Simril v. TVI, Inc.

Filing 39


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1 JAMES KAWAHITO (SBN 234851) KAWAHITO LAW GROUP APC 2 222 N. Sepulveda Blvd., Suite 2222 El Segundo, California 90245 3 Telephone: (310) 746-5300 4 Facsimile: (310) 593-2520 SAHAG MAJARAIN II (SBN 146621) 5 LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd. 6 Tarzana, CA 91356 Telephone: (818) 609-0807 7 Fax No.: (818) 609-0892 8 Attorneys for Plaintiff Clinton Simril and Class Members 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 CLINTON SIMRIL, individually, and on behalf of other members of the general public 13 similarly situated, 14 Plaintiff, [Honorable Judge Susan Illston, Courtroom 1, 17th Floor] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 15 16 CASE NO.: 16-CV-00817-SI vs. 17 TVI, Inc., and DOES 1 through 10, inclusive, Defendants. 18 19 20 21 22 23 24 25 26 27 28 Simril v. TVI, Inc. 16-CV-00817-SI Notice of Motion 1 ORDER GRANTING PRELIMINARY APPROVAL OF 2 CLASS ACTION SETTLEMENT 3 On April 14, 2017 the Court heard Plaintiff’s Motion for Preliminary Approval of Class 4 Action Settlement by Plaintiff Clinton Simril (“Plaintiff” or “Class Representative”), on behalf of 5 himself and all others similarly situated. The Motion is not opposed by Defendant TVI, Inc. 6 (“TVI”). The Court has considered the Joint Stipulation of Class Action Settlement and Release 7 (“Settlement Agreement”), the proposed Notice of Class Action Settlement (“Class Notice”) and 8 the Motion for Preliminary Approval and its attached forms, the submissions of counsel, and 9 hereby finds and Orders as follows: 10 1. Unless otherwise defined herein, all terms used in this Order (the “Preliminary 11 Approval Order”) will have the same meaning as defined in the Settlement Agreement. 12 2. The Court finds on a preliminary basis that the settlement memorialized in the 13 Settlement Agreement, filed with the Court, falls within the range of reasonableness and, 14 therefore, meets the requirements for preliminary approval. 15 3. Based on a review of the papers submitted by the parties, the Court finds that the 16 settlement is the result of arms-length negotiations conducted after Class Counsel adequately 17 investigated the claims and became familiar with the strengths and weaknesses of those claims. 18 The assistance of an experienced mediator in the settlement process supports the Court’s 19 conclusion that the settlement is non-collusive. 20 4. The Court conditionally finds that, for the purposes of approving this settlement 21 only, the proposed Class meets the requirements for certification of a settlement class under Rule 22 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure: (a) the proposed Class is ascertainable 23 and so numerous that joinder of all members of the Class is impracticable; (b) there are questions 24 of law or fact common to the proposed Class; (c) certain claims of Plaintiff are typical of the 25 claims of the members of the proposed Class; (d) Plaintiff and their counsel will fairly and 26 adequately protect the interests of the proposed Class; and (e) a class action is superior to the other 27 available methods for an efficient resolution of this controversy. Accordingly, pursuant to Rule 23 28 of the Federal Rules of Civil Procedure, the Court conditionally certifies, for settlement purposes -1Simril v. TVI, Inc. 16-CV-00817-SI 1 only (and for no other purpose and with no other effect upon this or any other action, including no 2 effect upon this action should the settlement not ultimately be approved), the following class: All 3 persons who worked for Defendant in California as a non-exempt employee from December 21, 4 2011 to the date of Preliminary Approval 5 5. For purposes of this Preliminary Approval Order, “Class Period” means the period 6 from December 21, 2011 through the date of preliminary approval. 7 6. If the settlement does not become final for any reason, the fact that the parties were 8 willing to stipulate to class certification as part of the Settlement shall have no bearing on, and will 9 not be admissible in connection with the issue of whether a class in this action should be certified 10 in a non-settlement context. 11 7. The Court’s conditional findings are limited solely to the claims brought on behalf 12 of the proposed Class. The Court’s findings are for purposes of conditionally certifying a Class 13 and will not have any claim or issue preclusion or estoppel effect in any other action against 14 Defendant or in this action if the settlement is not finally approved. 15 8. The Court appoints, for settlement purposes only, Plaintiff Clinton Simril as 16 representative for the claims against TVI. 17 9. The Court appoints, for settlement purposes only, Kawahito Law Group APC and 18 the Law Offices of Sahag Majarian II as “Class Counsel.” 19 10. The Court approves CPT Group, Inc. as the Claims Administrator to perform duties 20 in accordance with the Settlement Agreement. 21 11. The Court finds that the procedures for notifying the Class about the settlement as 22 described in the Settlement Agreement and Class Notice provide the best notice practicable under 23 the circumstances and therefore meet the requirements of due process, and directs the mailing of 24 the Class Notice and the attachments thereto in accordance with the Settlement Agreement. 25 12. The Court approves, as to form and content, the proposed Class Notice and 26 associated forms. The Claims Administrator is authorized to mail those documents, after they are 27 updated with the appropriate dates and deadlines consistent with the Settlement Agreement, to the 28 Class Action members as provided in the Settlement Agreement. -2Simril v. TVI, Inc. 16-CV-00817-SI 1 13. The Court approves the requirements for submitting objections to the Settlement 2 Agreement set forth in the Class Notice. Class Members who wish to object to the Settlement 3 must send or file a written objection with the Court, not later than sixty calendar days from the 4 date the Claims Administrator mails the Class Notice to the Class Members. Class Members who 5 does not submit an objection in the manner and by the deadline specified above will be deemed to 6 have waived all objections and will be foreclosed from making any objections to the Settlement, 7 whether by appeal or otherwise. In the event any objections are asserted, Plaintiff and Defendant 8 may address those objections in their briefing for Final Approval of the Settlement. 9 14. The Court approves the procedures for Class Members to request exclusion from 10 the Settlement Agreement as set forth in the Class Notice. In particular, Class Members may elect 11 to opt out of the Settlement by sending a written request for exclusion to the Claims Administrator 12 at the address that is set forth in the Class Notice. To be timely, all such Requests for Exclusion 13 must be postmarked no later than sixty calendar days after the date the Claims Administrator mails 14 the Class Notice to the Class Members. Class Members who fail to comply with the opt-out 15 procedure shall not be excluded and shall instead be bound by all provisions of the Settlement 16 Agreement and all orders issued pursuant thereto. 17 15. The parties are ordered to carry out the Settlement according to the terms of the 18 Settlement Agreement. 19 20 21 22 23 24 25 26 27 28 /// -3Simril v. TVI, Inc. 16-CV-00817-SI 1 16. Plaintiff shall file the motion for fees and costs by June 23, 2017. Plaintiff shall 2 file the motion for final approval of the settlement by July 28, 2017. The Court will conduct a 3 Fairness and Good Faith Determination Hearing on August 21, 2017 at 4:00 p.m. for the purposes 4 of: (i) determining the fairness, adequacy, and reasonableness of the Settlement Agreement terms 5 and associated settlement pursuant to class action procedures and requirements; (ii) determining 6 the good faith of the Settlement Agreement and associated settlement; and (iii) entering Judgment. 7 The Fairness and Good Faith Determination Hearing may be continued without further notice to 8 Class Members. 9 10 IT IS SO ORDERED 11 12 Dated: April 17, 2017 13 ____________________ SUSAN ILLSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4Simril v. TVI, Inc. 16-CV-00817-SI

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