1 HROichYaErRd A&. HHIoCyKeSr (SBN 151931) rhoyer@hoyerlaw.com 2 Ryan L. Hicks (SBN 260284) rhicks@hoyerlaw.com 3 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 4 tel (415) 766-3539 fax (415) 276-1738 5 Attorneys for Plaintiff 6 TERESA LANDUCCI 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 TERESA LANDUCCI, on behalf of herself Case No. 3:19−cv−07573−JCS and others similarly situated, 11 CLASS AND COLLECTIVE ACTION Plaintiff, 12 v. [REVISED PROPOSED] ORDER GRANTING 13 FREEMAN EXPOSITIONS, LLC and DOES PRELIMINARY APPROVAL OF 1 to 100, inclusive, SETTLEMENT 14 Defendants. Date:G RANTED F eA bS ru aM rO yD 4I , F 2I 0E 2D 2 15 Time: 9:30 a.m. Courtroom: Courtroom F – 15th Floor 16 Judge: Chief Magistrate Judge Joseph C. Spero 17 18 Final Approval Hearing: _A_u_g_._ _2_6__,_ _2 022 Time: 9:30 a.m. 19 Via Zoom Webinar 20 21 [PROPOSED] ORDER 22 On November 18, 2019, Plaintiff initiated this putative class action by filing a lawsuit 23 in United States District Court, Northern District of California. See Dkt. # 1 (“Compl.”). Plaintiff 24 brought claims against Defendant. See id. On November 2, 2020, Plaintiff filed the operative 25 Second Amended Complaint (“SAC”) bringing claims for: (1) unlawfully withheld wages 26 resulting from the check cashing fees in violation of California Labor Code § 212; (2) resulting 27 Waiting Time Penalties; and (3) unfair business practices in violation of the Unfair 1 Competition Law, Bus. and Profs. Code §§ 17200, et seq. (“UCL”). Plaintiff also asserts a 2 claim for PAGA Penalties on behalf of the LWDA for violations of Labor Code § 212. The 3 remaining causes of action were asserted on an individual basis by Plaintiff and have been 4 resolved. (Dtk. # 46)1. On September 1, 2020, Defendant denied Plaintiff’s allegations and 5 asserted numerous affirmative defenses. See Dkt. # 47. 6 Following an extensive investigation and arms’ length and good faith negotiations 7 during a day long mediation with mediator Deborah Saxe, Esq. on June 22, 2021 and 8 subsequent negotiations during the months thereafter, Plaintiff and Defendant (collectively 9 “the Parties”) ultimately agreed to a tentative settlement agreement in principle to resolve the 10 Class and PAGA claims. Following further confirmatory discovery with third party Bank of 11 America (“BofA”). The Parties subsequently signed a long form Settlement Agreement (as 12 amended) which has been filed with this Court. 13 Plaintiff moves for this Court to: 14 1. Preliminarily approve the Class Action and PAGA Settlement for $500,000; 15 2. Preliminarily and conditionally certify the class for purposes of settlement; 16 3. Preliminarily appoint Plaintiff Teresa Landucci as class representative for purposes 17 of settlement; 18 4. Preliminarily appoint Hoyer & Hicks as class counsel for purposes of settlement; 19 5. Approve as to form and content the Proposed Notice Packet; 20 6. Direct that the Notice Packet be mailed to the Settlement Class Members; and 21 7. Schedule a fairness hearing on the question of whether the proposed settlement 22 should be finally approved as fair, reasonable, and adequate as to the members 23 of the Settlement Class. 24 25 26 27 1 Plaintiff also asserted individual claims of sex discrimination, sexual harassment, and retaliation in violation of the Fair Employment and Housing Act and Labor Code § 1102.5. The individual claims were the subject of a separate settlement agreement reached after the Parties agreed in principle to resolve the Class and PAGA 1 Plaintiff’s preliminary approval motion came on regularly for hearing before this Court 2 on February 4, 2022. The Court ordered the Parties to make certain modifications to the 3 Settlement papers. 4 The Court, having received and fully considered Plaintiff’s notices, motion and 5 memorandum of points and authorities, the Settlement (as amended), the proposed 6 Settlement Documents, which include the revised Notices of Class Action Settlement, and 7 the oral argument presented to the Court, and in recognition of the Court’s duty to make a 8 preliminary determination as to the reasonableness of any proposed class-action settlement 9 and to conduct a fairness hearing as to the good faith, fairness, adequacy and 10 reasonableness of any proposed settlement, HEREBY ORDERS and MAKES 11 DETERMINATIONS as follows: 12 1. All defined terms contained herein shall have the same meaning as set forth in 13 the Amended Joint Stipulation of Class and Representative Action Settlement (hereinafter 14 “Stipulation” or “Settlement”) executed by the Parties and filed with this Court. 15 2. The Court finds that certification of the following class for purposes of 16 settlement is appropriate: All individuals who were employed by Freeman in California as 17 non-exempt/hourly employees and who received paper paychecks from Freeman and 18 against whom Bank of America assessed a non-customer check cashing fee when cashing 19 at least one such paper paycheck at any time between November 18, 2015 and the date of 20 Preliminary Approval of this Settlement Agreement by the Court. 21 3. The Court appoints Plaintiff Teresa Landucci as class representative for the 22 purposes of settlement. 23 4. The Court appoints Hoyer & Hicks as class counsel for the purposes of 24 settlement. 25 5. Federal Rule of Civil Procedure (23(e) requires court approval of a class action 26 settlement. Approval is a two-step process under Rule 23(e). “[T]he Court first determines 27 whether a proposed class action settlement deserves preliminary approval and then, after 1 309 F.R.D. 593, 602 (N.D. Cal. 2015)(internal citations omitted); see also Manual for 2 Complex Litigation (Fourth) § 21.632 (courts “must make a preliminary determination on the 3 fairness, reasonableness, and adequacy of the settlement terms and must direct the 4 preparation of notice of the certification, proposed settlement, and date of the final fairness 5 hearing.”). 6 Preliminary approval of a settlement is appropriate when the settlement: (1) falls within 7 the range of possible approval; (2) appears to be the product of serious, informed, non- 8 collusive negotiations; (3) does not improperly grant preferential treatment to class 9 representatives or segments of the class; and (4) has no obvious deficiencies. In re 10 Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). “Closer scrutiny is 11 reserved for the final approval hearing.” Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 12 2011 U.S. Dist. LEXIS 48878, at *24 (N.D. Cal. Apr. 29, 2011). 13 6. The Court has reviewed the Settlement and proposed Notice Packet, which 14 were separately lodged and are incorporated herein by reference. The Court finds on a 15 preliminary basis that the Settlement appears to be within the range of reasonableness of a 16 settlement which could ultimately be given final approval by this Court. It appears to the Court 17 on a preliminary basis that the settlement amount is fair and reasonable to all potential class 18 members when balanced against the probable outcome of further litigation relating to liability 19 and damages issues. Plaintiff has asserted violations of California labor and unfair 20 competition laws. Defendant agrees to a class settlement in the interest of compromising 21 and resolving the Class Action. The Parties recognize the risk involved in prosecuting and 22 defending the Class Action including significant delay, defenses asserted by Defendant, and 23 further potential appellate issues. 24 7. It further appears that the proposed Settlement has been reached as the result 25 of intensive, serious and non-collusive arm’s-length negotiations.
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1 HROichYaErRd A&. HHIoCyKeSr (SBN 151931) rhoyer@hoyerlaw.com 2 Ryan L. Hicks (SBN 260284) rhicks@hoyerlaw.com 3 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 4 tel (415) 766-3539 fax (415) 276-1738 5 Attorneys for Plaintiff 6 TERESA LANDUCCI 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 TERESA LANDUCCI, on behalf of herself Case No. 3:19−cv−07573−JCS and others similarly situated, 11 CLASS AND COLLECTIVE ACTION Plaintiff, 12 v. [REVISED PROPOSED] ORDER GRANTING 13 FREEMAN EXPOSITIONS, LLC and DOES PRELIMINARY APPROVAL OF 1 to 100, inclusive, SETTLEMENT 14 Defendants. Date:G RANTED F eA bS ru aM rO yD 4I , F 2I 0E 2D 2 15 Time: 9:30 a.m. Courtroom: Courtroom F – 15th Floor 16 Judge: Chief Magistrate Judge Joseph C. Spero 17 18 Final Approval Hearing: _A_u_g_._ _2_6__,_ _2 022 Time: 9:30 a.m. 19 Via Zoom Webinar 20 21 [PROPOSED] ORDER 22 On November 18, 2019, Plaintiff initiated this putative class action by filing a lawsuit 23 in United States District Court, Northern District of California. See Dkt. # 1 (“Compl.”). Plaintiff 24 brought claims against Defendant. See id. On November 2, 2020, Plaintiff filed the operative 25 Second Amended Complaint (“SAC”) bringing claims for: (1) unlawfully withheld wages 26 resulting from the check cashing fees in violation of California Labor Code § 212; (2) resulting 27 Waiting Time Penalties; and (3) unfair business practices in violation of the Unfair 1 Competition Law, Bus. and Profs. Code §§ 17200, et seq. (“UCL”). Plaintiff also asserts a 2 claim for PAGA Penalties on behalf of the LWDA for violations of Labor Code § 212. The 3 remaining causes of action were asserted on an individual basis by Plaintiff and have been 4 resolved. (Dtk. # 46)1. On September 1, 2020, Defendant denied Plaintiff’s allegations and 5 asserted numerous affirmative defenses. See Dkt. # 47. 6 Following an extensive investigation and arms’ length and good faith negotiations 7 during a day long mediation with mediator Deborah Saxe, Esq. on June 22, 2021 and 8 subsequent negotiations during the months thereafter, Plaintiff and Defendant (collectively 9 “the Parties”) ultimately agreed to a tentative settlement agreement in principle to resolve the 10 Class and PAGA claims. Following further confirmatory discovery with third party Bank of 11 America (“BofA”). The Parties subsequently signed a long form Settlement Agreement (as 12 amended) which has been filed with this Court. 13 Plaintiff moves for this Court to: 14 1. Preliminarily approve the Class Action and PAGA Settlement for $500,000; 15 2. Preliminarily and conditionally certify the class for purposes of settlement; 16 3. Preliminarily appoint Plaintiff Teresa Landucci as class representative for purposes 17 of settlement; 18 4. Preliminarily appoint Hoyer & Hicks as class counsel for purposes of settlement; 19 5. Approve as to form and content the Proposed Notice Packet; 20 6. Direct that the Notice Packet be mailed to the Settlement Class Members; and 21 7. Schedule a fairness hearing on the question of whether the proposed settlement 22 should be finally approved as fair, reasonable, and adequate as to the members 23 of the Settlement Class. 24 25 26 27 1 Plaintiff also asserted individual claims of sex discrimination, sexual harassment, and retaliation in violation of the Fair Employment and Housing Act and Labor Code § 1102.5. The individual claims were the subject of a separate settlement agreement reached after the Parties agreed in principle to resolve the Class and PAGA 1 Plaintiff’s preliminary approval motion came on regularly for hearing before this Court 2 on February 4, 2022. The Court ordered the Parties to make certain modifications to the 3 Settlement papers. 4 The Court, having received and fully considered Plaintiff’s notices, motion and 5 memorandum of points and authorities, the Settlement (as amended), the proposed 6 Settlement Documents, which include the revised Notices of Class Action Settlement, and 7 the oral argument presented to the Court, and in recognition of the Court’s duty to make a 8 preliminary determination as to the reasonableness of any proposed class-action settlement 9 and to conduct a fairness hearing as to the good faith, fairness, adequacy and 10 reasonableness of any proposed settlement, HEREBY ORDERS and MAKES 11 DETERMINATIONS as follows: 12 1. All defined terms contained herein shall have the same meaning as set forth in 13 the Amended Joint Stipulation of Class and Representative Action Settlement (hereinafter 14 “Stipulation” or “Settlement”) executed by the Parties and filed with this Court. 15 2. The Court finds that certification of the following class for purposes of 16 settlement is appropriate: All individuals who were employed by Freeman in California as 17 non-exempt/hourly employees and who received paper paychecks from Freeman and 18 against whom Bank of America assessed a non-customer check cashing fee when cashing 19 at least one such paper paycheck at any time between November 18, 2015 and the date of 20 Preliminary Approval of this Settlement Agreement by the Court. 21 3. The Court appoints Plaintiff Teresa Landucci as class representative for the 22 purposes of settlement. 23 4. The Court appoints Hoyer & Hicks as class counsel for the purposes of 24 settlement. 25 5. Federal Rule of Civil Procedure (23(e) requires court approval of a class action 26 settlement. Approval is a two-step process under Rule 23(e). “[T]he Court first determines 27 whether a proposed class action settlement deserves preliminary approval and then, after 1 309 F.R.D. 593, 602 (N.D. Cal. 2015)(internal citations omitted); see also Manual for 2 Complex Litigation (Fourth) § 21.632 (courts “must make a preliminary determination on the 3 fairness, reasonableness, and adequacy of the settlement terms and must direct the 4 preparation of notice of the certification, proposed settlement, and date of the final fairness 5 hearing.”). 6 Preliminary approval of a settlement is appropriate when the settlement: (1) falls within 7 the range of possible approval; (2) appears to be the product of serious, informed, non- 8 collusive negotiations; (3) does not improperly grant preferential treatment to class 9 representatives or segments of the class; and (4) has no obvious deficiencies. In re 10 Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). “Closer scrutiny is 11 reserved for the final approval hearing.” Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 12 2011 U.S. Dist. LEXIS 48878, at *24 (N.D. Cal. Apr. 29, 2011). 13 6. The Court has reviewed the Settlement and proposed Notice Packet, which 14 were separately lodged and are incorporated herein by reference. The Court finds on a 15 preliminary basis that the Settlement appears to be within the range of reasonableness of a 16 settlement which could ultimately be given final approval by this Court. It appears to the Court 17 on a preliminary basis that the settlement amount is fair and reasonable to all potential class 18 members when balanced against the probable outcome of further litigation relating to liability 19 and damages issues. Plaintiff has asserted violations of California labor and unfair 20 competition laws. Defendant agrees to a class settlement in the interest of compromising 21 and resolving the Class Action. The Parties recognize the risk involved in prosecuting and 22 defending the Class Action including significant delay, defenses asserted by Defendant, and 23 further potential appellate issues. 24 7. It further appears that the proposed Settlement has been reached as the result 25 of intensive, serious and non-collusive arm’s-length negotiations. It further appears that 26 extensive investigation and research has been conducted such that counsel for the Parties 27 at this time are able to reasonably evaluate their respective positions. Class Counsel have 1 through extensive negotiations and with the involvement of an experienced mediator, 2 Deborah Saxe. 3 8. It further appears that the proposed Settlement does not improperly grant 4 preferential treatment to the class representative and has no obvious deficiencies. 5 9. In connection with its preliminary approval of the Settlement, the Court appoints 6 Simpluris, Inc. of Santa Ana, CA, to act as the Settlement Administrator who will administer 7 the Settlement according to the terms of the Stipulation, as approved by this Court. 8 APPROVAL OF DISTRIBUTION OF THE NOTICE OF THE SETTLEMENT 9 10. Rule 23(e) provides that a court “must direct notice in a reasonable manner to 10 all class members who would be bound by” a proposed class action settlement. Fed. R. Civ. 11 Pro. 23(e)(1). This Court finds the proposed Notice Packet, which is attached hereto as 12 Exhibits _-_, fairly and adequately advises the potential class members of the terms of the 13 proposed Settlement, as well as the right of class members to opt out of the class, to file 14 documentation in objection to the proposed Settlement, and to appear at the Final Approval 15 Hearing to be conducted at the date set forth below. The Court further finds that the Notice 16 Packet and proposed distribution of such notice by first-class mail to each identified class 17 member at his or her last known address comports with all constitutional requirements, 18 including those of due process. The parties shall add the date and time of the final approval hearing to the notice. 19 11. Accordingly and good cause appearing, the Court hereby approves the 20 proposed Notice Packet and orders the Settlement Administrator to distribute the Notice 21 Packet in the manner and pursuant to the procedures described in the Settlement. 22 12. If more than ten percent (10%) of the Settlement Class submits timely and valid 23 requests for exclusion pursuant to the terms and procedures of the Settlement, this entire 24 Settlement shall become voidable and unenforceable as to Plaintiff and Defendant, at 25 Defendant’s sole discretion. Defendant may exercise such option by giving notice, in writing, 26 to Class Counsel and to the Court not more than seventeen (17) days following the Response 27 Deadline. 1 13. The Parties have proposed and the Court hereby appoints as cy pres 2 beneficiary of any uncashed funds, The Impact Fund. 3 FINAL APPROVAL/FAIRNESS HEARING AND SCHEDULE 4 14. The Court hereby grants the Plaintiff’s motion to set a fairness hearing for final 5 approval of the Settlement (“Final Approval/Fairness Hearing”) and orders the following 6 schedule of dates for further proceedings: 7 a. Mailing of Notice Packet to the class shall be completed on or before 8 _M_a_y_ _1_1_,_ _2__0;22 9 b. Posting of Plaintiff’s Motion for Attorney’s Fees and Costs on the Settlement 10 Administrator’s website and filing that motion in the Court’s ECF Docket, 11 35 days prior to the Response Deadline; and 12 c. The deadline for class members to file and submit written objections and 13 requests for exclusion shall bJe u_l_y_ _1_1__,_ _2_0_2_2(60 Days After Mailing Date). 14 15. The Final Approval/Fairness Hearing will be held on _A_u_g_._ _2_6__,_ _2_0_2_2, at 9:30 15 a.m. Class Members may attend the hearing via Zoom. Instructions are provided by the 16 Court at: https://www.cand.uscourts.gov/judges/spero-joseph-c-jcs/. Members of the class 17 may appear and present objections at the Final Approval/Fairness Hearing in person or by 18 counsel. 19 16. Plaintiff shall file a Motion for Final Approval no later than 14 days prior to the 20 hearing. 21 17. The Court expressly reserves the right to adjourn or to continue the Final 22 Approval/Fairness Hearing without further notice to class members, except that notice of a 23 continuance shall be provided to all class members who submit a proper objection. 24 18. IT IS FURTHER ORDERED that, if for any reason the Court does not grant final 25 approval of the Settlement, or the Settlement otherwise does not become effective in 26 accordance with the terms of the Stipulation, this Order shall be rendered null and void and 27 shall be vacated, and the Parties shall revert to their respective positions as of before entering 1 shall be without prejudice to the status quo ante rights of the Parties to the Class Action as 2 more specifically set forth in the Settlement. 3 IT IS SO ORDERED. 4 5 Date: _A_p__r_i_l_ _6_,_ _2_0_2_2_________ 6 7 HON. JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27