis that the class action settlement

memorialized in the Settlement Agreement, filed with the Court, falls within the

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range of reasonableness and, therefore, meets the requirements for preliminary

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approval.

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2.

The Court conditionally certifies, for settlement purposes only, the

following settlement subclasses (collectively, the “Settlement Class”):

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All hourly non-exempt employees employed by
Defendant at any time from May 11, 2012 through
December 8, 2015 and who, during that period, earned
spiffs, commissions, and/or bonuses in any week in
which they also worked more than forty (40) hours (the
“FLSA Overtime Subclass”).
All current and former non-exempt employees in
California who earned bonuses, commissions, and/or
spiffs, and earned overtime wages during a
corresponding time period, from June 11, 2010 through
December 8, 2015 (the “California Overtime Subclass”).
All current and former non-exempt employees in
California who worked shifts of 3.5 to 3.99 hours, 6.01
to 7.99 hours and/or 10.01 to 11.99 hours in duration,
from June 11, 2010 through December 8, 2015 (the “Rest
Period Subclass”).
All current and former non-exempt employees in
California who: (i) earned spiffs and overtime wages
during any pay period, and/or (ii) were paid an hour of
pay for a purported meal period violation that was
combined with the “regular hours” worked on their wage
statement, from June 11, 2013 to August 4, 2014 (the
“Wage Statement Subclass”).
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT

All former non-exempt employees in California who
received bonuses, commissions, and/or spiffs, and earned
overtime wages during a corresponding time period, from
June 11, 2011 to August 28, 2014, and who separated
their employment from Defendant from June 11, 2011
through December 8, 2015 (the “Waiting Time Penalty
Subclass”).

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All current and former hourly non-exempt employees in
California who worked shifts exceeding six hours per
day, and do not have timekeeping records reflecting: (a) a
meal period of at least thirty minutes commencing prior
to the completion of the fifth hour of work, and/or (b) a
second meal period of at least thirty minutes for shifts
worked in excess of ten hours, prior to the end of the
tenth hour of work, from June 11, 2010 through
December 8, 2015 (the “Meal Period Subclass”).

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All current and former non-exempt employees of
Defendant who are also members of the California
Overtime Class, Rest Period Class, Wage Statement
Subclass, Waiting Time Subclass, and/or Meal Period
Subclass from June 11, 2013, through December 8, 2015
(the “PAGA Aggrieved Employee Subclass”).
The Court finds that, for settlement purposes only, the requirements of
Federal Rule of Civil Procedure 23(a) and Federal Rule of Civil Procedure
23(b)(3) are satisfied, with the exception of the manageability requirement of Rule
23(b)(3) which the Court need not address for purposes of settlement.
3.

The Court appoints, for settlement purposes only, Lannden Bower, as

the Class Representative.
4.

The Court appoints, for settlement purposes only, Paul K. Haines and

Fletcher W. Schmidt of Boren Osher & Luftman LLP, and Hernaldo J. Baltodano
of Baltodano & Baltodano LLP as Class Counsel for settlement purposes.
5.

The Court appoints CPT Group, Inc. as Claims Administrator.

6.

The Court approves, as to form and content, the proposed California

Class Notice, FLSA Class Notice, and FLSA Opt-In Form. The Claims
Administrator is ordered to mail those documents to the Class members as
provided in the Settlement Agreement and the Court’s order dated December 8,
2015. Docket Entry No. 67.
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT

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7.

Members of the FLSA Overtime Subclass who have not already

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submitted an FLSA Consent Form in this action will have sixty (60) days after the

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date on which the Claims Administrator mails the Class Notices to submit an

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FLSA Opt-In form to the Claims Administrator to opt-in to the Settlement.

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8.

Each Class Member who wishes to be excluded from the Settlement

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Class will have sixty (60) days from the date the Class Notices are originally

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mailed to opt-out of the Class.

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9.

Each Settlement Class member who does not opt-out, and each FLSA

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Overtime Class member who validly opts-in, will have sixty (60) days after the

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date on which the Claims Administrator mails the Class Notices to object to the

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Settlement by serving a written objection on the Claims Administrator (who will

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then promptly serve it on Class Counsel and Defendant’s counsel). Class Counsel

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shall file any objections received with the Court.

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10.

The Court will conduct a Final Approval Hearing on May 26, 2016, at

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2:00 p.m., or as soon thereafter as the matter may be heard, to determine the

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overall fairness of the settlement and to fix the amount of reasonable attorneys’

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fees and costs to Class Counsel and incentive payment to the Class Representative.

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The Final Approval Hearing may be continued without further notice to the

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Settlement Class members. Class Counsel shall file their motion for approval of

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reasonable attorneys’ fees, costs, and the Class Representative’s incentive payment

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sought in the Settlement on or before March 4, 2016, and it shall be posted on class

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counsel’s website. Class Counsel shall file their motion for final approval of the

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settlement on or before April 21, 2016.

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11.

The following is the settlement approval schedule:

Event
Date
Defendant to provide class contact January 11, 2016
information to Claims
Administrator
Deadline to mail claim packets
January 26, 2016
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT

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Filing Deadline for attorneys’ fees
and costs motion, and incentive
payment motion
Last date to submit claims
Last date to file Objections
Filing deadline for final approval
motion
Final Fairness Hearing and
Hearing on Motions

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IT IS SO ORDERED.

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March 4, 2016

March 26, 2016
March 26, 2016
April 21, 2016
May 26, 2016

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Dated: December 11, 2015

__________________________________
The Honorable Haywood S. Gilliam, Jr.
United States District Judge

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT