Opinion
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff James Richardson ("Plaintiff" or "Class Representative"), having moved for entry of an order (a) preliminarily approving the settlement of the above-referenced action pursuant to the Settlement Agreement, (b) conditionally certifying a class for purposes of proceedings in connection with the final approval of the Settlement Agreement, (c) approving the form of notice of settlement and directing the manner of delivery thereof, (d) approving Kenneth H. Yoon and Stephanie E. Yasuda, Law Offices of Kenneth H. Yoon as Class Counsel.
On September 11, 2015, the parties consented to the jurisdiction of the United States Magistrate Judge. (Docs. 47, 48). For that reason, the action was reassigned to the Honorable Barbara A. McAuliffe for all purposes. See 28 U.S.C. §636(c); Fed.R.Civ.P. 73; see also L.R. 301, 305. (Doc. 49).
IT IS HEREBY ORDERED THAT:
1. The Settlement Agreement is hereby PRELIMINARILY APPROVED as appearing on its face to be fair reasonable, and adequate and to have been the product of serious, informed, and extensive arm's-length negotiations among Plaintiff and Defendants THD At-Home Services, Inc. and MeasureComp, LLC ("Defendants") (collectively, the "Parties"). In making this preliminary finding, the Court considered the nature of the claims, the relative strength of Plaintiff's claims, the amounts and kinds of benefits paid in settlement, the allocation of settlement proceeds among the class members, and the fact that the settlement represents a compromise of the Parties' respective positions rather than the result of a finding of liability at trial. The Court further preliminarily finds that the terms of the settlement have no obvious deficiencies and do not improperly grant preferential treatment to any individual class member. Accordingly, the Court preliminarily finds that the agreement was entered into in good faith.
2. The Court finds preliminarily, and for purposes of proceeding pursuant to Federal Rule of Civil Procedure 23, for settlement purposes only and on approval of the agreement only, that:
3. Accordingly, for purposes of the agreement only, this litigation is CERTIFIED as a class action pursuant to Federal Rule of Civil Procedure 23. The class is defined as follows:
4. The Court hereby APPOINTS as class counsel for settlement purposes only Kenneth H. Yoon and Stephanie E. Yasuda, Law Offices of Kenneth H. Yoon.
5. The Court hereby APPOINTS as Class Representative for settlement purposes Plaintiff James Richardson.
6. The Court hereby APPROVES CPT Group, Inc. as settlement administrator for the purposes of this settlement.
7. A final approval and fairness hearing is hereby SCHEDULED to be held before the Court on March 4, 2016 at 9:00 am for the following purposes:
8. The form of class notice attached hereto as Exhibit A is hereby APPROVED. No later than thirty (30) calendar days after preliminary approval, Defendants shall provide the settlement administrator with the name, last known mailing address, social security number, hire dates, and dates of termination, if applicable. No later than forty-five (45) calendar after the date of entry of this order, the settlement administrator will send via first class mail the documents constituting the notice to each settlement class member by first-class regular U.S. Mail.
9. The Court finds that the class notice, along with the related notification materials, constitute the best notice practicable under the circumstances and are in full compliance with the laws of the State of California, the United States Constitution, and the requirements of due process. The Court further finds that the notifications fully and accurately inform settlement class members of all material elements of the proposed settlement, of settlement class members' right to dispute their share of the settlement, of the settlement class members' right to be excluded from the settlement class, and of each settlement class member's right and opportunity to object to the Settlement.
10. The Court hereby APPROVES the proposed procedure whereby all class members who do not timely request exclusion from the settlement will be bound by the agreement. The Court hereby APPROVES the proposed response deadline of 45 calendar days from the initial mailing of the class notice.
11. The Court hereby APPROVES the proposed procedure for requesting exclusion from the settlement class, as set forth in the class notice.
12. All costs of mailing of the notice, whether foreseen or not, shall be paid from the gross settlement amount, including the cost of searching for Class Members' addresses as provided in as provided in the agreement. All other reasonable costs of the settlement administrator shall also be paid from the gross settlement amount as provided in the agreement.
13. All objections to the settlement must be filed by mailing them to the Clerk of the Court, who will file objections on the Court's electronic filing system and provide notice to all counsel of record. The deadline to object is 45 days after the mailing of the notice. If mailed, the objection must be postmarked on or prior to 45 days after the mailing of the notice. Objections must state their basis and if any objector intends to appear in person or by counsel at the final approval hearing, he or she must include such fact and state the purpose for his or her appearance in the objection. Objectors do not need to appear to have their objections considered. The parties will be permitted to respond in writing to all objections, which responses must be filed no later than seven (7) days prior to the final approval and fairness hearing. Settlement class members who fail to file timely written objections will be deemed to have waived any objections and will be foreclosed from making any objection to the settlement.
14. It is further ordered that pending further order of this Court, all proceedings in this matter except those contemplated herein and as part of the Settlement are stayed and all dates other than the final approval and fairness hearing are vacated.
15. Jurisdiction is hereby retained over this Action and the Parties to the action, and each of the class members for all matters relating to this Action, this settlement, including (without limitation) all matters relating to the administration, interpretation, effectuation, and/or enforcement of this settlement and this order.
IT IS SO ORDERED.
EXHIBIT A - LEGAL NOTICE:
1. Why Did I Get This Notice Package?
You are not being sued. Plaintiff sued defendants in a class action on behalf of similar employees like you.
Defendants' records show that you worked as a measure tech in California during the period from January 23, 2010 to July 16, 2015.
You received this notice because you have a right to know about a proposed settlement of a class action lawsuit and about your options before the Court decides whether to approve the settlement. If the Court finally approves the settlement, a settlement administrator appointed by the Court will make the payments that the settlement allows.
This notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them and how to get them.
2. What Is This Lawsuit About?
KENNETH H. YOON, STEPHANIE E. YASUDA, LAW OFFICES OF KENNETH H. YOON, Los Angeles, California Attorneys for Plaintiff James Richardson.
Plaintiff worked for defendants as a measure tech in California during the period January 23, 2010 to July 16, 2015. The Court has approved plaintiff to represent the class for purposes of this settlement.
a. The class is sufficiently numerous because the proposed settlement class includes approximately 143 persons;
b. Class members are ascertainable as the class sought to be represented is adequately defined and ascertainable from Defendants' records;
c. The proposed class asserts common claims arising out of the same alleged uniform policies and practices;
d. Plaintiff's claims are typical of those asserted by the class as the class representative alleges he suffered the same injury(ies), in the same manner, as the proposed class;
e. There is no evidence suggesting the class representative or class counsel have a conflict of interest with other class members, Plaintiff's counsel is qualified and competent and has substantial experience in wage and hour class actions, and Plaintiff's counsel and the named Plaintiff have and will continue to prosecute this action on behalf of the class.
plaintiff and any individuals employed by THD At-Home Services, Inc. and/or Measure Comp, LLC as measure techs in California between January 23, 2010 and July 16, 2015, excluding however, any individuals whose claims were fully released in connection with the class settlement in Mejia v. MeasureComp, LLC, Los Angeles Superior Court, No. BC 409729.
a. to determine finally whether this litigation satisfies the applicable prerequisites for class action treatment for settlement purposes only;
b. to determine whether the proposed settlement is fair, reasonable and adequate and should be granted final approval by the Court;
c. to determine whether an order of final approval as should be entered, and to determine whether the releases should be released of and from the released claims as provided in the agreement;
d. to determine whether the proposed plan of allocation of the gross settlement amount is fair and reasonable and should be approved by the Court;
e. to finally consider Plaintiff's application for an Enhancement Payment;
f. to finally determine whether class counsel's application for an award of attorney fees and costs is fair, reasonable, and adequate and should be approved by the Court;
g. to determine that the settlement administrator's costs should be paid from the gross settlement amount;
h. to consider the PAGA payment; and
i. to rule upon such other matters as the Court may deem appropriate.
If you worked at THD At-Home Services, Inc. or MeasureComp, LLC as a measure tech during the period from January 23, 2010 to July 16, 2015, a settlement of a class action will affect your rights.
A court authorized this Notice. Richardson v. THD At-Home Services, Inc. et al., No. 1:14-cv-00273-BAM
• Former employee James Richardson ("plaintiff") sued THD At-Home Services, Inc. and MeasureComp, LLC (collectively referred to as "defendants") on behalf of himself and others similarly situated for the following claims: (1) failure to provide meal periods and rest breaks, (2) failure to pay overtime and minimum wages, (3) failure to reimburse all necessary work-related expenses, (4) violation of Labor Code § 203, (5) violation of Labor Code § 226, (6) violation of Labor Code § 2698 et seq., and (7) violation of Business & Professions Code § 17200 et seq.
• The claims of the plaintiff and the settlement class have been settled.
• The Court has preliminarily approved the settlement.
• If you qualify as a settlement class member, you could receive money from the settlement.
• Your legal rights are affected whether you act or don't act. Read this Class Notice carefully.
Your estimated settlement share is <>
Defendants' records show that you were employed as a non-exempt measure tech in California during the period from January 23, 2010 to July 16, 2015, for <> weeks. The number of weeks excludes the period from January 23, 2010 to April 25, 2011, because your claims for that period were released in connection with the class action settlement in Mejia v. MeasureComp, LLC, Los Angeles Superior Court, No. BC 409729, unless you timely elected to exclude yourself from the Mejia settlement. If you disagree with this information, please contact the settlement administrator:
• Your rights and options - and the deadlines to exercise them - are explained in this Notice.
• The Court still has to decide whether to approve the settlement. Payments will be made if the Court approves the settlement and after any appeals are resolved.
The lawsuit alleges that defendants engage in practices that violate California's wage and hour and unfair competition laws by failing to provide meal periods and rest periods, failing to reimburse all work-related expenses, failing to pay all overtime compensation and minimum wages, and failing to keep accurate records pursuant to Labor Code § 226.
Defendants deny liability on the class-wide claims and deny that wages, damages, or penalties are owed, or that they acted contrary to California law or federal law.
4. Do I Need to Hire an Attorney?
You do not need to hire your own attorney for this settlement. You are already represented by Class Counsel (see section 17 for contact information). However, you may hire your own attorney at your own expense if you choose to do so.
5. What Is Defendants' Position?
Defendants each deny all of plaintiff's allegations, or that they violated any law, and contend that at all times they complied with federal, state, and local laws.
6. Why Is There a Settlement?
The Court did not decide in favor of plaintiff or defendants. The parties agreed to settle this lawsuit after thoroughly investigating the relevant facts and law. The class claims against defendants were settled because class counsel and the class representative believe that the amount of the settlement is fair and reasonable in light of the strength and weaknesses of the claims and other factors.
7. How Do I Know If I Am Part of the Settlement?
You are a member of the settlement class if you were a measure tech of defendants who worked in California during the period from January 23, 2010 to July 16, 2015. However, the settlement class will exclude any individuals whose claims were fully released in connection with the class settlement in Mejia v. MeasureComp, LLC, Los Angeles Superior Court, No. BC 409729. If you are receiving this notice, your claims were not fully released in connection with the Mejia settlement.
8. What Does the Settlement Provide?
The net settlement fund is the portion of the gross settlement fund of $1,150,000 available for distribution to settlement class members who do not timely send a signed and returned valid request for exclusion from the settlement. The net settlement fund is the gross settlement fund less class counsel's attorneys' fees and costs, settlement administration costs, the plaintiff's enhancement payment, and a payment to the state under the Private Attorney General Act of 2004 ("PAGA").
Class counsel will ask the Court to award attorneys' fees in the amount of $383,333.33, which represents one third of the gross settlement amount and litigation costs estimated at $25,000 from the gross settlement amount. In addition, plaintiff will ask the Court to authorize an enhancement payment from the gross settlement amount in the amount of $20,000 to compensate him for the risks, time, and expense of his involvement in this action. This payment is in addition to whatever payment the class representative is otherwise entitled to as a settlement class member. The settlement administrator will also be reimbursed for the expense of notifying settlement class members of the settlement, administering the settlement, processing requests for exclusion submitted by class members and distributing settlement payments. Settlement administration costs are estimated at $8,000. Finally, class counsel will ask the Court to approve a PAGA payment in the amount of $10,000 of which $7,500 will be awarded to California and $2,500 will be awarded to class members by adding that sum to the net settlement fund.
9. What Can I Get From the Settlement?
Class members will be paid out of the net settlement fund. Fifty percent of the payment will be designated as wages, for which an IRS W-2 form will be issued, and 50 percent will be designated as non-wage payments, for which IRS Form 1099 will be issued, as appropriate.
If you do not timely submit a valid request for exclusion by the objection deadline, you will receive your share of the net settlement fund after the Court approves the settlement. Your estimated share is listed above, on page 1 in the shaded box.
10. How Was My Share Calculated?
Based on information provided by defendants in the litigation, the settlement administrator calculated the number of weeks that each settlement class member worked according to defendants' records during the class period divided by the total number of weeks worked by all settlement class members during the class period.
There will be no reversion of any of the gross settlement amount or net settlement fund to defendants. The calculation of a class member's weeks employed will be construed from defendants' records.
11. How Can I Get Payment?
You do not need to take any action to qualify for payment. However, if you dispute any of the information contained at the top of this notice, you must submit any explanation (including preferably documentation) by ______, 2015 [45 calendar days after the initial mailing] to the settlement administrator in order to challenge your weeks, upon which your share was calculated. The settlement administrator's contact information is contained in section 14 below. The administrator can explain to you how to submit your dispute. If you do not submit materials by that date, your share will be calculated based on the weeks stated on page 1 in the shaded box.
California law protects class members from retaliation based on their decision to participate in a class action settlement.
12. When Would I Get My Payment?
The Court will hold the final approval hearing at 9:00 a.m. on March 4, 2016 in Courtroom 8 of the United States District Court for the Eastern District of California, Robert E. Coyle United States Courthouse, 2500 Tulare Street, Sixth Floor, Fresno, California 93721, to decide whether to approve the settlement.
If the Court approves the settlement, your payments will be made to you soon after that decision is final. If there is an objection or appeal, it may take longer, perhaps much longer if there is an appeal.
13. What Rights Do I Give Up If I Participate or Do Nothing?
Unless you exclude yourself, you will remain a settlement class member, and you will be bound by the terms of the settlement, including the released claims described below. That means that you will be unable to sue, or to continue to sue, or be part of any other lawsuit about the released claims. It also means that all of the Court's orders will apply to you and legally bind you.
Released Claims
All claims that are or could have been alleged in the operative complaint based on the factual allegations in the complaint, commencing January 25, 2010 and through the date of an order finally approving the settlement. The "released claims" include the foregoing released claims, the claims listed in paragraph I.2. of the Settlement Agreement, and claims for attorney's fees, litigation costs, penalties, and interest, as alleged or that could have been alleged in the operative complaint based on the factual allegations in the complaint. A copy of the complaint is available on the settlement administrator's website:
14. How Do I Exclude Myself from the Settlement?
If you do not wish to participate in the settlement, you may exclude yourself (generally called "opting out") by submitting a written opt-out request to the settlement administrator. Your request for exclusion must (a) be in writing; (b) state your name, address and telephone number; (c) request exclusion from the class saying words to the effect of "I wish to opt out of the Class in Richardson v. THD"; (d) be post-marked no later than [45 calendar days after the initial mailing]; and (e) be signed and dated.
You must sign the request for exclusion personally and may not have someone sign for you, nor may you submit a request for exclusion on behalf of a group. Your request for exclusion must be signed and returned via United States first class mail postmarked no later than _______, 2015 [45 calendar days after initial mailing] to:
If you submit a timely request for exclusion, then upon its receipt you will no longer be a member of the settlement class, you will not give up the released claims (because you will not be part of this settlement), you will be barred from participating in any portion of the settlement, you may not object and you will receive no benefits from the settlement. If you wish, you may pursue, at your own expense, any claims you may have against defendants. If you do not submit a complete and timely written request for exclusion, you will be included in the settlement class, and be bound by the terms of the settlement (including the released claims described in section 13 herein), whether or not you objected to the settlement.
Do not submit both an objection and request for exclusion. If you submit both, the request for exclusion will be valid, and you will be excluded from the settlement class.
15. When Is the Final Approval and Fairness Hearing?
The Court will hold the final approval hearing in Courtroom 8 of the United States District Court for the Eastern District of California, Robert E. Coyle United States Courthouse, 2500 Tulare Street, Sixth Floor, Fresno, California 93721, at 9:00 a.m. on March 4, 2016 or such other, later date as the Court may authorize, to determine whether the settlement is fair, reasonable, and adequate; and if there are objections, the Court will consider them. The Court will also be asked to approve class counsel's request for attorneys' fees and litigation costs, the class representative's enhancement payment, settlement administration costs, and the PAGA payment.
The hearing may be continued without further notice to settlement class members. It is not necessary for you to appear at this hearing.
16. How Do I Object to the Settlement and Appear at the Final Approval and Fairness Hearing?
You may object to the terms of the settlement before the final approval hearing. However, if the Court rejects your objection, you will still be bound by the terms of the settlement. To object, you must file a written objection no later than ______, 2015 [45 calendar days after initial mailing].
All objections to the settlement must be filed by mailing them to the Clerk of the Court, who will file objections on the Court's electronic filing system and provide notice to all counsel of record. Objections must be mailed to the following address: Robert E. Coyle United States Courthouse, 2500 Tulare Street, Sixth Floor, Fresno, California 93721. If mailed, the objection must be deposited for first class delivery, postage prepaid, such that it is postmarked on or prior to the [45 calendar days after initial mailing] deadline. Objections must state their basis and if you intend to appear in person or by counsel at the final approval hearing, you must include such fact and state the purpose for your appearance in the objection. Objectors do not need to appear to have their objections considered. The parties will be permitted to respond in writing to all objections within the time period set by the Court. Settlement class members who fail to file timely written objections will be deemed to have waived any objections and will be foreclosed from making any objection to the settlement. DO NOT TELEPHONE THE COURT.
You do not have to attend the hearing, but you may do so at your own expense. If you file an objection, you do not have to come to Court to talk about it. As long as you submitted your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.
If the Court approves the settlement despite any objections, you will receive your settlement payment and will be bound by the terms of the settlement. You cannot both object and exclude yourself from the settlement class. If you submit an objection and a request for exclusion, the request for exclusion will be valid, and you will be excluded in from the settlement class.
17. How Do I Get Additional Information?
The above is a summary of the basic terms of the settlement. For the precise terms and conditions of the settlement, you should consult the detailed Settlement Agreement, which is on file with the Clerk of the Court and available on the Court's Case Management/Electronic Case Files system online, No. 1:14-cv-00273-BAM. The pleadings and other records in this litigation, including the settlement agreement, may be examined at any time during regular business hours at the Office of the Clerk of the United States District Court for the Eastern District of California, or accessed on the Court's Case Management/Electronic Case Files system online, ecf.caed.uscourts.gov.
If you have any questions, you can call the settlement administrator at (800) _____ or any of class counsel at the following:
PLEASE DO NOT WRITE OR TELEPHONE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION REGARDING THIS SETTLEMENT OR THE CLAIM PROCESS.