ORDER GRANTING PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT
JOHN A. MENDEZ, District Judge.
Plaintiff Stephen Russell's Motion for Preliminary Approval of Class and Collective Action Settlement ("Motion for Preliminary Approval") came on for hearing on May 8, 2018, at 1:30 p.m., before the honorable John A. Mendez, Robert J. Wasserman appeared on behalf of Plaintiff Stephen Russell ("Plaintiff") and Jeffrey Fuchsman appeared on behalf of Defendant KeHE Distributors, Inc. ("Defendant"). The Court, having fully and carefully reviewed Plaintiff's Motion for Preliminary Approval, the memorandum and declarations in support thereof, the Settlement Agreement including the proposed California Class Notice, FLSA Class Notice, and Claim Form, as well as Defendant's Notice of Non-Opposition thereto, hereby makes the following determinations and orders1:
1. Plaintiff Stephen Russell is preliminarily appointed as Class Representative.
2. Mayall Hurley P.C., by and through Lead Counsel Robert J. Wasserman, William J. Gorham, III, Nicholas J. Scardigli, Vladimir J. Kozina, and John P. Briscoe, are hereby preliminarily approved and appointed as Class Counsel.
3. Atticus Administration, LLC is appointed as the Settlement Administrator and shall administer the Settlement in accordance with the terms set forth in the Settlement Agreement and perform the functions set forth therein. The Court also preliminarily approves declared fees and costs of administering the Settlement of up to $26,500.
4. The class of employees covered by the Parties' Settlement consists of (i) all hourly, nonexempt employees of Defendant that (a) received non-discretionary bonuses and commissions, (b) worked over overtime during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime, and (ii) all California employees of Defendant that received one or more electronic wage statements between June 7, 2016 and July 10, 2017. It is estimated that there are 3,555 total class members.
5. Pursuant to Federal Rules of Civil Procedure, Rule 23, and for purposes of settlement only, the following subclasses, collectively referred to as the California Class, are preliminarily and conditionally certified.
a. All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime (the California Regular Rate Class").
b. All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, (c) the non-discretionary bonuses and commissions were not included in their regular rate of pay when calculating their overtime, and (d) no longer work for Defendant (the "California Former Employee Class").
c. All employees of Defendant that worked in California and both (a) were paid by direct deposit and (b) received their wage statement(s) electronically rather than along with live paychecks during at least one pay period from June 7, 2016 through July 10, 2017 and are not part of the California Regular Rate Class or the California Former Employee Class (the "California Wage Statement Class").
The California Class is estimated to include approximately 1,660 individuals.
6. The Court grants preliminary approval of the Settlement between Plaintiff and Defendant KeHE Distributors, Inc. ("Defendant"), based upon the terms set forth in the Settlement Agreement.
a. As to the California Class, the Settlement Agreement appears to be fair, adequate and reasonable, and the Court preliminarily approves the terms of the Settlement Agreement.
b. The Court approves, as to form and content, the California Class Notice, in substantially the form attached to the Settlement Agreement as Exhibit 1. The Court further approves the procedure by which California Class Members may opt out of, and to object to, the Settlement as set forth in the Settlement Agreement and the California Class Notice.
7. Pursuant to 29 U.S.C. § 216(b), and for purposes of settlement only, the FLSA Class, as defined below, is preliminarily and conditionally certified.
a. All hourly, non-exempt employees of Defendant that worked outside of California, and (a) received non-discretionary bonuses or commissions, (b) worked over 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate pay when calculating their overtime, (the "FLSA Class"),
The FLSA Class is estimated to include approximately 1,990 individuals.
8. As to the FLSA Class, the Settlement Agreement appears to be fair, adequate and reasonable, and the Court preliminarily approves the terms of the Settlement Agreement.
a. As to the FLSA Class, the Settlement Agreement appears to be fair, adequate and reasonable, and the Court preliminarily approves the terms of the Settlement Agreement.
b. The Court approves, as to form and content, the FLSA Class Notice and Consent and Claim Form, in substantially the form attached to the Settlement Agreement as Exhibits 2 and 3, respectively. The Court further approves the procedure by which FLSA Class Members may consent to join the lawsuit and claim a share of the Net Settlement Amount.
9. The Court directs the mailing of the California Class Notice, FLSA Class Notice, and Consent and Claim Form in accordance with the terms of the Settlement Agreement and on the schedule set forth below. The Court finds the dates selected for the mailing and distribution of the California Class Notice, FLSA Class Notice, and Consent and Claim Form, as set forth below, meet the requirements of due process and provide the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons entitled thereto.
10. Subject to further consideration by the Court at the time of the Final Approval Hearing, the proposed PAGA allocation and payment to the LWDA is preliminarily approved.
11. Subject to further consideration by the Court at the time of the Final Approval Hearing, the proposed Service Payment of $7,500, or .55% of the Maximum Settlement Amount, to Plaintiff or his service as Class Representative is preliminarily approved.
12. Subject to further consideration by the Court at the time of the Final Approval Hearing, Class Counsel's request of attorneys' fees in the amount of 25% of the Maximum Settlement Amount, or $337,500, and declared costs of up to $20,000, are preliminarily approved.
13. The Court adopts the following dates and deadlines:
Defendant to provide Class List to the Within 10 calendar days of the Court's execution of
Settlement Administrator. the Order Granting Preliminary Approval.
Settlement Administrator to mail California Within 10 calendar days of its receipt of the Class
Class Notice, FLSA Class Notice, and Consent List from Defendant.
and Claim Form and establish the website.
Settlement Administrator to mail the reminder Within 30 calendar days of its mailing of the FLSA
postcard to the FLSA Class Members. Class Notice.
Deadline for California Class Members to Within 45 calendar days after the mailing of the
object to, or opt out of, the Settlement. California Class Notice.
Deadline for FLSA Class Members to Consent Within 45 calendar days after the mailing of the
to join and claim a share of the Net Settlement FLSA Class Notice and Consent and Claim Form.
Amount.
Plaintiff to file Motion for Attorneys' Fees, Not less than 35 calendar days after the mailing of
Costs and Service Payment. the California Class Notice and FLSA Class Notice.
Deadline for Plaintiff to file Motion for Final Not less than 28 calendar days before the Final
Approval. Approval hearing.
Final Approval Hearing. Not less than 105 days after the Court's execution of the
Order Granting Preliminary Approval.
14. A Final Approval hearing on the question of whether the proposed Settlement, attorneys' fees to Class Counsel, and the Class Representative's Service Payment should be finally approved as fair, reasonable and adequate is scheduled in for October 2, 2018 at 1:30 p.m.
15. The parties to the Agreement are directed to carry out their obligations under the Settlement Agreement.
