United States District Court, W.D. New York
David C. Tufts, Esq., M. Vance McCrary, Esq., Mary E. Olsen, Esq., The Gardner Firm, P.C., Mobile, AL, Stuart J. Miller, Esq., Lankenau & Miller LLP, New York, NY, Mary L. Fangio, Esq., Whitelaw & Fangio, Syracuse, NY, for Plaintiffs.
Jeffrey J. Calabrese, Esq., Andre Leon Lindsay, Esq., Luke Peter Wright, Esq., Harter, Secrest & Emery LLP, Rochester, NY, for Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is a proposed class action alleging violations of the Worker Adjustment and Retraining Notification Act of 1988, 29 U.S.C. §§ 2101-09 ("Federal WARN Act"), and its New York State counterpart, New York Labor Law §§ 860 et seq. ("NY WARN Act") (collectively "WARN Acts"). Now before the Court is a joint motion for an order giving final approval to certification of this matter as a class action, approving of the form and manner of notice to the class, and approving a proposed settlement. Joint Motion, Oct. 10, 2014, ECF No. 52. As part of the proposed settlement, Plaintiffs seek the Court's approval of an award of attorneys' fees and expenses, as well as an award to the class representatives. Now, following a Fairness Hearing, the Court grants the application.
The facts of this case are taken from the amended complaint filed on October 16, 2013, ECF No. 39. Plaintiffs allege that Defendants failed to pay wages and benefits for sixty days pursuant to the WARN Acts. They had been employed by Badger Technologies, Inc. ("Badger"), BTI Acquisition, Inc. ("BTI"), Delta Point Capital, III, L.P. ("Delta Point III"), and Delta Point Capital Management, LLC ("Delta Point"). They were terminated as part of a plant closing ordered by Defendants. Plaintiffs allege that all three named defendants were a "single employer" for the purposes of the WARN Acts. Plaintiffs allege in their amended complaint that Defendants are jointly and severally liable under the WARN Acts for the failure to provide Plaintiffs and the other similarly situated former employees at least 60 days advance written notice under the Federal WARN Act, and 90 days advance written notice pursuant to the NY WARN Act.
The settlement amount is $125, 000.00. Its distribution is agreed to as follows: (a) the sum of $5, 000 to each of the Class Representatives, Joe Knapp, and Chad Notebaert, for their services rendered in this action (the "Service Payments") (b) the sum of $38, 333, representing one third of the settlement amount, after payment of the Service Payments, shall be paid to Class Counsel as fees, and up to $20, 000 as costs; (c) the balance of $56, 667 shall be divided among Class Members, who do not opt-out of this settlement, based on the wage rate each was earning at Badger just before the closing.
The proposed attorney fee for class counsel, amounting to $38, 333, comprises approximately 31% of the total settlement, and 332153% of the settlement amount after payment of the Service Payments. The notice that was mailed to every class member specifically set for the amount of the attorney's fees sought and "no class members objected to the reasonableness of the settlement or the fees and expenses sought." McCrary Decl. ¶ 8, Feb. 2, 2015, ECF No. 56.
On October 16, 2014, the Court entered an Order pursuant to Federal Rule of Civil Procedure 23 preliminarily approving the settlement reached by the parties, approving the form and manner of the class notice, and scheduling a fairness hearing. Order, ECF No. 54. The fairness hearing took place on February 5, 2015, and the Court directed the parties to submit proposed findings of fact for the Court's consideration.
I. Final Approval of the Class Action
Class actions are governed generally by Federal Rule of Civil Procedure 23. Pursuant Rule 23(a) and (b)(3), and based upon the entire record in this action, the Court finds that the instant action may properly be maintained as a class action because: (a) the number of class members is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the class; (c) the claims of the representative plaintiffs are typical of the claims of the class; (d) the representative plaintiffs will fairly and adequately represent the interests of the Class; (e) questions of law and fact common to the members of the class predominate over any questions affecting only individual members; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Accordingly, the Court having previously made preliminary findings that the prerequisites for class action treatment under Fed.R.Civ.P. 23 were met, it now hereby gives final approval to the certification of this matter as a class action.
The class consists of all former employees of Badger Technologies, Inc., who were terminated and/or laid off without cause from their employment at the facility located at 5829 County Road 41, Farmington, New York 14425 (the "Facility") on or about August 13, 2012, or thereafter, as part of, or as the reasonably expected consequence of, the mass layoff or plant closing ordered on or about August 13, 2012, or thereafter, as defined by Federal WARN Act and the New York WARN Act, who do not file a timely request to opt-out of the class.
II. Settlement of Plaintiffs' Claims
Rule 23(e) of the Federal Rules of Civil Procedure provides that "[a] class action shall not be dismissed or compromised without the approval of the court." In this Circuit there are nine factors to ...