Cavallaro et al v. UMass Memorial Health Care, Inc. et al

Filing 152

Judge F. Dennis Saylor, IV: ORDER entered. ORDER AUTHORIZING NOTICE OF THE PROPOSED SETTLEMENT AND NOTICE OF FINAL FAIRNESS HEARING. Final Fairness Hearing set for October 3, 2013, at 2:00 PM in Courtroom 2 before Judge F. Dennis Saylor IV.(Cicolini, Pietro)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PATRICIA CAVALLARO, on behalf of
herself and all other employees similarly
situated,

PLAINTIFF,

)
)
)
)

)

)
v.

\

>

UMASS MEMORIAL MEDICAL

I

CENTER, INC.,

}

Civil Action

DEFENDANT.

Nq 4:09-cv-40152-FDS

|
)

'ORDER AUTHORIZING NOTICE OF THE PROPOSED
SETTLEMENT AND NOTICE OF FINAL FAIRNESS HEARING

This matter comes before the Court on the Plaintiffs Unopposed Motion for

Preliminary Review and Order Authorizing Notice of the Proposed Settlement and Notice
of Final Fairness Hearing And Incorporated Memorandum Of Law ("Plaintiffs
Motion").

Plaintiff Patricia Cavallaro ("Plaintiff) asserts claims against UMass Memorial
Medical Center, Inc. ("Defendant" or "UMMMC") on behalf of current and former non-

exempt, clinical1 employees of Defendant in the above-styled action ("Litigation"). For
purposes of settlement only, Plaintiff seeks the certification of the following opt-out
settlement class pursuant to Fed. R. Civ. P. 23: the "RULE 23 SETTLEMENT CLASS,"
which refers to any and all non-exempt, clinical employees of Defendant at any time
during the three years immediately preceding the date of this Order Authorizing Notice of

1 "Clinical"positions shall refer to those positions listed in Exhibit 6 to the Settlement Agreement, with the
Settlement Agreement having been filed as Exhibit A to the Motion for Preliminary Review.

the Proposed Settlement and Notice of Final Fairness Hearing.

For purposes of

settlement only, Plaintiff also seeks conditional certification of an opt-in settlement class

pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA"):

the "FLSA

SETTLEMENT CLASS," which refers to any and all non-exempt, clinical employees of

Defendant at any time during the three years immediately preceding the date of this Order

Authorizing Notice ofthe Proposed Settlement and Notice of Final Fairness Hearing.

Plaintiff has requested that the Court enter an Order:

(i) granting Plaintiffs

request to amend the Third Amended Complaint by filing a Fourth Amended Complaint
in the Litigation and granting Defendant fourteen (14) calendar days from the entry of
this Order to file an Answer to the proposed Fourth Amended Complaint; (ii) asserting

jurisdiction over the claims alleged, the Parties in the Litigation, and the implementation
and administration of the Settlement Agreement; (iii) authorizing notice to the Settlement

Classes of the proposed settlement set forth in the Settlement Agreement (or as the same

may be modified by subsequent mutual agreement of the Parties) as adequate, fair, and
reasonable and in the best interests of Plaintiff, members of the Settlement Classes

including Opt-in Plaintiffs, and Non-UMMMC Opt-in Plaintiffs; (iv) preliminarily
certifying pursuant to Fed. R. Civ. P. 23 and the FLSA the Settlement Classes for

purposes of settlement only; (v) appointing Patricia Cavallaro as "Plaintiff," whotogether
with Class Counsel, shall be authorized to act on behalf of Plaintiff, Opt-In Plaintiffs,
members of the Settlement Classes, and Non-UMMMC Opt-in Plaintiffs with respect to

the Litigation and the Settlement Agreement; (vi) appointing Class Counsel as counsel
for the Settlement Classes pursuant to Fed. R. Civ. Pro. 23(g) and authorizing notice that

Class Counsel requests 33.33% in attorneys' fees, as well as requests recovery of Class

Counsel's expenses and costs; (vii) appointing Class Action Administration, Inc.

("CAA") as the Claims Administrator; (viii) approving the form and content, and
authorizing distribution of the Settlement Notice (Exhibit 7 to the Settlement Agreement)
and Claim Forms (Exhibits 2 to 5 to the Settlement Agreement) and setting a forty-five

(45) calendar day deadline for the execution and return of Claim Forms, filing of

objections, or opting-out; (ix) requiring Current Employees as of the Court's entry of this
Order who wish to participate in the settlement to complete the Current Employee
Certification and comply with the requirements therein; and (x) setting the hearing date
for the Final Fairness Hearing.

Having reviewed and considered the Settlement Agreement and accompanying
exhibits, Plaintiffs Motion, all declarations filed in support of Plaintiffs Motion, and

having heard and considered the argument of counsel, the Court makes the findings and

grants the relief set forth below, authorizing notice of the settlement contained in the
Settlement Agreement upon the terms and conditions set forth in this Order. Terms and

phrases in this Order shall have the same meaning as defined in the Settlement
Agreement.

NOW, THEREFORE, IT IS HEREBY ORDERED:
ORDER DEEMING THE AMENDED COMPLAINT FILED

1.

The Court hereby grants Plaintiffs request to file the proposed Fourth

Amended Complaint attached as ExhibitE to Plaintiffs Motion, and deems it filed. The
Court hereby grants Defendant fourteen (14) calendars days from the entry of this Order
to file its Answer to Plaintiffs Fourth Amended Complaint.

ORDER AUTHORIZING NOTICE OF THE SETTLEMENT AGREEMENT

2.

The Court has jurisdiction over the claims alleged in the Litigation, the

Parties in the Litigation, and the implementation and administration of the Parties'
Settlement Agreement.
3.

The Court authorizes notice of the settlement set forth in the Settlement

Agreement as it appears fair, reasonable, and adequate within the meaning of Fed. R. Civ.
P. 23 and the Class Action Fairness Act of 2005 ("CAFA"), subject to final consideration
at the Final Fairness Hearing provided for below.

4.

For the purposes of settlement only, the Court appoints Patrick J. Solomon

and Jessica Witenko of Thomas & Solomon LLP, and Jody L. Newman of Collora LLP

as "Class Counsel" pursuant to Fed. R. Civ. P. 23(g). Class Counsel have extensive

knowledge in litigating wage and hour collective and class actions such as this, are
familiar with the complex factual and legal questions at issue in this Litigation, and will

adequately represent the Plaintiff and members of the Settlement Classes in a
comprehensive and vigorous manner.

5.

For the purposes of settlement only, the Court appoints Patricia Cavallaro

as "Plaintiff," as the term is defined in the Settlement Agreement. Plaintiff, together with

Class Counsel, is hereby authorized to act on behalf of Plaintiff, Opt-In Plaintiffs,
members of the Settlement Classes, and Non-UMMMC Opt-in Plaintiffs with respect to
the Litigation and this Settlement Agreement.
PROVISIONALLY CERTIFYING SETTLEMENT CLASSES FOR
SETTLEMENT PURPOSES ONLY

6.

On the basis of the findings set forth below, the Court hereby certifies a

plaintiffclass pursuant to Fed. R. Civ. P. 23 for settlement purposes only in accordance

with the terms of the Settlement Agreement (the "Rule 23 Settlement Class"). The "Rule
23 Settlement Class" is defined as:

any and all non-exempt, clinical employees of

Defendant at any time during the three years immediately preceding the date of this Order
Authorizing Notice ofthe Proposed Settlement and Notice of Final Fairness Hearing.
7.

On the basis of the findings set forth below, the Court hereby certifies a

plaintiff class pursuant to Section 216(b) of the FLSA for settlement purposes only in
accordance with the terms of the Settlement Agreement (the "FLSA Settlement Class").
The "FLSA Settlement Class" is defined as: any and all non-exempt, clinical employees

of Defendant at any time during the three years immediately preceding the date of this
Order Authorizing Notice of the Proposed Settlement and Notice of Final Fairness
Hearing.

8.

As provided for in the Settlement Agreement, if this Court does not grant

final approval of the proposed settlement set forth in the Settlement Agreement, or if the
settlement is terminated or cancelled pursuant to the terms of the Settlement Agreement,

then the Settlement Agreement, and the certification of the Settlement Classes provided
for herein, will be vacated and the Litigation shall proceed as though the Settlement

Classes had never been certified, without prejudice to any party's position on the issue of
class or collective action certification or any other issue, and the Fourth Amended
Complaint shall be withdrawn.
9.

The Court finds that for settlement purposes only the Settlement Classes

satisfy the requirements of Fed. R. Civ. Pro. 23(a) in that joinder is impractical due to
numerosity; the class members have commonality in that there are questions of law and
fact common to them in this Litigation; the claims of the named Plaintiff are typical of

the claims of the proposed class members because their claims arise from the same
alleged factual events and legal theories; and the named Plaintiffs and Class Counsel will
fairly and adequately represent and protect the interests of the proposed class members.
There are no conflicts of interest between members of the Settlement Classes.

The

Settlement Classes also satisfy the requirements of Fed. R. Civ. P. 23(b)(3) because

common questions of law affecting proposed class members predominate over questions

that may affect individual members, and class action is superior to any other available
method for the fair and efficient settlement of this controversy. Certification of the

Settlement Class is superior to other methods for the fair and efficient adjudication of this
controversy.

10.

The Court orders the following claims are certified for settlement purposes

only: the FLSA, 29 U.S.C. § 201 et seq., and state common law claims for breach of
contract.

APPROVING FORM, CONTENT, AND AUTHORIZING DISTRIBUTION OF
SETTLEMENT NOTICE AND CLAIM FORMS

11.

The Court approves as to form and content the Settlement Notice (Exhibit

7 to the Settlement Agreement) and Claim Forms (Exhibits 2 to 5 to the Settlement

Agreement), and authorizes distribution of the same. The proposed Settlement Notice
clearly and accurately describes the nature of the Litigation, the definition of the classes
certified for settlement purposes herein, and the Plaintiffs claims and Defendant's
defenses. The Settlement Notice apprises members of the Settlement Classes of their
ability to opt-in or opt-out of the SettlementAgreementor object to it.

12.

Any member of the Rule 23 Settlement Class wishing to opt-out shall sign

and timely submit a written notice of such intent to a designated Post Office box

established by the Claims Administrator, as set forth in the Settlement Notice. The
written notice must clearly manifest an intent to be excluded from the Settlement Class

and comply with the requirements set forth in the Settlement Notice. To be effective, this
written request for exclusion must be received on or before 45 calendar days after the
Settlement Notice and Claim Forms are post-marked and mailed to the members of the
Settlement Class.

13.

All members of the Rule 23 Settlement Class who do not request to be

excluded shall be bound by all terms and conditions of the Settlement Agreement, the

Final Approval Order, the Final Judgment, and the releases set forth therein, and will be
deemed to have waived all objections and opposition to the fairness, reasonableness, and

adequacy of the settlement. All members of the Rule 23 Settlement Class who submit
valid and timely notices of their intent to be excluded from the Rule 23 Settlement Class
shall not receive any settlement payment nor be bound by the terms of the Settlement
Agreement.

14.

Members of the Settlement Classes who wish to participate in the

settlement shall send to the Claims Administrator a Claim Form so that it is received by

the Claims Administrator on or before 45 calendar days after the Settlement Notice and

Claim Forms are post-marked to members of the Settlement Classes. The Claim Form
must be completed in accordance with the instructions on the Claim Form and comply
with the requirements set forth in the Settlement Notice. All members of the Settlement
Classes who fail to comply with these requirements shall be forever barred from
receiving any settlement payment pursuant to the settlement set forth in the Settlement

Agreement but will in all other respects be subject to and bound by the provisions of the
Settlement Agreement, the releases contained therein, and the Final Judgment.
15.

Each member of the Settlement Classes wishing to object to the settlement

shall submit a timely written notice of his or her objection, which shall set forth the
individual's full name, address, date of birth, and dates of employment with Defendant;

reasons for his or her objection, legal support for each objection, and any documentation

supporting each objection, the name and title of the Litigation, and further provide notice
as to whether the objector intends to appear at the Final Fairness Hearing, and an entry of

appearance. To be timely, written notice of an objection in the appropriate form must be
filed with the Clerk of the United States District Court for the District of Massachusetts,

John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210 on or
before 45 calendar days after the mailing date of the Settlement Notice and Claim Forms
and served concurrently therewith upon Class Counsel (Patrick J. Solomon, Thomas &
Solomon LLP, 693 East Avenue, Rochester, New York

14607) and counsel for

Defendant (Lisa A. Schreter, Littler Mendelson, P.C., 3344 Peachtree Road, N.E., Suite
1500 Atlanta, Georgia 30326).

16.

A member of the Settlement Classes may appear at the Final Fairness

Hearing and show cause, if any, why the proposed Settlement Agreement should or
should not be entered thereon; provided, however, that no member of the Settlement

Classes may appear at the Final Fairness Hearing unless he or she no later than forty-five

(45) calendar days after the mailing of the Settlement Notice and Claim Forms: (1) files
an objection, an entry of appearance, and Notice of Intention to Appear with the Clerk of
Courts of the United States District Court for the District of Massachusetts; and (2)

serves the same upon Class Counsel and counsel for Defendant, as more fully stated
above. If the objector is represented by counsel, the name and address of counsel must
also be stated in the Entry of Appearance.

17.

The Court approves and appoints CAA as the Claims Administrator, who

shall administer the distribution of the Settlement Notice and Claims Forms, as set forth

in the Settlement Agreement in Section XII.

18.

The Court authorizes the distribution of the proposed Settlement Notice

and Claim Forms by first-class U.S. mail to members of the Settlement Classes by
adopting the following schedule: [please match the
Deadline

Event

Approximately 65days after entry of Order
Authorizing Notice Of The Proposed

Mailing of Settlement Notice and Claim
Forms.

Settlement And Notice Of Final Fairness

Hearing:
Fifteen (15) calendar days before the Bar
Date (which is 30 calendar days after
mailing date of Settlement Notice and
Claim Forms):
45 calendar days after mailing date of
Settlement Notice and Claim Forms:

Mailing of a reminder postcard to each
member of the Settlement Classes who has

not yet submitted a Claim Form.

Last day for members of the Settlement
Classes to "opt out" or to submit a written
objection to the settlement (Bar Date).
Claims Administrator must receive opt-out
on or before 45 calendar days after mailing
date of Settlement Notice and Claim

Forms. Objections, entries of appearance,
and notices of intention to appear must be
filed with the Court and served on the
Parties' counsel on or before 45 calendar

days after mailing date of Settlement
Notice and Claim Forms.

45 calendar days after mailing date of
Settlement Notice and Claim Forms:

Last day for members of the Settlement
Classes to qualify as an "Authorized
Claimant" by filing Claim Form (Bar

Date). Claims Administrator must receive
Claim Form on or before 45 calendar days
after mailing date of Settlement Notice and
Claim Forms.

Approximately 110 calendar days after date Last day for filing documents in support of
of mailing of Settlement Notice and Claim Final settlement approval.
Forms:

Approximately 135 calendar days after the

Final Fairness Hearing.

Court enters its Order Authorizing Notice

OfThe Proposed Settlement And Notice
Of Final Fairness Hearing:

Qualified members of the Settlement
Within 20 business days after the Final
Effective Date (as defined in the Settlement Classes and non-UMMMC Opt-in
Plaintiffs (collectively "Authorized
Agreement):
Claimants") shall be mailed a Final
Settlement Payments (as set forth more
fully in the Settlement Agreement) and all
members of the Final Settlement Classes

will be mailed a copy of the Final Approval
Order.

Defendants will deliver monies to the
Within 10 calendar days after the Final
Effective Date (as defined in the Settlement Claims Administrator for the Claims
Administrator to subsequently make
Agreement):
payment of Class Counsel's Fees and Costs

(as defined the Settlement Agreement).
The Claims Administrator will effectuate

Within 20 business days after the Final
Effective Date (as defined in the Settlement payment of Service Payment to Plaintiff, if
any (as set forth more fully in the
Agreement):
Settlement Agreement).

90 calendar days from the date on which
the Final Settlement Payments are mailed:

Last day for qualified members of the
Settlement Classes who were mailed a

Final Settlement Payment to negotiate
settlement check (as set forth more fully in
the Settlement Agreement).

19.

The Court further finds that the distribution of the Settlement Notice and

Claim Forms set forth herein is the best notice practicable under the circumstances, and
constitutes due and sufficient notice of this Order to all persons entitled thereto and is in

full compliance with the requirements of Fed. R. Civ. P. 23, applicable law, and due
process.

10

ORDER REQUIRING CURRENT EMPLOYEES WHO WISH TO
PARTICIPATE IN THE PROPOSED SETTLEMENT TO COMPLETE THE
CURRENT EMPLOYEE CERTIFICATION AND COMPLY WITH THE
REQUIREMENTS THEREIN

20.

The court hereby finds that Current Employees as of the Court's entry of

this Order who wish to participate in the proposed settlement must complete the Current

Employee Certification contained in the appropriate Claim Form and comply with the
requirements therein.
SETTING DATE OF FINAL FAIRNESS HEARING

21.

A final fairness hearing shall be held before this Court on -3 ""day of

6ofib£r

2013 at 2:^0 Arffl. in Courtroom 1 of the John Joseph Moakley

United States Courthouse, 1 Courthouse Way, Boston, Massachusetts, 00210 to

determine (a) whether the settlement set forth in the Settlement Agreement is fair,
reasonable, adequate, and in the best interests of the Settlement Classes; (b) whether a

Final Judgment as provided in the Settlement Agreement should be entered granting final
approval of the settlement; (c) whether, and in what amount, attorneys' fees and expenses
should be awarded to Class Counsel; and (d) whether, and in what amount, a Service

Payment should be made to the named Plaintiff.
22.

The Court may adjourn and/or continue the Final Fairness Hearing without

further notice to members of the Settlement Classes.

it

DONE AND ORDERED, this \&_ day ofgjffi 2013.

THE HONORABLE F. DENNIS SAYLOR IV
UNITED STATES DISTRICT JUDGE

11