Moore et al v. Petsmart,Inc et al
Filing
74
Order granting 40 Motion for Preliminary Approval of Class Action Settlement. Signed by Hon. Edward J. Davila on 5/14/2014.(ejdlc3, COURT STAFF) (Filed on 5/14/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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DANETTE M. MOORE, LATRESA MYERS,
ALANNA HARRISON and ALISA VALDEZ,
individually and on behalf of others similarly
situated,
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Plaintiffs,
v.
PETSMART, INC.,
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Defendant.
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY
CERTIFICATION OF SETTLEMENT
CLASS; PRELIMINARY APPROVAL
OF CLASS ACTION SETTLEMENT;
APPROVAL OF CLASS NOTICE AND
PLAN; APPOINTMENT OF CLASS
COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING
A FINAL APPROVAL HEARING
[Re: Docket Item No. 40]
In this putative class action case filed against Defendant PetSmart, Inc. (“Defendant” or
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“PetSmart”), presently before the Court is Plaintiffs Danette Moore, Latresa Myers, Alanna
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Harrison, and Alisa Valdez’s (collectively “Plaintiffs”) Motion for Preliminary Approval of Class
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and Class Action Settlement. See Docket Item No. 40. The motion is unopposed and will be
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GRANTED for the reasons set forth below.
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I. BACKGROUND
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Defendant is a national retail company providing pet supplies and services. The named
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Plaintiffs are former and current employees of Defendant who were and are employed as pet
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groomers. This case involves Plaintiffs’ wage and hour claims on behalf of approximately 16,400
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
28
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current and former employees who are eligible to participate in the settlement and are or were
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employed by Defendant in California between May 23, 2008 and the present. Plaintiffs initiated
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this class action on May 23, 2012 in the Superior Court of California. See Docket Item No. 1-2.
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Defendant removed the case to this Court on July 9, 2012. See Docket Item No. 1.
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Plaintiffs bring the present action for: unpaid compensation, failure to reimburse reasonably
incurred work-related expenses, meal and rest period violations, failure to properly calculate
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vacation pay, failure to timely and properly pay wages due upon termination, failure to provide
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suitable seats, statutory penalties, interest and attorney’s fees and costs, and specific enforcement
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United States District Court
For the Northern District of California
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of penalties and restitution of all benefits enjoyed by Defendant for the previous violations.
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Plaintiffs allege the following causes of action against Defendant: (1) Failure to Provide
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Reasonable Accommodation Due to Disability (Cal. Gov’t Code § 12940); (2) Failure to Provide
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Reasonable Accommodation Due to Pregnancy (Cal. Gov’t Code § 12945); (3) Failure to Engage
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in Interactive Process (Cal. Gov’t Code § 12940(n)); (4) Wrongful Termination in Violation of
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Public Policy; (5) Failure to Pay Minimum Wages on behalf of the Groomer Class (Lab. Code §
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1194 and IWC Wage Order 7-2001 § 4); (6) Failure to Pay Agreed Upon Wages for All Hours
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Worked on behalf of the Groomer Class (Lab. Code § 223 and IWC Wage Order 7-2001 § 4); (7)
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Failure to Provide Meal Periods on behalf of the Meal Period Class (Lab. Code §§ 226.7, 512, and
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IWC Wage Order 7-2001 § 11); (8) Failure to Provide Rest Periods on behalf of the Meal Period
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Class (Lab. Code §§ 226.7, 512, and IWC Wage Order 7-2001 § 12); (9) Failure to Provide Rest
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Periods on behalf of the Rest Period Class (Lab. Code §§ 226.7, 512, and IWC Wage Order 7-2001
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§ 12); (10) Failure to Reimburse Business-Related Expenses and Provide Tools on behalf of the
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Tool Class (Lab. Code § 2802 and IWC Wage Order 7-2001 § 9(B)); (11) Failure to Pay Wages
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Due Upon Termination (Lab. Code §§ 201, 202, 203); (12) Failure to Provide Accurate Itemized
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Wage Statements (Lab. Code § 226); (13) Violation of Business & Professions Code §§ 17200 et
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seq.; (14) PAGA Claim for Failure to Provide Suitable Seats (Lab. Code §§ 1198, 2698 et seq. and
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
1
IWC Wage order 7-2001 § 14); and (15) PAGA Claim for Civil Penalties (Lab. Code § 2698 et
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seq.).
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The parties reached a settlement after mediation with an experienced mediator. Dkt. No. 40
at 6. On January 31, 2014, Plaintiffs filed the present motion for provisional certification of
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settlement class, preliminary approval of class action settlement, approval of class notice and
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notice plan, appointment of class counsel and class representatives, and setting a final approval
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hearing. Dkt. No. 40. Objection was filed by Cassandra Pace. See Docket Item No. 44. The
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hearing was held on March 7, 2014. See Docket Item No. 58. The Court ordered the parties to
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United States District Court
For the Northern District of California
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submit supplemental briefings, which were filed on March 28, 2014. See Docket Item Nos. 66, 68.
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II. LEGAL STANDARD
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A. Class Certification
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A party seeking class certification must provide facts sufficient to satisfy the requirements
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of Federal Rule of Civil Procedure 23. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308-09
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(9th Cir. 1977). Under Rule 23(a), a class may only be certified if (1) the class is so numerous that
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joinder of all members is impracticable; (2) there are questions of law or fact common to the class;
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(3) the claims or defenses of the representative parties are typical of the claims or defenses of the
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class; and (4) the representative parties will fairly and adequately protect the interests of the class.
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Fed. R. Civ. P. 23(a).
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In addition, the party seeking certification must show that the action falls within one of the
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three subsections of Rule 23(b). In this case, Plaintiff seeks certification pursuant to 23(b)(3),
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which permits certification of cases where “the court finds that the questions of law or fact
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common to class members predominate over any questions affecting only individual members, and
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that a class action is superior to other available methods for fairly and efficiently adjudicating the
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controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiffs bear the burden of demonstrating that they have
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met the requirements of Rule 23(a) as well as the predominance and superiority requirements of
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
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Rule 23(b)(3). See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001),
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amended by 273 F.3d 1266 (9th Cir. 2001).
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A trial court has broad discretion in making the decision to grant or deny a motion for class
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certification. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). A party
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seeking class certification must affirmatively demonstrate compliance with Rule 23 and prove that
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the requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550-51
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(2011). This requires a court to conduct a “rigorous analysis” that frequently “will entail some
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overlap with the merits of the plaintiff’s underlying claim.” Id.
United States District Court
For the Northern District of California
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B. Preliminary Approval
Preliminary approval of a class action settlement requires the Court to consider whether
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“(1) the negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the
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proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of
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the class objected.” In re Linerboard Antitrust Litig., 296 F. Supp. 2d 568 (E.D. Pa. 2003).
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A class action may not be settled without court approval. Fed. R. Civ. P. 23(e). When the
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parties reach a settlement agreement prior to class certification, “courts must peruse the proposed
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compromise to ratify both the propriety of the certification and the fairness of the settlement.”
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Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Settlements reached prior to formal class
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certification must “withstand an even higher level of scrutiny for evidence of collusion or other
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conflicts of interest than is ordinarily required under Rule 23(e) before securing the court’s
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approval as fair” as “there is an even greater potential for a breach of fiduciary duty owed the
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class.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1168 (9th Cir. 2013). The court must
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decide whether the settlement is fundamentally fair, adequate, and reasonable. Hanlon v. Chrysler
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Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).
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III. DISCUSSION
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A. Class Certification
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The proposed settlement class is defined as:
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
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All individuals who are or were employed by PetSmart as a Pet Stylist, Groomer, Grooming
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Trainee, and/or Salon Manager in California at any time during the period from May 23,
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2008 to the present (“Pet Stylist Settlement Class”);
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All individuals who are or were employed by PetSmart as an hourly paid, non-exempt
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employee in California at any time during the period May 23, 2008 to the present in a
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position other than Pet Stylist, Groomer, Grooming Trainee, or Salon Manager (“Non-
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Exempt Employee Settlement Class”).
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United States District Court
For the Northern District of California
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The Settlement Class includes a Settlement Sub-Class defined as follows:
All individuals who are members of the Non-Exempt Employee Settlement Class or the Pet
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Stylist Settlement Class who separated from their employment with PetSmart at any time
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between May 23, 2009 and the date of preliminary approval of the settlement (“Waiting
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Time Penalties Settlement Sub-Class”).
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See Settlement Agreement, Docket Item No. 57, Ex. 1 § I ¶¶ 1.12, 1.14, 1.16, 1.21.
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The proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a)
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and 23(b)(3). Class certification is appropriate here because the requirements are met. The
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proposed class meets the numerosity requirement, as it is comprised of approximately 16,400
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current and former California employees. There are questions of law or fact common to class
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members because all claims for relief arise from Defendant’s employment policies, which affected
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all of the proposed class members similarly. These questions of law or fact predominate over
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questions affecting only individual members and a class action is superior to other methods of
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resolving these claims. Plaintiffs’ claims are typical of those of the putative class, as they were
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subjected to the same employment policies and suffered sufficiently similar damages flowing from
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Defendant’s conduct. Further, Plaintiffs and their counsel will fairly and adequately protect the
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interests of the class. Plaintiffs’ interests are representative of and consistent with the interests of
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the proposed class and their participation in this litigation demonstrates that they have and will
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
1
continue to protect the interests of the class. Additionally, the proposed class counsel has
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previously engaged in similar litigation and is experienced in employment class action cases.
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B. Proposed Settlement
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Plaintiffs argue that the settlement is fair, reasonable, and adequate in light of the risk and
complexity of further litigation. In the settlement, Defendant will pay a maximum of
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$10,000,000.00 (“Total Settlement Amount”), which includes all payments to the Settlement Class
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Members, attorneys’ fees and costs, California Labor and Workforce Development Agency
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(“LWDA”), all payroll tax obligations of Plaintiffs, Settlement Class Members, and Defendant
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United States District Court
For the Northern District of California
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arising out of the settlement, and the costs of settlement administration. The Settlement
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Administrator will not exceed $105,000 in administering the settlement. The parties have chosen
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Simpluris to administer the settlement. Penalties in the amount of $50,000 authorized by the
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Private Attorneys General Act (“PAGA”) will also be deducted, of which 75% ($37,500) will be
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paid to the LWDA and 25% ($12,500) will be available for distribution to Settlement Class
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Members, and all employer payroll taxes. Once these deductions are made, the balance of the
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Total Settlement Amount ($6,494,000) will be available for distribution to Settlement Class
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Members (“Net Distribution Amount”).
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To the extent that any Settlement Class Member fails to submit a Claims Form and does not
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file a request for exclusion, the Individual Settlement Amount attributable to that Settlement Class
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Member will be redistributed to Claimants within that Settlement Class Members Settlement Class
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in proportion to their Individual Settlement Amounts, up to three times that amount. Any
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remaining money of the $6,494,000 will go to the Legal Aid Society-Employment Law Center, a
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cy pres recipient jointly designated by the parties. The settlement was reached with the assistance
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of Jeffrey Ross, an experience mediator.
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The Court finds that the settlement appears fair, non-collusive and within the range of
possible final approval. The settlement was a product of arm’s-length negotiation before a
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
1
mediator, counsel conducted investigation and discovery sufficient to act intelligently in settling
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Plaintiffs’ claims, and the proponents of the settlement are experienced with this type of litigation.
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1. Attorney’s Fees
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Plaintiffs request attorney’s fees of $3,333,333 (30% of the Total Settlement Amount). As
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was explained by Plaintiffs’ counsel at the hearing, this amount was negotiated separately from the
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award to class members. Parties first negotiated the total amount available for class claims and
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only then negotiated an amount of attorney’s fees. The two available pools of money are
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completely separate. See Docket Item No. 66 at 6.
United States District Court
For the Northern District of California
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If the Court does not approve the full sum of attorney’s fees, the remainder reverts to
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Defendant. However, there is no reversion of the money available to the class, because the sum
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negotiated for attorney’s fees was never available to the class. While courts have been skeptical of
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reversion clauses, Plaintiffs argue that a reversion provision does not invalidate the settlement
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where the fees are separately negotiated, at arm’s-length, and the results for the class are
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exceptional. Plaintiffs point out that a number of courts have preliminarily approved settlement
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even where a reversion clause exists if the court finds there is no collusion. A reversion clause is
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not dispositive of collusion, although it requires courts to engage in heightened scrutiny to ensure
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there has been no collusion. In re Bluetooth, 654 F.3d 935, 949 (9th Cir. 2011).
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In this case, the negotiations were conducted at arm’s-length through a neutral mediator,
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and the fee discussions were conducted separately after the discussion of the amount Defendant
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agreed to pay settlement class. Dkt. No. 66-1 ¶ 6. After negotiating the settlement award for class,
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the mediator suggested 33.33% attorney’s fees and the reversion provision. Dkt. No. 66-1 ¶ 6.
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Plaintiffs argue that the overall result of the settlement supports the attorney’s fee request.
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Plaintiffs argue that this settlement is exceptional for the class members as compared to similar
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settlements reached by PetSmart for similar wage and hour claims. A similar settlement (Sorenson
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v. PetSmart) included a reversionary amount of $1,950,000 for 21,813 class members, 30%
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attorney’s fees, and an incentive award of $15,000, but only $750,831 was paid out to employees.
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
28
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Another settlement (Enabnit v. PetSmart) included the same reversionary sum, with only $337,927
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paid for 1,790 claims, 29.23% attorney’s fees, and a $30,000 incentive award to named Plaintiff.
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Plaintiffs estimate that this settlement will likely be more than five times as much per class member
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than the previously mentioned settlements. The settlement also provides forward-looking relief
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because, as a result of the settlement, Defendant has revised its compensation policy, now paying
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employees commission and hourly rate, and providing tools for groomers.
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Additionally, the theory for unpaid wages for non-productive time and rest breaks used by
Plaintiffs was novel and risky. At the time of mediation, the theory had not yet been tested and had
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United States District Court
For the Northern District of California
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little supporting case law. The claim is also hard to prove because Defendant does not require
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groomers to record start and end time of grooming job, making it difficult to estimate the average
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amount of time spent on non-grooming tasks. Dkt. No. 66-1 ¶ 8.
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Plaintiffs submitted a lodestar amount for attorney’s fees, which amounts to approximately
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$1,145,000 for 2,531 hours of work by attorneys and paralegals. Dkt. No. 66-1 ¶ 14. Plaintiffs
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argue that a lodestar multiplier of three is reasonable given the results achieved, risk of litigation,
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skill required, quality of work, contingent nature of the fee, and is in line with the range
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customarily approved by California courts in comparable wage and hour class actions.
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At this stage, the Court grants preliminary approval of the attorney’s fees, subject to final
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approval. The Court will carefully review all the information concerning the requested attorney’s
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fees before granting final approval.
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2. Incentive Award to Named Plaintiffs
The class representatives request a service award totaling $30,000: $5,000 each for the two
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Plaintiffs who are former employees and $10,000 each for Plaintiffs who were current employees
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when the suit was filed. A test applied by courts in this district looks at: (1) the risk to the class
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representative in commencing the action; (2) the notoriety and personal difficulties encountered by
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the representative; (3) the amount of time and effort spent by the representative; (4) duration of the
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litigation; and (5) personal benefit, or lack of, enjoyed by representative as result of litigation.
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
28
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Plaintiffs argue that class representatives have spent considerable time and effort on this
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case, actively participating, undertaking risks (pursuing a case against a current employer), and
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achieving substantial benefit. Representatives have been named in media, which weighs in favor
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of the incentive awards. Further, the fact that each representative has an individual claim that they
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have agreed not to settle until after this case is resolved does not create a conflict. Defendant may
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still defend itself against the Plaintiffs’ individual claims and Plaintiffs may ultimately end up with
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nothing for their individual claims.
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United States District Court
For the Northern District of California
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The Court preliminarily approves the awards to named Plaintiffs, as they are within the
range of reasonable awards.
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3. Net Distribution Amount
The Net Distribution Amount for the settlement class is $6,494,000. No amount of it will
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revert to Defendant – any unclaimed funds will be redistributed to participating class members, up
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to three times their original claim amount, with any remaining funds distributed to the cy pres
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beneficiary.
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Parties argue that they conducted substantial discovery to determine a reasonable and fair
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allocation of the net distribution amount. Attorneys reviewed about 33,000 pages of employment
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records and data, interviewed dozens of class members, and took depositions of two of Defendant’s
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representatives. The parties agreed that 10% of Defendant’s stores in California would provide a
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representative sample for purposes of evaluating damages for mediation. Attorneys sampled
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electronic timekeeping records for 251 stylists and 1,243 non-exempt employees. The Parties
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agree that the apportionment of the Net Distribution Amount among the different classes with
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varying claims is fair and reasonable in light of the respective value of the claims, with the
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estimated damages for the members of the Pet Stylist Class accounting for approximately two-
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thirds (2/3) of the total damages and the damages for the Non-Exempt Employee Class accounting
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for the other one-third (1/3).
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
1
a. Waiting Time Penalties Settlement Sub-Class
The amount allocated to the Waiting Time Penalties Settlement Sub-Class will be deducted
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from the Net Distribution Amount prior to the calculation of the Individual Settlement Amounts of
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Claimants. Each member of the Waiting Time Sub-Class who was employed by Defendant in
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California as a Stylist, Groomer, Grooming Trainee or Salon Manager at the time of separation
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from employment will be entitled to receive $400 as a waiting time penalty in addition to their
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Individual Settlement Amount. Each member of the Waiting Time Sub-Class who was employed
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by Defendant in a position other than Stylist, Groomer, Grooming Trainee or Salon manager at the
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United States District Court
For the Northern District of California
2
time of separation from employment will be entitled to receive $200 as a waiting time penalty in
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addition to their Individual Settlement Amount.
b. Pet Stylist Class and Non-Exempt Class
After payments are deducted for the Waiting Time Penalties Settlement Sub-Class, two-
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thirds (2/3) of the remaining Net Distribution Amount will be allocated to payment of the
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Individual Settlement Amounts of the Pet Stylist Class and one-third (1/3) of the remaining Net
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Distribution Amount will be allocated to those the Non-Exempt Employee Class.
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The Settlement Administrator will divide the two-thirds (2/3) of the remaining Net
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Distribution Amount by the total gross compensation paid to Pet Stylists for the time period when
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such Pet Stylists were employed as Pet Stylists, Groomers, Grooming Trainees and/or Salon
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Mangers during the Covered Timeframe to determine a multiplier (“Pet Stylist Multiplier”). The
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Individual Settlement Amount payable to each Pet Stylist will equal that Claimant’s gross
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compensation earing during the Covered Timeframe multiplied by the Pet Stylist Multiplier.
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The Settlement Administrator will divide the one-third (1/3) of the remaining Net
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Distribution Amount by the total gross compensation paid to Non-Exempt Employees for the time
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period when such Non-Exempt Employees were employed in positions other than Pet Stylists,
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Groomers, Grooming Trainees and/or Salon Mangers during the Covered Timeframe to determine
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a multiplier (“Non-Exempt Employee Multiplier”). The Individual Settlement Amount payable to
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
28
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each Non-Exempt Employee will equal that Claimant’s gross compensation earned during the
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Covered Timeframe multiplied by the Non-Exempt Employee Multiplier.
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The Individual Settlement Amounts will be allocated among wages, interest, and civil
penalties. Fifty percent (50%) of each Claimant’s Individual Settlement Amount will represent
5
wages and the other fifty percent (50%) shall represent interest and penalties. The portion of each
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Claimant’s Individual Settlement Amount representing wages will be subject to standard
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employment tax withholdings with the Settlement Administrator remitting all such tax
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withholdings directly to the state and federal taxing authorities. The portion of each Claimant’s
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United States District Court
For the Northern District of California
4
Individual Settlement Amount representing interest or penalties will be reported on a Form 1099
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provided to each Claimant, with the required copies provided to the pertinent taxing authorities.
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Employer tax obligations on any amounts paid to Plaintiffs and Claimants will be paid from the
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Total Settlement Amount.
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4. Release of Claims
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Settlement Class Members who submit a Claim Form and do not opt out will release wage
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and hour claims against Defendant. Members who opt out will not be bound by the release of the
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PAGA claims or remedies pursuant to a final judgment, as was erroneously originally indicated in
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the Settlement submitted to the Court. Dkt. No. 46 at 2; Dkt. No. 46, Ex. 1 § VI ¶ 6.8.
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C. Class Counsel
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Proposed class counsel has conducted research, investigation, and analysis of the litigation
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and, as discussed above, are experienced and knowledgeable. As such, Graham S.P. Hollis and
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Marta Manus are preliminary appointed as Class Counsel.
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D. Notice of Class Certification and Settlement Administration
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Rule 23 (c)(2)(B) requires “the best notice that is practicable under the circumstances,
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including individual notice to all members who can be identified through reasonable effort.” Rule
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23(e)(1) requires reasonable notice to all class members who would be bound by the proposed
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settlement. The notice must explain in easily understood language the nature of the action,
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Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
28
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definition of the class, class claims, issues and defenses, ability to appear through individual
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counsel, procedure to request exclusion, and the binding nature of a class judgment. Fed. R. Civ.
3
P. 23(c)(2)(B). Here, the parties in this case have created and agreed to perform the following
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Notice Plan:
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Defendant will provide contact information for each Settlement Class Member to Simpluris
within 15 days of this order. For Class Members who are former employees, Simpluris will
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undertake reasonable address verification to ascertain the accuracy of the last known address. A
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Notice of Class Action Settlement and Final Approval Hearing (“Class Notice”) will be mailed no
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United States District Court
For the Northern District of California
6
later than 25 days from the date of this order in a form substantially similar to that attached as
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Exhibit 2 to the Declaration of Graham Hollis and will include a Claim Form/FLSA Consent Form
11
(“Claim Form”) in a form substantially similar to that attached as Exhibit 3 to the Hollis
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Declaration. See Hollis Dec’l, Docket Item No. 40-2, Ex. 2-3. In the event that a Class Notice is
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returned as undeliverable, Simpluris will obtain a current address and re-mail the Notice within
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three business days. Class Members will have 60 calendar days from the date the Claim Forms are
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mailed to submit the completed Claim Form or request exclusion. Thirty days after the initial
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mailing of the Notice, each class member who has not responded will receive a postcard reminder
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to submit a Claim Form before the deadline. Dkt. No. 57, Ex. 1 § VI ¶¶ 6.1-6.9.
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Simpluris will maintain a toll-free telephone line and a Settlement Website. The website
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can be used to file a Claim Form, track the processing of a Claim Form, and contact the Settlement
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Administrator.
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The Court finds that the above-described procedures meet the standards of Rule 23. The
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forms of notice attached as Exhibits 2 and 3 to the Hollis Declaration are hereby approved.
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IV. CONCLUSION
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For the reasons stated herein, the motion for preliminary approval is GRANTED as follows:
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1. This action is certified as a class action only for settlement purposes pursuant to
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subsections (a) and (b)(3) of Federal Rule of Civil Procedure 23.
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12
Case No. 5:12-CV-03577-EJD
ORDER GRANTING PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS;
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; APPROVAL OF CLASS
NOTICE AND PLAN; APPOINTMENT OF CLASS COUNSEL AND CLASS
REPRESENTATIVES; AND SETTING A FINAL APPROVAL HEARING
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