United States District Court, S.D. New York
DALY DELEON, on behalf of herself and all similarly situated individuals, Plaintiff,
WELLS FARGO BANK, N.A., Defendant
For Daly DeLeon, on behalf of herself and all similarly situated individuals, Plaintiff: Andrew Ross Frisch, Morgan & Morgan, P.A., Plantation, Fl; Dana Lauren Gottlieb, Gottlieb & Associates, New York, NY; Jeffrey Michael Gottlieb, Jeffrey M. Gottlieb, Esq., New York, NY.
For Wells Fargo Bank, N.A., Defendant: David Scott Warner, LEAD ATTORNEY, Littler Mendelson, P.C. (NYC), New York, NY; Lindbergh Porter, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, San Francisco, CA.
ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT, PROVISIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF PLAINTIFF'S COUNSEL AS CLASS COUNSEL, AND APPROVAL OF PLAINTIFF'S PROPOSED NOTICE OF SETTLEMENT
HONORABLE RONALD L. ELLIS, UNITED STATES MAGISTRATE JUDGE.
The above-entitled matter came before the Court on Plaintiff's Motion for Preliminary Approval of Class Settlement, Provisional Certification of the Settlement Class, Appointment of Plaintiff's Counsel as Class Counsel, and Approval of Plaintiff's Proposed Notice of Settlement (" Motion for Preliminary Approval"), Defendant agrees, for settlement purposes only, not to oppose the motion.
I. Preliminary Approval of Settlement
1. Based upon the Court's review of the Plaintiffs Memorandum of Law in Support of their Motion for Preliminary Approval, the Declaration of Andrew R. Frisch (" Frisch Declaration"), and all other papers submitted in connection with Plaintiff's Motion for Preliminary Approval, the Court grants preliminary approval of the settlement memorialized in the Joint Stipulation of Settlement and Release (" Settlement Agreement") between Plaintiff, Daly DeLeon (" Plaintiff) and Defendant, Well Fargo Bank, N.A. (" Wells Fargo" or " Defendant") attched to the Frich Declaration as Exhibit A, and " so orders" all of its terms.
2. Courts have discretion regarding the approval of a proposed class action settlement. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1998). In exercising this discretion, courts should give weight to the parties' consensual decision to settle class action cases because they and their counsel are in unique positions to assess potential risks. See Clark v. Ecolab, Inc., Nos. 07 Civ. 8623, 04 Civ. 4488, 06 Civ. 5672, 2009 WL 6615729, at *3 (S.D.N.Y. Nov. 27, 2009).
3. Preliminary approval, which is what Plaintiff seeks here, is the first step in the settlement process. It simply allows notice to issue to the class and for Class Members to object to or opt-out of the settlement. Alter the notice period, the Court will be able to evaluate the settlement with the benefit of the Class Members' input. Clark, 2009 WL 6615729, at *3.
4. Preliminary approval of a settlement agreement requires only an " initial evaluation" of the fairness of the proposed settlement on the basis of written submissions and, in some cases, an informal presentation by the settling parties. Clark, 2009 WL 6615729, at *3 (citing Herbert B. Newberg & Alba Conte, Newberg on Class Actions (" Newberg ") § 11.25 (4th ed. 2002)). Courts often grant preliminary settlement approval without requiring a hearing or a court appearance. See Hernandez v. Merrill Lynch & Co., Inc., No. 11 Civ. 8472, 2012 WL 5862749, at *1 (S.D.N.Y. Nov. 15, 2012) (granting preliminary approval based on plaintiffs' memorandum of law, attorney declaration, and exhibits); Palacio v. E* TRADE Fin. Corp., No. 10 Civ. 4030, 2012 WL 1058409, at *1 (S.D.N.Y. Mar. 12, 2012) (same). To grant preliminary approval, the court need only find that there is " probable cause to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness." In re Traffic Exec. Ass'n, 627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted). If the proposed settlement " appears to fall within the range of possible approval, " the court should order that the class members receive notice of the settlement. Clark, 2009 WL 6615729, at *3.
5. The Court concludes that the proposed Settlement Agreement is within the range of possible final settlement approval, such that notice to the class is appropriate. See In re Traffic Exec. Ass'n, 627 F.2d at 634; Hernandez, 2012 WL 5862749, at *1.
6. The Court finds that the Settlement Agreement is the result of extensive, arms'-length negotiations by counsel well-versed in the prosecution of wage and hour class and collective actions. Courts encourage early settlement of class actions, when warranted, because early settlement allows class members to recover without unnecessary delay and allows the judicial system to focus resources elsewhere. See Hernandez, 2012 WL 5862749, at *2 (endorsing early settlement of wage and hour class action); In re Interpublic Sec. Litig., No. 02 Civ. 6527, 2004 WL 2397190, at *12 (S.D.N.Y. Oct. 26, 2004) (early settlements should be encouraged when warranted by the circumstances of the case); Castagna v. Madison Square Garden, L.P., No. 09 Civ. 10211, 2011 WL 2208614, at *10 (S.D.N.Y. Jun. 7, 2011) (commending Plaintiffs' attorneys for negotiating early settlement); Diaz v. E. Locating Serv. Inc., No. 1.0 Civ. 4082, 2010 WL 5507912 at *1 (S.D.N.Y. Nov. 29, 2010) (granting final approval of presuit class settlement in wage and hour case). The parties here acted responsibly in reaching an early settlement in this case. See Hernandez, 2012 WL 5862749, at *2; In re Interpublic Sec. Litig., 2004 WL 2397190, at *12.
7. The assistance of an experienced wage and hour class action mediator, David Rotman, reinforces that the Settlement Agreement is non-collusive. See Wren v. RGIS Inventory Specialists, 2011 WL 1230826, at *14 (N.D. Cal. Apr. 1, 2011) (granting final approval to wage and hour settlement that resulted from mediation overseen by David Rotman).
II. Conditional Certification of the Proposed Rule 23 Settlement Classes
8. Provisional settlement class certification and appointment of class counsel have several practical purposes, including avoiding the costs of litigating class status while facilitating a global settlement, ensuring notification of all class members of the terms of the proposed Settlement Agreement, and setting the date and time of the final approval hearing. See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 790-92 (3d Cir. 1995) (discussing the advantages of certifying classes for settlement purposes); Dorn v. Eddington Sec., Inc., No. 08 Civ. 10271, ...