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Gerald Smith, Samir Rady, Florentino Figueroa, On Behalf of Themselves and All Others Similarly Situated v. Cardinal Logistics Management Corporation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


April 11, 2011

GERALD SMITH, SAMIR RADY, FLORENTINO FIGUEROA, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
CARDINAL LOGISTICS MANAGEMENT CORPORATION, A NORTH CAROLINA CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: The Honorable Samuel Conti

CLASS ACTION [PROPOSED] ORDER (1) GRANTING PRELIMINARY APPROVAL TO SETTLEMENT, (2) APPOINTING PROPOSED CLASS ACTION SETTLEMENT ADMINISTRATOR; (3) APPROVING AND DIRECTING NOTICE TO THE CLASS, AND (4) SETTING HEARING AND RELATED DATES DATE FOR FINAL APPROVAL

Date: April 8, 2011 Time: 10:00 a.m. Courtroom: 1

proposed class action settlement. The Motion is unopposed by Defendant Cardinal Logistics Management Corporation. The parties have stipulated to, and the Court has approved, resolution of this Motion on the papers.

This matter is before the Court on Plaintiffs' Motion for Preliminary Approval of a On March 23, 2011, this Court entered an Order Re: Motion for Preliminary Approval of Class Action Settlement, inviting Plaintiffs to address certain issues. On April 8, 2011, Plaintiffs filed the Supplemental Declaration of Kim E. Card, with Amendments to the Settlement The Court has considered all of the parties' submissions, including the terms of the proposed class action settlement, the Declaration and Supplemental Declaration of Class Counsel Kim E. Card, the discovery and related motion practice that has been conducted in this case, and the arm's-length negotiation process that led to the settlement. The Court has also considered the parties' submissions regarding Defendant's financial condition and its ability to satisfy a greater judgment. Based on the foregoing, and for good cause shown, the Court hereby finds and orders as follows: settlement ("Settlement") under the terms set forth in the Settlement Agreement that was attached as Exhibit A to the Declaration of Kim E. Card, filed in support of the Motion, as modified by the Amendments to Settlement Agreement, attached as Exhibit 1 to the Supplemental Declaration of Kim E. Card, filed April 8, 2011, with one exception: that no cy pres distribution be made without approval of the Court upon a motion. The Court finds that the Settlement is within the range of reasonableness given the recovery obtained, the nature of the claims asserted, and the risks the Class faced if the litigation were to proceed to trial.

Accordingly, the Court preliminarily finds that the Settlement is fair, reasonable and adequate under Federal Rule of Civil Procedure 23(e), and warrants notice to the Class and the scheduling of a final approval hearing.

2. This Court has previously certified a class in this case, during the litigation and pursuant to a contested motion ("the Class"), and made all necessary findings pursuant to Federal Agreement to which the parties' had agreed.

1. The Court grants preliminarily approval of the parties' proposed class action Rule of Civil Procedure at that time. See Order Granting Plaintiffs' Motion for Class Certification, filed September 5, 2008 (Document 83). The Settlement is on behalf of the same Class as the Court previously certified, with a closure date of April 8, 2011 (the date that was anticipated for preliminary approval), and accordingly, no new or different certification of a Settlement Class is required. The two individuals who submitted timely requests for exclusion from the Class following the initial Class Notice that was mailed in December of 2008 are excluded from the Class and shall not be provided Notice of the Settlement.

3. The Court approves the appointment of Rust Consulting, Inc. ("Rust") as the Settlement Administrator. The Court directs Rust to administer the Settlement, including the notice and Claims process as described in the Settlement Agreement and approved herein.

4. The Court approves the proposed form Notice of Class Action Settlement, attached as Amended Exhibit A to the Amendments to Settlement Agreement, filed herein on April 8, 2011, and directs the Settlement Administrator to provide Notice to the Class in the manner set forth in the Settlement Agreement, including by conducting all address searches and the re-mailing of

5. The Court approves the form of the Claim Form and Release, Reminder Postcard, and Request for Exclusion Form, attached as Exhibits B-D of the Settlement Agreement, (with the Amendments to Settlement Agreement, filed herein April 8, 2011, reflecting the 60-day claims period), and directs the Settlement Administrator to provide these forms to the Class Members in the manner set forth in the Settlement Agreement.

Notices as called for under the Settlement.

Claim Form and Release modified in the manner reflected in Amended Exhibit B, attached to the

6. The Court approves the form of the letter attached as Exhibit G to the Settlement

Agreement, which shall be given by Cardinal to those class members who are currently working for Defendant as independent contractors, informing them of their right under the Settlement

7. The Court approves the form of the letter attached as Exhibit I to the Settlement

Agreement, which shall be sent by the Settlement Administrator to the 31 individuals who were Agreement, but not their obligation, to convert to employee status.

incorrectly identified as class members, as identified on Amended Exhibit H to the Settlement Agreeement, filed with the parties' Amendments to Settlement Agreement on April 8, 2011.

8. The deadline for the submission of Claim Forms by the class members shall be sixty (60) days from the date that the Notice is first mailed by the Settlement Administrator. This date shall be printed as indicated in the approved forms.

9. As reflected in the approved form of Notice of Class Action Settlement, attached as Amended Exhibit A to the Amendments to Settlement Agreement, class members shall have the right to request exclusion from the class and the Settlement, or to submit objections to the Settlement. The Settlement Administrator is directed to mail the approved Request for Exclusion form (Exhibit D to the Settlement Agreement) to the class members as part of the Notice packet.

For those class members who were previously sent notice of this action in December of 2008, following the certification of the class, this is a "second opt out" opportunity pursuant to Federal Rule of Civil Procedure 23(e)(4). The deadline for the submission of any Requests for Exclusion and for the filing and service of any objections to the Settlement shall be sixty (60) days from the date that Notice is first mailed by the Settlement Administrator, and such date shall be printed on the Notice, Claim Form, and Request for Exclusion forms, as indicated on the approved forms.

The procedures for the submission of Requests for Exclusion and for the filing and service of any objections shall be as described and set forth in the Notice. Any objections to the Settlement must be filed with the Court, with copies served on both Plaintiffs' and Defendants' counsel, by the deadline set forth in the Notice.

10. The Court directs Class Counsel to file their Motion for Attorneys' Fees, Costs and Expenses, pursuant to the terms of the Settlement, no later than 14 days prior to the deadline for the submission of requests for exclusion and objections.

11. The Court approves the following schedule for Notice and further proceedings in the action:

No later than 30 days from the date this Notice Mailing Date Order is entered No later than 14 days Prior to the Plaintiffs to file Motion for Attorneys' Deadline for the Submission of Requests Fees and Costs for Exclusion and Objections Deadline for the submission of Claim Forms (postmark date) 60 days after Notice Mailing Date Deadline for submission of Requests for Exclusion (postmark date) 60 days after Notice Mailing Date Deadline for the filing and service of any Objections to the Settlement 60 days after Notice Mailing Date Deadline for the filing of the Motion for Final Approval 35 days prior to Final Approval Hearing August 12, 2011 at 10:00 a.m., Final Approval Hearing Courtroom 1, 450 Golden Gate Avenue, 17th Floor, San Francisco, CA, 94102

IT IS SO ORDERED.

THE HONORABLE SAMUEL CONTI United States District Court Judge

20110411

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