United States District Court, D. Nevada
DANIEL ACUNA; and JERRY SCHAFFER, as individuals, and on behalf of others similarly situated, Plaintiffs,
SOUTHERN NEVADA T.B.A CO., a Nevada Corporation, doing business as "TED WIENS TIRE & AUTO CENTERS", Defendants.
REMPFER MOTT LUNDY Joseph N. Mott Attorneys for Plaintiffs
and Class Counsel
ZUCKER ABBOTT Nicole A. Young Carol Davis Zucker Nicole A.
Young Attorneys for Defendant
STIPULATION AND ORDER TO AMEND SETTLEMENT
W. FOLEY, UNITED STATES DISTRICT JUDGE.
Parties have encountered some delays in mailing the Notices
of Class Action Settlement and so respectfully request the
court approve a few changes to the terms of settlement, all
of which pertain to administration of the settlement.
History and Present Status.
Court preliminarily approved the Settlement on March 19, 2018
(ECF No. 80). The parties agreed, and the Court preliminarily
approved, that Defendant would pay the Maximum Settlement
Amount would be made over ten monthly installments, payments
to Class Counsel and Class Members would be made from the
monthly payments. There was concern on the part of the Claims
Administrator as to the costs of mailing due to postage costs
for so many checks.
Plaintiffs' lead counsel, Andrew Rempfer, passed away on
April 25, 2018. This followed a serious illness, with sudden
onset, for which he was hospitalized at UCLA Medical Center
in Los Angeles. He was initially expected to recover. Mr.
Rempfer had considerable experience in employment wage and
hour collective and class action litigation and settlements,
negotiated the terms of the settlement agreement with
Defendant's counsel, and had been working with the
court-approved Claims Administrator. Since Mr. Rempfer's
passing, at the same time the parties were working to
finalize the form of the Notice of Class Action Settlement
and working with the Claims Administrator, Mr. Rempfer's
partners Joey Mott and Scott Lundy have been trying to pick
up the rest of Mr. Rempfer's cases. This has adversely
affected the settlement process.
Because of the No. of anticipated monthly payments to the
Class Members, depending upon how many of the Members of the
Fair Labor Standards Act (FLSA) Subclasses "opt in"
by filing Claim/Consent Forms, the estimated costs of
administration at least doubled due to the costs of postage
to mail the checks on a monthly basis.
Amendments to Administration of the Settlement
order to move this settlement process along, the Parties
request the changes in Settlement administration set forth
parties request the Court amend the preliminary approval
Order (ECF No. 80) to change the manner in which the Net
Settlement Amount is distributed. The Net Settlement amount
is that portion of the Maximum Settlement Amount to be paid
to Subclass members. Specifically, rather than making
numerous monthly payments as Defendant Wiens pays each of the
ten (10) monthly installments of the $295, 000.00 Maximum
Settlement Payment, all payments to counsel and class members
will be mailed 14 days after Defendant lodges the last
installment; with the exception that, as soon as monies
contributed through Wiens' installment payments reach a
sufficient amount, the Claims Administrator is authorized to
pay (i) the $2, 000.00 total of Enhancement Payments to the
two (2) named Plaintiffs, assuming their appointments as
Class Representatives are approved in the final approval
order; and (ii) reimburse Class Counsel's costs of $17,
100.00 assuming those costs are finally approved. The costs
figure represents out-of-pocket costs incurred by
Plaintiffs' counsel. This change will reduce the costs,
which are paid from the settlement, by at least $5, 000.00
through reduction of postage costs. There are 467 Class
Members, all of whom were slated to receive multiple checks
over the 10-month period, again depending upon the No. of
FLSA Subclass members who opt in to the Settlement.
Amendment to the costs to be paid to the Claims Administrator
bringing the costs to a total $12, 500.00, a revised figure
for the costs of administration, given the cost of mailing
the final checks. The Claims Administrator's cost is
included in Class Counsel's costs in the amount of $17,
100.00 discussed supra.
Given the increase in claims administration costs, the
parties request an adjustment to $202, 150.00 in the Class
Fund for Distribution. This is adjusted due to the change in
the Claims Administrator's costs, both of which are
deducted from the total settlement proceeds.
Given these unanticipated delays referenced in paragraphs 1
and 2, the parties request amendment to the first deadline in
settlement administration mailing of the Notice of Class
Settlement to 14 days following the Court's issuance of
an order on this Stipulation, specifically the deadline to
mail the Notice of Class Action Settlement to Class Members
with the accompanying documents. This adjustment of the
mailing deadline also requires an concomitant adjustment of
the 60-day deadline for (i) members of the Rule 23 Uniform
Class to exclude themselves from the settlement, (ii) members
of any Subclass to object to the portion(s) of the Settlement
that affects them, (iii) members of the two FLSA Subclasses
to submit Claim/Consent Forms in order to consent to join the
FLSA claims, claim a share of that portion of the FLSA
settlement funds for the Mechanics and Technicians
Subclasses, and submit information to challenge the