1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CARLOS CALDERON GRANADOS, Case No.: 23-cv-01001-H-VET individually and on behalf of himself and 11 all others similarly situated, ORDER: 12 Plaintiff, (1) CERTIFYING CLASS FOR 13 v. SETTLEMENT PURPOSES; 14 HYATT CORPORATION, a Delaware (2) PRELIMINARILY APPROVING 15 Corporation, doing business as ALILA CLASS ACTION SETTLEMENT; MAREA BEACH RESORT ENCINITAS, 16 and DOES 1-50, inclusive, (3) APPOINTING CLASS 17 Defendants. REPRESENTATIVE, CLASS 18 COUNSEL, AND SETTLEMENT ADMINISTRATOR; 19
20 (4) APPROVING CLASS NOTICE; AND 21
22 (5) SCHEDULING FINAL APPROVAL HEARING 23
24 [Doc. No. 17.]
25 On February 15, 2024, Plaintiff Carlos Calderon Granados filed an unopposed 26 motion for preliminary approval of class action settlement. (Doc. No. 17.) The Court held 27 a hearing on Plaintiff’s motion on April 8, 2024. Mitchell J. Murray appeared for Plaintiff 28 1 Granados. Michael Afar appeared for Defendant Hyatt Corporation (“Hyatt”). For the 2 reasons below, the Court grants Plaintiff’s motion and sets a schedule for further 3 proceedings. 4 Background 5 I. Factual and Procedural Background 6 This is a wage and hour class action. Plaintiff is a former employee of Defendant 7 Hyatt, who worked at the Alila Marea Beach Resort Encinitas as a massage therapist from 8 approximately March 2021 until August 2021. (Doc. No. 17-2, Hawkins Decl. ¶ 3.) 9 Plaintiff alleges that Defendant’s uniform policies and practices as to timekeeping, meal 10 periods, rest periods, wage payments, minimum wages, overtime, wage statements, and 11 pay at termination applicable to all non-exempt employees violate California law. (Id. ¶ 12 38.) 13 On August 11, 2022, Plaintiff filed a complaint against Defendant in the Superior 14 Court of California for the County of San Diego. (Doc. No. 1-2, Compl.) On October 18, 15 2022, Plaintiff filed a second action against Defendant in state court, which asserted a 16 standalone claim under California’s Private Attorneys General Act (“PAGA”), California 17 Labor Code § 2698 et seq. (Doc. No. 17-2, Hawkins Decl. ¶ 5; Doc. No. 1, Notice of 18 Removal ¶ 4.) On April 10, 2023, the state court consolidated the two actions for all 19 purposes. (Doc. No. 17-2, Hawkins Decl. ¶ 8; Doc. No. 1, Notice of Removal ¶ 5.) On 20 April 27, 2023, Plaintiff filed a first amended complaint (“FAC”) against Defendant in 21 state court. (Doc. No. 1-3, FAC.) In the FAC, Plaintiff alleges causes of action for: (1) 22 failure to pay minimum wages; (2) failure to accurately pay overtime wages; (3) failure to 23 provide lawful meal periods; (4) failure to authorize and permit lawful rest periods; (5) 24 failure to timely pay wages due and payable during employment; (6) failure to timely pay 25 wages owed upon separation from employment; (7) knowing and intentional failure to 26 comply with itemized employee wage statement provisions; (8) violation of California’s 27 Unfair Competition Law (“UCL”); and (9) penalties under California’s Private Attorneys 28 General Act (“PAGA”), California Labor Code § 2698 et seq. (Id. ¶¶ 58-141.) 1 On May 31, 2023, Defendant removed the action from state court to the United 2 States District Court for the Southern District of California pursuant to 28 U.S.C. §§ 1441, 3 1446 on the basis of jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. 4 1332(d). (Doc. No. 1, Notice of Removal.) On May 31, 2023, Defendant filed an answer 5 to Plaintiff’s complaint. (Doc. No. 2.) 6 On November 17, 2023, Plaintiff filed a notice of settlement. (Doc. No. 12.) By the 7 present motion, Plaintiff moves for: (1) preliminary approval of the class action settlement 8 and release of claims; (2) approval of the proposed notice of settlement; (3) the scheduling 9 of a final approval hearing. (Doc. No. 17-1 at 1, 24.) 10 II. The Proposed Settlement 11 The settlement agreement defines the settlement class as: “all current and former 12 non-exempt, hourly employees working for Hyatt at the Alila Marea Beach Resort 13 Encinitas at any time between January 25, 2021, to January 5, 2024.” (Doc. No. 17-2, 14 Hawkins Decl. Ex. 1, Settlement at § 1.3.) 15 Under the settlement agreement, Defendant will pay a gross settlement amount of 16 $325,000. (Id. §§ 1.16, 5.1.) Each settlement class member will receive an individual 17 payment based on the following calculation: 18 Each Class Member’s potential share of the Net Settlement Amount will be calculated by dividing the number of Weeks Worked by the Class Member by 19 all Weeks Worked during the Class Period by all Class Members, multiplied 20 by the Net Settlement Amount [i.e., (individual Weeks Worked ÷ total Weeks Worked by Class Members) x Net Settlement Amount]. 21 (Id. § 5.7.1.) Upon full funding by Defendant of the sums owed under the settlement 22 agreement, class members will release “Defendant . . . from any and all claims, rights, 23 demands, charges, complaints, causes of action, obligations, or liability of any and every 24 kind between August 11, 2018, to January 5, 2024, for any and all claims that were raised 25 or could have been raised based on the factual allegations made in the operative First 26 Amended Consolidated Complaint.” (Id. § 6.1.) 27 Plaintiff has indicated that he intends to seek a class representative’s service payment 28 1 of up to $10,000.00 from the settlement fund. (Id. § 5.4.) Class counsel also intends to 2 request an attorneys’ fee award of $108,333.33, or one-third of the gross settlement fund, 3 as well as costs supported by adequate documentation in the amount up to $20,000. (Id. § 4 5.3.) 5 The parties selected CPT Group, Inc. be appointed to serve as the settlement 6 administrator. (Id. § 3.1.) The settlement administrator will mail the class notice to the 7 class via First Class U.S. Mail. (Id. § 3.4.) The settlement administrator will also issue the 8 distribution of the individual settlement payments to the class. (Id. §§ 5.8, 5.9.) Settlement 9 class members reserve the right to object or opt out of the settlement, except that they may 10 not opt out of the settlement of the PAGA claims. (Id. §§ 4.2.1, 4.2.2, 4.3.1.) See 11 O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1133 (N.D. Cal. 2016) (explaining 12 that “in a lawsuit which asserts a PAGA claims and seeks class certification for labor/wage 13 claims, even class members who opt out of the class [are] bound by an adverse PAGA 14 judgment or settlement” (citing Arias v. Superior Ct., 46 Cal. 4th 969, 986 (2009)). 15 Discussion 16 I. Class Certification 17 Plaintiff seeks to certify a class pursuant to Federal Rule of Civil Procedure 23(a) 18 and (b) for purposes of settlement. (Doc. No. 17-1 at 5-9.) The proposed settlement class 19 is defined as “all current and former non-exempt, hourly employees working for Hyatt at 20 the Alila Marea Beach Resort Encinitas at any time between January 25, 2021, to January 21 5, 2024.” (Doc. No. 17-2, Hawkins Decl. Ex. 1, Settlement § 1.3.) 22 A plaintiff seeking to certify a class under Rule 23(b)(3) must first satisfy the 23 requirements of Rule 23(a). Fed. R. Civ. P. 23(b); see Wal-Mart Stores, Inc. v. Dukes, 564 24 U.S. 338, 345 (2011). Once subsection (a) is satisfied, the purported class must then fulfill 25 the requirements of Rule 23(b)(3). Id. 26 A. Rule 23(a) Requirements 27 Rule 23(a) establishes that one or more plaintiffs may sue on behalf of class members 28 if all of the following prerequisites are met: (1) numerosity; (2) commonality; (3) typicality; 1 and (4) adequacy of representation. Fed. R. Civ. P. 23(a). 2 The numerosity prerequisite is met if “the class is so numerous that joinder of all 3 members is impracticable.” Fed. R. Civ. P. 23(a)(1). “In general, courts find the 4 numerosity requirement satisfied when a class includes at least 40 members.” Rannis v. 5 Recchia, 380 F. App’x 646, 651 (9th Cir. 2010); see also Hilsley v. Ocean Spray 6 Cranberries, Inc., No. 17-cv-02355-GPC-MDD, 2018 WL 6300479, *3 (S.D. Cal. Nov. 29, 7 2018) (“As a general rule, . . . classes of 40 or more are numerous enough.” (quoting Ikonen 8 v. Hartz Mtn. Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988))); West v. Cal. Servs. Bureau, 9 Inc., 323 F.R.D. 295, 303 (N.D. Cal. 2017) (a class of more than 40 “raises a presumption 10 of impracticability of joinder”). 11 Plaintiff states that Defendant’s payroll records show that the proposed settlement 12 class as of the date of the parties’ mediation contains approximately 464 class members. 13 (Doc. No. 17-1 at 5; Doc. No. 17-2, Hawkins Decl. ¶ 37.) As such, the numerosity 14 prerequisite is met here. See Rannis, 380 F. App’x at 651; Hilsley, 2018 WL 6300479, at 15 *3; West, 323 F.R.D. at 303. 16 The commonality prerequisite is met if there are “questions of law or fact common 17 to the class.” Fed. R. Civ. P. 23(a)(2). “A common question ‘must be of such a nature that 18 it is capable of classwide resolution—which means that determination of its truth or falsity 19 will resolve an issue that is central to the validity of each one of the claims in one stroke.’” 20 Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th 21 Cir. 2022) (quoting Wal-Mart, 564 U.S. at 350). “By contrast, an individual question is 22 one where members of a proposed class will need to present evidence that varies from 23 member to member.” Id. “[T]he key inquiry is not whether the plaintiffs have raised 24 common questions, ‘even in droves,’ but rather, whether class treatment will ‘generate 25 common answers apt to drive the resolution of the litigation.’” Abdullah v. U.S. Sec. 26 Assoc., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Wal-Mart, 564 U.S. at 350) 27 (emphasis removed). 28 Plaintiff argues that the proposed settlement class satisfies the commonality 1 requirement because the class’s claims for violation of California law are based on 2 Defendant’s uniform policies, practices, and procedures as to timekeeping, meal periods, 3 rest periods, wage payments, minimum wages, overtime, reimbursements, wage 4 statements, and pay at termination applicable to non-exempt employees. (Doc. No. 17-1 5 at 6.) Plaintiff further explains that the members of the proposed settlement class and 6 Plaintiff are all non-exempt employees working in the same hotel location, working under 7 the same set of unlawful policies and practices. (Id. at 7.) Plaintiff contends that the 8 common question here include: (1) whether Defendant paid class members at least 9 minimum wage for all hours worked; (2) whether Defendant knew or should have known 10 that class members were required to perform work off the clock; (3) whether Defendant 11 accurately calculated and paid all class members overtime premiums for overtime hours 12 worked; (4) whether Defendant accurately calculated class members’ regular rate; (5) 13 whether meal and/or rest period premiums were accurately paid at the regular rate; (6) 14 whether class members were provided with compliant rest and meal periods; (7) whether 15 Defendant was required to reimburse for expenses incurred; (8) whether Defendant had a 16 policy and practice of providing a 30-minute lawful uninterrupted meal break within the 17 first five hours of work and a second 30-minute uninterrupted meal break before the start 18 of the tenth hour of work; (9) whether Defendant authorized and permitted class members 19 to take a lawful net 10-minute uninterrupted rest periods for every major fraction of four 20 hours worked; (10) whether Defendant furnished class members with complete and 21 accurate itemized wage statements; and (11) whether Defendant paid class members all 22 wages at the termination of their employment. (Id. at 7-8.) These common questions raised 23 by Plaintiff are sufficient to satisfy the commonality requirement. 24 Typicality requires that “the claims or defenses of the representative parties [be] 25 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). When determining 26 whether the typicality prerequisite is met, courts will look at “whether other members have 27 the same or similar injury, whether the action is based on conduct which is not unique to 28 the named plaintiffs, and whether other class members have been injured by the same 1 course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) 2 (citation omitted). Importantly, the typicality inquiry focuses on “the nature of the 3 claim . . . of the class representative, and not . . . the specific facts from which it arose.” 4 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon, 976 5 F.2d at 508). 6 Here, Plaintiff and the members of the proposed settlement class are all non-exempt 7 employees of Defendant working in the same hotel location, working under the same set 8 of allegedly unlawful policies and practices. (Doc. No. 17-1 at 7.) Plaintiff contends that 9 his claims and the rest of the class claims are based on the same policies and practices and 10 identical legal theories and that all class members, including Plaintiff, have suffered the 11 same violations. (Id. at 7-8; Doc. No. 17-2, Hawkins Decl. ¶ 39.) Plaintiff has sufficiently 12 demonstrated that his claims are typical of the claims of the class, and, thus, the typicality 13 requirement has been satisfied. 14 The adequacy of representation prerequisite requires that the class representative be 15 able to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 16 Representation is adequate if the plaintiff and class counsel (1) do not have any conflicts 17 of interest with any other class members and (2) will “prosecute the action vigorously” on 18 behalf of the class. Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th 19 Cir. 1978) (citation omitted); see Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). 20 Here, Plaintiff represents that he has no conflict of interest with the class, and he is 21 committed to fairly and adequately protecting the interests of the class. (Doc. No. 17-1 at 22 8; Doc. No. 17-2, Hawkins Decl. ¶ 40; Doc. No. 17-4, Granados Decl. ¶ 5.) Plaintiff’s 23 counsel also has no conflict of interest with the class. (Doc. No. 17-1 at 8; Doc. No. 17-2, 24 Hawkins Decl. ¶ 40.) In addition, Plaintiff’s counsel has extensive experience in litigating 25 class actions, including wage and hour and PAGA actions. (Doc. No. 17-1 at 8; Doc. No. 26 17-2, Hawkins Decl. ¶¶ 40, 94-101.) As such, the adequacy of representation requirement 27 has been met. 28 In sum, all of the prerequisites of Rule 23(a) are satisfied here. 1 B. Rule 23(b)(3) Requirements 2 Federal Rule of Civil Procedure 23(b)(3) requires a court to find that: (1) “the 3 questions of law or fact common to class members predominate over any questions 4 affecting only individual members”; and (2) “that a class action is superior to other 5 available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 6 23(b)(3). Rule 23(b)(3)’s requirements are designed “to cover cases ‘in which a class 7 action would achieve economies of time, effort, and expenses, and promote . . . uniformity 8 of decision as to persons similarly situated, without sacrificing procedural fairness or 9 bringing about other undesirable results.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 10 615 (1997) (citation omitted). If the parties seek to certify a class for settlement purposes, 11 “a district court need not inquire whether the case, if tried, would present intractable 12 management problems for the proposal is that there be no trial.” Id. at 620 (citing Fed. R. 13 Civ. P. 23(b)(3)(D)). 14 i. Predominance 15 A plaintiff must show “that the questions of law or fact common to class members 16 predominate over any questions affecting only individual members.” Fed. R. Civ. 17 P. 23(b)(3). The predominance inquiry focuses on whether the proposed class is 18 “sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. 19 at 623 (citation omitted). It “asks whether the common, aggregation-enabling, issues in 20 the case are more prevalent or important than the noncommon, aggregation-defeating, 21 individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (citation 22 omitted). 23 Here, Plaintiff contends that common questions of law and fact predominate 24 regarding the claims of the class because all class members were subject to Defendant’s 25 same policies and procedures, which give rise to the class’s claims. (Doc. No. 17-1 at 9; 26 Doc. No. 17-2, Hawkins Decl. ¶¶ 38, 41.) The Court agrees. As such, common questions 27 of law and fact predominate here. 28 / / / 1 ii. Superiority 2 A plaintiff must also demonstrate the superiority of maintaining a class action. Fed. 3 R. Civ. P. 23(b)(3). In considering whether a class action is superior, a court may consider: 4 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; 5 (B) the extent and nature of any litigation concerning the controversy already 6 begun by or against class members; 7 (C) the desirability or undesirability of concentrating the litigation of the 8 claims in the particular forum; and 9 (D) the likely difficulties in managing a class action. 10 Id. The class action method is generally considered to be superior if “classwide litigation 11 of common issues will reduce litigation costs and promote greater efficiency.” Valentino 12 v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (citation omitted). 13 Here, the parties estimate that the settlement class consists of approximately 464 14 members and all their claims are based on the same allegedly unlawful policies and 15 practices and the same legal theories. (See Doc. No. 17-2, Hawkins Decl. ¶¶ 37-39, 41.) 16 Resolving these disputes in a single class action rather than individually would promote 17 greater efficiency and reduce litigation costs. See Johnson v. Serenity Transportation, Inc., 18 No. 15-CV-02004-JSC, 2018 WL 3646540, at *15 (N.D. Cal. Aug. 1, 2018) (“[A] class 19 action is more manageable because several claims turn on [defendant]’s common policies 20 or lack thereof, which can be proven through evidence that will be applicable to the entire 21 class.”). As such, a class action is the superior method of adjudicating this matter. 22 In sum, the requirements of Rule 23(b)(3) are satisfied. As a result, the Court grants 23 preliminary certification of the proposed class. The Court may review this finding at the 24 final approval hearing. 25 C. Appointment of Class Representative and Class Counsel 26 Plaintiff meets the commonality, typicality, and adequacy requirements of 27 Rule 23(a). As such, Plaintiff is appointed as class representative. See Coleman v. United 28 Servs. Auto. Ass’n, No. 21-CV-217-RSH-KSC, 2023 WL 9110926, at *28 (S.D. Cal. Dec. 1 22, 2023) (“Rule 23 governs whether a plaintiff should be appointed as class 2 representative” (citing In re Bridgepoint Educ. Inc. Secs. Litig., No. 12-cv-1737-JM-JLB, 3 2015 WL 224631, *8 (S.D. Cal. Jan. 15, 2015)). 4 Under Rule 23(g), a court that certifies a class must appoint class counsel. Fed. R. 5 Civ. P. 23(g)(1). A court must consider the following factors when appointing class 6 counsel: “(i) the work counsel has done in identifying or investigating potential clams in 7 the action; (ii) counsel’s experience in handling class actions, other complex litigation, and 8 the types of claims asserted in the action; (iii) counsels’ knowledge of the applicable law; 9 and (iv) the resources that counsel will commit to represent the class.” Fed. R. Civ. 10 P. 23(g)(1)(A). The court may also “consider any other matter pertinent to counsel’s ability 11 to fairly and adequately represent the interest of the class.” Fed. R. Civ. P. 23(g)(1)(B). 12 Here, James Hawkins APLC has extensive experience litigating class actions, 13 including wage and hour and PAGA actions. (See Doc. No. 17-2, Hawkins Decl. ¶¶ 40, 14 94-101.) As such, James Hawkins APLC is appointed as class counsel pursuant to Federal 15 Rule of Civil Procedure 23(g). 16 II. The Settlement 17 Federal Rule of Civil Procedure 23(e) requires the Court to determine whether a 18 proposed settlement is “fundamentally fair, adequate, and reasonable.” Staton, 327 F.3d 19 at 959 (citation omitted). To make this determination, the Court must consider a number 20 of factors, including: (1) the strength of the plaintiff’s case; (2) the risk, expense, 21 complexity, and likely duration of further litigation; (3) the risk of maintaining class action 22 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery 23 completed, and the stage of proceedings; (6) the experience and views of counsel; (7) the 24 presence of a governmental participant; and (8) the reaction of class members to the 25 proposed settlement. Id. 26 “In addition, the settlement may not be the product of collusion among the 27 negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000) 28 (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). “Prior to 1 formal class certification, there is an even greater potential for a breach of fiduciary duty 2 owed the class during settlement. Accordingly, such agreements must withstand an even 3 higher level of scrutiny of collusion or other conflicts of interest than is ordinarily required 4 under Rule 23(e) before securing the court’s approval as fair.” In re Bluetooth Headset 5 Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (citation omitted). “Signs of 6 collusion include: (1) a disproportionate distribution of the settlement fund to counsel; 7 (2) negotiation of a ‘clear sailing provision’; and (3) an arrangement for funds not awarded 8 to revert to defendant rather than to be added to the settlement fund.” Hefler v. Wells Fargo 9 & Company, No. 16-cv-05479-JST, 2018 WL 4207245, *8 (N.D. Cal. Sept. 4, 2018) 10 (quoting In re Bluetooth, 654 F.3d at 947). 11 Given that some of these factors cannot be fully assessed until a court conducts the 12 final approval hearing, “a full fairness analysis is unnecessary at this stage.” Alberto v. 13 GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (citation omitted); see Uschold v. 14 NSMG Shared Servs., LLC, 333 F.R.D. 157, 169 (N.D. Cal. 2019). Rather, at the 15 preliminary approval stage, a court need only review the parties’ proposed settlement to 16 determine whether it is within the permissible “range of possible approval” and thus, 17 whether the notice to the class and the scheduling of a fairness hearing is appropriate. 18 Alberto, 252 F.R.D. at 666 (citation omitted); see Uschold, 333 F.R.D. at 169 (“At the 19 preliminary approval stage, ‘the settlement need only be potentially fair.’”). Preliminary 20 approval of a settlement and notice to the class is appropriate if (1) “the proposed settlement 21 appears to be the product of serious, informed, and non-collusive negotiations”; (2) “has 22 no obvious deficiencies”; (3) “does not improperly grant preferential treatment to class 23 representatives or segments of the class”; and (4) “falls within the range of possible 24 approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079–80 (N.D. Cal. 25 Apr. 12, 2007) (citation omitted); see also Beaver v. Tarsadia Hotels, No. 11-cv-01842- 26 GPC-KSC, 2017 WL 2268853, *2–*3 (S.D. Cal. May 24, 2007). 27 In determining whether a proposed settlement should be approved, the Ninth Circuit 28 has a “strong judicial policy that favors settlements, particularly where complex class 1 action litigation is concerned.” Seattle, 955 F.2d at 1276. Additionally, the Ninth Circuit 2 favors deference to the “private consensual decision of the [settling] parties,” particularly 3 where the parties are represented by experienced counsel and negotiation has been 4 facilitated by a neutral party. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 965 (9th 5 Cir. 2009) (citation omitted). 6 After reviewing the proposed settlement in light of the above factors, the Court 7 concludes that preliminary approval of the settlement is appropriate. The proposed 8 settlement agreement appears to be the result of serious, informed, and non-collusive 9 negotiations. See Tableware Antitrust Litig., 484 F. Supp. 2d at 1079–80. The proposed 10 settlement was reached by the parties during an adversarial full-day mediation with an 11 experienced complex class action mediator. (Doc. No. 17-2, Hawkins Decl. ¶ 11.) Prior 12 to reaching that settlement at the mediation, class counsel conducted a thorough 13 investigation into the factual and legal issues implicated by Plaintiff’s claims that allowed 14 the parties to objectively assess the settlement’s reasonableness, including: 15 (1) determining Plaintiff’s suitability as private attorney general and class representative through interviews, background investigations, and analyses of 16 his employment files and related records; (2) evaluating all of Plaintiff’s 17 potential class and representative claims; (3) engaging in informal discovery and investigation, which included a review of Defendant’s timekeeping, meal 18 period and rest break policies; documents evidencing Defendant’s handbooks, 19 policies and procedures for managing payment for all hours worked, meal periods and rest breaks; and other relevant information, including Plaintiff’s 20 personnel and payroll file; (4) exchanging documents, data, and information 21 based on electronic time and pay records, for the putative Class Members to determine the number of current and former putative class members who 22 worked during the relevant time period, the total number of workweeks at 23 issue, the average hourly rate for the putative class and aggrieved employees; (5) researching similar wage and hour class actions as to the claims brought, 24 the nature of the positions, and the type of employer; (6) analyzing employees’ 25 time, pay, and wage records, as well as attestation records, and consulting with an expert; (7) reviewing Defendant’s employment policies and practices; (8) 26 researching settlements in similar cases; (9) evaluating Plaintiff’s claims and 27 estimating Defendant’s liability for purposes of settlement; (10) drafting the mediation brief; and (11) participating in the mediation. 28 1 (Id. ¶¶ 13, 23.) Considering this history, the record indicates the parties “carefully 2 investigated the claims before reaching a resolution,” which weighs in favor of preliminary 3 approval. Ontiveros v. Zamora, 303 F.R.D. 356, 371 (E.D. Cal. 2014) (citation omitted); 4 see also Loreto v. Gen. Dynamics Info. Tech., Inc., No. 19-cv-1366-GPC, 2021 WL 5 3141208, *4 (S.D. Cal. July 26, 2021) (finding that a settlement “facilitated by an 6 experienced mediator after the exchange of sufficient discovery to allow the parties to 7 ascertain Defendant’s potential exposure,” supported preliminary approval); In re Zynga 8 Inc. Sec. Litig., No. 12-CV-04007-JSC, 2015 WL 6471171, at *9 (N.D. Cal. Oct. 27, 2015) 9 (“The use of a mediator and the presence of discovery “support the conclusion that the 10 Plaintiff was appropriately informed in negotiating a settlement.’”). 11 The proposed settlement agreement also does not appear to have any obvious 12 deficiencies, does not improperly grant preferential treatment to the class representative or 13 segments of the class, and falls within the range of possible approval. See Tableware 14 Antitrust Litig., 484 F. Supp. 2d at 1079–80. Further, class counsel is experienced in class 15 action litigation, including wage and hour and PAGA actions. (See Doc. No. 17-2, 16 Hawkins Decl. ¶¶ 40, 94-101.) See Romero v. Securus Tech., Inc., No. 16-cv-1283-JM, 17 2020 WL 3250599, *6 (S.D. Cal. June 16, 2020) (finding that class counsel’s “extensive 18 experience in complex litigation and class actions” supported preliminary approval). Class 19 counsel represents that although it firmly believes in the strength of Plaintiff’s claims, 20 Defendant has strong defenses to the claims, and those defenses impose a significant risk 21 of no recovery for the class in this action. (Doc. No. 17-2, Hawkins Decl. ¶¶ 46-52; Doc. 22 No. 17-1 at 15-16.) The parties’ settlement is a reasonable compromise that yields a 23 prompt, certain, and substantial recovery for the class. (Id. ¶¶ 48, 51.) 24 Moreover, the proposed settlement is for $325,000, with an estimated net settlement 25 amount of about $165,666.67. (Doc. No. 17-2, Settlement § 1.16, 1.17, 1.20; Doc. No. 17- 26 1 at 3.) And the settlement fund is non-reversionary, meaning that none of the gross 27 settlement amount will revert back to Defendant. (Doc. No. 17-1 at 1; Doc. No. 17-2, 28 Settlement § 5.7.) Plaintiff’s counsel represents that the gross settlement amount is 1 approximately 33.6% of the realistic liability faced by Defendant, including the PAGA 2 claims.1 (Doc. No. 17-2, Hawkins Decl. ¶ 90; Doc. No. 17-1 at 20.) This amount is a fair 3 and reasonable result given the Defendant’s defenses and falls within the range of possible 4 approval. See Loeza v. JPMorgan Chase Bank, NA, No. 13-cv-0095-L-BGS, 2015 WL 5 13357592, *8 (S.D. Cal. Aug. 8, 2015) (“In determining whether a settlement agreement 6 is substantively fair to the class, a court must balance the value of plaintiffs’ expected 7 recovery against the value of the settlement offer.” (citing Tableware Antitrust Litig., 484 8 F. Supp. 2d at 1080)); see also Zynga, 2015 WL 6471171, *10 (“A cash settlement 9 amounting to only a fraction of the potential recovery does not per se render the settlement 10 inadequate or unfair.” (citation omitted)). 11 Class counsel also intends to request an attorneys’ fee award of $108,333.33, or one- 12 third of the gross settlement fund, as well as costs supported by adequate documentation in 13 the amount up to $20,000. (Doc. No. 17-2, Hawkins Decl. ¶ 91; Doc. No. 17-2, Settlement 14 § 5.3.) The request for attorneys’ fees is within the range of acceptable attorneys’ fees in 15 Ninth Circuit cases. See Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 491 (E.D. 16 Cal. Mar. 6, 2010) (“The typical range of acceptable attorneys’ fees in the Ninth Circuit is 17 20% to 33 1/3% the total settlement value, with 25% considered the benchmark.” (citations 18 omitted)); see also Bluetooth, 654 F.3d at 942 (noting that “courts typically calculate 25% 19 of the fund as the ‘benchmark’ for a reasonable fee award” in class action settlements). 20 Additionally, the proposed incentive award of up to $10,000 for Plaintiff appears to be 21 within the range of possible approval. (Doc. No. 17-2, Settlement § 5.4.) See Gutierrez v. 22 Amplify Energy Corp., No. 821CV01628DOCJDEX, 2023 WL 6370233, at *8 (C.D. Cal. 23 Sept. 14, 2023) (“Service awards of $7,500 or larger are often awarded in this Circuit.”). 24 For the foregoing reasons, the Court conditionally grants preliminary approval of the 25 26 27 1 Plaintiff’s counsel provides an analysis of the claims in this case and estimates Defendant’s overall exposure in the matter as approximately $966,690.50. (Doc. No. 17- 28 1 proposed settlement. The Court reserves judgment on the reasonableness of the attorneys’ 2 fees for the final approval hearing. 3 III. Class Notice 4 Class notice must be “reasonably calculated, under all the circumstances, to apprise 5 interested parties of the pendency of the action and afford them an opportunity to present 6 their objections.” Roes, 1–2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1045 (9th Cir. 2019) 7 (quoting Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 174 (1974)). In addition, the class 8 notice must satisfy the content requirements of Federal Rule of Civil Procedure 9 23(c)(2)(B), which provides the notice must clearly and concisely state in plain, easily 10 understood language: 11 (i) the nature of the action; (ii) the definition of the class certified; (iii) the class 12 claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from 13 the class any member who requests exclusion; (vi) the time and manner for 14 requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 15 16 Fed. R. Civ. P. 23(c)(2)(B). 17 A. Content of Notice 18 The content of the proposed class notice meets the requirements of Rule 23(c)(3). 19 (Doc. No. 17-2, Hawkins Decl. Ex. 2 at ECF pp. 83-90.) In clearly understandable 20 language, the proposed class notice provides the following: a description of the lawsuit; a 21 description of the settlement class and their claims; an explanation of the material elements 22 of the settlement, including the net settlement amount and the amount of weeks the member 23 has worked; a statement declaring that class members may exclude themselves from or 24 object to the settlement; a description that explains how class members may exclude 25 themselves from the settlement, object to the terms of the settlement, and/or dispute the 26 number of weeks worked; a description of the binding effect of the class judgment on class 27 members who do not opt out; and a description of the fairness hearing and how class 28 members can participate in it. (See id.) 1 B. Method of Notice 2 The proposed method of notice is also reasonable. The parties have requested that 3 CPT Group, Inc. be appointed to serve as the settlement administrator. (Doc. No. 17-2, 4 Hawkins Decl., Ex. 1, Settlement § 3.1.) Within 21 days of the Court’s entry of a 5 preliminary approval order, Defendant will provide the settlement administrator with the 6 name of each class member and their most current known address, social security number, 7 and dates of employment. (Id. § 3.2.) Within 14 days of receiving the class member data 8 from Defendant, the settlement administrator will mail the notice of class action settlement 9 and request for exclusion to the class members via First Class U.S. Mail. (Id. § 3.4.) Any 10 mailing returned to the settlement administrator as undeliverable will be sent within three 11 business days via First Class U.S. Mail to the forwarding address affixed thereto.2 (Id. § 12 3.4.1.) Class members may opt out of the settlement by mailing to the settlement 13 administrator a request for exclusion within 45 days from the postmark date of the initial 14 mailing of the notice of class action settlement and request for exclusion. (Id. § 4.2.1.) 15 Class members may also object to the settlement by sending the objection to the settlement 16 administrator within 45 days from the postmark date of the initial mailing of the notice of 17 class action settlement. (Id. § 4.3.1.) 18 After reviewing the content and the proposed method of providing notice, the Court 19 determines that the class notice is adequate and sufficient to inform the class members of 20 their rights. Accordingly, the Court approves the form and manner of giving notice to the 21 class of the proposed settlement. 22 IV. Scheduling Final Approval Hearing 23 The Court schedules the final approval hearing for Monday, August 26, 2024, at 24 10:30 a.m. Pacific Time. Defendant must submit a class list to the settlement 25
26 2 If no forwarding address is provided, the settlement administrator will attempt to 27 determine the correct address by using the National Change of Address Database maintained by the United States Postal Service to update and correct any known or 28 1 ||administrator by Monday, April 29, 2024. The settlement administrator must mail class 2 ||notice packets to all class members as set forth in the settlement agreement by Monday, 3 ||May 13, 2024. Monday, June 27, 2024 is the deadline for class member to exercise any 4 rights with regard to the settlement, including opting out of the settlement and objecting to 5 settkement. Any response from class members must be postmarked for mail with the 6 ||U.S. Postal Service. Plaintiff and class counsel must file all papers in support of final 7 ||approval, the plan of allocation, and any fee and expense application or compensatory 8 ||award by Monday, July 29, 2024. Any reply papers must be filed by Monday, August 9 2024. 10 Conclusion 11 For the reasons above, the Court grants Plaintiffs motion. The Court certifies the 12 for purposes of settlement, preliminarily approves the proposed settlement, appoints 13 representative and class counsel, and approves the form and manner of the notice of 14 proposed settlement to the settlement class members. The Court also appoints CPT 15 || Group, Inc. as the settlement administrator. Further, the Court schedules the final approval 16 hearing for Monday, August 26, 2024, at 10:30 a.m. Pacific Standard Time. Plaintiff 17 || must file a motion for final approval of the settlement, and any motions for fee awards and 18 incentive awards on or before Monday, July 29, 2024. 19 IT IS SO ORDERED. 20 || DATED: April 8, 2024 | | ll | | | 21 MARILYN ©. HUFF, Distri ge 22 UNITED STATES DISTRICT COURT 23 24 25 26 27 28