The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Pending before this Court is the joint motion by the parties for approval of a proposed class action notice and for preliminary approval of a proposed settlement of this action. (Docket No. 58.) The parties also seek a scheduling order for further proceedings in the case. For the reasons set forth below, this Court will grant the parties' motion.
Plaintiffs brought this suit in 2006 against Defendant Lamont Fruit Farm, Inc., under the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA"), (Compl. (Docket No. 1) ¶ 103), and under New York labor law. (Compl. ¶¶ 125-27.) Plaintiffs also asserted a putative class action claim on behalf of themselves and the other Workers for breach of contract. (Compl. ¶¶ 109-22.)
On September 30, 2011, this Court granted Plaintiffs' motion for class certification and for appointment of class counsel. (Docket No. 55.) This Court certified the following class under Federal Rule of Civil Procedure 23(b)(3) for purposes of Plaintiffs' breach of contract claim: "all individuals admitted to the United States pursuant to Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(a) ('H-2A Workers') who were employed by Lamont Fruit Farm Inc. to pick apples during the 2000, 2001, 2002, 2003, 2004, and 2005 Upstate New York apple harvest seasons." (Id. at 21.) This Court appointed class counsel and directed the parties to file a mutually agreeable class notice containing the information required by Rule 23(c)(2)(B). (Id.)
On November 18, 2011, the parties filed the pending joint motion for approval of the proposed class notice and notice of settlement, for preliminary approval of a proposed class settlement, and for scheduling of further proceedings. (Docket No. 58.) It appears the parties have agreed to settle all of the pending claims in this matter, including those brought on behalf of the certified class.
The parties seek this Court's approval of the notice that will be provided to the class members. Rule 23(c)(2)(B) requires that, for any class certified under Rule 23(b)(3), "the court must direct to class members the best notice that is practicableunder the circumstances, including individual notice to all members who can be identified through reasonable effort." The notice "must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3)." Fed. R. Civ. P. 23(c)(2)(B).
In most respects, the proposed class notice satisfies Rule 23(c)(2)(B). Class counsel intends to send the notice by mail to the class members, along with a Spanish translation. (Decl. of Steven E. Cole, Esq. (Docket No. 58, Ex. 1) ("Cole Decl.") ¶¶ 12-13.) The notice is drafted in plain language that would easily be understood by its target audience.(See Class Notice (Docket No. 58, Ex. 3).) The notice defines a "class action" and describes those included in the class. (Id. at 2.) It describes the action as a lawsuit claiming that, from 2000-2005, Defendant failed to pay its foreign farm workers the required minimum wage, and also breached contracts with such workers by "failing to reimburse workers for transportation and subsistence costs to and from Mexico, and failing to provide adequate and safe housing and transportation." (Id.)
The notice also details the proposed settlement, informing the putative class members that "[y]our rights could be affected by this settlement so you should read this Notice carefully to decide whether you want to be part of the class and you think the settlement is fair." (Id. at 2.) The notice correctly provides that the recipient has the right to be excluded from the class and forfeit the right to recover any money from the settlement. Those who choose to opt-out are advised that they "will NEVER be able to make any claim for this settlement money; however, you may have the right to bring your own lawsuit against Lamont Fruit Farm[.]" (Id. at 3-4.) The notice then provides a January 30, 2012, deadline for opting out of the class and explains that "[i]f you fail to opt-out you will be bound by the settlement agreement and are eligible to file a claim for the settlement money." (Id. at 4.) The notice provides a December 30, 2012, deadline for filing claims for shares of the settlement fund. (Id. at 3.)
However, the class notice does not specifically state, as required by Rule 23(c)(2)(B), that a class member may enter an appearance in the action through an attorney if desired. The parties are directed to include language to this effect. Additionally, the notice ...