Tobin v. Beer Capitol Distributing Inc et al

Filing 35

ORDER Granting Joint Motion for Preliminary Approval of Class Action Settlement 33 , Approving Parties' Joint Stipulation to Certify the Collective Class Pursuant to 29 U.S.C. § 216(b) and the Wisconsin Class Pursuant to Fed. R. Civ. P. 23 , Denying as Moot Plaintiffs' Motion to Certify Class 11 , Appointing Class Representative and Class Counsel, Approving Notice Procedure, and Setting a FAIRNESS HEARING for 2/15/13 at 9:30 AM in Courtroom 222. Class counsel shall file a petition for attorney's fees and costs 21 days prior to the hearing. (cc: all counsel) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MATTHEW TOBIN,
on behalf of himself and all others
similarly situated,
Plaintiffs,
v.

Case No. 12-C-0274

BEER CAPITOL DISTRIBUTING INC.,
ALDO MADIGRANO,
RONALD FOWLER,
MICHAEL MERRIMAN,
Defendants.
ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL
OF CLASS ACTION SETTLEMENT (DOC. 33), APPROVING THE PARTIES’ JOINT
STIPULATION TO CERTIFY THE COLLECTIVE CLASS
PURSUANT TO 29 U.S.C. § 216(b) AND THE WISCONSIN CLASS
PURSUANT TO FED. R. CIV. P. 23, DENYING AS MOOT PLAINTIFFS’ MOTION TO
CERTIFY CLASS (DOC. 11), APPOINTING CLASS REPRESENTATIVE AND CLASS
COUNSEL, APPROVING NOTICE PROCEDURE,
AND SETTING FAIRNESS HEARING
Matthew Tobin, on behalf of himself and others similarly situated, and defendants
Beer Capitol Distributing, Inc., Aldo Madigrano, Ronald Fowler, and Michael Merriman,
have reached an agreement to settle plaintiffs’ claims that defendants failed to pay their
merchandisers for hours worked in excess of forty hours per workweek in violation of the
Fair Labor Standards Act (“FLSA”) and Wisconsin’s overtime laws. On October 5, 2012,
the parties filed a joint motion for preliminary approval of the class action settlement. The
parties seek certification of proposed Collective and Wisconsin Classes, a date for a
fairness hearing, and approval of the procedure for notifying class members.
When considering whether to certify a class for the purpose of settlement, the court
must consider if the case meets the requirements of Fed. R. Civ. P. 23 without deciding

whether proceeding as a class action creates intractable management difficulties. Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 620, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997).
Specifically, the court must find that the putative class meets all of the requirements of Rule
23(a) and any one of the requirements of Rule 23(b) of the Federal Rules of Civil
Procedure. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Rule 23(a)
allows individual plaintiffs to represent a class if: (1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and adequately protect the interests
of the class. Fed. R. Civ. P. 23(b)(3). Here, the parties assert that they meet the
requirements of Rule 23(b)(3), which allows a class action to proceed if “the court finds that
the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
As an initial matter, the parties have stipulated to certify the Fair Labor Standards
Act (FLSA) collective action pursuant to 29 U.S.C. § 216(b) (“Collective Class”) and the
Fed. R. Civ. P. 23 class for Wisconsin state law overtime claims (“Wisconsin Class”). The
Collective Class is defined as:
All persons employed by Beer Capitol Distributing, Inc. as a
Merchandiser at any time during the period of March 21, 2009,
to May 1, 2012, who were not paid overtime premium
compensation in any workweek in which he or she worked
more than forty hours during that period.
In addition, the parties have agreed to the following definition of the Wisconsin Class:

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All persons employed by Beer Capitol Distributing, Inc. as a
Merchandiser at any time during the period of March 21, 2010,
to May 1, 2012, who were not paid overtime premium
compensation in which he or she worked more than forty hours
during that period.
Having reviewed the documents on file, the court is satisfied that the parties have
defined the class properly, identified all class members, and taken proper steps to calculate
damages. Matthew Tobin, the named plaintiff, worked as a Merchandiser during the
relevant period and was subject to the pay practices identified in the complaint. With 58
members of the Wisconsin Class, joinder is impracticable. Moreover, the theories that
Tobin has set forth in the complaint apply equally to him and the other class members.
Specifically, the following factual and legal issues are common to the class:
1.

Whether Beer Capitol paid the Wisconsin Class overtime premium
compensation pursuant to Wis. Stat. § 103.03 and Wis. Admin. Code
§ DWD 274.03 (DWD).

2.

Whether the members of the Wisconsin Class qualify for the executive
exemption, raised by Beer Capitol as an affirmative defense, as provided in
Wis. Admin. Code § DWD 274.04(1)(a).

3.

Whether the members of the Wisconsin Class qualify for the administrative
exemption, raised by Beer Capitol as an affirmative defense, as provided in
Wis. Admin. Code § DWD 274.04(1)(b).

4.

Whether the members of the Wisconsin Class qualify for the outside sales
exemption, raised by Beer Capitol as an affirmative defense, as provided in
Wis. Admin. Code § DWD 274.04(2).

5.

Whether Beer Capitol failed to pay appropriate wages to the members of the
Wisconsin Class within the meaning of Wis. Stat. § 109.03.

6.

The amount of work performed by the members of the Wisconsin Class.

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Thus, for the purposes of Rule 23(b)(3), the court is satisfied that the questions common
to the entire class predominate over individual claims and that a class action is superior to
other methods for a fair and efficient adjudication.
Next, the adequacy-of-representation requirement “tend[s] to merge” with the
commonality and typicality criteria of Rule 23(a), which “serve as guideposts for determining
whether ... maintenance of a class action is economical and whether the named plaintiff's
claim and the class claims are so interrelated that the interests of the class members will
be fairly and adequately protected in their absence.” Amchem Products, Inc., 521 U.S. 591,
626 at n. 20 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157,
n. 13, 102 S. Ct. 2364, 2370, n. 13, 72 L. Ed. 2d 740 (1982)). Tobin is typical, because he
like other class members, worked as merchandiser during the class period and was paid
a salary rather than overtime compensation. Moreover, he does not appear to have a
conflicting interest.

In addition, proposed class counsel, the Cross Law Firm, has

experience in similar disputes in this district and the Western District of Wisconsin.
While it is true that collective actions are not subject to Rule 23 or mentioned in any
other federal rule of civil procedure, the Seventh Circuit Court of Appeals explained recently
that collective actions are certified and decertified just like class actions, unaffected by the
absence of a governing rule of procedure. Espenscheid v. DirectSat USA, LLC, 688 F.3d
872, 877 (7th Cir. 2012). Here, where the factual and employment settings of the class
members are similar and the various defenses appear to be the same, proceeding as a
collective action appears to be the prudent course.
Once the class is certified, the class claims may not be settled without the approval
of the court, Fed. R. Civ. P. 23(e), and the court decides whether to approve a settlement
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“only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ.
P. 23(e)(2).
Preliminarily, the court has considered the settlement offer, which provides for two
settlement funds based on the differences between the FLSA collective action and the
Wisconsin state law class action. The Third Year Collective Fund requires a class member
to opt in by returning a consent form to receive a pro rata share. Without opting in, the
class member will receive a pro rata share of the two year Wisconsin Class Fund. The time
periods were determined by the relevant statutes of limitation. Further, the amounts of the
funds were determined by the respective percentages of the settlement fund worked by the
class members in the two time periods based on the time records produced by defendants.
Notably, the defendants produced the time records for all 58 merchandisers for the period
from March 21, 2009, through May 1, 2012. These records indicate the start and stop times
each day with the time taken for lunch. At this stage, the formula used to determine each
class member’s assigned percentage and the claims procedure appears fair and
reasonable.
As a final matter, the court approves the form and transmittal of the notice of class
action as discussed in Exhibit B to the settlement agreement. The proposed notice
complies with Rule 23(3)(1) inasmuch as it provides direct notice in a reasonable manner
to all class members who would be bound by the proposal. It plainly and adequately
describes the nature of the action and the claims, the options in the settlement, defines the
two classes, explains that class members may hire their own attorney and the binding
nature of the class judgment. In addition, it explains how to request to be excluded from the
settlement, how to comment or how to object. Now, therefore,
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IT IS ORDERED that preliminary approval of the settlement agreement is granted.
(Doc. 24.)
IT IS FURTHER ORDERED that the Wisconsin Class is certified for the purposes
of Fed. R. Civ. P. 23. The class is defined as follows:
All persons employed by Beer Capitol Distributing, Inc. In
Wisconsin as a Merchandiser at any time during the period of
March 21, 2010, to May 1, 2012, who were not paid overtime
premium compensation in any workweek in which he or she
worked more than forty hours during that period.
IT IS FURTHER ORDERED that the Collective Class is certified as an opt-in
collective action pursuant to 29 U.S.C. § 216(b). The class is defined as follows:
All persons employed by Beer Capitol Distributing, Inc. in
Wisconsin as Merchandiser at any time during the period of
March 21, 2010, to May 1, 2012, who were not paid overtime
premium compensation in any workweek in which he or she
worked more than forty hours during that period.
IT IS FURTHER ORDERED that Matthew Tobin shall serve as class representative
for the Wisconsin Class and the Collective Class.
IT IS FURTHER ORDERED that Cross Law Firm, S.C., by Attorney Larry A.
Johnson, is appointed class counsel for purpose of the certified Rule 23 Wisconsin Class
and the Collective Class.
IT IS FURTHER ORDERED that the court approves the form and the sending of the
notice of class action attached as Exhibit B to the Settlement Agreement.
IT IS FURTHER ORDERED that the court will conduct a fairness hearing on
February 15, 2013, at 9:30 a.m., to decide whether to grant final approval of the settlement
and class counsel’s petition for attorneys’ fees and costs. The fairness hearing will take
place in Room 222 of the United States District Court for the Eastern District of Wisconsin,
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517 East Wisconsin Avenue, Milwaukee, WI 53202. Class counsel shall file with the court
a petition for attorney’s fees and costs twenty one days prior to the fairness hearing.
IT IS FURTHER ORDERED that plaintiffs’ motion to certify class is denied as moot.
(Doc. 11.)
Dated at Milwaukee, Wisconsin, this 19th day of October, 2012.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE

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