Lewis et al v. Wells Fargo & Co.

Filing 315

ORDER by Judge Claudia Wilken granting 308 FLSA COLLECTIVE ACTION SETTLEMENT (ndr, COURT STAFF) (Filed on 4/29/2011)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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MARTIN LEWIS, AARON COOPER, and
ANISSA SCHILLING on behalf of
themselves and a class of those similarly
situated,

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Case No. 08-2670 CW
ORDER APPROVING FLSA
COLLECTIVE ACTION SETTLEMENT

Plaintiffs,
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v.
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WELLS FARGO & CO.,

Date:
Time:
Courtroom:
Judge:

April 28, 2011
3:00 p.m.
2, 4th floor
Honorable Claudia Wilken

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Defendant.
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912896.2

ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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On April 28, 2011, a hearing was held on the unopposed motion of Plaintiffs Martin

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Lewis, Aaron Cooper, and Anissa Schilling for Approval of FLSA Collective Action Settlement.

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Kelly M. Dermody, Jahan C. Sagafi, Jaron R. Shipp, and Anne B. Shaver of Lieff, Cabraser,

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Heimann & Bernstein, LLP appeared for Plaintiffs; and Joan B. Tucker Fife of Winston & Strawn

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LLP appeared for Wells Fargo.

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Having considered the papers on the motion, the arguments of counsel, and the law, the

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Court now enters this Settlement Approval Order and FINDS, CONCLUDES, and ORDERS as

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follows:1

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I.

NATURE OF ACTION

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Plaintiffs allege that Wells Fargo misclassified them and the Opt-Ins as exempt from

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overtime under the FLSA and California and Minnesota state laws and, on that basis, failed to pay

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them and the Opt-Ins overtime wages, to provide them with required meal periods and rest

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breaks, to provide them with correctly itemized wage statements, and to timely pay wages at

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termination. Plaintiffs also alleged that with regard to such matters, Wells Fargo violated the

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Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001 et

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seq., by failing to pay benefits as a result of failing to credit Plaintiffs and the Opt-Ins for their

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claimed unpaid wages.

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Wells Fargo denies each of the allegations in the Second Amended Complaint and denies

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that any Plaintiff or Opt-In is entitled to recovery. Wells Fargo denies that this action may be

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properly maintained as a collective action under the FLSA.

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Although Plaintiffs’ Complaint was also styled as a class action, and a class motion is

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currently pending, the Plaintiffs have compromised their class claims in order to reach resolution

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on the collective action allegations, with which Wells Fargo concurs. Accordingly, Plaintiffs’

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Motion for Class Certification is deemed withdrawn.

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II.

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JURISDICTION
This Court has jurisdiction over the subject matter of this litigation and all related matters

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Except as otherwise specified herein, the Court for purposes of this Settlement Approval Order adopts all defined
terms set forth in the Settlement.
912896.2

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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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and all state and federal claims raised in this action and/or released in the Settlement, and

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personal jurisdiction over Wells Fargo and all Opt-Ins. Specifically, this Court has federal

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question jurisdiction over this action pursuant to 28 U.S.C. § 1331; section 16(b) of the Fair

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Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b); and the Employee Retirement Income

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Security Act (“ERISA”), 29 U.S.C. § 1132(e)(1).

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This Court also has supplemental jurisdiction over all state-law claims asserted or that

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could have been asserted by Plaintiffs because the state-law claims derive from a common

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nucleus of operative fact and form part of the same case or controversy as those claims over

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which the Court has primary jurisdiction. See 28 U.S.C. § 1367 (providing for supplemental

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jurisdiction over related state-law claims that “form part of the same case or controversy”);

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United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1996) (federal courts have supplemental

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jurisdiction over state law claims that arise from the same “common nucleus of operative fact”

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such that the parties “would ordinarily be expected to try them all in one judicial proceeding”).

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This Court also has jurisdiction to approve the Settlement’s release of claims by Opt-Ins

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over which the Court has jurisdiction, even if the Court would not independently have jurisdiction

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over those released claims. See Grimes v. Vitalink Communications, 17 F.3d 1553, 1563 (3d Cir.

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1994) (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287-88 (9th Cir. 1992) (“[A]

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federal court may release not only claims alleged in the complaint, but also state claims arising

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from the same nucleus of operative facts over which the court would not have jurisdictional

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competence.”); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir. 2006)

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(quoting Class Plaintiffs, 955 F.2d at 1287-89).

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III.

APPROVAL OF SETTLEMENT

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The Court has reviewed the terms of the Settlement, including the $6,720,000 Settlement

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amount, the plan of allocation, and the release of claims. The Court has also read and considered

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Plaintiffs’ Motion for Collective Action Settlement Approval and its supporting memoranda and

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evidence, including the declaration of Jahan C. Sagafi in support of Settlement Approval. Based

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on review of those papers, and the Court’s familiarity with this case, the Court finds and

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concludes that the Settlement is the result of arms-length negotiations between the Parties,
912896.2

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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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conducted under the supervision of an experienced, independent mediator, after Plaintiffs’

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Counsel had adequately investigated Plaintiffs’ and the Opt-Ins’ claims and become familiar with

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their strengths and weaknesses. The assistance of an experienced mediator in the settlement

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process confirms that the Settlement is non-collusive.

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The Court finds and determines that the payments to be made to the Opt-Ins as provided

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for in the Settlement are fair and reasonable. The proposed plan of allocation is rationally related

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to the relative strengths of the respective claims asserted.

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The Settlement is not a concession or admission, and shall not be used or construed

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against Wells Fargo as an admission or indication with respect to any claim of any fault or

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omission by Wells Fargo.

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IV.

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APPROVAL OF THE NOTICE PROGRAM
Plaintiffs have also submitted for this Court’s approval a proposed Notice of Settlement

(submitted as Exhibit A to the Settlement).

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The Notice is the best notice practicable under the circumstances. The Notice fairly,

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plainly, accurately, and reasonably informs Opt-Ins of: (1) appropriate information about the

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nature of this action, the identities of the Opt-Ins, the definitions of Covered Position and Covered

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Periods, the identity of Plaintiffs’ Counsel, and the essential terms of the Settlement, including the

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plan of allocation; (2) appropriate information about the amounts being allocated to Plaintiffs as

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Service Payments and to Plaintiffs’ Counsel’s as attorneys’ fees and costs; and (3) appropriate

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instructions as to how to obtain additional information regarding this action and the Settlement.

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The proposed plan for distributing the Notice likewise is a reasonable method calculated

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to reach all individuals who would be bound by the Settlement. Under this plan, the Settlement

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Administrator will distribute the Notice and Settlement Share checks to all Opt-Ins by first-class

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mail to their last known addresses. There is no additional method of distribution that would be

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reasonably likely to notify Opt-Ins who may not receive notice pursuant to the proposed

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distribution plan. In addition, the Settlement Administrator will take reasonable steps to locate

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Opt-Ins who do not promptly cash their Settlement Share checks.

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Plaintiffs shall post a copy of this Order and the Settlement Agreement on the website
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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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referred to in the Notice.

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Accordingly, the Court finds and concludes that the proposed plan for distributing the

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Notice will provide the best notice practicable and satisfies all legal and due process

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requirements.

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V.

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PLAINTIFFS’ AND OPT-INS’ RELEASE OF CLAIMS
The Court has reviewed the release in section XI of the Settlement and finds it to be fair,

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reasonable, and enforceable under the FLSA and all other applicable law. Plaintiffs and every

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Opt-In shall, pursuant to the Settlement, be bound by the release of claims as set forth in the

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Settlement, regardless of whether a Plaintiff or Opt-in cashes or deposits his or her settlement

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check.

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VI.

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APPOINTMENT OF SETTLEMENT ADMINISTRATOR
Settlement Services, Inc., is hereby appointed Settlement Administrator to carry out the

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duties set forth in this Preliminary Approval Order and the Settlement.

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VII.

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SERVICE PAYMENTS TO THE NAMED PLAINTIFFS
The Court approves the service payments to the three Named Plaintiffs as set forth under

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the Settlement. The Court finds and determines that the awards of $22,000, $20,000, and $20,000

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to Plaintiffs Cooper, Lewis, and Schilling, respectively, are fair and reasonable. The Plaintiffs

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have taken significant actions to protect the interests of the Opt-Ins, and the Opt-Ins have

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benefited considerably from those actions. Furthermore, the Plaintiffs have expended

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considerable time and effort in pursuing the litigation. Plaintiffs’ assertion of California and

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Minnesota state law claims on behalf of their fellow Opt-Ins tolled the statutes of limitations for

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those state law claims, to the benefit of the Opt-Ins who worked or work in those states.

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Furthermore, Plaintiffs’ Counsel attest that Plaintiffs were substantially involved throughout the

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litigation, educating Plaintiffs’ counsel on Opt-Ins’ job duties and Wells Fargo’s policies and

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procedures. Plaintiffs submitted declarations regarding their Wells Fargo work experiences,

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which contributed to the Settlement. Plaintiffs’ depositions were taken by Defendant. Plaintiff

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Cooper also attended and assisted in the Parties’ mediation session.

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912896.2

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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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VIII. PLAINTIFFS’ COUNSEL’S AWARD OF FEES AND COSTS
The Court finds and determines that the payment of $1,680,000 in attorneys’ fees (or 25 %

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of the fund) and $184,338.71 in litigation costs and expenses, for a total payment of

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$1,864,338.71 to Plaintiffs’ Counsel, is fair and reasonable. See Vizcaino v. Microsoft Corp., 290

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F.3d 1043, 1047 (9th Cir. 2002); Chemical Bank v. City of Seattle (In re Washington Public

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Power Supply Sec. Litig.), 19 F.3d 1291, 1297 (9th Cir. 1994); Paul, Johnson, Alston & Hunt v.

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Graulty, 886 F.2d 268, 272 (9th Cir. 1989); Six Mexican Workers v. Arizona Citrus Growers, 904

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F.2d 1301, 1311 (9th Cir. 1990).

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IX.

ENFORCEMENT OF OBLIGATIONS
Nothing in this Settlement Approval Order will preclude any action to enforce the Parties’

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obligations under the Settlement or under this order, including the requirement that Wells Fargo

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make the Settlement Payments in accordance with the terms of the Settlement.

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X.

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ORDER VACATED IF SETTLEMENT IS REVERSED OR MATERIALLY
MODIFIED
If, for any reason, the Settlement is reversed or materially modified on appeal (as defined

in the Settlement, section X), this Settlement Approval Order will be vacated; the Parties will
return to their respective positions in this action as those positions existed immediately before the
parties executed the Settlement; and nothing stated in the Settlement or any other papers filed
with this Court in connection with the Settlement will be deemed an admission of any kind by any
of the Parties or used as evidence against, or over the objection of, any of the Parties for any
purpose in this action or in any other action.

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XI.
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By means of this Settlement Approval Order, this Court hereby enters final judgment in
this action, as defined in Federal Rule of Procedure 58(a)(1).

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The Parties are hereby ordered to comply with the terms of the Settlement.

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FINAL JUDGMENT

This action is dismissed with prejudice, each side to bear its own costs and attorneys’ fees
except as provided by the Settlement and the Court’s orders.

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912896.2

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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW

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XII.

CONTINUING JURISDICTION
Without affecting the finality of the Court’s judgment in any way, the Court retains

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jurisdiction over this matter for purposes of resolving issues relating to interpretation,

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administration, implementation, effectuation and enforcement of the Settlement.

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XIII. SETTLEMENT APPROVAL
Based on all of these findings and the applicable legal standards, the Court concludes that

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the proposed Settlement meets the criteria for settlement approval, and Orders the Parties to

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distribute the payments required under the Settlement.
IT IS SO ORDERED.

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Dated: April 29, 2011
The Honorable Claudia Wilken
United States District Judge

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912896.2

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ORDER APPROVING
FLSA COLLECTIVE ACTION SETTLEMENT
CASE NO. 08-2670 CW