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Meller v. Bank of West

United States District Court, S.D. Iowa, Davenport Division

September 10, 2018

MARIA MELLER, DEBRA ANDERSON, CYNTHIA PASH, and EDDIE CAPOVILLA, on behalf of themselves and those similarly situated, Plaintiffs,
v.
BANK OF THE WEST, Defendant.

          REPORT AND RECOMMENDATION

          STEPHEN B. JACKSON. JR. UNITED STATES MAGISTRATE JUDGE.

         This 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. Id.

         For the 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).

         I. Background

         Plaintiffs, 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 ¶¶ 5, 10-12.

         Prior 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.

         The 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. ¶¶ 22-24.

         A. The Settlement

         The 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.

         Bank of 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. Id.

         The 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.

         The 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, 10.1(B).

         B. Preliminary Approval

         Plaintiffs 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.

         The 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.

         C. Notice

         On May 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. ¶¶ 15-16.

         From 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).

         II. 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)

         In 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.

         A. Certification of ...


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