Hunt v. VEP Healthcare, Inc.
Filing
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ORDER GRANTING 49 52 RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT. Signed by Judge Vince Chhabria. (vclc1S, COURT STAFF) (Filed on 12/5/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 EMILY HUNT, on behalf of herself, all
others similarly situated, and on behalf of
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Plaintiff,
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v.
14 VEP HEALTHCARE, INC., a corporation;
and DOES 1 through 100, inclusive,
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Defendants.
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Case No. 3:16-CV-04790-VC
[PROPOSED] ORDER AS MODIFIED
GRANTING RENEWED MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
Date: November 30, 2017
Time: 10:00 a.m.
Judge: Hon. Vince Chhabria
Dept.: 2
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Action Filed:
Trial Date:
April 6, 2015
None Set
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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Case No 3:16-CV-04790-VC
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The Court has reviewed the unopposed Renewed Motion for Preliminary Approval of Class
and Collective Action Settlement filed by Plaintiff Emily Hunt. The Court has considered the
Memorandum of Points and Authorities in support of Plaintiff’s Unopposed Renewed Motion for
Preliminary Approval of Class and Collective Action Settlement, the Declaration of William Turley
and attached exhibits, the Declaration of Mae Tucker, the Declaration of Kelly Danna and attached
exhibits.
The Court’s review of this proposed settlement is governed by Federal Rule of Civil
Procedure 23(e). See Cotter v. Lyft, Inc., 176 F. Supp. 3d 930, 935 (N.D. Cal. April 7, 2016). Under
the requirements of Rule 23(e), generally, courts “determine whether a proposed settlement is
fundamentally fair, adequate, and reasonable.” Cotter, 176 F. Supp. 3d at 935 (quoting Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (citing Class Plaintiffs v. City of Seattle, 955
F.2d 1268, 1276 (9th Cir. 1992)). “It is the settlement taken as a whole, rather than the individual
parts, that must be examined for overall fairness.” Cotter, 176 F. Supp. 3d at 935 (quoting Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (citing Officers for Justice v. Civil Serv.
Comm’n of S.F., 688 F.2d 615, 628 (9th Cir. 1982)).
“District courts have interpreted Rule 23(e) to require a two-step process for the approval of
class action settlements: ‘the Court first determines whether a proposed class action settlement
deserves preliminary approval and then, after notice is given to class members, whether final
approval is warranted.’” Cotter, 176 F. Supp. 3d at 935 (quoting In re High-Tech Emp. Antitrust
Litig., Case No. 11-CV-02509-LHK, 2014 U.S. Dist. LEXIS 110064, 2014 WL 3917126, at *3
(N.D. Cal. Aug. 8, 2014) (quoting Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523,
525 (C.D. Cal. 2004)). At final approval, the Court must balance the following non-exhaustive
factors to evaluate the fairness of the proposed settlement: “the strength of the plaintiffs’ case; the
risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class
action status throughout the trial; the amount offered in settlement; the extent of discovery
completed and the stage of the proceedings; the experience and views of counsel; the presence of a
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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Case No 3:16-CV-04790-VC
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governmental participant; and the reaction of the class members to the proposed settlement.” Cotter,
176 F. Supp. 3d at 935 (quoting Hanlon, 150 F.3d at 1026 (citing Torrisi v. Tucson Elec. Power Co.,
8 F.3d 1370, 1375 (9th Cir. 1993)).
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The standards courts are to follow at the preliminary approval stage are less clear. Cotter,
176 F. Supp. 3d at 935. “Some district courts . . . have stated that the relevant inquiry is whether the
settlement ‘falls within the range of possible approval’ or ‘within the range of reasonableness.’”
Cotter, 176 F. Supp. 3d at 935 (quoting In re High-Tech Emp. Antitrust Litig., 2014 U.S. Dist.
LEXIS 110064, 2014 WL 3917126, at *3 (quoting In re Tableware Antitrust Litig., 484 F. Supp. 2d
1078, 1079 (N.D. Cal. 2007)) (citing Cordy v. USS—Posco Indus., No. 12-553, 2013 U.S. Dist.
LEXIS 108952, 2013 WL 4028627, at *3 (N.D. Cal. Aug. 1, 2013)). In determining whether the
proposed settlement falls within the range of reasonableness, perhaps the most important factor to
consider is “plaintiffs’ expected recovery balanced against the value of the settlement
offer.” Id. (quoting In re Nat'l Football League Players' Concussion Injury Litig., 961 F. Supp. 2d
708, 714 (E.D. Pa. 2014)); see also Nielson v. Sports Auth., No. C-11-4724-SBA, 2012 U.S. Dist.
LEXIS 168226, 2012 WL 5941614, at *6 (N.D. Cal. Nov. 27, 2012). “Determining whether the
settlement falls in the range of reasonableness also requires evaluating the relative strengths and
weaknesses of the plaintiffs’ case; it may be reasonable to settle a weak claim for relatively little,
while it is not reasonable to settle a strong claim for the same amount.” Cotter, 176 F. Supp. 3d at
935.
Where the parties reach a settlement before class certification, courts must apply a “higher
standard of fairness.” Cotter, 176 F. Supp. 3d at 935-936 (quoting Hanlon, 150 F.3d at 1026). This
additional scrutiny is needed to ensure that the interests of the class are adequately protected,
because the agreement has “not [been] negotiated by a court-designated class representative.” Cotter,
176 F. Supp. 3d at 935-936.
Under this framework, the Court hereby finds and orders as follows:
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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Case No 3:16-CV-04790-VC
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1.
The Court finds on a preliminary basis that the provisions of the Joint Stipulation and
Settlement Agreement (hereinafter “Agreement”), filed with the Court on December 1, 2017, are
fair, just, reasonable, and adequate and, therefore, meet the requirements for preliminary approval.
2.
For purposes of this Order, the Court adopts all defined terms as set forth in the
Agreement.
3.
The Court conditionally certifies, for settlement purposes only, the following
stipulated collective (referred to in the Parties’ Agreement as the “FLSA Collective”) described in
the Motion for Preliminary Approval:
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All individuals employed by VEP Healthcare, Inc. anywhere in the
United States as Physician’s Assistants who were eligible to receive
productivity pay from April 6, 2012 through May 15, 2017.
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4.
The Court certifies, for settlement purposes only, the following stipulated class
13 (referred to the Parties’ Agreement as the “California Class”) described in the Motion for
14 Preliminary Approval:
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All individuals employed by VEP Healthcare, Inc. as Physician’s
Assistants in the state of California who were eligible to receive
productivity pay from April 6, 2011 to May 15, 2017.
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5.
The Court finds, for settlement purposes only, the requirements of Federal Rule of
19 Civil Procedure 23(a) and Federal Rule of Civil Procedure 23(b)(3) are satisfied.
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6.
This Order, which conditionally certifies a class action for settlement purposes only,
21 shall not be cited in this or any matter for the purpose of seeking class certification, opposing
22 decertification, or for any other purpose, other than enforcing the terms of the Parties’ Agreement.
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7.
The Court finds, for settlement purposes only, the requirements of 29 U.S.C. § 216(b)
24 for conditional certification of an FLSA Collective Action are satisfied.
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8.
This Order, which conditionally certifies a FLSA collective for settlement purposes
26 only, shall not be cited in this or any matter for the purpose of seeking conditional certification,
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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opposing decertification, or for any other purpose, other than enforcing the terms of the Parties’
Agreement.
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The Court appoints for settlement purposes only, as the Class/Collective
Representative Emily Hunt.
10.
The Court appoints for settlement purposes only, William Turley, David Mara, and
Jill Vecchi of The Turley & Mara Law Firm, APLC, as Class/Collective Counsel for the purposes of
settlement and the releases and other obligations therein.
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CPT Group, Inc. is appointed as Class Administrator.
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The Notice of Collective and Class Action Settlement, in the form attached to the
Joint Stipulation and Settlement Agreement as Exhibit 1, is approved.
13.
The FLSA Settlement Claim Form and Release of Claims (hereinafter referred to as
the “FLSA Claim Form”), in the form attached to the Joint Stipulation and Settlement Agreement as
Exhibit 2, is approved.
14.
The Class Administrator is ordered to mail the Notice of Collective and Class Action
Settlement and FLSA Claim Form to the California Class and FLSA Collective Members as
provided in the Agreement. The Court finds that this Notice is the best notice practicable under the
circumstances and is in compliance with the requirements of Fed. R. Civ. P. 23 and applicable
standards of due process and that, when completed, shall constitute sufficient notice to
Class/Collective Members of the settlement, the Final Approval Hearing, and the right to be
excluded from the settlement.
15.
Each Participating California Class and FLSA Collective Member will have forty-five
(45) days after the date on which the Class Administrator mails the Class/Collective Notice to object
to the settlement by mailing a written objection to the Class Action Clerk, United States District
Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, California
94102. Any Objections shall state: (a) the objecting person’s full name, address, and telephone
number; (b) the words “Notice of Objection” or “Formal Objection;” (c) describe, in clear and
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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concise terms, the legal and factual arguments supporting the objection; (d) list identifying
witness(es) the objector may call to testify at the Final Approval Hearing; and (e) provide true and
correct copies of any exhibit(s) the objector intends to offer at the Final Approval Hearing. The
objection will not be valid if it objects only to the appropriateness of the Action or its merits. The
objection and supporting papers must also clearly identify the case name and number (Hunt v. VEP
Healthcare, Inc., Case Number 16-cv-04790).
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Each California Class Member who wishes to be excluded from the settlement shall
sign and mail a written request for exclusion to the Settlement Administrator. The written request for
exclusion must: (a) state the Class Member’s name, address, telephone number, and social security
number; (b) state the Class Member’s intention to exclude themselves from or opt-out of the
Settlement; (c) be addressed to the Settlement Administrator; (d) be signed by the Class Member or
their lawful representative; and (e) be postmarked no later than forty-five (45) days after the
Settlement Administrator first mails the Notice to the Class.
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Each FLSA Collective Member who wishes to participate in the settlement of the
FLSA Collective claims, will be required to submit the FLSA Claim Form to the Settlement
Administrator within forty-five (45) days of the Notice of Collective and Class Action Settlement
and FLSA Claim Form being mailed out. To be a valid claim submission, the FLSA Claim Form
must be post-marked no later than forty-five (45) days after the Notice and FLSA Claim Form were
mailed out by the Administrator.
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If the Agreement is not finally approved by the Court or for any reason is terminated
or otherwise does not become effective, the following will occur: (1) this Preliminary Approval
Order, and all of its provisions, will be automatically vacated; (2) the case will proceed as if no
settlement has been attempted and notice will be provided to the putative Class/Collective Members
that the settlement will not proceed and that, as a result, no payments will be made; (3) no party shall
be deemed to have waived any claims, objections, rights, or defenses, or legal arguments or
positions, including, but not limited to, objections to class certification and claims and defenses on
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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Case No 3:16-CV-04790-VC
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the merits; (4) no term or draft of the Agreement, or any aspect of the Parties’ settlement
discussions, including related documentation, will have any effect or be admissible into evidence for
any purpose in the case or in any other proceeding; and (5) Defendant shall have no obligation to pay
all or any part of the settlement.
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During the Court’s consideration of the settlement and pending further order of the
Court, all proceedings in this case, other than proceedings necessary to carry out the terms and
provisions of the Agreement, or as otherwise directed by the Court, are hereby stayed and
suspended.
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The Parties may depart from the dates and procedures if mutually agreed upon and
such departures are not materially different from the terms of this Order.
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The Court's scrutiny of a proposed settlement is as rigorous at the preliminary approval stage
as at the final approval stage. See Cotter v. Lyft, Inc., 193 F. Supp. 3d 1030, 1036-37 (N.D. Cal.
2016). In this case, the proposed settlement reflects a steep discount, which would typically be
nearly impossible to justify. Preliminary approval is granted only on the basis of the combination of
highly unusual circumstances in this case, including, among other things, the defendant's showing of
its deteriorating financial condition and inability to pay a more reasonable settlement. Nevertheless,
the discount and multiple rounds of briefing required for preliminary approval will be taken into
account in evaluating the motion for attorney's fees.
The proposed timeline from the renewed motion for preliminary approval (Dkt. No. 49 at 4243) is modified as follows. The following deadlines reflect seven-day extensions from the dates
listed in the renewed motion, as well as a new date for the fairness hearing based on the Court's
availability.
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Defendant's Production of Class/Collective List to Administrator
Administrator Sends Settlement Notice to Class/Collective Members
Plaintiff Files Motion for Attorney's Fee and Enhancement Award
and Motion for Final Approval
[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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December 14, 2017
December 21, 2017
January 19, 2018
Case No 3:16-CV-04790-VC
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Deadline for Exclusion or to Object to the Settlement
Filing of Supplemental Brief in Support of Motion for Final
Approval to Address Class/Collective Member Response
Submission of Settlement Administrator's Declaration to the Court
Final Approval Hearing
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February 4, 2018
February 8, 2018
March 1, 2018
March 15, 2018,
10:00 am
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Date: December 5, 2017
____________________________
Honorable Vince Chhabria
United States District Court Judge
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[PROPOSED] ORDER AS MODIFIED GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
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Case No 3:16-CV-04790-VC
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