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Sibley v. Sprint Nextel Corp.

United States District Court, D. Kansas

June 27, 2018

ROXIE SIBLEY, et al., Plaintiffs,
v.
SPRINT NEXTEL CORPORATION, et al., Defendants.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiffs' Motion For Approval Of Adequacy Of Settlement Notice Process (Doc. #833) filed May 21, 2018; Plaintiffs' Motion For Certification Of Settlement Subclasses (Doc. #839) filed June 18, 2018; and The Parties' Joint Proposed Amendment To The Pretrial Order (Doc. #841) filed June 18, 2018. Plaintiffs' unopposed motions seek approval of the proposed settlement notice process and certification of settlement subclasses comprised 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 calculate underpayment. The parties also provide a joint amendment to the pretrial order which defines these subclasses. For reasons below, the Court sustains plaintiffs' motion for certification and joint proposed amendment to the pretrial order and sustains plaintiffs' motion for approval of proposed settlement notice process in part.

         Procedural Background

         On May 9, 2018, the Court sustained in part plaintiffs' motion for preliminary approval of the settlement.[1] Memorandum And Order (Doc. #829). The Court withheld preliminary approval because the parties had not demonstrated that they deemed the settlement fair and reasonable. Id. at 9-17. The Court did not address the adequacy of plaintiffs' proposed settlement notice plan or set a final settlement hearing date. The Court directed the parties 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 (emphasis omitted).

         On May 21, 2018, plaintiffs filed the pending motion for approval of the proposed notice plan and appointed three additional class representatives - one for each of the aforementioned groups. Plaintiffs' Motion For Approval Of Adequacy Of Settlement Notice Process (Doc. #833); Plaintiffs' Second Supplemental Memorandum In Support Of Preliminary Approval Of Settlement (Doc. #832) filed May 21, 2018 at 3-4. Plaintiffs did not file a joint proposed amendment to the pretrial order as the Court directed or clarify whether they intended to create subclasses or merely appoint class representatives to represent the interests of some class members.

         On June 4, 2018, the court ordered the parties to create subclasses comprised of 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 revise the settlement agreement and notice of settlement accordingly. Memorandum And Order And Order To Show Cause (Doc. #836) at 2-3. On June 18, 2018, the parties filed a motion to certify settlement subclasses, a revised settlement agreement, a revised notice of settlement and a joint proposed amendment to the pretrial order. Plaintiffs' Motion For Certification Of Settlement Subclasses (Doc. #839); Settlement Agreement in Declaration Of Michele Fisher In Support Of Motion For Certification Of Settlement Subclasses (Doc. #840-1) at 4-53; Joint Proposed Amendment To The Pretrial Order (Doc. #841).

         Analysis

         Plaintiffs seek certification of the following three settlement subclasses:

Settlement Subclass - Correctly Paid or Overpaid: This Settlement Subclass is comprised of Settlement Class Members who, according to the Class Expert calculations, were correctly paid or overpaid and is comprised of 4, 482 Class Members. The Settlement Subclass representative for this group is Henry Goins.
Settlement Subclass - Worked Only in Period 65 (August 2005): This Settlement Subclass is comprised of Settlement Class Members who, according to the Class Expert calculations, only worked in Period 65 (August 2005) and is comprised of 274 Class Members. The Settlement Subclass Representative for this group is Clayton Johnson.
Settlement Subclass - Insufficient Data: This Settlement Subclass is comprised of Settlement Class Members who, according to the Class Expert calculations, had insufficient data to calculate an underpayment and is comprised of 2, 787 Class Members. The Settlement Subclass Representative for this group is Anthony Scarpelli.

Joint Proposed Amendment To The Pretrial Order (Doc. #841) at 2; see also Declaration Of Michele R. Fisher In Support Of Second Supplemental Motion For Preliminary Approval Of Settlement (Doc. #832-1) filed May 21, 2018, Ex. 2 (identifying class members in each subclass). In addition, plaintiffs seek approval of the joint proposed amendment to the pretrial order and the proposed settlement notice plan.

         I. Subclass Certification

         Class certification is committed to the broad discretion of the trial court. See Anderson v. City of Albuquerque, 690 F.2d 796, 7999 (10th Cir. 1982). In determining the propriety of a class action, the question is not whether plaintiffs have stated a cause of action or will prevail on the merits, but whether they meet the requirements of Rule 23, Fed.R.Civ.P. See Shook v. El Paso Cnty., 386 F.3d 963, 971 (10th Cir. 2004). The Court must conduct a “rigorous analysis” to ensure that Rule 23 requirements are met but should not pass judgment on the merits of the case. DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010).

         Before final judgment, the Court may alter or amend its certification order under Rule 23(c)(1)(C). Fed.R.Civ.P. 23(c)(1)(C) (“order that grants . . . class certification may be altered or amended before final judgment”); see Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (certification orders “inherently tentative”); Garcia v. Tyson Foods, Inc.. 890 F.Supp.2d 1273, 1297 (D. Kan. 2012), aff'd, 770 F.3d 1300 (10th Cir. 2014). Like the initial certification decision, courts retain considerable discretion to decide whether to alter or amend a class certification order. DG, 594 F.3d at 1201; see Garcia, 890 F.Supp.2d at 1297.

         As the party seeking subclass certification, plaintiffs have the burden of proof. Shook, 386 F.3d at 968; D. Kan. Rule 23.1(d) (in class actions, movant bears burden of “showing that the action is properly maintainable as such”). To alter the certification order, plaintiffs must show that (1) the prerequisites of Rule 23(a), Fed. R. Civ. P., are satisfied, (2) the proposed subclasses fit within one of the categories described in Rule 23(b), Fed. R. Civ. P., and (3) that class counsel meet the requirements of Rule 23(g). Fed.R.Civ.P. 23(c)(5) (“subclasses . . . treated as a class under this rule”).

         A. Rule 23(a) Requirements

         Rule 23(a) requires that (1) “the class is so numerous that joinder of all members is impracticable, ” (2) questions of law or fact are common to the subclass, (3) the claims of the representative parties are typical of the claims of the subclass and (4) the representative parties will fairly and adequately protect the interests of the ...


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