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Acuna v. Southern Nevada T.B.A Co.

United States District Court, D. Nevada

July 19, 2018

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

          KAMER ZUCKER ABBOTT Nicole A. Young Carol Davis Zucker Nicole A. Young Attorneys for Defendant



         The 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.

         Recent History and Present Status.

         1. This 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.

         2. 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.[1] 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.

         3. 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.

         Requested Amendments to Administration of the Settlement

         In order to move this settlement process along, the Parties request the changes in Settlement administration set forth below:

         A. The 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.

         B. 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.

         C. 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.

         D. 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 ...

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