United States District Court, S.D. Iowa, Davenport Division
MARIA MELLER, DEBRA ANDERSON, CYNTHIA PASH, and EDDIE CAPOVILLA, on behalf of themselves and those similarly situated, Plaintiffs,
BANK OF THE WEST, Defendant.
REPORT AND RECOMMENDATION
STEPHEN B. JACKSON. JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' Notice of
Unopposed Motion for Certification of the Settlement Class,
Final Approval of the Class Action Settlement, and Approval
of FLSA Settlement (Dkt. 23), Plaintiffs' Notice of
Unopposed Motion for Approval of Service Payments (Dkt. 24),
and Plaintiffs' Notice of Unopposed Motion for Approval
of Attorneys' Fees and Reimbursement of Expenses (Dkt.
25). These motions were referred to this Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) for submission of a
report and recommendation regarding disposition of the
motions. Dkt. 26. A hearing was held on the motions on August
9, 2018. Dkt. 30. Attorneys Sally Abrahamson and Dorothy
O'Brien appeared on behalf of plaintiffs, and Attorneys
Daniel Kresowik and Andrew Livingston (via telephone
conference call) appeared on behalf of the defendant.
reasons set forth below, this Magistrate Judge recommends (1)
granting Plaintiffs' Notice of Unopposed Motion for
Certification of the Settlement Class, Final Approval of the
Class Action Settlement, and Approval of FLSA Settlement; (2)
granting Plaintiffs' Notice of Unopposed Motion for
Approval of Service Payments; and (3) granting
Plaintiffs' Notice of Unopposed Motion for Approval of
Attorneys' Fees and Reimbursement of Expenses. It is
further recommended that the Court enter the Proposed Final
Approval Order (Dkt. 23-4).
Maria Meller, Debra Anderson, Cynthia Pash and Eddie
Capovilla, brought this lawsuit individually, and on behalf
of others similarly situated, against Bank of the West on
March 29, 2018. Dkt. 1. Through this lawsuit, plaintiffs seek
to recover overtime compensation for plaintiffs and similarly
situated co-workers, who worked as customer service managers
at Bank of the West branch locations in the United States.
Id. ¶ 1. Plaintiffs are current and former
employees of defendant, who worked as customer service
managers at over 600 locations for Bank of the West in Iowa,
California and approximately 17 other states, between October
1, 2013 and April 16, 2018. Dkt. 23-1, pp. 7-8. Plaintiffs
allege that Bank of the West violated the Fair Labor
Standards Act and California law by improperly classifying
them as exempt employees, and failing to pay them and other
customer service managers overtime wages. Dkt. 1 ¶¶
to filing this lawsuit, plaintiffs' counsel investigated
the merits of the claim, examined the proper measure of
damages and legal exemptions that apply to the banking
industry and determined the likelihood of class and
collective certification. Dkt. 23-2 ¶ 13.
Plaintiffs' counsel conducted in depth interviews with
plaintiffs and other customer service managers to determine
hours that they worked, wages they were paid, the nature of
their duties and responsibilities, and other information
relevant to their claims. Id. ¶ 14. Bank of the
West produced payroll information for customer service
managers, as well as other documents, all of which
plaintiffs' counsel reviewed and used to perform damages
calculations. Id. ¶¶ 15, 18.
parties participated in mediation on October 16, 2014. Dkt.
23-2 ¶ 19. The mediation session was conducted by David
Rotman, an experienced class action mediator. Id.
After a full day of negotiations, the parties were unable to
reach an agreement. Id. ¶ 21. Although they
were initially unsuccessful, the parties agreed to
participate in another mediation session with Mr. Rotman on
February 12, 2015. Id. The parties continued further
negotiations after the second mediation session, all with the
continued assistance of Mr. Rotman, and reached an agreement,
which the parties executed on February 27, 2018. Id.
settlement class includes customer service managers eligible
to receive settlement payments comprised of two groups: (1)
all individuals employed by Bank of the West as customer
service managers in any states other than California between
October 1, 2013 and April 16, 2018 (“FLSA Collective
Members”); and (2) all individuals employed by Bank of
the West as customer service managers in California between
October 1, 2013 and April 16, 2018 (“California Class
Members”). Dkt. 23-3 §§ 1.6, 1.23. The
parties estimate there are approximately 573 FLSA Collective
Members and approximately 351 California Class Members. Dkt.
23-2 ¶ 28.
the West agreed to fund a settlement amount of $2, 620, 000
to resolve the FLSA Collective Members' and California
Class Members' claims. Dkt. 23-3 § 1.29. The maximum
settlement amount will cover individual settlement awards for
those class members who have submitted claims; court approved
attorneys' fees and costs for class counsel; court
approved service awards to plaintiffs; employee payroll
taxes; payments to individuals whose claims were included in
the parties' discussions, but which have since fallen
outside the settlement class period; the claims
administrator's fees and costs; and payment to the
California Labor and Workforce Development Agency of a
percentage of the penalties allotted to claims under the
California Labor Code Private Attorneys General Act.
proportionate share of the class settlement fund that each
FLSA Collective Member and California Class Member is
eligible to claim is calculated based on weeks worked from
October 1, 2013 through April 16, 2018, as reflected in Bank
of the West's recently available business records.
Id. § 9.5. A claims administrator will assign
each FLSA Collective Member one point for each eligible week
worked as a customer service manager and each California
Class Member three points for each eligible week worked as a
customer service manager. Id. All points will be
added together to obtain a denominator, and then each
individual class member's number of points will be
divided by the denominator to obtain each individual's
portion of the class settlement fund, which will be
multiplied by that fractional amount to determine each
individual's net amount. Id. Each FLSA
Collective Member and California Class Member who submits a
valid claim form to the claims administrator prior to a bar
date will receive a settlement payment under the terms of the
settlement agreement. Id. §§ 1.2, 1.8.
settlement agreement contemplates that all California Class
Members who do not opt out of the settlement will release
California wage and hour claims arising out of their
employment as a customer service manager for the period
October 1, 2013 through April 16, 2018. Id.
§§ 1.37, 10.1(A). Additionally, all FLSA Collective
Members who opt-in and California Class Members who return a
valid claim form will release all federal and applicable
state law wage and hour claims arising out of their
employment as a customer service manager from October 1, 2013
through April 16, 2018. Id. §§ 1.38,
filed a Notice of Motion for Preliminary Approval of Class
and Collective Action Settlement, Conditional Certification
of the Settlement Class, Appointment of Plaintiffs'
Counsel as Class Counsel, and Approval of Proposed Notices of
Settlement (Dkt. 5) on April 12, 2018. Chief Judge John A.
Jarvey preliminarily approved the settlement, certified the
class for settlement purposes only, found that the settlement
agreed had no obvious defects and was within the range of
possible settlement approval such that notice to the class as
set forth in the settlement agreement was appropriate,
appointed plaintiffs' counsel as class counsel, and
approved the class administrator. Dkt. 6. Further, the Court
found the method of disseminating the notices was the best
notice practicable under the circumstances and met the
requirements of federal law, as set forth in the settlement
agreement. Id. ¶¶ 6, 8.
Court set a fairness hearing for August 9, 2018 at 12:00 p.m.
to address whether the settlement agreement should be finally
approved, counsel's application for attorneys' fees
and plaintiffs' application for service payments.
Id. ¶ 15. Further, the Court ordered that any
FLSA Collective Member or California Class Member will have
60 days from the initial mailing of the notice to participate
in the settlement, and California Class Members will have 60
days from the initial mailing of the notice to object to or
opt out of the settlement. Id. ¶ 14.
16, 2018, a claims administrator mailed notices of settlement
to 573 FLSA Collective Members and 351 California Class
Members via first class mail. Dkt. 23-5 ¶ 12. The
notices advised class members they could submit a claim form
and advised California Class Members they could submit a
written request for exclusion or objection post marked by
July 15, 2018. Id. Thirty-eight notices were
returned as undeliverable, and of those 38 notices, the
claims administrator performed address traces, and re-mailed
31 of the notices to class members for whom new addresses
were located. Id. ¶ 13. Ultimately, notices
were undeliverable for a total of 8 class members.
Id. On June 4, 2018, and again on June 25, 2018, the
claims administrator mailed reminder post cards to class
members who had not yet returned claims forms. Id.
these notices, 344 FLSA Collective Members and 260 California
Class Members submitted claim forms and are due to receive
settlement payments if the settlement is given final
approval. Id. ¶ 17. The claims administrator
received no requests for exclusions, and received one
objection from an FLSA Collective Member who did not timely
submit a claim form. Id. ¶ 21. This FLSA
Collective Member is not bound by the settlement if he does
not opt into the case. Dkt. 23-3 §§ 1.38, 10.1(B).
Plaintiffs' Notice of Unopposed Motion for Certification
of the Settlement Class, Final Approval of
the Class Action Settlement, and Approval of FLSA Settlement
their motion, plaintiffs request the Court certify the
California settlement class for the purposes of effectuating
settlement, grant final approval of the California class
settlement and approve the FLSA settlement.
Certification of ...