1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 LUCAS MEJIA, on behalf of No. 2:19-cv-00218 WBS AC himself and all others similarly 13 situated, 14 Plaintiff, MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY 15 v. APPROVAL OF CLASS ACTION SETTLEMENT 16 WALGREEN CO., an Illinois Corporation; WALGREEN CO./ILL., 17 a business entity unknown; and DOES 1 to 100, inclusive, 18 Defendants. 19
20 ----oo0oo---- 21 Plaintiff Lucas Mejia, individually and on behalf of 22 all other similarly situated employees, brought this putative 23 class action against defendants Walgreen Co. and Walgreen 24 Co./Ill. (collectively, “defendants”) alleging violations of the 25 California Labor Code, Cal. Lab. Code §§ 201-203, 226.7, 510, 26 1194, 1997, 1198, the California Business and Professions Code, 27 Cal. Bus. Prof. Code § 17200, and the California Private 28 1 Attorneys General Act of 2004 (“PAGA”), Cal. Lab. Code § 2698, et 2 seq. (See First Am. Compl. (“FAC”) (Docket No. 1-6).) Plaintiff 3 has filed an unopposed motion for preliminary approval of a class 4 action settlement. (Mot. for Prelim. Approval (Docket No. 21- 5 1).) 6 I. Factual and Procedural Background 7 Defendants operate a nationwide pharmacy retail store 8 chain. (Decl. of Jordan D. Bello (“Bello Decl.”) ¶ 3 (Docket No. 9 21-2).) Plaintiff worked for defendants from approximately 2010 10 to December 2017 as an hourly stocker at one of defendants’ 11 California distribution centers. (FAC ¶ 3; Decl. of Lucas Mejia 12 (“Mejia Decl.”) ¶ 2 (Docket No. 21-4).) Many employees at 13 defendants’ distribution centers are paid hourly and thus are not 14 exempt from minimum wage or overtime pay. (FAC ¶ 15.) 15 On November 6, 2018, Plaintiff filed a putative class 16 action in the Superior Court for the County of Yolo, alleging 17 that defendants utilized a number of employment practices that 18 failed to credit non-exempt employees with all of the compensable 19 time they had worked. (See compl. (Docket No. 1-1).) For 20 instance, plaintiff alleged that defendants rounded down 21 employees’ hours on their timecards, required employees to pass 22 through security checks before and after their shift without 23 compensating them for time worked, and failed to pay premium 24 wages to employees who were denied legally required meal breaks. 25 (See Compl. ¶¶ 15, 18, 22, 27.) Plaintiff claimed that, through 26 these and other unlawful employment practices outlined in the 27 complaint, defendants (1) failed to pay wages to employees at the 28 applicable minimum wage or overtime rate for all hours worked in 1 violation of California Wage Orders and California Labor Code 2 sections 510, 1194, 1197, and 1198; (2) failed to provide all 3 legally required and legally compliant meal and rest periods in 4 violation of California Wage Orders and California Labor Code 5 sections 226.7, 512, and 1198; (3) failed to provide complete and 6 accurate wage statements in violation of California Labor Code 7 section 226; and (4) failed to timely pay final wages to 8 employees after separation of employment in violation of 9 California Labor Code sections 201, 202, and 203. (See Compl.) 10 On January 18, 2019, plaintiff amended his complaint to 11 add a claim for civil penalties under the PAGA based on 12 defendants’ alleged violations of the California Labor Code. 13 (See FAC ¶¶ 84-91.) Following removal of the case to this court, 14 the parties engaged in informal discovery until December 2019, 15 when they conducted a mediation before an experienced employment 16 litigation mediator, Lynne Frank, Esq. (See Bello Decl. ¶ 7.) 17 The mediation, along with subsequent informal settlement 18 negotiations, produced the settlement agreement (the “Settlement 19 Agreement”) before the court today. 20 As proposed, the Settlement Agreement contemplates a 21 release of all claims asserted in this action by the settlement 22 class, defined as “any current or former hourly non-exempt 23 employees who worked at any of [d]efendants’ California 24 distribution centers at any time from November 6, 2014 to June 2, 25 2020.” (See Bello Decl., Ex. 1 (“Settlement Agreement”) at 1 26 (Docket No. 21-2).) The proposed settlement class consists of 27 approximately 2,648 current and former employees. (Decl. of 28 Shawna Compton (“Compton Decl.”) ¶ 6 (Docket No. 21-3).) 1 Defendants have agreed to pay up to $4,500,000 to 2 create a common fund, from which payments will be made for (1) 3 attorney’s fees in an amount up to $1,500,000, or 33% of the 4 fund; (2) litigation costs incurred by class counsel, estimated 5 at $15,000; (3) an incentive award for plaintiff of $7,500; (4) 6 settlement administration costs estimated at $35,000, payable to 7 CPT Group, Inc.; and (5) the payment of $150,000 for civil 8 penalties under the PAGA. (See id. at 15-17.) The remaining 9 funds (“Net Settlement Amount”), estimated at $2,830,000, will be 10 distributed to class members who do not opt out of the 11 settlement. (See id. at Ex. 1, p. 5.) 12 Each participating class member is eligible to receive 13 a proportional share of the Net Settlement Amount, depending on 14 how many compensable workweeks the class member worked for 15 defendants during the period covered by the settlement. (See id. 16 at Ex. 1, pp. 5-6.) Plaintiff’s counsel estimates that each 17 class member will receive approximately $1,210.34. (See Bello 18 Decl. ¶ 34.) 19 Seventy-five percent (75%) of the PAGA penalties, or 20 $112,500, will be paid to the California Labor and Workforce 21 Development Agency (“LWDA”); the remaining 25%, or $37,500, will 22 be distributed to class members equally. (See Bello Decl., Ex. 1 23 at 16.) Plaintiff provided a copy of the proposed settlement 24 agreement to the LWDA on October 26, 2020, concurrently with the 25 filing of his Motion for Preliminary Approval. (Bello Decl. ¶ 26 41.) 27 The Notice of Class Action Settlement will be mailed to 28 all class members via first class mail. The Notice informs class 1 members that they have the right to dispute the number of 2 workweeks attributed to them. (See id., Ex. 1 at 14.) Class 3 members shall have 60 days to either opt out or to submit an 4 objection to the proposed settlement. (Id. at 6-7.) 5 II. Discussion 6 Federal Rule of Civil Procedure 23(e) provides that 7 “[t]he claims, issues, or defenses of a certified class may be 8 settled . . . only with the court’s approval.” Fed. R. Civ. P. 9 23(e). “To vindicate the settlement of such serious claims, 10 however, judges have the responsibility of ensuring fairness to 11 all members of the class presented for certification.” Staton v. 12 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). “Where [] the 13 parties negotiate a settlement agreement before the class has 14 been certified, settlement approval requires a higher standard of 15 fairness and a more probing inquiry than may normally be required 16 under Rule 23(e).” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 17 1048 (9th Cir. 2019) (citation and internal quotations omitted). 18 The approval of a class action settlement takes place 19 in two stages. In the first stage, “the court preliminarily 20 approves the settlement pending a fairness hearing, temporarily 21 certifies a settlement class, and authorizes notice to the 22 class.” Ontiveros v. Zamora, No. 2:08-567 WBS DAD, 2014 WL 23 3057506, at *2 (E.D. Cal. July 7, 2014). In the second, the 24 court will entertain class members’ objections to (1) treating 25 the litigation as a class action and/or (2) the terms of the 26 settlement agreement at the fairness hearing. Id. The court 27 will then reach a final determination as to whether the parties 28 should be allowed to settle the class action following the 1 fairness hearing. Id. 2 Consequently, this order “will only determine whether 3 the proposed class action settlement deserves preliminary 4 approval and lay the groundwork for a future fairness hearing.” 5 See id. (citations omitted). 6 A. Class Certification 7 To be certified, the putative class must satisfy both 8 the requirements of Federal Rule of Civil Procedure 23(a) and 9 (b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 10 2013). The court will address each subpart in turn. 11 1. Rule 23(a) 12 In order to certify a class, Rule 23(a)’s four 13 threshold requirements must be met: numerosity, commonality, 14 typicality, and adequacy of representation. Fed. R. Civ. P. 15 23(a). “Class certification is proper only if the trial court 16 has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has 17 been satisfied.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 18 542-43 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 19 564 U.S. 338, 351 (2011)). 20 a. Numerosity 21 While Rule 23(a)(1) requires that the class be “so 22 numerous that joinder of all members is impracticable,” Fed. R. 23 Civ. P. 23(a)(1), it does not require “a strict numerical cut- 24 off.” McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 167 25 (S.D. Cal. 2019) (citations omitted). Generally, “the numerosity 26 factor is satisfied if the class compromises 40 or more members.” 27 Id. (quoting Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 28 (N.D. Cal. 2007)). Here, the parties estimate that there are 1 2,648 class members. (Compton Decl. ¶ 6.) The numerosity element 2 is therefore satisfied. 3 b. Commonality 4 Next, Rule 23(a) requires that there be “questions of 5 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 6 Rule 23(a)(2) is satisfied when there is a “common contention . . 7 . of such a nature that it is capable of classwide resolution -- 8 which means that determination of its truth or falsity will 9 resolve an issue that is central to the validity of each one of 10 the claims in one stroke.” Wal-Mart Stores, 564 U.S. at 350. 11 “Plaintiffs need not show that every question in the case, or 12 even a preponderance of questions, is capable of classwide 13 resolution. So long as there is ‘even a single common question,’ 14 a would-be class can satisfy the commonality requirement of Rule 15 23(a)(2).” Wang, 737 F.3d at 544 (citing id.). 16 Here, the claims implicate common questions of law and 17 fact because they are all premised on policies that applied to 18 all class members equally. All class members were non-exempt 19 hourly employees of defendants’ distribution centers, and thus 20 share several common legal questions, including: (1) whether 21 defendants’ policy of requiring “off the clock” security checks 22 or of rounding down employees’ time worked on their timecards 23 violated California Labor Code §§ 510, 1194, and California Wage 24 Order 7; (2) whether defendants’ meal and rest break policies 25 violated California Labor Code §§ 226.7 and 512, as well as 26 California Wage Order 5; (3) whether defendants’ policy of 27 providing wage statements to their employees violated California 28 Labor Code § 226(a); (4) whether defendants’ policy of providing 1 unpaid final wages violated California Labor Code §§ 201, 202, 2 and 203; and (5) whether these violations of the California Labor 3 Code entitle class members to PAGA penalties. (See FAC ¶¶ 34- 4 91.) 5 Generally, “challeng[ing] a policy common to the class 6 as a whole creates a common question whose answer is apt to drive 7 the resolution of the litigation.” Ontiveros, 2014 WL 3057506, 8 at *5. Even if individual members of the class will be entitled 9 to different amounts of damages because, for instance, they were 10 denied fewer meal and rest breaks than other employees or had 11 their time rounded down less often than other employees, “the 12 presence of individual damages cannot, by itself, defeat class 13 certification.” Leyva, 716 F.3d at 514 (quoting Wal-Mart Stores, 14 564 U.S. at 362). Accordingly, these common questions of law and 15 fact satisfy Rule 23(a)’s commonality requirement. 16 c. Typicality 17 Rule 23(a) further requires that the “claims or 18 defenses of the representative parties [be] typical of the claims 19 or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The test 20 for typicality is “whether other members have the same or similar 21 injury, whether the action is based on conduct which is not 22 unique to the named plaintiffs, and whether other class members 23 have been injured by the same course of conduct.” Sali v. Corona 24 Reg’l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (quoting 25 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 26 Here, the named plaintiff satisfies the typicality requirement. 27 The named plaintiff and the other class members all worked at 28 defendants’ distribution centers and performed similar, if not 1 the same, work. Plaintiff and the other class members were all 2 subject to the same policies and practices in question, including 3 daily security checks, rounding down of time worked, and denial 4 of rest and meal periods. (FAC ¶¶ 15, 18, 22, 27.) Accordingly, 5 the typicality requirement is satisfied. 6 d. Adequacy of Representation 7 Finally, Rule 23(a) requires that “the representative 8 parties will fairly and adequately protect the interests of the 9 class.” Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) “serves to 10 uncover conflicts of interest between named parties and the class 11 they seek to represent” as well as the “competency and conflicts 12 of class counsel.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 13 625, 626 n.20 (1997). The court must consider two factors: (1) 14 whether the named plaintiff and his counsel have any conflicts of 15 interest with other class members and (2) whether the named 16 plaintiff and his counsel will vigorously prosecute the action on 17 behalf of the class. In re Hyundai and Kia Fuel Econ. Litig., 18 926 F.3d 539, 566 (9th Cir. 2019) (quoting Hanlon v. Chrysler 19 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). 20 i. Conflicts of Interest 21 The first portion of the adequacy inquiry considers 22 whether plaintiff’s interests are aligned with those of the 23 class. “[A] class representative must be part of the class and 24 possess the same interest and suffer the same injury as the class 25 members.” Amchem, 521 U.S. at 625-26 (internal modifications 26 omitted). 27 In most respects, the named plaintiff’s interests 28 appear to be aligned with those of the class. (See generally 1 FAC.) As described above, plaintiff was employed in the same 2 workplace, performed similar tasks, and was subjected to the same 3 policies and practices that allegedly violated California law as 4 other class members. (Id.) Despite the many similarities, 5 plaintiff alone stands to benefit for his participation in this 6 litigation by receiving an incentive award of $7,500. (Mot. for 7 Preliminary Approval at 4.) The use of an incentive award raises 8 the possibility that a plaintiff’s interest in receiving that 9 award will cause his interests to diverge from the class’s in a 10 fair settlement. Staton, 327 F.3d at 977-78. Consequently, the 11 court must “scrutinize carefully the awards so that they do not 12 undermine the adequacy of the class representatives.” Radcliffe 13 v. Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 14 2013). 15 Plaintiff’s counsel estimates that each class member 16 will receive an average of approximately $1,210.34. (Bello Decl. 17 ¶ 34.) Plaintiff’s proposed award of $7,500 represents 18 substantially more. However, incentive awards “are intended to 19 compensate class representatives for work done on behalf of the 20 class, to make up for financial or reputational risk undertaken 21 in bringing the action, and, sometimes, to recognize their 22 willingness to act as a private attorney general.” Rodriguez v. 23 West Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). Indeed, 24 the Ninth Circuit has consistently recognized incentive awards 25 are “fairly typical” way to “compensate class representatives for 26 work done on behalf of the class” or “to make up for financial or 27 reputational risk undertaken in bringing the action.” Id. 28 Here, a $7,500 incentive payment appears appropriate at 1 this stage. The payment represents approximately 0.2% of the 2 total settlement amount. Plaintiff represents that he has spent 3 significant amounts of time to bring this case, providing counsel 4 with important documents, information, and insight regarding 5 defendants’ policies and practices. (Mejia Decl. ¶ 4.) While 6 other courts have indicated that $7,500 may be on the higher end 7 of what is acceptable in the Ninth Circuit, see Roe v. Frito-Lay, 8 Inc., No. 14CV-00751, 2017 WL 1315626, at *8 (N.D. Cal. Apr. 7, 9 2017) (“[A] $5,000 incentive award is ‘presumptively reasonable’ 10 in the Ninth Circuit.”) (collecting cases), there are also 11 examples of courts awarding higher incentive awards in analogous 12 cases, see, e.g., Villalpando v. Exel Direct Inc., No. 3:12-cv- 13 04137-JCS, 2016 WL 7785852, at *2 (N.D. Cal. Dec. 9, 2016) 14 (awarding each named plaintiff $15,000 following 15 misclassification suit). Though the incentive award here does 16 not appear to create a conflict of interest, the court emphasizes 17 this finding is only a preliminary determination. Plaintiff 18 represents he will formally seek the incentive award through a 19 separate motion, to be heard at the final approval hearing. 20 (Mot. for Prelim. Approval at 4.) At that time, plaintiff should 21 be prepared to present further evidence of his substantial 22 efforts taken as a class representative to better justify the 23 discrepancy between the award and those of the unnamed class 24 members. 25 ii. Vigorous Prosecution 26 The second portion of the adequacy inquiry examines the 27 vigor with which the named plaintiff and his counsel have pursued 28 the class’s claims. “Although there are no fixed standards by 1 which ‘vigor’ can be assayed, considerations include competency 2 of counsel and, in the context of a settlement-only class, an 3 assessment of the rationale for not pursuing further litigation.” 4 Hanlon, 150 F.3d at 1021. 5 Here, class counsel appear to be experienced employment 6 and class action litigators fully qualified to pursue the 7 interests of the class. (Bello Decl. ¶¶ 35-40.) Class counsel 8 represent that they have each litigated numerous wage and hour 9 class actions as lead counsel in state and federal court and that 10 they have carefully vetted their clients’ claims and defendants’ 11 arguments through rigorous legal analysis. (Id. ¶¶ 11-40 (citing 12 cases).) This experience, coupled with the diligent work 13 expended on this case, suggest that class counsel are well- 14 equipped to handle this case. Accordingly, the court finds that 15 plaintiff and plaintiff’s counsel are adequate representatives of 16 the class. 17 2. Rule 23(b) 18 After fulfilling the threshold requirements of Rule 19 23(a), the proposed class must satisfy the requirements of one of 20 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. 21 Plaintiff seeks provisional certification under Rule 23(b)(3), 22 which provides that a class action may be maintained only if “the 23 court finds that questions of law or fact common to class members 24 predominate over questions affecting only individual members” and 25 “that a class action is superior to other available methods for 26 fairly and efficiently adjudicating the controversy.” Fed. R. 27 Civ. P. 23(b)(3). The test of Rule 23(b)(3) is “far more 28 demanding,” than that of Rule 23(a). Wolin v. Jaguar Land Rover 1 N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem, 2 521 U.S. at 623-24). 3 a. Predominance 4 “The predominance analysis under Rule 23(b)(3) focuses 5 on ‘the relationship between the common and individual issues’ in 6 the case and ‘tests whether proposed classes are sufficiently 7 cohesive to warrant adjudication by representation.’” Wang, 737 8 F.3d at 545 (quoting Hanlon, 150 F.3d at 1022). However, 9 plaintiff is not required to prove that the predominating 10 question will be answered in his favor at the class certification 11 stage. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 12 468 (2013). 13 Here, the claims brought by the proposed settlement 14 class all arise from defendants’ same conduct. For example, all 15 class members were subjected to defendants’ requirement that they 16 submit to a security check off the clock, defendants’ quarter 17 hour rounding policy, defendants’ meal and rest break policy, and 18 defendants’ policy regarding payment of final, unpaid wages. 19 (Bello Decl. ¶¶ 11-34.) These policies serve as common facts 20 uniting plaintiff’s individual claims and the class claims. 21 Common questions of law include whether defendants’ policies and 22 practices violated various sections of the California Labor Code, 23 California Wage Orders, and the California Business and 24 Professions Code, as well as whether defendants’ violations of 25 the California Labor Code give rise to penalties under the PAGA. 26 (See FAC ¶¶ 34-91.) The class claims thus demonstrate a “common 27 nucleus of facts and potential legal remedies” that can properly 28 be resolved in a single adjudication. See Hanlon, 150 F.3d at 1 1022. Accordingly, the court finds common questions of law and 2 fact predominate over questions affecting only individual class 3 members. 4 b. Superiority 5 Rule 23(b)(3) sets forth four non-exhaustive factors 6 that courts should consider when examining whether “a class 7 action is superior to other available methods for fairly and 8 efficiently adjudicating the controversy.” Fed. R. Civ. P. 9 23(b)(3). They are: “(A) the class members’ interests in 10 individually controlling the prosecution or defense of separate 11 actions; (B) the extent and nature of any litigation concerning 12 the controversy already begun by or against class members; (C) 13 the desirability or undesirability of concentrating the 14 litigation of the claims in the particular forum; and (D) the 15 likely difficulties in managing a class action.” Id. Factors 16 (C) and (D) are inapplicable because the parties settled this 17 action before class certification. See Syed v. M-I LLC, No. 18 1:14-cv-00742 WBS BAM, 2019 WL 1130469, at *6 (E.D. Cal. Mar. 12, 19 2019) (citation omitted). Therefore, the court will focus 20 primarily on factors (A) and (B). 21 Rule 23(b)(3) is concerned with the “vindication of the 22 rights of groups of people who individually would be without 23 effective strength to bring their opponents into court at all.” 24 Amchem, 521 U.S. at 617. When class members’ individual recovery 25 is relatively modest, the class members’ interests generally 26 favors certification. Zinser v. Accufix Res. Inst., Inc., 253 27 F.3d 1180, 1190 (9th Cir. 2001). Again, plaintiff’s counsel 28 estimates that class members will receive approximately 1 $1,210.34. (Bello Decl. ¶ 34.) This anticipated sum, while 2 modest in light of the $4,500,000 recovery, represents a strong 3 result for the class given the strength of the claims, the risks 4 of litigation and delay, and the defendants’ potential exposure. 5 (Bello Decl. ¶¶ 33-34.) Accordingly, factor (A) weighs in favor 6 of certification. 7 Factor (B), concerning the “extent and nature of the 8 litigation,” is “intended to serve the purpose of assuring 9 judicial economy and reducing the possibility of multiple 10 lawsuits.” Zinser, 253 F.3d at 1191 (quoting 7A Charles Alan 11 Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and 12 Procedure § 1780 at 568-70 (“Wright & Miller”) (2d ed. 1986)). 13 If the court finds that several other actions already are pending 14 and that “a clear threat of multiplicity and a risk of 15 inconsistent adjudications actually exist, a class action may not 16 be appropriate since, unless the other suits can be enjoined, . . 17 . a Rule 23 proceeding only might create one more action.” Id. 18 (quoting Wright and Miller at 568-70)). “Moreover, the existence 19 of litigation indicates that some of the interested parties have 20 decided that individual actions are an acceptable way to proceed, 21 and even may consider them preferable to a class action.” Id. 22 (quoting Wright and Miller at 568-70). 23 Here, plaintiff states that two substantially similar 24 putative class actions against defendants are currently pending 25 in United States District Courts. (See Mot. for Prelim. Approval 26 at 13-14; Notice of Related Case (Docket No. 16).) The first, 27 Whittington v. Walgreen Co. et al., Case No. 2:20-cv-00600-WBS- 28 CKD, is a wage and hour class action that was filed on behalf of 1 the same class as this action in Sacramento County Superior Court 2 in January 2020, and which was removed to this court in March 3 2020. The second case, Neuhoff v. Walgreen Co. et al., Case No. 4 4:20-cv-2439, is a wage and hour class action that was filed on 5 behalf of a subset of the class in this action (employees of 6 defendants’ distribution centers who carried radios) in Marin 7 County Superior Court in January 2020, and which was removed to 8 the Northern District of California in April 2020. Because these 9 actions have also been brought as putative class actions, they do 10 not “indicate[] that some of the interested parties have decided 11 that individual action are an acceptable [or preferable] way to 12 proceed.” See Zinser, 253 F.3d at 1191. 13 Plaintiff’s case also predates the Whittington and 14 Neuhoff actions by over a year. (See Docket No. 1, Ex. 1.) 15 Because those actions are also pending in federal court, involve 16 the same defendants and putative class members, and involve the 17 same issues, plaintiff’s case has precedence over them under the 18 “first-to-file” rule of judicial comity. See Kohn Law Grp., Inc. 19 v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th Cir. 20 2015) (“The first-to-file rule allows a district court to 21 transfer, stay, or dismiss an action when a similar complaint has 22 already been filed in another federal court.”); Pacesetter Sys. 23 v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982) (“There is 24 a generally recognized doctrine of federal comity which permits a 25 district court to decline jurisdiction over an action when a 26 complaint involving the same parties and issues has already been 27 filed in another district.”) Indeed, this court has already 28 stayed the Whittington matter under the first-to-file rule 1 pending resolution of this case (see Whittington, No. 2:20-cv- 2 00600-WBS-CKD (Docket No. 11) (citing Kohn, 787 F.3d at 1239)), 3 and the parties in the Neuhoff matter appear to have filed a 4 stipulation to dismiss the plaintiff’s claims without prejudice 5 in August 2020, (see Neuhoff, No. 4:20-cv-2439 (Docket No. 17)). 6 There is therefore little risk in this case that class 7 certification will “create one more action” that subjects 8 defendants to a multiplicity of litigation or risk of 9 inconsistent judgments. Zinser, 253 F.3d at 1191. Accordingly, 10 factor (B) also weighs in favor of certification. See id. 11 3. Rule 23(c)(2) Notice Requirements 12 If the court certifies a class under Rule 23(b)(3), it 13 “must direct to class members the best notice that is practicable 14 under the circumstances, including individual notice to all 15 members who can be identified through reasonable effort.” Fed. 16 R. Civ. P. 23(c)(2)(B). Actual notice is not required, but the 17 notice provided must be “reasonably certain to inform the absent 18 members of the plaintiff class.” Silber v. Mabon, 18 F.3d 1449, 19 1454 (9th Cir. 1994) (citation omitted). 20 The parties have jointly agreed to use CPT Group, Inc. 21 (“CPT”) to serve as the Settlement Administrator. (Bello Decl., 22 Ex. 1, at 4.) CPT has extensive experience in class action 23 matters, providing administration services in thousands of cases 24 since 1984 for cases in all courts in California and a number of 25 United States District Courts. (Id., Ex. 2.) Pursuant to the 26 notice plan, CPT will receive and process the class list data 27 within fifteen business days of the court’s order granting 28 preliminary approval. (Id., Ex. 1 at 11.) 1 “Notice is satisfactory if it ‘generally describes the 2 terms of the settlement in sufficient detail to alert those with 3 adverse viewpoints to investigate and to come forward and be 4 heard.’” See Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 5 575 (9th Cir. 2004). The notice will provide, among other 6 things, a description of the case; the total settlement amount 7 and how it will be allocated (including information about 8 plaintiff’s motion for attorney’s fees); the procedures for 9 opting out or objecting to the settlement; the individual class 10 member’s share; and the procedures for disputing the number of 11 workweeks attributed to the class member under the settlement. 12 (Id.) CPT will translate the notice from English to Spanish and 13 will provide both translations in its notice to class members. 14 (Id.) All class members will receive individual notice by first 15 class mail. (Id.) 16 The system set forth in the Settlement Agreement is 17 reasonably calculated to provide notice to class members and 18 inform class members of their options under the agreement. 19 Accordingly, the manner of notice and the content of notice is 20 sufficient to satisfy Rule 23(c)(2)(B). 21 B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement 22 23 Because the proposed class preliminarily satisfies the 24 requirements of Rule 23(a) and (b), the court must consider 25 whether the terms of the parties’ settlement appear fair, 26 adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). To 27 determine the fairness, adequacy, and reasonableness of the 28 agreement, Rule 23(e) requires the court to consider four 1 factors: “(1) the class representatives and class counsel have 2 adequately represented the class; (2) the proposal was negotiated 3 at arm's length; (3) the relief provided for the class is 4 adequate; and (4) the proposal treats class members equitably 5 relative to each other.” Id. The Ninth Circuit has also 6 identified eight additional factors the court may consider, many 7 of which overlap substantially with Rule 23(e)’s four factors:
8 (1) The strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of 9 further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount 10 offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the 11 experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the 12 class members to the proposed settlement.
13 See Staton, 327 F.3d at 959. 14 However, many of these factors cannot be considered 15 until the final fairness hearing. Accordingly, the court’s 16 review will be confined to resolving any “‘glaring deficiencies’ 17 in the settlement agreement.”1 Syed, 2019 WL 1130469, at *7 18
19 1 Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy 20 of the state’s labor law enforcement agencies, the court will have to “review and approve” settlement of plaintiff’s and other 21 class members’ PAGA claims when the parties move for final 22 approval of the Settlement Agreement. See Cal. Lab. Code § 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 23 425, 435-36 (9th Cir. 2015). Though “[the] PAGA does not establish a standard for 24 evaluating PAGA settlements,” Rodriguez, 2019 WL 331159 at *4 (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-CV-01293 KJM KJN, 25 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of district courts have applied the eight Staton factors, listed 26 above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 27 1899912, at *2; Ramirez, 2017 WL 3670794, at *3; O’Connor v. Uber Techs., 201 F. Supp. 3d 1110, 1134 (N.D. Cal. 2016). “Many of 28 these factors are not unique to class action lawsuits and bear on 1 (citations omitted). 2 1. Adequate Representation 3 The court must first consider whether “the class 4 representatives and class counsel have adequately represented the 5 class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is 6 “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson 7 v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060, 8 at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on 9 Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds 10 Antitrust Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) 11 (noting similarity of inquiry under Rule 23(a)(4) and Rule 12 23(e)(2)(A)). 13 Because the Court has found that the proposed class 14 satisfies Rule 23(a)(4) for purposes of class certification, the 15 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 16 2020 WL 2467060, at *5. 17 2. Negotiations of the Settlement Agreement 18 Counsel for both sides appear to have diligently 19 pursued settlement after thoughtfully considering the strength of 20 their arguments and potential defenses. The parties participated 21 in an arms-length mediation before an experienced employment 22 litigation mediator, Lynne Frank, Esq., on December 5, 2019. 23 whether a settlement is fair and has been reached through an 24 adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors will also govern 25 its review of the PAGA settlement. See id. As noted above, because some of these factors cannot be evaluated until the final 26 fairness hearing, the court will limit its review of the PAGA 27 settlement on preliminary approval to determining whether there are any “‘glaring deficiencies’ in the settlement agreement.” 28 See Syed, 2019 WL 1130469, at *7 (citations omitted). 1 (Bello Decl. ¶ 7.) Though the case did not settle on the date of 2 mediation, the parties continued with informal settlement 3 negotiations before reaching an agreement in principle in March 4 2020 and executing a long-form settlement agreement in July 2020. 5 (Id. ¶ 7, Ex. 1.) Given the sophistication and experience of 6 plaintiff’s counsel, and the parties’ representation that the 7 settlement reached was the product of arms-length bargaining, the 8 court does not question that the proposed settlement is in the 9 best interest of the class. See Fraley v. Facebook, Inc., 966 F. 10 Supp. 2d 939, 942 (N.D. Cal. 2013) (holding that a settlement 11 reached after informed negotiations “is entitled to a degree of 12 deference as the private consensual decision of the parties” 13 (citing Hanlon, 150 F.3d at 1027)). 14 3. Adequate Relief 15 In determining whether a settlement agreement provides 16 adequate relief for the class, the court must “take into account 17 (i) the costs, risks, and delay of trial and appeal; (ii) the 18 effectiveness of any proposed method of distributing relief to 19 the class, including the method of processing class-member 20 claims; (iii) the terms of any proposed award of attorney's fees, 21 including timing of payment; and (iv) any [other] agreement[s]” 22 made in connection with the proposal. See Fed. R. Civ. P. 23 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA- 24 AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). 25 Here, plaintiff’s counsel estimates that class members 26 who do not opt out will receive approximately $1,210.34 for their 27 claims under the California Labor Code. (Bello Decl. ¶ 34.) 28 Because this amount is based on the number of workweeks each 1 class member worked during the period covered by the Settlement 2 Agreement, the court finds that it is an effective method of 3 distributing relief to the class. 4 The Settlement Agreement also sets aside $150,000 of 5 the common fund for civil penalties under the PAGA, $37,500 of 6 which will be distributed evenly among class members who do not 7 opt out. (See Settlement Agreement at 16.) While plaintiff’s 8 counsel estimates that plaintiff’s Labor Code claims could be 9 worth up to $20,109,580 and that the PAGA claim could be worth up 10 to an additional $16,059,468, counsel recognizes that defendants 11 had legitimate defenses to these claims that risked reducing the 12 amount plaintiff and the class could recover at trial, including 13 that (1) defendants’ rounding policies were neutral on their face 14 and thus could have resulted in additional time recorded for 15 employees on some occasions, (2) that their security checks were 16 not in place during the entire relevant period, and (3) that the 17 checks did not always require employees to stand in line for 18 substantial periods of time, among other defenses. (See Bello 19 Decl. ¶ 32-33.) Because the amount of penalties plaintiff would 20 be entitled to under the PAGA depends on how many violations of 21 the California Labor Code defendants committed, these defenses 22 also potentially apply to plaintiff’s PAGA claim. (See id.) 23 Plaintiff’s counsel represents that, given the strength 24 of plaintiff’s claims and defendants’ potential exposure, the 25 settlement and resulting distribution provides a strong result 26 for the class. (Id. ¶ 11-34.) The amount of the gross 27 settlement, $4,500,000, represents approximately 22% of the 28 potential damages (not including PAGA penalties) in this matter. 1 (Id. ¶ 32.) Based on his experience, plaintiff’s counsel asserts 2 that settlement was in the best interest of the class, given the 3 strength of defendants’ defenses, volatility in this area of the 4 law, and the possibility of receiving nothing had the court 5 agreed with defendants’ positions. (See id.) There also does 6 not appear to be any “glaring deficiency” in the amount of the 7 common settlement fund reserved for PAGA penalties, see Syed, 8 2019 WL 1130469, at *7 (citations omitted), as courts frequently 9 approve settlements in wage and hour class action and PAGA 10 actions that minimize the total amount of the settlement that is 11 paid to PAGA penalties in order to maximize payments to class 12 members. See, e.g., Nen Thio v. Genji, LLC, 14 F. Supp. 3d 1324, 13 1330 (N.D. Cal. 2014) (preliminarily approving $10,000 in PAGA 14 penalties out of a total settlement amount of $1,250,000); Garcia 15 v. Gordon Trucking, Inc., No. 1:10-cv-0324 AWI SKO, 2012 WL 16 5364575 (E.D. Cal. Oct. 31, 2012) (granting final approval of 17 $10,000 in PAGA penalties out of a total settlement amount of 18 $3,700,000). 19 Thus, while the settlement amount represents “more than 20 the defendants feel those individuals are entitled to” and will 21 potentially be “less than what some class members feel they 22 deserve,” the settlement offers class members the prospect of 23 some recovery, instead of none at all. See Officers for Justice 24 v. Civil Serv. Comm’n, 688 F.2d 615, 628 (9th Cir. 1982). 25 The Settlement Agreement further provides for an award 26 of attorney’s fees totaling 33% of the $4,500,000 gross 27 settlement amount. (See Settlement Agreement at 16.) If a 28 negotiated class action settlement includes an award of 1 attorney’s fees, then the court “ha[s] an independent obligation 2 to ensure that the award, like the settlement itself, is 3 reasonable, even if the parties have already agreed to an 4 amount.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 5 935, 941 (9th Cir. 2011). 6 “Under the ‘common fund’ doctrine, ‘a litigant or a 7 lawyer who recovers a common fund for the benefit of persons 8 other than himself or his client is entitled to a reasonable 9 attorney’s fee from the fund as a whole.’” Staton, 327 F.3d at 10 969 (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)). 11 The Ninth Circuit has recognized two different methods for 12 calculating reasonable attorney’s fees in common fund cases: the 13 lodestar method or the percentage-of-recovery method. Id. at 14 941-42. In the lodestar method, courts multiply the number of 15 hours the prevailing party expended on the litigation by a 16 reasonable hourly rate. Id. Under the percentage-of-recovery 17 method, courts typically delineate 25% of the total settlement as 18 the fee. Hanlon, 150 F.3d at 1029. However, courts may adjust 19 this figure if the record reflects “special circumstances 20 justifying a departure.” Bluetooth, 654 F.3d at 942. Where, as 21 here, the settlement has produced a common fund for the benefit 22 of the entire class, courts have discretion to use either method. 23 Id. at 942 (citing In re Mercury Interactive Corp., 618 F.3d 988, 24 992 (9th Cir. 2010)). 25 Plaintiff’s counsel have represented that, despite the 26 Settlement Agreement authorizing them to seek up to 33% of the 27 common fund in attorney’s fees, they will seek fees totaling 25% 28 of the common fund by filing a separate motion for attorney’s 1 fees and costs pursuant to Federal Rule 23(h). (Mot. for Prelim. 2 Approval at 19.) The court will defer consideration of the 3 reasonableness of counsel’s fees until the fee motion is filed. 4 Class counsel is cautioned that the reasons for the attorney’s 5 fees should be explained further in that motion. Factors 6 considered in examining the reasonableness of the fee may 7 include: (1) whether the results achieved were exceptional; (2) 8 risks of litigation; (3) non-monetary benefits conferred by the 9 litigation; (4) customary fees for similar cases; (5) the 10 contingent nature of the fee and financial burden carried by 11 counsel; and (6) the lawyer’s “reasonable expectations, which are 12 based on the circumstances of the case and the range of fee 13 awards out of common funds of comparable size.” See Vizcaino v. 14 Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002). A 15 lodestar cross-check, including the hours worked by each 16 attorney, paralegal, and case manager multiplied by their hourly 17 rate, is also a valuable means by which to check the 18 reasonableness of requested fees. In the event that class 19 counsel cannot demonstrate the reasonableness of the requested 20 attorney’s fee, the court will be required to reduce the fee to a 21 reasonable amount or deny final approval of the settlement. See 22 id. at 1047. 23 In light of the claims at issue, defendants’ potential 24 exposure, the risk to plaintiff and to the class of proceeding to 25 trial, and the fact that the court will separately assess the 26 reasonableness of plaintiff’s request for attorney’s fees at a 27 later date, the court finds that the substance of the settlement 28 is fair to class members and thereby “falls within the range of 1 possible approval,” both for plaintiff’s California Labor Code 2 claims and his PAGA claim. See Tableware, 484 F. Supp. 2d at 3 1079; Ramirez, 2017 WL 3670794, at *3. Counsel has not directed 4 the court to any other relevant agreements that would alter this 5 analysis. The court therefore finds that Rule 23(e)’s third 6 factor is satisfied. See Fed. R. Civ. P. 23(e)(C). 7 4. Equitable Treatment of Class Members 8 Finally, the court must consider whether the Settlement 9 Agreement “treats class members equitably relative to each 10 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the Court 11 determines whether the settlement “improperly grant[s] 12 preferential treatment to class representatives or segments of 13 the class.” Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 14 484 F. Supp. at 1079. 15 Here, the Settlement Agreement does not improperly 16 discriminate between any segments of the class, as all class 17 members are entitled to monetary relief based on the number of 18 compensable workweeks they spent working for defendants. See id. 19 While the Settlement Agreement allows plaintiff to seek an 20 incentive award of $7,500, plaintiff will have to submit 21 additional evidence documenting his time and effort spent on this 22 case to ensure that his additional compensation above other class 23 members is justified. See Hudson, 2020 WL 2467060, at *9. The 24 court will retain the discretion to award less than the requested 25 $7,500 if it finds that such an award is not warranted by 26 plaintiff’s submission. See Willner v. Manpower Inc., No. 11-CV- 27 02846-JST, 2015 WL 3863625, at *9 (N.D. Cal. June 22, 2015) 28 (reducing $11,000 service award to $7,500). The court therefore 1 finds that the Settlement Agreement treats class members 2 equitably. See Fed. R. Civ. P. 23(e)(D). 3 5. Remaining Staton Factors 4 In addition to the Staton factors already considered as 5 part of the court’s analysis under Rule 23(e)(A)-(D), the court 6 must also take into account “the extent of the discovery 7 completed . . . the presence of government participation, and the 8 reaction of class members to the proposed settlement.” Staton, 9 327 F.3d at 959. 10 Though the parties only engaged in informal discovery 11 prior to engaging in mediation in December 2019, defendants 12 provided a substantial amount of information that appears to have 13 allowed the parties to adequately assess the value of plaintiff’s 14 and the class’ claims. (See Bello Decl.) Defendants provided 15 the electronic daily timecard data for 2,088 class members from 16 November 2018 through November 2018, consisting of approximately 17 1,024,383 shifts of data. (Mot. for Prelim. Approval at 3; Bello 18 Decl. ¶ 6.) Defendants also provided additional data such as the 19 number of class members, workweeks, pay periods, average rate of 20 pay, and copies of defendants’ relevant written policies. (Bello 21 Decl. ¶ 6.) For his part, plaintiff retained an expert to assist 22 in evaluating the data to prepare a damages evaluation for 23 mediation and potentially for subsequent litigation. (Id.) This 24 factor weighs in favor of preliminary settlement approval. 25 The seventh Staton factor, pertaining to government 26 participation, also weighs in favor of approval. Staton, 327 27 F.3d at 959. Under the PAGA, “[t]he proposed settlement [must 28 be] submitted to the [LWDA] at the same time that it is submitted 1 to the court.” Cal. Lab. Code § 2669(k)(2). Here, plaintiff 2 provided a copy of the proposed settlement agreement to the LWDA 3 on October 26, 2020, concurrently with the filing of his Motion 4 for Preliminary Approval. (Bello Decl. ¶ 41.) As of the date of 5 this order, the LWDA has not sought to intervene or otherwise 6 objected to the PAGA settlement. The court will continue to 7 monitor LWDA’s involvement until the final fairness hearing. 8 The eighth Staton factor, the reaction of the class 9 members to the proposed settlement, is not relevant at this time 10 because class members have not yet received notice of the 11 settlement. See Staton, 327 F.3d at 959. 12 The court therefore finds that the remaining Staton 13 factors weigh in favor of preliminary approval of the Settlement 14 Agreement. See Ramirez, 2017 WL 3670794, at *3. 15 In sum, the four factors that the court must evaluate 16 under Rule 23(e) and the eight Staton factors, taken as a whole, 17 appear to weigh in favor of the settlement. The court will 18 therefore grant preliminary approval of the Settlement Agreement. 19 C. Rule 23(e) Notice Requirements 20 Under Rule 23(e)(1)(B), “the court must direct notice 21 in a reasonable manner to all class members who would be bound 22 by” a proposed settlement. Fed. R. Civ. P. 23(e)(1)(B). While 23 there are “no rigid rules to determine whether a settlement 24 notice to class members satisfies constitutional and Rule 23(e) 25 requirements,” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 26 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like any form 27 of notice--must comply with due process requirements under the 28 Constitution. See Rubenstein, 4 Newberg on Class Actions § 8:15 1 (5th ed.). That is, the notice must be “reasonably calculated, 2 under all the circumstances, to apprise interested parties of the 3 pendency of the action and afford them an opportunity to present 4 their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 5 U.S. 306, 314 (1950). While actual notice is not required, the 6 notice provided must be “reasonably certain to inform the absent 7 members of the plaintiff class.” Silber, 18 F.3d at 1454 8 (citation omitted). 9 For the reasons provided above in the court’s 10 discussion of notice under Rule 23(c)(2), the court finds that 11 the Agreement’s system for providing notice of the settlement is 12 reasonably calculated to provide notice to class members and 13 inform class members of their options under the agreement. 14 Accordingly, the manner of notice and the content of notice is 15 sufficient to satisfy Rule 23(e). 16 IT IS THEREFORE ORDERED that plaintiff’s motion for 17 preliminary certification of a conditional settlement class and 18 preliminary approval of the class action settlement (Docket No. 19 21) be, and the same hereby is, GRANTED. 20 IT IS FURTHER ORDERED THAT: 21 (1) the following class be provisionally certified for the 22 purpose of settlement: all current and former non-exempt 23 employees who worked at any of defendants’ distribution centers 24 at any time between November 6, 2014, and June 2, 2020, and who 25 do not opt out of the settlement; 26 (2) the proposed settlement is preliminarily approved as 27 fair, just, reasonable, and adequate to the members of the 28 settlement class, subject to further consideration at the final 1 fairness hearing after distribution of notice to members of the 2 settlement class; 3 (3) for purposes of carrying out the terms of the settlement 4 only: 5 (a) Lucas Mejia is appointed as the representative of 6 the settlement class and is provisionally found to be an adequate 7 representative within the meaning of Federal Rule of Civil 8 Procedure 23; 9 (b) the law firm of Lavi & Ebrahimian, LLP and the Law 10 Offices of Sahag Majarian II are provisionally found to be fair 11 and adequate representatives of the settlement class and are 12 appointed as class counsel for the purposes of representing the 13 settlement class conditionally certified in this Order; 14 (4) CPT Group, Inc. is appointed as the settlement 15 administrator; 16 (5) the form and content of the proposed Notice of Class 17 Action Settlement (Bello Decl., Ex. 1) is approved, except to the 18 extent that it must be updated to reflect dates and deadlines 19 specified in this Order and to reflect the fact that the final 20 fairness hearing will occur over Zoom; 21 (6) no later than fifteen (15) business days from the date 22 this Order is signed, defendants’ counsel shall provide the names 23 and contact information of all settlement class members to CPT 24 Group, Inc.; 25 (7) no later than fourteen (14) calendar days from the date 26 defendants submit the contact information to CPT Group, Inc., it 27 shall mail a Notice of Class Action Settlement to all members of 28 the settlement class; 1 (8) no later than sixty (60) days from the date this Order 2 is signed, any member of the settlement class who intends to 3 dispute the number of compensable workweeks listed in his or her 4 Notice, or otherwise object to, comment upon, or opt out of the 5 settlement shall mail written notice of that intent to CPT Group, 6 Inc. pursuant to the instructions in the Notice of Class Action 7 Settlement; 8 (9) a final fairness hearing shall be held before this court 9 on Monday, March 22, 2021, at 1:30 p.m. in Courtroom 5 of the 10 Robert T. Matsui United States Courthouse, 501 I Street, 11 Sacramento, California, to determine whether the proposed 12 settlement is fair, reasonable, and adequate and should be 13 approved by this court; to determine whether the settlement 14 class’s claims should be dismissed with prejudice and judgment 15 entered upon final approval of the settlement; to determine 16 whether final class certification is appropriate; and to consider 17 class counsel’s applications for attorney’s fees, costs, and an 18 incentive award to plaintiff. The parties shall update the 19 proposed Notice of Class Action Settlement to inform class 20 members that the final fairness hearing will take place over 21 Zoom. The Notice shall instruct any person who is interested in 22 attending the hearing to contact plaintiff’s counsel no later 23 than ninety (90) days from the date this Order is signed to 24 obtain instructions for gaining access via Zoom. The courtroom 25 deputy shall provide plaintiff’s counsel with these instructions 26 no later than March 17, 2021. Plaintiff’s counsel shall, in 27 turn, provide the instructions to persons who have expressed 28 interest in attending no later than March 18, 2021. The court 1 may continue the final fairness hearing without further notice to 2 the members of the class; 3 (10) no later than twenty-eight (28) days before the final 4 fairness hearing, class counsel shall file with this court a 5 petition for an award of attorney’s fees and costs. Any 6 objections or responses to the petition shall be filed no later 7 than fourteen (14) days before the final fairness hearing. Class 8 counsel may file a reply to any objections no later than seven 9 (7) days before the final fairness hearing; 10 (11) no later than twenty-eight (28) days before the final 11 fairness hearing, class counsel shall file and serve upon the 12 court and defendants’ counsel all papers in support of the 13 settlement, the incentive award for the class representative, and 14 any award for attorney’s fees and costs; 15 (12) no later than twenty-eight (28) days before the final 16 fairness hearing, CPT Group, Inc. shall prepare, and class 17 counsel shall file and serve upon the court and defendants’ 18 counsel, a declaration setting forth the services rendered, proof 19 of mailing, a list of all class members who have opted out of the 20 settlement, a list of all class members who have commented upon 21 or objected to the settlement; 22 (13) any person who has standing to object to the terms of 23 the proposed settlement may themselves appear at the final 24 fairness hearing or appear through counsel and be heard to the 25 extent allowed by the court in support of, or in opposition to, 26 (a) the fairness, reasonableness, and adequacy of the proposed 27 settlement, (b) the requested award of attorney’s fees, 28 reimbursement of costs, and incentive award to the class 1 representative, and/or (c) the propriety of class certification. 2 To be heard in opposition at the final fairness hearing, a person 3 must, no later than ninety (90) days from the date this Order is 4 signed, (a) serve by hand or through the mails written notice of 5 his or her intention to appear, stating the name and case number 6 of this action and each objection and the basis therefore, 7 together with copies of any papers and briefs, upon class counsel 8 and counsel for defendants, and (b) file said appearance, 9 objections, papers, and briefs with the court, together with 10 proof of service of all such documents upon counsel for the 11 parties. 12 Responses to any such objections shall be served by 13 hand or through the mails on the objectors, or on the objector’s 14 counsel if there is any, and filed with the court no later than 15 fourteen (14) calendar days before the final fairness hearing. 16 Objectors may file optional replies no later than seven (7) 17 calendar days before the final fairness hearing in the same 18 manner described above. Any settlement class member who does not 19 make his or her objection in the manner provided herein shall be 20 deemed to have waived such objection and shall forever be 21 foreclosed from objecting to the fairness or adequacy of the 22 proposed settlement, the judgment entered, and the award of 23 attorney’s fees, costs, and an incentive award to the class 24 representative unless otherwise ordered by the court; 25 (14) pending final determination of whether the settlement 26 should be ultimately approved, the court preliminarily enjoins 27 all class members (unless and until the class member has 28 submitted a timely and valid request for exclusion) from filing nee nnn EEE EO OS OIE ENS
1 or prosecuting any claims, suits, or administrative proceedings 2 regarding claims to be released by the settlement. 3 | Dated: November 24, 2020 eh tle HK Le. bE 4 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34