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finding that "whether [the class members] were inappropriately classified as independent contractors and, as a result, not paid in accordance with the California Labor Code" is an issue that satisfies the commonality requirement
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CASE NO. 11-CV-0548 BEN (WMc)
10-29-2012
LAUREN CAMPBELL, Individually, and on Behalf of Other Members of the Public Similarly Situated, Plaintiff, v. FIRST INVESTORS CORPORATION, FIRST INVESTORS LIFE INSURANCE COMPANY, and DOES 1-10, INCLUSIVE, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
[Docket No. 38]
Plaintiff Lauren Campbell was a licensed registered representative and licensed insurance agent affiliated with the San Diego office of Defendants First Investors Corporation and First Investors Life Insurance Company (collectively, "First Investors"). In addition to San Diego, First Investors operates offices in Pasadena, Walnut Creek, and San Jose, California. Plaintiff alleges that First Investors misclassified its California registered representatives as independent contractors, and therefore failed to comply with the California Labor Code.
On February 18, 2011, Plaintiff initiated this putative class action in San Diego County Superior Court. The Complaint asserts nine causes of action: (1) failure to pay overtime wages; (2) failure to pay minimum wages; (3) failure to pay wages due; (4) failure to provide itemized wage statements; (5) failure to provide meal periods; (6) failure to provide rest periods; (7) failure to reimburse employee expenses; (8) unlawful deductions from wages; and (9) unfair competition. On March 18, 2011, Defendants removed the action to this Court.
Presently before the Court is Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement.
DISCUSSION
Once parties reach a settlement agreement prior to class certification, the court must "peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). The court must (1) assess whether a class exists, and (2) determine whether the proposed settlement is "fundamentally fair, adequate, and reasonable." Id. (internal quotation marks omitted). Here, the Court will first examine the propriety of class certification, then the fairness of the settlement agreement, followed by the questions of class counsel and class notice.
I. CLASS CERTIFICATION
A plaintiff seeking a Rule 23(b)(3) class certification must; (1) satisfy the prerequisites of Rule 23(a); and (2) satisfy the requirements of Rule 23(b)(3). Here, the parties seek provisional certification for settlement purposes only of the following class; individuals who were affiliated with Defendants (or any one Defendant) as a licensed registered representative or licensed insurance agent at any of Defendants' four California offices during the "Covered Period" (from February 18,2007, through the date of this Order preliminary approving the settlement). (Dente Decl., Exh. A [Settl.] ¶ 5.)
A. Rule 23(a) Requirements
Rule 23(a) establishes four prerequisites for class action litigation: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. FED, R. Civ. P. 23(a); see also Staton, 327 F.3d at 953. The Court will examine each prerequisite in turn.
1. Numerosity
The numerosity prerequisite is met if "the class is so numerous that joinder of all members is impracticable." FED. R. Civ. P. 23(a)(1). In the present case, there are approximately 300 class members covered by the Settlement. (Dente Decl, Exh. A [Settl.] ¶ 5.) They are too numerous to be joined as plaintiffs in this action. Accordingly, the numerosity requirement is met
2. Commonality
The commonality requirement is met if "there are questions of law or fact common to the class." FED.R.CIV.P. 23(a)(2). The commonality requirement is construed "permissively" Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Not all questions of law and fact need to be common, but rather "[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." Id. In addition, commonality requires that class members "have suffered the same injury." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
Here, the class members' claims all share the same issue: whether they were inappropriately classified as independent contractors and, as a result, not paid in accordance with the California Labor Code. Accordingly, the commonality requirement is met.
3. Typicality
Typicality requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). The Ninth Circuit interprets typicality permissively. Hanlon, 150 F.3d at 1020. The representative claims are "typical" if they are "reasonably co-extensive with those of absent class members," though they "need not be substantially identical." Id.; see also Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990). The named plaintiffs must be members of the class they seek to represent and they must "possess the same interest and suffer the same injury" as putative class members. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation marks omitted). It is sufficient for the plaintiff's claims to "arise from the same remedial and legal theories" as the class claims. Arnold v. United Artists Theatre Cir., Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994).
Here, Plaintiff's claims arise from the same factual and legal circumstances as those pertaining to the claims of the class members. Specifically, Plaintiff alleges that she and the class members were improperly classified as independent contractors, giving rise to multiple failures on First Investors' part to pay and reimburse class members in accordance with the California Labor Code. Accordingly, the typicality requirement is met.
4. Adequacy of Representation
Representative parties must be able to "fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). Representation is adequate if the plaintiffs: (1) "do not have conflicts of interest with the proposed class" and (2) are "represented by qualified and competent counsel." Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1185 (9th Cir. 2007). At the heart of this requirement is the "concern over settlement allocation decisions." Hanlon, 150 F.3d at 1020.
Here, Plaintiff has an interest in proving liability against First Investors, and Plaintiff's interest is the same as that of the absent class members. Plaintiff does not have any apparent conflicts of interest with the class.
In addition, class counsel is adequate, as they have significant experience representing classes of employees in wage and hour litigation. Matthew Dente, from the Dente Law Firm, has ten years of experience practicing employment law and serving as counsel in wage and hour class actions, (Dente Decl. ¶¶ 3-5.) Dente has served as counsel in dozens of wage and hour class actions before state and federal courts. (Id.)London Meservy, Meservy Law, P.C., has eleven years of experience litigating complex multi-plaintiff cases and class actions both as outside defense counsel, plaintiff's counsel, and in-house corporate counsel. (Meservy Decl. ¶¶ 3-5.) Meservy's current practice focuses almost exclusively on complex class actions on behalf of employees and consumers, and Meservy currently serves as counsel in multiple cases. (Id. ¶ 4.) Brian Robbins, from Robbins Umeda LLP, has over ten years of experience in complex civil litigation, including class actions. (Robbins Decl. ¶ 3.) In addition, Robbins serves as counsel in multiple putative wage and hour class actions. (Id.)Plaintiff and the proposed class counsel have indicated that they are willing to pursue this action vigorously on behalf of the class, have thoroughly investigated the class claims, and have served and responded to discovery. (Dente Decl. ¶¶ 8, 15-22.) Accordingly, the adequacy requirement has been met.
For the reasons stated above, Plaintiff has satisfied the prerequisites of Rule 23(a).
B. Rule 23(b)(3) Requirements
Rule 23(b)(3) requires the court to find that: (1) "the questions of law or fact common to class members predominate over any questions affecting only individual members" ("predominance"); and (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy" ("superiority").
1. Predominance
The predominance inquiry tests "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Hanlon, 150 F.3d at 1022 (internal quotation marks omitted). This analysis requires that common questions of law and fact "present a significant aspect of the case and [that] they can be resolved for all members of the class in a single adjudication." Id. (internal quotation marks omitted). The relevant inquiry is whether issues "subject to generalized proof predominate over those issues that are subject only to individualized proof." Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 634 (S.D. Cal. 2010) (internal quotation marks and alteration omitted).
Here, the central issue in this action is whether Defendants violated certain provisions of the California Labor Code by misclassifying its registered representatives as independent contractors. Judicial economy favors resolving this predominant issue once, in a class action settlement, rather than litigating it multiple times in individual lawsuits. Accordingly, the predominance requirement is met.
2. Superiority
The superiority requirement focuses on the determination of "whether the objectives of the particular class action procedure will be achieved in the particular case." Hanlon, 150 F.3d at 1023. The class-action method is considered to be superior if "classwide litigation of common issues will reduce litigation costs and promote greater efficiency." Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
Concentration of class members' claims for settlement purposes is desirable in order to avoid the possibility of duplicative individual matters and inconsistent judicial determinations. Class treatment of the class members' claims would be more manageable than many individual lawsuits brought by current or former registered representatives. In addition, because of the relatively small individual claims of class members, it is unlikely that individual actions to recover these unpaid wages will be filed. The average estimated individual settlement award is $4,082.73, and class members employed throughout the entire time period will recover approximately $19,744.35. (Aguilar Decl. ¶ 9.) Accordingly, the superiority requirement is met.
For the foregoing reasons, Plaintiff has satisfied the requirements of Rule 23(b)(3). The Court GRANTS preliminary certification for the purposes of the proposed settlement. The Court, however, may review this finding at the Final Approval Hearing.
II. THE SETTLEMENT
Rule 23(e) requires the Court to determine whether a proposed settlement is "fundamentally fair, adequate, and reasonable." Staton, 327 F.3d at 959 (internal quotation marks omitted). In making this determination, a court may consider: (1) the strength of the plaintiff's case; (2) "the risk, expense, complexity, and likely duration of further litigation;" (3) "the risk of maintaining class action status throughout the trial;" (4) "the amount offered in settlement;" (5) "the extent of discovery completed, and the stage of the proceedings;" (6) "the experience and views of counsel;" (7) "the presence of a governmental participant;" and (8) "the reaction of the class members to the proposed settlement." See id. (internal quotation marks omitted). Moreover, the settlement may not be the product of collusion among the negotiating parties. In re Mego Fin. Corp. Sec. Litig. ,213 F.3d 454, 458 (9th Cir. 2000).
Because some of these factors cannot be fully assessed until the Court conducts the Final Approval Hearing, "a full fairness analysis is unnecessary at this stage." See Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (internal quotation marks omitted). At the preliminary approval stage, the Court need only review the parties' proposed settlement to determine whether it is within the permissible "range of possible approval" and thus, whether the notice to the class and the scheduling of the formal fairness hearing is appropriate. Id. at 666.
A. The Strength of Plaintiff's Case and the Risk, Expense, Complexity and Likely Duration of Further Litigation, and the Risk of Maintaining Class Action Status Throughout the Trial
Plaintiff's counsel believes that the proposed settlement is fair, reasonable, and adequate, and is in the best interest of the parties in light of all known facts and circumstances, including the risk of delay, the uncertainty of recovery, and the defenses asserted by Defendants. (Dente Decl. ¶ 24.) Specifically, Plaintiff recognizes that there is a possibility that the Class may not obtain certification or, even with certification, will not be able to recover damages, considering Defendants' defenses, as well as the uncertainty in the law regarding Plaintiff's and the putative class's employment status, the previously unsettled law regarding meal and rest periods, the requisite showing on an injury to recover damages under California Labor Code § 226, and the willfulness requirement under California Labor Code § 203. (Id. ¶ 17.) In addition, class counsel recognizes the possibility of an adverse ruling on Defendants' motion to compel arbitration, summary judgment and/or class certification, the difficulties of complex litigation, the process of establishing entitlement to the damages at issue, and various possible delays and appeals. (Id. ¶ 26.) Taken together, these considerations weigh in favor of preliminary approval of the proposed settlement.
B. The Extent of Discovery and the Stage of the Proceedings
In regards to class action settlements, "formal discovery is not a necessary ticket to the bargaining table where the parties have sufficient information to make an informed decision about settlement." Linney v. Cellular Alaska P'ship, 151 F.3d 1234,1239 (9th Cir. 1998) (internal quotation marks omitted).
Here, the parties appear to have engaged in substantial discovery. Defendants have produced Plaintiff's personnel file, payroll documents, and arbitration agreements. (Dente Decl. ¶ 8.) In addition, class counsel requested, and Defendants produced a class list with start and end dates, work locations, and total workweeks for every putative class member; copies of all applicable policies; data showing the class members' earnings (including commissions, bonuses, deductions, reimbursements, etc); a sampling of payroll records, commission/bonus statements, pay stubs, Form 1099's, and CAP statements for approximately 20% of the putative class; all First Investors presentations shown to putative class members and prospective registered representatives; training documents; compensation plans; commissions and bonus plans; a representative sampling of weekly schedules; documents related to First Investors' mentoring program; and documents regarding support service fees and other expenses incurred by putative class members. (Id.) The parties appear to have thoroughly investigated and evaluated the factual strengths and weaknesses of this case and engaged in sufficient investigation and discovery to support the settlement. Accordingly, the extent of discovery and stage of the proceedings weigh in favor of preliminary approval.
C. Experience of Class Counsel
Class counsel has experience in complex civil litigation, (See Dente Decl. ¶¶ 3-5; Meservy Decl. ¶¶ 3-5; Robbins Decl, ¶ 3.) Dente and Meservy have extensive experience representing both defendants and plaintiffs in wage and hour class action cases. (See Dente Decl. ¶¶ 3-5; Meservy Decl. ¶¶ 3-5.) Both Dente and Meservy have been appointed as class counsel in numerous wage and hour class actions in both state and federal court. (See Dente Decl. ¶¶ 3-5; Meservy Decl. ¶¶ 3-5.) In addition, Robbins Umeda LLP has handled complex class and derivative actions, including wage and hour class actions, (See Robbins Decl. ¶ 3.)
Moreover, Defendants' counsel, Paul Hastings LLP, has a worldwide employment litigation practice, and has handled over 200 class actions within the last two years. (Mot. at 9.) Nancy Abell has over 30 years of experience, and is the Global Chair of Paul Hastings' Employment Law Department. (Id.) Abell has litigated numerous wage and hour class actions. (Id.)Raymond Bertrand has approximately 17 years of experience, and has litigated many statewide and nationwide class actions, including wage and hour matters. (Id.) In addition, Bertrand is the Co-Editor-in-Chief of Matthew Bender's California Employers' Guide to Employee Handbooks and Personnel Policy Manuals and authors the wage-and-hour section of Matthew Bender's California Labor & Employment Bulletin.
Counsel on both sides believe that this is a fair and reasonable settlement. Accordingly, this factor weighs in favor of preliminary approval. See Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980); In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) ("The recommendations of plaintiffs' counsel should be given a presumption of reasonableness." (internal quotation marks omitted)).
D, The Amount Offered in Settlement
A settlement is not judged against only the amount that might have been recovered had the plaintiff prevailed at trial, nor must the settlement provide 100% of the damages sought to be fair and reasonable. Linney, 151 F.3d at 1242. There is a "range of reasonableness" in determining whether to approve settlement "which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion." Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)). The adequacy of the amount recovered must be judged as "a yielding of absolutes . . . Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with litigation." Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982) (internal quotation marks omitted). "It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair." Id. at 628.
Here, Plaintiff brings claims for damages and statutory penalties against First Investors on behalf of herself and other California registered representatives for: (1) failure to pay overtime wages; (2) failure to pay minimum wages due; (3) failure to timely pay wages due; (4) failure to provide itemized wage statements; (5) failure to provide meal periods; (6) failure to provide rest periods; (7) failure to reimburse employee expenses; (8) unlawful deductions; and (9) unfair competition. The approximate and reasonable value of Plaintiff's claims are: (1) $3,500,000 for the minimum wage and overtime claims; (2) $1,037,120 for the meal and rest period claims; and (3) $2,300,000 for the reimbursement of business expense claims. (Aguilar Decl. ¶¶ 5-7.) Thus, an approximate and reasonable value of the total claims in this action is $6,837,120. (See id. ¶ 8.) In addition, Plaintiff's claims carry the potential for related statutory penalties for inaccurate wage statements and waiting time penalties, as well as related civil penalties potentially recoverable under the California Private Attorneys General Act of 2004, Labor Code § 2698 et seq. Many of these penalties, however, arguably require heightened proof, such as proof of intent and/or willfulness. Moreover, many of these penalties, if recovered, would not be awarded to class members.
The parties have agreed to a Gross Settlement Amount of $ 1,750,000, which includes, subject to the Court's approval: (1) payment to the California Labor Workforce Development Agency for its share of the settlement of claims for civil penalties pursuant to the Private Attorneys' General Act in the amount of $17,500; (2) all employer taxes applicable to the settlement payments, including the Federal Unemployment Tax Act and the Federal Insurance Contributions Act; (3) Plaintiff's Class Representative Payment in the amount of $25,000; (4) Class Counsel's attorney's fees in the amount of $437,500 and expenses not to exceed $20,000; and (5) the Settlement Administrator's fees and expenses, (Dente Decl. ¶ 13.) All settlement payments to the eligible class members will be made from the amount remaining in the settlement fund after all other applicable deductions ("Settlement Proceeds"). (Id.) The average estimated individual settlement award is $4,082.73, and class members employed throughout the entire time period will recover approximately $19,744.35. (Aguilar Decl. ¶ 9.)
In addition, if fewer than all participating class members timely and properly submit claims, any unclaimed sum will be distributed by the Settlement Administrator to the Children's Miracle Network. (Dente Decl., Exh. A [Settl.] ¶ 39.) In Dennis v. Kellogg Co., __ F.3d _, 2012 WL 3800230, at *5 (9th Cir. 2012), the Ninth Circuit held that "[t]o avoid the many nascent dangers to the fairness of the distribution process, we require that there be a driving nexus between the plaintiff class and the cy pres beneficiaries." Id. at *5 (internal quotation marks omitted). This '"driving nexus' between the class and the cy pres beneficiaries . . . is more than a simple alignment of interest. 'Nexus' implies that there be an actual connection, not just between the class and the cy pres beneficiary, but between the claims alleged in the case and the cy pres beneficiary." In re Groupon, Inc. Mktg. & Sales Practices Litig., Case No. 11 -MD-2238 DMS (RBB), Docket No. 97, at 15 (S.D. Cal. Sept. 28, 2012); see also Nachshin v. AOL, LLC, 663 F.3d 1034,1036 (9th Cir. 2011). Here, the parties do not assert that there is a driving nexus between the class and the cy pres beneficiary, nor is a driving nexus apparent to the Court. Accordingly, preliminary approval of the settlement is DENIED to the extent that the parties intend to distribute any unclaimed sum of the settlement to the Children's Miracle Network. The parties may address this issue at the Final Approval Hearing.
The value of the settlement takes into account the risks related to certification, liability, and damages, including the possibility that the Class would have not been able to make the necessary showings to obtain recovery. (Dente Decl. ¶ 25.) In light of the uncertainties involved with respect to litigating this action, the Court finds the amounts offered in settlement to be adequate, at least at this stage of the proceedings. See, e.g., Glass v. UBS Fin. Servs., Inc., No. C-06-4068 MMC, 2007 WL 221862, at *4 (N.D. Cal. Jan. 26, 2007) (finding settlement of a wage and hour class action for 25 to 35% of the claimed damages to be reasonable in light of the uncertainties involved in the litigation).
E. Collusion Between the Parties
The collusion inquiry regards the possibility that the agreement is the result of either the negotiators' overt misconduct or improper incentives for certain class members at the expense of other members of the class. Staton, 327 F.3d at 960. Here, there is no evidence of overt misconduct. The Court will focus only on the aspects of the settlement that lend themselves to self-interested action.
First, the Individual Settlement Payments will be distributed to the class members proportionately, based on their tenure. (See Dente Decl., Exh. A [Settl.] ¶ 43.) Each class member who timely submits a Claim Form will receive a share of the Settlement Proceeds, calculated as follows: (1) the Settlement Proceeds will be divided by the total number of Compensable Work Weeks of all class members, and (2) that number (the "Work Week Value") will be multiplied by the number of Compensable Work Weeks during which the individual class member was affiliated with First Investors, to determine the Individual Settlement Payment. (Id. ¶ 43.)
Second, the proposed class representative enhancement of $25,000 likewise does not appear to be the result of collusion. The Court evaluates incentive awards using "relevant factors including the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, the amount of time and effort the plaintiff expended in pursuing the litigation and reasonable fears of workplace retaliation." Staton, 327 F.3d at 977 (internal quotation marks and alterations omitted). Here, Plaintiff requests $25,000 for Campbell, for her time, effort, risks undertaken for the payment of costs in the event this action had been unsuccessful, and stigma upon future employment opportunities for having initiated an action against a former employer. (See Dente Deck, Exh. A [Settl.] ¶ 41.)
Third, the attorneys' fees do not appear to be the result of collusion. It is permissible for plaintiffs to simultaneously negotiate the merits of the action and attorneys' fees. Staton, 327 F.3d at 971. Twenty-five percent is the "benchmark" of recovery. Powers v. Eichen, 229 F.3d 1249, 1256-57 (9th Cir. 2000). In addition, "the choice of whether to base an attorneys' fee award on either net or gross recovery should not make a difference so long as the end result is reasonable." Id. at 1258. Here, the Settlement Agreement provides that Plaintiff's counsel will recover an award of attorneys' fees up to 25% of the Gross Settlement Amount, or $437,500. (Dente Deck, Exh. A [Settl.] ¶ 40.) In addition, Plaintiff's counsel will request reimbursement of their expenses not to exceed $20,000, to be paid out of the Gross Settlement Amount. (Id.) Accordingly, the attorneys' fees do not appear to be the result of collusion.
For the above reasons, the Court GRANTS IN PART preliminary approval of the proposed settlement. Preliminary approval of the settlement is DENIED to the extent that the parties intend to distribute any unclaimed sum of the settlement to the Children's Miracle Network.
III. APPOINTING CLASS COUNSEL
The choice of counsel has traditionally been left to the parties, "whether they sue in their individual capacities or as class representatives." In re Cavanaugh, 306 F.3d 726,734 (9th Cir. 2002) (internal quotation marks omitted). Here, Plaintiff's counsel has extensive experience in employment class actions, as discussed above. Accordingly, because Plaintiff's counsel appears to be competent to represent the class, the Court GRANTS Plaintiff's motion to appoint Matthew S. Dente from the Dente Law Firm; London D. Meservy from Meservy Law, PC; and Brian J. Robbins and Conrad B. Stephens from Robbins Umeda LLP.
IV. APPROVING CLASS NOTICE
Class notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Moreover, the class notice must satisfy the content requirements of Rule 23(c)(2)(B), which provides that the notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Here, the content of the proposed notice is adequate. The proposed notice provides: (1) information on the meaning and nature of the class; (2) the terms and provisions of the proposed settlement; (3) the relief that settlement group members will be entitled to, including a specific estimate of the amount to be paid to each eligible member; (4) the costs and fees to be paid out of the Gross Settlement Amount; (5) the procedures and deadlines for submitting claim forms, objections, and/or requests for exclusion; and (6) the date, time, and place of the Final Approval Hearing. (See Dente Decl, Exh. A [Settl., Exh. A [Proposed Class Notice]].) In addition, the method of notice, more fully set forth below, is reasonable.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED:
1. Based upon the Court's review of the Settlement, the supporting briefs and declarations, and the entire record, the Plaintiff's Unopposed Motion for Preliminary Approval of Settlement is GRANTED IN PART AND DENIED IN PART, as specified herein.
2. This Order incorporates by reference the definitions in the Settlement, and all terms defined therein shall have the same meaning in this Order as set forth in the Settlement.
3. The Court hereby conditionally certifies the following Class for settlement purposes only:
All individuals affiliated with Defendants (or any one Defendant) as a licensed registered representative or licensed insurance agent at any of Defendants' four California offices during the Covered Period.The Covered Period means the period from February 18, 2007 through the date of this Order.
4. Based upon the Court's review of the Settlement, the supporting briefs and declarations, and the entire record, this action presents common issues of law and fact, Plaintiff Lauren Campbell is found to be an adequate representative of the Class, and her claims are found to be typical of the other Class Members. The following attorneys are hereby appointed and designated as counsel for the Plaintiff and the Class ("Class Counsel"):
THE DENTE LAW FIRM
MATTHEW S. DENTE (SB# 241547)
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: 619-550-3475
Facsimile: 619-342-9668
LONDON D. MESERVY (SB# 216654)
MESERVY LAW, PC.
120 C Ave., Suite 120
Coronado, CA 92118
Telephone: (858) 779-1276
Facsimile: (866) 231-8132
ROBBINS UMEDA LLP
BRIAN J. ROBBINS, (SB# 190264)
CONRAD B. STEPHENS, (SB# 266790)
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 525-3900
Facsimile: (619)525-3991
5. Class Counsel is authorized to act on behalf of Class Members with respect to all acts or consents required by, or which may be given under the Settlement, and such other acts reasonably necessary to consummate the Settlement. Any Class Member may enter an appearance through counsel of such Class Member's own choosing and at such Class Member's own expense. Any Class Member who does not enter an appearance or appear on his or her own will be represented by Class Counsel.
6. Preliminarily, the Court approves in part the Settlement. The Court approves the definition and disposition of the Gross Settlement Amount, with the exception of the provision providing distribution of any unclaimed sum of the Settlement to the Children's Miracle Network. In addition, the Court approves the proposed payments to Class Members, Class Counsel Attorneys' Fees and Costs Payment, and the Class Representative Payment. The Court finds that, on a preliminary basis, the Gross Settlement Amount, as defined in the Settlement, appears to be within the range of reasonableness of a settlement that could ultimately be given final approval by this Court, with the exception of the proposed distribution of any unclaimed sum of the Settlement to the Children's Miracle Network.
7. The Final Approval Hearing shall be held before this Court on May 2, 2013, at 9:30 a.m. at the United States District Court for the Southern District of California, 940 Front Street, San Diego, CA 92101, in Courtroom 3, to determine all necessary matters concerning the Settlement, including: whether the proposed Settlement of the Action on the terms and conditions provided for in the Settlement is fair, adequate, and reasonable and should be finally approved by the Court; whether a Judgment should be entered herein; whether the proposed allocation and distribution of the Gross Settlement Amount contained in the Settlement should be approved as fair, adequate, and reasonable to the Class Members; and to finally approve the Class Counsel Fees and Cost Payment and the Class Representative Payment.
8. The Court approves, as to form and content, the Notice and Claim Form attached as Exhibits A and B to the Settlement. The Court finds that the distribution of the Notice and Claim Form substantially in the manner and form set forth in the Settlement and this Order satisfies due process requirements, is the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all Class Members.
9. The Court appoints CPT Group as Settlement Administrator and directs the Settlement Administrator to mail to Class Members the Notice and Claim Form by first class mail by December 21, 2012. under the procedures set forth in the Settlement. If no response is received, another Notice and Claim Form will be sent by February 21, 2013 by certified mail to those class members who have not yet responded. Class Members who wish to participate in the settlement provided for by the Settlement ("Participating Class Members") must complete and return the Claim Form under the Settlement's instructions by first class mail or equivalent, postage paid, by March 11, 2013.
10. Any Class Member may choose to opt out of and be excluded from the Settlement as provided in the Notice by following the instructions for requesting exclusion from the Settlement that are set forth in the Notice and Settlement. All written requests for exclusion must be submitted as provided in the Notice and Settlement. Any such person who chooses to opt-out of and be excluded from the Settlement will not be entitled to any recovery under the Settlement and will not be bound by the Settlement or have any right to object, appeal, or comment thereon. Any written request to be excluded from the Settlement must be express and signed by each such person. Individuals in the Class who have not requested exclusion shall be bound by all determinations of the Court, the Settlement, and any Judgment that may be entered thereon.
11. Any Participating Class Member may appear at the Final Approval Hearing and object to the Settlement ("Objectors"). Objectors may present evidence and file briefs or other papers that may be proper and relevant to the issues to be heard and determined by the Court as provided in the Notice. On or before March 11, 2013. Objectors shall serve by hand or by first class mail written objections and copies of any papers and briefs in support of their position and verification of their membership in the Class upon Class Counsel and Counsel for Defendants, and file the objections, papers, and briefs with the Clerk of this Court.
12. All papers in support of the Settlement shall be filed with the Court and served on the parties' counsel no later than April 1, 2013.
13. To the extent permitted by law, pending final determination as to whether the Settlement should be approved, any individuals within the Class, whether directly, representatively, or in any other capacity, whether or not such persons have appeared in the Action, shall not institute or prosecute against Defendants any claims to be resolved through this Settlement. The Court incorporates by reference and preliminarily approves the release of claims set forth in Paragraph 61 of the Settlement.
14. As of the date this Order is signed, all dates and deadlines associated with the Action shall be stayed, other than those related to the administration of the Settlement of the Action.
15. If the Settlement does not become effective in accordance with the terms of and as defined in the Settlement, or if the Settlement is not finally approved by the Court, or is terminated, canceled or fails to become effective for any reason, this Order shall be rendered null and void and shall be vacated, and the parties shall revert to their respective positions as of before entering into the Settlement.
16. The Court reserves the right to adjourn or continue the date of the Final Approval Hearing and all dates provided for in the Settlement without further notice to Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement.
17. The Court retains exclusive jurisdiction over the Action to consider all further matters arising out of or connected with the Settlement until Judgment has been entered.
18. In accordance with the terms of the Settlement, the Court hereby adopts the following dates for performance of the specified activities:
+------------------------------------------------------------+ ¦ ¦Deadline for Defendants to provide ¦ ¦December 7, 2012 ¦ ¦ ¦ ¦Settlement Administrator with class data;¦ +------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦Deadline for Settlement Administrator to ¦ ¦December 21, 2012 ¦ ¦ ¦ ¦mail the Class Notice and Claim Forms to all ¦ ¦ ¦Class Members; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Deadline for Settlement Administrator to ¦ ¦ ¦ ¦ ¦February 21, 2013 ¦mail a second Class Notice and Claim Form by ¦ ¦ ¦ ¦ ¦ ¦certified mail to all Class Members who have not ¦ ¦ ¦responded; ¦ +---------------------------+-------------------------------------------------¦ ¦March 11, 2013 ¦Last day for Class Members to submit claims; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Last day for Class Members to submit ¦ ¦ ¦ ¦ ¦ ¦written objections to the Settlement and any ¦ ¦March 11, 2013 ¦notices ¦ ¦ ¦ ¦ ¦ ¦of intent to appear at the final approval ¦ ¦ ¦hearing; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Last day for eligible Class Members to ¦ ¦March 11, 2013 ¦ ¦ ¦ ¦submit requests to be excluded from the ¦ ¦ ¦Settlement; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Last day for Settlement Administrator to ¦ ¦ ¦ ¦ ¦March 20, 2013 ¦provide declaration of compliance with its ¦ ¦ ¦ ¦ ¦ ¦obligations under the Settlement; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Last day for Plaintiff to file and serve a ¦ ¦ ¦ ¦ ¦ ¦motion for final approval of Settlement, and for ¦ ¦March 25, 2013 ¦ ¦ ¦ ¦Plaintiff to file request for attorneys' fees, ¦ ¦ ¦costs, and ¦ ¦ ¦ ¦ ¦ ¦Class Representative payment; ¦ +---------------------------+-------------------------------------------------¦ ¦ ¦Last day for filing of any written opposition ¦ ¦ ¦ ¦ ¦ ¦to motion for final approval of Settlement and/or¦ ¦April 1, 2013 ¦ ¦ ¦ ¦Plaintiff's request for attorneys' fees, costs, ¦ ¦ ¦and ¦ ¦ ¦ ¦ ¦ ¦Class Representative Payment; and ¦ +---------------------------+-------------------------------------------------¦ ¦May 2, 2013. at 9:30 a.m. ¦Final approval hearing. ¦ +-----------------------------------------------------------------------------+
IT IS SO ORDERED.
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HON. ROGER T. BENITEZ
United States District Judge