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