UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 22, 2009
ERFAN "ERIC" AMIDI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY-SITUATED, PLAINTIFFS,
SBC LONG DISTANCE, LLC, A DELAWARE CORPORATION, AT&T OPERATIONS, INC., A DELAWARE CORPORATION, AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.
ORDER FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CONDITIONAL CLASS CERTIFICATION, APPROVAL OF CLASS NOTICE, AND SETTING OF A FINAL FAIRNESS HEARING Date: January 21, 2009 Time: 2:00 p.m. Dept: Courtroom C Complaint Filed: May 13, 2008 TRIAL DATE: NONE SET
The Court, having fully reviewed the Joint Motion for Preliminary Approval of Class Action Settlement, the supporting Points and Authorities, Declaration of Isam C. Khoury, the Settlement Agreement, Notice of Class Action Settlement and Claim Form, and the Proposed Order Granting Preliminary Approval, 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 ensure proper notice is provided to Class Members in accordance with due process requirements; and to conduct a Final Approval hearing as to the good faith, fairness, adequacy and reasonableness of any proposed settlement, THE COURT HEREBY MAKES THE FOLLOWING DETERMINATIONS AND ORDERS:
1. The Court finds, on a preliminary basis, that the Settlement Agreement, incorporated in full by this reference and made a part of this Order of Preliminary Approval, appears to be within the range of reasonableness of a settlement which could ultimately be given final approval by this Court; the Court notes that Defendants SBC Services, Inc. and AT&T Operations, Inc. ("Defendants") have agreed to pay the Maximum Settlement Amount of $525,000, plus the employer's share of payroll taxes, to the Plaintiff, Class Members, the Class Representative, Class Counsel, the Claims Administrator, and the State of California Labor Workforce and Development Agency, in full satisfaction of the claims as more specifically described in the Settlement Agreement;
It further appears to the Court, on a preliminary basis, that the settlement is fair and reasonable to Class Members when balanced against the probable outcome of further litigation relating to class certification, liability and damages issues, and potential appeals of rulings. It further appears that significant informal 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 also appears that the proposed Settlement has been reached as the result of intensive, informed and non-collusive negotiations between the Parties;
ACCORDINGLY, GOOD CAUSE APPEARING, THE MOTION FOR ORDER OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT IS HEREBY GRANTED; AND AS A PART OF SAID PRELIMINARY APPROVAL, THE COURT HEREBY ACCEPTS AND INCORPORATES THE PARTIES' SETTLEMENT AGREEMENT AND HEREBY TEMPORARILY AND CONDITIONALLY CERTIFIES THE CLASS FOR SETTLEMENT PURPOSES ONLY PURSUANT TO THE TERMS AND CONDITIONS CONTAINED IN SAID SETTLEMENT AGREEMENT.
2. The Court finds that the Notice of Class Action Settlement and Claim Form advise of the pendency of the Class Action and of the proposed settlement, of preliminary Court approval of the proposed Settlement, claim submission timing and procedures, optout timing and procedures, and of the Final Approval Hearing. These documents fairly and adequately advise Class Members of the terms of the proposed Settlement and the benefits available to Class Members thereunder, as well as their right to "Opt-Out" and procedures for doing so, and of the Final Approval Hearing and the right of Class Members to file documentation in support or in opposition and to appear in connection with said hearing; the Court further finds that said Notice clearly comports with all constitutional requirements including those of due process;
ACCORDINGLY, GOOD CAUSE APPEARING, THE COURT HEREBY APPROVES THE PROPOSED NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND THE PROPOSED CLAIM FORM;
3. The mailing to the present and last known addresses of the Class Members constitutes an effective method of notifying Class Members of their rights with respect to the Class Action and Settlement; ACCORDINGLY, IT IS HEREBY ORDERED as follows:
(a) On or before January 29, 2009 (within five (5) business days of the Court's entry of the Order Granting Preliminary Approval of the Settlement and Notice), Defendants shall forward to the appointed Claims Administrator, Rust Consulting, Inc., a database (in an electronic spreadsheet format) of all Class Members, including the names, last known addresses and telephone numbers, dates of employment in exempt positions at any of the AT&T family of companies during the Covered Period, social security numbers, and respective total compensable workweeks worked during the Covered Period, May 13, 2004 through date of preliminary approval. Within 10 business days of the Court's entry of the Order Granting Preliminary Approval of the Settlement, Defendant shall provide notice as required by the Class Action Fairness Act ("CAFA");
(b) On or before February 20, 2009, (within thirty (30) calendar days of the Court's entry of the Order Granting Preliminary Approval of the Settlement and Notice), the Claims Administrator, Rust Consulting, Inc., shall mail to each Class Member*fn1 , by first class, postage pre-paid, the Notice of Class Action Settlement, Claim Form, Exclusion Form, and a postage-paid envelope addressed to the Claims Administrator.
All mailings shall be made to the present and/or last known mailing address of the Class Members based on Defendants' records, as well as addresses that may be located by the Claims Administrator, who will conduct standard address searches in cases of returned mail. The Court finds that the mailing of notices to Class Members as set forth in this paragraph is the best means practicable by which to reach Class Members and is reasonable and adequate pursuant to all constitutional and statutory requirements including all due process requirements.
(c) On or before April 6, 2009, (no later than fifteen (15) calendar days before the Claims Period deadline / 45 days after mailing the Class Notice), the Claims Administrator, Rust Consulting, Inc., shall mail a "reminder" post-card to those Class Members who have not responded to the Notice of Proposed Class Action Settlement with the return of a Claim Form, or an Exclusion Form, reminding them of the deadline in which to act to make a claim.
4. IT IS FURTHER ORDERED that all:
(a) Requests for Exclusion ("opt-out requests") must be mailed to the Claims Administrator, Rust Consulting, Inc., postmarked on or before April 21, 2009, (sixty (60) calendar days from the mailing of the Notice Packet to submit their Claim Form or Exclusion Form.)
(b) Objections must be filed with the Court as described in the Class Notice on or before March 23, 2009, (thirty (30) calendar days from the mailing of the Notice Packet to submit their Claim Form or Exclusion Form.)and served on Counsel for the Plaintiff and on Counsel for Defendants.
(c) Claim Forms must be mailed to the Claims Administrator, postmarked on or before April 21, 2009, (sixty (60) calendar days from the mailing of the Notice Packet to submit their Claim Form or Exclusion Form.)
5. IT IS FURTHER ORDERED that the Final Approval Hearing shall be held before the undersigned at 2:00 p.m. on May 27, 2009 at the above-entitled court located at the 940 Front Street, Dept. C, San Diego, California 92101 to consider the fairness, adequacy and reasonableness of the proposed Settlement preliminarily approved by this Order of Preliminary Approval, and to consider the application of Class Counsel Cohelan Khoury & Singer for an award of reasonable attorneys' fees, litigation expenses, class representative enhancement, and for costs of claims administration incurred;
6. IT IS FURTHER ORDERED all briefs in support of the proposed Settlement shall be served and filed with the Court on or before May 15, 2009
7. IT IS FURTHER ORDERED that pending final determination of whether this proposed Settlement should be granted final approval, no Class Member, either directly or representatively, or in any other capacity, shall commence or prosecute any action or proceeding asserting any of the Class Members' Released Claims, as defined in the Settlement Agreement, against Defendants, or any other Class Member Released Parties, in any court or tribunal;
8. IT IS FURTHER ORDERED that any party to this case, including Class Members, may appear at the Final Approval Hearing in person or by counsel, and may be heard to the extent allowed by the Court, in support of or 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, and any Order of Final Approval and Judgment regarding such Settlement, fees and expenses; provided, however, that no person, except Class Counsel and counsel for Defendants, shall be heard in opposition to such matters unless such person has complied with the conditions set forth in the Notice of Proposed Class Action Settlement which conditions are incorporated therein;
9. IT IS FURTHER ORDERED that in the event of the occurrence of the Settlement Effective Date, as defined in the Settlement Agreement, all Class Members, except those who have requested exclusion from the settlement, and their successors shall conclusively be deemed to have given full releases of any and all Class Members' Released Claims as defined in the Settlement Agreement against Defendants, their former and present parents, subsidiaries, affiliated corporations and entities, including but not limited to Pacific Bell Telephone Company, and each of their respective officers, officials, directors, employees, partners, shareholders and agents, any other successors, assigns or legal representatives ("Class Members' Released Parties") and all such Class Members and their successors shall be permanently enjoined and forever barred from asserting any Class Members' Released Claims against any Class Members' Released Parties as described by the Settlement Agreement;
10. IT IS FURTHER ORDERED that if, for any reason, the Court does not execute and file an Order of Final Approval, or if the Settlement Effective Date does not occur for any reason whatsoever, the proposed Settlement Agreement and the proposed Settlement subject of this Order and all evidence and proceedings had in connection therewith, shall be without prejudice to the status quo ante rights of the parties to the litigation as more specifically set forth in the Settlement Agreement.
11. IT IS FURTHER ORDERED that, pending further order of this Court, all proceedings in this matter except those contemplated herein and in the Settlement Agreement are stayed.
The Court expressly reserves the right to adjourn or continue the Final Approval Hearing from time-to-time without further notice to the Class Members.
IT IS SO ORDERED.