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Hester v. Vision Airlines, Inc.

United States District Court, D. Nevada

April 7, 2014

GERALD HESTER, on behalf of himself and all others similarly situated, Plaintiff,
v.
VISION AIRLINES, INC., Defendant.

ORDER GRANTING PRELIMINARY APPROVAL OF THE SETTLEMENT AGREEMENT

ROGER L. HUNT, District Judge.

This Court has considered the Unopposed Motion for Preliminary Approval of the Settlement Agreement (#387, filed Mar. 20, 2014), which seeks an Order (1) preliminarily approving the proposed Settlement and Release Agreement (the "Settlement Agreement") between the Class and Vision Airlines ("Vision") settling the Class' remaining claims in this litigation; (2) certifying the Settlement Class for purposes of settlement; (3) approving the form and manner of notice to the Class Members of the proposed Settlement Agreement and their right to object to the Settlement Agreement; and (4) scheduling a fairness hearing to consider the final approval of the Settlement Agreement. For the reasons discussed below, the Court grants the preliminary relief sought in the Class' Unopposed Motion For Preliminary Approval of Settlement Agreement.

I. INTRODUCTION

The Court has repeatedly set out the factual record in various Orders entered throughout this case. Thus, the Court will only summarize the facts underlying this lawsuit here. In the years after the September 11, 2001 attacks, the United States government sought contractors to provide logistical support to enhance its supply lines to Iraq and Afghanistan. One such mission involved establishing an air bridge using commercial aircraft to fly into the war zones in Baghdad and Kabul to deliver supplies for United States diplomatic posts and other related activities ("Air Bridge"). Accordingly, the United States government set aside additional payments known oas hazard pay to compensate the civilian pilots and flight attendants completing these missions for the dangers they faced.

Vision, a government subcontractor, operated the Air Bridge from May 1, 2005 through July 31, 2012. Vision's pilots and flight attendants operated these flights and were supposed to receive the specifically earmarked hazard pay. Instead of paying the hazard pay to the Class, Vision retained the hazard pay for its own benefit. Plaintiff Gerald Hester filed the instant class action lawsuit (the "Lawsuit") on behalf of Vision's Air Bridge pilots and flight attendants to recover the hazard pay due and owed the Class. On September 6, 2013, this Court entered judgment against Vision for the hazard pay Vision collected from July 6, 2010 through July 31, 2012. (#344, 345). The Settlement resolves that judgment and any and all remaining claims against Vision arising out of this Lawsuit.

II. SUMMARY OF THE SETTLEMENT TERMS

As required under controlling Ninth Circuit case law, the Court sets forth the terms of the Settlement Agreement, which are as follows:

1. The Settlement Class

The proposed Settlement Class is an opt-out class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Settlement Class, which the Court certifies for the reasons set forth in Section IV, is defined as:

All Vision pilots and flight attendants who were crew members on flights to or from Iraq or Afghanistan between May 1, 2005 and July 31, 2012. Excluded from the Settlement Class are (a) Vision, its directors of flight operations, corporate officers and directors, and their immediate family members, and (b) any governmental entity.

2. The Settlement

The Settlement consists of a $1, 700, 000.00 Settlement Payment (the "Settlement Fund") to be distributed to the Class that operated the Air Bridge flights from July 6, 2010 through July 31, 2012. (#387-1, at 2). Vision will pay those funds on the thirty-fifth (35th) day after final approval of the Settlement by the Court. ( Id. ) Should Vision fail to do so, the payment will be made by International Bank of Commerce ("IBC") based on a letter of credit issued by IBC for the benefit of the Class. ( Id. at 3).

The Air Bridge Program was divided into four phases that correspond to the following time periods: (1) Phase I - June 2005 through April 30, 2006; (2) Phase II - May 1, 2006 through July 14, 2006; (3) Phase III - July 15, 2006 through July 31, 2007; and (4) Phase IV - August 1, 2007 through July 31, 2012. (#135, at 3). The Class previously collected and distributed the hazard pay obtained at trial that covered Air Bridge flights from May 1, 2006 through July 5, 2010. Accordingly, the Settlement Fund will be distributed to those Class members that operated Vision flights to and from Baghdad and Kabul from July 6, 2010 through July 31, 2012.

The Class' expert, Barry Mukamal, determined that from July 6, 2010 through July 31, 2012, Vision billed for and received $1, 811, 251.00 in hazard pay, which Vision did not pay to the Class members. The upstream contractors paid Vision different hourly hazard pay amounts for its pilots and flight attendants that operated the flights from the various European cities into and out of the war zones in Baghdad and Kabul during the period of July 6, 2010 through July 31, 2012. Using Vision's payroll and flight records for the time period of July 6, 2010 through July 31, 2012, Mr. Mukamal will identify specifically which pilots and flight attendants flew from the various European cities into and out of the war zones in Baghdad and Kabul. Mr. Mukamal will determine each Class members' damages from July 6, 2010 through July 31, 2012 by multiplying each Class members' total number of hours flown from the European city into and out of the war zones of Baghdad and Kabul and back to the European city by the hourly hazard pay rate that Vision received for their benefit but did not pay to them. Once those amounts have been determined, Mr. Mukamal will adjust it by the appropriate pro-rata share based on the difference between the $1, 811, 251.00 judgment for hazard pay and the $1, 700, 000.00 Settlement Fund.

3. Releases

As part of the Settlement, the Settlement Class members and Vision will, upon payment of the Settlement Fund, mutually release each other with regard to all claims connected in any way with the Lawsuit. (#387-1, at 3-5).

4. Notice to the Settlement Class

Given the relatively small size of the Settlement Class, and the fact that many of its members previously received a distribution from the earlier judgment against Vision, providing notice to the Settlement Class members should be relatively straight forward. The notice is reasonably calculated under the circumstances to apprise the Class of settlement class certification, the Settlement terms, Class Counsel's fee application and request for a service award for Plaintiff, as well as the Settlement Class members' rights to opt-out of the Class or object to the Settlement. Class counsel, through its work with a national claims administrator, has already confirmed addresses for nearly all of the Class members, which ...


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