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Camilo v. Ozuna

United States District Court, N.D. California, San Jose Division

October 21, 2019

RODRIGO CAMILO, et al., Plaintiffs,
v.
SEVERO C. OZUNA, et al., Defendants.

          ORDER GRANTING PLAINTIFFS' RENEWED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT Re: Dkt. No. 53

          Virginia K. Demarchi United States Magistrate Judge.

         Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez, and Jose Lopez filed this hybrid class action and collective action for alleged wage and hour violations under various provisions of the California Labor Code and the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Defendants are Severo C. Ozuna and the Don Vito Ozuna Food Corporation.

         On plaintiffs' initial unopposed motion for preliminary approval of settlement (Dkt. No. 40), the Court conditionally certified a Rule 23 class action and FLSA collective action, designated the named plaintiffs as class representatives, appointed plaintiffs' counsel as class counsel, and reserved judgment on plaintiffs' request for attorneys' fees, costs and expenses, as well as their request for service awards. Dkt. No. 52. The Court otherwise denied plaintiffs' motion for preliminary approval, without prejudice, and noted several items of particular concern. Id.

         Before the Court is plaintiffs' renewed motion for preliminary approval of the settlement. Dkt. No. 53. In addressing one of the Court's noted concerns, plaintiffs have provided their calculations underlying defendants' total estimated exposure, if this case were to proceed to trial. In their renewed motion, plaintiffs now explain that:

• Based on interviews of the plaintiffs, and review of defendants' documents and Department of Labor (“DOL”) records, plaintiffs' counsel estimates that employees worked, on average, 10 hours per day and some Saturdays-i.e., about 20 hours of overtime per week. The average hourly income for each employee is $10/hour. Because plaintiffs claim that defendants paid their overtime hours at a regular rate of pay, plaintiffs contend that they were underpaid $5 for each hour of overtime they worked.
• Employees worked a total of 6, 825.29 workweeks (“California workweeks”)
• Employees worked a total of 5, 661.57 workweeks during the FLSA class period (“FLSA workweeks”)
• Plaintiffs carved out 1, 934 workweeks from the California workweeks and the FLSA workweeks to account for payments made by the DOL in a separate proceeding.

         Although plaintiffs provided one set of numbers to the Court (recited above), they proceeded to use different, albeit somewhat similar numbers, in their actual calculations. Nevertheless, using the numbers provided above and inserting those numbers into plaintiffs' proffered formulas, the Court finds that plaintiffs' estimated damages are roughly accurate, and slightly lower than the numbers provided in their renewed motion:

• Rule 23 overtime: 6825.29 California workweeks -1934 weeks x $5 per hour x 20 hours overtime per week = $489, 129
• FLSA overtime: 5661.57 FLSA workweeks - 1934 weeks x $5 per hour x 20 hours overtime per week = $372, 757
• Meal violations[1]: 6825.29 California workweeks x 5 days x $10 per day = $341, 264.50
• Rest violations: 6825.29 California workweeks x 5 days x $10 per day =
• Waiting time penalties[2]: 107 former employees[3] x $10 per hour x 8 hours x 30 days = $256, 800
• Pay stub violation[4]: 30 employees (going back one year from the filing of the complaint) x 26 pay periods x $100 ...

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