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Deleon v. Wells Fargo Bank, N.A.

United States District Court, S.D. New York

January 12, 2015

DALY DELEON, on behalf of herself and all similarly situated individuals, Plaintiff,

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.



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, 2011 WL 382200, at *1 (S.D.N.Y. Jan. 21, 2011) (conditionally certifying wage and hour settlement class and granting preliminary approval of settlement).

9. For settlement purposes only, the Court provisionally certifies the following class under Federal Rule of Civil Procedure 23(e), for settlement purposes (" Settlement Class"):

All current and former employees of Wells Fargo and/or Wachovia who worked as Loan Officers, Home Mortgage Consultants, Mortgage Consultants, Private Mortgage Bankers, or similar job titles at Wells Fargo and/or Wachovia, throughout New York, between June 8, 2006, and March 26, 2011.

10. For settlement purposes only, Plaintiff meets all of the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b)(3).

11. Plaintiff satisfies Federal Rule of Civil Procedure 23(a)(1) because there are approximately 669 Class Members and, thus, joinder is impracticable. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (" [N]umerosity is presumed at a level of 40 members").

12. Plaintiff satisfies Federal Rule of Civil Procedure 23(a)(2) because she and the class members share common issues of fact and law, including whether Defendant failed to pay overtime premiums in violation of federal and state wage and hour laws, and whether Defendant failed to keep accurate records of the hours Plaintiff worked. See Morris v. Affinity Health Plan, Inc., 859 F.Supp.2d 611, 615-16 (S.D.N.Y. 2012) (commonality satisfied where, among other allegations, plaintiffs claimed that defendant had policy of not paying all class members overtime pay); Clark v. Ecolab Inc., Nos. 07 Civ. 8623, 04 Civ. 4488, 06 Civ. 5672, 2010 WL 1948198, at *3 (S.D.N.Y. May 11, 2010) (common issues that help to satisfy Rule 23 commonality requirement include " whether [Defendant] failed to pay Plaintiffs and the state settlement Class Members overtime premium pay for all hours they worked over 40 in a workweek; and...whether [Defendant] maintained accurate time records of the hours Plaintiffs and the state settlement Class Members worked").

13. Plaintiff satisfies Federal Rule of Civil Procedure 23(a)(3) because Plaintiff's claims for overtime pay arise from the same factual and legal circumstances that form the bases of the Class Members' claims. See Hernandez, 2012 WL 5862749, at *3 (typicality satisfied where " [p]laintiffs' claims for overtime pay [arose] from the same factual and legal circumstances that form[ed] the bases of the [c]lass [m]embers' claims"); Morris, 859 F.Supp.2d at 616 (same).

14. Plaintiff satisfies Federal Rule of Civil Procedure 23(a)(4) because there is no evidence that the named Plaintiffs' and Class Members' interests are at odds. See Morris, 859 F.Supp.2d at 616 (no evidence that named plaintiffs' and class members' interests were at odds).

15. In addition, Plaintiff's Counsel, Morgan & Morgan, P.A. (" M& M"), and Gottlieb & Associates, P.C. (" G& A"), meet Rule 23(a)(4)'s adequacy requirement.

16. Plaintiff also satisfies Rule 23(b)(3). Common factual allegations and a common legal theory predominate over any factual or legal variations among class members. See Hernandez, 2012 WL 5862749, at *4 (common factual allegations and legal theory predominated over variations in wage and hour misclassification case); Torres v. Gristede's Corp., No. 04 Civ. 3316, 2006 WL 2819730, at *16 (S.D.N.Y. Sept. 29, 2006) (plaintiff " introduced sufficient proof that Defendants engaged in a common practice to deny employees overtime pay, " and " this issue predominates over any individual calculations of overtime wages"). Class adjudication of this case is superior to individual adjudication because it will conserve judicial resources and is more efficient for class members, particularly those who lack the resources to bring their claims individually. See Morris, 859 F.Supp.2d at 617; Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 161, 164 (S.D.N.Y. 2008).

III. Appointment of Plaintiffs Counsel as Class Counsel

17. For settlement purposes only, the Court appoints M& M and G& A (together, Plaintiff's Counsel") as Class Counsel because they meet all of the requirements of Federal Rule of Civil Procedure 23(g). See Damassia, 250 F.R.D. at 165 (explaining that Rule 23(g) requires the court to consider " the work counsel has done in identifying or investigating potential claims in the action, . . . counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, . . . counsel's knowledge of the applicable law, and ... the resources counsel will commit to representing the class") (internal quotation marks omitted).

18. Plaintiff's Counsel did substantial work identifying, investigating, prosecuting, and settling Plaintiffs' and Class Members' claims.

19. M& M attorneys have significant experience in litigating and settling wage and hour class and collective actions. See Reyes v. AT& T Mobility Services, LLC, 1:10-cv-20837-MGC, D.E. 191 (S.D. Fla. Dec. 20, 2012)(appointing Frisch as class counsel); Toure v. Amerigroup Corp., 2012 WL 3240461, at *5 (E.D.N.Y. August 6, 2012)(" Class Counsel have substantial experience prosecuting and settling employment class actions, including wage and hour class actions, and are well-versed in wage and hour law and in class action law."); Aponte v. Comprehensive Health Management, Inc., 2011 WL 2207586, at *12 (S.D.N.Y. June 2, 201 l)(finding that Frisch and Morgan & Morgan " are qualified, experienced, and capable of acting as lead counsel" in wage and hour class actions).

20. The work that Plaintiff's Counsel has performed both in litigating and settling this case demonstrates their skill and commitment to representing the class's interests.

IV. Notice

21. The Court approves the Proposed Notice of Proposed Settlement of Class Action and Fairness Hearing, which is attached as Exhibit B to the Frisch Declaration, and directs their distribution to the Class.

22. The content of the Rule 23 Notice fully complies with due process and Federal Rule of Civil Procedure 23.

23. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), a notice must provide:

the best notice practicable under the ciricumstances including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: the nature of the action; the definition of the class certified; the class claims, issues, or defenses; that a class member may enter an appearance through counsel if the member so desires; that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and the binding effect of a class judgment on class members under Rule 23(c)(3).

Fed. R. Civ. P. 23(c)(2)(B).

24. The Rule 23 Notice satisfies each of these requirements and adequately puts Class Members on notice of the proposed settlement. See, e.g., In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y. 1993) (class notice " need only describe the terms of the settlement generally"); Johnson, 2011 WL 1872405, at *3. The Rule 23 Notice is also appropriate because it describes the terms of the settlement, informs the classes about the allocation of attorneys' fees, and provides specific information regarding the date, time, and place of the final approval hearing. Hernandez, 2012 WL 5862749, at *5.

V. Class Action Settlement Procedure

25. The Court hereby adopts the settlement procedure:

a. Within 20 days of the date of this Order, the Claims Administrator shall mail the Notices to Class Members;
b. Class Members will have 60 days from the date the Notice is mailed to opt out of the settlement or object to it;
c. Plaintiff will file a Motion for Final Approval of Settlement no later than 15 days before the fairness hearing;
d. The Court will hold a final fairness hearing on April 13, 2015 at 10:30a.m. at the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York, Courtroom 11C;
e. If the Court grants Plaintiffs Motion for Final Approval of the Settlement, the Court will issue a Final Order and Judgment. If no party appeals the Court's Final Order and Judgment the " Effective Date" of the settlement will be the day after the deadline for taking an appeal has passed;
f. If rehearing, reconsideration or appellate review is sought, the " Effective Date" shall be the day after all appeals are resolved in favor of final approval;
g. The Claims Administrator will disburse settlement checks to the Class Members, Class Counsel's attorneys' fees and expenses to Class Counsel, the Service Awards, and the Claims Administrator's fee within 15 days of the Effective Date; and
h. The parties shall abide by all terms of the Settlement Agreement.

It is so ORDERED.

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