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Delbridge v. Kmart Corporation

United States District Court, Ninth Circuit

August 23, 2013

COLETTE DELBRIDGE, individually and on behalf of others similarly situated, Plaintiff,


WILLIAM ALSUP, District Judge.


In this class action, the parties jointly move for preliminary approval of the settlement agreement. For the reasons stated below, the motion is GRANTED.


The facts have been set forth in previous orders and need to be repeated in detail ( see Dkt. No. 246). To summarize, in the earlier round of this action plaintiff Lisa Garvey alleged that defendant Kmart Corporation violated California Wage Order 7-2001(14) by not providing seats to its checkout stands cashiers. Garvey pursued her Private Attorney General Act claim as a class action, seeking to represent other Kmart cashiers in California. A prior order rejected a statewide class in favor of a class limited to cashiers in a Kmart store in Tulare, California (Dkt. No. 92). Garvey's class claim proceeded to bench trial. At trial, class counsel failed to prove that the nature of the work at the Tulare store reasonably permitted the seating modification urged by counsel (Dkt. No. 246 at 1).

That might well have been the end of the case in the district court, but an opportunity was granted to add further representatives for other stores. Plaintiffs Sabrina Cline and Collette Delbridge were then allowed to intervene in the action as putative class plaintiffs (Dkt. No. 289). Both are former Kmart cashiers who worked at Kmart stores after the start of the class period. Cline worked at a Kmart in Petaluma. Delbridge worked in a Kmart in Redlands. A subsequent order dismissed plaintiff Cline from the action and certified a class of cashiers from the Redlands store (Dkt. No. 363).

The parties now move for preliminary approval of a settlement agreement covering all claims of the Redlands and Tulare employees. Key provisions of the settlement agreement are as follows:

First, Kmart will pay $280, 000 to settle the action. This amount will cover (1) the LWDA payment; (2) all settlement shares paid to class members; (3) incentive awards for named plaintiffs; and (4) class counsel expenses. The amount will not cover costs of settlement administration. The parties have agreed to share, at their expense, settlement administration duties.
Second, after deducting class counsel expenses, 75 percent of the remaining fund will be received by the LWDA and 25 percent will be distributed among class members.[*] The fund will be distributed among class members in proportion to the length of their employment at Kmart. Tulare class members will receive a $100 settlement share on average, while Redlands class members will receive a $150 settlement share on average. No class members shall receive a settlement share under $25 or over $200.
Third, the settlement agreement provides that class counsel will seek reimbursement of costs in the amount of $150, 600. If final approval of the settlement includes approval of costs in excess of $150, 600, the excess over $150, 600 will be paid only from funds available from uncashed checks for settlement shares.
Fourth, the release would apply to all class members in the Tulare and Redlands classes who do not timely opt out, and will release defendant from "the claim that Kmart should have provided them with suitable seats while working at Kmart." Plaintiffs' released claims include "all other claims for civil or statutory penalties... all claims for lost wages and benefits, emotional distress, punitive damages and attorney's fees" (Wohl Decl. Exh. A at 14). The release does not include future claims.

The notice of settlement will be mailed to class members by class counsel using a list of addresses provided by Kmart. If a class notice is returned as undeliverable, class counsel will employ Accurint and other reasonable and cost-effective methods to locate the class member. The class notice will instruct class members how to object to the settlement if they so desire and will include an op-out form (referred to in the agreement as an election not to participate in settlement). A class member who timely opts out will not participate in or be bound by the settlement.

The settlement agreement further provides that former plaintiff Sabrina Cline will be deemed a member of the Redlands class for purposes of the settlement. It also provides that plaintiffs Garvey and Delbridge will each seek a $1000 incentive fee in addition to their respective ...

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