Morris v. Affinity Health Plan, Inc.

859 F. Supp. 2d 611, 82 Fed. R. Serv. 3d 531, 2012 WL 1608644, 2012 U.S. Dist. LEXIS 64650
CourtDistrict Court, S.D. New York
DecidedMay 8, 2012
DocketNo. 09 Civ. 1932(ALC)
StatusPublished
Cited by55 cases

This text of 859 F. Supp. 2d 611 (Morris v. Affinity Health Plan, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 82 Fed. R. Serv. 3d 531, 2012 WL 1608644, 2012 U.S. Dist. LEXIS 64650 (S.D.N.Y. 2012).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR CERTIFICATION OF THE SETTLEMENT CLASS, FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT, APPROVAL OF ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, AND APPROVAL OF CLASS REPRESENTATIVE SERVICE AWARD

ANDREW L. CARTER, District Judge.

Plaintiff Jorge Guadron (“Plaintiff’) and Class Members are current and former Marketing Representatives or Marketing Specialists who worked at Affinity Health Plan, Inc. (“Affinity”).

On March 3, 2009, Named Plaintiffs Jorge Guadron and Kim Morris and former Named Plaintiff Melissa Adlin (collectively, “Plaintiffs”) commenced this action as a putative class action under Federal Rule of Civil Procedure 23 (“Rule 23”) and as a collective action under 29 U.S.C. § 216(b). Declaration of Troy L. Kessler (“Kessler Decl.”) ¶¶ 23, 27. Plaintiffs alleged that Defendants violated the NYLL by requiring Plaintiffs and others similarly situated to work off-the-clock, and that Defendant knew of and encouraged such practices. Id. On June 12, 2009, Plaintiffs filed an Amended Complaint. Id. ¶ 27.

On March 1, 2010, the Court approved a stipulation to conditionally certify a collective action including Marketing Representatives and Marketing Specialists (“Marketing Representatives”) in Affinity’s South Region. Id. ¶ 34. In March 2010, Notice issued to 438 current and former Marketing Representatives. Id. In response to the notice, 45 Class Members affirmatively opted into the FLSA case, bringing the total number of Plaintiffs and Opt-Ins to 64. Id.

The parties engaged in substantial discovery before agreeing to resolve this case. Id. ¶¶ 36^44. Class Counsel conducted an extensive investigation, including interviews of more than 100 employees; obtaining and reviewing documents from them, and obtaining supportive declarations. Id. ¶ 40. On November 8, 2010, the parties agreed to attend mediation. Id. ¶ 37. In advance of mediation, the parties engaged in targeted discovery. Id. ¶¶ 36-44. Defendant produced personnel files, time and pay records, and Affinity cell phone records for a sample of eleven Plaintiffs and [615]*615Opt-Ins, and deposed the eight of them. Id. ¶¶ 39, 43. Plaintiffs deposed three Affinity corporate witnesses, including a senior manager, a regional manager, and a former supervisor. Id. ¶ 44.

On April 21, 2011, the parties participated at a mediation conducted by Ruth D. Raisfeld, Esq., a well-known employment and class action mediator. Id. ¶¶ 53-70. After twelve hours of negotiations, the parties agreed to the material terms of a settlement and counsel signed a memorandum of understanding. Id. ¶¶ 68-69. Over the next three months, the parties negotiated the terms of a formal Joint Stipulation of Settlement and Release (“Settlement Agreement”) and on or around July 20, 2011, agreed on the final terms. Id. ¶¶ 77, 85. Plaintiffs Jorge Guadron (“Guadron”) and Melissa Adlin (“Adlin”) signed the Settlement Agreement, as did Affinity. Id. ¶¶ 91, 96. Adlin subsequently sought to “withdraw” her signature. Id. ¶ 103. Objector Morris refused to sign the Settlement Agreement. Id. ¶¶ 98-99.

On April 3, 2012, Plaintiff filed a Motion for Certification of the Settlement Class and Final Approval of the Class Action Settlement (“Motion for Final Approval”). That same day, Plaintiff also filed Motions for Approval of Attorneys’ Fees and Reimbursement of Expenses (“Motion for Attorneys’ Fees”) and for Class Representative Service Award (“Motion for Service Award”).

The Court held a fairness hearing on April 17 and 18, 2012, after the Class Action Fairness Act (“CAFA”) notice period had concluded.

Having considered the Motions for Final Approval, for Attorneys’ Fees and Reimbursement of Expenses, for Class Representative Service Award, the supporting declarations, the evidence and oral argument presented at the fairness hearing, and the complete record in this matter, for the reasons set forth therein and stated on the record at the fairness hearing, and for good cause shown,

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

CERTIFICATION OF THE SETTLEMENT CLASS

1. The Court certifies the following class under Federal Rule of Civil Procedure 23(e), for settlement purposes:

All individuals who worked as Marketing Representatives or Marketing Specialists for Affinity Health Plan, Inc. at any time between March 3, 2003 and April 15, 2011.

2. The settlement class meets all of the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b)(3).

3. The settlement class satisfies Fed.R.Civ.P. 23(a)(1) because there are 1,501 Class Members and, thus, joinder is impracticable. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995) (“[Njumerosity is presumed at a level of 40 members.... ”).

4. The proposed class also satisfies Federal Rule of Civil Procedure 23(a)(2), the commonality requirement. All Class Members raise common issues: (1) whether Defendant had a policy of not paying Marketing Representatives and Specialists overtime premium pay for hours worked over 40 in a workweek; (2) whether Defendant failed to pay Class Members premium overtime wages; and (3) whether Defendant knew or should have known that Class Members were working “off-the-clock.” See Willix v. Healthfirst, No. 07 Civ. 1143, 2009 WL 6490087, at *2 (E.D.N.Y. Dec. 3, 2009) (commonality satisfied where Medicaid marketing represen[616]*616tatives alleged overtime and misclassification claims); Ross v. RBS Citizens, N.A., 667 F.3d 900, 908-09 (7th Cir.2012) (commonality established for Plaintiffs’ off-the-clock claims); Nobles v. State Farm Mut. Auto. Ins. Co., No. 10 Civ. 4175, 2011 WL 3794021, at *4 (W.D.Mo. Aug. 25, 2011) (same).

5. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. --, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), does not preclude a commonality finding. The weight of authority rejects the argument that Dukes bars certification in wage and hour cases. See, e.g., Ross, 667 F.3d at 908-09 (finding Dukes inapplicable and holding that “unlawful policy denying employees earned-overtime compensation ... is the common answer that potentially drives the resolution of this litigation”); Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176, 2011 WL 4597555, at *4 (S.D.N.Y. Oct. 4, 2011) (“Unlike the claims in Wal-Mart, Plaintiffs’ NYLL claims ‘do not require an examination of the subjective intent behind millions of individual employment decisions; rather, the crux of this case is whether the company-wide policies, as implemented, violated Plaintiffs’ statutory rights.’ ”); Espinoza v. 953 Assocs.

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859 F. Supp. 2d 611, 82 Fed. R. Serv. 3d 531, 2012 WL 1608644, 2012 U.S. Dist. LEXIS 64650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-affinity-health-plan-inc-nysd-2012.