VIRGINIA K. DEMARCHI, Magistrate Judge.
Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez, and Jose Lopez filed this hybrid class action and collective action for alleged wage and hour violations under various provisions of the California Labor Code and the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Defendants are Severo C. Ozuna and the Don Vito Ozuna Food Corporation.
On plaintiffs' initial unopposed motion for preliminary approval of settlement (Dkt. No. 40), the Court conditionally certified a Rule 23 class action and FLSA collective action, designated the named plaintiffs as class representatives, appointed plaintiffs' counsel as class counsel, and reserved judgment on plaintiffs' request for attorneys' fees, costs and expenses, as well as their request for service awards. Dkt. No. 52. The Court otherwise denied plaintiffs' motion for preliminary approval, without prejudice, and noted several items of particular concern. Id.
Before the Court is plaintiffs' renewed motion for preliminary approval of the settlement. Dkt. No. 53. In addressing one of the Court's noted concerns, plaintiffs have provided their calculations underlying defendants' total estimated exposure, if this case were to proceed to trial. In their renewed motion, plaintiffs now explain that:
Although plaintiffs provided one set of numbers to the Court (recited above), they proceeded to use different, albeit somewhat similar numbers, in their actual calculations. Nevertheless, using the numbers provided above and inserting those numbers into plaintiffs' proffered formulas, the Court finds that plaintiffs' estimated damages are roughly accurate, and slightly lower than the numbers provided in their renewed motion:
Based on these calculations, plaintiffs estimate that their potential recovery for all claims could be about $2 million. However, certain downward adjustments were made to account for the weakness of plaintiffs' claims for meal and rest break violations. Specifically, plaintiffs state that defendants' records show that employees regularly took meal and rest breaks, and thus do not support meal or rest break violations, which appear to comprise approximately one-third of their claimed damages. Additionally, plaintiffs say that their analysis of defendants' records indicates that defendants paid a considerable portion of overtime in cash. Based on Mr. Ozuna's scribbled handwritten notes and payment method, plaintiffs' counsel estimates that defendants might be able to prove that class members are owed only $500,000.
Plaintiffs' renewed motion for preliminary approval apparently is unopposed. Upon consideration of the moving papers, as well as the parties' Amended Joint Stipulation for Class Action Settlement and Release ("Amended Agreement"), attached hereto as Exhibit A and incorporated herein by reference, and good cause appearing based on the record presented, the Court grants plaintiffs' renewed motion for preliminary approval.
IT IS SO ORDERED.
This Amended Joint Stipulation for Class Action Settlement and Release of Claims ("Stipulation") is entered into by and among Plaintiffs Rodrigo Camilo, Alvaro Camila, Ricardo Sanchez and Jose Manuel Lopez ("Plaintiffs" or "Class Representative"), on their own behalf and as representatives of the putative class described herein, on the one hand, and Defendants Don Vito Ozuna Corporation and Severo Ozuna ("Defendants" or "Defendant"), on the other hand. Plaintiffs are represented herein by the Law Offices of James Dal Bon and Victoria Booke of Booke & Ajlouny ("Class Counsel"). Defendants are represented by Steven Friedlander, Stacey Zartler, and Tatyana Shmygol of the SV Employment Law Firm PC ("Defendants' Counsel").
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the Class Representatives on the one hand, and Defendants on the other hand, with the assistance of their respective counsel of record, that, among the Settling Parties, including all Settlement Class Members, the Lawsuit and the Released Claims shall be finally and fully compromised, settled and released, subject to the terms and conditions of this Stipulation and the Judgment.
1. "Claim Form" means the Claim Form attached hereto as
2. "Claims Administrator" means the third-party administrator CPT Group or other Court approved administrator that will administer the settlement as set forth below. "Class Counsel" means the Law Offices of James Dal Bon and Booke & Ajlouny.
4. "Class Notice" means the Notice of Proposed Class Action Settlement attached hereto as
5. "Complaint" means the Complaint filed in the case entitled Camilo et al. vs. Don Vito Ozuna Food Corporation et al., currently pending in District Court for the Norther District of California, Case No. 18-CV-02842-VKD ("the Class Action.").
6. "Final Approval" means ten (10) days after the date of (i) the Court's order granting final approval of the settlement, if there arc no objections to the settlement; (ii) if there are objections to the settlement, then upon expiration of the time to appeal the Court's order granting final approval; or (iii) if there is any appeal by any party or any objector, then upon final resolution of any appeal from the Court's final approval order.
7. "FLSA Class Members" means: All individuals who are employed or have been employed by Defendants as non-exempt hourly employees involved in the tortilla and chip manufacturing process during FLSA Class Period who allege violations under the Fair Labor Standards Act ("FLSA") as described in claim One of the Complaint.
8. "FLSA Opt-In Class Members" means: All FLSA Class Members who filed a valid and timely Claim Form with the Claims Administrator to register their claim for recovery from the FLSA Opt-In Settlement Amount pursuant to Section B, below.
9. "FLSA Class Period" is from May 14, 2015 through March 19, 2019.
10. "FLSA Carve Out Period" shall mean the time between November 22, 2014 and November 19, 2016 for the FLSA Opt-In Class Members who already received payment for their FLSA cause of action for that time period.
11. "FLSA Net Settlement Fund" means the 33% portion of the Net Settlement Fund reserved for the FLSA Opt-In Class Member.
12. "Individual Settlement Amount" is the gross amount of money to which each Rule 23 Class Member and FLSA Opt-In Class Member may be entitled, including any taxes withheld. Individual Settlement Amounts will be determined by the formula described more fully herein in Section F below.
13. "Net Settlement Fund" shall mean the amount left over from the Settlement Sum from which the Rule 23 Settlement Class Members and the FLSA Opt-In class Members will be paid their Individual Settlement Amount after deduction from the Qualified Settlement Fund of the amounts paid as (1) Settlement Administration Costs; (2) Attorneys' Fees and Costs; (3) and Service Awards to the Class Representatives.
14. "Parties" or "Settling Parties" refers collectively to Plaintiffs and Defendants.
15. "Qualified Settlement Fund" refers to the settlement fund from which all amounts to be paid by Defendant from the Settlement Sum shall be paid by the Claims Administrator pursuant to this Stipulation.
16. "Qualifying Work Week" means any week in which an individual actively worked at least one day of the week (i.e., was not on a leave of absence) as a non-exempt employee working in the tortilla and chip manufacturing process during the Rule 23 Class Period and the FSLA Opt In Class Period according to Defendants' records.
17. "Rule 23 Class Members" means: All individuals who are employed or have been employed by Defendants as non-exempt hourly employees involved in the tortilla and chip manufacturing process between May 14, 2014 and March 19, 2019 and who allege violations under California law as described in claims Two through Seven of the Complaint.
18. "Rule 23 Settlement Class Members" mean all Rule 23 Class Members, as defined herein, who do not submit a Request for Exclusion from the Rule 23 Class, or who submit a Request for Exclusion but rescind it in a timely manner.
19. "Rule 23 Net Settlement Fund" means the 67% portion of the Net Settlement Fund reserved for the Rule 23 Class Settlement Members.
20. "Rule 23 Class Period" is from May 14, 2014 through March 19, 2019.
21. "Settlement," "Settlement Agreement," or "Stipulation" means this Joint Stipulation for Class Action Settlement and Release of Claims, including the attached Exhibits"
22. "Settlement Sum" means the maximum amount to be paid by Defendant in settlement of the Class Action and all claims stated therein and shall be $375,000.00.
23. "Released Claims" means any and all claims contained in the Complaint, and any additional wage and hour claims that could have been brought by the Class Representatives, the Rule 23 Settlement Class Members or the FLSA Opt-In Class Members based on the facts alleged in the Complaint, for the time period of May 14, 2014 to March 19, 2019. "Released Claims" includes any and all claims for relief, whether suspected or unsuspected, which settlement class members have had, now have, or may discover in the future against the Released Parties or any of them for any or all claims alleged in the Complaint or which could have been alleged in the Complaint based on the allegations, facts, matters, transactions or occurrences alleged therein, and shall specifically include without limiting the generality thereof: claims for failure to pay wages (including without limitation, regular wages, the regular rate of pay, minimum wage, overtime pay, double time pay, premium pay or otherwise properly calculate overtime or the regular rate of pay, failure to pay employees for all hours worked, and/or off-the-clock claims), failure to provide meal or rest periods compliant with California law, failure to properly pay all wages upon termination or timely pay wages owed, waiting time penalties, failure to maintain or provide accurate itemized wage statements, failure to maintain records, failure to reimburse expenses, and unfair competition claims based on the foregoing. The Release of the foregoing claims extends to all theories of relief regardless of whether the claim is, was, or could have been alleged as separate claims, causes of action, lawsuits or based on other theories of relief, whether under California law, federal law, state law or common law (including, without limitation, as violations of the California Labor Code, the California Wage Orders, applicable regulations, California's Business and Professions Code section 17200, and, with the exception for those FLSA Class Members who did not opt-in to that portion of the settlement, the Fair Labor Standards Act). "Released Claims" includes all types of relief available for the above-referenced claims, including, without limitation, any claims for damages, restitution, losses, penalties, fines, liens, attorneys' fees, costs, expenses, debts, interest, injunctive relief, declaratory relief, or liquidated damages. "Released Claims" also includes an express waiver of all benefits under section 1542 of the California Civil Code as to the Settled Claims only, as well as under any other federal or state statutes or common law principles of similar effect. Section 1542 provides as follows:
The Final Judgment shall expressly provide that it covers and bars each and every Rule 23 Settlement Class Member and FLSA Opt-In Class Member from asserting any Released Claims in the future. This release shall not apply to the FLSA cause of action for those FLSA Class Members who did not opt-in to that portion of the settlement.
24. "Released Parties" means Don Vito Ozuna Corporation and Servero Ozuna, and each of their past, present and future employees, insurers, co-insurers, reinsurers, attorneys, accountants, auditors, advisors, representatives, consultants, pension and welfare benefit plans, plan fiduciaries, administrators, trustees, partners, successors, and assigns.
25. "Request for Exclusion" means a request by a Rule 23 Class Member to he excluded from the Rule 23 Settlement Class.
26. Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez and Jose Manuel Lopez filed a class action Complaint in United States District Court for the Northern District of California on May 14, 2018 against Defendants Don Vito Ozuna Corporation and Severo Ozuna.
27. Plaintiffs alleged a total of seven causes of action on their behalf and on behalf of all similarly situated current and former employees of Defendants working as non-exempt employees in the tortilla and chip manufacturing process for (1) Failure to Pay All Wages In Violation of the Fair Labor Standards Act; (2) Failure to Properly Pay Minimum and Overtime Wages under California State Law; (3) Failure to Pay Wages Due at the End of Employment and "Waiting Time" Penalties; (4) Failure to Provide Accurate California Itemized Employee Wage Statements; (5) Failure to Provide Meal Periods or Compensation In Lieu Thereof; (6) Failure to Provide Rest Periods or Compensation In Lieu Thereof; and (7) Violations of California Business & Professions Code Section 17200.
28. The Complaint alleges, inter alia, that Plaintiffs and the class members were not paid all wages owed for time worked, including overtime wages, and were not provided with the required off-duty rest and meal periods.
29. Defendants at all times denied Plaintiffs' and the Rule 23 Class Member's and FLSA Class Member's claims and asserted that the case should not be certified as a class action. In settling this Class Action, Defendants maintain these positions.
30. Class Counsel conducted a thorough investigation into the facts of the Class Action, including extensive investigation, interviews, discovery and exchange of information and documents. The investigation included review of thousands of pages relevant documents, including written policies and procedures, time records, and payroll records. Class Counsel further investigated the facts alleged in the Complaint by conducting multiple interviews of named plaintiffs and potential class members.
31. The Parties participated in a full-day mediation on December 12, 2018 before respected mediator, Hon. George Hernandez (Ret). After a full day of arms-length negotiations assisted by Judge Hernandez, the Parties agreed to the settlement in general terms memorialized in a Memorandum of Understanding, which are now specified in detail in this Stipulation.
32. After careful consideration, investigation, and mediation, the Class Representatives and Class Counsel have concluded that it is desirable that this Class Action be settled in the manner and upon the terms and conditions set forth in this Stipulation. Both the Class Representatives and Class Counsel believe that the settlement set forth in this Stipulation is fair, reasonable, and adequate, and confers substantial benefits upon the Rule 23 Settlement Class Members and the FLSA Opt-In Class Members.
33. It is the desire of the Parties to settle the Released Claims against the Released Parties.
34. Defendants deny all the claims and contentions alleged by the Class Representatives in the Complaint. Nonetheless, Defendants have concluded that further litigation of the Class Representatives' and the Rule 23 and FLSA Class Members' claims encompassed by this Stipulation would be protracted and expensive and would also divert management and employee time. Defendants have taken into account the uncertainty and risks inherent in litigation and have, therefore, concluded that it is desirable that the Class Action be settled in the manner and upon the terms and conditions set forth in this Stipulation.
35. The Class Representatives and Class Counsel believe that the claims asserted in this Class Action have merit. The Class Representatives and Class Counsel, however, recognize and acknowledge the significant expense and length of continued proceedings necessary to prosecute the litigation of the claims against Defendants through trial and through appeal. The Class Representatives and Class Counsel are also mindful of the inherent problems of proof and possible defenses to the claims and to class certification.
36. Class Counsel are knowledgeable about, and have done extensive research with respect to, the applicable law and potential defenses to the claims of the Rule 23 Class Members and FSLA Class Members. Class Counsel have diligently pursued an investigation of the Rule 23 Class Members' and FSLA Class Members' claims against Defendants. The Parties recognize the inherent risk in proceeding with wage and hour class action litigation based on the current uncertainty of California jurisprudence in wage and hour law. The Parties agree that the settlement set forth herein adequately balances the risk of proceeding with the Class Action against any potential recovery for the Rule 23 Class Members and FSLA Class Members, and, therefore, the Stipulation represents a fair and just compromise of the Released Claims.
37. The Parties and their respective counsel of record deem the Stipulation to be fair and reasonable and have arrived at the Stipulation in arms-length negotiations taking into account all relevant factors, present or potential.
38. The Parties enter into this Stipulation on a conditional basis. This Stipulation will become final and effective only upon the occurrence of both of the following events: (i) the Court enters an order granting preliminary approval of the settlement reflected in the Stipulation and (ii) the Court enters an order granting final approval of the settlement reflected in the Stipulation. Unless the Court orders otherwise, this Stipulation shall be deemed null and void ab initio upon the failure of any of these conditions to occur.
39. The Parties stipulate to class certification for purposes of this Stipulation only. The Class Representatives and Class Counsel shall apply to the Court for approval of the Stipulation and for class certification of the Rule 23 Settlement Class and the FLSA Opt-In Class only for purposes of effectuating this Stipulation. If the Court does not grant preliminary approval or final approval of the Settlement reflected in this Stipulation, the Parties agree that class certification will automatically be deemed not to have been granted. Defendants expressly reserve their right to oppose certification of any purported class or collective should this Stipulation not become final and effective.
40. The Parties agree to settle this Class Action for a maximum and all-inclusive amount of Three Hundred and Seventy-Five Thousand Dollars ($375,000.00) (the "Settlement Sum") to be paid by Defendants. The Settlement Sum includes attorney's fees, costs and expenses directly related to the Class Action, which includes all such fees and costs incurred to date, as well as all such fees and costs incurred in documenting the settlement, securing court approval of the settlement, administering the settlement, and obtaining a dismissal of the action, the service payments to the Class Representatives, and the employer's portion of all state and federal payroll taxes.
41. All amounts to be paid by Defendant from the Settlement Sum shall be paid to a Qualified Settlement Fund which shall be administered by the Claims Administrator. All amounts to be paid to anyone pursuant to this Stipulation shall be paid out of the Qualified Settlement Fund.
42. The Settlement Administration costs are estimated to be between Ten Thousand Dollars and Fifteen Thousand Dollars ($10,000-$15,000). All Settlement Administration Costs shall also be paid out of the Qualified Settlement Fund.
43. Subject to Court approval, Class Representatives Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez and Jose Manuel Lopez shall receive Service Awards of five thousand dollars (5,000) each.
44. The Service Awards to the Class Representatives shall be paid by the Claims Administrator out of the Qualified Settlement Fund no later than fifteen (15) days after Final Approval.
45. The Claims Administrator will report the Service Awards on Forms 1099, which it will provide to the Class Representatives and to the pertinent taxing authorities as required by law.
46. Subject to Court approval, Class Counsel will be paid up to $112,500 for attorney's fees, and an additional amount for reasonable litigation costs not to exceed $10,000. Defendants will not oppose Class Counsel's application to the Court for such attorney's fees and litigation costs.
47. Subject to Court approval, any court-ordered attorney's fees and costs shall be paid out of the Qualified Settlement Fund within fifteen (15) days of Final Approval.
48. Rule 23 Settlement Class Members shall be paid their Individual Settlement Amounts from the Rule 23 Net Settlement Fund.
49. FLSA Opt-In Class Members shall be paid their Individual Settlement Amounts from the FLSA Opt-In Net Settlement Fund.
50. Each portion of the Net Settlement Fund shall be allocated among the Rule 23 Settlement Class Members and FLSA Opt-In Class Members based on the value of the claims alleged in the Class Action on a workweek basis.
51. The Individual Settlement Amounts for each Rule 23 Settlement Class Member will be calculated by the Claims Administrator as follows: Each Rule 23 Settlement Class Member shall be entitled to receive a pro rata portion of the Rule 23 Net Settlement Fund based upon his or her respective number of Qualifying Work Weeks during the Rule 23 Class Period. This amount shall be determined by dividing the Rule 23 Net Settlement Fund by the total number of Qualifying Work Weeks worked by each Rule 23 Settlement Class Member during the Rule 23 Class Period. The resulting amount will be the dollar amount per Qualifying Work Week to which each Rule 23 Settlement Class Members will be entitled.
52. The Individual Settlement Amounts for each FLSA Opt-In Class Member will be calculated by the Claims Administrator as follows: Each FLSA Opt-In Class Member shall be entitled to receive a pro rata portion of the FLSA Opt-In Net Settlement Fund based upon his or her respective number of Qualifying Work Weeks during the FLSA Opt-In Class Period. This amount shall be determined by dividing the FLSA Opt-In Net Settlement Fund by the total number of Qualifying Work Weeks worked by each FLSA Opt-In Class Members during the FLSA Opt-In Class Period. The resulting amount will be the dollar amount per Qualifying Work Week to which each FLSA Opt-In Class Members will be entitled. Any money already received by a FLSA Opt-In Class Member from the Department of Labor for the FLSA Opt-In Carve Out Period shall be deducted from that member's payment.
53. The Qualified Settlement Fund shall be funded by two installments. Defendants' first payment of Two hundred thousand dollars, ($200,000.00) shall be due thirty days after final approval of the settlement, assuming no objection has been made and no appeal has been filed, whichever is later. Defendants' second payment of one hundred thousand seventy-five dollars ($175,000.00) shall be due on May 1, 2020. The claims administrator will distribute the settlement funds following the payment of each installment.
54. The Individual Settlement Amounts of Rule 23 Settlement Class Members and FLSA Opt-In Class Members, shall be paid no later than thirty (30) days after Defendants make each installment payment.
55. Any Remainder of the Settlement Sum, unclaimed funds, available after the first payment is to be redistributed to the Rule 23 Settlement Class Members and the FLSA Opt-In Class Members in the second payment. If fewer than all of the Rule 23 Settlement Class Members and the FLSA Opt-In Class Members fail to cash their second checks within one hundred and eighty (180) days after the checks were mailed to their last known address, the remainder of the second payment, will be redistributed to the Katharine & George Alexander Community Law Center.
56. Thirty-three percent (33%) of the portion of the Net Settlement Fund will be allocated to the FLSA Opt-In Class Members and sixty-seven percent (67%) of the Net Settlement Fund will be allocated to the Rule 23 Settlement Class Members. Payments to the FLSA Opt-In Class Members shall be construed as wages while payments to the Rule 23 Settlement Class Members will be allocated as 20% wages and 40% penalties and 40% interest. For both the Rule 23 Settlement Class Members and the FLSA Opt-In Class members the Individual Settlement Amount shall be calculated based on the number of workweeks within each respective class period. The portion of each Individual Settlement Amount representing wages will be subject to tax withholding and this portion will be reported on an IRS Form W-2, with the Claims Administrator remitting all such employment tax withholdings directly to the pertinent state and federal taxing authorities. The portion of each Individual Settlement Amount constituting interest or penalties will be reported on a Form 1099 provided to each the FLSA Opt-In Class Member who submits a Claim Form, with the required copies of the Form 1099's provided to the pertinent taxing authorities.
57. The named Plaintiffs will receive an enhancement of $5,000.
58. Any and all employer tax obligations on any amounts paid to Plaintiffs, the Rule 23 Settlement Class Members and the FLSA Opt-In Class Members (including any employer FICA or FUTA taxes owed by Defendants or by the Qualified Settlement Fund), and all costs of reporting tax information arising from this settlement, are to be paid entirely from the Settlement Sum. The Claims Administrator shall be responsible for paying any such taxes owed by Defendants and/or by the Qualified Settlement Fund (including any employer FICA or FUTA taxes) which in all cases shall be paid from the Qualified Settlement Fund in the manner and within the time prescribed by law.
59. Defendants' monetary obligation under this Stipulation is limited to the amount defined as the Settlement Sum. Defendants cannot be called upon or required to contribute additional monies to pay for costs or any other matter related to this action and the settlement thereof, above the Settlement Sum under any circumstances whatsoever.
60. All costs and expenses arising out of or in connection with the performance of this Agreement shall be paid from the Settlement Sum amounts paid by Defendants into the Qualified Settlement Fund, unless expressly provided otherwise herein.
61. The Claims Administrator will administer disbursements from the Settlement Sum amounts paid by Defendant into the Qualified Settlement Fund, including, but not limited to, distributing the Class Notice and Claim Forms, calculating claims against the Qualified Settlement Fund, preparing and issuing all disbursements to be paid to the Rule 23 Settlement Class Members, the FLSA Opt-In Class Members, Class Counsel, Class Representative, and the local state and federal payroll tax authorities, and handling inquiries about the calculation of the Individual Settlement Amounts. Class Notice and FLSA Opt-In Claim Forms must be in both English and Spanish
62. The Claims Administrator shall establish an address and toll-free telephone number to direct inquiries regarding the Class Notice, Claim Form and determination of Individual Settlement Amounts.
63. The Claims Administrator shall also be responsible for the timely filing of all federal, state and local tax returns of the Qualified Settlement Fund and making the timely payment of any and all taxes and withholdings required with such returns.
64. The Claims Administrator shall disseminate the Class Notice, which the Parties will ask the Court to approve in the form attached hereto as Exhibit A, by giving notice by first-class United States mail.
65. The Class Notice and Claim Form shall be provided to the Rule 23 Class Members and the FLSA Class Members in the following manner:
66. All costs of preparing and sending the Class Notice and Claim Forms, whether foreseen or not, shall be paid from the Settlement Sum.
67. The Class Notice and Claim Forms provided to each individual Rule 23 Class Member and FLSA Class Member, respectively shall set forth the dates of employment and the total number of Qualifying Work Weeks for each Class (as applicable), according to Defendants' records, and the estimated payment the class member shall be entitled to receive.
68. For an FLSA Class Member to receive his or her Individual Settlement Amount from the applicable FLSA Net Settlement Fund, his or her Claim Form must be signed by the Class Member or his or her authorized representative attesting that he or she is a bona fide member of the Class.
69. The Claim Form must be completed, signed and returned by mail, fax, or the designated website to the Claims Administrator post-marked no later than sixty (60) calendar days after the date the Claims Administrator mails the blank Claim Form to the FLSA Class Members.
70. Claim Forms re-mailed by the Claims Administrator must be completed, signed and returned to the Claims Administrator post-marked within sixty (60) calendar days of the initial mailing of the Claim Forms or fifteen (15) days of the re-mailing, whichever is later.
71. Any completed Claim Form that is returned to the Claims Administrator and is postmarked or faxed more than sixty (60) calendar days after the date of the initial mailing of the blank Claim Forms to FLSA Class Members, or fifteen (15) calendar days, if later, for Claim Forms re-mailed pursuant to this Stipulation, shall not be accepted and processed except for any claim form returned within five (5) calendar days of these respective deadlines shall be extended a grace period and shall be accepted as if timely.
72. If an FLSA Class Member can establish that a bona fide hardship prevented him or her from timely returning the completed and signed Claim Form to the Claims Administrator, said FLSA Class Member shall not be barred from sharing in the Net Settlement Fund, if Claims Administrator receives his or her valid Claim Form at least ten (10) calendar days before the date of the final approval hearing. Class Counsel and Defense Counsel shall be the sole arbiters of whether a bona fide hardship existed.
73. If any FLSA Class Member submits a timely but deficient or incomplete Claim Form which deviates from the instructions embodied in the Class Notice and/or Claim Form, then the Claims Administrator shall promptly mail a notice to such Class Member informing him or her of the deficiencies and that he or she has until the expiration of the claims period or fifteen (15) calendar days from the date of the mailing of the deficiency notice, whichever is later, to cure the deficiency. If the deficiency is not cured within this period, then the FLSA Claim Form will not be deemed valid and the FLSA Class Member will not participate in the FLSA Net Settlement and will not receive his or her Individual Settlement Amount from the FLSA Net Settlement
74. Unless a Rule 23 Class Member submits a timely Request for Exclusion, as described in Section D below, the Rule 23 Class Member shall automatically be deemed a Rule 23 Settlement Class Member whose rights and claims with respect to the issues raised in the Class Action are determined by the Court's Final Order, and said Rule 23 Settlement Class Member's rights to pursue any of the Released Claims shall be. However any Rule 23 Class Member that files a timely Request for Exclusion and does not opt-in to the FSLA Class will not participate in this Settlement.
75. Any Rule 23 Class Member or FSLA Class Member who disputes the information shown on his or her Class Notice regarding the dates of employment and/or number of work weeks worked during the Class Period may indicate and explain such disagreement under penalty of perjury within forty-five (45) calendar days of the mailing of the Class Notice and Claim Form by notifying the Claims Administrator pursuant to the procedures set forth herein and in the Class Notice.
76. Any such Rule 23 Class Member or FLSA Class Member must submit documentation relating to his or her dispute. The Claims Administrator shall notify Defendants' Counsel and Class Counsel of any such dispute no later than ten (10) calendar days after receiving notice of the dispute. In the case of a dispute, Defendants' records shall control and will have a rebuttable presumption of correctness. The Claims Administrator shall work with Class Counsel and counsel for Defendants and then make a determination regarding the Rule 23 Class Member's or FLSA Class Member's dates of employment and eligible workweeks.
77. If a Rule 23 Class Member or an FLSA Class Member disagrees with the Claims Administrator's determination regarding the his or her dates of employment and/or eligible workweeks, he or she may request that the dispute be resolved through arbitration by Honorable George Hernandez (Ret.) of ADR Services ("the Arbitrator") as follows: The class member must file a petition to finally determine the validity of the Settlement Administrator's determination. Any such petition must be initially submitted to Class Counsel by mail. Any such petition must be mailed sufficiently in advance to be received by Class Counsel within fifteen (15) days of the date of notice of the determination by the Settlement Administrator. Class Counsel shall then promptly submit such petitions to Judge Hernandez for final resolution. Any such petition must: (a) contain a caption or title that identifies it as "Dispute Regarding Settlement Administrator Determination in Camilo vs. Don Vito Ozuna Corporation et al. (b) include the class member's name, mailing and email address and contact telephone number; (c) set forth the specific reasons the class member believes he or she is due a different amount pursuant to this Stipulation For Settlement, including all legal support and factual evidence the he or she wishes to introduce in support of his or her dispute. A Rule 23 Class Member's and/or FLSA Class Member's failure to timely submit such petition shall constitute a release and waiver of any rights to challenge the validity of the Settlement Administrator's Determination. The Parties' responses, if any, must be submitted to the Arbitrator no later than fifteen (15) days following the submission to the Arbitrator of the class member's petition. The determination by the Arbitrator of the validity of the Claims Administrator's determination shall be based solely on the written terms of this Settlement and any Orders of the Court approving it, along with the written documentation submitted by the class member and the Parties, without a hearing. The Arbitrator shall not have jurisdiction to consider any other form of relief other than to determine the dates of employment for the class member and the proper workweek calculation for the class member as expressly defined in the Settlement. The Arbitrator's resolution of the dispute shall be final, binding and non-appealable by the class member and the Parties. The class member submitting such a dispute shall at all times bear the burden of proof by a preponderance of the evidence to show: why and how the Settlement Administrator's determination is incorrect under the written terms of the Settlement. The fee for the Arbitrator's time shall be paid from the Settlement Sum.
78. Any Rule 23 Class Member who receives a Class Notice may request to be excluded from the Class by submitting a Request for Exclusion.
79. Any such request must be made in accordance with the terms set forth in the Class Notice and will be timely only if postmarked no later than forty-five (45) calendar days after the mailing of the Class Notice by the Claims Administrator, or if otherwise agreed by the Parties, through Class Counsel and Defendants' Counsel, in writing.
80. Requests for Exclusion that do not include all required information, or that are not submitted on a timely basis, will be deemed null, void and ineffective.
81. Persons who are eligible to and do submit a valid and timely Request for Exclusion from the settlement will not participate in the settlement, nor will they be bound by the terms of the settlement or any final judgment.
82. Any Rule 23 Settlement Class Member and/or FSLA Opt-In Class Member wishing to object to the approval of this settlement may inform the Court and the Parties in writing of his or her intent to object by following the procedure set forth in the Class Notice forty-five calendar days, or such number of days as the Court shall specify, following the date of the mailing of the Class Notice. Rule 23 Settlement Class Members and FSLA Opt-In Class Members shall also have the right to object at the final fairness and approval hearing. Counsel for the Parties shall file any response to any objections to this Settlement submitted by any objecting Rule 23 Settlement Class Members and FSLA Opt-In Class Members at least five (5) court days before the date of the final fairness and approval hearing.
83. Any FLSA Class Member who fails to submit a timely Claim Form to the Claims Administrator by following the procedure set forth in the Class Notice, and who also fails to submit a timely Request for Exclusion from the Rule 23 Settlement Class automatically shall be deemed a member of the Rule 23 Settlement Class whose rights and claims with respect to the issues raised in the Complaint are determined by the Court's Final Order, and by the other rulings in the Class Action. Said Rule 23 Settlement Class Member will receive his or her portion of the settlement under the California State claims. Thus, said Rule 23 Settlement Class Member's rights to pursue any Released Claims in this Stipulation shall be extinguished. However, said Class Member will not receive FLSA-related payments and will not release their rights to bring an FSLA cause of action under federal law.
84. No later than fourteen (14) calendar days prior to the hearing regarding final approval of the settlement, the Claims Administrator shall provide Defendants' Counsel and Settlement Class Counsel with a declaration attesting to completion of the notice process (except for any ongoing attempt to obtain valid mailing addresses for, and the resending of, any returned Class Notice) ("Declaration of Compliance"). Compliance with the notice procedures described in this Stipulation shall constitute due and sufficient notice to the Rule 23 Class Members and the FLSA Class Members of this proposed settlement and the hearing regarding final approval of the settlement, shall not be subject to objection or collateral attack by any person or entity and shall satisfy the requirement of due process. Nothing else shall be required of, or done by, the Parties, Class Counsel, Defendants' Counsel, or the Claims Administrator to provide notice of the proposed settlement and the final approval hearing.
85. Upon Final Approval, the Rule 23 Settlement Class Members and the FLSA Opt-In Class Members (including the Class Representatives) and their respective successors, assigns, and/or agents, hereby release and forever discharge the Released Parties from the Released Claims.
86. The Class Representatives and each Rule 23 Settlement Class Member and FLSA Opt-In Class Member may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of the Released Claims, but the Class Representative and each Rule 23 Settlement Class Member and FLSA Opt-In Class Member, upon the Final Approval, shall be deemed to have, and by operation of the Final Approval shall have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which then exist, or heretofore have existed upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts relating to the claims as alleged in the Class Action. The Class Representative acknowledges and shall be deemed by operation of the Final Approval to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement of which this release is a part.
87. The Parties agree to fully cooperate with each other to accomplish the terms of this Stipulation, including but not limited to, execution of such documents and to take such other actions as may reasonably be necessary to implement the terms of this Stipulation.
88. The Parties to this Stipulation shall use their best efforts, including all efforts contemplated by this Stipulation and any other efforts that may become necessary by order of the Court, or otherwise, to effectuate this Stipulation and the terms set forth herein.
89. Class Counsel shall, with the assistance and cooperation of Defendants and its counsel, take all necessary steps to secure the Court's preliminary and final approval of the Settlement. The procedure for obtaining Court approval shall be as set forth below.
90. The Parties shall submit this Stipulation to the Court in support of Plaintiff's Motion for Preliminary Approval for determination by the Court as to its fairness, adequacy, and reasonableness, and apply for the entry of a preliminary order substantially in the following form:
91. In connection with the hearing on final approval of the settlement provided for in this Stipulation, the Parties will submit a proposed final order:
92. If the Court does not grant final approval of the Settlement, then this Settlement will become null and void.
93. Defendant will also have the option to void this Settlement if 5% or more of the Rule 23 Class Members (SEE MEMO OF UNDERSTANDING) submit a valid Request for Exclusion from the Settlement. Defendant must exercise this right within ten (10) calendar days after the Claims Administrator notifies the parties of the valid Requests for Exclusion received, which the Claims Administrator will do within five (5) calendar days alter the deadline for submission of a Request for Exclusion.
94. Each individual signing this Stipulation warrants that he or she has the authority and is expressly authorized to enter into this Stipulation on behalf of the party for which that individual signs and bind the Parties hereto to the terms and conditions hereof.
95. No Party to this Stipulation shall seek to evade his, her or its good faith obligations to seek approval and implementation of the Stipulation by virtue of any ruling, order, or other development, whether in the Class Action, in any other litigation or otherwise that hereafter might occur and might be deemed to alter the relative strengths of the Parties with respect to any claims or defenses of their relative bargaining power with respect to negotiating.
96. Neither the acceptance nor the performance by Defendants of the terms of this Stipulation nor any of the related negotiations or proceedings is or shall be claimed to be construed as, or deemed to be an admission by Defendants of the truth of any of the claims alleged in the Class Action, the representative character of the Class Action, the validity of any of the claims that were or could have been asserted by Plaintiffs and/or Rule 23 or FLSA Class Members in the Class Action, or any liability or guilt of Defendants in the Class Action.
97. If any of the above provisions are found null, void, or inoperative, for any reason, the remaining provisions will remain in full force and effect. Notwithstanding, the invalidation of any material term of this Stipulation, including but not limited to all the terms and provisions specified in the Release of Claims or the corresponding Definitions, will invalidate this Stipulation in its entirety unless the Parties subsequently agree in writing that the remaining provisions will remain in force and effect.
98. The descriptive headings of any paragraphs or sections of this Stipulation are inserted for convenience and for reference only and do not constitute any part of this Stipulation. Paragraphs titles, headings or captions contained herein do not define, limit, extend or describe the scope of this Stipulation or any provision herein.
99. Neither the existence of this Stipulation, the terms of this Stipulation, nor any order or action pursuant thereto may be referred to, relied upon, cited, or used as evidence by any of the Parties, the Rule 23 Class Members or FLSA Class Members, or their respective counsel in the Class Action or in any other action or proceeding; provided, however, that nothing contained in this section shall prevent this Stipulation from being used, offered, or received in evidence in any proceeding to enforce, construe, or finalize this Stipulation.
100. This Agreement shall not be subject to collateral attack by any Rule 23 or FLSA class member or any recipient of the Class Notice and Claim Form after the Judgment and Final Order is entered. Such prohibited collateral attacks shall include but not be limited to claims that the Qualifying Weeks Worked attributed to the Rule 23 Class Members or the FSLA Class Members was erroneous or that the Rule 23 Class Members or the FSLA Class Members failed for any reason to receive timely notice of the procedure for disputing the calculation of his or her Individual Payment Amount.
101. This Stipulation contains the entire agreement between Plaintiffs and the Rule 23 Settlement Class and FSLA Opt-In Class, on one hand, and Defendants on the other, relating to the settlement and transactions contemplated hereby, and no oral or written representations, warranties or inducements have been made to any Party concerning this Stipulation other than the representations, warranties, and covenants contained and memorialized herein.
102. This Agreement, once it is fully executed, supersedes, any and all prior agreements between the Parties, whether written or verbal, including the Parties'"Memorandum of Understanding" and the previously filed "Stipulation for Class Action Settlement and Release."
103. Unless otherwise provided herein, this Stipulation may be amended or modified only by a written instrument signed by counsel for all Parties or their successors-in-interest.
104. None of the rights, commitments, or obligations recognized under this Stipulation may be assigned by any Party, the Rule 23 Settlement Class Members or the FSLA Opt-In Class Members, Class Counsel or Defendants' Counsel without the express written consent of each Party and their respective counsel hereto.
105. This Stipulation, and any amendments hereto, may be executed in any number of counterparts and any Party and/or their respective counsel hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. It shall not be necessary in making proof of this Stipulation or any counterpart hereof to produce or account for any of the other counterparts.
Don Vito Ozuna Corporation and/or Severo C. Ozuna has identified you as an hourly employee in the tortilla and/or chip manufacturing process between
You received this notice because you have a right to receive money for unpaid wages, penalties and interest. If the Court approves the Settlement, CPT will make the payments that the Settlement requires.
The lawsuit claims that Don Vito Ozuna Food Corporation: (1) Failed To Pay All Wages In Violation of The Fair Labor Standards Act; (2) Failed to Properly Pay Wages, Including Overtime Wages, Under California State Law; (3) Failed To Timely Pay All Wages At End Of Employment; (4) Failed to Provide Accurate California Itemized Employee Wage Statements; (5) Failed To Provide Meal Breaks and Rest Breaks Compliant with California State Law; and (6) Violated the California Unfair Competition Law.
This was a disputed lawsuit. Instead of the risk of going to trial, both sides agreed to a Settlement. That way, they avoid the cost of a trial and the class members will get compensation. The Class Representatives and the attorneys think the Settlement is best for all class members.
Everyone who fits the following descriptions is a class member:
Don Vito Ozuna Food Corporation and/or Severo C. Ozuna have agreed to create a total fund of $375,000.00 for settlement. $112,500 is for class counsel's attorney fees, $10,000 is for costs, $15,000 is for the class administrator and $20,000 is for the four named Plaintiffs' participation. The net amount of $217,500.00 is to be
Your minimum anticipated share of the fund,
In addition,
The net amount of the $217,500.00 has been apportioned as follows 33% to the federal wages for the FSLA Opt-In Class, the remaining 67% will be paid to the Rule 23 Class for violations of California Law. The portion paid to the California Rule 23 Class will be further apportioned 20% wages, 40% interest and 40% penalties. This means 20% of the Settlement amount you receive as the Rule 23 Settlement Class Member will be considered wages for tax purposes (the minimum amount is listed on the first page of this Notice) and standard payroll taxes will be withheld for that portion of your settlement. The remainder of your Settlement as the Rule 23 Settlement Class member will be paid to you with an IRS form 1099 and will be considered interest and penalties for tax purposes. You alone are responsible to pay any appropriate taxes on the income paid to you via the IRS form 1099.
If you submit the Claim Form, your settlement as the FLSA Opt-In Class Member will be treated as wages for tax purposes and standard payroll taxes will be withheld.
The
The Court will hold a hearing on ________________, 2019 at ____. to decide whether to finally approve the Settlement. If the Court approves the Settlement, but there are class members who object, there may be appeals. Resolving any appeals can take time, perhaps more than a year. Please be patient. If the Court approves the Settlement at the hearing and there are no appeals, payments will not begin until after 30 days after final approval, if there are no appeals.
Defendants Ozuna Food Corporation shall fund the settlement in two installment payments. The first installment of $200,000.00 shall be due 30 days after final approval of the settlement, assuming no objection has been made and no appeal has been filed. The second payment of $175,000.00 shall be due on May 1, 2020. Payments to class members will also be in two installments each due 30 to 45 days following the funding by Defendants, assuming final approval.
Unless you affirmatively exclude yourself from the settlement, you are part of the Rule 23 Settlement Class. That means you cannot sue, continue to sue, or be part of any other lawsuit against Ozuna Food Corporation and/or Severo C. Ozuna concerning the wage and hour claims that are currently part of the lawsuit, or any additional wage and hour claims that are based on the facts alleged in this lawsuit, except for claims under the Federal Labor Standards Act. These claims will be barred from May 14, 2014 to March 19, 2019.
If you submit a Claim Form to receive additional payment under federal law, you will become a member of the FLSA Opt-In Settlement Class, and you also will be barred from bringing, maintaining, or being a part of a
To entirely exclude yourself from the Settlement, you must send a letter by mail or email stating that you want to be excluded from Camilo vs. Don Vito Ozuna Food Corporation, et. al (Case No. 18:CV-02842-VDK). Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later _____________ to:
If you ask to be excluded you will not get any Settlement payments of any kind and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You will be able to sue or continue to sue Don Vito Ozuna Food Corporation and/or Severo C. Ozuna in the future.
If you do nothing, you will receive a payment only for your claims based on California law for the Rule 23 Class Members and will release the wage and hour claims that are currently part of the lawsuit, or any additional wage and hour claims that are based on the facts alleged in this lawsuit, except for the claims under the Federal Labor Standards Act.
If you do nothing, you will not receive the additional amount under Federal Law for the FLSA Opt-In Class. To receive this additional amount you must also timely return the
The Fair Labor Standards Act is a federal law governing the payment of overtime for hours worked past 40 in a week. It does not have the same provisions that California law. To receive payment for your federal claims, you must return a CLAIM FORM.
In contrast, California law requires overtime to be paid for hours worked past 8 in a day or 40 hours in a week. It also has provisions for double time, meal and rest breaks, payments upon termination, provision of wage statements, and other provisions not included in the Federal Labor Standards Act.
James Dal Bon of the Law Offices of James Dal Bon and Victoria Booke of Booke & Ajlouny represents Class Members. Mr. Dal Bon and Ms. Booke have been appointed Class Counsel. They will be paid from the Settlement amount, so you will not be charged personally for their work and costs on this case and in negotiating this Settlement. If you want to be represented by your own lawyer, you may hire one at your own expense.
Class Counsel will ask the Court to approve the payment of up to $112,500.00 for attorneys' fees and up to $10,000 for costs and expenses associated with investigating the facts, litigating the case, and negotiating the Settlement. A payment not to exceed $15,000 will also be made for the costs of the Claims Administrator administering the Settlement. A payment of up to $5,000 will be made to each of the FOUR Class Representatives, Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez, Jose Manuel Lopez, for their work in bringing this lawsuit and in exchange for them waiving a much broader array of personal claims than you are.
The Court will hold a Final Approval Fairness Hearing on _________________, 2019 at 1:30 p.m., at the United States District Court for the Northern District of California, at 280 South First Street, San Jose, CA 95113, Courtroom 2, before the Honorable Virginia K. DeMarchi At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. After the hearing, the Court will decide whether to approve the Settlement.
No. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, if you so choose.
You may speak at the Final Approval Fairness Hearing provided that you give advance notice to the Court. You must send a letter to the Court saying that it is your "Notice of Intention to Appear in Rodrigo Camilo vs. Don Vito Ozuna et al. Case No: 18-cv-02842-VDK. You must include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than____________, 2019 and sent to the Court.
This notice summarizes the proposed Settlement. More details are in a Settlement Agreement. You can view a copy of the Settlement Agreement and other key documents in this case at the following web address: ________________________. To access this page, you will need to use the password: _____________.
You can call (xxx) xxx-xxxx toll free, or write to CPT Claims Administrator, _____________________,
You may also speak to Class Counsel James Dal Bon by calling: (650)630-2447.
