Taylor et al v. FedEx Freight, Inc.

Filing 115

ORDER of Dismissal with Prejudice and Final Judgment by Judge Lucy H. Koh granting 109 Motion for Settlement; granting 110 Motion for Attorney Fees. (lhklc3, COURT STAFF) (Filed on 1/27/2012)

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LAW OFFICE OF MARY-ALICE COLEMAN
MARY-ALICE COLEMAN, SBN 098365
[e-mail]
JAMES C. ASHWORTH, SBN 151272
[e-mail]
1109 Kennedy Place, Suite 2
Davis, CA 95616
Telephone: [phone]
Facsimile: [phone]

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LAW OFFICES OF MICHAEL L. CARVER
MICHAEL L. CARVER, SBN 173633
[e-mail]
MICHELLE M. LUNDE, SBN 246585
[e-mail]
1600 Humboldt Road, Suite 3
Chico, California 95928
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs ROY D. TAYLOR,
ARLETHA FLUD, THOMAS J. WOOD,
ERNEST C. HARVEY, II, individually,
and on behalf of all others similarly situated

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROY D. TAYLOR, et al.,

Case No. 5:10-cv-02118 LHK

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Plaintiffs,
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v.
FEDEX FREIGHT, INC., et al.,

(PROPOSED) ORDER OF DISMISSAL
WITH PREJUDICE AND FINAL
JUDGMENT
As Amended

Defendants.
The above-referenced class action case (“Action”) having come before the Court on
January 26, 2012, for an Order of Dismissal with Prejudice and Final Judgment (“Final

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)

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Judgment”), consistent with the Court’s Preliminary Approval Order (“Preliminary Approval

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Order”), filed and entered September 19, 2011, and as set forth in the Parties’ Stipulation of

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Settlement and Class Action Release (“Agreement”) in the above-referenced Action, and due and

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adequate notice having been given to Class Members as required by the Preliminary Approval

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Order, and the Court having considered all papers filed and proceedings had herein and otherwise

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being fully informed and good cause appearing therefore, it is hereby ORDERED, ADJUDGED

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AND DECREED THAT:

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1.

All terms used herein shall have the same meaning as defined in the Agreement.

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2.

Consistent with the definitions provided in the Agreement, the term Class

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Members includes “All persons who were employed by FedEx Freight West, Inc., (currently

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known as FedEx Freight, Inc.) as a 'line haul driver,' including pick up and delivery (P&D) drivers

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to the extent they performed line haul services and were paid for those services pursuant to the

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line haul pay plan, in California on or after June 18, 2003 through July 23, 2009”. The “Class”

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and “Class Members” excludes those who failed to exclude themselves from the terms of the

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Settlement.

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3.

For purposes of the Settlement and this Final Judgment, “Defendant” and/or the

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“Released Parties” includes Defendant FedEx Freight, Inc. (formerly known as FedEx Freight

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West, Inc.), its past or present officers, directors, shareholders, successors and predecessors in

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interest, parents, affiliates, related entities, subsidiaries, managers, employees and any individual

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or entity which could be jointly liable with Defendants.

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4.

This Court has jurisdiction over the subject matter of this Action and over all

Parties to this Action, including all Representative Plaintiffs and Class Members.
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Distribution of the Notice of Pendency of Class Action and Proposed Settlement

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(“Notice”) and Claim Forms (collectively, the “Notice Packet”) directed to Class Members as set

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forth in the Agreement and the other matters set forth therein have been completed in conformity

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with the Preliminary Approval Order, including individual notice to all Class Members who could

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be identified through reasonable effort, and the best notice practicable under the circumstances.

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)

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The Notice provided due and adequate notice of the proceedings and of the matters set forth

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therein, including the proposed settlement set forth in the Agreement, to all persons entitled to

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such notice, and the Notice fully satisfied the requirements of due process. All Class Members

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and all Released Claims are covered by, included with, and subject to the Agreement and this

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Final Judgment.

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6.

The Court hereby finds the Agreement was entered into in good faith following

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arms length negotiations, and further finds that the Settlement and Agreement is fair, reasonable,

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and adequate and that the Named Plaintiffs have satisfied the standards and applicable

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requirements for final approval of this class action settlement under Federal Rule of Civil

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Procedure 23.
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The Court hereby approves the Settlement as set forth in the Agreement and finds

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that the Settlement and Agreement are, in all respects, fair, adequate, and reasonable, and directs

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the Parties to effectuate the Settlement according to the terms outlined in the Agreement.

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8.

As of the date of this Final Judgment and the effective date as set forth in the

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Agreement (“Effective Date”), all Released Claims of each Class Member are and shall be

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deemed to be conclusively released as against Released Parties. All Class Members as of the date

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of this Final Judgment and the Effective Date of the Agreement are hereby forever barred and

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enjoined from prosecuting the Released Claims (as defined in the Agreement and as set forth

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below) against the Released Parties. As of the Effective Date, and except as to such rights or

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claims that may be created by the Agreement, Class Members hereby release any and all claims or

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causes of action that are based on or reasonably relate to the claims asserted in the Complaint by

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Plaintiffs pursuant to the terms stated in this Agreement), including claims for: (1) failure to pay

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minimum and regular wages, waiting time, on-call time, rest time, pre and post trip inspection

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time, (2) failure to pay premium wages for missed meal and rest periods, (3) failure to timely and

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fully pay final wages due at termination, (4) failure to furnish accurate itemized wage statements,

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(5) unlawful business practices in violation of Business & Professions Code sections 17200, e.t

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seq. related to the alleged claims, (6) recovery of related penalties, interest, actual damages,

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)

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liquidated damages, punitive damages, costs, attorneys’ fees, injunctive relief or accounting,

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including penalties based upon the Industrial Welfare Commission Wage Orders and/or under

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California Labor Code, and (7) penalties under Labor Code section 2698, et seq. (the Private

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Attorneys General Act of 2004, as amended (the “PAGA”)) based upon any alleged violation of

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any Labor Code Section as alleged in the Action, except for Workers Compensation claims.

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arising from June 18, 2003 through July 23, 2009. This release also covers any claims resulting

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from the alleged failure to pay wages, including, but not limited to any claims that the settlement

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amounts or amounts that are claimed to be owed have any effect on the eligibility for, or

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calculation of, any employee benefits (e.g., vacations, holiday pay, retirement plans, etc.) of the

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Class Members.

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9.

As of the date of this Final Judgment and the effective date as set forth in the

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Agreement (“Effective Date”), each and all claims of Plaintiffs Roy D. Taylor, Thomas J. Wood,

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Arletha Flud and Earnest C. Harvey, II are and shall be deemed to be conclusively released as

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against Released Parties, including not only those claims that are asserted or could have been

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asserted in the Action, but also any and all claims for any reason, known or unknown, for any

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relief including damages, wages, punitive damages, interest, attorney fees, litigation costs and any

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other relief of any kind, except for general Workers Compensation claims (not to include Labor

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Code section 132a claims).

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10.

Further, Class Members, including Roy D. Taylor, Thomas J. Wood, Arletha Flud

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and Earnest C. Harvey, II, waive, and relinquish any and all rights and benefits that they may have

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under Section 1542 of the California Civil Code, or the law of any other state or jurisdiction, or

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common law principle, to the same or similar effect with regard to the Released Claims.

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11.

Neither the Settlement nor the Agreement are admissions by any of the Released

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Parties, nor is this Final Judgment a finding of the validity of any claims in the Action, or of any

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wrongdoing by any of the Released Parties.

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12.

The Court hereby enters a judgment of dismissal of the entire Action, with

prejudice, as of the filing date of this Final Judgment, and orders the Parties to act in accordance

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)

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with and pursuant to the terms set forth in the Agreement. Without affecting the finality of this

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Final Judgment in any way, the Court hereby retains continuing jurisdiction over the

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interpretation, implementation and enforcement of the Settlement and Agreement and all orders

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entered in connection therewith.

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13.

The Court hereby finds the Five Million Two Hundred-Fifty Thousand Dollars

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($5,250,000.00) in maximum settlement consideration provided for under the Agreement to be

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fair and reasonable. The Court, therefore, orders Settlement Awards to be made and administered

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in accordance with the terms of the Agreement to each Eligible Class Member who submits a

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Claim Form in accordance with the Agreement.

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14.

The Court hereby confirms Michael L. Carver, Esq. of Law Offices of Michael L.

Carver, and Mary-Alice Coleman, Law Office of Mary-Alice Coleman as Class Counsel.
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Pursuant to the terms of the Agreement, and the authorities, evidence and argument

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submitted by Class Counsel, the Court hereby awards Class Counsel fees of $1,750,000.00 and

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costs of $104,996.90 to be paid from the Settlement as final payment for and complete satisfaction

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of any and all attorneys’ fees and costs incurred by and/or owed to Class Counsel as set forth in

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the Agreement.

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16.

The Court also hereby confirms Named Plaintiffs as Class Representatives and

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authorizes payment to Plaintiffs Roy D. Taylor Class Representative Service Fees in the amount

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of $25,000.00, Thomas J. Wood and Earnest C. Harvey, II Class Representatives Service Fees in

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the amount of $17,500.00 each from the Settlement Fund, and further authorizes payment to

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Plaintiff Arletha Flud a Class Representative Service Fee in the amount of $10,000.00 from the

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Settlement Fund.

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The Court also orders that a Claims Administration Payment in the amount of

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$16,000.00 be paid to the Claims Administrator, Simpluris, Inc., from the Settlement Fund for the

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costs of administration.

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The Court further finds under the California Labor Codes’ Private Attorneys

General Act (“PAGA”), California Labor Code Sections 2699, et seq., that a PAGA payment

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)

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amount of $20,000.00 is reasonable, and orders that such payment be apportioned as follows:

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$15,000.00 to the Labor and Workforce Development Agency, and $5,000.00 to the Claimants, to

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be distributed pursuant to the claims process defined in the Agreement.

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19.

If the Settlement does not become final and effective in accordance with the terms

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of the Agreement, then this Final Judgment and all orders entered in connection herewith shall be

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rendered null and void and shall be vacated.

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20.

The proceeds from any uncashed checks shall be sent to cy pres as agreed by the

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parties within 140 days after the Effective Date of this Settlement, and within 10 days thereafter,

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the Claims Administrator shall file a declaration of compliance with this Court.

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IT IS SO ORDERED.

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Dated: January 27, 2012
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______________________________
United States District Court Judge

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(PROPOSED) ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT (ver 7.8.11 Rev. 1.13.12)