Emmons et al v. Quest Diagnostics Clinical Laboratories, Inc. et al

Filing 81

ORDER Granting Preliminary Approval of Class Action Settlement (Doc. 74 ), signed by District Judge Dale A. Drozd on 6/21/2016. (Final Approval of Class Action Settlement set for 11/1/2016, at 09:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. Class Certification Hearing previously set for 11/15/2016, is VACATED.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOROTHEA EMMONS and LISA
STAPLETON, individually, and on behalf
of other members of the general public
similarly situated, and as aggrieved
employees,

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Plaintiffs,

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v.

No. 1:13-cv-00474-DAD-BAM

ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
(Doc. No. 74)

QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC., a Delaware
corporation; QUEST DIAGNOSTICS
INCORPORATED, doing business as
QUEST DIAGNOSTICS
INCORPORATED OF NEVADA, a
Nevada corporation; QUEST
DIAGNOSTICS NOCHOLS INSTITUTE,
a California corporation; DOES 1 through
10, inclusive,
Defendants.

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On May 16, 2016, Dorothea Emmons and Lisa Stapleton (“plaintiffs”) filed a motion for

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preliminary approval of a class action settlement. (Doc. No. 74.) The court held a hearing on the

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motion on June 21, 2016. (Doc. No. 80.) Attorneys Bevin Pike and Eduardo Santes appeared

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telephonically on behalf of plaintiffs and attorney Aimee Mackay appeared telephonically on

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behalf of defendants. For the reasons discussed below, the court grants the motion.

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I.

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Introduction
This action was removed from Stanislaus County Superior Court under the Class Action

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Fairness Act (“CAFA”) on April 1, 2013. (Doc. No. 1.) The complaint alleges Quest Diagnostics

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Clinical Laboratories, Inc., Quest Diagnostics Incorporated, and Quest Diagnostics Nochols

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Institute (“defendants”) violated California labor law by failing to (1) pay overtime wages, (2)

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pay minimum wages, (3) provide meal periods, (4) provide rest breaks, (5) pay all wages owed

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upon termination, (6) provide accurate wage statements, and (7) pay business-related expenses.

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Plaintiffs further allege violations of California Labor Code § 2698 and California Business and

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Professions Code § 17200. (Id. at 24–37.) Plaintiffs sought relief both on their own behalf and

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on behalf of a proposed main class and two proposed subclasses consisting of non-Floater and

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Floater Phlebotomists employed by defendants. (Id. at 16–17.)

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On May 16, 2016, plaintiffs filed the current motion seeking preliminary approval of a

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class action settlement. (Doc. No. 74.) The proposed settlement defines the class as “[a]ll

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persons who worked as ‘Floater’ or ‘Non-Floater’ Phlebotomists for Defendants in California at

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any time during the period from April 29, 2011 to the date of Preliminary Approval.” (Id. at 9.)

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The proposed settlement seeks a gross settlement amount of $2,350,000.00. After

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deducting the requested attorney’s fees and costs, settlement administration costs, payment to the

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California Labor and Workforce Development Agency (“LWDA”), and the class representative

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enhancement payments, the class members will net $1,495,667.00. (Id.) Plaintiffs estimate each

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class member will receive approximately $575.00. (Id. at 10.)

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In the motion, plaintiffs and the putative class seek an order: (1) granting preliminary

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approval of the proposed class action settlement; (2) conditionally certifying the settlement class;

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(3) approving distribution of notice to the settlement class; (4) approving plaintiffs as class

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representatives; (5) approving Capstone Law APC as class counsel; (6) approving Simpluris, Inc.

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as class administrator; and (7) setting a hearing date for final approval of the settlement.

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II.

Legal Standard
“Courts have long recognized that settlement class actions present unique due process

concerns for absent class members.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,
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946 (9th Cir. 2011) (citation and internal quotations omitted). To protect the rights of absent

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class members, Rule 23(e) of the Federal Rules of Civil Procedure requires the court approve all

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class action settlements “only after a hearing and on finding that it is fair, reasonable, and

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adequate.” Fed. R. Civ. P. 23(e)(2); Bluetooth, 654 F.3d at 946. However, it has been recognized

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when parties seek approval of a settlement agreement negotiated prior to formal class

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certification, “there is an even greater potential for a breach of fiduciary duty owed the class

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during settlement.” Bluetooth, 654 F.3d at 946. Thus, the court must review such agreements

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with “a more probing inquiry” for evidence of collusion or other conflicts of interest than what is

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normally required under the Federal Rules. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th

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Cir. 1998); see also Bluetooth, 654 F.3d at 946.
When parties seek class certification for settlement purposes only, Rule 23 “demand[s]

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undiluted, even heightened, attention” to the requirements for certification. Amchem Prods., Inc.

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v. Windsor, 521 U.S. 591, 620 (1997). The district court must examine the propriety of

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certification under Rule 23 both at this preliminary stage and at a later fairness hearing. See, e.g.,

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Ogbuehi v. Comcast, No. 2:13-cv-00672-KJM-KJN (E.D. Cal. Oct. 2, 2014); West v. Circle K

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Stores, Inc., No. 04-cv-0438 WBS GGH, 2006 WL 1652598, at *2 (E.D. Cal. June 13, 2006).

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Review of a proposed class action settlement ordinarily proceeds in three stages. See

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Manual for Complex Litigation (4th) § 21.632. First, the court conducts a preliminary fairness

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evaluation and, if applicable, considers conditional class certification. Id. Second, if the court

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makes a preliminary determination on the fairness, reasonableness, and adequacy of the

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settlement terms, the parties are directed to prepare the notice of certification and proposed

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settlement to the class members. Id. Third, the court holds a final fairness hearing to determine

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whether to approve the settlement. Id.; see also Narouz v. Charter Commc’ns, Inc., 591 F.3d

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1261, 1266–67 (9th Cir. 2010).

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III.

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Conditional Certification
Plaintiffs request conditional certification of the settlement class under Rule 23(c)(1). The

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parties ask the court to certify the following settlement class:

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All persons who worked as “Floater” or “Non-Floater”
Phlebotomists for Defendants in California at any time during the
period from April 29, 2011 to the date of Preliminary Approval.

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(Doc. No. 74 at 9.)
Rule 23(c)(1) permits a court to “make a conditional determination of whether an action

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should be maintained as a class action, subject to final approval at a later date.” Fry v. Hayt, Hayt

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& Landau, 198 F.R.D. 461, 466 (E.D. Pa. 2000). Conditional certification requires satisfaction of

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the pre-requisites of Rule 23(a) and (b). Id.

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a. Rule 23(a) Requirements

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Federal Rule of Civil Procedure 23(a) states in pertinent part that “[o]ne or more members

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of a class may sue or be sued as representative parties on behalf of all.” As a threshold matter, in

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order to certify a class, a court must be satisfied that:
(1) the class is so numerous that joinder of all members is
impracticable (the “numerosity” requirement); (2) there are
questions of law or fact common to the class (the “commonality”
requirement); (3) the claims or defenses of representative parties are
typical of the claims or defenses of the class (the “typicality”
requirement); and (4) the representative parties will fairly and
adequately protect the interests of the class (the “adequacy of
representation” requirement).

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In re Itel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981) (citing Fed. R. Civ. P. 23(a)).
i. Numerosity
A proposed class must be “so numerous that joinder of all members is impracticable.”

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Fed. R. Civ. P. 23(a)(1). The numerosity requirement demands “examination of the specific facts

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of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446

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U.S. 318, 330 (1980).

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The parties stipulate there are 2,600 potential class members. (Doc. No. 74 at 14.) Courts

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have routinely found the numerosity requirement satisfied when the class comprises 40 or more

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members. Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998). Numerosity is also

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satisfied where joining all class members would serve only to impose financial burdens and clog

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the court’s docket. In re Itel Litig., 89 F.R.D. at 112. Here, the joinder of approximately 2,600
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current and former, floater and non-floater phlebotomists to hear their several claims would only

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further clog this court’s already overburdened docket. Numerosity is thus satisfied.

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ii. Commonality
Rule 23(a) also demands “questions of law or fact common to the class.” Fed. R. Civ. P.

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23(a)(2). The rule does not require all questions of law or fact be common to every single class

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member. The raising of any common question, however, does not suffice. See Wal-Mart Stores,

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Inc. v. Dukes, 564 U.S. 338, 349 (2011) (“[a]ny competently crafted class complaint literally

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raises common ‘questions.’”) (quoting Nagareda, Class Certification in the Age of Aggregate

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Proof, 84 N.Y.U. L. Rev. 97, 131–132 (2009)); Ellis v. Costco Wholesale Corp., 657 F.3d 970,

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981 (9th Cir. 2011) (“In other words, Plaintiffs must have a common question that will connect

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many individual promotional decisions to their claim for class relief.”) Rather, class

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representatives must demonstrate common points of facts and law will drive or resolve the

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litigation. Dukes, 564 U.S. at 350 (“What matters to class certification . . . is not the raising of

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common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to

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generate common answers apt to drive the resolution of the litigation.”) (internal citations

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omitted). To satisfy Rule 23(a)’s commonality requirement, a class claim “must depend upon a

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common contention . . . of such a nature that it is capable of classwide resolution—which means

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that determination of its truth or falsity will resolve an issue that is central to the validity of each

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one of the claims in one stroke.” Id.

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Here, plaintiffs present common questions ripe for common answers to the central issues.

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These questions include: whether defendants’ written rest period policy violated Industrial

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Welfare Commission (“IWC”) Wage Order No. 5; whether defendants’ practice of understaffing

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its facilities caused class members to miss meal or rest periods; whether defendants failed to pay

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premiums when class members were forced to skip meal or rest periods; whether defendants

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maintained a company policy requiring class members to work off the clock; whether defendants

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failed to provide wage statements in compliance with California law; and whether defendants had

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a policy of not properly reimbursing class members for business expenses. See Palacios v. Penny

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Newman Grain, No. 1:14-cv-01804, 2015 WL 4078135, at *4 (E.D. Cal. July 6, 2015) (finding
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commonality satisfied on similar grounds); also Clesceri v. Beach City Investigations &

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Protective Services, Inc., No. CV-10-3873-JST (RZx), 2011 WL 320998, at *5 (C.D. Cal. Jan. 27,

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2011) (same). Accordingly, the court finds commonality to be satisfied for the purpose of

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conditional class certification. However, the court also expects further evidence in the form of

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declarations and affidavits will be submitted prior to the fairness hearing on this issue.

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iii. Typicality
Rule 23(a)(3) demands “the claims or defenses of the representative parties are typical of

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the claims or defenses of the class.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

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Typicality is satisfied if the representative’s claims arise from the same course of conduct as the

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class claims and are based on the same legal theory. See, e.g., Kayes v. Pac. Lumber Co., 51 F.3d

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1449, 1463 (9th Cir. 1995) (claims are typical where named plaintiffs have the same claims as

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other members of the class and are not subject to unique defenses). Under the rule’s “permissive

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standards,” representative claims are typical if they are “reasonably co-extensive with those of

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absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. Here,

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because plaintiffs held the same positions as class members and were, ostensibly, subjected to the

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same policies and practices, typicality is satisfied.

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iv. Adequacy of Representation
The final Rule 23(a) prerequisite is satisfied if “the representative parties will fairly and

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adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The proper resolution of

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this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel

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have any conflicts of interest with other class members and (b) will the named plaintiffs and their

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counsel prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec.

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Litig., 213 F.3d 454, 462 (9th Cir. 2000). The adequacy requirement is satisfied here because

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plaintiffs have overlapping interests with the class members and have asserted they will

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vigorously pursue the action; there are no apparent conflicts between plaintiffs’ claims and the

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class members’ claims; and plaintiffs are represented by experienced and competent counsel.

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However, while plaintiffs have made these assertions in their moving papers, they have not

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attached any declarations stating such. The court expects to receive these declarations prior to the
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fairness hearings.

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b. Rule 23(b)(3)

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Once the threshold requirements of Rule 23(a) are satisfied, a class may be certified if the

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class action satisfies the predominance and superiority requirements of Rule 23(b)(3). See

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Amchem, 521 U.S. at 615 (“To qualify for certification under Rule 23(b)(3), a class must meet

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two requirements beyond Rule 23(a) prerequisites: Common questions must ‘predominate over

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any questions affecting only individual members,’ and class resolution must be ‘superior to other

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available methods for the fair and efficient adjudication of the controversy.’”)

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i. Predominance
First, the common questions must “predominate” over any individual questions. While

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this requirement is similar to the Rule 23(a)(2) commonality requirement, the standard is much

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higher at this stage of the analysis. Dukes, 564 U.S. at 359; Amchem, 521 U.S. at 624–25;

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Hanlon, 150 F.3d at 1022 (9th Cir. 1998). While Rule 23(a)(2) can be satisfied by even a single

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question, Rule 23(b)(3) requires convincing proof the common questions “predominate.”

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Amchem, 521 U.S. at 623–24; Hanlon, 150 F.3d at 1022. “When common questions present a

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significant aspect of the case and they can be resolved for all members of the class in a single

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adjudication, there is clear justification for handling the dispute on a representative rather than on

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an individual basis.” Hanlon, 150 F.3d at 1022.

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Here, the major issues concern pay, rest/meal period, and wage statement policies

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defendants universally applied to all class members. Class actions in which a defendants’

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uniform policies are challenged generally satisfy the predominance requirement of Rule 23(b)(3).

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See Palacios, 2015 WL 4078135, at *5–6; also Clesceri, 2011 WL 320998, at *7. At this stage,

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the predominance requirement has been met.

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ii. Superiority
Rule 23(b)(3) also requires a court to find “a class action is superior to other available

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methods for the fair adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). As the district

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court in Palacios summarized:

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In resolving the Rule 23(b)(3) superiority inquiry, the court should
consider class members’ interests in pursuing separate actions
individually, any litigation already in progress involving the same
controversy, the desirability of concentrating in one forum, and
potential difficulties in managing the class action—although the last
two considerations are not relevant in the settlement context.

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2015 WL 4078135, at *6 (citing Schiller v. David’s Bridal Inc., No. 10-0616, 2012 WL 2117001,

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at *10 (E.D. Cal. June 11, 2012). Here, the individual amount to be recovered by each class

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member would be dwarfed by litigation costs. Also, neither party has pointed to the existence of

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conflicting litigation. Superiority is satisfied.

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IV.

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Preliminary Fairness Determination
In reviewing the parties’ settlement, although it is not a court’s province to “reach any

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ultimate conclusions on the contested issues of fact and law which underlie the merits of the

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dispute,” a court should weigh the strength of a plaintiff’s case; the risk, expense, complexity, and

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likely duration of further litigation; the stage of the proceedings; and the value of the settlement

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offer. Chem. Bank v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992). The court should also

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watch for collusion between class counsel and defendants. Id.
Preliminary approval of a settlement and notice to the proposed class is appropriate: “[i]f

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[1] the proposed settlement appears to be the product of serious, informed, noncollusive

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negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential treatment

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to class representatives or segments of the class, and [4] falls within the range of possible

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approval . . . .” In re Tableware Antitrust Litigation, 484 F. Supp. 2d 1078, 1079 (N.D. Cal.

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2007).

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a. The Settlement Is the Product of Informed, Arm’s Length Negotiations

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The settlement was reached after informed, arm’s length negotiations between the parties.

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The parties engaged in both formal and informal discovery, including an exchange and review of

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defendants’ policies and a sample of employee time and wage records. (Doc. No. 74 at 12.)

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Plaintiffs’ counsel also interviewed numerous potential class members. (Id.) Furthermore, the

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parties participated in mediation with an impartial mediator, Barry Winograd. (Id. at 13.) Based

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on this information, and a lack of any sign of collusion based on the current record, the court
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finds the parties have sufficiently shown the settlement was the product of informed, arm’s length

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negotiations deserving of preliminary approval. See Palacios, 2015 WL 4078135, at *8 (noting

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“the [c]ourt need not perform a full fairness analysis at this time because it will be done in

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connection with the [final] fairness hearing.”) (quoting Nieves v. Cmty. Choice Health Plan of

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Westchester, Inc., No. 08-321, 2012 WL 857891, at *5 (S.D.N.Y. Feb. 24, 2012)).

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b. The Proposed Settlement Has No “Obvious Deficiencies”
The settlement provides for a gross payment of $2,350,000.00 to 2,600 potential class

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members. (Doc. No. 74-1 at 21, 24.) Class members will net $1,495,667.00 after attorney’s fees,

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litigation costs, settlement administration costs, LWDA payments, and class representative

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enhancement payments are deducted. (Id. at 21–22.) On average, each class member will receive

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$575.00. (Doc. No. 74 at 14.) The court regards this average payment as a good result,

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especially in light of other approved settlements in which class members received a third to a

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tenth of this amount. See Schiller, 2012 WL 2117001, at *17 (approving $198.70 average

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payment and providing examples in which average payment ranged from $57 to $98). Settlement

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shares will be proportional to the gross wages earned by each class member during the class

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period. (Doc. No. 74-1 at 29.) Unclaimed funds are to be distributed to class members on a

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proportional basis. (Id.) Funds from settlement checks not cashed will be given to the California

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Department of Industrial Relations Unpaid Wage Fund. (Id. at 34.)

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i. Attorney’s Fees
When a negotiated class action settlement includes an award of attorney’s fees, the fee

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award must be evaluated in the overall context of the settlement. Knisley v. Network Assocs., 312

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F.3d 1123, 1126 (9th Cir. 2002). At the same time, the court “ha[s] an independent obligation to

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ensure that the award, like the settlement itself, is reasonable, even if the parties have already

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agreed to an amount.” In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935, 941 (9th Cir.

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2011). See also Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1328–29 (9th Cir. 1999).

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Where, as here, fees are to be paid from a common fund, the relationship between the class

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members and class counsel “turns adversarial.” In re Washington Pub. Power Supply Sys. Sec.

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Litig., 19 F.3d 1291, 1302 (9th Cir. 1994). As a result, the district court must assume a fiduciary
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role for the class members in evaluating a request for an award of attorney fees from the common

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fund. Id.; Rodriquez v. W. Publ’g Corp., 563 F.3d 948, 968 (9th Cir. 2009).

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Class counsel seeks attorney’s fees in the amount of $783,333, or 33 percent of the gross

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settlement award. This number is on the high end of appropriate attorney’s fees awards. See

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Morales v. Stevco, Inc., No. 1:09-cv-00704, 2011 WL 5511767 AWI JLT, at *12 (E.D. Cal. Nov.

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10, 2011) (“The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 33 1/3%

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of the total settlement value, with 25% considered the benchmark.”) (quoting Powers v. Eichen,

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229 F.3d 1249, 1256 (9th Cir. 2000)). Furthermore, the court is also concerned with the “clear

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sailing” provision of the agreement. See Palacios, 2015 WL 4078135, at *9 (expressing same

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reservations) (citing Bluetooth, 654 F.3d at 942, 947). According to the settlement, defendants

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agree not to challenge plaintiffs’ request for attorney’s fees. (Doc. No. 74-1 at 19.) While the

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court grants preliminary approval, class counsel cannot rely solely on defendants’ acquiescence

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and must, for purposes of final approval, provide proof that attorney’s fees in the amount of

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33 percent of the gross settlement are “reasonable and proportionate to the work performed.”

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Clesceri, 2011 WL 320998, at *10 (citing Murillo v. Pac. Gas & Elec. Co., No. CIV. 2:08-1974

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WBS GGH, 2010 WL 2889728, at *7 (E.D. Cal. July 21, 2010)).

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ii. Class Representative Payment
The settlement provides for payments of $8,000.00 to the class representatives. “Incentive

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awards are fairly typical in class action cases.” Rodriquez, 563 F.3d at 958–59. However, the

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decision to approve such an award is a matter within the court’s discretion. In re Mego, 213 F.3d

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at 463. Generally speaking, incentive awards are meant to “compensate class representatives for

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work done on behalf of the class, to make up for financial or reputational risk undertaken in

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bringing the action, and, sometimes to recognize their willingness to act as a private attorney

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general.” Rodriquez, 564 F.3d at 958–59. The Ninth Circuit has emphasized “district courts must

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be vigilant in scrutinizing all incentive awards to determine whether they destroy the adequacy of

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the class representatives . . . . [C]oncerns over potential conflicts may be especially pressing

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where, as here, the proposed service fees greatly exceed the payments to absent class members.”

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Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d 1157, 1165 (9th Cir. 2013) (internal quotation
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marks and citations omitted). A class representative must justify an incentive award through

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“evidence demonstrating the quality of plaintiff’s representative service,” such as “substantial

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efforts taken as class representative to justify the discrepancy between [his] award and those of

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the unnamed plaintiffs.” Alberto v. GMRI, Inc., 252 F.R.D. 652, 669 (E.D. Cal. 2008). Incentive

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awards are particularly appropriate in wage-and-hour actions where a plaintiff undertakes a

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significant “reputational risk” by bringing suit against their former employers. Rodriquez, 563

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F.3d at 958–59.

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Plaintiffs request for incentive payments of $8,000.00 to each class representative falls
within the typical range of such payments. See Vasquez, 670 F. Supp. 2d at 1125 (approving

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payments of $5,000.00 to each class representative). Additionally, by challenging the wage and

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hour policies of their former employer, plaintiffs are exposing themselves to significant

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reputational harm. However, plaintiffs submit no evidence concerning the services they rendered

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to the class. Thus, the court will grant preliminary approval to the incentive payments with the

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expectation that plaintiffs will provide the necessary documentation come the final hearing. This

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should include detailed declarations describing their current employment status, any risks they

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faced as a class representative, specific activities they performed as a class representative, and the

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amount of time they spent on each activity.

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iii. Cost of Administration and PAGA Penalty Payment
Likewise, the court finds the expected cost of administration of the settlement and the
PAGA penalty payment to be reasonable.
c. The Settlement Falls Well Within the Range of Possible Approval

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To determine whether a settlement “falls within the range of possible approval” a court

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must focus on “substantive fairness and adequacy” and “consider plaintiffs’ expected recovery

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balanced against the value of the settlement offer.” In re Tableware, 484 F. Supp. 2d at 1080.

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The settlement confers a substantial benefit on class members, while proceeding with litigation

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imposes significant risks.

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Plaintiffs’ counsel claims it engaged in a significant review of information provided by

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defendants and class members, and believes the settlement is fair, adequate, and reasonable in
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light of the information it uncovered. (Doc. No. 74 at 26–27.) Plaintiffs point to a slew of cases

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as evidence that wage and hour cases are often denied certification on the ground individual

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issues predominate over common issues. (Id. at 28.) Furthermore, this case has been active since

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2013, and continued litigation will further delay any relief received by class members. Based on

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the potential uncertainty facing plaintiffs and the class members, as well as the amount of time

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already invested in the matter, the court finds the proposed settlement to be fair, reasonable, and

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adequate and is in the best interests of the class members.

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d. The Claim Form’s Release Is Proper and Not Overly Broad
As part of the settlement, “[p]laintiff[s] and the Settlement Class Members who do not

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timely submit a valid request for exclusion fully and forever release the Released Parties from the

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Released Claims for the Class Period.” (Doc. No. 74-1 at 26.) “Released Parties” is defined as:
Defendants . . . [including] their past or present officers, directors,
shareholders, employees, agents, principals, heirs, representatives,
accountants, auditors, consultants, insurers and reinsurers, their
company-sponsored employee benefit plans, and their respective
successors and predecessors in interest, subsidiaries, affiliates,
parents and attorneys, if any.

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(Id. at 23.) “Released claims” is defined as:
[A]ll claims, rights, demands, liabilities, and causes of action of any
kind arising at any time or from anything occurring during the Class
Period and relating to any of the allegations set forth in the
operative complaint in the Action, or based on the same set of
operative facts alleged therein, including any and all state or federal
wage and hour claims, either under the Fair Labor Standards Act
(“FLSA”) or otherwise, that were or could have been asserted in the
operative complaint based on Defendants’ alleged failure to provide
meal and rest breaks or compensation in lieu thereof, failure to pay
minimum wages or overtime for all hours worked, failure to timely
pay all wages due upon termination/separation from employment,
failure to provide accurate wage statements, and/or failure to
reimburse for business related expenses, and any related claims for
penalties, interest, or attorneys’ fees, including any claims for any
alleged unfair business practices under the California Business and
Professions Code § 17200 et seq., and for any penalties under the
Private Attorneys’ General Act relating to these claims.
Additionally, any Class Member who does not opt-out (and who, in
so doing, becomes a Participating Class Member), and who cashes

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his or her settlement check, will be deemed to have opted into the
action for purposes of the FLSA. Non-wage and hour claims,
including but not limited to civil rights and tort claims and wage
and hour claims beyond those within the scope of the release above,
are not included in the release.

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(Id.) These released claims appropriately track the breadth of plaintiffs’ allegations in this action

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and the settlement does not release unrelated claims that class members may have against

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defendants. Cf. Bond v. Ferguson Enter., Inc., No. 1:09-cv-01662-OWW-MJS, 2011 WL

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284962, at *7 (E.D. Cal. Jan. 25, 2011) (“This form of release is overbroad by arguably releasing

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all unrelated claims up to the date of the Agreement.”).

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e. Collusion

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There is no evidence of collusion in this case. Furthermore, the court notes the parties
participated in a full day of mediation before arriving at the settlement agreement.
V.

Proposed Class Notice and Administration
“Adequate notice is critical to court approval of a class settlement under Rule 23(e).”

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Hanlon, 150 F.3d at 1025. A class action settlement notice “is satisfactory if it generally

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describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to

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investigate and to come forward and be heard.” Churchill Vill., LLC v. Gen. Elec., 561 F.3d 566,

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575 (9th Cir. 2004) (internal quotations and citations omitted).

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The proposed notice and the manner of notice agreed upon by the parties in this case is

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“the best notice practicable,” as required under Rule 23(c)(2)(B). Within twenty days of the court

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granting preliminary approval of the settlement, defendants will provide the settlement

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administrator with a list of all class members that will identify each class member’s full name,

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most recent mailing address and telephone number, social security number, dates of employment,

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and gross wages earned during the class period. (Doc. No. 74-1 at 19–20). The settlement

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administrator will mail a notice packet to all class members via First-Class U.S. Mail. (Id. at 20.)

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Prior to mailing, the settlement administrator will perform a search based on the National Change

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of Address Database to update and correct for any known or identifiable address changes. (Id. at

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21.) The settlement administrator will re-send returned packets to the forwarding addresses

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affixed to the returned packets. (Id.) If no forwarding address is provided, the settlement

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administrator will attempt to determine the correct address using a skip-trace. (Id.) Class

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members will have 45 days from the date of mailing to postmark objections or to opt out. (Id. at

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24.)

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The class notice adequately informs class members of the nature of the litigation, the

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essential terms of the settlement, and how to make a claim under the settlement, object to the

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settlement, or elect not to participate in the settlement. Additionally, the class notice identifies

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class counsel, provides their contact information, and specifies the amounts of the class

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representative and PAGA payments, class counsel attorney’s fees and cost, and the expense of the

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class administrator. (Doc. No. 74-1 at 47–52.)

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The claim form does not require any action from class members to participate in the

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settlement. (Id. at 49.) However, it also provides instructions on how class members can opt out

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and how class members can object to the proposed settlement, including the amount to which

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they are entitled. (Id.) Defendants’ employment records will be presumed determinative, but

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class members will be provided the opportunity to present their own documentation to the

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settlement administrator. (Id.)

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The parties have also submitted the following settlement implementation schedule:
Date
July 11, 2016 (or not later than 20 days after
the court enters an order granting preliminary
approval of the settlement).
July 21, 2016 (or not later than 10 days after
defendants produce the class list to the
settlement administrator).
August 26, 2016 (or at least 7 days prior to the
response deadline).

Event
Last day for defendants to produce the class list
to the settlement administrator.
Last for the settlement administrator to mail the
class notice to all class members.
Last day for plaintiffs to file the motion for
attorneys’ fees, costs, and class representative
enhancement payments.
Last day for class members to submit requests
for exclusion or objections to the settlement.

September 5, 2016 (or not later than 45 days
after the settlement administrator mails the
class notice).
September 23, 2016

Last day for plaintiffs to file the motion for
final approval of class action settlement.

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October 18, 2016

Last day for plaintiffs to file a reply (if desired)
in support of the motion for final approval of
class action settlement and motion for
attorney’s fees, costs, and class representative
enhancement payments.
Hearing on motion for final approval of class
action settlement and motion for attorneys’
fees, costs, and class representative
enhancement payments.

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November 1, 2016 at 9:30 a.m.

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VI.

Conclusion

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For all the reasons set forth above, the court:

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1) Confirms the conditional certification of the settlement class for settlement purposes;

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2) Grants preliminary approval of the class action settlement set forth in the stipulation of

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class action settlement and release between plaintiff and defendants;

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3) Approves plaintiffs as class representatives;

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4) Confirms Capstone Law APC as class counsel;

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5) Approves Simpluris, Inc. as settlement administrator;

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6) Approves the Notice Of Proposed Class Action Settlement and Final Approval

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Hearing (Doc. No. 74-1 at 47–52.)

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7) Directs that notice be given to the class via First Class Mail;

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8) Sets a hearing for final approval of the proposed settlement for November 1, 2016 at

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9:30 a.m.; and

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9) Adopts the proposed settlement implementation schedule.
IT IS SO ORDERED.

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Dated:
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June 21, 2016
UNITED STATES DISTRICT JUDGE

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