United States District Court, W.D. Wisconsin
TERIANA JONES and BETHANY MORRISSEY, on behalf of themselves and a class of employees and/or former employees similarly situated, Plaintiffs,
CRUISIN' CHUBBYS GENTLEMEN'S CLUB, PTB, INC., TIMOTHY D. ROBERTS, KENNETH C. ROBERTS, and LANTZ RAY ROBERTS f/k/a THOMAS LANTZ DOUGLAS, Defendants.
D. PETERSON DISTRICT JUDGE
court held a hearing on the parties' joint motion for
final approval of the proposed settlement and plaintiffs'
motion for attorney fees. Plaintiffs appeared by counsel,
Paul Kinne and Kara Burgos. Defendants appeared by counsel,
Anthony Steffek. Plaintiff Teriana Jones and defendants
Timothy Roberts, Kenneth Roberts, and Lantz Roberts also
appeared on their own behalf.
court denied the motion without prejudice, for the reasons
stated on the record. The gist is that plaintiffs'
counsel filed a letter just before the hearing in which they
admitted that there were significant errors in the
calculations submitted in their motion for final approval.
Dkt. 196. The errors relate to both the amount of money that
each class member will receive and the amount of money that
was unclaimed, half of which will revert back to defendants
under the terms of the agreement. Because the errors could
implicate both the fairness of the settlement and the
reasonableness of counsel's fee petition, the parties
will have to file a renewed motion for final approval as well
as a renewed fee petition.
court will not require the parties to send new class notices
at this time. Counsel for plaintiffs represented at the
hearing that the errors included in the parties' court
submissions were not duplicated in the notices to class
members. Because counsel identified only slight discrepancies
in the amounts included in the notices and the amounts that
class members will receive, a new round of notices isn't
necessary. But the parties will need to submit to the court
copies of the notices they sent to class members so that the
court can verify that the notices were adequate.
Jones, speaking on her own behalf, asked the court to extend
the time for class members to submit a claim. As the court
observed at the hearing, less than 40 percent of class
members submitted a claim or otherwise responded to the
notice. Jones stated that counsel did not have current
contact information for many of the class members, so she
needed more time to reach out to them through informal
networks of friends and former coworkers. Jones's
concerns are valid and the court appreciates her efforts in
providing notice to the class. So the court will extend the
deadline for submitting a claim or filing an objection to
April 22, 2019. As a result, it is not necessary for
plaintiffs to file a motion to allow the claims of four class
members that were submitted after the original deadline.
Those claims may be included in the settlement.
court set a May 6, 2019 deadline for submitting renewed
motions for final approval of the settlement agreement and
for attorney fees. If there are new objections, the court
will set a date for a telephonic fairness hearing. If there
are no new objections, the court will decide the motions on
the written submissions.
assist the parties in preparing their renewed motions and to
help cure defects that were in the original motion, the court
will provide some guidance on what should be included in the
motions. First, the parties must provide the following
information to help the court determine whether they provided
adequate notice: (1) the number of class members that the
parties were able to contact through mail (and how they know
that they had current addresses for those class members); (2)
all other efforts that the parties made to provide notice,
including email, telephone, and any other means; (3) sealed
copies of the notices provided to class members. If the
parties are not able to provide actual notice to some class
members, then they should explain why those class members
should not be excluded from the class so that they are not
bound by the settlement. At this point, the parties have not
shown that publishing notice in Wisconsin newspapers is a
reasonable way of providing notice to the class.
before filing their renewed motions, counsel should review
them for inconsistences. One problem with the original
motions was that the parties provided different numbers for
the same thing without explaining the discrepancies. For
example, the parties provided different figures for the
number of class members, compare Dkt. 193, at 4 (109
class members), with Id. at 6 (106 class members);
the number of class members who submitted claims,
compare Dkt. 187, at 6 (41 class members),
with Dkt. 193, at 6 (35 class members); and the
total amount of claims submitted, compare Dkt. 193,
at 6 (approximately $185, 000), with Dkt. 188,
¶ 13 (approximately $193, 000). The accuracy of these
numbers is important because they are relevant to determining
whether notice is adequate, the settlement is fair, and the
attorney fees are reasonable.
the parties should explain how they calculated their numbers
and provide the underlying data. This is related to the
previous problem. As it turns out, the total amount of claims
submitted was neither $185, 000 nor $193, 000, as
counsel revealed in its letter shortly before the hearing.
But the court had no way of assessing the accuracy of the
figure for itself because the parties did not explain how
they calculated it or provide the underlying data.
Federal Rule of Civil Procedure 23 was recently amended to
include new factors that courts must consider before
approving a proposed class settlement. See Fed. R.
Civ. P. 23(e)(2). In their renewed motion for final approval,
the parties should address each of these factors. When
discussing the adequacy of the relief to the class and the
reasonableness of attorney fees, the parties should not rely
on the $400, 000 originally offered by defendants, but rather
the actual amount defendants will pay in light of the
reversion clause in the settlement agreement. As noted at the
hearing, the parties should also explain the basis for the
incentive awards for the named plaintiffs.
counsel's fee petition must comply with the court's
procedure on requesting attorney fees, which is attached to
the preliminary pretrial conference order.
the parties must resolve all of their disputes
before filing their renewed motions. In a footnote
in their original motion for final approval, the parties say
that “defendants reserve the right to contest the
number of shifts worked once they have had an opportunity to
review the claims shifts.” Dkt. 193, at 8 n.2. But the
parties cannot move for “final” approval and then
“reserve” objections for an unspecified future
date. All figures provided to the court in the motion for
final approval should be stipulated. If the parties cannot
agree on the relief to be provided, they should bring the
dispute to the court's attention promptly. The court will
not approve the settlement until those disputes are resolved.
defendants should consider whether they need to resubmit
their notice to certain state and federal officials under 28
U.S.C. § 1715(b). Defendants did not say whether the
notice they sent the officials contained the same errors as
the submissions to the court. If it did, it may affect the
validity of the notice.
last point. The attachments to the letter filed with the
court before the hearing contain the full names of some class
members. To protect their privacy, the court will direct ...