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Barcia v. Contain-A-Way

March 6, 2009

RAMON BARCIA; MATTHEW CARTER, PLAINTIFF,
v.
CONTAIN-A-WAY, INC., REPRESENTATIVES DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting (1) Final Approval of Class Settlement (2) Entry of Final Judgment (3) Award of Attorneys' Fees (4) Award of Service Award to Class [Doc. Nos. 30, 31]

On February 2, 2009, plaintiffs filed a motion seeking (1) final approval of class settlement; (2) entry of final judgment; (3) award of attorneys' fees; and (4) award of service awards to class representatives. There have been no objections to the settlement. Defendant Contain-A-Way Inc., filed a notice of non-opposition.

BACKGROUND

I. Factual Background

From 2003 until 2008, defendant Contain-a-Way, Inc., doing business as Nexcycle, operated a business which recycled aluminum, glass, and plastic using small kiosks or trailers located behind large grocery stores or other retail stores. The recycling sites were manned by "Site Attendants" or "Floaters" who received the recyclables, weighed the materials, and paid clients with cash or credit according to the weight and material price.*fn1 Nexcycle stored the recyclables at the recycling sites and picked up the matter up periodically. The company required employees to perform a series of tasks before opening and after closing the site to public, but allegedly failed to compensate Site Attendants and Floaters for this pre-opening and post-closing work. In addition, Plaintiffs contend that they were denied certain profit-sharing 401k benefits to which they were entitled.

II. Procedural Background

On April 19, 2007, Plaintiff Randall Lewis filed Randall Lewis, et al. v. Contain-A-Way, et al., civil action no. 37-2007- 00065322, in Superior Court for the County of San Diego, on behalf of himself and all other similarly situated site attendants. (Blumenthal Decl at ¶ 6(a).) Lewis sought unpaid wages and penalties for missed rest breaks.

On May 23, 2007, Plaintiff Ramon Barcia filed the instant action on behalf of himself and all other similarly situated site attendant and floater employees. Plaintiff seeks unpaid wages and penalties for missed rest breaks as well as a claim for ERISA benefits.

Following extensive discovery in both actions, on April 4, 2008, Barcia amended his complaint to add Randall Lewis as a plaintiff. Following the amendment, the state action was dismissed without prejudice for the purpose of proceeding solely in the federal court where all claims could be redressed.

The Amended Complaint alleges defendants (1) failed to pay earned wages and overtime compensation; (2) failed to provide rest periods; (3) failed to provide accurate itemized statements; (4) violated California Business and Professions Code §17200 which prohibits unfair competition; (5) failed to pay ERISA benefits; and (6) violated the fair labor standards act, 29 U.S.C. § 216. Additionally, plaintiffs requested civil damages under California's Private Attorney General Act, Cal. Labor Code §2698.

After extensive discovery and multiple meet and confer sessions, the parties agreed to submit to mediation before nationally recognized labor mediator Mark Rudy on April 2, 2008. Counsel for parties reached an agreement after a day-long negotiation. The specific terms of the settlement required additional negotiation.

On August 15, 2008, the Court granted preliminary approval of the settlement. On September 2, 2008, plaintiffs mailed the notice of settlement to 2,385 current and former employees who comprise the class. The notice provided class members with an opportunity to file a claim for monetary relief, opt out of the settlement, or object to the settlement. (Solorzano Decl. ¶¶ 3-6.) On or before October 1, 2008, plaintiffs mailed a reminder postcard to class members who had not yet responded. Id. Only 478 class members submitted timely claims for unpaid work, 56 class members opted out, and no one objected. Id. at ¶¶ 8-10.

III. The Settlement

The Settlement Class consists of "all individuals employed as Site Attendant and/or Floaters by Nexcycle in California at any time from May 23, 2003 and the date of preliminary approval of the settlement by the Court [August 15, 2008], and who do not file a timely request to be excluded from the settlement class." Without admitting class certification is proper, Defendant stipulated that this class may be certified for settlement purposes. (Blumenthal Decl. at ¶ 6(b).)

In consideration for settlement and a release of the claims, Nexcycle agrees to pay the class $2,500,000, including attorneys' fees, payment of ERISA claim, the named Plaintiffs service awards, the costs of settlement administration, and the PAGA award to the California Labor and Welfare Development Agency ("The Settlement Amount"). ...


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