1 2 3 4
UNITED STATES DISTRICT COURT 7
EASTERN DISTRICT OF CALIFORNIA 8
9 JOSE URENA, an individual, on behalf of No. 1:18-cv-00517-NONE-EPG himself and others similarly situated, 10 ORDER ADOPTING FINDINGS AND Plaintiff, RECOMMENDATIONS 11 v. (Doc. Nos. 37, 46) 12 CENTRAL CALIFORNIA ALMOND 13 GROWERS ASSN., et al., 14 Defendants.
15 16 Plaintiff Jose Urena (“Plaintiff”) moved for preliminary approval of class action 17 settlement on April 3, 2020. (Doc. No. 37). The matter was referred to a United States 18 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s Standing Order, (Doc. 19 No. 35-1, at 3). 20 On June 26, 2020, Magistrate Judge Erica P. Grosjean entered findings and 21 recommendations, recommending the class be preliminarily approved subject to the 22 recommendations listed therein. (Doc. No. 46, at 28-30). 23 The parties were provided an opportunity to file objections to the findings and 24 recommendations. The deadline to file objections has passed, and no party has objected or 25 otherwise responded to the findings and recommendations. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 1 the court finds the findings and recommendations to be supported by the record and proper 2 analysis. Two items discussed in the findings and recommendations warrant specific mention 3 here. First the undersigned notes, as did the magistrate judge (see Doc. No. 46 at 15–16), that 4 the ultimate settlement amount represents a very small fraction (1.266%) of the very large— 5 albeit possibly overstated—potential recovery initially claimed by plaintiffs. But, as the 6 magistrate judge reasoned, given the potential weaknesses of plaintiffs’ case and the substantial 7 role played by a highly qualified mediator in the settlement process, preliminary approval is 8 nonetheless appropriate. Relatedly, the court also endorses the magistrate judge’s cautionary 9 approach to plaintiffs’ preliminary indication that they will seek 33.33% of the gross settlement 10 amount as an attorneys’ fee award. (See id. at 20–23.) This amount, while above the Ninth 11 Circuit’s 25% “benchmark” for fees, is within the range of fee awards that are commonly found 12 acceptable. See Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013). 13 The court reminds the parties that it has a legal responsibility to carefully scrutinize and cross- 14 check the final request and the motion for final approval. 15 Accordingly, THE COURT HEREBY ORDERS that: 16 1. The findings and recommendations issued June 26, 2020, (Doc. No. 46) are 17 ADOPTED IN FULL; 18 2. The proposed class be conditionally certified under Rule 23(c)(1), for purposes 19 of settlement only, as the proposed class satisfies the requirements of Rule 23(a) 20 as well as the requirements for certification under one of the subsections of Rule 21 23(b), including that: 22 a. The class is so numerous that joinder of all members is impracticable; 23 b. There are questions of law and fact common to the class; 24 c. The claims or defenses of the representative party are typical of the claims or 25 defenses of the class; and 26 d. The representative party will fairly and adequately protect the interests of the 27 class. 1 3. The following persons be preliminarily certified as Class Members solely for the 2 purpose of entering a settlement in this matter:
3 all who are employed or have been employed by Defendant, in the State 4 of California, and who have worked one or more shifts as a non-exempt hourly agricultural employee, as defined by the California Labor Code, 5 Industrial Welfare Commission Wage Order 8-2001, and 29 U.S.C. §1892(3) from April 13, 2014 through April 30, 2019. 6 7 4. The Settlement Agreement (Doc. No. 37-2) be granted preliminary approval as 8 it falls within the range of possible approval as fair, adequate, and reasonable, 9 and appears to be the product of arm’s length and informed negotiations and to 10 treat all Class Members fairly, subject to the following recommendations: 11 a. The settlement administrator take additional actions to locate class members, 12 as discussed in the findings and recommendations. 13 b. All terms in the settlement agreement and notice be harmonized with each 14 other to the extent the court orders any changes to either. 15 c. The cy pres recipient(s) of unclaimed funds be determined only after the 16 funds are initially distributed. 17 5. A final approval hearing on the question of whether the settlement, attorneys’ 18 fees and costs to class counsel, and the class representative service payment 19 should be finally approved as fair, reasonable, and adequate be held as set forth 20 below. 21 6. The form and content of the Notice of Class Action Settlement (Doc. No. 37-2, 22 at 21-26), be approved conditioned on the settling parties making the following 23 modifications to the notice: 24 a. Revise the objection provision of the notice of class action settlement to 25 include an explanation that a class member may raise objections at the final 26 approval hearing, but that the court retains discretion to decline to consider 27 any objection that has not been timely submitted in writing. These 1 instructions should explain that due to the ongoing public health crisis, the 2 hearing may be telephonic only, but that any class members with objections 3 or other concerns may nonetheless call into the hearing. The notice should 4 include the relevant call-in information, which will be provided to the parties 5 when the hearing date is set. 6 b. Include suggested language to advise class members how to opt out and 7 include all relevant objection requirements. 8 c. Include an email address to receive opt-outs and objections. 9 d. Remove track changes. 10 7. The procedures for class members to be notified of, participate in, opt-out of, 11 and object to the settlement, as set forth in the Settlement (Doc. No. 37-2 at 8- 12 10), be approved as the best practicable under the circumstances and constitution 13 sufficient due notice to the class members, conditioned on the settling parties 14 making the following modifications: 15 a. The settling parties change the content of the notice consistent with the 16 above. 17 b. ILYM Group use additional means of connecting with class members, such 18 as phone calls, text messages, or a combination thereof, with instructions for 19 updating their addresses. 20 c. Remove unnecessary requirements for opting out, including Social Security 21 numbers. 22 8. The settling parties be directed to file a second revised proposed notice and 23 settlement agreement incorporating the above modifications within fourteen (14) 24 days of this order. 25 9. That class members will receive a settlement share unless they opt out of the 26 settlement sixty (60) days after the notice is sent, except as otherwise set forth in 27 the settlement agreement. 1 10. ILYM Group, Inc. be appointed to act as the settlement administrator, under the 2 terms set forth in the settlement agreement. 3 11. Jose Urena be appointed as the Class Representative. 4 12. Kingsley & Kingsley, APC, be appointed as Class Counsel. 5 13. That the notice, (Doc. No. 37-2, at 21-26), with the above modifications, be 6 distributed to class members in accordance with the procedures set forth in the 7 Settlement Agreement (Doc. No. 37-2). Proof of distribution of the notice is to 8 be filed by the parties in conjunction with the motion for an order granting final 9 approval of the Settlement. 10 14.
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1 2 3 4
UNITED STATES DISTRICT COURT 7
EASTERN DISTRICT OF CALIFORNIA 8
9 JOSE URENA, an individual, on behalf of No. 1:18-cv-00517-NONE-EPG himself and others similarly situated, 10 ORDER ADOPTING FINDINGS AND Plaintiff, RECOMMENDATIONS 11 v. (Doc. Nos. 37, 46) 12 CENTRAL CALIFORNIA ALMOND 13 GROWERS ASSN., et al., 14 Defendants.
15 16 Plaintiff Jose Urena (“Plaintiff”) moved for preliminary approval of class action 17 settlement on April 3, 2020. (Doc. No. 37). The matter was referred to a United States 18 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s Standing Order, (Doc. 19 No. 35-1, at 3). 20 On June 26, 2020, Magistrate Judge Erica P. Grosjean entered findings and 21 recommendations, recommending the class be preliminarily approved subject to the 22 recommendations listed therein. (Doc. No. 46, at 28-30). 23 The parties were provided an opportunity to file objections to the findings and 24 recommendations. The deadline to file objections has passed, and no party has objected or 25 otherwise responded to the findings and recommendations. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 1 the court finds the findings and recommendations to be supported by the record and proper 2 analysis. Two items discussed in the findings and recommendations warrant specific mention 3 here. First the undersigned notes, as did the magistrate judge (see Doc. No. 46 at 15–16), that 4 the ultimate settlement amount represents a very small fraction (1.266%) of the very large— 5 albeit possibly overstated—potential recovery initially claimed by plaintiffs. But, as the 6 magistrate judge reasoned, given the potential weaknesses of plaintiffs’ case and the substantial 7 role played by a highly qualified mediator in the settlement process, preliminary approval is 8 nonetheless appropriate. Relatedly, the court also endorses the magistrate judge’s cautionary 9 approach to plaintiffs’ preliminary indication that they will seek 33.33% of the gross settlement 10 amount as an attorneys’ fee award. (See id. at 20–23.) This amount, while above the Ninth 11 Circuit’s 25% “benchmark” for fees, is within the range of fee awards that are commonly found 12 acceptable. See Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013). 13 The court reminds the parties that it has a legal responsibility to carefully scrutinize and cross- 14 check the final request and the motion for final approval. 15 Accordingly, THE COURT HEREBY ORDERS that: 16 1. The findings and recommendations issued June 26, 2020, (Doc. No. 46) are 17 ADOPTED IN FULL; 18 2. The proposed class be conditionally certified under Rule 23(c)(1), for purposes 19 of settlement only, as the proposed class satisfies the requirements of Rule 23(a) 20 as well as the requirements for certification under one of the subsections of Rule 21 23(b), including that: 22 a. The class is so numerous that joinder of all members is impracticable; 23 b. There are questions of law and fact common to the class; 24 c. The claims or defenses of the representative party are typical of the claims or 25 defenses of the class; and 26 d. The representative party will fairly and adequately protect the interests of the 27 class. 1 3. The following persons be preliminarily certified as Class Members solely for the 2 purpose of entering a settlement in this matter:
3 all who are employed or have been employed by Defendant, in the State 4 of California, and who have worked one or more shifts as a non-exempt hourly agricultural employee, as defined by the California Labor Code, 5 Industrial Welfare Commission Wage Order 8-2001, and 29 U.S.C. §1892(3) from April 13, 2014 through April 30, 2019. 6 7 4. The Settlement Agreement (Doc. No. 37-2) be granted preliminary approval as 8 it falls within the range of possible approval as fair, adequate, and reasonable, 9 and appears to be the product of arm’s length and informed negotiations and to 10 treat all Class Members fairly, subject to the following recommendations: 11 a. The settlement administrator take additional actions to locate class members, 12 as discussed in the findings and recommendations. 13 b. All terms in the settlement agreement and notice be harmonized with each 14 other to the extent the court orders any changes to either. 15 c. The cy pres recipient(s) of unclaimed funds be determined only after the 16 funds are initially distributed. 17 5. A final approval hearing on the question of whether the settlement, attorneys’ 18 fees and costs to class counsel, and the class representative service payment 19 should be finally approved as fair, reasonable, and adequate be held as set forth 20 below. 21 6. The form and content of the Notice of Class Action Settlement (Doc. No. 37-2, 22 at 21-26), be approved conditioned on the settling parties making the following 23 modifications to the notice: 24 a. Revise the objection provision of the notice of class action settlement to 25 include an explanation that a class member may raise objections at the final 26 approval hearing, but that the court retains discretion to decline to consider 27 any objection that has not been timely submitted in writing. These 1 instructions should explain that due to the ongoing public health crisis, the 2 hearing may be telephonic only, but that any class members with objections 3 or other concerns may nonetheless call into the hearing. The notice should 4 include the relevant call-in information, which will be provided to the parties 5 when the hearing date is set. 6 b. Include suggested language to advise class members how to opt out and 7 include all relevant objection requirements. 8 c. Include an email address to receive opt-outs and objections. 9 d. Remove track changes. 10 7. The procedures for class members to be notified of, participate in, opt-out of, 11 and object to the settlement, as set forth in the Settlement (Doc. No. 37-2 at 8- 12 10), be approved as the best practicable under the circumstances and constitution 13 sufficient due notice to the class members, conditioned on the settling parties 14 making the following modifications: 15 a. The settling parties change the content of the notice consistent with the 16 above. 17 b. ILYM Group use additional means of connecting with class members, such 18 as phone calls, text messages, or a combination thereof, with instructions for 19 updating their addresses. 20 c. Remove unnecessary requirements for opting out, including Social Security 21 numbers. 22 8. The settling parties be directed to file a second revised proposed notice and 23 settlement agreement incorporating the above modifications within fourteen (14) 24 days of this order. 25 9. That class members will receive a settlement share unless they opt out of the 26 settlement sixty (60) days after the notice is sent, except as otherwise set forth in 27 the settlement agreement. 1 10. ILYM Group, Inc. be appointed to act as the settlement administrator, under the 2 terms set forth in the settlement agreement. 3 11. Jose Urena be appointed as the Class Representative. 4 12. Kingsley & Kingsley, APC, be appointed as Class Counsel. 5 13. That the notice, (Doc. No. 37-2, at 21-26), with the above modifications, be 6 distributed to class members in accordance with the procedures set forth in the 7 Settlement Agreement (Doc. No. 37-2). Proof of distribution of the notice is to 8 be filed by the parties in conjunction with the motion for an order granting final 9 approval of the Settlement. 10 14. That a final approval hearing be held in Courtroom 10 (EPG) before Magistrate 11 Judge Erica P. Grosjean, to determine whether the Settlement should be granted 12 final approval as fair, reasonable, and adequate as to the class members. The 13 time and date for that hearing will be set upon receipt and approval of the 14 revised proposed notice in accordance with the procedure set forth above. The 15 court will hear all evidence and argument necessary to evaluate the Settlement, 16 and will consider any request, made by separate motion, by plaintiff and class 17 counsel for class representative payments, and for class counsel fees and 18 expenses payment. Class members and their counsel may support or oppose the 19 settlement and the motion for awards of class representative payments and class 20 counsel fees and expenses payment, if they so desire and as set forth in the 21 notice. 22 15. That the motion for final approval of class action settlement be filed twenty- 23 eight (28) days in advance of the final approval hearing, in accordance with 24 Local Rule 230. 25 16. That the court reserves the right to continue the date of the final approval 26 hearing without further notice to class members. The court retains jurisdiction 27 to consider all further applications arising out of or in connection with the WAS 4.40°UV LEON ENS MVOC Sti POR VOM Ie PAYS VM VY
1 Settlement. 2 17. That not later than fourteen (14) calendar days after the deadline for objection or 3 exclusion, plaintiffs will file a motion for approval of their class counsel’s 4 attorneys’ fees and costs. The motion for class counsel attorneys’ fees and costs 5 shall be heard concurrently with the motion for final approval. 6 7 IT IS SO ORDERED. ~ 4 g || Dated: _ August 10, 2020 LL 7 Yrod UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27