Slaght et al v. Rex Performance Products, LLC f/k/a Michigan Foam and Fabrication et al

Filing 26

ORDER Granting 25 Motion for Preliminary Approval of Class Action Settlement. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER SLAGHT, et al.,
Plaintiffs,

Case No. 16-cv-10159
Hon. Matthew F. Leitman

vs.
REX PERFORMANCE PRODUCTS, LLC,
f/k/a MICHIGAN FOAM AND
FABRICATION, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
This Action involves claims relating to alleged unpaid back wages under the
Fair Labor Standards Act (“FLSA”) and a breach of contact claim for failure to pay
compensation for all time worked, as both a collective action and Rule 23 class
action.
The terms of the Settlement are set out in the Settlement Agreement between
(the “Agreement” or “Settlement Agreement”), by the Named Plaintiffs, Christopher
Slaght, Jeffrey Megie Jr. and Steven Smith (“Plaintiffs”), and Defendants Rex
Performance Products, LLC, f/k/a Michigan Foam and Fabrication, Maxwell
Morgan, LLC, Don Tate, Rex Hansen, and John Ballinger (jointly, the
“Defendants”).
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Pursuant to the parties’ Agreement, the Court has preliminarily considered the
settlement to determine, among other things, whether the settlement is sufficient to
warrant the issuance of notice to members of the proposed Settlement Class. As
discussed below, the Court preliminarily approves the Parties’ settlement and sets
the following schedule for the further approval and administration of the settlement:
Event

Anticipated Date

Deadline for CAFA Notice mailing

Within 10 calendar
days after filing the
Motion for
Preliminary Approval.

Defendants shall provide the Administrator with an
Within 5 business
Excel spreadsheet containing the name and last known
days after Preliminary
residential address, e-mail addresses, and phone number Approval.
of all Class Members other than Current Opt-Ins.
Defendants shall transfer the Gross Settlement Amount
to an escrow account

By July 15, 2017.

Administrator will mail the Notice Form to each Current Within 10 business
Opt-In.
days after Preliminary
Approval.
Administrator shall mail to all Class Members a
Within 10 business
package containing the Notice Form, and a postage-paid days after Preliminary
envelope returnable to the Administrator.
Approval.
Deadline for Class Members to submit exclusion
requests, or objections to the Settlement.

Within 45 days after
mailing of notice.

Deadline for Parties to file responses to objections.

Within 10 days after
objection deadline.

Deadline for objectors to file replies in support of
objections.

Within 3 days after
response deadline.

Defendants shall provide Administrator with a report

Within 7 calendar

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showing the amounts payable before the calculation of
pro-rata payments for each Claimant.

days of Preliminary
Approval.

Administrator will send to Class Counsel and
Within 50 calendar
Defendants’ Counsel all timely and completed exclusion days after mailing
requests
Notice Form.
Administrator shall provide Class Counsel and
Defendants’ Counsel with a report identifying the
Settlement Share payments to be paid to each Class
Member

Within 60 calendar
days after mailing
Notice Form

Class Counsel shall file Motion for Final Approval.

At least 7 calendar
days before Final
Approval Hearing.

Final Approval Hearing and Entry of Final Approval
Order.

[TBD] – COURT TO
INSERT DATE
(EARLIEST
POSSIBLE DATE:
NOVEMBER 6, 2017

Effective Date

31 days after Final
Approval.

Deadline for Administrator to deliver attorneys’ fees,
litigation expenses, and incentive award to Class
Counsel.

Within 7 calendar
days after Effective
Date.

Deadline for Administrator to mail individual payments
to Class Members.

Within 14 calendar
days after Effective
Date.

Deadline for cashing checks by the Class Members

Within 60 days after
the Effective Date

Upon reviewing the Settlement Agreement submitted by the parties seeking
preliminary approval of the Settlement, it is hereby ORDERED, ADJUDGED AND
DECREED as follows:

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1.

Class Findings: Solely for the purposes of the Settlement, the Court

finds that the requirements of the Fed. R. Civ. P. 23, the Constitution of the United
States, the Rules of this Court, and any other applicable law have been met as to
the Settlement Class defined in paragraph 2 below, in that:
(a)

The Court preliminarily finds, for purposes of settlement only,
that Plaintiff has standing to represent the Settlement Class
because they have potentially suffered damages and are members
of the Settlement Class;

(b)

The Court preliminarily finds, for purposes of settlement only,
that, as required by Fed. R. Civ. P. 23 the Settlement Class is
ascertainable from records kept by Defendants with respect to
their employees and from other objective criteria, and that the
members of the Settlement Class are so numerous that their
joinder before the Court would be impracticable;

(c)

The Court preliminarily finds, for purposes of settlement only,
that, as required by Fed. R. Civ. P. 23 there are one or more
questions of fact and/or law common to the Settlement Class;

(d)

The Court preliminarily finds, for purposes of settlement only,
that, as required by Fed. R. Civ. P. 23 the claims of the Plaintiff
are typical of the claims of the Settlement Class;

(e)

The Court preliminarily finds, for purposes of settlement only,
that, as required by Fed. R. Civ. P. 23 the Plaintiff will fairly and
adequately protect the interests of the Settlement Class in that:
(i) the interests of the Plaintiff and the nature of her alleged
claims are consistent with those of the members of the Settlement
Class, (ii) there appear to be no conflicts between or among the
Plaintiff and the Settlement Class, and (iii) the Plaintiff and the
members of the Settlement Class are represented by qualified,
reputable counsel who are experienced in preparing and
prosecuting large, complex class actions; and

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(f)

2.

The Court preliminarily finds, for purposes of settlement only,
that, as required by Fed. R. Civ. P. 23 and upon consideration of
the factors enumerated in Fed. R. Civ. P. 23 maintaining the
Plaintiff’s claims as a class action is superior to other available
means of adjudication in promoting the convenient
administration of justice.

Class Certification – The Court, in conducting the settlement approval

process required by Fed. R. Civ. P. 23 certifies, for purposes of settlement only, the
following Settlement Class:
All individuals who worked as Shift Leaders, Technicians,
Laminators, Hi-Lo Drivers, General Labors, and Operators,
during the Settlement Period of November 1, 2013 to May 1,
2016.
Further, the Court appoints the named Plaintiffs as representatives for the Settlement
Class and appoints Kevin J. Stoops of Sommers Schwartz, P.C. and Brian Delekta
of Delekta & Delekta P.C. as Class Counsel for the Plaintiff and the Settlement
Class. This certification of a preliminary Settlement Class pursuant to the terms of
the Settlement Agreement shall not constitute and does not constitute, and shall not
be construed or used as an admission, concession, or declaration by or against the
Defendants, that (except for the purposes of the Settlement) this Action or any other
action is appropriate for class treatment under Fed. R. Civ. P. 23.
3.

Preliminary Findings Regarding Proposed Settlement – The Court

preliminarily finds that (i) the proposed Settlement resulted from extensive arm'slength negotiations, (ii) the Settlement Agreement was executed only after Class
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Counsel had conducted appropriate investigation and fact-finding regarding the
strengths and weaknesses of the Plaintiff’s claims, (iii) Class Counsel, having
substantial experience in FLSA collective actions and wage and hour class action
cases, concluded that the proposed Settlement is fair, reasonable and adequate, and
(iv) the proposed Settlement is sufficiently fair, reasonable and adequate to warrant
sending notice of the proposed Settlement to the Settlement Class. Having
considered the essential terms of the Settlement Agreement under the recommended
standards for preliminary approval of settlements as set forth in relevant
jurisprudence, the Court finds that those whose claims would be settled,
compromised, dismissed and/or released pursuant to the Settlement must be given
notice and an opportunity to be heard regarding final approval of the Settlement and
other relevant matters.
4.

Class Notice: The Plaintiffs and Class Counsel have presented to the

Court proposed Class Notice, attached as Exhibit “A” to the Settlement Agreement.
The Court finds that such forms satisfy the requirements of Fed. R. Civ. P. 23 as
they fairly and adequately: (a) describe the terms and effect of the Settlement
Agreement, the settlement and the plan of allocation, (b) notify the Settlement Class
that Class Counsel will seek attorneys’ fees in the amount of $41,666.67 if the Gross
Settlement Amount; (c) notify the Settlement Class that Class Counsel will seek
litigation expenses in an amount not to exceed $10,000.72 from the Gross
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Settlement Amount, and for an incentive award of $10,000 to be split equally
between the named Plaintiffs, for their services in such capacity; (d) give notice to
the Settlement Class of the time and place of the Fairness Hearing; and (e) describe
how the recipients of the class notice may object to any of the relief requested.
Plaintiffs and Class Counsel have proposed first class mail and e-mail to
communicate the notice to members of the Settlement Class, and the Court finds
that such proposed manner is the best notice practicable under the circumstances.
By no later than the date set forth in the schedule above the Administrator shall
cause the proposed class notice, attached as Exhibit “B” to the Settlement
Agreement, with such non-substantive modifications thereto as may be agreed upon
by the Parties, to be sent by U.S. Mail to each member of the Settlement Class.
5.

Attorneys’ Fees and Costs and Named Plaintiff Incentive Award

The Court preliminarily approves Class Counsel’s request for an award of fees
of $41,666.67 and litigation expenses in an amount not to exceed of $10,000.72 as
fair and reasonable. Further, the Court preliminarily approves the proposed named
Plaintiff’s incentive award as fair and reasonable. Both of these preliminary rulings
are subject to final review and approval upon the Court’s review of Class Counsel’s
Motion for Final Approval and consideration of any timely objection from a member
of the Settlement Class.

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6.

Objections to Settlement: Any member of the Settlement Class who

wishes to object to the fairness, reasonableness or adequacy of the settlement, or to
any term of the Settlement Agreement may file an objection. Written objections
must: (1) set forth the grounds for the objection; (2) include the name of objector
and be signed and dated; and (3) be mailed to the Administrator pursuant to the
instructions in the applicable Notice Form and postmarked within 45 days after the
Preliminary Approval Order. The addresses for filing objections with the Court and
service on counsel are as follows:
Upon Class Counsel at:
SOMMERS SCHWARTZ, P.C.
Kevin J. Stoops
One Towne Square, 17th Floor
Southfield, Michigan 48076
Fax: [phone]
Upon Defense Counsel at:
McDonald Hopkins, PLC
Miriam Rosen
39533 Woodward Ave. Suite 318
Bloomfield Hills, Michigan 48304
Fax: [phone]
Upon Settlement Administrator at:
Simpluris Class Action Settlement Administration
3176 Pullman Street, Suite 123
Costa Mesa, CA 92626

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Any objector or his, her, or its counsel (if any) must effect service of copies of the
objection on counsel listed above and file it with the Court by no later than the date
set forth in the schedule above. If an objector hires an attorney to represent him,
her, or it for the purposes of making such objection pursuant to this paragraph, the
attorney must both effect service of a notice of appearance on counsel listed above
and file it with the Court by no later than the date set forth in the schedule above.
Any member of the Settlement Class or other person who does not timely file and
serve a written objection complying with the terms of this paragraph shall be deemed
to have waived, and shall be foreclosed from raising, any objection to the Settlement
(in this proceeding, on any appeal or in any other proceedings), and any untimely
objection shall be barred absent an Order from this Court.
7.

Final Approval Brief and Fee Petition: Counsel shall file their

Motion for Final Approval and Attorneys’ Fees no later than the date set forth in the
schedule above.
8.

Fairness Hearing: A hearing is scheduled for the date set forth in the

schedule above at the United States District Court for the Eastern District of
Michigan, Theodore Levin U.S. Courthouse, 231 W. Lafayette Blvd., Detroit,
Michigan 48226 (the “Fairness Hearing”) to determine, among other things:
(a)

Whether the Settlement merits final approval as fair, reasonable and
adequate;

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(b)

Whether the Action should be dismissed with prejudice pursuant to the
terms of the Settlement;

(c) Whether the notice method provided by the Parties: includes: (1) a
description of the settlement class; (2) a description of the proposed
settlement; (3) the names of counsel for the class; (4) a fairness hearing
date; (5) a statement of the deadlines for filing objections to the
settlement, and for filing requests of exclusion; (6) the consequences of
such exclusion; (7) the consequences of remaining in the settlement
class; (8) a statement of the attorneys’ fees and litigation expenses
sought; and (9) information on how to obtain further information;
(d)

Whether Class Counsel adequately represented the Settlement Class for
purposes of entering into the Settlement;

(e)

Whether the Court’s preliminary finding that a Class Counsels’ fees
award and litigation expense reimbursement award is reasonable in this
case should receive final approval; and

(f)

Whether the Court’s preliminary finding that the proposed named
Plaintiff’s incentive award is reasonable should receive final approval.

9.

Appearance at Fairness Hearing: If any objector files and serves a

timely and valid written objection in accordance with the requirements above and
the Court sets a hearing, they may appear at the Fairness Hearing either in person or
through qualified counsel retained at their own expense. Objectors or their attorneys
intending to appear at the Fairness Hearing must effect service of a notice of
intention to appear setting forth, among other things, the name, address, and
telephone number of the objector (and, if applicable, the name, address, and
telephone number of the objector's attorney), and information sufficient to show that
the objector is a member of the Settlement Class, on Class Counsel and Defendant’s
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counsel (at the addresses set out above) and file it with the Court Clerk by no later
than the date set forth in the schedule above. Any objector who does not timely file
and serve a notice of intention to appear in accordance with this paragraph shall not
be permitted to appear at the Fairness Hearing, except by Order of this Court.
10.

Class Notice Expenses: The expenses of printing and mailing and

publishing all notices required hereby shall be paid as described in the Settlement
Agreement.
11.

Service of Papers: Defendants’ counsel and Class Counsel shall

promptly furnish each other with copies of any and all objections that come into their
possession, and shall make sure the same are electronically filed with the Court.
12.

Termination of Settlement: This Order shall become null and void,

ab initio, and shall be without prejudice to the rights of the Parties, all of whom shall
be restored to their respective positions prior to the settlement, if the settlement is
terminated in accordance with the terms of the Settlement Agreement or otherwise
fails to become final and binding on the Parties, inclusive of any appeal.
13.

Jurisdiction: Pursuant to the Settlement Agreement entered into by the

parties, the Court hereby retains jurisdiction for purposes of implementing the
settlement, and reserves the power to enter additional orders to effectuate the fair
and orderly administration and consummation of the settlement as may from time to
time be appropriate, and to resolve any and all disputes arising there under.
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14. Bar Order: Pending final determination of whether the settlement
should be approved, the Plaintiff, the Defendants and all members of the Settlement
Class are each hereby barred and enjoined from instigating, instituting, commencing,
maintaining or prosecuting any action in any court or tribunal that asserts any
Released Claims against any released party, as those terms are defined in the
Settlement Agreement.
15. Continuance of Hearing: The Court reserves the right to continue the
Fairness Hearing without further written notice.
This Order does not resolve the last pending claim or close the case.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 15, 2017

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 15, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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