Joint Motion and Memorandum in Support of Joint Motion for Preliminary Approval of Class 

Action Settlement Page	1

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Alan J. Leiman (OSB No. 980746) Todd A. Hanchett (OSB No. 992787)

alan@leimanlaw.com tahanchett@stoel.com

Drew G. Johnson (OSB No. 114289) John B. Dudrey (OSB No. 083085)

drew@leimanlaw.com jbdudrey@stoel.com

LEIMAN & JOHNSON, LLC STOEL RIVES LLP

44 W. Broadway, Suite 326 900 SW Fifth Avenue, Suite 2600

Eugene, OR 97401 Portland, OR 97204

Telephone: (541) 345-2376 Telephone: (503) 224-3380

Facsimile: (541) 345-2377 Facsimile: (503) 220-2480

Andrew S. Lewinter (OSB No. 080031)

ANDREW LEWINTER, ATTORNEY, P.C.

101 E. Broadway, Suite 220

Eugene, OR 97401

Telephone: (541) 686-4900

Facsimile: (541) 686-1300

andrewlewinter@yahoo.com

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CORBYN VANCE and LOGAN VANCE, 

individually and on behalf of others similarly 

situated,

Plaintiffs,

 v.

CUARTO LLC, an Oregon limited liability 

company, SEPTIMO LLC, an Oregon limited 

liability company, LBB LLC, an Oregon limited 

liability company, SEXTO LLC, an Oregon 

limited liability company, PRIMERO LLC, an 

Oregon limited liability company, SEGUNDO 

LLC, an Oregon limited liability company, 

QUINTO LLC, an Oregon limited liability 

company, collectively all doing business as 

LITTLE BIG BURGER and MICAH 

CAMDEN and KATHERINE POPPE, 

individually,

Defendants.

Case No.: 6:14-cv-00777-MC

 

Joint Motion and Memorandum in 

Support of Joint Motion for 

Preliminary

Approval of Class Action

Settlement

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Local Rule 7-1 Certification. The Parties have conferred and this Motion for Preliminary 

Approval of class Action Settlement is filed jointly on behalf of all Plaintiffs and all Defendants 

pursuant to the Stipulated Settlement Agreement filed on [add] (Docket [add]).

Motion. Plaintiffs and Defendants jointly move this Court for an Order:

a) Preliminarily approving the Stipulated Settlement Agreement (Docket [add]).

b) Scheduling a Fairness Hearing on the question of whether the proposed Settlement should 

be approved as fair, reasonable and adequate to the Stipulated Rule 23 Settlement Class 

(“Rule 23 Class”);

c) Preliminarily certifying the Rule 23 Class for settlement purposes;

d) Approving as to form and content the proposed Notice to the Rule 23 Class, attached 

hereto as Exhibit 3;

e) Approving as to form and content the proposed Rule 23 Class Claim Form, attached 

hereto as Exhibit 2;

f) Approving as to form and content the proposed Stipulated Class and Collective Action 

Settlement Agreement, attached hereto as Exhibit 1;

g) Approving the proposed table of Allocations of Settlement Payments to Rule 23 Class 

Members, attached hereto as Exhibit 4; 

h) Directing the mailing of the Rule 23 Class Notice and Rule 23 Class Claim Forms by 

First Class Mail to Rule 23 Class members;

i) Approving Alan J. Leiman and Drew Johnson of Leiman & Johnson, LLC and Andrew 

Lewinter of Andrew Lewinter, Attorney, P.C. as Class Counsel; approving Corbyn Vance 

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and Logan Vance as Class Representatives; and approving Class Action Administration, 

Inc. as the Claims Administrator; and

j) Vacating all pre-trial deadlines.

This Motion is supported by the Memorandum of Law and the Declaration of Alan J. 

Leiman and the Exhibits filed herewith.

DATED: January 13, 2016 Respectfully submitted, 

/s Alan J. Leiman

Alan J. Leiman

E-mail: alan@leimanlaw.com

Oregon State Bar No.: 98074

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

Of Attorneys for Plaintiffs

/s Drew G. Johnson

Drew G. Johnson

E-mail: drew@leimanlaw.com

Oregon State Bar No.: 114289

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

/s Andrew Lewinter

Andrew Lewinter

E-mail: andrewlewinter@yahoo.com

Oregon State Bar No.: 080031

101 E. Broadway, Suite 220

Eugene, OR 97401

Telephone: (541) 686-4900

Facsimile: (541) 686-1300

Attorney for Plaintiffs

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/s Todd A. Hanchett

Todd A. Hanchett

Email: tahanchett@stoel.com

Oregon State Bar No. 992787

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Of Attorneys for Defendants

/s John B. Dudrey

John B. Dudrey

Email: jbdudrey@stoel.com

Oregon State Bar No. 083085

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Of Attorneys for Defendants

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Alan J. Leiman (OSB No. 980746) Todd A. Hanchett (OSB No. 992787)

alan@leimanlaw.com tahanchett@stoel.com

Drew G. Johnson (OSB No. 114289) John B. Dudrey (OSB No. 083085)

drew@leimanlaw.com jbdudrey@stoel.com

LEIMAN & JOHNSON, LLC STOEL RIVES LLP

44 W. Broadway, Suite 326 900 SW Fifth Avenue, Suite 2600

Eugene, OR 97401 Portland, OR 97204

Telephone: (541) 345-2376 Telephone: (503) 224-3380

Facsimile: (541) 345-2377 Facsimile: (503) 220-2480

Andrew S. Lewinter (OSB No. 080031)

ANDREW LEWINTER, ATTORNEY, P.C.

101 E. Broadway, Suite 220

Eugene, OR 97401

Telephone: (541) 686-4900

Facsimile: (541) 686-1300

andrewlewinter@yahoo.com

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CORBYN VANCE and LOGAN VANCE, 

individually and on behalf of others similarly 

situated,

Plaintiffs,

 v.

CUARTO LLC, an Oregon limited liability 

company, SEPTIMO LLC, an Oregon limited 

liability company, LBB LLC, an Oregon limited 

liability company, SEXTO LLC, an Oregon 

limited liability company, PRIMERO LLC, an 

Oregon limited liability company, SEGUNDO 

LLC, an Oregon limited liability company, 

QUINTO LLC, an Oregon limited liability 

company, collectively all doing business as 

LITTLE BIG BURGER and MICAH 

CAMDEN and KATHERINE POPPE, 

individually,

Defendants.

Case No.: 6:14-cv-00777-MC

 

Memorandum in Support of Joint 

Motion for Preliminary

Approval of Class Action

Settlement

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I. Introduction

Following a settlement conference conducted by the Honorable Michael H. Simon on 

November 13, 2015, Plaintiffs Corbyn Vance and Logan Vance (collectively “Plaintiffs”) and all 

Defendants negotiated and entered into a Stipulated Settlement Agreement, subject to Court 

approval (the “Settlement”), filed concurrently with this Joint Motion for Preliminary Approval 

of Class Action Settlement. (Doc. ___) (the “Motion”).

Pursuant to this Motion and the Settlement, the Parties respectfully request that the Court 

enter an Order (i) preliminarily approving the Settlement; (ii) scheduling a Fairness Hearing on 

the question of whether the Settlement should be approved; (iii) preliminarily certifying the Rule 

23 Class for settlement purposes; (iv) approving as to form and content the proposed Notice to 

the Rule 23 Class; (v) approving as to form and content the proposed Rule 23 Class Claim Form; 

(vi) approving Alan J. Leiman and Drew G. Johnson of Leiman & Johnson, LLC, and Andrew 

Lewinter of Andrew Lewinter, Attorney, P.C. as Class Counsel, Plaintiffs as Class 

Representatives, and Class Action Administration, Inc. as the Claims Administrator; and (vii) 

vacating all pretrial deadlines.

As set forth herein, preliminary approval of the Settlement is appropriate for the 

following reasons:

• the Settlement is fair, adequate and reasonable and satisfies the requirements for a 

fair settlement set forth in Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998);

• the Settlement meets all the requirements for certification under Rule 23(a) and 

(b)(3) of the Federal Rules of Civil Procedure;

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• the proposed Notices to the Rule 23 Class are adequate and satisfy due process; 

and

• Class Counsel will fairly and adequately represent the interests of the Rule 23 

Class as required by Fed. R. Civ. P. 23(g).

Accordingly, the Parties request that the Court enter an Order preliminary 

approving the Settlement and vacating all current pre-trial deadlines.

II. Procedural History and Settlement Terms

B. The Pleadings

This is a class action case for unpaid overtime. Defendants Micah Camden (“Camden”) 

and Katherine Poppe (“Poppe”) owned and controlled eight limited liability company defendants 

that comprised the Little Big Burger (“LBB”) chain of hamburger restaurants in Portland and 

Eugene. Defendants admit that they did not pay the overtime premium to all LBB employees 

who worked over 40 hours in a workweek, as required by the Fair Labor Standards Act (FLSA) 

and Oregon law, until after this lawsuit was filed.

Plaintiffs, former employees of certain Defendants, brought this action on behalf of 

themselves and other similarly situated current and former employees seeking to recover unpaid 

wages, overtime, liquidated damages, penalties, costs, and attorney fees resulting from the 

alleged underpayment of overtime by Defendants. The Complaint also alleges that Logan Vance 

was terminated in retaliation for complaining about his employer’s failure to pay overtime, in 

violation of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3). 

In early August 2015, with the Court’s consent, the parties asked Judge Michael H. 

Simon to conduct a settlement conference. Judge Simon conducted a settlement conference on 

November 13, 2015. Plaintiffs Corbyn Vance and Logan Vance and Defendants Camden and 

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Poppe attended that conference, represented by their respective attorneys. At that conference, the 

parties reached agreement on all material terms, subject to the preparation of final settlement 

documents to be submitted within 60 days to the Court for its review and approval.

C. Discovery by the Parties

The parties have engaged in extensive discovery since this action was filed on May 12, 

2014. Plaintiffs and Defendants served both Interrogatories and Requests for Production. 

Plaintiffs reviewed hundreds of pages of payroll records and time sheets of putative class 

members for the three-year period at issue. Plaintiffs employed an economic consultant to 

analyze that massive amount of data.

Plaintiffs deposed Camden, Poppe, and Defendants’ General Manager. Defendants 

deposed Plaintiff Logan Vance. 

D. Defendants’ Records

1. Defendants’ Existing Records

Based on the records produced by Defendants, there are 123 current and former 

employees who are members of the putative Rule 23 class, including the named plaintiffs. Of 

that number, 33 individuals returned timely opt-in Consents to join the previously conditionally 

certified FLSA Class. 

2. Defendants’ Missing Records

Defendants’ existing records make it difficult to estimate the overtime the putative Rule 

23 Class members may be owed. For example, on some occasions Defendants assigned new 

employees former employees’ identification numbers. In addition, some employees worked at 

multiple locations within the Little Big Burger enterprise. Finally, some of the time records were 

simply missing. As explained below, Plaintiffs used several “data quality factors” to draw 

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inferences about the amount of overtime that each of those employees was owed. Plaintiffs used 

that methodology to estimate damages for those Rule 23 Class members whose existing records 

did not clearly show they were owed overtime. 

E. The Settlement Stipulation

 As set forth in the Settlement, the Parties have agreed to settle this action in recognition 

of the risks, uncertainties and expense of continued litigation. Plaintiffs and their counsel, after 

evaluation of the disputed and factual and legal issues, and weighing the risks, uncertainties and 

expense of continued litigation against the benefits of a mediated compromise have concluded 

that a settlement of this Action on the terms and conditions set forth in the Settlement is fair, 

adequate, and reasonable, and in the best interests of Plaintiffs and Rule 23 Class. The proposed 

Settlement provides a fair, efficient, cost-effective, and assured procedure for providing a 

monetary award to Plaintiffs and the members of the Rule 23 Class.

Defendants and their counsel, taking into account the risks, uncertainties, disruptions and 

expense involved in the Action, and having a desire to put this controversy to rest, have 

concluded that a settlement of the Action on the terms and conditions set forth in the Settlement 

is in the best interest of Defendants because it will end and encompass all pending, threatened, or 

possible litigation and/or claims by Plaintiffs or the settlement classes against Defendants that 

involve or allege that have been asserted in the Complaint.

The essential terms of the settlement follow:

1. Settlement Consideration. Defendants have agreed to pay a gross Settlement 

amount (the “Settlement Amount”) of SIX HUNDRED AND SEVENTY-FIVE 

THOUSAND ($675,000) to be used to pay: (i) settlement payments to the Rule 23 

Class members; (ii) Plaintiffs’ attorneys’ fees of $225,000; (iii) Plaintiffs’ 

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litigation costs not to exceed $23,000; (iv) Service Payments to the named 

Plaintiffs for their efforts and participation in the litigation totaling $12,500 

($5,000 to Logan Vance, $7,500 to Corbyn Vance); (v) claims administration 

costs for processing of the notices, claim forms, and settlement payments totaling 

$18,000; (vi) Payment to Logan Vance as settlement of his retaliation claim under 

29 U.S.C. § 215(a)(3); any other amount necessary to perform the Settlement as 

approved by the Court. The Settlement provides that unclaimed settlement funds 

will revert to the Defendants. 

2. Allocation of Settlement Payments to Rule 23 Class Members. The parties ask 

the Court to approve an allocation to the Rule 23 Class members as follows. The 

basis for each employee’s recovery depends on a number of factors, including 

whether there the employee has opted in under the Fair Labor Standards Act and 

whether existing records show the overtime owed. Where the time records are 

missing or incomplete, the Parties have agreed on the formula described below to 

estimate the overtime owed. What follows is a brief description of the bases for 

calculation of each Rule 23 Class member’s damages and the total amounts for 

damages calculated in each category. 

a. Pay for overtime owed shown on Defendants’ time records. The 

records Defendants provided show that 93 employees are owed varying 

amounts of overtime totaling $77,038.98.

b. Pay for Liquidated Damages. The 33 employees who opted in under the 

Fair Labor Standards Act will receive “an additional equal amount as 

liquidated damages,” pursuant to 29 U.S.C. § 216(b). The total amount of 

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liquidated damages to those 33 employees, based on the records 

Defendants provided, is $25,770.57. 

c. Pay for single penalty to each employee owed overtime based on 

Defendants’ time records. The Settlement provided for the payment of a 

single ORS 652.150 wage penalty equal to 240 hours of pay at each Class 

member’s last known regular rate of pay. Based on the time records 

Defendants provided, that total amount is $232,536.00. 

d. Allocation of Remaining funds. $46,154.45 remains after accounting for 

the damages based on amounts showing on the records Defendants 

provided. However, as explained above, Defendants’ records include 

significant gaps in the data. The parties drew inferences based on a 

number of “data quality factors” related to the likelihood that employees 

are owed more overtime than the records actually reflect. The number of 

factors applicable to each employee is directly related to the strength of 

the inference that that particular employee is owed overtime. That total 

amount is divided between the 30 employees whose records do not 

actually reflect overtime owed in amounts directly related to the number 

of data quality factors for each employee. For these 30 employees only, 

for taxation purposes, one-third of their Settlement Payments are being 

paid as wages subject to standard wage withholding, and the balance is 

being paid subject to IRS Form 1099 reporting. 

3. Release of Claims. Pursuant to the Settlement, upon the Court’s final approval, 

the Plaintiffs and the Rule 23 Class members release Defendants from liability on 

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the terms set forth in Section 6 of the attached Stipulated Class and Collective 

Action Settlement Agreement. 

4. Approval of Settlement. Pursuant to 28 U.S.C. § 1715, within ten (10) days of 

filing this Motion for Preliminary Approval, Defendants will provide notice of the 

Settlement to the Attorney General of the United States and the Oregon Attorney 

General, as well as the Attorney General of any other state in which a class 

member resides. The Parties will not seek final approval of the Settlement until at 

least 90 days following the provision of the required notices pursuant to Section 

28 U.S.C. §1715 (d).

5. Notice to Class Members. Within fourteen (14) calendar days following the 

Court’s Order granting preliminary approval of the Settlement, Defendants will 

forward to the independent third-party claims administrator (the “Claims 

Administrator”) the names, addresses, last known telephone numbers (if 

available) and social security numbers of the Rule 23 Class members, including 

the named Plaintiffs. Thereafter, within thirty (30) calendar days, the Claims 

Administrator will mail, via regular first-class U.S. mail, Notice of the Settlement 

to the Rule 23 Class members at their last known addresses, using the addresses 

provided by Defendants and from the National Change of Address Registry. 

Included with the Notices will be a Claim Form. The proposed Rule 23 Class 

Notice and Rule 23 Claim Form are attached to the Settlement as Exhibits A and 

B, respectively.

6. Objection Procedures. Within forty five (45) days following the date on which 

the Claims Administrator mails the Notices to the Rule 23 Class, members who 

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wish to do so may file and serve written objections to the Settlement and notice of 

intention to appear to object at the final settlement hearing. 

7. Claims Administration and Payment of Claims. All Rule 23 Class members 

who wish to participate must return a completed Rule 23 Class Claim Form 

within sixty (60) days of the date of mailing of the Rule 23 Notice to the class 

members. Those Rule 23 class members who timely return a valid Claim Form 

will be entitled to receive a settlement payment pursuant to the allocations 

contained in the Settlement. 

III.The Settlement is Fair, Adequate, and Reasonable

A strong judicial policy favors settlement of class actions. Class Plaintiffs v. City of 

Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Fed. R. Civ. P 23(e) gives courts an active role in 

approving class action settlements. Fed. R. Civ. P. 23(e). Courts evaluate proposed settlements to 

determine if they are “fundamentally fair, adequate and reasonable.” Id. 

The Ninth Circuit has identified eight factors to consider in evaluating a settlement’s 

fairness, adequacy and reasonableness:

(1) The strength of the plaintiff’s case;

(2) The risk, expense, complexity and likely duration of further litigation;

(3) The risk of maintaining class action status throughout the trial;

(4) The amount offered in settlement;

(5) The extent of discovery completed, and the stage of the proceedings;

(6) The experience and views of counsel;

(7) The presence of a governmental participant; and

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(8) The reaction of the class members to the proposed settlement.

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

Three of the factors listed above are not applicable in this case. The third factor is not 

applicable because, although the Court grants preliminary approval under the Fair Labor 

Standards Act, the Court has not yet certified the Rule 23 class. The seventh factor is not 

applicable because there is no governmental participant. The eighth factor is simply unknown at 

this point because the parties have not yet informed the putative class members about this 

proposed settlement. The remaining five factors are discussed below.

A. The Plaintiffs’ case is very strong

The Plaintiffs’ case is very strong: Defendants admitted that they did not pay their 

employees overtime wages for hours worked in excess of 40 per week during the three-year 

statutory period. Answer at ¶ 9. 

B. Further Litigation will Probably be Costly, Long, and Risky for Everyone

The significant gaps in the data introduce uncertainty with respect to the amount of 

damages owed to those employees for whom there are no actual records of overtime owed. The 

Plaintiffs will ask the jury to draw inferences based on assumptions suggested by the existing 

data, pursuant to the approach set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 

688 (1946). Thus, there is some risk in determining the damages for the 30 Rule 23 Class 

members for whom the existing records do not show the extent of their damages. 

Moreover, trying this case will be very costly to all parties. Although trying cases always 

involves some cost, this case will require the testimony of competing experts who will draw 

different conclusions from the evidence available. Further, three attorneys represent the 

plaintiffs, and two currently represent the Defendants. This will be a very expensive case to try.

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C. The Amount Offered in Settlement is Fair

The settlement amount that the parties have agreed to is fair. First, the amount will 

compensate all Rule 23 class members the overtime they are owed where existing records show 

they are owed overtime. Moreover, it will compensate those Rule 23 class members statutory 

damages they are owed: Liquidated damages for those who opted in under the Fair Labor 

Standards Act, and penalty wages for the entire group.

The “data quality factor” approach to allocating the $46,154.45 remaining after distribution 

of amounts based on actual records logically estimates the likelihood that overtime is owed. 

Points are applied to each of the 30 employees without record evidence of overtime owed based 

on five separate criteria related to that probability. 

Application of each of the following criteria to each employee results in accumulation of 

points. For example, an employee who fits only one criteria would receive fewer points than one 

who fits several, resulting in fewer points and less money. A description of each criteria follows. 

1. Worked at Multiple Locations. Employees who worked at multiple locations 

may have worked overtime when the hours worked at each location are 

aggregated. Defendants did not recognize that the hours a given employee 

worked each restaurant counted toward the total hours that employee worked for 

the Little Big Burger enterprise. Defendants did not always keep accurate records 

of the hours each employee worked for any restaurant in the enterprise in a given 

week. Employees who worked at multiple locations are more likely to be owed 

overtime.

2. Notice Status. Defendants identified some employees as having worked 

overtime, and therefore added them to the list of people who received notice of 

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the lawsuit, but those employees’ actual records do not show any overtime owed. 

Defendants’ identification of employees possibly owed overtime is a factor 

suggesting that overtime is owed.

3. Opt-in Status. Employees who opted in to the Fair Labor Standards Act suit have 

necessarily identified themselves are entitled to unpaid overtime. That selfidentification increases the likelihood that overtime is owed, even where the 

records do not reflect that.

4. Missing Time or Pay Records. The absence of records may suggest that 

overtime is owed. 

5. Manager Designation. Managerial employees are more likely to have worked 

overtime.

The proposed payment of Class Counsel Attorneys’ Fees at $225,000 is also well within 

what is reasonable and customary in both wage and hour settlements and class actions 

settlements in general, and is equal to the 33% specified in Class Counsel’s fee agreements with 

the named Plaintiffs. (Leiman Declaration, ¶2). Class Counsel’s costs, not to exceed $23,000

are likewise reasonable for case of this size, complexity and duration. (Id., ¶3). Class Counsel 

received a not to exceed price from the claims administrator of $18,000, a reasonable amount for 

settlement administration expenses considering the size of the settlement class and complexity of 

the settlement. (Leiman Declaration, ¶4).

The proposed Service Payment to the named Plaintiffs in the total amount of $12,500 

($5,000 to Logan Vance and $7,500 to Corbyn Vance), is within the range of compensation 

typical for class representatives who have contributed their time and effort in furtherance of the 

litigation. (Leiman Declaration, ¶5). The named Plaintiffs worked closely consulting with Class 

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Counsel over the course of the litigation, and completed interrogatories. Plaintiff Logan Vance 

gave a deposition. Both named Plaintiffs attended the two settlement conferences: one lasting a 

full day, and the other lasting half a day. Enhanced compensation in the form of the proposed 

Service Payments serve to make it more likely that employees or former employees will 

undertake the close scrutiny brought on by litigation in order to vindicate the rights of absent 

class members. 

D. The Parties have Engaged in Extensive Discovery

This action was filed on May 12, 2014. The parties held a Fed. R. Civ. P. 26(f) discovery 

conference shortly after Defendants answered the Complaint, and discovery has been continuing 

at a steady pace since that date. Each side has taken depositions, propounded and answered 

Interrogatories, and exchanged thousands of documents. This litigation is ripe for settlement.

E. Counsels’ Experienced View: This Settlement is Fundamentally Fair, 

Adequate, and Reasonable

In this case, counsel for each side are seasoned litigators with broad experience in 

employment litigation. See Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc. 221 F.R.D. 523, 

528 (C.D. Cal. 2004) (“‘Great weight’ is accorded to the recommendation of counsel, who are 

most closely acquainted with the facts of the underlying litigation.”). After multiple settlement 

efforts over more than a year and a half, including a settlement conference conducted by Judge 

Michael Simon, the parties counsel in this case agree that they have reached a settlement that is 

fundamentally fair, adequate, and reasonable. It is one that this Court should approve.

IV. The Proposed Settlement Satisfies the Requirements of Fed. R. Civ. P. 23(a)

The proposed certification of the Rule 23 Class meets each of the prerequisites for 

certification under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure. 

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A. Numerosity. 

There is no precise numerical cut-off point for what constitutes sufficient numerosity 

under Rule 23(a)(1). A.F. ex rel. Legaard v. Providence Health Plan, 300 F.R.D. 474, 480 (D. 

Or. 2103). Generally, classes of 40 members are sufficiently numerous to meet the numerosity 

requirement. Id. Here, the Rule 23 Class is comprised of 123 members. The Rule 23 class is 

sufficiently numerous as to make it impractical to join them as individual plaintiffs.

B. Commonality

A class meets the commonality requirement of Fed. R. Civ. P. 23(a) “if there are 

questions of fact and law which are common to the class,” even if every question of fact and law 

is not common to all members of the class. Hanlon, 150 F. 3d at 1019. There need only be 

“shared legal issues with divergent factual predicates” or “a common core of salient facts 

coupled with disparate legal remedies within the class.” Id. That the extent of individual damages 

varies among class members does not defeat the commonality of the factual and legal issues 

relating to liability. Giles v. St. Charles Health System, Inc., 294 F.R.D. 585, 590 (D. Or. 2013). 

The commonality requirement of Fed. R. Civ. P. 23(a) is easily met. For example, all 

putative class members worked preparing and serving food in one or more Little Big Burger 

locations within the three-year period preceding the filing of the Complaint and they were not 

paid time-and-one-half for hours worked in excess of 40 per week. The common questions of 

law and fact are too numerous to provide an exhaustive list, but this requirement is certainly met.

C. Typicality

Fed. R. Civ. P. 23(a) provides that the claims or defenses of the class representative must 

be typical of the class. Claims are typical if they are “reasonably coextensive” with absent class 

members, even if they are not substantially identical. Hanlon, 150 F.3d at 1020.

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Here, both named plaintiffs have claims for unpaid overtime. All of the absent class 

members also have claims for unpaid overtime, even though some of the class members have 

opted in under the Fair Labor Standards Act, as the named plaintiffs have, and some have not. 

The named Plaintiffs’ claims for unpaid overtime are reasonably coextensive with the claims of 

the absent class members.

D. Adequacy of Representation

The final prerequisite under Rule 23(a)(4) is that the class representative must be able to 

act “fairly and accurately to protect the interests” of all class members. Consistent with the 

requirements of constitutional due process, absent class members must have adequate 

representation before the court enters a judgment that binds them. Id. Whether representation is 

legally adequate turns on the resolution of two questions. Id. First, whether the named plaintiffs 

and their counsel have any conflicts of interest with other class members. Id. Second, whether 

the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class. Id. 

The named plaintiffs do not have any conflicts of interest with other class members. 

Plaintiffs are members of the Rule 23 Class, and therefore share the same interests as the other 

class members in maximizing recovery from the Defendants. The settlement amount was 

negotiated prior to discussions about allocation for Logan Vance’s retaliation claim and the 

allocation of the service payments to the two named plaintiffs. Thus, neither had any effect on 

the size of the settlement amount, which fairly and adequately compensates all Rule 23 class 

members. Finally, Class counsel has vigorously prosecuted this action, consistently striving to 

maximize the recovery to the absent class members.

V. The Proposed Settlement also Satisfies the Requirements of Fed. R. Civ. P. 23(b)(3)

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To satisfy the requirements of Rule 23(b)(3), the district court must find “that the 

questions of law or fact common to the members of the class predominate over any questions 

affecting only individual members, and that a class action is superior to other available methods 

for the fair and efficient adjudication of the controversy.” The matters pertinent to these findings 

include:

(1) “the interest of members of the class in individually controlling the prosecution or 

defense of separate actions”;

(2) “the extent and nature of any litigation concerning the controversy already 

commenced by or against members of the class”;

(3) “the desirability or undesirability of concentrating the litigation of the claims in 

the particular forum”; and

(4) “the difficulties likely to be encountered in the management of a class action.”

Rule 23(b)(3)(A)–(D). However, the Supreme Court has held that a district court need 

not consider manageability in a “settlement only” class certification. Amchem Products, Inc. v. 

Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only class 

certification, a district court need not inquire whether the case, if tried, would present intractable 

management problems...for the proposal is that there be no trial.”) 

A. Predominance.

Under Fed. R. Civ. P. 23(b)(3), questions of law or fact common to class members must 

predominate over issues that affect only individual members. Giles, 294 F.R.D. at 595. In the 

context of wage and hour class actions, class issues predominate over individual issues if all of 

the class members’ damages were the consequence of their employer’s wage and hour violations, 

even if their individual class members’ damages vary. Id. Here, Defendants failed to pay all 

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Rule 23 class members in accordance with federal and Oregon wage and hour law. That basic 

fact predominates over any issue that affects only individual members.

B. Superiority

Under Fed. R. Civ. P. 23(b), class certification is appropriate if “a class action is superior 

to other available methods for fairly and efficiently adjudicating the controversy.” The 

superiority requirement ensures that a class action is the most effective and efficient method of 

resolution. Giles, 294 F.R.D. at 595. “Where recovery on an individual basis would be dwarfed 

by the cost of litigating on an individual basis, this factor weighs in favor of class certification.”

Id. (citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir.2010)). 

Litigating this case on an individual basis would be exorbitantly expensive. Although 

damages vary among Rule 23 class members, many Rule 23 class members have damages so 

small that the cost of litigating this case on an individual basis would dwarf any particular 

employee’s recovery. Class certification is clearly a superior vehicle for vindication the rule 23 

class members’ rights.

VI.Class Notice is Adequate and Satisfies Due Process

Fed. R. Civ. P. 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 practicable under the circumstances, 

including individual notice to all members who can be identified through reasonable efforts.” 

Such class notice “must concisely and clearly 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 counsel if the member so 

desires”; (v) “that the court will exclude from the class any member who requests exclusion, 

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stating when and how members may elect to be excluded”; and (vi) “the binding effect of a class 

judgment on class members under Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B).

Proper notice of a class action settlement should also (i) describe the essential terms of 

the proposed settlement; (ii) disclose any special benefits provided to the class representative; 

(iii) provide information regarding attorneys’ fees; (iv) indicate the time and place of the hearing 

for settlement approval and the method for opting-out or objecting to the settlement; (v) explain 

the procedures for allocating and distributing settlement funds; and (vi) prominently display the 

address and phone number of class counsel and the procedure for making inquiries. See Manual 

for Complex Litigation § 30.212 (3d ed.). The proposed Notice to the Rule 23 Class attached as 

Exhibit B to the Settlement meets each of these requirements. The proposed Notices are clear, 

concise and satisfy due process requirements. 

VII. Proposed Class Counsel Will Fairly and Adequately Represent the Interests of 

the Class

In appointing class counsel, the Court is required under Rule 23(g) to consider (i) “the 

work counsel has done in identifying or investigating potential claims in the action”; (ii) 

“counsel’s experience in handling class action, other complex litigation, and claims of the type 

asserted in the action”; (iii) “counsel’s knowledge of the applicable law”; and (iv) “the resources 

counsel will commit to representing the class.” Rule 23(g)(1)(C).

Proposed Class Counsel, Leiman & Johnson, LLC and Andrew Lewinter, Attorney, P.C., 

have extensive experience in handling class action cases, class action wage and hour cases, and 

other types of cases regarding employment law violations. Leiman & Johnson, LLC focuses its 

practice on FLSA and Oregon Wage and Hour Law cases. Alan J. Leiman has over twenty years 

of litigation experience including complex civil litigation experience. Andrew Lewinter has ten 

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years of experience litigating employment cases, including both wage and hour cases and cases 

involving retaliation for complaining about wage violations. Over a fourteen-month period, 

attorneys Drew G. Johnson, Alan J. Leiman, and Andrew Lewinter conducted an extensive 

investigation into Defendants’ pay practices. They have reviewed thousands of documents, 

including time and pay records, spreadsheets, and records relating to Defendants’ pay practices. 

Class Counsel have also spent considerable time researching federal and Oregon law. (Leiman 

Declaration, ¶¶6,7). Class Counsel also invested resources in securing the assistance of 

EcoNorthwest as its retained litigation expert for purposes of assisting counsel with its 

investigation, and for purposes of assuring that the proposed Settlement allocations are fair to 

class members. (Id. at ¶8). 

IV. Conclusion

For all the foregoing reasons, the Parties respectfully request that the Court enter an 

Order preliminarily approving of the Settlement and (ii) scheduling a Fairness Hearing on the 

question of whether the Settlement should be approved; (iii) preliminarily certifying the Rule 23 

Class for settlement purposes; (iv) approving as to form and content the proposed Notice to Rule 

23 Class; (v) approving as to form and content the proposed Rule 23 Claim Form; and (vi) 

approving Alan J. Leiman and Drew G. Johnson of Leiman & Johnson, LLC and Andrew 

Lewinter of Andrew Lewinter, Attorney, P.C. as Class Counsel, Plaintiffs as Class 

Representatives, and Class Action Administration, Inc. as the Claims Administrator; and (vii) 

vacating all pre-trial deadlines.

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CERTIFICATE OF COMPLIANCE

This memorandum complies with the word-count limit under LR 7-2(b) because it 

contains 4,903 words, including headings, footnotes, and quotations, but excluding the caption, 

signature block and any certificates of counsel.

DATED: January 13, 2016 Respectfully submitted, 

/s Alan J. Leiman

Alan J. Leiman

E-mail: alan@leimanlaw.com

Oregon State Bar No.: 98074

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

Of Attorneys for Plaintiffs

/s Drew G. Johnson

Drew G. Johnson

E-mail: drew@leimanlaw.com

Oregon State Bar No.: 114289

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

/s Andrew Lewinter

Andrew Lewinter

E-mail: andrewlewinter@yahoo.com

Oregon State Bar No.: 080031

101 E. Broadway, Suite 220

Eugene, OR 97401

Telephone: (541) 686-4900

Facsimile: (541) 686-1300

Attorney for Plaintiffs

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/s Todd A. Hanchett

Todd A. Hanchett

Email: tahanchett@stoel.com

Oregon State Bar No. 992787

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Of Attorneys for Defendants

/s John B. Dudrey

John B. Dudrey

Email: jbdudrey@stoel.com

Oregon State Bar No. 083085

STOEL RIVES LLP

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Of Attorneys for Defendants

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