Sandoval et al v. AB Landscaping, Inc. et al

Filing 64

INTERIM ORDER re: 59 Joint Motion for Order Certifying Tentative Settlement Class, Preliminarily Approving Proposed Settlement, Approving and Directing the Notice Plan, Appointing Class Counsel, and Approving Settlement Administrator. See order for details. Signed by Magistrate Judge Howard R. Lloyd on 6/14/2011. (hrllc1, COURT STAFF) (Filed on 6/14/2011)

1

** E-filed June 14, 2011 **

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

For the Northern District of California

NOT FOR CITATION

8

United States District Court

7

SAN JOSE DIVISION

11

LUIS SANDOVAL, et al.,
Plaintiffs,

12
13
14
15

v.
AB LANDSCAPING, INC., et al.,
Defendants.

16
17

____________________________________/

No. C09-04969 HRL
INTERIM ORDER RE: JOINT
MOTION FOR ORDER CERTIFYING
TENTATIVE SETTLEMENT CLASS,
PRELIMINARILY APPROVING
PROPOSED SETTLEMENT,
APPROVING AND DIRECTING THE
NOTICE PLAN, APPOINTING CLASS
COUNSEL, AND APPOINTING
SETTLEMENT ADMINISTRATOR
[Re: Docket No. 59]

18
19

Luis Sandoval (“Sandoval”), Israel Rodriguez (“Rodriguez”), and Cesar Martinez

20

(“Martinez”) (collectively, “Named Plaintiffs”) and AB Landcaping, Inc. (“AB Landscaping”) and

21

Victor Arellano (“Arellano”) (collectively, “Defendants”) have entered into a Joint Stipulation of

22

Settlement and Release to settle and dismiss the above-captioned litigation on a class-action basis

23

and have filed a joint motion for an order provisionally certifying the settlement class and

24

preliminarily approving their settlement, approving and directing their notice of settlement, and

25

setting a schedule for the final settlement approval process. Docket No. 59 (“Joint Motion”); Docket

26

No. 60-1 (“Settlement Agreement”). The Court held a hearing on the Joint Motion on May 10, 2011.

27

Docket No. 61. Shortly thereafter, based on the Court’s comments during the hearing, the parties

28

submitted certain revised documents; namely, a draft Notice of Class Action Settlement and

1

Settlement Hearing (“Notice”); a draft Claim Form (“Claim Form”); and a draft Opt-In Form (“Opt-

2

In Form”).

3

Upon review, the Court found that Notice, Claim Form, and Opt-In Form submitted by the

4

parties were unclear and, in some instances, inconsistent with the terms of the Settlement

5

Agreement. Accordingly, the Court revised substantial portions of each document. The documents

6

are attached to this Interim Order. If the parties have any comments or proposed revisions to these

7

documents, they shall submit them to the Court within 7 days from the date of this order.

8
9

For the Northern District of California

United States District Court

10
11

IT IS SO ORDERED.
Dated: June 14, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

1

C09-04969 HRL Notice will be electronically mailed to:

2

Adam Wang
[e-mail], [e-mail], [e-mail]
Adam Lee Pedersen [e-mail]
Roger Mark Mason [e-mail], [e-mail]

3
4

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

5
6
7
8
9

For the Northern District of California

United States District Court

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

NOTICE OF CLASS ACTION SETTLEMENT AND SETTLEMENT HEARING
Sandoval, et al. v. AB Landscaping, Inc., et al.
Case No.: C09-04969 HRL
United States District Court for the Northern District of California
Date action filed: October 19, 2009
TO: ALL EMPLOYEES OF AB LANDSCAPING INC. OR VICTOR ARELLANO WHO
WERE EMPLOYED ON AN HOURLY BASIS BETWEEN OCTOBER 20, 2005 AND
APRIL 1, 2011 (COLLECTIVELY, "CLASS MEMBERS"):
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM
AN ATTORNEY. YOU MAY BE ENTITLED TO MONEY FROM THIS SETTLEMENT.
BECAUSE YOUR RIGHTS MAY BE AFFECTED, IT IS EXTREMELY IMPORTANT
THAT YOU READ THIS NOTICE CAREFULLY.
YOU ARE HEREBY NOTIFIED that a proposed settlement (the "Settlement") of the abovecaptioned lawsuit (the "Lawsuit") has been reached by the parties and has been granted
preliminary approval by the court. The purpose of this Notice is to describe the Lawsuit, to
inform you of the proposed Settlement, and to inform you of your rights and options in
connection with the proposed Settlement. The proposed Settlement will resolve all claims for
unpaid wages (including overtime) and penalties under the California Labor Code, and, for those
who choose to "opt in," for liquidated damages under the Fair Labor Standards Act ("FLSA"). A
fairness hearing will be held on ________, 2011 at _____a.m. in Courtroom 2 before United
States Magistrate Judge of the United States District Court for Northern District of California,
the Honorable Howard R. Lloyd (the "Fairness Hearing"), to determine whether the Lawsuit
should be finally settled.
I.

SUMMARY OF LAWSUIT

A.
The above-captioned Lawsuit was filed by plaintiffs Luis Sandoval, Israel
Rodriguez and Cesar Martinez (collectively, "Plaintiffs" or “Class Representatives”) against
Defendants AB Landscaping Inc. and Victor Arellano (collectively, “Defendants”), on behalf of
themselves and all Class Members. Plaintiffs alleged that Defendants did not pay overtime wages
to Class Members who worked more than 8 hours in a day or more than 40 hours in a week.
Plaintiffs also alleged Defendants failed to pay wages due to Class Members within 72 hours
after their employment terminated. Plaintiffs further alleged that Defendants failed to furnish
Class Members with accurate itemized pay statements as required by law. Plaintiffs sought to
recover these unpaid wages as well as corresponding penalties under the California Labor Code,
and liquidated damages under the FLSA. Plaintiffs and Defendants have agreed to settle the
Lawsuit pursuant to a proposed Settlement Agreement (the "Settlement Agreement"), by which
Defendants will pay a sum of money to qualified Class Members in full settlement of any and all
claims they may have for unpaid wages and penalties under the California Labor Code, and
liquidated damages under the FLSA.

II.

TERMS OF THE SETTLEMENT AGREEMENT

A.
The parties entered into a proposed Settlement Agreement. The Settlement
Agreement is not yet final. The Court will hold a Fairness Hearing on _______, 2011 at 10:00
a.m. in Courtroom 2 before the United States Magistrate Judge Honorable Howard R. Lloyd of
the United States District Court for Northern District of California at 280 South First Street, San
Jose, CA 95113. At the Fairness Hearing, Magistrate Judge Lloyd will decide whether to finally
approve the Settlement Agreement.
B.
The Settlement Agreement provides that Defendants will pay a total of Three
Hundred Twenty Four Thousand Sixty Eight Dollars and Ninety Nine Cents ($324,068.99) (the
"Settlement Amount") to fully resolve this Lawsuit. The Settlement Amount has been or will be
distributed as follows:
1.
Defendants previously paid One Hundred Seventy Two Thousand Four
Hundred Eighty Two Dollars and Eighty Six Cents ($172,482.86) to 34 Class Members for
unpaid wages based on an audit of payroll and time records of AB Landscaping Inc. for the
period from October 20, 2005 through April 1, 2011 (the “Distributed Funds”);
2.
In addition to the Distributed Funds already paid, AB Landscaping Inc.
will pay One Hundred Fifty One Thousand Five Hundred Eighty Six Dollars and Thirteen Cents
($151,586.13) (the “Settlement Fund”) to be distributed as follows:
a.
First, Twenty Two Thousand Seven Hundred Forty Four Dollars
and Seventy Eight Cents ($22,744.78) will be paid to qualified Class Members who did not
receive Distributed Funds for unpaid wages. The amount of unpaid wages owed to these Class
Members has been calculated based on an audit of payroll and time records provided by AB
Landscaping Inc. THE CALCULATED AMOUNT OF YOUR UNPAID WAGES IS SET
FORTH IN YOUR CLAIM FORM.
b.
Second, Class Representatives Luis Sandoval, Israel Rodriguez
and Cesar Martinez will be paid $10,000, $10,000, and $5,000, respectively, for their services as
the Class Representatives. In light of this payment, they will not receive money in settlement of
their claims for penalties under the California Labor Code;
c.
Third, Defendants will pay their statutorily-required matching
contributions on the wage portion of the Settlement Amount;
d.
Fourth, subject to court approval, attorney’s fees not to exceed
$80,000 and costs not to exceed $10,000 will be paid to Plaintiffs' counsel Adam Wang ("Class
Counsel");
e.
After paying the amounts described above in (a), (b), (c), and (d),
80% of the remaining amount will be distributed to Class Members who timely submitted an
"Opt-In Form" to settle their claims for liquidated damages under the FLSA; and 20% of the

remaining amount will be distributed to all Class Members who timely submitted a "Claim
Form" for penalties under to the California Labor Code.
C.
There are a total of 67 Class Members. If not all Class Members timely submit a
Claim Form, the wages owed to those Class Members ("Cy Pres Funds") will be paid to a courtapproved nonprofit organization. The parties have proposed that any Cy Pres Funds be paid to
the California Bar Association.
D.
Defendants will make the Settlement Fund payment within three (3) months after
the Court finally approves the Settlement Agreement, if no appeal is taken from such approval.
III.

YOUR OPTIONS

If you are a Class Member -- that is, if you were employed by Defendants on an hourly basis
between October 19, 2005 and April 1, 2011 -- you have five options. None of these options will
cost you any money. You may:
A.
MAKE A CLAIM: If you want to participate in the Settlement and receive
unpaid wages owed to you in the amount indicated in your Claim Form and receive your share of
the corresponding penalties under the California Labor Code, you must submit the Claim Form
that accompanies this Notice. You must submit your Claim Form to Class Counsel at the address
listed below and it must be postmarked no later than ___________, 2011.
B.
OPT-IN FOR LIQUIDATED DAMAGES UNDER THE FLSA: If you want
to receive additional money in settlement of your claims for liquidated damages under the FLSA
(this money is in addition that in settlement of your claims for unpaid wage claim and
corresponding penalties under the California Labor Code), you must ALSO submit the Opt-In
Form that accompanies this Notice. You must submit your Opt-In Form to Class Counsel at the
address listed below and it must be postmarked no later than ______________, 2011.
C.
REQUEST TO BE EXCLUDED FROM THE SETTLEMENT: If you DO
NOT want to participate in the Settlement and DO NOT want to receive unpaid wages owed to
you in the amount indicated in your Claim Form or receive your share of the corresponding
penalties under the California Labor Code, you must submit a written Request for Exclusion
indicating your intent to be excluded from the Settlement. If you choose to opt out, you may still
keep any money you may have already received. You must submit your Request for Exclusion to
Class Counsel at the address listed below and it must be postmarked no later than_____, 2011. It
must also contain your name, address, telephone number and Social Security Number and
must, at a minimum, contain the following language:
I wish to opt out of the settlement of this case, Sandoval et al. v. AB Landscaping,
Inc. (Case No. C09-4969 HRL). I understand that by requesting to be excluded
from the settlement, I will receive no money from the settlement funds. I
understand that if I am excluded from the class monetary settlement, I may bring
a separate action. I understand that in any separate lawsuit, I may receive
nothing or less than I would have received if I had filed a claim for money

pursuant to the Settlement. I understand that I should consult with an attorney, at
my own expense, regarding the applicable statute of limitations.
D.
OBJECT: You may object to the Settlement, either personally or through an
attorney. An objection must be in a signed writing that contains your name, address and Social
Security number. All objections must be filed with the court and mailed to Class Counsel, at the
address shown below, postmarked no later than __________, 2011. If you submit a written
objection to the Settlement Agreement, you may also attend the Fairness Hearing to present your
objection to the judge, either personally or through an attorney at your own expense.
HOWEVER, IF THE COURT FINALLY APPROVES THE AGREEMENT, YOU WILL BE
BOUND BY ITS TERMS AND WILL RECEIVE THE SETTLEMENT SHARE ALLOCATED
TO YOU PURSUANT TO THE TERMS OF THE SETTLEMENT OUTLINED ABOVE EVEN
IF YOU OBJECT TO ITS TERMS.
E.
DO NOTHING: You have a right to do nothing, and to not participate in the
Settlement in any manner. You will not be contacted again. However, you must understand that
if you do nothing, you will lose your right to make a claim for unpaid wages and the
corresponding penalties under the California Labor Code as provided in this Settlement (but you
will not lose your right to pursue liquidated damages under the FLSA). HOWEVER, YOU
WILL STILL BE BOUND BY THE TERMS OF THE SETTLEMENT AGREEMENT, EVEN
THOUGH YOU WILL NOT RECEIVE ANY MONEY.
This is a summary of the Settlement Agreement in this matter. If you wish to read the Settlement
Agreement in its entirety, or to review other documents filed in this case, you may review the
complete court files at the Clerk’s Office, United States District Court, 280 South First Street,
San Jose, CA 95113. If you have any questions about the Settlement, you or your own attorney
may contact Class Counsel at the address and telephone number listed below.
All documents exercising your options must be sent to the Class Counsel at the following
address:
Sandoval et al. v. AB Landscaping Inc., et al.
attn: Adam Wang
P.O. Box ______
San Jose, CA 95113
408-_______________
If you choose to participate in the Settlement, you will be bound by the provisions of the
Settlement Agreement; that is, you will not be able to separately sue Defendants for unpaid
wages and corresponding penalties under the California Labor Code (if you submit a Claim
Form) or liquidated damages under the FLSA (if you submit an Opt-In Form).
ANY CLASS MEMBER WHO DOES NOT TIMELY SUBMIT A CLAIM FORM AND
OPT-IN FORM INDICATING THEIR WISH TO PARTICIPATE IN THE
SETTLEMENT WILL NOT RECEIVE A SHARE OF THE SETTLEMENT.

ANY CLASS MEMBER WHO WISHES TO OPT OUT BUT DOES NOT TIMELY
SUBMIT AN OPT-OUT FORM WILL BE BOUND BY THIS SETTLEMENT IF
APPROVED BY THE COURT.
IV.

CHANGE OF ADDRESS

If you move after receiving this Notice or if it was misaddressed, you should supply your correct
name and address to the Class Counsel at the following address:
Sandoval et al. v. AB Landscaping Inc., et al.
attn: Adam Wang
P.O. Box. ________________
San Jose, CA 95113
408-_________________
This is important so that any share of the Settlement Fund to which you may be entitled or future
notices will reach you.
V.

REMINDER AS TO TIME LIMITS

A.
If you wish to participate in the Settlement, you must fill out, complete and return
a copy of Claim Form and/or Opt-In Form to Class Counsel, postmarked on or before
__________.
B.
If you wish to be excluded from the Settlement, you must mail a Request for
Exclusion indicating your desire to be so excluded to Class Counsel, postmarked on or before
_____________ .
C.
If you object to the Settlement Agreement, you must file your objection with the
court and mail it to Class Counsel, postmarked on or before ___________, 2011.

Dated:

_______________________________
Howard R. Lloyd
United States Magistrate Judge

CLAIM FORM
Sandoval, et al. v. AB Landscaping, Inc., et al.
Case No.: C09-04969 HRL
United States District Court for the Northern District of California
Date action filed: October 19, 2009
Records show that you are a member of the Class that comprises ALL EMPLOYEES OF AB
LANDSCAPING INC. OR VICTOR ARELLANO WHO WERE EMPLOYED ON AN
HOURLY BASIS BETWEEN OCTOBER 20, 2005 AND APRIL 1, 2011
(COLLECTIVELY, "CLASS MEMBERS").
Records show that you are owed the following:
Name:
Wages Owed:
Amount Paid:

_________________
_________________ (Payroll withholdings will be taken out)
_________________

In addition to the unpaid wages owed to you, you are also entitled to corresponding penalties
under the California Labor Code, as described in the attached Notice of Class Action Settlement
and Settlement Hearing. Unless you sign and return this Claim Form, you will waive your
rights to these wages and penalties.
To submit this Claim Form, you must complete and mail it to Class Counsel at the following
address no later than ____________________, 2011:
Sandoval et al. v. AB Landscaping Inc., et al.
attn: Adam Wang
P.O. Box ______
San Jose, CA 95113
408-_______________
The unpaid wages owed to you will be calculated based on the number of exemptions you
claimed while working for AB Landscaping Inc. unless you send a new W-4 Form together with
together with this Form.
Note to claimant:
1.
You are responsible for income taxes on any recovery you receive.
2.
Return this form to Class Counsel no later than ___________________, 2011. DO
NOT WAIT UNTIL THE LAST MINUTE.

CLAIM FORM
I, the undersigned, wish to participate in the Settlement in Sandoval, et al. v. AB Landscaping,
Inc., et al., No. C09-04969 HRL.
Name:
Address:
Home phone:
Work phone:
Social Security #:
I verify that I am the above named individual.
I declare, under penalty of perjury under the laws of the United States and the State of California,
that the information set forth above is true and correct to the best of my knowledge.

(Print Name)

(Signature)

(Date)

OPT-IN FORM
Sandoval, et al. v. AB Landscaping, Inc., et al.
Case No.: C09-04969 HRL
United States District Court for the Northern District of California
Date action filed: October 19, 2009
Records show that you are a member of the Class that comprises ALL EMPLOYEES OF AB
LANDSCAPING INC. OR VICTOR ARELLANO WHO WERE EMPLOYED ON AN
HOURLY BASIS BETWEEN OCTOBER 20, 2005 AND APRIL 1, 2011
(COLLECTIVELY, "CLASS MEMBERS").
Records also show that you are owed unpaid wages you earned while working for AB
Landscaping Inc or Victor Arellano. As a result, pursuant to Fair Labor Standards Act ("FLSA"),
you may be entitled to liquidated damages.
If you want to receive money in settlement of your claims for liquidated damages under the
FLSA, you must submit this Opt-In Form. (The terms of the Settlement in the above-referenced
case will settle your liquidated damages claims under the FLSA only if you choose to opt in. You
are not required to settle your liquidated damages claims under the FLSA in order to participate
in the Settlement and receive wages or penalties under the California Labor Code).
To submit this Opt-In Form, you must complete and mail it to Class Counsel at the following
address no later than ____________________, 2011:
Sandoval et al. v. AB Landscaping Inc., et al.
attn: Adam Wang
P.O. Box ______
San Jose, CA 95113
408-_______________
Note to claimant:
1.
You are responsible for income taxes on any recovery you receive.
2.
Return this form to the Claims Administrator, c/o Adam Wang, no later than
_______________, 2011. DO NOT WAIT UNTIL THE LAST MINUTE.

_______________________________________________________
OPT-IN
I, the undersigned, do hereby opt in to settle any liquidated damages due under Fair Labor
Standards Act per the Settlement in Sandoval, et al. v. AB Landscaping, Inc., et al. No. C0904969 HRL.
Name:
Address:
Home phone:
Work phone:
Social Security #:
I verify that I am the above named individual.
I declare, under penalty of perjury under the laws of the United States and the State of California,
that the information set forth above is true and correct.

(Print Name)

(Signature)

(Date)