Reese et al v. Dycom Industries Inc et al

Filing 29

ORDER granting 26 Motion for preliminary approval of class notice and scheduling of fairness hearing: the fairness hearing will be held on April 23, 2010, at 9 a.m. in the courtroom of Judge Pechman; signed by Judge Marsha J. Pechman.(SC)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. DYCOM INDUSTRIES, INC., a Florida corporation; PRINCE TELECOM, LLC, a Delaware limited liability company, f/k/a PRINCE TELECOM, INC., Defendants.

THE HONORABLE MARSHA J. PECHMAN

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE JUSTIN REESE, STEVEN COX, MICAH WITTENBORN and SHELBY BALL, on behalf of themselves and all others similarly situated, Plaintiffs, CLASS ACTION NO. C09-0606 MJP ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING NOTE ON MOTION CALENDAR: Friday, January 8, 2010

WHEREAS, the parties have applied for an order preliminarily approving the settlement of this action as stated in the Stipulation of Settlement on file with the Court, which, together with the exhibits attached thereto, sets forth the terms and conditions for a proposed settlement of this class action and for dismissal of the action with prejudice upon the terms and conditions set forth therein; WHEREAS, the Court has read and considered the Stipulation of Settlement, the exhibits attached thereto, and the briefing submitted in support of preliminary approval of the settlement and is fully advised;

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 1 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

NOW, THEREFORE, IT IS HEREBY ORDERED: 1. Unless otherwise provided herein, all capitalized terms in this order shall have

the same meaning as set forth in the Stipulation of Settlement previously filed with this Court. 2. For purposes of settlement, the Court certifies this case as class action under

Rule 23 and a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b). The Court likewise certifies the following Settlement Class for all claims: "All current and former employees of Prince who have worked as Installers in the State of Washington from May 1, 2005 through December 18, 2009. 3. The Court preliminarily approves the Stipulation of Settlement and the terms set

forth therein--including the relief afforded the Settlement Class, the enhancement awards to the Class Representatives, and the payment of attorneys' fees and costs to Class Counsel (including costs for notice and claims administration)--as being fair, reasonable and adequate. The Stipulation of Settlement is the result of arm's-length negotiations between experienced attorneys who are familiar with class action litigation in general and with the legal and factual issues of this case in particular. 4. The Court preliminarily approves The Garden City Group, Inc. as the Claims

Administrator and preliminarily approves payment of the charges of the Claims Administrator pursuant to the terms of the Stipulation of Settlement. 5. For purposes of determining whether the settlement should be finally approved,

a fairness hearing shall be held on April 23, 2010, at 9:00 a.m. in the courtroom of the Honorable Marsha J. Pechman at the U.S. Courthouse, 700 Stewart Street, Seattle, Washington 98101. The Court will hear arguments concerning whether the proposed settlement on the terms and conditions provided for in the Stipulation of Settlement should be granted final approval by the Court as fair, reasonable and adequate. 6. The Court approves, as to form and content, the Notice of Proposed Class

Action Settlement and Claim Form (the "Notice Packet") attached to the Stipulation of
ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 2 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Settlement as Exhibits A and B. In addition, the Court finds that distribution of the Notice Packet substantially in the manner set forth in Paragraph 7 of this order will meet the requirements of due process and applicable law, will provide the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all individuals entitled thereto. 7. The procedure for distributing the Notice Packet shall be as follows: (a) Within fifteen (15) calendar days of the signing of the entry of this

Order, Defendants shall produce a list to the Claims Administrator that contains the names, social security numbers, last known addresses, and dates of employment for every potential member of the Settlement Class. In conformance with Section 14(c) in the Stipulation of Settlement, the Claims Administrator shall then determine the estimated minimum gross awards to be paid to Class members, assuming for purposes of the preliminary determination that every Class member will submit a valid and timely claim. (b) Within fifteen (15) calendar days of receiving the relevant Settlement

Class Member information, the Claims Administrator shall mail a Notice Packet to each potential Settlement Class Member via first class mail. If a Notice Packet is returned as undeliverable with a forwarding address provided by the U.S. Postal Service, the Claims Administrator will promptly resend the Notice Packet to that forwarding address along with a brief letter stating that the recipient of the Notice Packet has an additional fifteen (15) days beyond the original deadline set forth on the Class Notice to submit a Claim Form. If a Notice Packet is returned undeliverable and without a forwarding address, the Claims Administrator will perform one skip trace only and will resend Notice Packets to those Settlement Class Members for whom new addresses are obtained along with a brief letter stating that the recipient of the Notice Packet has an additional fifteen (15) days beyond the original deadline set forth on the Class Notice to submit a Claim Form.

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 3 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

(c)

The Claims Administrator shall also mail a Notice Packet to any

Settlement Class Member who contacts the Claims Administrator and requests a Notice Packet. If the Claims Administrator determines that the Settlement Class Member's original Notice Packet was returned as undeliverable, the Claims Administrator will include with the remailed Notice Packet a brief letter stating that the recipient has an additional fifteen (15) days beyond the original deadline set forth on the Class Notice to submit a Claim Form. (d) Notice under the Stipulation of Settlement is deemed complete upon the

initial mailing of the Settlement Notices as set forth in Paragraph 6(b) of this order. 8. If the Court grants Final Approval, each member of the Settlement Class who

submits a valid and timely Claim Form shall be entitled to receive a proportionate share of the NFV. To be considered timely, a Claim Form must be mailed to the Claims Administrator and postmarked no later than forty-five (45) days from the initial mailing of the Notice Packets or sixty (60) days if the member's Notice Packet was returned as undeliverable. Unless he has excluded himself from the settlement, any Class Member who fails to submit a valid and timely Claim Form will not receive a share of the Class Payment but will be bound nevertheless by the terms of the Stipulation of Settlement. 9. Members of the Settlement Class shall be entitled to opt out of the Class by

submitting a written statement requesting exclusion from the Settlement via regular mail to the Claims Administrator within forty-five (45) days of the initial mailing of the Settlement Notices or 60 days if the member's Notice Packet was returned as undeliverable, as further provided below: (a) The written request for exclusion must contain the full name, current

home or mailing address and last four digits of the Social Security number of the person requesting exclusion, and it must include the statement "I wish to be excluded from the Settlement of the case entitled Reese, et al. v. Dycom Industries, Inc. and Prince Telecom, LLC,

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 4 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Case No. C09-0606 MJP." The written request must be signed by the person requesting exclusion. (b) The written request for exclusion must be mailed to the Claims

Administrator must be postmarked on or before the deadline set forth in the Class Notice, though 15 days shall be added for any employee whose Notice Packet was originally returned as undeliverable. 10. Any Settlement Class Member may appear at the fairness hearing and show

cause, if he or she has any, as to why the terms of the proposed Stipulation of Settlement should or should not be approved as fair, reasonable and adequate, or why a judgment should or should not be entered thereon; provided, however, that no Settlement Class Member or any other person shall be heard or entitled to contest the approval of the terms and conditions of the proposed Stipulation of Settlement or, if approved, the judgment to be entered thereon, unless that person has filed and served a valid and timely written objection. To be valid, the written objection must be signed and must set forth the Settlement Class Member's address, telephone number, and the name of the litigation (Reese et al. v. Dycom Industries, Inc. and Prince Telecom, LLC, Case No. C09-0606 MJP). To be timely, the written objection must be filed with the Court and postmarked to Class Counsel and counsel for Defendants no later than thirty (30) days after the initial mailing of Notice to the Class. In order to be considered by the Court, the written objection must clearly explain why the Settlement Class Member objects to the proposed Settlement and must state whether the Settlement Class Member or someone on his or her behalf intends to appear at the fairness hearing. All timely objections shall be considered and ruled upon by the Court at the fairness hearing. Any Settlement Class Member who does not submit a valid and timely objection in the manner provided above shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Stipulation of Settlement, unless otherwise ordered by the Court.
ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 5 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

11.

All papers in support of final approval of the Stipulation of Settlement shall be

filed and served no later than April 19, 2010. 12. At the fairness hearing, the Court shall determine whether the proposed

Stipulation of Settlement shall be finally approved. 13. The Court reserves the right to adjourn the date of the fairness hearing without

further notice to the Settlement Class Members and retains jurisdiction to consider all further applications arising out of or connected with the proposed Stipulation of Settlement. 14. If final approval does not occur, or if the Stipulation of Settlement is terminated

or canceled pursuant to its terms, the Parties shall be deemed to have reverted to their respective status as of the date and time immediately prior to the execution of the Stipulation of Settlement, and the Stipulation of Settlement shall be deemed null and void, shall be of no force or effect whatsoever, and shall not be admitted, referred to or utilized by any Party for any purpose whatsoever. DONE IN OPEN COURT this _8th__ day of ___January___, 2010.

Marsha J. Pechman United States District Judge

A

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 6 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Presented by: TERRELL MARSHALL & DAUDT PLLC By: s/ Toby J. Marshall, WSBA #32726 Beth E. Terrell, WSBA #26759 Email: [e-mail] Toby J. Marshall, WSBA #32726 Email: [e-mail] Jennifer Rust Murray, WSBA #36983 Email: [e-mail] 3600 Fremont Avenue North Seattle, Washington 98103 Telephone: [phone] THE SCOTT LAW GROUP, PS Darrell W. Scott, WSBA #20241 Email: [e-mail] Matthew J. Zuchetto, WSBA #33404 Email: [e-mail] 926 West Sprague Avenue, Suite 680 Spokane, Washington 99201 Telephone: [phone] Facsimile: 509.455.3906 Attorneys for Plaintiffs and Class Members

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 7 CASE NO. C09-0606 MJP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING ISSUANCE OF CLASS NOTICE, AND SCHEDULING FAIRNESS HEARING - 8 CASE NO. C09-0606 MJP