De Leon v. Ricoh USA, Inc.

• Court: District Court, N.D. California
• Decided: November 25, 2019
• Docket: 3:18-cv-03725
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AUGUSTO DE LEON, Case No. 18-cv-03725-JSC

8 Plaintiff, ORDER RE: PRELIMINARY 9 v. APPROVAL OF CLASS ACTION SETTLEMENT 10 RICOH USA, INC., et al., Re: Dkt. No. 37 Defendants. 11

12 Augusto De Leon brings a class action against Ricoh USA, Inc. (“Ricoh USA”), Ricoh 13 Americas Corporation (“Ricoh Americas”), and IKON Office Solutions, Inc. (“IKON”) 14 (collectively, “Ricoh” or “Defendants”), alleging wage and hour violations under California state 15 law, and violations of the Fair Labor and Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., 16 among other claims. (Dkt. No. 29.)1 Now before the Court is Plaintiff’s unopposed motion for 17 preliminary approval of the parties’ class and collective action settlement agreement.2 (Dkt. No. 18 37.) Having considered the motion and having had the benefit of oral argument on November 7, 19 2019, and upon review of the amended settlement agreement and modified class notice, the Court 20 GRANTS the motion for preliminary approval. 21 BACKGROUND 22 Plaintiff filed a class and representative action against Ricoh in the Superior Court of the 23 State of California, County of Sonoma in May 2018, alleging multiple wage and hour violations 24 under the California Labor Code, violation of California’s Unfair Competition Law (“UCL”) 25 under the Business and Professions Code, and seeking relief under the Private Attorneys General 26 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 27 ECF-generated page numbers at the top of the documents. 1 Act of 2004 (“PAGA”).3 (Dkt. No. 1, Ex. A at 14-15.) Ricoh removed the action to this Court 2 pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). (Dkt. No. 1 at 3.) 3 Plaintiff filed a first amended complaint (“FAC”) in October 2018, bringing the same claims but 4 revising the proposed class pursuant to the parties’ stipulation. (See Dkt. Nos. 14 – 14-2.) 5 After an initial round of discovery, the parties agreed in January 2019 to mediate the case 6 “with well-respected mediator Lisa Klerman, Esq. in Los Angeles, California.” (Dkt. No. 37-2 at 7 ¶ 9.) The parties “exchange[d] additional information and documents in advance of mediation.” 8 (Id.) In March 2019, the parties “attended a full day of private mediation” with Ms. Klerman and 9 reached a settlement in principle “after extensive negotiations.” (Id. at ¶ 11.) The parties’ 10 agreement is reflected in the “Joint Stipulation and Agreement for Class Action Settlement and 11 Release of Claims” (“Settlement Agreement” or “Agreement”).4 (Id. at ¶ 12.) 12 The parties then filed a stipulation in this Court requesting leave for Plaintiff to file a 13 second amended complaint to supplement the claims in the FAC with those brought in the related 14 state court case of Hector Lopez v. Ricoh USA, Inc, (Dkt. No. 37-2 at ¶ 10; see also Dkt. Nos. 27), 15 which the Court granted, (Dkt. No. 28). Plaintiff filed the second amended complaint on July 12, 16 2019, asserting the following claims: (1) Failure to Pay Minimum Wages, Straight Time, and 17 Overtime Compensation, Cal. Lab. Code §§ 204, 210, 222, 223, 224, 510, 1194, 1197, 1197.1, 18 1198; (2) Failure to Provide Meal Periods, Cal. Lab. Code §§ 226.7, 512; (3) Failure to Provide 19 Rest Periods, Cal. Lab. Code §§ 226.7; (4) Failure to Reimburse for Necessary Work Expenses, 20 Cal. Lab. Code §§ 2800, 2802; (5) Failure to Pay Wages Owed, Cal. Lab. Code §§ 201-203; (6) 21 Failure to Furnish Accurate Itemized Wage Statements, Cal. Lab. Code § 226, 226.3; (7) Failure 22 to Maintain Accurate Records, Cal. Lab. Code § 226(a), 1174; (8) Unfair Business Practices, Bus. 23

24 3 Prior to filing the original complaint, Plaintiff submitted written notice of Ricoh’s alleged wage- and-hour violations to the California Labor and Workforce Development Agency (“LWDA”), in 25 accordance with PAGA. (Dkt. No. 37-2 at ¶ 4.) 4 The Settlement Agreement resolves the claims in this action “and those in the related case of 26 Hector Lopez v. Ricoh USA, Inc., Los Angeles County Superior Court, case number 18STCV08926.” (Dkt. No. 37-2 at ¶¶ 12, 82 (noting that the parties to the Lopez action have 27 agreed that Mr. Lopez “will file a request for dismissal” with prejudice within 14 days of either the 1 & Prof. Code §§ 17200 et seq. (“UCL claim”); (9) PAGA, Cal. Lab. Code §§ 2698 et seq.; (10) 2 violations of the FLSA, 29 U.S.C. §§ 201 et seq. (Dkt. No. 29 at 1-2.) The second amended 3 complaint is the operative complaint for settlement purposes. (Dkt. No. 37-2 at ¶ 10.) 4 Plaintiff filed the instant unopposed motion for preliminary approval of the Settlement 5 Agreement on October 3, 2019. (Dkt. No. 37.) Thereafter Ricoh sent notices to the United States 6 Attorney General and the California Attorney General, pursuant to CAFA, 28 U.S.C. § 1715(b). 7 (Dkt. No. 39 at ¶ 2; see also Dkt. Nos. 39-1 & 39-2, Exs. A-B.) The Court heard oral argument on 8 November 7, 2019 and noted its concerns regarding: the amount of funds designated for potential 9 cy pres distribution; the opt-out language in the proposed class notice (“Notice”); and the ability of 10 putative class members to object to Plaintiff’s forthcoming motion for attorneys’ fees. The Court 11 ordered the parties to submit supplemental briefing addressing the Court’s concerns, (see Dkt. No. 12 41), and Plaintiff did so on November 21, 2019, (see Dkt. Nos. 42 – 42-2). 13 I. The Parties 14 Ricoh USA is corporation incorporated under Ohio law, with its headquarters and principal 15 place of business in Malvern, Pennsylvania. (Dkt. No. 1 at ¶ 9.) Ricoh USA is authorized to do 16 business in California. (Dkt. No. 29 at ¶ 9.) It produces, distributes, and services office 17 equipment, including printers, photocopiers, and fax machines throughout the state. (Id. at ¶ 9.) 18 IKON was an Ohio corporation before changing its name to Ricoh USA on April 1, 2012. 19 (Dkt. No. 1 at ¶ 11; see also Dkt. No. 29 at ¶ 10 n.2.) Ricoh Americas was a Delaware corporation 20 that merged into Ricoh USA on April 1, 2016. (Dkt. No. 1 at ¶ 13; see also Dkt. No. 29 at ¶ 11 21 n.3.) Plaintiff is a former Ricoh employee. (Dkt. No. 29 at ¶ 8(a).) 22 II. Complaint Allegations 23 Plaintiff worked for Ricoh “from approximately May 2000 to November 2017 as a field 24 service representative and technology service technician” in California. (Id. at ¶ 8(a)-(b).) Ricoh 25 paid Plaintiff an hourly wage. (Id. at ¶ 18.) Ricoh also pays hourly wages to the California 26 employees who perform work similar to the work performed by Plaintiff (“Ricoh Employees”). 27 (Id. at ¶ 20.) Over the course of Plaintiff’s employment, he was subjected to a litany of unlawful 1 payment of sick leave, wage statements, and maintenance of records, among others, as part of 2 Ricoh’s policies, practices, guidelines or procedures. (See id. at ¶¶ 21-44.) Ricoh Employees 3 were subjected to the same unlawful employment practices. (Id. at ¶ 22.) 4 III. Settlement Agreement 5 A. Proposed Class 6 The proposed Settlement Class consists of “[a]ll current or former hourly non-exempt 7 employees of Defendants who held the position of technology service technician, field support 8 representative, and/or other positions engaged in similar work for Defendants in the state of 9 California during the period of May 22, 2014 through the Preliminary Approval Date” (the “Class 10 Period”). (Dkt. No. 37-1 at ¶ 58.) 11 B. Proposed FLSA Collective 12 The proposed FLSA Collective is identical to the Settlement Class with the exception of 13 the relevant time period, which begins one year after the Class Period. (See id. at ¶ 37 (defining 14 “FLSA Collective” as covering “the period of May 22, 2015 through the Preliminary Approval 15 Date” (“FLSA Period”)).) Thus, all putative members of the proposed FLSA Collective fall 16 within the Settlement Class. 17 C. Payment Terms 18 Ricoh agrees to pay $2.2 million (“Gross Settlement Amount”) to the Court-approved 19 settlement administrator (“Claims Administrator”)5 within 15 days of the Court’s order granting 20 final approval. (Id. at ¶¶ 61, 73.) The Gross Settlement Amount is non-reversionary, and does not 21 cover Ricoh’s attorneys’ fees, litigation costs, or employer taxes. (Id. at ¶ 61.) The Claims 22 Administrator will pay the following from the Gross Settlement Amount: (1) $55,000 as 23 consideration for release of the FLSA claim by participating FLSA collective members (“FLSA 24 Settlement Amount”); (2) $75,000 to LWDA to cover PAGA civil penalties6; (3) $10,000 Service 25 5 The parties have selected an experienced settlement administration firm, CPT Group, Inc. 26 (“CPT”), to act as Claims Administrator. (See 37-1 at ¶ 16; see also Dkt. No. 37-5.) 6 The Claims Administrator will allocate $100,000 from the Gross Settlement Amount for PAGA 27 civil penalties. (Dkt. No. 37-1 at ¶ 62(f).) In accordance with Labor Code § 2699(i), the Claims 1 Award to Plaintiff as Class Representative; (4) $733,333.33 to Class Counsel7 for fees; (5) 2 $15,000 to Class Counsel for costs; and (6) $35,000 to the Claims Administrator.8 (Id. at ¶¶ 46, 3 62(a)-(d), (f); see also Dkt. No. 42-2 at 4 (amending the Settlement Agreement to pay $35,000 to 4 the Claims Administrator).) The remainder, approximately $1,276,666.67 (the “Net Settlement 5 Amount”), constitutes the portion distributable to class members who do not opt-out (“Class 6 Member Shares”). (Id. at ¶¶ 46, 63(a).) 7 1. Individual Settlement Shares 8 a. Class Member Shares 9 Within 14 days of preliminary approval, Ricoh will provide the Claims Administrator with 10 the number of workweeks that each individual class member worked during the class period. (Id. 11 at ¶ 63(a)(i).) The Claims Administrator will then distribute the entire Net Settlement Amount to 12 class members as follows: 13 The Claims Administrator will calculate the aggregate total number of Workweeks worked by the Settlement Class during the Class 14 Period based on Defendants’ calculations set forth in paragraph 63(a)(i). Class Workweek Value will be determined by dividing the 15 Net Settlement Amount by the aggregate total of Workweeks worked. The Claims Administrator will calculate Class Members’ estimated 16 Class Member Share by multiplying the individual Class Member’s total Workweeks by Workweek Value. 17 18 (Id. at ¶ 63(a)(ii).) In other words, each class member will receive a pro rata share of the Net 19 Settlement amount based on the number of weeks the individual worked during the class period. 20 If an individual opts-out, the Claims Administrator will redistribute their estimated share of the 21 Net Settlement Amount to participating class members.9 (Id.) 22 One-quarter (25%) of each Class Member’s individual share “constitute[s] wages for 23 purposes of IRS reporting.” (Id. at ¶ 63(d).) The remaining 75% “constitute[s] payments for 24

25 7 Plaintiff seeks to appoint Clark Law Group and United Employees Law Group as Class Counsel. (Dkt. No. 37 at 11.) 26 8 The Settlement Agreement recognizes that the amounts payable to Class Counsel, the Claims Administrator, and Plaintiff as Class Representative are subject to Court approval. 27 9 The Settlement Agreement provides that if 15% or more of the Settlement Class properly opt- 1 liquidated damages, penalties, and interest.” (Id.) The Claims Administrator will issue IRS W-2 2 forms for the wage payments, and IRS 1099 forms “for all other payments.” (Id.) Class members 3 are “exclusively liable for any and all of their respective tax liability” and “responsible for paying 4 all applicable state, local, and federal income taxes on all amounts” received pursuant to the 5 Settlement Agreement. (Id. at ¶ 65.) 6 b. FLSA Settlement Shares 7 The Claims Administrator will distribute the entire FLSA Settlement Amount, which is 8 taken from the Gross Settlement Amount, to all class members eligible to opt-in to the FLSA 9 Collective (“collective-eligible class members”). (Id. at ¶ 63(b).) Within 14 days of preliminary 10 approval, Ricoh will provide the Claims Administrator with the total number of collective-eligible 11 class members and the total number of weeks that each individual “worked during the FLSA 12 Period.” (Id. at ¶ 63(b)(i).) Each collective-eligible class member will receive a check from the 13 FLSA Settlement Amount (“FLSA Settlement Share”). (Id. at ¶ 63(b).) Individuals who opt-in to 14 the FLSA Collective by cashing that check will become “participating collective members.” (Id.) 15 The distribution will be as follows: 16 Collective-Eligible Members who worked no more than [10] Workweeks during the FLSA Period shall receive an FLSA 17 Settlement Share equal to [$20.00]. Participating Collective Members who worked more than [10] Workweeks during the FLSA 18 Period shall receive an FLSA Settlement Share of [$20.00] plus an additional amount from the remainder of the FLSA Settlement 19 Amount after [$20.00] is allocated to each Participating Collective Member. Such remainder of the FLSA Settlement Amount is to be 20 distributed pro rata to Participating Collective Members who worked more than [10] Workweeks during the FLSA Period based on the 21 number of Workweeks the Participating Collective Member worked in excess of [10]. 22 23 (Id.) The Claims Administrator’s calculation for determining the “additional amount” due 24 Participating Collective Members who worked in excess of 10 workweeks during the FLSA 25 Period tracks the calculation used to determine the Class Member Shares. (Compare Dkt. No. 37- 26 1 at ¶ 63(b)(ii) with id. at ¶ 63(a)(ii).) The entirety of each Participating Collective Member’s 27 individual FLSA Settlement Share will “constitute payments for liquidated damages, penalties, 1 63(d).) Like class members, the participating collective members are “exclusively liable for any 2 and all of their respective tax liability” and “responsible for paying all applicable state, local, and 3 federal income taxes on all amounts” received pursuant to the Settlement Agreement. (Id. at ¶ 65.) 4 Class members and collective-eligible class members have 45 days after the Class 5 Administrator mails the Notice to dispute the amount of their individual workweeks shown on 6 their respective Notices. (Id. at ¶ 63(c).) 7 2. Unclaimed Funds 8 Class members and participating collective members must cash or deposit their checks 9 within 90 days of issuance. (Dkt. No. 42-2 at 7 (joint stipulation amending ¶ 74 of the 10 Agreement).) Sixty days after issuance of payment, the Claims Administrator will send a written 11 reminder and call each individual who has an outstanding settlement check and remind them that 12 the check “will expire and become non-negotiable” after the 90-day deadline. (Id. at 8.) If the 13 amount of unclaimed funds after the 90-day deadline is less than $80,000, those funds will be 14 distributed cy pres to the “East Bay Community Law Center’s Community Economic Justice 15 Clinic for its Services and/or Youth Advocacy Initiatives,” within 5 days after expiration of the 16 deadline.10 (Id.) 17 If the amount of unclaimed funds exceeds $80,000, the Claims Administrator will “make a 18 second distribution on a pro rata basis to participating Class Members who previously cashed their 19 settlement checks.” (Id.) The second distribution checks will remain valid for 90 days. (Id.) Any 20 funds remaining from the second distribution after expiration of the 90-day deadline will be 21 remitted to the same cy pres beneficiary. (Id. at 8-9.) 22 D. Release 23 Class members agree to release Ricoh “and all of their former, present or future affiliated 24 entities and third parties, including but not limited to parents, subsidiaries, partners, owners, 25 shareholders, officers, directors, employees, agents, and subcontractors” (the “Released Parties”) 26

27 10 Plaintiff’s counsel attests that neither Plaintiff nor his counsel have any affiliation with the cy 1 from all known and unknown wage claims under California law that arise out of the facts alleged 2 in the second amended complaint during the Class Period. (Dkt. No. 37-1 at ¶¶ 54, 75.) The 3 released claims do not include: “(1) the FLSA Claim; (2) claims for Worker’s Compensation; (3) 4 claims for unemployment or disability payments; (4) claims for discrimination, retaliation or 5 harassment; (5) tort claims; (6) or any other claims that cannot be released as a matter of law.” 6 (Id. at ¶ 75.) Participating collective members also agree to release Ricoh and the Released Parties 7 “from any known or unknown claims for unpaid wages, including overtime wages, under the 8 FLSA based on the facts asserted in the operative complaint” arising during the FLSA Period. (Id. 9 at ¶ 75(a).) In addition, Plaintiff, as class representative, agrees to a general release of Ricoh and 10 the Released Parties from “any and all claims,” including all unknown claims covered by 11 California Civil Code § 1542. (Id. at ¶ 75(b).) 12 E. Notice 13 Within 14 days of preliminary approval: 14 Defendants shall deliver to the Claims Administrator and Class Counsel the Class List . . . containing for each Class Member, the 15 following information: his or her (1) full name, (2) last known mailing address, (3) last known telephone number, (4) email address (if 16 available), (5) social security number, (6) dates the Class Member held the position of technology service technician, field support 17 representative or other similar position during the Class Period; (7) total number of Workweeks worked during the Class Period; (8) dates 18 the Class member held the position of technology service technician, field support representative or other similar position during the FLSA 19 Period (if any) and (9) total number of Workweeks worked during the FLSA period (if any). 20 21 (Id. at ¶ 68(a).) No later than 14 days after receiving the Class List containing the information 22 above, the Claims Administrator must mail a “Notice Packet”11 to identified class members “via 23 first-class regular U.S. Mail.” (Id. at ¶ 68(b).) The Claims Administrator will also send Notice 24 11 The Settlement Agreement defines “Notice Packet” as including only the Notice “[f]or Class 25 Members who are not eligible to opt-in to the FLSA Collective.” (Dkt. No. 37-1 at ¶ 47.) If a class member is “eligible to opt-in to the FLSA Collective, the Notice Packet will also include the 26 FLSA Claim Check Language advising the Collective-Eligible Class Member that if [he or she] does not opt out, [he or she] will get a second check with the language advising them that if [the] 27 FLSA Claim Check is endorsed and/or cashed, [he or she] will have agreed to opt into the FLSA 1 Packets to individual class members via email if the class member has an email address. (Id.) 2 The Notice will include, among other information: a description of the lawsuit, including a 3 brief overview of the claims in plain language; contact information for Plaintiff’s counsel, Ricoh’s 4 Counsel,12 and the Claims Administrator; the terms of the settlement including a summary of the 5 settlement amount, its distribution, and the methodology for calculating the individual settlement 6 shares for both the class and collective action; and the release of claims. (Dkt. No. 42-2, Ex. 1 at 7 12-20.) The Notice also informs class members of how to: (1) participate in both the class and 8 collective actions; (2) opt-out of the Settlement Class by mailing a written “Request for 9 Exclusion” to Claims Administrator within 45 days of the mailing of the Notice; (3) object to the 10 settlement by mailing a timely written “Notice of Objection” or “Formal Objection” to the Court 11 within 45 days of the mailing of the Notice; and (4) obtain a copy of the Settlement Agreement. 12 (Id. at 17-22.) Class members are further notified that they may attend the final fairness hearing 13 in person or through an attorney but are not required to do so. (Id. at 21-22.) 14 DISCUSSION 15 A class action settlement agreement must be fair, adequate, and reasonable. Fed. R. Civ. 16 P. 23(e)(2). Where, as here, parties reach an agreement before class certification, “courts must 17 peruse the proposed compromise to ratify both the propriety of the certification and the fairness of 18 the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). If the court 19 preliminarily certifies the class and finds the settlement appropriate after “a preliminary fairness 20 evaluation,” then the class will be notified, and a final fairness hearing scheduled to determine if 21 the settlement is fair, adequate, and reasonable pursuant to Rule 23. Villegas v. J.P. Morgan 22 Chase & Co., No. CV 09-00261 SBA (EMC), 2012 WL 5878390, at *5 (N.D. Cal. Nov. 21, 23 2012). 24 Similarly, court approval is generally required for settlement of FLSA collective actions. 25 See Camilo v. Ozuna, No. 18-cv-02842-VKD, 2019 WL 2141970, at *6 (N.D. Cal. May 16, 2019). 26

27 12 The Notice emphasizes, however, that individuals with questions regarding the settlement 1 However, Rule 23 class actions and FLSA collective actions are different proceedings that 2 “impose distinct requirements.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 (9th Cir. 3 2018) (noting that class actions and FLSA collective actions “are creatures of distinct texts— 4 collective actions of [29 U.S.C. § 216(b)] and class actions of Rule 23—that impose distinct 5 requirements”). This is because conditional certification of a collective action under the FLSA— 6 unlike conditional certification of a class action under Rule 23—“plays no . . . gatekeeping role” 7 and “does not produce a class with an independent legal status or join additional parties to the 8 action” who must then opt out of the suit. Id. (internal quotation marks, alterations, and citation 9 omitted). Instead, putative members of an FLSA collective action must affirmatively opt-in and 10 consent to be bound by a final judgment in the action. See id. at 1101, 1105 (“The sole 11 consequence of a successful motion for preliminary certification is the sending of court-approved 12 written notice to workers who may wish to join the litigation as individuals.”) (internal quotation 13 marks and citation omitted). 14 Thus, the Court addresses conditional certification of the class action and FLSA collective 15 action separately. 16 I. Conditional Certification of the Settlement Class 17 Class actions must meet the following requirements for certification: 18 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the 19 class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the 20 representative parties will fairly and adequately protect the interests of the class. 21 22 Fed. R. Civ. P. 23(a). In addition to meeting the requirements of Rule 23(a), a putative class 23 action must also meet one of the conditions outlined in Rule 23(b)—as relevant here, the condition 24 that “questions of law or fact common to class members predominate over any questions affecting 25 only individual members, and that a class action is superior to other available methods for fairly 26 and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Prior to certifying the 27 class, the Court must determine that Plaintiff has satisfied his burden of demonstrating that the 1 A. Rule 23(a) 2 The Rule 23(a) factors are satisfied. First, “there are approximately 900 individuals who 3 fall in the Settlement Class.”13 (Dkt. No. 37-2 ¶ 15.) The putative class thus satisfies the 4 numerosity requirement. See Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 536 (N.D. Cal. 5 2012) (“While there is no fixed number that satisfies the numerosity requirement, as a general 6 matter, a class greater than forty often satisfies the requirement, while one less than twenty-one 7 does not.”). 8 Second, the commonality requirement is satisfied because there are common questions of 9 law and fact arising out of Ricoh’s allegedly unlawful employment practices that effected all 10 putative class members, who worked for Ricoh in California performing the same or similar work 11 during the same time period. See Bellinghausen v. Tractor Supply Co., 303 F.R.D. 611, 617 (N.D. 12 Cal. 2013) (finding commonality requirement satisfied where class members were subject to the 13 same challenged policies and procedures). Third, the typicality requirement is similarly satisfied 14 because Plaintiff’s claims challenge a course of conduct that applied to all putative class members, 15 and thus, all members suffered the same or similar injury. See Hanon v. Dataproducts Corp., 976 16 F.2d 497, 508 (9th Cir. 1992) (“The test of typicality is whether other members have the same or 17 similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, 18 and whether other class members have been injured by the same course of conduct.”); see also 19 Bellinghausen, 303 F.R.D. at 617 (finding the typicality requirement satisfied because the named 20 plaintiff “allege[d] that he, like the other class members, worked for [d]efendant in California 21 during the class period and was subject to the same wage-and-hour policies and procedures at 22 issue in [the] litigation”). 23 Finally, Plaintiff and class counsel appear to be adequate representatives of the class. 24 Plaintiff was employed by Defendants during the class period and allegedly injured by the same 25 course of conduct common to all putative class members; thus, Plaintiff’s interest in this litigation 26

27 13 Of these 900, approximately 700 “fall into the FLSA Collective.” (Dkt. No. 37-2 at ¶ 16.) As 1 is aligned with that of the class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 594-95 2 (1997) (“Representatives must be part of the class and possess the same interest and suffer the 3 same injury as the class they seek to represent.”). Plaintiff’s counsel has experience litigating 4 “well over 150 class, collective and representative actions and complex commercial matters,” and 5 “has served as class counsel, lead counsel and co-lead counsel in a majority of the matters.” (Dkt. 6 No. 37-2 ¶ 58.) Thus, it appears that Plaintiff’s counsel is “qualified, experienced, and generally 7 able to conduct the class action litigation.” See Bellinghausen, 303 F.R.D. at 617. 8 B. Rule 23(b)(3) 9 As previously discussed, Rule 23(b)(3) requires establishing the predominance of common 10 questions of law or fact and the superiority of a class action relative to other available methods for 11 the fair and efficient adjudication of the controversy. Rule 23(b)(3) includes the following 12 nonexhaustive list of factors pertinent to the predominance and superiority analysis: 13 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature 14 of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of 15 concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 16 17 Fed. R. Civ. P. 23(b). The Court concludes that there are no predominance or superiority concerns 18 because the challenged policies are common to all class members. 19 1. Predominance 20 Rule 23(b)(3) first requires “predominance of common questions over individual ones” 21 such that “the adjudication of common issues will help achieve judicial economy.” Valentino v. 22 Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). This “inquiry focuses on the 23 relationship between the common and individual issues.” Vinole v. Countrywide Home Loans, 24 Inc., 571 F.3d 935, 944 (9th Cir. 2009) (internal quotation marks and citation omitted). In 25 particular, the predominance requirement “tests whether proposed classes are sufficiently cohesive 26 to warrant adjudication by representation.” Amchem, 521 U.S. at 594. When common questions 27 “present a significant aspect of the case [that] can be resolved for all members of the class with a 1 an individual basis.” Delagarza v. Tesoro Ref. & Mktg. Co., No. C-09-5803 EMC, 2011 WL 2 4017967, at *10 (N.D. Cal. Sept. 8, 2011) (internal quotation marks and citation omitted). 3 The Court is satisfied that the core common questions in this case—the lawfulness of 4 Ricoh’s policies and practices regarding compensation, meal and rest breaks, expense 5 reimbursement, accrual and payment of sick leave, wage statements, and maintenance of records, 6 among others—predominate over any differences regarding its implementation of those policies 7 with respect to individual employees. Accordingly, the Court concludes that common questions of 8 law and fact predominate. 9 2. Superiority 10 A class action is a superior means of adjudicating a dispute “[w]here classwide litigation of 11 common issues will reduce litigation costs and promote greater efficiency.” Valentino, 97 F.3d at 12 1234. In evaluating superiority, “courts consider the interests of the individual members in 13 controlling their own litigation, the desirability of concentrating the litigation in the particular 14 forum, and the manageability of the class action.” Hunt v. Check Recovery Sys., Inc., 241 F.R.D. 15 505, 514 (N.D. Cal. 2007), modified, 2007 WL 2220972 (N.D. Cal. Aug. 1, 2007), aff’d sub nom., 16 Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137 (9th Cir. 2009). A class action is superior to 17 individual litigation in this matter for several reasons. 18 First, there is no indication that members of the proposed class have a strong interest in 19 individual litigation or an incentive to pursue their claims individually, given the amount of 20 damages likely to be recovered relative to the resources required to prosecute such an action. See 21 Chavez v. Blue Sky Nat. Beverage Co., 268 F.R.D. 365, 379 (N.D. Cal. 2010) (evaluating 22 superiority under Rule 23(b)(3) and noting that “the class action is superior to maintaining 23 individual claims for a small amount of damages”); see also Gentry v. Super. Ct., 42 Cal. 4th 443, 24 457 (2007) (noting that “individual awards in wage-and-hour cases tend to be modest”), 25 abrogation on other grounds recognized in Williams v. Super. Ct., 3 Cal. 5th 531, 558 (2017). 26 Second, any concerns over manageability of the class action in this case would not weigh in favor 27 of individual litigation given that Ricoh’s liability to “class members depends on common proof” 1 Servs., Inc., 242 F. Supp. 3d 910, 936 (N.D. Cal. 2017) (recognizing as legitimate the defendant’s 2 “apprehension regarding manageability,” but finding it “insufficient to tip the scales away from 3 the superiority of proceeding as a class when [the defendant’s] liability to over 100 class members 4 depends on common proof”). Finally, class actions are preferred in wage-and-hour actions when 5 individual employees may forgo pursuing their claims due to fear of retaliation. See Williams, 3 6 Cal. 5th at 558 (noting that fear of retaliation cuts in favor of “facilitating collective action so that 7 individual employees need not run the risk of individual suits”). 8 Accordingly, the Court concludes that conditional certification of the class for settlement 9 purposes is proper. 10 II. Conditional Certification of FLSA Collective Action 11 Under the FLSA, an employee may bring a “collective action” on behalf of other 12 “similarly situated” employees. 29 U.S.C. § 216(b). Thus, a district court’s approval of 13 preliminary certification of an FLSA collective action is “conditioned on a preliminary 14 determination that the collective as defined in the complaint satisfies the ‘similarly situated’ 15 requirement of section 216(b).” Campbell, 903 F.3d at 1109 (citing Genesis Healthcare Corp. v. 16 Symczyk, 569 U.S. 66, 75 (2013)). A party plaintiff and putative collective members are “similarly 17 situated, and may proceed in a collective, to the extent they share a similar issue of law or fact 18 material to the disposition of their FLSA claims.” Id. at 1117. 19 “The limited statutory requirements of a collective action are independent of, and unrelated 20 to, the requirements for class action under Rule 23, and, by omitting most of the requirements in 21 Rule 23 for class certification, necessarily impose a lesser burden.” Id. at 1112 (internal quotation 22 marks and citations omitted). The court’s “level of consideration is lenient” and focuses on 23 whether the pleadings establish a “reasonable basis” for determining that the putative members are 24 similarly situated. Id. “A grant of preliminary certification results in the dissemination of a court- 25 approved notice to the putative collective action members, advising them that they must 26 affirmatively opt in to participate in the litigation.” Id. 27 Here, the complaint makes a plausible showing that Plaintiff is “similarly situated” to the 1 compromise the FLSA Collective were subject to the same allegedly unlawful wage-and-hour 2 policies. (See Dkt. No. 29 at ¶¶ 21-44, 186-96.) It is thus plausible that there are “similar issue[s] 3 of law or fact material to the disposition” of the FLSA claim. See Campbell, 903 F.3d at 1117. 4 Accordingly, the Court grants conditional certification of the FLSA collective action. 5 III. Preliminary Approval of the Settlement Agreement 6 In determining whether a class action settlement agreement14 is fair, adequate, and 7 reasonable to all concerned, courts generally consider the following factors: 8 (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of 9 maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the 10 stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the 11 class members of the proposed settlement. 12 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (quoting Churchill 13 Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)). However, when “a settlement 14 agreement is negotiated prior to formal class certification, consideration of these eight . . . factors 15 alone is” insufficient. Id. In such cases, courts must not only consider the above factors, but also 16 ensure that the settlement did not result from collusion among the parties. Id. at 947. Because 17 collusion “may not always be evident on the face of a settlement, . . . [courts] must be particularly 18 vigilant not only for explicit collusion, but also for more subtle signs that class counsel have 19 allowed pursuit of their own self-interests and that of certain class members to infect the 20 negotiations.” Id. The Bluetooth court identified three such signs: 21 (1) when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but 22 class counsel are amply rewarded; 23 (2) when the parties negotiate a “clear sailing” arrangement providing 24 14 Courts must examine a class action settlement “as a whole, rather than the individual component 25 parts, . . . for overall fairness.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9 th Cir. 1998) (noting that “[t]he settlement must stand or fall in its entirety”). That said, the Court must also 26 determine whether the Settlement Agreement “is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.” See Camilo, 2019 WL 2141970, at *10 (citing Lynn’s Food 27 Stores, Inc., 679 F.2d 1350, 1353 (11th Cir. 1982)). Here, there is no indication that preliminary for the payment of attorneys’ fees separate and apart from class funds, 1 which carries the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an 2 unfair settlement on behalf of the class; and 3 (3) when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund. 4 5 Id. (internal quotation marks and citations omitted). 6 The Court cannot, however, fully assess such factors until the final approval hearing; thus, 7 “a full fairness analysis is unnecessary at this stage.” See Alberto v. GMRI, Inc., 252 F.R.D. 652, 8 665 (E.D. Cal. 2008) (internal quotation marks and citation omitted). At the preliminary approval 9 stage, “the settlement need only be potentially fair.” Acosta v. Trans Union, LLC, 243 F.R.D. 377, 10 386 (C.D. Cal. May 31, 2007). Preliminary approval is thus appropriate where “the proposed 11 settlement appears to be the product of serious, informed, non-collusive negotiations, has no 12 obvious deficiencies, does not improperly grant preferential treatment to class representatives or 13 segments of the class, and falls within the range of possible approval.” In re Tableware Antitrust 14 Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (internal quotation marks and citation 15 omitted). 16 A. The Fairness Factors 17 1. Settlement Process 18 The first factor concerns “the means by which the parties arrived at settlement.” Harris v. 19 Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011). 20 To approve a proposed settlement, a court must be satisfied that the parties “have engaged in 21 sufficient investigation of the facts to enable the court to intelligently make . . . an appraisal of the 22 settlement.” Acosta, 243 F.R.D. at 396. Courts thus have “an obligation to evaluate the scope and 23 effectiveness of the investigation plaintiffs’ counsel conducted prior to reaching an agreement.” 24 Id. 25 Plaintiff submits the declaration of his counsel, R. Craig Clark, in support of the instant 26 motion. (Dkt. No. 37-2; see also Dkt. No. 42-1 (supplemental declaration).) Mr. Clark attests that 27 Plaintiff’s counsel “conducted a thorough investigation into the facts and legal issues” in the case 1 provided; (2) propounding written discovery on Ricoh consisting of “eleven interrogatories and 2 nine requests for production of documents,” which “yielded hundreds of pages of documents 3 including, but not limited to, policy and training documents and Plaintiff’s time and payroll 4 records”; (3) interviewing percipient witnesses; (4) obtaining “information and documents 5 exchanged pursuant to the ‘mediation privilege,” which included a 20% sample of employee time 6 records and wage statements and reimbursement data”; and (5) reviewing the documents and 7 information “to evaluate the merits of Plaintiff’s claims and Ricoh’s projected liability.” (Dkt. No. 8 37-2 at ¶ 52.) 9 The parties then “attended a full day of private mediation” with Ms. Klerman, “a well- 10 respected and experienced class action mediator.” (Id. at ¶ 11.) The parties engaged in “extensive 11 negotiations” assisted by Ms. Klerman and presented their “respective positions on the legal and 12 factual issues raised, as well as the asserted liability.” (Id.) The parties “reach[ed] a settlement in 13 principle” at the mediation, and afterwards “continued to negotiate the terms and conditions of the 14 settlement” before reducing their agreement to writing. (Id.) 15 The use of an experienced private mediator and presence of discovery supports the 16 conclusion that Plaintiff “armed with sufficient information about the case” to broker a fair 17 settlement. See Acosta, 243 F.R.D. at 396; see also Villegas, 2012 WL 5878390, at *6 (finding 18 two sessions of private mediation before an experienced mediator, which were “informed by . . . 19 discovery,” sufficient to “support the conclusion that the [p]laintiff was appropriately informed in 20 negotiating a settlement”). Further, since Ricoh removed this action to federal court the parties 21 have filed six joint case management conference statements, (see Dkt. Nos. 11, 20, 23, 25, 32, 34), 22 and participated in a case management conference before the undersigned, (see Dkt. No. 12). Mr. 23 Clark attests that parties’ settlement negotiations have at all times been “adversarial, non- 24 collusive, and at arm’s length.” (Dkt. No. 37-2 at ¶ 11; see also Dkt. No. 37-1 at ¶ 9 (noting that 25 the Settlement Agreement “represents a compromise and settlement of highly disputed claims and 26 defenses, as Plaintiff believes his asserted claims have merit and Defendants believe the defenses 27 they asserted to such claims [also] have merit”).) 1 at ¶¶ 10-14.) Mr. Clark attests that in reaching the settlement amount, Plaintiff considered several 2 factors, including Ricoh’s defenses, “the uncertain outcome and risks of litigating complex 3 actions, such as achieving and maintaining class certification and addressing manageability issues; 4 issues of proof; the time and expense of litigating the case through trial;” and the likelihood of 5 recovery under the PAGA. (Id. at ¶ 15.) Thus, there is no indication that Plaintiff rushed into 6 settlement or was otherwise ill-informed about the case and could not “reasonably assess its 7 strengths and value.” See Acosta, 243 F.R.D. 396. 8 On balance, the Settlement Agreement appears to be the product of serious, informed, non- 9 collusive negotiations. This factor thus weighs in favor of preliminary approval. 10 2. Obvious Deficiencies 11 The Court must next consider “whether there are obvious deficiencies in the Settlement 12 Agreement.” See Harris, 2011 WL 1627973, at *8. Here, the Court finds no obvious deficiencies 13 on the face of the Settlement Agreement or the stipulated amendment to same that would preclude 14 preliminary approval. 15 3. Lack of Preferential Treatment 16 The Court must next examine whether the Settlement Agreement “provides preferential 17 treatment to any class member.” See Villegas, 2012 WL 5878390, at *7. Under the Agreement, 18 each Class Member may claim their pro rata share of the Net Settlement Amount based on their 19 respective number of workweeks worked during the class period. (Dkt. No. 37-1 at ¶ 63(a).) The 20 Agreement further provides that Plaintiff will also receive a $10,000 service award. (Id. at ¶ 21 62(c).) 22 “Incentive awards are fairly typical in class action cases.” Rodriguez v. W. Publ’g Corp., 23 563 F.3d 948, 958 (9th Cir. 2009) (distinguishing incentive awards from incentive agreements, the 24 latter of which are “entered into as part of the initial retention of counsel” and “put class counsel 25 and the contracting class representatives into a conflict position from day one”). Service awards 26 “are intended to compensate class representatives for work done on behalf of the class, to make up 27 for financial or reputation risk undertaken in bringing the action, and, sometimes to recognize their 1 viewed more favorably than incentive agreements, excessive awards “may put the class 2 representative in a conflict with the class and present a considerable danger of individuals bringing 3 cases as class actions principally to increase their own leverage to attain a remunerative settlement 4 for themselves and then trading on that leverage in the course of negotiations.” Id. at 960 (internal 5 quotation marks and citation omitted). 6 Plaintiff asserts that the service award is justified because he “has given up more than any 7 other class member . . . [by] agree[ing] to release all known and unknown claims against 8 [Defendants].” (Dkt. No. 37 at 30.) The Court notes, however, that the amount requested is 9 higher than amounts typically awarded by courts in this Circuit. See, e.g., In re Mego Fin. Corp. 10 Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000) (approving $5,000 to two plaintiff representatives of 11 5,400 potential class members in $1.75 million settlement); Wren v. RGIS Inventory Specialists, 12 No. C-06-05778 JCS, 2011 WL 1230826, at *37 (N.D. Cal. Apr. 1, 2011) (approving $5,000 13 incentive awards to each of 24 named plaintiffs in $27,000,000 settlement); Hopson v. 14 Hanesbrands, Inc., No. CV-08-0844 EDL, 2009 WL 928133, at *10 (N.D. Cal. Apr. 3, 2009) 15 (approving $5,000 award to one member of 217-member class in $408,420 settlement). Indeed, 16 Plaintiff’s counsel recognizes that the amount “exceed[s] the typical incentive awards awarded in 17 the Ninth Circuit,” and attests that he “will address the propriety of the Service Award in the 18 papers regarding final approval.” (Dkt. No. 37-2 at ¶ 33 n.4; see also Dkt. No. 37 at 16 (“The 19 appropriateness of the Service Award will be addressed in conjunction with Plaintiff’s motion for 20 attorneys’ fees, costs[,] and service award.”).) 21 Accordingly, the Court will defer ruling on the appropriateness of the amount of the 22 requested Service Award until final approval. At this stage there is no indication that the Service 23 Award in general constitutes “preferential treatment” that would defeat preliminary approval. 24 4. Range of Possible Approval 25 In determining whether the Settlement Agreement “falls within the range of possible 26 approval,” the Court must focus on “substantive fairness and adequacy” and consider Plaintiff’s 27 “expected recovery balanced against the value of the settlement offer.” See Tableware, 484 F. 1 the maximum amount of damages recoverable in a successful litigation and compare that with the 2 settlement amount” in determining “the value of the settlement against the expected recovery at 3 trial”) (internal quotation marks and citation omitted). “[I]t is well-settled law that a proposed 4 settlement may be acceptable even though it amounts only to a fraction of the potential recovery 5 that might be available to class members at trial.” Nat’l Rural Telecomms. Coop. v. DIRECTV, 6 Inc., 221 F.R.D. 523, 527 (C.D. Cal. 2004). 7 Here, Mr. Clark attests that in reaching the proposed settlement, Plaintiff’s counsel 8 considered: 9 the information and documents obtained in the litigation and/or otherwise exchanged pursuant to the mediation privilege; the 10 experience of the named Plaintiff; the strengths and weaknesses of the case; the size of the class/collective; the uncertain outcome and risk 11 of litigating complex actions; such as this Action, including, but not limited to, achieving and maintaining class certification, addressing 12 manageability issue, and issues of proof at trial; the time and expense in litigating a case through trial; Ricoh’s defenses; the unsettled law 13 as to whether PAGA allows for the recovery of unpaid wages under Labor Code § 558, and the non-reversionary nature of the settlement. 14 15 (Dkt. No. 37-2 at ¶ 53.) Mr. Clark further attests that based on the documents obtained and 16 information available, Ricoh’s exposure in this case is “approximately $20,285,268.80 for all 17 claims” in this case, which “includes approximately $12,021,318.80 for unpaid wages 18 ($8,014,212.53 for off-the-clock work and $4,007,106.27 for meal and rest period violations) and 19 about $8,263,950 in civil penalties under the [PAGA].” (Dkt. No. 42-1 at ¶ 9.) Thus, the Gross 20 Settlement Amount of $2.2 million “represents approximately 10.85% of the monetary relief 21 sought” in this case. (Id. at ¶ 16.) 22 As previously discussed, Mr. Clark’s supplemental declaration describes Ricoh’s 23 arguments and defenses regarding the claims at issue, as well as Ricoh’s assertions that 24 “individualized inquiries pertaining to each putative class member’s experience would 25 predominate” if this case were litigated. (See id. at ¶¶ 10-14.) Mr. Clark attests that the settlement 26 amount is “reasonable in light of all the facts surrounding the claims and defenses,” and describes 27 how “[t]he valuation of Plaintiff’s claims were . . . discounted” in light of specific risks and costs 1 rather than settlement presents risks to Plaintiff and putative class members regarding any 2 recovery. Thus, in sum, the risks and costs of continued litigation at least balance the benefit of 3 the estimated payout to class members, warranting preliminary approval and comment from class 4 members. 5 *** 6 Accordingly, consideration of the fairness factors warrants preliminary approval of the 7 Settlement Agreement. 8 B. Class Notice Plan 9 For any class certified under Rule 23(b)(3), class members must be afforded “the best 10 notice that is practicable under the circumstances, including individual notice to all members who 11 can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Such notice must clearly 12 state the following: 13 (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may 14 enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests 15 exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 16 23(c)(3). 17 Fed. R. Civ. P. 23(c)(2)(B). “Notice is satisfactory if it generally describes the terms of the 18 settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come 19 forward and be heard.” Churchill, 361 F.3d at 575 (internal quotation marks and citation omitted). 20 The notice requirements under Rule 23(c) are met.15 The modified Notice describes the 21 allegations and claims in plain language, defines a class member and FLSA Collective member, 22 includes contact information for both Plaintiff’s and Defendants’ counsel and the Claims 23 Administrator, and summarizes the settlement amount and its distribution. The Notice further 24 describes the options available to class members, including instructions for opting out of the 25

26 15 In addition to the requirements under Rule 23(c), the Notice complies with the Northern District’s Procedural Guidance for Class Action Settlements, available at 27 https://www.cand.uscourts.gov/ClassActionSettlementGuidance. Indeed, Plaintiff’s motion for 1 settlement and filing an objection. The Notice also informs class members that receiving a share 2 of the class settlement will release certain claims against certain parties, and that opting-in to the 3 FLSA Collective will release the FLSA claim. The Notice informs class members that they may 4 appear at the final fairness hearing in person or through an attorney. It also directs class members 5 to a website with more information, including the Settlement Agreement and pleadings. (See 6 generally Dkt. No. 42-2, Ex. A at 12-23.) Finally, the Notice adequately advises how the class can 7 review Class Counsel’s motion for attorneys’ fees and costs prior to the final approval hearing. 8 See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 995 (9th Cir. 2010) (holding that 9 class members must “have an opportunity to oppose class counsel’s fee motion”). 10 There are two errors, however, regarding the modified Notice. First, the Notice reflects the 11 amended amount paid to the Claims Administrator ($35,000 instead of $30,000 (see Dkt. No. 42-2 12 at 4)), but the Notice’s discussion of the Net Settlement Amount does not reflect that amendment. 13 Instead, the Notice provides the previous Net Settlement Amount of $1,281,666.67. (See Dkt. No. 14 42-2, Ex. A at 16 (“The remaining portion of the Gross Settlement Amount, the Net Settlement 15 Amount, is estimated to be one million two hundred eighty-one thousand six hundred sixty-six 16 dollars and sixty-seven cents ($1,281,666.67).”).) Thus, the Notice must be corrected to reflect the 17 modified Net Settlement Amount resulting from the additional $5,000 paid to the Claims 18 Administrator—$1,276,666.67. Second, the “Excluding Yourself From The Settlement Class” 19 section provides that individuals opting-out of the settlement must: “clearly state that [they] are 20 requesting to be included from the settlement.” (See id. at 19 ¶ 18(2) (emphasis added).) The 21 Notice must be corrected to state “excluded” instead of “included.” 22 The notice plan itself is adequate. Within 14 days of preliminary approval Defendant will 23 provide the Claims Administrator with the previously discussed Class List containing pertinent 24 information regarding each putative class member. The Settlement Administrator must then mail 25 the Notice to class members within 14 days, and also email the Notice if an email address is 26 available. Prior to mailing the Notice, the Claims Administrator will run the list of class members 27 through the United States Postal Service’s “National Change of Address database,” and if any 1 address” by rechecking the database and using “skip traces, and other reasonable methods” to 2 attempt to identify a valid address and re-mail the Notice. (Dkt. No. 37-1 at ¶ 68(a)-(d).) After 3 issuing the Notices, the Claims Administrator will provide weekly status reports to both Plaintiff’s 4 and Defendants’ counsel detailing the number of Notices mailed, returned as undeliverable, and 5 re-mailed. The weekly status reports will also include “the number of timely and valid” requests 6 for exclusion, notices of objection, and FLSA Claim Forms received. (Id. at ¶ 68(e).) Class 7 members have 45 days from the mailing of the Notice to either opt out of the Settlement 8 Agreement or file a notice of objection. 9 These procedures appear sufficient to ensure that class members receive adequate notice of 10 the settlement and an opportunity to opt-out or object. Accordingly, the Notice and notice plan 11 support preliminary approval. Plaintiff must incorporate the corrections discussed above, 12 however, prior to mailing the Notice. 13 C. Attorneys’ Fees 14 Rule 23(h) provides for an award of attorneys’ fees and costs in a certified class action 15 where it is “authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). However, 16 “courts have an independent obligation to ensure that the award, like the settlement itself, is 17 reasonable, even if the parties have already agreed to an amount.” Bluetooth, 654 F.3d at 941; see 18 also Staton, 327 F.3d at 963 (“[A] district court must carefully assess the reasonableness of a fee 19 amount spelled out in a class action settlement agreement.”). Where a settlement produces a 20 common fund for the benefit of the entire class, courts have discretion to employ either the 21 lodestar method or the percentage-of-recovery method to determine whether the requested fees are 22 reasonable. In re Mercury, 618 F.3d at 992. The Ninth Circuit has established a benchmark of 25 23 percent of the common fund for attorneys’ fees calculations under the latter method. See Powers 24 v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (“We have . . . established twenty-five percent of 25 the recovery as a ‘benchmark’ for attorneys’ fees calculations under the percentage-of-recovery 26 approach.”). Although “[a] district court may depart from the benchmark . . ., it must be made 27 clear by the district court how it arrives at the figure ultimately awarded.” Id. at 1256-57. 1 reasonably expended on the litigation (as supported by adequate documentation) by a reasonable 2 hourly rate for the region and for the experience of the lawyer.” Bluetooth, 654 F.3d at 941. The 3 resulting figure may be adjusted upward or downward to account for several factors, “including 4 the quality of representation, the benefit obtained for the class, the complexity and novelty of the 5 issues presented, and the risk of nonpayment.” Id. at 941-42 (internal quotation marks and citation 6 omitted). The party requesting fees bears the burden “of submitting billing records to establish 7 that the number of hours it requested are reasonable,” Gonzalez v. City of Maywood, 729 F.3d 8 1196, 1202 (9th Cir. 2013), as well as “produc[ing] satisfactory evidence—in addition to the 9 attorneys’ own affidavits—that the requested rates are in line with those prevailing in the 10 community for similar services by lawyers of reasonably comparable skill, experience and 11 reputation,” Camancho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (internal 12 quotation marks and citation omitted). The Ninth Circuit recommends that whether the lodestar or 13 percentage-of-recovery method is used, the district court perform a cross-check using the other 14 method to confirm the reasonableness of the fee (e.g., if the percentage-of-recovery method is 15 applied, a cross-check with the lodestar method will reveal if the amount requested is 16 unreasonable in light of the hours reasonably expended). See Bluetooth, 654 F.3d at 944-45. 17 As previously discussed, the Settlement Agreement provides for a maximum award of 18 $733,333.33 to Class Counsel in fees (one-third of the Gross Settlement Amount). (Dkt. No. 37-1 19 at ¶ 62(d).) Ricoh does not oppose Plaintiff’s request. (Id.) If the Court does not award the entire 20 amount requested, “the difference shall be included in the Net Settlement Amount” and distributed 21 to Class Members. (Id.) Plaintiff’s motion asserts that he “will address the propriety of the Class 22 Counsel Fee Award and Class Counsel Costs Award in his motion for attorneys’ fees, costs, and 23 service award.” (Dkt. No. 37 at 16; see also Dkt. No. 37-2 at ¶ 38 n.7 (attesting that “[a] non- 24 privileged copy of [Plaintiff’s counsel’s] billing records will be submitted in conjunction with 25 Plaintiff’s motion for approval of an award of attorneys’ fees”).) 26 Accordingly, Plaintiff shall submit a motion for attorneys’ fees including declarations and 27 detailed billing records so that the Court may determine an appropriate lodestar figure, and to 1 at 995 (holding that class members must “have an opportunity to oppose class counsel’s fee 2 motion” before the deadline for filing objections set forth in the class notice). 3 D. Costs 4 “There is no doubt that an attorney who has created a common fund for the benefit of the 5 class is entitled to reimbursement of reasonable litigation expenses from that fund.” Ontiveros v. 6 Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (internal quotation marks and citation omitted). To 7 that end, district courts in this circuit regularly award litigation costs and expenses in wage-and- 8 hour class actions. See, e.g., id.; Nwabueze v. AT&T Inc., No. C 09-01529 SI, 2014 WL 324262, 9 at *2 (N.D. Cal. Jan. 29, 2014); LaGarde v. Support.com, Inc., No. C 12-0609, 2013 WL 1283325, 10 at *13 (N.D. Cal. Mar. 26, 2013). Here, the Settlement Agreement provides that Plaintiff’s 11 counsel may obtain up to $20,000 in costs. Plaintiff’s counsel is instructed to submit an itemized 12 summary of costs with its motion for attorneys’ fees so that the Court can determine whether such 13 costs are reasonable litigation expenses incurred for the benefit of the class. 14 CONCLUSION 15 For the reasons stated above, the Court GRANTS preliminary approval of the class and 16 collective action settlement as follows: 17 1. The Clark Law Group and United Employees Law Group are appointed as Class 18 Counsel. 19 2. The Notice shall be corrected as set forth in this Order prior to mailing and mailed 20 to class members in accordance with the notice plan by December 19, 2019. 21 3. On or before January 2, 2020, Plaintiff shall file with the Court a copy of the 22 Notice mailed to class members. 23 4. The deadline for class members to submit a Request for Exclusion shall be 45- 24 days after the initial mailing of the Notice, and no later than February 2, 2020. 25 5. The deadline for class members to object to the Settlement Agreement shall be 45- 26 days after the initial mailing of the Notice, and no later than February 2, 2020. 27 6. Class Counsel shall file a motion for attorneys’ fees and costs by February 20, 1 7. Plaintiff shall file his Motion for Final Approval by February 20, 2020. The 2 motion shall include a copy of the Notice ultimately sent to the class along with the 3 other information, as available, suggested by the Northern District of California 4 Procedural Guidance for Class Action Settlements. 5 8. The deadline for class members to object to Class Counsel’s motion for attorneys’ 6 fees and costs shall be March 12, 2020. 7 9. The parties shall appear before this Court for a final approval hearing on March 26, 8 2020 at 9:00 a.m. in Courtroom F, 450 Golden Gate Ave., San Francisco, 9 California. 10 IT IS SO ORDERED. 11 Dated: November 25, 2019 4 JAGQUELINE SCOTT CORL United States Magistrate Judge

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