stipulated motion for preliminary approval badgley … · 2:16-cv-00278 rsl badgley mullins turner...

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STIPULATED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPOINTMENT OF CLASS REPRESENTATIVES - 1

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BADGLEY MULLINS TURNER P L L C

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The Honorable Robert Lasnik

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MOHAMED A. HUSSEIN, an individual, and HASSAN HIRSI, an individual, Plaintiff, v. AIR SERV CORPORATION, a foreign corporation, Defendant.

))))))))) )

Case No. 2:16-cv-00278 RSL STIPULATED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPOINTMENT OF CLASS REPRESENTATIVES

NOTE ON MOTION CALENDAR: March 23, 2018

I. RELIEF REQUESTED

Plaintiff Mohamed A. Hussein (collectively, “Plaintiff”) and Defendant ABM Aviation,

Inc. (formerly operating as Air Serv Corporation) (“Defendant”) respectfully move the Court for

preliminary approval of the class action settlement agreement (“Settlement”) reached between

Plaintiff and Defendant. For the reasons set forth in this memorandum and the supporting

documents, the Settlement is fair and reasonable and serves the best interests of the Putative Class

Members. Accordingly, the Parties respectfully request that the Court take the following initial

steps in the settlement approval process: (1) appoint Class Members Hodan Ahmed Dahir and

Mohamed Yusef as additional Class Representatives, (2) preliminarily approve the Settlement,

including the Maximum Settlement Amount and calculation of Individual Allocable Shares; (3)

Case 2:16-cv-00278-RSL Document 32 Filed 03/23/18 of 18

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approve the fixed payment to Plaintiffs’ Counsel for fees and costs; (4) approve the proposed

notice plan, settlement notice form, and exclusion form; and (5) schedule the final fairness hearing

and related dates as proposed by the Parties.

II. STATEMENT OF FACTS

A. Factual and Procedural Background

This is a class action for payment of wages claimed by current and former employees of

Defendant at the Seattle-Tacoma International Airport. In 2013, following a vote on a citizens’

initiative, the City of SeaTac passed Section 7.45 of the City of SeaTac City Code (“the

Ordinance”). See Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 778 (2015). The Ordinance

identifies certain employers as either Transportation Employers or Hospitality Employers and

mandates a minimum wage (beginning at $15 in 2014 and increasingly annually thereafter) for

certain employees of those employers. Id. Defendant is alleged to be a Transportation Employer

and the persons who fall into the class are alleged to be Transportation Workers, defined as “any

nonmanagerial, nonsupervisory individual employed by a Transportation Employer.” Dkt. #1, Ex.

A (“Complaint”).

In 2014, a group of plaintiffs,1 not including Defendant, challenged the Ordinance in King

County Superior Court. Filo Foods, 183 Wn.2d at 779. The Filo Foods plaintiffs initially

challenged whether the Ordinance was properly placed on the ballot in the first instance. The

Superior Court held that it was not, but that decision was reversed by Appellate Division 1. Id. 2

1 Filo Foods, LLC; BF Foods, LLC; Alaska Airlines, Inc.; and The Washington Restaurant Association. 2 This challenge addressed the constitutionality of a state statute that required the striking of all initiative signatures

of a person who had signed multiple times, as opposed to merely striking all signatures after the first one. Division

1 held it to be unconstitutional not to count the first signature and in 2014 the legislature amended that section of the

RCW consistent with Division 1’s holding.


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The state Supreme Court stayed its decision on whether to review that decision, and the Ordinance

was placed on the ballot and narrowly passed. The Filo Foods plaintiffs then challenged the

Ordinance on its merits, arguing that it violated state law and was preempted by federal law.

Shortly before the Ordinance’s January 1, 2014 effective date, the Superior Court agreed with the

Filo Foods plaintiffs, in part, and held that the Ordinance was inapplicable as applied to the airport.

That decision was appealed to the state Supreme Court, which reversed the Superior Court in a

ruling dated August 20, 2015. See id. generally. Because the Filo Foods plaintiffs filed a motion

to reconsider that decision, however, the Supreme Court’s mandate did not issue until December

1, 2015.

Because of the Superior Court’s ruling invalidating the Ordinance at the airport, a large

number of employers alleged to be Transportation Employers and Hospitality Employers

continued to pay wages that were less than the minimum wage established in the Ordinance. Many

of these employers, including Defendant, continue to question the validity of the Ordinance on

issues of federal preemption arising under the National Labor Relations Act, the Railway Labor

Act, and the Airline Deregulation Act and its constitutionality. Following the Supreme Court’s

ruling finding the Ordinance to be applicable at the airport, these employers began to pay the wage

rates mandated by the Ordinance. Defendant began paying Ordinance wage rates effective

February 12, 2016. Dozens of lawsuits were filed against putative Transportation Employers and

Hospitality Employers based on their alleged failure to pay the wage rates mandated by the

Ordinance retroactive to January 1, 2014. This action was one such suit. It was originally filed in

King County Superior Court on February 4, 2016. Defendant removed the case to federal court

on February 25, 2016. Dkt. #1, Ex. A.


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On March 1, 2017, this Court granted the Parties’ Stipulated Motion for Class Certification,

Appointment of Class Counsel and Class Representatives. Dkt. #24. A Class was certified under

Fed. R. Civ. P. 23(b) as defined below:

All employees of Air Serv who have been Transportation Workers and who worked one or more hours within the City of SeaTac at any time during the time period from January 1, 2014 to February 12, 2016 who can be ascertained from Air Serv’s records as having been paid less than the prevailing minimum wage prescribed by City of SeaTac Ordinance 7.45.050 and who have not recovered back wages under separate legal action.

Id. The Court also appointed Mohamed A. Hussein and Hassan Hirsi as Class Representatives and

the law firms of Badgley Mullins Turner PLLC and the Law Offices of Daniel Whitmore as class

counsel. Id.

B. Proposed Class Representatives.

Following certification of the Class, Class Representative Hassan Hirsi chose to join a

parallel action pending in King County Superior Court, Isse v. Air Serv, King County Superior

Court Case No. 17-2-02687-5 SEA. As such, Mr. Hirsi is ineligible to be a putative class member

and cannot effectively serve in his capacity as Class Representative. To remedy this and to ensure

Class Members’ interests are protected by a quorum of diligent representatives, Mr. Hussein seeks

the appointment of Class Members Hodan Ahmed Dahir and Mohamed Yusef as additional Class

Representatives.

Ms. Dahir was employed as a cabin cleaner with Air Serv between June 2013 and

September 2016. Before February 2016, Ms. Dahir was paid between $9.00 and $10.00 per hour.

Ms. Dahir completed high school in the United States. Mr. Mohamed Yusef was employed as a

cabin cleaner with Air Serv between September 2012 and March 2015. Mr. Yusef was paid

approximately $8.75 per hour out, and attended high school in his native-country of Somalia.


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Both Ms. Dahir and Mr. Yusef are members of the Court-certified Class and have agreed

to represent the interests of their fellow Class Members. Neither individual has any individual

legal issue which would present a conflict of interest or disqualify them under Fed. R. Civ. P.

23(a)(4). See Plaintiff’s Motion for Class Certification, Dkt. #15, pg. 6.

C. Terms of the Proposed Hussein Settlement.

On November 2, 2017, the Parties participated in mediation with well-respected mediator

Teresa Wakeen of Wakeen & Associates. Turner Decl. ¶3. With the assistance of Ms. Wakeen,

the Parties reached an initial resolution of this case after a lengthy mediation session. Id.

Thereafter, the parties negotiated the final terms of the settlement agreement. Id. At all times the

negotiations were adversarial, non-collusive, and at arm’s length. Id. The mediation and

subsequent negotiations culminated into a Settlement Agreement and Release of Claims (the

“Agreement”) between Plaintiffs and Defendant. The Agreement and attachments are attached to

the Turner Declaration as Exhibit 1.

The settlement details are contained in the Agreement. For purpose of preliminary

approval, the following summarizes the Agreement’s terms.

i. The Settlement Terms.

The Agreement required Defendant pay a Gross Settlement Amount (“GSA”) of up to $7.3

million dollars to resolve the claims of all Putative Class Members.3 The Settlement also included

a fixed payment of $175,000 for attorney fees and costs (“Attorney Fee Award”) that was

negotiated separately so as not to diminish the class members’ recovery. The GSA is reduced by

3 At the time the parties participated in the Mediation and negotiated the Maximum Settlement Amount, they had

not, yet, settled the related matter Isse, et al. v. Air Serv Corporation (see Section D). Thereafter, the Isse matter

settled and 220 Isse Plaintiffs opted out of this Action, thereby reducing the Maximum Settlement Amount to a

maximum of $3,070,300.33.


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the amounts paid out to the Isse plaintiffs, resulting in a Maximum Settlement Amount (“MSA”)

of $3,070,300.33, inclusive of the Attorney Fee Award. The Settlement contemplated payment

for 100% of back wages and sick pay4, plus a premium for interest, and was inclusive of all payroll

taxes. The amount distributable to Class Members after deductions from the MSA is the Net

Settlement Amount (“NSA”).

Pursuant to the terms of the Settlement Agreement, counsel for Plaintiffs and Defendant

will coordinate the calculation of an Individual Allocable Share for each Putative Class Member,

using Defendant’s payroll data for hours worked and wages paid during the period of January 1,

2014 to February 12, 2016. Defendant’s expert has created a spreadsheet from Defendant’s payroll

data. The spreadsheet includes the Putative Class Member’s names, hours worked between

January 1, 2014 and February 12, 2016, wage rates paid for hours worked, wage rates owed per

the Ordinance, and sick leave accrued. From this data, the expert has calculated the total amount

of back wages and sick leave payments for each Putative Class Member, plus a portion of the

remainder of the NSA for interest. The total sum for back wages, sick leave and interest for each

Putative Class Member, less a portion of the payroll taxes and expenses, will be the Individual

Allocable Share. In consideration for the payments, Settling Class Members will release,

relinquish, and forever discharge any and all claims that exist or might exist against Defendant that

relate to the Settling Class Members’ compensation through the date of Final Approval (as defined

in the Agreement), including but not limited to all claims for minimum wage, overtime, meal

periods, rest breaks, sick or other leave, and wage statements or wage records. The released claims

4 Although payment for retroactive sick pay under the Ordinance was not sought in this lawsuit, Defendant agreed to

pay an addition sum for sick pay as part of this Settlement.


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include, but are not necessarily limited to, claims arising under any provision of the Ordinance,

the Washington State Minimum Wage Act, RCW 49.46 et seq., the Washington Wage Rebate Act,

RCW 49.52 et seq., the Washington Industrial Welfare Act, RCW 49.12 et seq., the Fair Labor

Standards Act, 29 USC 201 et seq., and any claim to attorneys’ fees and costs based on the claims

listed above.

ii. Attorneys’ Fees and Costs.

Defendant has agreed to pay Plaintiffs’ Counsel the total sum of $175,000 for attorney fees

and costs. This payment is a fixed amount that was negotiated separately and is not a percentage

of the Putative Class Member’s recovery but will be deducted from the MSA.

iii. Service Awards.

If approved by the Court, the Settlement Class Representatives will each receive a $1,000

Service Award. The Service Award will be deducted from the Maximum Settlement Amount

before calculating the Individual Allocable Shares.

D. Related State Case: Isse, et al. v. Air Serv Corporation

On February 7, 2017, a group of Putative Class Members filed a lawsuit in King County

Superior Court titled Isse v. Air Serv, King County Superior Court Case No. 17-2-02687-5 SEA.

The Isse suit also made claims for violation of the Ordinance, including for unpaid sick leave. The

Isse plaintiffs amended their Complaint on March 20, 2017, April 24, 2017, and, again, on June

26, 2017, each time adding additional plaintiffs, until there were a total of 220 plaintiffs in the Isse

case. The Isse plaintiffs brought their claims as individuals and not as a class. As noted above,

Class Representative Hassan Hirsi joined the Isse action as a plaintiff and can no longer serve as a

representative in this action.


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On November 3, 2017, counsel for the parties in Isse reached agreement on the terms of a

tentative settlement, which was subsequently submitted for approval in King County Superior

Court. All 220 Isse plaintiffs signed individual settlement agreements and opt out forms.

Payments were made in January 2018 and the parties stipulated to dismissal of the action in

February 2018. Accordingly, the Isse plaintiffs do not qualify as Settling Class Members per the

definition of the Certified Class and the terms of the Settlement Agreement and payments made to

them are subtracted from the Maximum Settlement Amount negotiated in this Action.

E. Settlement Payments

Putative Class Members who receive settlement payments under a separate legal action

(e.g., including the Isse matter), or who timely elect to opt out, are not eligible to participate in

this Settlement. After the opt-out period, the Settlement Administrator, in conjunction with

Counsel for the Parties, will determine who qualifies as a Settling Class Member. The Individual

Allocable Shares for the persons who do not qualify as Settling Class Members, either because

they participated in the Isse settlement or other settlement or because they opted out for other

reasons, will be deducted from the Maximum Settlement Amount.

Upon Final Approval and expiration of any appeal period, the Settlement Administrator

will pay the Individual Allocable Shares to the Settling Class Members. Checks will remain

payable for one year. Any checks unclaimed by Settling Class Members will be transferred to

the Washington State Unclaimed Property Fund after one year.

F. Settlement Administration and Notice Process.

The Parties have agreed to use Simpluris as the Settlement Administrator to oversee the

processing of Individual Allocable Share amounts; to track persons who elect to opt out of the


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Settlement or who are known to have signed individual settlement agreements and thus do not

qualify as Settling Class Members; and to make the payments and distributions required under the

Settlement Agreement. Settlement Administration costs will be deducted from the Maximum

Settlement Amount. If the Settlement Administration costs exceed $20,000, the excess costs shall

be shared equally by Defendant and Plaintiffs’ Counsel. Turner Dec., ¶ 8.

The Parties have agreed upon class notice, which is attached as Exhibit A to Exhibit 1 of

the Turner Declaration. Additionally, the Parties have agreed that, within thirty (30) calendar days

of entry of the Preliminary Approval Order, the Settlement Administrator will mail the Notice of

Settlement Forms and Opt-Out Forms to all Class Members based on last known addresses

provided by Defendant. Id. ¶ 10, Ex. 1. The Settlement Administrator will also trace undeliverable

mailings and conduct skip tracing to search for a better address, and track and respond to responses

and inquiries made by Putative Class Members. Id.

Putative Class Members will have thirty (30) calendar dates from the date of the initial

mailing to request exclusion (opt out) from the Settlement and to submit objections. Id. The

Settlement Administrator shall make payments to the Settling Class Members thirty (30) calendar

days from the date of entry of the Order of Final Approval. Id.

III. AUTHORITY AND ARGUMENT

A. The Settlement Approval Process.

As a matter of “express public policy,” federal courts strongly favor and encourage

settlements, particularly in class actions and other complex mattes, where the inherent costs,

delays, and risks of continued litigation might otherwise overwhelm any potential the class could

hope to obtain. See Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (noting


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the “strong judicial policy that favors settlements, particularly where complex class action

litigation is concerned”); see also William B. Rubenstein, Newberg on Class Actions (“Newberg”)

§ 13.1 (5th ed. updated) (citing cases). Here, the proposed Settlement is the best vehicle for

Settling Class Members to receive the relief to which they may be entitled in a prompt and efficient

manner.

The Manual for Complex Litigation describes a three-step procedure for approval of class

action settlements: (1) preliminary approval of the proposed settlement; (2) dissemination of notice

of the settlement to all affected class members; and (3) a “fairness hearing” or “final approval

hearing,” at which class members may be heard regarding the settlement, and at which evidence

and argument concerning the fairness, adequacy, and reasonableness of the settlement may be

presented. Manual for Complex Litigation (Fourth) (“MCL 4th”) §§ 21.632 – 21.634, at 432 – 34

(2014). This procedure safeguards class members’ due process rights and enables the court to

fulfill its role as the guardian of class interests. See Newberg § 13.1.

With this motion, the Parties request that the Court take the first step in the settlement

approval process by granting preliminary approval of the proposed Settlement Agreement. The

purpose of preliminary evaluation of proposed class action settlements is to determine whether the

settlement “is within the range of possible approval” and thus whether notice to the class of the

settlement’s terms and the schedule of a formal fairness hearing is worthwhile. Newberg § 13.13.

The decision to approve or reject a proposed settlement is committed to the Court’s sound

discretion. See City of Seattle, 955 F.2d at 1276 (in context of class action settlement, appellate

court cannot “substitute [its] notions of fairness for those of the [trial] judge and the parties to the

agreement,” and will reverse only upon strong showing of abuse of discretion) (quoting Officers


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for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 626 (9th Cir. 1982)). The Court’s grant of

preliminary approval will allow the Putative Class Members to receive direct notice of the

proposed Settlement Agreement’s terms and the date and time of the Final Approval Hearing, at

which Settling Class Members may be heard regarding the Settlement Agreement, at which time

further evidence and argument concerning the settlement’s fairness, adequacy, and reasonableness

may be presented. See MCL 4th § 21.634.

B. The Criteria for Settlement Approval Are Satisfied.

The Ninth Circuit puts “a good deal of stock in the product of an arms-length, non-

collusive, negotiated resolution.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009).

To assess a settlement proposal, courts must balance the strength of the plaintiffs’ case; the risk,

expense, complexity, and likely duration of further litigation; the risk of maintaining class action

status throughout the trial; the amount offered in settlement; the extent of discovery completed and

the state of the proceedings; the experience and views of counsel; the presence of a governmental

participant; and the reaction of the class members to the proposed settlement. In re Online DVD-

Rental Antitrust Litig. (“In re Online DVD”), 779 F.3d 934, 944 (9th Cir. 2015).

1. The Settlement is a Product of Serious, Informed, and Arm’s-Length

Negotiations.

The Court’s role is to ensure that “the agreement is not product of fraud or overreaching

by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair,

reasonable and adequate to all concerned.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th

Cir. 1998) (internal quotes and citations omitted); see also In re Online DVD, 779 F.3d at 944

(noting settlement in class actions “present unique due process concerns for absent class

members,” including the risk that class counsel “may collude with the defendants”) (quoting In re


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Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2010)).

The Settlement Agreement is the result of intensive, arm’s-length negotiations between

experienced attorneys for both parties who are competent practitioners in class action litigation in

general and with the legal and factual issues of this case in particular. (Turner Decl. ¶ 3).

Plaintiffs’ counsel are particularly experienced in the issues surrounding the Ordinance and cases

similar to this case. See generally id. The Settlement Agreement was the result of a full-day, in-

person mediation on November 2, 2017, with mediator Teresa Wakeen. Id.

2. The Settlement Agreement Provides Full Relief to the Settlement Class and

Treats All Settlement Class Members Fairly.

The Settlement Agreement required Defendant to allocate up to $7.3MM as a Gross

Settlement Amount, from which Counsel for the Parties calculate Individual Allocable Shares

based on Defendant’s payroll records after subtracting payments of $4,404,699.67 made to the Isse

plaintiffs. Thus, the total adjusted MSA, inclusive of the Attorney Fee Award negotiated

separately from the GSA is $3,070,300.33.

The Individual Allocable Shares will consist of full wages and sick pay for the period

January 1, 2014 to February 12, 2016, plus a premium for interest, less a portion of the payroll

taxes. Significantly, no claim for sick pay was plead in this matter, due to concerns over class

certification if such a claim were pled. Defendant agreed to increase the Maximum Settlement

Amount following the settlement of the Isse action (which included a claim for sick pay) to ensure

fairness to all Putative Class Members. Further, the Settlement Agreement provides that no

unclaimed funds will revert to Defendant.

3. The Settlement Agreement is Fair and Reasonable in Light of the Alleged

Claims and Defenses.


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The Complaint asserts claims for all unpaid wages under the Ordinance plus interest,

attorneys’ fees, and costs. The Complaint also seeks payment of double damages under RCW

49.52.070. Defendant has asserted challenges to the Ordinance based on the National Labor

Relations Act, the Railway Labor Act, the Airline Deregulation Act, and the Dormant Commerce

Clause of the U.S. Constitution and challenged the retroactivity of the Filo Foods decision. These

issues were hotly contested in the Filo Foods case, and although the state Supreme Court’s decision

favored the interests of the affected employees, no federal court has yet to address these arguments,

all of which are based on federal law. Any one of these challenges, if successful, could result in

the dismissal of the Putative Class Members’ claims in their entirety. Additionally, Defendant has

asserted a defense to double damages, claiming that a bona fide dispute as to its obligation to pay

the minimum wage under the Ordinance exists until the Ordinance is held to be retroactive and all

federal challenges have been adjudicated by a federal court.

4. The Stage of Litigation and State of the Evidence Adduced Supports

Preliminary Approval.

The stage of litigation and state of the evidence supports preliminary approval of a global

settlement. The parties both possess the empirical records indicating employee identification

numbers, hours worked, rates of pay (both straight and overtime), and dates of payment. Nothing

further is required to compute each Putative Class Member’s claim.

C. Plaintiffs’ Counsel’s Fees and Costs Are Reasonable.

Plaintiffs’ Counsel has agreed to accept a fixed fee of $175,000 for all fees and costs

incurred and to be incurred. Turner Decl. ¶ 6. Defendant has agreed to pay this sum in addition to

the Maximum Settlement Amount, so as not to dilute the recovery of Settling Class Members. The

sum is reasonable under the circumstances of this case and compared to attorney fee awards in


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comparable cases; it should be approved by the Court. Id.

D. The Requested Incentive Award is Reasonable

Subject to Court approval, the Settlement Agreement provides that the Class

Representatives may be paid reasonable service award of $1,000 each. Id., ¶ 10, Ex. 1. Service

awards, which serve as premiums in addition to any claims-based recovery from the settlement,

promote public policy of encouraging individuals to undertake the responsibility of representative

lawsuits. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958 – 59 (9th Cir. 2009). A stipend

may also be appropriate to “compensate class representatives for work done on behalf of the class

to make up for financial or reputational risk undertaken in bringing the action, and sometimes, to

recognize their willingness to act as a private attorney general.” Id. at 958. Unlike unnamed Class

Members, who will enjoy the benefits of the representative’s efforts without taking any personal

action, Mr. Hussein, Ms. Dahir and Mr. Yusef have stuck their necks out to represent the interests

of the class. Id. Additionally, the award sought of $1,000 per representative is reasonable in light

of the substantial prospective relief obtained by the Putative Class Members. See, e.g., Pelletz v.

Weyerhauser Co., 592 F. Supp. 2d 1322, 1329–30 & n.9 (W.D. Wash. 2009) (approving $7,500

service awards and collecting decisions approving awards ranging from $5,000 to $40,000).

E. The Proposed Notice Program is Constitutionally Sound.

Rule 23(e)(1) requires the Court to “direct notice in a reasonable manner to all class

members who would be bound by” a proposed settlement. Fed. R. Civ. P. 23(e)(1); see also

MCL 4th § 21.312. The best practicable notice is that which is “reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.


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2:16-cv-00278 RSL



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306, 314 (1950). According to the Manual for Complex Litigation, a settlement notice should do

the following:

• Define the class;

• Describe clearly the options open to the class members and the deadlines for taking action;

• Describe the essential terms of the proposed settlement;

• Disclose any special benefits provided to the class representatives;

• Indicate the time and place of the hearing to consider approval of the settlement, and the method for objecting to or opting out of the settlement;

• Explain the procedures for allocating and distributing settlement funds, and, if the settlement provides different kinds of relief for different categories of class members, clearly set out those variations;

• Provide information that will enable class members to calculate or at least estimate their individual recoveries; and

• Prominently display the address and phone number of class counsel and the procedure for making inquiries.

The proposed form of noticed, attached as Exhibit A to Exhibit 1 of the Turner Declaration

(“Notice”), satisfies all of the above criteria. The Notice is clear, straightforward, and provides

Putative Class Members with enough information to evaluate whether to participate in the

Settlement. Thus, the Notice satisfies the requirements of Rule 23. Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 808 (1985) (explaining a settlement notice must provide settlement class

members with an opportunity to present their objections to the settlement).

The Parties envision direct notice to current or last known address via U.S. Mail to

Putative Class Members. This Notice Program satisfies due process especially because Rule 23

does not require that each potential class member receive actual notice of the class action.


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2:16-cv-00278 RSL



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Mullane, 339 U.S. at 316 (explaining that the Supreme Court “has not hesitated to approve of

resort to publication as a customary substitute in [a] class of cases where it is not reasonably

possible or practicable to give more adequate warning”).

All in all, the Notice Program constitutes the best practicable method under the

circumstances, provides due and sufficient notice to the Settlement Class, and fully satisfies the

requirements of due process and Federal Rule of Civil Procedure 23.

F. Scheduling a Final Approval Hearing is Appropriate.

The last step in the settlement approval process is a final approval hearing at which the

Court may hear all evidence and argument necessary to make its settlement evaluation.

Proponents of the settlement may explain the terms and conditions of the Settlement Agreement,

and offer argument in support of final approval. The Court will determine after the final

approval hearing whether the settlement should be approved, and whether to enter a final order

and judgment under Rule 23(e). The Parties request that the Court set a date for a hearing on

final approval at the Court’s convenience, but no later than 100 days after entry of an order

preliminarily approving the settlement and 30 days after the objection/exclusion deadline, and

schedule further settlement proceedings pursuant to the schedule set forth below:

ACTION DATE

Preliminary Approval Order Entered At the Court’s Discretion

Initial Mailing Date

Within 21 days following entry of the Preliminary Approval Order

Notice Deadline

Within 45 days following entry of the Preliminary Approval Order

Exclusion/Objection Deadline 30 days after Notice Deadline


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2:16-cv-00278 RSL



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Plaintiff’s Counsel’s Fee Motion Submitted 45 days after Notice Deadline

Final Approval Brief and Response to Objections

45 days after Notice Deadline

Final Approval Hearing / Noting Date Between 100-140 days of entry of the Preliminary Approval Order.

Final Approval Order Entered At the Court’s discretion.

IV. CONCLUSION

For the foregoing reasons, the Parties respectfully request that the Court (1) grant

preliminary approval of the Settlement; (2) approve the proposed notice plan; and (3) schedule

the final fairness hearing and related dates.

DATED this 23rd day of March, 2018.

BADGLEY MULLINS TURNER PLLC

/s/ Duncan C. Turner___________

Duncan C. Turner, WSBA #20597 19929 Ballinger Way NE, Suite 200 Seattle, WA 98155 Telephone: (206) 621-6566 Email: [email protected] Attorney for Plaintiffs LAW OFFICE OF DANIEL R. WHITMORE

/s/Daniel R. Whitmore

Daniel R. Whitmore, WSBA #24012 2626 15th Avenue West, Suite 200 Seattle, WA 98119 Telephone: (206) 329-8400 Email: [email protected] Attorney for Plaintiffs SEBRIS BUSTO JAMES

/s/ Jeffrey A. James

Jeffrey A. James, WSBA #18277 Darren A. Feider, WSBA #22430 14205 SE 36th Street, Suite 325


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2:16-cv-00278 RSL



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Bellevue, WA 98006 Telephone: (425) 454-4233 Email: [email protected] Email: [email protected] Attorneys for Defendant


[PROPOSED] ORDER GRANTING STIPULATED

MOTION FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT AND

APPOINTMENT OF CLASS REPRESENTATIVES- 1 2:16-cv-00278-RSL



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The Honorable Robert Lasnik

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MOHAMED A. HUSSEIN, an individual, and HASSAN HIRSI, an individual, Plaintiffs, v. AIR SERV CORPORATION, a foreign corporation, Defendant.

))))))))) )

Case No. 2:16-cv-00278 RSL [PROPOSED] ORDER GRANTING

STIPULATED MOTION FOR

PRELIMINARY APPROVAL OF


APPOINTMENT OF CLASS

REPRESENTATIVES

Before the Court is the Parties’ Stipulated Motion for Preliminary Approval of the Class

Action Settlement and Appointment of Class Representatives (the “Stipulated Motion”). The

Court has considered the Stipulated Motion and attachments thereto. This Court has also

reviewed the Parties’ Settlement Agreement (“Agreement”), as well as the files, records and

proceedings to date in this matter.1

Based on this Court’s review of the Agreement and all of the files, records, and

proceedings herein, the Court concludes, upon preliminary examination, that the Agreement and

1 For purposes of this Order, capitalized terms used below shall have the meaning ascribed to them in the Stipulated Motion, unless otherwise defined.

Case 2:16-cv-00278-RSL Document 32-1 Filed 03/23/18 Page 1 of 8







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Settlement appear fair, reasonable, and adequate, and within the range of reasonableness for

preliminary settlement approval, and that a hearing should and will be held after notice to the

Settlement Class (as described in Paragraph C below) to confirm that the Agreement and

Settlement are fair, reasonable and adequate and to determine whether the Settlement should be

approved and final judgment entered in the Action based upon the Agreement.

IT IS HEREBY ORDERED THAT:

A. Preliminary Approval of Proposed Settlement.

The Agreement is preliminarily approved as fair, reasonable and adequate and within

the range of reasonableness for preliminary settlement approval. The Court finds that: (a) the

Agreement resulted from extensive arm’s length negotiations; and (b) the Agreement is

sufficient to warrant notice of the Settlement to persons in the Settlement Class and a full

hearing on the approval of the Settlement.

B. Class Certification, Representatives, and Counsel.

On March 1, 2017, this Court granted the Parties’ Stipulated Motion for Class

Certification, Appointment of Class Counsel and Class Representatives. Dkt. #24. A Class was

certified under Fed. R. Civ. P. 23(b) as defined below:

All employees of Air Serv who have been Transportation Workers and who worked one or more hours within the City of SeaTac at any time during the time period from January 1, 2014 to February 12, 2016 who can be ascertained from Air Serv’s records as having been paid less than the prevailing minimum wage prescribed by City of SeaTac Ordinance 7.45.050 and who have not recovered back wages under separate legal action.

Id. The Court also appointed Mohamed A. Hussein and Hassan Hirsi as Class Representatives

and the law firm of Badgley Mullins Turner PLLC as class counsel. Id.

Following certification of the Class, Class Representative Hassan Hirsi chose to join a

parallel action pending in King County Superior Court, Isse v. Air Serv, King County Superior








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Court Case No. 17-2-02687-5 SEA. As such, Mr. Hirsi cannot effectively serve in his capacity

as Class Representative. To remedy this and to ensure Class Members’ interests are protected by

a quorum of diligent representatives, Mr. Hussein seeks the appointment of Class Members

Hodan Ahmed Dahir and Mohamed Yusef as additional Class Representatives.

Ms. Dahir was employed as a cabin cleaner with Air Serv between June 2013 and

September 2016. Before February 2016, Ms. Dahir was paid between $9.00 and $10.00 per hour.

Ms. Dahir completed high school in the United States. Mr. Mohamed Yusef was employed as a

cabin cleaner with Air Serv between September 2012 and March 2015. Mr. Yusef was paid

approximately $8.75 per hour, and attended high school in his native-country of Somalia.

Both individuals are members of the Court-certified Class, were not Plaintiffs in the Isse

matter, and have agreed to represent the interests of their fellow Class Members. Neither

individual has any individual legal issue which would present a conflict of interest or disqualify

them under Fed. R. Civ. P. 23(a)(4). See Plaintiff’s Motion for Class Certification, Dkt. #15, pg.

6. Accordingly, the Court approves Ms. Dahir and Mr. Yusef as Class Representatives.

C. Settlement Hearing.

A final approval hearing (the “Settlement Hearing”) shall be held before the Honorable

Robert Lasnik on __________________ as set forth in the Notice to the Settlement Class

(described in Paragraph D below), to determine whether the Agreement is fair, reasonable and

adequate and should be approved. Papers in support of final approval of the Agreement, the

incentive awards to the Class Representatives, and Class Counsel’s application for an award of

attorneys’ fees, costs and expenses (the “Fee Application”) shall be filed with the Court

according to the schedule set forth in Paragraph M below. If the Settlement Hearing is

postponed, adjourned, or continued by order of the Court, the Parties shall notify the Settlement

Class by posting the change on the Settlement Website. After the Settlement Hearing, the

Court may enter a settlement order and final judgment in accordance with the Agreement that

will adjudicate the rights of the Settlement Class Members with respect to the Released Claims








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being settled. The scope of the Released Claims shall be a full and complete release of any and

all claims, known or unknown, asserted or unasserted, arising under any provisions of

Proposition 1 and Chapter 7.45 et seq. of the City of SeaTac Municipal Code, the Washington

Minimum Wage Act, and the Fair Labor Standards Act.

D. Class Notice.

Class Notice shall be sent within twenty-one (21) days following entry of this Order.

E. Mail Notice.

The Settlement Administrator (Simpluris) will provide mail notice to persons in the

Settlement Class for whom the Defendant possesses a mailing address. Mail Notice will be

sent via direct mail to the most recent mailing address as reflected in reasonably available

employment records of the Defendant. Skip tracing shall be performed by the Settlement

Administrator for all returned mail.

F. Findings Concerning Class Notice.

The Court finds that the foregoing program of Class Notice and the manner of its

dissemination is the best practicable notice under the circumstances and is reasonably

calculated to apprise the Settlement Class of the pendency of this Action and their right to

object to or exclude themselves from the Settlement Class. The Court further finds that the

Class Notice program is reasonable, that it constitutes due, adequate and sufficient notice to all

persons entitled to receive notice and that it meets the requirements of due process and FRCP

23. The Court hereby approves the Notice in substantially the same form as that attached to the

Declaration of Duncan C. Turner.

G. Administration.

The Court confirms that it is appropriate for the Defendant to provide the information

necessary for the Settlement Administrator to provide the notice contemplated herein and to

administer the settlement, including names, addresses and Individual account information.

H. Exclusion from the Settlement Class.








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Persons in the Settlement Class will possess the right to opt out by sending a written

request to a designated address within thirty (30) days after the Notice Deadline. All

Settlement Class Members who do not opt out in accordance with the terms set forth herein

will be bound by all determinations and judgments in the Action. Exclusion requests must be

signed and include the following statement: “I request to be excluded from the class settlement

in Hussein., et al., v. Air Serv Corporation, Case No. 2:16-cv-00278-RSL.” The Settlement

Administrator will retain a copy of all requests for exclusion. Not later than 15 days from the

exclusion deadline, the Settlement Administrator shall provide Class Counsel with all

objections received, which shall then be filed with the Court.

I. Objections and Appearances.

Any person in the Settlement Class who has not timely submitted a valid request for

exclusion from the Settlement Class, and thus is a Settlement Class Member, may appear at the

Final Approval Hearing to argue that the proposed Settlement should not be approved and/or to

oppose the application of Class Counsel for an award of attorneys’ fees and the incentive

awards to the Class Representatives.

1. In order to be heard at the hearing, the person must make any objection in

writing and file it with the Court not later than thirty (30) days after the

Notice Deadline. Any objections that are not timely filed and mailed shall be

forever barred.

2. In order to be heard at the hearing, the person also must file with the Court

and serve on all Parties a Notice of Intention to Appear with the Court.

J. Further Papers In Support Of Settlement And Fee Application.

The deadline to respond to objections shall be fifteen (15) days following the

Objection/Exclusion deadline.

K. Effect of Failure to Approve the Agreement.

In the event the Agreement is not approved by the Court, or for any reason the Parties








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fail to obtain a Final Judgment as contemplated in the Agreement, or the Agreement

is terminated pursuant to its terms for any reason, then the following shall apply:

1. All orders and findings entered in connection with the Agreement shall

become null and void and have no further force and effect, shall not be used

or referred to for any purposes whatsoever, and shall not be admissible or

discoverable in any other proceeding;

2. The conditional certification of the Settlement Class pursuant to this Order

shall be vacated automatically and void; no doctrine of waiver, estoppel or

preclusion shall be asserted in any litigated certification proceedings in the

Action; and the Agreement and its existence shall be inadmissible to establish

any fact relevant to class certification or any alleged liability of the

Defendant for the matters alleged in the Action or for any other purpose;

3. Nothing contained in this Order is, or may be construed as, any admission or

concession by or against the Defendant or Plaintiffs on any point of fact or

law.

L. Stay/Bar Of Other Proceedings.

All proceedings in this Action are stayed until further order of the Court, except as

may be necessary to implement the terms of the settlement. Pending final determination of

whether the settlement should be approved, Plaintiffs, all persons in the Settlement Class and

persons purporting to act on their behalf are enjoined from commencing or prosecuting

(either directly, representatively or in any other capacity) against any of the Released Parties

any action, arbitration or proceeding in any court, arbitration forum or tribunal asserting any

of the Released Claims.








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M. Timeline.

The Final Hearing, is scheduled on ______________________, 2018 at ________ __.m.

in Courtroom ____ at the United States Courthouse, 700 Stewart Street, Seattle, WA 98101.

DATED this ___ day of ___________, 2018.

______________________________________ Robert S. Lasnik U.S. District Court Judge

Presented by: BADGLEY MULLINS TURNER PLLC

/s/ Duncan C. Turner___________

Duncan C. Turner, WSBA #20597 19929 Ballinger Way NE, Suite 200 Seattle, WA 98155 Telephone: (206) 621-6566

ACTION DATE

Preliminary Approval Order Entered ________________________________

Initial Notice Mailing Date Within 21 days following entry of the Preliminary Approval Order

Notice Deadline Within 45 days following entry of the Preliminary Approval Order

Exclusion/Objection Deadline 30 days after Notice Deadline

Class Counsel’s Fee Motion Submitted


Final Approval Brief and Response to Objections


Final Approval Hearing / Noting Date Between 100-140 days of entry of the Preliminary Approval Order.

Final Approval Order Entered At the Court’s discretion.








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Email: [email protected] Attorney for Plaintiffs LAW OFFICE OF DANIEL R. WHITMORE

/s/Daniel R. Whitmore Daniel R. Whitmore, WSBA #24012 2626 15th Avenue West, Suite 200 Seattle, WA 98119 Telephone: (206) 329-8400 Email: [email protected] Attorney for Plaintiffs SEBRIS BUSTO JAMES

/s/ Jeffrey A. James Jeffrey A. James, WSBA #18277 Darren A. Feider, WSBA #22430 14205 SE 36th Street, Suite 325 Bellevue, WA 98006 Telephone: (425) 454-4233 Email: [email protected] Email: [email protected] Attorneys for Defendant


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