[REVISED] [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
VINCENT CHHABRIA, District Judge.
The Motion for Preliminary Approval of Class Action Settlement, filed by Plaintiffs Steve Rulli, Jose Buenrostro, Edwin Bump, and Enrique Cruz ("Plaintiffs"), came on for hearing regularly in Courtroom 6 of the above captioned court, the Honorable Vincent Chhabria presiding. Defendant Nielsen Company (US), LLC ("Nielsen" or "Defendant") does not oppose the motion.
On April 22, 2014, Plaintiffs filed a complaint against Nielsen on behalf of themselves and other employees. Plaintiffs allege, among other things, that employees are owed compensation for hours worked (including regular wages, minimum wages and overtime wages), meal periods, rest breaks, untimely final pay and inaccurate itemized wage statements, and related penalties. The lawsuit seeks damages for lost wages, interest, penalties, injunctive relief, and attorneys' fees and expenses. Defendant denies all of Plaintiffs' claims.
After initial exchanges of information, the Parties entered into private mediation before respected neutral mediator Mark Rudy, Esq. to try and resolve the claims. As a result of that mediation on September 16, 2014, and under the auspices of Mr. Rudy, the Parties reached a settlement. The Parties then entered into a Stipulation of Settlement and Release on or around November 6, 2014.
A preliminary hearing was held before this Court on December 18, 2014 at 10:00 a.m., for the purpose of determining, among other things, whether the proposed Stipulation of Settlement was within the range of possible approval and whether notice to the Class of its terms and conditions, and the scheduling of a formal fairness hearing, also known as a final approval hearing, will be appropriate. Appearing at the hearing was counsel for Orrick, Herrington & Sutcliffe LLP on behalf of Defendant; and counsel for Goldstein, Borgen, Dardarian & Ho on behalf of Plaintiffs and the Class.
At the hearing, the Court made several suggestions for revising the proposed class action settlement agreement and for revising the proposed class notice. The Court denied the motion for preliminary approval but without prejudice to its renewal by means of an administrative motion without a further hearing (Dkt. No. 42). The Court requested that counsel resubmit these documents once revised pursuant to the Court's suggestions. The parties have agreed to the revisions (attached) and to the filing of the suggested administrative motion, filed on December 24, 2014.
Having reviewed the papers and documents presented, having heard the statements of counsel, having considered the matter, including the renewed motion submitted pursuant to L.R. 7-11, the Court HEREBY ORDERS as follows:
1. The Court hereby GRANTS Preliminary Approval of the terms and conditions contained in the Stipulation of Settlement (as modified by the Amendment to Stipulation of Settlement and Release dated December 23, 2014), attached hereto as Exhibit 1. The Court preliminarily finds that the terms of the Stipulation of Settlement (as amended) appear to be within the range of possible approval, pursuant to Federal Rule of Civil Procedure 23, the Fair Labor Standards Act and applicable law.
2. The Court finds on a preliminary basis that: (1) the settlement amount is fair and reasonable to the Class Members when balanced against the probable outcome of further litigation relating to class certification, liability and damages issues, and potential appeals; (2) significant informal discovery, investigation, research, and litigation have been conducted such that counsel for the Parties at this time are able to reasonably evaluate their respective positions; (3) settlement at this time will avoid substantial costs, delay, and risks that would be presented by the further prosecution of the litigation; and (4) the proposed Settlement has been reached as the result of intensive, serious, and non-collusive negotiations between the Parties. Accordingly, the Court preliminarily finds that the Stipulation of Settlement (as amended) was entered into in good faith.
3. The Court hereby GRANTS conditional certification of the provisional California Class and California FLSA Class, in accordance with the Stipulation of Settlement (as amended), for the purposes of this Settlement only. The California Class is defined as "all current and former employees employed in field representative, field quality specialist and/or market quality specialist positions or senior variations of those titles by Defendant in California between April 22, 2010 and the date of Preliminary Approval of the Settlement or December 31, 2014, whichever is earlier, and who did not previously execute general releases" and the California FLSA Class is defined as "all current and former employees employed in field representative, field quality specialist and/or market quality specialist positions or senior variations of those titles by Defendant in California between January 9, 2011 and the date of Preliminary Approval of the Settlement, whichever is earlier."
4. The Court hereby authorizes the retention of Rust Consulting as Settlement Administrator for the purpose of the Settlement with reasonable administration costs estimated not to exceed $10,000.00.
5. The Court hereby conditionally appoints Goldstein, Borgen, Dardarian & Ho and Shavitz Law Group, P.A. as counsel for the Class, and Plaintiffs as class representatives for the Class.
6. The Court hereby APPROVES the (Revised) Notice attached hereto as Exhibit A. The Court finds that the (Revised) Notice, along with the related notification procedure contemplated by the Stipulation of Settlement (as amended), constitute the best notice practicable under the circumstances and are in full compliance with the applicable laws and the requirements of due process. The Court further finds that the (Revised) Notice appears to fully and accurately inform the Class Members of all material elements of the proposed Stipulation of Settlement, of the California Class Members' right to be excluded from the Settlement, and of each California Class Member's right and opportunity to object to the Settlement. Subject to the terms of the Stipulation of Settlement, the (Revised) Notice shall be mailed via first-class mail to the most recent known address of each Class Member within the timeframe specified in the Stipulation of Settlement (as amended). The parties are authorized to make non-substantive changes to the proposed Class Notice that are consistent with the terms of the Settlement and this Order.
7. The Court hereby APPROVES the proposed procedure for California Class Member exclusion from the Settlement, which is to submit a written statement requesting exclusion to the Settlement Administrator no later than sixty (60) days following the date on which the Settlement Administrator first mails the Notice Packet to California Class Members. Any California Class Member who submits an Exclusion Letter shall not be a Member of the California Class, shall be barred from participating in the California Class Settlement and shall receive no benefit from the California Class Settlement.
8. The Court hereby APPROVES the proposed California Class Form and California FLSA Opt In Form for use in administering the Settlement, attached hereto as Exhibit B and C. The applicable documents must be mailed to Class Members along with the Notice. Subject to the terms of the Stipulation of Settlement, California FLSA Class Members must sign, date and return completed California FLSA Opt In Forms to the Settlement Administrator postmarked no later than sixty (60) days following the date on which the Settlement Administrator first mails the Notice Packets to Class Members in order to receive a monetary payment. The parties are authorized to make non-substantive changes to the proposed California Class Form and California FLSA Opt In Form that are consistent with the terms of the Settlement and this Order.
9. The Court further ORDERS that Class Counsel shall file a motion for approval of the Fee and Expense Award and the Service Payment, with the appropriate declarations and supporting evidence, at least fourteen (14) days prior to the close of the Class Notice period to be heard at the same time as the motion for Final Approval of the Settlement.
10. The Court further ORDERS that Class Counsel shall file a motion for Final Approval of the Settlement, with the appropriate declarations and supporting evidence, including a declaration setting forth the identity of any California Class Members who request exclusion from the Settlement, by April 16, 2015.
11. The Court further ORDERS that each California Class Member shall be given a full opportunity to object to the proposed Settlement and request for attorneys' fees, and to participate at a Final Approval Hearing, which the Court sets to commence on May 21, 2015 at 10:00 a.m. in Courtroom 4 of the United States District Court, Northern District of California, San Francisco Division. Any California Class Member seeking to object to the proposed Settlement may file such objection in writing with the Court and shall serve such objection on Class Counsel and Defendant's Counsel or may appear at the Final Approval Hearing to make the objection.
12. Accordingly, GOOD CAUSE APPEARING, the Court hereby APPROVES the Revised proposed Class Notice and adopts the following dates and deadlines:
Deadline Action
Within fourteen (14) calendar days Defendant shall provide to the Settlement
after entry of the order granting Administrator a list of all Class Members,
Preliminary Approval including their name, social security number, last
known address, telephone number, and Individual
Work Weeks.
Within fourteen (14) calendar days The Settlement Administrator will send the Notice
of receipt of the Class Member list Packet via first class mail to all Class Members.
At least 14 days prior to the close of Class Counsel will file a motion seeking approval
the Opt In Deadline and Exclusion of their Fee and Expense Award and the proposed
Deadline Service Payments to the Plaintiffs.
Sixty (60) days following the date Exclusion Deadline: deadline for California Class
on which the Settlement Members to request exclusion from the Settlement.
Administrator first mails the Notice
Packet to Class Members Opt In Deadline: deadline for California FLSA
Class members to opt into the Settlement.
Within fifteen (15) calendar days If five or more of the California Class Members
after the Settlement Administrator submit an exclusion letter, Nielsen will have the
notifies the Parties of the number of option of canceling the Settlement.
Exclusion Letters received
April 16, 2015 Plaintiffs will move the Court for entry of Order of
Final Approval and Judgment.
May 21, 2015 Final Approval Hearing.
13. The Court further ORDERS that, pending further order of this Court, all proceedings in this Lawsuit, except those contemplated herein and in the Stipulation of Settlement, are stayed.
14. The Court further ORDERS that to facilitate administration of this Settlement, all California Class Members are hereby enjoined from filing or prosecuting any claims, cases, suits or administrative proceedings (including filing or pursuing claims with the California Division of Labor Standards Enforcement) regarding claims released by the Settlement unless and until such California Class Members have submitted Exclusion Letters with the Settlement Administrator.
15. If for any reason the Court does not execute and file a Final Approval Order and Judgment, the proposed Settlement subject to this Order and all evidence and proceedings had in connection with the Settlement shall be null and void.
16. The Court may, for good cause, extend any of the deadlines set forth in this Order or adjourn or continue the final approval hearing without further notice to the Class.
IT IS SO ORDERED.
Exhibit 1
Exhibit A
Exhibit B
Exhibit C
