Grahl v. Circle K Stores

Filing 352

ORDER Granting 348 Joint Motion re Final Approval of Collective Action Settlement. The Clerk of Court is directed to close the file. Signed by Magistrate Judge Cam Ferenbach on 4/8/2019. (Copies have been distributed pursuant to the NEF - MR)

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REMPFER MOTT LUNDY, PLLC
JOSEPH N. MOTT
Nevada Bar No. 12455
SCOTT E. LUNDY
Nevada Bar No. 14235
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
T: [phone]
F: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
CHARLES GRAHL, individually and
on behalf of all others similarly situated

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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Case No. 2:14-cv-00305-VCF

CHARLES GRAHL, individually and on
Behalf of all others similarly situated,

vs.
CIRCLE K STORES, INC., a foreign
corporation: DOES I through V, inclusive;
and ROE corporations I through V,
inclusive,

FINAL ORDER AND JUDGMENT APPROVING
CLASS ACTION SETTLEMENT AND
ATTORNEY’S FEES AND COSTS

Defendants.

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Plaintiff Charles Grahl, together with the Opt-In Plaintiffs (collectively “Plaintiffs”), and

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Defendant Circle K Stores, Inc. (“Defendant”) (Plaintiffs and Defendant are collectively referred

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to as “the Parties”), by and through their attorneys of record, hereby submit this Proposed Final

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Order and Judgment Approving Class Action Settlement and Attorney’s Fees and Costs.

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The Parties’ Joint Motion for Final Approval of Collective Action Settlement came on for
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Rempfer Mott Lundy, PLLC
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
[phone]; fax [phone]
[e-mail]

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hearing before the Honorable Magistrate Judge Cam Ferenbach on April 8, 2019, at 10:00 a.m.

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The Court, having considered the papers and pleadings submitted in support of the Motion,

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HEREBY ORDERS AS FOLLOWS:

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1.

The Court grants the Motion based upon the terms set forth in the Settlement

Agreement and Release (“Settlement) between Plaintiffs and Defendant.
2.

This Court has jurisdiction over the subject matter of this litigation and all matters

relating thereto, including Plaintiffs, all settlement class members, and Defendant.
3.

Pursuant to 29 U.S.C. § 216, the Court certifies as final, for purposes of settlement

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only, a collective action under the Fair Labor Standards Act (“FLSA). The class shall consist of

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Plaintiff Charles Grahl and all Opt-In Plaintiffs who worked as a Store Manager for Circle K Stores,

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Inc., between October 31, 2011, to May 11, 2016; timely filed valid opt-in Forms, as defined in

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the Settlement, before May 11, 2016, and filed valid Claims Forms on or before March 25, 2019

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pursuant to this Court’s Order Granting Preliminary Settlement Approval.

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4.

The Parties Settlement in the amount of Eight Million Two Hundred and Fifty

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Thousand Dollars and Zero Cents ($8,250,000.00) is the product of contested litigation to resolve

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bona fide disputes over the availability and amount of overtime wages.

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5.

The Court finds that the Settlement appears to be fair, adequate, and a reasonable

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resolution of the litigation. The non-exhaustive list of factors courts typically consider in

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evaluating a proposed settlement for fairness include: (1) the strength of plaintiffs’ case; (2) the

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risk, expense, complexity, and likely duration of further litigation; (3) the extent of the discovery

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completed; (4) the stage of the proceedings; and (5) the experience and views of counsel. Trinh

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v. JP Morgan Chase & Co., 2009 WL 532556 at *1 (citing Torrisi v. Tucson Elec. Power Co., 8 F.3d

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1370, 1375 (9th Cir. 1993)). Here, the Court agrees that the application of these factors confirms

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that the Settlement constitutes a fair and reasonable compromise of the Parties’ bona fide

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disputes. The Settlement falls within the range of reasonableness and appears to be

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presumptively valid.

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6.

As ordered by this Court, on January 24, 2019, Simpluris, the Claims Administrator,
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Rempfer Mott Lundy, PLLC
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
[phone]; fax [phone]
[e-mail]

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mailed out Notices of Settlement and Claims Forms to Class Members. On February 22, 2019, the

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Claims Administrator mailed reminder postcards to those Class Members who had not yet

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submitted a Claim Form.

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As of March 25, 2019, the Claim Deadline, the Claims Administrator reported

receipt of 805 Claim Forms, representing a return rate of 76.73%.

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8.

Of the 805 forms received, 802 were valid Claim Forms.

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9.

No Class Members objected to the Settlement.

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10.

The 802 participating Class Members will be paid their portion of the Net

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Settlement Fund, estimated to be $4,415,757.88.
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Consistent with the Parties’ Settlement, the National Park Foundation will receive

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$513,528.46 and Children’s Miracle Network Hospitals will receive $513,528.46 from the Net

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Settlement Fund.

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12.

The court appoints Charles Grahl as Class Representative and approves an award

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of Fifteen Thousand Dollars and Zero Cents ($15,000.00) to Grahl for his services as Class

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Representative in this matter.

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13.

The Court appoints Joseph N. Mott and Scott E. Lundy, of Rempfer Mott Lundy,

PLLC, as Class Counsel.
14.

Plaintiffs’ request for Class Counsels’ fees in the amount of Two Million Seven

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Hundred Twenty-Two Thousand Five Hundred Dollars and Zero Cents ($2,722,500.00) is

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reasonable. This amount represents 33.33% of the Gross Settlement Fund. “The typical range of

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acceptable attorneys’ fees in the Ninth Circuit is 20 percent to 33.3 percent of the total

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settlement value with 25 percent considered a benchmark percentage.” Barbosa v. Cargill Meat

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Sol. Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013) (citing Powers v. Eichen, 229 F.3d 1249, 1256 (9th

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Cir. 2000)). “In assessing whether the percentage requested is fair and reasonable, courts

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generally consider the following factors: (1) the results achieved; (2) the risk of litigation; (3) the

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skill required; (4) the quality of work performed; (5) the contingent nature of the fee and the

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financial burden; and (6) the awards made in similar cases.” Sinanyan v. Luxury Suites Int’l, LLC,

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Rempfer Mott Lundy, PLLC
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
[phone]; fax [phone]
[e-mail]

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2018 U.S. Dist. LEXIS 21403, at * 11 (D. Nev. Feb. 8, 2018) (citing Vizcaino v. Microsoft Corp., 290

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F.3d 1043, 1047-50 (9th Cir. 2002)). Having considered these factors, the Court finds the request

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for Class Counsels’ fees in the amount of $2,722,500.00 to be reasonable.

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15.

The Court finds Plaintiffs’ request for Class Counsels’ costs in the amount of Forty-

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Nine Thousand Seven Hundred Eighty-Five Dollars and Twenty-One Cents ($49,785.21) is fair,

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adequate, and reasonable. This amount consists of the following:

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A.

Three Thousand Seven Hundred Fifty-Four Dollars and Thirty-Eight Cents
costs
($3,754.38) to Tostrud Law Group, P.C., for hard cots;

B.

Nine Thousand, Six Hundred Fifty-Two Dollars and Twenty-Seven Cents

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($9,652.27) to Cogburn Law Offices for hard costs and mediation fees;

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C.

Sixteen Thousand Four Hundred Seventy-Eight Dollars and Fifty-Six Cents

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($16,478.56) to Rempfer Mott Lundy, PLLC, for deposition costs and initial

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class notice administration costs; and
$19,900.00
Nine Hundred
Nineteen Thousand Dollars and Zero Cents ($19,000.00) to Simpluris for

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D.

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claims administration.
16.

The Court directs the Parties and Claims Administrator to effectuate the

settlement terms as set forth in the Settlement.
17.

Having found this amount to be reasonable, the Court directs Defendant to submit

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settlement proceeds in the total amount of $8,250,000.00 to the Claims Administrator on or

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before Tuesday, April 30, 2019.

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18.

The Court directs the Claims Administrator to pay Class Counsel fees and costs in

the amount of $2,722,5 00.00 and $49,785.21, respectively, on or before Friday, May 3, 2019.
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The Court directs the Claims Administrator to issue payment to the Settlement

Class Members on or before Friday, May 24, 2019.
20.

The Court directs the Claims Administrator to distribute all remaining Settlement

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funds equally to counsel for Plaintiffs and counsel for Defendant to be issued to the National Park

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Foundation (in the amount of $513,528.46) and the Children’s Miracle Network Hospitals (in the

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Rempfer Mott Lundy, PLLC
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
[phone]; fax [phone]
[e-mail]

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amount of $513,528.46) in accordance with the Settlement Agreement and this Order.

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This action is dismissed with prejudice.

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The Court retains jurisdiction to enforce the terms of the Settlement.

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Dated: Monday, April 8, 2019.

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REMPFER MOTT LUNDY, PLLC

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

/s/ Joseph N. Mott
Joseph N. Mott
Nevada Bar No. 12455
Scott E. Lundy
Nevada Bar No. 14235
Attorneys for Plaintiff
CHARLES GRAHL

/s/ Dana B. Salmonson
Anthony L. Martin
Nevada Bar No. 8177
Dana B. Salmonson
Nevada Bar No. 11180
Attorneys for Defendant
CIRCLE K STORES, INC.

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ORDER
IT IS SO ORDERED.
The Clerk of Court is directed to close
the file.

CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
April 8, 2019
DATED:

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38080977.1

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Rempfer Mott Lundy, PLLC
10091 Park Run Dr., Ste. #200
Las Vegas, NV 89145-8868
[phone]; fax [phone]
[e-mail]