Donald v. Xanitos, Inc.

Filing 73

ORDER GRANTING 63 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT by Hon. William H. Orrick. Fairness Hearing set for 3/29/2017 02:00 PM. (jmdS, COURT STAFF) (Filed on 12/9/2016)

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HOFFMAN EMPLOYMENT LAWYERS
MICHAEL HOFFMAN, SBN 154481
[e-mail]
LEONARD EMMA, SBN 224483
[e-mail]
STEPHEN NOEL ILG, SBN 275599
[e-mail]
580 California Street, Suite 1600
San Francisco, CA 94104
Tele: 415-362-1111
Fax: [phone]
Attorneys for Plaintiff
PAULA DONALD

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UNITED STATES DISTRICT COURT

HOFFMAN EMPLOYMENT LAWYERS
580 California Street, Ste. 1600
San Francisco, CA 94104
[phone]

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NORTHERN DISTRICT OF CALIFORNIA
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PAULA DONALD, on behalf of herself, all
others similarly situated, and the general
public,

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Plaintiff,

CASE NO.: 3:14-CV-05416-WHO
ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT

vs.

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XANITOS, INC., a Delaware corporation,
KAISER FOUNDATION HOSPITALS, a
California corporation, and DOES 1 through
10, inclusive,
Defendant.

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-iDonald v. Xanitos / Case No. 3:14-cv-05416-WHO
Order Granting Motion for Preliminary Approval of Class Action Settlement

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ORDER

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Before the Court is the Plaintiff’s Motion for Preliminary Approval of Class Action

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Settlement (“Motion”) (Dkt. No. 63) and the pertinent materials filed with that motion, the

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supplemental briefing (Dkt. No. 67) and response to order to show cause (Dkt. No. 72). The

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papers filed with the response satisfied the Court’s questions concerning the settlement and, for

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good cause shown, and as more fully explained below, the Motion is GRANTED. The hearing

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scheduled for December 14, 2016 is VACATED.

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The Court ORDERS as follows:

HOFFMAN EMPLOYMENT LAWYERS
580 California Street, Ste. 1600
San Francisco, CA 94104
[phone]

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1.

Preliminary Certification of the Settlement Class. For the purposes of

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settlement only, the Court preliminarily finds that the proposed Class, as defined in the
Stipulation and Agreement to Settle Putative Class Action between the Parties and Addendum
thereto (collectively, the “Settlement Agreement”), meets the requirements of Rule 23(a) and
Rule 23(b)(3) of the Federal Rules of Civil Procedure. Accordingly, the Court certifies for
settlement purposes only the following proposed California Rule 23 Classes:
(1) All persons who provided environmental services to Defendants
within the State of California as a contractor for Xanitos, and who
Xanitos classified as an independent contractor; and

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(2) All persons who provided environmental services to Defendants
within the State of California as a supervisor, manager or similar or
equivalent designation, as an employee of Xanitos, and who Xanitos
classified as an exempt employee.

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Not later than fifteen (15) days after the date of this Order, Defendant will provide the

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Claims Administrator with a list of the names and last known addresses and phone numbers of

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the Class, including their dates of employment.

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2.

Nullification. This Order will be null and void and of no force or effect, and this

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action will proceed as though a class had never been certified, if the Settlement Agreement is not

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finally approved by the Court or if the Settlement Agreement, after being finally approved by the

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-1Donald v. Xanitos / Case No. 3:14-cv-05416-WHO
Order Granting Motion for Preliminary Approval of Class Action Settlement

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Court, is invalidated on appeal or terminated pursuant to its own terms.

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3.

Class Representative. The Court grants approval to the Named Plaintiff Paula

Donald to serve as Class Representative with respect to the settlement.

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4.

Class Counsel. The Court appoints as Class Counsel for the Settlement Class

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Leonard T. Emma, Michael R. Hoffman, and Stephen Noel Ilg, of the law firm of Hoffman

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Employment Lawyers (580 California St., Suite 1600, San Francisco, CA 94104).

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HOFFMAN EMPLOYMENT LAWYERS
580 California Street, Ste. 1600
San Francisco, CA 94104
[phone]

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5.

Preliminary Approval of the Agreement. The proposed settlement set forth in

the Settlement Agreement appears, upon preliminary review, to be fair, reasonable and adequate
and is therefore preliminarily approved subject to further consideration thereof at the Final
Approval Hearing, as provided in Paragraph 7 below. It is found that the Notice of the proposed

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Settlement should be given as provided in the Agreement and set forth in Paragraph 8 below.
6.

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Claims Administrator. Simpluris, Inc. is approved as the Claims Administrator

of the settlement as set forth in the Agreement.
7.

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Fairness Hearing. Under Rule 23(e) of the Federal Rules of Civil Procedure, a

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Fairness Hearing will be held on March 29, 2017 at 2:00 p.m. to consider final approval of the

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Agreement.1 The date and time of the Final Approval Hearing shall be set forth in the Notice, but

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the Final Approval Hearing shall be subject to adjournment by the Court without further notice

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to the Class Members other than that which may be posted by the Court.
8.

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Notice to the Class. The Notice of Proposed Settlement of Class Action Lawsuit

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and Fairness Hearing (the “Notice”) attached as Exhibit A to the Addendum to Settlement

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Agreement is approved. The Court orders that the Claims Administrator mail the Notice as set

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forth in the Settlement Agreement to the members of the Class.

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9.

Exclusion from the Settlement. Any member of the Class who wishes to not

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The parties may file a stipulation and proposed order suggesting a dfferent date for the fairness hearing within the
next week in the event the date chosen by the Court is inconvenient for the parties or Claims Administrator.

-2Donald v. Xanitos / Case No. 3:14-cv-05416-WHO
Order Granting Motion for Preliminary Approval of Class Action Settlement

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participate in the settlement may request exclusion from the class by submitting a signed request

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for exclusion to the Claims Administrator. To be effective, such request for exclusion must

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include the individual’s name, contact information, social security number, and an unequivocal

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statement that the individual requests to be excluded from the class, and it must be post-marked

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within sixty (60) days following the date of the initial mailing of the Settlement Notice Packet.

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HOFFMAN EMPLOYMENT LAWYERS
580 California Street, Ste. 1600
San Francisco, CA 94104
[phone]

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10.

Objections. Any Settlement Class Members who wish to present objections to the

proposed settlement at the Fairness Hearing must do so first in writing. To be considered, such
objections must be mailed to the Court and postmarked on or before sixty (60) days after the
initial mailing of the Settlement Packet by the Claims Administrator.
An objector who timely submits a written objection may appear at the Fairness Hearing
either in person or through counsel hired by the objector provided the objector includes a clear
statement indicating that he or she intends to appear at the Fairness Hearing. An objector may
withdraw his or her objections at any time. No Settlement Class Member may appear at the
Fairness Hearing or appeal from the Final Approval Order unless he or she has mailed a timely
objection that complies with the procedures provided herein. Any Class Member who requests
exclusion from the class may not submit objections to the settlement.

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At least 14 days before the deadline to object to or opt out of the Settlement, Class

Counsel shall file their motion for attorneys’ fees, costs, and class representative enhancements.
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Website. Class counsel shall publish a website where Class Members can obtain

more information regarding the settlement at http://www.employment-lawyers.com/xanitos.
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Effect of the Agreement. All members of the Settlement Class who do not timely

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and properly exclude themselves from the class will be bound conclusively by all of the terms of

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the Settlement Agreement, if finally approved, and by any judgment entered upon final approval.

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Class Counsel will file returned exclusion statements with the Court as set forth in the

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Agreement.

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-3Donald v. Xanitos / Case No. 3:14-cv-05416-WHO
Order Granting Motion for Preliminary Approval of Class Action Settlement

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14.

Voiding the Agreement. Pursuant to the Settlement Agreement, if ten percent

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(10%) or more of the members of the Class elect to be excluded from the Class, Defendant will

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have the right, in its sole discretion, to void this Settlement Agreement by serving a written

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notice on Class Counsel as set forth in the Settlement Agreement. If Defendant serves a timely

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notice, then the Settlement Agreement becomes null and void and this action will resume as it

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existed immediately prior to the execution of the Settlement Agreement.

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HOFFMAN EMPLOYMENT LAWYERS
580 California Street, Ste. 1600
San Francisco, CA 94104
[phone]

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15.

Order for Settlement Purposes. The findings and rulings in this Order are made

for the purposes of settlement only and may not be cited or otherwise used to support the
certification of any contested class or subclass in this action or any other action.
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Stay. All proceedings in this action, other than such proceedings as may be

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necessary to carry out the terms and conditions of the Settlement Agreement, are stayed and
suspended until further order of the Court.
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Use of Agreement and Ancillary Terms. Neither the Settlement Agreement

(whether or not it is finally approved) nor any ancillary documents, actions, statements, or filings

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in furtherance of settlement (including matters associated with the mediation) will be admissible

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or offered into evidence in any action related or similar to this one for the purposes of

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establishing, supporting or defending against any claims that were raised or could have been

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raised in this action or are similar to such claims.

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IT IS SO ORDERED.
Dated:_December 9, 2016

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WILLIAM H. ORRICK
UNITED STATES DISTRICT COURT JUDGE

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-4Donald v. Xanitos / Case No. 3:14-cv-05416-WHO
Order Granting Motion for Preliminary Approval of Class Action Settlement