1 –JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Alan J. Leiman (OSB No. 980746)

Drew G. Johnson (OSB No. 114289)

LEIMAN & JOHNSON, LLC

44 W. Broadway, Suite 326

Eugene, OR 97401

alan@leimanlaw.com

drew@leimanlaw.com

Francis T. Barnwell (OSB No. 841623)

Kathryn M. Hindman (OSB No. 882261)

BULLARD LAW

200 SW Market St Ste 1900

Portland, OR 97201

fbarnwell@bullardlaw.com

khindman@bullardlaw.com

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SHAWNA BELL, individually and on behalf 

of all others similarly situated,

Plaintiff,

 

 v.

CONSUMER CELLULAR, 

INCORPORATED, an Oregon Domestic 

Business Corporation,

Defendant.

CASE NO.: 3:15-cv-00941-SI

JOINT MOTION FOR FINAL 

APPROVAL OF CLASS ACTION 

SETTLEMENT

CERTIFICATION OF CONFERRAL

Pursuant to L.R. 7-1(a), the parties have conferred and this Joint Motion for Final 

Approval of Class Action Settlement is filed jointly on behalf of Plaintiff and Defendant 

pursuant to the Settlement Agreement filed previously. (Dkt.20-3).

MOTION

Plaintiff and Defendant jointly move this Court for an Order granting:

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2 –JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

a) Final approval of the settlement as it is fair, reasonable, and adequate to members of the 

Settlement Class; and,

b) Approval of the Settlement class consisting of the Oregon Current and Former Employee 

Subclasses, and the Arizona Employee Subclass.

c) Approval of Class Counsel’s Motion for Attorneys’ Fees, Incentive Award and Costs of 

Settlement Administration (Dkt. 24.)

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

Leiman and Matthew McDermott, and the Exhibits filed herewith.

DATED: April 6, 2017 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 Plaintiff

/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

Of Attorneys for Plaintiff

/s Francis T. Barnwell

Francis T. Barnwell

Email: fbarnwell@bullardlaw.com

Oregon State Bar No. 841623

Bullard Law

200 SW Market St Ste 1900

Portland, OR 97201

Telephone: (503) 248-1134

Case 3:15-cv-00941-SI Document 28 Filed 04/06/17 Page 2 of 21
3 –JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Facsimile: (503) 224-8851

Of Attorneys for Defendant

/s Kathryn M. Hindman

Kathryn M. Hindman

Email: khindman@bullardlaw.com

Oregon State Bar No. 882261

Bullard Law

200 SW Market St Ste 1900

Portland, OR 97201

Telephone: (503) 248-1134

Facsimile: (503) 224-8851

Of Attorneys for Defendant

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1 – MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT

Alan J. Leiman (OSB No. 980746)

Drew G. Johnson (OSB No. 114289)

LEIMAN & JOHNSON, LLC

44 W. Broadway, Suite 326

Eugene, OR 97401

alan@leimanlaw.com

drew@leimanlaw.com

Francis T. Barnwell (OSB No. 841623)

Kathryn M. Hindman (OSB No. 882261)

BULLARD LAW

200 SW Market St Ste 1900

Portland, OR 97201

fbarnwell@bullardlaw.com

khindman@bullardlaw.com

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SHAWNA BELL, individually and on behalf 

of all others similarly situated,

Plaintiff, 

 

 v.

CONSUMER CELLULAR, 

INCORPORATED, an Oregon Domestic 

Business Corporation,

Defendant.

CASE NO.: 3:15-cv-00941-SI

Memorandum in Support of Joint 

Motion for Final Approval of Class 

Action Settlement

PROCEDURAL AND FACTUAL HISTORY

I. LITIGATION, SETTLEMENT, AND PRELIMINARY APPROVAL

In May, 2015, Plaintiff Shawna Bell filed a collective and class action Complaint 

in the United States District Court for the District of Oregon, alleging that Defendant 

failed to properly pay her and other similarly situated “Customer Service 

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Representatives” (“CSR’s”) the correct amount of overtime pay in violation of the Fair 

Labor Standards Act, 29 U.S.C. § 201, et. seq. (“FLSA”) and Oregon state wage and hour 

laws. (Dkt. 1.) The Complaint alleged that Defendant failed to include non-discretionary 

incentive pay and bonuses in the computation of the regular rate of pay for purposes of 

computing overtime. (Id., ¶ 2.) Defendant answered by acknowledging that from 

approximately September 2014 to March 2015 a payroll system error may have resulted 

in an overtime computation that did not include additional compensation earned in the 

regular rate used to calculate overtime pay of Defendant’s CSR’s. (Dkt. 13, ¶ 17.) 

Defendant maintains that it acted in good faith to comply with the FLSA, that it had 

reasonable grounds for believing it was in compliance with the FLSA, and that it did not 

act willfully. (Id., ¶¶ 77, 78, 79.)

Shortly after the action was filed the parties began exchanging information and 

discussing settlement. Plaintiff requested, and Defendant provided, discovery that 

addressed both the scope of the regular rate computational problem (potential liability), 

and the number of current and former employees impacted (scope of Settlement Class). 

(Declaration of Alan J. Leiman (“Leiman Decl.”), ¶ 3.) Defendant produced time and 

pay records relating to the time period for which the regular rate computational error was 

not being disputed, and records from before and after to demonstrate the limited durtation 

of the computational error. (Id., ¶ 4.) The discovery provided adequately demonstrated 

the size of the class and the alleged amount of unpaid FLSA overtime in dispute relating 

to the approximate seven-month regular rate computation error. 

The Parties participated in a mediation in January 2016 with the Honorable Susan 

Leeson and Richard “Sam” Hall at which a preliminary settlement was reached. The 

parties prepared and submitted the proposed Settlement for review and prelimnary 

approval by the Court. (Dkt. 17.) Following the Court’s Order denying preliminary 

approval (Dkt. 19), the parties renegotiated and submitted an Amended Settlement for the 

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Courts preliminary approval (Dkt. 20.) The Court granted the Parties’ motion and 

preliminarily approved the proposed settlement as fair, reasonable, and adequate (the 

“Settlement”). (Dkt. 23.) The Court’s Order also determined that the Settlement Class 

satisfied the requirements of FRCP 23, appointed Alan J. Leiman and Drew G. Johnson

as Class Counsel, appointed Class Action Administration, LLC as settlement 

administrator, approved the Settlement Class Notices for distribution, and required that 

notice of the proposed settlement be mailed and posted on the web. (Id.)

There were a total of 728 individual current and former employees of Defendant 

who were included in the Settlement Class preliminarily certified by the Court. The 

Settlement Class is divided into three subclass designations as follows: (i) Oregon 

Current Employee Subclass consisting of 299 individuals; (ii) Oregon Former Employee 

Subclass consisting of 197 individuals; and, (iii) Arizona Employee Subclass consisting 

of 232 individuals. 

The settlement administrator mailed the Court-approved notices to the 728 Rule 

Rule 23 Settlement Class members on December 30, 2016. (Declaration of Matthew 

McDermott (“McDermott Decl.”), ¶ 6.) On or before mailing of the Notice Packets on 

December 30, 2016, the settlement administrator established a dedicated informational 

website on which copies of the Notice, Claim Form, Settlement, and the Preliminary 

Approval Order were posted, and which provided contact information, including a tollfree phone number and email for the settlement administrator. (Id, ¶ 9.) On January 20, 

2017, two weeks prior to the deadline for class members to object to the Settlement, 

Plaintiff’s Motion for Attorneys’ Fees, Incentive Award and Costs of Settlement 

Adminstration (Dkt. 24) was posted on the dedicated website. (Id.)

The settlement administrator reports having received a total of 365 non-duplicate 

Claim Forms representing a return rate of approximately 50.1%. Of the 365 nonduplicate Claim Forms received, 342 were complete and postmarked on or before the 

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Class Member’s personalized response deadline. (Id., ¶ 16.) Only 2 individuals 

submitted a timely request for exclusion from the settlement. (Id., ¶ 13.) Notably, no 

Rule 23 Settlement Class Members objected to the Settlement. (Id., ¶ 11.) 

II. SETTLEMENT ALLOCATION

The Parties agreed to settle the claims for all members of the Settlement Class for 

up to $900,000.00 (“Gross Settlement Amount”). (Dkt. 20-3.) After deducting the 

requested attorneys’ fees of $250,000.00 (27.8% of the Gross Settlement Amount), the 

requested settlement administration expenses of $24,000.00, and the requested Incentive 

Award to Plaintiff of $2,500.001, the resulting net settlement fund of $626,000.00 is

available to fund the settlement payments to the Settlement Class Members who returned 

valid and timely claim forms, and pay the non-participating eligible members of the two 

Oregon subclasses pursuant to the terms of the Settlement. 

Out of the 728 Notice Packets mailed, the settlement administrator tracked 65

packets that had been returned as not deliverable. (McDermott Decl., ¶ 7.) After using 

USPS forwarding addresses, and after researching addresses using skip-trace databases, a 

total of 685 Class Members were mailed Notice Packets without all attempts being 

returned as undeliverable representing 94% of the Settlement Class mailing list. (Id.)

Of the 299 Class Members who were designated as members of the Oregon 

Current Employee Subclass, 170 Class member returned valid and timely Claim Forms 

representing $149,600.00 in benefits. (McDermott Decl., ¶ 18.) With one member of the 

subclass opting out, Defendant will pay the remaining 128 Oregon Current Employee 

subclass members who did not respond to the Notice $35 each for a total of $4,480.00, 

for a total of $154,080.00 in payments to the Oregon Current Employee Subclass. (Id.)

Of the 197 Class Members who were designated as members of the Oregon 

Former Employee Subclass, 114 Subclass members returned valid and timely Claim 

																																																							 1 All	pending	Court	approval (Dkt.	24).

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Forms, representing $202,418.00 in benefits. (Id.) With one member of the subclass 

opting out, Defendant will pay the remaining 82 Oregon Current Employee subclass 

members who did not return valid and timely Claim Forms $35 each for a total of 

$2,870.00, for a total of $205,288.00 in payments to the Oregon Former Employee 

Subclass. (Id.)

Of the 232 Class Members who were designated as members of the Arizona 

Employee Subclass, 58 Class members returned valid and timely Claim Forms, 

representing $3,511.58 in benefits. (McDermott Decl., ¶ 18.)2

Cumulatively, Defendant is expected to pay $362,879.58 to Class Members, 

representing 57% of the total of the net settlement funds allocated for that purpose. The 

reversion is appropriate for the reasons set forth in the Parties’ Joint Motion for 

Preliminary approval. (Dkt. 20, pp. 11-18.) The Settlement resulted from a negotiated 

and hard fought mediation and does not show self-interest or collusion of Class Counsel. 

In addition, because Defendant has (a) paid the actual overtime owed to then current 

employees who were employed when the regular rate computation was corrected; (b) the 

amount of the actual unpaid overtime was relatively low; (c) the value of the Settlement 

is driven by ORS 652.150 penalty wages which already serve as a deterrent; and (d) 

entitlement to class treatment of Oregon penalty wages is highly disputed by the parties –

reversion is proper, fair, and appropriate. The Settlement allocations are specified in 

Exhibits B, C and D to the Dageforde Declaration filed herewith.

ARGUMENT

I. THE COURT SHOULD GRANT FINAL APPROVAL OF THE 

SETTLEMENT

In granting preliminary settlement approval, this Court preliminarily approved the 

																																																							 2 Pursuant	to	the	Settlement,	non-participating	Arizona	Employee	Sublcass	

members	do	not	release	any	rights	or	remedies	under	the	FLSA	or	Arizona	law and	

do	not	receive	a	settlement	benefit.

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proposed settlement as fair, reasonable and adequate. (Dkt. 23.) Since preliminary 

approval, notice has been distributed with the response rates as set forth above, with two 

requests for exclusion and zero objections. The settlement will distribute considerable 

payments to Settlement Class Members, which represent good and fair value for the 

claims, particularly in light of the relatively low actual damages, and when compared 

with the uncertainty and risk of continued litigation. This Court should find, once again, 

that the Settlement is fair, adequate, and reasonable and approve the Settlement so that 

participating Settlement Class Members and non-responding Oregon Current and Former 

Subclass Members may receive their settlement payments.

A. The Settlement is Fundamentally Fair, Adequate, and Reasonable

The Ninth Circuit’s standard of evaluation of the fairness, adequacy, and 

reasonableness of a settlement requires this Court to balance several factors: (1) the 

strength of plaintiffs’ 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 (8) the reaction of the class members to the proposed 

settlement. Churchill Village, L.L.C. v. General Electric, 361 F.3d 566, 575 (9th Cir. 

2004). Additionally, in cases where settlement occurs before formal class certification, 

courts must consider whether the settlement is a result of collusion among the parties. 

Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 254 (N.D. Cal. 2015) (citing In re 

Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011)). As outlined 

below, these factors support final approval of the settlement.

1. Strength of Plaintiffs’ Case 

This factor examines the strength of a plaintiff’s case on the merits balanced 

against the amount offered in the settlement. Ontiveros v. Zamora, 303 F.R.D. 356, 369 

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(E.D. Cal. 2014). But the “fairness hearing is not to be turned into a trial or rehearsal for 

trial on the merits,” and the task for this court is not “to reach any ultimate conclusions on 

the contested issues of fact and law which underlie the merits of the dispute, for it is the 

very uncertainty of outcome in litigation and avoidance of wasteful and expensive 

litigation that induce consensual settlements.” Officers for Justice v. Civil Serv. Comm’n, 

688 F.2d 615, 625 (9th Cir. 1982). Instead, the court may “put a good deal of stock in the 

product of an arms-length, non-collusive, negotiated resolution . . . .” Rodriguez v. West 

Publ’g. Corp., 563 F.3d 948, 965 (9th Cir. 2009).

Plaintiff alleged that Defendant did not properly compute FLSA overtime as a 

result of a regular rate computational error involving non-discretionary incentive and 

bonus pay. Even though for settlement purposes Defendant is not disputing that it made 

an approximately seven-month payroll error that resulted in the underpayment of FLSA 

overtime, Plaintiffs still believe they would face significant challenges establishing that 

members of the Oregon Current and Former Employee Subclasses were entitled to an 

ORS 652.150 “Final Paycheck” wage penalty, and that Rule 23 class certification on that 

issue could be maintained. Defendant asserts that the Settlement was driven by this 

highly disputed alleged entitlement to the penalty wages specified in ORS 652.150. (Dkt. 

20, p.12.) Assuming liability would be established, the amount of actual unpaid overtime 

resulting from the seven-month regular rate computational error was relatively low and 

had previously been paid to Class Members who were employed when Defendant 

corrected the error. (Id., pp. 5, 11.) Plaintiff would also have to establish that Defendant 

willfully violated Oregon law, something Defendant denies, to recover Oregon penalty 

wages for the two Oregon subclasses. Defendant also raised a good faith argument 

against FLSA liquidated damages. Thus, even if Plaintiff established liability, and could 

overcome objections that would bar class treatment, these defenses could greatly reduce 

Plaintiff’s recovery.

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Plaintiff maintains her strong belief in the merits of the case, and has reached a 

resolution that recognizes the potential difficulties she would face in continued litigation. 

Particularly in complex employment class action litigation, voluntary settlement is the 

preferred means of dispute resolution. Officers for Justice, 688 F.2d at 625. While the 

Court must review the fairness and reasonableness of the settlement, that determination 

is, ultimately, “nothing more than an amalgam of delicate balancing, gross 

approximations and rough justice.” Id. (internal quotations omitted). The proposed 

settlement balances the strengths and weaknesses of the Parties’ positions on class 

treatment, liability, and damages, while providing significant recovery for Settlement 

Class Members. This factor weighs in favor of settlement approval.

2. Risk, Expense, Complexity and Likely Duration of Further 

Litigation

The central consideration for this factor is the expense of litigation. Nat’l Rural 

Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). Generally, 

“unless the settlement is clearly inadequate, its acceptance and approval are preferable to 

lengthy and expensive litigation with uncertain results.” Id.

Once it became clear that Defendant could demonstrate that the regular rate 

computational error that formed the basis for Plaintiff’s claims was of a limited duration, 

the settlement value of the case in large part became driven by the issue of whether the 

Oregon Current Employee and Former Employee Sublcasses were entitled to ORS 

652.150 penalty wages. Prior to the mediation, the Parties engaged in a significant 

amount of informal, confidential discovery in order to demonstrate: (1) the seven-month 

duration of the payroll error; (2) that Defendant re-computed the overtime owed 

following discovery of the regular rate computational error and paid employees who were 

employed at that time their actual re-computed overtime; and (3) that Defendant had 

propery included the non-discretionary incentive pay and bonues in its regular rate 

calculations both before and after the seven-month period. Had this case not settled, the 

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Parties would have engaged in significant additional discovery (the preliminary discovery 

was subject to having to be re-requested) and there would have been motions for 

conditional certification of the FLSA Class, certification of the Rule 23 Class, likely 

cross-motions on summary judgment, and Defendant’s presumptive motions to decertify 

the FLSA and, if granted, Rule 23 classes. These litigation steps would have been 

expensive, complex, and protracted. This settlement avoids these expenditures of 

resources for all parties and the Court, and provides “significant benefit that [Settlement 

Class Members] would not receive if the case proceeded—certain and prompt relief.” 

See Barbosa v. Cargill Meat Sol. Corp., 297 F.R.D. 431, 446 (E.D. Cal. 2013). This 

factor supports final approval of the settlement.

3. Risk of Maintaining Class Action Status Through Trial

Although certification of the FLSA collective class claim was probable as a result 

of the FLSA regular rate computational error, Plaintiff faced legitimate risk that she 

would not be able to certify and maintain a Rule 23 Class for the Oregon employees. The 

most obvious risk Plaintiff faced was whether a Rule 23 class would be certified at all. 

Even assuming Plaintiff prevailed on class certification, Plaintiff still faced 

decertification on both classes, as Defendant claimed that Plaintiff’s claims suffered from 

multiple issues making class or collective treatment inappropriate, and that Oregon rules 

relating to pre-conditions for class treatment applied and precluded class treatment of the 

Oregon wage penalty claims.

Even if Plaintiff had achieved and maintained the FLSA collective class and an 

Oregon Rule 23 state law class through trial, she still would have faced the risk that the 

matter would be decertified. Under Rule 23, a court may revisit class certification at any 

time before final judgment. Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies 

class certification may be altered or amended before final judgment”); Fed. R. Civ. P. 

23(c)(1) advisory committee's notes to 2003 amendment (“A determination of liability 

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after certification, however, may show a need to amend the class definition. 

Decertification may be warranted after further proceedings.”). As a result, it is possible 

that any state law classes could have been decertified or modified before the conclusion 

of trial. Mazzei v. Money Store, 2016 WL 3876518, at *3 (2d Cir. July 15, 2016) 

(affirming decertification of Rule 23 class following jury verdict). 

Plainitff recognizes the multiple risks in proceeding with the litigation. Resolving 

the case now guarantees recovery for the participating Settlement Class members, and the 

non-paticipating Oregon Current Employee and Former Employee Subclass members and 

weighs in favor of approving the settlement.

4. Amount of Settlement Offered

When considering the fairness and adequacy of a settlement, “it is the complete 

package taken as a whole, rather than the individual component parts, that must be 

examined for overall fairness.” Ontiveros, 303 F.R.D. at 370 (quoting DIRECTV, 221 

F.R.D. at 527) (internal quotations omitted). “It is well-settled law that a proposed 

settlement may be acceptable even though it amounts to only a fraction of the potential 

recovery that might be available to the class members at trial.” Id.

Here, based on the actual number of valid and timely Claim Forms returned, the 

proposed Settlement provides $362,879.58 (exclusive of attorneys’ fees, costs, and 

incentive payments pending approval by the Court) to be distributed to the participating 

Settlement Class Members, and the non-participating Oregon Current and Former 

Employee Subclasses. 

Arizona Employee Subclass members will receive the amount of their actual recomputed overtime, or $50 whichever is greater. The average recovery for the 52 

Arizona Employee Subclass members who returned valid and timely Claim Forms is $60. 

Arizona Empoyee Subclass members who did not return a Claim Form are not releasing 

any rights under the FLSA or Arizona law pursuant to the Settlement and will not receive 

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any benefit. 

The Settlement provides for different recoveries for the Oregon Subclasses in 

recognition of greater uncertainties surrounding the entitlement of the Oregon Current 

Employee Subclass to any or all of a 240-hour ORS 652.150 wage penalty. While the 

entitlement of the Oregon Former Employee Subclass members to this penalty is more 

likely, those subclass members still face uncertainties from Defendant’s challenges to 

entitlement to any or all of an ORS 652.150 penalty because of Defendant’s claim that it 

did not act willfully, and its claim that Plaintiff failed to comply with Oregon’s prelitigation class action notice requirements.

In recognition of these uncertainties, Oregon Current Employee Subclass 

members who returned valid and timely Claim Forms will each receive a total of $880 in 

settlement of FLSA and Oregon claims. This amount is greater than the highest recomputed individual amounts of actual FLSA overtime for members of the Settlement 

Class. Participating Oregon Former Employee Subclass Members whio returned valid 

and timely Claim Forms will each each receive $1,791.00 in settlement of FLSA and 

Oregon claims. Oregon Current and Former Employee Subclass members who did not 

opt-out (2 opt-outs total) will receive $35 and release Oregon claims but will not release 

any FLSA claims. The Settlment provides a fair recovery. The actual amount of 

overtime at issue for the 727 putative Settlement Class Members ranged from $.02 to 

$822, with the next closest amount at $360, and that 646 of the Settlement Class 

members had actual overtime amounts at issue under $25. (Dkt. 20, p. 6.) There were no 

objections to the settlement, and only two opt-outs, confirming that the settlement amount 

is fair and adequate. See Barbosa, 297 F.R.D. at 447 (noting that the lack of objections 

and single request to opt-out of agreement showed class member support of settlement). 

As such, this factor supports approving the proposed settlement.

5. Extent of Discovery Completed and Stage of Proceedings

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“A settlement following sufficient discovery and genuine arms-length negotiation 

is presumed fair.” DIRECTV, 221 F.R.D. at 528. Formal discovery is not required prior 

to a class action settlement. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239–40 

(9th Cir. 1998). Rather, “[a]pproval of a class action settlement is proper as long as 

discovery allowed the parties to form a clear view of the strengths and weaknesses of 

their cases.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. Cal. 2013). 

The Court and the parties may also rely on discovery developed in prior or related 

proceedings. Linney, 151 F.3d at 1239–40.

The Parties obtained sufficient discovery to assess the claims and defenses in this 

case. The FLSA violation at issue was a regular rate computational error that resulted 

from Defendant’s non-inclusion of certain non-discretionary incentive and bonus pay in 

computing the regular rate used to compute the correct FLSA overtime rate. As a precondition to mediation, Plaintiff required Defendant to produce sufficient documentation 

in order to demonstrate the truthfulness of Defendant’s claim that the discovered error 

was limited to an approximate seven-month period, and that impacted employees still 

employed by Defendant when the error was discovered were paid their actual recomputed overtime. Defendant provided data demonstrating that the FLSA regular rate 

computational error claimed by Plaintiff was limited to an approximate seven-month 

period between September 2014 and March 2015 and that it recomputed and paid actual 

overtime to then still employed impacted employees. (Dkt. 20, pp. 16-17.) 

Additionally, the Parties’ use of mediation after conducting discovery, and the 

additional exchanges of information that took place during and after the mediation, 

assured there was more than adequate information for the Parties to understand their 

cases and reach a reasonable settlement. This supports the finding that the settlement is 

fair and adequate.

6. Experience and Views of Counsel

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“Great weight is accorded to the recommendation of counsel, who are most 

closely acquainted with the facts of the underlying litigation. This is because parties 

represented by competent counsel are better positioned than courts to produce a 

settlement that fairly reflects each party’s expected outcome in the litigation.” DIRECTV,

221 F.R.D. at 528 (internal citations and quotations omitted). Absent fraud or collusions, 

courts can, “and should, rely upon the judgment of experienced counsel for the parties,” 

when assessing a settlement’s fairness and reasonableness. Barbosa, 297 F.R.D. at 447 

(citing DIRECTV, 221 F.R.D. at 528.)

Class Counsel’s experience is outlined in Plaintiff’s Motion for Attorneys’ Fees, 

Incentive Award and Settlement Administraton Costs (Dkt. 24.) As noted there, Class 

Counsel have extensive experience in wage and hour litigation. Counsel for all parties 

agree that the settlement is fundamentally fair, adequate, and reasonable. This settlement 

agreement is the result of arms-length negotiations, between experienced counsel 

representing the interests of Plaintiff and Defendant, facilitated by a skilled mediator, 

after thorough factual and legal investigation. This factor weighs in favor holding the 

settlement is fair and reasonable.

7. Presence of a Government Participant

No government entity participated in this case, but the Attorney Generals of the 

United States, Arizona, and Oregon were provided notice under the Class Action Fairness 

Act (“CAFA”), 28 U.S.C. § 1715. (Leiman Decl. ¶ 5.) Unfortunately, Defendant did not 

send the CAFA notices until March 19, 2017, 40 days prior to the April 28, 2017 

scheduled date of the Final Approval Hearing, leaving a 50 day period for government 

objection following the hearing. “Although CAFA does not create an affirmative duty for 

either state or federal officials to take any action in response to a class action settlement, 

CAFA presumes that, once put on notice, state or federal officials will raise any concerns 

that they may have during the normal course of the class action settlement procedures.” 

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Garner v. State Farm Mut. Auto. Ins. Co., 2010 WL 1687832, at *1 (N.D. Cal. Apr. 22, 

2010). The 90-day CAFA period ends on June 19, 2017. The Proposed Order granting 

final approval of the Settlement provides for Defendant to fund the Settlement by 

forwarding the required funds to the settlement administrator by June 21, 2017, 1 day 

after the Order. The Parties will ask the Court to enter an Order providing “this Order 

becomes final on June 20, 2017, unless a government objection is received in which case 

it shall be withdrawn and the matter reconsidered”, or in the alternative to enter the Order 

on June 20, 2017. To minimize the impact of the delay of providing the CAFA notices, 

the Parties propose to advance the date for disbursements to Class Members to the 36th

day following the entry of the final approval Order barring no appeals. 

8. Reaction of the Settlement Class Members to the Proposed 

Settlement

The reaction of the settlement class strongly supports approval. Of the 693 Notice 

Packets that were mailed to Settlement Class Members and not returned as undeliverable, 

no one objected and only two individuals sought to exclude themselves from the 

Settlement. With responses received from 344 of the 693 Settlement Class Members 

presumed to have received the Notice Packet (50.1%), this high rate of participation, 

when combined with the lack of any objections to the settlement agreement, weighs 

heavily in favor of final approval. DIRECTV, 221 F.R.D. at 529 (“The absence of a 

single objection to the Proposed Settlement provides further support for final approval of 

the Proposed Settlement.”)

9. Evidence of Collusion

Courts considering a pre-class certification settlement must examine whether the 

settlement was the result of good faith, arms-length negotiations or fraud and collusion. 

Bellinghausen, 306 F.R.D. at 258. The Ninth Circuit has identified three signs of 

collusion: (1) class counsel receives a disproportionate distribution of the settlement, or 

when the class receives no monetary distribution but counsel is amply awarded; (2) the 

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15 – MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT

parties negotiate a “clear sailing” arrangement providing for the payment of attorneys’ 

fees separate and apart from class funds without objection by a defendant; and (3) when 

the parties arrange for payments not awarded to revert to a defendant rather than to be 

added to the class fund. Id. (citing in In re Bluetooth, 654 F.3d at 947). In their Renewed 

Joint Motion for Preliminary Approval of Class Action Settlement (Dkt. 20, pp. 11-18), 

the Parties addressed these factors in detail in response to the Court’s prior rejection of 

the Settlement. None of these factors support denying approval in this case.

First, the settlement is a “claims made” common fund with Class Counsel seeking 

28.7% of the maximum total fund for attorneys’ fees.3 Because of the provision for 

reversion, it was necessary to wait until the final Class Member Response could be timely 

received before computing Defendant’s actual obligation to fund the Settlement. Since 

there was no way to accurately anticipate particpation rates, it is only now that the 

reasonableness of Class Counsel’s fee request can be measured against the amount 

Defendant will actually pay in settlement. As set forth in Section II above, Defendant’s 

obligation stands at paying a total of $362,879.58 to Class Members. This approach 

results in Settlement Class Members receiving approximately 44% more than Class

Counsel’s fee request. Defendant is also obligated to pay the costs of settlement 

administration and an Incentive Award to Plaintiff. Greater participation would have 

increased the spread between the requested fees and the amounts paid to the Settlement 

Class Members, but at close to 50% the response rate was reasonable. 

Second, the fact that the Parties agreed to a “clear sailing” provision where 

Defendant would not object to the Class Counsel’s request for attorneys’ fees does not 

warrant denying final approval. See Deaver v. Compass Bank, 2015 WL 8526982 at *9 

																																																							 3 At	the	mediation,	Plaintiff’s	Counsel	voluntarily	reduced	the	one-third	contingency	

fee	specified	in	its	fee	agreement	with	Plainitff	by	$50,000.00	in	order	to	increase	

the	amount	of	funds	available	to	settle	the	claims	of	the	Settlement	Class	Members	

by	that	amount, and	Defendant	agreed	to	the	request.

Case 3:15-cv-00941-SI Document 28 Filed 04/06/17 Page 18 of 21
16 – MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT

(N.D. Cal. Dec. 11, 2015) (approving settlement despite presence of “clear sailing” term 

in settlement agreement). The Settlement provides that the Court’s approval of 

attorneys’ fees is separate from approval of the Settlement as it relates to the Settlement 

Class Members. (Dkt. 20-3, ¶ 5.4.4.)

Third, although the Settlement provides for reversion the Parties have 

demonstrated that several factors support reversion in this case and that it is not the 

product of collusion. Actual FLSA overtime damages were low. After subtracting what 

Defendant had paid outside the litigation to putative Settlement Class Members, 

approximatey $2,431.31 remained unpaid, exclusive of FLSA liquidated damages and 

penalties. (Dkt. 20, p.11.). As noted, the individual overtime underpayment ranges from 

$.02 to $822, with the next closes underpayment at $360, and the average amount of 

unpaid overtime $11.84. (Id., p. 12.) The recoveries provided for in the Settlement are 

substantially greater than the actual underpaid FLSA overtime which supports reversion. 

The Settlement was driven by a highly disputed alleged entitlement of the Oregon 

Current and Former Employee Sublcass Members to ORS 652.150 penalty wages. (Id.)

Additionally, the manner of settlement itself supports the lack of fraud or 

collusion. The Parties only reached an agreement after a long day of working with the 

neutral mediators. It took an additional five months following the mediation to reach an 

agreement, which was then further negotiated following the Court’s initial denial. See,

Bluetooth, 654 F.3d at 948 (holding that participation of a mediator, while not 

dispositive, is “a factor in favor of a finding of non-collusiveness”).

II. THE SETTLEMENT CLASS. 

The Court previously granted preliminary approval that for settlement purposes

the Settlement Class satisfied the requirements of FRCP 23. (Dkt. 23.) For the same 

reasons provided in the Parties Joint Motion for Preliminary Approval (Dkt. 20), and as 

set forth herein, the Court should reconfirm that the Settlement meets the requirements of 

Case 3:15-cv-00941-SI Document 28 Filed 04/06/17 Page 19 of 21
17 – MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT

Rule 23.

CONCLUSION

This settlement is the product of an arms-length negotiation between the Parties 

and their counsel, which resolves a bona fide dispute over alleged unpaid overtime wages

and penalty wages. The settlement is fair, reasonable and adequate, and provides 

Settlement Class Members with significant monetary relief. Accordingly, the Parties 

jointly and respectfully request that this Court approve of the Parties’ settlement 

agreement, and enter the Parties’ proposed Order providing for: (1) final approval of the 

settlement as fair, reasonable, and adequate as to the members of the Rule 23 Settlement 

Class; (2) approval that the Settlement Class meets FRCP 23 requirements ; and (3) 

approval of Class Counsel’s Motion for Attorneys’ Fees, Incentive Award, and Costs of 

Settlement Administration (Dkt. 24.)

CERTIFICATE OF COMPLIANCE

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

contains fewer than 18 pages.

DATED: April 6, 2017 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 Plaintiff

Signatures Continue Next Page

Case 3:15-cv-00941-SI Document 28 Filed 04/06/17 Page 20 of 21
18 – MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL 

OF CLASS ACTION SETTLEMENT

/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

Of Attorneys for Plaintiff

/s Francis T. Barnwell

Francis T. Barnwell

Email: fbarnwell@bullardlaw.com

Oregon State Bar No. 841623

Bullard Law

200 SW Market St Ste 1900

Portland, OR 97201

Telephone: (503) 248-1134

Facsimile: (503) 224-8851

Of Attorneys for Defendant

/s Kathryn M. Hindman

Kathryn M. Hindman

Email: khindman@bullardlaw.com

Oregon State Bar No. 882261

Bullard Law

200 SW Market St Ste 1900

Portland, OR 97201

Telephone: (503) 248-1134

Facsimile: (503) 224-8851

Of Attorneys for DefendanT

Case 3:15-cv-00941-SI Document 28 Filed 04/06/17 Page 21 of 21