United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
matter is before the Court on Plaintiffs' Motion For
Preliminary Approval Of Settlement (Doc. #372) filed
March 2, 2018, Plaintiffs' Second Supplemental Motion
For Preliminary Approval Of Settlement (Doc. #387) filed
May 21, 2018 and Plaintiffs' Motion For Approval Of
Adequacy Of Settlement Notice Process (Doc. #389) filed
May 21, 2018. Plaintiffs' unopposed motions seek (1)
preliminary approval of the parties' proposed settlement
agreement; (2) a finding that plaintiffs' requests for
attorneys' fees are fair and reasonable; (3) approval of
plaintiffs' requests for costs to class counsel and
service awards to class representatives; (4) a final
settlement approval hearing date; and (5) approval of the
parties' proposed notice plan. Plaintiffs' Motion
For Preliminary Approval (Doc. #372), ¶¶ 1-5;
Plaintiffs' Motion For Approval Of Adequacy Of
Settlement Notice Process (Doc. #389) at 1. For reasons
below, the Court sustains plaintiffs' motions in part.
And Procedural Background
9, 2008, four plaintiffs - former Sprint business channel
employees - filed suit against their employers Sprint Nextel
Corporation and Sprint/United Management Company
(collectively, “Sprint”). Complaint
(Doc. #1). Plaintiffs alleged that when Sprint acquired
Nextel, it failed to properly integrate the companies'
payroll systems and routinely failed to pay commissions
plaintiffs had earned. Id. On behalf of a nationwide
class of similarly-situated Sprint employees, plaintiffs
asserted claims for violations of the Kansas Wage Payment Act
(“KWPA”), K.S.A. § 44-313 et seq.,
and breach of contract. See Second Amended Class Action
Complaint (Doc. #43) filed August 22, 2008, ¶¶
December 10, 2008, the Court certified a class pursuant to
Rule 23(b)(3), Fed. R. Civ. P., composed of “those who
worked in Sales and Distribution for [Sprint's] Business
Direct Channel since January 1, 2006, including General
Business, Enterprise, and Public Sector Account Executives
(or those in similar positions), and those who managed these
individuals, who were paid in full or in part based on
commissions.” Memorandum And Order (Doc. #77)
at 4-17. The Court appointed Nichols Kaster, PLLP and Stueve
Siegle Hanson LLP as class counsel. Id. at 18. The
certification order also reassigned the case to the
undersigned Judge because she was presiding over its
companion case - Sibley v. Sprint Nextel Corp. et
al., No. 08-cv-2063-KHV. Id. at 2-3, 19. The
parties in Sibley and Harlow retained the
same counsel and experts, and the classes asserted similar
claims - i.e. that Sprint underpaid commissions due
to issues with its payroll system arising from the Nextel
April 8, 2009, the Court directed plaintiffs to send
potential class members a letter to place them on notice of
the suit and their ability to opt out of it. Memorandum
And Order (Doc. #91) at 2. On May 21, 2014, the parties
stipulated that the class should be limited to
“business direct channel employees who worked as
‘transactional' sales representatives and/or
‘hunters, ' or their managers, including
‘hybrid' managers, who worked in those positions at
any time from January 1, 2006 through December 31,
2009.” Amended Stipulation Specifying Class
Membership And Class Period And Providing For
Corrective And Supplemental Notice (Doc. #350) at 3-5.
Shortly thereafter, the parties sent supplemental class
notices and notices of exclusion which described these
limitations to current class members and potential new class
members. Id. at 5-6; see Doc. #350-2
(notice letter); see Doc. #350-3 (same);
see Doc. #350-4 (same); see Order Approving
Amended Stipulation (Doc. #351) filed May 27, 2014.
this action began, the parties engaged in active motion
practice. On June 17, 2008, Sprint filed a motion to dismiss.
Defendants' Motion To Dismiss Counts I And III-V, And
Partially Dismiss Count II Of Plaintiffs' Amended
Complaint (Doc. #13); Memorandum And Order
(Doc. #44) filed September 2, 2008 (overruling motion as
moot). On August 15, 2008, plaintiffs moved for
certification. Plaintiffs' Motion For Rule 23 Class
Certification (Doc. #38). After extensive briefing and
oral argument, the Court granted certification.
Memorandum And Order (Doc. #77) at 2, 19. Sprint
attempted an interlocutory appeal of the certification order,
which the Tenth Circuit denied. See Order (Doc. #87)
filed February 6, 2009 (denying petition from appeal).
action also required expansive discovery. Sprint alone
produced more than 10 million pages of documents.
Memorandum In Support Of Plaintiffs' Motion For
Preliminary Approval Of Settlement (Doc. #373)
filed March 2, 2018 at 6 (citing Declaration Of Michele
R. Fisher In Support Of Supplemental Preliminary
Approval Of Settlement (Doc. #373-1), ¶ 12).
Plaintiffs deposed 37 Sprint corporate representatives,
executives and employees. Declaration Of Michele R.
Fisher (Doc. #373-1), ¶ 7. Both parties relied
heavily on experts who examined Sprint's computerized
commissions system. The Court summarized the experts'
challenge as follows:
As is the case in Sibley, the experts' opinions
in Harlow will address the proper methodology for:
(1) investigating enormous databases, (2) writing specialized
code to create forensic computer programs, (3) manipulating
complex data fields, (4) applying numerous interrelated
accounting variables, and (5) calculating sales commissions
specific to tens of thousands of employees in the
Order Of Appointment (Doc. #348) filed May 2, 2014
at 2-3. Because this case involved an extraordinary amount of
highly technical data, the Court appointed a Special Master
to oversee expert discovery and case management deadlines.
Id. at 3, 5-7. On August 26, 2014, while the experts
were preparing their initial reports, the Court stayed all
deadlines to allow the parties and experts to focus on
Sibley. Order Staying Case Management
Deadlines (Doc. #354) at 2; see also
Declaration Of Michele R. Fisher (Doc. #373-1),
September 1, 2017, the Court ordered that the Sibley
parties engage in mediation before the Honorable Daniel D.
Crabtree of the District of Kansas. Order Referring The
Parties To Mediation (Doc. #762 in No.
08-cv-2063-KHV). On January 8 and 9, 2018, the
Sibley parties attended mediation sessions with
Judge Crabtree. ADR Report (Doc. #798 in No.
08-cv-2063-KHV) filed January 10, 2018. The parties did not
settle during these sessions, but on January 18, 2018 - with
the continued aid of Judge Crabtree - the parties reached a
settlement which resolved both cases. See Memorandum In
Support (Doc. #373) at 15.
Preliminary Settlement Approval
March 2, 2018, plaintiffs moved for preliminary approval of
their settlement agreement. Plaintiffs' Motion For
Preliminary Approval (Doc. #372). On March 8, 2018, the
Court held a preliminary settlement approval hearing. At the
hearing, the Court voiced concerns about certain aspects of
the proposed settlement agreement. On March 16, 2018,
plaintiffs filed a Supplemental Memorandum In Support Of
Plaintiffs' Motion For Preliminary Approval Of
Settlement (Doc. #378). Plaintiffs' supplemental
memorandum provided additional information concerning (1)
revisions to the settlement process; (2) the parties'
efforts to ensure the most practicable notice of settlement;
and (3) a new cy pres recipient. See generally
April 5, 2018, the Court ordered the parties to submit
additional information and show cause why they should not
revise certain provisions of the proposed settlement
agreement. Order To Show Cause (Doc. #380) at 1-7.
On April 16, 2018, the parties responded and submitted for
preliminary approval a revised settlement agreement.
Plaintiffs' Response To Order To Show Cause
(Doc. #381); Defendants' Response To The Court's
Order To Show Cause  Regarding The Supplemental Memorandum
In Support Of Plaintiffs' Motion For Preliminary Approval
Of Settlement (Doc. #383); see Settlement
Agreement (Doc. #381-15). On May 2, 2018, plaintiffs
submitted another revised settlement agreement which
corrected typographical errors and revised one provision.
See Settlement Agreement (Doc. #385-1). On May 9,
2018, the Court ordered the parties to show cause why they
should not make further revisions to certain provisions of
the settlement agreement. Second Order To Show Cause
(Doc. #386). On May 21, 2018, plaintiffs filed
Plaintiffs' Second Supplemental Motion For
Preliminary Approval Of Settlement (Doc. #387),
Plaintiffs' Motion For Approval Of Adequacy Of
Settlement Notice Process (Doc. #389) and a revised
settlement agreement. See Settlement Agreement in
Declaration Of Michele R. Fisher In Response To Second
Order To Show Cause (Doc. #388-1) at 3-44.
Proposed Settlement (Doc. #388-1)
Settlement Agreement defines the settlement class as follows:
All business direct channel employees at Sprint who worked as
transactional sales representatives and/or hunters, and those
who managed them (including hybrid managers), during the
Class Period of January 1, 2006 through December 31, 2009,
who were paid in full or in part based on commission, and did
not request exclusion from this case. The parties have agreed
there are 3, 919 such individuals in the Settlement Class.
Settlement Agreement (Doc. #388-1), ¶ 4.