Janicijevic v. Classica Cruise Operator Ltd et al
Filing
41
ORDER granting 37 Renewed Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class. Final Approval Hearing set for 5/12/2021 09:00 AM in Miami Division via Zoom Video Conference before Judge Beth Bloom. Signed by Judge Beth Bloom on 1/7/2021. See attached document for full details. (ra)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-23223-BLOOM/Louis
DRAGAN JANICIJEVIC, on his own
behalf and on behalf of all other
similarly situated crew members
working aboard BAHAMAS
PARADISE CRUISE LINE
vessels
Plaintiff,
v.
CLASSICA CRUISE OPERATOR,
LTD. and PARADISE CRUISE LINE
OPERATOR LTD.
Defendants.
________________________________/
ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT, CERTIFYING SETTLEMENT CLASS FOR
SETTLEMENT PURPOSES, DIRECTING THE ISSUANCE OF CLASS NOTICE, AND
SCHEDULING A FINAL APPROVAL HEARING
THIS CAUSE is before the Court upon Plaintiff’s Renewed Motion for Preliminary
Approval of Class Action Settlement and Certification of Settlement Class, ECF No. [37]
(“Motion”). Upon review and consideration of the Motion for Preliminary Approval of Class Action
Settlement of Settling Plaintiff1 Dragan Janicijevic, on behalf of himself and all Settlement Class
Members, and Defendants Classica Cruise Operator Ltd. and Paradise Cruise Line Operator Ltd.
(collectively, “Defendants”), including the Parties’ Amended Stipulation and Settlement Agreement
dated December 17, 2020 and all exhibits thereto, and the Court being fully advised, it is ORDERED
AND ADJUDGED that the Motion, ECF No. [37], is GRANTED as follows:
1
Unless otherwise indicated, capitalized terms used throughout this Order shall have the meanings ascribed
to them in the Settlement Agreement, ECF No. [37-4].
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1.
Settlement. Settling Plaintiff and Defendants have negotiated a proposed settlement
of Settling Plaintiff’s claims in this action, individually and on behalf of a class of seafareremployees, described below as the Settlement Class, to avoid the expense, uncertainties, and burden
of protracted litigation, and to resolve the Released Claims against Defendants and any and all of
their present or former predecessors, successors, subsidiaries, affiliates, divisions, joint ventures, and
entities in which the Cruise Defendants have a controlling interest, and any and all of their officers,
directors, partners, members, principals, insurers, insureds, employees, shareholders, attorneys,
servants, assigns, representatives and agents (specifically limited to those representatives and agents
involved with or related to the alleged conduct in this action).
2.
Review. The Court has carefully reviewed the Settlement Agreement, as well as the
files, records, and proceedings to date in this matter. The terms and conditions in the Settlement
Agreement are incorporated herein as though fully set forth in this Order.
3.
Preliminary Approval. The Settlement Agreement entered into by and among the
Settling Plaintiff and Defendants was negotiated at arm’s length and is approved on a preliminary
basis as fair, reasonable, and adequate and within the range of possible approval. The Court finds
that providing notice to the Settlement Class Members is justified by the showing that the Court
likely will be able to approve the proposed Settlement under Rule 23(e)(2).
4.
Settlement Class Relief. The proposed Claim Settlement Relief to Settlement Class
Members, as identified in Section 4 of the Settlement Agreement, is approved on a preliminary basis
as fair, reasonable, and adequate. The Settlement Class shall consist of:
All seafarer-employees who were physically present on the Grand Celebration for at
least one day anytime between March 18, 2020 until August 20, 2020 and were (1)
terminated such that severance is due under their employment contracts and/or (2)
were employed and performed a designated job at Defendants’ request. “Seafareremployees” shall not include deck and engine employees and independent
contractors, Cruise Defendants’ corporate officers or corporate directors.
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5.
Preliminary Certification of Settlement Class. The Court makes the following
determinations as to certification of the Settlement Class:
(a)
The Court preliminarily certifies the Settlement Class for purposes of
settlement only, under Fed. R. Civ. P. 23(a) and (b)(3).
(b)
The Settlement Class is so numerous that joinder of all members is
impracticable. “[G]enerally, where the potential number of plaintiffs is likely to exceed forty
members, the Rule 23(a) numerosity requirement will be met.” Williams v. Wells Fargo Bank, N.A.,
280 F.R.D. 665, 671-72 (S.D. Fla. 2012); see, e.g., Anderson v. Bank of S., N.A., 118 F.R.D. 136, 145
(M.D. Fla. 1987) (“[T]he size of the class and geographic location of the would-be class members
are relevant to any consideration of practicality.”). As alleged, there are hundreds of Settlement Class
Members. Specifically, there are 276 Class Members who were terminated and are entitled to
severance, and there are 6 Class Members who continued to perform some work for Defendants
during the class period. See ECF No. [37] at 4.
(c)
There are questions of law or fact common to the members of the Settlement
Class. The Settlement Class Members’ claims raise common issues as to whether Defendants’
conduct breached the contracts Defendants had with Settlement Class Members.
(d)
The claims of the Plaintiff are typical of the claims of the other members of
the Settlement Class. Typicality and commonality are related, with commonality referring to “the
group characteristics of the class as a whole” and typicality focusing on the named plaintiff’s claims
in relation to the class. In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672 (S.D. Fla.
2004). Plaintiff’s claims in this case arise from the same alleged course of conduct and are based on
the same legal theories as those brought on behalf of the proposed class. Therefore, the typicality
prong is met.
(e)
Plaintiff is capable of fairly and adequately protecting the interests of the
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members of the Settlement Class, in connection with the Settlement Agreement. Plaintiff has no
interests antagonistic to those of the class and plaintiff’s counsel is qualified, experienced and
generally able to conduct the proposed litigation.
(f)
Common questions of law and fact predominate over questions affecting only
individual members of the Settlement Class. Settlement Class Members’ claims arise out of
Defendants’ alleged uniform conduct and seek remedy of “common legal grievances” as a result of
the conduct in question.
(g)
The Settlement Class is ascertainable. Defendants have identified each of the
Settlement Class Members.
(h)
Resolution of the claims in this Litigation by way of a worldwide settlement is
superior to other available methods for the fair and efficient resolution of the claims of the Settlement
Class. Individual lawsuits by aggrieved class seafarer-employees would involve largely the same
evidence, and waste judicial resources.
(i)
The Court expressly reserves its prerogative to revisit class certification
pending further developments in this litigation.
6.
Designation of Class Representative. Settling Plaintiff Dragan Janicijevic is
designated as the representative of the Settlement Class for the sole purpose of seeking a settlement of
the claims against Defendants in the Litigation.
7.
Designation of Class Counsel. The law firms of Lipcon, Margulies, Alsina &
Winkleman, P.A. and The Moskowitz Law Firm, PLLC are hereby designated as Class Counsel for
the Settlement Class for the sole purpose of the Settlement.
8.
Final Approval Hearing. A hearing regarding final approval of the Settlement
(“Final Approval Hearing”) will be held at 9:00 a.m. on May 12, 2021, via Zoom video
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conference2 before the Honorable Beth Bloom, to determine, among other things: (i) whether the
classwide Settlement of Settling Plaintiff’s claims against Defendants in the Litigation should be
approved as fair, reasonable, and adequate; (ii) whether the Settling Plaintiff’s claims against
Defendants should be dismissed with prejudice pursuant to the terms of the Settlement Agreement;
(iii) whether Settlement Class Members should be bound by the Releases set forth in the Settlement
Agreement; (iv) whether Settlement Class Members should be subject to a permanent injunction
which, among other things, bars Settling Plaintiff and all Settlement Class Members and any person
actually or purportedly acting on their behalf, from filing, commencing, prosecuting, maintaining,
intervening in, participating in (as parties, class members or otherwise), and from organizing or
soliciting the participation of other Settlement Class Members in a separate class for purposes of
pursuing any action (including by seeking to amend a pending complaint to include class allegations,
or seeking class certification in a pending action) in any jurisdiction based on or relating to any of
the Released Claims or the facts and circumstances relating thereto; and (v) whether the application
of Class Counsel for an award of Attorneys’ Fees and Expenses, and proposed Case Contribution
Award to Settling Plaintiff, should be approved.
9.
Class Notice.
(a)
The Court approves the Class Notice as described in the Settlement
Agreement, including the Mail Notice attached as Exhibit 2 to the Settlement Agreement and the
manner of providing Mail Notice to Noticed Class Members described in Section 7 of the Settlement
Agreement. The Court finds that Class Notice as described in the Settlement Agreement is the best
practicable notice under the circumstances and is reasonably calculated, under all the
2
The Meeting ID to access the Zoom videoconference is 161 325 2996 and the password is 195683.
Alternatively, the hyperlink to the meeting is
https://www.zoomgov.com/j/1613252996?pwd=STNhdlhYV0tQVW5OTlJSYWRMMXJHdz09.
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circumstances, to apprise Noticed Class Members of the pendency of this Litigation, the terms of
the Settlement Agreement, and their right to object to the Settlement or to exclude themselves from
the Settlement Class. The Court further finds that Mail Notice, Publication Notice, the Settlement
Website, and the other forms of Class Notice described in the Settlement Agreement are reasonable,
constitute due, adequate, and sufficient notice to all persons entitled to receive notice, and meet the
requirements of Fed. R. Civ. P. 23 and due process.
(b)
The Mail Notice, in the form and content of Exhibit 2 to the Settlement
Agreement, shall be mailed by the Settlement Administrator not more than thirty (30) Days after this
Order, in the manner described in the Settlement Agreement. The Claim Form Instructions and
Claim Form (also part of Exhibit 2), shall be included with the Notice, shall be included with the
Mail Notice.
(c)
No later than the posting of the Mail Notice, the Settlement Administrator
shall establish a Settlement Website that shall contain copies of the Settlement Agreement and
Exhibits, the Preliminary Approval Order, the Mail Notice, Claim Form Instructions, Claim Form,
and such other documents as Class Counsel and Defendants’ Counsel agree upon. The Claim Form
Instructions and Claim Form shall be available to download or print from the Settlement Website. In
addition, the Settlement Website shall provide an email address to allow the submission of Claim
Forms and via email. The Settlement Website shall have a Uniform Resource Locator which identifies
the Settlement Website as www.
.com. The Settlement Website shall remain open and
accessible through the last day for Settlement Class Members to submit a Claim for Settlement
Relief. The Settlement Website shall not include any advertising and shall not bear or include any
logos or trademarks of any of the Defendants.
(d)
The Notice and Claim form shall also provide a toll-free phone number, so
that Settlement Class Members may call and revise answers to any questions they may have.
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(e)
Settlement Class Members will be provided an opportunity to submit Claim
Forms in the form attached to the Agreement as Exhibit 2, requesting Claim Settlement Relief in
accordance with the terms of the Agreement. To be considered valid and timely, a Claim Form must
be completed and signed by the Settlement Class Member and must be (i) if in paper form, mailed
to the address of the Settlement Administrator as specified in the Claim Form and postmarked by
the Claim Deadline, or (ii) if submitted electronically, be completed and submitted by midnight ET
on the Claim Deadline. The Claimant must also attest and affirm all of the information provided in
his or her Claim under the following declaration: “I declare under penalty of perjury under the laws
of the United States of America that the information provided by me on this Claim Form is true and
correct.” Submitted Claim Forms shall be reviewed and handled by the Settlement Administrator in
accordance with the Settlement Agreement.
(f)
Not less than ten (10) Days prior to the Final Approval Hearing, Class
Counsel shall file a declaration or affidavit from the Settlement Administrator with the Court
regarding proof of mailing of the Mail Notice, establishing of the Settlement Website, and
identifying the Noticed Class Members who timely submitted Requests for Exclusion.
(g)
Class Counsel and Defendants’ Counsel as jointly agreed, along with the
Settlement Administrator, are authorized to complete any missing information and to make any nonsubstantive revisions to the Claim Form, Claim Form Instructions, Mail Notice, and Publication
Notice that do not materially reduce the rights of Noticed Class Members prior to disseminating
them as necessary to fulfill the purposes of the Settlement. The font size, layout, and other
presentation elements of the Claim Form, Claim Form Instructions, Mail Notice, and Publication
Notice may be adjusted to accommodate printing, mailing and publication considerations.
(h)
Defendants shall comply with the notice obligations under the Class Action
Fairness Act, 28 U.S.C. § 1715, in connection with the proposed Settlement.
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10.
Settlement Administrator. Given the size of the Class, the Court approves the
Defendants and Class Counsel to jointly administer the settlement and implement the terms of the
Settlement Agreement, and authorizes and directs Defendants and Class Counsel to (a) print and
mail the Mail Notice, Claim Form, and Claim Form Instructions, (b) establish phone number for
Settlement Class Member calls, (c) establish the Settlement Website, (e) receive and process Claim
Forms, and (f) carry out such other responsibilities as are provided for in the Settlement Agreement or
as may be agreed to by Class Counsel and Defendants, all pursuant to and as provided in the
Settlement Agreement.
11.
Exclusion from the Settlement Class. Any Noticed Class Member who wishes to
be excluded from the Settlement Class must send a written Request for Exclusion to the Settlement
Administrator by first-class mail, postage prepaid, to the address provided in the Mail Notice and
Settlement Website. Any such Request for Exclusion must be postmarked by April 12, 2021 (“OptOut Deadline”), which is no less than thirty (30) Days before the Final Approval Hearing.
(a)
To be valid, the Request for Exclusion must clearly indicate the name,
address, telephone number, and passport number of the Person seeking exclusion, the name and case
number of the Action, a clear and unequivocal statement under penalty of perjury that the person
seeking exclusion believes he or she is a member of the settlement class and a statement with enough
factual information to demonstrate that the Person is eligible to be a Settlement Class member, a
statement that the Person wishes to be excluded from the Settlement Class, and the date and signature
of such Person or, in the case of a Person in the Settlement Class who is deceased or incapacitated,
the signature of the legally authorized representative of such Person.
(b)
A Noticed Class Member who desires to opt out must take timely affirmative
written action pursuant to this Order and the Settlement Agreement, even if the Noticed Class Member
desiring to opt out of the Settlement Class (i) files or has filed a separate action against any of the
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Released Persons, or (ii) is, or becomes, a putative class member in any other class action filed
against any of the Defendants.
(c)
Except for those Noticed Class Members who timely and properly file a
Request for Exclusion, all other Noticed Class Members will be deemed to be Settlement Class
Members for all purposes under the Settlement Agreement, and upon the Effective Date, will be
bound by its terms, including, but not limited to, the Releases in the Settlement Agreement and a
Judgment approving the Settlement.
(d)
If the proposed Settlement is finally approved, any Noticed Class Member
who has not submitted a timely, written Request for Exclusion from the Settlement Class shall be
bound by the Judgment and all subsequent proceedings, orders, and judgments in this Litigation and
all provisions of the Settlement Agreement, including, but not limited to, the Releases provided in
the Settlement Agreement, even if he or she has pending, or subsequently initiates, litigation against
Defendants, or any Released Persons relating to any of the Released Claims as defined in the
Settlement Agreement.
12.
Objections and Appearances. Any Noticed Class Member who has not filed a
timely written Request for Exclusion and who complies with the requirements of this Order and
the Settlement Agreement may object to any aspect of the proposed Settlement either on his or her
own or through an attorney hired at his or her expense. Any Settlement Class Member who wishes
to object to the Settlement Agreement must do so in writing and must file with the Clerk of Court
and mail copies to Class Counsel and Defendants’ Counsel, at the addresses listed below, a written
statement of objection in accordance with the requirements set forth below and in the Settlement
Agreement, by April 12, 2021 (the “Objection Deadline”), which is no less than thirty (30) Days
before the Final Approval Hearing.
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For Settling Plaintiff and Settlement Class
Michael A. Winkleman
Lipcon, Margulies, Alsina & Winkleman, P.A.
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Defendants’ Counsel:
Catherine J. MacIvor
Foreman Friedman, PA
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, Florida 33131
(a)
The requirements to assert a valid written objection shall be set forth in the
Mail Notice and on the Settlement Website, and shall include: (i) the case name and number; (ii) the
name, address, and telephone number of the Settlement Class Member objecting and, if represented
by counsel, the name, address, and telephone number of his/her counsel; (iii) the basis for the
objection; and (iv) a statement of whether he/she intends to appear at the Final Approval Hearing,
either with or without counsel.
(b)
Any Settlement Class Member who fails to object to the Settlement in the
manner described in the Mail Notice and consistent with this Order shall be deemed to have waived
any such objection, shall not be permitted to object to any terms or approval of the Settlement at the
Final Approval Hearing, and shall be foreclosed from seeking any review of the Settlement or the
terms of the Settlement Agreement by appeal or other means.
(c)
Subject to approval of the Court, any Settlement Class Member who submits
a timely written objection may appear, in person or by counsel, at the Final Approval Hearing held
by the Court, to show cause why the proposed Settlement Agreement should not be approved as fair,
adequate, and reasonable, provided that the objecting Settlement Class Member: (i) files with the
Clerk of the Court by the Objection Deadline a notice of intention to appear at the Final Approval
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Hearing (“Notice of Intention to Appear”), which must include the case name and number and the
Settlement Class Member’s name, address, telephone number, and signature; and (ii) serves copies
of the Notice of Intention to Appear on all counsel designated in this Order by the Objection
Deadline. The Notice of Intention to Appear must include copies of any papers, exhibits, or other
evidence that the objecting Settlement Class Member will present to the Court in connection with
the Final Approval Hearing. Any attorney who intends to represent an objecting Settlement Class
Member at the Final Approval Hearing must do so at the Settlement Class Member’s expense and
must file a notice of appearance at least thirty (30) Days before the Final Approval Hearing. Any
Settlement Class Member who does not file a Notice of Intention to Appear in accordance with the
deadlines and other requirements of this Order and the Settlement Agreement will not be entitled to
appear at the Final Approval Hearing to raise any objections.
13.
Releases. If the Settlement is finally approved, all Noticed Class Members who have
not filed a timely and proper Request for Exclusion shall release the Released Persons from all
Released Claims, as more fully described in Section 15 of the Settlement Agreement.
14.
Attorneys’ Fees, Expenses and Case Contribution Award. Settling Plaintiff and
Class Counsel agree not to seek an award of Attorneys’ Fees and Expenses in the Litigation in a total
amount that exceeds $262,500.00 (30% of the Gross Claim Fund). Class Counsel and Settling
Plaintiff agree not to seek a Case Contribution Award that exceeds $5,000.00 for Settling Plaintiff
for his work and assistance in this Litigation. Following execution of the Settlement, a panel of the
United States Court of Appeals for the Eleventh Circuit issued an opinion holding that case contribution
awards for class representatives were impermissible. Johnson v. NPAS Solutions, LLC, 975 F.3d 1244
(11th Cir. 2020). In light of this opinion, the Court preliminarily approves the incentive award for purposes
of the issuance of the Class Notice but at final approval will consider whether to deny the request without
prejudice and reserve jurisdiction to reconsider the issue of a case contribution award if NPAS is reversed,
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vacated, or overruled. Defendants agree not to oppose applications for Attorneys’ Fees and Expenses
and Case Contribution Award that do not exceed the foregoing amounts.
15.
Preliminary Injunction. In order to protect the continuing jurisdiction of the
Court and to effectuate this Order, the Agreement and the Settlement, all Noticed Class Members
who do not timely exclude themselves from the Settlement Class, and anyone acting or purporting
to act on their behalf, are hereby preliminarily enjoined from directly or indirectly (a) filing,
commencing, prosecuting, intervening in, maintaining (including claims or actions already filed), or
participating in (as parties, class members, or otherwise) any new or existing action or proceeding
before any court or tribunal in any jurisdiction regarding any Released Claims against any Released
Parties; or (b) organizing any Settlement Class Members into a separate class for purposes of
pursuing as a purported class action any lawsuit (including by seeking to amend a pending
complaint to include class allegations, or seeking class certification in a new or pending action)
based on or relating to the claims and causes of action, or the facts and circumstances relating
thereto, in this Litigation and/or the Released Claims.
16.
Service of Papers. Class Counsel and Defendants’ Counsel and shall serve on each
other and on all other parties who have filed notices of appearance, at or before the Final Approval
Hearing, any further documents in support of the proposed Settlement, including responses to any
papers filed by Settlement Class Members. Class Counsel and Defendants’ Counsel shall promptly
furnish to each other any and all objections or written Requests for Exclusion that may come into
their possession and shall file such objections with the Court on or before the Final Approval
Hearing, unless such documents already appear on the Court’s docket.
17.
Termination of Settlement. This Order shall become null and void, and shall be
without prejudice to the rights of the Parties, all of whom shall be restored to their respective
positions existing as of August 20, 2020, if: (a) the proposed Settlement is not finally approved by
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the Court, or the Judgment is not entered or does not become Final, or the Effective Date does not
occur; or (b) the Settlement Agreement is terminated pursuant to the terms of the Settlement
Agreement for any reason. In such event, and except as provided therein, the proposed Settlement
and Settlement Agreement shall become null and void and be of no further force and effect; the
preliminary certification of the Settlement Class for settlement purposes shall be automatically
vacated; all communications and documents related to the Settlement will be subject to Federal Rule
of Evidence 408 and all other applicable settlement, negotiation and mediation privileges; this Order
or other judgment or order entered by the Court in accordance with the terms of the Settlement
Agreement will be treated as vacated, nunc pro tunc; the Settlement Agreement and the Court’s
Orders, including this Order, shall not be used or referred to for any purpose whatsoever; and the
Parties shall retain, without prejudice, any and all objections, arguments, and defenses with respect
to class certification.
18.
Use of Order Following Termination of Settlement. This Order shall be of no force
and effect if the Settlement does not become Final and shall not be construed or used as an
admission, concession, or declaration by or against Defendants of, or as evidence of, any fault,
wrongdoing, breach, or liability, or by or against Settling Plaintiff or Noticed Class Members that
their claims lack merit or that the relief requested in this Litigation is inappropriate, improper, or
unavailable, or as a waiver by any party of any defenses they may have.
19.
Stay. All proceedings in the Litigation as to the claims of Settling Plaintiff against
Defendants are stayed, including Defendants’ obligation to file an answer or other response to the
Second Amended Complaint, except as necessary to effectuate the terms of the Settlement.
20.
Necessary Steps. The Court authorizes and directs the Parties to take all other
necessary and appropriate steps to implement the Settlement as set forth in the Settlement
Agreement.
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DONE AND ORDERED in Chambers at Miami, Florida, on January 7, 2021.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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