Colozzi et al v. St. Joseph's Hospital Health Center et al

Filing 307

ORDER: It is ordered that the # 306 Motion for approval of class and collective action settlement is GRANTED. The various terms of settlement noted herein. Signed by Judge David N. Hurd on 7/3/2013. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------ROBERT COLOZZI; TAMMY AIKEN; and
CHRISTINE CORREIA; on behalf of themselves
and all other employees similarly situated,

Plaintiffs,
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5:08-CV-1220

ST. JOSEPH'S HOSPITAL HEALTH CENTER;
THEODORE M. PASINSKI; FRANK PANZETTA;
ST. JOSEPH'S HEALTH CENTER PROPERTIES
INC.; ST. JOSEPH'S HOSPITAL HEALTH CENTER
FOUNDATION, INC.; AUXILIARY OF ST. JOSEPH'S
HOSPITAL HEALTH CENTER, INC.; ALUMNI
ASSOCIATION ST. JOSEPH'S COLLEGE OF
NURSING INC.; ST. JOSEPH'S HEALTH CENTER
MEDICAL OFFICE BUILDING, LLC; and
ST. JOSEPH'S HOSPITAL HEALTH CENTER
EMPLOYEES 401K SAVINGS AND RETIREMENT
PLAN AND TRUST,

Defendants.
------------------------------------------APPEARANCES:

OF COUNSEL:

THOMAS & SOLOMON LLP
Attorneys for Plaintiffs
693 East Avenue
Rochester, NY 14607

PATRICK J. SOLOMON, ESQ.
GUY A. TALIA, ESQ.

COSTELLO, COONEY & FEARON, PLLC
Attorneys for Defendants
205 South Salina Street
4th Floor
Syracuse, NY 13202

EDWARD G. MELVIN, ESQ.

DAVID N. HURD
United States District Judge

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT
WHEREAS, Named Plaintiffs Robert Colozzi, Tammy Aiken and Christine
Correia, for themselves and on behalf of the Opt-In Plaintiffs and proposed Settlement
Classes, on the one hand, and St. Joseph's Hospital Health Center, for itself and on behalf of
the other Defendants in this Action, on the other hand, have, contingent on Court approval,
entered into a Settlement Agreement that is intended to resolve this Action, as well as any
other claims that were, or could have been, asserted based upon the allegations in the
Complaint, dated November 13, 2008, which alleged claims under the Fair Labor Standards
Act, 29 U.S.C. § 201, et seq. (the "FLSA"), the New York Labor Law, the Employee
Retirement Income and Security Act, 29 U.S.C. § 1001, et seq., and for estoppel arising out
of Defendants' alleged failure to appropriately compensate current and former hourly
employees for all time worked and alleged failure to keep accurate records;
WHEREAS, in prior Decisions and Orders in this Action, a collective action has
been certified under Section 216(b) of the FLSA, 29 U.S.C. § 216(b) [ECF No. 101], and a
class action certified under Fed. R. Civ. P. 23(a) and (b)(3) [ECF No. 278];
WHEREAS, currently pending is the Parties' Joint Motion for Preliminary
Approval of Settlement, which includes the Settlement Agreement and supporting materials;
WHEREAS, it is preliminarily found that the proposed Settlement resulted from
good faith, informed, and extensive arm's-length negotiations between experienced counsel
with the assistance of an independent and knowledgeable mediator, and is sufficiently fair,
reasonable and adequate to warrant sending notice of the Settlement to the members of the
proposed Settlement Classes ("Class Members");
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IT IS ORDERED AS FOLLOWS:
1. Capitalized terms not otherwise defined in this Order shall have the definitions
assigned to them in the Settlement Agreement.
2. The terms and conditions of the Settlement are preliminarily approved, subject
to further consideration thereof at the Final Approval Hearing, as provided in Paragraph 18,
below. It is found that Notice of the proposed Settlement should be given as provided in the
Settlement Agreement.
3. The following Settlement Classes are preliminarily certified in place of the FLSA
collective action and the Fed. R. Civ. P. 23 class action previously certified, which are
decertified:
i. The "Collective Class" shall include (a) the individuals listed on Tab B of the
Settlement Agreement, who have previously filed consents to join the Action and who have
not been dismissed (the "Opt-In Plaintiffs"), and (b) all individuals who timely return a valid
and effective Claim Form containing a consent to join the Action and who worked for any of
the Defendants as an Hourly Employee at any time from November 13, 2002, through the
date of entry of this Preliminary Approval Order. The Collective Class is preliminarily certified
under FLSA § 216(b), 29 U.S.C. § 216(b).
ii. The "Rule 23 Class" shall include all individuals who worked for any of the
Defendants as an Hourly Employee at any time from November 13, 2002, through the date of
entry of this Preliminary Approval Order. The Rule 23 Class is preliminarily certified under
Fed. R. Civ. P. 23(a), (b)(3), and (e).
4. It is preliminarily found that the Named Plaintiffs, Robert Colozzi, Tammy Aiken
and Christine Correia are adequate class representatives for the Settlement Classes.
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5. It is preliminarily found that Patrick J. Solomon, Esq. and Guy A. Talia, Esq. of
the law firm of Thomas & Solomon, LLP, 693 East Avenue, Rochester, New York, are
adequate to serve as Class Counsel for the Settlement Classes, and are preliminarily
appointed as Class Counsel for the Settlement Classes.
6. Any Class Member who does not elect to be excluded from the Settlement
Classes may, but need not, enter an appearance through his or her own attorney. Class
Members who do not enter an appearance through their own attorneys will be represented by
Class Counsel.
7. The Parties are authorized to retain Rust Consulting, Inc. to serve as the
Administrator of the Settlement in accordance with the terms of the Settlement Agreement.
8. The Notice and Claim Form, attached as Tabs C and D to the Settlement
Agreement, are approved, and shall be distributed in the manner set forth in Section 9(a) of
the Settlement Agreement. It is found that the Notice and Claim Form are accurate,
objective and informative, and are the best practicable means of providing reasonable notice
to Class Members of, among other things: (a) the proposed Settlement and its effect, (b) the
process available to them to request a payment under the Settlement, (c) how they may
object or opt-out, (d) the time and place of the Final Approval Hearing, and (e) the
applications to be made by Class Counsel for (i) attorneys' fees and costs and (ii) service
payments for the Named Plaintiffs and Opt-In Plaintiffs. Distribution of the Notice and Claim
Form by the Administrator in the manner set forth in Section 9(a) of the Settlement
Agreement shall constitute sufficient notice of these matters to Class Members in full
compliance with Federal Rule of Civil Procedure 23, due process, the Constitution of the
United States, the laws of the State of New York, and all other applicable laws.
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9. Prior to the Final Approval Hearing, Class Counsel shall file a sworn statement
of the Administrator, attesting to the Administrator's compliance with the provisions of Section
9(a) of the Settlement Agreement with respect to the distribution of the Notice Packets to
Class Members.
10. The Administrative Costs of the proposed Settlement, including, without
limitation the costs of distributing the Notice Packets to Class Members, shall be paid from
the Total Settlement Amount as provided in the Settlement Agreement.
11. To request a payment under the Settlement, any Class Member who is not
already an Opt-In Plaintiff must timely return to the Administrator a valid and effective Claim
Form. To be valid and effective, a Claim Form must be signed, dated, fully completed,
unaltered, and postmarked or otherwise returned to the Administrator no later than forty-five
(45) days after the initial mailing of the Notice Packets to the Settlement Classes, as
provided in Section 9(b) of the Settlement Agreement.
12. Upon receipt of an unsigned, undated, untimely, incomplete, or altered Claim
Form, the Administrator shall promptly apprise the individual who returned the form of its
deficiency and provide such individual with a substitute form that the individual may use to
cure the deficiency within ten (10) days. A Claim Form that remains unsigned, undated,
untimely, incomplete, or altered eleven (11) days after a deficiency letter has been mailed by
the Administrator shall be void, absent a showing of good cause as determined by the Court.
13. Any Class Member may request exclusion from the Settlement Classes by
submitting a written request for exclusion to the Administrator, as provided in Section 9(b) of
the Settlement Agreement. To be effective, the request for exclusion must: include the
Class Member's name and address; state that the Class Member requests to be excluded
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from the Parties' Settlement in Colozzi, et al. v. St. Joseph's Hospital Health Center, et al.,
Case No. 08-cv-1220; state that the Class Member understands that by excluding himself or
herself from the Settlement, he or she will receive no funds in conjunction with the case; be
signed by the Class Member and dated; and be postmarked or otherwise returned to the
Administrator no later than forty-five (45) days after the initial mailing of the Notice Packets to
the Settlement Classes. If, however, the Class Member timely submits a valid and effective
Claim Form to the Administrator, his or her request for exclusion will be void.
14. Any Class Member who does not timely submit to the Administrator a valid and
effective written request for exclusion from the Settlement Classes shall be bound by the
terms and conditions of the Settlement (if the Settlement is finally approved by the Court),
regardless of whether the Class Member objected to the Settlement as provided in
Paragraph 15, below, or submitted a Claim Form.
15. Any Class Member who does not exclude himself or herself from the
Settlement Classes may object to the terms of the Settlement, to Class Counsel's request for
an award of attorneys' fees and costs, and/or to the Named Plaintiffs' or Opt-In Plaintiffs'
requests for service payments. To object, the Class Member must file with the Court and
serve on counsel for the Parties a written statement that includes the full name and address
of the Class Member, the dates of the Class Member's employment with the Defendant(s),
and a description of the nature of his or her objection, including any legal support and/or
evidence that the objecting Class Member wishes to bring to the Court's attention or
introduce in support of his or her objection. Any objection must be filed with the Court and
served on counsel for the Parties no later than forty-five (45) days after the initial mailing of
the Notice Packets to the Settlement Classes. Any person who does not timely file and serve
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a written objection in accordance with this Order shall be deemed to have waived, and shall
be foreclosed from raising, any objection, and any untimely objection shall be barred.
16. Any objector who files and serves a timely, written objection in accordance with
this Order may also be heard at the Final Approval Hearing either in person or through
counsel retained at the objector's expense. If an objecting Class Member intends to be
heard at the Final Approval Hearing, either personally or through his or her own attorney, the
Class Member's written objection must include a notice of the intention to appear. Any
objector who does not timely file and serve a notice of intention to appear in accordance with
this Order shall not be heard at the Final Approval Hearing, either personally or through his
or her own attorney, except for good cause shown.
17. An attorney who intends to appear at the Final Approval Hearing on behalf of
one or more objecting Class Members must file a Notice of Appearance with the Court and
serve it on counsel for the Parties no later than forty-five (45) days after the initial mailing of
the Notice Packets to the Settlement Classes. The Notice of Appearance must identify each
Class Member for whom the attorney is appearing. Any attorney who does not timely file and
serve a Notice of Appearance in accordance with this Order shall not be heard at the Final
Approval Hearing, except for good cause shown.
18. The Final Approval Hearing will be held on Monday, October 21, 2013 at 10:30
a.m. in Utica, New York to finally determine: (a) whether the Settlement should be fully,
finally, and unconditionally approved as fair, reasonable and adequate, the claims against
Defendants extinguished as specified in the Settlement Agreement, and this Action
dismissed with prejudice; (b) whether the application for attorneys' fees and costs to be filed

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by Class Counsel should be approved; and (c) whether the applications to be filed by Class
Counsel for service payments to the Named Plaintiffs and Opt-In Plaintiffs should approved.
19. The date and time of the Final Approval Hearing shall be set forth in the
Notice, but the Final Approval Hearing shall be subject to adjournment by the Court without
further notice to the Class Members other than that which may be posted by the Court.
20. Any applications by Class Counsel for attorneys' fees and costs and for service
payments for Named Plaintiffs Robert Colozzi, Tammy Aiken and Christine Correia and the
Opt-In Plaintiffs shall be filed with the Court and served on counsel for the Defendants no
later than ten (10) days prior to the Final Approval Hearing. Any such applications shall be
heard at the Final Approval Hearing.
21. If a Final Approval Order is not entered, or the Effective Date of the Settlement
Agreement does not occur, the Settlement Agreement shall be deemed null and void, and
shall not be used for any purpose whatsoever in any further proceeding(s) in the Action or in
any other suit, action, or proceeding; the certification of the Settlement Classes shall be void
and of no effect; this Order shall be vacated; and the Parties will be returned to their
respective positions nunc pro tunc as those positions existed immediately prior to the
execution of the Settlement Agreement.
22. The Class Action Fairness Act ("CAFA") Notice and CAFA Notice Service List
which Defendants have submitted comply with 28 U.S.C. § 1715.
IT IS SO ORDERED.

Dated: July 3, 2013
Utica, New York.
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