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Myers v. Loomis Armored US, LLC

United States District Court, W.D. North Carolina, Charlotte Division

December 16, 2019

SHAKEERA MYERS, on behalf of herself and all others similarly situated, Plaintiff,
v.
LOOMIS ARMORED US, LLC, Defendant.

          ORDER AND NOTICE OF HEARING

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on the Unopposed Motion for Settlement (Doc. No. 62), submitted by Plaintiff. For the reasons stated in the unopposed motion and supporting memorandum of law (Doc. No. 63), the motion is GRANTED.

         WHEREAS, Plaintiff Shakeera Myers and Defendant Loomis Armored US, LLC have entered into the Settlement Agreement of Class and Collective Action and Release of Claims (“Settlement Agreement”) (Doc. No. 63-1, p. 3-61), which is intended to resolve claims asserted in this action by Plaintiff; and

         WHEREAS, the Settlement Agreement, together with its exhibits, set forth the terms and conditions for a proposed settlement and dismissal with prejudice of this action against the Defendant; and

         WHEREAS, Plaintiff has requested that the Court enter an Order: (1) asserting jurisdiction over the claims alleged, Plaintiff and Defendant in this action, and the implementation and administration of the proposed Settlement Agreement; (2) adjudging the terms of the Settlement Agreement preliminarily to be fair, reasonable and adequate, and in the best interests of the Plaintiff, current opt-in plaintiffs, and members of the settlement classes, and direct consummation of its terms and provisions; (3) approving, as to form and content, the proposed Notice of Proposed Class and Collective Action Settlement (“Notice”) and Claim Form to all members of the Settlement Classes by First Class U.S. Mail and text message and email, as set forth in Article V, Section 5 of the Settlement Agreement (Doc. No. 63-1, p. 35); (4) approving and appointing Angeion Group as the Settlement Administrator who will administer this settlement; (5) setting a sixty (60) calendar day deadline (from the date the Notice and Claim Forms are postmarked to members of the Settlement Classes) for the execution and return of fully completed Claim Forms, requests for exclusion, or objections; and (6) scheduling a Final Approval Hearing for a date no sooner than ninety (90) days after the date of this Order on Plaintiff's Unopposed Motion for Preliminary Approval of Class and Collective Action Settlement (Doc. No. 62); and

         WHEREAS, the Court has before it, Plaintiff's Unopposed Motion for Preliminary Approval of Class and Collective Action Settlement (Doc. No. 62) and papers in support thereof, together with the Settlement Agreement and its Exhibits (Doc. No. 63-1); and

         WHEREAS, the Court is satisfied that the terms and conditions set forth in the Settlement Agreement were the result of good faith, arms' length settlement negotiations between competent and experienced counsel for Plaintiff and Defendant; and

         WHEREAS, having reviewed and considered the Settlement Agreement and accompanying Exhibits, the Plaintiff's Motion for Preliminary Approval of Class and Collective Action Settlement (Doc. No. 62), and having considered the argument of counsel, the Court makes the findings and grants the relief set forth below, authorizing notice of the settlement contained in the Settlement Agreement upon the terms and conditions set forth in this order.

         WHEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

         Standard of Review

         1. The standards for preliminary approval of a class settlement under Fed.R.Civ.P. 23(e) involves a two-step process. Matthews v. Cloud 10 Corp., No. 3:14-cv-00646-FDW-DSC, 2015 U.S. Dist. LEXIS 114586, at *3 (W.D. N.C. Aug. 27, 2015). First, there must be “[p]reliminary approval of the proposed settlement at an informal hearing and dissemination of mailed and/or published notice of the settlement to all affected Class Members.” Id.; see also Beaulieu v. EQ Indus. Servs., No. 5:06-CV-400-BR, 2009 U.S. Dist. LEXIS 133023, at *69 (E.D. N.C. Apr. 20, 2009) (Magistrate Judge Memorandum and Recommendation); Manual for Complex Litigation § 21.632 (5th ed. 2004). The second step, “if preliminary approval is given and class notice is sent, the court conducts a fairness hearing at which all interested persons may be heard and then makes a final determination on approval.” Beaulieu, 2009 U.S. Dist. LEXIS 133023, at *69; see also Manual for Complex Litigation, supra, § 21.633. At the preliminary stage, the “judge must make a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms and must direct the preparation of notice of the certification, proposed settlement, and date of the final fairness hearing.” Matthews, 2015 U.S. Dist. LEXIS 114586, at *4 (quotations omitted). “There is a strong judicial policy in favor of settlements, particularly in the class action context.” Case v. Plantation Title Co., No. 9:12-CV-2518-DCN-BM, 2015 U.S. Dist. LEXIS 33580, at *22 (D.S.C. Mar. 5, 2015) (quotation omitted).

         Notice to Settlement Classes, Opt-In Procedure, and Appointment of Claims Administrator

         2. The Court authorizes notice of the settlement set forth in the Settlement Agreement as it appears fair, reasonable, and adequate within the meaning of Fed.R.Civ.P. 23 and the Class Action Fairness Act of 2005 (“CAFA”), subject to final consideration thereof at the Final Approval Hearing provided for below.

         3. The Court approves as to form and content the Notice, Reminder Postcard and Claim Form, attached as Exhibits A-1, A-2, and A-3 to the Settlement Agreement, see (Doc. No. 63-1), and the manner of notice set forth in Article V of the Settlement Agreement.[1]

         4. The manner and forms of Notice to be sent to members of the Settlement Classes set forth in Article V of the Settlement Agreement are hereby approved and the provisions thereof are hereby incorporated into this Order so that upon entry of this Order, the Parties are directed to ensure that the Notice is disseminated according to the terms of Article V, Section 5 of the Settlement Agreement.

         5. Members of the Settlement Classes are authorized to receive a settlement payment only by timely submitting a properly completed Claim Form to the Settlement Administrator via U.S. Mail, fax, or email so that it is postmarked, if received by U.S. Mail, or received, if sent by fax or email, on or before the date sixty (60) calendar days after the date on which the Settlement Administrator postmarks or texts the Notice and Claim Form to the members of the Settlement Classes, in accordance with the terms of the Settlement Agreement. The Claim Form must be completed in accordance with the instructions in the Notice and Claim Form and comply with the requirements set forth in the Notice and Settlement Agreement. All members of the Settlement Classes who fail to comply with these requirements shall not receive any settlement payment pursuant to the Settlement set forth in the Settlement Agreement. Moreover, all members of the Rule 23 Settlement Class who fail to comply with these requirements and do not formally exclude themselves from the Rule 23 Settlement Class shall not receive any settlement payment set forth in the Settlement Agreement but will in all other respects be subject to and bound by the provisions of the Settlement Agreement, the releases contained therein, and the Final Judgment.

         6. Prior to the Final Approval Hearing, the Plaintiffs and/or the Settlement Administrator shall serve and file a sworn statement attesting to compliance with the Settlement Agreement.

         Requests for Exclusion from the North Carolina State Law Settlement Class

         7. Members of the Rule 23 Settlement Class may request exclusion from the Rule 23 Settlement Class and the Settlement. All written requests by members of the Rule 23 Settlement Class to exclude themselves from the Settlement or submit an objection must be returned by First-Class U.S. Mail to the Settlement Administrator so that it is postmarked no later than sixty (60) calendar days after the date on which the Settlement Administrator postmarks or texts the Notice and Claim Form to the members of the Settlement Classes. A written request by a person seeking exclusion must expressly assert that he or she wishes to be excluded from the Settlement. Such written statements should state at the top of the letter “Request for Exclusion from Settlement in Myers v. Loomis Armored US, LLC, No. 3:18-cv-00532-FDW-DSC, ” and should include the name, address, telephone number, and signature of the individual requesting exclusion from the Settlement.

         8. Members of the Rule 23 Settlement Class may not exclude themselves by filing requests for exclusion as a group or class but must in each instance individually and personally execute a request for exclusion and timely transmit it to the Settlement Administrator in accordance with the terms of the Settlement Agreement.

         9. In the event the Settlement receives final approval, any member of the Rule 23 Settlement Class who does not properly and timely request exclusion shall be bound by all the terms and provisions of the Settlement Agreement, the final approval order, the final judgment, and the releases set forth therein, and will be deemed to have waived all objections and opposition to the fairness, reasonableness, and adequacy of the Settlement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement. All members of the Rule 23 Settlement Class who do not timely and validly request to be excluded will be enjoined from proceeding against the Defendant for the claims made in the Complaint (Doc. No. 1).

         10. All members of the Rule 23 Settlement Class who submit valid and timely notices of their intent to be excluded from the Rule 23 Settlement Class: (i) shall not have any rights under the Settlement Agreement; (ii) shall not be entitled to receive a settlement payment; and (iii) shall not be bound by the Settlement Agreement, any final approval order, or the final judgment. Such individuals are not permitted to submit a Claim Form or to consent to participate in Plaintiffs' FLSA claims in the Action.

         Objections ...


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