Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Viceral v. Mistras Group, Inc.

United States District Court, N.D. California

August 2, 2016

EDGAR VICERAL, et al., Plaintiffs,
v.
MISTRAS GROUP, INC., Defendant.

          ORDER RE SUPPLEMENTAL BRIEFING ON PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL Docket No. 70

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         The Court has re viewed Plaintiffs' motion for preliminary approval, and hereby orders the parties to provide a joint supplemental brief regarding the following issues. The supplemental briefing should be filed no later than August 9, 2016 at 12:00 PM PST.

         1. Attorney's Fees

         Plaintiffs' counsel intends to seek an award of one-third (33⅓%) of the Gross Settlement Fund ($2, 000, 000) as the Fee Award, plus reimbursement of reasonable and actual expenses, not to exceed $42, 000, as the Expense Award. See Docket No. 70-1 (Saltzman Dec.) at ¶ 21. Plaintiffs should provide specific, non-conclusory information as to why a departure from the 25% benchmark is appropriate (e.g., how the issues in this case were particularly difficult, complex, or novel, and given the early procedural posture of this case). See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-48 (9th Cir. 2012).

         Further, to assess the fee request, even for purposes of preliminary approval only, the Court is in need of information as to the lodestar claimed -- i.e., the number of hours incurred in the case and the hourly rates claimed. Plaintiffs' attorneys shall file with this Court, ex parte and under seal, one (1) declaration that states the total number of hours worked on this litigation, and which breaks the number of hours down by task (e.g., “Initial Case Investigation, ” “Settlement Negotiations and Mediation, ” etc.). Counsel shall attach their actual time records to the declaration. The declaration and associated records shall be filed with the Court no later than August 9, 2016. The parties should also ensure that the fee motion is filed and available on the Class Administrator's website at least twenty-one (21) days before objections to the proposed settlement are due.

         2. Expected Recovery Per Class Member

         The parties must clarify whether Plaintiffs' estimate that a California Class member will receive up to $1, 248/year worked and a FLSA Class member will receive up to $263/year is based on the Net Settlement Amount or the Gross Settlement Amount. Compare Docket No. 70 (Mot.) at 9 (discussing recovery based on Net Settlement Amount and estimating that a California Class member will receive up to $1, 248/year) with id. at 10 (stating that the stated recovery of $1, 248 is a significant result but that “this number does not take into account reductions for fees and costs of at least 35%”).

         3. Full Verdict Value of the Case

         Plaintiffs emphasize that the Settlement Agreement “represents a significant recovery for the Class Members.” Id. at 18. However, Plaintiffs do not appear to provide an estimate of what the potential recovery of the case is, instead only providing the expected range of a California class member's recovery for an overtime/off the clock claim ($0 to $4, 600/year), a California class member's recovery for a meal and rest break claim ($0 to $2, 300/year), and a FLSA class member's recovery for an overtime/off the clock claim ($0 to $4, 600/year). See Id. at 10-11. Plaintiffs do not provide a total estimate of what the full aggregate verdict value of these claims will be, and provide no estimates as to the California waiting time penalty claim, or the California Private Attorney General Act (PAGA) claim. Thus, the Court has no point of comparison to determine that this settlement is in fact a significant recovery for the class.

         The parties must provide an estimate of the full aggregate verdict value of each of these claims. Further, with respect to the FLSA claims, Plaintiffs suggest that there is only one FLSA cause of action, namely off-the-clock overtime. Id. at 9 n.13. However, the “FLSA Class Released Claims” includes not only overtime, but minimum wage and recordkeeping violations. Saltzman Dec., Exh. 1 (Settlement Agreement) at ¶ 21. Thus, the parties must provide an estimate of the full verdict value of each of the FLSA claims being released, not simply the overtime claims. Otherwise, the Court cannot determine if the settlement falls within the range of possible approval.

         4. Distribution of the Settlement Fund

         The Settlement Agreement creates two separate classes: (1) a California class that pursues claims under California labor law (California class), and (2) a national class that pursues claims under the FLSA (FLSA class). See Settlement Agreement at ¶¶ 2, 19. An individual can be a member of both the California and FLSA class. The Settlement Agreement distributes the Net Settlement Fund (estimated at $3, 888, 559.65) by allocating 65% of the Net Settlement Fund to the California Class and 35% to the FLSA Class. Mot. at 9; see also Settlement Agreement at ¶ 53(b).

         The parties do not adequately explain the basis of this 65-35 split, especially when this split ultimately results in a FLSA Class member receiving approximately one-fifth of what a California Class member would receive (as there are nearly three times as many FLSA Class members as California Class members). See Settlement Agreement at 4 (number of individuals per class); 9 (maximum individual settlement amount for California Class member is $1, 248/year, and maximum individual settlement amount for FLSA Class member is $263/year). To the extent that Plaintiffs suggest that the split is justified because the FLSA action alleges only one cause of action for off-the-clock overtime, this ignores the fact that the FLSA Class is being required to release their minimum wage and recordkeeping violations claims. Settlement Agreement at ¶ 21. Further, while Plaintiffs state that the FLSA action had a risk of being less likely to obtain certification or survive a decertification motion, Plaintiffs provide no factual or legal basis for this assertion. See Mot. at 10. At most, Plaintiffs state that “the FLSA only provides for overtime when an employee works more than 40 hours in a week, as opposed to California's more favorable '8 hour per-day rule, '” yet estimates both the FLSA and California claim at being between $0 to $4, 600/year per class member. Plaintiffs also repeatedly cite to “more than 500 declarations Defendant amassed from class members to defend against this case, ” but provide no information on what these declarations said and why they would relate only to the FLSA claims but not the California claims. In short, there is inadequate information explaining why a California Class member is entitled to five times the amount of a FLSA Class member.[1] Without this information, the Court cannot determine if there is preferential treatment.

         5. Risks of Litigation

         Plaintiffs provide no explanation of what risks of litigation they face moving forward, and therefore the Court cannot has no basis to decide the strength of Plaintiffs' case; the risk, expense, and duration of further litigation; and the risk of maintaining class action status. Again, Plaintiffs only state that Defendant was able to obtain 500 putative class member declarations, but do not discuss what is in these declarations or what effect (if any) these declarations have on the legal claim. The parties must provide legal authority and an explanation of the facts as to what risks exist.

         With respect to the PAGA claim, the parties must also explain why the $20, 000 PAGA allocation is not an arbitrary reduction of the statutory penalties that would be due. The parties should provide case authority justifying any discount.

         6. FLSA ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.