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MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
KNOPFLER & PAZOS SPIRO MOSS LLPJames Pazos (SBN 163609) Dennis F. Moss (SBN 77512)
[email protected] [email protected] Knopfler (SBN 94041) J. Mark Moore (SBN 180473)
[email protected] [email protected] South Beverly Drive, Suite 200 11377 W. Olympic Blvd., 5th FloorBeverly Hills, CA 90212 Los Angeles, CA 90064Telephone: (310) 556-1010 Telephone: (310) 235-2468Facsimile: (310) 556-1011 Facsimile: (310) 235-2456Attorneys for Representative Plaintiff Attorneys for Representative PlaintiffVictor Gonzalez and Class Members Luis A. Aguirre and Class Members
RASTEGAR & MATERN, ATTORNEYS AT LAW, APCMatthew J. Matern (SBN 159798)
[email protected] S. Campbell (SBN 199014)
[email protected] Crenshaw Boulevard, Suite 100Torrance, California 90501Telephone: (310) 218-5500Facsimile: (310) 218-1155Attorneys for Representative PlaintiffJorge Jaime and Class Members
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JORGE JAIME, VICTOR GONZALEZand LUIS A. AGUIRRE individually,and on behalf of all similarly situatedcurrent and former employees ofStandard Parking Corporation,
Plaintiffs,
vs.
STANDARD PARKINGCORPORATION, A DelawareCorporation, and DOES 1 through 100,
Defendants._________________________________
Consolidated with Case Nos. CV 08-07007 and CV 08-07278_________________________________
))))))))))))))))))))
Case No.: CV08-04407 AHM (Rzx)
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS’ MOTION FORFINAL APPROVAL OFPROPOSED CLASSSETTLEMENT
DATE: June 20, 2011TIME: 11:00 a.m.PLACE: Courtroom 14
Judge: A. Howard Matz
Case 2:08-cv-04407-AHM-RZ Document 88-1 Filed 05/20/11 Page 1 of 27 Page ID #:1059
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iMEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 1
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. SUMMARY OF THE LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. THE CLASS CERTIFICATION ENTERED AS PART OF PRELIMINARY APPROVAL SHOULD BE MAINTAINED . . . . . . . . . . 4
IV. THE SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. General Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Claims Made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V. THE CLASS ACTION SETTLEMENT APPROVAL PROCESS . . . . . . . 7
VI. FINAL APPROVAL SHOULD BE GRANTED BECAUSE THE TERMS OF THE SETTLEMENT ARE FAIR, ADEQUATE ANDREASONABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The Proposed Settlement is Presumed to Be Fair . . . . . . . . . . . . . . . . . . . . 10
B. All of the Relevant Criteria Support Final Approval of the ProposedSettlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. The Benefits to the Class of the Proposed Settlement Support Final Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. The Risks Inherent in Continued Litigation Weigh in Favor of FinalApproval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3. That Sufficient Discovery and Investigation Were Completed Prior toSettlement Favors Final Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4. The Complexity, Expense, and Likely Duration . . . . . . . . . . . . . . . . . . . . . 16
5. Class Members’ Reaction Favors Final Approval . . . . . . . . . . . . . . . . . . . 18
6. The Experience and Views of Counsel Favor Final Approval . . . . . . . . . . 19
C. The Proposed Settlement is Fair, Adequate, and Reasonable . . . . . . . . . . . 19
VII. THE COURT-ORDERED NOTICE COMPORTS WITH DUE PROCESS AND HAS BEEN FULLY IMPLEMENTED . . . . . . . . . . . . . 20
VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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iiMEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
TABLE OF AUTHORITIESCases Page
Alaniz v. California Processing, Inc., 73 25 F.R.D. 269 (C.D. Cal. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
In re Austrian & German Bank Holocaust Litig, 80 F. Supp. 2d 164 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In re GMC Pick-Up Truck Fuel Tank Prods. Limb. Litig., 55 F.3d 768 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
In re Pacific Enters. Sec. Litig., 47 F.3d 373 (9th Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
In Re Tableware Antitrust Litig., 484 F.Supp.2d 1078 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450 (D.N.J. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kirkorian v. Borelli, 695 F. Supp. 446 (ND. Cal. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Linney v. Cellular Alaska P'ship, 151 F.3d 1234 (9th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Malawian v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Marshall v. Holiday Magic, Inc., 550 F.3d 1173 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Nat’l Rural Telecorn. Cooperative v. DirecTV Inc., 221 F.R.D. 523 (C.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Officers for Justice v. Civil Service Com., 688 F.2d 615 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 12, 13, 16, 20
Oppenlander v. Standard Oil Co. 64 F.R.D. 597 (D.Colo.1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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iiiMEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
TABLE OF AUTHORITIES CONTINUEDCases Page
Romero v. Producers Dairy Foods, Inc., 234 F.R.D. 474 (CD. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Stoetzner v. US. Steel Corp., 897 F.2d 115 (3d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Young v. Katz, 447 F.2d 431 (5th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Miscellaneous
Alba Conte & Herbert B. Newberg, 4 Newberg on Class Actions § 11.41 (4th Ed. 2006) . . . . . . . . . . . . . . . 8, 13
Manual for Complex Litigation (Fed. Judicial Center 2004) . . . . . 8, 9, 13 , 21, 22
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1MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiffs, Jorge Jaime, Victor Gonzalez and Luis A. Aguirre, respectfully
submit this memorandum of law in support of an Order: (a) granting final approval
of the Settlement between Plaintiffs and Standard Parking Corporation (“Standard”
or “Defendant”) and (b) certifying for settlement purposes only the Settlement
Class with Plaintiffs as Class Representatives and Plaintiffs’ attorneys of record,
Rastegar & Matern, Attorneys at Law APC, Spiro Moss LLP and Knopfler &
Pazos as Class Counsel. By separate Motion filed on February 22, 2011, Plaintiffs
moved for approval of the requested attorneys’ fee award and costs. See, Case
Docket documents 77-83.
As set forth more fully below, the Proposed Settlement provides substantial
pecuniary benefits to the Class members.
On June 7, 2010, Plaintiffs filed a motion for preliminary approval of
settlement. On July 12, 2010, the Court denied the motion, without prejudice,
outlining its reasons for the denial.
The Parties, thereafter, endeavored to address all of the concerns raised by
the Court in connection with the earlier motion. Subsequent to the Court’s July 12,
2010 ruling, with the help of a mediator, the Parties negotiated changes to the
Settlement Agreement, Class Notice, Claim Form and Opt-Out Form. Declaration
of Dennis F. Moss (hereinafter referred to as “Moss decl”) ¶¶ 3-4.
On November 15, 2010, Plaintiffs filed their second motion for preliminary
approval of the settlement which addressed the concerns raised by the Court.
On December 20, 2010, the Court: (i) granted preliminary approval of the
Settlement; (ii) conditionally certified a class for settlement purposes; (iii) ordered
the mailing of the Court-approved notice (“Notice”) and (iv) scheduled a hearing
date for the Court to consider final approval of the Settlement (the “Preliminary
Approval Order”).
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2MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
Pursuant to the Preliminary Approval Order, notice was mailed to 6755
class members on February 9, 2011 in Spanish and English, who were thereby
advised of their rights to opt out of the Settlement, object to the Settlement, and
submit a Claim for benefits under the Settlement. Declaration of Michael Bui,
(hereinafter referred to as “Bui decl”), ¶¶ 3, 5, 6.
On March 11, 2011, a reminder mailing was sent to 5788 Class Members
who did not respond by March 10, 2011. Bui decl, ¶ 8.
A second reminder was mailed on April 11, 2011 because the agreed upon
guaranteed minimum had not been met. Bui decl, ¶ 9. This mailing extended the
claim deadline to May 11, 2011. Id.
On April 28, 2011 a notice was mailed to 49 class members who singed a
declaration for Standard Parking informing those class members they were eligible
to participate in the settlement. Bui decl, ¶ 10.
Class counsel was sensitive to the relatively low response rate in the early
days of the Notice period, and in late March of 2011, commenced a telephone
campaign, calling thousands of class members to remind them of the Settlement,
what they needed to do to participate, and facilitating their receipt of new Notice
packets when necessary. Declaration of Matthew J. Matern (hereinafter referred to
as “Matern decl”) ¶ 50; Moss decl, ¶ 21; Declaration of James Pazos (hereinafter
referred to as “Pazos decl”), ¶ 20.
Three hundred and eighty-one (381) Class Notice Packets remained
undeliverable at the end of the Notice period. Bui decl, ¶ 11.
Of the 6,374 class members who the administrator (“Simpluris”) mailed to
deliverable addresses, as of May 17, 2011, it received 2496 Claim Forms. Bui
decl, ¶¶ 12, 13.
Ultimately, 2474 class members submitted valid claim forms, equaling 36.50
percent of the class. Bui decl, 14. Only fifty-six class members requested
///
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3MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
exclusion, two of which were untimely, less than 1 percent. No class members
objected to the settlement. Bui decl, ¶ 15.
Simpluris estimates the total amount for administrative costs at $55,000.00.
Bui decl, ¶ 16.
For the reasons stated below, the Court should grant final approval of the
proposed Settlement of this class action.
II. SUMMARY OF THE LITIGATION
The Court succinctly set forth the facts in the Civil Minutes of July 12, 2010:
This class action is a consolidation of three putative class actions. The first
was filed on April 14, 2008 by Plaintiff Jorge Jaime; the second was filed on
September 18, 2008 by Plaintiff Victor Gonzalez; the third was filed on
September 29, 2008 by Plaintiff Luis Aguirre. All three were filed in state court
and removed here by Standard. On December 29, 2008, this Court, on its own
motion, consolidated the three actions. On March 16, 2009,Plaintiff filed a
Consolidated Amended Complaint (“CAC”). On February 17, 2009, the Court
approved all three firms as Co-Lead Class Counsel.
Plaintiffs worked for Standard as cashiers, valets, and/or parking attendants.
Defendant Standard Parking is headquartered in Chicago and provides parking
services at over 780 locations in California, including buildings, airports, hotels
and sports stadiums.
The CAC alleges a wide-ranging potpourri of claims for: (1) Failure to
provide meal periods; (2) Failure to provide rest periods; (3) Failure to pay
overtime; (4) Failure to pay wages to discharged or quitting employees; (5)
Failure to pay minimum wages; (6) Failure to maintain required records; (7)
Civil penalties under the California Private Attorneys Act of 2004, California
Labor Code sections 2698-2699.5; and (8) Unfair business practices.
The Parties engaged in formal and informal discovery which resulted in the
exchange of an enormous amount of information and documentation. Class
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4MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
counsel received thousands of pages of payroll and time records and assiduously
reviewed them. On the basis of the data and documents provided, including
sample timekeeping data and payroll data for the entire Class, with the assistance
of an expert statistician, Class counsel analyzed the records with respect to liability
issues and damages. Matern decl, ¶¶ 16-17; Moss decl ¶ 6.
Class Counsel also performed substantial investigation, both directly and
through a private investigator, relating to Standard’s operation. Matern decl, ¶ 20.
This investigation and analysis of the discovery documents assisted Class Counsel
with the analysis of the case against Standard Parking. Matern decl, ¶ 21
III. THE CLASS CERTIFICATION ENTERED AS PART OFPRELIMINARY APPROVAL SHOULD BE MAINTAINED
As part of its Preliminary Approval Order, this Court conditionally certified
a settlement class, defined as:
Former Employee Class: All persons employed in California byStandard Parking at on-site parking facilities in the hourly-paid positionsof valet, parking attendant, cashier, maintenance person, porter, securitypatrol, supervisor, manager, or assistant manager, at any time during theperiod April 14, 2004 through December 28, 2009, whose employmentterminated on or before December 28, 2009; and
Current Employee Class: All persons employed in California byStandard Parking at on-site parking facilities in the hourly-paid positionsof valet, parking attendant, cashier, maintenance person, porter, securitypatrol, supervisor, manager, or assistant manager, at any time during theperiod April 14, 2004 through December 28, 2009, and who are currentlyemployed by Standard Parking Corporation, or whose employmentended after December 28, 2009.
Preliminary Approval Order at p. 2:11-25.
This Court conditionally certified the class after finding that the Action met
the requirements for class certification under Rule 23(a) and 23(b)(3), with the
exception of the manageability requirement of Rule 23(b)(3) that this Court need
not address in the Settlement context. This Court further found that conditional
certification of the Action as a collective action under section 216 (b) of the Fair
Labor Standards Act (“FLSA”) is appropriate for Settlement purposes only. See,
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5MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
Preliminary Approval Order, P. 3: 1-7. Circumstances have not changed since this
Court’s certification that warrants any change in the Certification decision.
IV. THE SETTLEMENT
The Settlement negotiated by Class Counsel provides substantial economic
benefit to a large number of people, who most likely, would not have received any
compensation for the claims asserted.
A. General Terms
This Court’s preliminary approval of the Settlement included approval of the
following, in general terms:
The total settlement to be paid by Standard Parking is a maximum of $4.2
million on a claims-made basis (“the maximum settlement amount" or "MSA”).
Plaintiffs' attorneys will request an amount for attorneys’ fees and costs, to be paid
from the MSA, in an amount not to exceed 25% of the MSA, One Million Fifty-
Thousand Dollars ($1,050,000).
The Settlement also provides that Plaintiffs Jorge Jaime, Victor Gonzalez,
and Luis A. Aguirre will each request an enhancement fee of $10,000.00 as class
representatives. Also, the agreed-upon neutral third party claims administrator,
Simpluris, Inc. will receive payment of its fees from the MSA for administering the
Settlement. Simpluris estimated these fees not to exceed Seventy Thousand
Dollars ($70,000). however, Simpluris now estimates the final charge for
administering the Settlement at $55,000.00. Bui decl, ¶ 16. In addition, a $25,000
payment will go to the State of California Labor Workforce Development Agency
for penalties pursuant to the California Private Attorneys General Act of 2004,
Labor Code sections 2698-2699.5 (“PAGA").
Assuming the requested amount for attorneys' fees and costs, Class
Representative Enhancements, PAGA payment, and the fees and costs of the
Administrator are granted in full, the maximum funds for distribution to the
Settlement Class, if every eligible Class Member filed a valid claim, would have
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6MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
been approximately $2,961,250 (less a deduction for the employer's portion of any
required payroll taxes. Payments to Class Members, pursuant to the court-
approved plan of distribution in the Settlement, are made on a claims-made basis,
to Settlement Class members who submitted valid claims.
Standard Parking agreed that a minimum of One Million One-Hundred Fifty
Thousand Dollars ($1,150,000) would be paid after payment of attorneys’ fees and
costs. In the event that payments for: 1) Claims made by Settlement Class
members; 2) Any required payments for matching payroll withholding; 3) The
PAGA payment of $25,000; 4) The Court-approved Class Representative
Enhancements; and 5) The costs and fees of the Court-approved Administrator,
do not together amount to at least $1,150,000, the difference between $1,150,000
and the sum of payments delineated in items (1) - (5) above was to be paid in pro
rata shares to all Settlement Class members who submitted valid claims.
However, because the amounts for items (1) - (5) total more than $1,150,000.00,
redistribution under this provision of the Settlement was not triggered.
In accordance with this Court’s ruling on Plaintiffs’ first motion for
preliminary approval and the Court’s subsequent order granting preliminary
approval of the settlement, the settlement fund is allocated in a manner that
achieves a fair distribution to the Class Members, given the claims raised and the
duration of employment of the Class Members. For example, unlike “Current
Employees,” Former employees gain an additional claim for penalties under Labor
Code Section 203. As such, all things being equal (i.e. duration of employment), a
Former Employee will receive a higher distribution than a Current Employee.
Since the allocation of the settlement funds was dependent upon the number
of claims made and the time period of employment with Standard, a precise
“distribution” amount for each claimant could not be determined in advance of the
Notice. However, Plaintiffs’ Notice provided estimates of the “pay out” for
employees as follows:
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7MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
• Former Employee Class member who submits a valid Claim Form, and who
worked for Standard Parking during the entirety of the class period (April
14, 2004 until December 28, 2009), will be entitled to a payment of
approximately $1,143 minus normal and customary payroll withholding tax.
In this example, it is estimated that the payment after required withholding
tax will be approximately $1,102.
• Current Employee Class member who submits a valid Claim Form and who
worked for Standard Parking during the entirety of the class period (April
14, 2004 through December 28, 2009) will be entitled to a payment of
approximately $682 minus normal and customary payroll withholding tax.
In this example, it is estimated that the payment after required withholding
tax will be approximately $641.
B. Claims Made
The claims rate in the present case reached 36.59 percent. Out of the 6,755
Notice and Claim\Exclusion Form packages mailed out, Simpluris received 2,474
valid claims, no objections and 54 opt-outs, only 0.08 percent. Bui decl, ¶ 15.
Given the low paid, transitory, predominantly migrant work force, this result is
exceptionally good. Surely, it could not have been achieved without Plaintiffs and
their counsels’ efforts, including the rather massive phone bank process Plaintiffs’
counsel initiated and carried out. According to Simpluris, the average recovery by
the claimant is $462.22, with the highest amounting to $1,125.75. Bui decl, ¶ 14.
V. THE CLASS ACTION SETTLEMENT APPROVAL PROCESS
Courts strongly favor and encourage settlements, particularly in class
actions, where the costs, delays, risks, and uncertainties inherent in complex
litigation might overwhelm any recovery the class stands to obtain. See Class
Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (“strong judicial
policy . . . favors settlement particularly where complex class action litigation is
concerned.”) The traditional procedure for handling the claims at issue here,
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8MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
individual litigation — would devour public and private resources, indefinitely
prolong resolution of the conflict, and, given the nature of the damages at issue
here, would be economically unfeasible for most Class Members. This Proposed
Settlement is the only practical device for all Class Members to successfully
resolve their claims against Standard, and to obtain substantial relief in a prompt,
efficient matter.
Approval of a class action settlement requires three steps, two of which have
already been completed. The first step was for this Court to grant preliminary
approval to the Settlement Agreement and to certify the Settlement Class. The
reason for the preliminary evaluation is to allow the Court to determine if the
Agreement falls within the “range of reasonableness,” and whether the Court
should order class-wide notice and schedule a final fairness hearing. In Re
Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1079-80 (N.D. Cal. 2007); see
also, Alba Conte & Herbert B. Newberg, 4 Newberg on Class Actions § 11.41
(4th Ed. 2006) (hereinafter 4 NEWBERG § 11.41).
Preliminary approval is granted where a settlement has no obvious
deficiencies and falls within the range of possible approval, as is present in this
case. See, Manual for Litigation (“MCL”) §21.632; Alaniz v. California
Processing, Inc., 73 25 F.R.D. 269, 273 (C.D. Cal. 1976); In re Prudential Ins.
Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 562 (D.N.J. 1997), aff’d in
part, vacated and remanded in part, 148 F.3d 283 (3d Cir. 1998). To determine if
a settlement warrants approval, courts consider whether the negotiations occurred
at arm’s-length, if sufficient discovery or investigation took place, and whether the
proponents of the settlement are experienced in similar litigation. See Officers for
Justice v. Civil Service Com., 688 F.2d 615, 625 (9th Cir. 1982).
The second step in the process is the dissemination of class notice. In
accordance with this Court’s Preliminary Approval Order, the parties worked with
Simpluris to implement the Court-approved class notice plan, employing the best
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9MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
practicable means to inform all Class Members of the essential terms of the
Settlement Agreement, and of the date and time of the final settlement approval
hearing. See, Pazos decl ¶¶ 16-21; Bui decl, ¶¶3-15; Matern decl, ¶ 50; Moss
decl, ¶ 21.
The third and last step in the class action settlement approval process is the
final approval hearing of the Proposed Settlement. There, the Class Members have
the opportunity to present their comments regarding the Proposed Settlement, and
Class Counsel will present evidence and argument supporting its fairness,
adequacy, and reasonableness. See, Manual for Complex Litigation — 4th (“MCL
4th”) §21.634 at 415 (Fed. Judicial Center 2004). Following the hearing, the Court
should decide whether to grant final approval to the Proposed Settlement, and
whether to enter a final order and judgment.
At the final stage of the approval process, the Court considers arguments for
and in opposition to approval of the settlement, including comments submitted by
Class Members in response to the notice. The fairness hearing, however, is not “a
trial or rehearsal for trial on the merits.” Officers for Justice, 688 F.2d at 625.
VI. FINAL APPROVAL SHOULD BE GRANTED BECAUSE THETERMS OF THE SETTLEMENT ARE FAIR, ADEQUATE ANDREASONABLE
When faced with a motion for final approval of a class action settlement
under F.R.C.P. 23, the court looks to see whether the settlement is “fair, adequate,
and reasonable.” Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). A
settlement is fair, adequate, and reasonable, and merits final approval, when “the
interests of the class as a whole are better served by the settlement than by further
litigation.” MCL 4th § 21.61 at 406.
Although the Court has “broad discretion” in issuing a final determination
that a proposed class action settlement is fair, “the court’s intrusion upon what is
otherwise a private consensual agreement negotiated between the parties to a
lawsuit must be limited to the extent necessary to reach a reasoned judgment that
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10MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
the agreement is not the product of fraud or overreaching by, or collusion between,
the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable
and adequate to all concerned.” Officers for Justice, 688 F.2d at 625.
A. The Proposed Settlement is Presumed to Be Fair
A court should begin its analysis with a presumption that the Proposed
Settlement between Class Plaintiffs and Standard Parking is fair, deserving
approval. A presumption of fairness exists where: 1) The settlement is reached
through arm’s-length bargaining; 2) Investigation and discovery are sufficient to
allow counsel and the court to act intelligently; 3) Counsel is experienced in
similar litigation; and 4) the percentage of objectors is small. In re GMC Pick-Up
Truck Fuel Tank Prods. Limb. Litig., 55 F.3d 768, 785 (3d Cir. 1995).
The parties negotiated the Proposed Settlement at arm’s-length by
experienced counsel knowledgeable in complex class litigation supporting a
presumption of fairness. Pazos decl, ¶ 10-15. As demonstrated in great length in
the Declarations of Dennis F. Moss, Matthew J. Matern and James Pazos filed
concurrently herewith, the investigation leading up to the settlement was robust.
Class counsel received thousands of pages of payroll and time records that were
assiduously reviewed.
On the basis of the data and documents provided, including sample
timekeeping data and payroll data for the entire Class, with the assistance of an
expert statistician, Class counsel analyzed the records with respect to liability
issues and damages. Matern decl, ¶¶ 16-21; Moss decl, ¶ 6. By the time the
mediation took place, the parties were throughly familiar with the strengths and
weakness of their stated positions. Id.; Matern decl, ¶ 19.
Throughout the several days of mediation, Plaintiffs negotiated from a
position of being fully informed about the strengths and weakness of their case and
were thoroughly familiar with all of the facts necessary to ascertain exposure, and
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the legal risks connected with the factual allegations. Matern decl, ¶ 16-19; Moss
decl, ¶¶ 6-7.
Class counsel who are very experienced wage and hour class action
attorneys properly assessed the strengths and weaknesses of the claims against
Standard and the benefits of the Settlement under the circumstances of this case.
Matern decl, ¶¶ 21, 31-32; Moss decl, ¶¶ 9-13. From the discovery and the
investigation, they were able to determine that the proposed settlement was fair,
reasonable and adequate in the best interest of the Class members in light of the
known facts and circumstances, including the risks of significant delay, open issues
pending in the California Supreme Court, certification risks, and Defendant’s
asserted defenses. Matern decl, ¶¶ 16-21; Moss decl, ¶¶ 12-21.
No question exists regarding the non-collusive nature of this settlement.
Matern decl, ¶¶ 22-30. The negotiations spread out over several mediation
sessions with mediator Jeffrey Krivis, and included several additional negotiation
sessions over the phone and through in-person meetings, and the exchange of
numerous proposals and counter-proposals. Id.
The history of the negotiations that establish their arm’s length character is
set forth in Plaintiffs’ counsels’ declarations. See e.g., Matern decl, ¶¶ 22-30;
Moss decl, ¶¶ 6-13; Pazos decl, ¶ 10-15. The legal research, and legal issues were
thoroughly investigated by experienced Class counsel and factored into the
determination of the reasonableness of the settlement. Moss decl, ¶¶ 14; Matern
decl, ¶ 16-24.
Class Members also reacted positively to the Proposed Settlement. With
6,755 Settlement packets mailed to Class Members, less than 1 percent chose to opt
out of the agreement and no class members objected. Bui decl, ¶¶ 11-15. Also, a
number of Class Members have contacted Class Counsel to express their
appreciation and support for the settlement. Pazos decl, ¶ 23. Accordingly, this
Court should appropriately find the Proposed Settlement worthy of final approval.
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B. All of the Relevant Criteria Support Final Approval of theProposed Settlement
Courts consider several factors when deciding to grant final approval of a
class action settlement, including the: 1) Amount offered in settlement; 2) Risks
inherent in continued litigation; 3) Extent of discovery completed and the stage of
the proceedings when settlement was reached; 4) Complexity, expense and likely
duration of the litigation absent settlement; 5) Experience and views of Class
Counsel; and 6) Reaction of Class Members. Staton, 327 F.3d at 959; see also
Officers for Justice, 688 17 F.2d at 625. This list of factors is not exhaustive and
should be tailored to each case. Staton, 327 F.3d at 959.
As stated by the court in Officers for Justice, 688 17 F.2d at 625:
The district court's role in evaluating a proposed settlement must betailored to fulfill the objectives outlined above.... The court's intrusionupon what is otherwise a private consensual agreement negotiatedbetween the parties to a lawsuit must be limited to the extent necessary toreach a reasoned judgment that the agreement is not the product of fraudor overreaching by, or collusion between, the negotiating parties, and thatthe settlement, taken as a whole, is fair, reasonable and adequate to allconcerned. Therefore, the settlement or fairness hearing is not to beturned into a trial or rehearsal for trial on the merits. Neither the trialcourt nor this court is to reach any ultimate conclusions on the contestedissues of fact and law which underlie the merits of the dispute, for it is thevery uncertainty of outcome in litigation and avoidance of wasteful andexpensive litigation that induce consensual settlements. The proposedsettlement is not to be judged against a hypothetical or speculativemeasure of [achievement].
(Emphasis added).
With regard to the present case, all of the relevant criteria support final
approval of the Proposed Settlement.
1. The Benefits to the Class of the Proposed Settlement SupportFinal Approval
The settlement negotiated for the Class is well within the range of
reasonableness. From the discovery and the investigation, Class Counsel were able
to determine that the proposed settlement was fair, reasonable and adequate in the
best interest of the Class members in light of the known facts and circumstances,
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including the risks of significant delay, open issues pending in the California
Supreme Court, issues related to certification risks, and Defendant's asserted
defenses. Matern decl, ¶ 32-35, 46-49; Moss decl, ¶¶ 6-21; Pazos decl, ¶ 24-28.
2. The Risks Inherent in Continued Litigation Weigh in Favorof Final Approval
To assess the fairness, adequacy and reasonableness of a class action
settlement, the Court must weigh the immediacy and certainty of substantial
settlement proceeds against the risks inherent in continued litigation. MCL 4th
§21.62 at 410, (indicating “[s]ome factors that may bear on a review of settlement
[include] the advantages of the Proposed Settlement versus the probable outcome of
a trial on the merits of liability and damages as to the claims, issues, or defenses of
the class and individual class members.”).
It well settled that settlements are favored, particularly in class actions and
other complex cases where substantial resources can be conserved by avoiding the
time, cost, and rigor of prolonged litigation. See Officers for Justice, 688 F.2d at
625. Accordingly, “unless the settlement is clearly inadequate, its acceptance and
approval are preferable to lengthy and expensive litigation with uncertain results.”
Nat’l Rural Telecorn. Cooperative v. DirecTV Inc., 221 F.R.D. 523, 526 (C.D. Cal.
2004) (quoting NEWBERG § 11:50 at 155).
This factor supports final approval presently because the Settlement affords
Class Members prompt and complete relief, while avoiding significant legal and
factual hurdles that otherwise may have prevented them from obtaining any
recovery from Standard at all. Standard has foregone an array of legal defenses in
acquiescing to the Proposed Settlement.
For example, Class Counsel’s evaluation necessarily included an evaluation
and assessment of a novel issue relating to one of Standard’s claimed defenses.
Specifically, Standard argued that most employees working at its locations waived
their statutory right to a meal time break by signing “On-Duty Meal Period
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Agreements.” This “exception” to the Labor Code meal time requirement was
carved out by order of the California Industrial Welfare Commission (“CIWC”). It
provides for “on duty” meal period only when, (1) the nature of the work prevents
an employee from being relieved of all duty and (2) when by written agreement
between the employer and employee an on-the-job paid meal period is agreed to.
See, Moss decl, ¶¶ 5, 14.
In response, Plaintiffs maintained that, (1) the nature of the work did not
prevent an employee from being relieved of all duty and (2) regardless of the
“nature of the work,” the CIWC Wage Order is invalid as it conflicts with the
statutory right to meal breaks codified in the Labor Code.
In assessing this issue, Class Counsel did extensive research which revealed
no California cases regarding the validity of this particular wage order “exception”
to the Labor Code and little, if any, guidance regarding the circumstances in which
the “nature of the work” justifies an employer’s reliance upon “On Duty Meal
Agreements. Pazos decl, ¶¶ 26, 27.
While Class Counsel believes that the Class’s claims are meritorious, they are
also experienced and realistic, and understand that the outcome of trial, and of any
appeals that would inevitably follow a successful trial, are inherently uncertain.
Matern decl, ¶¶46-49; Moss decl, ¶¶ 12-21. Additionally, while Class Counsel
believe Plaintiffs’ claims have merit and are supported by solid evidence, Plaintiffs
and their counsel are also cognizant of the expense, time and risk involved in taking
this action to trial through appeal. Moss decl, ¶¶ 16-18; Matern decl, ¶ 33-35.
These risks must be considered in assessing the fairness of the Proposed
Settlement, which guarantees, against a result that would leave the class without any
recovery from Standard, or with less than what Class Counsel achieved in the
Proposed Settlement. Because the Proposed Settlement provides immediate and
substantial relief, without the attendant risks of continued litigation, it warrants this
Court’s approval.
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Consequently, given Class Counsels’ extensive experience in employment
law, civil litigation and class action lawsuits, Class Counsel was in the best position
to assess and evaluate the strengths and weakness of this issue in arriving at a
reasonable and fair settlement. As such, Class Counsel unanimously believe the
proposed settlement takes into account a fair and reasonable evaluation of this issue.
See, Matern decl, ¶¶ 33-25; Moss decl, ¶¶ 16-18; Pazos decl, ¶¶24-28.
3. That Sufficient Discovery and Investigation WereCompleted Prior to Settlement Favors Final Approval
Courts also consider the extent of discovery completed and the stage of the
proceedings in determining whether a class action settlement is fair, adequate, and
reasonable. Boyd v. Bechtel Corp., 485 F. Supp. 610, 616-17 (N.D. Cal. 1979).
The Proposed Settlement was reached after over several years of
investigation and litigation. After the case came to issue, Plaintiffs and Defendant
worked diligently to exchange a vast amount of evidence and information to obtain
a basis to properly evaluate the case for mediation and beyond. As stated supra and
in the declarations submitted herewith, the investigation leading up to the settlement
was robust. Class counsel received through the litigation process thousands of
pages of payroll and time records, as well as, information pertaining to the nature
and scope of Defendants’ operation. This information was carefully and fully
reviewed and analyzed. On the basis of the data and documents provided, including
sample timekeeping data and payroll data for the entire Class, with the assistance of
an expert statistician, Class counsel analyzed the records with respect to liability
issues and damages. Matern decl, ¶¶ 16-21; Moss decl, ¶¶ 5, 6.
Plaintiffs and Defendant participated in mediation and settlement discussions,
spanning over 8 months. The parties participated in several mediation sessions with
experienced mediator, Jeffrey Krivis. Throughout this time, Plaintiffs negotiated
from a position of being fully informed about the strengths and weakness of their
case and they were thoroughly familiar with all of the facts necessary to ascertain
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16MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
exposure, and the legal risks connected with the factual allegations. Matern decl, ¶¶
19-21; Moss decl, ¶¶ 5, 6.
Class counsel, all very experienced wage and hour class action attorneys,
properly assessed the strengths and weaknesses of the claims against Standard
Parking and the benefits of the Settlement under the circumstances of this case.
Matern decl, ¶¶ 33-25; Moss decl, ¶¶ 16-18; Pazos decl, ¶¶24-28. From the
discovery and the investigation, they determined the proposed settlement is fair,
reasonable and adequate in the best interest of the Class members in light of the
known facts and circumstances, including the risks of significant delay, open issues
pending in the California Supreme Court, issues related to certification risks, and
Defendant’s asserted defenses. Matern decl, ¶¶ 33-25; Moss decl, ¶¶ 16-18; Pazos
decl, ¶¶24-28.
This settlement clearly is not of a collusive nature. The negotiations spread
over several mediation sessions with Jeffrey Krivis, several additional negotiation
sessions over the phone and through in-person meetings, and the exchange of
numerous proposals and counter-proposals. Matern decl, ¶¶ 22-31. The history of
the negotiations that establish their arm’s length character is fully set forth by
declaration. See, e.g., Matern decl, ¶ 16-31.
The legal research, and legal issues were thoroughly investigated by
experienced Class counsel and factored into the determination of the reasonableness
of the settlement. Moss decl, ¶¶ 5, 6, 14.
4. The Complexity, Expense, and Likely Duration
Another factor for the Court to consider in assessing the fairness of the
Proposed Settlement is the complexity, expense and likely duration of the litigation
without a settlement. Officers for Justice, 688 F.2d at 625 (recognizing “voluntary
conciliation and settlement are the preferred means of dispute resolution. This is
especially true in complex class action litigation”); see also Marshall v. Holiday
Magic, Inc., 550 F.3d 1173 (9th Cir. 1977). Applying this factor, the Court must
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17MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
weigh the benefits of the Proposed Settlement against the expense and delay
involved in achieving an equivalent or more favorable result at trial. Young v. Katz,
447 F.2d 431, 434 (5th Cir. 1971).
This action was complex from both a legal and a technical perspective. In
connection with the prosecution of this case, Class Counsel were required to devote
themselves to the case to ensure that the many technical and legal issues
encountered were properly analyzed and the interests of the Class were protected
and well-served. See, e.g., Moss decl, ¶ 5, 14. The legal issues underlying the
Action were complex and required diligent work to fully understand the appropriate
relief to be obtained and the legal questions presented. Id. The skill and diligence
displayed by Class Counsel were largely responsible for the outstanding result
achieved.
This class action exemplifies the economies of time, effort and expense
achieved in the Proposed Settlement of Class Actions. The alternative to a class
action, individual litigation, would tax private and judicial resources over a period
of years, and, given the relatively modest amount of damages each Class Member
has incurred, it would be uneconomical even for those with the finances,
sophistication, and tenacity to bring a small claims suit, and/or secure individual
legal representation.
Moreover, as a large, publically traded company, Standard Parking is capable
of defending the claim through years of experience and would have continued a
zealous defense of the Class’s claims through motion, trial and appeal. This case
would probably take years to litigate, forcing the parties to expend an enormous
amount of resources. And, at the end of the day, the class members could well end
up with nothing.
The Proposed Settlement, on the other hand, provides all Class Members,
regardless of their means, with substantial relief in a prompt and efficient manner.
Were this Court to deny final settlement approval, over 2000 Class members would
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18MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
likely be left without a remedy as a practical matter, given the time and expense of
pursuing individual cases.
5. Class Members’ Reaction Favors Final Approval
A court may appropriately infer that a class action settlement is fair,
adequate, and reasonable when few class members object to it. Marshall, 550 F. 2d
1178. Indeed, a court can approve a class action settlement as fair, adequate, and
reasonable over the objections of a significant percentage of class members. See
Class Plaintiffs, 955 F.2d at 191-96 (upholding trial court’s grant of final approval
over class member objections); see also Kirkorian v. Borelli, 695 F. Supp. 446, 451
(ND. Cal. 1988) (holding a settlement can be fair, notwithstanding opposition from
a large segment of the class”).
Despite the fact that presently this class consisted of 6,755 current and former
employees, not one class member objected to the Settlement. When a significant
majority of the class do not object or opted out of the settlement, courts should
interpret that response as evidence that the Proposed Settlement warrants final
approval. See, e.g., Stoetzner v. US. Steel Corp., 897 F.2d 115 118-19 (3d Cir.
1990) (finding that objections of only 29 Class Members of a settlement class of
281 “strongly favors settlement.”)
A certain number of objections are to be expected in a class action. See, e.g.,
In re Austrian & German Bank Holocaust Litig, 80 F. Supp. 2d 164, 178 (S.D.N.Y.
2000). However, where the number of objections is small, the court should view
that fact as indicating the adequacy of the settlement. Id.
In light of the fact that not one class member objected to the Settlement
Agreement, coupled with the extremely low number of opt-outs and the relatively
high percentage of claimants, this Court should grant final approval of the
Settlement Agreement.
///
///
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19MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
6. The Experience and Views of Counsel Favor Final Approval
The Court should give “great weight” to the recommendation of counsel, who
are most closely acquainted with the facts of the underlying litigation.” Nat’l Rural
Telecorn. Cooperative v. DirecTV Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004)
(citing In re Painewebber Ltd. P'ships Litig., 171 F.R.D. 104, 125(S.D.N.Y.1997).
The reason being, the “[p]arties represented by competent counsel are better
positioned than courts to produce a settlement that fairly reflects each party’s
expected outcome in the litigation.” In re Pacific Enters. Sec. Litig., 47 F.3d 373,
378 (9th Cir.1995).
Here, Class Counsel are seasoned class-action attorneys with significant
experience. Class Counsel support the Proposed Settlement as fair, reasonable, and
adequate, and in the best interest of the class as a whole. Indeed, Class Counsel
know the Proposed Settlement to be an excellent result. See, Matern decl, ¶¶ 32-35,
47-47-49; Moss decl, ¶¶ 12, 13, 15-21; Pazos decl, ¶¶ 24-28.
C. Conclusion: the Proposed Settlement is Fair, Adequate, andReasonable
By all relevant measures, the Proposed Settlement is fair, adequate, and
reasonable, clearly deserving final approval. The Settlement falls within a
reasonable range of outcomes given all the factors set forth above. During the
entirety of the litigation, Standard Parking took the position that it “provided” meal
and rest breaks to its employees, except for those who worked at “One-Man
Locations” and signed “On-Duty Meal Break” (Wage Order) waivers. Pazos decl, ¶
26. Standard also maintained Plaintiff’s action would not be certified as a Class
Action as individualized issues predominated. Id.
Class Counsel took Standard’s position and the uncertainties associated with
the ultimate outcome into account to help determine the reasonable range of
settlement. These uncertainties included the dearth of legal guidance on the validity
and scope of the “On Duty Meal Break” waiver issue and the “meal break” issue
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pending before the California Supreme Court in Brinker. Pazos decl, 26.
Ultimately, Class Counsel leveraged a settlement which provides a significant
economic benefit to low-wage employees who would likely have no other recourse
absent the present case.
Although Plaintiffs’ initial demands for compensation exceeded the ultimate
settlement amount, the amounts secured by Plaintiffs in settlement fairly represent a
reasonable compromise. As observed in Oppenlander v. Standard Oil Co.
(Indiana), 64 F.R.D. 597, 624(D.Colo.1974):
The Court shall consider the vagaries of litigation and compare thesignificance of immediate recovery by way of the compromise to themere possibility of relief in the future, after protracted and expensivelitigation. In this respect, ‘It has been held proper to take the bird in handinstead of a prospective flock in the bush.’
In assessing the consideration obtained by the class members in a class action
settlement, “[i]t is the complete package taken as a whole, rather than the individual
component parts, that must be examined for overall fairness.” Officers for Justice,
688 F.2d at 628. In this regard, it is well-settled law that a proposed settlement may
be acceptable even though it amounts to only a fraction of the potential recovery
that might be available to the class members at trial. Linney v. Cellular Alaska
P'ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (quoting City of Detroit, 495 F.2d 448,
455 and fn. 2). However, in this case, the class members each recovered a fairly
significant amount.
This Settlement provides hard-won, substantial and prompt relief to the Class
as a whole, and is particularly impressive when viewed in light of the risks, delays,
and costs of continued litigation warranting approval.
VII. THE COURT-ORDERED NOTICE COMPORTS WITH DUEPROCESS AND HAS BEEN FULLY IMPLEMENTED
To protect the rights of absent Class Members, the parties must provide the
Class with the best notice practicable of a potential class action settlement. Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) (explaining that providing the
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21MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
“best notice practicable” with a description of the litigation and explanation of
opt-out rights satisfies due process); Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
174-75 (1974) (requiring that individual notice must be sent to all class members
who can be identified through reasonable efforts); Malawian v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (noting, best practicable notice is that
which is “reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.)
Rule 23 . . . requires that individual notice in [opt-out] actions be givento all class members ‘who can be identified through reasonable efforts’with others given the ‘best notice practicable under the circumstances.’.. . Due process does not require actual notice to parties who cannot bereasonably identified.
MCL 4th § 21.311 at 382 & n.882.
The MCL sets forth the features a Settlement notice should contain as
follows:
• Describe the essential terms of the Proposed Settlement;
• Provide information regarding attorneys’ fees;
• Indicate the time and the place of the hearing to consider approval of
the settlement, and the method for objecting to or opting out of the
settlement;
• Explain the procedures for allocating and distributing settlement funds,
and, if the settlement provides different kinds of relief for different
categories of Class Members, clearly set out those variations; and
• Prominently display Class Counsels’ contact information and the
procedure for making inquiries.
MCL 4th, §21.3 12 at 387
As the MCL explains:
Even though a settlement is proposed, the original claims, relief sought,and defenses should be outlined; such information is necessary for class
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22MEMORANDUM SUPPORTING MOTION FORFINAL APPROVAL OF CLASS SETTLEMENT
members to make an informed decision. The notice should describeclearly the options open to the class members and the deadlines for takingaction.
Id.
The mailed Notice and Publication Notice in this case satisfies all of the
relevant criteria. This Court previously approved the notice plan and forms of
notice in connection with the preliminary approval hearing. Docket No. 74, Order
Granting Motion for Preliminary Approval of Class Action Settlement, ¶ 6.
Additionally, the Simpluris fully implemented the Court-approved notice regimen.
See, Bui decl, ¶¶ 3-16.
Following preliminary settlement approval, the parties undertook an
extensive notice campaign implemented by Simpluris. Where, as here, a significant
number of Settlement Class Members are identifiable, direct mail notice more than
suffices to satisfy notice and due process requirements. See Romero v. Producers
Dairy Foods, Inc., 234 F.R.D. 474 (CD. Cal. 2006) (noting, where class members
can be identified, direct notice to Class Members satisfies due process and Fed. R.
Civ. P. 23 requirements).
Notice was distributed by first-class mail to 6,755 Class Members in Spanish
and English. See, Bui decl, ¶ 6. The Notice explained, among other things, that
Class Members had the choice of remaining in the class and receiving benefits of
the settlement agreement, or opting out of the settlement and objecting to it. See,
Pazos decl, ¶¶ 16-18, and Exhibit B, attached thereto. The class members were
given three opportunities to submit clam forms and Simpluris and Plaintiffs’
counsel took great care in making sure all had the opportunity to receive and file the
claims. Bui decl, ¶¶ 6-15.
For those class members for which Standard had telephone numbers, Class
Counsel attempted to contact those class members by telephone to confirm that
class members received and sent in their claim forms. See, Matern decl ¶ 50; Moss
decl, ¶ 21; Pazos decl, ¶ 20. These efforts increased the effectiveness of Plaintiffs’
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notice by allowing Plaintiffs’ counsel to reach more class members, some of whom
had either lost the notice packages or had moved and not received them. Pazos
decl, ¶ 20. Finally, Simpluris set up a web-site that contained among other things:
1) A copy of the Notice and the Settlement Agreement; 2) Claim and Exclusion
Forms; and 3) The Motion for Attorney’s Fees and Costs. Pazos decl, ¶ 19.
VIII. CONCLUSION
The Settlement Agreement is fair and reasonable, and provides the current
and former employees of Standard Parking with an excellent opportunity to recover
damages for alleged Labor Code violations. A substantial number of class members
submitted claim forms and less than 1 percent elected to opt-out. Also, no class
member objected to the Settlement. Therefore, for the reasons set forth above and
in the Settlement Agreement on file, Plaintiffs respectfully ask this Court to grant
the Motion for Final Approval of Class Action Settlement.
Dated: May , 2011 KNOPFLER & PAZOS
By: /s/ James Pazos JAMES PAZOS,GEORGE KNOPFLER,Attorneys for Plaintiff VICTOR GONZALEZ
Dated: May , 2011 RASTEGAR & MATERN, APC
By: /s/ Matthew J. Matern MATTHEW J. MATERN,THOMAS S. CAMPBELL,Attorneys for Plaintiff JORGE JAIME
Dated: May , 2011 SPIRO MOSS, LLP
By: /s/ Dennis F. Moss DENNIS F. MOSS, J. MARK MOORE,Attorneys for Plaintiff LUIS A AGUIRRE
Case 2:08-cv-04407-AHM-RZ Document 88-1 Filed 05/20/11 Page 27 of 27 Page ID #:1085
