Opinion
Case No.: 1:10-CV-02062-AWI-SMS
03-15-2013
DOLORES OWENS, individually and on behalf of all others similarly situated, Plaintiff, v. KRAFT FOODS GLOBAL, INC., doing business as KRAFT FOODS, INC. and DOES 1-10 inclusive, Defendants.
R. Duane Westrup (State Bar No. 58610) Mark L. Van Buskirk (State Bar No. 190419) WESTRUP KLICK, LLP Michael L. Carver, State Bar No. 173633 Michelle M. Lunde, State Bar No. 246585 LABOR LAW OFFICE A Professional Corporation Attorneys for Plaintiff Dolores Owens, individually and on behalf of all others similarly situated
R. Duane Westrup (State Bar No. 58610)
Mark L. Van Buskirk (State Bar No. 190419)
WESTRUP KLICK, LLP
Michael L. Carver, State Bar No. 173633
Michelle M. Lunde, State Bar No. 246585
LABOR LAW OFFICE
A Professional Corporation
Attorneys for Plaintiff Dolores Owens,
individually and on behalf of all others similarly situated
Honorable Anthony W. Ishii
CLASS ACTION
ORDER GRANTING PRELIMINARY
APPROVAL OF SETTLEMENT
Courtroom 2
Eighth Floor
The Court, having fully reviewed the Motion for Preliminary Approval of Class Action Settlement, the Stipulation of Settlement of Class Action Claims ("Agreement"), and Exhibits in support thereof, and having carefully reviewed the Agreement and the proposed Notice of Pendency of Class Action and Proposed Settlement, and in recognition of the Court's duty to make a preliminary determination as to the reasonableness of any proposed Class Action settlement, and if preliminarily determined to be reasonable, to provide notice to Class Members in accordance with due process requirements, and to schedule a formal Final Settlement Hearing to determine the good faith, fairness, adequacy and reasonableness of any proposed settlement;
HEREBY MAKES THE FOLLOWING DETERMINATIONS AND ORDERS:
This action was originally filed in Fresno County Superior Court (Case No. 10CECG03379 on September 22, 2010, and removed to the United States District Court, Eastern District on or about November 5, 2010. Plaintiff filed the action on behalf of a class of current and former Cultured Packaging Technicians and Filler Operators employed at Defendant's Tulare and Fresno (South Orange Ave.) facilities at any time between September 22, 2006 through the current period (the date through which this Court grants preliminary approval of the settlement reached by the parties). The complaint alleges that Defendant's meal and rest break policies violated California law, class members did not receive 30 minute duty-free meal periods and, as a result, class members were not paid for all hours worked which, in turn, entitles class members to additional (overtime) pay and, as a result, Defendant failed to provide accurate itemized statements (pay stubs) to class members.
After thorough investigation into the facts of the action, including discovery and informal exchange of information, the parties successfully mediated the case before Alan Berkowitz of Judicate West.
The Parties propose the putative class be defined as follows: all persons who were employed in Covered Positions during the Covered Time Frame, excluding those persons who have previously adjudicated or released the Released Claims. (Covered Positions and Covered Time Frame Cultured Packaging Technicians at the Tulare facility and at the Fresno (South Orange Ave.) facility, Filler Operators who previously worked, or currently work on the Capri Production line, and Filler Operators who previously worked or currently work on the Kool Aid Burst production line at any time between September 22, 2006 through the date of preliminary approval of the Settlement by the Court.
The Court finds on a preliminary basis that the Agreement filed with, incorporated herein by this reference and made a part of this Preliminary Approval Order, appears to be within the range of reasonableness of a settlement which could ultimately be given final approval by this Court. It further appears to the Court on a preliminary basis, that the settlement amount is fair and reasonable to Class Members when balanced against the probable outcome of further litigation relating to the propriety of class certification, the ultimate trial on liability and damages issues, and the potential appeals of rulings.
It further appears that significant discovery, investigation, research, and litigation has been conducted such that counsel for the parties at this time are able to reasonably evaluate their respective positions. It further appears that settlement at this time will avoid substantial costs, delay and risks that would be presented by the further prosecution of the litigation. It further appears that the proposed Settlement has been reached as the result of intensive, serious and non-collusive negotiations between the parties, including mediation with a neutral third party.
It further appears that Plaintiff Dolores Owens is a suitable class representative, was employed by Defendant in a Covered Position during the Class Period, has representative claims, and no conflict with the Class exists;
ACCORDINGLY, GOOD CAUSE APPEARING, THE MOTION FOR PRELIMINARY APPROVAL IS HEREBY GRANTED, WESTRUP KLICK, LLP AND MICHAEL L. CARVER, LABOR LAW OFFICE, A.P.C. ARE CONFIRMED AS CLASS COUNSEL, AND PLAINTIFF DOLORES OWENS IS DEEMED CLASS REPRESENTATIVE;
Consistent with the definitions provided in the Agreement, the term "Putative Class Members" includes all persons who were employed as Cultured Packaging Technicians at the Tulare facility and at the Fresno (South Orange Ave.) facility, Filler Operators who previously worked, or currently work on the Capri Production line, and Filler Operators who previously worked or currently work on the Kool Aid Burst production line at any time between September 22, 2006 through the date of preliminary approval of the Settlement by the Court and who have not previously adjudicated or released the Release Claims as that term is defined in the Agreement. The Settlement Class and Settlement Class Members means all Putative Class Members who do not request exclusion from the Settlement within the parameters of the Agreement. Further, the Court finds that the proposed Settlement Administrator, CPT Group, Inc., is an adequate claims administrator, and the proposed Notice of Pendency of Class Action and Proposed Settlement ("Class Notice"), which advises the Putative Class Members of the Preliminary Approval of the Settlement, the timing and procedures for filing a claim, and the date of the Final Settlement Hearing, in the form attached to the Agreement as Exhibit A and incorporated herein by this reference and made a part of this Preliminary Approval Order, fairly and adequately advises Putative Class Members of the terms of the proposed Settlement and the benefits available to Putative Class Members and of the formal Final Settlement Hearing to be conducted on July 29, 2013 at 1:30 p.m. and the right of Putative Class Members to file documentation in support of or in opposition to the Settlement, and procedures for appearing at said hearing; the Court further finds that said Notice clearly comports with all constitutional requirements, including those of due process; the Court further finds that the proposed Class Notice is reasonable, appropriate and adequate and will likely assist Putative Class Members in the claims process. With regard to the proposed Claim Form, the Court finds that Claim Form proposed is reasonable, appropriate and adequate and will likely assist Putative Class Members in making their claims.
ACCORDINGLY, GOOD CAUSE APPEARING, THE COURT HEREBY APPROVES THE PROPOSED CLAIMS ADMINISTRATION PROCESS, THE PROPOSED NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT, AND THE CLAIM FORM, AS INDICATED ABOVE.
The mailing to the present or last known address of present and former employees and an address update search for Putative Class Members, constitutes an effective method of notifying Putative Class Members of their rights with respect to the Class Action and Settlement;
ACCORDINGLY, IT IS HEREBY ORDERED THAT THE PROCEDURES SET FORTH IN THE AGREEMENT AND THE FOLLOWING SCHEDULE BE ESTABLISHED AND FOLLOWED, UNLESS MODIFIED BY THE COURT:
Mailing of Notice and Claim Form:
Within 45 days of Preliminary Approval
Claims Deadline:
80 days after mailing of the Notice and Claim Form
Exclusion Deadline:
80 days after mailing of the Notice and Claim Form
Objection Deadline:
80 days after mailing of the Notice and Claim Form
Plaintiff to File Motion for Final Approval:
5 Court days before Final Approval Hearing
Final Approval Hearing:
Approximately 135 calendar days after Preliminary Approval
Disbursement of Funds:
Disbursement of funds will be made in accordance with the terms of the Agreement.
IT IS FURTHER ORDERED that no person, except Class Counsel and Counsel for Defendant, shall be heard in opposition to the Court's determination of the good faith, fairness, reasonableness and adequacy of the proposed Settlement, the requested attorneys' fees and litigation expenses, the proposed Class Representative Enhancement and/or any Order of Dismissal with Prejudice and Final Judgment regarding such Settlement, unless such person has complied with the conditions set forth in the Notice of Pendency of Class Action and Proposed Settlement, which conditions are incorporated herein;
IT IS FURTHER ORDERED all briefs supporting or opposing the Settlement shall be served and filed at least five (5) Court days before the Final Approval Hearing;
IT IS FURTHER ORDERED that if for any reason the Court does not execute and file an Order of Dismissal with Prejudice and Final Judgment, or if the "Effective Date" of Settlement, as defined in the Agreement, does not occur for any reason whatsoever, the proposed Agreement, and all evidence and proceedings had in connection therewith, shall be without prejudice to the status quo and the rights of the parties to the litigation as more specifically set forth in the Agreement;
IT IS FURTHER ORDERED that the Final Approval Hearing shall be held before the undersigned at 1:30 p.m. on July 29, 2013 at the United States District Court, Eastern District of California, Courtroom 2, 8th floor, to consider the fairness, adequacy and reasonableness of the proposed Settlement, preliminarily approved by this Preliminary Approval Order, and to consider the application of Class Counsel, for an award of reasonable attorneys' fees, costs and expenses incurred, and the request for Class Representative Service Fees for Plaintiff Dolores Owens. IT IS SO ORDERED.
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SENIOR DISTRICT JUDGE