IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MIGUEL ANGEL FUENTES )

CORDOVA, et al., etc., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0462-WS-M

 )

R & A OYSTERS, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the parties’ joint motion for preliminary 

approval of class action settlement agreement and notice to class members. (Doc. 

173). The Court has by separate order conditionally certified a settlement class 

and appointed a class representative and class counsel. (Doc. 175). 

A class action can be settled “only with the court’s approval.” Fed. R. Civ. 

P. 23(e). Final approval can be had only following class notice and a hearing. Id. 

First, however, the Court is to “make a preliminary evaluation of the fairness of 

the settlement before directing that notice be given to the settlement class.” Smith 

v. William Wrigley Jr. Co., 2010 WL 2401149 at *2 (S.D. Fla. 2010). 

“Preliminary approval is not binding, and it is granted unless a proposed 

settlement is obviously deficient.” Id. (internal quotes omitted). “Preliminary 

approval is appropriate where the proposed settlement is the result of the parties’ 

good faith negotiations, there are no obvious deficiencies and the settlement falls 

within the range of reason.” Id.

The settlement agreement provides a pot of $86,500.00, with $42,654.86 

allocated to settle the class members’ contract claims and the balance allocated to 

settle the FLSA retaliation claims of seven individuals. Three class members, who 

separately settled with the defendants in December 2015 for $500 each, will 

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receive the amount to which they then agreed. The remaining 48 class members 

will split the remaining $41,654.86. Each such class member will receive 

approximately half the full remaining value of his or her contract claim.1 Given 

the uncertainties raised by the defendants’ arguments regarding the existence vel 

non of enforceable contracts to pay class members the prevailing wage, as well as 

the vagaries of the trial process, the Court preliminarily finds this to be a fair and 

reasonable settlement percentage. 

The named plaintiffs and FLSA opt-in plaintiffs provided detailed 

information regarding their annual travel and tool expenses, and as to these class 

members the full value of their contract claims is known precisely. As to the 

remaining class members, each is deemed by the settlement to have incurred travel 

and tool expenses in the average amount, per work season, incurred by the named 

plaintiffs and opt-in plaintiffs. In the absence of more precise information, the 

Court preliminarily finds this to be a fair and reasonable means of approximating 

the full potential damages of these class members.2

The proposed settlement, reached after almost two years of energetic 

litigation and after extensive mediation, appears on its face to be the result of good 

faith negotiations, and the Court detects no obvious fatal deficiencies. 

 1 The two named plaintiffs, as well as sixteen opt-in plaintiffs, settled their FLSA 

claims on terms that provided full recovery of unpaid hours at the minimum wage rate of 

$7.25. As to such class members and such hours, the full remaining value of their 

contract claims is the difference between the hourly minimum wage and the (higher) 

hourly prevailing wage.

2 The Court is concerned with Section VI.5, which appears to contemplate a lower 

recovery for some or all class members if any class member files a claim form 

establishing that he or she worked more seasons than the defendants’ records reflect or 

that he or she is a class member despite not being one of the 51 individuals identified by 

the defendants as the universe of class members. It appears that class members will be 

compensated for such additional seasons, but generally only out of the fixed pool of 

$41,654.86 – which could result in lower recoveries than those promised should all or 

most class members submit claim forms. The Court will not withhold preliminary 

approval on this basis, but it will not finally approve the settlement before this concern is 

satisfactorily addressed.

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Accordingly, the motion for preliminary approval of class action settlement 

agreement is granted, and the settlement agreement is preliminarily approved.

3

 

II. Class Notice.

Before a class settlement can be finally approved, “[t]he court must direct 

notice in a reasonable manner to all class members who would be bound by the 

proposal.” Fed. R. Civ. P. 23(e)(1). Moreover, “[f]or any class certified under 

Rule 23(b)(3), the court must direct to class members the best notice that is 

practicable under the circumstances, including individual notice to all members 

who can be identified through reasonable effort.” Id. Rule 23(c)(2)(B). The 

notice requirement, which stems from both Rule 23 and the Due Process Clause, 

has two primary components: content and manner of distribution. Adams v. 

Southern Farm Bureau Life Insurance Co., 493 F.3d 1276, 1286 (11th Cir. 2007). 

The settlement agreement provides for notice to each listed class member 

by “mail” to the last known addresses as maintained by the defendants. (Doc. 

173-2 at 10). Notice is the responsibility of class counsel, which is “empowered” 

to use “electronic mail, facsimile, or other means” to distribute notice. (Id.). 

Although not set forth in the settlement agreement, the parties’ brief asserts that 

notice will be sent to the last known address “in both Mexico and the United 

States.” (Doc. 173-1 at 10). The Court assumes, and will require, that “mail” 

constitutes first class mail or better, with provision for return (or notice) of 

undelivered mailings. Given what the parties admit are “challenges with mail 

service in Mexico,” (id.), and given that it has been five years or more since some 

of the class members last worked for the defendants, the Court will require class 

counsel to utilize all available means – including telephone, telefax and e-mail – to 

reach the 51 class members, and – in light of the deadline for filing a claim – to 

 3 Because the class action aspect of this lawsuit extends only to the breach of 

contract claim, the Court expresses no opinion regarding the settlement of the FLSA 

retaliation aspect of the lawsuit.

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begin such efforts no later than 14 days after the first mailing. The Court will also 

require periodic reports regarding these efforts and their results. 

To pass muster as to content, notice “must also contain an adequate 

description of the proceedings written in objective, neutral terms, that, insofar as 

possible, may be understood by the average absentee class member.” Twigg v. 

Sears, Roebuck & Co., 153 F.3d 1222, 1227 (11th Cir. 1998) (internal quotes 

omitted). “Not only must the substantive claims be adequately described but the 

notice must also contain information reasonably necessary to make a decision to 

remain a class member and be bound by the final judgment or opt out of the 

action.” Id. (internal quotes omitted). Such information includes “the relief 

available, the steps necessary to opt out, and the implications of remaining a 

member of the class.” Adams, 493 F.3d at 1287.

The proposed notice is written in English, but the parties represent that it be 

translated into Spanish before distribution. (Doc. 173-1 at 9). The Court makes 

this assurance a requirement. The Court also requires that reference to Inclan as a 

class representative, (Doc. 173-3 at 4), be deleted, as the Court has not appointed 

him to such a position.

While the settlement agreement is clear that timely submission of a claim, 

objection or request for exclusion depends on the date it is “postmarked,” (Doc. 

173-2 at 7, 8, 11), the notice uses a variety of terms, including “receive,” “file,” 

and “send.” (Doc. 173-3 at 7-9). Especially given the admitted unreliability of the 

Mexican postal system, the Court requires that the notice use only the term 

“postmarked” with respect to objections and requests for exclusion (which are to 

be filed with the Court). With respect to claim forms, which may be mailed, 

telefaxed or e-mailed to class counsel, the Court requires that the notice clearly use 

only the term “postmarked” (for mailed forms) or “received” (for telefaxed or emailed forms). 

Section 16 of the notice addresses objections. The Court believes that four 

alterations to this provision are required. First, language must be added that 

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advises class members to set forth in their written objections all the reasons they 

believe the settlement should not be approved, with as much explanation as they 

desire to include. Second, the words “in person” must be added to the final 

sentence of the first paragraph, between “object” and “to the terms.” Third, a new 

sentence must be added, advising class members that their timely written 

objections will be considered by the Court even if they do not attend the fairness 

hearing. Fourth, a new sentence must be added that advises class members they 

may file an objection even if they also submit a claim form.

Because the claim form will be included with each class notice, the Court 

concludes that the parties have moved for approval of the claim form. The Court 

notes that the claim form states that class counsel must “receive” the completed 

form by the deadline. (Doc. 173-4 at 3). As discussed above, the Court requires

that the claim form clearly use the term “postmarked” (for mailed forms) and 

“received” (for telefaxed or e-mailed forms). 

With the understanding that these directives will be followed, the Court 

preliminarily concludes that the proposed notice is the best notice practicable 

under the circumstances and that it satisfies the requirements of Rule 23 and due 

process. Accordingly, the motion for preliminary approval of class notice 

(including claim form) is granted, and the class notice (including claim form) is 

preliminarily approved.

4

 

III. Establishment of Dates.

The defendants are to provide class counsel with the last known addresses 

of all class members on or before September 16, 2016. 

Class counsel is to complete mailing of the class notice and claim form to 

all class members on or before September 26, 2016. Class counsel is to file and 

serve a notice confirming accomplishment of this task on or before September 27, 

 4 Final approval of the manner of notice must await the receipt of information 

regarding the results of class counsel’s notification efforts.

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2016. Class counsel is to begin contacting class members by the other means 

identified in this order no later than October 10, 2016.

Class counsel is to file and serve three reports addressing: (1) the number 

of completed claim forms received from class members; (2) the number of class 

notices known not to have been received by class members; and (3) the efforts 

made by class counsel to ensure class members’ receipt of class notice. These 

reports are to be filed and served on or before November 7, November 21 and 

December 5, 2016.

To be timely, objections and exclusion requests must be mailed to the Court 

and postmarked no later than November 25, 2016. To be timely, claim forms 

must be mailed to class counsel and postmarked no later than November 25, 2016

or telefaxed or e-mailed to class counsel and received no later than November 25, 

2016. This deadline may be extended by the Court as to any class member who, 

according to class counsel’s November 7, 2016 report, has not received the class 

notice and claim form. 

A hearing on the fairness and reasonableness of the settlement and whether 

final approval shall be given will be held on December 6, 2016 at 2:00 p.m. in 

Courtroom 2-A. 

The parties shall file a motion for final approval of the settlement, and may 

file memoranda in support of same, no fewer than ten days before the hearing.

DONE and ORDERED this 12th day of September, 2016. 

 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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