Nunez v. BAE Systems San Diego Ship Repair Inc. et al

Filing 59

ORDER (1) Accepting Proposed Supplemental Notice; (2) Directing Supplemental Notice to the Class; (3) Setting a New Date for the Final Fairness Hearing, re: 58 Notice of Joint Statement Regarding Supplemental Notice To The Settlement Class, filed by Eduardo Nunez. It is Ordered that the Court Grants the Parties' requests in their Joint Statement (ECF No. 58). Accordingly, the Court Directs the Parties to provide this supplemental notice to the Class Members consistent with the Court's Order. The Court also sets the Final Fairness Hearing date on 11/7/2017 at 1:30 p.m. Signed by Judge Janis L. Sammartino on 8/10/2017.(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDUARDO NUNEZ, individually and on
behalf of others similarly situated,

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ORDER (1) ACCEPTING
PROPOSED SUPPLEMENTAL
NOTICE; (2) DIRECTING
SUPPLEMENTAL NOTICE TO THE
CLASS; AND (3) SETTING A NEW
DATE FOR THE FINAL FAIRNESS
HEARING

Plaintiff,

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Case No.: 16-CV-2162 JLS (NLS)

v.
BAE SYSTEMS SAN DIEGO SHIP
REPAIR INC., a California Corporation;
and DOES 1 through 50 inclusive,
Defendants.

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(ECF No. 58)

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Presently before the Court is Class Counsel’s and Defendant BAE Systems San

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Diego Ship Repair, Inc.’s (collectively, the “Parties”) Joint Statement Regarding

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Supplemental Notice to the Settlement Class, (“Joint Statement”). (ECF No. 58.) The

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Parties have submitted this Joint Statement in accordance with the Court’s August 2, 2017

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Order, (ECF No. 57), which required the Parties to submit: (1) a statement confirming or

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denying their willingness to bear the costs of re-notifying the Class, and, if the Parties wish

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to do so, (2) a proposed supplemental notice incorporating the Court’s ruling; and (3) a

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proposed schedule and proposed procedures for the supplemental notice, including a new

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date for the Final Fairness Hearing. (Joint Statement 2;1 see also ECF No. 57.)

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As an initial matter, the Parties “agree to assume the additional cost for the

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administration of re-notifying the Class Members, to be paid for jointly by Class Counsel

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and BAE SDSR directly to the Settlement Administrator (Rust Consulting, Inc.) without

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reducing the Settlement Fund.”2 (Joint Statement 2 (emphasis in original).)

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The Parties have attached their supplemental notice as an exhibit to their Joint

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Statement. (Joint Statement Ex. A (“Suppl. Notice”), ECF No. 58-1.) The Parties (I) jointly

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submit this supplemental notice for the Court’s approval, and (II) jointly propose

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notification procedures and a renewed date for the Final Fairness Hearing. The Court

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considers each in turn.

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I.

Supplemental Notice

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Where there is a class settlement, Federal Rule of Civil Procedure 23(e)(1) requires

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the court to “direct notice in a reasonable manner to all class members who would be bound

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by the proposal.” “Notice is satisfactory if it ‘generally describes the terms of the settlement

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in sufficient detail to alert those with adverse viewpoints to investigate and to come forward

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and be heard.’” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962 (9th Cir. 2009) (quoting

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Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); see also Grunin v.

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Int’l House of Pancakes, 513 F.2d 114, 120 (8th Cir. 1975) (“[T]he mechanics of the notice

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process are left to the discretion of the court subject only to the broad ‘reasonableness’

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standards imposed by due process.”).

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In the Court’s August 2, 2017 Order, the Court noted two deficiencies in the Parties’

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previous Class-wide notice. (See generally ECF No. 57.) In that Order, the Court instructed

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the Parties to propose a supplemental notice that: (1) informs the Class Members of the

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.
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The Parties also note that the supplemental notice will be translated into Spanish. (Joint Statement 2.)
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entire scope of their release of liability, (id. at 6); and (2) alerts the Class Members to the

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existence of Class Counsel’s Motion for Attorney’s Fees so that they can have a proper

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opportunity to object to the motion before the Final Fairness Hearing, (id. at 11).

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The Court finds that this supplemental notice satisfactorily incorporates the Court’s
August 2, 2017 ruling. As to the first issue, the Parties provide the following language:

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1. Release Period:
By participating in the $2,900,000.00 settlement and receiving your
share of the net settlement, as estimated in the original Notice, you will
be releasing claims through the date that the District Court gives final
approval of the settlement. For a complete statement and the details of
the scope of all claims being released, please refer to the Joint
Stipulation of Settlement and Release (“Settlement Agreement”) on file
with the Court.

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(Suppl. Notice 1 (emphasis in original).) This adequately apprises the Class Members of

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the full scope of their release of liability; namely, that acceptance of the Settlement would

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release their claims through the date on which the Court grants final approval of the

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Settlement. Thus, the Court finds that this language sufficiently incorporates the Court’s

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August 2, 2017 Order.

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As to the second issue, the Parties provide the following language:

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2. Attorney’s Fees Motion:
On July 6, 2017, Class Counsel filed a Motion for Attorney’s Fees in
this case. The information supplied in the Motion for Attorney’s Fees
supplements and is consistent with what was indicated in the original
Notice that you received. You have the right to review this motion
before making a decision as to whether you might elect to opt-out of
the settlement or to object to this specific motion.
If you wish to review the Settlement Agreement or the Motion for
Attorney’s Fees, you may do so in-person at the Courthouse, located at:
221 West Broadway, San Diego, California 92101, online via the
“PACER”
website,
which
is
accessible
at:
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https://pacer.login.uscourts.gov/csologin/login.jsf, or by contacting
Class Counsel [at a provided address.]

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(Id.) The Court finds that this language both alerts Class Members to the existence of the

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Motion for Attorney’s Fees, and also provides three reasonable means for obtaining a copy

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of the motion. More importantly, this language adequately notifies the Class Members that

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they have an opportunity to object to the motion if they so desire. (Id.; see also id. at 3

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(outlining objection procedures).) Thus, the Court finds that this language sufficiently

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incorporates the Court’s August 2, 2017 ruling.

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The supplemental notice also faithfully incorporates the Court’s other directives. For

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instance, the Court noted that the renewed period for opt-outs and limited objections would

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be forty-five days. (Compare ECF No. 57, at 7 (setting a forty-five-day period), with Suppl.

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Notice 3 (noting the same).) Moreover, the Court clarified that, during this forty-five-day

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period, it will not consider general objections to the Settlement because the Class has

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already had an adequate opportunity to so object. (ECF No. 57, at 7; id. n.6.) Nevertheless,

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the Court noted that it will consider objections limited to: (1) the temporal extent of the

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release of liability, and (2) Class Counsel’s Motion for Attorney’s Fees. (Id. at 7, 11.) The

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Parties’ supplemental notice sufficiently apprises Class Members of these opportunities.

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(Suppl. Notice 2; id. at 3 (noting that Class Members “may only object to the settlement at

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this stage if your objection is because: (1) you will be releasing claims through the date

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that the District Court gives final approval of the settlement, and/or (2) you object to the

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Motion for Attorney’s Fees filed by class counsel” (emphasis in original)).) Accordingly,

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the Court finds that this supplemental notice is sufficient under Rule 23(e)(1) and

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adequately incorporates the Court’s August 2, 2017 Order.

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II.

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Notification Procedures and Final Fairness Hearing Date
Now that the Court has approved the Parties’ supplemental notice, the Parties

propose the following notification procedures:

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a) within five (5) days of the Supplemental Notice being approved by the
Court, that Rust will mail out the Supplemental Notice to all Settlement
Class Members, using the updated addresses for all Settlement Class
Members based on a NCOA search related to the initial mailing.
b) the Settlement Class Members will have forty-five (45) days from the date
of mailing of the Supplemental Notice to send in/file any Objections or
Opt-Out submissions as provided in the Supplemental Notice, which shall
determine the postmark deadline for identifying valid, timely Objections
and Opt-Outs.
c) on October 12, 2017, or as soon thereafter as is convenient for the Court,
a Final Fairness Hearing shall take place before the Honorable Janis L.
Sammartino in Courtroom 4D of the United States District Court for the
Southern District of California.

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d) at least seven (7) calendar days prior to the Final Fairness Hearing, the
Parties shall file a Supplemental Brief to notify the Court of any Opt-Outs
and to address the Objections filed, if any. This Supplemental Brief will
also include a declaration from Rust regarding the status of any Objections
and/or Opt-Outs received in response to the Supplemental Notice.

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e) to the extent that there are any Objections that have not been filed with the
Court, Rust will include such Objections with its declaration.

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(Joint Statement 2–3.)

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The Court finds that these procedures are generally adequate, subject to the

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following amendments. First, the proposed Final Fairness Hearing of October 12, 2017 is

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not available. Accordingly, the Court SETS the renewed date for the Final Fairness

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Hearing on Tuesday, November 7, 2017, at 1:30 p.m. Second, the Court will need

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additional time, beyond the proposed seven days, to review any supplemental brief filed

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by the Parties. Accordingly, the Parties SHALL FILE their supplemental brief on or before

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fourteen days from the date of the Final Fairness Hearing. With these amendments the

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Court finds that these proposed procedures are adequate under Rule 23. Accordingly, the

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Parties SHALL proceed under these procedures, consistent with the Court’s amendments,

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and revise their supplemental notice to include the relevant provisions.
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CONCLUSION

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For the foregoing reasons, the Court GRANTS the Parties’ requests in their Joint

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Statement (ECF No. 58). Accordingly, the Court DIRECTS the Parties to provide this

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supplemental notice to the Class Members consistent with the Court’s Order. The Court

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also SETS the Final Fairness Hearing date on Tuesday, November 7, 2017, at 1:30 p.m.

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The Court ORDERS the following schedule for further proceedings:

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Event

Date

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Settlement Administrator to Send

Within 5 days of the date on which

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Supplemental Notice to Class

this Order is electronically

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Members

docketed

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Last Day for Class Members to File

No later than 45 days from the date

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Request for Exclusion from Settlement of mailing the Notice

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Last Day for Class Members to File

No later than 45 days from the date

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Limited Objections to the

of mailing the Notice

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Settlement/Motion for Attorney’s Fees

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Last Day for Class Members to File

No later than 45 days from the date

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Notice of Intention to Appear at Final

of mailing the Notice

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Fairness Hearing

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Parties to File Supplemental Brief

No later than 14 days before the

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Final Fairness Hearing
Final Fairness Hearing

November 7, 2017 at 1:30 p.m.

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IT IS SO ORDERED.

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Dated: August 10, 2017

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