Britt v. Clallam County Public Hospital District No. 2

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [9] 10 JENNIFER BRITT, individually and on CASE NO. C23-5377 MJP behalf of others similarly situated, 11 ORDER GRANTING MOTION FOR Plaintiff, PRELIMINARY APPROVAL OF 12 CLASS AND COLLECTIVE v. SETTLEMENT [13] CLALLAM COUNTY PUBLIC 14 HOSPITAL DISTRICT NO. 2 d/b/a OLYMPIC MEDICAL CENTER, a 15 Washington Municipal Corporation, 16 Defendant. [17] 18 INTRODUCTION 19 This matter comes before the Court on Plaintiff Jennifer Britt’s Motion for Preliminary 20 Approval of Class and Collective Settlement. (Dkt. No. 36.) Having reviewed the Motion and all 21 supporting materials, the Court GRANTS the Motion. 22 BACKGROUND 23 This case concerns claims that Britt, along with approximately 1,350 current and former 24 hourly-paid, non-exempt employees of Defendant Clallam County Public Hospital District No. 2 1 d/b/a Olympic Medical Center (“OMC”) whom she seeks to represent, performed work for OMC 2 that remained unpaid due to OMC’s practices and policies. (Mot. at 8.) Specifically, Britt alleges 3 “she and others like her were required to remain on-duty during their unpaid meal breaks in 4 accordance with OMC’s practices and policies,” and that OMC’s use of an automatic time- 5 rounding system “resulted, over time, in employees not being paid for all hours worked.” (Id.) 6 Britt claims that these practices and policies violated the Fair Labor Standards Act, 29 U.S.C. § 7 201 et seq. (the “FLSA”), and Washington state law. (Dkt. No. 1 ¶ 9.) OMC has denied the 8 allegations along with any and all liability for Britt’s claims under the belief that their “meal 9 break and automatic deduction policies, as well as its other timekeeping policies, were consistent 10 with applicable law and are not susceptible to class certification.” (Id.) After informal discovery 11 and mediation, Britt now seeks preliminary approval of a settlement reached between the Parties. 12 (See Declaration of William M. Hogg (“Hogg Decl.”), Dkt. No. 36-4 ¶¶ 18–21.) 13 The Parties have agreed on a gross settlement amount of $1,400,000.00. (See Class and 14 Collective Action Settlement Agreement (the “Settlement Agreement”), Dkt. No. 36-1 at III.) 15 The Settlement Agreement proposes that the amount be divided into two tranches. The first is the 16 “FLSA Net Settlement Fund,” a separate $250,000.00 fund to compensate Class Members who 17 agree to settle their federal FLSA claims by opting-in to the FLSA Collective Action. 18 (Settlement Agreement § I.W; Hogg Decl. ¶ 35–36.) The Parties note that opting-in “incentivizes 19 participation in the FLSA collective action while avoiding ‘double recovery.’” (Hogg Decl. ¶ 20 67.) The second is the “Class Net Settlement Fund,” which will of the remaining gross settlement 21 amount, minus requested payments to the class representative ($7,500.00), proposed class 22 counsel ($466,666.67, or one-third of the gross settlement amount), and settlement administrator 23 (15,000.00). (Settlement Agreement § III.B; Hogg Decl. § 36.) Both funds are to be disbursed to [24] 1 Class and Collective Action members on a pro rata basis based on the member’s individual 2 earnings during the class period when compared to the total earnings of the Class and Collective 3 Action members during the period. (See Settlement Agreement §§ III.C.2; III.D.2.) 4 Lastly, the Court notes that Plaintiff has provided a notice form intended to provide notice to 5 members of the Settlement Class, (see Notice of Class and Collective Action Settlement (the “Class 6 Notice”), Ex. A to Mot. (Dkt. No. 36-2),) and an opt-in form for Class Members to join the FLSA 7 Collective Action, (see FLSA Collective Consent Form (the “FLSA Opt-In”), Ex. B to Mot. (Dkt. [8] No. 36-3.) ANALYSIS [9] The Court first examines certification of the Settlement Class before analyzing the [10] propriety of preliminary approval of the settlement. The Court finds that certification of the [11] Settlement Class is appropriate and that the terms provided in the Settlement Agreement are [12] likely to be found fair, reasonable, and adequate. See Fed. R. Civ. P. 23(e)(1)(B). [14] A. Preliminary Certification of Settlement Class The Court finds the certification of the proposed Settlement Class is appropriate because [15] Plaintiffs have shown that it meets all of the requirements of Rules 23(a) and 23(b)(3). [16] 1. Numerosity [17] The Court is satisfied that the Settlement Class is so numerous that joinder of all [18] members is impractical. See Fed. R. Civ. P. 23(a)(1). Plaintiffs’ Complaint and Motion identify [19] at least 1,350 individuals who were allegedly impacted by OMC’s meal break, automatic [20] deduction, and other timekeeping policies. (Mot. at 14–15; Complaint ¶ 43.) This satisfies Rule [21] 23(a)(1)’s numerosity requirement. [24] 1 2. Commonality and Predominance 2 The Court finds that there are common issues of law and fact in satisfaction of Rule 3 23(a)(2)’s commonality requirement and that these common issues predominate over individual 4 ones as required by Rule 23(b)(3). The Court considers commonality and predominance together 5 given their overlapping nature. See, e.g., Valentino v. Carter–Wallace, Inc., 97 F.3d 1227 , 1234 6 (9th Cir. 1996) (“Implicit in the satisfaction of the predominance test is the notion that the 7 adjudication of common issues will help achieve judicial economy.”). 8 To show commonality, Rule 23(a)(2) requires the plaintiff to demonstrate that there are 9 “questions of law or fact common to the class.” “Commonality requires the plaintiff to 10 demonstrate that the class members have suffered the same injury.” Wal-Mart Stores, Inc. v. 11 Dukes, 564 U.S. 338 , 349–50 (2011) (citation and quotation omitted). To satisfy commonality, 12 the claims must depend on a common contention “that is capable of classwide resolution.” Id. at 13 350. As to predominance, the Court “tests whether proposed classes are sufficiently cohesive to 14 warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591 , 623 15 (1997). “This calls upon courts to give careful scrutiny to the relation between common and 16 individual questions in a case.” Tyson Foods, 577 U.S. at 453. “An individual question is one 17 where members of a proposed class will need to present evidence that varies from member to 18 member, while a common question is one where the same evidence will suffice for each member 19 to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” Id. 20 (citation and quotation omitted). “The Rule 23(b)(3) predominance inquiry asks the court to 21 make a global determination of whether common questions prevail over individualized ones.” 22 Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). “Considering whether 23 questions of law or fact common to class members predominate begins, of course, with the [24] 1 elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 2 U.S. 804 , 809 (2011) (internal quotation marks omitted). 3 Plaintiffs have satisfied both predominance and commonality. They identify a class of 4 individuals who were “uniformly victimized by [OMC’s] automatic meal break deduction policy 5 and/or [OMC’s] automatic rounding policy. (Compl. ¶ 88.) This presents common issues, 6 including whether OMC violated federal and state wage-and-hour protections by failing to pay 7 premium overtime wages for overtime hours worked during unpaid meal breaks and or 8 automatically deducting time from employees’ recorded hours. (See Mot. at 15–16.) 9 Additionally, the Court finds that the members of the proposed class—all non-exempt employees 10 subject to OMC’s policies—are “similarly situated,” as required by 29 U.S.C. § 216 (b). 11 Resolving these legal issues appears possible through classwide proof and the Court finds that 12 common issues predominate over any apparent individual ones. And while damages might vary 13 among class members, the right to recovery could be determined on a classwide basis. The Court 14 finds both commonality and predominance satisfied. 15 3. Typicality 16 The Court finds Plaintiffs’ claims are typical of absent class members as required by Rule 17 23(a)(3). 18 “The test of typicality ‘is whether other members have the same or similar injury, 19 whether the action is based on conduct which is not unique to the named plaintiffs, and whether 20 other class members have been injured by the same course of conduct.’” Hanon v. Dataprods. 21 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). “Typicality refers to the nature of the 22 claim or defense of the class representative, and not to the specific facts from which it arose or 23 the relief sought.” Id. (internal citation and quotation marks omitted). The requirement is [24] 1 permissive, such that “representative claims are ‘typical’ if they are reasonably coextensive with 2 those of absent class members; they need not be substantially identical.” Just Film, Inc. v. 3 Buono, 847 F.3d 1108, 1116 (9th Cir. 2017) (quoting Parsons v. Ryan, 754 F.3d 657, 685 (9th 4 Cir. 2014)). “The purpose of the typicality requirement is to assure that the interest of the named 5 representative aligns with the interests of the class.” Hanon, 976 F.2d at 508 . 6 Britt alleges that she was subject to the same illegal policies and practices that affected 7 the other class members. (See Compl. ¶ 98; Hogg Decl. ¶ 53.) The claims she pursues appear 8 typical of the Settlement Class’s because the claims and injuries arise out of a common course of 9 conduct. This satisfies typicality. See Hanon, 976 F.2d at 508 . 10 4. Adequacy 11 Rule 23(a) also requires that “‘the representative parties will fairly and adequately protect 12 the interests of the class.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) 13 (quoting Fed. R. Civ. P. 23(a)(4)), overruled on other grounds by Wal-Mart, 564 U.S. 338 . 14 Adequacy of representation requires that “[f]irst, the named representatives must appear able to 15 prosecute the action vigorously through qualified counsel, and second, the representatives must 16 not have antagonistic or conflicting interests with the unnamed members of the class.” Lerwill v. 17 Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). As to class counsel, the Court 18 must also assess the following requirements of Rule 23(g): 19 (i) the work counsel has done in identifying or investigating potential claims in the action; 20 (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; 21 (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. [22] Fed. R. Civ. P. 23(g)(1)(A). The Court may also consider “any other matter pertinent to [23] counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. [24] 1 23(g)(1)(B). And class counsel must “fairly and adequately represent the interests of the class.” 2 Fed. R. Civ. P. 23(g)(4). 3 The Court finds that Plaintiff to be an adequate class representative and that class counsel 4 is similarly adequate. See Fed. R. Civ. P. 23(a)(4). While Britt has not provided a declaration, 5 her counsel represents that Britt and counsel “prosecuted this case with the interests 6 of the Class members in mind.” (Hogg Decl. ¶¶ 55.) Counsel represents that Britt played a 7 “critical role” in helping secure resolution of the dispute, (Mot. at 25,) and that her claims are “in 8 line . . . [and] not antagonistic to the claims of Class Members.” (Hogg Decl. ¶ 55.) As such, the 9 Court finds the Britt to be an adequate representative. Similarly, the Court finds that Plaintiff has 10 retained counsel who have vigorously litigated this action, are experienced in bringing class 11 wage-and-hour claims, (see Hogg Decl. ¶¶ 5–7,) and have the resources necessary to litigate this 12 case. See Fed. R. Civ. P. 23(g)(1). 13 5. Superiority 14 “In determining superiority, courts must consider the four factors of Rule 23(b)(3).” 15 Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180 , 1190 (9th Cir.), as amended on denial of 16 reh’g, 273 F.3d 1266 (9th Cir. 2001). The four factors are: 17 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; 18 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 19 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 20 (D) the likely difficulties in managing a class action. 21 Fed. R. Civ. P. 23(b)(3)(A)-(D). 22 The Court finds superiority satisfied. Coordinating this litigation as a settlement class 23 action remains desirable given the relatively small individual amounts likely at issue, the limited [24] 1 interest each class member likely has in directing the litigation, and the desirability in having one 2 court resolve this legal and factual issue for all class members. And there is no evidence of any 3 difficulties in managing the case as a class action for settlement purposes. 4 6. Approval of Settlement Class and Settlement Class Counsel 5 Having found all of the Rule 23(a) and Rule 23(b)(3) factors satisfied, the Court 6 GRANTS the Motion as to the proposed Settlement Class and the FLSA Collective. The Court 7 CERTIFIES the following as the Settlement Class: 8 “All current and former hourly, non-exempt employees employed by Defendant in Washington at any time starting April 27, 2020, through the date of Preliminary 9 Approval of the Settlement.” [10] (Settlement Agreement ¶ I.B.) The Court further APPROVES of the terms and conditions [11] contained in the Settlement Agreement pertaining to the FLSA Collective, which is defined as [12] follows: [13] “All current and former hourly, non-exempt employees employed by Defendant 14 in Washington at any time starting April 27, 2020, through the date of Preliminary Approval of the Settlement, who timely submit the FLSA Collective Consent 15 Form to join the collective action.” 16 (Settlement Agreement ¶ I.B; I.T–V.) And the Court APPOINTS Michael C. Subit of 17 Frank Freed Subit & Thomas LLP, Michael A. Josephson, Andrew W. Dunlap, and William M. 18 Hogg of Josephson Dunlap LLP, Richard J. (Rex) Burch of Bruckner Burch PLLC, and William 19 C. (Clif) Alexander and Austin W. Anderson of Anderson Alexander PLLC, as Settlement Class 20 Counsel. [24] 1 B. Preliminary Approval of Settlement and Notice. 2 The Court finds that notice of the settlement should be given to the Settlement Class, 3 given that the proposed settlement appears likely to be found fair, reasonable, and adequate. See 4 Fed. R. Civ. P. 23(e)(1)(B). 5 1. Legal Standard 6 A proposed class action may not be settled on a classwide basis without court approval. 7 Fed. R. Civ. P. 23(e). Before approving a settlement, the Court must determine whether to order 8 notice of the proposed settlement to the class. Fed. R. Civ. P. 23(e)(1). This requires the parties 9 to “provide the Court with information sufficient to enable it to determine whether to give notice 10 of the proposal to the class.” Fed. R. Civ. P. 23(e)(1)(A). Notice must be given if the parties 11 show that “the court will likely be able to: (i) approve the proposal under Rule 23(e)(2); and (ii) 12 certify the class for purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B). 13 Under Rule 23(e)(2), the Court must determine whether the proposed settlement taken as 14 a whole is “fair, adequate, and reasonable.” Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026 15 overruled on other grounds by Wal-Mart 564 U.S. 338 (2011). “[S]ettlements that occur before 16 class certification are subject to a high procedural standard.” Kim v. Allison, 8 F.4th 1170 , 1178 17 (9th Cir. 2021) (quotation omitted). “The district court must act as a fiduciary, protecting the 18 interests of absent class members by scrutinizing the settlement's fairness in light of well19 established factors.” Id. To assess whether a proposed settlement comports with Rule 23(e)(2), 20 the Court considers the following: 21 (1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action 22 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and 23 views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. [24] 1 Kim, 8 F.4th at 1178 (quotation and citation omitted). When settlement happens before class 2 certification, approval is contingent not only on a thorough assessment of these eight factors, but 3 also a finding that the settlement “is not[ ] the product of collusion among the negotiating 4 parties.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011) 5 (quotation and citation omitted). 6 2. Preliminary Approval. 7 The Court finds that notice of the settlement should be given to the settlement class, 8 given that the proposed settlement appears likely to be found fair, reasonable, and adequate. See 9 Fed. R. Civ. P. 23(e)(1)(B). Based on the record presented to the Court, it appears the settlement 10 was negotiated at arm’s length by informed and experienced counsel through the assistance of 11 experienced and impartial mediator. Though subject to final approval, it appears that the relief 12 provided to the class under the settlement is adequate, particularly when considering the costs, 13 risks, and delay associated with proceeding to trial and potential appeal. The method proposed 14 for distributing relief to the settlement classes and processing claims also appears adequate and 15 effective, though the Court will entertain any objections to the methodology used and the results 16 achieved. Finally, the Court finds that the proposed settlement appears to treat Settlement Class 17 members equitably relative to each other. The settlement therefore meets the criteria for 18 preliminary approval, and notice should be given to the Settlement Class. Accordingly, the Court 19 preliminarily approves the terms of the Settlement Agreement and ORDERS Plaintiff to provide 20 notice to the Settlement Class using the Class Notice form proposed by Plaintiff. 21 The Court finds that the form, content, and method of giving notice to the Settlement 22 Class as described in the Section III.F.2 of the Settlement Agreement: (a) constitute the best 23 practicable notice to the Settlement Class; (b) are reasonably calculated, under the circumstances, [24] 1 to apprise Settlement Class members of the pendency of the action, the terms of the proposed 2 settlement, and class members’ rights under the proposed settlement; (c) are reasonable and 3 constitute due, adequate, and sufficient notice to those persons entitled to receive notice; and (d) 4 satisfy the requirements of Federal Rule of Civil Procedure 23 and due process. The Court 5 further finds that the Class Notice is written in plain language, uses simple terminology, and is 6 designed to be readily understandable by Settlement Class members. 7 Non-material modifications to the Class Notice may be made without further order of the 8 Court. As requested, the Court appoints ILYM Group as the Settlement Administrator, who shall 9 be supervised by Settlement Class Counsel and the Court. The Court directs OMC to provide the 10 Settlement Administrator with the Class and Collective Data no later than twenty-one (21) calendar 11 days following the entry of this Order (as per Section III.F.2.a of the Settlement Agreement.) The 12 Settlement Administrator is directed to carry out the notice plan found in Section III.F.2 of the 13 Settlement Agreement and to perform all other tasks that the Settlement Agreement requires. Prior 14 to the Final Approval Hearing, Settlement Class Counsel shall cause to be filed with the Court an 15 appropriate declaration with respect to complying with the provisions of Section III.F.2 of the 16 Settlement Agreement. 17 3. Notice Date 18 The Court directs the Settlement Administrator to cause a copy of the Notice to be mailed 19 to all potential settlement class members in the manner outlined in the Settlement Agreement. 20 The mailing is to be made by first class United States mail and via email to potential Settlement 21 Class members where an existing email address is available, within fourteen (14) calendar days 22 of the Settlement Administrator’s receipt of the Class and Collective Data (the “Notice Date”). [24] 1 The settlement website shall include, and make available for download, copies of the Settlement 2 Agreement and Class Notice. 3 4. Funds Held by Settlement Administrator 4 All funds held by the Settlement Administrator shall be deemed and considered to be in 5 custodia legis of the Court and shall remain subject to the jurisdiction of the Court until such 6 time as the funds are distributed pursuant to the revised settlement or further order of the Court. 7 5. Deadline to Submit Claim Forms 8 Plaintiff proposes allowing Settlement Class members sixty (60) calendar days from the 9 Notice Date to submit their signed FLSA Opt-In forms. The Court finds this request is 10 reasonable and allows for sufficient time for Class Members to opt-in to the FLSA Collective 11 Action. The Court therefore allows Settlement Class members 60 days from the Notice Date to 12 submit their signed FLSA Opt-In forms. This is the “FLSA Opt-In Deadline.” 13 6. Exclusions 14 The Court largely agrees with Plaintiff’s proposed exclusion methodology, (see Class 15 Notice § 10,) but directs Plaintiff to clarify the opt-out provision as follows: Any Settlement 16 Class member that wishes to be excluded from the Settlement Class must mail an exclusion letter 17 to the Settlement Administrator at the addresses provided in the Notice, postmarked no later than 18 the deadline to opt-out, as specified on the Notice, and sent via first class postage pre-paid U.S. 19 mail. The exclusion letter must: (a) state the Settlement Class member’s full name, address, and 20 telephone number; (b) state the name and number of this case, Britt v. Clallam County Public 21 Hospital District No. 2 d/b/a Olympic Medical Center, Case No. 2:23-cv-05377-MJP; (c) contain 22 the Settlement Class member’s personal and original signature or the original signature of a 23 person authorized by law to act on the Settlement Class member’s behalf with respect to a claim [24] 1 or right such as those asserted in the litigation, such as a trustee, guardian or person acting under 2 a power of attorney; and (d) state unequivocally the Settlement Class member’s intent to be 3 excluded from the settlement. To be valid, each individual class member who seeks exclusion 4 must file an individual request for exclusion—in other words, a class member may not request 5 exclusion for anyone other than for that the class member. 6 Any Settlement Class member who does not timely and validly exclude themselves from 7 the settlement shall be bound by the terms of the revised settlement agreement. If final judgment 8 is entered, any Settlement Class member who has not submitted a timely, valid written notice of 9 exclusion from the Settlement Class shall be bound by all subsequent proceedings, orders, and 10 judgments in this matter, including but not limited to the release set forth in the Settlement 11 Agreement. 12 7. Objections 13 Any Settlement Class member may enter an appearance in the action, at his or her own 14 expense, individually or through counsel of his or her own choice. If a Settlement Class member 15 does not enter an appearance, they will be represented by Settlement Class Counsel. 16 Any Settlement Class member who wishes to may file objections to the settlement, 17 including the settlement benefits, service awards, and/or the attorneys’ fees and costs. Any 18 Settlement Class member may also appear at the Final Approval Hearing and show cause as to 19 why the settlement should not be approved as fair, reasonable, and adequate to the Settlement 20 Class, why a final approval order and judgment should not be entered thereon, why the settlement 21 benefits should not be approved, or why the service awards and/or the attorneys’ fees and costs 22 should not be granted. Unless the Court orders otherwise, no Settlement Class member will be 23 heard on such matters unless they have filed in this action the objection, together with any briefs, [24] 1 papers, statements, or other materials the settlement class member wishes the Court to consider, 2 within sixty (60) calendar days following the Notice Date (the “Objection Deadline”). 3 The Court directs Plaintiff to amend Section 11 of the Class Notice to reflect the following: 4 any objection must include: (i) the objector’s full name, address, telephone number, and e-mail 5 address (if any); (ii) the name and number of this case, Britt v. Clallam County Public Hospital 6 District No. 2 d/b/a Olympic Medical Center, Case No. 2:23-cv-05377-MJP; (iii) information 7 identifying the objector as a Settlement Class member, including proof that the objector is a 8 member of the Settlement Class; (iv) a statement as to whether the objection applies only to the 9 Settlement Class member, to a specific subset of the Settlement Class, or to the entire Settlement 10 Class; (v) a written statement of the specific legal and factual bases for each and every objection, 11 accompanied by any legal support for the objection the objector believes applicable; (vi) the 12 identity of any counsel representing the objector; (vii) a statement whether the objector intends to 13 appear at the Final Approval Hearing, either in person or through counsel, and, if through counsel, 14 identifying that counsel; (viii) a list of all persons who will be called to testify at the Final Approval 15 Hearing in support of the objections and any documents to be presented or considered; and (ix) the 16 objector’s signature and the signature of the objector’s duly authorized attorney or other duly 17 authorized representative (if any). In addition to the foregoing requirements, if an objecting 18 Settlement Class member intends to speak at the final approval hearing (whether pro se or through 19 an attorney), the written objection must include a detailed description of any evidence the objecting 20 Settlement Class member may offer at the Final Approval Hearing, as well as copies of any 21 exhibits the objecting Settlement Class member may introduce at the Final Approval Hearing. 22 Unless the Court orders otherwise, any Settlement Class member who fails to object to the 23 settlement in the manner described in the Settlement Agreement and in the notice provided [24] 1 pursuant to Section III.F.2 of the Settlement Agreement shall be deemed to have waived any such 2 objection, shall not be permitted to object to any terms or approval of the Settlement Agreement 3 at the Final Approval Hearing, and shall be precluded from seeking any review of the settlement 4 or the terms of the Settlement Agreement by appeal or any other means. 5 With leave of Court for good cause shown, the Parties may take discovery of an objector 6 or an objector’s counsel. Any Settlement Class member that fails to comply with the provisions in 7 this Order will waive and forfeit any and all rights it may have to object, and shall be bound by all 8 the terms of the revised settlement, this Order, and by all proceedings, orders, and judgments, 9 including, but not limited to, the releases in the settlement, if finally approved. Any potential 10 Settlement Class member who both objects to the settlement and submits an exclusion letter will 11 be deemed to have opted-out and the objection shall be deemed null and void. 12 8. Final Approval Hearing 13 A hearing will be held by this Court in the Courtroom of The Honorable Marsha J. 14 Pechman, United States District Court for the Western District of Washington, United States 15 Courthouse, 700 Stewart Street, Courtroom 14B (14th Floor), Seattle, WA 98101 at 10:00 a.m. 16 on January 23, 2025 (“Final Approval Hearing”), to determine: (a) whether the revised 17 settlement should be approved as fair, reasonable, and adequate to the class; (b) whether the 18 Final Approval Order should be entered in substance materially the same as Dkt. No. 36-5; 19 (c) whether the settlement should be approved as fair, reasonable, and adequate to the Settlement 20 Class; (d) whether to approve the application for service awards for the named plaintiff and an 21 award of attorneys’ fees and litigation expenses; and (e) any other matters that may properly be 22 brought before the Court in connection with the settlement. The Final Approval Hearing is 23 subject to continuation or adjournment by the Court. The Court may approve the settlement with [24] 1 such modifications as the Parties may agree to, if appropriate, without further notice to the 2 Settlement Class. 3 With regard to briefing in support of final approval, all opening briefs and supporting 4 documents in support of a request for final approval of the settlement and settlement benefits 5 must be filed and served at least thirty-five (35) days prior to the Final Approval Hearing. All 6 briefing and supporting documents in support of any motion for payment of Class Counsel fees 7 and expenses, and/or the Class Representative service award must be no later than Plaintiff’s 8 filing of their motion for final approval. The deadline to file responses, if any, to any objections, 9 and any replies in support of final approval of the revised settlement and/or class counsel’s 10 application for attorneys’ fees, costs, and the named plaintiff service awards must be filed and 11 served at least fourteen (14) days prior to the Final Approval Hearing. 12 Prior to the Final Approval Hearing, Settlement Class Counsel and Defendant shall cause 13 to be filed with the Court an appropriate affidavit or declaration with respect to complying with 14 the provision of notice as set forth in Section III.F.2 of the Settlement. 15 9. Class Settlement Deadlines and Stay of Existing Case Schedule 16 Pending the Final Approval Hearing, all existing case deadlines are hereby stayed, except 17 the settlement-related deadlines set forth in this Order or otherwise included in this section. 18 Those deadlines are as follows: 19 Action D ate Date of Preliminary Approval 20 Deadline for OMC to provide ILYM Within 21 days after the Court’s Group with the Class List preliminary approval of the Settlement 21 Deadline for ILYM Group to mail and Within 14 days after IYLM Group email the Notice Packets to Class Members receives the Class List 22 Deadline for Class Members to postmark 60 days after Notice Packets are mailed request to exclude themselves, or “opt23 out,” or to file objections to the Settlement [24] 1 Deadline for Class Members to submit 60 days after Notice Packets are mailed signed opt-in consent forms (either must be 2 postmarked on or before the deadline, or must be electronically submitted on or 3 before the deadline) Deadline for ILYM Group to provide all Within 10 business days after the opt4 counsel with a report showing in/opt-out/objection deadline 5 (i) the names of Class Members and FLSA Collective Members; [6] (ii) the Individual Settlement Payments 7 owed to each Class Members and FLSA Collective Member; [8] (iii) the final number of Class Members 9 who have submitted objections; 10 (iv) the final number of individuals who have submitted valid requests to exclude 11 themselves from the Class/Settlement; and 12 (v) the number of undeliverable Notice Packets. 13 Deadline for filing of Final Approval At least 35 days before Final Approval Motion Hearing 14 Deadline for Plaintiff to serve and file No later than Plaintiff’s filing of Final briefing and supporting documents in Approval Motion 15 support of any motion for payment of Class Counsel fees and expenses, and/or the 16 Class Representative service award Deadline for ILYM Group to provide the At least 10 days before Final Approval 17 Court and all counsel with a statement Hearing detailing the Settlement Administration 18 Costs and its administration of the Notices Final Approval Hearing January 23, 2025 at 10:00 a.m. [19] 20 Upon application of the Parties and good cause shown, the deadlines set forth in this 21 Order—except the final approval hearing—may be extended by order of the Court, without 22 further notice to the Settlement Class. Any extension of the final approval hearing will require 23 notice to the Settlement Class. [24] 1 10. Termination of the Settlement and Use of this Order 2 If the Court does not provide final approval of the settlement, this Order shall become 3 null and void and shall be without prejudice to the rights of the Parties, all of which shall be 4 restored to their respective positions existing immediately before this Court entered this Order. In 5 such event, the settlement shall become null and void and be of no further force and effect. 6 CONCLUSION 7 The Court finds that Plaintiffs have satisfied all of the requirements for approval of the 8 proposed Settlement Class. The Court therefore GRANTS the Motion as to this request and 9 CERTIFIES the following Settlement Class: 10 “All current and former hourly, non-exempt employees employed by Defendant in Washington at any time starting April 27, 2020, through the date of Preliminary 11 Approval of the Settlement.” 12 The Court further APPROVES of the terms and conditions contained in the Settlement 13 Agreement pertaining to the FLSA Collective, which is defined as follows: 14 “All current and former hourly, non-exempt employees employed by Defendant in Washington at any time starting April 27, 2020, through the date of Preliminary 15 Approval of the Settlement, who timely submit the FLSA Collective Consent Form to join the collective action.” [16] The Court also APPOINTS Michael C. Subit of Frank Freed Submit & Thomas LLP, [17] Michael A. Josephson, Andrew W. Dunlap, and William M. Hogg of Josephson Dunlap LLP, [18] Richard J. (Rex) Burch of Bruckner Burch PLLC, and William C. (Clif) Alexander and Austin [19] W. Anderson of Anderson Alexander PLLC, as Settlement Class Counsel. [20] The Court finds that notice of the settlement should be given to the Settlement Class, [21] given that the proposed settlement appears likely to be found fair, reasonable, and adequate. [22] Plaintiff is DIRECTED to amend Sections 10 and 11 of the Class Notice as per the Court’s [24] 1 instructions in Sections B.6–7 of this Order. Plaintiff is then ORDERED to adhere to the 2 procedure approved of by the Court in Section B of this Order. 3 The clerk is ordered to provide copies of this order to all counsel. 4 Dated August 23, 2024. A [5] 6 Marsha J. Pechman United States Senior District Judge