Graham et al v. Overland Solutions, Inc. et al
Filing
97
ORDER Granting Joint Motion For Preliminary Approval Of Class Action Settlement, Conditional Certification, Approval Of Class Notice, And Setting Of Final Fairness Hearing (Re Doc. 92 ): The Court approves and appoints Plaintiffs Joyce Graham and Jo yce Lampkin as the Class Representatives. The Court approves and appoints Cohelan Khoury & Singer and Michael P. Sousa as Class Counsel. The Court approves and appoints Rust Consulting, Inc., as the Claims Administrator to administrate the settlement pursuant to the terms of the Settlement Agreement. Objections must be filed with the District Court as described in the Notice of Pendency of Class Action and Proposed Settlement on or before 12/14/2012. The Final Approval Hearing is set for 1/29/20 13 at 09:30 AM in Courtroom 03 before Judge Roger T. Benitez. All briefs in support of the proposed Settlement, Final Approval Hearing and attorneys' fees, litigation costs, class representative enhancements, and claims administration expenses, shall be filed with the Court on or before 1/14/2013. Any party to this case, including Class Members, may appear at the Final Approval Hearing in person or by counsel, and may be heard to the extent allowed by the Court. Pending further order of this Court, all proceedings in this matter except those contemplated herein and in the Settlement Agreement are stayed. Signed by Judge Roger T. Benitez on 9/12/2012. (mdc)
FILED'
1
2
[ SEP 12 2012 ]
3
CLERK, u.s. DI
T
SOUTHERN DISTRICT Uf/!JAII~IN
fIN
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
CASE NO. 1O-CV-0672 BEN (BLM)
JOYCE GRAHAM and JOYCE LAMPKIN,
on behalf of themselves and all others
similarly situated,
ORDER GRANTING JOINT
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT, CONDITIONAL
CERTIFICATION, APPROVAL OF
CLASS NOTICE, AND SETTING OF
FINAL FAIRNESS HEARING
Plaintiffs,
13
vs.
14
15
16
OVERLAND SOLUTIONS, INC. and DOES
1-100, inclusive,
17
Res ondent.
[Docket No. 92]
18
19
This action arises from Plaintiffs Joyce Graham's and Joyce Lampkin's former employment
20
as field auditors for Defendant Overland Solutions, Inc. ("OSI"). Field auditors are non-exempt (i.e.,
21
hourly) employees who travel from site to site to audit policy premiums for Defendant's insurance-
22
company clients. There are 1,307 field auditors nationwide and 240 in California. Plaintiffs allege
23
that Defendant did not, and does not, pay for billable hours that cannot be charged to a client and that
24
this policy was never disclosed when the auditors were hired. Plaintiffs further allege that Defendant
25
uniformly underpaid, and continues to underpay, its field auditors by routinely cutting reported billable
26
hours and also pressuring auditors to under-report their hours. Auditors are often not aware of the
27
reductions until they receive their paychecks. Several declarations also state that reporting high
28
billable hours subjected time cards to excessive review and caused delays in receiving paychecks.
- 1-
IOcv0672
1 Plaintiffs contend that these employment practices constitute a breach of contract and violate federal
2
and California labor laws.
3
Plaintiffs initiated this action in California Superior Court. On March 29,2010, Defendant
4
removed the action to this Court. On November 30, 2010, Plaintiffs filed a Motion for Rule 23 Class
5
Certification, which sought to certify a nationwide class of field auditors under Federal Rule of Civil
6
Procedure 23, or in the alternative, a statewide class of field auditors for the same claims plus
7
additional claims that arise purely under California law. (Docket No. 23.) This Motion for Rule 23
8
Class Certification was denied on the basis that Plaintiffs' claims are not typical of the class and
9
Plaintiffs would not adequately protect the interests ofthe class. (Docket No. 74.) Also on November
10
30, 2010, Plaintiffs filed a Motion for Conditional Collective Action and Certification and Notice,
11
pursuant to 29 U.S.C. § 216(b), which sought conditional certification of two claims under the Fair
12
Labor Standards Act: (1) failure to pay overtime and minimum wage by pressuring auditors to not
13
report all hours worked; and (2) failure to pay all wages due by unilaterally cutting billed hours or
14
pressuring field auditors to not report all time worked. (Docket No. 24.) This Motion for Conditional
15
Collective Action and Certification was granted. (Docket No. 75.)
16
Presently before the Court is the parties' Joint Motion for Preliminary Approval of Class
17
Action Settlement, Conditional Certification, Approval of Class Notice, and Setting ofFinal Fairness
18
Hearing.
19
DISCUSSION
20
Once parties reach a settlement agreement prior to class certification, the court must "peruse
21
the proposed compromise to ratify both the propriety of the certification and the fairness of the
22
settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). The court must (1) assess
23
whether a class exists, and (2) determine whether the proposed settlement is "fundamentally fair,
24
adequate, and reasonable." Id. (internal quotation marks omitted). Here, the Court will first examine
25
the propriety of class certification, then the fairness of the settlement agreement, followed by the
26
questions of class counsel and class notice.
27
III
28
III
-2-
IOcv0672
1
I.
2
A plaintiff seeking a Rule 23(b)(3) class certification must: (1) satisfy the prerequisites ofRule
CLASS CERTIFICATION
3
23(a); and (2) satisfy the requirements of Rule 23(b)(3).
4
certification for settlement purposes only ofthe following two classes: (1) the "California Class": All
5
OSI Premium Audit Field Representatives employed in California at any time during the Class Period,
6
from February 16, 2006 through February 15, 2012; and (2) the "Nationwide Class": All OSIPremium
7
Audit Field Representatives employed in any office in the United States, other than California, at any
8
time during the Class Period, from February 16, 2006 through February 15,2012. (Khoury Decl., Exh.
9
1 [Settl. Agr.] ~ 5.)
10
11
12
13
A.
Here, the parties seek provisional
Rule 23(a) Requirements
Rule 23(a) establishes four prerequisites for class action litigation: (1) numerosity; (2)
commonality; (3) typicality; and (4) adequacy ofrepresentation. FED. R. CIV. P. 23(a); see also Staton,
327 F.3d at 953. The Court will examine each prerequisite in tum.
14
1.
15
Numerosity
16
The numerosity prerequisite is met if "the class is so numerous that joinder of all members is
17
impracticable." FED. R. CIV. P. 23(a)(1). In the present case, there are 255 California auditors and
18
1,149 Non-California Nationwide auditors employed by OSI during the Class Period. (Khoury Dec!.
19 ~ 9.) They are too numerous to be joined as plaintiffs in this action. Accordingly, the numerosity
20
21
requirement is met.
2.
Commonality
22
The commonality requirement is met if "there are questions of law or fact common to the
23
class." FED. R. CIV. P. 23(a)(2). The commonality requirement is construed "permissively." Hanlon
24
v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Not all questions oflaw and fact need to be
25
common, but rather "[t]he existence of shared legal issues with divergent factual predicates is
26
sufficient, as is a common core ofsalient facts coupled with disparate legal remedies within the class."
27
Id In addition, commonality requires that class members "have suffered the same injury." Wal-Mart
28
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
-3-
IOcv0672
1
Here, there are numerous common questions oflaw and fact, including: (l) whether OSI had
2
a practice ofreducing Billable Hours and pressuring auditors to under-report Billable and Time Card
3
Hours; (2) whether OSI improperly failed to pay supplemental minimum wage; (3) whether the
4
compensation scheme is an improper piece rate system; (4) whether reducing Billable Hours violates
5
the law and, if so, whether underpayment of overtime results; (5) whether a California piece rate
6
employee must also be paid a supplemental minimum wage for non-productive time; and (6) whether
7
excessive drive time should be compensated. In addition, whether Defendant is liable for damages,
8
penalties, and restitution pursuant to California Labor Code §§ 201-203,212,221,226,2699 and the
9
UCL are also issues which can be resolved on a class-wide basis. Alba v. Papa John's USA, Inc., No.
10
CV 05-7487 GAF (CTx), 2007 U.S. Dist. LEXIS 28079, at *19-21 (C.D. Cal. Feb. 7,2007); see also
11
Vizcaino v. U.S. Dist. Ct., 173 F.3d 713, 722 (9th Cir. 1999) (employees presented common question
12
that they were denied benefits to which they were entitled as common law employees). Accordingly,
13
the commonality requirement is met.
14
3.
Typicality
15
Typicality requires that "the claims or defenses ofthe representative parties [be] typical ofthe
16
claims or defenses of the class." FED. R. CIY. P. 23(a)(3). The Ninth Circuit interprets typicality
17
permissively. Hanlon, 150 F.3d at 1020.
18
"reasonably co-extensive with those ofabsent class members," though they "need not be substantially
19
identical." Id; see also Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175
20
(9th Cir. 1990). The named plaintiffs must be members of the class they seek to represent and they
21
must "possess the same interest and suffer the same injury" as putative class members. Gen. Tel. Co.
22
ofSw. v. Falcon, 457 U.S. 147, 156 (1982)(internal quotation marks omitted). It is sufficient for the
23
plaintiffs claims to "arise from the same remedial and legal theories" as the class claims. Arnold v.
24
United Artists Theatre Cir., Inc., 158 F.R.D. 439,449 (N.D. Cal. 1994).
25
The representative claims are "typical" if they are
Here, Plaintiffs' claims arise from the same factual basis-including a failure to comply with
26
state and federal laws regarding minimum and overtime wages-as those applicable to all Class
27
Members. Wehner v. Syntex Corp., 117 F.R.D. 641, 644 (N.D. Cal. 1987); see also Hanlon, 150 F.3d
28
at 1020. Plaintiffs were field auditors during the class period. Each was allegedly subject to OS!' s
-4-
IOcv0672
practice of reducing Billable Hours and pressuring auditors to under-report Billable and Time Card
2
Hours. In addition, each was allegedly subject to OSI's uniform policies, including failure to pay
3
supplemental minimum wage, using what Plaintiffs allege is an improper piece rate system, using
4
RFCs resulting in untimely wage payments, failing to include post-commute time in aggregate Time
5
Card Time, and failing to pay wages drawn on a bank with a California address. Accordingly, the
6
typicality requirement is met.
In the May 9, 2011 Order, the Court previously denied Plaintiffs' motion for Rule 23 class
7
8
certification on the basis that Defendant has a defense of unclean hands that is unique to Graham and
9
Lampkin, which defeated typicality, Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010).
10
(Docket No. 74). However, Defendant agrees that the typicality requirement is met, for the purposes
11
of settlement.
12
4.
13
Adequacy of Representation
Representative parties must be able to "fairly and adequately protect the interests ofthe class."
14
FED. R. CIv. P. 23(a)(4). Representation is adequate if the plaintiffs: (1) "do not have conflicts of
15
interest with the proposed class" and (2) are "represented by qualified and competent counsel." Dukes
16
v. Wal-Mart, Inc., 509 F.3d 1168, 1185 (9th Cir. 2007). At the heart of this requirement is the
17
"concern over settlement allocation decisions." Hanlon, 150 F.3d at 1020.
18
As explained above, the Court previously denied Plaintiffs' motion for Rule 23 class
19
certification on the basis that Defendant has a defense of unclean hands that is unique to Graham and
20
Lampkin, which defeated the adequacy requirement. However, Defendant has waived its objections
21
to Plaintiffs' adequacy to serve as class representatives, for the purposes ofsettlement. (Khoury Dec!.
22
~ 66.)
23
In addition, Plaintiffs' attorneys have experience prosecuting class actions. Plaintiffs and the
24
proposed class counsel have indicated that they are willing to pursue this action vigorously on behalf
25
of the class, have thoroughly investigated the class claims, served and responded to discovery, and
26
taken depositions of key employees and corporate representatives. (Id.
~ 4-6, 45-59.) Accordingly,
27
the adequacy requirement has been met.
28
For the reasons stated above, Plaintiffs have satisfied the prerequisites of Rule 23(a).
-5-
IOcv0672
1
B.
Rule 23(b)(3) Requirements
2
Rule 23(b)(3) requires the court to find that: (1) "the questions oflaw or fact common to class
3
members predominate over any questions affecting only individual members" ("predominance"); and
4
(2) "a class action is superior to other available methods for fairly and efficiently adjudicating the
5
controversy" ("superiority").
6
1.
Predominance
7
The predominance inquiry tests "whether proposed classes are sufficiently cohesive to warrant
8
adjudication by representation." Hanlon, 150 F .3d at 1022 (internal quotation marks omitted). This
9
analysis requires that common questions oflaw and fact "present a significant aspect ofthe case and
10
[that] they can be resolved for all members of the class in a single adjudication." Id. (internal
11
quotation marks omitted). The relevant inquiry is whether issues "subject to generalized proof
12
predominate over those issues that are subject only to individualized proof." Dilts v. Penske Logistics,
13
LLC, 267 F.R.D. 625, 634 (S.D. CaL 2010) (internal quotation marks and alteration omitted).
14
Here, Plaintiffs' claims present common questions of law and fact, as explained above.
15
Defendant stipulates for settlement purposes that these common questions of law and fact support a
16
finding of predominance. (Jt. Mot. at 24.) Accordingly, the predominance requirement is met.
17
2.
Superiority
18
The superiority requirement focuses on the determination of "whether the objectives of the
19
particular class action procedure will be achieved in the particular case." Hanlon, 150 F.3d at 1023.
20
The class-action method is considered to be superior if "classwide litigation of common issues will
21
reduce litigation costs and promote greater efficiency." Valentino v. Carter-Wallace, Inc., 97 F.3d
22
1227, 1234 (9th Cir. 1996).
23
Here, Defendant agrees, for purposes of settlement only, that class certification is superior to
24
other methods of adjudication because Plaintiffs' claims are based on common policies and practices
25
that would be most efficiently litigated on a class-wide basis. (Jt. Mot. at 24.) Concentration ofclass
26
members' claims for settlement purposes is desirable in order to avoid the possibility of duplicative
27
individual matters and inconsistent judicial determinations. Class treatment of the class members'
28
claims would be more manageable than many individual lawsuits brought by current or former
-6-
IOcv0672
1 Premium Audit Field Representatives. Moreover, litigation of this matter as a class action will be
2
manageable because damages may be determined through analysis of Defendant's employee and
3
payroll records. In addition, because of the relatively small individual claims of class members, it is
4
unlikely that individual actions to recover these unpaid wages will be filed. A Non-California
5 Nationwide Class Member could at most recover $1,892.79, less taxes. (Khoury Dec!.
6
California Class Member could at most recover $19,878.94, less taxes. (Id.
7
~ 32.)
~
31.) A
superiority requirement is met.
Accordingly, the
8
For the foregoing reasons, Plaintiffs have satisfied the requirements of Rule 23(b)(3). The
9
Court GRANTS preliminary certification ofboth classes for the purposes ofthe proposed settlement.
10
The Court, however, may review this finding at the Final Approval Hearing.
THE SETTLEMENT
11
II.
12
Rule 23(e) requires the Court to determine whether a proposed settlement is "fundamentally
13
fair, adequate, and reasonable." Staton, 327F.3dat 959 (internal quotation marks omitted). Inmaking
14
this determination, a court may consider: (1) the strength ofthe plaintiff sease; (2) "the risk, expense,
15
complexity, and likely duration of further litigation;" (3) "the risk of maintaining class action status
16
throughout the trial;" (4) "the amount offered in settlement;" (5) "the extent of discovery completed,
17
and the stage of the proceedings;" (6) "the experience and views of counsel;" (7) "the presence of a
18
governmental participant;" and (8) "the reaction of the class members to the proposed settlement."
19
See id (internal quotation marks omitted). Moreover, the settlement may not be the product of
20
collusion among the negotiating parties. Inre MegoFin. Corp. Sec. Litig., 213 F.3d454, 458 (9th Cir.
21
2000).
22
Because some of these factors cannot be fully assessed until the Court conducts the Final
23
Approval Hearing, "a full fairness analysis is unnecessary at this stage." See Alberto v. GMRI, Inc.,
24
252 F.R.D. 652, 665 (E.D. Cal. 2008) (internal quotation marks omitted). At the preliminary approval
25
stage, the Court need only review the parties' proposed settlement to determine whether it is within
26
the permissible "range of possible approval" and thus, whether the notice to the class and the
27
scheduling of the formal fairness hearing is appropriate. Id at 666.
28
III
-7-
IOcv0672
A.
The Strength of Plaintiffs' Case and the Risk, Expense, Complexity and
2
Likely Duration of Further Litigation, and the Risk of Maintaining Class
3
Action Status Throughout the Trial
4
Plaintiffs assert that the proposed settlement is fair and reasonable in light of Defendant's
5
available legal and factual grounds for defending against Plaintiffs' claims. Plaintiffs recognize that
6
there are significant risks to Plaintiffs' ability to maintain this as a class or collective action. (Khoury
7
Decl.' 41.) First, Defendant contends that it has presented significant defenses and good faith
8
objections to Plaintiffs' ability to obtain Rule 23 certification. Defendant asserts that the claims are
9
inappropriate for class treatment because there is a lack of commonality and a predominance of
10
individual inquiry. (Id.' 43.) Specifically, Defendant argues that Plaintiffs will not be able to
11
establish class-wide practices and that individual issues would predominate over common facts,
12
especially given the Supreme Court's recent ruling in Dukes, which disapproved ofthe use ofsampling
13
and surveys to determine class-wide practices. See 131 S. Ct. at 2561. Defendant argues that, as a
14
result, Rule 23 certification would likely be deemed inappropriate and that a motion to decertify the
15
collective action would be successful. (Khoury Decl. , 43.) In addition, Defendant contends that it
16
would be able to decertify the FLSA collective action, because the second step of FLSA collective
17
action certification is nearly identical to that under Rule 23.
18
Furthermore, Plaintiffs recognize the possibility that there may be an unfavorable result on the
19
merits on summary judgment, at trial, or on appeal. (fd., 40.) Litigation of this action is a process
20
that could take several years. (Id.) Taken together, these considerations weigh in favor ofpreliminary
21
approval of the proposed settlement.
22
B.
The Extent of Discovery and the Stage of the Proceedings
23
In regards to class action settlements, "formal discovery is not a necessary ticket to the
24
bargaining table where the parties have sufficient information to make an informed decision about
25
settlement." Linneyv. Cellular Alaska P 'ship, 151 F.3d 1234, 1239 (9thCir. I 998)(internal quotation
26
marks omitted).
27
28
Here, the parties appear to have engaged in substantial discovery. The parties have exchanged
substantial formal written discovery requests and taken depositions.
- 8 -
(Khoury Decl. , 44.)
IOcv0672
Specifically, Plaintiffs have served Defendant with four sets of Special Interrogatories, five sets of
~~
2
Requests for Production of Documents, and two sets of Requests for Admission. (Id
45,51,53
3
54.) Moreover, Plaintiffs have conducted informal interviews ofan estimated 114 class members. (ld.
4
~ 48.)
5
In addition, Defendant has deposed Graham and Lampkin. (ld.
6
Defendant's persons most knowledgeable David Harris, Senior Vice President, and Kevin Kramer,
7
Senior Vice President of Quality Assurance Training and New Product Development, and, in their
8
individual capacities, employees Carol Lyman, Area Manager; Vicky Ross, former General Manager
9
of OSPs Los Angeles Branch Office; and David Goldschlag, former Vice President and General
Defendant has served each Plaintiff with its Requests for Production of Documents. (ld. ~ 46.)
~
~
50.) Plaintiffs have deposed
10
Manager of OS1's Los Angeles Branch Office. (ld.
11
investigated and evaluated the factual strengths and weaknesses of this case and engaged in sufficient
12
investigation and discovery to support the settlement. (Id.
13
and stage of the proceedings weigh in favor of preliminary approval.
c.
14
52.) The parties appear to have thoroughly
~ 57.)
Accordingly, the extent ofdiscovery
Experience of Class Counsel
15
Class counsel has experience litigating misclassification, overtime, expense reimbursement,
16
and rest/meal period actions, and have acted as class counsel in numerous employment law cases. (ld
17
~ 58.)
18
Kraemer, LLP, are experienced in wage and hour employment law and class actions. (ld. ~ 59.)
19
Counsel on both sides believe that this is a fair and reasonable settlement in light of the complexities
20
ofthe case, the state of the law, and the uncertainties ofcertification and litigation. Accordingly, this
21
factor weighs in favor ofpreliminary approval. See Ellis v. Naval Air Rework Facility, 87 F.R.D. 15,
22
18 (N.D. Cal. 1980); In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008)
23
("The recommendations of plaintiffs' counsel should be given a presumption of reasonableness."
24
(internal quotation marks omitted)).
25
In addition, Defendant's counsel, Donna M. Rutter and Felicia R. Reid of Curiale Hirschfeld
D.
The Amount Offered in Settlement
26
A settlement is not judged against only the amount that might have been recovered had the
27
plaintiff prevailed at trial, nor must the settlement provide 100% ofthe damages sought to be fair and
28
reasonable. Linney, 151 F.3d at 1242. There is a "range of reasonableness" in determining whether
- 9-
IOcv0672
1
to approve settlement "which recognizes the uncertainties of law and fact in any particular case and
2
the concomitant risks and costs necessarily inherent in taking any litigation to completion." Frankv.
3
Eastman KodakCo., 228 F.R.D. 174, 186 (W.D.N.Y. 2005)(quotingNewman v. Stein, 464 F.2d 689,
4
693 (2d CiT. 1972)). The adequacy ofthe amount recovered must be judged as "a yielding ofabsolutes
5
... Naturally, the agreement reached normally embodies a compromise; in exchange for the saving
6
of cost and elimination of risk, the parties each give up something they might have won had they
7
proceeded with litigation." Officers for Justice v. Civil Servo Comm 'n, 688 F.2d 615,624 (9th CiT.
8
1982) (internal quotation marks omitted). "It is well-settled law that a cash settlement amounting to
9
only a fraction of the potential recovery will not per se render the settlement inadequate or unfair."
10
Id. at 628.
11
The three major claims presented by the Class include: (1) the Rule 23 California claims for
12
the unpaid supplemental minimum wage, which were calculated by Plaintiffs' consultant, based upon
13
the difference between the reported and billable hours, to be approximately $2,000,000 with an
14
additional potential interest assessment of $1,100,000; (2) the Nationwide Billable Time Under
15
payment claims which were calculated based on records and survey data to be approximately
16
$11,480,000; and (3) based on similar data, the California Billable Time Under-payment claims which
17
were calculated at approximately $1,980,000. 1 (Khoury Decl. ~ 62.)
18
The parties have agreed to a Maximwn Settlement Amount ("MSA") of $3,750,000, which
19
includes, subject to the Court's approval: (1) attorneys' fees in an amount not to exceed 30% of the
20
MSA, or$I,125,000; (2) litigation costs estimated at $55,000; (3) Class Representative enhancements
21
in the sum of$25,000 for Graham and $25,000 for Lampkin; and (4) claims administrative expenses
22
by Rust Consulting, Inc., estimated at $52,500. (ld. ~ 26.) After any Court-approved deductions, the
23
remaining sum (or, the Net Settlement Amount ("NSA")) estimated at $2,320,066.90, will be available
24
for distribution to Class Members. (Id. ~ 27.) The NSA will be allocated between the classes as
25
follows: 66%, or an estimated $1,531,244.10, to the California Class on a non-reversionary basis; and
26
27
28
I These estimated values do not include the derivative California claims for waiting time
penalties or failure to provide itemized wages statements as these claims require willfulness and/or
injury, and penalties are discretionary with the Court, thereby making any assessment ofsuch damages
highly speculative. (Khoury Decl. ~ 62.)
- 10-
IOcv0672
34%, or an estimated $788,822.80, to the Non-California Nationwide Class on a reversionary basis.
~
2
(ld.
3
estimated $19,878.94, while a Non-California Nationwide Class member who has worked the entire
4
class period will recover an estimated $1,892.79. (Id.
29.) A California Class member who has worked the entire class period will recover an
~~
31-32.)
5
Defendant contends that the settlement must discount Plaintiffs' damages calculations to reflect
6
the risks Plaintiffs face in regards to both Rule 23 certification and a potential motion to decertify, as
7
well as the legal challenges Plaintiffs face in ultimately prevailing on their liability theories, as
8
explained above. In addition, the disparity in the allocation between the California Class and the Non-
9
California Nationwide Class appears to be justified by the comparative strengths of the claims. The
10
California Class Members potentially have stronger California claims for failing to pay minimum
11
wages and recalculated overtime wages, a greater likelihood of obtaining Rule 23 certification of the
12
California claims, and a greater likelihood ofproving liability and damages on Plaintiffs' supplemental
13
minimum wage and other California statutory claims. (Id. ~ 30.) In light of the uncertainties involved
14
with respect to litigating this action, the Court finds the amounts offered in settlement to be adequate,
15
at least at this stage of the proceedings. See, e.g., Glass v. UBS Fin. Servs., Inc., No. C-06-4068
16
MMC, 2007 WL 221862, at *4 (N.D. Cal. Jan. 26,2007) (finding settlement of a wage and hour class
17
action for 25 to 35% of the claimed damages to be reasonable in light of the uncertainties involved in
18
the litigation).
19
E.
Collusion Between the Parties
20
The collusion inquiry regards the possibility that the agreement is the result of either the
21
negotiators' overt misconduct or improper incentives for certain class members at the expense ofother
22
members of the class. Staton, 327 F.3d at 960. Here, there is no evidence of overt misconduct. The
23
Court will focus only on the aspects of the settlement that lend themselves to self-interested action.
24
First, the distribution between the two classes does not appear to be the result of collusion
25
between the parties. Rather, the disparity in the allocation between the California Class and the Non-
26
California Nationwide Class appears to be justified by the comparative strength of the claims, as
27
explained above.
28
The proposed class representative enhancements of $25,000 each to Graham and Lampkin
- 11 -
IOcv0672
1 likewise do not appear to be the result of collusion. The Court evaluates incentive awards using
2
"relevant factors including the actions the plaintiff has taken to protect the interests of the class, the
3
degree to which the class has benefitted from those actions, the amount oftime and effort the plaintiff
4
expended in pursuing the litigation and reasonable fears ofworkplace retaliation." Id at 977 (internal
5
quotation marks and alterations omitted). Here, Plaintiffs request $25,000 each for Graham and
6
Lampkin, for their time, effort, risks undertaken for the payment of costs in the event this action had
7
been unsuccessful, stigma upon future employment opportunities for having initiated an action against
8
a former employer, and a general release of all claims related to their employment.
9
Lastly, the attorneys' fees do not appear to be the result of collusion. It is permissible for
10
plaintiffs to simultaneously negotiate the merits of the action and attorneys' fees. Id at 971. Here,
11
the settlement agreement provides that Plaintiffs' counsel would recover an award of attorneys' fees
12
up to 30% of the MSA, or $1,125,00. (Khoury Decl., Exh. 1 [Settl. Agr.]
13
Plaintiffs' counsel will request reimbursement of their reasonable costs and expenses incurred in
14
connection with the investigation, prosecution, and settlement ofthis action. (Id) Plaintiffs' counsel
15
requests that any fees and costs awarded by the Court be paid from the MSA and encompass: (1) all
16
work performed, costs and expenses related to the investigation, prosecution and settlement of this
17
action incurred through the date ofthe Settlement Agreement; (2) all work to be performed and costs
18
to be incurred in connection with approval by the Court ofthe Class Settlement; and (3) all work, costs
19
and expenses incurred in connection with administering the Class Settlement through dismissal ofthis
20
action with prejudice. (ld)
~
7.C.) In addition,
21
"[T]he choice ofwhether to base an attorneys' fee award on either net or gross recovery should
22
not make a difference so long as the end result is reasonable." Powers v. Eichen, 229 F.3d 1249, 1258
23
(9th Cir. 2000). In addition, district courts must explain departures from the "benchmark" of 25%
24
recovery. Id at 1256-57. Accordingly, the Court has reservations about the substantial recovery of
25
attorneys' fees sought by Plaintiffs' counsel. However, the Court need not decide this issue at this
26
time. At this point, the Court merely notes that 30% recovery does not appear to be the result of
27
collusion.
28
For the above reasons, the Court GRANTS preliminary approval ofthe proposed settlement.
- 12 -
lOcv0672
1
However, the Court reserves judgment on the reasonableness of the attorneys' fees for the Final
2
Approval Hearing.
3
III.
4
The choice of counsel has traditionally been left to the parties, "whether they sue in their
5
individual capacities or as class representatives." In re Cavanaugh, 306 F.3d 726, 734 (9th Cir. 2002)
6
(internal quotation marks omitted). Here, Plaintiffs' counsel has extensive experience in employment
7
class actions, as discussed above. Accordingly, because Plaintiffs' counsel appears to be competent
8
to represent the classes, the Court GRANTS Plaintiffs' motion to appoint Cohelan Khoury & Singer
9
and Michael P. Sousa.
ApPOINTING CLASS COUNSEL
10
IV.
11
Class notice must be "reasonably calculated, under all the circumstances, to apprise interested
12
parties ofthe pendency of the action and afford them an opportunity to present their objections." See
13
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,314 (1950). Moreover, the class notice
14
must satisfy the content requirements ofRule 23(c)(2)(B), which provides that the notice must clearly
15
and concisely state in plain, easily understood language:
ApPROVING CLASS NOTICE
16
(i) the nature ofthe action; (ii) the definition ofthe class certified; (iii) the class claims,
issues, or defenses; (iv) that a class member may enter an appearance through an
attorney if the member so desires; (v) that the court will exclude from the class any
member who requests exclusion; (vi) the time and manner for requesting exclusion;
and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).
17
18
19
20
Here, the content of the proposed notice is adequate. The proposed notice provides: (1)
21
information on the meaning and nature ofthe two classes; (2) the terms and provisions ofthe proposed
22
settlement; (3) the relief that settlement group members will be entitled to, including a specific
23
estimate ofthe amount to be paid to each eligible member; (4) the costs and fees to be paid out of the
24
MSA; (5) the procedures and deadlines for submitting claim forms, objections, andlor requests for
25
exclusion; and (6) the date, time, and place of the Final Approval Hearing. (See Khoury Decl., Exh.
26
27
A [Proposed Class Notice].) In addition, the method of notice, more fully set forth below, is
reasonable.
28
III
- 13 -
lOcv0672
CONCLUSION
2
3
ACCORDINGLY,
GOOD
CAUSE
APPEARING,
THE
JOINT
MOTION
FOR
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT IS HEREBY GRANTED.
4
5
1.
As a part ofsaid preliminary approval, the Court hereby accepts and incorporates the
6
Parties' Settlement Agreement and hereby conditionally certifies the following
7
classes ofpersons for settlement purposes only pursuant to the terms and conditions
8
contained in said Settlement Agreement:
9
A.
10
OSI Premium Audit Field Representatives employed in California at
11
any time during the Class Period, from February 16, 2006 through
12
February 15,2012.
13
B.
14
in the United States, other than California, at any time during the Class
16
Period, from February 16,2006 through February 15,2012.
17
2.
3.
4.
The Court approves and appoints Rust Consulting, Inc., as the Claims Administrator
to administrate the settlement pursuant to the terms of the Settlement Agreement.
23
24
The Court approves and appoints Cohelan Khoury & Singer and Michael P. Sousa
as Class Counsel,
21
22
The Court approves and appoints Plaintiffs Joyce Graham and Joyce Lampkin as
the Class Representatives.
19
20
The "Nationwide Class" or "Nationwide Class Members" shall mean
all OSI Premium Audit Field Representatives employed in any office
15
18
The "California Class" or "California Class Members" shall mean all
5.
The Court finds that the Notice of Pendency of Class Action, Proposed Settlement
25
and the Claim FormlFLSA Consent Form advise ofthe pendency ofthe Class Action,
26
of the proposed settlement, of the preliminary Court approval of the proposed
27
Settlement, claim submission timing and procedures, objection time and procedures,
28
opt-out timing and procedures, and of the Final Approval Hearing date. The Court
- 14 -
lOcv0672
I
further finds that these documents fairly and adequately advise Class Members ofthe
2
terms of the proposed Settlement and the benefits available to Class Members
3
thereunder, as well as their right to opt-out and procedures for doing so, and of the
4
Final Approval Hearing and the right to file documentation in support or in
5
opposition to the Settlement and to appear in connection with said hearing. The
6
Court further finds that said class Notice and Claim FormlFLSA Consent Form
7
clearly comport with all constitutional requirements including those of due process.
8
9
10
11
ACCORDINGL Y, GOOD CAUSE APPEARING, THE COURT HEREBY APPROVES
THE PROPOSED NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT AND THE PROPOSED CLAIM FORMIFLSA CONSENT FORM, ATTACHED TO
12
THE SETTLEMENT AGREEMENT;
13
14
15
16
17
6.
The Court finds that the mailing to the present and last known address of the
members of the above-named Classes constitutes an effective method of notifYing
Class Members of their rights with respect to the Class Action and Settlement.
ACCORDINGL Y, IT IS HEREBY ORDERED that
(a)
On or before October 12. 2012, Defendant shall forward to the appointed
18
Claims Administrator, Rust Consulting, Inc., a database (in an electronic
19
spreadsheet format) containing the names ofeach Class member, and for each
20
Class Member, hislher last known home address (street, city, and zip code),
21
last known home and/or cellular telephone numbers, last four digits ofhis/her
22
social security number, location of the OSI office where employed, and the
23
number of weeks worked during the period February 16, 2006 through
24
February 15,2012, ("Class Period");
25
(b)
On or before October 29. 2012, Rust Consulting, Inc., shall mail to each
26
Class Member, by first class, postage pre-paid, the Notice of Pendency of
27
Class Action and Proposed Settlement, Claim FormlFLSA Consent Form,
28
and pre-printed, postage paid return envelope, collectively "Notice Packet";
- 15 -
IOcv0672
1
(c)
2
The front of the envelope containing the Notice Packet addressed to a
California Class Member, below the return address, shall state the words:
3
"Important Legal Document. If you were employed by Overland Solutions,
4
Inc., as a Premium Audit Field Representative in California during the
5
relevant time period, you may be entitled to recover money from a Class
6
Action Settlement. Your Prompt Attention is Required";
7
(d)
The front of the envelope containing the Notice Packet addressed to a
8
Nationwide Class Member, below the return address, shall state the words:
9
"Important Legal Document. If you were employed by Overland Solutions,
10
Inc., as a Premium Audit Field Representative in the United States, other than
11
in California, during the relevant time period, you may be entitled to recover
12
money from a Class Action Settlement. Your Prompt Attention is Required";
13
14
(e)
All mailings shall be made to the present and/or last known mailing address
15
ofthe Class Members based on Defendant's records, as well as addresses that
16
may be updated and located by the Claims Administrator who will conduct
17
standard address searches in cases of returned mail as set forth in the
18
Settlement Agreement. The Court finds and so orders that the mailing of
19
notices to Class Members as set forth in this paragraph is the best means
20
practicable by which to reach Class Members and is reasonable and adequate
21
pursuant to all constitutional and statutory requirements including all due
22
process requirements; and
23
(f)
On or before November 29.2012, the Claims Administrator, shall mail a
24
"reminder" post-card to those Class Members who have not responded to the
25
Notice of Pendency of Class Action and Proposed Settlement with the return
26
of a Claim FormlFLSA Consent Form, or a request for exclusion (if a
27
California Class Member) reminding them ofthe deadline in which to act to
28
make a claim.
- 16-
IOcv0672
7.
2
IT IS FURTHER ORDERED that:
(a)
3
Requests for exclusion ("opt-out requests") must be mailed to the Claims
Administrator, Rust Consulting, Inc., postmarked on or before December 14,
4
2012.
5
(b)
Any Class Member who fails to submit a timely Claim FormlFLSA Consent
6
Form and who also fails to submit a Request for Exclusion from the Class
7
shall automatically be deemed a Class Member whose rights and claims with
8
respect to the Non-FLSA Released Claims (defined in Settlement Agreement,
9
IXA.2.) are determined by the Court's Final Order Approval of the Class
10
Action Settlement and the other rulings in the action, and said Class
11
Member's rights to pursue any Non-FLSA Released Claims will be
12
extinguished and said Class Member will not be permitted to recover from
13
the Maximum Settlement Amount.
14
(c)
15
Objections, which must include a written statement of the grounds of the
16
objection and all supporting papers, must be filed with the District Court as
17
described in the Notice ofPendency ofClass Action and Proposed Settlement
18
on or before December 14. 2012, and served on Counsel for the Plaintiffs
19
and on Counsel for Defendant.
(d)
20
Administrator, postmarked on or before December 14, 2012.
21
22
Claim FormslFLSA Consent Forms must be mailed to the Claims
8.
IT IS FURTHER ORDERED that the Final Approval Hearing shall be held before
23
the undersigned at 9:30 a.m. on January 29, 2013 at the above-entitled court located
24
at the 940 Front Street, Courtroom 3, San Diego, California 92101 to consider the
25
fairness, adequacy and reasonableness of the proposed Settlement preliminarily
26
approved by this Order of Preliminary Approval, and to consider the application of
27
Class Counsel Cohelan, Khoury & Singer and Michael P. Sousa for an award of
28
- 17
lOcv0672
1
reasonable attorneys' fees, litigation expenses, class representative enhancements,
2
3
and for costs of claims administration incurred.
9.
IT IS FURTHER ORDERED that all briefs in support of the proposed Settlement,
4
Final Approval Hearing and attorneys' fees, litigation costs, class representative
5
enhancements, and claims administration expenses, shall be served and filed with the
6
Court on or before January 14,2013.
7
10.
IT IS FURTHER ORDERED that any party to this case, including Class Members,
8
may appear at the Final Approval Hearing in person or by counsel, and may be heard
9
to the extent allowed by the Court, in support of or in opposition to the Court's
10
determination of the good faith, fairness, reasonableness and adequacy of the
11
proposed Settlement, the requested attorneys' fees and litigation expenses and class
12
representative enhancement payments and any Order of Final Approval and
13
Judgment regarding such Settlement.
14
15
11.
IT IS FURTHER ORDERED that if, for any reason, the Court does not execute and
16
file an Order of Final Approval and Judgment, or ifthe Effective Date of Settlement
17
does not occur for any reason whatsoever, the Settlement Agreement and the
18
proposed Settlement subject of this Order and all evidence and proceedings had in
19
connection therewith, shall be null and void and without prejudice to the status quo
20
ante rights of the parties to the litigation as more specifically set forth in the
21
Settlement Agreement.
22
12.
IT IS FURTHER ORDERED that, pending further order of this Court, all
23
proceedings in this matter except those contemplated herein and in the Settlement
24
Agreement are stayed.
25
26
27
28
- 18 -
IOcv0672
The Court expressly reserves the right to adjourn or continue the Final Approval Hearing
2
from time-to-time without further notice to the Class Members.
3
4
DATED:
SePtembe~012
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 19 -
09CV2482
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?