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National Seating & Mobility, Inc. v. Parry

United States District Court, Ninth Circuit

May 16, 2013

NATIONAL SEATING & MOBILITY, INC., Plaintiff,
v.
MICHAEL PARRY and DOES 1 through 20; inclusive, Defendants. MICHAEL PARRY, individually and on behalf of all others similarly situated, Cross-Complainant,
v.
NATIONAL SEATING & MOBILITY, INC., Cross-Defendant.

RONALD S. BUSHNER, VICTORIA L. TALLMAN, WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER LLP, San Francisco, California, Attorneys for Plaintiff and Counter-Claim Defendant NATIONAL SEATING & MOBILITY, INC.

C. BROOKS CUTTER, JOHN R. PARKER, JR., KERSHAW CUTTER & RATINOFF, LLP, Sacramento, California MARK P. MEUSER, MEUSER LAW GROUP, INC, Walnut Creek, California Attorney for Defendant and Counter-Claim Plaintiffs' Class.

[PROPOSED] ORDER (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT; (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASS; (3) APPROVING CLASS NOTICE, CLAIM FORM AND REQUEST FOR EXCLUSION PROCEDURE; (4) DIRECTING DISSEMINATION OF CLASS NOTICE; AND (5) SETTING A HEARING FOR FINAL APPROVAL OF THE SETTLEMENT

JEFFREY S. WHITE, District Judge.

The parties to the above-captioned civil actions ("Actions"), Plaintiff and Cross-Claim Defendant NATIONAL SEATING & MOBILITY, INC. ("NSM") and Defendant and Cross-Claim Plaintiff Michael Parry, ("Representative Plaintiff") individually and on behalf of others similarly situated ("Plaintiffs") have agreed - subject to final approval following notice to the proposed Settlement Class - to settle the Actions upon the terms and conditions set forth in the Joint Stipulation of Settlement and Release Between Plaintiffs and Defendant ("Settlement"), which was filed with the Court in connection with the present motion by Plaintiffs for an Order (1) Preliminarily Approving Class Action Settlement; (2) Provisionally Certifying Settlement Class; (3) Approving Class Pre-Notice and Notice, Claim Form and Request for Exclusion Procedure; (4) Directing Dissemination of Class Notice; and (5) Setting Hearing for Final Approval of the Settlement ("Plaintiffs' Motion").

Plaintiffs' Motion is unopposed by NSM and was submitted to this Court for review and approval on April 26, 2013. After considering Plaintiffs' Motion, the Settlement Agreement, the record and proceedings herein, the Court finds, concludes, and hereby orders as follows:

1. The Settlement is preliminarily approved as fair, reasonable, and adequate.

2. For purposes of determining whether the terms of the proposed Settlement should be finally approved as fair, reasonable and adequate, the following Class is conditionally certified, for purposes of this Settlement only:

(a) Class: This class includes all Rehabilitation Technology Suppliers who are or were employed by National Seating & Mobility, Inc. who had an Employment Agreement which dictated payment including commissions to be based on "Gross Base Office Profits" or like language for work performed at any time between February 5, 2004 through the Date of Preliminary Approval of the Settlement, and whose Employment Agreement has a Tennessee choice of law provision.

3. Plaintiff Michael Parry is appointed as representative of the Settlement Class and the following Plaintiffs' counsel are designated as counsel for the Settlement Class ("Class Counsel"): Kershaw Cutter & Ratinoff, LLP and Meuser Law Group, Inc.

4. The Court also appoints Class Action Administration, Inc., 10875 Dover Street, Suite 300, Westminster, CO 80021 ("CAA") to act as Settlement Administrator to assist the parties in performing the following duties: (a) using the data provided by NSM to prepare the Claim Forms with the information for each Class Member; (b) mailing the Notice and accompanying Forms to Class Members; (c) tracking and follow-up on returned Forms and Requests to be Excluded; (d) notifying the Parties of timely and untimely claims; (e) calculating the amounts due to each Class Member pursuant to the Settlement; (f) notifying the Parties of and making determinations of any disputes regarding claims by the Class Members; and (g) reporting to the Parties and the Court as required or appropriate.

5. Notice to the Class shall be provided in the manner described in the Settlement Agreement. The approved form of Class Notice is attached as Exhibits A-C to the Declaration of John R. Parker, Jr.

6. The Court preliminarily finds that the dissemination of the Notice under the terms provided for in this Order constitutes the best notice practicable under the circumstances, and is due and sufficient notice for all purposes to all persons entitled to such notice, and fully satisfies the requirements of due process, the Federal Rules of Civil Procedure, and all other applicable laws. Prior to the final settlement approval hearing, a declaration shall be filed with the Court confirming that Notice was given in accordance with the terms of this Order.

7. A hearing shall be held on October 25, 2013, at 9:00 a.m., in Courtroom 11 of the United States District Court for the Northern District of California ("Final Approval Hearing") to determine whether the proposed Settlement should be finally approved as fair, reasonable, and adequate, and whether a Final Order and Judgment approving the Settlement and dismissing all claims asserted in the Actions on the merits, with prejudice and without leave to amend, should be entered. Plaintiff's request for incentive awards and the request for an award of attorneys' fees, costs and expenses shall be served and filed with the Court within 45 days of the entry of this Order. Plaintiff must ensure class members receive proper notice of that motion, as set forth below. Plaintiff's briefs and papers in support of final approval shall be served and filed with the Court by September 20, 2013. The Final Approval Hearing described in this paragraph may be postponed, ...


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