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Berry v. Aria Resort & Casino, LLC

United States District Court, D. Nevada

January 27, 2015

JAMYE BERRY, et al., Plaintiffs,
v.
ARIA RESORT & CASINO, LLC, et al., Defendants

For Jamye Berry, Plaintiff: Joshua D Buck, Leah Lin Jones, Mark R. Thierman, LEAD ATTORNEYS, Thierman Buck, LLP, Reno, NV.

For Aria Resort & Casino, LLC, Defendant: Elayna J Youchah, LEAD ATTORNEY, Jackson Lewis P.C, Las Vegas, NV.

REPORT & RECOMMENDATION

CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE.

This matter involves Jamye Berry's putative class action against the Aria Resort & Casino under 29 U.S.C. § 216, et seq . Before the court is the parties' Joint Motion for Preliminary Approval of Class Action Settlement (#19[1]). For the reasons stated below, the parties' motion should be granted.

BACKGROUND

From July 1, 2011, through April 14, 2014, Plantiff Jamye Berry worked at Aria Resort & Casino as a Table Games Supervisor. (First Amend. Compl. (#21) at ¶ 6). She was compensated on an hourly basis at approximately $33.51 per hour. (Id. at ¶ 7). However, Berry--like all Table Games Supervisors employed by Aria--never received overtime pay for the hours that she worked beyond the normal forty hour work week. Accordingly, on July 1, 2014, Berry commenced this action on behalf of herself and others similarly situated. She alleges that Aria's failure to pay overtime violated the Fair Labor Standards Act of 1938, 29 U.S.C. § 207 and the related state laws. See Nev. Rev. Stat. § § 608.018, 020-050, 140. ( See Doc. #21 at pp. 5-8).

The parties are currently in the midst of settling Berry's claims. On January 8, 2015, Berry and Aria filed the instant Joint Motion for Preliminary Approval of Class Action Settlement. (Doc. #19). Four key provisions follow. First, the proposed settlement class consists of " [a]ll current and former hourly paid Table Games Supervisors who were employed by Defendant during the Class Period, " which is the period between July 1, 2011, and April 14, 2014. ( See Doc. #19-1 at 2:6, 8, 4:6).

Second, the proposed settlement agreement provides for a maximum recovery amount of $860, 000.00. (Id. at 3:16). This figure represents (1) $545, 832.33 in settlement funds to the class, (2) $12, 500.00 in settlement administration costs, (3) a $15, 000.00 enhancement to Plaintiff Jamye Berry for her participation in the lawsuit, (4) $281, 666.67 in attorney's fees, and (5) $5, 000.00 in costs. (Id. at 3:19-23). The amount of settlement funds that will be awarded to the class is based on the following formula:

The total settlement amount was attained by taking the actual amount of hours worked over forty (40) hours in a workweek during the Class Period. Each Class Member worked over forty (40) hours in a workweek during the Class Period. Each Class Member will receive a proportionate amount based on the percentage of hours each Class Members worked over forty (40) hours in a workweek as compared with the total amount of hours worked over forty (40) hours by the entire class. These amounts will be determined by reference to Defendant's records . . . .

(Doc. #19-1 at 9:11-19).

Third, the proposed settlement agreement provides for a notice and claims procedure. The parties have agreed to use a third-party Claims Administrator. The proposed settlement agreement states that the Claims Administrator will mail a notice explaining the terms and conditions of the settlement to all class members. ( See Proposed Notice (#19-1) Ex. A at 23-44). The Class Members have thirty days to either do nothing, in which case they will be included in the class, or request to be excluded from the settlement or object to the settlement. The proposed settlement agreement and notice also state that the court will hold a final fairness hearing and that the class members may attend and be heard.

Fourth, the proposed settlement agreement provides for a specific release of claims or causes of action related to the First Amended Complaint's allegations. ( See Doc. #19 at 4-5).

LEGAL STANDARD

Federal Rule of Civil Procedure 23 governs class actions.[2] A class action is " an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). A class action may not proceed or be settled without court approval. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); Fed.R.Civ.P. 26(a), (e).

Where, as here, the parties seek to certify and settle a class action, the court proceeds in two phases. True v. Am. Honda Motor Co., 749 F.Supp.2d 1052, 1062 (C.D. Cal. 2010). At the first stage--which the parties are at here--the court determines whether the proposed settlement agreement is " within the range of possible approval and whether or not notice should be sent to class members." Id. at 1063 (citing In re Corrugated Container Antitrust Litig., 643 F.2d 195, 205 (5th Cir. 1981); Manual for Complex ...


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