Van Kempen v. Matheson Tri-Gas, Inc.

Filing 64

***DISREGARD, SEE DOCKET NO. 65 *** ORDER DIRECTING PARTIES TO ADDRESS ISSUES IDENTIFIED IN ORDER DENYING PRELIMINARY APPROVAL Re 57 . Signed by Judge Haywood S. Gilliam, Jr. on 1/24/2017. (ndrS, COURT STAFF) (Filed on 1/24/2017) Modified on 1/24/2017 (ndrS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROY VAN KEMPEN,

Case No. 15-cv-00660-HSG

Plaintiff,
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v.
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MATHESON TRI-GAS, INC.,
Defendant.

ORDER DIRECTING PARTIES TO
ADDRESS ISSUES IDENTIFIED IN
ORDER DENYING PRELIMINARY
APPROVAL
Re: Dkt. No. 60

United States District Court
Northern District of California

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On August 1, 2016, the Court denied Plaintiff’s unopposed motion for preliminary

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approval of class and collective action settlement based on two obvious deficiencies: (1) an

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improper opt-in mechanism for the FLSA group; and (2) an overly broad release. See Dkt. No. 57

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at 14. In addition, the Court identified several other deficiencies present in the agreement, and

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stated that they would need to be remedied or explained in any future motion for preliminary

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approval. See id. at 17-20. However, Plaintiff’s renewed motion for preliminary approval fails to

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address some of the Court’s concerns. Specifically, Plaintiff has failed to explain: (1) how

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Plaintiff’s counsel’s declaration that there are “two discrete settlement subclasses”--the FLSA

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overtime group and California vacation class--maps to the three settlement classes described in the

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agreement, see id. at 18 n.4; compare Dkt. No. 49 ¶ 16 with SA ¶ 8; (2) how recovery will be

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allocated to the California overtime class such that it might fall within the range of possible

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approval, see Dkt. No. 57 at 17-18; (3) the discrepancy between the settlement agreement’s

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contention that the Ambriz settlement releases all of the claims set forth in the operative complaint

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except for the overtime and vacation time claims and Plaintiff’s counsel’s declaration that the

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parties have agreed to fully compromise claims for late and improper termination wages under

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California Labor Code Section 203, see id. at 18; and (4) who would receive the different versions

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of the notice forms, and why, see id. at 20.

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The parties are thus DIRECTED to submit a joint supplemental statement addressing each
of the above-referenced questions by January 27, 2017 at 3:00 pm.
In addition, to enable class members to review class counsel’s motion for attorneys’ fees,

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class counsel shall include language in the settlement notices indicating the deadline for filing the

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attorneys’ fees motion, specifically stating the deadline for any class member objections to the

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fees motion, and informing class members that the motion and supporting materials will be

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available for viewing by request from the Claim Administrator or class counsel. See In re

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Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 993-94 (9th Cir. 2010) (holding that under

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Rule 23(h), class members must be given a full and fair opportunity to examine and object to
attorneys’ fees motion). That motion shall be filed with the Court and posted on the settlement

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United States District Court
Northern District of California

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website not later than 20 days before class members’ objections are due. The parties are therefore

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also DIRECTED to submit a revised notice form that addresses the Court’s concern by January

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27, 2017 at 3:00 pm. The revised notices shall include redlined or highlighted copies clearly

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identifying the modifications.

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IT IS SO ORDERED.
Dated: 1/24/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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