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Medalia Rodriguez and Juan Alcala, On v. Western Mesquite Mines

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 15, 2011

MEDALIA RODRIGUEZ AND JUAN ALCALA, ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
WESTERN MESQUITE MINES, INC., A NEVADA CORPORATION; NEW GOLD, INC., A CANADIAN
CORPORATION; AND DOES 1
THROUGH 150, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

(1) CONDITIONALLY CERTIFYING SETTLEMENT

CLASS;

(2) PRELIMINARILY APPROVING PROPOSED SETTLEMENT;

(3) APPOINTING CLASS REPRESENTATIVES, CLASS COUNSEL, AND SETTLEMENT ADMINISTRATOR;

(4) APPROVING FORMS OF

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT, NOTICE OF INDIVIDUAL WEEKS WORKED, AND REQUEST FOR EXCLUSION; AND,

(5) SETTING HEARING FOR FINAL APPROVAL OF SETTLEMENT [DOC. NO. 23]

Plaintiffs Medalia Rodriguez and Juan Alcala ("Plaintiffs"), on behalf of themselves and others similarly situated, and Defendants Western Mesquite Mines, Inc., New Gold, Inc. and Does 1-150 (collectively, "Defendants") have filed a joint motion for conditional certification of a settlement class in this action, preliminary approval of the parties' proposed settlement, approval of the Notice of Proposed Class Action Settlement, the Notice of Individual Weeks Worked, and the Request for Exclusion, and the setting of a date for the hearing on final approval of the settlement.

The Court having read and considered the papers on the motion, good cause appearing therefore,

IT IS HEREBY ORDERED THAT:

1. The Court GRANTS preliminary approval of the settlement based upon the terms set forth in the parties Stipulation of Settlement and Release ("Settlement Agreement") filed herewith. The settlement appears to be fair, adequate, and reasonable to the class;

2. The settlement falls within the range of reasonableness, appears to be the product of arm's-length and informed negotiations, appears to be presumptively valid, subject only to any objections that may be raised at the final hearing, and appears intended to treat all Class Members fairly;

3. The Court approves, as to form and content, the Notice of Proposed Class Action Settlement, attached as Exhibit 1 to the Settlement Stipulation, the Notice of Individual Weeks Worked, attached as Exhibit 2 to the Settlement Stipulation, and the Request for Exclusion form, attached as Exhibit 3 to the Settlement Stipulation;

4. The Court directs the mailing of the Notice of Proposed Class Action Settlement, Notice of Individual Weeks Worked, and the Request for Exclusion by first class mail to the class members in accordance with the schedule set forth below. The Court finds that the dates selected for the mailing and distribution of those documents, as set forth herein, meet the requirements of due process and provide the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons entitled thereto;

5. It is ordered that the settlement class is preliminarily certified for settlement purposes only, which class is described as: "All current and former non-exempt employees of Defendant Western Mesquite Mine, Inc., in Brawley, California, between February 16, 2011 and the date of preliminary approval". In preliminarily certifying the class for settlement purposes, the Court finds that all of the requirements for class certification as set forth in Federal Rule of Civil Procedure 23 are satisfied based upon the allegations of the complaint and the evidence provided to the Court, subject to further consideration at the Final Approval Hearing after distribution of notice to the members of the Settlement Class as set forth below. In the event the proposed settlement is not consummated for any reason, the conditional certification set forth in this paragraph shall be of no further force or effect;

6. The Court confirms Philip A. Downey, Anthony N. Luti and Dennis P. Wilson, have fairly and adequately represented the interests of the Settlement Class, will continue to do so and therefore pursuant to Federal Rule of Civil Procedure 23(g)(1), are hereby appointed class counsel for purposes of representing the Settlement Class conditionally certified in this Order. The Court GRANTS preliminary approval to an award of attorneys' fees to class counsel in an amount not to exceed $437,500, plus costs not to exceed $30,000, both of which to be set on motion;

7. The Court confirms Medalia Rodriguez and Juan Alcala have fairly and adequately represented the interests of the Settlement Class, will continue to do so and therefore pursuant to Federal Rule of Civil Procedure 23(a)(4), are hereby appointed as the class representatives. The Court GRANTS preliminary approval to a proposed service payment to them of $5,000 each, which amount is to be set on motion;

8. The Court confirms CPT Group as the settlement administrator and grants preliminary approval of the reasonable costs of administration payable to CPT Group in an amount not to exceed $20,000; and,

9. The Court GRANTS preliminary approval of the Public Attorneys General Act payment of $3,750 to the Labor Work Force Development Agency.

10. The Court orders the following schedule for the specified actions/further proceedings:

EVENT TIMING

Last day for Defendants to provide to Within 21 days after entry of Settlement Administrator a database of all Court's Order granting preliminary Settlement Class Members, including names, approval of Settlement last known addresses, social security numbers, and individual work weeks

Last day for Settlement Administrator to mail Within 21 days after Settlement Notices to Settlement Class Members Administrator's receipt of database

Last day for Settlement Class Members to Within 30 days after mailing of submit Request for Exclusion form class Notice

Last day for Settlement Administrator to No later than 10 days after the last provide to Defendants' counsel and Class day for Settlement Class Members Counsel copies of all Request for Exclusion to Request for Exclusion forms forms, and a W-9 Form (within 10 days of receipt)

Last day for filing and service of moving At least 30 days after last day for papers in support of final Settlement approval Settlement Class Members to submit Request for Exclusion EVENT TIMING and request for attorneys' fees and costs forms and at least 21 days before the Final Settlement hearing

Last day for Class Counsel to provide the Court At least 10 days prior to the final with a declaration by the Settlement Settlement approval hearing Administrator specifying the due diligence undertaken with regard to the mailing of the Notice Final Settlement approval hearing January 30, 2012 at 3:00 p.m.

Last day for Defendants to make payment to 21 days after entry of Court Order Settlement Administrator for individual granting final Settlement approval, settlements, court-approved attorney's fees or, if there is any objection to the and costs, service payments to Plaintiffs, settlement, within 21 days after LWDA payment and Settlement expiration of the time to file Administrator's fees appeals or the resolution of any appeals filed, unless Defendants request and Class Counsel agrees to additional time, which agreement will not be unreasonably withheld

Last day for Settlement Administrator to mail No later than 14 calendar days after payments to individual Settlement Class receipt of the funds from Members Defendants

Dismissal of action with prejudice Upon filing of proof that timely claims have been paid

11. A final hearing will be held on January 30 2012, at 3:00 p.m., in Courtroom 5, 940 Front Street, San Diego, CA 92101, to determine whether the Settlement should be granted final approval as fair, reasonable, and adequate as to the Class Members. The Court will hear all evidence and argument necessary to evaluate the Settlement, and will consider the request of Plaintiffs for Class Representative Service payments to each of them, and Class Counsel's request for the Class Counsel Fees Payments and Class Counsel Litigation Expenses Payments. Class Members and their counsel may support or oppose the Settlement and the motion for awards of the Class Representative Payments, the Class Counsel Fees Payments, and the Class Counsel Litigation Expenses Payments, if they so desire, as set forth in the Class Notice.

12. The Court reserves the right to continue the date of the final approval hearing without further notice to Class Members. The Court retains jurisdiction to consider all further applications arising out of or in connection with the Settlement.

IT IS SO ORDERED.

20111115

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