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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROY VAN KEMPEN, Case No. 15-cv-00660-HSG Plaintiff, 8 v. 9 10 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 11 12 On August 1, 2016, the Court denied Plaintiff’s unopposed motion for preliminary 13 approval of class and collective action settlement based on two obvious deficiencies: (1) an 14 improper opt-in mechanism for the FLSA group; and (2) an overly broad release. See Dkt. No. 57 15 at 14. In addition, the Court identified several other deficiencies present in the agreement, and 16 stated that they would need to be remedied or explained in any future motion for preliminary 17 approval. See id. at 17-20. However, Plaintiff’s renewed motion for preliminary approval fails to 18 address some of the Court’s concerns. Specifically, Plaintiff has failed to explain: (1) how 19 Plaintiff’s counsel’s declaration that there are “two discrete settlement subclasses”--the FLSA 20 overtime group and California vacation class--maps to the three settlement classes described in the 21 agreement, see id. at 18 n.4; compare Dkt. No. 49 ¶ 16 with SA ¶ 8; (2) how recovery will be 22 allocated to the California overtime class such that it might fall within the range of possible 23 approval, see Dkt. No. 57 at 17-18; (3) the discrepancy between the settlement agreement’s 24 contention that the Ambriz settlement releases all of the claims set forth in the operative complaint 25 except for the overtime and vacation time claims and Plaintiff’s counsel’s declaration that the 26 parties have agreed to fully compromise claims for late and improper termination wages under 27 California Labor Code Section 203, see id. at 18; and (4) who would receive the different versions 28 of the notice forms, and why, see id. at 20. 1 2 3 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, 4 class counsel shall include language in the settlement notices indicating the deadline for filing the 5 attorneys’ fees motion, specifically stating the deadline for any class member objections to the 6 fees motion, and informing class members that the motion and supporting materials will be 7 available for viewing by request from the Claim Administrator or class counsel. See In re 8 Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 993-94 (9th Cir. 2010) (holding that under 9 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 11 United States District Court Northern District of California 10 website not later than 20 days before class members’ objections are due. The parties are therefore 12 also DIRECTED to submit a revised notice form that addresses the Court’s concern by January 13 27, 2017 at 3:00 pm. The revised notices shall include redlined or highlighted copies clearly 14 identifying the modifications. 15 16 17 18 IT IS SO ORDERED. Dated: 1/24/2017 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 19 20 21 22 23 24 25 26 27 28 2

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