Griffin v. Consolidated Communications

Opinion

----oo0oo---- TRICILLA GRIFFIN, individually, No. 2:21-cv-0885 WBS KJN and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to ORDER RE: PLAINTIFF’S MOTION the California Private Attorneys FOR PRELIMINARY APPROVAL OF General Act, CLASS ACTION SETTLEMENT Plaintiff, v. CONSOLIDATED COMMUNICATIONS, an unknown business entity; and DOES 1 through 100, inclusive, Defendant. ----oo0oo---- Plaintiff Tricilla Griffin, individually and on behalf of all other similarly situated employees, brought this putative class action against defendant Consolidated Communications alleging wage and hour violations under California law. (See First Am. Compl. (“FAC”) (Docket No. 1-1).) Before the court is plaintiff’s unopposed motion for preliminary approval of a class action settlement. (See Mot. for Prelim. Approval (“Mot.”) (Docket No. 27), Def.’s Notice of Non-Opposition (Docket No. 31).) I. Background and Proposed Settlement Defendant Consolidated Communications employed plaintiff and other class members as hourly-paid or non-exempt employees. (FAC at ¶ 24.) Plaintiff brought this action alleging: (1) failure to pay minimum and final wages; (2) failure to timely pay wages; (3) failure to pay overtime wages; (4) failure to pay meal and rest period premiums; (4) failure to provide compliant wage statements; (5) failure to keep compliant payroll records; (6) failure to reimburse business expenses; (7) violation of California’s Business and Professions Code, Cal. § 17200, et seq.; and (8) violation of California’s Private Attorneys General Act of 2004 (“PAGA”), Cal. Lab. Code § 2698, et seq. (See FAC.) The parties propose a gross settlement amount of $800,000, which includes the following: (1) payments to individual class members based on their number of weeks worked; (2) a $7,500 incentive award to plaintiff; (3) attorneys’ fees of 35% of the gross settlement amount, or $280,000, and reimbursement of litigation costs and expenses of no more than $24,000; (4) settlement administration costs of no more than $15,000; and (5) $200,000 for PAGA penalties, of which 75% will be distributed to the Labor and Workforce Development Agency (“LWDA”) and 25% will be distributed to individual class members. (See Ex. 1 to Takvoryan Decl. (“Settlement Agreement”) (Docket No. 27-1 at 24-53).) II. Discussion Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court’s approval.” Fed. R. Civ. P. 23(e). This Order is the first step in that process and analyzes only whether the proposed class action settlement deserves preliminary approval. See Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010) (Shubb, J.). Preliminary approval authorizes the parties to give notice to putative class members of the settlement agreement and lays the groundwork for a future fairness hearing, at which the court will hear objections to (1) the treatment of this litigation as a class action and (2) the terms of the settlement. See id.; Diaz v. Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989). The court will reach a final determination as to whether the parties should be allowed to settle the class action on their proposed terms after that hearing. Where the parties reach a settlement agreement prior to class certification, the court must first assess whether a class exists. Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). “Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.” Id. (quoting Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997)). The parties cannot “agree to certify a class that clearly leaves any one requirement unfulfilled,” and consequently the court cannot blindly rely on the fact that the parties have stipulated that a class exists for purposes of settlement. See Amchem, 521 U.S. at 621-22. “Second, the district court must carefully consider ‘whether a proposed settlement is fundamentally fair, adequate, and reasonable,’ recognizing that ‘[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness . . . ’” Staton, 327 F.3d at 952 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). District courts “review and approve” settlement of PAGA claims under a similar standard. See Cal. Lab. Code § 2669(k)(2); Jordan v. NCI Grp., Inc., No. cv- 161701 JVS SP, 2018 WL 1409590, at *2 (C.D. Cal. Jan. 5, 2018) (collecting cases); Ramirez v. Benito Valley Farms, LLC, No. 16- cv-04708 LHK, 2017 WL 3670794, at *2 (N.D. Cal. Aug. 25, 2017). A. Class Certification The parties define the proposed class as “[a]ll current and former hourly-paid or non-exempt employees who worked for Defendant within the State of California at any time during the period from February 24, 2017 through March 23, 2022 [“Class Period”].”1 (Mot. at 9; Settlement Agreement at 2.) To be certified, the putative class must satisfy the requirements of Federal Rules of Civil Procedure 23(a) and 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). 1. Rule 23(a) Rule 23(a) restricts class actions to cases where: “(1) the class is so numerous that joinder of all members is 1 For purposes of the PAGA claim, the relevant time period is February 19, 2020 to March 23, 2022 (“PAGA Period”). impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy of representation].” See Fed. R. Civ. P. 23(a). a. Numerosity “A proposed class of at least forty members presumptively satisfies the numerosity requirement.” Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450, 456 (C.D. Cal. 2012), vacated on other grounds, 596 F. App’x 579 (9th Cir. 2015). See also, e.g., Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wanger, J.) (“Courts have routinely found the numerosity requirement satisfied when the class comprises 40 or more members.”). Here, plaintiff estimates that the proposed class will contain 274 members. (See Mot. at 9, 12; Decl. of Ovsanna Takvoryan (“Takvoryan Decl.”) (Docket No. 27-1) at ¶ 9.) This more than satisfies the numerosity requirement. b. Commonality Commonality requires that the class members’ claims “depend upon a common contention” that is “capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S. at 350. “[A]ll questions of fact and law need not be common to satisfy the rule,” and the “existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Hanlon, 150 F.3d at 1019. “So long as there is even a single common question, a would-be class can satisfy the commonality requirement of Rule 23(a)(2).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (internal citation and quotation marks omitted). Here, the claims implicate common questions of law and fact because they are premised on policies that applied to all class members equally. All class members were hourly-paid or non-exempt employees of defendant between February 24, 2017, and March 23, 2022. (See FAC at ¶ 26; Mot. at 9.) As a result, the class members share several common factual questions surrounding the existence of alleged wage and hour policies (including failure to pay full wages, failure to provide overtime compensation, and deprivation of meal and rest periods), and several common legal questions concerning whether said policies violated California law. (See FAC at ¶ 16.) Generally, “challeng[ing] a policy common to the class as a whole creates a common question whose answer is apt to drive the resolution of the litigation.” Ontiveros v. Zamora, No. 2:08-cv-567 WBS DAD, 2014 WL 3057506, at *5 (E.D. Cal. July 7, 2014). Even if individual members of the class will be entitled to different amounts of damages because, for instance, they were denied fewer meal and rest breaks than other employees or had their time rounded down less often than other employees, “the presence of individual damages cannot, by itself, defeat class certification.” Leyva, 716 F.3d at 514 (quoting Wal-Mart Stores, 564 U.S. at 362). Accordingly, these common questions of law and fact satisfy the commonality requirement. c. Typicality Typicality requires that named plaintiffs have claims “reasonably coextensive with those of absent class members,” but their claims do not have to be “substantially identical.” Hanlon, 150 F.3d at 1020. The test for typicality “is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). The named plaintiff and the other class members were all hourly-paid or non-exempt employees of defendant. (FAC at ¶ 26.) Plaintiff and the other class members were all allegedly subject to the same policies and practices in question, including failure to pay full wages, failure to provide overtime compensation, and deprivation of meal and rest periods. (FAC ¶ 16.) Although the facts might differ for individual class members, the basis for their injuries and the parties purportedly responsible for those injuries are the same. The proposed class therefore meets the typicality requirement. d. Adequacy of Representation To resolve the question of adequacy, the court must consider two factors: (1) whether the named plaintiff and her counsel have any conflicts of interest with other class members, and (2) whether the named plaintiff and her counsel will vigorously prosecute the action on behalf of the class. In re Hyundai and Kia Fuel Econ. Litig., 926 F.3d 539, 566 (9th Cir. 2019). i. Conflicts of Interest There do not appear to be any conflicts of interest for purposes of preliminary approval. The named plaintiff’s interests are generally aligned with those of the putative class members, who suffered injuries similar to those suffered by the named plaintiff. See Amchem, 521 U.S. at 625–26 (“[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.”). The settlement would provide an incentive award of $7,500 to the named plaintiff. (Mot. at 21.) While the provision of an incentive award raises the possibility that the named plaintiff’s interest in receiving that award will cause their interests to diverge from the class’s interest in a fair settlement, the Ninth Circuit has specifically approved the award of “reasonable incentive payments.” Staton, 327 F.3d at 977–78. The court, however, must “scrutinize carefully the awards so that they do not undermine the adequacy of the class representatives.” Radcliffe v. Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013). Plaintiff’s counsel estimates that the net settlement amount will be $323,500, to be allocated pro rata to class members based on the number of weeks worked during the Class Period. (Mot. at 13.) While individual awards to class members will vary, the net settlement amount divided evenly between 274 class members results in an average of $1,180 per class member. As such, plaintiff’s proposed award of $7,500 represents significantly more than other class members will receive. Further, the payment represents approximately 0.94% of the $800,000 gross settlement amount. The proposed incentive payment therefore gives the court pause, as an incentive payment constituting one percent of the gross settlement amount is “unusually high.” See Ontiveros v. Zamora, 303 F.R.D. 356, 365 (E.D. Cal. 2014) (Shubb, J.) (collecting cases). See also Roe v. Frito-Lay, Inc., No. 14-cv-00751, 2017 WL 1315626, at *8 (N.D. Cal. Apr. 7, 2017) (“[A] $5,000 incentive award is ‘presumptively reasonable’ in the Ninth Circuit.”) For purposes of preliminary approval, the incentive award does not appear so disproportionate as to render plaintiff an inadequate class representative. However, the court is not satisfied that the efforts and time commitment described by plaintiff (see Decl. of Tricilla Griffin (Docket No. 27-2) at ¶¶ 3-6) justify the incentive amount. In her motion for final approval, if plaintiff does not reduce the amount of her requested reward she should be prepared to present further evidence of her substantial efforts taken as class representative or other relevant personal sacrifices to better justify the high incentive award requested. ii. Vigorous Prosecution The second portion of the adequacy inquiry examines the vigor with which the named plaintiff and her counsel have pursued the class’s claims. “Although there are no fixed standards by which ‘vigor’ can be assayed, considerations include competency of counsel and, in the context of a settlement-only class, an assessment of the rationale for not pursuing further litigation.” Hanlon, 150 F.3d at 1021. Here, class counsel appear to be experienced employment and class action litigators fully qualified to pursue the interests of the class. (See Takvoryan Decl. at ¶¶ 2-7.) This experience, coupled with the work performed thus far (see id. at ¶¶ 11-14), suggest that class counsel are well-equipped to handle this case. Further, plaintiff’s counsel seem to have conducted thorough factual investigation and legal research, and fully considered the strengths and weaknesses of this case in deciding to accept the terms of the proposed settlement agreement. (See id. at ¶¶ 11-14, 19-20.) The court finds no reason to doubt that plaintiff’s counsel is well qualified to conduct the proposed litigation and assess the value of the settlement. Accordingly, the court concludes that Rule 23(a)’s adequacy requirement is satisfied for the purpose of preliminary approval. 2. Rule 23(b) After fulfilling the threshold requirements of Rule 23(a), the proposed class must satisfy the requirements of one of the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. Plaintiff seeks certification under Rule 23(b)(3), which provides that a class action may be maintained only if (1) “the court finds that questions of law or fact common to class members predominate over questions affecting only individual members” and (2) “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). a. Predominance “The predominance analysis under Rule 23(b)(3) focuses on ‘the relationship between the common and individual issues’ in the case and ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Wang, 737 F.3d at 545 (quoting Hanlon, 150 F.3d at 1022). As discussed above, the claims brought by the proposed settlement class all arise from defendant’s same conduct with respect to wage and hour policies for hourly-paid and non-exempt employees. (See FAC at ¶ 16). The class claims thus demonstrate a “common nucleus of facts and potential legal remedies” that can properly be resolved in a single adjudication. See Hanlon, 150 F.3d at 1022. Although there are differences in the facts pertaining to class members and the amount of injury sustained, there is no indication that those variations are “sufficiently substantive to predominate over the shared claims.” See Murillo, 266 F.R.D. at 476 (quoting Hanlon, 150 F.3d at 1022). Accordingly, the court finds common questions of law and fact predominate over questions affecting only individual class members. b. Superiority Rule 23(b)(3) sets forth four non-exhaustive factors that courts should consider when examining whether “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). They are: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Id. The parties settled this action prior to certification, making factors (C) and (D) inapplicable. See Murillo, 266 F.R.D. at 477 (citing Amchem, 521 U.S. at 620). Rule 23(b)(3) is concerned with the “vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Amchem, 521 U.S. at 617. When, as here, class members’ individual recovery is relatively modest, the class members’ interests generally favors certification. Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). Further, the court is unaware of any concurrent litigation regarding the issues in this case. Given that no class member has initiated any competing action in the nearly two years since this case was filed, it is also unlikely that other individual class members have an interest in controlling the prosecution of this action or related actions--although objectors at the fairness hearing may reveal otherwise. See Alberto v. GMRI, Inc., 252 F.R.D. 652, 664 (E.D. Cal. 2008) (Shubb, J.). Accordingly, the class action device appears to be the superior method for adjudicating this controversy. 3. Rule 23(c)(2) Notice Requirements If the court certifies a class under Rule 23(b)(3), it “must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172–77 (1974)). Although that notice must be “reasonably certain to inform the absent members of the plaintiff class,” actual notice is not required. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted). The parties have jointly selected ILYM Group (“ILYM”) to serve as the Settlement Administrator. (Settlement Agreement at 13.) Pursuant to the notice plan, defendant will provide ILYM with the class contact information and data within fifteen business days of the court’s order granting preliminary approval. (Id. at 14.) Within ten days of receiving the class information from defendant, ILYM shall mail the class notice to all class members using the most current mailing addresses available. (Id.) Plaintiff’s counsel has provided the court with a proposed notice to class members. (See Ex. A to Settlement Agreement (Docket No 27-1 at 54-60) at 1-4.) It explains the proceedings, defines the scope of the class, and explains what the settlement provides and how much each class member can expect to receive in compensation. (See id. at 55-57.) The notice further explains the opt-out procedure, the procedure for objecting to the settlement, and the date and location of the final approval hearing. (See id. at 58-59.) The content of the notice therefore satisfies Rule 23(c)(2)(B). See Fed. R. Civ. P. 23(c)(2)(B); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it ‘generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.’”) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). While the court is satisfied by the content of the proposed notice, the court notes that a single mailed notice is unlikely to provide sufficient notice. See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1045–46 (9th Cir. 2019). It is advisable that the Settlement Administrator undertake additional measures “reasonably calculated, under all the circumstances,” to apprise all class members of the proposed settlement. See id. at 1047 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315 (1950)). B. Preliminary Settlement Approval After determining that the proposed class satisfies the requirements of Rule 23(a) and (b), the court must determine whether the terms of the parties’ settlement appear fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026. This process requires the court to “balance a number of factors,” including “the strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.” Hanlon, 150 F.3d at 1026. Because some of these factors cannot be considered until the final fairness hearing, at the preliminary approval stage “the court need only determine whether the proposed settlement is within the range of possible approval,” Murillo, 266 F.R.D. at 479 (quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)), and resolve any “glaring deficiencies” in the settlement agreement before authorizing notice to class members, Ontiveros, 2014 WL 3057506, at *12 (citing Murillo, 266 F.R.D. at 478). This generally requires consideration of “whether the proposed settlement discloses grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class representatives or segments of the class, or excessive compensation of attorneys.” Murillo, 266 F.R.D. at 479 (quoting West v. Circle K Stores, Inc., 04-cv-438 WBS GGH, 2006 WL 1652598, at *11-12 (E.D. Cal. June 13, 2006)). Courts often begin by examining the process that led to the settlement’s terms to ensure that those terms are “the result of vigorous, arms-length bargaining” and then turn to the substantive terms of the agreement. See, e.g., Murillo, 266 F.R.D. at 479-80; West, 2006 WL 1652598, at *11-12; In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007) (“[P]reliminary approval of a settlement has both a procedural and a substantive component.”). 1. Negotiation of the Settlement Agreement Following ten months of investigations and informal discovery, the parties engaged in a full-day mediation on December 21, 2021. (See Takvoryan Decl. at ¶ 11-12.) The mediation was conducted by an experienced civil mediator. (See id. at ¶ 12.) Plaintiff’s counsel represents that the parties exchanged “extensive information” and “engaged in discussions regarding their evaluations of the case and various aspects of the case, including but not limited to, the risks and delays of further litigation, the risks to the Parties of proceeding with class certification and/or representative adjudication, the law . . ., the evidence produced and analyzed, and the possibility of appeals.” (Id.) Plaintiff’s counsel further represents that the settlement was the result of arms-length bargaining. (See id.) Given the parties’ representation that the settlement reached was the product of arms-length bargaining following extensive informal discovery, the court at this stage does not question that the proposed settlement is the result of informed and non-collusive negotiations between the parties. See La Fleur v. Med. Mgmt. Int’l, Inc., Civ. No. 5:13-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25, 2014) (“Settlements reached with the help of a mediator are likely non-collusive.”). 2. Amount Recovered and Distribution In determining whether a settlement agreement is substantively fair to the class, the court must balance the value of expected recovery against the value of the settlement offer. See Tableware, 484 F. Supp. 2d at 1080. This inquiry may involve consideration of the uncertainty class members would face if the case were litigated to trial. See Ontiveros, 2014 WL 3057506, at *14. The amount of recovery, an average of $1,180 per class member, is certainly within the range of approval for actions of this type. See, e.g., Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114, 1125 (E.D. Cal. 2009) (Wanger, J.) (approving wage-and-hour settlement providing for an average recovery of $1,000); Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431, 440 (E.D. Cal. 2013) (Oberto, J.) (approving wage-and-hour settlement providing for an average recovery of $601.91). Additionally, because the amount class members receive is based on the number of workweeks each class member worked during the Class Period, the court finds that the method of distributing relief to the class is appropriate. However, the amount reserved for PAGA penalties gives the court pause. Under PAGA, 75% of the civil PAGA penalties are paid to the LWDA. Cal. Lab. Code § 2699(i). Though there is no binding authority concerning review of PAGA penalties, the LWDA has stated: the relief provided for under the PAGA [must] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public and, in the context of a class action, the court [must] evaluate whether the settlement meets the standards of being “fundamentally fair, reasonable, and adequate” with reference to the public policies underlying the PAGA. California Labor and Workforce Development Agency's Comments on Proposed PAGA Settlement (“LWDA Letter”); Castro v. Paragon Indus., Inc., No. 1:19-cv-00755 DAD SKO, 2020 WL 1984240, at *5 (E.D. Cal. Apr. 27, 2020) (citing LWDA Letter); O'Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1133 (N.D. Cal. 2016) (same). Here, the $150,000 reserved for PAGA penalties paid to the LWDA seems significantly higher than is typical. See, e.g., Mondrian v. Trius Trucking, Inc., No. 1:19-cv-00884 DAD SKO, 2022 WL 2306963, at *3 (E.D. Cal. June 27, 2022) ($7,500 to LWDA out of $995,000 gross settlement); Almanzar v. Home Depot U.S.A., Inc., No. 2:20-cv-0699 KJN, 2022 WL 2817435, at *2 (E.D. Cal. July 19, 2022) ($28,125 to LWDA out of $750,000 gross settlement); Castro v. Paragon Indus., Inc., No. 1:19-cv-00755 DAD SKO, 2020 WL 1984240, at *3 (E.D. Cal. Apr. 27, 2020) ($56,250 to LWDA out of $3,750,000 gross settlement); Syed v. M- I, L.L.C., No. 1:12-cv-01718 DAD MJS, 2017 WL 714367, at *13 (E.D. Cal. Feb. 22, 2017) ($75,000 to LWDA out of $3,950,000 gross settlement); Ontiveros v. Zamora, 303 F.R.D. at 371 ($40,000 to LWDA out of $2,000,000 gross settlement); Garcia v. Gordon Trucking, Inc., No. 1:10-cv-0324 AWI SKO, 2012 WL 5364575 (E.D. Cal. Oct. 31, 2012) ($7,500 to LWDA out of $3,700,000 gross settlement). While the proposed amount is presumably linked to the prescribed statutory penalties, counsel did not provide any calculation or explanation that would allow the court to evaluate the appropriateness of the penalty amount. Though the settlement amount is adequate for purposes of approval at this stage, the court emphasizes that this is only a preliminary determination. At the final fairness hearing, counsel should be prepared to present additional information demonstrating the settlement’s adequacy, including the full potential value of the class claims, how the settlement amount compares to that value, what the range of expected recovery is for individual class members, the reasoning behind counsel’s determination that the settlement is a fair and adequate result for the class members, and a justification for the amount reserved for PAGA penalties, as well as other information pertinent to the eight Hanlon factors identified above. Counsel are cautioned that because this settlement was reached prior to class certification, it will be subject to heightened scrutiny for purposes of final approval. See In re Apple Inc. Device Performance Litig., 50 F.4th 769, 2022 WL 4492078, at *8 (9th Cir. 2022). The recommendations of plaintiff’s counsel will not be given a presumption of reasonableness, but rather will be subject to close review. See id. at *9. The court will particularly scrutinize “any subtle signs that class counsel have allowed pursuit of their own self- interests to infect the negotiations.” See id. (quoting Roes, 944 F.3d at 1043). 3. Attorney’s Fees If a negotiated class action settlement includes an award of attorney’s fees, that fee award must be evaluated in the overall context of the settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). The settlement agreement provides that plaintiff’s counsel will seek a fee award of up to 35% of the gross settlement, or $280,000 based on the gross settlement amount of $800,000. (Settlement Agreement at 23.) If the court does not approve the fee award in whole or in part, that will not prevent the settlement agreement from becoming effective or be grounds for termination. (Id. at 24.) In deciding the attorney’s fees motion, the court will have the opportunity to assess whether the requested fee award is reasonable by multiplying a reasonable hourly rate by the number of hours counsel reasonably expended. See Van Gerwen v. Gurantee Mut. Life. Co., 214 F.3d 1041, 1045 (9th Cir. 2000). As part of this lodestar calculation, the court may consider factors such as the “degree of success” or “results obtained” by plaintiff’s counsel. See Cunningham v. County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988). If the court, in ruling on the fees motion, finds that the amount of the settlement warrants a fee award at a rate lower than what plaintiff’s counsel requests, then it will reduce the award accordingly. The court will therefore not evaluate the fee award at length here in considering whether the settlement is adequate. IT IS THEREFORE ORDERED that plaintiff’s motion for preliminary certification of a conditional settlement class and preliminary approval of the class action settlement (Docket No. 27) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED THAT: (1) the following class be provisionally certified for the purpose of settlement: (a) All current and former hourly-paid or non-exempt employees who worked for defendant within the State of California at any time during the period from February 24, 2017 through March 23, 2022; (2) the proposed settlement is preliminarily approved as fair, just, reasonable, and adequate to the members of the settlement class, subject to further consideration at the final fairness hearing after distribution of notice to members of the settlement class; (3) for purposes of carrying out the terms of the settlement only: (a) Tricilla Griffin is appointed as the representative of the settlement class and is provisionally found to be an adequate representative within the meaning of Federal Rule of Civil Procedure 23; (b) the law firm of Lawyers for Justice, PC is provisionally found to be a fair and adequate representative of the settlement class and is appointed as class counsel for the purposes of representing the settlement class conditionally certified in this Order; (4) ILYM Group is appointed as the Settlement Administrator; (5) the form and content of the proposed Notice of Class Action Settlement (Ex. A to Settlement Agreement (Docket No. 27-1 at 54-60)) is approved, except to the extent that it must be updated to reflect dates and deadlines specified in this Order; (6) no later than fifteen (15) calendar days from the date this Order is signed, defendant’s counsel shall provide the Settlement Administrator with the following information about each class member: full name; last known address; last known telephone number; dates of employment with defendant as an hourly-paid or non-exempt employee; the number of workweeks worked during the Class Period; the number of workweeks worked during the PAGA Period; Social Security number; and the last known email address; (7) no later than ten (10) calendar days from the date defendant submits the contact information to the Settlement Administrator, it shall mail a Notice of Class Action Settlement to all members of the settlement class via first class mail. If a Notice is returned to the Settlement Administrator with a forwarding address, the Settlement Administrator will re-send the Notice to the forwarding address. If no forwarding address is provided, the Settlement Administrator will attempt to locate a more current address within three (3) business days of receipt of the returned mail; (8) no later than sixty (60) days from the date Settlement Administrator mails the Notice of Class Action Settlement, though in the case of a re-mailed notice the deadline will be extended by fifteen (15) days, any member of the settlement class who intends to dispute the number of workweeks credited to him or object to, comment upon, or opt out of the settlement shall mail written notice of that intent to the Settlement Administrator pursuant to the instructions in the Notice of Class Action Settlement; (9) A final fairness hearing shall be set to occur before this Court on May 30, 2023, at 1:30 p.m. in Courtroom 5 of the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, California, to determine whether the proposed settlement is fair, reasonable, and adequate and should be approved by this court; whether the settlement class’s claims should be dismissed with prejudice and judgment entered upon final approval of the settlement; whether final class certification is appropriate; and to consider class counsel’s applications for attorney’s fees, costs, and an incentive award for the class representative. The court may continue the final fairness hearing without further notice to the members of the class; (10) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file with this court a petition for an award of attorney’s fees and costs. Any objections or responses to the petition shall be filed no later than fourteen (14) days before the final fairness hearing. Class counsel may file a reply to any objections no later than seven (7) days before the final fairness hearing; (11) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file and serve upon the court and defendant’s counsel all papers in support of the settlement, the incentive award for the class representative, and any award for attorney’s fees and costs; (12) no later than twenty-eight (28) days before the final fairness hearing, the Settlement Administrator shall prepare, and class counsel shall file and serve upon the court and defendant’s counsel, a declaration setting forth the services rendered, proof of mailing, a list of all class members who have opted out of the settlement, a list of all class members who have commented upon or objected to the settlement; (13) any person who has standing to object to the terms of the proposed settlement may appear at the final fairness hearing (themselves or through counsel) and be heard to the extent allowed by the court in support of, or in opposition to, (a) the fairness, reasonableness, and adequacy of the proposed settlement, (b) the requested award of attorney’s fees, reimbursement of costs, and incentive award to the class representative, and/or (c) the propriety of class certification. To be heard in opposition at the final fairness hearing, a person must, no later than sixty (60) days from the date the Settlement Administrator mails the Notice of Class Action Settlement, (a) serve by hand or through the mails written notice of his or her intention to appear, stating the name and case number of this action and each objection and the basis therefore, together with copies of any papers and briefs, upon class counsel and counsel for defendant, and (b) file said appearance, objections, papers, and briefs with the court, together with proof of service of all such documents upon counsel for the parties. Responses to any such objections shall be served by hand or through the mails on the objectors, or on the objector’s counsel if there is any, and filed with the court no later than fourteen (14) calendar days before the final fairness hearing. Objectors may file optional replies no later than seven (7) calendar days before the final fairness hearing in the same manner described above. Any settlement class member who does not make his or her objection in the manner provided herein shall be deemed to have waived such objection and shall forever be foreclosed from objecting to the fairness or adequacy of the proposed settlement, the judgment entered, and the award of attorney’s fees, costs, and an incentive award to the class representative unless otherwise ordered by the court; (14) pending final determination of whether the settlement should be ultimately approved, the court preliminarily enjoins all class members (unless and until the class member has submitted a timely and valid request for exclusion) from filing or prosecuting any claims, suits, or administrative proceedings regarding claims to be released by the settlement. enn enn nen ene een ne no nn nnn EN I OI I

Dated: November 8, 2022 . ak. ah hla, (hi. □□□□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT JUDGE 25