United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Kathryn H. Vratil United States District Judge.
9, 2018, the Court sustained in part Plaintiffs'
Amended Motion For Preliminary Approval Of
Settlement (Doc. #817) filed March 7, 2018.
Memorandum And Order (Doc. #829) at 20. In addition,
the Court ordered as follows:
[O]n or before Monday, May 21, 2018, the
parties shall file (1) a motion for preliminary approval of a
revised settlement; (2) a motion for approval of the proposed
class notice; (3) a motion to join additional class
representatives to represent class members who were correctly
paid or overpaid, class members who only worked in Period 65
and class members who had insufficient data to calculate
underpayment and (4) a joint proposed amendment to the
pretrial order which sets forth these new claims.
Id. at 20-21. On May 21, 2018, plaintiffs filed
Plaintiffs' Second Supplemental Motion For
Preliminary Approval Of Settlement (Doc. #831) and
Plaintiffs' Motion For Approval Of Adequacy
Of Settlement Notice Process (Doc. #833). Plaintiffs
appointed three additional class representatives to represent
(1) class members who were correctly paid or overpaid, (2)
class members who only worked in Period 65 and (3) class
members who had insufficient data to calculate underpayment.
Plaintiffs' Second Supplemental Memorandum In Support
Of Preliminary Approval Of Settlement (Doc. #832) filed
May 21, 2018 at 3-4. The parties however, did not submit a
joint proposed amendment to the pretrial order setting forth
the claims of these groups of class members. The Court has
reviewed these filings and orders as follows.
The proposed settlement agreement and notice of settlement do
not establish whether the parties intended to create
subclasses or merely appoint class representatives to
represent the interests of the aforementioned groups of class
members. To better align the interests of class members and
named class representatives, the Court orders the parties to
create subclasses of (1) class members who were correctly
paid or overpaid, (2) class members who only worked in Period
65 and (3) class members who had insufficient data to
The parties must define each subclass and allege how it meets
the certification requirements of Rule 23. Fed.R.Civ.P.
23(c)(5) (“a class may be divided into subclasses that
are each treated as a class under this rule.”); 3
Newberg on Class Actions § 7:31 (5th ed. 2017).
The parties shall submit a joint proposed amendment to the
pretrial order which sets forth the claims of the subclasses.
The parties shall revise the notice of settlement and
settlement agreement to include subclass definitions and
identify the named class representative for each subclass.
Proposed Notice Plan
assert that the revised settlement agreement resolves issues
with the settlement notice process. Plaintiffs'
Motion For Approval Of Adequacy Of Settlement Notice
Process (Doc. #833) at 2; Memorandum And Order
(Doc. #829) at 8 n.2. In particular, the revised settlement
agreement requires that class counsel issue a proposed
national press release after preliminary approval and
provides that the parties cannot mail notices of settlement
until the Court approves the results of the postcard mailing.
Settlement Agreement (Doc. #835) filed May 22, 2018,
¶¶ 11.d, 11.f.
23(e)(1), Fed. R. Civ. P., requires that “the [C]ourt
direct notice in a reasonable manner to all class members who
would be bound by the [settlement].” Because Rule 23(e)
does not provide specific guidance with respect to the
content of notices of settlements, the Court must determine
whether the proposed notices fairly apprise class members of
the material settlement terms and their options. See In
re Integra Realty Res., Inc., 262 F.3d 1089, 1111 (10th
Cir. 2005). In general, notices of settlement should provide
plain-language descriptions of the following: (1) the
definition of the class and any subclasses; (2) how to opt
out or object to the settlement and relevant deadlines; (3)
material terms of the settlement, including the total
settlement amount, how the parties calculated class member
allocations, the recipient's estimated allocation,
attorneys' fees and service awards; (4) the time and
place of the final settlement approval hearing; and (5) the
contact information of class counsel. See Manual For
Complex Litigation (Fourth) § 21.312 (2004).
notice of settlement does not state that correctly paid or
overpaid class members will not receive a settlement
allocation. Settlement Agreement (Doc. #835) at 40.
The Court orders the parties to revise the notice of
settlement to include an explanation that class members who
were correctly paid or overpaid will not receive a settlement