Gardner et al v. Shell Oil Company et al

Filing 144

ORDER CERTIFYING SETTLEMENT CLASS AND GRANTING 137 PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND SETTLEMENT NOTICE, PROCEDURE, AND ADMINISTRATOR. Signed by Judge Claudia Wilken on 6/14/2012. (ndr, COURT STAFF) (Filed on 6/14/2012)

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JAY SMITH (CA Bar No. 166105)
(Email: [e-mail])
LINDA S. FANG (CA Bar No. 240245)
(Email: [e-mail])
GILBERT & SACKMAN
A LAW CORPORATION
3699 Wilshire Boulevard, Suite 1200
Los Angeles, California 90010
Tel: [phone]
Fax: [phone]

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RICHARD P. ROUCO (pro hac vice)
(Email: [e-mail])
QUINN, CONNOR, WEAVER, DAVIES & ROUCO
2700 Highway 280 East, Suite 380
Birmingham, Alabama 35223
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiffs David Gardner, Steve Mattern, Brian Cerri,
William Sullivan, Mark Landre, Lawrence Long, and Cheri Davidson

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION

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DAVID GARDNER, STEVE MATTERN, BRIAN
CERRI, WILLIAM SULLIVAN, MARK
LANDRE, LAWRENCE LONG, and CHERI
DAVIDSON individually and on behalf of all
similarly situated current and former employees,

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Plaintiffs,
v.

Case No. C 09-05876 CW (DMR)
Assigned to the Honorable Claudia Wilken
ORDER CERTIFYING SETTLEMENT
CLASS AND GRANTING PRELIMINARY
APPROVAL OF CLASS SETTLEMENT AND
SETTLEMENT NOTICE, PROCEDURE,
AND ADMINISTRATOR

EQUILON ENTERPRISES LLC dba SHELL OIL
PRODUCTS US, CRI U.S. LP, and SHELL
PIPELINE COMPANY LP
Defendants.

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Case No. C 09-05876 CW (DMR)
[AMENDED PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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Upon consideration of Plaintiffs’ Unopposed Motion for Certification of Settlement Class,

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Preliminary Approval of Class Settlement, and Approval of Settlement Notice, Procedure, and

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Administrator (the “Motion”) and the Supplement to Plaintiffs’ Unopposed Motion for Certification of

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Settlement Class, Preliminary Approval of Class Settlement, and Approval of Settlement Notice,

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Procedure and Administrator (“Supplemental Motion”), the Court finds that (1) the proposed Class meets

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the requirements of Federal Rule of Civil Procedure 23 and should be certified for settlement purposes,

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and the persons set forth below should be appointed Class Representatives and Class Counsel; (2) the

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proposed settlement is the result of arms’-length negotiations between the Parties, is not a product of

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collusion, bears a probable, reasonable relationship to the claims alleged by Plaintiffs, is within the range

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of possible judicial approval, and is hereby preliminarily approved; (3) the proposed revised Settlement

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Notices substantially in the form attached as Exhibit 1 to the Supplemental Motion and the proposed

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manner of notice set forth in Plaintiffs’ Motion and Supplemental Motion will provide the best notice

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practicable to the Settlement Class under the circumstances and satisfy the requirements of due process;

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and (4) a hearing pursuant to Rule 23(e), to consider whether the proposed settlement is fair, reasonable,

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and adequate, and whether it should be approved pursuant to Rule 23, shall be scheduled for September

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6, 2012.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

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1.

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The Court has jurisdiction over the subject matter and Parties to this proceeding pursuant

to 28 U.S.C. § 1332.

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2.

Venue is proper in this district based on the location of work performed by Defendants

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Equilon Enterprises LLC dba Shell Oil Products US (“SOPUS”), Shell Pipeline Company LP (“Shell

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Pipeline”), and CRI U.S. LP (“Criterion”) (collectively, “Defendants”) in Contra Costa County, the

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location of the Martinez Refinery and the Criterion Catalyst Plants in Contra Costa County, the

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performance of various contracts pertaining to working conditions at the Martinez Refinery, the Criterion

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Catalyst Plants, and the Carson Terminal Facility by Defendants in Contra Costa County, as well as the

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location of the commission of the acts alleged herein in Contra Costa County.

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CERTIFICATE OF SERVICE

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3.

The Court finds, for settlement purposes only, that certification of the proposed Settlement

Class is appropriate under Rule 23. Therefore, the Court certifies the following Settlement Class:

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All current and former shift employees of Defendants Equilon Enterprises LLC dba Shell
Oil Products US, Shell Pipeline Company LP, or CRI U.S. LP who worked at least one
continuous 8- or 12-hour shift between April 25, 2004 and September 30, 2011 at the
Martinez Refinery, or who worked at least one continuous 12-hour shift between April 25,
2004 and September 30, 2011 at the Criterion Catalyst Plants in Martinez or Pittsburg,
California, or who worked at least one continuous 8- or 12-hour shift between April 25,
2004 and May 10, 2007 at the Los Angeles Refinery, or who worked at least one
continuous, rotating 12-hour shift between January 1, 2007 and September 30, 2011, at the
Carson Terminal Facility.

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4.

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The Court also certifies the following Settlement Subclass with respect to Plaintiffs’

waiting-time penalty claims:
All former shift employees of Defendants Equilon Enterprises LLC dba Shell Oil
Products US, Shell Pipeline Company LP, or CRI U.S. LP who worked at least one
continuous 8- or 12-hour shift between April 25, 2004 and September 30, 2011 at the
Martinez Refinery, or who worked at least one continuous 12-hour shift between April
25, 2004 and September 30, 2011 at the Criterion Catalyst Plants in Martinez or
Pittsburg, California, or who worked at least one continuous 8- or 12-hour shift between
April 25, 2004 and May 10, 2007 at the Los Angeles Refinery, or who worked at least
one continuous 12-hour shift between January 1, 2007 and September 30, 2011, at the
Carson Terminal Facility, and who, at any time between April 25, 2005 and September
30, 2011, were terminated, resigned, or otherwise separated from employment with
Defendants and were not timely paid all wages due and owing, pursuant to California
Labor Code sections 203, 226.7, and the applicable Industrial Welfare Commission Wage
Orders. This does not include any employees at the Los Angeles Refinery who continued
employment at the refinery after its acquisition by Tesoro on May 11, 2007.
5.

The Court finds, for settlement purposes only, that the Settlement Class and Subclass

described above satisfy the following factors of Federal Rule of Civil Procedure 23:
a.

Numerosity: The Court previously determined that the meal period, waiting-time

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penalty, and UCL claims of 12-hour shift employees at the Martinez Refinery satisfy the requirements of

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Rule 23(a)(1). The Settlement Class and Subclass expand the class and subclass already certified by the

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Court. Therefore, the numerosity requirement of Rule 23(a)(1) is satisfied.

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b.

Commonality: There are issues of law and fact common to members of the

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Settlement Class, including but not limited to: (i) whether Defendants’ policies and practices deprived

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shift employees of off-duty 30-minute meal periods during their continuous work shifts, (ii) whether

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Defendants maintain or have maintained common policies that fail to properly compensate members of

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the Settlement Class in accordance with applicable law; and (iii) whether Defendants timely paid all
Case No. C 09-05876 CW (DMR)
CERTIFICATE OF SERVICE

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wages due to members of the Settlement Subclass at the time of separation from employment. Therefore,

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the commonality requirement of Rule 23(a)(2) is satisfied.

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c.

Typicality: Plaintiffs’ Third Amended Complaint adds three new class

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representatives – Mark Landre, Lawrence Long, and Cheri Davidson, each of whom were 12-hour shift

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workers at the Los Angeles Refinery when it was owned by SOPUS – to the four previously certified

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representatives of the class in this case. As stated below, the Court appoints these individuals as

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additional class representatives for the Settlement Class. The Court finds that the claims of these seven

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class representatives (“Settlement Class Representatives”) are typical of those of the Settlement Class.

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Therefore, the typicality requirement of Rule 23(a)(3) is satisfied.

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d.

Adequacy: The Court previously determined that the four original class

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representatives and their counsel are adequate representatives of the class in this case. The addition of

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three new class representatives will only serve to ensure that Settlement Class members in Southern

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California are equally represented in the settlement. Therefore, the adequacy requirement of Rule

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23(a)(4) is satisfied.

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e.

Predominance and Superiority: The Court finds that common legal and factual

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questions predominate over any questions affecting only individual members in this case and that a

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classwide settlement is superior to other available methods for a fair resolution of the controversy.

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Therefore, the predominance and superiority requirements of Rule 23(b)(3) are satisfied.

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6.

The Court has already appointed David Gardner, Steve Mattern, Brian Cerri, and William

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Sullivan as representatives of the class in this case. The Court also appoints Mark Landre, Lawrence

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Long, and Cheri Davidson as additional Settlement Class Representatives.

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7.

The Court appoints Jay Smith and Linda S. Fang of Gilbert & Sackman, A Law

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Corporation and Richard Rouco of Quinn, Connor, Weaver, Davies & Rouco as joint counsel for the

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Settlement Class (“Class Counsel”).

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8.

The Court preliminarily approves the proposed class settlement, as set out in the Parties’

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Joint Stipulation of Class Action Settlement and Settlement Agreement and Release (“Master Settlement

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Agreement”) and in Plaintiffs’ Motion, as being the result of arms’-length negotiations between

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the Parties, not a product of collusion, bearing a probable, reasonable relationship to the claims alleged

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by Plaintiffs, and within the range of possible judicial approval.

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The Court approves the form and content of the proposed revised Settlement Notices,

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substantially in the form attached as Exhibit 1 to Plaintiffs’ Supplemental Motion. The Court finds that

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the proposed revised Settlement Notices and manner of notice, as set out in Plaintiffs’ Motion and

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Supplemental Motion, constitute the best practicable notice under the circumstances, and satisfies all

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applicable requirements of law, including but not limited to Rule 23 and the due process rights of

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Settlement Class Members.

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The Court appoints Simpluris, Inc. (“Settlement Administrator”) to administer the

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proposed class settlement in this class and directs Simpluris to disseminate the Settlement Notices, and

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the Parties to act, according to the following schedule:

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14 calendar days after issuance of the preliminary
approval Order

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Last day for Defendants to provide, to Settlement
Administrator, the Settlement Class List and a
summary breakdown of the settlement payments
to be made to each Settlement Class Member,
including each individual’s (1) name, (2) lastknown address, (3) social security number or
employee identification number, (4) estimated
gross settlement payment amount, (5) the number
of shifts worked by each Settlement Class
Member in each calendar year during the relevant
statutory period

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Last day for Settlement Administrator to mail
Settlement Notice to Settlement Class Members

14 calendar days after receipt of Settlement Class
List from Defendants

Last day for Class Counsel to submit motion for
attorney’s fees

August 9, 2012

Last day for individuals to submit dispute forms
requesting review of their estimated gross
settlement payment amount, together with any
supporting written documentation

August 8, 2012

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Last day for Settlement Administrator to make
August 18, 2012 or 10 calendar days after receipt
final determinations regarding disputes, with the
of each dispute form
input and assistance of Class Counsel and Defense
Counsel
Last day for individuals to submit an objection to
the settlement or to Class Counsel’s request for
attorneys’ fees

August 23, 2012

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August 23, 2012

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Last day for individuals to exclude themselves
from the Settlement Class

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Last day for Plaintiffs to file motion for final
approval of settlement

August 28, 2012

Last day for Defendants to file proof of service of
Class Action Fairness Act notification

August 28, 2012

Fairness Hearing, to be held in Courtroom 2 of the
United States District Court for the Northern
District of California, located at 1301 Clay Street,
Oakland, California

September 6, 2012 at 2:00 p.m.

Last day for Defendants to transfer necessary
funds to Settlement Administrator, who will send
individual checks to Settlement Class Members

10 calendar days after the Effective Date1 of the
Master Settlement Agreement

Last day for Defendants to wire the attorneys’
fees, in the amount approved by the Court, to
Gilbert & Sackman, A Law Corporation

10 calendar days after the Effective Date of the
Master Settlement Agreement

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Last day for Settlement Administrator to issue and 10 calendar days after receipt of funds from
mail individual settlement checks to Settlement
Defendants
Class Members

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Class Counsel shall maintain a website at www.shellmealsettlement.com, which shall

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provide information regarding the settlement, including the Master Settlement Agreement, the Settlement

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Notices, Class Counsel’s motion for attorney’s fees and important dates and deadlines in this case.

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Class Counsel must submit their motion for attorney’s fees and all supporting documents

at least 14 days before the last day for Settlement Class members to object to the settlement.
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If a member of the Settlement Class disagrees with his or her estimated gross settlement

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payment amount, that individual may submit a dispute form to the Settlement Administrator, together

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with any supporting written documentation, no later than 30 days after the postmark date of the

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Settlement Notice. The Settlement Administrator shall, with the input and assistance of Class Counsel

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The Master Settlement Agreement defines “Effective Date” as follows: “[T]he first day on
which all of the following events shall have occurred: (a) the court has entered the Final Approval Order;
(b) the Parties have not given notice of intent to withdraw from this Agreement as permitted under
Sections IV and VII of this Agreement and the time for giving such notice has run; and (c) the Final
Approval Order has become final and nonappealable, either through the passage of time or the exhaustion
of all appeals or other methods of review by appellate courts. If there is no procedural basis for an appeal
(for example, no objections were filed), the calculation of the Effective Date shall not include the time for
the appeals process.”
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and Defense Counsel, make the final determination regarding the dispute within 10 days of receipt of the

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written request for review, or no later than 40 days after the postmark date of the Settlement Notice.

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Settlement Class members have a right to opt out of the Settlement Class and be excluded

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from receiving any benefits under the settlement by completing and mailing a written opt-out request to

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the Settlement Administrator no later than 45 days after the postmark date of the Settlement Notice. Late-

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submitted opt-out requests will not be accepted by the Settlement Administrator and shall not be

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effective. The Settlement Administrator will certify jointly to Class Counsel and Defense Counsel which

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requests for exclusion were valid and timely submitted.

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15.

The Court orders that a fairness hearing for final approval of the settlement (“Fairness

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Hearing”) be held on September 6, 2012, at 2:00 p.m. At the Fairness Hearing, the Court shall consider:

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(a) whether the settlement should be approved as fair, reasonable, and adequate for the Settlement Class;

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(b) whether a judgment granting approval of the settlement and dismissing the lawsuit with prejudice

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should be entered; and (c) whether Class Counsel’s application for attorneys’ fees and expenses should

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be approved.

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Any Settlement Class Member who intends to object to final approval of the settlement,

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including Class Counsel’s motion for attorney’s fees, must file a written objection, along with any

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supporting documents, with the Court, with copies to Class Counsel and Defense Counsel, no later than

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45 days after the postmark date of the Settlement Notice. The written objection must set forth, in clear

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and concise terms, the legal and factual arguments supporting the objection. Members of the Settlement

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Class who fail to make objections in the manner specified shall be deemed to have waived any and all

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objections and shall be foreclosed from making any objection, whether by appeal or otherwise, to the

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settlement.

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The filing of an objection allows Class Counsel or Defense Counsel, upon reasonable

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notice, to take the deposition of the objecting Settlement Class Member, and to seek any documentary

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evidence or other tangible things that are relevant to the objection. Failure of the Settlement Class

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Member to make himself or herself available for a deposition or comply with expedited discovery

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requests may result in the Court striking the Settlement Class Member’s objection and otherwise denying

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him or her the opportunity to make an objection or be further heard.
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18.

Any Settlement Class Member who wishes to be heard at the Fairness Hearing (whether in

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person or through counsel) must file with the Court and serve upon Class Counsel and Defense Counsel a

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written notice of intention to appear at the Fairness Hearing (“Notice of Intention to Appear”). The

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Notice of Intention to Appear sent to each party must include copies of any papers, exhibits, or other

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evidence that the objecting Settlement Class Member will present to the Court in connection with the

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Fairness Hearing.

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19.

The cost of providing notice and administration of the settlement, as provided for by this

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Order and the Master Settlement Agreement, shall be paid by the Defendants directly to the Settlement

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Administrator and separately from any other amounts due under this settlement.

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All payments made under the Master Settlement Agreement shall be subject to applicable

payroll deductions required by state and federal law.
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Pursuant to 28 U.S.C. § 1715(d), in the event that the Court grants final approval of the

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proposed settlement, the final order will not issue earlier than ninety days after Defendants have served

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the required CAFA notice. See 28 U.S.C. § 1715(d) (stating that an "order giving final approval of a

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proposed settlement may not be issued earlier than 90 days after the later of the dates on which the

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appropriate Federal official and the appropriate State official are served with the notice required under

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subsection (b)"). By August 28, 2012, Defendants shall submit proof of service of notice required under

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§ 1715(b) and shall indicate when the notice was served.

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6/14/2012
Dated: __________________________

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_____________________________________
The Honorable Claudia Wilken
United States District Judge

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Case No. C 09-05876 CW (DMR)
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