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Lee Bond and Richard James v. Ferguson Enterprises

February 7, 2011

LEE BOND AND RICHARD JAMES BURKHART, INDIVIDUALLY AND ON BEHALF OF
OWW(MJS) ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
FERGUSON ENTERPRISES, INC., A HEARING CORPORATION, AND DOES 1-50, INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Oliver W. Wanger

(Attorney Information Listed on Next Page)

Date: January 24, 2011 at 10:00 a.m.

REVISED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

On January 24, 2011, the unopposed Motion for Preliminary Approval of Class Action Settlement, filed by Plaintiffs Lee Bond and Richard James Burkhart ("Class Representatives" or "Plaintiffs") came on regularly in Courtroom 3 of the above captioned court, Hon. Oliver W. Wanger presiding, Craig J. Ackermann, Esq. of Ackermann & Tilajef, P.C. and Melissa M. Harnett, Esq. of Wasserman, Comden, Casselman & Esensten, L.L.P. appeared on behalf of Plaintiffs. Reed E. Schaper, Esq. of Curiale, Hirschfeld, Kraemer, LLP, appeared by telephone on behalf of Defendant Ferguson Enterprises, Inc. ("Ferguson" or "Defendant").

This Court having fully received and considered the Plaintiffs' notice of motion, supporting memorandum of points and authorities, declarations of Melissa M. Harnett and Craig J. Ackermann, the Settlement Agreement, the proposed Class Notice, Claim Form, Request for Exclusion, and Rescission of Request for Exclusion Forms, the oral argument presented to the Court and in recognition of the Court's duty to make a preliminary determination as to the reasonableness of any proposed class action settlement, and to conduct a fairness hearing as to good faith, fairness, adequacy, and reasonableness of any proposed settlement, and for the reasons set forth in the Court's Memorandum Decision Re Motion For Preliminary Approval of Class Action Settlement (Doc. 29) ("Court's Memorandum Decision"), granted the Motion for Preliminary Approval, subject to the parties agreeing to narrow the scope of the release and submitting a revised released and Settlement Approval Schedule to the Court within five (5) days of the issuance of the Court's Memorandum Decision. The Parties having complied with the Court's Memorandum Decision by narrowing the scope of the release for the Class and submitting revised Class Notice and Claim Forms, the Court nowHEREBY ORDERS and MAKES DETERMINATIONS as follows:

Plaintiffs and their counsel filed this class action lawsuit alleging that Defendant Ferguson failed to provide timely off-duty meal periods to its California truck drivers; pay its California truck drivers for missed, on-duty and untimely meal periods; pay for all hours worked based on the application of an "automatic lunch deduction"; issue accurate itemized wage statements to California truck drivers; and pay California truck drivers all wages due to them upon termination or separation of employment. Plaintiffs also alleged on a class basis that the foregoing violated California's Unfair Competition Law, Business and Professions Code § 17200, et seq. Defendant filed an Answer denying these allegations.

On November 3, 2010, after a full-day mediation session, the parties reached a class settlement agreement for the disputed claims. In full settlement of the class claims that were encompassed by this case, Plaintiffs and Defendant have agreed to the entry of a Joint Stipulation of Class Action Settlement Agreement ("Settlement Agreement"), attached as Exhibit 1 to the Declaration to the Declaration of Craig J. Ackermann, filed in support of the Motion for Preliminary Approval. Defendant continues to deny all allegations contained in the original and first amended class action complaints.

Plaintiffs have moved this Court to (1) provisionally certify a settlement class; (2) preliminarily approve the Settlement Agreement; (3) direct distribution to the class of a proposed Notice of Settlement, Request for Exclusion Form, and Claim Form (collectively the proposed "Class Notice Package"); and (4) set a hearing date for final approval of the settlement. Defendant filed a statement of non-opposition to the motion and does not oppose Plaintiffs' motion for purposes of settlement but reserves all rights and defenses with respect to the litigation.

ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL

For the reasons set forth in the Court's Memorandum Decision (Doc. 29), the Court finds that provisional certification of the following class for settlement purposes only is appropriate under Federal Rules of Civil Procedure, Rule 23(b)(3), and related case law: all current and former employees of Ferguson, who were based at Ferguson's California locations, and whose primary job responsibility at any time during the period from July 17, 2005 through the date of this Order, included delivering materials in California by driving on the road.*fn1

As discussed at length in the Court's Memorandum Decision (Doc. 29), the Court finds that the Settlement Class meets the numerosity requirement of Rule 23(a)(1) because it consists of 548 class members who have been identified through Defendant's records. The commonality requirement of Rule 23 (a)(2) is also met because there are issues of law and fact common to the class, such as whether Defendant's automatic deduction policy was legal in the absence of contemporaneously kept meal break records; whether Defendant's California truck drivers were provided timely off-duty meal periods; whether Defendant paid its California truck drivers for missed, on-duty and untimely meal periods; whether Defendant's California truck drivers were paid for all time worked; and whether the paystubs for all of Defendant's California truck drivers were inaccurate in stating their hours worked based on the application of the automatic deduction without Defendant maintaining contemporaneous meal break records. In the absence of class certification and settlement, each individual Settlement Class member would be forced to litigate core common issues of law and fact, including the validity of each Settlement Class member's claims that they were unlawfully denied pay for time worked based on the application of the automatic lunch deduction, they were denied timely off-duty meal periods and that they were not paid for missed, on-duty, and untimely meal periods, as required by law. Because the Plaintiffs and Settlement Class members' claims all arise from the same events and course of conduct, and are based on the same legal theories, the typicality requirement of Rule 23(a)(3) is also satisfied. The adequacy of representation requirement set forth in Rule 23(a)(4) is also met here because the Class Representatives have the same interests as all members of the Settlement Class, and are represented by experienced and competent counsel.

Pursuant to Rule 23(b)(3), as the Court also discussed in its Memorandum Decision (Doc. 29),the Court further finds that common issues predominate over individual issues in the litigation and that class treatment is superior to other means of resolving the instant dispute. Employing the class device here will not only achieve economies of scale for Settlement Class members with relatively small individual claims, but will also conserve the resources of the judicial system by avoiding the waste and delay of repetitive proceedings, and prevent the inconsistent adjudications of similar issues and claims.

For the reasons set forth in the Court's Memorandum Decision, the Court finds that the Class Representatives, Lee Bond and Richard James Burkhart, are adequate class representatives and appoints them as such.

Pursuant to Federal Rules of Civil Procedure Rule 23(g), and for the reasons set forth in the Court's Memorandum Decision (Doc. 29), the Court finds that Plaintiffs' counsel Craig Ackermann (Ackermann & Tilajef, P.C.) and Melissa M. Harnett (Wasserman, Comden, Casselman & Esensten L.L.P.) have adequately represented the Settlement Class and are adequate Class Counsel. Specifically, they have sufficiently identified and investigated the potential claims in this matter; have presented evidence to the court of their experience in handling other wage and hour class actions; have demonstrated knowledge of the applicable law; and have allocated sufficient resources to ...


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