in the united states district court for the western ... · watkins, glenn wekony, richard wells,...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

ROCHESTER DIVISION

GREG KUEBEL, on Behalf of )

Himself and All Others Similarly )

Situated, )

) Case No. 08-CV-6020T

Plaintiff, )

) Jury Demanded

vs. )

)

BLACK & DECKER (U.S.), INC., )

)

Defendant. )

______________________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR CERTIFICATION OF NEW YORK LABOR LAW CLASS

ACTION, CONDITIONAL CERTIFICATION OF FLSA CLASS, AND

PRELIMINARY APPROVAL OF SETTLEMENT AND PROPOSED NOTICE

CRONE & MCEVOY, PLC

Class Counsel

5583 Murray Rd., Suite 120

Memphis, TN 38119

Telephone: (901) 737-7740

THOMAS & SOLOMON LLP

Class Counsel

693 East Avenue

Rochester, New York 14607

Telephone: (585) 272-0540

Case 6:08-cv-06020-MAT-JWF Document 182 Filed 10/19/12 of 27

2

PRELIMINARY STATEMENT

On January 10, 2008, Plaintiff Greg Kuebel (“Kuebel”) instituted the instant lawsuit

against Defendant Black & Decker (U.S.) Inc. (“Black & Decker”), asserting claims under the

Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) (Doc. No. 1). Kuebel

sought to pursue his FLSA claims as a collective action under 29 U.S.C. § 216(b) (“Section

216(b)”) and his New York Labor Law claims as a class action under Fed. R. Civ. P. 23.

Additionally, Kuebel claimed that he and the putative plaintiffs of both the collective action and

the class action had been retaliated against under the FLSA and the NYLL for complaining about

their unpaid wages. On March 28, 2008, Sava Ghicas filed his Notice to Become a Party

Plaintiff (Doc. No. 18). On June 5, 2008, Kuebel amended his complaint and alleged retaliation

under both the FLSA and the NYLL against only himself individually (Doc. No. 68). For its

part, Black & Decker has denied Kuebel’s allegations and opposed Kuebel’s claims. In

proceedings to date, the parties stipulated as to conditional certification of the collective action,

and certain individuals (the “Opt-ins”)1 have filed consents to join the matter as party plaintiffs.

1 The Opt-in Plaintiffs include, in addition to Mr. Ghicas, the following: Lane Alison, Kathryn Ancheta, Darrelle

Baker, III, Brad Bender, Jillian Berbakov, Bryan berg, Mike Blair, James Borton, Earl Bouley, Andrea Bowman,

Pamala Ann Brinkley, Matthew Brunelle, Jaleena Bundy, Jarrett Caldwell, Paul Celaya, John Comstock, Richard

Conover, Randy Cooper, Benjamin Court, Richard Crutchley, Jr., Andrew Dalzell, Andre Dasent, Donald Davis,

Daniel DiBucci, Richard Dombrowski, Mark Dougherty, Spencer Edgin, Robert Elgin, Jeremy Enno, Dawn

Erickson Franklin Faust, Vanessa Ferrari, Bernard Figueroa, Robert Foster, Jerry Freeman, Trent Garrison, Jr.,

James Garsktka, Kevin Grinton, Sergio Gutierrez, Richard Hartstein, Michael Hayes, Antwon Hazzard, Charles

Henning, II, JoAnne Hibner, Jason Hill, Kevin Holloway, Jay Hubatch, Michael Ike, Joseph James, James Jarrard,

James Jefferson, Lawrence Jones, Tarasa Jones, Robert Julian, Thomas Kalinski, Jerry Keefhaver, Jr., Michael

Kelly, Barbara King, Joshua Landis, Christopher Lascano, John Lentine, Brandon Leonard, Adrienne Livingston-

Choina, Salvator Locascio, James Mallory, David Malmstrom, Tony Malouf, Evan Markel, Jaime Marroquin,

Ronald Martinez, David Marzka, Lonnie Mays, II, Michael McConville, Campbell McDonald, Christopher

McGlynn, Kevin McKniff, Peter Mesa, Jeffery Miller, Kamal Minus, Phillip Mitchell, Bonnie Monahan, Brenton

Moroney, Rachel Mullet, Christopher R. Newman, Adriel Noriega, Omar Ortega, Debra Pappas, Rand Parker,

Leslie Patten, James Pearson, Michael Peck, Tim Pugh, Nickie Rice, Jeanine Robinson-Mason, Robert Rootes,

Jeffrey Rosetta, Ali Sabzevari, Kent Schindler, Kenneth Schmidt, Justin Schumacher, Dorsheika Shell, Randy

Simpson, Andrew Slack, Meredith Smith, Dennis Smith, Keith Steiner, Billy Stewart, Sam Stribling, Timothy

Sullivan, Steve Swasey (by Trustee Bruce Kriegman), John Switzer, Kristin Testerman, Peter Teteak, Kyle

Thompson, Teresa Throneberry, Martin Timms, Ruben Tirado, Thomas Mark Vail, Melissa Venis-Brooks, Stacy

Watkins, Glenn Wekony, Richard Wells, Michael R. West, Patricia Wheeler, Wesley Whisenant, Aaron Whitaker,

Henry Winiarz, and Jay Zapzalka.


3

The Court dismissed all claims on summary judgment (Doc. No. 167) and issued a Judgment in

favor of Black & Decker (Doc. No. 168). Kuebel filed a Notice of Appeal (Doc. No. 170), and

the United States Court of Appeals for the Second Circuit affirmed in part, vacated in part, and

remanded the case (Doc. Nos. 174, 177). The Court referred the case to Alternative Dispute

Resolution (Doc. No. 178).

As a result of mediation, notwithstanding their adversarial positions, Kuebel and Black &

Decker have negotiated a proposed settlement. This settlement has been reached solely in order

to avoid the uncertainty and expense of continued litigation. It covers all remaining claims in the

litigation. On September 19, 2012, the parties filed a Joint Stipulation of Settlement and Release

(Doc. No. 180).

In all events, and in accordance with the parties’ settlement agreement, Kuebel has filed

the instant Motion, respectfully moving this Court for:

1. Certification for settlement purposes only of a New York Labor Law class action;

2. Preliminary certification for settlement purposes only of an FLSA collective

action;

3. Preliminary approval of the Joint Stipulation of Settlement and Release

(“Settlement”) (Doc. No. 180);

4. Approval of the following (collectively, the “Notice Materials”): (a) Claim

Form (Non-NY/Previously Filed Consent to Join) (“Exhibit A” to

Settlement) (Doc. No. 180-1); (b) Claim Form (NY-Previously Filed

Consent to Join) (“Exhibit B” to Settlement) (Doc. No. 180-2); (c)

Consent to Join/Claim Form (New/Non-NY/Full-Time) (“Exhibit C” to

Settlement) (Doc. No. 180-3); (d) Consent to Join/Claim Form

(New/NY/Full-Time) (“Exhibit D” to Settlement) (Doc. No. 180-4); and

(e) Notice of Collective Class Action Settlement (“Exhibit E” to

Settlement) (Doc. No. 180-5); and

5. The establishment of a date for an Approval Hearing.

The merit of the Motion is plain. Both sides in this case were represented by experienced

and able counsel, and the settlement is the product of arms-length negotiation. The parties


4

reached their settlement following a private mediation attempt on December 14, 2011, and

Court-ordered mediation on May 10, 2012, and it is a fair, reasonable, and adequate resolution of

all claims in this matter. The parties’ proposed Notice Materials will provide class members

with the best notice practicable under the circumstances and allow for a full and fair opportunity

to consider the settlement and to develop a response. As such, this Court should grant the

Motion in its entirety.

RELEVANT FACTUAL BACKGROUND

A. The Parties’ Claims and Defenses

Black & Decker is a worldwide manufacturer of power tools, and it sells its products

under a number of brand names. It employs Retail Specialists who are responsible for product

merchandising and marketing within Home Depot stores. Kuebel worked for Black & Decker as

a Retail Specialist.

Kuebel claims that Black & Decker failed to pay hourly employees all regular and

overtime wages for all time suffered or permitted to work. On January 10, 2008, Kuebel

initiated this action, seeking unpaid wages, liquidated damages, injunctive relief, costs and

expenses, including reasonable attorneys’ fees and expert fees, and pre-judgment and post-

judgment interest under the FLSA and the NYLL.2 At all points during this litigation, Black &

Decker has expressly denied liability. Black & Decker has aggressively pursued—and will

continue to aggressively pursue if this litigation continues—a number of defenses.

B. History of This Litigation

This case has a lengthy history, given that it has been pending for well over four years.

Class counsel—the law firm of Crone & McEvoy, PLC, and the law firm of Thomas & Solomon

2 Kuebel also sought front pay and punitive damages for his retaliation claims, but those claims did not survive

summary judgment.


5

LLP—and counsel for Defendant, Black & Decker (U.S.) Inc., have conducted extensive

investigation and discovery in this matter, including both written discovery and depositions. See

Declaration of Alan G. Crone (“Crone Dec.”) at ¶ 2 (filed concurrently herewith). Class counsel

has taken and defended depositions, interviewed putative class members, reviewed documents

produced by Black & Decker, and reviewed and analyzed payroll data. Crone Dec. at ¶ 3. The

parties have also conducted an extensive motion practice. Crone Dec. at ¶ 4.

Kuebel filed his Representative Action Complaint for Violation of the Fair Labor

Standards Act (Doc. No. 1) on January 10, 2008, in which he alleged various violations of the

overtime provisions of the FLSA and the NYLL. Keubel filed an Amended Representative

Action Complaint for Violation of the Fair Labor Standards Act (Doc. No. 68) on June 5, 2008.

On March 28, 2008, Kuebel filed a motion to conditionally certify a class in this action

and send notice to putative plaintiffs (Doc. Nos. 19, 20), which Black & Decker opposed (Doc.

No. 50). A hearing was held on the motion on May 8, 2008, and on May 23, 2008, Black &

Decker filed a stipulation for certification of one of the issues in the case, which the Court

approved by order (Doc. No. 71). Notice was sent to putative plaintiffs, and 130 of them,

including Sava Ghicas, opted into the lawsuit.

On December 3, 2008, Black & Decker filed a motion for partial summary judgment

(Doc. No. 98) seeking judgment on the issues related to the plaintiffs’ drive time and to the

requirements for the plaintiffs to complete certain assignments before leaving their residence in

the morning and after arriving home in the evening. The Court granted Black & Decker’s

motion on May 18, 2009 (Doc. No. 123).

On September 14, 2009, Black & Decker filed another summary judgment motion (Doc.

No. 141) seeking judgment on the remaining claims in the case. On May 12, 2010, the Court


6

granted Black & Decker’s motion for summary judgment (Doc. No. 167) and issued a Judgment

(Doc. No. 168) on May 13, 2010.3 Kuebel filed a Notice of Appeal (Doc. No. 170), and the

United States Court of Appeals for the Second Circuit affirmed in part, vacated in part, and

remanded the case (Doc. Nos. 174, 177). The Court referred the case to Alternative Dispute

Resolution (Doc. No. 178). The parties have now reached a settlement and filed a Joint

Stipulation of Settlement and Release (Doc. No. 180) on September 19, 2012.

C. Experience of Class Counsel

Plaintiff Greg Kuebel and the opt-ins are represented by the law firm of Crone &

McEvoy, PLC, and the law firm of Thomas & Solomon LLP. Crone Dec. at ¶ 6. Class counsel

have extensive experience in prosecuting and litigating wage-and-hour actions such as this.

Crone Dec. at ¶ 7. Further, class counsel have the resources to effectively prosecute large-scale

wage actions. Crone Dec. at ¶ 8.

D. Settlement Negotiations

After this matter was remanded to the Court by the Second Circuit, the parties

participated in a mediation conducted by mediator Hunter Hughes, Esq. Crone Dec. at ¶ 9. This

private attempt at mediation was conducted on December 14, 2011 at Mr. Hughes’ office in

Atlanta, Georgia. Crone Dec. at ¶ 9. Although all the parties participated in that effort in good

faith, after a daylong mediation session the parties were not able to resolve all of the issues in the

case. Crone Dec. at ¶ 9.

Later, on March 20, 2012, the Court referred the case to Alternative Dispute Resolution

(Doc. No. 178). In its Order, the Court appointed Robert B. Conklin, Esq., as the mediator. The

parties and Mr. Conklin met in his firm’s law office in Manhattan on May 10, 2012. See Crone

3 The collective action was never certified except for the one issue stipulated by Black & Decker, on which

summary judgment was granted. In addition, Kuebel never filed a motion seeking approval of a Rule 23 class on the

NYLL claims.


7

Dec. at ¶ 10. After another daylong mediation session, the parties were able to successfully

agree on the core terms of a settlement. Crone Dec. at ¶ 10. Mr. Conklin filed his Mediation

Certification (Doc. No. 179) on June 7, 2012, indicating that the parties had reached an

agreement. Crone Dec. at ¶ 11.

For its part, despite its defenses in this case, Black & Decker has concluded that it is in

the Company’s best interest to resolve and settle this litigation pursuant to the Settlement. The

Company has entered into the Settlement to avoid the burden, expense, and uncertainty of

continued litigation; it does not admit or concede that any employees were not properly paid or

that it would be found liable if this matter were to proceed to trial. See Settlement at p. 1.

For their part, class counsel have analyzed and evaluated the merits of the claims made

against Black & Decker in the litigation and the impact of the Settlement on Kuebel and the class

members. See Crone Dec. at ¶ 13. Specifically, class counsel have considered factors such as

the substantial risks of continued litigation and the possibility that the case, if not settled now,

might not result in any recovery or might result in a recovery following trial that is less favorable

to class members than that offered by the Agreement. See Crone Dec. at ¶ 14. In light of such

considerations, class counsel are satisfied that the terms and conditions of the Settlement are fair,

reasonable, and adequate and that the Settlement is in the best interests of Kuebel and the class

members. Crone Dec. at ¶ 15.

E. Terms of the Settlement

1. The Class Members and Settlement of FLSA and New York Class

Claims

The parties negotiated their Settlement with the intent of covering the plaintiffs’ FLSA

claims and the NYLL claims pursuant to Rule 23. See Settlement at ¶ 2.1. Under the terms of

the Settlement, the FLSA class members will include all similarly situated persons who have


8

been employed by Black & Decker and/or its affiliates as a full-time Retail Specialist or Sales &

Marketing Specialist anywhere in the United States and who were assigned to service Home

Depot stores at any time between May 10, 2010, and June 30, 2012, who opt in to the litigation

pursuant to the opt-in procedures described in ¶ 2.6 of the Settlement, as well as all similarly

situated persons who have been employed by Black & Decker and/or its affiliates as a part-time

or full-time Retail Specialist or Sales & Marketing Specialist anywhere in the United States and

who previously filed a consent to join the litigation. See id. at ¶ 1.13 & Exh. E. The NYLL class

members will include all persons who have been employed by Black & Decker and/or its

affiliates as a full-time Retail Specialist or Sales & Marketing Specialist in New York and who

were assigned to service Home Depot stores at any time between January 10, 2005, and the date

of the order approving the Notice of Settlement who do not opt out of the litigation pursuant to

the procedures described in ¶ 2.8 of the Settlement. See id. at ¶ 1.19 & Exh. E.

2. Settlement Payments

Black & Decker has agreed to pay a maximum settlement amount of $600,000 for the

settlement of claims in this case. See Settlement at ¶ 4.1.a. If this amount is insufficient to pay

the individual payments to the class members, the court-approved enhancement payment to

Kuebel, and all claims administration costs to the claims administrator in full, then before any

distributions are made, counsel for Kuebel will contribute 44% of the deficit from the amount of

the Settlement set aside for their court-approved attorneys’ fees and costs, and Black & Decker

will contribute 56% of the deficit, not to exceed $11,500.00 and $15,000.00 respectively. See id.

at ¶ 4.1.a(1). Class members who worked full-time will receive a total settlement payment in the

amount of $1,000.00 each, and class members who worked part-time will receive a total


9

settlement payment in the amount of $250.00 each. Kuebel will seek approval from this Court of

a $7,500.00 enhancement award for services rendered to the class.

3. Release of Claims

Under the terms of the Settlement, Kuebel, each FLSA class member who resided or

worked in New York at any time since January 10, 2005, and the NYLL class members who do

not opt out of the New York class, will release all NYLL claims asserted in the class action

complaint, or which could have been asserted in the class action complaint, whether known or

unknown, through the date of entry of the Order Granting Final Approval, as well as all related

or corresponding state laws and all implementing regulations and interpreting guidance ("NYLL

Released Claims"). The NYLL Released Claims include all New York Labor Law claims, and

claims under all related or corresponding state and local laws, as well as all implementing

regulations and interpreting guidance, for retaliation, unpaid overtime wages, unpaid regular

wages, unpaid minimum wages, interest on such claims, claims for liquidated damages, for meal

and rest period premiums, and attorneys' fees and costs related to such claims. See Settlement at

¶ 5.1.a.

In addition all class members will release Black & Decker from all Fair Labor Standards

Act claims asserted in the class action complaint, or which could have been asserted in the class

action complaint, whether known or unknown, through the date of entry of the Order Granting

Final Approval, as well as all claims under state law or local law, including wage and hour

claims, penalties, interest, and related attorneys’ fees ("FLSA Released Claims"). The FLSA

Released Claims include all Fair Labor Standards Act claims, as well as claims under all related

or corresponding federal or state laws and all implementing regulations and interpreting

guidance, for retaliation, for unpaid wages, including claims for unpaid overtime and claims for


10

unpaid minimum wage, for interest on such claims, for liquidated damages, for wage statement

penalties, for waiting time penalties, and for attorneys' fees and costs related to such claims. See

id. at ¶ 5.1.b.

Finally, in addition to the NYLL Released Claims and the FLSA Released Claims,

Kuebel will irrevocably and unconditionally release, remit, acquit and discharge Black & Decker

from any and all claims, known or unknown, which he, his heirs, successors, or assigns have or

may have against it. Kuebel will further release Black & Decker from any and all claims,

liability, and causes of action arising out of his employment with Black & Decker, including any

claims that were raised or could have been asserted in the class action complaint and/or the

instant litigation. This release will relate to any claim of Kuebel’s whatsoever and will include

any and all liability which Black & Decker has or may have to Kuebel, whether denominated

claims, demands, causes of action, obligations, damages, liquidated damages, minimum wages,

back pay, front pay, compensatory damages, punitive damages, damages for pain and suffering,

costs, attorneys' fees, or liabilities, which exist as of this time (“Plaintiff’s Released Claims”).

See id. at ¶ 5.1.c.

4. Attorney’s Fees and Costs

At the Approval Hearing, counsel for Kuebel and the class shall petition the Court for no

more than $310,500.00 of the Settlement payment as an award of attorneys' fees and costs. Black

& Decker will not oppose such a fee and cost application. Black & Decker will have no

additional liability for fees and costs, including without limitation, expert fees and costs, or

attorneys' fees and costs, except for the employer payroll taxes as described in ¶ 4.5.c of the

Settlement. See Settlement at ¶ 4.2.a.


11

The substance of class counsel’s application for attorneys' fees and costs is not part of

this Settlement and is to be considered separately from the Court's consideration of the fairness,

reasonableness, adequacy, and good faith of the settlement of the litigation. The outcome of any

proceeding related to class counsel's application for attorneys' fees and costs shall not terminate

the settlement or otherwise affect the Court's ruling on the Motion for Judgment and Final

Approval. See id. at ¶ 4.2.a.

ARGUMENT

A. This Court Should Certify the New York Labor Law Class for Settlement

Purposes Only

1. Rule 23 Certification–General Standards

Class actions are designed for cases in which the “issues involved are common to the

class as a whole and when they turn on questions of law applicable in the same manner to each

member of the class.” General Tel. Co. v. Falcon, 457 U.S. 147, 155 (1982). In those cases, a

class action can conserve the resources of both the court and the parties. See id. In order to

qualify for class certification, an action must first meet the four requirements of Rule 23(a): (1)

the class is so numerous that joinder of all members is impracticable; (2) there are questions of

law or fact common to the class; (3) the claims or defenses of the representative party are typical

of the claims or defenses of the class; and (4) the representative party will fairly and adequately

protect the interests of the class.

If that showing is made, then the party seeking class certification must show that at least

one of the three conditions set forth in Rule 23(b) have been met. The first of those is that the

prosecution of separate actions by individual class members would create a risk of either (1)

inconsistent adjudications that “would establish incompatible standards of conduct for the party


12

opposing the class,” or (2) adjudications with respect to individual class members that would

either be dispositive of the interests of other, non-party class members, or substantially impair

their ability to protect their interests. Fed. R. Civ. P. 23(b)(1).

The second condition of Rule 23(b) is met when “the party opposing the class has acted

or refused to act on grounds generally applicable to the class, thereby making appropriate final

injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . .”

Fed. R. Civ. P. 23(b)(2). Certification under this subsection is only appropriate if at least some

of the relief sought is injunctive in nature. See Robinson v. Metro-North Commuter R.R., 267

F.3d 147, 163-64 (2d Cir. 2001) (discussing standards for Rule 23(b)(2) certification), cert.

denied, 535 U.S. 951 (2002).

The third condition is met when the court concludes that (1) questions of law or fact

common to the class members predominate over any questions affecting only individual

members, and (2) a class action would be superior to other available methods for the fair and

efficient adjudication of the controversy. Factors bearing on those findings include the

following: class members’ interests in individually controlling the prosecution of separate

actions; the extent and nature of any litigation concerning the controversy that has already been

commenced by members of the class; whether it would be desirable to concentrate the litigation

of the claims in the particular forum; and the difficulties likely to be encountered in the

management of a class action. Fed. R. Civ. P. 23(b)(3); Kern v. Siemens Corp., 393 F.3d 120,

122 n. 2 (2d Cir. 2004).

Although the Second Circuit has “directed district courts to apply Rule 23 according to a

liberal rather than a restrictive interpretation,” In re NASDAQ Market-Makers Antitrust Litig.,

169 F.R.D. 493, 504 (S.D.N.Y. 1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208- 09


13

(2d Cir. 1972)), a court may certify a class action only if it is “satisfied, after a rigorous

analysis,” that the rule’s prerequisites have been established. Falcon, 457 U.S. at 161. This

analysis will inevitably be “enmeshed in the factual and legal issues comprising the plaintiff’s

cause of action.” Id. at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978)).

In some cases, it may be possible to conduct the required inquiry by looking no further than the

pleadings, but in others, the court may be required to “probe behind the pleadings before coming

to rest on the certification question.” Id.

Notwithstanding the district court’s ability to look beyond the pleadings, its resolution of

a class certification motion should not become “a preliminary inquiry into the merits” of the

case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). “In determining the propriety of

a class action, the question is not whether the plaintiff has stated a cause of action or will prevail

on the merits, but rather whether the requirements of Rule 23 are met.” Id. at 178 (quoting

Miller v. Mackey Int’l, 452 F.2d 424, 427 (5th Cir. 1971)); see also Caridad v. Metro-North

Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999) (class plaintiffs need not demonstrate at

certification stage that they will prevail on the merits), cert. denied, 529 U.S. 1107 (2000). In

addition, in deciding whether to grant class certification, the court must assume the truth of the

factual assertions contained in the complaint. East Texas Motor Freight Sys., Inc. v. Rodriguez,

431 U.S. 395, 405 (1977); Medicare Beneficiaries’ Defense Fund v. Empire Blue Cross Blue

Shield, 938 F.Supp. 1131, 1139 (E.D.N.Y. 1996).

In sum, a court considering a class certification motion “must look somewhere between

the pleading and the fruit of discovery . . . . [E]nough must be laid bare to let the judge survey

the factual scene on a kind of sketchy relief map, leaving for later view the myriad of details that

cover the terrain.” Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571-72 (2d Cir.), cert. denied,


14

459 U.S. 838 (1982) (quoting Professional Adjusting Sys. of America, Inc. v. General Adjustment

Bureau, Inc., 64 F.R.D. 35, 38 (S.D.N.Y. 1974)). In undertaking its analysis, the court must also

bear in mind the Second Circuit’s direction to give Rule 23 “a liberal rather than a restrictive

interpretation.” See Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968), cert. denied, 395

U.S. 977 (1969)).

2. The Rule 23 Certification Standards Are Met in This Case

For settlement purposes only, the Court should certify a Rule 23 class in the case at bar

because the general standards are met. The numerosity, commonality, and typicality

requirements are met, as well as the requirement that Kuebel will fairly and adequately represent

the interest of the class. In addition, two of the Rule 23(b) requirements are satisfied in this case.

First, the Rule 23(a) requirements are satisfied. There are several questions of fact that

are common to the class. Kuebel has alleged that he was required to perform a number of

administrative duties outside his normal working hours, such as synching his PDA, reading and

responding to company emails, checking voicemail, printing and reviewing sales reports,

organizing “point-of-purchase” materials, making display signs, taking online training courses,

and loading and unloading his car. Black & Decker does not deny that these duties were part of

Kuebel’s job, as well as the jobs of all other Retail Specialists and Sales & Marketing Specialists,

although it does dispute how long these tasks took and whether or not they were recorded by

employees as time worked. Kuebel claims that many of these duties were performed off the

clock, and all class members have factual questions in common related to how much time these

tasks took and whether they were performed off the clock. The commonality requirement is thus

met.


15

The typicality requirement is also met. Kuebel’s job was the same as the other class

members, with the same job requirements and the same pressures from Black & Decker to not

work overtime. There are no aspects of Kuebel’s situation that make his claims different from

the claims of the rest of the class. Similarly, there is nothing in the record to indicate that Kuebel

will not fairly and adequately protect the interests of the class. His interests are not antagonistic

to theirs, and he has served as an exemplary class representative.

While the parties do not expect the number of NYLL class members to be particularly

large, the numerosity requirement is also satisfied in this case. The numerosity inquiry must be

addressed to the particular facts and circumstances of each case. See Cypress v. Newport News

Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648, 653 (4th Cir. 1967) ("[A]pplication of the [Rule

23] is to be considered in light of the particular circumstances of the case and generally, unless

abuse is shown, the trial court's decision on this issue is final."). While there is no magic number

threshold that must be met in order to meet the numerosity requirement, more than one or two

potential class members are required. See Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35-36 (4th Cir.

1978); Brown v. Eckerd Drugs, Inc., 669 F.2d 913, 917 (4th Cir. 1981) ("[I]t is well settled that

one or two will not meet the numerosity test."). However, it is clear that it does not take many

potential class members to satisfy Rule 23(a)(1). See, e.g., Brady v. Thurston Motor Lines, 726

F.2d 136, 145 (4th Cir. 1984). In the instant case, given the conditional nature of the

certification sought and the fact that Black & Decker does not oppose certification for settlement

purposes only, a relatively low number of class members should not deter certification of a

settlement class, especially since adjudicating New York Labor Law claims as class actions,

along with FLSA collective actions, has been held to be a superior method of adjudicating

plaintiffs’ claims. See Lindsay v. Government Employees Ins. Co., 251 F.R.D. 51, 57 (D.D.C. 2008).


16

Second, at least two of the requirements of Rule 23(b) are satisfied in this case. It is clear

that the prosecution of separate actions by individual class members would create a risk of either

inconsistent adjudications that “would establish incompatible standards of conduct for the party

opposing the class,” or (2) adjudications with respect to individual class members that would either be

dispositive of the interests of other, non-party class members, or substantially impair their ability to

protect their interests. Fed. R. Civ. P. 23(b)1. In addition, questions of law and fact common to the class

members predominate over any questions affecting only individual members, and a class action would be

superior to other available methods for the fair and efficient adjudication of the controversy. See Davis v.

J.P. Morgan Chase & Co., 775 F. Supp. 2d 601, 608-09 (W.D.N.Y. 2011); Lindsay v. Government

Employees Ins. Co., 251 F.R.D. 51, 57 (D.D.C. 2008).

Finally, it is also important to reiterate that, for the purposes of settlement only, Black & Decker

does not oppose the certification of a New York Labor Law class action and that certification is sought for

the purposes of settlement, not trial. Davis, 775 F. Supp. 2d at 608-09. As the Western District of New

York has pointed out:

It also bears repeating that this certification is conditional at this point, and

that a more searching inquiry may be made in connection with the Court's later

decision whether to grant final approval of the settlement. To the extent that class

members who do not opt out believe that any differences between New York law

and the law of their jurisdiction renders the plaintiffs here inadequate class

representatives, such concerns can be fully aired at the fairness hearing. See, e.g.,

In re Motor Fuel Temperature Sales Practices Litigation, 258 F.R.D. 671

(D.Kan.2009) (preliminarily certifying proposed settlement class, “subject to

plaintiffs' demonstration at the final approval hearing ... that the requirements of

Rule 23(a) and (b)(3) are clearly satisfied”); Stefaniak v. HSBC Bank USA, N.A.,

No. 05–CV–720, 2008 WL 314417, at *2 (W.D.N.Y. Feb. 4, 2008) (noting that

“[i]f the proposed settlement is not finally approved by the Court ..., this

conditional class certification shall be vacated without further order of the Court

and without prejudice to the right of any party to seek or oppose class certification

thereafter”).

Id. at 609-10. Thus, the Court should certify the Rule 23 NYLL class for the purposes of this settlement.


17

B. This Court Should Conditionally Certify the FLSA Class for Settlement

Purposes Only

1. General Standard for Conditional Certification of an FLSA Class

Certification of an FLSA class is proper when there are potentially “similarly situated”

employees. Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 168-69 (1989). The requirements

to demonstrate the existence of possibly “similarly situated” employees are minimal. Gjurovich

v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 91, 95-96 (S.D.N.Y. 2003); Brychnalski v.

Unesco, Inc., 35 F. Supp.2d 351, 353 (S.D.N.Y. 1999); Realite v. Ark Restaurants Corp., 7 F.

Supp. 2d 303, 307-308 (S.D.N.Y. 1998); Hoffman, 982 F. Supp. at 249; Schwed v. Gen. Elec.

Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995); Frank v. Capital Cities Communications, Inc., 88

F.R.D. 674, 676 (S.D.N.Y. 1981). Courts, including this Court, hold that preliminary

certification of FLSA collective actions is appropriate under standards far more lenient than

those under Rule 23. See Barrus v. Dick’s Sporting Goods, Inc., 465 F.Supp.2d 224, 229

(W.D.N.Y. 2006); Scholtisek v. Eldre Corp., 229 F.R.D. 381, 386 (W.D.N.Y. 2005) (Larimer, J.)

(“the FLSA simply requires that all employees be ‘similarly situated.’ The other factors required

in class actions—numerosity, typicality, etc.—do not apply to collective actions.”); Hoffman,

982 F. Supp. at 263 (“[T]he prevailing view among federal courts, including courts in this

Circuit, is that [FLSA] collective actions are not subject to Rule 23’s strict requirement,

particularly at the notice stage.”) (Sotomayor, J.).

Courts have noted that, in order for an FLSA class to be certified, plaintiffs must, at

most, make “substantial allegations;” or “describe the potential class within reasonable limits;”

or allege that other plaintiffs are “purportedly subject” to a common scheme to deprive them of

overtime; or assert “at least a colorable claim;” or make a “modest factual showing;” or present

“some factual basis;” or “indicate” there is a class-wide basis for relief. Jackson v. N.Y. Tel. Co.,


18

163 F.R.D. 429, 431 (S.D.N.Y. 1995); Schwed, 159 F.R.D. at 375-76; Hoffman, 982 F. Supp. at

261 (Sotomayor, J.); Realite, 7 F. Supp.2d at 307 (Sotomayor, J.). The allegations need neither

be “strong or conclusive” for notice to be sent. Jackson, 163 F.R.D. at 431-32; Hoffman, 982 F.

Supp. at 261 (“The burden on plaintiffs is not a stringent one.”) (Sotomayor, J.)).

Under well-established Second Circuit and Supreme Court precedence, the FLSA is to be

read broadly and liberally to effectuate its remedial purpose. See Hoffman, 982 F. Supp. at 261

(Sotomayor, J.). Furthermore, in making the determination to conditionally certify an FLSA

class, the court does not examine the underlying merits of the action. See Barrus, 465 F.Supp.2d

at 230 (“It is not the Court’s role to resolve factual disputes, decide substantive issues going to

the ultimate merits or make credibility determinations at the preliminary certification stage of an

FLSA collective action.”). Nor do the employment situations or claims of the notified

employees need to be the same. Courts send out notice to employees allegedly affected by the

same policy regardless of their job titles, location within the company, or reporting relationships:

“Class treatment under the [statute] is not defeated simply because, as here, the plaintiffs

performed a variety of jobs in a number of departments at different locations.” Heagney v.

European Am. Bank, 122 F.R.D. 125,127 (E.D.N.Y. 1988). A “finding of similarly situated does

not require the plaintiffs to perform the same job in the same location as long as there is a

discriminatory policy common to all.” Jackson, 163 F.R.D. at 432. Even if all the named

plaintiffs were employed by the same department, as long as the plaintiffs allege the same policy

affected other employees elsewhere, notice to employees in the corporation’s other units and

operations is warranted. Schwed, 159 F.R.D. at 377; Hoffman, 982 F. Supp. at 264 (notice

appropriate to all current and former managers and co-managers appropriate because affidavits

“indicate” same policy was in effect at other locations) (Sotomayor, J.).


19

2. The Standards for Conditional Certification Are Met in This Case

For settlement purposes, the standards for conditional certification are easily met in the

case at bar. Kuebel and the collective action members, both those who have opted in and those

who are presently putative members, are clearly similarly situated. They have the same jobs,

perform the same duties, and are subject to the same work requirements and rules which have

given rise to the instant litigation. The same factual issues and questions of law apply to all.

And just as with the Rule 23 class, Kuebel is only seeking conditional certification and only for

the purposes of settlement, which Black & Decker does not oppose. Given the leniency of the

FLSA certification standard, this Court should conditionally certify the FLSA claim.

C. This Court Should Grant Preliminary Approval of the Settlement

The standards for granting preliminary approval of both FLSA and Rule 23 class actions

are relatively lenient. A court’s review of a proposed class action is a “two-step process.” In re

Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997). Initially, the court

decides whether the settlement should be provisionally approved and, if so, “notice is given to

the class members of a hearing, at which time class members and the settling parties may be

heard with respect to final court approval.” Id. At the provisional approval stage – the present

stage in this matter – the court’s review is relatively lenient. See, e.g., Bourlas v. Davis Law

Assocs., 237 F.R.D. 345, 355 n.7 (E.D.N.Y. 2006). The court need only “determine whether the

proposed settlement is within the range of possible approval.” Gautreaux v. Pierce, 690 F.2d

616, 621 n. 3 (7th Cir. 1982) (internal citations and quotations omitted); see also In re Prudential

Sec. Inc. Ltd. P’ships, 163 F.R.D. 200, 209 (S.D.N.Y. 1995) (noting that the court’s first-stage

analysis consists of a review for “obvious deficiencies”). Where no facial deficiencies exist and


20

the settlement appears to be the product of arms-length negotiations, preliminary approval should

be granted:

Where the proposed settlement appears to be the product of

serious, informed, non-collusive negotiations, has no obvious

deficiencies, does not improperly grant preferential treatment to

class representatives or segments of the class and falls within the

range of possible approval, preliminary approval is granted.

Nasdaq Market-Makers, 176 F.R.D. at 102; see also D’Amato v. Deutsche Bank, 236 F.3d 78, 85

(A presumption of fairness, adequacy, and reasonableness may attach to a class settlement

reached in arm’s-length negotiations between experienced, capable counsel after meaningful

discovery.) (internal citations omitted).

Similar to the claims subject to Rule 23, the Court need only determine whether the

settlement is fair for the FLSA claims. See, e.g., Lynn’s Food Stores, Inc. v. U.S., 679 F.2d

1350, 1352-53 (11th Cir. 1982) (waiver of FLSA claims is appropriate if “entered as part of a

stipulated judgment approved by the court after scrutinizing the settlement for fairness”).

According to this Court,

“Preliminary approval of a class action settlement, in contrast to final approval, ‘is

at most a determination that there is what might be termed “probable cause” to

submit the proposal to class members and hold a full-scale hearing as to its

fairness.’ ” Menkes v. Stolt–Nielsen S.A., 270 F.R.D. 80, 101 (D.Conn.2010)

(quoting In re Traffic Executive Association–Eastern Railroads, 627 F.2d 631,

634 (2d Cir.1980)). A proposed settlement of a class action should therefore be

preliminarily approved where it “appears to be the product of serious, informed,

non-collusive negotiations, has no obvious deficiencies, does not improperly grant

preferential treatment to class representatives or segments of the class and falls

within the range of possible approval.” In re Nasdaq Market–Makers Antitrust

Litig., 176 F.R.D. 99, 102 (S.D.N.Y.1997) (citation omitted). Accord Collins v.

Cargill Meat Solutions Corp., No. 1:10–CV00500, 2011 WL 837140, at *6

(E.D.Cal. Mar. 9, 2011); Cohen v. J.P. Morgan Chase & Co., 262 F.R.D. 153,

157 (E.D.N.Y.2009).


21

Davis v. J.P. Morgan Chase & Co., 775 F. Supp. 2d 601, 607-08 (W.D.N.Y. 2011). The

settlement of the claims of the class in the case at bar is fair, reasonable, and adequate. As such,

this Court should approve the settlement.

1. The Settlement Is Fair, Reasonable, and Adequate as to the Proposed

Class

a. Arms-Length Negotiation by Experienced Trial Counsel.

As an initial matter, and as set forth above, the proposed Settlement was reached after

substantial discovery, motion practice, and extensive negotiations involving competent and

experienced counsel for the parties. The settlement negotiations themselves were extensive, and

they took place at arms’ length, without collusion – fully preserving the integrity of the

adversarial process.

In this context, after carefully weighing all the evidence in the well-developed record, as

well as Black & Decker’s potential defenses, class counsel has determined that the proposed

settlement is in the best interest of the class members. Particularly under these circumstances,

the informed judgment of counsel is entitled to great deference. Such factors strongly militate in

favor of approval of the settlement.

b. The Likelihood of Success Balanced Against the Relief Offered

by the Agreement.

The parties recognize that the viability of Kuebel’s claims and the likelihood that class

members will recover a full or even significant recovery is unpredictable. As noted above, Black

& Decker has legal and factual defenses, giving rise to a real possibility that Kuebel and the class

members will recover little or nothing on their claims at trial. Nevertheless, Black & Decker has

agreed to a settlement that provides for a monetary payment. Accordingly, the relief obtained by

class counsel likewise weighs in favor of approving the settlement.


22

c. The Complexity, Expense, and Likely Duration of Litigation.

Assuming no settlement had been reached, the parties would have continued to prepare

for trial and would most likely moved to bifurcate the hearing on liability and damages. For the

liability trial, two to three weeks would likely have been required. In the event the jury found in

favor of Kuebel, a second trial at some point in the future would have been scheduled for a

determination on damages. And regardless of who prevailed at trial, appeals would likely have

followed. In short, ultimate resolution of the claims would be a long, arduous process requiring

significant expenditures of time and money on behalf of both the parties and the Court. The

prospect of such litigation weighs in favor of the settlement.

d. The Public Interest Weighs in Favor of Approving the

Settlement.

The public interest generally favors the resolution of litigation through compromise.

Courts have noted that “[t]here is a strong public interest in quieting any litigation; this is

particularly true in class actions.” Bourlas, 237 F.R.D. at 355 (internal citations omitted). As

such, “[c]lass action suits readily lend themselves to compromise because of the difficulties of

proof, the uncertainties of the outcome, and the typical length of the litigation.” Id. In this case,

and for all the foregoing reasons, the proposed class action settlement of the claims is in the best

interests of the class members and the public, and it should be approved.

D. This Court Should Approve the Notice Materials

This Court should likewise approve the Notice Materials (Settlement at Exhibits A-E)

that the parties have proposed be directed to the class members. Specifically, under

FED.R.CIV.P. 23(e), the court must “direct notice in a reasonable manner to class members who

would be bound by a proposed settlement.” FED. R. CIV. P. 23 (e)(1). The notice standard is

satisfied here.


23

The notice provided to members of a class certified under Rule 23(b)(3) must be the “best

notice practicable under the circumstances.” FED.R.CIV.P. 23(c)(2)(B). “Normally, settlement

notices need only describe the terms of the settlement generally.” In re Michael Milken &

Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y. 1993) (citing Handschu v. Special Servs. Div.,

787 F.2d 828, 833 (2d Cir. 1986)). As such, notice is satisfactory if it is “reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.” Id. (quoting Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950)). Moreover, notice that is mailed to each member of a

settlement class “who can be identified through reasonable effort” constitutes reasonable notice.

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

In this case, the form and the manner of the Notice Materials have been negotiated and

agreed upon by all counsel. These Notice Materials will inform all plaintiffs and class members,

among other things, of the nature of the action, the terms of the settlement, and the right to object

to the settlement.

The parties propose that, upon entry of an Order Granting this Motion, the Notice

Materials shall issue pursuant to the process described in the Settlement at ¶¶ 2.2-2.5. Within

seven calendar days of the Court’s order granting Plaintiff’s Motion for Preliminary Approval,

the parties will retain CPT Group, Inc., to administer the claims process. Settlement at ¶ 2.2.

The Notice of Settlement will be addressed to members of the FLSA Putative Class, the FLSA

Class, and the NY Class. The Notice of Settlement will include a statement that NY Class

Members will release their claims against the Released Parties regardless of whether or not they

“opt in” to the FLSA Class or submit a Claim Form or Consent to Join/Claim Form, unless they

“opt out” of the Litigation. Settlement at ¶ 2.3. Within seven calendar days of the retention of


24

the Claims Administrator, Black & Decker will provide the Claims Administrator with a list, in

electronic form, of the names, last known addresses, telephone numbers, and social security

numbers of all FLSA Putative Class Members, FLSA Class Members, and NY Class Members,

as well as which group(s) each falls into, whether they were employed as full-time or part-time

by Black & Decker during the Covered Period, and whether they previously filed a Consent to

Join. Settlement at ¶ 2.4. Within fourteen calendar days after receiving the information

described in Section 2.4, the Claims Administrator will mail, via First Class United States mail,

postage prepaid, the Notice Packet, using each individual’s last known address as recorded in

Black & Decker’s records. Settlement at ¶ 2.5. The Claims Administrator will take reasonable

steps to obtain the correct address of any individual for whom the notice is returned by the post

office as undeliverable and shall attempt one re-mailing. Id. The Claims Administrator will

notify Plaintiff’s Counsel and Black & Decker’s Counsel of any mail sent to NY Class Members

or FLSA Class Members that is returned as undeliverable after the first mailing, as well as any

such mail returned as undeliverable after any subsequent mailing(s). Id.

The foregoing plan provides the best notice practicable under the circumstances and will

provide class members a full and fair opportunity to consider the terms of the proposed

Settlement and make a fully informed decision on whether to participate, to object, or to opt out

of the settlement.

E. This Court Should Set a Date for a Final Approval Hearing

The following schedule sets forth the agreed-upon sequence of the relevant dates and

deadlines, assuming the Court preliminarily approves the settlement:


25

The parties retain CPT Group, Inc., as

Claims Administrator.

7 calendar days after the Order granting

this Motion.

Black & Decker submits the Claim

Administrator with electronic list of

names, addresses, etc., of all class

members, both putative and opt-ins.

7 calendar days after retention of the


Claim Administrator mails Notice

Packets (“Initial Mailing”).

14 calendar days after Black & Decker

submits list of names, etc., to Claims

Administrator.

Deadline for signing and mailing

Consent to Join/Claim Forms to the


30 calendar days after Initial Mailing of

Notice Packets.

Deadline for plaintiffs already opted in

to return Claim Forms.


Notice Packets.

Deadline for NY Class Members to opt

out of the NYLL class.


Notice Packets.

Deadline for returning Consent to

Join/Claim Forms and/or to opt out of

the NYLL class for those whose first

mailing was returned to the Claim

Administrator as undeliverable.

30 calendar days from the date of the

Second Mailing.

Claims Administrator to notify all

counsel of last day on which any

mailing was made.


last mailing.

Claims Administrator to serve a final

list of all Consents to Join/Claim Forms

and Claims Forms to all counsel,

together with postmark-date-stamped

copies.


last mailing.

Claims Administrator to send stamped

originals of all Consents to Join/Claim

Forms, along with original envelopes,

to counsel for Kuebel.


last mailing.

End of the “Opt-out Period.” 30 calendar days from the date of the

last mailing to any NYLL class

member.

Notification by Claims Administrator to

counsel of the date of the end of the

Opt-out Period.


last mailing to any NYLL class

member.

Claims Administrator to send a final list

of all Opt-out Statements to counsel for

24 hours after the end of the Opt-out


26

Black & Decker. Period.

Objections to the Settlement to be filed

with the Court.

30 calendar days after the Claims

Administrator mails the Notice of

Settlement and no later than 60 days

from the Preliminary Approval Order.

The parties file may file written

responses to any filed objections.

No later than 15 calendar days before

the Approval Hearing.

Approval Hearing. To be set by the Court.

CONCLUSION

For the foregoing reasons, this Court should grant the instant Motion and grant: (1)

certification for settlement purposes only of a New York Labor Law class action; (2) preliminary

certification for settlement purposes only of an FLSA class; (3) preliminary approval of the Joint

Stipulation of Settlement and Release (“Settlement”) (Doc. No. 180); (4) approval of the Notice

Materials (Doc. Nos. 180-1 through 180-5); and (5) the establishment of a date for an Approval

Hearing.

Dated: October 19, 2012 s/ Alan G. Crone _

CRONE & MCEVOY, PLC

Class Counsel

5583 Murray Rd., Suite 120

Memphis, TN 38119

Telephone: (901) 737-7740

THOMAS & SOLOMON LLP

Class Counsel

693 East Avenue

Rochester, New York 14607

Telephone: (585) 272-0540


27

CERTIFICATE OF SERVICE

I hereby certify that the foregoing pleading was filed electronically and notice of such

filing was made electronically to Defendant’s counsel pursuant to the Electronic Case Filing

Rules of the United States District Court for the Western District of New York on October 19,

2012:

Brian P. Crosby, Esq.

Elizabeth M. Bergen, Esq.

GIBSON, MCASKILL & CROSBY, LLP

69 Delaware Avenue, Suite 900

Buffalo, New York 14202

Lee T. Paterson, Esq.

Monique Ngo-Bonnici, Esq.

Amanda C. Sommerfeld, Esq.

WINSTON & STRAWN LLP

333 S. Grand Ave. (38th

FL)

Los Angeles, California 90017

s/ Alan G. Crone _


in the united states district court for the western ... · watkins, glenn wekony, richard wells,...

Documents