The Fund Class Action - Final Order Approving Settlement

Case3:06-cv-07776-SC Document115 Filed05/15/09 Page1 of 7
1 David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)
2 RUDY, EXELROD, ZIEFF & LOWE, L.L.P.
351 California Street, Suite 700
3
San Francisco, CA 94104
4 Telephone: (415) 434-9800
Facsimile: (415) 434-0513
5 Email: dal@rezlaw.com
Email: jtm@rezlaw.com
6
Attorneys for Plaintiffs
7
8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
RUDY EXELROD ZIEFF & LOWELLP
PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com
11
RICHARD PRENTICE, CHRISTIAN Case No. C-06-7776 SC
SAN FRANCISCO, CALIFORNIA 94104
12
MILLER, and TIFFINEY
351 CALIFORNIA STREET, SUITE 700
13 PETHERBRIDGE, on their own behalf and

on behalf of classes of those similarly
14 situated,
[PROPOSED] ORDER: (1) FINALLY
15 Plaintiff, APPROVING CLASS ACTION
SETTLEMENT AND PLAN OF
16 vs. DISTRIBUTION; (2) ENTERING
FINAL JUDGMENT; (3)
17 FUND FOR PUBLIC INTEREST APPROVING SERVICE PAYMENT
RESEARCH, INC., TO NAMED PLAINTIFFS; (4)
18 APPROVING THE PAYMENT OF
Defendant. REASONABLE COSTS OF
19 ADMINISTRATION; AND (5)
RESERVING JURISDICTION
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/
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[PROPOSED] ORDER GRANTING FINAL APPROVAL

CASE NO. C-06-7776 SC
1 This matter came on for hearing on May 15, 2009, upon the motion of Plaintiffs Richard
2 Prentice, Christian Miller and Tiffiney Petherbridge and the Class they represent (hereinafter
3 collectively “Plaintiffs”) and not opposed by Defendant The Fund for Public Interest Research,
4 Inc. (“Fund”) for final approval of the proposed settlement of this action on the terms set forth in
5 the Joint Stipulation of Settlement and Release (the “Agreement”) attached hereto as Exhibit 1.
6 Due and adequate notice having been given to the members of the settlement Class, and the Court
7 having considered the Agreement, all papers and proceedings held herein, and all oral and written
8 comments received regarding the proposed Settlement, and having reviewed the entire record in
9 this action (“the Action”), and good cause appearing, the Court, finds that:
10 WHEREAS, Plaintiffs have alleged claims against Defendant Fund on behalf of
11 themselves, the FLSA Collective Action Class members, and all individuals who worked for
12 Fund and who held the title Canvasser or Field Manager in California at any time from December
13 19, 2002 to May 7, 2007, or who worked for Fund and who held the title Canvasser or Field
14 Manager in New York at any time from December 19, 2000 to May 7, 2007;
15 WHEREAS, Plaintiffs asserts claims for 1) FLSA Overtime and Minimum Wage
16 Violations; and, as to present and former California Canvassers and Field Managers, (2)
17 Violations of California Overtime and Minimum Wage Provisions; (3) California Waiting Period
18 Penalties; (4) Violations of California Record-Keeping Provisions; (5) Violations of California
19 Meal and Rest Period Provisions; (6) Violations of the California Unfair Competition Law; (7)
20 Conversion; and, as to present and former New York Canvassers and Field Managers, (8)
21 Violations of New York Overtime Provisions, and (9) Violations of New York “Spread of Hour”
22 Provisions;
23 WHEREAS, the Court previously conditionally certified a Fair Labor Standards Act
24 (“FLSA”) collective action, and approximately 770 individuals opted into that claim prior to the
25 close of the opt-in period;
26 WHEREAS, approximately 220 of the individuals who opted into the previously
27 conditionally certified FLSA Collective Action worked only after May 7, 2007; the date on
28 which Fund began paying its canvassing staff for overtime and for observation days (the FLSA
1
1 Collective Action Class is defined in Paragraph 1 of the Joint Stipulation of Settlement and
2 Release attached hereto as Exhibit 1), and, accordingly, this Court previously found such 220
3 individuals are not similarly situated to the balance of the Collective Action members – that is,
4 those who filed consents to join and who worked for Fund prior to May 7, 2007 – and are
5 therefore not part of this Action;
6 WHEREAS, Fund expressly denies the allegations of wrongdoing and violations of law
7 alleged in this Action; claims that it always properly classified and compensated its employees;
8 and further denies any liability whatsoever to Plaintiffs or to the Class Members;
9 WHEREAS, without admitting any liability, claim or defense the Parties determined that
10 it was mutually advantageous to settle this Action and avoid the costs, delay, uncertainty and
11 business disruption of ongoing litigation;

12 WHEREAS, this Court granted preliminary approval of the parties’ Agreement in this
13 Action on February 4, 2009 (“Preliminary Approval Order”); and
14 WHEREAS, notice to the Class members was sent in accordance with the Preliminary
15 Approval Order; and
16 WHEREAS, a fairness hearing on the proposed Settlement having been duly held and a
17 decision reached;
18 NOW, therefore, the Court grants final approval of the Settlement, and
19 IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
20 1. To the extent defined in the Stipulation of Settlement and Release (the
21 “Agreement”), attached hereto as Exhibit 1 and incorporated herein by reference, the terms in this
22 Order shall have the meanings set forth therein.
23 2. The Court has jurisdiction over the subject matter of this action, the Defendant
24 Fund, and the Class.
25 3. The Court has determined that the notice given to the Class fully and accurately
26 informed all persons in the Class of all material elements of the proposed Settlement, including
27 the plan of allocation of the Settlement Payment and the application for service awards to the
28 Named Plaintiffs and the application for an attorneys’ fees award to Class Counsel, constituted
2
1 the best notice practicable under the circumstances, constituted valid, due and sufficient notice to
2 all Class members, and complied fully with Rule 23 of the Federal Rules of Civil Procedure, the
3 Fair Labor Standards Act (“FLSA”), the United States Constitution, and any other applicable
4 laws.
5 4. The Court hereby grants final approval of the Settlement and Agreement as fair,
6 reasonable and adequate in all respects to the Class members pursuant to Rule 23 of the Federal
7 Rules of Civil Procedure and the FLSA, and orders the parties to consummate the Settlement in
8 accordance with the terms of the Agreement.
9 5. The plan of distribution as set forth in the Agreement providing for the
10 distribution of the Net Settlement Fund to Class members is approved as being fair, reasonable,
11 and adequate pursuant to Rule 23 of the Federal Rules of Civil Procedure and the FLSA.
12 6. Three subclasses have been formed for settlement purposes only as follows:
13 A. Sub-class A is the FLSA Collective Action class members who filed
14 consents to join the Litigation and who worked for Fund as a Canvasser or
15 Field Manager in any state other than California or New York during the
16 FLSA Class Period (i.e., three years back from the date of each person’s
17 consent to join the Litigation through May 7, 2007); and
18 B. Sub-class B is the “California Class” comprised of anyone identified in
19 Fund’s payroll records as having worked for Fund in California as a
20 Canvasser or Field Manager during the California Class Period (i.e.,
21 December 19, 2002 through May 7, 2007), who is sent notice of the
22 Litigation and who does not opt-out; and
23 C. Sub-class C is the “New York Class” comprised of anyone identified in
24 Fund’s payroll records as having worked for Fund in New York as a
25 Canvasser or Field Manager during the New York Class Period (i.e.,
26 December 19, 2000 through May 7, 2007), who is sent notice of the
27 Litigation and who does not opt-out.
28 Together, the three subclasses comprise the “Class.”
3
1 7. The California and New York classes are sufficiently numerous that joinder is not
2 practicable. The California and New York Classes each have thousands of putative members.
3 8. There are questions of law and fact common to the members of the California and
4 New York Classes. The questions of law and fact common to the members of the California and
5 New York include:
6 x Whether Fund’s policy and practice of classifying the Class Members as exempt
from overtime entitlement and failing to pay overtime to the Class Members violates
7 applicable California and/or New York law, including applicable statutory and
8 regulatory authority;
9 x Whether Fund unlawfully failed to pay compensation to Class members for missed
meal and rest periods in violation of the UCL and applicable California wage and
10 hour laws; and
11 x Whether Fund unlawfully failed to keep and furnish employees with records of hours
worked, in violation of applicable law.
12
13 As the Plaintiffs need only establish one common question of law or fact in order to meet the low
14 threshold set by Rule 23(a)(2), Plaintiffs’ above showing of common issues satisfies what is
15 required.
16 9. The named Plaintiffs’ claims are typical of those of the Classes that they seek to
17 represent. Plaintiffs Prentice, Miller and Petherbridge’s California claims are typical of those of
18 the California Class, and Plaintiff Miller’s New York claims are typical of those of the New York
19 Class because they all arise out of Fund’s uniform policy of classifying Canvassers and Field
20 Managers as exempt, and of refusing to pay Canvassers and Field Managers overtime
21 compensation for overtime hours worked.
22 10. Richard Prentice, Christian Miller and Tiffiney Petherbridge, as Class
23 Representatives, have fairly and adequately protected the interests of the Class by retaining Class
24 Counsel who are skilled in actions of this type and as evidenced by the negotiation of the
25 Agreement.
26 11. The Court approves the payment of reasonable settlement administration costs to
27 the Settlement Administrator, The Garden City Group, Inc., in an amount up to $119,370.
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1 12. The Court approves awards to Named Plaintiffs Richard Prentice, Christian Miller
2 and Tiffiney Petherbridge, on account of their service to the Class, in the amount of $10,000
3 each, which shall be paid from, and not in addition to, the Settlement Payment.
4 13. The Court hereby dismisses this Action with prejudice, with each party to bear his,
5 her or its own costs and attorneys’ fees, except as provided in the Agreement and as set forth
6 above in this Final Judgment and Order. Without affecting the finality of this Final Judgment
7 and Order, the Court reserves exclusive and continuing jurisdiction over the Action, the Named
8 Plaintiffs Richard Prentice, Christian Miller and Tiffiney Petherbridge, the Class, and the
9 Defendant Fund for the purposes of supervising the implementation, enforcement, construction,
10 and interpretation of the Agreement, the Preliminary Approval Order, the distribution of the
11 Settlement Payment, the Final Judgment, and this Order; and (b) hearing and determining the
12 application by Class Counsel for an award of attorneys’ fees, costs, and expenses, which hearings
13 shall take place concurrently with the hearing for this Final Judgment and Order.
14 14. Upon entry of this Final Judgment and Order, and by operation of this Final
15 Judgment and Order, the claims of each Class member against Fund, and against any and all of
16 the Releasees as defined in the Agreement, are fully, finally, and forever released, relinquished
17 and discharged pursuant to the terms of the Agreement.
18 15. By operation of this Final Judgment and Order, all members of the Class are
19 hereby forever barred and enjoined from prosecuting the released claims against any of the
20 Releasees as defined in the Agreement.
21 16. Each member of the Class is bound by this Final Judgment and Order, including,
22 without limitation, the release of claims as set forth in the Agreement.
23 17. This Final Judgment and Order and the Agreement, and all papers related thereto,
24 are not, and shall not be construed to be, an admission by Fund of any liability, claim or
25 wrongdoing whatsoever, and shall not be offered as evidence of any such liability, claim or
26 wrongdoing in this Action or in any other proceeding.
27 18. In the event that the Settlement does not become effective in accordance with the
28 terms of the Agreement, then this Final Judgment and Order shall be rendered null and void to
5
1 the extent provided by and in accordance with the Agreement and shall be vacated, and in such
2 event, all orders entered and releases delivered in connection herewith shall be null and void to
3 the extent provided by and in accordance with the Agreement, and each party shall retain his, her
4 or its rights to move for or oppose certification of the California and/or New York Class and/or to
5 move for or oppose de-certification of the FLSA Collective Action Class.
6 19. The Court finds that there is no just reason for delay of entry of this Final
7 Judgment and hereby directs its entry.
8
IT IS SO ORDERED, ADJUDGED AND DECREED.
9 S DISTRICT
TE C
TA
O
10
S
May 15, 2009
U
ED
RT
Dated: _________________ ERED

_____________________________________
UNIT
O ORD
IT IS S
11 Honorable Samuel Conti
R NIA
United States District Judge
uel Con
ti
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NO
am
Judge S
FO
RT
LI
13 ER
A
N C
F
D IS T IC T O
R
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Case3:06-cv-07776-SC Document115 Filed05/15/09 Page1 of 7

1 David A. Lowe (State Bar #178811)

8 UNITED STATES DISTRICT COURT

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

13 PETHERBRIDGE, on their own behalf and

[PROPOSED] ORDER GRANTING FINAL APPROVAL

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

5 therefore not part of this Action;

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

11 business disruption of ongoing litigation;

13 Action on February 4, 2009 (“Preliminary Approval Order”); and

15 Approval Order; and

19 IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

20 1. To the extent defined in the Stipulation of Settlement and Release (the

22 Order shall have the meanings set forth therein.

24 Fund, and the Class.

8 accordance with the terms of the Agreement.

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

13 A. Sub-class A is the FLSA Collective Action class members who filed

17 consent to join the Litigation through May 7, 2007); and

18 B. Sub-class B is the “California Class” comprised of anyone identified in

19 Fund’s payroll records as having worked for Fund in California as a

20 Canvasser or Field Manager during the California Class Period (i.e.,

22 Litigation and who does not opt-out; and

23 C. Sub-class C is the “New York Class” comprised of anyone identified in

24 Fund’s payroll records as having worked for Fund in New York as a

27 Litigation and who does not opt-out.

28 Together, the three subclasses comprise the “Class.”

5 New York include:

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

PH (415) 434-9800 | FX (415) 434-0513 | www.rezlaw.com

17 and discharged pursuant to the terms of the Agreement.

20 Releasees as defined in the Agreement.

22 without limitation, the release of claims as set forth in the Agreement.

26 wrongdoing in this Action or in any other proceeding.

5 move for or oppose de-certification of the FLSA Collective Action Class.

7 Judgment and hereby directs its entry.

Dated: _________________ ERED

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